MARCUS, Circuit Judge:
This tragic case began in the late hours of November 12, 2007, when Miami-Dade Police Officers Ryan Robinson and Michael Mendez discharged their firearms at a Cadillac SUV driven by nonparty Frisco Blackwood and carrying plaintiffs Michael Knight and Latasha Cure as passengers. The shots ultimately killed Blackwood and Knight and wounded Cure. Two years later, Knight's estate and Cure individually
The court dismissed two of the eleven counts and granted summary judgment to the defendants on five others. Only Knight's and Cure's civil rights claims and assault and battery claims against the officers survived and proceeded to trial. The jury ultimately returned a verdict for the defendants on all remaining counts. After the plaintiffs' motion for a new trial was denied and final judgment was entered for the police officers, the plaintiffs timely appealed. They alleged error in six different trial rulings that they claim warrant a new trial. They also challenged the court's grants of summary judgment to the County, the supervising officers, and the detectives who questioned Cure after the shooting.
After careful review, we hold that the trial court did not abuse its considerable discretion in any of the challenged trial rulings. Further, we conclude that the court did not err in granting summary judgment to the County, the supervising officers, or the detectives. Accordingly, we affirm.
The undisputed facts in this sad case are these: On the evening of November 12, 2007, Officers Ryan Robinson and Michael Mendez of the Miami-Dade Police Department discharged their firearms, killing Frisco Blackwood and Michael Knight
The Cadillac was traveling north on North Miami Avenue when a police car that had been idling at the intersection of North Miami Avenue and Northwest 62nd Street did a U-turn and began to follow it. The police car was occupied by Officers Robinson and Mendez, who were on duty as part of the Robbery Intervention Unit of the Miami-Dade Police Department. The officers contend that the Cadillac ran a red light, while the plaintiffs say they were stopped at a red light when they noticed the police car begin to follow them. According to Cure's sworn statement taken shortly after these events, the plaintiffs drove north on North Miami Avenue, made a right turn on Northwest 67th Street, sped up, drove a few more blocks, and then made a right turn on Northeast 2nd Avenue, with the officers in pursuit. The Cadillac sped up and drove a few more blocks before turning right again, now heading westbound on Northwest 65th Street. The officers also sped up and continued following the Cadillac.
The officers attempted to effect a traffic stop by using their P.A. system to order the Cadillac to pull over. The Cadillac continued driving and, after crossing North Miami Avenue going west, it entered a
On this much, the parties agree. But when it comes to the details and the events that followed the cars' arrival at the dead end, the facts become more muddled. This is because the only surviving passenger of the Cadillac — Cure — presented drastically different accounts in her sworn statement taken the morning after the shooting (November 12, 2007), and then later in her deposition, which was conducted some three years and two months later (February 1, 2011).
Detectives Terry Goldston and Richard Raphael of the Miami-Dade Police Department took Cure's sworn statement after the shooting. According to that statement, when the passengers noticed the police car following them, Knight said, "Oh, shit. Squally's [police] behind us." After driving a few more blocks, Blackwood asked Knight, "Should I bring it?" Knight responded, "Bring it," which Cure said she interpreted as meaning "[d]on't stop for the police officer." Cure said that when the Cadillac stopped at the dead end, Blackwood's hands were on the steering wheel and the car was in reverse. The officers approached the car on both the driver's side and the passenger's side. Blackwood then rotated the steering wheel clockwise and accelerated backward, causing the car to swing toward the officer standing by the driver's side window. The officer quickly moved to avoid being struck by the car, and then both officers began firing into the moving vehicle. As the car reversed, Blackwood slumped over to the side and the shots continued; the Cadillac then collided with the police car, two stop signs, and a parked car before it ultimately stopped against a fence.
According to Cure's deposition testimony, however, when the plaintiffs noticed the police car following them, Knight said "something about squallies [police] behind us." Cure testified that the police car had its headlights off. At this point, they were traveling approximately fifty miles per hour in a thirty-five mile-per-hour zone. Blackwood asked Knight what he should do, and Knight responded, "just hit it. Get out of here." Cure said that when the Cadillac stopped in the dead end, Blackwood's right hand was down on his right side and his left hand was obscured from her view. The officers turned on their headlights and spotlights and got out of the car with their guns drawn; one approached the driver's side and the other approached the passenger's side. Cure then heard a low noise like a "clink" followed by a single shot aimed directly at the driver from the officer standing next to the driver's window; at this point, the car was not moving. After that shot, Blackwood's body slumped forward and to the right; the car then began to accelerate in reverse. The path of the reversing car forced the officer who had fired on the driver to quickly move to avoid being struck by the car. While the car reversed, the officers continued to fire until the car came to rest against a fence.
