              Case: 13-11442     Date Filed: 04/07/2014    Page: 1 of 17




                                                                 [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11442
                           ________________________

                      D.C. Docket No. 1:12-cv-00228-WS-N



WINSTON GAILLARD,
as personal representative of the estate of
Jermaine Gaillard, deceased,

                                                     Plaintiff - Appellee,

versus

SAMUEL COMMINS,

                                                     Defendant - Appellant,

CITY OF SATSUMA,

                                                     Defendant.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                           ________________________

                                   (April 7, 2014)
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Before HULL, Circuit Judge, and WALTER, * District Judge, and GOLDBERG, **
Judge.

HULL, Circuit Judge:

       Defendant-Appellant Samuel Commins is a police officer for the City of

Satsuma, Alabama. Officer Commins was part of a high-speed chase that ensued

after a vehicle suspected of transporting multiple kilograms of cocaine fled a traffic

stop. Jermaine Gaillard was a passenger in the suspect vehicle. Eventually, the

suspect vehicle spun out of the road and came to a stop. An unarmed Gaillard

abandoned the vehicle and fled on foot. Officer Commins then turned his police

vehicle towards Gaillard’s running path, accelerated, and struck Gaillard. Gaillard

died from the injuries sustained in the collision.

       Plaintiff-Appellee Winston Gaillard is the personal representative of

Jermaine Gaillard’s estate.1 He brought suit against Officer Commins alleging

state-law claims and various federal constitutional violations under 42 U.S.C.

§ 1983. The district court denied summary judgment as to Gaillard’s (1) Fourth

Amendment, (2) substantive due process, (3) procedural due process, and (4) free

speech claims. The district court also denied summary judgment on Gaillard’s

      *Honorable Donald E. Walter, United States District Judge for the Western District of
    Louisiana, sitting by designation.

        **Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
       1
        We will refer to both Plaintiff Winston Gaillard and the deceased Jermaine Gaillard as
“Gaillard.”
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state-law wrongful death claim premised on willful and malicious acts. After

careful review of the record and the briefs, and with the benefit of oral argument,

we affirm in part and reverse in part.

              I. GAILLARD’S FOURTH AMENDMENT CLAIM

      Gaillard’s amended complaint alleged that Officer Commins intentionally

struck the unarmed Gaillard with his police vehicle to effect an arrest. This,

according to Gaillard, was excessive force and thus constituted an unreasonable

seizure under the Fourth Amendment. Officer Commins argues that he is entitled

to qualified immunity as to Gaillard’s claim.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation

marks omitted). To receive qualified immunity, the government official “must first

prove that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002) (quotation marks omitted).

      “Once the defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that qualified immunity is not

appropriate.” Id. The plaintiff can do so by satisfying “a two prong test; he must


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show that: (1) the defendant violated a constitutional right, and (2) this right was

clearly established at the time of the alleged violation.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (footnote omitted).

      We begin with the first step of the qualified immunity analysis—whether

Officer Commins established that he was acting within his discretionary function.

A.    Discretionary Function

      Officer Commins participated in a police chase to arrest a felony suspect.

Given that this activity falls within a police officer’s job duties and authority,

Officer Commins has established that he was acting within his discretionary

function. See Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011); Jordan v.

Doe, 38 F.3d 1559, 1565-66 (11th Cir. 1994) (qualified immunity is available

when objective circumstances show that a government official acted pursuant to

his job duties and within the scope of his authority); Ferraro, 284 F.3d at 1194

(holding that “there can be no doubt that [the police officer defendant] was acting

in his discretionary capacity when he arrested [the plaintiff]”).

      The district court reached the opposite conclusion after noting that Commins

(1) was off-duty when he joined the police chase and (2) may have violated an

internal police department rule by continuing the pursuit beyond the borders of his

home jurisdiction without obtaining the required approval. But these facts do not

change the calculus: an officer may act within his discretionary function even


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when he is off-duty or when his conduct possibly violates a department policy.

What matters is whether the officer “was (a) performing a legitimate job-related

function (that is, pursuing a job-related goal), (b) through means that were within

his power to utilize.” Harland, 370 F.3d at 1265. Officer Commins’s pursuit of a

fleeing felony suspect easily meets this test.

