Randall Greer v. Wayne Ivey ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13542
____________________
RANDALL GREER,
individually and as personal representative of the
Estate of Christopher Greer, deceased,
Plaintiff-Appellant,
CHRISTINE GREER,
Plaintiff,
versus
WAYNE IVEY,
in his official capacity as Sheriff of Brevard County,
TOWN OF INDIALANTIC,
Florida, a municipal corporation,
JAMES HAMAN,
Cpl., individually and as an employee of Wayne Ivey in his
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2 Opinion of the Court 20-13542
official capacity as Sheriff of Brevard County,
DIOMEDIS CANELA,
Deputy, individually and as an employee of Wayne Ivey
in his official capacity as Sheriff of Brevard County,
Defendants-Appellees,
BREVARD COUNTY, FLORIDA, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:15-cv-00677-CEM-GJK
____________________
Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.
PER CURIAM:
Christopher Greer brandished a knife at his brother and
grabbed his sister-in-law’s throat, and Greer’s brother called the po-
lice. Sheriff’s deputies responded to the call, and after Greer failed
to comply with their commands, two of those deputies shot and
killed him inside his home. Greer’s brother, sister-in-law, and
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20-13542 Opinion of the Court 3
estate filed a lawsuit containing a total of twenty-four claims
against the sheriff, the town, and the two deputies who shot Greer.
The only remaining parties are the Greer Estate and the dep-
uties. The only claims involved in this appeal are 42 U.S.C. § 1983excessive force claims and state law wrongful death claims.
I.
This is the second time this case has been before us. The
first appeal in the case was from the district court’s grant of sum-
mary judgment in favor of the defendants on all counts. We re-
versed that judgment in part. Greer v. Ivey, 767 Fed. App’x 706,
714 (11th Cir. 2019) (Greer I). We held that a question of fact pre-
cluded summary judgment on the Estate’s § 1983 excessive force
claims and its state law wrongful death claims based on assault and
battery. Id. at 712–13. Both the federal and state claims hinged on
the question of whether “it was reasonable for [the deputies] to use
deadly force on [Greer].” Id. at 710.
On remand, those claims went to trial, and a jury answered
that question. It found that neither deputy violated Greer’s “right
not to be subjected to excessive or unreasonable force during an
arrest.” The Estate contends that the jury reached that verdict only
because the district court made several errors that resulted in an
unfair trial. We affirm because the trial may not have been perfect,
but it was fair, and that is enough. See McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (“This Court has long
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4 Opinion of the Court 20-13542
held that a litigant is entitled to a fair trial but not a perfect one, for
there are no perfect trials.”) (cleaned up).
II.
During voir dire, the Estate asked the district court to use a
juror questionnaire that included several questions about implicit
bias in favor of police officers. Implicit bias, according to the Es-
tate, is unconscious bias that the potential juror may not be aware
of. The Estate argues that its written questions were phrased to
uncover that bias. For example, the questionnaire asked potential
jurors whether they agreed or disagreed with this statement:
“Truth usually takes a backseat when police shoot and kill a citizen
if it threatens an officer’s personal and professional standing.”
The court did not use the Estate’s written questionnaire. In-
stead, it orally asked the potential jurors who stated that they had
“friends or relatives that work in law enforcement” whether there
was “anything about that relationship that you’re concerned might
interfere with your ability to remain fair and impartial in this case?”
The court also explicitly warned the venire that it did not want ju-
rors on the panel who would believe or disbelieve a witness simply
because the witness worked in law enforcement. After the court
gave both parties the opportunity to propose “any additional ques-
tions” for the court to ask, the Estate did not propose any questions
about implicit bias in favor of police officers.
The Estate contends that the court failed to properly ques-
tion venire members about their potential implicit or unconscious
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20-13542 Opinion of the Court 5
bias in favor of law enforcement. It argues that the oral questions
the court asked were not designed to reveal that bias.
