Demetric R. Favors v. City of Atlanta

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12944
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-03996-SDG
DEMETRIC R. FAVORS,
Plaintiff - Appellant,
versus
CITY OF ATLANTA,
a municipal corporation of the State of Georgia,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 10, 2021)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Demetric Favors was a passenger in a vehicle when a police officer
employed by the City of Atlanta (“the City”) discharged a firearm five times to
stop that vehicle from moving. Two bullets hit Favors. He sued the City pursuant
to 42 U.S.C. § 1983, alleging the City was liable for excessive force. Following
cross-motions for summary judgment, the district court granted judgment to the
City. Favors now appeals, arguing the court misapplied precedent on municipal
liability, improperly weighed the evidence in a light unfavorable to him, and made
impermissible adverse credibility determinations of his witnesses. After careful
consideration, we vacate the judgment and remand for further proceedings.
I
A. Factual Background1
On a Saturday night in 2015, Favors visited an adult entertainment club in
Atlanta with a group of people. Emmanuel Thompson was on patrol as an officer
for the Atlanta Police Department (“APD”) and was parked across the street from
the venue in a squad car. The evening ended with Thompson shooting Favors,
resulting in physical injuries.
The trouble began when a male patron took another patron’s money,
including a Styrofoam to-go plate containing over $600 in cash, and ran out of the
1 We recount the version of events most favorable to Favors, the nonmovant. See
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1239 n.2 (11th Cir. 2003) (per curiam).
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building. The entertainment venue’s head of security alerted Thompson of the
theft, and Thompson left his squad car to search for the suspect.
Around this time, Favors also left the venue and got into the front passenger
seat of a white Chevrolet Traverse. A security officer saw the suspect enter the
same white Chevrolet and sit in the backseat. As the Chevrolet began to pull out of
the parking lot, the security officer ran alongside the vehicle to prevent it from
leaving. The vehicle did not stop. While the car continued its exit from the
parking lot, Thompson, still on foot, discharged his firearm five times at the
vehicle. Three bullets struck the car. The two remaining bullets pierced the front
passenger door and struck Favors in the right thigh and ankle.
The Chevrolet soon crashed into another vehicle. The driver and the suspect
fled on foot, while Favors remained at the site of the crash. Thompson arrested
Favors, who was then transported to the hospital for treatment.
The Atlanta Police Department’s Office of Professional Standards (“OPS”)
investigated the shooting. Although Thompson claimed he fired at the vehicle to
protect the security guard and other people in the parking lot, OPS found that the
video footage of the incident contradicted Thompson’s rationale. Instead, OPS
found “no evidence to support any articulable threat of violence towards”
Thompson, or, for that matter, “anyone present.” OPS concluded that Thompson
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lacked justification for shooting at the vehicle and recommended he be fired. Not
long after OPS issued its findings, Thompson resigned from the APD.2
B. Procedural History
In 2017, Favors sued, asserting one claim of municipal liability against the
City under 42 U.S.C. § 1983 and one claim for attorney’s fees under 42 U.S.C.
§ 1988. The City filed a motion for summary judgment on both claims. Favors
filed a cross-motion for partial summary judgment on the issue of whether his
constitutional rights were violated.
In defending against the City’s motion for summary judgment on municipal
liability, Favors presented evidence that the City failed to provide Thompson with
annual training under O.C.G.A. § 17-4-20, which sets forth limits on the use of
deadly force, and failed to provide Thompson with a copy of the statute, as
required. See O.C.G.A. § 17-4-20(e). Favors also presented expert testimony,
from a former police officer with 28 years of law enforcement experience who
conducted over 100 use-of-force investigations. This expert opined about how the
City’s failure to train possibly caused Thompson to shoot at the vehicle and injure
Favors. And Favors introduced deposition testimony from the City’s Rule 30(b)(6)
witness in another excessive force case, concerning the City’s training on the use
2 Thompson was also criminally prosecuted. In 2019, he pled guilty to simple assault and
was sentenced to 12 months’ probation. His Peace Officers Standards and Training Counsel
certification was also revoked.
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of force. That testimony indicated that the City did not provide training on the
appropriate use of force in apprehending a suspect in a vehicle. The City, for its
part, countered that its training was not inadequate. It asserted that it was entitled
to judgment as a matter of law, because the City provided hours of training in
excess of that required under state law, including on the use of force. It also
provided evidence of the APD’s internal disciplinary process. It did not provide
expert testimony.