      The district court erred when it concluded that Officer Commins failed to

establish that he was acting within his discretionary function. We therefore turn to

the next prong of the analysis—whether Plaintiff Gaillard proffered evidence to

establish a constitutional violation.

B.    Constitutional Violation

      1.     Did a Seizure Occur?

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons against unreasonable seizures shall not be violated.” U.S. Const.

amend. IV. A Fourth Amendment seizure occurs “when there is a governmental

termination of freedom of movement through means intentionally applied.” Scott

v. Harris, 550 U.S. 372, 381, 127 S. Ct. 1769, 1776 (2007) (emphasis added).

      Officer Commins argues that he did not intentionally strike Gaillard with his

police vehicle; he contends, instead, that the collision was an accident and thus not

a seizure for purposes of the Fourth Amendment. Viewed in the light most

favorable to Plaintiff Gaillard, however, the record, which includes a video taken


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from Officer Commins’s police vehicle, would support factual findings that Officer

Commins (1) intentionally turned and accelerated his car directly towards the

unarmed Gaillard and (2) intentionally struck Gaillard with the vehicle in an effort

to stop Gaillard’s flight and to make an arrest. It is undisputed that Gaillard was

fleeing on foot in the paved roadway, was wearing a white t-shirt and tan shorts,

was unarmed and fully visible to Officer Commins, and was running from

Commins’s right to left. Officer Commins does not deny that he turned his vehicle

left, accelerated, and struck Gaillard.

      In addition, Plaintiff’s expert, Anthony Sasso, testified that Officer

Commins (1) controlled the path of his vehicle; (2) turned his vehicle left towards

Gaillard’s running path; (3) accelerated from about 22 miles per hour to about 28

miles per hour; and (4) did not hit the brakes until 1.5 seconds after hitting

Gaillard. Sasso opined that Officer Commins could have stopped his vehicle

before striking Gaillard and running him over. As such, the record evidence

would allow a reasonable jury to find that Officer Commins intentionally struck

Gaillard with the police vehicle to stop and arrest him. Intentional use of force to

stop and arrest a suspect is a “seizure” for purposes of the Fourth Amendment. See

Scott, 550 U.S. at 381, 127 S. Ct. at 1776.

      We recognize that Officer Commins contends the collision was an accident

and not an intentional use of force to stop Gaillard’s flight. Officer Commins says


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he had to turn and accelerate his police vehicle to avoid hitting the other fleeing

suspect and another officer who was chasing the suspects on foot. But the video

taken from Officer Commins’s vehicle does not show another police officer at all.

And, although the other suspect is shown briefly, the video does not establish,

conclusively, that Officer Commins needed to turn left and accelerate to avoid

hitting the other suspect.2

       Officer Commins further explains that he accidently hit Gaillard when

Gaillard fell in front of the police car.3 But Plaintiff’s expert Sasso testified that

Gaillard did not fall in front of Commins’s car; instead, Gaillard was knocked to

the ground when the front bumper of the police car hit Gaillard’s legs. Based on

the video and the testimony of plaintiff’s expert, a reasonable jury could reject

Officer Commins’s version of the events and, instead, find that Commins

intentionally struck Gaillard to stop and apprehend him.




       2
         The vision field of the video taken from Officer Commins’s car is arguably narrower
than Office Commins’s entire field of vision during the incident. But, at this stage, the evidence
viewed in the light most favorable to Plaintiff Gaillard does not establish conclusively that
Officer Commins had to turn and accelerate to avoid hitting the other suspect and/or another
officer.
       3
         Officer Commins’s contention is supported by his expert witnesses: one of the defense
experts stated that Gaillard entered the travel path of Officer Commins’s vehicle; another defense
expert opined that Officer Commins did not have adequate time to avoid hitting Gaillard after
Gaillard ran into the vehicle’s path. In short, Officer Commins’s experts opined that there is no
evidence of intentional force.
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      2.     Was the Force Used in the Seizure Objectively Unreasonable?