Trial courts have “wide discretion in determining which
questions are asked during voir dire.” United States v. Nash, 910
F.2d 749, 753 (11th Cir. 1990); see also United States v. Hill, 643
F.3d 807, 836 (11th Cir. 2011) (“The method of conducting the voir
dire is left to the sound discretion of the trial court and will be up-
held unless an abuse of discretion is found.”) (quotation marks
omitted). “Even if the district court failed to ask particular voir dire
questions that may be warranted in the case, we will find no abuse
of discretion if the voir dire questioning as a whole complied with
the essential demands of fairness, that is, if it gave reasonable assur-
ance to the parties that any prejudice of the potential jurors would
be discovered.” Nash, 910 F.2d at 753 (quotation marks omitted).
Even if we assume that the questions on the Estate’s ques-
tionnaire were “warranted in [this] case,” the “questioning as a
whole” fell well within the district court’s wide discretion and
“gave reasonable assurance to the parties that any prejudice of the
potential jurors would be discovered.” Id. District courts are not
required to ask the specific questions proposed by the parties or ask
them in a certain format, see id., and the court’s questions were
designed to uncover biases in favor of law enforcement. The court
did not abuse its discretion by asking the questions that it did in the
format that it did, instead of the ones the Estate wanted in the for-
mat that the Estate wanted.
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6 Opinion of the Court 20-13542
III.
The Estate contends that the district court made several er-
roneous evidentiary rulings. It argues that the court should have
excluded evidence of Greer’s intoxication, evidence that the depu-
ties were not criminally prosecuted for killing Greer, and parts of
the testimony of two expert witnesses.
A.
Before trial, the court denied the Estate’s motion to exclude
evidence that Greer was intoxicated when the deputies shot him.
At trial, the defense presented without objection Greer’s autopsy
report, which included his blood alcohol level (of 0.222%) and tox-
icology. Starting with opening statements and continuing through-
out trial, the defense referred to Greer’s blood alcohol level. It also
presented evidence that his blood alcohol level was well above the
level (0.08%) that will result in a DUI charge under Florida law,
evidence that there were prescription drugs in his system, and evi-
dence that on a past occasion he had acted “extremely agitated”
and had “required both physical restraints” and sedatives while in-
toxicated.
At the Estate’s request, the court gave a cautionary instruc-
tion to the jury. The court told the jurors that it was not a crime
for Greer to have a high blood alcohol level and that the purpose
of comparing his blood alcohol level to the minimum level for DUI
was to “give [the jury] some real life context” for his level of
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20-13542 Opinion of the Court 7
intoxication. The Estate now contends that allowing any evidence
about Greer’s intoxication was reversible error.
Generally, we review evidentiary rulings only for an abuse
of discretion. United States v. Brown, 665 F.3d 1239, 1247 (11th
Cir. 2011). But when a party “fail[s] to preserve [its] claim of evi-
dentiary error, we [] review only for plain error.” Id. The Estate
failed to object at trial to the autopsy report containing evidence of
Greer’s blood alcohol level and toxicology, but it argues that we
should still review the issue for an abuse of discretion because the
district court had definitively resolved the issue by denying the Es-
tate’s pre-trial motion to exclude that evidence. See, e.g., Fed. R.
Evid. 103(b); United States v. Harris, 886 F.3d 1120, 1127 n.2 (11th
Cir. 2018). We don’t need to decide whether the Estate’s objection
to the evidence of Greer’s intoxication was forfeited because, even
if it wasn’t, the district court did not abuse its discretion or plainly
err by admitting any of the evidence on that subject.
The Estate argues that the evidence of intoxication was not
relevant. But it was because the deputies tried to communicate
with Greer repeatedly, and his intoxication made it less likely that
he could understand and respond to their instructions. The intox-
ication evidence also undermined testimony that Greer was a
non-violent person because his intoxication made it more likely
that he acted out of character, particularly given the evidence that
on another occasion when he was intoxicated he had been ex-
tremely agitated and had required physical restraints and sedatives.
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8 Opinion of the Court 20-13542
The Estate argues that the evidence was unfairly prejudicial.
