MILLER v. CITY OF FORT LAUDERDALE, 569 So.2d 1386 (Fla.App. 4 Dist. 1990)

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.

No. 89-2479.District Court of Appeal of Florida, Fourth District.
November 28, 1990.

Appeal from the Circuit Court, Broward County, Estella May Moriarty, J.

Page 1387

Peter M. Siegel and Randall C. Berg, Jr. of Florida Justice Institute, Inc., Miami, for appellant.

Robert H. Schwartz of Gunther Whitaker, P.A., Fort Lauderdale, for appellees.

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.