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holding that the Federal Rules of Civil Procedure do not distinguish between video depositions to be taken for trial and discovery depositions
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Case No. 8:01-cv-2120-T-24 MAP
November 11, 2002
ORDER
This cause comes before the Court on Defendant Pinellas County Sheriff's Motion for Summary Judgment (Doc. No. 85), Plaintiff's Motion for Summary Judgment on Count VI (Doc. No. 94), and Defendant Eric Gibson's Motion for Summary Judgment (Doc. No. 124). Plaintiff has filed responses in opposition to Defendants' motions (Doc. Nos. 122 and 134, respectively). Defendant Sheriff Everett Rice has responded in opposition to Plaintiff's motion (Doc. No. 126).
I. Factual Background
On August 18, 2000, a Special Weapons and Training ("SWAT") team of the Pinellas County Sheriff's Office ("PCSO") entered a home located at 1718 South Washington Avenue, Clearwater, Florida. The purpose of the entry was to serve a search warrant on Plaintiff Torrance Marshall ("Plaintiff"). (Doc. No. 31, Gibson's Dep. at 41). Defendant Deputy Eric Gibson ("Gibson") led a team of eight deputies into the residence. At the time of the incident, Gibson carried in his left hand a ballistic shield that measured three feet by two feet with a small view port and in his right hand a Beretta 92D Centurion pistol. (Doc. No. 31, Gibson's Dep. at 49-50, 53). To gain entry to the residence, the SWAT team broke through the front door with a battering ram and then threw two "flash bangs" into the residence. (Doc. No. 31, Gibson's Dep. at 55-60). One "flash bang" was thrown through the bathroom window; the SWAT team attempted to throw the other flash bang through the front door, but it bounced off of the door frame and landed at the feet of the deputies as they were trying to enter the residence. (Doc. No. 31, Gibson's Dep. at 59-60).
In addition to the eight member entry team, another SWAT team was assigned to the perimeter of the duplex for a total of approximately fifteen officers. (Doc. No. 66, Jowell's Dep. at 28). Although Sergeant Sean Jowell was the leader of the SWAT team, Gibson was the "point man." (Doc. No. 154, Pupke's Dep. at 106). As point man, Gibson's duties included leading the team into the residence and handling the tactical ballistic shield.
There is a factual dispute as to whether the SWAT team knocked on the door of the residence prior to entry. Team leader, Sergeant Sean Jowell, said in his deposition that a team member said "Police with a search warrant" three times prior to entry of the residence. (Doc. No. 66, Jowell's Dep. at 17).
Upon entry into the residence, Gibson encountered Plaintiff at a distance often to twelve feet. (Doc. No. 31, Gibson's Dep. at 66). Gibson ordered Plaintiff to take his hand out of his pocket. (Doc. No. 31, Gibson's Dep. at 74). Plaintiff appeared unarmed. (Doc. No. 31, Gibson's Dep. at 74). Plaintiff did not appear to be resisting arrest or attempting to flee. (Doc. No. 66, Jowell's Dep. at 24-25). Gibson claims that, simultaneous with confronting Plaintiff, he lost his balance either by stumbling over an inanimate object or being bumped from behind by another officer or both. (Doc. No. 31, Gibson's Dep. at 74-75). Gibson's weapon discharged, and the bullet entered Plaintiff's left cheek.
There is a factual dispute as to Plaintiff's location in the residence when the SWAT team entered.
There is a factual dispute as to whether both of Plaintiff's hands were in the air or Plaintiff's right hand remained in his pocket after Gibson ordered Plaintiff raise his hands in the air.
Gibson was hired by the PCSO in May of 1995. (Doc. No. 31, Gibson's Dep. at 13). He was regularly assigned as a detective to the PCSO narcotics undercover unit and was a member of the volunteer, on-call, Pinellas County SWAT team. (Doc. No. 31, Gibson's Dep. at 8-9, 12). Prior to the raid on August 18, 2000, Gibson had last volunteered for SWAT duty in August of 1998. (Doc. No. 31, Gibson's Dep. at 12). Gibson knew nothing about Plaintiff prior to the August 18, 2000 incident. (Doc. No. 31, Gibson's Dep. at 44).
