             Case: 16-10876     Date Filed: 01/10/2018     Page: 1 of 39


                                                                            [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT


                                     No. 16-10876


                       D.C. Docket No. 9:14-cv-80425-BSS

EVETT L. SIMMONS,
in her capacity as Guardian of the
Property of Dontrell Stephens,

                                                    Interested Party - Appellant
                                                    Cross Appellee,

DONTRELL STEPHENS,

                                                    Plaintiff - Appellant
                                                    Cross Appellee,

versus

RIC BRADSHAW,
Sheriff of Palm Beach County, Florida,
ADAMS LIN,
Deputy Sheriff, individually,

                                                    Defendants - Appellees
                                                    Cross Appellants,

PALM BEACH COUNTY SHERIFF’S OFFICE,

                                                    Defendant.
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                      Appeals from the United States District Court
                          for the Southern District of Florida


                                     (January 10, 2018)

Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO,* District Judge.

ROBRENO, District Judge:

       Dontrell Stephens was shot four times by Deputy Sheriff Adams Lin during

an encounter in West Palm Beach, Florida, on September 13, 2013. As a result,

Stephens now suffers from permanent paralysis.

       In an action brought against Deputy Lin as an individual and Sheriff Ric

Bradshaw in his official capacity as the sheriff of Palm Beach County, the district

court granted summary judgment in favor of Sheriff Bradshaw on the claim against

him for Monell liability. Following a trial that lasted from January 25, 2016, until

February 4, 2016, a jury awarded Stephens damages totaling $23,148,100.

       The parties have cross appealed the district court’s rulings on various

motions decided both before and after the trial. We affirm the district court’s grant

of summary judgment in favor of Sheriff Bradshaw on the Monell claim brought

against him, but we remand for a new trial upon finding that an erroneous jury

instruction deprived Deputy Lin of the opportunity to have his claimed defense of

qualified immunity considered by the district court.

       *
        Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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                                                I.

       Most of the facts giving rise to this case are hotly disputed. The parties agree

that, on September 13, 2013, shortly after 8:00 a.m., Deputy Lin, who was on

police duty monitoring traffic during school bus pickups, observed Stephens, who

was then twenty years old, riding his bike on the wrong side of a road in Palm

Beach County, Florida. Deputy Lin then decided to stop Stephens, for reasons that

the parties dispute. Stephens claims that, prior to this stop, he was holding a

cellphone to his ear while riding his bicycle. Deputy Lin claims that he never saw

the cellphone, and believed instead that Stephens’ hands were empty.

       Upon hearing the sirens of Deputy Lin’s patrol car, Stephens dismounted

from his bicycle. Deputy Lin then instructed Stephens to walk toward him while

showing his hands. According to Deputy Lin, Stephens turned away from Deputy

Lin as he began walking toward him. As soon as Stephens turned away, Deputy

Lin shot him four times. Stephens was rendered a paraplegic by his injuries.

       Stephens’ lawsuit against Deputy Lin and Sheriff Bradshaw arrived at the

United States District Court for the Southern District of Florida in the spring of

2014 after removal from state court.1 Stephens’ six-count amended complaint in

federal court alleged various violations of 42 U.S.C. § 1983 and state law,


1
       Stephens’ counsel, Evett Simmons, Esquire, served as a co-plaintiff in this case in her
capacity as guardian of the property of Dontrell Stephens. For the sake of simplicity, we refer
throughout this opinion only to “Stephens,” rather than to “Plaintiffs” collectively.


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including an excessive force claim against Deputy Lin and a Monell liability claim

against Sheriff Bradshaw.

      After discovery was complete, Stephens and each defendant filed separate

motions for summary judgment. The district court heard oral argument on all three

summary judgment motions, and at that hearing, Stephens agreed to dismiss two of

his state law claims against Sheriff Bradshaw. The district court then granted

summary judgment in favor of Deputy Lin as to the constitutionality of the stop,

and additionally granted summary judgment in favor of Sheriff Bradshaw as to the

entire Monell claim against him. The summary judgment motions were denied in

all other respects. See Simmons v. Bradshaw, No. 14-80425, 2014 WL 11456548,

at *1 (S.D. Fla. Dec. 31, 2014).

      Following the district court’s denial of summary judgment on grounds of

qualified immunity, Deputy Lin filed a timely notice of interlocutory appeal. A

panel of this Court affirmed, agreeing with the district court that a reasonable jury

could find that Deputy Lin violated Stephens’ clearly established constitutional

rights by employing excessive force, and further that the allegedly violated right

was clearly established by governing case law. See Stephens v. Lin, 612 F. App’x

581, 582 (11th Cir. 2015) (per curiam).

      On remand, Stephens sought reconsideration of the interlocutory Monell

ruling. In support of his motion for reconsideration, Stephens attached as evidence


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deposition testimony and expert reports from several other excessive force lawsuits

brought against the Palm Beach Sheriff’s Office (“PBSO”) and its officers.

Although the district court held a lengthy hearing on the motion for

reconsideration, it ultimately denied the motion without written explanation.

       On January 25, 2016, the matter proceeded to trial on the two counts that

remained: a § 1983 excessive force claim against Deputy Lin, and a state law

battery claim against Sheriff Bradshaw.2 On February 3, 2016, the jury returned its

verdict, finding that “Adams Lin’s intentional use of force against Dontrell

Stephens was excessive or unreasonable.” The jury also found that Stephens

suffered severe and permanent injuries as a result of Deputy Lin’s use of force, and

it awarded damages totaling $23,148,100.

       Pursuant to the jury’s verdict, the Court entered final judgment for Stephens

and against Deputy Lin and Sheriff Bradshaw, jointly and severally, in the amount

of $22,431,892.05. Each of the parties timely filed a notice of appeal. Stephens

challenges the pre-trial grant of summary judgment dismissing Stephens’

multifaceted Monell claim against Sheriff Bradshaw. Deputy Lin challenges the

post-trial denial of his motion for a new trial based on two particular jury




2
        The parties stipulated, and the district court ordered, that if the jury found that Deputy
Lin had committed a battery, then Sheriff Bradshaw would be held vicariously liable. We refer
throughout this opinion to “Deputy Lin” and “Sheriff Bradshaw” individually, as each pertinent
issue and defense pertains to these defendants separately.

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instructions he contends were erroneous, including one pertaining to his claimed

defense of qualified immunity.3

                                                  II.

       Rule 59(a) of the Federal Rules of Civil Procedure allows a court to grant a

new trial “on all or some of the issues.” Fed. R. Civ. P. 59(a). A motion for a new

trial may be brought on “various grounds, including[] erroneous jury instructions.”

