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Harris v. Coweta County, Georgia
United States District Court, N.D. Georgia, Atlanta Division.September 25, 2003Not Reported in F.Supp.2d (Approx. 11 pages)
Harris v. Coweta County, Georgia
United States District Court, N.D. Georgia, Atlanta Division.September 25, 2003Not Reported in F.Supp.2d (Approx. 11 pages)
Only the Westlaw citation is currently available.
United States District Court,
N.D. Georgia, Atlanta Division.Victor HARRIS, Plaintiff,
v.
COWETA COUNTY, GEORGIA, Sheriff Michael S. Yeager, Sgt. Mark Fenninger, Deputy Clinton D. Reynolds, and Deputy Timothy Scott, Defendants.
No. CIVA 3:01CV148 WBH.
Sept. 25, 2003.
Attorneys and Law Firms
Andrew C. Clarke, Borod & Kramer, P.C., Memphis, TN, Craig Thomas Jones, Edmond & Jones, Atlanta, GA, for Plaintiff.
Philip Wade Savrin, Sun S. Choy, Freeman Mathis & Gary, Atlanta, GA, for Defendants.
ORDER
HUNT, J.
*1 Before the Court is Defendants' motion for summary judgment [36]. Also before the Court is Defendants' motion to amend answer [65], which is granted as unopposed. For the reasons set forth below. Defendants' motion for summary judgment is granted in part and denied in part.
BACKGROUND
As this case is before the Court on Defendants' motion for summary judgment, the Court must view the facts in the light most favorable to Plaintiff, the non-movant. Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). Viewed in this light, the following facts emerge.
The chase
At 10:42 p.m. on March 29, 2001, Deputy Clinton Reynolds of the Coweta County Sheriff's Office was stationed on Highway 34 when he clocked Plaintiff Victor Harris's vehicle traveling at 73 miles per hour in a 55 miles-per-hour zone. The vehicle that Harris was driving was registered in Harris's name and at his proper address. Although Reynolds flashed his blue lights, Harris refused to slow down and continued driving. According to Harris, he refused to stop because he was scared, wanted to get home, and was hoping to avoid an impound fee for his car.
Reynolds made a decision to pursue Harris, and followed the vehicle in the direction of Peachtree City, using his flashing lights in an attempt to get Harris to stop. Just past Sullivan Road, Reynolds caught up with Harris and turned on his lights and siren, which activated his video camera. Harris still refused to stop and then sped up, beginning a high-speed chase. Harris admits that during the course of the pursuit, he drove well in excess of the speed limits, passed vehicles on a double yellow line, and ran a red light at the intersection of Highway 34 and Fisher Road. Despite these traffic violations, Plaintiff contends that he used his turn signals when passing or turning, and maintained control over his vehicle.1
After Harris refused to stop, Reynolds radioed dispatch and reported that he was pursuing a fleeing vehicle, and he broadcast its license plate number. Reynolds did not, however, broadcast the underlying charge (speeding). Although not specifically requested to join the pursuit, Coweta County Deputy Chuck Scott heard Reynolds' radio communication and decided to join the pursuit.
After crossing into Peachtree City, Harris slowed down, activated his blinker, and turned into a drugstore parking lot located in a shopping complex. Reynolds followed Harris as he drove through the parking lot toward Highway 74 while Scott proceeded around the opposite side of the complex in an attempt to prevent Harris from leaving the parking lot and getting onto Highway 74. The parties dispute what happened next. According to Harris, Scott drove his vehicle directly into Harris's path, while Reynolds was in pursuit from behind. When he realized that Scott was in his lane of traffic, Harris attempted to turn to the left to avoid hitting Scott's car, but the two vehicles came in contact with each other, causing minor damage to Scott's cruiser.2 Harris then entered Highway 74 and continued to flee at a high speed. At that time, Sgt. Mark Brown of the Peachtree City Police Department ordered his fellow Peachtree City officers to block intersections from cross-traffic.
*2 As the pursuit continued through Peachtree City, Scott took over as the lead vehicle. After leaving the parking lot and getting on Highway 74, Scott requested and obtained approval from his supervisor, Sergeant Mark Fenninger, to make physical contact with Harris's vehicle in what is termed a “PIT” maneuver.3 Although unaware of the underlying offense of which Harris was suspected, Scott wanted to use the PIT maneuver to end the chase as soon as possible because he felt that Harris was acting in a reckless and extremely dangerous manner. At the time the request was made, there were no motorists or pedestrians in the area, which was due, in part, to the Peachtree City officers' decision to blockade intersections.