The officers' shots ultimately killed Blackwood and Knight. Cure was shot once in her right thigh. After the shooting, Cure was transported to Jackson Memorial Hospital where she underwent surgery to remove the bullet and suture the wound. After the surgery, Detective Goldston approached Cure and said he would drive her home once she was discharged. Rather than go with him, Cure checked herself out of the hospital and left with a friend at about 1:30 a.m. to go back to the scene, where many of her friends had gathered. While she was there, Detective Goldston
When Cure got home, Detective Goldston was waiting for her. Cure agreed to accompany him to the police station; they left for the station before she had a chance to go inside and change out of the hospital scrubs she was wearing. They arrived at the police station at about 3:00 a.m. and Cure was placed in a conference room. She remained there for about an hour before Detectives Goldston and Raphael returned to begin their questioning. The Detectives questioned her intermittently for about forty-five minutes and then left her alone for another hour. Cure testified that, while the officers were gone, she "kept dozing off and going back and forth to the bathroom." She also testified that while they were asking her questions, they were writing notes to each other on a napkin and passing the napkin back and forth. At 8:20 a.m., the detectives brought in a court reporter and took an official sworn statement that lasted until 9:13 a.m. Cure testified that, by this point, her pain medication was wearing off and her wound was bleeding through her hospital scrubs. After she gave her statement, Detective Goldston drove her home.
Two years later, on November 12, 2009, Knight's estate and Cure individually filed an eleven-count complaint in the United States District Court for the Southern District of Florida against Miami-Dade County, the Miami-Dade Police Department, Former Police Department Director Robert Parker, Interim Police Department Director James Loftus, Officer Robinson, Officer Mendez, Detective Goldston, and Detective Raphael. The counts included § 1983 claims by Knight and Cure against Miami-Dade County, the Miami-Dade Police Department, Officer Robinson, and Officer Mendez for violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments due to excessive use of force (Counts 1, 2, 9, and 10); wrongful-death claims by Knight against the County, the Police Department, Officer Robinson, and Officer Mendez (Counts 3 and 4); assault and battery claims by Knight and Cure against the County, the Police Department, Officer Robinson, and Officer Mendez (Counts 5, 6, 7, and 8); and a § 1983 claim by Cure against Detectives Goldston and Raphael for violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments due to coercive interrogation (Count 11).
All of the defendants moved to dismiss the complaint based on qualified immunity, immunity under Florida law, and failure to state a claim. The court dismissed the Miami-Dade Police Department from the action entirely, and it also dismissed the state-law claims against the County. The court denied the motion to dismiss the remaining nine counts. The case was then referred to a magistrate judge, with the consent of all parties, for further proceedings including trial.
After discovery, all of the defendants moved for summary judgment on the remaining counts. Officers Robinson and Mendez and Detectives Goldston and Raphael argued that they were entitled to qualified immunity, while the County claimed that it was immune from suit on the state-law claims and that the plaintiffs had failed to show the existence of an official policy or an unofficial custom or practice necessary to subject the County to liability. Directors Parker and Loftus moved for summary judgment as well, urging that they, too, were entitled to qualified immunity and that they had never
The court ultimately granted summary judgment to the County, Directors Parker and Loftus, and Detectives Goldston and Raphael on all counts levelled against them, as well as on the wrongful-death claims pending against Officers Robinson and Mendez. However, the court denied summary judgment on the assault and battery and § 1983 claims against Officers Robinson and Mendez, concluding that the officers were not entitled to qualified immunity. Officers Robinson and Mendez appealed the denial of summary judgment. On December 19, 2013, a panel of this Court affirmed the denial of summary judgment in an unpublished decision.
When the case returned to the trial court, the court made several rulings on evidentiary issues including, as relevant to this appeal, the admissibility of various expert witnesses' testimony and the admissibility of criminal-history evidence. Trial started on June 9, 2014. Among other rulings, the trial court limited the plaintiffs' cross-examination of the defendants' police-practices expert to one hour. Evidence of the Police Department's pursuit policy, proffered by the plaintiffs, was excluded. And the trial court declined to give a jury instruction that had been requested by the plaintiffs — that "the Defendants are not justified in using deadly force if their own objectively unreasonable actions created the very risk that generated the eventual use of deadly force."
