         Case: 11-14032   Date Filed: 04/16/2013   Page: 1 of 14


                                                       [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 11-14032
                     ________________________

                   D.C. Docket No. 1:04-cv-01928-CC

TABITHA A. JONES,
ALLISON JONES, JR.,
CAMARIO COLLINS JONES,
ZECOSHA JONES,
ALOJUWAN JONES,
KHALIQ ALEXANDER JONES,
ESTATE OF ALLISON JONES,

                                                        Plaintiffs-Appellants,

                                versus

MARILYN T. STONE,
CHARLES E. FRYE,

                                                      Defendants-Appellees,

CITY OF ATLANTA,

                                                                   Defendant.

                    ___________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                  ____________________________

                            (April 16, 2013)
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Before TJOFLAT, CARNES, and JORDAN, Circuit Judges.

JORDAN, Circuit Judge:

      This appeal arises, as our cases sometimes do, out of tragic circumstances:

after crashing his car into a guard rail in East Point, Georgia, Allison Jones was

shot and killed during a post-wreck encounter with police. Mr. Jones’ estate, his

widow, and his children (collectively, “the Plaintiffs”) sued the two officers

involved, Marilyn Stone and Charles Frye, and their employer, the City of Atlanta,

in federal district court. After an earlier opinion of this Court, a summary judgment

order, and three jury trials narrowed the case, the district court granted the officers’

motion for judgment as a matter of law based on state official immunity. In this

appeal, the Plaintiffs contend that the district court failed to follow our earlier

opinion—in the process going against the law of the case—and assert a number of

errors based upon that failure. They also argue that the district court made several

prejudicial evidentiary mistakes in the third trial. Following oral argument, we find

no error and affirm.

                                           I.

      The Plaintiffs’ lawsuit alleged that Officers Stone and Frye violated Mr.

Jones’ constitutional rights by using excessive force during their encounter with

him. Based on that allegation, the Plaintiffs asserted 42 U.S.C. § 1983 claims


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against the officers and the City, as well as state law claims including negligence,

wrongful death, and negligent supervision. The district court granted summary

judgment in favor of the officers and the City on the § 1983 claims, holding that

the officers had acted reasonably in self defense and therefore had not violated Mr.

Jones’ constitutional rights, that they were due qualified immunity, and that the

City was not liable for their conduct. After resolving the federal claims, the court

declined to exercise jurisdiction over the state law claims. The Plaintiffs appealed.

      In our opinion reviewing the district court’s grant of summary judgment, we

reached a split result: we affirmed on the §1983 claims as to the City and the

officers in their official capacities, but reversed on the §1983 claim as to the

officers in their individual capacities. See Jones v. City of Atlanta, 192 F. App’x

894, 895 (11th Cir. 2006). Reversing as to the officers individually, we noted that

factual questions remained about “whether the officers [had] acted in self defense”

and “within the scope of their discretionary authority when they interacted with

[Mr.] Jones.” Id. at 897–98. Because of those lingering questions, we concluded

that—at the summary judgment stage—we could not say for certain either that Mr.

Jones’ constitutional rights had not been violated or that the officers were due

qualified immunity. As a result, we deemed improper summary judgment in favor

of the officers individually. Id. We decided nothing at all about the merits of the

state law claims, instead vacating the district court’s dismissal to allow the court to

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reconsider whether to exercise jurisdiction over those claims on remand. Id. at 898.

       Upon remand, the district court decided to exercise jurisdiction over the

Plaintiffs’ state law claims and found that sovereign immunity barred them as to

both the City and the officers in their official capacities. It therefore granted

summary judgment to the City and the officers officially on those claims. The case

then went to trial three times. At the first trial, a jury found in favor of the officers

individually on the §1983 claim but could not reach a verdict on the state law

negligence claim against them. At the second trial, which dealt only with the

negligence claim, 1 the jury deadlocked, so the district court declared a mistrial. At

the third trial, the jury, using a special verdict form, found that the officers had

been performing discretionary acts during their encounter with Mr. Jones and that

they had acted without actual malice. Based on the jury’s findings, the court ruled

that the officers were due state official immunity and granted their motion for

judgment as a matter of law on the negligence claim. That led to the Plaintiffs’

second appeal.

                                               II.

