McElroy v. City of Birmingham (903 F. Supp. 2d 1228, 2012)

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is presently pending before the court on defendants’ Motion for Summary Judgment. (Doc. 30.) Plaintiff Elizabeth W. McElroy, as Administratrix of the Estate of Reginald W. Osby, has sued the City of Birmingham and its police officer, Matthew Hutchins, alleging violations of Mr. Osby’s Fourth Amendment rights and Fourteenth Amendment/Equal Protection rights. She also alleges a state-law wrongful death claim. These claims are based on the shooting death of Mr. Osby on October 12, 2008. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendants’ Motion for Summary Judgment, (doc. 31), is due to be granted in part and denied in part.

I. SUMMARY JUDGMENT STANDARD

Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state that the non-moving party cannot meet its burden at trial”).

In deciding a motion for summary judgment, the court’s function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176(1962) (per curiam)). Nevertheless, the non-moving party “need not be given the benefit of every inference but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988)); see also Scott, 550 U.S. at 380, 127 S.Ct. 1769 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

II. STATEMENT OF FACTS

Exhibit A to the Scheduling Order states, “All statements of fact must be supported by specific reference to evidentiary submissions.” (Doc. 10, Ex. A at 3.) Also—

Any statements of fact that are disputed by the moving party must be followed by a specific reference to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth in the statement required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant.

(Id. at 6 [original emphasis deleted].) “The court reserves the right sua sponte to strike any statements of fact or responsive statements that fail to comply with these requirements.” (Id. [original emphasis deleted].)

A number of defendants’ responses to plaintiffs undisputed facts do not comply with the court’s Exhibit A; therefore, these facts are deemed admitted for purposes of summary judgment.

A. BACKGROUND

Defendant Matthew Hutchins is a Police Officer with the City of Birmingham Police Department. He graduated from the Birmingham Police Academy in 2003. (Doc. 31, Ex. 1 at 9-12; id., Ex. 7 at 18.) After a month of training, Officer Hutchins was assigned to the Patrol Division in the West Precinct. (Id., Ex. 1 at 11.)

Officer Hutchins received training at the Police Academy on dealing with a person with a mental illness and on the City’s Use-of-Force Policy. (Ex. 1 at 16, 156-57, 160-62, 224.) The City’s Use-of-Force Policy establishes and regulates the amount of force a Birmingham police officer is allowed to use in various situations. (See doc. 31, Exs. 3 and 4.) The policy defines “lethal force” as “Physical force which is readily capable of causing death or serious bodily injury,” and “any force which the officer believes could result in serious injury or death.” (Id., Ex. 3 at §§ IB and IIF.) An officer’s justification for the use of lethal force “must be limited to what reasonably appears to be the facts known or perceived by the officer at the time he decides to use such force.” (Id. § VIIC.) A suspect using a deadly weapon is a Level VI incident and allows the use of firearms by the police officer. (Id., Ex. 3, §§ IIIF and IVF.)

Officer Hutchins was trained how and when to use a taser versus a firearm when dealing with someone with a deadly weapon. (Id., Ex. 1 at 29, 32-35; id., Ex. 2.) The taser is a Level IV Force weapon. (Id., Ex. 2 § IIA.) Because tasers do not always work properly, Officer Hutchins was trained to use a firearm, not a taser, against persons who are armed with a deadly weapon and are threatening deadly force against the officer or another person. (Id., Ex. 1 at 33-34.) The policy states a taser is “an additional tool” and so it does not replace firearms; it is used to control dangerous or violent people when deadly force does not appear to be justified and/or necessary, or when there is a reasonable expectation that it is unsafe for officers to approach within contact range of the subject. (Id., Ex. 2, § IIG.)

Hutchins testified that he is a Native American of the Echota Cherokee Tribe, but he stated he was white on forms completed in his capacity as a police officer. (Doc. 31, Ex. 1 at 27, 37; id., Ex. 13; doc. 34, Exs. 3-7 and 58.)

B. PRIOR CALLS TO CITY’S POLICE DEPARTMENT BY CHRISTINE LEATH

The following facts are deemed undisputed:

1. On June 19, [2008], Christine Leath[, the wife of decedent Reginald Osby,] called the police about her 27-year-old schizophrenic son, Deron Cook, not taking his medication and behaving violently. The dispatcher coded that call as a “signal 78” (for mentally disturbed persons) and sent the police to her residence. [ (Doc. 34, Ex. 1 ¶¶ 2-3; id., Ex. 17; doc. 31, Ex. 10 at 69-71.)]

2. Subsequently, Deron went to Brookwood Hospital for three weeks for treatment for mental illness, and Christine moved to 1917 Avenue J in Ensley. [Doc. 34, Ex. 1 ¶ 4; id., Ex. 18.) ]

3. After Deron’s hospital discharge, Christine called the police again on August 5, 2008 about Deron’s erratic behavior relating to his mental illness, and the police again responded to this signal 78 call. [ (Id., Ex. 1 ¶ 5; id., Ex. 19.) ]

4. Next, on September 26, 2008 Christine called the police yet again about Deron being off his medication and behaving very aggressively due to his mental illness, and the police again responded to this signal 78 call. [ (Id., Ex. 1 ¶ 6; id., Ex. 14.) ]

(Doc. 35 at 6.) The responding officer on these calls did not “flag” this residence in police records to alert other officers to reoccurring problems with someone who is mentally ill at this address. (Doc. 31, Ex. 7 at 16-17; doc. 34, Ex. 50 at 31.)