After the plaintiffs rested their case, the defendants moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The trial court deferred ruling on the motion, and, after the defendants rested, they renewed the motion. At the conclusion of the trial but before the case was submitted to the jury, the plaintiffs in turn moved pursuant to Rule 50(b) for judgment in their favor on all affirmative defenses; again, the trial court reserved ruling until after the jury's verdict.
On June 19, 2014, jury instructions were given and the jury began its deliberations. After seven hours of deliberation spanning two days, the jury informed the court that it was ready to consider itself a hung jury. The judge ordered them to continue deliberating and, eventually, the parties consented to receiving a verdict by a supermajority (at least six to two). The jury ultimately rendered its verdict by a vote of seven to one for the defendants on all counts. As for Knight, the verdict questions read this way:
After the verdict, the plaintiffs moved for a new trial. They alleged that the trial court committed error in excluding evidence of any violations of the Police Department's pursuit policy, admitting testimony from the defendants' police-practices expert, failing to give the jury a proffered instruction, and admitting some criminal-history evidence. The trial court entered an omnibus order finding no error on any of the points raised and resolving certain other disputed issues about costs. Accordingly, an amended final judgment was entered on the same day reflecting the apportionment of costs between the parties. The plaintiffs timely appealed.
This is undoubtedly a heartbreaking case. But on appeal, the plaintiffs do not argue that the jury's verdict was rendered against the substantial weight of the evidence. Rather, Knight and Cure say that six discrete errors entitle them to a new trial: the inclusion of the defendants' police-practices expert; the exclusion of the plaintiffs' ballistics and reconstruction experts; the exclusion of evidence showing violations of the Police Department's pursuit policy; the refusal to give a specific jury instruction; the admission of some criminal-history evidence; and, finally, the failure to address the prejudicial nature of the defendants' opening and closing statements.
"A timely motion for new trial is addressed to the sound judicial discretion of the trial court"; therefore, "[a] decision denying a new trial motion is reviewable only for an abuse of that discretion."
Knight and Cure first say that they are entitled to a new trial because the trial court erred in admitting testimony from W. Kenneth Katsaris, the defendants' police-practices expert. Katsaris was called as a rebuttal expert to the plaintiffs' police-practices expert, Robert Pusins. Pusins had testified that the officers' behavior was objectively unreasonable under the circumstances of this case. In rebuttal, Katsaris testified that the officers "acted objectively reasonabl[y] and in accordance with what is recognized as training throughout the country." Before trial, both sides moved to exclude the others' police-practices witness for various reasons; the trial court denied these motions to the extent that they sought to exclude the witnesses entirely, but it did place limits on the scope of the testimony. Specifically, the court ruled that the police-practices experts could not be questioned on "the constitutionality of the Miami-Dade Police Department's policies" or on "any ballistics, bullet projectile, or accident reconstruction issues," and that they could not "testify, reference, or analyze any caselaw before the jury." After the verdict, the plaintiffs argued that the inclusion of the defendants' expert entitled them to a new trial.
The starting point in our analysis is found in Rule 702 of the Federal Rules of Evidence, which controls the admission of expert testimony.
Fed. R. Evid. 702;
Rule 702 requires the district court to perform a critical gatekeeping function regarding the admissibility of expert testimony.
The proponent of the expert testimony bears the burden of establishing that each of these criteria are satisfied.
On this record, there was no error (let alone a clear error of judgment) in permitting Katsaris to testify. The plaintiffs first claim that Katsaris's opinions were not grounded in reliable principles and methods because "[h]e did not examine the scene, the vehicles involved, the pursuit route, photographs of the area, or post-incident photographs of the vehicles and bodies." However, these claims are contradicted by Katsaris's very testimony that he reviewed "statements taken in the case of officers and those present," "reviewed all the evidence and information that's in the file," "read, reviewed, looked at photos," went to the scene of the shooting the night before giving his testimony, drove through the route twice, and "read and reviewed how the incident occurred." The plaintiffs have not provided any support for their argument that these methods were unreliable. And notably, these are virtually the same preparations that Pusins, the plaintiffs' own police-practices expert, took before testifying. The trial court did not abuse its discretion in finding Katsaris's expert opinion to be sufficiently reliable and grounded on sound principles and methods.