Tierney v. Black Bros. Co., 852 F. Supp. 994, 1003 (M.D. Fla. 1994) (citing

Stuckey v. N. Propane Gas Co., 874 F.2d 1563, 1571 (11th Cir. 1989)).

       “Motions for new trial on the basis of erroneous and prejudicial jury

instructions are within the district court’s discretion and are reviewed for abuse of

discretion.” Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (citing Pate v.

Seaboard R.R., Inc., 819 F.2d 1074, 1077 (11th Cir. 1987)). To determine whether

the court below abused its discretion, “we examine the challenged instructions as

part of the entire charge, in light of the allegations of the complaint, the evidence

presented, and the arguments of counsel, to determine whether the jury was misled

and whether the jury understood the issues.” Pate, 819 F.2d at 1077.



3
        Deputy Lin also appeals the district court’s denial of his request for a jury instruction that
an officer’s actions must be viewed from the perspective of a reasonable officer on the scene,
and not with 20/20 hindsight vision. The instruction given at trial stated that “[t]he
reasonableness of a particular use of force must be judged from the perspective of a reasonable
officer on the scene.” We find no merit in Deputy Lin’s argument that he was prejudiced
because this instruction did not include the phrase “rather than with the 20/20 vision of
hindsight.”


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      In conducting this examination, we review jury instructions de novo “to

determine whether they misstate the law or mislead the jury.” Conroy v. Abraham

Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233 (11th Cir. 2004) (quoting Palmer v.

Bd. of Regents of the Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir. 2000)). If the

instructions do not accurately reflect the law and “do not correctly instruct the jury

so that we are ‘left with a substantial and ineradicable doubt as to whether the jury

was properly guided in its deliberations,’” then “we will reverse and order a new

trial.” Broaddus v. Fla. Power Corp., 145 F.3d 1283, 1288 (11th Cir. 1998)

(quoting Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997)).

      We review a grant of summary judgment de novo, applying the same

standard as the court below. See Southern Waste Sys., LLC v. City of Delray

Beach, 420 F.3d 1288, 1290 (11th Cir. 2005) (citing Pennington v. City of

Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001)).

                                          III.

      A government official faced with a civil rights claim brought pursuant to 42

U.S.C. § 1983 is entitled to raise the affirmative defense of qualified immunity.

Qualified immunity generally shields government officials from liability for civil

damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Recognition of qualified immunity


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“reflect[s] an attempt to balance competing values: not only the importance of a

damages remedy to protect the rights of citizens, but also ‘the need to protect

officials who are required to exercise their discretion and the related public interest

in encouraging the vigorous exercise of official authority.’” Id. at 807 (citation

omitted) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)).

      Qualified immunity is “an immunity from suit rather than a mere defense to

liability; and like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Hunter v.

Bryant, 502 U.S. 224, 228 (1991) (per curiam) (“Immunity ordinarily should be

decided by the court long before trial.”); see also Johnson v. Breeden, 280 F.3d

1308, 1317 (11th Cir. 2002) (“Because of the purpose served by the doctrine of

qualified immunity, a valid defense based upon it must be recognized as soon as

possible, preferably at the motion to dismiss or summary judgment stage of the

litigation.”). It “follows from the recognition that qualified immunity is in part an

entitlement not to be forced to litigate the consequences of official conduct” that

this defense is “conceptually distinct from the merits of the plaintiff’s claim that

his rights have been violated.” Mitchell, 472 U.S. at 527-28.

      Entitlement to qualified immunity is for the court to decide as a matter of

law. Specifically, a court considering a defendant’s claim of qualified immunity

must address the following question of law:


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      [W]hether the legal norms allegedly violated by the defendant were
      clearly established at the time of the challenged actions or, in cases
      where the district court has denied summary judgment for the
      defendant on the ground that even under the defendant’s version of
      the facts the defendant’s conduct violated clearly established law,
      whether the law clearly proscribed the actions the defendant claims he
      took.

Mitchell, 472 U.S. at 528; see also Harlow, 457 U.S. at 818 (“[T]he judge

appropriately may determine, not only the currently applicable law, but whether

that law was clearly established at the time an action occurred.”); Cottrell v.

Caldwell, 85 F.3d 1480, 1488 (11th Cir. 1996) (“Qualified immunity is a legal

issue to be decided by the court . . . .”); Stone v. Peacock, 968 F.2d 1163, 1166

(11th Cir. 1992) (“The law is now clear . . . that the defense of qualified immunity

should be decided by the court, and should not be submitted for decision by the

jury.”); Hudgins v. City of Ashburn, 890 F.2d 396, 403 (11th Cir. 1989) (“[T]he

availability of qualified immunity necessarily is a question of law.”).

      Though entitlement to qualified immunity presents a question of law,

resolution of this question can sometimes turn on issues of fact. We have

previously explained why and under what circumstances a defendant’s entitlement

to qualified immunity may remain unresolved even into the trial phase of litigation:

      Where it is not evident from the allegations of the complaint alone
      that the defendants are entitled to qualified immunity, the case will
      proceed to the summary judgment stage, the most typical juncture at
      which defendants entitled to qualified immunity are released from the
      threat of liability and the burden of further litigation. Even at the
      summary judgment stage, not all defendants entitled to the protection

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      of the qualified immunity defense will get it. The ones who should be
      given that protection at the summary judgment stage are those who
      establish that there is no genuine issue of material fact preventing
      them from being entitled to qualified immunity. And that will include
      defendants in a case where there is some dispute about the facts, but
      even viewing the evidence most favorably to the plaintiff the law
      applicable to that set of facts was not already clearly enough settled to
      make the defendants’ conduct clearly unlawful. But if the evidence at
      the summary judgment stage, viewed in the light most favorable to the
      plaintiff, shows there are facts that are inconsistent with qualified
      immunity being granted, the case and the qualified immunity issue
      along with it will proceed to trial.

Johnson, 280 F.3d at 1317 (emphasis added) (citation omitted); see also Vaughan

v. Cox, 343 F.3d 1323, 1333 (11th Cir. 2003) (“But [the defendant] is not

foreclosed from asserting a qualified immunity defense at trial. If the jury were to

accept [the defendant’s] version of the facts, the qualified immunity analysis would

be changed.”).

      If a government official moves for summary judgment asserting entitlement

to qualified immunity, then the relevant facts are construed in the light most

favorable to the non-movant—i.e., the plaintiff—and the court should decide the

issue based on those facts. See Mitchell, 472 U.S. at 526 (“Even if the plaintiff’s

complaint adequately alleges the commission of acts that violated clearly

established law, the defendant is entitled to summary judgment if discovery fails to

uncover evidence sufficient to create a genuine issue as to whether the defendant in

fact committed those acts.”).