On November 11, 2001, Plaintiff filed his original complaint. (Doc. No. 1). Plaintiff has since filed an amended complaint. (Doc. No. 104). On August 12, 2002, Defendants moved this Court to strike Plaintiff's amended complaint. (Doc. No. 115). This Court struck Count VII of the amended complaint. (Doc. No. 146). Plaintiff's remaining counts include the following: Count I — Excessive Force by Deputy Gibson; Count II — Customs of Violating Civil Rights by Sheriff Rice; Count III — Negligent Assignment by Sheriff Rice; Count IV — Negligent Training by Sheriff Rice; Count V — Battery by Deputy Gibson; and Count VI — Sheriff Rice's Vicarious Liability for Deputy Gibson's Negligent Handling of a Firearm.
Specifically, Plaintiff claims in his amended complaint that Gibson used excessive force in effectuating Plaintiff's arrest, thereby violating his constitutional rights under the Fourth Amendment. Plaintiff further claims that the PCSO, through Defendant Sheriff Everett Rice ("Rice"), has a custom of violating rights protected by the Fourth Amendment, and has negligently assigned and trained its deputies. Moreover, Plaintiff alleges that Gibson committed a battery upon him and that Rice should be vicariously liable for Gibson's negligent handling of his firearm. In response, Gibson and Rice repeatedly argue that relief should be denied because the shooting was an unintentional accident. II. Standard of Review
The Court notes that neither Gibson nor Rice argued that qualified immunity bars the suit. Accordingly, the Court will not address this defense.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A moving party discharges its burden on a motion for summary judgment by "showing" or "pointing out" to the Court that there is an absence of evidence to support the non-moving party's case. Id. at 325. Rule 56 permits the moving party to discharge its burden with or without supporting affidavits and to move for summary judgment on the case as a whole or on any claim. See id. When a moving party has discharged its burden, the non-moving party must then "go beyond the pleadings," and by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing there is a genuine issue for trial. Id. at 324.
In determining whether the moving party has met its burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, the Court must draw inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. See Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989); Samples on behalf of Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). The Eleventh Circuit has explained the reasonableness standard:
In deciding whether an inference is reasonable, the Court must "cull the universe of possible inferences from the facts established by weighing each against the abstract standard of reasonableness." [citation omitted]. The opposing party's inferences need not be more probable than those inferences in favor of the movant to create a factual dispute, so long as they reasonably may be drawn from the facts. When more than one inference reasonably can be drawn, it is for the trier of fact to determine the proper one.WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988).
Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion. See Augusta Iron Steel Works v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988). A dispute about a material fact is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248 (1986). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
III. Motions for Summary Judgment
Three motions for summary judgment have been filed in this case. Rice has moved this Court to grant summary judgment in his favor as to Counts II, III, IV, and VI. Gibson seeks summary judgment as to Counts I and V. Plaintiff has moved this Court to grant summary judgment in his favor as to Count VI. Since each of the these pending motions address separate counts, the Court will address the motions by count in the order that those counts appear in the amended complaint.
A. § 1983 Claims
1. Count I — Excessive Force of Deputy Gibson
In Rice's motion for summary judgment, Rice argues that this Court should not allow Plaintiff to proceed with his excessive force count because Plaintiff's claims of being unarmed and unlawfully subjected to a search warrant would impeach Plaintiff's criminal conviction. See Heck v. Humphrey, 512 U.S. 477, 486 (1994). However, the Eleventh Circuit has said that "a finding of excessive force by the jury in a civil case does not necessarily call into question the validity of [the plaintiff's] criminal conviction." Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir. 2001), vacated and remanded on other grounds, 2002 U.S. LEXIS 5395 (U.S. Oct. 7, 2002); accord Nelson v. Jashurek, 109 F.3d 142, 147 (3d Cir. 1997). Unlike Heck, in the present action, Plaintiff is not attacking his conviction. Furthermore, it is not necessary for Plaintiff to prove the unlawfulness of his conviction to prevail in his excessive force claim. See Heck, 512 U.S. at 486. Thus, Heck does not bar Plaintiff from proceeding with this claim.
Defendant Gibson moves this Court to grant summary judgment in his favor on Plaintiff's claim that Gibson used excessive force by aiming and shooting his weapon at Plaintiff's face (Doc. No. 124). The Supreme Court has instructed 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." Graham v. Connor, 490 U.S. 386, 395 (1989). The determination of whether the force used is reasonable "requires a careful balancing `of the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396 (internal quotations omitted) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S. 696, 703 (1983))).
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 (1979), "its proper application requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Therefore, courts must analyze use of force 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." Id. at 369-97. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97. Using these principles, the Court now turns to Plaintiff's excessive force claim.