The district court granted both Favors’s motion for partial summary
judgment and the City’s cross motion for summary judgment. The court began by
ruling in favor of Favors on his claim that his Fourth Amendment rights were
violated when Thompson shot him. But it went on to find that Favors had not
identified genuine disputes of material facts on the question of the City’s liability,
and that the City established it was not deliberately indifferent to Favors’s
constitutional rights. On this basis, it granted summary judgment to the City on the
municipal liability claim. Because the request for attorney’s fees was derivative of
the municipal liability claim, the court entered judgment for the City on that count
as well.
This is Favors’s appeal.
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II
We review de novo a district court’s grant or denial of summary judgment.
Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary
judgment is appropriate when the evidence, viewed in the light most favorable to
the nonmoving party, presents no genuine dispute as to any material fact and
compels judgment as a matter of law. Fed. R. Civ. P. 56(a); State Farm Mut. Auto.
Ins. Co. v. Duckworth, 648 F.3d 1216, 1219 n.5 (11th Cir. 2011). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions,” not those of a court ruling on a
motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S. Ct. 2505, 2513 (1986). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id.
III
Favors argues the district court erred in granting summary judgment to the
City for three reasons. First, he says the court erred in its interpretation and
application of Monell v. New York City Department of Social Services , 436 U.S.
658, 98 S. Ct. 2018 (1978), and its progeny. Second, he argues the court
improperly weighed the evidence in a light unfavorable to him, as the nonmovant.
Third, he argues the court erred by discounting his expert’s opinions and making
adverse credibility determinations. For the reasons below, we agree.
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A. The Monell Standard
Favors brings his Monell claim under 42 U.S.C. § 1983. That statute
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983.
In Monell, the Supreme Court held that municipalities and other local
governmental bodies are “persons” within the meaning of § 1983. 436 U.S. at
688–89, 98 S. Ct. at 2034–35. However, a municipality may not be held liable
under § 1983 under a theory of respondeat superior—that is, “solely because it
employs a tortfeasor.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S.
397, 403, 117 S. Ct. 1382, 1388 (1997) (collecting cases). Instead, “a plaintiff
seeking to impose liability on a municipality under § 1983” must “identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Id.
As this Court has explained, “to impose § 1983 liability on a municipality, a
plaintiff must show: (1) that his constitutional rights were violated; (2) that the
municipality had a custom or policy that constituted deliberate indifference to that
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constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). We address each of
the three requirements in turn.
B. Analysis
1. The City Violated Favors’s Constitutional Rights
The first element necessary for § 1983 liability is easily met here. The
district court found, and the City does not contest, that Favors suffered a
constitutional violation. Because Thompson lacked probable cause to believe that
Favors or anyone in the vehicle posed a threat of physical harm, the use of deadly
force violated the Fourth Amendment. See Mercado v. City of Orlando, 407 F.3d
1152, 1160 (11th Cir. 2005) (“Using deadly force in a situation that clearly would
not justify its use is unreasonable under the Fourth Amendment.”). We affirm the
district court’s ruling on this point.
2. The Facts Are Disputed as to Whether the City had a Custom or
Policy that Constituted Deliberate Indifference to Favors’s
Constitutional Rights
The second element asks whether “the municipality had a custom or policy
that constituted deliberate indifference to that constitutional right.” McDowell,
392 F.3d at 1289. To establish deliberate indifference, “a plaintiff must present
some evidence that the municipality knew of a need to train and/or supervise in a
particular area and the municipality made a deliberate choice not to take any
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action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). A city may
be held liable under § 1983 for inadequate police training “where the failure to
train amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct.
1197, 1204 (1989).
a. Notice
We begin by addressing whether the City was on notice of the need to train
in the particular area that allegedly caused the constitutional violation here—
namely the use of deadly force in apprehending a suspect in a vehicle. Gold, 151
F.3d at 1350–51. The district court found the City was on notice. Specifically, it
found that “the City was on notice of the need to train its officers about the proper
justifications for the use of deadly force and of using such force by shooting into
vehicles to stop fleeing felons,” including the “precise type of situation” that
Thompson faced. The court noted the repeated incidents of APD officers shooting
into vehicles, including two reported incidents (and a potential unreported incident)
in 2013, two in 2014, and six in 2015, the year Thompson shot Favors.3
Given this evidence, the court ruled that the City should know to a “moral
certainty” that its officers would be “required to deal with suspects attempting to
3 These shootings are a subset of the general category of APD firearms incidents, with
around 15 per year during the 2013–2015 time frame.