C. EVENTS OF OCTOBER 12, 2008

The following faces are deemed undisputed:

45. On Sunday October 12, 2008, Christine was cooking dinner at her 1917 Ave. J. home in Ensley AL while her husband, 59 year old Reginald Osby, (“Osby”) the decedent in this case, was in the bedroom. [ (Doc. 34, Ex. 1 ¶ 9.) ]

46. Deron burst into the house in a rage. Although Christine had been feeding Deron and at times allowing him to sleep at her home, Christine had told Deron to leave because he had not been taking his mental illness medication. [ (Id. ¶¶ 8, 10.) ]

47. When Christine told Deron to leave, Deron became aggressive towards Christine, cursing and slapping her; therefore, Christine called the police, yet again, on Deron. [ (Id. ¶¶ 10-12.) ]

48. Osby came out of the back room and Deron behaved aggressively towards him. Christine’s 13 year old son, Reginald Cook, came into the house and told Deron to leave his parents alone. Deron reacted by chasing Reginald, grabbing him and stabbing him with a knife in the hand. [ (Id. ¶¶ 14-17.) ]

49. Osby stepped in to protect. his son from Deron, and Deron started trying to attack Osby, but others arrived to help, including Diontez Cook (age 14) and Jarvis Harris (age 17), and they managed to wrestle the knife from Deron. [ (Id. ¶¶ 20-22, 32.) ]

50. Christine called the police again to find out where they were, because the station is only a block and a half from her house. [ (Id. ¶ 18.) ]

51. In one of her calls to the police, Christine mentioned that Deron was mentally ill, as she had done in her previous call to the police on the previous occasions. However, the recordings of her calls are unclear, sound altered, and omit her reference to Deron’s mental illness. [ (Id. ¶ 19.) ]

52. Meanwhile, Deron, had grabbed a fork and used it to stab Osby; the autopsy report confirms Osby was stabbed with the fork. [ (Id.; id., Ex. 2; id., Ex. 27 at 2.) ]

53. Although Christine’s house (1917 Avenue J) falls outside their regular beat, [ (doc. 31, Ex. 11 at 53) ], the dispatcher sent Hutchins and Mays to Christine’s house at approximately 3:34 p.m. On this occasion, dispatch coded the call as a signal 38, a domestic call. Officers Ryan and Barron, Unit 437, were also sent, but Hutchins and Mays arrived first. [ (Id., Ex. 1 at 13-14; id., Ex. 7 at 11; doc. 34, Ex. 13; id., Ex. 29.)]

54. Violent signal 38 calls require supervisory notification, [footnote] [ (Doc. 34, Ex. 13; id., Ex. 30 at 2.) ]

[Footnote] Defendants’ expert, Cooley, testified he was an expert on Defendants’ policies surrounding domestic disturbance calls and that the dispatchers were not supposed to notify a supervisor about a domestic disturbance call that involves potential violence; however, upon being shown this policy requiring the supervisor to be notified, Cooley changed his testimony and admitted that dispatch should have notified the supervisor on the October 12, 2008 call at issue, but the records indicates dispatch did not notify a supervisor until after the shooting when the Officer, after the shooting, put in an emergency call for supervision and all units. [ (Doc. 31, Ex. 10 at 52-53; doc. 34, Ex. 30 at 2.) ]

55. Wdien Officers Hutchins and Mays pulled up to the house they noticed a kid with a butcher knife standing in the doorway. [ (Doc. 31, Ex. 1 at 97-99; id., Ex. 7 at 29.) ]

56. As the Officers approached, the kid put down the knife inside the house, and, according to Hutchins, the boy walked out onto the porch and opened the door for the officers. [ (Doc. 31, Ex. 1 at 99-100.) ] Mays stated the boy stayed inside and moved to the side as he and Hutchins entered the house. [ (Id. at 29-31.) ]

(Doc. 35 at 15-17.)

Officer Hutchins had no knowledge of any earlier problems at this residence involving Deron Cook or that Deron Cook suffered from a mental illness. (Doc. 31, Ex. 1 at 86, 172, 225.)

When Officers Hutchins and Mays arrived at the house, they heard yelling coming from inside the house. (Id., Ex. 1 at 99-100; id., Ex. 7 at 29-30, 86, 100.) Although Officer Mays testified that he announced, “Birmingham Police, upon entering the home, Ms. Leath testified that the officers did not announce their presence. (Doc. 34, Ex. 1 ¶ 23.) For purposes of summary judgment, the court assumes that Officer Mays did not announce, “Birmingham Police.” Defendants also contend that their presence was obvious because they were in uniform and their badges were displayed. However, the evidence indicates that Mr. Osby had his back to the officers. (Doc. 31, Ex. 1 at 116; id. Ex. 7 at 31, 67-68.)

Ms. Leath testified that she told the officers her son, Deron, was responsible for the altercation and that Deron was “retarded.” (Doc. 34, Ex. 1 ¶ 24; id., Ex. 10; doc. 31, Ex. 1 at 18, 87-88, 101-07, 179-80, 217; id., Ex. 7 at 31-32, 34-35, 39-43, 51, 68, 86.) Officer Hutchins contends that he did not know which man was Deron Cook. (Doc. 31, Ex. 1 at 90.) He testified that Deron Cook, who was 27 years old, looked older than Mr. Osby, who was 59. (Doc. 31, Ex. 1 at 117, 130-32, 218-19; doc. 34, Ex. 8 at 4.) Defendants’ expert, George Cooley, testified that anyone could tell that Mr. Osby was older than Deron Cook. (Doc. 31, Ex. 10; doc. 34, Ex. 9.)

The following facts are deemed undisputed:

61. Mays did not follow Hutchins into the kitchen because he had grabbed Christine’s arm to hold her back; in doing so, Mays stood behind the wall separating the den from the kitchen, which blocked his view into the kitchen, but Christine stood in the doorway and could see into the kitchen. (Doc. 31, Ex. 1 at 116; id., Ex. 7 at 35-37, 41-42, 76, 85, 90-91; doc. 34, Ex. 10; id., Ex. 31; id., Ex. 32 at 5-6.) ]

62. In his initial statement, Officer Mays noted the children were also present, stating: “I’m getting extremely panic from the children and — right there with the mother.” [ (Doc. 31, Ex. 7 at 88; doc. 34, Ex. 32 at 5.) ]

(Doc. 35 at 18.)

