Cottrell v. Caldwell , 85 F.3d 1480 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-6845.
Jack COTTRELL, Reverend, as Administrator of the Estate of Leroy
Bush Wilson, Plaintiff-Appellee,
v.
Cynthia D. CALDWELL, individually and in her official capacity as
a City of Montgomery Police Officer; S.E. Wilson, Corporal,
individually and in his official capacity as a City of Montgomery
Police Officer; Eugene S. Kemplin, individually and in his
official capacity as a City of Montgomery Police Officer; Spencer
T. Henderson, II, individually and in his official capacity as a
City of Montgomery Police Officer, Defendants-Appellants,
The City of Montgomery, a municipal corporation; the Chief of
Police, City of Montgomery, in his official capacity, Defendants.
June 3, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-92-A-1584-N), W. Harold Albritton,
III, Judge.
Before TJOFLAT, Chief Judge, and CARNES, Circuit Judge.*
CARNES, Circuit Judge:
This case arises out of the death of Leroy Bush Wilson from
positional asphyxia as he was being transported in the back of a
police car after his arrest. Reverend Jack Cottrell, the
administrator of the decedent's estate, filed suit under 42 U.S.C.
§ 1983 alleging that four police officers who arrested or
transported Wilson, the police department, and the City of
Montgomery had violated his constitutional rights. The district
court denied the defendant police officers' qualified immunity
summary judgment motion, and the officers brought this
*
Senior Circuit Judge Frank M. Johnson heard argument in
this case but did not participate in this decision. This
decision is rendered by quorum. 28 U.S.C. § 46(d).
interlocutory appeal from that denial. We reverse.
I. THE INTERLOCUTORY JURISDICTION ISSUE
In light of Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151,
132 L.Ed.2d 238 (1995), we deem it prudent to examine our
jurisdiction to decide this interlocutory appeal. We begin with
certain general principles involving interlocutory jurisdiction in
qualified immunity cases. In this context, we use the term
"interlocutory jurisdiction" to refer to interlocutory appellate
jurisdiction pursuant to the Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), doctrine, as
applied to qualified immunity cases in Mitchell v. Forsyth, 472
U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). That jurisdiction
exists independently of the final judgment rule exceptions
contained in 28 U.S.C. § 1292 and Fed.R.Civ.P. 54(b).
We have no interlocutory jurisdiction to review the grant of
summary judgment to a defendant on qualified immunity grounds.
Winfrey v. School Bd. of Dade County, Fla., 59 F.3d 155, 158 (11th
Cir.1995). Whether we have interlocutory jurisdiction to review
the denial of summary judgment on qualified immunity grounds
depends on the type of issues involved in the appeal.
One type of issue for these purposes is evidentiary
sufficiency: whether the district court erred in determining that
there was an issue of fact for trial about the defendant's actions
or inactions which, if they occurred, would violate clearly
established law. An example is the situation in Johnson v. Jones,
--- U.S. at ---- - ----, 115 S.Ct. at 2153-54, where the defendant
police officers sought to appeal interlocutorily the district
court's determination that there was sufficient evidence from which
the trier of fact could find that the defendant officers
participated in beating the plaintiff after he was arrested, or
stood by and allowed others to beat him. We know from Johnson v.
Jones that we do not have interlocutory jurisdiction to review the
denial of summary judgment where the only issues appealed are
evidentiary sufficiency issues. --- U.S. at ----, 115 S.Ct. at
2156; see also Dolihite v. Maughon By and Through Videon, 74 F.3d
1027, 1033 n. 3 (11th Cir.1996); Johnson v. Clifton, 74 F.3d 1087,
1091 (11th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3742(U.S. Apr. 25, 1996) (No. 95-1743).
Legal issues underlying qualified immunity decisions are a
different matter. An example of such an issue is "whether the
legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions or, ... whether
the law clearly proscribed the actions the defendant claims he
took." Mitchell v. Forsyth, 472 U.S. at 528, 105 S.Ct. at 2816.
In the Mitchell case itself the specific legal issue was whether
the defendant's actions in authorizing, as Attorney General, a
warrantless national security wiretap were proscribed by clearly
established law when those actions occurred in November of 1970.