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      If the official’s motion does not succeed, however, then his qualified

immunity defense remains intact and proceeds to trial. The facts as viewed for

summary judgment purposes are no longer binding, and the jury proceeds to find

the relevant facts bearing on qualified immunity. See id. at 527 (“At trial, the

plaintiff may not succeed in proving his version of the facts, and the defendant may

thus escape liability.”); Johnson, 280 F.3d at 1318 (“When the case goes to trial,

the jury itself decides the issues of historical fact that are determinative of the

qualified immunity defense . . . .”); Cottrell, 85 F.3d at 1487 (“[A] defendant who

does not win summary judgment on qualified immunity grounds may yet prevail

on those grounds at or after trial on a motion for a judgment as a matter of law.”

(alteration in original) (quoting Kelly v. Curtis, 21 F.3d 1544, 1546 (11th Cir.

1994))).

      At trial, the court uses the jury’s factual findings to render its ultimate legal

determination as to whether it would be evident to a reasonable officer, in light of

clearly established law, that his conduct was unlawful in the situation he

confronted:

      Officers can have reasonable, but mistaken, beliefs as to the facts
      establishing the existence of probable cause or exigent circumstances,
      for example, and in those situations courts will not hold that they have
      violated the Constitution. Yet, even if a court were to hold that the
      officer violated the [Constitution] . . ., [Supreme Court precedent] still
      operates to grant officers immunity for reasonable mistakes as to the
      legality of their actions.


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Saucier v. Katz, 533 U.S. 194, 206 (2001). In other words, the question of what

circumstances existed at the time of the encounter is a question of fact for the

jury—but the question of whether the officer’s perceptions and attendant actions

were objectively reasonable under those circumstances is a question of law for the

court. See id.; see also Harris v. Coweta Cty., 21 F.3d 388, 390 (11th Cir. 1994)

(questions of “whether the law allegedly violated was clearly established at the

time of the complained-about conduct” and “whether the official’s conduct was

objectively reasonable in light of the information known to the official at the time”

are “objective, albeit fact-specific, inquiries which we undertake as questions of

law” (citation omitted) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987),

and Mitchell, 472 U.S. at 526-28 & n.9)).

      “Where the defendant’s pretrial motions are denied because there are

genuine issues of fact that are determinative of the qualified immunity issue,

special jury interrogatories may be used to resolve those factual issues.” Cottrell,

85 F.3d at 1487. As we have said before:

      Because a public official who is put to trial is entitled to have the true
      facts underlying his qualified immunity defense decided, a timely
      request for jury interrogatories directed toward such factual issues
      should be granted. Denial of such a request would be error, because
      it would deprive the defendant who is forced to trial of his right to
      have the factual issues underlying his defense decided by the jury.

      We do not mean to imply, of course, that district courts should submit
      the issue of whether a defendant is entitled to qualified immunity to
      the jury. Qualified immunity is a legal issue to be decided by the

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       court, and the jury interrogatories should not even mention the term.
       Instead, the jury interrogatories should be restricted to the who-what-
       when-where-why type of historical fact issues.

       When a district court has denied the qualified immunity defense prior
       to trial based upon its determination that the defense turns upon a
       genuine issue of material fact, the court should revisit that factual
       issue when, and if, the defendant files a timely Fed. R. Civ. P. 50(a) or
       (b) motion.

Id. at 1487-88 (emphases added) (citations omitted).4

       The facts of the instant case involved contested factual issues bearing on

Defendant’s entitlement to qualified immunity. In its order disposing of the

parties’ motions for summary judgment, the district court expressly reserved the

qualified immunity question for later determination:

       If it were to credit Stephens’ account of these events, a reasonable
       jury clearly could find that Deputy Lin violated his constitutional
       rights by employing excessive force. Yet, Deputy Lin would still be
       entitled to qualified immunity if the law were not clearly established.
       Saucier, 533 U.S. at 201 (stating that if a constitutional right would
       have been violated under the plaintiff’s version of the facts, the court
       must then determine whether the right was clearly established).

                                         *      *       *

4
       It is not always necessary to follow this procedure, because

       the failure to give requested jury interrogatories may not be error, or [the] error
       may be harmless, where the jury verdict itself, viewed in the light of the jury
       instructions, and any interrogatories that were answered by the jury, indicate
       without doubt what the answers to the refused interrogatories would have been, or
       make the answers to the refused interrogatories irrelevant to the qualified
       immunity defense.

Johnson, 280 F.3d at 1318. But “[i]n a proper case, the use of special jury interrogatories going
to the qualified immunity defense is not discretionary with the court.” Id.

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      Even though this Court has concluded that Deputy Lin is not entitled
      to qualified immunity on Stephens’ excessive force claim at the
      summary judgment stage, Deputy Lin is not precluded from pursuing
      the qualified immunity defense at the trial. See Vaughan v. Cox, 343
      F.3d 1323, 1333 (11th Cir. 2003). Should the jury choose not to
      credit (in whole or in part) Stephens’ version of the facts, or should
      the facts not be presented at trial as alleged here on summary
      judgment, the qualified immunity analysis may change.

Simmons v. Bradshaw, No. 14-80425, 2014 WL 11456548, at *8-9 (S.D. Fla. Dec.

31, 2014). Rather than submitting the contested factual issues—i.e., the historical

facts—to the jury at trial, however, the Court opted to give the following

instruction:

      Whether a specific use of force is excessive or unreasonable depends
      on factors such as the nature of any offense involved, whether a
      citizen poses an immediate violent threat to others, including the
      police officer, and whether the citizen resists or flees. In assessing
      these factors, you should consider whether an officer’s belief that a
      citizen is posing an immediate violent threat is an objectively
      reasonable belief under the circumstances, notwithstanding that it is a
      mistaken belief. Where an officer’s mistaken belief that a citizen
      poses an immediate and deadly threat is objectively reasonable under
      the circumstances, then that officer’s use of deadly force is not
      excessive or unreasonable. On the other hand, where an officer’s
      mistaken belief that a citizen poses an immediate and deadly threat is
      not objectively reasonable under the circumstances, then that officer’s
      use of deadly force is excessive or unreasonable.

