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Hammett v. Paulding County

United States Court of Appeals, Eleventh Circuit

November 17, 2017

JUSTIN HAMMETT, as Administrator of the Estate of Daniel Hammett, Plaintiff - Appellant,
PAULDING COUNTY, GEORGIA, CITY OF DALLAS, GEORGIA, NATHALIE D. WHITENER, in her individual capacity, JOEY HORSLEY, in his individual capacity, JOSEPH MAYFIELD, in his individual capacity, Defendants - Appellees, GARY GULLEDGE, in his individual capacity and his capacity as Sheriff of Paulding County, Georgia, et al., Defendants.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 4:14-cv-00260-HLM

          Before JULIE CARNES and BLACK, Circuit Judges, and WILLIAMS, [*] Judge.

          BLACK, Circuit Judge

         On October 17, 2012, police officers Joey Horsley, Nathalie Whitener, and Joseph Mayfield, defendants-appellees in this case, executed a search warrant at a private residence in Hiram, Georgia, intending to seize methamphetamines suspected to be in the possession of Brenda Van Cleve. During the execution of the warrant, a confrontation ensued. Each of the officers fired one shot, two of which struck Daniel Hammett, Van Cleve's husband. Hammett died from his injuries, and plaintiff-appellant Justin Hammett (Plaintiff) brought this suit on behalf of Hammett's estate. The complaint alleges the officers used excessive force against Hammett in violation of the Fourth Amendment. The district court granted summary judgment, determining the officers were entitled to qualified immunity. Plaintiff appealed, and we affirm.

         I. BACKGROUND

         A. The Hammett Household

         At the time of his death, Daniel Hammett was married to Brenda Van Cleve. The two lived together in a house on Nebo Road with their son Clyde Dillon Hammett (Clyde), who was seventeen years old and in high school at the time of the incident. Together, Hammett and Van Cleve lived on Hammett's disability benefits of $650-$700 per month, plus Hammett's earnings from occasional repossession work he did for his son, Justin Hammett. Van Cleve was not otherwise employed.

         The Nebo Road residence is a small, one-story, three-bedroom house. A floor plan of the house and photos of the interior taken the day of the events giving rise to this suit are attached as an appendix to this opinion.[1] Hammett and Van Cleve covered all the windows and the front door with sheets of plastic and blankets, which they affixed to the walls with packing tape. See Appendix at 11- 14, 16, 18-19. They did not typically keep the lights on in the living room, kitchen, or hallway. Because the front door was sealed with tape, the family used the carport door for entry and exit. See id. at 3-5, 11, 14. The carport door leads into the kitchen and dining area, which is connected to the family room and from there the rest of the house by an archway. See id. at 1, 5-8, 12. The family hung a blanket in the archway for climate control purposes. See id. at 7-8. As a result of these measures, there was very little natural or artificial light in the interior of the house.

         B. Van Cleve's Drug Activity

         In October 2012, Van Cleve was addicted to methamphetamines. She had smoked meth regularly since the early 1990s, resulting in multiple convictions and various stints in prison. Van Cleve also frequently smoked marijuana. She was the only chronic drug user in the household. Hammett and Van Cleve used meth together in the mid-1990s and were incarcerated for doing so. Hammett had not used meth since, though at the time of his death he was taking oxycodone and other medications as directed by a doctor to treat his many health problems. Clyde stayed away from drugs entirely.

         C. The Search Warrant

         Van Cleve's meth use led to the events giving rise to this lawsuit. She was able to sustain her habit at no cost by having the drug "fronted" to her (i.e., receiving the meth without having to pay up front), selling a portion at a markup, and keeping the remainder for her own consumption. Van Cleve's drug activity eventually attracted the attention of law enforcement. Joey Horsley (Horsley), an agent with the Paulding County Sheriff's Office assigned to the Haralson-Paulding Drug Task Force, received information over the course of the several months preceding the incident that Van Cleve was selling meth from the carport of the Nebo Road residence. Horsley recruited a confidential informant to make a controlled purchase from her. The informant did so, successfully obtaining forty dollars' worth of meth from Van Cleve, which was recorded on video. Horsley subsequently applied for a warrant to search the house and on October 16, 2012, he obtained it. Horsley expected Van Cleve was a small-time dealer but thought that he might be able to track down her supplier by searching the house.