In addressing each of the three Graham factors, this Court must draw inferences from the evidence in the light most favorable to Plaintiff, the non-moving party, and resolve all reasonable doubts in that party's favor. The first Graham factor is the severity of the crime at issue. The purpose of the SWAT team's presence at the residence on August 18, 2000, was the service of a high-risk narcotics search warrant. The service of the warrant was originally scheduled for August 17, 2000. However, because Plaintiff was not present at the residence on that day, the service of the warrant was postponed. (Doc. No. 152, Mosley's Dep. at 25-26). Prior to entering the residence on August 18, 2000, the SWAT team was not aware of any specific crime being committed in the residence at that moment. (Doc. No. 152, Mosley's Dep. at 40). However, the SWAT team — as opposed to a single uniformed deputy with one marked patrol vehicle as required in the service of a low risk search warrant — was assigned to the execution of the search warrant because Plaintiff had previously been arrested for possession of narcotics and such violent crimes as resisting arrest, fleeing and eluding police, armed robbery with a firearm, and aggravated battery. (Doc. Nos. 90 91, Marshall's Dep. at Plaintiff's Exh. 1-A; Doc. No. 152, Mosley's Dep. at 40-41). Therefore, the Court concludes that the potential criminal activity occurring in the residence was sufficiently severe to satisfy the first prong of the Graham analysis.
A corporal with the narcotics division of the PCSO explained that this was a high-risk situation because Plaintiff was a drug dealer ("drug dealers carry weapons") that had previously been arrested for violent crimes. (Doc. No. 152, Mosley's Dep. at 41).
The second Graham factor addresses whether the suspect poses an immediate threat to the safety of the officers and others. After the SWAT team entered the residence, Gibson pointed a gun at Plaintiff, who was a distance often to twelve feet away from Gibson. (Doc. No. 31, Gibson's Dep. at 66). Like every other member of the SWAT team, Gibson was wearing a bulletproof vest, helmet, and protective eyewear. Further, Gibson was carrying a ballistic shield that measured three feet by two feet. Plaintiff, on the other hand, appeared unarmed with at least one hand up in the air as instructed by Gibson. (Doc. No. 31, Gibson's Dep. at 74). Two other deputies who were present at the time of the shooting testified that Plaintiff appeared unarmed and that the situation was not one in which either of those particular deputies would have shot Plaintiff. (Doc. No. 66, Jowell's Dep. at 24; Doc. No. 184, Pupke's Dep. at 55). Thus, it appears that Plaintiff did not pose an immediate threat to the safety of anyone present.
Finally, under Graham, this Court must determine whether Plaintiff was actually resisting arrest or attempting to evade arrest. Sergeant Jowell, the leader of the SWAT team that day, admitted that Plaintiff was not resisting or evading arrest. (Doc. No. 66, Jowell's Dep. at 24-25). At no point in his deposition does Gibson argue otherwise. Instead, Gibson explains that the discharge of his firearm was non-culpable and involuntary. Gibson claims that in the process of entering the residence he stumbled over something or was bumped by another deputy in such a way that he lost his balance causing his finger to accidentally slip from the barrel and onto the trigger with enough force to discharge the weapon. (Doc. No. 31, Gibson's Dep. at 74-75). Plaintiff and the deputy who stood behind Gibson during the entry of the residence deny that Gibson lost his balance. (Doc. No. 90, Marshall's Dep. at 115; Doc. No. 154, Pupke's Dep. at 49-50). Nevertheless, Gibson argues that he unintentionally shot Plaintiff in the face at a distance of three to four feet. (Doc. No. 31, Gibson's Dep. at 82). This Court notes, however, that Gibson's intent or motivation is not relevant as neither intent nor motivation is a factor in the objective reasonableness analysis outlined in Graham. As the Supreme Court has explained, "the question is whether the officers' actions are `objectively reasonable' in light of facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham at 397 (citations omitted). As there remains a dispute of material fact, Plaintiff's claim of excessive force should be properly tried before a jury, and not decided by this Court in summary judgment. Accordingly, Gibson's motion for summary judgment as to Count I is DENIED.
In his deposition, Sergeant Sean Jowell said that the Beretta 92D is a double-action pistol with a "long trigger pull" that "takes a while to fire." (Doc. No. 66, Jowell's Dep. at 93-94).