But it was not. In closing, counsel for one of the deputies told the
jury that it was perfectly legal for Greer to be drinking in his own
house. And the court gave a limiting instruction in which it re-
minded the jurors that the “only purpose” for considering Greer’s
blood alcohol level was “to give [them] some real life context in
terms of how does that compare to a .08, in terms of what would
be a DUI type of offense.” The court stressed that the jury should
not hold Greer’s blood alcohol level against him “in any way.”
Even if the intoxication evidence could be considered un-
fairly prejudicial, a “limiting instruction can diminish [that] unfair
prejudice.” Brown, 665 F.3d at 1247. And we presume that the
jury followed its instructions. United States v. Stone, 9 F.3d 934,
938 (11th Cir. 1993) (“Few tenets are more fundamental to our jury
trial system than the presumption that juries obey the court’s in-
structions.”). The Estate has failed to show that the court abused
its discretion in its handling of the intoxication evidence.
B.
The Estate called as one of its witnesses Ryan Bliss, the Flor-
ida Department of Law Enforcement officer who investigated
Greer’s shooting. On direct examination, Bliss testified that in in-
vestigations of officer-involved shootings like Greer’s, an investiga-
tive report is written and submitted “to the state attorney’s office.”
The court ruled that testimony opened the door to questions by
the defense about what the state attorney did with the report that
was submitted in the Greer investigation. Concerned that the jury
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20-13542 Opinion of the Court 9
would wonder whether the state attorney had pressed criminal
charges (which could unfairly prejudice the deputies), the court al-
lowed the defense to ask a narrow question on cross-examination:
whether it was true that the state attorney had declined to prose-
cute the deputies. Bliss answered that was true. The court imme-
diately gave a limiting instruction. It explained to the jury that be-
cause the standard of proof in a criminal case is different from the
standard in a civil case the non-prosecution “decision should have
no impact on [the jury’s] decision in this case.”
The Estate challenges the admission of that testimony. Evi-
dence of criminal non-prosecution is generally inadmissible in a re-
lated civil case because the difference in the standards of proof
might mislead the jury. See FIGA v. R.V.M.P. Corp., 874 F.2d 1528,
1531 (11th Cir. 1989). But otherwise inadmissible evidence can be
properly admitted when opposing counsel “open[s] the door” to
that evidence. United States v. West, 898 F.2d 1493, 1500 (11th Cir.
1990); see also Bearint ex rel. Bearint v. Dorel Juv. Grp., Inc., 389
F.3d 1339, 1349 (11th Cir. 2004) (“This Circuit recognizes the con-
cept of curative admissibility — also called opening the door or
fighting fire with fire.”) (quotation marks omitted). And a limiting
instruction can offset any potential jury confusion that might arise
from the evidence that a civil suit defendant was not criminally
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10 Opinion of the Court 20-13542
prosecuted. See United States v. Wyatt, 611 F.2d 565, 569 (5th Cir.
1980). 1
The district court did not abuse its discretion here. It was
not a clear error of judgment to rule that the Estate elicited evi-
dence from its own witness that opened the door to the defense’s
follow-up question. See United States v. Cooper, 926 F.3d 718,
730–31 (11th Cir. 2019) (holding that the district court did not abuse
its discretion by admitting otherwise inadmissible testimony after
the defense opened the door to that evidence). 2 In any event, the
court’s instruction “minimized the risk[]” that the testimony may
have misled the jury. Wyatt, 611 F.2d at 569. And, once again, we
presume the jury followed its instructions. Stone, 9 F.3d at 938.
C.
The Estate challenges the testimony of two defense experts:
the medical examiner who performed Greer’s autopsy, Dr.
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981.
2 The Estate also argues that it could not have opened the door because the
defense did not object to Bliss’ direct testimony. See Woods v. Burlington N.
R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), rev’d on other grounds, 480 U.S.
1 (1987) (listing, as one of several “good reasons why skilled trial counsel may
make a tactical decision not to object to an improper argument,” the possibil-
ity that “the improper argument may open the door”). We have never held
that a party must object to evidence before curative admissibility is available,
and we won’t do so here.