       The Plaintiffs’ main contention in this appeal is that our earlier opinion

held—without restriction and as a matter of law—that “the officers were not acting


1
  Before the second trial the district court determined that, by failing to object during the first
trial when the court did not charge the jury on any other state law claims, the Plaintiffs had
abandoned all such claims except for negligence.
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in a discretionary capacity when they interacted with Mr. Jones” and therefore

“were not entitled to qualified immunity.” The Plaintiffs argue that this holding is

the “law of the case,” which the district court was bound to follow. They assert that

the district court erred when it acted inconsistently with the holding by, for

example, instructing the juries on state official immunity and granting the officers’

motion for judgment as a matter of law based on their entitlement to that immunity.

      “We review a district court’s ruling on a motion for judgment as a matter of

law de novo.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007).

Although a government actor’s entitlement to immunity is a question of law for the

district court to decide, the court may use a verdict form containing special

interrogatories to have the jury resolve “issues of fact that are determinative” of the

immunity issue. Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996). See also

Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002); Outlaw v. Nasworthy,

250 Ga. App. 362, 364, 551 S.E.2d 785, 788 (2001). And while the law of the case

doctrine, when it applies, bars reconsideration of facts and legal issues decided in

an earlier proceeding, its application “‘depend[s] considerably on the stage a case

has reached when it goes up on appeal . . . .’” Arthur Pew Constr. Co. v. Lipscomb,

965 F.2d 1559, 1581 (11th Cir. 1992) (Tjoflat, J., dissenting) (quoting Barber v.

Int’l Bhd. of Boilermakers, 841 F.2d 1067, 1071 (11th Cir. 1988)). Because the

record at the summary judgment stage is often different from, and thinner than, the

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record after trial, see Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d

1276, 1283–84 (11th Cir. 2005), we are especially careful applying the doctrine

“where the previous ruling has been on pre-trial motion, and the subsequent ruling

comes after the full development of the case.” Lipscomb, 965 F.2d at 1581 (Tjoflat,

J., dissenting) (quotation marks omitted). “This court has recognized that [our]

reversal of a district court’s grant of summary judgment . . . says nothing about

how the evidence should be viewed after a trial.” Id. (citing Shelkofsky v.

Broughton, 388 F.2d 977 (5th Cir. 1968)).

      As their arguments show, the Plaintiffs misunderstand our earlier opinion.

We did not hold that the officers were acting outside of their discretionary

authority as a matter of law. We held only that, on the record as it existed at the

time of the Plaintiffs’ first appeal, the officers had “not proven that they were

acting within” that authority. And we did not hold that the officers were not

entitled to immunity under any circumstances. We ruled only that, because of

unanswered factual questions, the record did not reflect that the officers were due

federal qualified immunity at the summary judgment stage. We did not even

consider the Plaintiffs’ state law claims or any state official immunity that might

have been associated with them.

      In our earlier opinion, we said simply this: summary judgment was proper as

to the Plaintiffs’ § 1983 claims against the City and the officers in their official

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capacities, but—because genuine issues of material fact remained about whether

the officers’ had violated Mr. Jones’ constitutional rights and whether they were

acting within their discretionary authority such that they were due federal qualified

immunity—summary judgment was improper (at least on the record as it then

existed) as to the § 1983 claims against the officers individually. Certainly, those

holdings were the law of the case and bound the district court accordingly. So if,

on an unchanged record, the district court had reentered summary judgment on the

§ 1983 claims for the officers individually because they were acting within their

discretionary authority, the Plaintiffs would be absolutely correct that it had erred.

      But that is not what the district court did. The court understood from our

earlier opinion that jury issues remained as to whether a constitutional violation

had occurred and whether the officers had exceeded their discretionary authority,

so it submitted those issues to the jury. We told the district court that the facts

needed to decide those issues—and the related question of the officers’ entitlement

to federal qualified immunity—were disputed, so the court asked the jury to settle

them. And the jury complied: it found, after the first trial, that the officers had not

violated Mr. Jones’ constitutional rights, which both resolved the Plaintiffs’ § 1983

claim against the officers individually and obviated the need for any further

findings or rulings on federal qualified immunity. See Jordan v. Mosley, 487 F.3d

1350, 1354–55 (11th Cir. 2007).

