EDMONDSON, Circuit Judge:
This appeal challenges the district court's grant of summary judgment in favor of defendant-appellee, the City of Clewiston, Florida ["City" or "City of Clewiston"].
On June 18, 1979, Officer Luis Perez, an employee of the City, received information that led him to watch an unoccupied apartment. He saw Brown break a window and crawl into the apartment to steal a stereo and other property. Thereafter, Brown left the apartment and returned to a car that was parked nearby. When Officer Perez approached and attempted to arrest Brown, Brown fled; Officer Perez shot Brown in the leg to prevent his escape.
At the time of the shooting incident, a Florida statute provided "justification" for a police officer to use "any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice." Fla.Stat.Ann. sec. 776.05 (West 1976). Florida law thus embodied the common-law rule on the use of deadly force. See Tennessee v. Garner, 471 U.S. 1, 16 n. 14, 105 S.Ct. 1694, 1703 n. 14, 85 L.Ed.2d 1 (1985) (listing Florida's statute as a codification of the "common-law rule"); see also City of St. Petersburg v. Reed, 330 So.2d 256, 257 (Fla.Dist.Ct.App.) (common-law rule in Florida "has ... been codified in Fla.Stat. sec. 776.05"), cert. denied, 341 So.2d 292 (Fla.1976). Only recently has Florida amended section 776.05.
By 1978, the City had adopted its own regulations on the use of deadly force. Then-Chief of Police Wilbur Miller had developed a police manual, which in Section 3.43 provided as follows:
Firearms and Weapons:
(emphasis in original). The last paragraph of this section stated that a police officer "shall exert no more force than is reasonably necessary to apprehend the fleeing felon, and shall use deadly force only as a last resort and only in those instances described under `Authorized Use' above." (emphasis in original).
Police department policy required that each officer sign a copy of the department's rules, thereby acknowledging that "he had received the manual and agreed to read it and abide by the rules of the manual." Deposition of Chief Wilbur Miller, at 10. Chief Miller repeatedly instructed his officers to read and to comply with the manual. Id. at 8, 10, 16, 23, & 36-37. If an officer violated any regulations, the department would check into the matter and, if warranted, suspend or terminate the officer. Id. at 35-36.
After the shooting incident in 1979, Brown filed suit against the City. Brown alleged that the City's "policies and procedures" on the use of deadly force deprived him of his constitutional rights, 42 U.S.C. sec. 1983. He also brought pendent state law claims, arguing that the City "negligently and carelessly failed to instruct or supervise" Officer Perez and that the City should be held liable on grounds of negligence and assault and battery. The district court granted the City's summary judgment motion; this appeal followed.
OUR STANDARD OF REVIEW
Preliminarily, we discuss the appropriate standard of review. "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). As the Supreme Court noted in Anderson, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.... If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Id. at 2511 (emphasis added). Put differently, when the defendant moves for summary judgment,
Id. at 2512 (emphasis added) (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L.Ed. 867 (1872)).
NO UNCONSTITUTIONAL "POLICY" FOR 42 U.S.C. Sec. 1983
Brown seeks to impose municipal liability on the City of Clewiston for its allegedly unconstitutional "policies and procedures" regarding the use of deadly force. He contends that material fact disputes preclude the grant of summary judgment for the City. After briefly discussing the nature of the constitutional "injury" alleged in this case, we focus on the chief issue before us today — namely, whether Brown's "injury" resulted from an official policy, "statute, ordinance, regulation, custom, or usage" of the City. See 42 U.S.C. sec. 1983; Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978).
Brown argues that Officer Perez improperly used deadly force when he shot
We assume arguendo that Officer Perez shot Brown under circumstances that violated the Garner Court's Fourth Amendment standard on the use of deadly force. It is nonetheless axiomatic that "a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under sec. 1983 on a respondeat superior theory." Monell, 436 U.S. at 691, 98 S.Ct. at 2036. To impose liability on the City of Clewiston for the acts of Officer Perez, Brown must show that the City "officially sanctioned or ordered" the shooting. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986); see also Monell, 436 U.S. at 691, 98 S.Ct. at 2036 ("custom" must be "so permanent and well settled" as to have "the force of law.").