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20-13542 Opinion of the Court 11
Krzysztof Podjaski, and the testimony of a forensic firearms and
tool examiner, Richard Ernest. The Estate contends that the dis-
trict court abused its discretion by allowing those two expert wit-
nesses to testify that Greer’s left arm was raised when the deputies
shot him.
i.
The video of the deposition of medical examiner Podjaski
was played for the jury at trial. Before trial, the Estate had asked
the court to exclude testimony from that deposition about the po-
sition of Greer’s arm at the time of the shooting. The argument
behind the motion was that particular testimony went beyond the
scope of the autopsy report and that it transformed Podjaski into a
retained expert witness who had not submitted an expert’s report
as required by Fed. R. Civ. P. 26(a)(2)(B). The court ruled that
Podjaski would be allowed to testify concerning the position of
Greer’s arm because his opinion about it was based on his exami-
nation and the autopsy he had performed. The court also reasoned
that Podjaski was not a retained expert, but a non-retained one and
they are not required to submit a report that satisfies Rule
26(a)(2)(B). 3
3 Rule 26(a)(2)(C) provides that “if the witness is not required to provide a
written report, [the party’s] disclosure [of expert testimony] must state” both
“the subject matter on which the witness is expected to present evidence un-
der Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts
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12 Opinion of the Court 20-13542
During the video deposition, medical examiner Podjaski tes-
tified that the wounds in Greer’s arm suggested it was “more likely
than not” that his arm was “raised in some manner” when the dep-
uties shot him. He also testified that he first reached that opinion
during his deposition while reviewing the autopsy report.
The Estate argues that the court’s ruling about Podjaski’s
testimony was an abuse of discretion under Rule 26(a)(2)(B). But
the disclosure requirements the rule imposes apply to witnesses
“retained or specially employed to provide expert testimony in the
case.” Fed. R. Civ. P. 26(a)(2)(B). As the district court reasoned,
Podjaski was neither a retained expert nor specially employed
within the meaning of the rule. He prepared his autopsy report in
the normal course of his medical examiner job duties, not specifi-
cally for this litigation.
The Estate argues it is enough for the rule to apply that
Podjaski formed his opinion during his deposition (after reviewing
his autopsy file, which contained a photograph of the wounds). But
that isn’t enough. The rule applies only if the expert was “retained
or specially employed.” That Podjaski formed his opinion when
he was testifying during this litigation, based on material produced
or gathered before this litigation, does not make him retained or
specially hired.
and opinions to which the witness is expected to testify.” But the Estate does
not rely on this provision on appeal.
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20-13542 Opinion of the Court 13
The Estate also argues that the court should have barred the
defense from using Podjaski’s testimony at trial because he was un-
sure of his opinion, making it inadmissible under Daubert. But the
Supreme Court has explained that “it would be unreasonable to
conclude that the subject of scientific testimony must be ‘known’
to a certainty; arguably, there are no certainties in science.” Daub-
ert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993). In his
deposition, Podjaski gave his opinion about arm position and ad-
mitted that he “c[ould] be wrong.” It was not an abuse of discretion
for the court to find that Podjaski’s testimony satisfied Daubert. As
the district court explained, any lack of certainty went to the weight
the jury should give his testimony, not its admissibility. See Quiet
Tech. DC-8, Inc. v. Hurel Dubois UK Ltd., 326 F.3d 1333, 1341,
1345 (11th Cir. 2003) (stating that “it is not the role of the district
court to make ultimate conclusions as to the persuasiveness of the
proffered evidence” and concluding that the plaintiff’s argument
that an expert’s testimony was “methodologically flawed” went “to
the weight, not the admissibility, of the evidence he offered”).
ii.