While it is disputed whether Fenninger knew about the collision between Harris and Scott in the parking lot, the evidence indicates that Fenninger was concerned about the safety of pedestrians and felt that Harris had to be stopped. In granting Scott permission to make contact with Plaintiff's vehicle, Fenninger stated over the radio, “Go ahead and take him out. Take him out.” According to Harris's version of the facts, Fenninger was never made aware that the pursuit originated with a speeding violation.
After receiving approval from Fenninger to make contact with Harris's vehicle, Scott determined that he could not perform the PIT maneuver because he was going too fast. Scott then decided to hit Harris's bumper, presumably in a manner different from a PIT maneuver. The parties dispute whether Scott slowed down or sped up, but they agree that he ran his cruiser into Harris's vehicle, causing Harris to lose control. Harris's vehicle left the roadway, ran down an embankment, and crashed. As a result, Harris was rendered a quadriplegic. No one else was injured.
Coweta County's policies
Under the vehicle pursuit policy of the Coweta County Sheriff's Office in effect at the time of the incident, decisions regarding the initiation, continuation, and termination of pursuits were left to the discretion of the officer and supervisor in the field. Specifically, the policy states that “the pursuing deputy should keep in mind his personal safety and try everything within his authority to apprehend the violator without resorting to a high-speed chase.” This type of policy, which leaves the decision about pursuits to the discretion of the officer in the field and the supervisor, is called a “judgmental policy.” Across the country, a majority of police departments had such judgmental policy in force at the time of the incident involving Harris.
Included in the pursuit policy is a provision that “deliberate physical contact between vehicles at any time may be justified to terminate the pursuit upon the approval of the supervisor.” Additionally, the policy states that the officer should discontinue the pursuit when “upon weighing the pertinent factors, the gravity of the offense and the prospect of losing the suspect will not balance with the hazards to the Deputy and the public” or “upon receipt of additional information once the pursuit has begun that would allow later apprehension and successful prosecution.”
Training
*3 It is undisputed that Coweta County Sheriff's Deputies had all of the training required by the State of Georgia, including emergency vehicle operations (“EVOC”) training. EVOC training focuses solely on the physical aspects of driving a vehicle in an emergency setting and not on the philosophy of pursuits or pursuit policies. The County also required its officers to have an additional twenty hours of training. The County, however, did not provide any training in high-speed pursuits or the use of deadly force other than that included in basic officer training provided by the state police academy. The only deadly force training provided to Coweta County officers related to firearms. Although the pursuit policy authorized the deputies to make “deliberate physical contact between vehicles” under certain circumstances, the officers were not trained in how to determine whether to make such contact or in how to safely make such contact. Additionally, Scott admitted that he never received any training on the County's policies and procedures, including the pursuit policy.
The lawsuit
On October 16, 2001, Harris filed a Complaint against Scott, Reynolds, and Fenninger, as well as Coweta County and Sheriff Michael Yeager. Pursuant to 42 U.S.C. § 1983, Harris alleges a violation of his rights under the Fourth and Fourteenth Amendments. Furthermore, under state law, he asserts claims under the Georgia Constitution as well as various common law tort claims.
In his response to the motion for summary judgment, Harris concedes that summary judgment is appropriate on the following claims: all claims against Reynolds, all state law claims against Sheriff Yeager, and all other state law claims except for the negligence and battery claims against Scott, Fenninger, and Coweta County. The Court will address each of the remaining claims in turn.
DISCUSSION
Summary judgment standard
Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant carries the initial burden and must show that there is “an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The nonmovant is then required “to go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. “The mere existence of a scintilla of evidence” supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Resolving all doubts in favor of the nonmoving party, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id.
Defendants' motion
I. Federal Claims
A. Fourth Amendment claim against Defendant Scott
*4 In Count I of his Complaint, Harris alleges that Defendant Scott violated his Fourth Amendment rights by using excessive force to stop his vehicle. “The first step in reviewing an excessive force claim is to determine whether the plaintiff was subjected to the ‘intentional acquisition of physical control’ by a government actor-that is, whether there was a ‘seizure’ within the meaning of the Fourth Amendment.” Vaughan v. Cox, No. 00-14380, 2003 U.S.App. LEXIS 18066, at *9-10 (11th Cir., August 29, 2003) (quoting Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)). The Supreme Court has held that a seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” Brower, 489 U.S. at 597. It is clear to the Court that the Brower standard has been met in this case. Scott rammed Harris's vehicle for the purpose of stopping it, and the ramming did, in fact, cause the vehicle to come to a stop. A seizure, therefore, occurred.4
Having concluded that Harris was subjected to a seizure, the Court now turns to the merits of Harris's Fourth Amendment claim that he was subjected to an unreasonable seizure because of Scott's use of excessive force. Such claims are subject to an objective reasonableness inquiry: “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.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97.
