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Severe v. City of Miami

United States District Court, S.D. Florida

June 25, 2019

FRANCOIS SEVERE, as Personal Representative of the Estate of FRITZ SEVERE, Plaintiff,
CITY OF MIAMI and ANTONIO VICENTE TORRES, IV, individually and in his capacity as a City of Miami Police Officer, Defendants.



         THIS CAUSE arises from Defendants', Officer Antonio Vicente Torres, IV, and the City of Miami (collectively, the “Defendants”), Motion for Summary Judgment (the “Motion for Summary Judgment”) [ECF No. 56] and Defendants' Motion in Limine to Exclude Testimony of Mr. Charles Drago (the “Motion in Limine”) [ECF No. 58]. The Court has reviewed the motions, the record, and the applicable law. For the following reasons, Defendants' Motion for Summary Judgment is granted in part and denied in part. Defendants' Motion is granted as to Count I - Plaintiff's Section 1983 excessive force claim against the City of Miami (the “City”) and denied with respect to Count II - Plaintiff's Section 1983 excessive force claim against Officer Antonio Vicente Torres, IV (“Officer Torres”). Plaintiff's Florida Wrongful Death Act, Fla. Stat. §§ 768.16-768.28, claims against both Defendants, Counts III and IV, are dismissed with prejudice for failure to state a claim on which relief can be granted. Defendants' Motion in Limine is granted as to Mr. Drago's second and third opinions but denied as to all others.


         This action challenges Officer Torres's use of deadly force that resulted in Fritz Severe's (“Severe”) death during an investigatory stop. At the heart of the case is whether Officer Torres violated Severe's Fourth Amendment right to be stopped and/or seized without excessive force when he shot him ten times after Severe was incapacitated.

         I. The June 2015 Shooting

         Gibson Park is a community park in Miami that contains a football field, bleachers, and a grassy area. Across the street is a public library, Culmer Overtown Branch Library. There are two grass lawns in front of the library, separated by a walkway leading to the front door. The distance across the walkway is about nine feet; the distance from the edge of the walkway to the front door is about thirty-two feet.[1] See Appendix A.

         Antonio Sanders, a City employee, led one of many summer camps at Gibson Park football field during the summer of 2015. On the morning of June 11, he noticed a Black man wandering near the field and carrying a long metal object and a big black bag. Sanders became concerned for the campers' safety and called 911 to report that a Black homeless man had threatened him with a metal rod.[2] The dispatch agent assured Sanders that officers were on the way. The agent radioed in a “32, ” the police code for an assault or battery, and informed the responding officers that the suspect “was armed with a metal object [and] threatened to hit the complainant.” [ECF No. 57-4, 2:8-9].

         Officers Ervens Ford and Antonio Torres responded. Because the officers were conducting a training exercise that day, Officer Torres, the senior officer, was dressed in street clothes to allow Officer Ford to take the lead in any situation they encountered. Upon arrival, they spoke briefly to Sanders, who informed them that the man had moved away from the field and towards the library. Sanders also told the officers that the man had not attacked him and no one was ever in any real danger-he just wanted the man to move away from the field where the campers were. Kwameshia Rich, another City employee, approached Sanders and the officers to inform them that there was no longer a reason to complain because the man was moving away from the field. She also told them that the man was a regular in the area and had never caused a problem. Both Sanders and Rich accompanied the officers towards the library.

         As they approached the library, the group observed a Black man, now identified as Severe, carrying a metal rod and black bag near the library entrance. Sanders identified him for the officers. Video surveillance captured Severe approaching the library, turning towards Officer Ford, then turning back around as if to enter the library, then turning again and moving toward Officer Ford, lifting the rod as he moved out of the frame. Officer Ford testified that Severe turned in response to his call and instruction to approach the officers and not enter the library. At that time, although the testimony varies, Severe was anywhere from 10 to 32 feet away from the officers.

         As with many police shooting cases, the next few seconds were quick and decisive. Indeed, the entire event lasted less than three minutes from the time Officers Ford and Torres arrived at the park to the time Severe was shot. In addition to the officers, several independent witnesses gave varying accounts of what occurred.