As for the forensic firearms and tool examiner, Ernest, the
Estate argues that it was error to allow him to testify about Greer’s
arm position because he is not a forensic pathologist. We have
never held that forensic firearms experts are categorically excluded
from testifying about body position or wound path, or that forensic
pathologists are the only experts who can give testimony about
those things. The Estate offers no convincing argument or
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14 Opinion of the Court 20-13542
authority for why we should create a categorical exclusion, and
Ernest has considerable experience in this area. He has worked as
a firearms examiner or forensic consultant since 1977. Over the
decades, his job duties have included tasks such as determining “an-
gles” and “shooting distances” at “shooting scenes” and “[a]ssisting
[m]edical [e]xaminers in ballistics related areas,” including “muzzle
to target distances based on wound characteristics” and “interme-
diate target effects.”
District courts enjoy “considerable leeway in making [] de-
terminations” about the admissibility of expert testimony, and we
will reverse those determinations only if they are “manifestly erro-
neous.” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.
2004) (en banc) (quotation marks omitted). This one was not.
IV.
During trial, the district court expressed concern that sub-
mitting both the Estate’s federal and state law claims to the jury
could result in an inconsistent verdict or lead to double recovery
for the Estate. The court told the Estate to choose between its state
and federal claims; the Estate protested but chose the federal
claims. The court instructed the jury on the Estate’s federal claims
and not its state law claims. The jury verdict found that neither
deputy “intentionally committed acts that violated [Greer’s] fed-
eral constitutional right not to be subjected to excessive or unrea-
sonable force during an arrest, which caused [his] injury.” The
court entered judgment in favor of the defendants on all claims.
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20-13542 Opinion of the Court 15
The Estate contends that the court erred and a new trial is
required, but we disagree. Even if it was error to enter judgment
for the defendants on the state law claims without submitting those
claims to the jury, it was harmless error because it did not affect the
Estate’s substantial rights. See Vista Marketing, LLC v. Burkett,
812 F.3d 954, 979 (11th Cir. 2016) (even when the district court errs
“the challenging party must establish that the error affected sub-
stantial rights to obtain reversal and a new trial”). It did not affect
the Estate’s substantial rights because the jury’s findings about rea-
sonable force as to the federal claims would have definitively re-
solved the state law claims in favor of the defendants, just as it re-
solved the federal law claims.
Our decision in the first appeal in this case shows why. 4 We
held that the Estate’s federal excessive force claims and state law
wrongful death claims all “turn[ed] on the reasonableness of the
deputies’ use of deadly force.” Greer I, 767 Fed. App’x at 712. The
Estate’s wrongful death claims were based on the underlying torts
of assault and battery. Under Florida law, “the sole basis and limit
of an arresting officer’s liability in making a lawful arrest is founded
4 Our Greer I decision was unpublished and not precedential, see 11th Cir. R.
36-2, but it is the law of the case, see United States v. Jordan, 429 F.3d 1032,
1035 (11th Cir. 2005) (“The law of the case doctrine bars relitigation of issues
that were decided, either explicitly or by necessary implication, in an earlier
appeal of the same case.”).
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16 Opinion of the Court 20-13542
on a claim of battery.” City of Miami v. Sanders, 672 So. 2d 46, 48
(Fla. 3d DCA 1996). It is only when “excessive force is used in an
arrest” that “the ordinarily protected use of force by a police officer
is transformed into a battery.” Id.Like a federal excessive force claim, a Florida “battery claim
for excessive force is analyzed by focusing upon whether the
amount of force used was reasonable under the circumstances.”
Sanders, 672 So. 2d at 47; Davis v. Williams, 451 F.3d 759, 767 (11th
Cir. 2006) (“Whether the force used is reasonable [for purposes of
a Fourth Amendment excessive force claim] turns on the facts and
circumstances of each particular case . . . .”) (quotation marks
omitted). Under Florida law, “officers are entitled to a presump-
tion of good faith in regard to the use of force applied during a law-
ful arrest, and officers are only liable for damage where the force
used is clearly excessive.” Davis, 451 F.3d at 768 (quotation marks
omitted); see also Sanders, 672 So. 2d at 47. For the Estate to suc-
ceed on either its wrongful death claims or its § 1983 excessive
force claims, it needed to prove that the deputies used excessive
force on Greer.