In their motion, Defendants argue that there was no constitutional violation because Scott's use of force was non-deadly and was objectively reasonable.5 They contend that Harris presented a significant danger because he was driving recklessly at high speeds and had hit Scott's vehicle. Plaintiff responds that Scott used deadly force, and that such force was unreasonable because Harris was a traffic offender, and the officers could have used alternative means to arrest him at a later time.
Regardless of whether the force was deadly or not, Harris's excessive force claim is judged by the “objective reasonableness” standard set forth in Graham v. Connor. See 490 U.S. 395.6 Graham instructs that the Court must examine the facts carefully and provides three examples of questions relevant to the inquiry: (1) how severe was the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether he was attempting to evade arrest by flight. See Graham, 490 U.S. at 396. Applying the Graham analysis to the facts of this case, the Court concludes that a reasonable jury could find, under Harris's version of the facts, that Scott's use of force was unconstitutional because it was not an objectively reasonable use of force.
*5 The central fact that guides this Court's decision is that, prior to Reynolds' decision to instigate a high-speed chase, Harris's only crime was driving 73 miles per hour in a 55 miles-per-hour zone. A rational fact finder could find that a reasonable officer would not have believed that because of his traffic offense, Harris posed an immediate threat to the safety of others. The record does not reflect that he had menaced or was likely to menace others.
Defendants do not address this point in their brief, rather focusing exclusively on Harris's conduct during the chase. The Court is mindful that traffic laws are designed for public safety and that by breaking these laws-by speeding, improper passing, and even failing to stop-Harris acted in an unsafe manner; however, the record reflects that he maintained control over his vehicle, used his turn signals, and did not endanger any particular motorist on the road. With the exception of the incident with Scott's vehicle in the parking lot, which is addressed below, Harris did not use his vehicle in an aggressive manner.
Defendants argue that the crash in the parking lot between Harris's car and Scott's cruiser demonstrated that Harris presented a significant danger to others. Viewing the facts in Harris's favor, however, it appears that either Scott hit Harris, or that the crash was an accident. According to the official report submitted by Sgt. Mark Brown of the Peachtree City Police Department as well as the testimony of Harris, Scott rammed Harris's car. These facts rebut Defendants' assertion that Harris aggressively used his vehicle to strike Scott's cruiser. Additionally, the decision to ram the vehicle came minutes later, when Harris was driving away from officers, and when there were no other motorists or pedestrians nearby, thus casting doubt on Defendants' assertion that at the time of the ramming, Harris posed an immediate threat of harm to others. Finally, the Court has also considered the fact that the officers had the license plate number for Harris's vehicle, and the vehicle had not been reported stolen. Reasonable officers, therefore, would have known that they could have followed up on the license plate information at a later time.
Under this version of the facts, a fact finder could conclude that when Scott rammed Harris's vehicle, he faced a fleeing suspect who, but for the chase, did not present an immediate threat to the safety of others since the underlying crime was driving 73 miles per hour in a 55 miles-per-hour zone. A jury could also find that Scott's use of force-ramming the car while traveling at high speeds-was not in proportion to the risk that Harris posed, and therefore was objectively unreasonable. See Vaughan, 2003 U.S.App. LEXIS 18066, at *16 (stating that a reasonable jury could conclude that an officer's use of deadly force against two fleeing suspects was unreasonable where the officer “simply faced two suspects who were evading arrest and who had accelerated to eighty to eighty-five miles per hour in a seventy-miles-per-hour zone in an attempt to avoid capture.”) Thus, a fact issue remains regarding whether Scott violated the Fourth Amendment by using excessive force to seize Harris.