         D. The Search

         The search took place on Wednesday, October 17, 2012. At around 2:15 p.m., Horsley briefed the search team at the Paulding County Sheriff's Office. He advised the agents and deputies that the target of the search was Van Cleve and that there was no intelligence as to whether firearms were present at the house. As they prepared to execute the search warrant, the officers met in the parking lot of a grocery store near the Nebo Road residence. Members of the search team donned tactical bullet-proof vests, each bearing the designation "SHERIFF" or "POLICE" in large letters on the front and back. Among the group of officers were Nathalie Whitener (Whitener) and Joseph Mayfield (Mayfield), defendants-appellees in this case. Whitener wore a vest similar to Horsley's, with identical identifying markers, including the word "SHERIFF" emblazoned on the front and back in large letters. Officers Brian Rutherford (Rutherford), Mike Blackmon, Seth Cook, Scott Veal, and Jimmy Motes, none of whom are defendants in this case, accompanied Horsley, Whitener, and Mayfield to execute the search warrant. All of the officers wore police gear or uniforms easily identifying them as law enforcement. After the briefing, the officers drove to the Nebo Road residence in multiple marked and unmarked police cars and parked the vehicles in the driveway at around 3:15 p.m.

         Horsley did not anticipate any violent resistance from Van Cleve and the warrant did not contain a no-knock clause, so he and the other officers approached the house in an unhurried manner. When Horsley reached the carport door, he began knocking and announcing "Sheriff's Office, search warrant" in a loud but non-yelling voice. See Appendix at 3, 5. The other officers, including Whitener, Mayfield, and Rutherford, lined up behind Horsley next to the door in a "stack" as Horsley repeatedly knocked and announced "Sheriff's Office, " which continued for between fifteen and thirty seconds. No one inside the house answered.

         Having received no response, Horsley tried the doorknob and found it was unlocked. He called out "Sheriff's Office" again through the open door and asked if anyone was home. Still no one answered, so Horsley entered, followed by the other officers. The police had their firearms drawn and in the low-ready position, which is standard operating procedure in the execution of a search warrant in Paulding County. On entering the residence, the officers found it was very dark because there were no lights on in the kitchen, living room, or hallway, and there was no natural light because all the windows were covered.[2] The officers did not turn on any lights as they moved through the house.[3] The officers continued to call out "Sheriff's Office, search warrant" as they moved through the house. Still they received no answer.

         The officers cleared the kitchen. See id. at 5-7. Horsley, followed by Whitener and Rutherford, moved through the blanket-covered opening into the living room. See id. at 7-8 (showing the blanket on the floor and the doorway in which it hung during the search). Horsley turned to the left toward a hallway leading to the home's bedrooms and bathroom. He waited there facing the hallway for about five seconds, and again announced the officers' presence. See id. at 9- 10. Whitener turned to the right to face the front door area, see id. at 11, 14, and Rutherford turned further to the right to inspect an area in the far right-hand corner of the living room, see id. at 13. Horsley heard voices coming from down the hallway.

         The events that transpired next are the focus of the present dispute. In determining whether the officers were entitled to summary judgment, we must view the facts and make all reasonable inferences in the light most favorable to Plaintiff. In order to determine whether a material dispute exists, we begin by recounting the relevant evidence from each of the pertinent sources in detail as it appears in the record.

         1. Testimony of principal witnesses

         a. Horsley

         According to Horsley, as he stood facing the hallway, he could see a light coming from inside the computer room. See Appendix at 9-10. Watching the hallway, he saw a shadow emerge. Horsley announced again that he was from the Paulding County Sheriff's Office. A large man came out of the room and turned toward Horsley.[4] The man, who turned out to be Hammett, stopped for a second and Horsley saw that his hands were tucked into his waistband area. Horsley then saw him move something from his left hand to his right hand in a manner that concealed what he had. The flashlight attached to Horsley's pistol was illuminated and he pointed it at Hammett's waistband, announcing "Sheriff's Office, let me see your hands" as he did so. Horsley then decided he needed to get Hammett to the ground so the other officers could move through the hallway and secure the rest of the house so that it could be searched. Hammett did not obey Horsley's command to raise his hands, however, and made no verbal reply. Instead, Hammett stepped suddenly toward Horsley, sliding his body against the wall to Horsley's left (Hammett's right) in an apparent attempt to move around him. As he approached, Horsley dropped his firearm slightly, took a small step toward Hammett, and reached out his left hand toward Hammett to begin to subdue him, but he did not touch Hammett. Hammett quickly moved his right hand toward the left side of Horsley's head. As he did so, Horsley caught a brief glimpse of a shiny black object in Hammett's hands. Horsley thought Hammett was ambushing him with a weapon, and he responded by raising his firearm and shooting toward Hammett. Hammett cried out loudly in response to being hit by Horsley's bullet. As Horsley fired, he lurched backward to avoid Hammett's attack and fell. While he was falling, he heard two more shots in rapid succession and he feared that Hammett was the shooter. All of the foregoing occurred in a matter of seconds. After hearing the shots, Horsley scrambled backward, yelled for the other officers to get out of the house, and quickly exited the residence.