After all, in our opinion in the first appeal we recognized that
both the federal claims and the state law claims “turn[] on whether,
in the moment before the shooting, the deputies reasonably be-
lieved that [Greer] posed an immediate threat to their safety.”
Greer I, 767 Fed. App’x at 710. And that is why we said the “prin-
cipal question in this case is whether . . . it was reasonable for [the
deputies] to use deadly force on [Greer].” Id. The jury answered
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20-13542 Opinion of the Court 17
that central question or questions (depending on how you count)
in favor of the deputies, finding that neither of them caused Greer’s
death by “subject[ing] [him] to excessive or unreasonable force.”
It would be impossible to reconcile that jury finding with a
judgment in favor of the Estate on the state law claims. For that
reason, any arguable error in leaving off the verdict form a place
for the jury to reiterate that finding for the state law claims was
harmless. Cf. Prieto v. Malgor, 361 F.3d 1313, 1320 (11th Cir. 2004)
(holding that “even if the district court should have let the question
[of whether the officers acted with bad faith or malicious purpose]
go to the jury, any error was plainly harmless” because the jury had
already determined that the officers did not commit a battery, so
“they could not have found that either officer had battered [the
plaintiff] with bad faith or malice”).
For what it’s worth, in other cases we have considered fed-
eral and Florida excessive force claims together, using the same
standard to determine whether an officer’s use of force was exces-
sive. See Johnson v. City of Miami Beach, 18 F.4th 1267, 1275 (11th
Cir. 2021) (considering the plaintiff’s federal and Florida excessive
force claims together); Penley v. Eslinger, 605 F.3d 843, 856 (11th
Cir. 2010) (granting summary judgment to the defendant officer on
federal and Florida excessive force claims because his use of deadly
force was “objectively reasonable”); Davis, 451 F.3d at 768 (relying
on the “facts and reasoning set forth” in the federal excessive force
analysis to evaluate whether an officer’s use of force was
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18 Opinion of the Court 20-13542
“transformed into a battery” under Florida law) (quotation marks
omitted).
All of this means that the jury verdict which resolved the Es-
tate’s § 1983 claims in favor of the defendants also defeated its state
law claims because the deputies cannot be liable under state law,
just as they can’t be under federal law, for using reasonable, non-
excessive force. See Penley, 605 F.3d at 856. If it was error to sub-
mit only the federal claims to the jury, it was harmless error.
V.
Finally, the Estate contends that the court erred by instruct-
ing the jury using the Eleventh Circuit pattern jury instructions for
claims of excessive force in violation of the Fourth Amendment
during an arrest. See Pattern Civ. Jury Instr. 11th Cir. 5.4 (2019).
Those instructions included the following language: “When mak-
ing a lawful arrest, an officer has the right to use reasonably neces-
sary force to complete the arrest.” Greer was not formally arrested
–– or perhaps it is more accurate to say that his arrest was not com-
pleted –– so the court instructed the jury that “[f]or the purposes of
your deliberations, an attempt to effectuate an arrest can be con-
sidered an arrest.”
The Estate argues that there was no factual basis for the
court’s instruction about attempted arrest because there was no ev-
idence the deputies were attempting to arrest Greer when they
shot him. During trial, the court found that “the record is replete
with examples of testimony indicating that the purpose of [the
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20-13542 Opinion of the Court 19
deputies] going in there was to take [Greer] into custody.” We
agree that it is beyond dispute that the deputies were attempting to
arrest Greer when they shot him. See United States v. Wright, 862
F.3d 1265, 1282 (11th Cir. 2017) (“The term ‘arrest’ ordinarily
means that someone has been seized and taken into custody, how-
ever briefly.”).