      Assuming a jury found that Officer Commins’s striking Gaillard was

intentional and thus a “seizure,” the next and separate question is whether a jury

could find that the means and manner in which Officer Commins seized Gaillard

were objectively unreasonable under the circumstances. See Graham v. Connor,

490 U.S. 386, 395-97, 109 S. Ct. 1865, 1871-72 (1989) (holding that a claim of

excessive force in the course of an arrest or other seizure “should be analyzed

under the Fourth Amendment and its ‘reasonableness’ standard”). Because “[t]he

test of reasonableness under the Fourth Amendment is not capable of precise

definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct.

1861, 1184 (1979), “its proper application requires careful attention to the facts

and circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether [the suspect] is actively resisting arrest or attempting to evade

arrest by flight,” Graham, 490 U.S. at 396, 109 S. Ct. at 1872.

      Therefore, a police officer’s “use of force must be judged on a case-by-case

basis from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Jackson v. Sauls, 206 F.3d 1156, 1170 (11th Cir. 2000)

(quotation marks omitted and alterations adopted). “The calculus of

reasonableness must embody allowance for the fact that police officers are often


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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.” Graham, 490 U.S. at 396–97, 109 S. Ct. at 1872. Because “[t]he hazy

border between permissible and forbidden force is marked by a multifactored,

case-by-case balancing test,” Jackson, 206 F.3d at 1170 (quotation marks omitted),

“[t]he test requires weighing of all the circumstances,” Smith v. Mattox, 127 F.3d

1416, 1419 (11th Cir. 1997), and sloshing “through the factbound morass of

‘reasonableness,’” Scott, 550 U.S. at 383, 127 S. Ct. at 1778.

      “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.” Jackson, 206 F.3d at 1170 (quotation marks

omitted and alterations adopted). “An officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor will

an officer’s good intentions make an objectively unreasonable use of force

constitutional.” Graham, 490 U.S. at 397, 109 S. Ct. at 1872.

       At bottom, “[w]e must balance the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” United States v. Place, 462

U.S. 696, 703, 103 S. Ct. 2637 (1983). Given that Officer Commins’s appellate

brief suggests that hitting the fleeing Gaillard with his vehicle was reasonable


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under the circumstances, “we must consider the risk of bodily harm that [Officer

Commins’s] actions posed to [Gaillard] in light of the threat to the public that

[Officer Commins] was trying to eliminate.” Scott, 550 U.S. at 383, 127 S. Ct. at

1778.

        To that end, we conclude that, in the version of events most favorable to

Plaintiff Gaillard, the evidentiary record would allow a jury to find Officer

Commins’s action objectively unreasonable under the circumstances. Importantly,

this is not a case where a high-speed car chase remained in progress. Instead, the

suspects’ vehicle spun off the road and came to a complete stop. An unarmed

Gaillard then abandoned the vehicle and fled on foot. In his deposition, Officer

Commins admitted that when he saw Gaillard running, Gaillard “wasn’t

brandishing a weapon, putting a third party at risk [or] another officer at risk.”

Officer Commins conceded that Gaillard “didn’t show any reason for any deadly

force.”

        Viewing the evidence in the light most favorable to Plaintiff Gaillard, we

conclude that a reasonable jury could find that (1) Officer Commins applied deadly

force when he struck Gaillard with his police vehicle in order to stop and arrest

him and (2) Gaillard was unarmed and did not pose a threat to a police officer or to

a third party. A jury could therefore conclude that Officer Commins’s action was

objectively unreasonable under the circumstances.


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C.    Clearly Established Law

      To defeat Officer Commins’s qualified immunity, Plaintiff Gaillard must

show not only a constitutional violation but also that Officer Commins violated

constitutional law clearly established at the time. “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001).

“If the law did not put the officer on notice that his conduct would be clearly

unlawful, summary judgment based on qualified immunity is appropriate.” Id.

      A plaintiff “can demonstrate that the contours of the right were clearly

established in several ways.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir.

2012). “First, the plaintiffs may show that ‘a materially similar case has already

been decided.’” Id. (quoting Mercado v. City of Orlando, 407 F.3d 1152, 1159

(11th Cir. 2005)). “Second, the plaintiffs can point to a broader, clearly established

principle that should control the novel facts of the situation.” Id. (quotation marks

omitted and alterations adopted). “Finally, the conduct involved in the case may so

obviously violate the constitution that prior case law is unnecessary.” Id.

