A Duty to Intervene – Salvato v. Miley

When an officer swears the oath of office they are making a solemn promise to uphold the U.S. Constitution, their State Constitution, and the laws of their jurisdiction. In most circumstances this oath is upheld and gauged by the officer’s exercise of authority over citizens while in the line of duty.

However, the oath of office is not a singular promise of Constitutional fidelity to just our interactions with the public, it also applies to intervening in unlawful or un-Constitutional acts by other members in law enforcement. This is most commonly  referred to as the “Duty to Intervene”.

On June 25, 2015 the 11th United States Court of Appeals decided the case of Salvato v. Miley that presents all officers a great reminder of their “Duty to Intervene” and the reasoning of the Federal Courts when such circumstances are realized. The case also provides an explanation of “ratification” and potential liability for agencies when their use of force investigation exonerate or “clears” the officers of wrong-doing, only to have a later Court deemed that acts excessive.

EDITOR’S NOTE: The BlueSheepDog Crew presents Court cases that have a significant importance to a great amount of officers. Though this case is from the 11th U.S. Circuit Court of Appeals, and as such is precedent for Alabama, Georgia, and Florida, the decisions of one Federal Circuit are highly reviewed by all Circuits for the applicability across the country. As such, this decision should be strongly considered by all officers. However, the BlueSheepDog Crew are not attorneys, and this legal review is not intended to be considered legal advice in any manner or form. For specific legal interpretation the BlueSheepDog Crew recommends officers review their Federal Circuit decisions, State laws, and seek the advice of their local Prosecutors and Department legal advisors.

Initial Contact with Salvato

The events of this case take place in Marion County, Florida and involve the interactions of Deputy Miley and Deputy Brown with an erratically behaving Salvato. Marion County, Florida is in central Florida with Ocala as the county seat. It is just north of Orlando and has I-75 running right through the middle of the county.

Deputy Miley was dispatched to an area of Marion County on the report of an “Hispanic looking male with no shirt” that was “yelling and cussing at passing cars.” Deputy Miley found Salvato walking alone on the side of the road, without a shirt on. She noted that Salvato had nothing in his hands. Deputy Miley ordered Salvato to come talk to her and he complied, without any sign of aggression. In fact, once Salavato reached Deputy Miley’s car he placed his hands on the hood and spread his legs apart. Deputy Miley did not handcuff Salvato because she did not perceive him as a threat.

Deputy Miley asked Salvato about any weapons and he stated he only had “bread”. He then proceeded to pull some bread out of his pants pockets. Deputy Miley did not pat Salvato down, but noted he did not have a weapon in his waistband. According to Deputy Miley, Salvato “was just talking irrationally” and stated “he wasn’t going to jail,” even though Miley never mentioned jail. He tried to walk away twice, but Deputy Miley put her hands on his chest both times to keep him from leaving. Deputy Miley felt intimidated by Salvato’s actions, and called for expedited backup.

EDITOR’S NOTE: Officers should take note that the manner in which we communicate with each other can often dictate the initial mental state of other officers responding to our calls. This can lead other officers to be more amped up or more casual than the situation really dictates. As such, officers are cautioned to be clear and concise, and portray an accurate accounting of what is actually going on at the scene.

Deputy Brown arrived, and most of the remaining incident was recorded on his in-car camera. When he arrived, Salvato and Miley were talking to one another, arm’s-length apart, and there was no apparent confrontation. However, when Brown exited his patrol car he did not communicate with Miley, and instead drew his sidearm and ordered Salvato to the ground. Salvato appeared surprised but immediately complied with Deputy Brown’s orders.

Deputy Brown approached Salvato and pulled his arms backwards. Deputy Miley then attempted to [easyazon_link identifier=”B00JZQEAZQ” locale=”US” tag=”bluesheecom-20″]handcuff[/easyazon_link]Salvato, but he began to struggle. Salvato rose to his knees while both deputies attempted to wrestle him back to the ground. There was an  exchange of blows. Salvato was able to break free and stepped backwards, away from the officers. Deputy Brown began to reach for something from his belt, and Salvato rushed Brown and hit him again. Deputy Miley attempted to intervene, and Salvato hit her in the head, knocking her down. Deputy Miley withdrew her sidearm while Salvato again retreated about 10-15 feet away. Deputy Miley then shot Salvato in the abdomen without giving him any verbal warning.

