11^th Circuit Court of Appeals

DISTRICT COURT’S DISMISSAL OF EXCESSIVE

FORCE CLAIM AFFIRMED

DeKalb County Police Officer Vance responded to a QuikTrip (“QT”) on North Decatur Road at about 6AM on May 24, 2020. By the time of his arrival, Howard “had been pacing outside the gas station for 15 minutes or so.” Officer Vance stayed in his patrol car for a couple of minutes, keeping an eye on Howard. As Vance walked from his patrol car into the QT, he told Howard, “by the time I get out [of] this store, you better be gone; if [you’re] not gone, we’re gonna have a problem.”

One of the QT employees told Officer Vance that Howard had taken off his pants, and she told Howard “to put his pants on and asked him to leave[.]” In response, Howard put his pants back on “but then ‘just stood there.’” This employee told Vance that she wanted Howard to leave the premises. Vance then walked out of the QT and approached Howard, “who was standing by a trash can outside the gas station entrance.”

As Officer Vance walked in Howard’s direction, he twice told Howard “to take his hands out of his pockets.” In response, “Howard turned toward Vance, took his right hand out of his pocket and put it behind his back.” Vance’s bodycam footage “show[ed] Howard holding an object in his right hand.” The footage also showed Howard twice use both of his hands to pull up his pants, which “were hanging loosely on his hips[.]” Each time Howard pulled up his pants, “he returned his right hand — still holding something — behind his back and out of the officer’s view.”

Vance then moved a few paces away from Howard and asked a QT employee whether Howard had had his pants down. As the employee told Vance that Howard’s pants had been down,

 

Howard dropped his pants while asking ‘wanna see?’ and took his right hand out from behind his back, revealing — as the complaint alleges — what Officer Vance believed to be a knife. In response, Vance drew his firearm and pointed it at Howard, while the QuikTrip employee began backing away. Howard — with pants around his ankles — waddled towards the officer and away from the QuikTrip entrance, while raising the knife up to eye level with the point facing towards Vance.

 

At this point, the QT employee ran back inside the store. Officer Vance continued walking backwards as Howard approached him, thereby keeping some distance between them. When Howard stopped walking, Vance also stopped and yelled “Put the knife down!” Instead of complying with Vance’s order, “Howard responded, ‘I’m not puttin’ [expletive deleted] down,’ and again began walking toward Vance, his movement still impeded by his pants around his ankles.” Vance again shouted, “put the knife down!” as he continued to step backwards and away from Howard. Howard replied, a second time, “I’m not putting [expletive deleted] down.” Upon Officer Vance’s third order for Vance to drop the knife, Howard again failed to comply, saying, “I’m not putting anything down.”

Next, Howard, whose pants were still down and around his ankles, tried to completely remove his pants, even using the hood of Officer Vance’s patrol car to steady his balance while doing so. This whole time, Vance “kept his gun trained on Howard while remaining a distance of approximately two parking- lot spaces away, and spoke into his radio, stating ‘suspect is armed with a knife, comin’ at me and is taking off his clothes.’” Vance then twice shouted at Howard, “[P]ut that damn knife down!” As Howard succeeded in removing his pants, Vance “yelled ‘do not come near me!’ and again directed Howard to put the knife down.”

Instead of heeding Vance’s repeated directives

to drop the knife in his hand, Howard

 

continued walking slowly, knife still in hand, toward Officer Vance, who kept a constant distance from Howard by backing up himself. The officer repeatedly yelled at Howard to put the knife down, with increasing urgency. Howard still did not comply. Instead, Howard continued to approach, growing closer to Vance with the knife still in hand, though Howard alleges that Vance had plenty of room to continue to slowly back up because there was no wall or boundary threatening to trap him in the parking lot. Once Howard came within a distance of approximately one-and-a-half parking spots, Officer Vance opened fire, shooting Howard three times in rapid succession. Howard fell to the ground, wounded, but did not die from his gunshot wounds.

 

Backup officers “disarmed and arrested” Howard upon their arrival on the scene a couple of minutes later. Howard was hospitalized for an “extended period” but recovered.

Not quite a year later, Howard sued Officer Vance and DeKalb County, alleging: (1) Vance

violated the Fourth Amendment by using excessive force; (2) Vance violated Georgia law by committing a battery against Howard; and (3) “that the County’s ‘use of force, de-escalation, and mental illness training’ caused Officer Vance to violate Howard’s Fourth Amendment rights.” In response, Vance and the County “filed a motion for judgment on the pleadings seeking to dismiss Howard’s claims on the ground that Officer Vance’s use of force against Howard was justified, and therefore did not violate Howard’s constitutional rights.” The federal district court granted Vance’s and the County’s motion “in its entirety.”