This instruction is problematic not only because it is an incorrect statement of the

law, but moreover because it effectively delegated resolution of the issue of

qualified immunity to the jury—presumably as to both facts and law—and thus the




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district court never decided whether Deputy Lin was entitled to his claimed

defense of qualified immunity. 5

       Consistent with Supreme Court precedent, we have noted that the factual

issues bearing on the excessive force inquiry are distinct from the legal issues

bearing on a defendant’s entitlement to qualified immunity:

       It makes perfect sense to conclude, as the Supreme Court did in
       Saucier, that with such claims the merits issue and the qualified
       immunity issue are distinct, so that the existence of a valid Fourth
       Amendment excessive force claim is not inconsistent with qualified
       immunity. In other words, a defendant officer could use force in
       making an arrest that is later judged to be excessive enough that it
       violates the Fourth Amendment, but if prior decisions did not clearly
       establish that the use of that amount of force in those circumstances
       was constitutionally excessive, the defendant officer would be entitled
       to qualified immunity.

Johnson, 280 F.3d at 1321. In this case, however, the excessive force inquiry was

not sufficiently divorced from the qualified immunity inquiry in that the instruction

improperly conflated the two inquiries and presented the jury with both together.

The jury was thus essentially forced to find either that Deputy Lin used excessive


5
        Throughout trial proceedings, defense counsel repeatedly objected to the district court’s
handling of the qualified immunity question, thereby preserving the issue for appeal. See Defs.’
Cross Reply Br. at 3 (citing numerous instances on the record where “defense counsel stated and
re-stated the defense’s objection to the proposal offered by the trial court in regard to how to
address the qualified immunity issue in this case”). We find that Deputy Lin “made [his]
position clear to the court previously and further objection would [have been] futile,” and further
that consideration of this issue “is necessary to ‘correct a fundamental error or prevent a
miscarriage of justice.’” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.
1999) (quoting Landsman Packing Co., Inc. v. Cont’l Can Co., Inc., 864 F.2d 721, 726 (11th Cir.
1989)).



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force and therefore was not entitled to qualified immunity, or that Deputy Lin did

not use excessive force at all. 6

       This instruction was erroneous for two reasons. First, it is not the province

of the jury to decide a defendant’s entitlement to qualified immunity. See Cottrell,

85 F.3d at 1488 (“We do not mean to imply, of course, that district courts should

submit the issue of whether a defendant is entitled to qualified immunity to the

jury. Qualified immunity is a legal issue to be decided by the court, and the jury

interrogatories should not even mention the term.”); Stone, 968 F.2d at 1166 (“The

law is now clear . . . that the defense of qualified immunity should be decided by

the court, and should not be submitted for decision by the jury.”). Second, there

was no room for the jury to find that Deputy Lin used excessive force and also the

district court to decide that he was entitled to qualified immunity. See Johnson,

280 F.3d at 1321 (“[T]he existence of a valid Fourth Amendment excessive force

claim is not inconsistent with qualified immunity.”); Saucier, 533 U.S. at 197

(“[T]he ruling on qualified immunity requires an analysis not susceptible of fusion


6
        The district court denied Deputy Lin’s request for a special interrogatory designed to
address the factual component of his qualified immunity defense, apparently out of concern that
creating too much space between the excessive force and qualified immunity inquiries could lead
to inconsistent verdicts. This concern was unfounded, however, because finding excessive force
does not preclude entitlement to qualified immunity. See Anderson, 483 U.S. at 643 (expressly
rejecting argument that “[i]t is not possible . . . to say that one ‘reasonably’ acted unreasonably”);
see also Long v. Slaton, 508 F.3d 576, 583-84 (11th Cir. 2007) (“Even if [the defendant’s] use of
deadly force was excessive under the Fourth Amendment, we conclude alternatively that [the]
[d]efendants are entitled to qualified immunity because they, especially given the circumstances,
violated no clearly established right.”).


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with the question whether unreasonable force was used . . . .”); Mitchell, 472 U.S.

at 527-28 (“[I]t follows from the recognition that qualified immunity is in part an

entitlement not to be forced to litigate the consequences of official conduct that a

claim of immunity is conceptually distinct from the merits of the plaintiff’s claim

that his rights have been violated.”).

      Evidently, the district court believed that the jury instruction at issue

properly covered both excessive force and qualified immunity. In its order

denying in part the defendants’ motion for a new trial, the district court stated that,

“[i]n light of the jury instructions given in this case—which the jury is presumed to

have understood and followed—the jury’s verdict reflects an implicit finding that

Deputy Lin did not commit an objectively reasonable mistake when he shot

Dontrell Stephens.” Simmons v. Bradshaw, No. 14-80425, 2016 WL 4718409, at

*1 (S.D. Fla. Apr. 18, 2016). This “implicit finding” recognized by the district

court, however, does not necessarily answer the qualified immunity question,

which must be considered and resolved by the court as a legal issue. See Saucier,

533 U.S. at 205 (“An officer might correctly perceive all of the relevant facts but

have a mistaken understanding as to whether a particular amount of force is legal

in those circumstances.”).

      Because of these errors, Deputy Lin was not afforded the opportunity to

have his claimed defense of qualified immunity determined by the court, as he was


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entitled to have. Furthermore, the errors were not harmless because this is not a

case in which “the jury verdict itself, viewed in the light of the jury instructions,

and any interrogatories that were answered by the jury, indicate without doubt

what the answers to the refused interrogatories would have been, or make the

answers to the refused interrogatories irrelevant to the qualified immunity

defense.” Johnson, 280 F.3d at 1318. Because the jury instructions did not

accurately reflect the law, and moreover because Deputy Lin was improperly

deprived of the opportunity to have his defense of qualified immunity considered

by the district court, it was an abuse of discretion for the district court to have

denied Deputy Lin’s motion for a new trial. See Gowski, 682 F.3d at 1310.

Accordingly, we will reverse and order a new trial. See Broaddus, 145 F.3d at

1288.7

                                               IV.

       With respect to Stephens’ Monell claim, the district court made thorough

factual findings supporting its grant of summary judgment in favor of Sheriff

Bradshaw and against Stephens. These findings included the following:



7
         Had the jury been afforded the opportunity to make specific factual findings relevant to
the qualified immunity inquiry—including, for example, whether Stephens had committed a
traffic infraction on his bicycle; whether Stephens dismounted from his bicycle and complied
with Deputy Lin’s commands following the stop; and whether Stephens possessed any weapons,
threatened Deputy Lin, or attempted to flee—the district court could (and should) have then
determined, as a matter of law, “whether the legal norms allegedly violated by the defendant
were clearly established at the time of the challenged actions.” Mitchell, 472 U.S. at 528.