Recently, the Supreme Court in Pembaur reaffirmed that "tortious conduct, to be the basis for municipal liability under sec. 1983, must be pursuant to a municipality's `official policy'." Pembaur, 106 S.Ct. at 1298. Put differently, "recovery from a municipality is limited to acts that are, properly speaking, acts `of the municipality' — that is, acts which the municipality has officially sanctioned or ordered." Id. Such "acts" must be "directed" by "the [municipality's] authorized decisionmakers." Id. at 1299.
Brown argues that a material fact dispute exists regarding which "policy" the City of Clewiston "officially sanctioned or ordered" at the time of the shooting in 1979. Under the Florida statute, a police officer could use "any force which he reasonably believes to be necessary to defend himself or another ... or when necessarily committed in arresting felons fleeing from justice." Fla.Stat.Ann. sec. 776.05 (West 1976) (emphasis added). Chief Miller's police manual, on the other hand, more narrowly circumscribed the use of deadly force: the manual authorized the use of deadly force only "as a last resort" and "when other means have failed" (emphasis in original); it required that the police officer "reasonably believe" that the fleeing felon "has (1) committed a violent crime to the person of another or (2) a crime against property that clearly demonstrates a wanton and reckless disregard for human life."
Brown nonetheless argues that "Chief Miller may have promulgated a `city procedure manual' and then chose, as the official policymaker of the City of Clewiston, to ignore that policy manual and apply [Florida's] Fleeing Felon Statute in situations as they arose with persons such as Plaintiff, Brown." Reply Brief of Appellant, Brown v. City of Clewiston, No. 87-5503, at 5. To try to support this theory, Brown has extracted selective statements from the depositions of Chief Miller, Officer Perez, and several expert witnesses, all of whom testified about the City's police manual and the state statute, Fla.Stat.Ann. sec. 776.05 (West 1976). Brown contends that these "statements" cast some doubt upon which "policy" the City was actually following at the time of the shooting incident in 1979.
None of these deposition statements, viewed in context, supports Brown's claim. In his deposition, Chief Miller stated that he instructed his police officers to follow state statutes and the police manual. Chief Miller recalled that he "wanted" his police officers "to conform with our manual, but above all else to stay within the state statute", Deposition of Chief Wilbur Miller, at 39; he opined that "[a]s far as I'm concerned, Luis Perez abided by the statute at the time, which would supersede my manual...." Id. at 92-93.
These statements raise no factual dispute about the City's policy on deadly force. That the Chief wanted his officers "above all else" to violate no state law is not inconsistent with his requirement that they follow the more restrictive City policy.
The deposition statements of Officer Perez
To the extent that Brown has presented any evidence to establish that what appears to be the City policy is, in fact, not the policy, that evidence is "merely colorable", amounting to at most a "scintilla." No witness testified that the City policy was not, in fact, used. All testimony was consistent with the apparent policy (the police manual) being the true policy.
NO GENUINE ISSUE OF MATERIAL FACT UNDER STATE LAW
Brown also appeals the grant of summary judgment as it pertains to his pendent state law claims against the City of Clewiston. He argues, in effect, that the district court used an improper standard to determine the City's liability under negligence and assault and battery theories.