*6 Having concluded that the facts alleged could establish a constitutional violation, the Court now turns to Scott's defense of qualified immunity. In deciding whether Scott is protected by qualified immunity, the Court must determine whether Harris's rights were clearly established-that is, whether it would have been clear to a reasonable officer that Scott's conduct was unlawful. See Saucier v. Katz, 533 U.S. 194, 201-202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “It is well-settled that a constitutional right is clearly established only if its contours are ‘sufficiently clear that a reasonable official would understand that what he is doing violates that right.” 'Vaughan,, 2003 U.S.App. LEXIS 18066, at *19 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Thus, “qualified immunity is appropriate in close cases where a reasonable officer could have believed that his actions were lawful.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir.2002). The Supreme Court, however, has cautioned that in applying the qualified immunity analysis, courts should not be unduly rigid, but rather should see if the law gave the defendant “fair warning” that the alleged conduct was unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
At the time of the incident, the law was clearly established that the level of force appropriate in a situation depended, at least in part, on the crime that the fleeing suspect was thought to have committed. See Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (setting forth the standard for the use of deadly force to subdue a fleeing felon and recognizing that common law prohibited the use of deadly force to apprehend a misdemeanant); Graham, 490 U.S. at 396 (stating that one of the factors that an officer should consider is the severity of the crime in issue). In the present case, the facts indicate that Scott did not know the underlying charge when he decided to join in the chase or at the time that he rammed the vehicle. Defendants rely heavily upon the crash in the parking lot to show that Harris was dangerous, but the evidence, when viewed in Harris's favor, indicates that a large part of the responsibility for the parking lot incident rests with Scott who deliberately drove into Harris's line of traffic. Although the Court is loath to question the judgment of police officers and recognizes that Defendants' version of the facts is quite different from Plaintiff's version, the Court is compelled to conclude that there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury. Anderson, 477 U.S. at 251-52. Defendants' motion for summary judgment on this claim is DENIED.
B. Fourth Amendment claim against Defendant Fenninger
It is undisputed that, at the time Scott rammed Plaintiff's car, his supervisor, Defendant Fenninger, was miles away from the accident. “Supervisory officials are not liable under section 1983 on the basis of respondeat superior or vicarious liability.” Hardin v. Hayes, 957 F.2d 845, 849 (11th Cir.1992). To recover individually from a person such as Fenninger in a supervisory administrative capacity, the plaintiff must show that the supervisor is liable either through personal participation in the acts comprising the alleged constitutional violation, or the existence of a causal connection linking the supervisor's actions with the violation. See Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1192 (11th Cir.1994) (overruled in part by Hope v. Pelzer, 536 U.S. 730, 739 n. 9, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
*7 Here, Plaintiff argues that Fenninger is liable for the Fourth Amendment violation because he explicitly authorized Scott to use unreasonable force to stop the vehicle, and, therefore, personally participated in the use of excessive force. Defendants respond that Fenninger cannot be held liable because he did not effect a “seizure” of the vehicle.
The evidence shows that Scott requested and obtained approval from Fenninger to make physical contact by executing a PIT maneuver. Fenninger granted permission without inquiring about the underlying crime for which Harris was being pursued, and without asking whether there were any motorists or pedestrians in the area. Fenninger authorized the force, even though neither he nor Scott were trained in how to safely carry it out. In granting Scott permission to undertake this dangerous act, Fenninger stated over the radio, “Go ahead and take him out. Take him out.”
The Court agrees with Plaintiff that, to the extent a jury may find a Fourth Amendment violation on the part of Scott, they may also find that Fenninger is liable because he personally participated in the decision to use the excessive use of force by explicitly authorizing it. The fact that he was not physically present at the scene does not absolve him of liability, since a reasonable inference can be drawn that but for his authorization, Scott would not have struck Plaintiff's vehicle. Defendants' motion for summary judgment on this claim is DENIED.7
C. Fourteenth Amendment claim against Defendants Scott and Fenninger
It appears that Plaintiff brought the Fourteenth Amendment claims as alternatives to his Fourth Amendment claims. See Pl.'s Br. at 16-17 (stating that the Court need not address the Fourteenth Amendment claims if it finds a Fourth Amendment violation). Because the Court has denied Defendants' motion for summary judgment on the Fourth Amendment claims, the Court need not address Plaintiff's Fourteenth Amendment claims, and Defendants' motion for summary judgment with respect to these claims, therefore, is GRANTED.8
D. Individual liability against Sheriff Yeager
Plaintiff concedes that Sheriff Yeager did not personally participate in any actions leading to the seizure of Harris, but he contends that Sheriff Yeager may be held liable in his individual capacity for acts or omissions which proximately led to the violation of Harris's rights. Specifically, Plaintiff claims that the Sheriff should have trained his deputies in how to conduct high speed chases, in how to safely effect ramming techniques such as the PIT maneuver, and in how to determine when chases and ramming techniques are appropriate. In some situations, supervisors may be held liable for failing to train and supervise their subordinates adequately. See Dolihite v. Maughon by and through Videon, 74 F.3d 1027, 1052 (11th Cir.1996).