Id. at 530, 105 S.Ct. at 2817-18. We know from Mitchell, which
Johnson left intact, that we have interlocutory jurisdiction over
legal issues that are the basis for a denial of summary judgment on
qualified immunity grounds. See Dolihite, 74 F.3d at 1034 n. 3;
Clifton, 74 F.3d at 1091; Haney v. City of Cumming, 69 F.3d 1098,
1101 (11th Cir.1995), cert. denied, --- U.S. ----, --- S.Ct. ----,
--- L.Ed.2d ----, 64 U.S.L.W. 3669 (U.S., May 20, 1996) (No. 95-
1527); McElroy v. City of Macon, 68 F.3d 437, 438 n. * (11th
Cir.1995). Recently, this Court has referred to such legal issues
as "core qualified immunity" issues. Clifton, 74 F.3d at 1091;
Dolihite, 74 F.3d at 1034 n. 3.
The Supreme Court's decision in Behrens v. Pelletier, ---
U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), earlier this
year, made it clear that interlocutory appellate jurisdiction over
the legal issues involved in a qualified immunity question exists
even where the district court denied the summary judgment "motion
with the unadorned statement that "[m]aterial issues of fact remain
as to [the defendant] on the [federal question] claim.' " --- U.S.
at ----, 116 S.Ct. at 838 (second and third alterations added).
The Court in Behrens specifically rejected the contention that a
district court's holding that material issues of fact remain bars
interlocutory appellate review of related issues of law, labelling
that contention a misreading of Johnson. Id. at ----, 116 S.Ct. at
842. As the Court explained, " Johnson held, simply, that
determinations of evidentiary sufficiency at summary judgment are
not immediately appealable merely because they happen to arise in
a qualified-immunity case;" but " Johnson reaffirmed that
summary-judgment determinations are appealable when they resolve a
dispute concerning an abstract issue of law relating to qualified
immunity—typically, the issue whether the federal right allegedly
infringed was clearly established." Id. (citations, internal
quotation marks, and brackets omitted). The contrary holdings in
Mastroianni v. Bowers, 74 F.3d 236, 238 (11th Cir.1996), and Babb
v. Lake City Community College, 66 F.3d 270, 272 (11th Cir.1995),
preceded Behrens and cannot be reconciled with it. Where prior
panel precedent conflicts with a subsequent Supreme Court decision,
we follow the Supreme Court decision. E.g., Lufkin v. McCallum,
956 F.2d 1104, 1107 (11th Cir.1992) ("A panel of this Court may
decline to follow a decision of a prior panel if such action is
necessary in order to give full effect to an intervening decision
of the Supreme Court of the United States."), cert. denied, 506
U.S. 917, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992).
Accordingly, under Johnson, we lack interlocutory appellate
jurisdiction over the denial of summary judgment on qualified
immunity grounds where the sole issues on appeal are issues of
evidentiary sufficiency. However, as clarified byBehrens, Johnson
does not affect our interlocutory jurisdiction in qualified
immunity cases where the denial is based even in part on a disputed
issue of law.
In Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277 (1991), the Court explained that "[a]
necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is "clearly
established' at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all." That issue, too, is a legal one and
therefore subject to interlocutory review.1
1
Our discussion of the types of issues for purposes of our
interlocutory jurisdiction is not meant to be exhaustive. For
example, when the claim is that a search and seizure or arrest
violated the Fourth Amendment, qualified immunity depends upon
whether arguable probable cause existed. More specifically, the
The present case involves two legal claims against the
defendant officers arising out of the same facts. The first
alleges that they violated the Fourteenth Amendment due process
right of Leroy Wilson not to be subjected to conditions of custody
and confinement creating an unreasonable danger to his safety and
life. The district court denied the defendant officers' motion for
summary judgment on qualified immunity grounds as to that claim
based upon its application of an " either gross negligence or
deliberate indifference" standard. (Emphasis added.) In reviewing
whether that denial was error, we must of necessity decide whether
the legal standard upon which the denial was based is the correct
one, and that is an issue of law. Accordingly, we have
interlocutory jurisdiction over the appeal from the denial of
summary judgment as to the first claim.