Howard appealed only “the district court’s dismissal of his claim against DeKalb County.”

In considering Howard’s appeal, the Eleventh Circuit Court of Appeals (“Eleventh Circuit” or “Court of Appeals”) looked to its own precedent to determine the “reasonableness” of Officer Vance’s use of force: “Any claim that a law enforcement officer used excessive force — whether deadly or not

— during a seizure of a free citizen must be analyzed under the Fourth Amendment’s ‘reasonableness’ standard.”

The United States Supreme Court has concluded that the reasonableness standard must “balanc[e] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Additionally, Eleventh Circuit precedent holds that “[t]he government’s interests include protecting the safety of the police officers involved as well as the public at large.”

The Eleventh Circuit concluded that Howard “ha[d] not plausibly alleged that Officer Vance violated his Fourth Amendment right to be free from excessive force.” The Court explained:

 

Even accepting the factual allegations as true*** and viewing the two sources of video footage in Howard’s favor, we are bound by precedent to conclude that

Officer Vance’s use of deadly force was reasonable. Vance responded to a call of an individual behaving erratically, or, in the words of the complaint, having a ‘mental health episode.’ When Vance encountered Howard, he continued to act erratically and refused repeated commands to show his hands. When Howard finally removed his right hand from his pocket, he quickly moved it behind his back to hide whatever he was holding from Officer Vance; dropped his pants while asking Vance if he ‘want[ed] to see?’; and revealed that his right hand was holding a knife. Howard initially raised the knife to eye level, in what could reasonably be construed as a threatening manner, with the point facing Vance, and started moving toward the officer. Once Howard pulled out the knife, it is clear that Officer Vance had probable cause to arrest him for aggravated assault on a police officer, a felony under Georgia law. See

O.C.G.A. § 16-5-21(c).

 

(*** In reviewing “a district court’s decision to grant a motion for judgment on the pleadings for failure to state a claim” i.e., the type of motion filed by Officer Vance and DeKalb County, the Eleventh Circuit “accept[s] as true all material facts alleged in the non-moving party’s pleading, and . . . view[s] those facts in the light most favorable to the non- moving party, just as we do when we review a ruling on a motion to dismiss.”)

Regarding Officer Vance’s use of force, the Eleventh Circuit stated: “[A]t the moment Officer Vance used deadly force to subdue Howard, he was confronted with a suspect who had already exhibited erratic and unpredictable behavior; who was non-compliant; and who was armed with a knife, i.e., a deadly weapon.” The Court found that,

based both on Howard’s proximity to the officer

and under Eleventh Circuit precedent,

 

a reasonable officer in Vance’s position could have concluded that Howard posed a serious threat of physical harm to himself or other members of the public in the QuikTrip parking lot. Indeed, footage from Officer Vance’s body camera reveals that, just moments after the shooting, the officer had to warn nearby citizens not to get out of their cars, because Howard was still holding the knife while on the ground.

 

The Court of Appeals rejected Howard’s argument that Officer Vance’s use of deadly force violated his Fourth Amendment rights “because other alternatives to using deadly force existed — like using his taser to incapacitate him or continuing to back away from Howard ‘until additional units arrived or to buy himself time to formulate a cogent plan.’” The Court noted that Vance “made multiple efforts to avoid having to discharge his weapon[,]” including “repeatedly back[ing] up as Howard approached him knife in hand, and repeatedly ask[ing] Howard to put the knife down and to stop advancing on the officer.” Finally, the Court remarked, “[t]here is no precedent in this Circuit [ ] which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.”

The Court determined that Officer Vance’s “use of deadly force was justified because, under the totality of the circumstances, a reasonable officer in his position could have concluded that Howard presented an immediate threat of serious physical harm[.]” Absent any underlying constitutional violation on Officer Vance’s part, the Court remarked, “Howard cannot impose liability on the County under § 1983.” Therefore, the Court held,

“the district court did not err in granting the County’s motion for judgment on the pleadings”, and affirmed the dismissal of Howard’s excessive force claim against the County.” Howard v. DeKalb County, No. 23-11035, 2024 WL 1174021 (11^th Cir.,

March 19, 2024).

 

 

 

Georgia Court of Appeals

 

EVIDENCE WAS SUFFICIENT TO SUPPORT GUILTY VERDICT IN DRUG TRAFFICKING CASE

A Greene County sheriff’s deputy patrolling on Interstate 20 (I-20) initiated a traffic stop on a Dodge Charger for following too closely. Georgia law states that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” (O.C.G.A. § 40-6-49 (a)) Cooper was the passenger in and Branche was the driver of the Charger.