In granting summary judgment against Brown's state law claims, the district court stated that "[t]he standard of care owed by the City to the plaintiff must be determined with reference to Fla.Stat. sec. 776.05 (1979), which governed the use of deadly force by police officers." Brown, 644 F.Supp. at 1415, 1416 (same standard applied under negligence and assault and battery theories). This statement derives support from Florida law prevailing at the time of Brown's shooting (in 1979). See City of St. Petersburg v. Reed, 330 So.2d 256, 257 (Fla.Dist.Ct.App.) ("when an officer has reasonable grounds to believe one has committed a felony, the officer is entitled to use force which is reasonably necessary to capture him, even to the extent of killing or wounding him."), cert. denied, 341 So.2d 292 (Fla.1976); id. at 257 (noting that "[t]his rule has ... been codified in Fla.Stat. sec. 776.05."); see also City of Miami v. Nelson, 186 So.2d 535, 538-39 (Fla.Dist.Ct.App.) ("Having reasonable grounds to believe [plaintiff] had committed a felony, the officers were entitled to use force which was reasonably necessary to capture him, even to the extent of killing or wounding him."), cert. denied, 194 So.2d 621 (Fla.1966); Gordon v. Alexander, 198 So.2d 325, 327 (Fla.1967) (endorsing Nelson: "We are constrained to hold the officer was justified in his action and did not use unnecessary or excessive force."). Recently, the Florida legislature amended section 776.05 to restrict more narrowly the justifiable use of deadly force,
Brown contends that the Supreme Court's decision in Garner somehow "amended" Florida's standard on the use of deadly force. We disagree. Garner, which arose from a section 1983 suit against a police officer and a municipality, focused upon the constitutional, Fourth Amendment consequences that result when a police officer uses "deadly force to prevent the escape of an apparently unarmed suspected felon." Garner, 105 S.Ct. at 1697. The Garner decision did not purport to establish a new standard applicable in state tort law actions. Generally, states may decide what is or is not tortious within their boundaries.
Applying the pertinent state tort law standard that prevailed at the time of Brown's shooting, we perceive no basis in the Record to support Brown's negligence and assault and battery claims. As we have already discussed, the City's official policy authorized the use of deadly force only as a "last resort", under life-threatening circumstances. Officer Perez's actions in shooting Brown apparently violated the City's policy. See Brown, 644 F.Supp. at 1416. Even under a respondeat superior theory,
In sum, Brown has failed to show that a genuine issue of material fact exists to preclude the grant of summary judgment in the City's favor. Brown must show that some probative evidence supports his state tort law claims. In light of Florida's common-law standard on the use of deadly force, Brown has not met this burden.
As Justice (now Chief Justice) Rehnquist recently stressed, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 106 S.Ct. at 2555 (plurality opinion); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ("purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'"). Given the circumstances of this case — namely, a City police manual that narrowly circumscribed the use of deadly force, a police chief who required that his officers follow the manual (and that they comply with "state law"), and the single-incident nature of this shooting, we conclude that the record taken as a whole could not lead a rational trier of fact to find that the City had a policy authorizing the use of deadly force when the federal constitution would prohibit such force. No basis exists for liability under Florida tort laws. Accordingly, we AFFIRM the district court.
HATCHETT, Circuit Judge, dissenting:
The majority holds that Brown has failed to demonstrate the existence of a material fact dispute regarding which policy the city of Clewiston followed at the time of the shooting in 1979. Because, in my view, the majority has affirmed the district court's resolution of factual disputes, I dissent.
As noted in the district court's opinion, the plaintiff and the city of Clewiston have stipulated to the following facts:
Brown v. City of Clewiston, 644 F.Supp. 1407, 1409-10 (S.D.Fla.1986).
This appeal comes to us in much the same posture as the Supreme Court's decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In Garner, the father of a 15-year-old burglary suspect who was slain by a police officer, filed suit against the officer, the Memphis Police Department, the city of Memphis, and other public officials, alleging that the shooting violated the fourth, fifth, sixth, eighth, and fourteenth amendments to the United States Constitution. See Garner, 471 U.S. at 5, 105 S.Ct. at 1698, 85 L.Ed.2d at 67. Because the facts of Garner are so similar to those in this case, a brief review of Garner is warranted.
On October 3, 1974, Memphis police officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. As Officer Hymon approached the house, he observed the suspect, Eugene Garner, run away from the house and across the backyard. With the aid of a flashlight, Officer Hymon was able to see Garner's hands and face, and though not certain, "was `reasonably sure' and `figured' that Garner was unarmed." Garner, 471 U.S. at 3, 105 S.Ct. at 1697, 85 L.Ed.2d at 5. After Garner refused to obey Officer Hymon's command that he halt, Hymon fired his revolver, fatally wounding Garner. When asked at trial why he fired his revolver, Hymon's only justification was that "there [wa]s no way that I could have caught him." Garner, 471 U.S. at 4 n. 3, 105 S.Ct. at 1697 n. 3, 85 L.Ed.2d at 5 n. 3.