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      (1) “Stephens . . . has failed to demonstrate prior constitutional
          violations with respect to PBSO officer-involved shootings,”
          Simmons, 2014 WL 11456548 at *12;

      (2) “Stephens has not shown ongoing constitutional violations or even
          meritorious complaints regarding officer-involved shootings that
          Sheriff Bradshaw simply ignored,” and “the record shows that
          Deputy Lin never had a complaint, let alone a meritorious
          complaint, regarding the use of deadly force” id. at *15;

      (3) “Beyond alleging deficiencies in the investigation of his own
          shooting, Stephens has not produced any evidence showing that
          PBSO’s investigative and disciplinary procedures were generally
          deficient,” and “he has not identified any prior constitutional
          violation that went unpunished,” id. at *16;

      (4) “[D]espite the failure of PBSO investigators to interview
          Stephens, the shooting was nonetheless reviewed by PBSO
          Internal Affairs and by its violent crimes personnel, and it was
          then separately investigated by the State Attorney’s Office,” id. at
          *18; and

      (5) “[N]either Sheriff[] Bradshaw’s statement in defense of Deputy
          Lin nor the subsequent investigation of the shooting can support
          Stephens’ ratification theory of liability, as neither occurred
          before the shooting and neither could have been the cause of the
          injury,” id. at *19.

In making these findings, the district court noted correctly that “[s]ettlement

agreements . . . are not competent evidence that Sheriff Bradshaw condoned the

actual use of excessive force,” id. at *12 n.12, and carefully analyzed memoranda

from the State Attorney’s Office “provid[ing] critical context for—and

rebut[ting]—Stephens’ suggestion that Sheriff Bradshaw’s defenses of his

deputies’ actions were unjustified,” id. at *11. The district court also noted that



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“the Stephens shooting was the first time that Deputy Lin had ever fired his

weapon in the line of duty,” id. at *15, and further that “Deputy Lin testified that

he understood that Sheriff Bradshaw holds him and other deputies accountable for

their actions,” id. at *10.

       As the district court seems to have implicitly observed, the most difficult

hurdle for Stephens to mount in order to succeed on his Monell claim against

Sheriff Bradshaw is causation. The only causation argument Stephens offers is

that “Sheriff Bradshaw’s routine and uncritical ratification of his deputies’ prior

use of force ‘was causally connected’ to Lin’s shooting of Stephens, because it sent

a message to Lin and his deputies that allegations of excessive force would not be

investigated.” Appellant’s Br. at 54. Even accepting arguendo that Sheriff

Bradshaw “routinely and uncritically” ratified his deputies’ use of force, it is

difficult to understand how anything Sheriff Bradshaw allegedly did (or failed to

do) could have been the “moving force of the constitutional violation” in this case.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

       Without competent evidence establishing a pattern or practice of

constitutional violations, Stephens’ shooting must be evaluated as a single incident.

Even assuming that Stephens’ shooting was unconstitutional, this incident alone

does not establish a custom of tolerating excessive force. See Salvato v. Miley, 790

F.3d 1286, 1295 (11th Cir. 2015) (“[T]he failure to investigate a single incident, of


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which the sheriff was unaware until after-the-fact, cannot ratify a constitutional

violation.”); see also Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160, 1174 n.12

(11th Cir. 2001), cert. granted, judgment vacated sub nom. Thomas v. Roberts, 536

U.S. 953 (2002), opinion reinstated, 323 F.3d 950 (11th Cir. 2003) (“[W]hen

plaintiffs are relying not on a pattern of unconstitutional conduct, but on a single

incident, they must demonstrate that local government policymakers had an

opportunity to review the subordinate’s decision and agreed with both the decision

and the decision’s basis before a court can hold the government liable on a

ratification theory.”).

       On a broader scale, the Supreme Court has made clear that the bar to

establish municipal liability is very high. See, e.g., Connick v. Thompson, 563 U.S.

51, 70 (2011) (“[P]roving that a municipality itself actually caused a constitutional

violation . . . presents ‘difficult problems of proof,’ and we must adhere to a

‘stringent standard of fault,’ lest municipal liability under § 1983 collapse into

respondeat superior.” (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520

U.S. 397, 406 (1997))). Whether or not this high bar is advisable as a general

policy matter is one question, but whether or not the district court erred in its

evaluation of all pertinent evidence under binding legal precedent is another. We

answer this latter question—the only one before this Court—in the negative and




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thus affirm the district court’s grant of summary judgment in favor of Sheriff

Bradshaw on Stephens’ Monell claim against him in this case.

                                         IV.

      For the foregoing reasons, the judgment below is AFFIRMED in part and

VACATED in part, and the case is hereby REMANDED for a new trial.




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WILSON, Circuit Judge, dissenting:

     I would not disturb the jury’s verdict on Dontrell Stephens’ excessive force

claim brought pursuant to 42 U.S.C. § 1983. The jury determined that Deputy

Adams Lin used excessive force against Stephens in violation of the Fourth

Amendment by shooting him four times at close range—rendering him a

paraplegic—after stopping him for riding his bicycle on the wrong side of the road.

Appealing the denial of their motion for a new trial, Deputy Lin and Sherriff

Bradshaw argue that the district court abused its discretion by improperly

instructing the jury in two ways: (1) by not allowing them to present a special

interrogatory to the jury, asking whether Deputy Lin made a reasonable mistake;

and (2) by refusing to give the jury a “20/20 hindsight” instruction, to let the jury

know that it must judge the officer’s reasonableness “at the time of the events, not

from hindsight.”

     But rather than address these specific issues, the majority opinion sets aside

the jury’s verdict for a different reason—that the jury instructions given did not

accurately reflect the law, and that Deputy Lin was deprived of the opportunity to

have his qualified immunity defense considered by the district court. Although the

panel questioned counsel at oral argument about whether qualified immunity was

improperly presented to the jury, the issue was neither briefed, nor appealed.




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     I dissent because the jury instructions did properly state the law. And I

disagree with the majority’s determination that the district court improperly

relinquished consideration of Deputy Lin’s entitlement to qualified immunity to

the jury rather than retain it for consideration by the district court judge himself.

Lastly, I disagree with the majority’s resolution of the Monell claim.