According to plaintiff, Deron Cook left the kitchen when the officers approached. (Doc. 34-1 at 5; doc. 34-2 at 3). Officer Hutchins testified that he saw Osby with a weapon, which he thought was a knife, and ordered him to drop it. Ms. Leath and Reginald Cook both testified that Officer Hutchins did not give Osby any commands. (Doc. 34, Ex. 1 ¶ 27; id.. Ex. 2 ¶ 15.) Officer Mays testified that he heard Officer Hutchins say something to Osby, but he could not hear what was said because Ms. Leath was screaming. Mr. Osby was beginning to stand and put down the fork when Officer Hutchins shot him in the back. (Doc. 34, Ex. 1 ¶ 28; id., Ex. 2 ¶¶ 13-14.) Officer Hutchins testified that he saw Mr. Osby look at him before he fired, but Mr. Osby did not drop his weapon, a fork. (Doc. 31, Ex. 1 at 218.) Officer Mays testified that Officer Hutchins fired less than one second after he heard Officer Hutchins say something to Mr. Osby. [ (Exs. 1, 2.) (Ex. 1 at 106-07, 124, 139-40, 144.) doc. 31, Ex. 7 at 38-39, 85.]

The City awarded Officer Hutchins a Combat Cross Award for shooting Mr. Osby. (Doc. 34, Exs. 1-2, 26 at 5; doc. 31, Ex. 1 at 79-82; id., Ex. 9 at 85, 93-94.)

D. HUTCHINS’S ALLEGED HISTORY OF RACIAL PROFILING AND USING FORCE AGAINST BLACKS

The following facts are deemed undisputed:

77. Hutchins has been the subject of a racial profiling complaint due to a stop he did of a black man driving a nice car. The man, Willie J. Murphy, submitted a statement indicating that “Officer Hutchins and his partner (have) serious issues with the African American race (and they) ... hate and despise black people.” [ (Doc. 34, Ex. 16.) ]

78. However, [the City’s] combined report of complaints on Officer Hutchins ignores the true nature of this racial profiling complaint and summarizes the complaint only as: “Alleges [officer] was rude towards him”, [footnote] [ (Doc. 34, Ex. 16.) ]

[Footnote] The man filed a lawsuit, not mentioning race discrimination, his attorney took no depositions and the case was dismissed on Summary Judgment. [ (Doc. 34, Ex. 38; doc. 31, Ex. 1 at 19-22, 47-48.) ]

79. Hutchins now says he is Native American because each of his parents were partial Native American; [footnote omitted] however, on the Use of Force reports he signed, Hutchins indicates his race is white. According to Sgt. Powrzanas, Officers fill out those forms. [ (Doc. 31, Ex. 1 at 27, 37; doc. 34, Exs. 3-7; id., Ex. 28; id., Ex. 50 at 5-8.) ]

81. Hutchins has a history of using force against African-Americans: in February 2004 he tased a black male; in May 2005 he tased a black male; in October 2006 he kneed a black male; in June 2007 he tased a black male; in April 2007 he tased a black male; and in April 2009 he tased a black male. [ (Doc. 31, Ex. 1 at 35-37, 67-68, 73-74; id., Ex. 3; id., Ex. 7; id., Exs. 23-25; id., Ex. 28.)

82. Hutchins could not identify or point to any record indicating he had used force against a white male, but he volunteered in his deposition that he had shot a white person’s dog. [ (Doc. 31, Ex. 1 at 66-67, 71-72.) ]

(Doc. 35 at 20-21.)

E. CUSTOM AND/OR POLICY OF IGNORING BIRMINGHAM POLICE DEPARTMENT POLICIES TO DOCUMENT, TO INFORM, AND TO PREPARE OFFICERS WHEN DEALING WITH MENTALLY DISTURBED PERSONS

The following facts are deemed admitted:

5. The City’s policy for “Responding to Persons with Mental Illness,” dated December 19, 2006, requires officers to “complete an incident report after answering calls involving a mentally ill person”. [ (Doc. 31, Ex. 9, Vol. II at 16; doc. 34, Ex. 20 at 7.) ]

6. When a Community Service Officer (CSO) is not called to the scene, the Policy requires Officers to leave a copy of the incident report with the CSO. [ (Doc. 31, Ex. 9, Vol. II at 16; doc. 34,

Ex. 20 at 7.) ] The incident report must first go to the supervisor for approval and coding, and then it goes to the CSO. [ (Doc. 31, Ex. 1 at 199-200.) ]

7. The written incident report is required regardless of whether the mentally ill person resides at the residence where the officers are called. [ (Doc. 31, Ex. 14 at 50-51.) ]

8. Lt. [Carolyn] Lavender, the Officer in charge of communications, confirmed that when an Officer responds to a call concerning a mentally disturbed person, the Officer must complete a written report and “always notify their Supervisor on a 78.” [ (Doc. 31, Ex. 11 at 38.) ]

9. The City’s policy requires a Patrol Supervisor to be sent to the signal 78 scene by dispatch or called to the scene by the Officer, if, upon arriving on the scene, he or she realizes the person is mentally ill. When the supervisor arrives he has several steps to complete. [ (Doc. 34, Ex. 20 at 3; doc. 31, Ex. 9 at 37, Vol. II at 84-87.) ]

1. Requirement to Complete Written Incident Report and Notify Supervisor Not Followed

10. It is the custom and de facto policy of the City to not prepare or file incident reports on signal 78 calls or notify the supervisor. Indeed, in 2008, Defendants had 790 Signal 78 calls (excluding K and L),[footnote] but incident reports were not done 82% of the time, and Supervisors were not notified 97% of the time, [footnote] [(Doc. 34, Ex. 53.)]

[Footnote:] Calls ending in disposition (K) or (L) involve an Officer assisting, so that Officer does not do a report; that is one reason that not all the 3,433 signal 78’s have incident reports. [(Id., Ex. 29; id., Ex. 49; id., Ex. 53.)]