In using deadly force to prevent Garner's escape, Officer Hymon was acting pursuant to the authority of a Tennessee statute which provided that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann. § 40-7-108 (1982). Although the police department's policy was more restrictive than the state statute, it also authorized the use of deadly force in cases of burglary. Garner, 471 U.S. at 4-5, 105 S.Ct. at 1698, 85 L.Ed.2d at 5.
Following a bench trial, the district court entered judgment for all defendants, but was subsequently reversed by the court of appeals. Garner v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983). On certiorari, the Supreme Court, agreeing with the Sixth Circuit that the Tennessee statute was unconstitutional as applied, held that deadly force may not be employed to prevent the escape of a suspected felon unless the police officer has probable cause
In holding that the Tennessee statute was unconstitutional insofar as it authorized the use of deadly forced against unarmed, nondangerous suspects, the Court underscored the overwhelming trend among the states to abandon the common law rule, which allowed the use of whatever force necessary to prevent the escape of a fleeing felon. Garner, 471 U.S. at 25-26, 105 S.Ct. at 1708-09, 85 L.Ed.2d at 18-19. Among those statutes identified by the Court as an embodiment of the common law rule was section 776.05, Florida Statutes, which authorized a police officer to use "any force which he reasonably believes to be necessary to defend himself or another ... or when necessarily committed in arresting felons fleeing from justice." Fla.Stat. § 776.05 (emphasis added).
In contrast to section 776.05, the city of Clewiston's police manual was much more restrictive, providing that deadly force could be used by a police officer only:
Brown, 644 F.Supp. at 1414.
For purposes of determining whether Brown has stated a claim against the city, I agree with the majority that Brown must allege and submit proof that the city of Clewiston promulgated an unconstitutional policy or custom, which caused the alleged constitutional deprivation. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
In refuting Brown's claim that a material fact dispute exists regarding which policy the city of Clewiston applied at the time of his shooting, the majority concludes that the official policy of the city was contained in Chief Wilbur Miller's police manual. This conclusion is reached because each police officer was required to sign a copy of the manual and because Miller verbally admonished his officers, "Don't take your
The majority reasons that Brown attempts to create a material fact dispute regarding the city's official policy by "extract[ing] selective statements from the depositions of Chief Miller [and] Officer Perez...." Ante at 1539. To the extent that Brown's argument is predicated on selective portions of the deposition testimony, the majority's analysis is similarly flawed. For instance, conspicuously absent from the majority's opinion is Chief Miller's testimony that he instructed his officers to follow state law as well as the department's manual:
The problem with this response is that the policies embodied in the department's manual and Florida's fleeing felon statute are not coterminous. For example, the police department's manual provides that an officer "shall not discharge his firearm to render an arrest or to stop the flight of a person who has committed a misdemeanor or a felony against property." Thus, it is indisputable that the department's manual did not authorize Officer Perez to fire his weapon at Brown because as the offense which Brown committed, burglary, is a felony against property.
In contrast, Florida's fleeing felon statute does not differentiate between felonies against property and felonies against the person. Therefore, given Chief Miller's testimony that he admonished his officers "to follow the policies of the manual and the state statutes," one could certainly argue that part of the department's "policy" was that police officers were authorized to use deadly force when attempting to apprehend suspected felons who, as in this case, had committed crimes against property.
This interpretation seems even more plausible given Chief Miller's testimony that he wanted his officers "to conform with their manual but above all else to stay within the state statute." The majority reasons that this testimony raises no factual issue regarding the city's official policy on the use of deadly force because Chief Miller's desire that his officers not violate state law "is not inconsistent with his desire that they adhere to the more restrictive city policy." Ante at 1539.
As mentioned previously, however, Florida's fleeing felon statute is much broader regarding the use of deadly force than the department's manual. Chief Miller's instructions that his officers "above all else stay within the state statute" while at the same time "conform with their manual" is an inherent contradiction. As this case demonstrates, although Officer Perez was authorized to shoot Brown under Florida's fleeing felon statute, his conduct necessarily contravened the rules in the department's police manual. Consequently, I am at a loss as to how the majority surmises that Chief Miller's desire that his officers not violate state law "is not inconsistent with his desire that they adhere to the more restrictive city policy."