                         I. THE JURY INSTRUCTIONS

     As we previously stated in the prior appeal, a reasonable jury could find that

Deputy Lin violated Stephens’ clearly established constitutional rights by

employing excessive force, and by finding that the allegedly violated right was

clearly established by governing law. See Stephens v. Lin, 612 F. App’x 581, 582

(11th Cir. 2015) (per curiam). Here, the jury found that Lin’s use of force was

excessive or unreasonable, and, as a result, Stephens suffered injuries warranting

damages totaling $23,148,100.00. As an issue of fact, the jury was entitled to

determine whether Lin used excessive force. Accordingly, the trial judge

submitted the following instruction to the jury:

             Whether a specific use of force is excessive or
             unreasonable depends on factors such as the nature of
             any offense involved, whether a citizen poses an
             immediate violent threat to others, including the police
             officer, and whether the citizen resists or flees. In
             assessing these factors, you should consider whether an
             officer’s belief that a citizen is posing an immediate
             violent threat is an objectively reasonable belief under
             the circumstances, nothwithstanding that it is a mistaken
             belief. Where an officer’s mistaken belief that a citizen
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             poses an immediate and deadly threat is objectively
             reasonable under the circumstances, then that officer’s
             use of deadly force is not excessive or unreasonable. On
             the other hand, where an officer’s mistaken belief that a
             citizen poses an immediate and deadly threat is not
             objectively reasonable under the circumstances, then that
             officer’s use of deadly force is excessive or unreasonable.

The majority finds this instruction “problematic not only because it is an incorrect

statement of the law, but moreover because it effectively delegated resolution of

the issue of qualified immunity to the jury—presumably as to both facts and law—

and thus the district court never decided whether Deputy Lin was entitled to his

claimed defense of qualified immunity.” Maj. Op. at 14–15. I disagree on both

accounts. The instruction is not an incorrect statement of the law, nor can it

reasonably be construed as an improper delegation of the qualified immunity

determination to the jury. Whether Officer Lin made an objectively reasonable

mistake in believing that Stephens posed a threat is for the jury to decide in making

its excessive force determination.

      This instruction is also consistent with Supreme Court precedent addressing

facts to be considered in excessive force cases. See Saucier v. Katz, 533 U.S. 194,

205, 121 S. Ct. 2151, 2158 (2001), overruled on other grounds by Pearson v.

Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009) (“If an officer reasonably,

but mistakenly, believed that a suspect was likely to fight back, for instance, the

officer would be justified in using more force than in fact was needed.”); see also


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McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246–47 (11th Cir. 2003)

(per curiam) (holding that deadly force is not excessive force where the officer has

an objectively reasonable fear that the suspect poses an imminent threat of bodily

harm).

     Qualified immunity’s clearly-established-law requirement, however, looks at

whether “the officer’s mistake as to what the law requires is reasonable, [and when

it is reasonable] the officer is entitled to the immunity defense.” Saucier, 533 U.S.

at 205, 121 S. Ct. at 2158 (emphasis added). Here, the trial court did not ask the

jury whether the officer made a reasonable mistake as to the law. The court merely

asked the jury to determine whether excessive force was used.

     The trial court could not have separated the question of whether a mistake

was reasonable from the question of whether the force was excessive. Doing so

would contravene Supreme Court precedent. Id. (stating that determining the

reasonableness of a mistake is part of the excessive force question). If Deputy

Lin’s mistake about whether Stephens posed a threat was reasonable, the force he

used would not be considered as excessive. And if Deputy Lin’s mistake about

whether Stephens posed a threat was unreasonable, the force he used would be

considered excessive. See id. That is exactly what the given instructions said.

     The court did not err in submitting the factual reasonableness determination

to the jury because it had to submit it to the jury for it to determine whether there


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was excessive force. It is up to the jury to determine whether an officer’s conduct

was reasonable in light of the factual circumstances. Here, the jury determined that

the force used by Deputy Lin was unreasonable. It is then up to the trial judge to

decide whether qualified immunity is applicable by asking whether the officer’s

conduct was reasonable in light of clearly established law. See Lee v. Ferraro, 284

F.3d 1188, 1193, 1198–99 (11th Cir. 2002). As the majority states, the trial judge

“uses the jury’s factual findings to render its ultimate legal determination as to

whether it would be evident for a reasonable officer, in light of clearly established

law, that his conduct was unlawful in the situation he confronted.” Maj. Op. at 11.

     Here, the trial judge did just that. The judge relied on the jury’s factual

determination—that Deputy Lin’s conduct was unreasonable and excessive—to

find that Deputy Lin violated Stephens’ Fourth Amendment right to be free from

excessive force. The court, not the jury, determined that Stephens’ right to be free

from excessive force was clearly established under existing law. In any event, the

district court had already considered, and rejected, Lin’s qualified immunity

claim—twice—when the defendants raised it in their motion for judgment as a

matter of law and again in the renewed judgment as a matter of law.

     Therefore, I have no quarrel with the formalities of the district court’s

resolution of Deputy Lin’s entitlement to qualified immunity. And taking the

deferential nature of the abuse of discretion standard into account, I see no


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reversible error. See Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (per

curiam).

     Nonetheless, the issues briefed were whether the district court abused its

discretion by: (1) not allowing the defendants to present special interrogatories

asking whether Deputy Lin made a reasonable mistake; and (2) not allowing the

defendants to present the “20/20 hindsight” instruction in an effort to let the jury

know that it must judge the officer’s reasonableness at the time of the events, and

not from hindsight.

     First, the district court did not err when it declined to provide the jury with a

mistaken belief interrogatory, which would have asked:

             Do you find by a preponderance of the evidence that
             Deputy Adams Lin made an objectively reasonable
             mistake when he perceived that Dontrell Stephens
             threatened Deputy Adams Lin with a firearm and posed
             an imminent threat of death or serious physical harm at
             the time that Deputy Adams Lin shot Dontrell Stephens?

     This proposed interrogatory was covered by the given instructions. And

there can be no error when “the trial court[] refus[es] to give a requested

instruction . . . where the substance of that proposed instruction was covered by

another instruction which was given.” Pesaplastic, C.A. v. Cincinnati Milacron

Co., 750 F.2d 1516, 1525 (11th Cir. 1985). Here, the court instructed the jury that

Deputy Lin’s use of deadly force could not be excessive if Deputy Lin’s mistaken

belief that Stephens posed an immediate and deadly threat was objectively
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reasonable under the circumstances. Thus, for the jury to reach the conclusion that

Deputy Lin’s use of force was excessive, it necessarily had to determine that his

mistake was objectively unreasonable. And because the jury found that Deputy

Lin’s use of force was excessive, it answered what would have been covered in the

defendants’ proposed instruction in the negative. The substance of the proposed

interrogatory, then, was covered by the jury instructions delivered. And we do not

have discretion to assume otherwise because we always assume the jury follows

the instructions consistently with their verdict. See United States v. $242,484.00,

389 F.3d 1149, 1155 (11th Cir. 2004) (en banc) (“We always infer that the jury

resolved every relevant factual issue in favor of its verdict.” (emphasis added)).