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      The jury finished the job when, after the third trial, it found that the officers

had acted within their discretionary authority and without malice. The district court

then used those findings to decide the final threshold question in the case, whether

the officers were due state official immunity. Our earlier opinion gave no particular

guidance about how the court should handle the Plaintiffs’ state law claims and any

related immunity questions, but the method the court chose comports with our

opinion nonetheless. Both federal and state immunity inquiries involve factual

determinations about the scope of a governmental actor’s discretionary authority,

see id.at 1357, and the court gave the task to the jury for state official immunity as

we suggested it should for federal qualified immunity. The court did not err in

doing what it decidedly could, see Cottrell, 85 F.3d at 1487 (court can submit to

jury fact issues determinative of immunity), and impliedly should do.

      The district court followed the law of the case when it submitted to the jury

contested issues of fact that the officers had not proven as a matter of law at the

summary judgment stage. And it acted in line with our earlier opinion when it used

the jury’s findings of fact to rule as a matter of law that the officers were due state

official immunity. As a result, the Plaintiffs’ many arguments based upon their

misunderstanding of what constitutes the law of this case—which make up the




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bulk of this appeal—fail.2

                                                 III.

          Along with their overarching contention about the law of the case doctrine,

the Plaintiffs argue that the district court made several evidentiary errors in the

third trial. Of these, two assertions merit discussion: that the court erroneously

excluded reference to an internal police work rule and that it improperly admitted

details about drugs and alcohol in Mr. Jones’ blood.3 Neither decision was

reversible error.

                                                  A.

          The Plaintiffs contend that the district court was wrong to exclude evidence

of work rule 6.09(d), an internal police policy that prohibits officers from shooting

at a moving vehicle unless someone in that vehicle is threatening them with non-

vehicular deadly force. They argue that, although the Georgia Court of Appeals

had earlier invalidated subsection (e) of work rule 6.09, subsection (d) was still

valid when Officers Stone and Frye encountered Mr. Jones. Because rule 6.09(d)

remained in effect, the Plaintiffs assert that the district court erred when it barred


2
  The Plaintiffs’ other arguments, based on their erroneous view of how the court resolved the
state official immunity issue, also fail. The court did not, as the Plaintiffs assert, allow the jury to
decide whether the officers were due immunity, which is without doubt a legal question. Instead,
the court allowed the jury to decide the predicate factual issues through special interrogatories,
which it is fully permitted to do, see Cottrell, 85 F.3d at 1487, and then used the jury’s answers
to rule that the officers were due immunity as a matter of state law.
3
    The Plaintiffs’ other arguments are without merit and warrant no further discussion.
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them from using that subsection at trial to establish the duty component of their

negligence claim.

         We see nothing wrong (or reversible) with the district court’s decision to

exclude work rule 6.09(d). There are two reasons for this conclusion.

         As an initial matter, the court’s determination that Officers Stone and Frye

were due official immunity moots this issue. The Plaintiffs claim that they would

have used work rule 6.09(d) to prove that the officers had a duty not to shoot at Mr.

Jones’ moving vehicle, an element of their state law negligence claim. But because

the court—after considering the jury’s answers to the special interrogatories—

granted the officers’ motion for judgment as a matter of law based on immunity,

the jury never got to the Plaintiffs’ negligence claim. The jury was never asked to

consider what duty the officers owed to Mr. Jones, so the fact that it never heard

about work rule 6.09(d), which is simply evidence addressing that issue, is not

error.

         Even if the jury had been asked to consider the Plaintiffs’ negligence claim,

we would find no reversible error in the district court’s decision to exclude rule

6.09(d) for another reason: any error was invited by the Plaintiffs. Invited error

occurs “when a party induces or invites the district court into making an error.”

United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (quotation marks

omitted). When this happens, we generally will not review the error because a

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party “should not benefit from introducing error at trial with the intention of

creating grounds for reversal on appeal.” United States v. Stone, 139 F.3d 822, 838

(11th Cir. 1998).

      In their response to a motion in limine filed by the officers before the first

trial, the Plaintiffs represented to the court that work rule 6.09 “was not in force”

when the incident occurred and that they did “not intend to infer [sic] at trial that

[the officers] violated this particular work rule.” Instead, they sought to introduce

the rule “to show that at some point in the past the police department prohibited

shooting at a moving vehicle.” Seeing no disagreement among the parties about

whether rules 6.09(d) and 6.09(e) were in force, the district court granted the

officers’ motion and excluded both subsections.