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flee in vehicles and need to know when the use of deadly force is appropriate.”
The City does not contest the district court’s determination and agrees that the
“undisputed evidence . . . showed that the City was on notice that its officers
needed training on the use of deadly force.” Thus, we affirm this ruling as well.
b. Deliberate Indifference
To recap, the record establishes that the City knew of a need to train in the
particular area of deadly force used against fleeing vehicles. Thus, our next task is
to determine whether the municipality made a deliberate choice not to take any
action despite that notice. See Gold, 151 F.3d at 1350. We conclude the district
court erred in its application of Monell and impermissibly resolved disputes of fact
in the light most favorable to the City, the movant. We start by addressing
Favors’s affirmative arguments and then turn to the district court’s resolution of
the conflicting evidence.
To begin, Favors argues the district court erred in discounting Thompson’s
testimony. As everyone agrees, the information available to Thompson at the time
he fired into the vehicle was such that he should have known that the shooting was
unjustified. After all, the crime that was reported to Thompson was a
misdemeanor theft, not a forcible felony. See O.C.G.A. § 16-11-131(e). There
was no evidence that Favors or any of the people in the vehicle possessed a deadly
weapon or had committed a crime that involved the infliction of serious harm.
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Such circumstances are required by O.C.G.A. § 17-4-20(b) to justify the use of
deadly force.
Favors presented Thompson’s testimony stating that he did not receive
training on the use of deadly force in situations involving vehicles, and that he
believed his lack of training contributed to his decision to shoot into the vehicle.
Thompson said he didn’t “believe [he] was quite prepared” for the scenario he
encountered, that he “[d]efinitely” should have received more training on how to
“deal[] with vehicles and shooting, no shooting.” Critically, Thompson said he did
not believe at the time of the incident that his decision to fire at the vehicle was a
mistake.
The district court, however, discounted Thompson’s testimony as
“subjective” and “self-serving.” This was error. Even if Thompson’s testimony
could be characterized as “self-serving,” nothing in the Federal Rules of Civil
Procedure precludes self-serving testimony at the summary judgment phase. See
United States v. Stein, 881 F.3d 853, 856 (11th Cir. 2018) (en banc) (overruling
circuit precedent “to the extent it holds or suggests that self-serving . . . statements
in a[n] . . . affidavit cannot create an issue of material fact”). And to the extent the
district court assessed Thompson’s motives or credibility, that is the job of a jury,
as opposed to a court on summary judgment. Anderson, 477 U.S. at 255, 106 S.
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Ct. at 2513. Properly credited, Thompson’s testimony raises questions about the
adequacy of the City’s training.
We therefore turn to the district court’s weighing of some of the remaining
evidence regarding the City’s training. Of course, “weighing the evidence and
reaching factual inferences contrary to [the nonmovant’s] competent evidence” go
against “the fundamental principle that at the summary judgment stage, reasonable
inferences should be drawn in favor of the nonmoving party.” Tolan v. Cotton,
572 U.S. 650, 660, 134 S. Ct. 1861, 1868 (2014) (per curiam). In granting
judgment to the City as a matter of law, the district court focused its analysis on the
number of hours of training Thompson received overall. The court relied on the
fact that the APD provided additional basic training beyond that required by the
Peace Officers Standards and Training Counsel. The court also observed that the
City maintained written policies regarding the appropriate use of deadly force.
And it ultimately decided that this record foreclosed a failure-to-train theory of
liability. The City echoes this reasoning on appeal.
We conclude the district court’s, and the City’s, focus is misplaced. To be
sure, the record shows that Thompson received training on the use of force
generally and also received annual in-service training. But the question is whether
such training addresses the scenario the City was on notice to prepare for—the fact
that its police officers would be “required to deal with suspects attempting to flee
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in vehicles and need to know when the use of deadly force is appropriate.” As
explained in Canton, “[i]n resolving the issue of a city’s liability, the focus must be
on adequacy of the training program in relation to the tasks the particular officers
must perform.” 489 U.S. at 390, 109 S. Ct. at 1206 (emphasis added). That
Thompson received training on other matters of firearm usage is no answer to
whether he received adequate training on the “usual and recurring” use of deadly
force when pursuing a suspect fleeing in a vehicle. Id. at 391, 109 S. Ct. at 1206.
