United States District Court, S.D. Florida
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.
P. GAYLES UNITED STATES DISTRICT JUDGE.
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.
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
The June 2015 Shooting
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. See
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. 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].
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.
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.
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.
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].
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.
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.
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].
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.
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].
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].
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.
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,
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.
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). 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].
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.
Severe, representing the estate of Fritz
Severe, 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.
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.
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.
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 ...