MARC MILLER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GLORIA M. MILLER, ON BEHALF OF THE ESTATE OF GLORIA M. MILLER, AND ON BEHALF OF HIMSELF AND ON BEHALF OF THE SURVIVOR OF THE ESTATE, IRA MILLER, APPELLANT,
v.
CITY OF FORT LAUDERDALE, A MUNICIPALITY OF THE STATE OF FLORIDA, JORGE BENITEZMERLO, PHILIP ARTH, DAVID TURLEY, TERRANCE THOMTON, JON COLLINS AND ALAN STONE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court affirmed dismissal of a § 1983 civil rights claim for failing to allege knowing and intentional unconstitutional seizure rather than mere negligence, but reversed the dismissal with prejudice to allow amendment and held that excessive force questions are fact issues for trial, not dismissal.
A § 1983 claim arising from a police shooting must allege knowing and intentional or willful conduct constituting an unconstitutional seizure, not merely negligent conduct, but dismissal with prejudice is improper and excessive force questions are fact issues for trial.
[1] A complaint alleging a civil rights violation under 42 U.S.C. …
[2] Whether a police officer's conduct was unreasonable and constituted excessive force in a § 1983 claim is a fact question to be resolved by trial or summary judgment, not…
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceA police shooting incident resulted in a civil rights claim under 42 U.S.C. § 1983 brought by the personal representative of the victim's estate and s…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Unconstitutional Seizure cases and more on FLexlaw
PER CURIAM.
We affirm in part an order dismissing a claim arising out of a police shooting incident, alleging a civil rights violation under 42 U.S.C. § 1983. The complaint fails to allege knowing and intentional or willful, rather than negligent, conduct amounting to an unconstitutional seizure of the victim of the shooting. Cf. Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); Dodd v. City of Norwich, 827 F. 2d 1 (2nd Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988); Matthews v. City of Atlanta, 699 F.Supp. 1552 (N.D.Ga.1988). However, the court should not have dismissed the claim with prejudice as plaintiff should be afforded the opportunity to amend. We additionally note that upon such amendment, the questions of whether the defendants’ conduct was unreasonable and constituted excessive force is a fact issue to be resolved by trial, or on a motion for summary judgment, and not by a motion to dismiss. Cf. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Samples v. City of Atlanta, 846 F. 2d 1328 (11th Cir.1988); Acoff v. Abston, 762 F. 2d 1543 (11th Cir.1985); Spera v. Lee, 728 F.Supp. 366 (E.D.Pa.1990).
The order is affirmed in part but reversed as to prejudice and remanded.
ANSTEAD and STONE, JJ., and OWEN, WILLIAM C., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Welch v. State, 741 So. 2d 1268 (Fla. 5th DCA 1999)…SON, J., concurs. HARRIS, J., concurs specially with opinion. . § 893.13(6)(a), Fla. Stat. . Fla. R.App. P. 9.140(b)(2)(A); Robinson v. State, 373 So. 2d 898 (Fla.1979); Covington v. State, 728 So. 2d 1195 (Fla. 4th DCA 1999); Patterson v. State, 569 So. 2d 1386 (Fla. 4th DCA 1990); Newbold v. State, 521 So. 2d 279 (Fla. 2d DCA 1988); Banks v. State, 467 So. 2d 386 (Fla. 5th DCA 1985). .§ 322.03(1), Fla. Stat. . Art. 1, § 12, Fla. Const. . Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d…
Authorities Cited
- Graham v. Connor, 490 U.S. 386 (U.S. 1989)
- Brower v. Cnty. OF Inyo, 489 U.S. 593 (U.S. 1989)
- Oather Jefferson Samples and Barbara Jackson v. City OF Atlanta & Officer J.M. Oglesby, 846 F.2d 1328 (11th Cir. 1988)
- Lewellyn Acoff v. D.E. Abston, 762 F.2d 1543 (11th Cir. 1985)
- Dodd v. City OF Norwich & Eric Larson, 827 F.2d 1 (2d Cir. 1987)
- Union Pac. R.R. Co. v. Energy Transp. Sys., Inc., 484 U.S. 1007 (U.S. 1988)
- Johnson v. Alabama, 484 U.S. 1007 (U.S. 1988)