Facts of the Case to Point:

• Deputies were dispatched on a suspicious person
• Deputy Miley contacted Salvato and confirmed he was acting erratic, but he was compliant
• Due to Salvato’s attempts to leave Deputy Miley requested “expedited” back-up response
• Deputy Brown arrived and did not communicate with Deputy Miley
• Salvato did not appear to be a threat, and complied when ordered to the ground at gun point
• When the deputies began to handcuff Salvato he resisted
• During the resistance Salvato struck both deputies and was able to stand up
• Deputy Brown reaches for a tool on his belt and Salvato charges him and strikes him
• Deputy Miley tries to intervene and Salvato strikes her in the head knocking her to the ground
• Salvato steps away and is shot by Deputy Miley without any verbal warning.

Post-Shot Facts

Although he had been shot, Salvato continued to walk away on the road. Deputy Brown ordered Salvato to get on the ground, and when Salvato did not comply, he discharged his [easyazon_link identifier=”B0027J97YM” locale=”US” tag=”bluesheecom-20″]Taser[/easyazon_link] into Salvato. Salvato fell to the ground on his back after the Taser discharged. Deputy Brown ordered Salvato to roll onto his stomach and discharged the Taser again when Salvato did not immediately comply. He ordered Salvato to show his hands, and discharged the Taser when Salvato did not comply.

Deputy Miley radioed for paramedics, and took Brown’s handcuffs to restrain Salvato. The internal memory of Deputy Brown’s Taser recorded 12 discharges during the incident, including multiple times after Deputy Miley had handcuffed Salvato. Deputy Brown would later claim he did so to keep Salvato from reaching into his back pockets. Deputy Miley also kicked Salvato’s hand at one point when it appeared to her that he was trying to reach into his back pocket. Deputy Miley testified later that she was capable of telling Brown to stop discharging the Taser, but she did not because she “had just gone through a traumatic event, and [she] wasn’t really thinking about what [Brown] was doing.” At no point did either deputy check Salvato’s back pockets or search him. In the end, Salvato was unarmed, and by the time paramedics arrived, Salvato had died from internal bleeding. Deputy Miley suffered no injuries, and Deputy Brown sustained a minor eye injury.

EDITOR’S NOTE: There is no dispute that Salvato resisted the officer’s attempts to handcuff him through physical force and violence, striking both deputies multiple times. However, the Court will examine the reason and manner for handcuffs to be placed on Salvato, and that decision will ultimately be the pivotal decision-making point in the case. As such, officers must understand the legal justifications for detaining someone, including the use of handcuffs. Simply claiming “officer safety” or “routine procedure” will not pass Constitutional muster. Instead, officers must present a “reasonable” basis and justification for the need to detain or handcuff a citizen.

The Lawsuit for Excessive Force

Salvato’s estate later sued the deputies in their individual capacities for excessive force in violation of the 4th Amendment, and the Sheriff of Marion County in his official capacity (suit against the County) for “ratifying” the excessive force by failing to investigate the incident. The U.S. District Court denied qualified immunity for the deputies and denied summary judgment for the Sheriff. At trial the jury found the deputy’s committed excessive force, and the Sheriff failed to investigate the incident which ratified the excessive force, thereby attaching liability on the County. Deputy Miley and the Sheriff appealed to the 11th Circuit Court of Appeals.

Of critical importance is the question of whether Deputy Miley was entitled to qualified immunity from the suit for excessive force under the 4th Amendment for shooting Salvato, and whether she was entitled to qualified immunity for the excessive force used by Deputy Brown because she failed to intervene in that use of excessive force.