(quotation marks omitted and alterations adopted).

      Assuming a jury finds that (1) Officer Commins intentionally struck Gaillard

with his police vehicle to effect an arrest (as opposed to an accidental collision),


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and (2) that this action was an objectively unreasonable use of force under the

circumstances, the question is whether there was law clearly established to alert

Officer Commins that his chosen course of conduct would violate the Fourth

Amendment. In Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985), the

Supreme Court explicitly addressed “the constitutionality of the use of deadly force

to prevent the escape of an apparently unarmed suspected felon” fleeing on foot.

Id. at 3, 105 S. Ct. at 1697. The Supreme Court concluded that “such force may

not be used unless it is necessary to prevent the escape and the officer has probable

cause to believe that the suspect poses a significant threat of death or serious

physical injury to the officer or others.” Id.

      To be sure, “Garner did not establish a magical on/off switch that triggers

rigid preconditions whenever an officer’s actions constitute ‘deadly force.’” Scott,

550 U.S. at 382, 127 S. Ct. at 1777. Instead, “Garner was simply an application of

the Fourth Amendment’s ‘reasonableness’ test to the use of a particular type of

force in a particular situation,” id. (citations omitted); specifically, the scenario of

an unarmed burglary suspect fleeing on foot, see Garner, 471 U.S. at 21, 105 S. Ct.

at 1706. Accordingly, Garner does not constitute clearly established law for cases

where, for example, the officer was threatened with a deadly weapon, see Terrell,

668 F.3d at 1257, or when a felon is “set on avoiding capture through vehicular




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flight and persons in the immediate area are at risk from that flight,” see Brosseau

v. Haugen, 543 U.S. 194, 200, 125 S. Ct. 596, 600 (2004) (footnote omitted).4

        But, Garner does clearly establish the law, even in a car chase scenario,

where the suspect “did not use or did not threaten to use his car as a weapon.”

Morton v. Kirkwood, 707 F.3d 1276, 1283 (11th Cir. 2013); Vaughan v. Cox, 343

F.3d 1323, 1327-32 (11th Cir. 2003). And, of course, Garner clearly established

the law for the use of deadly force in the pursuit of an unarmed suspected felon

fleeing on foot. See 471 U.S. at 21, 105 S. Ct. at 1706.

       Viewed in the light most favorable to Plaintiff Gaillard, the facts here are

materially similar to Garner: Officer Commins realized that the vehicle chase was

over and that Gaillard was an unarmed suspected felon fleeing on foot. In that

scenario, Garner clearly put Officer Commins on notice that the use of deadly

force would be objectively unreasonable unless he had “probable cause to believe

that [Gaillard] pose[d] a significant threat of death or serious physical injury to




       4
         See also Pace v. Capobianco, 283 F.3d 1275, 1283 (11th Cir. 2002) (stating that Garner
did not serve as clearly established law “where the fleeing suspect appeared to be dangerous by
virtue of his hazardous driving during the long, nighttime car chase and where the suspect
remained in his automobile with the engine running, even when almost surrounded by officers
and where—IF the chase had ended at all—it had ended (at most) a very few seconds before the
officers fired and, even then, the suspect’s car started driving away again, causing more shots to
be fired”); accord. Adams v. St. Lucie Cnty. Sheriff’s Dep’t, 962 F.2d 1563, 1577 (11th Cir.
1992) (Edmondson, J., dissenting), adopted by 998 F.2d 923, 923 (11th Cir. 1993) (en banc).
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[Commins] or others.” 471 U.S. at 3, 105 S. Ct. at 1697. Garner thus serves as

clearly established law for this case. 5

       In sum, we conclude that Officer Commins has not shown that the district

court erred in denying him summary judgment on the basis of qualified immunity

as to Gaillard’s excessive force claim under the Fourth Amendment.