2. Count II — Customs of Violating Civil Rights by Sheriff Rice
Rice moves for summary judgment on Count II. Plaintiff alleges a § 1983 claim against Rice in his official capacity for maintaining an unwritten custom of permitting deputies to violate Fourth Amendment rights of individuals, and having a policy of inadequate supervision, discipline, and training. Respondeat superior or vicarious liability will not attach under § 1983. Local governments may be held liable under § 1983 only for the execution of a governmental policy or custom.See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Clearly, a local government employee who acted according to a formal written policy of the local government (such as an ordinance, regulation, etc.) would be acting so as to render the local government potentially liable for his or her actions. In this case, Plaintiff has come forward with no evidence that the alleged violations resulted from a formal written policy of the PCSO.
Plaintiff's claims against Rice "in his official capacity" really amount to claims against the PCSO. "Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity's policy or custom must have played a part in the violation of federal law [or the Constitution]." Merideth v. Grogan, 812 F. Supp. 1223, 1231 n. 5 (N.D. Ga. 1992) (quoting Hafer v. Melo, 502 U.S. (1991)).
However, because "[a] county must be held accountable for more than its officially-codified policies," Van Ooteghem v. Gray, 628 F.2d 488, 494 (5th Cir. 1980), "the court should examine not only the relevant positive law, including ordinances, rules, and regulations, but also the relevant customs and practices having the force of law." Mandel v. Doe, 888 F.2d 783, 793 (11th Cir. 1989). To prove § 1983 liability against a county or municipality based on a custom or policy, a plaintiff must establish a widespread practice that, although not authorized by written law or express policy, "is so permanent and well settled as to constitute a `custom or usage with the force of law.'" Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (citations omitted). "In other words, a longstanding and widespread practice is deemed authorized by the policy making officials because they must have known about it but failed to stop it." Id. Further, the municipal policy or custom must have directly caused the alleged constitutional deprivation. See Canton v. Harris, 489 U.S. 378, 386 (1989).
Decisions of the former Fifth Circuit filed prior to October 1, 1981 constitute binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
First, Plaintiff argues that Rice does not adequately train Pinellas County deputies. Specifically, Plaintiff states that Rice allowed Gibson to participate in SWAT activities without adequate training and after Gibson had failed handgun qualification tests and missed training days. The Supreme Court has stated that there are limited circumstances in which "failure to train" may be the basis for § 1983 liability.Id. at 387. "Only where a failure to train reflects a `deliberate' or `conscious' choice by a municipality — a `policy' as defined by our prior cases — can [the county] be liable for such a failure under § 1983." Id. at 389.
The Court notes that these arguments are more applicable to Plaintiff's pendant state law claim of negligent assignment.
It is undisputed that Rice offered training classes and required attendance as evidenced by the sign-in sheets. However, "the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform." Id. at 390. Prior to joining the PCSO SWAT team, each prospective member must attend a two week SWAT training class. (Doc. No. 154, Pupke's Dep. at 86). Once a deputy joins the SWAT team, the training schedule includes an annual forty-hour block of SWAT training, a monthly three-hour block of handgun training, and a monthly eight-hour day devoted to training. (Doc. No. 154, Pupke's Dep. at 87). Plus, twice a month, Gibson attended tactical shooting classes in which he practiced shooting while carrying the tactical shield. (Doc. No. 31, Gibson's Dep. at 30). The Court concludes that this training was adequate in relation to the tasks that the SWAT team members performed.
However, even if the SWAT team training had been inadequate, Plaintiff would need to establish that the inadequate training was part of a governmental custom or policy. See Kerr v. City of West Palm Beach, 875 F.2d 1546, 1555 (11th Cir. 1989). To meet this heavy burden,
Plaintiff must prove that the failure to adequately train manifested the government's deliberate indifference to the safety of its inhabitants.See id. A government policy cannot be established by a single incident.See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Thus, the Court concludes that there is insufficient evidence for a reasonable jury to find that this is one of the limited circumstances in which the government had a policy of failing to train deputies in deliberate disregard of the safety of its citizens.