Footnote: Whenever Officers respond to signal 78 calls that turn out to be something else, the dispatch log indicates the code change; therefore, a comparison between the signal 78 dispatch reports and the mentally disturbed person incident reports, a determination can be reached indicating what percent of the signal 78 calls are actually recorded onto incident reports, as Defendants’ policy directs its Officers to do. [ (Doc. 31, Ex. 9, Vol. II at 23-24.) ]

11. Chief Roper and Lt. Lavender admitted that the policy requiring incident reports and supervisor notification is not always followed. [ (Doc. 31, Ex. 9 at 67-68, 77; id., Ex. 11 at 43.) ]

11. [sic] In the instant case, the supervisor over the beat where the shooting occurred, Sgt. Powrzanas, was not notified about Christine’s September 26th call regarding Deron (he was not the supervisor for the August 5th call), and he admitted the Officers on those calls should have called their supervisors, filled out incident reports, and sent those reports to the CSO. However, no incident report was done for either prior signal 78 call regarding Deron. [ (Doc. 34, Ex. 50 at 28-29, 35-36; 45-47, 57; id., Ex. 14; id., Ex. 52 at 21; doc. 31, Ex. 9 at 70.) ]

2. Failure to Notify Officers about Prior 78 Calls to Residence Resulted in Officers Being Not Prepared on October 12, 2008

12. Although dispatchers have the capability to search prior calls from a residence to see its history, it is the policy and practice of the City not to train them how to do so. This is the practice for “no particular reason. It just takes too much time” — a couple of minutes. [ (Doc. 31, Ex. 11 at 17-18, 23-25, 108-09; id., Ex. 10 at 57-58.) ]

13. In this case, Officers Matthew Hutchins and Marvin Mays were dispatched to a location off their regular beat, and the City has no policy or procedure for updating Officers new to an area about the history of a residence where they are sent. If the Officers wanted that information, it is available. [ (Doc. 31, Ex. 11 at 27-28.) ]

14. In order for Officers to alert each other to a residence with reoccurring problems with someone who is mentally ill, the officer or his supervisor should complete out an alert form so that dispatch can “flag” the residence. [ (Doc. 31, Ex. 7 at 16-17; doc. 34, Ex. 50 at 31.) ]

15. When a call comes in from a residence that has been flagged due to prior calls regarding a mentally ill person at the address, information regarding the person, including a physical and behavioral description, would automatically pop up so the dispatcher can then promptly inform the responding officer en route. [ (Doc. 31, Ex. 11 at 35-36, 39-45; doc. 34, Ex. 52 at 103-04.) ]

16. In order to get a residence flagged, the Officer on the scene must fill out an alert form kept at the precinct or at police headquarters, give it to his or her supervisor for approval and then send it to the dispatch center to be inputted into the database. [ (Doc. 31, Ex. 11 at 36-37; doc. 34, Ex. 52 at 79-84.)

17. Documents produced by Defendants indicate Officers can also directly notify dispatch of the need for a flag as shown by a dispatch report stating “the OFCR observed several disturbing characteristics about this subject and feels this house needs to be put on alert to prevent any danger to the home owner or any officer.” [Doc. 34, Ex. 48.) ] No such call was made by any officer on the prior visits to the residence. [ (Id.) ]

18. Chief Roper and Lt. Lavender, who is in charge of dispatch, confirmed that there is no policy or procedure governing when to flag events. [ (Doc. 31, Ex. 9 at 29-33; id., Ex. 11 at 36, 96-97, 109, 115; doc. 34 at 72-74, 84.) ] However, Lavender testified that signal 78s are generally flagged, and she admitted that Christine’s house should have been flagged with an alert because of its repeated history of signal 78 calls. She could not explain why it was not flagged. [ (Doc. 31, Ex. 11 at 36, 96-97, 109, 115.) ]

19. Lt. Lavender testified that she would enter a flag on an address with a prior signal 78, including a description of the mentally disturbed person and his prior violent behavior in order to better prepare Officers for their next encounter with that individual. [ (Id. at 43-44.)]

20. Sgt. [Rodney] Powrzanas, the supervisor of the beat where Christine’s house is located, reviewed the September 26, 2008 call (which stated Deron was behaving very aggressively and not taking his medication), and testified he would have “flagged” that residence in order to better prepare Officers responding to future calls there. [ (Doc. 34, Ex. 14; id., Ex. 50 at 32, 41-42, 49.) ]

21. Sgt. Powrzanas did not know why the 78 call was not properly recorded in an incident report, nor did he know why it was not flagged. He has never asked his Officers why they failed to properly document the calls. [ (id., Ex. 50 at 32-33.) ]

22. Chief Roper does not know of any signal 78s that have been flagged. [ (Doc. 31, Ex. 9 at 29-33; doc. 34, Ex. 52 at 72-74, 84.) ]

23. Roper testified that he would flag a residence “when it rises to a certain level of criticality of violence,” but he does not know of any training provided to officers on the requisite level of violence to warrant a flag. [ (Doc. 34, Ex. 52 at 75.) ]

24. The fact that mentally ill person does not reside at the residence in question, does not affect whether the residence should be flagged. [ (Id. at 76.) ]

25. Lt. Lavender admitted the deficiency in the City’s policy on informing officers about prior incidents with the mentally ill. [footnote omitted] (Doc. 31, Ex. 11 at 82-83.) ]

26. Chief Roper agreed it is always best for Officer to know the history of the residence they are being called to. [Doc. 34, Ex. 52 at 100-01.) ]

27. Neither Hutchins nor Mays had knowledge that anyone on the scene was mentally ill. [ (Doc. 31, Ex. 1 at 16; id., Ex. 7 at 103.) ]

28. Before the shooting, neither Hutchins nor Mays knew that officers had been sent the same address to deal with Deron in a mentally disturbed state twice in the last two months. [ (Id., Ex. 1 at 172-74, 190, 225; id., Ex. 7 at 12, 23-24, 99, 106.) ]

29. Had Hutchins known that he would be dealing with a mentally ill person, he would have called a supervisor as the policy directs. [ (Id., Ex. 1 at 195.) ]

30. Mays would have liked to have this information, because it is helpful to know someone’s reasoning may not be normal. Had that residence been flagged the dispatcher would have properly informed him. [(Id., Ex. 7 at 12, 23-24, 99, 106; doc. 34, Ex. 52 at 106-07. )]

8. The Failure to Notify CSO about Prior Incidents and the General Policy of Excluding CSO’s from Information Prevented CSO’s Ability to Address Deron’s Needs and Find Him a Place to Live

31. Due to the de facto policy of Officers only completing incident reports 18% of the time (discussed supra), CSO’s are only notified on 9% of calls dealing with mentally disturbed persons despite the City policy requiring them to be notified of all such calls. [ (Doc. 34, Ex. 21; id., Ex. 53.) ]

32. It is up to the Officer on the scene to notify the CSO. [ (Doc. 11 at 61-62.) ]

33. When the CSO receives referrals, they generally go out to the home and talk with the mentally ill person and others involved, and if the mentally ill person does not have a place to live, help him find one. [ (Doc. 34, Ex. 51 at 42-43.) ] The CSO must have a copy of the incident report to have the mentally ill person committed to get help. [ (Id. at 36-37.) ]

34. Sgt. Powrzanas admitted the policy requiring all signal 78 incident reports be submitted to the CSO was not and is not followed. [ (Id., Ex. 50 at 37-38.)]