         Severe began to raise the rod as he approached the officers. Walter Dennis, a witness who stood near the perimeter of the scene, testified that Severe had raised the stick above his head and was “flaring” his arms. [ECF No. 57-9, 9:12]. Aja Kareem Hayward, another witness who stood at the library entrance, described Severe as “swinging” the metal rod “like he [was] getting ready to swing and hit the police.” [ECF No. 49-7, 28:16-18]. He compared Severe's movements to that of a baseball player, holding the rod like a bat as he stood a relatively short distance away from the officers. [ECF No. 49-7, 29:1-8]. However, Rich testified that she never saw Severe “wave the stick at [Officer Torres] at all.” [ECF No. 49-3, 14:5].

         The officers instructed Severe to put the rod down at least once. Sanders, who was “shoulder to shoulder” with the officers, testified that he heard commands to “drop the rod.” [ECF No. 57-3; 26:24, 32:8-10]. Hayward agreed that the officers told Severe to “put it down.” [ECF No. 49-7, 27:25]. Pamela Jefferson, a library employee, testified that Severe was told to put down the “object in his hand . . . and he just was waving it.” [ECF No. 57-8, 20:12-16].

         Despite the commands, Severe continued to approach the officers with the rod raised. [ECF No. 57-3, 28:22-25, 30:11-12]. Hayward testified that Severe got “aggressive” as the officers continued to command him to lower it. [ECF No. 49-7, 28:15]. Officer Ford testified that Severe got “into a fighting stan[ce] and said something in the aspect of you're going to have to make me leave.” [ECF No. 57-5, 17:12-15].

         Officer Torres testified that he pulled out his firearm while Severe was still at least ten feet away from him. [ECF No. 57-1, 117-118]. He testified that Severe then ran towards him and “lunged” at him from about four or five feet while holding the rod raised like a baseball bat. [ECF No. 57-1, 118:14-20]. Officer Ford described Severe as “charging” towards Officer Torres. [ECF No. 57-5, 49:7]. However, Dennis testified that he never saw Severe run at or lunge towards the officers. [ECF No. 57-9, 15:7-8].

         Officer Ford holstered his firearm and instead went to draw his taser. In that same moment, Officer Torres began shooting Severe. Officer Torres shot Severe ten times. Although paramedics tried to revive him on the scene, Severe died from his gunshot wounds.

         Dennis testified that Officer Torres shot Severe from about four or five feet away. [ECF No. 57-9, 15:3-4]. Rich testified that they were about two feet apart. [ECF No. 49-3, 63:14-24]. Eddie Palsey, another City employee who witnessed the shooting, estimated a distance of “ten, twelve” feet. [ECF No. 57-11, 44:20]. Others described the distance between Officer Torres and Severe as relative to the sidewalk, the grassy area, and the bleachers-an area that the crime scene sketch catalogues as up to 32 feet long and 9 feet wide. [ECF No. 69-1]. Officer Ford could not clearly determine the distance between the two. [ECF No. 57-5, 43:10-22]. Sanders testified that, by the time of the shooting, Officer Torres and Severe were “maybe about four to five feet” apart. [ECF No. 57-3, 30:11-12]. Importantly, Sanders also testified that Severe was “too far away” at the time of the shooting to hurt the officers with the rod. [ECF No. 57-3, 33:2].

         Severe may have tried to run away as Officer Torres started shooting. Jefferson testified that after Severe was shot, “he was trying to get away, right, and he was going to the right hand direction.” [ECF No. 57-8, 23:22-25]. Hayward testified that Severe “was in a different spot from when he was attacking to when he fell on the ground. He didn't fall on the ground where he got shot at.” [ECF No. 49-7, 47:14-16]. Rich testified that Severe ultimately fell across the walkway from the officers. [ECF No. 49-3, 28:1-4].

         Rich also testified that Officer Torres continued shooting after Severe fell to the ground: “He had to shoot him at least five times before he went down, but when he was on the ground he still shot.” [ECF No. 49-3, 29:16-18]. Dennis described Severe's body as “jumping” as he was shot “several times, ” as if he was “being lifted off the ground or something, I don't know. It was just a horrible thing to see.” [ECF No. 57-9, 10:15-23].