Even assuming, for purposes of this Order, that there was a causal connection between Sheriff Yeager's failure to train and Plaintiff's injuries, this claim fails because the Sheriff is entitled to qualified immunity. The undisputed evidence shows that Coweta County Sheriff's Deputies had all of the training required by the State of Georgia. Plaintiff cites to no law or constitutional right that required Sheriff Yeager to train his employees in the manner suggested by Plaintiff. In the absence of such authority, Sheriff Yeager is entitled to immunity from suit. See Riley v. Newton, 94 F.3d 632, 637 (11th Cir.1996) (granting to sheriff summary judgment on qualified immunity grounds and distinguishing the qualified immunity standard for failure to train claims from the standard applicable to such claims against municipalities). Defendants' motion for summary judgment on this claim is GRANTED.
E. Municipal liability against Coweta County9
*8 In order for Harris to make out a claim for municipal liability under Section 1983, he must identify a municipal policy or custom that caused his injury. See Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir.2003). To establish a county policy, a plaintiff may identify either an officially-promulgated county policy or an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county. See id. “Because a county rarely will have an officially-adopted policy of permitting a particular constitutional violation, most plaintiffs ... must show that the county has a custom or practice of permitting it and that the county's custom or practice is the moving force behind the constitutional violation.” Id. (internal quotations omitted). Plaintiff has articulated two theories for municipal liability: (1) the County had an unconstitutional policy of engaging in high-speed chases to pursue fleeing offenders which is evidenced by the County's failure to discipline its officers and others involved in similar incidents; and (2) the County's failure to properly train and supervise its officers in the face of an obvious need to train constitutes deliberate indifference to the safety of county residents.
1. Failure to discipline
Harris contends that Coweta County has an informal policy or custom allowing its deputies to engage in high-speed chases and use deadly force in inappropriate circumstances. Plaintiff's expert opined that “the custom and practice of the Coweta County Sheriff's Office is to ratify and encourage the use of deadly force against fleeing offenders without regard for the underlying offense or the immediacy and severity of the threat posed by the offender.” As evidence of this informal policy or custom, Plaintiff relies upon the fact that the officers involved in this case were not disciplined and that Defendants have admitted the officers violated no official county policy. Plaintiff's expert also states that the County was on notice of this problem because of two prior incidents involving a deputy named Cox, who he claims had been involved in two prior pursuits in which deadly force was used against violators who were not suspected of violent felonies.
Defendants respond, and the Court agrees, that Plaintiff has not presented sufficient evidence to make out a claim against Coweta County on this basis. First, Plaintiff has presented no evidence that any officially-adopted policy was unconstitutional. Rather, Plaintiff's evidence is that the County's high-speed pursuit policy, described as a “judgmental policy,” is widely used throughout the country, and in fact is adopted by the majority of the jurisdictions.
Second, Plaintiff has not presented sufficient evidence that there was any unofficial custom or practice of engaging in high-speed chases and improperly using excessive force. Plaintiff's expert referenced only two prior high-speed pursuits, and presented no specific evidence regarding the facts of these two incidents.10 Vague references to two prior incidents do not constitute ratification and encouragement of an unconstitutional policy. See Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 998 n. 29 (11th Cir.1990) (noting that an employee's unconstitutional decisions must have been made repeatedly to have become a “custom or usage” of which his or her supervisor must have known and approved.); see also Gilmere v. Atlanta, 737 F.2d 894, 904-05 (11th Cir.1984) (“occasional acts of untrained policemen standing alone are not attributable to city policy or custom). Additionally, the failure of the County to discipline the officers or conduct an investigation into this particular incident is insufficient evidence to establish a custom. Without evidence that the County persistently failed to discipline officers for such known unconstitutional conduct, such a policy cannot be inferred from the County's isolated decision not to discipline the officers involved in this incident. See McQurter v. City of Atlanta, 572 F.Supp. 1401, 1420 (N.D.Ga.1983) (Forrester, J.) (internal citations omitted) (refusing to infer a policy of using excessive force based on evidence of a failure to discipline in one case only). For these reasons, Defendants' motion for summary judgment on this claim is GRANTED.