The plaintiffs also argue that Katsaris's testimony was inadmissible because he relied on various hearsay statements to create a justification for the officers' actions. But, as we have long recognized, an expert may rely on hearsay evidence as part of the foundation for his opinion so long as the hearsay evidence is "the type of evidence reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject."
Relatedly, the plaintiffs urge that Katsaris's opinion is inadmissible for the additional reason that it was not based on facts available to the officers at the time of the critical events. Specifically, the plaintiffs object to the expert's reliance on Cure's testimony that Blackwood refused to put the car in park when she told him to and that the occupants could see the officers out of the window despite the tinting. The plaintiffs say that Katsaris improperly relied on these statements, which were facts not known to the officers at the time, to form his opinion that Blackwood deliberately backed the car into the officers, creating a reasonable basis for the officers' use of deadly force.
It is true that in excessive-force cases, "[t]he question is whether the officer's conduct is objectively reasonable in light of the facts confronting the officer."
Moreover, to the extent the plaintiffs suggest that Katsaris was not a credible witness, the jury was free to make that determination on its own. Katsaris was called as a rebuttal witness to Pusins. Which expert to believe and how much of his testimony to credit were basic determinations for the jury to make based on everything it heard; again, the court properly permitted both experts to testify.
The plaintiffs' last argument regarding Katsaris is that the trial court abused its discretion by limiting the time available for cross-examination. "We review the district court's decisions limiting cross-examination for abuse of discretion."
The plaintiffs then proceeded in their cross-examination for another thirty minutes, resulting in an hour-long exchange.
On appeal, the plaintiffs allege that "[f]ifty minutes was not enough for the jury to understand the factual misunderstandings and unreliable methods underlying the opinions." But the plaintiffs have not identified anything that they would have asked Katsaris that they did not have an opportunity to ask during cross-examination. The fact that the defendants were given eighty minutes to cross-examine the witness in comparison to the plaintiffs' sixty minutes does not, on its own, result in substantial injustice to the plaintiffs. The plaintiffs' claim seems to be that they did not have time to call into question Katsaris's belief that Officer Robinson was behind the car rather than beside it, a fact that was central to his conclusions. But they did explore those topics during the time they had, and they have not identified for us any additional questions
We have "stress[ed] the broad discretion district courts have in managing their cases."
Knight and Cure also argue that the trial court erred in excluding their ballistics and reconstruction experts. The court's original scheduling order called for the disclosure of expert witnesses' reports by December 31, 2010; the production of rebuttal expert witnesses' reports by January 21, 2011; and the completion of all expert discovery by February 4, 2011. The plaintiffs disclosed their expert witnesses thirty-five days late, on February 4, 2011. This list included trajectory reconstructionist Sharon Ballou and accident reconstructionist Miles Moss (or, alternatively, his son Aaron Moss). The defendants objected to the discovery requests and disclosures as untimely, and the plaintiffs then moved for leave to modify or extend the scheduling order. The trial court eventually issued a new pretrial schedule that continued the trial by 188 days and required expert discovery to be completed by September 12, 2011, which was 220 days after the original deadline. The court also allowed the plaintiffs' medical expert, John Marraccini, and their police-practices expert, Pusins, to testify, even though their summaries were untimely filed. However, the court excluded Ballou and the Mosses because the plaintiffs did not show "substantial justification for their untimely disclosure," and because "permitting discovery regarding these experts would impose undue prejudice on Defendants." The plaintiffs now argue that this exclusion warrants a new trial.
We also review the trial court's decision to exclude late-disclosed witness testimony for an abuse of discretion.
Discovery procedures are governed by Fed. R. Civ. P. 26. Specifically, Rule 26(a)(2)(D) requires the disclosure of expert testimony "at the times and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). Absent a court order saying otherwise, disclosure of expert testimony must occur "at least 90 days before the date set for trial or for the case to be ready for trial." Fed. R. Civ. P. 26(a)(2)(D)(i). Thus, Rule 26(a)(2)(D)(i) sets a default deadline in the event that the trial court does not set its own schedule. While a court may "grant a
It is undisputed that the plaintiffs' disclosures were untimely under the court's original scheduling order, which required disclosures to be made 151 days before trial. The plaintiffs nevertheless argue that their disclosures were timely under Rule 26, which requires disclosures at least ninety days before trial, and that the court abused its discretion in excluding their experts because the potential harms to the defendants were limited given the 188-day delay of the trial. But Rule 26 provides the controlling deadline only in the absence of a scheduling order issued by the trial court.