The Opinion of the 11th Circuit Court of Appeals

DEPUTY MILEY’S SHOOTING OF SALVATO

Was it excessive force under the 4th Amendment to shoot Salvato, without warning, after he fought with the deputies and while he was backing away from them?

Regarding reasonable and excessive force, the 11th Circuit Court stated:

We measure the force employed against these factors (as outlined by U.S. Supreme Court decisions):

1. the severity of the crime at issue
2. whether the suspect poses an immediate threat to the safety of the officers or others
3. whether the suspect actively resisted arrest or attempted to evade arrest by flight.

However, the 11th Circuit noted the factors under consideration cannot be “mechanically” applied, but instead must be considered in the context of “reasonableness”. In addition, the 11th Circuit noted that “more force is appropriate for a more serious offense and less force is appropriate for a less serious one” (Lee v. Ferraro, 11th Cir. 2002).

“The use of deadly force is “more likely reasonable if: the suspect poses an immediate threat of serious physical harm to officers or others; the suspect committed a crime involving the infliction or threatened infliction of serious harm, such that his being at large represents an inherent risk to the general public; and the officers either issued a warning or could not feasibly have done so before using deadly force.” Also relevant is whether the officer “had [an] articulable basis to think [the suspect] was armed” (Tennessee v. Garner).

Relevant facts noted by the Court:

• The original crime suspected by the officers was not serious, (suspicious man yelling)
• Salvato fought with the officers
• At the time Deputy Miley shot Salvato he was backing away, out of striking distance, “and was not a threat“
• There was sufficient time and distance for the deputy to warn Salvato before shooting him
• Deputy Miley did not have a reason to believe that Salvato was a danger to the general public.

EDITOR’S NOTE: I feel compelled to weigh in on the Court’s reasoning at this point. The Court claimed that Salvato “was not a threat” at the time he was shot, because he had stepped back 10-15 feet. This decision is terribly myopic! Salvato had just been disengaged from the officers but then charged and physically assaulted both again. Salvato not only showed a willingness to resist, he showed a willingness to harm the two deputies, and was not dissuaded by being outnumbered. The lethal force can be examined due to the distance, but for the Court to say Salvato “was not a threat”, seriously undermines their objectivity in obtaining a final verdict. His “retreat” occurred within 1-2 seconds of his violent attack, and the officer’s use of deadly force would have come within that very short time of reaction, rather than contemplated action. In addition, the officer that fired had been knocked to the ground, and could easily articulate a fear of being overwhelmed and more seriously injured. Salvato was shot in his stomach, so the facts are definite that he was facing the deputies at the time of the fatal shot. Considering his previous violent attack after being disengaged, it would be highly reasonable for the deputies to believe Salvato had disengaged simply to acquire a greater vantage point to once again charge and assault. And the U.S. Supreme Court has ruled consistently that smaller officers can raise the level of force quicker than larger officers, which could absolutely weigh in favor of Deputy Miley’s rise to deadly force over an intermediate use of force.

The 11th Circuit examined their own precedent relevant to Salvato’s case. They reviewed the 11th Circuit case of Gilmere v. City of Atlanta, Georgia. In that case a drunk driver had collided with another motorist, and then threatened the motorist with a handgun. Officers located the suspect at his residence, and while escorting him to the car he began to resist. The officers “beat him about the head” and ultimately shot him to death while he was forcibly attempting to break free.

The 11th Circuit held that use of deadly force was not justified. The plaintiff in Gilmere was “small,” “intoxicated,” and posed little threat to the officers, but the officer shot the plaintiff during the scuffle, not as he was retreating. In addition, the crime the police officers were investigating was the plaintiff’s use of a firearm to threaten the other motorist was far more serious than Salvato’s alleged “yelling and cussing.”

Based on reviewed precedent, and in light of the facts most favorable to the petitioner (Salvato’s estate), the Court ruled that it was “clearly” established that Deputy Miley’s action in shooting Salvato was excessive under the 4th Amendment. The Court also held that it was excessive force, after Salvato was shot and handcuffed, laying face down in the road, for her to kick his hand when he reached for his pocket.