               II. GAILLARD’S REMAINING FEDERAL CLAIMS

       The district court, however, erred in denying summary judgment to Officer

Commins as to Gaillard’s (1) procedural due process, (2) free speech, and

(3) substantive due process claims. Only the substantive due-process claim merits

discussion.

       The Supreme Court has held that “all claims that law enforcement officers

have used excessive force—deadly or not—in the course of an arrest, investigatory

stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach.” Graham, 490 U.S. at 395, 109 S. Ct. at 1871. Thus,

Gaillard’s claim that Officer Commins violated the Constitution by using his




       5
          We also note that Officer Commins’s police department has explicitly adopted Garner as
its rule for the use of deadly force. Officer Commins was aware of this rule and conceded in his
deposition that deadly force was not warranted in this case. Officer Commins explained that he
did not intend to use deadly force and that the collision was an accident. As noted earlier, a jury
will have to decide whether the collision was an accident or an intentional use of force to
apprehend the fleeing Gaillard.
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vehicle to seize Gaillard is cognizable only under the Fourth Amendment

excessive-force analysis set forth above.

       The district court reasoned, however, that a substantive due process claim

could lie as an alternative theory of recovery. This, according to the district court,

would be viable if the jury concluded that Officer Commins intentionally struck

Gaillard not to arrest him—but to harm him unrelated to the legitimate objective of

arresting Gaillard. While this theory may have legal merit in the abstract, see

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 854, 118 S. Ct. 1708, 1720 (1998), no

evidence here would allow a jury to conclude that Officer Commins intended to hit

Gaillard only to hurt him—totally unrelated to effecting an arrest. Plaintiff

Gaillard has not pointed us to record evidence from which a jury could find, or

even infer, that Officer Commins acted with such sinister purpose. 6

                     III. GAILLARD’S STATE-LAW CLAIMS

       The district court denied summary judgment to Officer Commins on

Gaillard’s state law claim for wrongful death based on willful or malicious acts.

As a peace officer, Commins is generally immune from state-law tort liability

under Alabama Code § 6-5-338. An exception applies for acts committed

“willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or

       6
         The district court granted summary judgment in favor of Officer Commins with respect
to Gaillard’s federal equal-protection claim under the Fourteenth Amendment. This ruling is not
before us in this appeal.

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under a mistaken interpretation of the law.” See Ex parte Cranman, 792 So. 2d

392, 405 (Ala. 2000).

          At this stage, questions of fact remain whether Officer Commins’s conduct

meets one of the criteria sufficient to trigger this exception under Alabama law.

See Morton, 707 F.3d at 1285-86; Ex parte City of Montgomery, 99 So. 3d 282,

293-98 (Ala. 2012); Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254-56, 1267-

68 (11th Cir. 2010); Brown v. City of Huntsville, Ala., 608 F.3d 724, 740-42 (11th

Cir. 2010); Ex parte Nall, 879 So. 2d 541, 546 (Ala. 2003); Ex parte Tuscaloosa

Cnty., 796 So. 2d 1100, 1107 (Ala. 2000); Couch v. City of Sheffield, 708 So. 2d

144, 153–54 (Ala. 1998); Sheth v. Williams, 145 F.3d 1231, 1239-40 (11th Cir.

1998); Wright v. Wynn, 682 So. 2d 1, 2 (Ala. 1996).

          We therefore affirm the district court’s denial of summary judgment as to

Gaillard’s state law claim for wrongful death premised on willful or malicious

acts. 7

                                    IV. CONCLUSION

          For the above reasons, we affirm the district court’s denial of summary

judgment as to Gaillard’s excessive force claim under the Fourth Amendment and

Gaillard’s wrongful-death claim under Alabama state law. We reverse the district


          7
        The district court granted summary judgment in favor of Officer Commins as to
Gaillard’s state-law claims based on negligence or wantonness. This ruling is not part of this
appeal.
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court’s denial of summary judgment with respect to Gaillard’s (1) procedural due

process, (2) free speech, and (3) substantive due process claims. We remand for

the district court to enter judgment for Officer Commins on these three federal

claims and to proceed to trial on Plaintiff Gaillard’s excessive-force claim under

the Fourth Amendment and on Gaillard’s remaining Alabama state-law claim.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




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