      Although the Plaintiffs are correct that rule 6.09(d) was still in force when

the incident occurred, the district court properly relied on the parties’ mistaken but

shared assertion that the subsection had been invalidated when the court granted

the officers’ motion to exclude it. The Plaintiffs are also correct that the court was

“misled” about the continuing validity of subsection (d), but they fail to

acknowledge that they had a part in the confusion. The truth is, the Plaintiffs

invited the court to misunderstand. And having done so, they cannot now

“complain that [the court] accepted this invitation.” See Coventry First, LLC v.

McCarty, 605 F.3d 865, 870 (11th Cir. 2010). The court did not commit reversible

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error in excluding reference to rule 6.09(d).

                                            B.

         The Plaintiffs also contend that the district court erred by admitting evidence

that Mr. Jones had drugs and alcohol in his system (along with empty beer cans

and drug paraphernalia in his vehicle) at the time of the incident. They argue that

those details served no purpose but to impugn Mr. Jones’ character and that no

“factual nexus” linked the evidence to the officers’ defense. We conclude, again

for two reasons, that the district court did not reversibly err by admitting this

evidence.

         First, like the Plaintiffs’ rule 6.09(d) argument, this argument is foreclosed

by the district court’s grant of official immunity to the officers. The Plaintiffs

assert that, to use the drug and alcohol evidence, the officers had to show it

“contributed in some way to [Mr.] Jones’ behavior that is relevant to their

defense.” But because the special verdict form asked the jury to find the immunity

facts before turning to negligence, it never even considered that claim or the

officers’ defense to it. The jury answered the immunity questions and then stopped,

after which the court decided the Plaintiffs’ negligence claim as a matter of law.

The jury was not asked to resolve the Plaintiffs’ negligence claim, so it simply

does not matter whether the blood evidence in any way tainted its view of that

claim.

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      Second, even if the court’s immunity decision had not mooted this issue, we

would still conclude that the court did not err in admitting the evidence of drugs

and alcohol in Mr. Jones’ blood. Although the Plaintiffs contend that “the only use

of this evidence is to impugn the character of [Mr.] Jones,” we think there is

another one: to prove contributory negligence. If the court had decided that the

officers were not due official immunity, the jury would have been asked to decide

the Plaintiffs’ negligence claim. In doing so, it would have been permitted to

consider any contributory negligence attributable to Mr. Jones so that it could

properly apportion both blame for the incident and liability for the resulting

damages. See Powell v. Berry, 145 Ga. 696, 89 S.E. 753, 755 (1916). Cf. Payne v.

Joyner, 197 Ga. App. 527, 528, 399 S.E.2d 83, 84 (1990) (evidence that victim’s

blood alcohol level was .10 forty-five minutes after accident sufficient to justify

contributory negligence jury instruction).

      Had the Plaintiffs wished to keep the jury from hearing about the drugs and

alcohol in Mr. Jones’ blood as it considered the discretionary authority and malice

issues, they could have asked the district court to split up the proceedings—to try

the immunity questions first before moving on to negligence. Such a request, if

granted, would have guaranteed that the jury would weigh the potentially

inflammatory evidence only for the negligence claim. But the Plaintiffs did not do

that, so any and all evidence relevant to discretionary authority, malice, negligence,

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and contributory negligence was fair game. The fact that a victim has used drugs or

alcohol around the time of his injury is relevant to contributory negligence in

Georgia. See, e.g., Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 787–88, 709

S.E.2d 324, 334 (2011) (trial court did not err in admitting evidence of victim’s

methadone use on morning of accident); Rollestone v. T. Cassirer & Co., 3 Ga.

App. 161, 59 S.E. 442, 448 (1907) (“The physical state produced by drunkenness

is . . . a condition that enters in as one of the circumstances in determining the

negligence of the respective parties to the transaction.”). As a result, the officers

were entitled to submit the blood evidence to support their argument that Mr. Jones

was partially to blame for the incident that led to his death. The district court did

not err when it admitted that evidence.

                                           IV.

      Because it acted in line with our earlier opinion in this case and committed

no reversible evidentiary errors, we affirm the district court’s grant of judgment as

a matter of law to the officers.

      AFFIRMED.




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