The plaintiffs argue, nonetheless, that exclusion was an abuse of discretion because their untimeliness was "substantially justified or  harmless" under Rule 37(c)(1). The trial court rejected this argument, too, in its order excluding the experts, concluding that the plaintiffs had not shown any justification for their tardiness and that the defendants would be unduly prejudiced if the experts were included. There was no abuse of discretion in this conclusion. The plaintiffs' reasons for their untimeliness were an unavailability of funds to secure expert services and a belated realization that ballistics and reconstruction experts would be necessary. But even assuming that financial difficulties would justify an extension, the plaintiffs failed to move for an extension until the deadline had already expired and did not provide any notice to the trial court that they were experiencing such difficulties. Moreover, the court's first scheduling order was issued in July 2010 and required the disclosure of experts in October 2010; in November 2010, the court pushed that deadline back to December 23, 2010. The plaintiffs thus had at least five months' notice to gather their experts and they have not carried their burden of showing a substantial justification for their tardiness.
But even if the exclusion of these experts amounted to an abuse of discretion, the plaintiffs have failed anyway to establish substantial harm.
Knight and Cure next contest the exclusion of the Miami-Dade Police Department's pursuit policy.
Again, "we review the district court's evidentiary rulings for an abuse of discretion, but will reverse only if the error may have had a substantial influence on the outcome of the proceeding."
The trial court excluded this evidence due, in part, to the risk that it would confuse the jurors by leading them to believe that they could find liability based on a violation of the pursuit policy rather than on a violation of the Fourth Amendment. Notably, the plaintiffs do not argue that the officers' alleged violation of the pursuit policy was itself a Fourth Amendment violation. They argue instead that the officers' decision to pursue the Cadillac created a situation that required the use of deadly force. However, many police departments have internal procedures that are more restrictive of conduct than what is otherwise permitted under state and federal law, and the Supreme Court has observed that a violation of these policies "does not itself negate qualified immunity where it would otherwise be warranted."
Moreover, the probative value found in this evidence was decreased measurably because it concerned events that were temporally separated from the actual use of force. As we have said, "[i]n determining whether the officers in this case are entitled to qualified immunity, we analyze the precise circumstances immediately preceding [the victim's] being shot" rather than more-attenuated events that occurred before and after the shooting.
The plaintiffs next argue that the trial court erred in failing to give their proposed jury instruction based on
The plaintiffs proposed telling the jury that "the Defendants are not justified in using deadly force if their own objectively unreasonable actions created the very risk that generated the eventual use of deadly force." This instruction was based on language drawn from
We see no abuse of discretion in excluding this instruction. It was proposed as an instruction on "§ 1983 Excessive Force" and is related to the question whether Officers Robinson and Mendez were entitled to qualified immunity. If the officers' conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known," then they would not be entitled to qualified immunity.
Further, the plaintiffs' proposed instruction suggests that if the officers acted unreasonably in pursuing the plaintiffs, then they would not be entitled to qualified immunity because they created the circumstances that ultimately led to the fatal use of force. The district court concluded, however, that any connection between the officers' pursuit (which may have violated the pursuit policy) and their use of deadly force was attenuated. The plaintiffs' proposed instruction thus risked confusing the jury regarding which violations could give rise to liability. Given the trial court's decision to exclude the pursuit policy and our decision that that was not an abuse of discretion, the exclusion of this instruction was not error either.
To the extent that the plaintiffs suggest that the pursuit itself constituted a separate Fourth Amendment violation, they have provided no evidence suggesting that the officers' pursuit independently violated clearly established law. "In this circuit, rights are `clearly established' by decisions of the Supreme Court, this court, or the highest court of the state in which the case arose."
In any event, the instruction given on excessive force was proper and largely tracked this Court's pattern jury instruction on excessive force in § 1983 actions.
Next, Knight and Cure argue that the trial court fatally erred in admitting evidence of Blackwood's and Cure's criminal histories. "We review questions regarding the district court's admission of evidence for abuse of discretion."