Second, Plaintiff argues that Rice has a custom of not adequately disciplining deputies who shoot citizens. A municipality's failure to take remedial steps to correct constitutional violations is not deemed a policy unless "the failure to take remedial steps . . . amount[s] to a deliberate indifference or tacit authorization of the offensive acts."Cannon v. Taylor, 782 F.2d 947, 951 (11th Cir. 1986) (citing Turpin v. Mailet, 619 F.2d 196 (2d. Cir. 1980). As the Eleventh Circuit has stated, "a persistent failure to take disciplinary action against officers can give rise to the inference that a municipality has ratified conduct, thereby establishing a `custom' within the meaning of Monell."See Fundiller v. Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985) (citations omitted) (emphasis added). The PCSO employs over 700 deputy officers. (Doc. No. 155, Rice's Dep. at 124). To investigate a shooting incident by one of its officers, the PCSO has created a Shooting Review Board composed of high-ranking members of the PCSO. (Doc. No. 155, Rice's Dep. at 37). The State of Florida does not require such an investigative board. (Doc. No. 155, Rice's Dep. at 107). Through deposition testimony, Plaintiff has produced evidence of approximately 17 shootings, some fatal and some not, by PCSO officers in the last three years. For each of these seventeen shootings, the PCSO conducted a separate Shooting Review Board investigation. (Doc. No. 81, Vincent's Dep. at 24). The Board makes a recommendation as to whether the shooting violated department policy. Since 1989, Rice has approved every Shooting Review Board recommendation that he has reviewed. (Doc. No. 155, Rice's Dep. at 37-38). Although neither the Shooting Review Board nor Rice have found shootings by a deputy to warrant discipline, Rice has disciplined deputies for unnecessary or excessive force. (Doc. No. 155, Rice's Dep. at 90-91). Upon consideration, this Court cannot find that Rice has persistently failed to take disciplinary action where such action was warranted.
In his deposition, the PCSO Director of Personnel and Training, Herman Vincent, testified that there were nine shooting incidents in the sixteen months prior to August 18, 2000. (Doc. No. 81, Vincent's Dep. at 26-27). Further, he stated that between May 1999 and June 2002 there were seventeen separate Shooting Review Board investigations. (Doc. No. 81, Vincent's Dep. at 24). In not one of these seventeen investigations has the Shooting Review Board found a failure of department policy. (Doc. No. 81, Vincent's Dep. at 27).
If a shooting by a deputy is fatal, then the State Attorney's office simultaneously reviews the shooting. (Doc. No. 155, Rice's Dep. at 107). Since Rice has been Sheriff, the findings of the State Attorney's office have never diverged from the findings of the shooting review board. (Doc. No. 155, Rice's Dep. at 107).
Therefore, as to Count II, Plaintiff has not produced sufficient evidence that could lead a jury to believe that the alleged violations stemmed from a widespread practice of not adequately disciplining deputies involved in shooting incidents. Additionally, Plaintiff has not met his burden of proving that this case fits the limited circumstances where a failure to train may be a basis for § 1983 liability. Accordingly, Rice's motion for summary judgment as to Count 11 is GRANTED.
B. Pendant State Claims
1. Counts III IV — Negligent Assignment and Training by Sheriff Rice
Rice moves for summary judgment as to Counts III and IV. In Rice's motion for summary judgment, he argues that decisions concerning assignment and training of officers are discretionary decision-making functions, and as such Plaintiff's claims of negligent assignment and training are barred by sovereign immunity. Rice, in his official capacity, is a subdivision of the State of Florida. See Beard v. Hambrick, 396 So.2d 708, 711 (Fla. 1981) ("Section 768.28 is applicable to sheriffs as a separate entity or agency of a political subdivision."). Thus, assuming Plaintiff can prove that Rice breached a duty owed to Plaintiff, this Court must first determine whether the challenged aspects of assignment and training are discretionary or operational government functions. See Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001).
"[A]n act is `discretionary' if it involves an `exercise of executive or legislative power such that, for the court to intervene by way or tort law would inappropriately entangle it in fundamental questions of policy and planning.'" Lewis, 260 F.3d at 1264-65 (quoting Department of Health and Rehabilitative Service v. Yamuni, 529 So.2d 258, 260 (Fla. 1988)). "Conversely, an `operational' act is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented." Lewis, 260 F.3d at 1265 (citation omitted).
For Count III. Plaintiff challenges the assignment of Gibson as point man in the August 18, 2000 execution of a search warrant. The Florida Supreme Court has held that the assignment of juveniles to particular locations within a detention facility is an operational act. See Department of Health Rehabilitative Services v. Whaley, 574 So.2d 100, 104 (Fla. 1991). As the Florida Supreme Court has previously stated, "[t]his lawsuit merely asks the courts to consider the way in which this basic policy is implemented, not its fundamental wisdom." Kaisner v. Kolb, 543 So.2d 732, 737 (Fla. 1989). Similarly, the assignment of Gibson as point man was an operational act involving the implementation of policy. Accordingly, Plaintiff's claim of negligent assignment is not barred by sovereign immunity.