(EDITOR’S NOTE: This despite the fact that a razor, thin knife, or other small weapon could have been inside. Since Salvato was reaching for that pocket an officer could reasonably believe Salvato actually had something in that pocket.)

However, Deputy Miley testified that she did not consider Salvato a threat at that point because he was handcuffed and face down. That testimony was a nail in her coffin, and as such, the Court held that the shooting and failure to intervene in the use of the Taser was excessive force under the 4th Amendment.

DEPUTY BROWN’S USE OF THE TASER

Did Deputy Miley “fail to intervene” in Deputy Brown’s use of excessive force with the Taser such that she was not entitled to qualified immunity for that use of force?

The Court stated the rule regarding “failure to intervene” in excessive force as follows:

“An officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can be held liable for [the other officer’s] nonfeasance” (Fundiller v. City of Cooper City, 11th Cir. 1985).

Deputy Miley did not dispute Deputy Brown’s use of the Taser was excessive force, rather, she asserted that since she had just gone through a traumatic event, she was not completely aware that Brown was using excessive force. However, the Court noted that after that “traumatic event,” Deputy Miley called for medical assistance, retrieved her flashlight, used Brown’s handcuffs to restrain Salvato and kicked his hand. Further, the Court noted that video evidence showed Miley was not dazed or unaware of her surroundings, and she admitted that she was capable of telling Brown to cease use of the Taser.

As such, the Court held that Deputy Miley was aware enough of the events to recognize excessive force and capable of intervening by telling Brown to stop using the Taser. Thus, she was not entitled to qualified immunity on this claim.

Therefore the 11th Circuit affirmed the denial of qualified immunity as it pertained to Deputy Miley’s alleged excessive force and failure to intervene.

The Sheriff’s Office Responsibility to Investigate

After the shooting, the Sheriff’s Department did not do an internal investigation. Rather, they waited for the State and the State’s Attorney’s Office to review the case to determine if criminal violations occurred. The review held that no violation of State criminal law occurred and the Sheriff conducted no further investigation.

This is a fairly common practice in many jurisdictions. Think about it – the law enforcement agency turns the investigation over to an independent investigative agency. In this case the Florida Department of Law Enforcement (FDLE) and the State’s Attorney’s Office investigated the shooting and found that it did not violate State law. The Sheriff receives the final verdict from the independent investigatory agencies and concludes that the use of force was justified.

A Marion County Sheriff’s Office Operations Directive requires a supervisor to submit a “Green Team Report” after a use of force with “recommendations and/or action taken.” That report is an internal investigation by the Sheriff’s Office to determine whether a deputy has violated any policies or directives. The directive requires that, when a police shooting results in a death, the State Attorney’s Office and the Florida Department of Law Enforcement must be notified, and one of these offices or the Sheriff’s Office conducts an investigation.

EDITOR’S NOTE: Often in these cases the original agency doesn’t conduct any investigation to avoid the appearance of a biased report. The presumption is that if the shoot is ruled justified it includes both criminal and use of force variables. In this incident the Marion County Sheriff’s Office may have been caught in the conundrum of trusting that the independent investigation would satisfy all of the legal angles, and unfortunately found out that it did not.

After the FDLE conducted an investigation, the State Attorney presented the case to a grand jury to decide whether to file criminal charges. The grand jury did not indict Miley. The investigation by the FDLE did not provide any opinion about whether Miley violated Salvato’s constitutional rights or the policies and directives of the Sheriff’s Office. The investigation by the FDLE was limited to a determination about criminality.

The Sheriff testified that he decided not to order an internal affairs investigation. He concluded that the investigation by the FDLE and the grand jury report were “sufficient to cover all of our policies.” The Sheriff created a “task force committee” of “senior leaders” to review the reports from the grand jury and the FDLE, but that committee was “only set up to look at the external reports.” The Sheriff took no disciplinary action against Miley, but he did reassign her to Corrections.