35. CSO Nolan also admitted that although policy requires officers to complete an incident report so the CSO can determine whether the person at issue poses a safety risk, that policy is not always followed. [ (Id., Ex. 20 at 7; id., Ex. 21 at 1-2; id., Ex. 51 at 29-33.) ]

36. Chief Roper admitted a CSO should have been notified about the most recent occasions [ (August 5, 2008 and September 26, 2008) ] where Christine had called the police about Deron in a mentally disturbed state; however, no CSO was notified. [ (Id., Ex. 52 at 89.) ]

37. The City denies CSO’s access to the data base that shows prior incidents involving a particular mentally ill person at a specific residence. [ (Doc. 34, Ex. 51 at 47-48.)

38. When the CSO receives an incident report on a mentally ill person, the CSO keeps the person’s file for a couple of months and then destroys it. She does not have access the data to look into the prior history of that person; rather, she must commit to memory the mentally ill individuals she encounters and the services she provides them. Other CSO’s filling in for her or replacing her have no method of knowing which mentally ill person she has dealt with and what services she provided because they have no system of keeping up with or sharing that information. [ (Id. at 49-52.) ]

39. One of the two CSO’s assigned to the area of the shooting, Nolan, had not heard of Deron Cook or any incidents at the residence, and had the other CSO dealt with Deron, Nolan would have known. [ (Id. at 9, 19-20, 29-30.) ]

4. Failure to Provide Documented Training to Officers on Dealing with Mentally 111 or Flagging Addresses

40. Police Officers receive only perfunctory training at the police academy regarding how to deal with the mentally ill or mentally disturbed. [ (Doc. 31, Ex. 9 at 40.) ]

41. Although it is the policy to provide refresher training on how to handle mentally disturbed persons every three years, the City offers no such training. Refresher training is offered on other subjects, however. (Doc. 31, Ex. 9 at 40-42, 83; doc. 34, Ex. 20 at 8; id., Ex. 52 at 16.) ] [footnote]

[Footnote]: Roper later said in the fall of 2005 they conducted department training on responding to mentally ill, but he does not know where the training was conducted, who attended and what subjects were covered in that training. [ (Doc. 34, Ex. 52 at 5-9.) ]

42. Neither Officers Hutchins, Mays, Ryan, nor their supervisor, Sgt. Powrzanas, had received any training on handling persons with mental illness since they attended the academy, which, for Powrzanas, was 14 years ago. [ (Doc. 31, Ex. 1 at 16-17, 87, 176; id., Ex. 7 at 17-20; id., Ex. 14 at 52; doc. 34, Ex. 50 at 11-12, 39^0, 42-43.) ]

43. Officers are not provided training on how to get an address flagged. Officer Ryan testified he has received no training on how to get an address flagged; he does not know how to get a residence flagged, where to get the paperwork or where to send it. [ (Doc. 31, Ex. 14 at 41-42.) ]

44. Even if a residence is not flagged, Officers are able to check its history by checking with the dispatcher or, if they know how to do that, check the computers in their vehicles, but Sgt. Powrzanas (Hutchins’s supervisor) does not know how to do this. [ (Doc. 34, Ex. 50 at 50-51.) ]

(Doc. 35 at 7-15 [emphasis in original].)

F. CITY’S CUSTOM AND PRACTICE OF FAILING TO INVESTIGATE OFFICER SHOOTINGS

The City has an agreement with the Alabama Bureau of Investigation [“ABI”] to investigate all on-duty shootings of suspects by officers of the Birmingham Police Department. (Doc. 31, Ex. 9 at 101, 110.)

The following facts are deemed undisputed:

85. ABI “investigates the shooting from the standpoint of criminal law, did [the Birmingham Police Department] violate State code....”[ (Doc. 31, Ex. 9 at 110.) ] According to that policy, the ABI does not render an opinion or conclusion as to whether the shooting was justified; rather, the results of the investigation are turned over to the District Attorney (“DA”), who determines whether there has been a criminal law violation. [ (Id. at 101; doc. 34, Ex. 35; id., Ex. 52 at 30-33, 66.) ]

86. Here, the DA’s letter indicates the DA is not going forward with the case against Officer Hutchins because the DA would have to prove beyond reasonable doubt that Hutchins committed a felony in killing Osby. The DA’s letter does not indicate whether Hutchins violated any police policies. [ (Doc. 31, Ex. 10 at 125; doc. 34, Ex. 36.)]

87. The City uses a Firearm Review Committee, (“FRC”) to conduct an internal investigation of an officer’s shooting and to review facts surrounding the incident to determine if the shooting was within department policy. [ (Doc. 34, Ex. 37; id., Ex. 52 at 34; doc. 31, Ex. 9 at 108-109, 111.) ]

88. The FRC’s conclusion in fatal shootings relies on the ABI/DA’s determination of whether there has been a criminal law violation. Chief Roper and the City’s expert could not identify any occasion where the DA cleared an Officer shooting of criminal wrongdoing, but the FRC found the shooting in violation of policy. Chief Roper explained that it would be very difficult to violate one and not the other. [ (Doc. 34, Ex. 52 at 37-38; doc. 31, Ex. 10 at 126.) ]

89. From 2004 to the present, anytime the FRC determined a policy had been violated, ABI had no involvement in the investigation. [ (Doc. 34, Ex. 52 at 52-60; id., Exs. 40^6.) ]

90. Other than possibly talking to the Officers involved in the shooting, the FRC does not interview other witnesses. [ (Doc. 31, Ex. 9 at 109.) ]

(Doc. 35 at 22-23.)

