Janice Williams, et al. v. Roland K. Boehrer, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14534
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D.C. Docket No. 1:09-cv-03630-SCJ
JANICE WILLIAMS,
DAVID NAVE, SR.,
JANICE WILLIAMS,
as mother of the David Nave, Jr. and
next friend of the Estate of David Nave Jr.,
Plaintiffs - Appellees
Cross Appellants,
versus
ROLAND K. BOEHRER,
KIRBY G. THREAT,
Defendants - Appellants
Cross Appellees,
KEMUEL A. (KEM) KIMROUGH, SR.,
in his official capacity,
JOHN DOES 1-5,
Defendants
Cross Appellees.
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________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(September 10, 2013)
Before PRYOR and HILL, Circuit Judges, and HALL,* District Judge.
PER CURIAM:
This appeal requires us to decide whether we have jurisdiction over the
interlocutory appeal of the denial of official immunity under the Georgia
Constitution to two law enforcement officers and whether those officers who shot
and killed a fleeing suspected felon armed with a knife are entitled to official
immunity. David Nave Jr. started a fire in an apartment building, attempted to rob
a woman at knife point, and destroyed property in a convenience store. Lieutenant
Roland Boehrer and Deputy Kirby Threat of the Sheriff’s Office of Clayton
County responded to the fire, but before they reached the fire, a man flagged down
Boehrer and told him that Nave was his suspect. When Boehrer approached him,
Nave drew a knife and ran away from Boehrer. As Boehrer and Threat chased
Nave, Boehrer tried to subdue him with a taser, but the taser did not connect
properly and failed to subdue him. Threat then shot and killed Nave. Nave’s
mother, Janice Williams, and father, David Nave Sr., sued Boehrer and Threat for
* Honorable James Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.
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wrongful death under Georgia law. Boehrer and Threat moved for summary
judgment and argued that they were immune from suit under the Georgia
Constitution. The district court denied the motion for summary judgment. We
reverse and render a judgment in favor of Boehrer and Threat.
II. BACKGROUND
David Nave Jr. started a fire in his bedroom in an apartment that he shared
with his mother, Janice Williams. Williams tried to call 911 to report the fire and
inform the dispatcher that Nave might still be inside, but before she could complete
the call, several neighbors told her that they had already called 911 and reported
the fire.
While Williams attempted to call 911 and waited on the emergency
responders, Nave took a knife from the apartment and walked to a nearby
convenience store. Nave approached a woman in the parking lot of the
convenience store with the knife and demanded that she give him money. The
woman fled to her van, and Nave yelled, “Give me your money! If not, I’m going
to kill you.”
Nave then entered the convenience store and threw wine bottles at the
cashier’s window. Nave approached an owner of the store aggressively and
shouted at him. He then threw a glass container of sugar to the floor. While Nave
destroyed property in the store, the owners of the store locked him inside. Nave
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continued to throw wine bottles. One of the wine bottles broke a window next to
the front door of the store, and Nave left the store through that window. Nave then
broke the windshield and slashed the tires of the store owners’ car.
Lieutenant Roland Boehrer and Deputy Kirby Threat of the Sheriff’s Office
of Clayton County were on duty when Nave started the fire and then went on a
rampage at the convenience store. Boehrer and Threat were having their cars
washed near the fire and Nave’s rampage. Threat heard an emergency call about
the fire and told Boehrer that they were not far down the road from the fire.
Boehrer had completed the cleaning of his vehicle and proceeded first toward the
scene of the fire. When Boehrer reached the convenience store, a man in a white
van flagged him down. The man pointed to Nave and said something along the
lines of “He did all of this stuff here. That is your suspect. You need to go arrest
him.” Boehrer contacted the dispatcher and attempted to confirm that Nave
matched the description of the suspect. The white van pulled behind Boehrer’s
vehicle, and the driver again pointed and said that Nave was the suspect. Nave
yelled an expletive and spit on the passenger side of the van.