The Estate also argues that the court should have specifically
instructed the jury about the use of deadly force, not the use of
force more generally. “When evaluating a trial court’s failure to
give a requested instruction, the omission is error only if the re-
quested instruction is correct, not adequately covered by the
charge given, and involves a point so important that failure to give
the instruction seriously impaired the party’s ability to present an
effective case.” Knight through Kerr v. Miami-Dade Cnty., 856
F.3d 795, 814 (11th Cir. 2017) (quotation marks omitted). The Es-
tate asserts that we should require courts to give an instruction spe-
cific to deadly force in circumstances like the ones in this case. Cf.,
e.g., Rasanen v. Doe, 723 F.3d 325, 334 (2d Cir. 2013) (holding that
a “special instruction based on Garner” is necessary “in the original
Garner context: the fatal shooting of an unarmed suspect”) (citing
Tennessee v. Garner, 471 U.S. 1 (1985)).
But “Garner did not establish a magical on/off switch that
triggers rigid preconditions whenever an officer’s actions consti-
tute ‘deadly force.’ Garner was simply an application of the Fourth
Amendment’s ‘reasonableness’ test.” Scott v. Harris, 550 U.S. 372,
382 (2007); see also Penley, 605 F.3d at 849–50 (reaffirming that
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20 Opinion of the Court 20-13542
Fourth Amendment excessive force claims involving deadly force
are analyzed under an objective reasonableness standard).
We have affirmed the use of the pattern instructions in
deadly police shooting cases before, see, e.g., Knight, 856 F.3d at
815, and we do so again here. “The principal question in this case
is whether . . . it was reasonable for [the deputies] to use deadly
force on [Greer].” Greer I, 767 Fed. App’x at 710. Because the jury
instructions posed that question and accurately stated the law, they
fell within the district court’s “wide discretion as to the style and
wording employed in the instructions.” Palmer v. Bd. of Regents
of the Univ. Sys. Of Ga., 208 F.3d 969, 973 (11th Cir. 2000). 5
AFFIRMED.
5 The Estate also, somewhat inexplicably, argues that the district court should
have instructed the jury that the proper standard is “whether the suspect poses
an immediate threat to the safety of the officers or others,” instead of the in-
struction that was given: “whether a suspect poses an immediate violent threat
to others.” Because “others,” used alone, encompasses everyone else, includ-
ing the officers, that argument fails.
USCA11 Case: 20-13542 Date Filed: 07/25/2022 Page: 21 of 24
JORDAN, Circuit Judge, Concurring:
I join Parts I, II, and III of the court’s opinion. As to Parts IV
and V, I concur in the judgment.
As to Part IV, I conclude that the district court erred in forc-
ing the Estate to choose between its state and federal claims at trial.
So long as it is not “conceded or established” that a requested rem-
edy is unavailable, a “district court err[s] in requiring the plaintiff
to elect” which remedy he or she pursues. See Pulliam v. Gulf
Lumber Co., 312 F.2d 505, 507 (5th Cir. 1963). This is not surpris-
ing, for the Federal Rules of Civil Procedure allow plaintiffs to
plead alternative—even inconsistent—theories of recovery. See,
e.g., Banco Cont’l v. Curtiss Nat. Bank of Miami Springs, 406 F.2d
510, 513 (5th Cir. 1969) (Rule 8 “makes it clear that the requirement
of honesty in pleading does not force a party to select a single the-
ory to the exclusion of all others if he is not sure of the basis for
recovery or defense”) (internal quotation mark and citation omit-
ted). Absent other legal problems, the plaintiff is entitled to submit
those alternative claims to a jury. See, e.g., Fed. R. Civ. P. 18(a) (“A
party asserting a claim, counterclaim, crossclaim, or third-party
claim may join, as independent or alternative claims, as many
claims as it has against an opposing party.”); Breeding v. Massey,
378 F.2d 171, 178 (8th Cir. 1967) (“The right of a plaintiff to try his
case on alternate theories has uniformly been upheld in the federal
courts and [a] plaintiff cannot be required to elect upon which the-
ory to proceed.”); United Roasters, Inc. v. Colgate-Palmolive Co.,
649 F.2d 985, 990–91 (4th Cir. 1981) (“To the extent that each
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2 Opinion of the Court 20-13542
theory had legal validity as applied to the operative facts, the plain-
tiff was entitled to have both theories submitted to the jury, and
should not have been required to make the election it did.”).