This Court’s decision in Depew v. City of St. Marys, 787 F.2d 1496 (11th
Cir. 1986), is instructive. There, as here, the city provided rules and regulations for
the operation of its police department. Id. at 1499. Even so, this Court held that
the city was liable under Monell because the city failed to take remedial steps
despite repeated instances involving the use of unreasonable and excessive force
by officers that occurred in violation of its written rules. Id. at 1499, 1501. And in
Vineyard v. County of Murray, 990 F.2d 1207 (11th Cir. 1993) (per curiam), this
Court affirmed the judgment against a county for failure to train. Id. at 1212. It
did so in light of the expert opinion that the municipality’s efforts to address
excessive force incidents—separate from whatever policies it had on the books—
were inadequate. Id. As such, it is not enough to say that the City has written
policies on the use of deadly force.
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The district court did not discuss this Court’s precedent in Depew or
Vineyard. Instead, it relied on out-of-circuit authority to find that a record of some
training undercuts a finding of deliberate indifference.4 But that is not the law in
this circuit. As this Court made clear in Gold, deliberate indifference can be
shown by “evidence that the municipality knew of a need to train and/or supervise
in a particular area and the municipality made a deliberate choice not to take any
action.” 151 F.3d at 1350 (emphasis added).
When we evaluate the evidence of the City’s training on the use of deadly
force with respect to a suspect in a moving vehicle, we find that genuine disputes
of material fact remain. Favors presented evidence that the City failed to provide
Thompson with annual training on the circumstances that justify the use of deadly
force under O.C.G.A. § 17-4-20. The City also failed to provide Thompson with a
copy of the statute, as required. See O.C.G.A. § 17-4-20(e). The City, in response,
produced no documentation or testimony that Thompson was provided with a copy
4 See R. Doc. 146 at 27–28 (citing Blankenhorn v. City of Orange, 485 F.3d 463, 484
(9th Cir. 2007); Marable v. W. Pottsgrove Twp., 176 F. App’x 275, 283 (3d Cir. 2006)
(unpublished); Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Campbell v. City
of Philadelphia, 927 F. Supp. 2d 148, 174 (E.D. Pa. 2013)), 33 (citing Valle v. City of Houston,
613 F.3d 536, 548 (5th Cir. 2010)). The district court’s reliance on these cases was misplaced
because they addressed cases in which there was a failure to train a single officer, or where a
particular officer violated a policy, or some training was provided to address the scenario the
officer faced. Here, of course, Favors provided evidence suggesting that the City failed to train
all of its officers, beyond just Thompson, on the appropriate use of deadly force by shooting into
vehicles to stop fleeing suspects.
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of O.C.G.A. § 17-4-20(e).5 Favors also presented evidence showing that in 2015,
when the shooting occurred, the City had six reported incidents in which officers
discharged their firearms into a vehicle. But none of the reports prepared for these
incidents contained information regarding the facts justifying the shootings, or
documentation of a supervisor’s evaluation of the shootings. There was also a lack
of incident reports with proper information and evaluation for the years 2013 and
2014 as well. These incomplete reports are contrary to APD.SOP.3010’s reporting
requirements. In addition to this evidence, Favors offered expert testimony that
proper documentation and review following the use of force are important in
reducing the number of such occurrences.
The district court discounted Favors’s expert opinion, but this too was error.
The court found that the expert opinion was contradicted by the City’s policy
embodied in APD.SOP.3050 (the “vehicle-on-vehicle pursuit policy”), which
applies to a police vehicle pursuit of another vehicle. See APD.SOP.3050. But
APD.SOP.3050 does not apply to this case. Thompson shot at the vehicle while he
was on foot, and the City’s own witness testified that the vehicle-on-vehicle pursuit
policy does not apply where the officer is on foot. The district court did not
5 The City’s Use of Force policy (APD.SOP.3010) addressing the use of deadly force
references O.C.G.A. § 17-4-20 and requires that all officers be provided with a copy of the
policy. The City produced Thompson’s training file, which contained no documentation that he
was ever provided with a copy of APD.SOP.3010. Thompson also testified that he did not recall
whether he received a copy of the policy.