2. Failure to train
*9 A municipality can be held liable under Section 1983 for inadequately training or supervising its employees only in limited circumstances. The inadequate training or supervising must evidence the municipality's “deliberate indifference” to the rights of the inhabitants so as to amount to a policy or custom that is actionable under Section 1983. See Gold v. City of Miami, Fla., 151 F.3d 1346, 1350 (11th Cir.1998) (quoting City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Deliberate indifference is shown by “evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Id.
One of the ways a plaintiff may demonstrate a county's deliberate indifference is by showing that the need for a particular type of training is obvious, even without prior incidents to place the municipality on notice. Young v. City of Augusta, Ga., 59 F.3d 1160, 1172 (11th Cir.1995). One example of such an obvious need is the use of deadly force where firearms are provided to police officers. See Gold, 151 F.3d at 1352. Here, Plaintiff argues, and the Court agrees, that there was an obvious need for training with respect to high-speed chases since the Coweta County officers were vested with the discretion to embark on high-speed chases and were allowed to ram vehicles under certain circumstances.11 Indeed, the official pursuit policy authorized this conduct.
At his deposition, Sheriff Yeager testified that high-speed pursuits and PIT maneuvers are high risk activities that create an obvious need for training. Plaintiff's expert has also opined that pursuit driving and ramming techniques such as that used by Scott against Harris are high-risk activities which obviously require training. Thus, the Court concludes that Plaintiff has provided sufficient evidence to create a fact issue as to whether giving a police officer a vehicle and the discretion to use it in an offensive-and perhaps deadly-manner creates a need to train that is ‘so obvious' that, even without notice of prior constitutional violations, the County had a duty to train. See Gold, 151 F.3d at 1352; see also Brown v. Bryan County, 219 F.3d 450, (5th Cir.2000) (finding that the need to train officers in how to make arrests with force is so obvious that the failure to train in this area amounts to deliberate indifference to constitutional rights). Thus, a fact issue remains on the issue of whether the County's failure to train amounted to deliberate indifference.
As a final argument, Defendants respond that Plaintiff has failed to present competent evidence that the lack of training was the “moving force” behind, i.e., directly caused, the injuries suffered by Harris. The Court is not persuaded by this argument. A reasonable inference can be drawn from Plaintiff's evidence that a training course would have taught the officers to consider the underlying offense and whether other means-such as tracing the license plate number-could be used to capture the suspect at a later time. Another reasonable inference is that, had the officers attended such a training course, they would have considered these factors, applied them in a reasonable manner, and decided against ramming Harris's car, and perhaps even against embarking on the chase in the first place.
*10 Given these conclusions, the Court finds that Harris has carried his summary judgment burden of showing that the County's failure to train its officers constituted a policy decision for which the County can be held liable under Section 1983. Defendants' motion for summary judgment on this claim, therefore, is DENIED.
II. State Claims
A. Negligence and battery claims against Defendants Scott and Fenninger
Plaintiff alleges that Scott was negligent by (1) attempting a PIT maneuver at high speeds on a two-lane road without any training; (2) operating his vehicle in an unsafe manner; and (3) ramming Plaintiff's vehicle. Plaintiff alleges that Fenninger was negligent in authorizing Scott's conduct without first obtaining the information necessary to evaluate the situation and make a proper decision. Defendants do not dispute that Plaintiff has made out a prima facie case of negligence, but rather respond that the officers are entitled to official immunity.
County employees are immune from liability unless they negligently perform ministerial tasks or act with actual malice in performing discretionary tasks. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d); Gilbert v. Richardson, 264 Ga. 744, 747, 452 S.E.2d 476 (1994). The decision to make an arrest is a discretionary act. See Anderson v. Cobb, 258 Ga.App. 159, 160, 573 S.E.2d 417 (2002). Plaintiff contends that his evidence supports a finding that Defendants Scott and Fenninger acted with actual malice because (1) both officers admit that the ramming of the car was deliberate and likely to cause harm and (2) Fenninger stated “take him out.”
The evidence in this case demonstrates that Scott and Fenninger's intention was to stop Plaintiff's car-not to injure him. While Plaintiff may credibly argue that the officers violated his constitutional rights, his evidence simply does not support a conclusion that the officers intended to harm him. See Anderson, 258 Ga.App. at 160, 573 S.E.2d 417 (stating “[i]ll will alone is insufficient to establish actual malice; [the plaintiff] must show that [the defendant] acted with the deliberate intent to commit a wrongful act or with the deliberate intent to harm [him].”). In the absence of evidence of actual malice, Scott and Fenninger are immune from the state law claims, and Defendants' motion for summary judgment on these claims is GRANTED.