The deposition testimony of Officer Perez likewise raises a genuine issue of material fact as to whether the city's official policy regarding the use of deadly force was embodied in Florida's fleeing felon statute or the department's police manual. For instance, Officer Perez testified as follows during his deposition:
Obviously troubled by the equivocal nature of his responses, the majority discounts Officer Perez's testimony by reasoning that he "did not say that he was instructed to disregard the Chief's manual and to follow some other `policy.'" Ante at 1540 n. 9. "In any event," the majority reasons, "Chief Miller, and not Officer Perez, was responsible for implementing the city's policy on the use of deadly force." Ante at 1540 n. 9. The majority's reasoning is unpersuasive in at least two respects.
First, it does not save the day for the majority that Officer Perez did not testify that he was instructed to disregard the department's manual and follow some other policy. In Officer Perez's view, the standards for using deadly force contained in the department's manual were identical to the standards contained in Florida's fleeing felon statute.
Second, the majority's rationale that Officer Perez's testimony is irrelevant because Chief Miller was responsible for implementing the city's policy on the use of deadly force, overlooks the fact that the term "policy," as it pertains to municipal liability, is not only a function of rulemaking, but also a function of implementation of those rules. Surely, the city could not escape liability by merely promulgating rules which it never intended to enforce, or of which its employees were never made aware. Thus, while I agree that Officer Perez's testimony is not dispositive, I disagree with the majority's rejection of his testimony as bearing no relevance on the factual dispute regarding the city's policy on the use of deadly force.
Brown has demonstrated the existence of a material factual dispute regarding the city's official policy on the use of deadly force. Factual disputes of this nature are precisely the types of disputes which district courts should refrain from resolving on motions for summary judgment.
Ch. 87-147, 1987 Fla.Laws 1123 (effective Oct. 1, 1987).
Brown, 644 F.Supp. at 1415.
As we previously discussed, plaintiff has the burden to show that the municipality's official policy or custom caused the tortious injury; "an unjustified shooting by a police officer cannot, without more, be thought to result from official policy." City of St. Louis v. Praprotnik, ___ U.S. ___, ___, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). The "official policy" requirement has been succinctly described as follows:
Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984) (en banc). For a recent case in which the plaintiff in a police shooting case did establish an adequate record on city policy or custom, see Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir.1988).
By amending section 776.05, the Florida legislature effectively abrogated the common-law rule on the use of deadly force. The amendment applies to criminal and civil actions against a police officer. No longer is a police officer "justified" or "entitled" to use deadly force against a fleeing, non-dangerous, felony suspect. Because the legislature made no reference to the retroactive nature of this amendment, we must conclude that the legislature intended the revised statute to apply prospectively: "The presumption is against retroactive application.... The legislature is presumed to be aware of existing law and the judicial construction of former laws on the subjects of its enactments." Seddon v. Harpster, 403 So.2d 409, 411 (Fla.1981) (finding "no basis to afford retroactive application" to an amendment redefining "adverse possession" under Florida law). See also Walker & LaBerge, Inc., 344 So.2d at 243 (refusing to apply retroactively an amendment that eliminated "a substantive statutory right (immunity from suit).... Appellants are entitled to rely on this substantive right which vested before the passage of the new statute."); McPhail v. Jenkins, 382 So.2d 1329, 1330 (Fla.Dist.Ct.App.) (refusing to apply retroactively an amendment that raised the age of minority for purposes of Florida's wrongful death statute: an earlier Florida Supreme Court decision interpreting the old statute "stands as the applicable judicial interpretation of the legislation controlling at the time the cause of action arose. We are not permitted to give the 1977 amendment ... retroactive application...."), review denied, 388 So.2d 1115 (Fla.1980).
As indicated in the majority's opinion, the Florida Legislature has recently amended section 776.05 to more narrowly circumscribe the conditions under which a law enforcement officer may use deadly force to arrest fleeing felons. The amended statute, effective October 1, 1987, provides as follows:
Both parties apparently agree that the amendment to section 776.05 has no bearing on the disposition of this appeal.