         b. Whitener

         The events unfolded in a similar manner in Whitener's telling. According to Whitener, as Horsley was looking down the hallway, Whitener was facing to the right into the living room. See Appendix at 11-14. Whitener heard Horsley say "show me your hands" or "let me see your hands" and immediately turned to the hallway to see what was happening. As Whitener looked, she saw Hammett facing in the direction of the officers, with his hands down near his waist as if to conceal something, disobeying the command to show his hands. Hammett said nothing in response to Horsley. Whitener also had a flashlight attached to her pistol, which she pointed at Hammett, attempting to determine what Hammett was carrying. After being ordered to do so again, Hammett still did not show his hands. Instead, in Whitener's words, Hammett "stepped over towards the right side of the hall and just started walking at us at a fast pace, " still "not showing his hands, " and "like hugging, basically hugging the wall." Whitener observed Horsley attempt to grab Hammett, and then saw Hammett suddenly reach up with his hands toward Horsley's face in an aggressive manner. She then heard a gunshot and saw Horsley lurch backward and begin to fall. Whitener immediately fired her weapon toward Hammett, who she feared was attempting to harm Horsley and had possibly shot him. As she fired, Hammett twisted to his right and it appeared to her that the shot hit him in the lower left side of his back. Whitener expressed some uncertainty in her deposition as to whether she or Horsley shot first and whether it was her bullet or Horsley's that struck Hammett's torso. However, she was clear that the shots were nearly simultaneous, within a second or a half-second of one another. As Horsley began yelling for the officers to get out of the house, Whitener fell backward into the living room and hid behind the couch near the front door. See id. at 14. She did not exit the residence, but remained hidden, listening to whispers between the remaining occupants and fearing for her life. Later, when the house was secured, Whitener was able to leave the building.

         c. Rutherford

         Rutherford, who is not a defendant in this case, provided the only other eyewitness account. According to Rutherford, as the officers entered the living room, he already had the flashlight on his firearm activated because it was dark and he could not see. He turned to the right toward the corner of the house, toward the end of the couch where a pile of clutter lay. See Appendix at 13. He thought the area was large enough for someone to be hiding there, based on the way the shadows were cast. Rutherford then heard Horsley say "show me your hands" or "let me see your hands." Shortly thereafter, Rutherford heard a gunshot. Rutherford pivoted to his left and his flashlight illuminated the words "SHERIFF" on the back of a tactical vest. He then heard another shot and saw a flash in front of the officer wearing the vest. After he heard that shot, the person wearing the vest-Rutherford did not yet recognize which officer it was-fell to the ground.[5]As he looked to the ground, Rutherford recognized the officer was Horsley. He thought Horsley was hurt. He grabbed Horsley and helped him exit the building. Rutherford testified that the only officer he saw was Horsley; he did not know where Whitener was at the time. After reaching down to help pick up Horsley, Horsley told him to get out, and Rutherford exited the building.

         d. Van Cleve

         Van Cleve was at home and admits she was under the influence of meth when the officers arrived.[6] She usually smoked meth and marijuana in the computer room, which is where she was when Hammett came home earlier that afternoon. See Appendix at 1 (showing the computer room as "Bedroom #2, " the first door in the hall on the right); id. at 10, 16 (photographs of the hallway and computer room). Van Cleve and Hammett were sitting in the computer room talking when they heard the officers announce "Paulding County Sheriff's Office, search warrant." The announcement sounded as if it came from the carport area.[7]Van Cleve and Hammett sat in the computer room for thirty seconds or so trying to figure out what to do. Then, Hammett got up and went out into the hallway while Van Cleve dashed straight across the corridor to the bathroom, intending to flush her meth down the toilet. She heard a male voice say "show me your hands" and "put your hands in the air." Van Cleve's deposition testimony is confusing, perhaps because, as she admits, she was under the influence of methamphetamines when the shooting occurred.[8] It is clear, however, she agrees a total of three shots were fired within the span of a few seconds. Van Cleve froze when she heard the first shot, failing to dispose of her drugs.