Plaintiff claims that in light of Gibson's failures of handgun tests and failures to attend handgun and/or SWAT training exercises, Rice should not have made Gibson the point man for the SWAT team assigned to serve the search warrant on the residence. interpreting the facts in the light most favorable to the non-moving party' it is possible that a reasonable jury could find that Rice was negligent in assigning Gibson as point man for the high risk search warrant served on August 18, 2000. Therefore, Rice's motion for summary judgment as to Count III is DENIED.
Rice also moves for summary judgment on Count IV. In Count IV, Plaintiff argues that Rice negligently trained Gibson. Recently, the Eleventh Circuit held that a negligent training claim challenging how a municipality trains its officers and what subjects are included in the training challenges a discretionary function, rather than operational function, therefore insulating the government from tort liability. See Lewis, 260 F.3d at 1266. Plaintiff argues that he is challenging the implementation of the training — what Plaintiff claims to be the operational, and not the discretionary aspect of training. However, in the amended complaint, Plaintiff faults the subject matter and supervisors of PCSO's training program. See Amended Complaint ¶ 77. "[Decisions] regarding how to train its officers and what subject matter to include in the training is clearly an exercise of governmental discretion regarding fundamental questions of policy and planning." Lewis, 260 F.3d at 1266. Accordingly, Plaintiff's claim against Rice for negligent training (Count IV) is barred by sovereign immunity. Therefore, Rice's motion for summary judgment as to Count IV is GRANTED.
2. Count V — Battery by Deputy Gibson
Gibson moves for summary judgment on Count V. Plaintiff claims that Gibson's act of shooting Plaintiff in the face constituted the intentional tort of battery. In his motion for summary judgment, Gibson argues that he clearly lacked the intent to shoot Plaintiff, and, therefore, did not commit a battery. There is a factual dispute as to whether Gibson's shooting was an involuntary, non-culpable accident as he claims. Whether Gibson really stumbled causing his finger to slip on the trigger with just enough pressure to discharge his firearm is a material fact that is still in dispute. As such, it is up to the jury to determine whether Gibson fired the gun intentionally or accidentally. See Swindal v. Prudential Property and Casualty Insurance Company, 599 So.2d 1314, 1315 (Fla. 2d DCA 1992). Thus, Gibson's motion for summary judgment as to Count V, Plaintiff's battery claim, is DENIED.
3. Count VI — Sheriff Rice's Vicarious Liability for Gibson's Negligent Handling of a Firearm
The elements of the intentional tort of battery include intent and contact. Specifically, "[am actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) an offensive contact with the person of the other directly or indirectly results." Miami v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996) (citations omitted).
Under Florida law, sheriffs are vicariously liable for the negligent acts of their deputies. See FLA. STAT. ANN. § 30.07 (2002) ("Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible."); see also Beard, 396 So.2d at 712.
Plaintiff and Defendant Rice both seek summary judgment as to Count VI of the amended complaint. Rice argues that Plaintiff was not in custody when he was shot, that Plaintiff cited no evidence of a particular duty owed by law enforcement to a potential arrestee, and that the shooting was an unintentional, non-culpable act.
Whether a victim was in custody is not determinative of whether a duty is owed by law enforcement. See Lewis, 260 F.3d at 1263 ("[W]hen a defendant, including a police officer, by his or her conduct creates a foreseeable zone of risk, the law imposes a duty owed by the defendant to all individuals within the zone to act with reasonable care."). Second, the applicable standard of care owed to a potential arrestee is no different from that owed to anyone else within the zone of risk as articulated in Lewis. See Lewis, 260 F.3d at 1264 (finding that two police officers owed a duty to a potential arrestee).
Finally, Rice alleges that the shooting was an unintended, non-culpable act that did not breach a duty to the Plaintiff. Plaintiff, however, argues that the shooting was a negligent act that breached a duty owed to the Plaintiff. As previously stated, there is a factual dispute as to whether Gibson's actions were intentional or accidental. Therefore, both motions for summary judgment as to Count IV are DENIED.
Upon consideration, it is ORDERED AND ADJUDGED that
1. Defendant Rice's Motion for Summary Judgment (Doc. No. 85) is GRANTED as to Counts II and IV and DENIED as to Counts III and VI;
2. Defendant Gibson's Motion for Summary Judgment (Doc. No. 126) is DENIED; and
3. Plaintiff's Motion for Summary Judgment on Count VI (Doc. No. 94) is DENIED.DONE AND ORDERED at Tampa, Florida.