Plaintiff's second claim is that the defendant officers used
excessive force to arrest him, in violation of the Fourth
Amendment. The district court declined to rule on the defendants'
motion for qualified immunity summary judgment as to that claim,
stating only that in view of its rejection of the defense as to the
due process claim "prudence dictates" that it also reject the
defense as to the Fourth Amendment claim. The issue of whether
that is a proper basis for denying summary judgment, and the
qualified immunity issue in such cases is not whether probable
cause existed, but whether a reasonable officer possessing the
information the defendant officer possessed could have believed
it did. E.g., Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct.
534, 537, 116 L.Ed.2d 589 (1991); Anderson v. Creighton, 483
U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987);
Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir.1995).
That is a core qualified immunity issue.
related issue of whether summary judgment should have been granted
on qualified immunity grounds based upon the facts of this case are
issues of law. Accordingly, we have interlocutory jurisdiction
over the appeal from the denial of summary judgment as to the
second claim.
II. APPELLATE REVIEW OF EVIDENTIARY ISSUES RELATING TO QUALIFIED
IMMUNITY IN THE POST-JOHNSON ERA
When it decides whether defendants are entitled to summary
judgment, a district court draws the facts from the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," Fed.R.Civ.P. 56(c),
construing the evidence from those sources in the light most
favorable to the plaintiff. See, e.g., Forbus v. Sears Roebuck &
Co., 30 F.3d 1402, 1403 n. 1 (11th Cir.1994), cert. denied, ---
U.S. ----, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995); Akin v. PAFEC
Ltd., 991 F.2d 1550, 1553 n. 1 (11th Cir.1993).
Having done that, the district court in this case set out in
its order denying summary judgment the "facts" upon which that
denial was based. As this Court has noted, what is considered to
be the "facts" at the summary judgment stage may not turn out to be
the actual facts if the case goes to trial, but those are the facts
at this stage of the proceeding for summary judgment purposes.
See, e.g., Swint, 51 F.3d at 992; Rodgers v. Horsley, 39 F.3d 308,
309 (11th Cir.1994); Kelly v. Curtis, 21 F.3d 1544, 1546 (11th
Cir.1994).
A. The Court of Appeals' Role In Regard to the Determination of the
Facts When It Reviews the Denial of a Motion for Summary
Judgment on Qualified Immunity Grounds
When a court of appeals interlocutorily reviews a legal issue
involved in a denial of summary judgment on qualified immunity
grounds, a question that arises in the wake of Johnson v. Jones is
what role, if any, the appellate court has in determining the facts
for summary judgment purposes. In the past, we have reviewed the
district court's evidentiary sufficiency determinations de novo,
undertaking to examine the record and decide for ourselves what the
facts are at this stage. See Rogers v. Miller, 57 F.3d 986, 988
(11th Cir.1995); Swint, 51 F.3d at 992; Rodgers, 39 F.3d at 309.
The Supreme Court's Johnson decision raised some doubt about the
correctness of that approach, but that doubt has been resolved in
recent decisions of this Court. In both Clifton, 74 F.3d at 1091,
and Dolihite, 74 F.3d at 1034-35 n. 3, this Court held that the
Supreme Court's Johnson v. Jones decision did not affect this
Court's authority to decide, in the course of deciding the
interlocutory appeal, those evidentiary sufficiency issues that are
part and parcel of the core qualified immunity issues, i.e., the
legal issues.2 Our Clifton and Dolihite holdings in this respect
are consistent with the Supreme Court's opinion in Behrens, ---
U.S. at ----, 116 S.Ct. at 842.
In exercising our interlocutory review jurisdiction in
qualified immunity cases, we are not required to make our own
determination of the facts for summary judgment purposes; we have
discretion to accept the district court's findings, if they are
2
To the extent, if any, that Heggs v. Grant, 73 F.3d 317(11th Cir.1996), implies to the contrary, the implication is only
dictum. In that case, the parties were "in full agreement that
the events described" in the opinion "accurately portray what
happened" and, thus, the decision was based upon "undisputed
facts." Id. at 320.
adequate.3 See Johnson v. Jones, --- U.S. at ----, 115 S.Ct. at
2159 ("the court of appeals can simply take, as given, the facts
that the district court assumed when it denied summary judgment");
Dolihite, 74 F.3d at 1035 n. 3. But we are not required to accept
them. In this case, we will accept the district court's
evidentiary sufficiency findings, i.e., its factfindings for
present purposes, as far as they go, supplementing them with
additional evidentiary sufficiency findings of our own from the
record where necessary.