         Officer Torres testified that the situation escalated from “nothing to deadly in seconds.” [ECF No. 57-1, 113:21-22]. Officer Torres also testified that, “[y]ou don't have to go two rounds, if you see they are still coming at you, you engage until the threat is neutralized . . . I stopped firing when he went down.” [ECF No. 57-1, 125:2-12]. Notably, Hayward and Dennis both testified that Severe was a “frail, ” “old, ” “not agile, ” and homeless man who would have been unable to hurt the two able-bodied younger police officers with the rod. [ECF Nos. 49-7, 35:9-13; 49-4, 33:3-8].[3]

         II. FDLE's Investigation

         The Florida Department of Law Enforcement (“FDLE”) conducted a criminal investigation into the shooting and determined that Officer Torres was legally justified in using deadly force. The Miami-Dade State Attorney's Office agreed and declined to file criminal charges against him.

         As part of the investigation, a medical examiner conducted an autopsy of Severe and determined that the cause of death was gunshot wounds. Pictures from the autopsy reveal ten bullet wounds. [ECF No. 69-5]. Six of the wounds are on the left side of Severe's body (including three through his left arm).[4] Two rounds entered Severe's left upper back and one entered his right lower back. One round entered his right lower buttock at a slightly upward angle towards his pelvic cavity. The medical examiner testified that there was no way for her to determine the order in which the bullets struck. But, she agreed that it was likely the shots to his left front and left side came first, followed by the penetrating shots to his back. [ECF No. 57-15, 42:7-24]. The medical examiner did not find any gunpowder residue or stipling on Severe that would indicate that Officer Torres shot him within the boundaries of two to three feet or less. [ECF No. 57-15, 21-22].

         The medical examiner also testified that she could not clearly determine what Severe was doing when he was shot. Based on her examination of his body, she opined that the gunshot wounds to Severe's left arm, which held the rod, were inconsistent with Severe approaching the officers with that arm raised overhead. [ECF No. 57-15, 24:4]. But she also opined that it was possible that Severe approached the officers in a batter's position with the rod raised to some level. [ECF No. 57-15, 54-56]. The medical examiner further testified that, based on the position of the gunshots, Severe may have changed positions while being shot. [ECF No. 57-15, 41:23-24]. But she could not provide a definitive answer to what happened.

         III. This Litigation

         Francois Severe, representing the estate of Fritz Severe,[5] brought four claims against Defendants: Count I - Section 1983 excessive force against the City, Count II - Section 1983 excessive force against Officer Torres, Count III - Florida Wrongful Death Action against the City, and Count IV - Florida Wrongful Death Action against Officer Torres. [ECF No. 103]. Defendants filed their Motion for Summary Judgment and concurrently filed their Motion in Limine. The Court held a hearing on the Motions, both of which are now ripe for review.

         The Court first evaluates the claims brought under 42 U.S.C. § 1983. For the reasons set forth below, the Court finds that Severe's estate has not presented legally sufficient evidence to meet his burden under Monell v. Department of Social Services, 436 U.S. 658 (1978) (“Monell”) and that Defendants' Motion in Limine must be granted as to the expert's opinions on the City's liability.

         The Court next concludes that Officer Torres is not entitled to qualified immunity. Three issues of material fact concerning the reasonableness of his decision to use deadly force exist: (1) how far apart Severe and Officer Torres were when the shooting began, (2) what Severe was doing in the moments before Officer Torres began to shoot, and (3) whether Officer Torres continued to employ deadly force after Severe no longer posed a serious threat of physical injury to the officers. Moreover, the use of ten shots to subdue Severe was clearly excessive given the circumstances. The Court also determines that the law on excessive force was clearly established at the time of the shooting. Defendants' Motion must therefore be denied as to Officer Torres.

         Finally, the Court finds that Severe's estate has failed to state a claim under Florida's Wrongful Death Act, Fla. Stat. §§ 768.16-768.28, because there is no ...

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