As the deputy walked towards the Charger on the passenger’s side, he “smelled an ‘overwhelming’ odor of marijuana coming from inside the car, and he could ‘see cell phones throughout the vehicle.’” After passenger Cooper gave the deputy Branche’s driver’s license and vehicle registration, the deputy asked Branche to exit the Charger. The deputy then told Branche why he stopped her vehicle.

When the deputy inquired regarding where Branche and Cooper were coming from, “Branche said they had spent the night in Atlanta at a friend’s house.” Shortly thereafter, the deputy asked Cooper, who was still in the car, where he and Branche had come from. Cooper informed the deputy “that they had only been to Atlanta for the day, ‘just driving.’” Cooper also told the deputy that the Charger was owned by his fiancée, “who knew he had the vehicle but did not know that he was with Branche.”

Due to the “overwhelming” odor of marijuana, the deputy decided to search the Charger. He called in a request for assistance and a second deputy “arrived as the first deputy was writing Branche a warning[.]” The first deputy then got Cooper out of the vehicle, at which point Cooper consented to a pat-down search. The deputy “found no contraband but removed a pocketknife Cooper had clipped to his front pocket.” At this point, the first deputy told Cooper and Branche “that their accounts of their whereabouts were inconsistent, and due to the odor of marijuana, he would be conducting a search of the vehicle.” During the vehicle search,

 

the deputy found a handbag in the trunk containing what appeared to be a shrink-wrapped kilogram of cocaine. Upon seeing the suspected contraband, the deputy walked over to Cooper and placed him in handcuffs. As the deputy returned to the Charger, Cooper asked the back-up deputy what the arresting deputy had said he found, and the back- up deputy replied ‘cocaine.’ In response, Cooper said ‘yeah,’ closed his eyes, and dropped and shook his head.

 

Subsequent testing confirmed the shrink- wrapped substance to be “a 55.5 percent pure mixture of cocaine weighing 1,000.41 grams.” As a result, Cooper and Branche were jointly indicted on “one count of trafficking more than 400 grams of cocaine.” After a jury convicted Cooper (and found Branche not guilty), Cooper appealed. On appeal Cooper argued “that the evidence was insufficient to support the guilty verdict because the evidence that he possessed the cocaine was circumstantial and did not exclude every other reasonable hypothesis of his innocence.” Cooper also contended “that there was no evidence that he had direct physical control over the cocaine, so the State had to prove that he constructively possessed it[.]”

Georgia Court of Appeals’ precedent states that “[a] person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” In a 2023 decision, the Court of Appeals wrote:

 

Importantly, constructive possession must be based on a connection between the defendant and the object that is more than spatial proximity. As a result, when it is established wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Nevertheless, questions of reasonableness in this regard are generally decided by the jury.

 

Cooper argued “that the direct evidence only shows that a kilogram of cocaine was found in a car that he did not own or drive, and [therefore,] in the absence of any additional direct evidence, the jury was not authorized to find that he possessed the cocaine.” The Court of Appeals disagreed, finding that the circumstantial evidence showed that the Charger belonged to Cooper’s fiancée and “he was using it with her permission.” The Court also noted Cooper’s statement regarding his fiancee’s not knowing that he was with Branche which, in the Court’s eyes, demonstrated, at a minimum, his ”arrangement of their use of the vehicle, regardless of who was driving it.”

Additionally, the Court found that the conflict between Cooper’s and Blanche’s statements about where they were coming from “evince[d] an intent to mislead officers about the nature of their travel.” Finally, the Court reasoned, “Cooper’s arrest shed light on his knowledge of the cocaine.” The Court wrote:

As recounted by the back-up deputy and depicted in the body cam video shown to the jury, upon being handcuffed, Cooper asked what had been found in the vehicle, and when he was told ‘cocaine,’ Cooper’s response was to say ‘yeah,’ and hang his head, slowly shaking it. The video depiction is clear, and it strongly supports a factfinder’s interpretation of it as a response of disappointment and regret but not surprise. Although Cooper argues that this response could evidence Cooper’s disappointment in his fiancée (for having contraband in her car), the jury was authorized to reject this hypothesis as not reasonable in light of the totality of the evidence in the case.

 

Based on the foregoing, the Court concluded, “the jury was authorized to find that no other reasonable  hypothesis  of  Cooper’s  innocence

existed.”   Therefore, the Court affirmed the trial

court’s denial of Cooper’s motion for a new trial. Cooper v. State, No. A23A1317, 2024 WL 617060 (Ga. Ct. App., Feb. 14, 2024).