The 11th U.S. Circuit Court’s Decision on “Ratification”

Salvato’s estate alleged that the Sheriff’s one instance of failing to investigate this incident “ratified” the Constitutional violation. The Sheriff argued that one instance of failing to investigate an excessive force incident is not sufficient to ratify a Constitutional violation.

At the outset, regarding ratification, the court stated:

“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final” (City of St. Louis v. Praprotnik). The sheriff must “cause,” the Constitutional violation under 42 U.S.C. 1983; that is, he must “officially sanction or order” the action.

In other words, local governments may be held liable for a Constitutional tort when policymakers have had the opportunity to review subordinates’ decisions before they become final. In Salvato’s case, the Sheriff did not approve of Deputy Miley’s shooting of Salvato before the shooting, so the Sheriff cannot be found liable under the ratification theory.

Additionally, the Court noted that a Sheriff or local government cannot be held liable on the theory of respondeat superior.
In order for a Sheriff or local government to be liable for the Constitutional violations of their employees, the plaintiff must show that a policy, custom, or practice of the government agency caused the violation. In this case the Court noted that Salvato did not allege any facts or evidence to show a policy, custom or practice of the sheriff caused the violation.

“Municipal liability is limited to action for which the municipality is actually responsible“, and a single failure to investigate an incident cannot have caused that incident. As such, the failure to investigate this single incident does not give rise to custom of failing to investigate use of force incidents.

The court did note that:

“Persistent failure to take disciplinary action against officers can give rise to the inference that a municipality has ratified conduct, thereby establishing [an un-Constitutional] ‘custom’ that can subject the government to liability.” But where the plaintiffs rely on a “single incident,” id., the official must have had an “opportunity to review” the subordinate’s decision “before [it] become[s] final,” id. at 1174. [vi]

Thus, because the Sheriff did not approve of the shooting before it occurred, and because there was no policy, custom or practice of the Sheriff that caused the violation, the Court reversed the decision of the District Court and held that the Sheriff was entitled to summary judgment on the issue of liability for excessive force.

Final Thoughts

I strongly disagree with the Court’s determination that Salvato was “not a threat” when he disengaged a second time after a violent assault on both deputies. However, it appears that Deputy Miley and the Sheriff’s Office failed to defend this position adequately enough. The use of the Force Science Institute could have been invaluable for this part of the case.

Past that determination, the Court decided that the (12) uses of the Taser (most notably after Salvato had been handcuffed) were unconstitutional. This is consistent with recent Court findings, and officers should take serious note that any use of force after handcuffing will come with the most strict and highest levels of judicial review. In short, if use of force is viewed under the reasonableness standard before handcuffing, the use of force after handcuffing will require an even higher level of justification more in line with due cause. Officers had better be prepared to articulate that justification.

In addition, officers on the scene of a use of force must evaluate the circumstances independently. We’re human, and sometimes our emotions get tangled up in the confrontation. It is your duty as an officer and a partner to recognize when another officer needs to be removed from the situation, or at least advised “that’s good, I’ve got him”. Had Deputy Miley recognized Deputy Brown was amped upon arrival and communicated something to bring him down, this situation may never have unfolded as it did. Once things started, Deputy Miley should have recognized that repeated use of a Tazer on a handcuffed prisoner would likely enter a Constitutional violation, and instead sought other control techniques.

Calling paramedics early to the scene is another important step that officers should take to provide appropriate care to people in their custody. Though it may not have mattered here, the deputies could have attempted to physically restrain Salvato and begin rendering first aid. Hind sight is what it is, but we can learn from this incident and create a mental note to constantly evaluate the use of force and its reasonableness – for ourselves and our partners.

Agencies having an independent agency review their use of deadly force is a good way to ensure impartiality and avoid officer-on-officer investigations within the same department. However, the agency should still conduct an Internal Investigation of the use of force, beyond the criminal investigation, to determine the legality of the force in terms of civil Constitutional ramifications.