         When the officers exited the building, Van Cleve ran back and forth between the bathroom and the computer room in a state of shock. She was still carrying her meth when she was placed in a patrol car outside, but she was able to free her hands and swallow the drug while she was in the police car so that it would not be found.

         Van Cleve's testimony shed little light on what Hammett may have had in his hands when he left the computer room. In an interview conducted the day of the incident, of which the record contains only a summary, Van Cleve stated that Hammett was holding a clipboard when he left the computer room. At her deposition, however, she was unable to recall whether Hammett had anything in his hands, speculating that he may still have been carrying paperwork with which he had entered the room. When shown a picture of a bottle of pepper spray found in the hallway after the shooting, Van Cleve neither confirmed nor denied it was Hammett's. See id. at 20. She acknowledged Hammett owned pepper spray but she was not sure if he had it in his hands when he went out into the hallway, and she did not remember seeing the pepper spray in the hallway after the shooting.

         e. Clyde

         At the time of the shooting, Clyde was in his bedroom at the end of the hallway playing video games with headphones on one ear and his bedroom door shut. See Appendix at 1 (showing Clyde's room as "Bedroom #3"); id. at 10, 17, 19 (photographs of the hallway, the end of the hallway, and Clyde's room). He had come home from school about forty-five minutes earlier and gone straight into his room and closed the door. Clyde did not hear his father arrive at the house, nor did he hear any police pull up. While he was playing, he heard a male voice yell "Sheriff's Office." Clyde threw off his headphones, and then later heard a voice say "show me your hands." Then he heard two gunshots "one right after another, " within a second or two of each other. He did not hear Hammett, Van Cleve, or anyone else say anything during this time period. After hearing the shots, Clyde opened his door and went out into the hallway. He saw Hammett lying against the wall in the hallway next to the computer room about midway between the door opening and the corner of the living room, with his legs toward the living room and his head toward the bedrooms. See id. at 10 (showing a bloodstain on the right wall of the hallway). Clyde did not see anything in his father's hands. Hammett was not able to say anything to Clyde. Clyde saw blood coming from his father's shirt, so he knew he had been shot. At that point, because he was scared, Clyde returned to his bedroom. He later emerged at the command of a police officer, and was briefly placed into custody.

         Clyde confirmed that Hammett usually carried a can of pepper spray for use in his repossession work and that he would keep the pepper spray in his pocket. He also agreed that the can of pepper spray shown in the incident photographs was Hammett's and that it was found by Hammett's body, though he did not see it there when he first went into the hallway. See id. at 20.

         2. Other evidence

         a. Facts pertaining to Mayfield

         The parties agree the single shot Mayfield fired did not strike Hammett and was discharged after Hammett had already been hit by the first two bullets. Mayfield was part of the search team and entered the kitchen from the carport behind Horsley and Whitener. As Mayfield followed Horsley and Whitener into the building, Mayfield got "hung up" in the doorway between the kitchen and the living room, in which a blanket was hanging. See Appendix at 7-8 (showing the blanket on the floor and the doorway in which it was hung). Mayfield heard two gunshots and then turned and saw Horsley fall to the ground. He believed Horsley had been hit. After he heard the shots fired, he discharged one round from the kitchen in the general direction of the perceived threat, though he did not see Hammett and did not know who had fired the two shots. His bullet was never recovered, though there is some evidence that it may have actually struck the back of Whitener's bullet-proof vest.

         b. The autopsy report

         Hammett's autopsy report shows that although shorter than average, Hammett was a large man. He stood five feet six inches tall and weighed 241 pounds. The report describes two wounds. The fatal wound was a gunshot to the torso. The wound of entrance was found on the back-left side of the torso, eight centimeters to the left of the midline and fifty-three centimeters from the top of the head. The bullet followed a left-to-right, back-to-front and slightly downward direction through Hammett's torso. The projectile did not exit the body, but caused a bruise on Hammett's abdomen three centimeters to the right of the midline ...

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