     Second, the district court also did not err when it declined to provide the

following “20/20 hindsight” instruction to the jury:

             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. This
             determination must include allowances for the fact that
             police officers are often forced to make split-second
             judgments in circumstances that are tense, uncertain and
             rapidly evolving. The Fourth Amendment reasonableness
             standard analysis is an objective one. The question is
             whether the officer’s actions are objectively reasonable in
             light of the facts and circumstances confronting the
             officer, without regard to his underlying subjective intent
             or motivation. Therefore, under the Fourth Amendment,
             an excessive force case does not involve inquiry into
             subjective concepts like malice and sadism.



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     In declining to give the instruction, the district court found that (1) the

instruction was argumentative; (2) the instruction was not included within the

Eleventh Circuit’s Civil Pattern Jury Instructions; (3) the argument was permitted

to be made to the jury during closing arguments; and (4) even if excluding it was

error, the error was harmless. I agree with the Majority opinion’s conclusion that

there was no abuse of discretion here given the specific and thorough

determinations made by the district court. See Maj. Op. at 6.

                     II.    THE MONELL CLAIM
     We review de novo the trial court’s order granting summary judgment. S.

Waste Sys., LLC v. City of Delray Beach, 420 F.3d 1288, 1290 (11th Cir. 2005). In

analyzing a summary judgment motion, we resolve all reasonable doubts about the

facts in favor of the non-movant, Stephens, and draw all justifiable inferences in

his favor. Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013). “To

survive a motion for summary judgment, [Stephens] need only present evidence

from which a jury might return a verdict in his favor. If he [has done] so, there is a

genuine issue of fact that requires a trial.” Samples ex rel. Samples v. City of

Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (internal quotation marks omitted).

     Ordinarily, a governmental entity cannot be held liable for the

unconstitutional actions of its employees under 42 U.S.C. § 1983. However, a

governmental entity can be held liable if a plaintiff can show that the

unconstitutional act at issue is a result of a policy or custom promulgated by the
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entity. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91, 98 S. Ct. 2018,

2035–36 (1978). This showing requires a plaintiff to demonstrate: “(1) that his

constitutional rights were violated; (2) that the municipality had a custom or policy

that constituted deliberate indifference to that constitutional right; and (3) that the

policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289

(11th Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct.

1197, 1204 (1989)). And because a governmental entity will rarely formally adopt

a custom or policy permitting or encouraging constitutional violations, see Grech

v. Clayton Cty., 335 F.3d 1326, 1329–30 (11th Cir. 2003) (en banc), Monell claims

may be based upon inferences and circumstantial evidence of a custom or policy.

For example, “a persistent failure to take disciplinary action against officers can

give rise to the inference that a municipality has ratified conduct, thereby

establishing an unconstitutional custom that can subject the government to

liability.” Salvato v. Miley, 790 F.3d 1286, 1296 (11th Cir. 2015) (internal

quotation marks omitted and alterations adopted).

     Here, because the district court found that Stephens established a triable

issue of a constitutional violation, only the custom and causation prongs of a

Monell claim are relevant. If Stephens has offered sufficient evidence to establish

those prongs, he is entitled to proceed to trial on his Monell claim. I would reverse




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the district court’s dismissal of the Monell claim because Stephens offered

sufficient evidence of a custom of tolerating excessive force, and of a causal link

between that custom and this shooting to survive a motion for summary judgment.

      Stephens presented substantial evidence of a custom within the Sherriff’s

Office. Specifically, the evidence of a custom of tolerating excessive force

consists of (1) a number of police shootings that resulted in financial settlements

but no officer discipline,1 (2) statements by Sheriff Bradshaw in the media before

investigations of the officer shootings had been completed, and (3) a number of

concerning issues in the investigation of Stephens’ shooting. The practices of the

Sheriff’s Office before the Stephens shooting suggest the existence of a custom.

See id. When that suggestion is considered with the evidence from this shooting,

including Sheriff Bradshaw’s comments to the press and the lack of a thorough

investigation, there is a triable issue.

      First, Stephens presented adequate evidence of a lack of discipline within the

Sherriff’s Office. Between September 2009 and September 2013, the Sheriff’s

Office entered into 16 separate settlements of lawsuits alleging improper use of

force. While settlements are not admissions of guilt, they are also not proof of

innocence; thus reaching a settlement agreement does not mean that the Sheriff’s

1
 Sheriff Bradshaw did not put any evidence into the record regarding any prior discipline. The
district court cited to another case to supply evidence that an officer had been disciplined for his
use of force. However, we cannot take judicial notice of a fact found true in another action,
without more. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).

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Office’s use of force was appropriate. Under the summary judgment standard,

these settlements can, at the least, serve as evidence that the Sheriff’s Office used

force on at least 16 occasions. See Griffin v. City of Opa-Locka, 261 F.3d 1295,

1315 (11th Cir. 2001) (“[T]he issue of municipal liability allows for a broad

inquiry into other [claims of wrongdoing] . . . .”). Also, two veteran officers with

over 25 years of service stated that no Sheriff’s Office police shooting has ever

been deemed unjustified. Finally, Sheriff Bradshaw promoted Lin to Sergeant in

2015, two years after shooting Stephens. Despite a number of shootings involving

Sheriff’s Office deputies, no officer has ever been punished, no shooting has ever

been deemed unjustified, and one deputy who shot a civilian was promoted—all

evidence tending to show a lack of discipline in the Sherriff’s Office.

     Second, Stephens presented adequate evidence of the Sherriff’s Office’s

biased investigations. Stephens submitted evidence of post-shooting press releases

and statements by Sheriff Bradshaw, most of which state that an investigation is in

its “preliminary stages” or is “ongoing.” Sheriff Bradshaw’s declarations that the

officers acted legally despite the existence of an “ongoing investigation” indicate

that the outcome of the investigations were pre-determined.

     For example, in a 2008 press release on a shooting by a deputy, the Sheriff’s

Office stated that “[t]he deputy discharged his firearm multiple times in

self-defense” yet in the next paragraph stated, “This case is under investigation.”


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In another circumstance, only a day after a Sheriff’s Office deputy fatally shot a

16-year-old boy, the Sheriff’s Office issued a press release stating that “[t]he

deputy was justifiably in fear of his life.” And in a 2012 press release, the

Sheriff’s Office stated that it was investigating a deputy-involved shooting, but that

same day Sheriff Bradshaw told The Palm Beach Post that “[t]he suspect was

going to shoot our deputy, we had to shoot first.”