Boehrer approached Nave, and Nave pulled out a knife. Boehrer ordered
Nave to drop the knife, drew his taser, and pointed it at Nave. Instead of
complying with Boehrer’s command, Nave fled. Boehrer informed the dispatch
operator that Nave had a knife and chased him into the parking lot of a nearby
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abandoned convenience store. By then, Threat had arrived at the convenience
store, and he joined the pursuit of Nave. Boehrer warned Threat that Nave had a
knife. The officers yelled at Nave to stop, but he continued to flee. At some point
in the pursuit, Threat drew his handgun.
The officers testified that Nave turned around and began slashing the knife
at Threat. The officers also testified that Threat lost his footing when he tried to
retreat. Boehrer then fired his taser at Nave. Because only one prong connected to
Nave, the taser did not cause him to drop the knife or stop his attack.
Threat then fired his handgun at Nave. Threat hit Nave once in the chest,
once in the elbow, and once in the back, and Nave fell to the ground. Threat
kicked the knife away, and Boehrer checked Nave for a pulse and asked the
dispatcher to send an ambulance. Nave died in the parking lot.
Monique Anderson, who lived in a nearby apartment, testified that she
watched from the balcony of her apartment as the officers chased Nave.
Anderson testified that Nave tried to run away from Boehrer and continued to run
when Boehrer ordered him to stop. She testified that she then heard four shots and
saw Threat with his gun out.
The Georgia Bureau of Investigation prepared a report on the shooting of
Nave. The report stated that the taser prong attached to the back of Nave’s
clothing. The report also stated that Nave was shot once to the torso from the
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back, once to the elbow from the back, and once to the chest from the front. More
blood was pooled around the wound to his torso from the back. A pathologist for
the Georgia Bureau of Investigation, Laura Darrisaw, testified that it was her
opinion, with a reasonable degree of medical certainty, that the shot to the torso
from the back struck Nave before the shot to his chest.
Williams, as mother of Nave and next friend of Nave’s estate, and David
Nave Sr., as father of Nave, sued the Sheriff of Clayton County, Kemuel
Kimbrough Sr., as an official, and Boehrer and Threat, as individuals, in a Georgia
state court. Williams and Nave Sr. complained that the officers had violated
Nave’s right to be free from the use of excessive force under the Fourth
Amendment and right to be free from the deprivation of his life under the Fifth
Amendment. The complaint also stated a claim of wrongful death under Georgia
law against Boehrer and Threat. Kimbrough, Boehrer, and Threat removed the
complaint to the district court because it involved federal questions, and
Kimbrough filed a motion to dismiss the claims against him. Williams and Nave
Sr. then filed a motion to amend the complaint and asked the court to dismiss their
federal claims without prejudice. Williams and Nave Sr. also filed a motion to
remand on the ground that the defendants had failed to file all of the necessary
documents from the state court with the district court and because Williams and
Nave Sr. had asked that their claims that presented federal questions be dismissed.
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The district court granted Williams and Nave Sr.’s motion to amend their
complaint to omit their claims that presented federal questions, denied their motion
to remand, and concluded that, because all of the claims against Kimbrough had
been dismissed, his motion to dismiss was moot.
Boehrer and Threat then moved for summary judgment and invoked official
immunity under the Georgia Constitution. The district court granted the motion for
summary judgment in part and denied the motion in part. The district court
concluded that Boehrer and Threat were entitled to summary judgment on the issue
whether they acted with actual malice under Georgia law because Williams and
Nave Sr. had conceded that they could not argue that the officers acted with actual
malice. But the district court also concluded that genuine issues of material fact
remained about whether Boehrer and Threat acted with the actual intent to injure
Nave because it was not clear from the record that the officers acted with the
justifiable intent of self-defense.
II. STANDARDS OF REVIEW
“We review questions of subject matter jurisdiction de novo.” Belleri v.
United States, 712 F.3d 543, 547 (11th Cir. 2013) (quoting Yunker v. Allianceone
Receivables Mgmt., Inc., 701 F.3d 369, 372 n.2 (11th Cir. 2012)). We review a
grant of summary judgment de novo. Shuford v. Fidelity Nat’l Prop. & Cas. Ins.
Co., 508 F.3d 1337, 1341 (11th Cir. 2007).