Although the ABI interviewed Ms. Leath and the FRC identified her as a witness, the FRC report did not contain her statement or a summary of her statement. (Doc. 34, Ex. 37; id., Ex. 52 at 24, 95-96, 126; doc. 31, Ex. 9 at 112-113.) The following facts are deemed admitted:

96. As is the custom and practice, the FRC waited for the DA to issues its finding in order to rely on the DA’s determination in completing its own report: on March 17, 2009, the DA finished its investigation and issued its finding that Hutchins violated no criminal law; the FRC then came out with its report on April 20, 2009, clearing Hutch-ins of any wrongdoing. [ (Doc. 34, Ex. 52 at 32, 40-41, 45; id., Ex. 36.) ]

97. Chief Roper admitted that in order to find that Hutchins shot Osby to protect Deron from serious physical harm, he had to rely solely on Hutchins’ [s] version of events, because no other witness statement supported that finding. [ (Doc. 31, Ex. 9 at 119.) ]

98. Chief Roper has not read all the statements. [ (Id. at 95.) ]

99. Chief Roper admits that the evidence does not show that Mr. Osby had threatened Officer Hutchins with a fork. [ (Id. at 118-119.) ]

100. If Hutchins shot Osby when he was not threatening anyone, then the shooting would be a violation of policy. [ (Id. at 121.) ]

(Doc. 35 at 24-25.)

III. DISCUSSION

Plaintiffs Amended Complaint contains three claims: use of excessive force in violation of Mr. Osby’s Fourth Amendment rights and violation of Mr. Osby’s rights under the Equal Protection Clause of the Fourteenth Amendment, which are actionable pursuant to 42 U.S.C. § 1988, and a claim of wrongful death pursuant to Alabama law. For the reasons set forth below, the court finds that defendant’s Motion for Summary Judgment is due to be granted as to plaintiffs’ claims against Officer Hutchins in his official capacity, her excessive force claim against the City, and her equal protection claims against both defendants; it is due to be denied as to her § 1983/excessive force claim against Officer Hutchins in his individual capacity and her state-law wrongful death claim.

A. EXCESSIVE FORCE

In her Amended Complaint, plaintiff alleges that defendants used “excessive and unreasonable” force against Mr. Osby in violation of his Fourth Amendment right to be free from unreasonable seizure. (Doc. 14 ¶¶ 28-29.) Specifically, plaintiff contends that Officer Hutchins shot Mr. Osby, who was unarmed and did not pose a threat to Officer Hutchins or to any other person, in the back without warning and that this conduct was unreasonable. Also, she claims the City’s policy and or custom, or lack thereof, caused Mr. Osby’s death.

1. Officer Hutchins

a. Official Capacity

Plaintiff has sued Officer Hutchins in his official capacity as an officer of the Birmingham Police Department; she has also sued the City of Birmingham. In Kentucky v. Graham, the Supreme Court clarified the distinction between a suit against an individual in his personal capacity and a suit against that individual in his official capacity:

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.

Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal citations and quotations omitted). The Eleventh Circuit has recognized this principle’s application to local government entities: “For liability purposes, a suit against a public official in his official capacity is considered a suit against the local government entity he represents.” Owens v. Fulton County, 877 F.2d 947, 951 n. 5 (11th Cir.1989). When suit is also filed against the local government entity, the court should dismiss the individual defendant in his official capacity as “redundant and possibly confusing to the jury.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991).

In this case, the claims against Officer Hutchins in his official capacity are duplicative of the claims against the City. Therefore, plaintiffs claims against Officer Hutchins in his official capacity are due to be dismissed.

Defendants’ Motion for Summary Judgment as to all claims against Officer Hutchins in his official capacity will be granted.

b. Personal Capacity

Officer Hutchins contends that the § 1983 claims against him in his personal or individual capacity are due to be dismissed on the basis of qualified immunity. (Doc. 2 ¶ 10.)

When government officials act in a way that knowingly violates a clearly established statutory or constitutional right of which a reasonable person would have known, they are not immune from suit and may be held liable for the damage their actions caused. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). But when these same officials make decisions that do not knowingly violate such rights, they are not required to defend themselves in a lawsuit seeking damages. Id. They are “immune” from suit. Id. We call this defense “qualified immunity” because the official is immune from a damage lawsuit, qualified upon his ability to show that he did not knowingly violate the plaintiffs clearly established constitutional right. Id.

Ray v. Foltz, 370 F.3d 1079, 1081-82 (11th Cir.2004). “Qualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Carr v. Tatangelo, 338 F.3d 1259, 1266 (11th Cir.2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001))) (internal citations and quotations omitted.).

The Eleventh Circuit uses a two-step analysis to determine whether a public official has qualified immunity: (1) the public official must establish that he was acting within the scope of his discretion; and (2), if the public official establishes that he was acting within his discretion, the plaintiff must show that the public official violated clearly established statutory or constitutional law. Wood v. Kesler, 323 F.3d 872, 877-78 (11th Cir.2003); Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir.1992). For purposes of the § 1983 claims, the parties do not dispute that Officer Hutchins was acting within his discretion; therefore, the issue for the court is whether his actions violated clearly established constitutional law.

Whether Officer Hutchins’s actions violated clearly established constitutional law also “consists of a two-part inquiry.” Harris v. Coweta County, Ga., 433 F.3d 807, 812 (11th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

First we ask, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” [Saucier, 533 U.S. at 201, 121 S.Ct. 2151] If, assuming the plaintiffs allegations were true, no such right would have been violated, the analysis is complete. However, if a constitutional violation can be made out on the plaintiffs facts, [the court] then must determine “whether, at the time of the incident, every objectively reasonable police officer would have realized the acts violated already clearly established federal law.” Garrett v. Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir.2004) (citing Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151).

Id.

“The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiffs allegations, if true, establish a constitutional violation.” Hope, 536 U.S. at 736, 122 S.Ct. 2508. In a civil action brought pursuant to § 1983, the plaintiff bears the burden of demonstrating a constitutional violation. Harris, 433 F.3d at 811 (citing Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir.2002)); Kesler, 323 F.3d at 877-78.

“[A] claim of excessive force in the course of making a seizure of the person is properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)) (internal quotations omitted). “A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied.” Id. (quoting Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)) (internal quotations omitted). “The Fourth Amendment’s freedom from unreasonable searches and seizures encompasses the right to be free from excessive force during the course of a criminal apprehension.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir.2009) (citing Graham, 490 U.S. at 394, 109 S.Ct. 1865).

