No Qualified Immunity for Deputy and Failure to Investigate Not “Ratification” by Sherriff in Shooting of Unarmed and Retreating Suspect

In Salvato v. Miley, 790 F.3d 1286 (11th Cir. 2015), the Eleventh Circuit evaluated the availability of qualified immunity for a deputy against a 42 U.S.C. § 1983 claim brought by Salvato’s estate and determined whether the sheriff of Marion County’s failure to investigate amounted to a “ratification” of the deputy’s conduct so as to render him liable in his official capacity. Salvato, the decedent, was shot and killed by Deputy Miley when she and another deputy attempted to arrest the decedent after responding to a complaint that he was yelling at passing cars. After another deputy ordered the decedent to the ground at gunpoint, the decedent resisted Deputy Miley’s attempts to handcuff him, exchanged blows with both deputies, and retreated a distance of about ten feet before Deputy Miley shot him without warning. The other deputy then repeatedly discharged his taser while Deputy Miley called for an ambulance and handcuffed the decedent. The sheriff elected not to conduct an internal affairs investigation or to take any disciplinary action, concluding that the state’s criminal investigation was “sufficient.”

In affirming the dismissal of Deputy Miley’s motion for summary judgment, the Eleventh Circuit applied the test for qualified immunity announced by the Supreme Court in Tolan v. Cotton, 134 S. Ct. 1861 (2014), evaluating “whether the right in question was ‘clearly established’ at the time of the violation” so as to “provid[e] ‘fair warning’ . . . that th[e] alleged [conduct] was unconstitutional.” The court held that Deputy Miley’s actions precluded qualified immunity in two ways: 1) her shooting of the apparently unarmed and retreating decedent without warning “clearly established” excessive force; and 2) she was capable, and ought to have intervened to prevent the other deputy’s subsequent use of excessive force. The court first emphasized that the Supreme Court articulated a clear excessive force standard of “objective reasonableness” in Graham v. Connor, 490 U.S. 386, 388 (1989), and cited Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), for the proposition that shooting an apparently unarmed and retreating individual without warning constitutes excessive force. Because of the existence of a clear standard and federal precedent identifying similar uses of force as excessive, the court concluded that Deputy Miley was “fairly warned.” The court then found Deputy Miley additionally liable based on her failure “to take reasonable steps to protect the victim of another officer’s use of excessive force.” Since Deputy Miley called for emergency assistance and handcuffed the decedent while the excessive force was ongoing, the court rejected her contention that she was in shock and ruled that she was both able and in a position to intervene.

While the court agreed with the district court’s denial of Deputy Miley’s motion for summary judgment, the Eleventh Circuit held that the district court erred in rejecting the sheriff’s motion for judgment as a matter of law. Under 42 U.S.C. § 1983, authorities may be held liable in their official capacity for “causing” a constitutional violation through “ratification” of conduct which violates rights if they “approve a subordinate’s decision and the basis for it.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). The court rejected the estate of Salvato’s argument that the sheriff ratified the action by failing to investigate the incident, reasoning that said failure could not possibly have “caused” the violation as it occurred after the fact and noting that “where the plaintiffs rely on a ‘single incident,’ the official must have had an ‘opportunity to review’ the subordinate’s decision.” It went on to distinguish precedent cited by Salvato’s estate as involving official orders or multiple incidents and for crediting post-event evidence only where evidence of prior ratification existed.

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