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III. DISCUSSION
We divide our discussion in two parts. First, we explain that we have
jurisdiction to decide the appeal of the denial of official immunity for Boehrer and
Threat, but that we lack jurisdiction to review some of the issues cross-appealed by
Williams and Nave Sr. Second, we explain that Boehrer and Threat are entitled to
official immunity under Georgia law.
A. We Have Jurisdiction To Review the Denial of Official Immunity Under
Georgia Law, but We Lack Jurisdiction Over Some Issues Cross-appealed.
We have jurisdiction to review the denial of official immunity under Georgia
law. We have explained that “[b]ecause sovereign immunity under Georgia law is
an immunity from suit, . . . we have jurisdiction over [a] district court’s order
denying summary judgment based on sovereign immunity under Georgia law.”
Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992). The immunity granted to
state officers by the Constitution of Georgia protects state officers from being
“subject to suit.” Ga. Const. Art. I, § 2, ¶ 9(d).
Williams and Nave Sr. argue that we lack jurisdiction over this interlocutory
appeal because the district court concluded that several questions of fact remain,
but we disagree. The Supreme Court has explained “that immediate appeal from
the denial of summary judgment on a [federal] qualified immunity plea is available
when the appeal presents a ‘purely legal issue’” but that “instant appeal is not
available . . . when the district court determines that factual issues genuinely in
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dispute preclude summary adjudication.” Ortiz v. Jordan, __ U.S. __, 131 S. Ct.
884, 891 (2011) (quoting Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151,
2156 (1995)). But the conclusion of the district court that genuine issues of
material fact remained depended on the interpretation of Georgia law by the
district court, and Boehrer and Threat challenge those interpretations. We have
jurisdiction to decide the “purely legal issue” whether, on the undisputed facts in
this appeal, Boehrer and Threat are immune from suit under Georgia law. See id.
Williams and Nave Sr. have cross-appealed several decisions of the district
court, but we lack jurisdiction over some of these issues. “[W]e have jurisdiction
of Plaintiffs’ cross-appeal [of a partial grant of summary judgment] only if it
properly falls within our pendent appellate jurisdiction.” Hudson v. Hall, 231 F.3d
1289, 1294 (11th Cir. 2000). “Under the pendent appellate jurisdiction doctrine we
may address [otherwise] nonappealable orders if they are inextricably intertwined
with an appealable decision or if review of the former decision [is] necessary to
ensure meaningful review of the latter.” Id. (alterations in original) (internal
quotation marks omitted). Williams and Nave Sr. cross-appeal five decisions of
the district court: (1) the decision that the failure to file all required pleadings after
removal of a case from state court did not deprive the district court of jurisdiction;
(2) the decision to allow Williams and Nave Sr. to amend their complaint to
dismiss their claims under federal law; (3) the decision to admit hearsay statements
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contained in the report of the Georgia Bureau of Investigation; (4) the decision that
Williams and Nave Sr. had conceded that they could not show actual malice; and
(5) the decision that Boehrer and Threat’s use of force was a discretionary act. But
we lack jurisdiction over the second and third issues. The dismissal of Williams
and Nave Sr.’s claims under federal law is not inextricably intertwined with the
merits of the state law immunity of Boehrer and Threat. And the alleged hearsay
statements about Nave’s attempt to rob a woman are not inextricably intertwined
with the legal questions of the immunity of Boehrer and Threat under Georgia law.
Boehrer and Threat argue that we also lack jurisdiction to address whether
the failure to file all pleadings served on them in the state court deprived the
district court of jurisdiction, but we disagree. We must address the jurisdiction of
the district court to ensure that we meaningfully review the official immunity of
the officers. Hudson, 231 F.3d at 1293. When “federal jurisdiction cannot be
found, . . . the district court’s entry [or denial] of summary judgment [i]s a
nullity,” Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1333 (11th Cir. 1998), and
we would have no decision to review.
The district court had jurisdiction over this matter, even though Boehrer and
Threat failed to file some of the documents that had been served on them in state
court. A defendant who removes a civil action from a state court “shall file in the
district court of the United States for the district and division within which such
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action is pending a notice of removal . . . together with a copy of all process,
pleadings, and orders served upon such defendant or defendants in such action.”