B. The Right of a Defendant Denied Summary Judgment on Qualified
Immunity Grounds to Have the Facts Determined at Trial and
Evidentiary Sufficiency Issues Reviewed on Appeal After Final
Judgment
Before recounting the facts the district court distilled from
the summary judgment record, we think it appropriate to make a few
additional observations about public officials and employees' right
to appellate review of evidentiary sufficiency questions underlying
their qualified immunity defenses. The Supreme Court's Johnson
decision applies only to interlocutory review, not to appellate
review following final judgment. As we have stated previously:
a defendant who does not win summary judgment on qualified
immunity grounds may yet prevail on those grounds at or after
trial on a motion for a judgment as a matter of law. See
Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1579
n. 8 (11th Cir.1992) (Edmondson, J., dissenting) (dictum);
id., at 1567 n. 2 (non-majority opinion of Hatchett, J.)
(dictum), rev'd per curiam on other grounds, 998 F.2d 923, 923
(11th Cir.1993) (en banc). Moreover, a district court can,
"when needed, ... use special verdicts or written
interrogatories to the jury to resolve disputed facts before
the judge rules on the qualified-immunity question." Id.;
3
In determining the facts for summary judgment purposes, we,
like the district court, are required to view the evidence in the
light most favorable to the plaintiff. When that is done, a pure
issue of law is created.
accord Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir.1992)
(per curiam) (dictum). What we decide in this interlocutory
appeal is only whether the district court should have granted
summary judgment on qualified immunity grounds.
Kelly, 21 F.3d at 1546-47 (footnote omitted); accord Bendiburg v.
Dempsey, 19 F.3d 557, 561 (11th Cir.1994).
In cases where defendants are entitled to qualified immunity,
it is imperative that they receive the benefits of that defense
prior to trial through Fed.R.Civ.P. 12(b)(6), Fed.R.Civ.P. 12(c),
or Fed.R.Civ.P. 56(c). That imperative results from the nature of
the entitlement to qualified immunity. "The entitlement is an
immunity from suit rather than a mere defense to liability; and
like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Mitchell v. Forsyth, 472
U.S. at 526, 105 S.Ct. at 2815; accord Behrens, --- U.S. at ----,
116 S.Ct. at 839 ("Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct.
2727, 73 L.Ed.2d 396] [ (1982) ] and Mitchell make clear that the
defense is meant to give government officials a right, not merely
to avoid standing trial, but also to avoid the burdens of such
pretrial matters as discovery...." (internal quotation marks
omitted)); Johnson, --- U.S. at ----, 115 S.Ct. at 2158 (the very
policy militating in favor of immediate appeals from the denial of
qualified immunity motions is to protect public officials from
lawsuits); Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107
S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987) (Because "[o]ne of the
purposes of the Harlow qualified immunity standard is to protect
public officials from the "broad-ranging discovery' that can be
"peculiarly disruptive of effective government'... we have
emphasized that qualified immunity questions should be resolved at
the earliest possible stage of a litigation."); Ansley v.
Heinrich, 925 F.2d 1339, 1346-47 (11th Cir.1991).4
Where the defendant's pretrial motions are denied because
there are genuine issues of fact that are determinative of the
qualified immunity issue, special jury interrogatories may be used
to resolve those factual issues. See Stone v. Peacock, 968 F.2d
1163, 1166 (11th Cir.1992); Bendiburg v. Dempsey, 19 F.3d at 561.
Because a public official who is put to trial is entitled to have
the true facts underlying his qualified immunity defense decided,
a timely request for jury interrogatories directed toward such
factual issues should be granted. Denial of such a request would
be error, because it would deprive the defendant who is forced to
trial of his right to have the factual issues underlying his
defense decided by the jury.
We do not mean to imply, of course, that district courts
should submit the issue of whether a defendant is entitled to
qualified immunity to the jury. Qualified immunity is a legal
issue to be decided by the court, and the jury interrogatories
should not even mention the term. Bendiburg v. Dempsey, 19 F.3d at
561; Stone v. Peacock, 968 F.2d at 1165-66; Ansley v. Heinrich,
925 F.2d at 1348. Instead, the jury interrogatories should be
restricted to the who-what-when-where-why type of historical fact
issues.