     These statements of confidence are not necessarily false. However, when

we take this evidence in the light most favorable to Stephens, it shows a

prejudgment that likely influenced the outcome of investigations.

     Third, Stephens also presented evidence from his own shooting, which

cements his Monell claim. See Salvato, 790 F.3d at 1297 (holding that post-event

“evidence can shed some light on what policies existed in the city on the date of an

alleged deprivation of constitutional right[s]” and can “lend weight to a finding that

there was a policy behind the actions which led to the constitutional violation.”

(internal quotation marks omitted)). When the pre-shooting evidence is combined

with the evidence from Deputy Lin’s shooting of Stephens and viewed in the light

favorable to Stephens, there is a triable issue of fact about whether the custom

tolerating excessive force existed.

     Sheriff Bradshaw and every other Sheriff’s Office employee involved in this

shooting unequivocally endorsed Deputy Lin’s actions and adopted his version of


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events—notwithstanding the availability of contradictory video evidence. Sheriff

Bradshaw publicly declared, on the morning of the shooting, that Deputy Lin “did

the right thing.” Specifically, Sheriff Bradshaw stated:

             The guy bailed off the bike, ran between two parked cars.
             The deputy bailed out of his car, yelling to him the whole
             time, “Stop, put up your hands, stop.” The deputy goes
             around the other side of the car to cut him off and
             apprehends him. That’s when the guy came out with the
             dark object and started to turn towards the deputy . . . .
             There’s nothing in the rules of engagement that says we
             have to put our lives in jeopardy to wait to find out what
             this is and get killed.


The video contradicts this statement. First, Stephens did not run between two

parked cars—he walked off his bike towards Deputy Lin in a slow, non-threatening

manner after following Deputy Lin’s command for Stephens to come towards him.

Second, Stephens did not pull out a dark object at that point—from the time he got

off the bike until he was shot, Stephens had his phone in his right hand. And third,

Stephens did not turn toward Lin—he turned away. This is all apparent from the

video, which was available for immediate review. Moreover, in a statement later

that day, the Sheriff’s Office said it was investigating the shooting, while also

declaring:

             The subject was riding a bicycle, threw the bike down
             and attempted to run away. The deputy gave verbal
             commands to “STOP,” “Let me see your hands.” The
             subject pulled a dark object from his waist band and was
             shot three times by the deputy. The subject was
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             transported to St. Mary’s Medical Center and is listed in
             critical condition.

But, again, this is contradicted by video evidence.

     Detective Smith, the officer in charge of investigating the shooting, watched

the dash camera video of the shooting before taking Deputy Lin’s sworn statement.

Yet when Deputy Lin made statements that contradicted the video, Smith did not

question Deputy Lin’s assertions. When confronted during his deposition about

why he did not challenge Deputy Lin about the inconsistencies between Deputy

Lin’s statement and the video, Smith stated that he did not see the cellphone in

Stephens’ right hand during the dash camera video because they were “going so

fast,” and he “just didn’t notice it.” In fact, Smith testified that he did not realize

that Stephens was holding the cellphone in his right hand, or that Deputy Lin’s

sworn statement was inconsistent with the video evidence, until the day of his civil

deposition—nearly a full year later.

     And one of the most troubling aspects of this whole investigation is that no

one ever interviewed Stephens about his version of events. Neither investigator

reviewing the shooting even tried to contact or interview Stephens. They also

never contacted any witness to the shooting, or any witness to attest to whether

Stephens actually impeded traffic—a charge Stephens denies and a charge that

formed the only other basis for pulling Stephens over besides the dubious claim

that Stephens was “unfamiliar.” The Sheriff’s Office offered no explanation for
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these investigatory shortcomings, as is noted in the district court’s summary

judgment order.

     Yet despite all of this evidence, the district court found that a custom did not

exist because Stephens did not definitively put forward evidence of a prior

unconstitutional shooting. However, the unconstitutionality of Stephens’ shooting

alone could arguably be enough to find a custom of tolerating excessive force. See

City of Oklahoma City v. Tuttle, 471 U.S. 808, 832, 105 S. Ct. 2427, 2440 (1985)

(Brennan, J., concurring) (“A § 1983 cause of action is as available for the first

victim of a policy or custom . . . as it is for the second and subsequent victims; by

exposing a municipal defendant to liability on the occurrence of the first incident,

it is hoped that future incidents will not occur.”); Vineyard v. Cty. of Murray, 990

F.2d 1207, 1212 (11th Cir. 1993) (per curiam) (“We have noted that a single

constitutional violation may result in municipal liability when there is sufficient

independent proof that the moving force of the violation was a municipal policy or

custom.” (internal quotation marks omitted)).

     Looking at the totality of the evidence and drawing inferences in Stephens’

favor, a jury could find that the Sheriff’s Office had a custom of tolerating the use

of excessive force.

     Stephens also presented adequate evidence to establish a causal link. The

causal link here was shown by the depositions of Deputy Lin himself and Chief


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Tucker, a use of force expert for the plaintiff’s side.2 See Vineyard, 990 F.3d at

1213 (upholding the causation element of a Monell claim based on expert

testimony).

      Chief Tucker provided sworn expert testimony that Sheriff Bradshaw’s

“routine and uncritical ratification of his deputies’ use of force was causally

connected” to Deputy Lin’s use of deadly force against Stephens. His expert

affidavit was based not only upon the standard operating procedures at Sheriff’s

Office, which sent a message to all deputies that excessive force would not be

properly investigated, but also upon Deputy Lin’s admissions of what he knew

about those procedures.

      Chief Tucker opined that Deputy Lin’s admitted knowledge of how past

officer involved shootings were handled, plus Deputy Lin’s own experience with

use of force alerts and incidents, likely convinced Deputy Lin that nothing would

happen to him if he overreacted in using deadly force. Chief Tucker’s expert

report states that Sheriff Bradshaw’s routine ratification of his deputies’ actions

sent a message to his deputies, and to the Internal Affairs investigators, that

excessive force would be tolerated.



2
  Chief Tucker was the Chief of Police for 23 years in various cities including Tallahassee,
Florida. In addition, he served as the Vice-Chairman of the Florida Criminal Justice Standards
and Training Commission for three years, which was responsible for establishing minimum
standards for the employment and training of all Florida law enforcement officers, including the
training of officers on use of force.
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      Considering the custom evidence and the causal link testimony under the

summary judgment standard, Stephens presented enough evidence to create a

triable issue of fact.

       I respectfully dissent.




                                          39