The plaintiffs moved
As for Cure, she had at least four felony convictions, which included crimes of falsehood and fraudulent use of another's identification, grand theft, and at least two other convictions. The trial court concluded that her convictions for crimes of falsehood and fraudulent use of another's identification were admissible, as was her conviction for grand theft. Her other convictions were deemed inadmissible under Rule 403 because they were cumulative. The plaintiffs now appeal the admission of any criminal-history evidence, arguing that this evidence was "unduly prejudicial" and that there was "no nexus between the criminal charges, convictions, or misconduct and the issues pending in the case."
Two rules of evidence specifically relate to criminal-history evidence. The first, Rule 404(b), governs evidence of prior crimes, wrongs, or acts, and it provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). However, this evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). The second, Rule 609(a), governs the admissibility of evidence of a criminal conviction when it is offered for impeachment purposes. This rule, in turn, requires that any "prior convictions of a non-defendant witness be admitted if (1) the convictions are for crimes punishable by death or imprisonment in excess of one year, (2) the convictions are less than ten years old, and (3) the evidence is being used to attack the witness'[s] credibility."
Again, we hold that the trial court did not abuse its broad discretion. As for Blackwood's criminal history, the evidence was plainly admissible under Rule 404(b) to establish his motive to flee from Officers Robinson and Mendez. Blackwood, Knight, and Cure were all on probation at the time, and Blackwood had a probation hearing the next day. Evidence of Blackwood's most recent conviction, for which he was then on probation, was therefore probative of his motive to flee from the officers: had
Regarding Cure's criminal history, the defendants sought to introduce this evidence for impeachment purposes. Such evidence "must be admitted, subject to Rule 403, in a civil case." Fed. R. Evid. 609(a)(1)(A). Rule 403's balancing test does not favor exclusion in this case. This Court has previously recognized that "[t]he implicit assumption of Rule 609 is that prior felony convictions have probative value."
Two additional points warrant further comment. First, our case law provides no support for the plaintiffs' suggestion that there must be a "nexus between the criminal charges, convictions, or misconduct and the issues pending in the case." Evidence of Cure's prior convictions was relevant for impeachment,
Second, the plaintiffs urge that the trial court erred in admitting Cure's testimony that she "smoked marijuana every day before the police shooting." While this is not an argument that the trial court improperly admitted evidence of Cure's criminal history, the plaintiffs argue that this testimony had the same prejudicial effect. We have previously recognized the "extreme potential for unfair prejudice flowing from evidence of drug use," and we have "held that such evidence may properly be limited to specific instances of drug use during relevant periods of trial and the transaction" at issue in the case.
Knight and Cure's final argument regarding the trial is that the defendants' opening and closing statements were so prejudicial that they require a new trial. "We review for an abuse of discretion the decisions of the district court to regulate closing arguments of counsel."
The plaintiffs challenge the closing statements for the first time on appeal, so we need not, and will not, address it now.
The plaintiffs also argue that they were prejudiced because in opening statements, defense counsel argued that "the plaintiffs committed crimes and lacked credibility because of drug use, speculated about the dead driver's intentions, and inaccurately contended the officers followed proper policies." They also allege that the opening statement impermissibly urged the jurors to infer that the plaintiffs had engaged in criminal activity. But "look[ing] to the entire argument, the context of the remarks, [and] the objection raised," we cannot conclude that these remarks "impair[ed] gravely the calm and dispassionate consideration of the case by the jury."
Knight and Cure also claim that the court erred in granting summary judgment to certain defendants. Specifically, they challenge the orders granting summary judgment to the County and the supervising officers based on their "failure... to train and implement clear policies to protect individuals from excessive police force," and to Detectives Goldston and Raphael premised on allegedly unconstitutional interrogation tactics. We remain unpersuaded.
As for the § 1983 claims levelled against the County and the supervising officials, the plaintiffs claim that disputed issues of material fact remained as to whether these defendants failed to develop a constitutionally adequate excessive-force policy and failed to properly train police officers on the use of force.
As for the plaintiffs' policy-based claim, it is by now well established that municipalities "can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers."
To establish a county's policy, a plaintiff must "identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county."
