Eleventh Circuit Finds Police Officer Not Entitled to Qualified Immunity in Shooting Death

In Perez v. Suszczynski, No. 14–13619, 2016 WL 125269 (11th Cir. Jan. 12, 2016), the Eleventh Circuit upheld denial of defendant’s summary judgment motion claiming qualified immunity in connection with a shooting death.

Officers responded early one morning to an altercation between two women at a sports bar. Upon arrival, the officers ordered everyone in the parking lot of the bar onto the ground. The decedent, Victor Arango, laid down on his stomach as ordered, offered no resistance, with his hands behind his back. After a deputy removed a handgun from Arango’s waistband, defendant officer, Michael Suszczynski, shot Arango in the back, execution-style. Arango’s estate (Plaintiff) sued the officer for use of excessive force under 42 U.S.C. § 1983. Defendant moved for summary judgment on grounds that he enjoyed qualified immunity. The district court denied the motion and defendant appealed.

The Eleventh Circuit first noted that because defendant was acting in a discretionary capacity in attempting to restrain the decedent, he could be entitled to qualified immunity. In order to survive summary judgment, Plaintiff had to establish Defendant was not entitled to qualified immunity by showing: 1) Defendant violated a constitutional right of the decedent and 2) the constitutional right was clearly established at the time of the incident.

The court first found that Defendant had violated the decedent’s Fourth Amendment right to be free from excessive force. An officer may only use deadly force when the officer: 1) has probable cause to believe the suspect poses a threat of serious harm; 2) reasonably believes deadly force is necessary; and 3) has warned the suspect, if feasible, about possible use of deadly force. The court determined that because the decedent was compliant, laying prostrate, and unresisting, Defendant did not have probable cause to believe the decedent posed a threat of serious harm, nor did Defendant have a reasonable belief that deadly force was necessary. Moreover, there was no indication that Defendant warned the decedent about the potential use of deadly force.

The court further found that the constitutional right to be free from excessive force was clearly established at the time of the incident. The court pointed to both Supreme Court and Eleventh Circuit precedent holding that the use of deadly force against a non-resisting suspect who posed no danger violated the suspect’s Fourth Amendment rights. The court went even further and stated that even in the absence of such precedent, the officer’s conduct was so “inherently violative” of the Fourth Amendment that any reasonable officer would have known the conduct was unlawful. As such, Defendant was not entitled to qualified immunity at this juncture.

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