B. Negligence claim against Coweta County
Despite the general rule that counties have sovereign immunity from tort claims, Plaintiff asserts that Coweta County nevertheless can be held liable for the state-law torts allegedly committed by Defendants Scott and Fenninger because Coweta County has waived its immunity pursuant to O.C.G.A. § 33-24-51. That Code section provides, in part, that:
The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. Neither the municipal corporation, county, or political subdivision of this state nor the insuring company shall plead governmental immunity as a defense; and the municipal corporation, county, or political subdivision of this state or the insuring company may make only those defenses which could be made if the insured were a private person.
*11 O.C.G.A. 33-24-51(b). Thus, by purchasing liability insurance to cover the negligence of county employees arising from the use of a motor vehicle, a county waives sovereign immunity pursuant to O.C.G.A. § 33-24-51(b), but only to the extent of the amount of insurance. See Woodard v. Laurens County, 265 Ga. 404, 406, 456 S.E.2d 581 (1995).12
Here, it is undisputed that Coweta County maintains insurance to cover it and its employees for any state tort liability arising from the use of county vehicles driven by its sheriff's deputies. It is also undisputed that the vehicle driven by Scott was owned by Coweta County and was covered by the County's insurance. It is clear to the Court that, pursuant to O.C.G.A. § 33-24-61(b), Coweta County has waived sovereign immunity with respect to Plaintiff's negligence claims against Defendants Scott and Fenninger.
Defendants next argue that even if there is a waiver of sovereign immunity, the general negligence standard does not apply and that Plaintiff must show that the officers acted with “reckless disregard” of public safety. In support of this argument, Defendants rely upon O.C.G.A. § 40-6-6 which, among other things, governs the operation of a law enforcement vehicle when pursuing a suspected law violator. This code section gives police officers authority to proceed past a red signal or stop sign after slowing down, exceed the maximum speed limits so long as life and property are not endangered, and disregard regulations governing direction. See O.C.G.A. § 40-6-6(b). “By these provisions, the legislature intended to grant police officers and drivers of emergency vehicles exceptional rights in operating motor vehicles, but also to protect travelers from an officer's or driver's reckless disregard of the public's safety on the highways.” Cameron v. Lang, 274 Ga. 122, 127-28, 549 S.E.2d 341 (2001). The code section also specifically addresses police pursuits:
When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer's pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer's decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.
O.C.G.A. § 40-6-6(c)(2) (emphasis supplied).
Plaintiff responds, and the Court agrees, that this statute is inapplicable to the present case. The statute specifically provides that “the law enforcement officer's pursuit” shall not be the proximate cause of an injury unless the officer acts with reckless disregard. Here, Plaintiff's negligence claim is not based on the officers' decision to initiate and pursue the chase; rather, it is based on the officers' decisions to ram Plaintiff's vehicle. Moreover, section § 40-6-6(b) provides law enforcement officers with specific “exceptional rights,” and the right to ram another car is not listed as one of those rights.
*12 As stated previously, Defendants do not dispute that Plaintiff has made out a prima facie case of negligence. The Court concludes that Plaintiff has provided sufficient evidence to make out a prima facie case of negligence against Scott for ramming Plaintiff's vehicle at high speeds on a two-lane road without any training and against Fenninger for authorizing Scott's allegedly negligent use of his county vehicle without first obtaining the information necessary to evaluate the situation and make a proper decision. Accordingly, Defendants' motion for summary judgment on the negligence claim against Coweta County is DENIED.
CONCLUSION
Defendants' motion for summary judgment [36] is GRANTED IN PART and DENIED IN PART. After this ruling, the following claims remain pending: Fourth Amendment claim against Defendants Scott and Fenninger in their individual capacities; municipal liability claim for failure to train against Coweta County; and negligence claim against Coweta County based on the acts of Defendants Scott and Fenninger. All other claims are hereby dismissed.
Defendants' motion to amend their answer [65] is GRANTED AS UNOPPOSED.
It is so ORDERED.
All Citations
Not Reported in F.Supp.2d,Footnotes
The speed of the chase is disputed. Defendants contend that it was in excess of 100 miles per hour. Plaintiff denies that he drove that fast, but agrees that Scott, in his “overzealousness to join the pursuit” drove his cruiser at speeds well over 100 miles per hour.