28 U.S.C. § 1446(a). We have explained that “the failure to include all state court
pleadings and process with the notice of removal is procedurally incorrect but is
not a jurisdictional defect,” Cook v. Randolph Cnty., Ga., 573 F.3d 1143, 1150
(11th Cir. 2009), and that “the failure to file papers required by the removal statute
may be remedied,” Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d
1285, 1286 (11th Cir. 1985) (emphasis omitted). And, if a district court needs a
document that has not been filed by the defendants, “[i]t may require the removing
party to file with its clerk copies of all records and proceedings in such State court
or may cause the same to be brought before it by writ of certiorari issued to such
State court.” 28 U.S.C. § 1447(b).
B. Boehrer and Threat Are Immune from Suit Under the Constitution of Georgia.
The Constitution of Georgia grants immunity to officers and employees of
government agencies. Ga. Const. Art. I, § 2, ¶ 9(d). An officer “may be subject to
suit and may be liable for injuries and damages caused by the negligent
performance of, or negligent failure to perform, their ministerial functions.” Id.
And an officer “may be liable for injuries and damages if they act with actual
malice or with actual intent to cause injury in the performance of their official
functions.” Id. An officer who does not negligently perform or fail to perform a
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ministerial function or act with actual malice or actual intent to cause injury in the
performance of a discretionary function “shall not be subject to suit or liability, and
no judgment shall be entered against them for the performance . . . of their official
functions.” Id.
Boehrer and Threat performed a discretionary act when they used force to
subdue Nave. “A ministerial act is commonly one that is simple, absolute, and
definite, arising under conditions admitted or proved to exist, and requiring merely
the execution of a specific duty.” Murphy v. Bajjani, 647 S.E.2d 54, 58 (Ga.
2007). “A discretionary act, however, calls for the exercise of personal
deliberation and judgment, which in turn entails examining the facts, reaching
reasoned conclusions, and acting on them in a way not specifically directed.” Id.
“ The determination of whether an action is discretionary or ministerial depends on
the character of the specific actions complained of, not the general nature of the
job, and is to be made on a case-by-case basis.” McDowell v. Smith, 678 S.E.2d
922, 925 (Ga. 2009) (alteration, quotation marks, and citation omitted). The
Supreme Court of Georgia “ha[s] held that a law enforcement officer exercises
discretion . . . [when he] fir[es] a gun at a suspect.” Cameron v. Lang, 549 S.E.2d
341, 345–46 (Ga. 2001).
Boehrer and Threat did not “act with actual malice or with actual intent to
cause injury” when they used force to subdue Nave. See Ga. Const. Art. I, § 2, ¶
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9(d). A law enforcement officer in Georgia is justified in using deadly force in
three circumstances that apply here:
[A law enforcement officer] may use deadly force to apprehend a
suspected felon only when the officer reasonably believes that the
suspect possesses a deadly weapon or any object, device, or
instrument which, when used offensively against a person, is likely to
or actually does result in serious bodily injury; when the officer
reasonably believes that the suspect poses an immediate threat of
physical violence to the officer or others; or when there is probable
cause to believe that the suspect has committed a crime involving the
infliction or threatened infliction of serious physical harm.
Ga. Code Ann. § 17-4-20(b). Boehrer and Threat suspected that Nave had started a
fire in an apartment complex. Boehrer had seen Nave draw a knife, reported to
dispatch that Nave had a knife, and warned Threat that Nave had a knife. Boehrer
and Threat reasonably believed that Nave, a suspected felon, “possess[ed] a deadly
weapon.” Id. After the officers pursued him, Nave slashed a knife at Threat,
posing an “immediate threat of physical violence to the officer.” Id.; A bystander
twice identified Nave as the suspect. Nave then yelled and spit on the bystander’s
van, pulled out a knife when approached by Boehrer, and fled. Boehrer and Threat
had “probable cause to believe that [Nave] ha[d] committed a crime involving the
infliction or threatened infliction of serious physical harm.” Id. Boehrer and
Threat were justified in their use of force.
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IV. CONCLUSION
We REVERSE the denial of official immunity and RENDER a judgment in
favor of Boehrer and Threat.
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