4
Not only is a defendant entitled to interlocutorily appeal
the denial of his qualified immunity defense when he asserts it
in a Rule 12(b)(6) motion, or in a Rule 56 motion for summary
judgment, he is entitled to interlocutorily appeal denial of both
such motions even where it results in two pretrial appeal
proceedings in a single lawsuit. Behrens, --- U.S. at ----, 116
S.Ct. at 839.
When a district court has denied the qualified immunity
defense prior to trial based upon its determination that the
defense turns upon a genuine issue of material fact, the court
should revisit that factual issue when, and if, the defendant files
a timely Fed.R.Civ.P. 50(a) or (b) motion. The party who receives
an adverse ruling on such a motion is free to seek appellate review
of that ruling in the usual manner following final judgment. The
effect of Johnson v. Jones on the power of appellate courts to
review pure evidentiary sufficiency rulings relating to qualified
immunity is confined to interlocutory appeals.
III. THE FACTS IN THIS CASE
In this part, we quote from the district court's memorandum
opinion and order denying defendant's motion for summary judgment,
those facts which it found from the summary judgment record and
relied upon to deny the summary judgment on qualified immunity
grounds, as well as on the merits.5
"On December 27, 1990, Caldwell and Wilson were dispatched to
2721 Second Street in Montgomery, Alabama to respond to a call on
the 911 emergency phone number. Upon arriving at that address,
they were met by Ella Ree Cottrell, who advised them that the
decedent, her grandson, had a history of psychological problems;
that he had stopped taking his medication which suppressed those
problems; and that he needed to be taken to a hospital. After an
incident occurred inside the residence, the officers placed the
decedent under arrest. A struggle then ensued and Caldwell and
5
We directly quote the full substantive text of these
factfindings, but omit the district court's record citations.
Wilson called for assistance."
"Shortly thereafter, Kemplin, Henderson and other police
officers arrived. After a struggle of twenty minutes, the decedent
was subdued and placed in handcuffs and leg restraints. The
defendants then placed the decedent in a police car with his feet
on the rear seat and his head in the space between the front and
rear seats. In this position, the decedent was unable to
adequately inhale oxygen and because of the handcuffs and leg
restraints could not reposition himself."
"Thereafter, Caldwell drove the police car back to the police
station and Wilson sat in the rear seat with the decedent. During
this period, the decedent died of "positional asphyxiation.' "
After stating the facts quoted above, the district court
discussed some legal rules and principles of law, and then stated
as follows:
"In the instant case, Cottrell presents two pieces of evidence
from which the court concludes that a genuine issue of material
fact exists as to whether or not the individual officers acted with
either gross negligence or deliberate indifference."
"First, Cottrell offers the affidavit of James J. Fyfe
("Fyfe'), an expert in police practices and procedures. Fyfe
maintains that: (1) "it was well known by police on the day of Mr.
Wilson's death improper restraint of arrested persons, particularly
those on medication and/or who have engaged in strenuous activity,
could quickly cause death by asphyxiation'; (2) "police
administrators throughout the United States have formulated clear
policies and training designed to assure that officers transport
prisoners safely'; (3) "[g]enerally accepted United States police
custom and practice dictates that arrested persons whose hands and
legs have been restrained be transported in police patrol cars only
if they can be seated in normal positions and secured to their
seats by seat belts or lap restraints'; (4) "[i]f [an] arrested
person whose hands and legs have been restrained are too violent or
active to be transported while normally seated in police patrol
cars, generally accepted United States police custom and practice
dictates that they be transported in ambulances or specially
designed vehicles'; (5) "[g]enerally accepted United States police
custom and practice also dictates that, no matter how they may be
restrained, arresting officers constantly monitor the health and
well-being of persons in their custody'; (6) police officers'
training "should include recognition of signs that such persons are
not breathing or suffocating, as well as appropriate response to
such emergencies'; (7) the officers who arrested Mr. Wilson
committed gross violations of the prevailing standards and caused
his unnecessary death; (8) the affidavits of Caldwell, Henderson,
Kemplin, Wilson, and Deputy Chief Mallory indicate that the
officers have not received proper training."