Nevertheless, I agree that the error was harmless. Florida
law provides that “[a]n officer . . . may not be held personally liable
in tort . . . for any injury or damage suffered as a result of any act,
event, or omission of action in the scope of her or his employment
or function, unless such officer . . . acted in bad faith or with mali-
cious purpose or in a manner exhibiting wanton and willful disre-
gard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a).
In the Estate’s first appeal before us, we concluded that there was
a genuine issue of fact as to whether the deputies exhibited “wan-
ton and willful disregard of human rights, safety, and property,” §
768.28(9)(a), and we recognized that evidence of an officers’ exces-
sive force could be probative of wanton and willful disregard. See
Greer v. Ivey, 767 F. App’x 706, 712 (11th Cir. 2019). The jury here
concluded that the Estate failed to show that the officers’ use of
force was unreasonable under the circumstances. As a result, the
Estate could not show that the officers’ conduct was wanton and
willful to human life and safety—a higher standard than unreason-
ableness—under § 768.29(9)(a). The district court’s error in failing
to submit both the state and federal claims to the jury was therefore
harmless.
With respect to Part V, I agree that the district court’s deci-
sion to instruct the jury using our pattern excessive force instruc-
tion, rather than a more specific deadly force instruction, was not
USCA11 Case: 20-13542 Date Filed: 07/25/2022 Page: 23 of 24
20-13542 Opinion of the Court 3
an abuse of discretion. See Acosta v. Hill, 504 F.3d 1323, 1324 (9th
Cir. 2007) (holding, in light of Scott v. Harris, 550 U.S. 372 (2007),
that the district court did not err in “refusing to give a separate
deadly force instruction”). Nevertheless, using an instruction spe-
cifically tailored to deadly force is the better practice. See generally
United States v. Focia, 869 F.3d 1269, 1283 (11th Cir. 2017) (recog-
nizing that the pattern jury instructions “are not infallible” and “do
not represent binding law”).
A claim of “excessive force in the course of making an arrest,
investigatory stop, or other ‘seizure’ of [a] person . . . [is] properly
analyzed under the Fourth Amendment's ‘objective reasonable-
ness’ standard.” Graham v. Connor, 490 U.S. 386, 388 (1989).
“Where the officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape by
using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).
Two of our sister circuits have concluded that failure to pro-
vide a deadly force instruction can amount to reversible error in
some scenarios. See Rahn v. Hawkins, 464 F.3d 813, 818 (8th Cir.
2006) (“When a plaintiff presents evidence at trial tending to show
that a defendant used deadly force, the district court must instruct
the jury as to that more exacting standard.”) (internal citation omit-
ted); Rasanen v. Doe, 723 F.3d 325, 333 (2d Cir. 2013) (“In a case
involving use of force highly likely to have deadly effects, an in-
struction regarding justifications for the use of deadly force is re-
quired.”). The Second Circuit reasoned that the failure to give a
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4 Opinion of the Court 20-13542
deadly force instruction “‘deprive[s] the jury of adequate legal guid-
ance to reach a rational decision’ on a case’s fundamental issue”
and such an error may “fatally subvert[ a] trial’s integrity.”
Rasanen, 723 F.3d at 334–35. And the Eighth Circuit explained that
“[j]ury instructions that discuss excessive force in only a general
way do not adequately inform a jury about when a police officer
may use deadly force,” and instructing the jury on Garner’s “more
exacting standard” is necessary. See Rahn, 464 F.3d at 818 (internal
citations omitted).
I agree with the Second and Eighth Circuits that the Garner
standard “is more detailed and demanding than the one that gov-
erns excessive-force claims not including deadly force” and “the
more general . . . instruction” may not give the jury the clearest
understanding possible “as to what is permissible under the law.”
Rahn, 464 F.3d at 818 (internal citations omitted). Using a more
tailored deadly force instruction to guide juries—especially in what
are often difficult cases—makes good sense.