Defendants assert that Harris was boxed in by the officers and deliberately rammed Scott's cruiser in an attempt to get away. Harris maintains that the crash was unintentional.
A PIT maneuver is a driving technique designed to stop a fleeing motorist safely and quickly by hitting the fleeing car at a specific point which throws the car into a spin the driver cannot control, bringing the car to a stop.
Defendants essentially concede that a seizure occurred. In their brief, they argue that officers Reynolds and Fenninger did not seize Plaintiff, but they do not include Scott in this argument. See Defs.' Br. [36] at 10-12.
In support of this argument, Defendants rely exclusively upon dicta from Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563 (11th Cir.1992); rev'd, 998 F.2d 923 (11th Cir.1993 (per curiam). In Adams, the defendant officer intentionally rammed a fleeing misdemeanant several times following a high-speed pursuit through a residential neighborhood, and the final blow caused the car to go out of control. The car crashed, and the passenger was killed. The Eleventh Circuit struggled with this case, initially affirming the denial of summary judgment on qualified immunity grounds, see 962 F.2d at 1572, and then issuing a subsequent opinion reversing the denial of summary judgment for the reasons set forth in Judge Edmonson's dissent in the original opinion, see 998 F.2d 923. Judge Edmonson reasoned that the officers were entitled to qualified immunity because in 1985, the law was not clearly established that ramming a vehicle constituted a seizure. See id. at 1576. He then goes on to opine that ramming a fleeing vehicle did not constitute a violation of the Fourth Amendment. See id. at 1577.
In the two-sentence second opinion, the Court did not adopt Judge Edmonson's dissent as its opinion, but rather reversed the district court based on the “reasoning” of the dissent. This Court concludes that the reasoning of the dissent focused on qualified immunity and whether the law with respect to seizures was clearly established. Thus, Judge Edmonson's discussion of whether ramming a vehicle constitutes a Fourth Amendment violation is dicta. Moreover, the Court's “reasoning” with respect to qualified immunity is called into question by the Supreme Court decision in Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), and the Eleventh Circuit's recent decision in Vaughan, 2003 U.S.App. LEXIS 18066.
Because the “objective reasonableness” standard applies regardless of whether the force applied was deadly or not, this Court need not decide whether Scott used deadly force.
Defendants do not specifically argue that Fenninger is entitled to qualified immunity, but the Court has considered this issue. For the same reasons that Scott is not entitled to qualified immunity as a matter of law, the Court concludes that Fenninger is not entitled to qualified immunity as a matter of law.
Additionally, the Court concludes that the Fourteenth Amendment claim, based on Scott's alleged conscience-shocking conduct, lacks merit. There is no evidence that Scott had “a purpose to cause harm unrelated to the legitimate object of arrest.” See Lewis, 523 U.S. at 836; see also County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (stating that the Fourteenth Amendment applies to high-speed pursuits only if there has been no seizure to implicate the Fourth Amendment).
Harris has also sued Sheriff Yeager and the deputies in their official capacities. A claim against these defendants in their official capacities is the same as a claim against Coweta County. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Because suits against county officials in their official capacities are the functional equivalent of a suit against the county, there is no need to bring official-capacity actions against local governmental officials. Defendants' motion for summary judgment on these claims, therefore, is GRANTED. See Busy v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991).
The Court, of course, is familiar with the facts of at least one of Deputy Cox's high-speed chases, which are recounted in the various opinions issued by the Eleventh Circuit. Seee.g.Vaughan, 2003 U.S.App. LEXIS 18066. The Court, however, does not have sufficient facts before it to determine, as a matter of law, that the County had a custom or practice of permitting such chases or permitting the inappropriate use of deadly force. Moreover, Plaintiff has presented no competent evidence concerning the County's alleged failure to discipline Cox.
While the Court has discounted Plaintiff's vague evidence regarding prior incidents, the facts of Vaughan demonstrate that, at the time of the incident involving Harris, Coweta County certainly knew that its officers had the means as well as the discretion to embark on dangerous high-speed chases and to use force during those chases.
Plaintiff asserts that sovereign immunity is waived not only for the negligent acts of county employees, but also for the intentional torts of those employees, but he has provided no authority for this position. Accordingly, Defendants' motion for summary judgment on all state law claims other than negligence against the County is GRANTED.
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