In determining whether an officer’s use of force is excessive, “[t]he question is whether the officer’s conduct is objectively reasonable in light of the facts confronting the officer.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir.2002) (citing Graham, 490 U.S. at 394, 109 S.Ct. 1865). The reasonableness of the use of force is measured objectively and it is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 397, 109 S.Ct. 1865; Penley v. Eslinger, 605 F.3d 843, 852 (11th Cir.2010); Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir.2009). Examination of the objective reasonableness of the force used allows for consideration of the circumstances in light of the fact that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Oliver, 586 F.3d at 905-06 (citing Graham, 490 U.S. at 396-97, 109 S.Ct. 1865).

Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.

Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)) (internal citations and quotations omitted). “As [the Eleventh Circuit] has clarified, the second factor [ — whether the suspect poses an immediate threat to the safety of the officers or others — ] can be reduced to a single question: whether, given the circumstances, [the suspect] would have appeared to reasonable police officers to have been gravely dangerous.” Penley, 605 F.3d at 851 (quoting Pace v. Capobianco, 283 F.3d 1275, 1281 (11th Cir.2002)).

[T]he 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. But ... none of these conditions are prerequisites to the lawful application of deadly force by an officer seizing a suspect.

Id. at 851 (citing Scott, 550 U.S. at 382, 127 S.Ct. 1769; Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)) (internal citations omitted); see also Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir.2005).

Defendants contend that Officer Hutch-ins saw Mr. Osby attack Deron Cook with a deadly weapon and that he ordered Mr. Osby to drop the weapon. When Osby did not drop the weapon, Officer Hutchins shot him in the back and killed him. However, plaintiff’s evidence disputes defendants’ recitation of the events surrounding the shooting.

Plaintiff has presented evidence from which a jury could find that Officer Hutch-ins knew Deron Cook was the aggressor, not Mr. Osby. Plaintiffs evidence also supports a finding that Officer Hutchins did not give any warning before shooting Mr. Osby. Also, even if the jury found Officer Hutchins had commanded Mr. Osby to drop the fork, he shot him less than a second later, not giving Mr. Osby time to acquiesce. Moreover, a reasonable jury could find Mr. Osby posed no threat to anyone at the time of the shooting because Deron Cook had left the room and, at the time, Mr. Osby was trying to stand up and put down the weapon — facts that would be evident to a reasonable officer in the position of Officer Hutchins. Based on this evidence, a jury could find that any reasonable police officer in the same position as Officer Hutchins would not have exercised deadly force in violation of Mr. Osby’s Fourth Amendment rights.

Having found that plaintiff has made a sufficient showing of unconstitutional excessive force, the second step in the Saucier analysis requires the court to determine whether Officer Hutchins is entitled to qualified immunity because the law was not clearly established at the time of the shooting that use of such force under the circumstances was excessive. Officer Hutchins is not entitled to qualified immunity if, “at the time of the incident, every objectively reasonable police officer would have realized the acts violated clearly established federal law.” Harris, 433 F.3d at 812 (citations omitted). The Eleventh Circuit has held that a plaintiff can establish that the law was clearly established in two ways:

The first is to point to a materially similar case that has already decided that what the police officer was doing was unlawful. Because identifying factually similar cases may be difficult in the excessive force context, [the Eleventh Circuit has] recognized a narrow exception also allowing parties to show that the official’s conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law. Under this test, the law is clearly established, and qualified immunity can be overcome, only if the standards set forth in Graham and [Eleventh Circuit] case law inevitably lead every reasonable officer in the defendant’s position to conclude the force was unlawful.

Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir.2002) (internal quotations and citations omitted.)

“In the context of Fourth Amendment excessive force claims, [the Eleventh Circuit has] noted that generally no bright lines exists for identifying when force is excessive; [the Eleventh Circuit has] concluded that unless a controlling and materially similar case declares the official’s conduct unconstitutional, a defendant is usually entitled to qualified immunity.” Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir.2000) (citing Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.1997)). The narrow exception to this rule is where the plaintiff shows that “the official’s conduct lies so obviously at the core of what the Fourth Amendment prohibits,” and “was so far beyond the hazy border between excessive and acceptable force that the official had to know he was violating the Constitution even without caselaw on point.” Id (citations omitted). Under either test, “pre-existing law must dictate, that is, truly compel (not just suggest or raise a question about), the conclusion” that every like-situated reasonable officer would consider the officer’s actions, in question, constituted a violation of the law. Id When reviewing caselaw, in this context, the court is limited to decisions of the United States Supreme Court, the Eleventh Circuit, or the highest court of the relevant state that were issued as of the date of the conduct in question. Vinyard 311 F.3d at 1351-52 and n. 22.

Viewing the evidence in the light most favorable to plaintiff, any reasonable officer on the scene would have known that Mr. Osby was a victim and not the aggressor. Also, Mr. Osby was not threatening anybody, the altercation with Deron Cook had ended, and Deron Cook was no longer in the kitchen when Officer Hutchins shot Mr. Osby. Moreover, Officer Hutchins and his partner, Officer Mays, were within feet of Mr. Osby, with their guns drawn, presumably capable of stopping Mr. Osby should he suddenly pose a threat. The court notes that Officer Mays testified that Officer Hutchins shot Mr. Osby less than a second after saying something to him; he did not give Mr. Osby sufficient time to comply before shooting him. Therefore, viewing the evidence in the light most favorable to the plaintiff, a reasonable officer would not have deemed Mr. Osby to be an immediate threat to his safety or the safety of others. Also, because Mr. Osby had only a fork, which Officer Hutchins testified he thought was a knife, and because Deron Cook was no longer in the room, any reasonable officer in Officer Hutchins position, must have known that the situation did not call for the use of deadly force.