In this case, the plaintiffs do not claim that the County has an official policy allowing officers to shoot the unarmed occupants of a vehicle without provocation or an objectively reasonable basis to do so. They argue instead that the County's use-of-force policy is constitutionally deficient. But the plaintiffs never introduced this policy into the record and never explained how the policy itself was constitutionally deficient. Thus, a claim based on an official
The trial court also correctly rejected the plaintiffs' failure-to-train claims. Both municipalities and supervising officers may be held liable under § 1983 for a failure to train subordinate officers. A municipality may be held liable for the failure to train its employees when "the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact."
Supervising officers can be held independently liable under § 1983 for a failure to train their subordinates "either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation."
In this case, the plaintiffs argued that "[i]t is for the jury in such cases ... to determine whether the failure to train and supervise were the causes of the ensuing use of deadly force." But they offered no evidence that the County or supervising officers had notice of a need to improve the officers' training or supervision, they never provided any indication that this is a widespread problem of which the County or supervising officers should have been aware, and they never highlighted specific deficiencies in the County's training program. Instead, the only "evidence" suggesting a pattern of tortious conduct is this case itself. The district court thus correctly concluded that "there [was] absolutely no evidence in the record to support such a finding" of deliberate indifference. On this basis, it was proper to grant summary judgment to the County.
The district court also granted summary judgment to Detectives Goldston and Raphael on Count 11 — Cure's § 1983 claim for violations of her Fourth, Fifth, Eighth, and Fourteenth Amendment rights — finding that, on the undisputed facts, no constitutional violations occurred.
As this Court has often observed, "qualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known."
"[T]o receive qualified immunity, an official must first establish that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred."
Cure's claims raise both Fourth and Fifth Amendment issues. The Fourth Amendment issues arise from her allegations that she was unlawfully seized by Detectives Goldston and Raphael "without lawful authority and absent [her] voluntary consent." The Fifth Amendment issues center around the allegedly coercive interrogation tactics that the detectives employed during their questioning. After careful review, we hold that the district court did not err in concluding that the detectives were entitled to qualified immunity on both claims.
Under the Fourth Amendment, "a person is `seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained" so that, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."
To determine whether an individual was in custody, we have considered factors such as whether the individual was "physically moved or restrained by officers on the way to the scene of the interview"; whether "handcuffs were employed" or "guns were drawn"; and whether the individual was "booked or told of formal accusations" or "told that [s]he was under arrest."
Based on these factors, the district court was correct to determine that no genuine issue of material fact existed regarding whether Detectives Goldston and Raphael were entitled to qualified immunity. Cure was never handcuffed or physically restrained, she was never booked, she was never told that she could not leave, she was never told that she was under arrest, and she was never told that any charges against her were being considered. Moreover, she voluntarily agreed to accompany Detective Goldston to the police department that night. There was no error in granting summary judgment to Detectives Goldston and Raphael on Cure's § 1983 claims stemming from alleged Fourth Amendment violations.
Cure also alleges that her Fifth Amendment rights were violated because Detectives Goldston and Raphael "subjected her to coerced interrogation, extracted a false and erroneous statement from her procured by promises and benefits, and refused to allow her to leave until she gave a statement purporting to justify the police shooting." These claims implicate two clauses of the Fifth Amendment: the Self-Incrimination Clause and the Due Process Clause. The Fifth Amendment's Self-Incrimination Clause "requires that `[n]o person... shall be compelled
As for Cure's due process claim, the district court's grant of summary judgment again must be affirmed. Separate and apart from self-incrimination concerns, we have noted that "coercive interrogation alone may violate a suspect's right to substantive due process, even when no self-incriminating statement is used against the person interrogated."
On this record, there is no evidence of coercion at all, let alone coercion that "shocks the conscience." Cure was never threatened and force was never used against her. Nevertheless, Cure argues that, given her mental state, the way in which the questioning was carried out shocked the conscience. She alleges that she was "subjected to an exhaustingly long interrogation"; that "she was left alone to deal with diarrhea, nausea, and bleeding from her wound"; and that she was anguished because "Goldston belonged to the very same department that shot [her] and killed her friends." While these circumstances no doubt resulted in a very difficult night, they do not rise to the level of extreme conduct that is "so offensive to a civilized system of justice that [it] must be condemned under the Due Process Clause."
This is, undoubtedly, a very sad case. But after carefully reviewing this record, we cannot conclude that there was any reversible error during the trial. Nor can we find any error in the district court's grants of summary judgment to the County, the supervising officers, or Detectives