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address this testimony. Even if that policy applied here, the City’s witness did not
testify that the APD actually provides any training on it. To the contrary, the
City’s witness said the APD provides no academy or in-service training
specifically addressing the circumstances that would justify an officer shooting
into a moving vehicle. Therefore, when properly credited, as must be done at the
summary judgment stage, the expert opinion offered by Favors creates a genuine
dispute of material fact.
Finally, we dispatch with the notion that the City cannot be held liable for a
failure to train that results in an officer’s use of deadly force. In arguing for
affirmance, the City says Thompson “made an individual decision to shoot at the
moving SUV which resulted in [Favors] being shot.” This characterization,
however, is belied by the frequency and predictability of the scenario Thompson
faced, which the City itself acknowledged it was on notice to address. As the
Supreme Court has recognized, the use of force in pursuing suspects is a scenario
that City policymakers should know to prepare for:
[C]ity policymakers know to a moral certainty that their
police officers will be required to arrest fleeing felons.
The city has armed its officers with firearms, in part to
allow them to accomplish this task. Thus, the need to train
officers in the constitutional limitations on the use of
deadly force can be said to be “so obvious,” that failure to
do so could properly be characterized as “deliberate
indifference” to constitutional rights.
Canton, 489 U.S. at 390 n.10, 109 S. Ct. at 1205 n.10 (citation omitted).
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Given this state of the law, as well as the conflicting evidence in this case,
whether the City was deliberately indifferent is a question that should have been
left to a jury. See also Brown, 520 U.S. at 409, 117 S. Ct. at 1391 (“The likelihood
that the situation will recur and the predictability that an officer lacking specific
tools to handle that situation will violate citizens’ rights could justify a finding that
policymakers’ decision not to train the officer reflected ‘deliberate indifference’ . .
. .”). In viewing the evidence in the light most favorable to Favors, the non-
movant, we conclude genuine disputes of material fact remain on this element. See
Anderson, 477 U.S. at 255, 106 S. Ct. at 2513.
3. The Facts Are Disputed Regarding Causation
Last, we examine causation, which is the third element of municipal
liability. See McDowell, 392 F.3d at 1289. The causation prong asks whether the
injury would have been avoided “had the employee been trained under a program
that was not deficient in the identified respect.” Canton, 489 U.S. at 391, 109 S.
Ct. at 1206. In a failure-to-train case, “the identified deficiency in a city’s training
program must be closely related to the ultimate injury.” Id. See also id. at 390–91,
109 S. Ct. at 1206 (explaining the role of the factfinder in determining the element
of causation). We have held that a single constitutional violation may establish
municipal liability when there is “sufficient independent proof that the moving
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force of the violation was a municipal policy or custom.” Vineyard, 990 F.2d at
1212 (quotation marks omitted).
The City argues that Favors has provided “no link” between the City’s
training and his constitutional injury. This record suggests otherwise. For
instance, Favors provided evidence that Thompson was not trained in the use of
less-than-lethal force in the 22 months leading up to the shooting. Favors’s expert
stated that this lack of training “possibly caused” Thompson to resort to lethal
force. He opined that Thompson’s “immediate[] resort[] to a lethal force option”
reflected the fact that the only training besides defensive tactics that Thompson had
received since he graduated from the police academy was to use lethal force. The
expert witness stated that officers typically “fall back” on their training, “especially
in a time of a real or perceived crisis.”
Our precedent indicates that this kind of expert testimony can create a
genuine dispute of material fact. In Vineyard, for example, a plaintiff sought to
hold a municipality liable for excessive force after police officers repeatedly beat
him while he was handcuffed to a hospital bed. 990 F.2d at 1209. The plaintiff’s
expert testified at trial that the county’s lack of adequate training and supervision
allowed abuses like the one Vineyard suffered to occur. Id. at 1213. In affirming
the jury verdict against the municipality, this Court concluded that the plaintiff’s
expert opinion provided an adequate basis for the jury to find causation. Id.
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Likewise, Favors has presented competent evidence in support of this
element. Drawing reasonable inferences in his favor, as we must at this stage, we
conclude Favors has “set forth specific facts showing that there is a genuine issue
for trial” regarding causation. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510
(quotation marks omitted).
* * *
Because triable issues remain on Favors’s municipal liability claim, we
vacate the entry of summary judgment to the City and remand for further
proceedings.
VACATED AND REMANDED.
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