"Next, Cottrell offers copies of the transcripts and reports
of the Alabama Bureau of Investigation's ("ABI') interviews of
Caldwell, Henderson and Ms. Daisy Presley ("Presley').4"
"During her interview, Caldwell recalled statements by the
decedent's grandmother, at the time she arrived on the scene, that
indicated to her and Wilson that the decedent had a mental problem
and was taking medication. Her interview reveals that a
twenty-five minute struggle occurred between the officers and the
decedent and that it took six officers to handcuff him. Caldwell
also stated that during the struggle the decedent struck her and
Wilson and that Wilson struck the decedent. With regards to
transporting the decedent, she stated that she drove the vehicle
and Wilson sat in the back with the decedent; the decedent was in
handcuffs and leg restraints, lying face down on the floorboard;
and that Wilson and the decedent did not communicate between the
time they placed the decedent in the vehicle and the time that they
realized there was a problem.5"
"During his interview, Henderson emphasized that the decedent
was "really strong' and "three grown men couldn't hold this man
down.' He stated that during the struggle the decedent was
"breathing pretty hard.' Henderson also recalled that he kept
asking out loud "what [the decedent] was on or what's wrong with
6
him.' He noted that "I can't stress enough that through my mind
the whole time struggling with him and wrestling with a person you
can get tired real quick and I know we had been out there with him
at least 10 [minutes].' 7"
"4 Presley is a neighbor of the decedent and his
grandmother."
"5 The drive from the decedent's home to the police
station lasted approximately five minutes."
"6 With regards to his questioning the decedent's
condition, Henderson further recalled that "I was pushing his
leg real hard and it didn't phase him one bit, it's like
nobody's doing a thing to him.... They drug him out of the
house cause he wouldn't stand up and he just had a weird look
on his face, I mean he just wouldn't respond to nothing like
a normal person would.' "
"7 Henderson previously stated that the other officers
were with the decedent for at least twenty minutes before he
arrived."
"Finally, the ABI report of Presley's interview indicates that
she stated that: (1) she observed police officers drag the
decedent out of his home; (2) he appeared "limp', and (3) when
officers placed him on the pavement his face went down on the
pavement and he did not attempt to move his face."
IV. ANALYSIS
A. The Mistreatment in Custody Claim
We think that in view of the circumstances of this case, the
proper analytical approach to reviewing the denial of summary
judgment as to the custodial mistreatment claim is the one the
Supreme Court followed in Siegert v. Gilley, 500 U.S. 226, 111
S.Ct. 1789, 114 L.Ed.2d 277 (1991), an interlocutory appeal
decision which held that the district court's denial of the
defendant's motion for summary judgment on qualified immunity
grounds was due to be reversed. The Supreme Court reached that
conclusion by going straight to the merits and holding that the
plaintiff "not only failed to allege the violation of a
constitutional right that was clearly established at the time of
Gilley's actions, but he failed to establish the violation of any
constitutional right at all." 500 U.S. at 233, 111 S.Ct. at 1794.
Where the absence of merit in the plaintiff's case can be readily
determined at the interlocutory appeal stage, the Siegert
analytical approach makes sense, because "[a] necessary concomitant
to the determination of whether the constitutional right is
"clearly established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation of
a constitutional right at all." 500 U.S. at 232, 111 S.Ct. at
1793.
Although we have not considered the Siegert approach
mandatory, see Spivey v. Elliott, 41 F.3d 1497, 1498 (11th
Cir.1995), we have followed it on occasion, see, e.g., Wooten v.
Campbell, 49 F.3d 696, 699 (11th Cir.), cert. denied, --- U.S. ----
, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995); Burrell v. Board of
Trustees of Ga. Military College, 970 F.2d 785, 792 (11th
Cir.1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814, 123 L.Ed.2d
445 (1993). In Burrell, for example, we reversed a denial of
summary judgment on qualified immunity grounds insofar as it
involved an alleged conspiracy to violate the plaintiff's First
Amendment right to freedom of speech. Id. at 792-93. Our
reasoning was that:
Assuming, without deciding, that Baugh and Goldstein would
have violated a clearly established constitutional right by
conspiring with Baggarly to have Burrell fired for speaking
out against GMC, the record does not contain inferable facts
that could support a finding that either Baugh or Goldstein in
any way conspired with Baggarly to discharge her for her
public criticism of GMC. Without a conspiracy, there
obviously is no constitutional violation. Without a
constitutional violation, there can be no violation of a
clearly established constitutional right. See Oladeinde v.