The Supreme Court has held:

Specifically with regard to deadly force, we explained in Gamer that it is unreasonable for an officer to seize an unarmed, nondangerous suspect by shooting him dead. But where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

Brosseau v. Haugen, 543 U.S. 194, 197-98, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)) (internal citation and quotations omitted). Specifically, the Supreme Court in Garner held:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Garner, 471 U.S. at 11-12, 105 S.Ct. 1694. “[A]n officer will be entitled to qualified immunity if he had “arguable probable cause” to employ deadly force; [therefore, the court must] decide whether “the officer reasonably could have believed that probable cause existed” to use deadly force. Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir.2003) (citations omitted).

At the time of the shooting in 2008, the Eleventh Circuit, for over twenty years, had recognized “that shooting a suspected felon who was apparently neither fleeing nor threatening the officers or others was — even in July, 1983 — an unreasonable seizure and clearly violated fourth amendment law.” See Lundgren v. McDaniel, 814 F.2d 600, 603 (11th Cir.1987) (footnote omitted).

In this ease, as set forth above, the facts, viewed in the light most favorable to plaintiff, support a finding that Hutchins knew that Osby was not suspected of any crime and was actually a victim; that he did not pose a threat to Hutchins, another officer, or other person; that he was not resisting arrest or attempting to escape; and that a warning and chance to comply were feasible under the circumstances. A reasonable jury could find that Officer Hutchins “without provocation shot at a nondangerous suspect.” Lundgren, 814 F.2d at 603. Since 1983, every reasonable officer in Officer Hutchins’s position would have known that the use of deadly force against Mr. Osby under the circumstances was unconstitutional.

The court finds that Officer Hutchins is not entitled to qualified immunity. Therefore, defendants’ Motion to Dismiss on the grounds of qualified immunity will be denied.

2. City’s Liability

The Supreme Court has strictly limited a municipality’s liability under Section 1983. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998) (citing Monell v. Dept. of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In Monell, the Supreme Court held that municipalities are “persons” within the meaning of § 1983 and “may only be held liable under 42 U.S.C. § 1983 when the injury caused was a result of municipal policy or custom.” Monell, 436 U.S. at 691, 98 S.Ct. 2018; Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir.2009). A city may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018. A plaintiff may establish municipal liability in three ways:

First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. Whether a particular official has final policy-making authority is a question of state law. Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.

Gillette v. Delmore 979 F.2d 1342, 1346 - 1347 (9th Cir.1992) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) and citing, inter alia, City of St. Louis v. Praprotnik, 485 U.S. 112, 123-24, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Edüd 452 (1986); Monell, 436 U.S. at 690-91, 98 S.Ct. 2018) (internal citations and quotations omitted).

Plaintiff alleges that the City is liable because of its policies and/or customs of police interaction with mentally-ill individuals and of not investigating the use of deadly force by its police officers.

a. Custom or policy — Mentally-111 Suspects

Plaintiff contends:

[T]he City [has] failed to train officers on how, specifically, to handle persons with mental illness when they encounter them, [and] the City has also utterly failed to adopt and implement a policy that tracks its encounters with mentally ill persons requiring repeated intervention, so that its police officers and social workers (CSO’s) can properly and safely respond to disturbances caused by such persons and issue the appropriate corrective action. The failure to adopt and implement a policy or practice of adequately preparing first responders to these situations, combined with the failure to train officers in the first place, results in a standard of care well below the contemporary standard for police departments and leads to the entirely foreseeable consequence of unnecessarily violent and deadly encounters between the police and the mentally disturbed and their families, as with Osby.

(Doc. 35 at 34-35.) Based on the evidence presented, the court assumes, for purposes of summary judgment only, that “neither the police officers, police dispatch CSO’s, nor supervisors are trained on how to properly interact with, respond to, prepare for, or keep track of persons with mental illness at residences repeatedly requiring police intervention,” and, “[i]n addition to failing to keep its Officers informed about potentially violent mentally ill people they may encounter at certain residences, the City also fails to notify the very employees it hires to assist its mentally ill citizens— the CSOs, thus preventing them from doing their job.” (See id. at 37.) Plaintiff contends that these failures directly caused Mr. Osby’s death; she argues:

Here, the city’s complete failure to train or otherwise prepare its officers to approach a potentially violent situation involving a mentally ill person, and to even apprise the officers that they were entering a residence where a mentally ill person had repeatedly exhibited violent and erratic behavior of which the city had been repeatedly made aware, led to the entirely foreseeable consequence that the officers, believing they had been called to stop a domestic dispute, entered the residence, guns ablaze, and responded with excessive, deadly force. Had they been aware that the call was regarding a mentally ill person with a history of aggressive behavior and had they been properly trained on how to deal with such persons, then the situation would likely not have resulted in the tragic death of Reginald Osby. Had the CSOs been properly notified regarding the multiple instances of Deron’s erratic behavior based on Christine’s previous emergency calls, he may have been in a proper home or involuntarily committed, removing him, and Osby, from the dangerous situation leading to Osby’s death.

(Id. at 43.)

In order for the City to be liable, plaintiff must prove a direct causal link between the policy and/or custom at issue and Mr. Osby’s death. Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); City of Canton, 489 U.S. at 385, 109 S.Ct. 1197. The policy and/or custom — or lack thereof — “must be closely related to the ultimate injury” — Mr. Osby’s death. City of Canton, 489 U.S. at 391, 109 S.Ct. 1197. “The connection between conduct and harm must be legally sufficient to satisfy notions of common fairness and policy.” Dixon v. Burke County, 303 F.3d 1271, 1275 (11th Cir.2002). The City’s “deliberate conduct” must be “the moving force behind the injury.” Brown, 520 U.S. at 404, 117 S.Ct. 1382.

The court finds that the City’s lack of a policy for handling mentally-ill suspects or its custom of not flagging residences or contacting CSOs did not cause Officer Hutchins to use excessive force in this case. Mr. Osby was not mentally ill and he did not have a history of mental illness. Officer Hutchins thought, erroneously, that Mr. Osby was the aggressor and that he had a weapon. The evidence indicated that Officer Hutchins had been told that Ms. Leath’s son was mentally ill and that he was the aggressor. Officer Hutchins shot Mr. Osby without warning him in spite of the fact that Deron Cook had left the area and Mr. Osby was only moving to put down the fork. The evidence does not support an inference that Officer Hutchins contemplated his course of action and nothing in the record supports a finding that he would have behaved any differently if he had known before arriving on the scene that Der