City of Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992)
(citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277 (1991)).
We will follow the Siegert approach here, just as we did in
Burrell, but instead of examining the record ourselves as we did in
Burrell, we will begin with the facts found by the district court
and supplement them only where necessary to determine if summary
judgment should have been granted after proper application of the
law to the facts.
Claims involving the mistreatment of arrestees or pretrial
detainees in custody are governed by the Fourteenth Amendment's Due
Process Clause instead of the Eighth Amendment's Cruel and Unusual
Punishment Clause, which applies to such claims by convicted
prisoners. E.g., Bell v. Wolfish, 441 U.S. 520, 535 & n. 16, 99
S.Ct. 1861, 1872 & n. 16, 60 L.Ed.2d 447 (1979); Hale v.
Tallapoosa County, 50 F.3d 1579, 1582 n. 4 (11th Cir.1995); Jordan
v. Doe, 38 F.3d 1559, 1564-65 (11th Cir.1994). However, the
applicable standard is the same, so decisional law involving prison
inmates applies equally to cases involving arrestees or pretrial
detainees. E.g., Jordan, 38 F.3d at 1564-65 (citing Hamm v. DeKalb
County, 774 F.2d 1567, 1574 (11th Cir.1985), cert. denied, 475 U.S.
1096, 106 S.Ct. 1492, 89 L.Ed.2d 894 (1986)).
Finding no evidence that the defendant officers intended that
Leroy Wilson, the arrestee, be asphyxiated, the district court read
the due process claim as one alleging deliberate indifference and
proceeded to analyze it on that basis. Actually, the district
court applied to the evidence a standard of " either gross
negligence or deliberate indifference" (emphasis added), a standard
it drew from language in Owens v. City of Atlanta, 780 F.2d 1564,
1567 (11th Cir.1986). The "gross negligence" language in the
Owens
opinion is dictum, because the evidence in that case showed at most
simple negligence, which would have been insufficient to state a
valid due process claim regardless of whether the standard was
deliberate indifference, or was either gross negligence or
deliberate indifference. In any event, the Supreme Court's recent
decision in Farmer v. Brennan, --- U.S. ----, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994), which was released after this case left the
district court, makes it clear that "gross negligence" is not part
of the standard for judging custody mistreatment claims under the
Due Process Clause.
In Farmer, the Court began with the proposition that the
mistreatment standard is " "deliberate indifference' to a
substantial risk of serious harm," id. at ----, 114 S.Ct. at 1974,
and then proceeded to define the standard which has both an
objective component and a subjective component. Id. at ----, 114
S.Ct. at 1977. To satisfy the objective component, the plaintiff
must show a deprivation that is, "objectively, sufficiently
serious," which means that the defendants' actions resulted "in the
denial of the minimal civilized measure of life's necessities."
Id. (internal quotation marks omitted).
Even when that objective component is established, an in
custody mistreatment claim still fails unless the plaintiff
establishes that the defendant had a " "sufficiently culpable state
of mind.' " Id. That requisite "state of mind is one of
deliberate indifference to inmate health or safety." Id. (internal
quotation marks omitted). It is a state of mind "lying somewhere
between the poles of negligence at one end and purpose or knowledge
at the other." Id. at ----, 114 S.Ct. at 1978. It is "the
equivalent of recklessly disregarding" a substantial risk of
serious harm to the inmate. Id. The Court in Farmer squarely
rejected the plaintiff's invitation to adopt a purely objective
test for deliberate indifference, holding instead that there could
be no liability "unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference." Id. at ----, 114 S.Ct. at 1979. There is no liability
for "an official's failure to alleviate a significant risk that he
should have perceived but did not...." Id.Applying Farmer to the facts found by the district court in
this case, it is apparent that summary judgment should have been
granted on the in custody mistreatment claim. The district court
did not find that either defendant knew of and disregarded an
excessive risk that Leroy Wilson would suffocate after he was
placed in the back seat of the police car and before it arrived at
the station five minutes later; the court did not find that either
defendant drew from the facts known to that defendant the inference
that a substantial risk of harm existed.
Because Farmer was released after the district court issued
its order and findings, we have examined the record carefully to
determine if there is any genuine issue of material fact as to the
subjective intent element prescribed in Farmer. Cf. Johnson, ---
U.S. at ----, 115 S.Ct. at 2159 (where a district court has not
stated the facts upon which its decision to deny summary judgment
is based, a court of appeals may have to review the record to
determine what facts the district court likely assumed). The
record contains no evidence that either defendant officer knew of
and consciously disregarded the risk that Charles Wilson would
suffocate in the back seat of the police car. As the district
court's findings indicate, there is evidence, in the form of an
affidavit from plaintiff's expert, that most police officers around
the country receive training designed to assure safe transportation
of prisoners, and that such training should include recognition of
signs of suffocation. However, the district court found that the
officer defendants in this case had not received such training
("the affidavits ... indicate that the officers have not received
proper training.").
The affidavit of plaintiff's expert also states, in conclusory
terms, that "it was well known by police on the day of Mr. Wilson's
death improper restraint of arrested persons, particularly those on
medication and/or who have engaged in strenuous activity, could
quickly cause death by asphyxiation." Such a conclusory statement
about police in general is not evidence about the mental state of
these defendant officers in particular. The same is true of the
statements in the expert's affidavit that these officers' conduct
violated "[g]enerally accepted United States police custom and
practice" in several ways. Farmer requires a great deal more of
the plaintiff than a showing that the defendants violated generally
accepted customs and practices.
Because there is no evidence in the summary judgment record
sufficient to support a jury finding that the defendant officers
were consciously aware of and disregarded the risk that Mr. Wilson
would suffocate, plaintiff has failed to show a violation of due
process, and it necessarily follows that the defendants are
entitled to summary judgment on qualified immunity grounds. See
Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. We are confident that
the district court would have reached that conclusion, and ruled
differently than it did, if the Farmer decision had been available
to it.
B. The Excessive Force Claim
The district court disposed of the defendants' motion for
summary judgment on the Fourth Amendment excessive force claim in
a footnote, simply stating that because of its decision to deny
summary judgment as to the Due Process claim, "prudence dictates
that it also denied defendants' motion for summary judgment on
[plaintiff's] Fourth Amendment claim. Defendants are given leave
to raise this issue again at the time of trial." When their motion
for summary judgment on qualified immunity grounds is denied,
defendants are not required to have leave of court in order to
raise the defense again at trial. See supra pp. 10-13. To the
extent that the district court's language could be interpreted as
declining to rule on the qualified immunity issue until trial, its
action had the same effect, for our interlocutory jurisdiction
purposes, as a complete denial. See, e.g., Collins v. School Bd.
of Dade County, Fla., 981 F.2d 1203, 1205 (11th Cir.1993). To the
extent that the district court's reasoning is based, as its
language seemingly indicates, upon its decision to deny the motion
for summary judgment as to the due process claim, then it is
erroneous because the court's reasoning on the due process claim is
itself erroneous, for the reasons we have previously discussed.
In any event, the two claims involve different legal
standards. The proper standard for judging Fourth Amendment
excessive force claims is set out in Graham v. Connor, 490 U.S.
386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). That standard is one
of objective reasonableness: "the question is whether the
officers' actions are "objectively reasonable' in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation." 490 U.S. at 397, 109 S.Ct. at
1872. The district court's detailed factfindings concerning the
events surrounding the arrest and the force applied make it clear
that there is no genuine issue of material fact concerning
excessive force in this case, and the defendant officers are
entitled to summary judgment as a matter of law. It necessarily
follows that the district court should have granted their motion
for summary judgment on qualified immunity grounds. See Siegert,
500 U.S. at 232, 111 S.Ct. at 1793.
V. CONCLUSION
We REVERSE the district court's denial of the defendants'
motion for summary judgment on qualified immunity grounds as to
both claims and REMAND this case for further proceedings consistent
with this opinion.