[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-10687

________________________

D.C. Docket No. 1:09-cv-23462-EGT

MICHAEL KNIGHT, 

through Cheryl Denise Kerr, as Personal Representative 

and Next-of-Kin, 

LATASHA CURE, 

 Plaintiffs - Appellants,

versus

MIAMI-DADE COUNTY, 

a Florida County and Political Subdivision 

of the State of Florida, 

MIAMI-DADE POLICE DEPARTMENT, 

a Government Subdivision of Miami-Dade County, 

ROBERT PARKER, 

former Director, Miami-Dade Police Department, 

Individually and as an Officer of the Miami-Dade 

Police Department, 

JAMES LOFTUS, 

Interim Director, Miami-Dade Police Department, 

Individually and as an Officer of the Miami-Dade 

Police Department, 

OFFICER RYAN ROBINSON, 

Individually and as an Officer of the Miami-Dade 

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Police Department, et al., 

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 5, 2017)

Before MARCUS, JILL PRYOR, and SILER,

* Circuit Judges.

 * Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by 

designation.

MARCUS, Circuit Judge:

This tragic case began in the late hours of November 12, 2007, when MiamiDade Police Officers Ryan Robinson and Michael Mendez discharged their 

firearms at a Cadillac SUV driven by nonparty Frisco Blackwood and carrying 

plaintiffs Michael Knight and Latasha Cure as passengers. The shots ultimately 

killed Blackwood and Knight and wounded Cure. Two years later, Knight’s estate 

and Cure individually filed an eleven-count complaint against the officers, the two 

detectives who questioned Cure on the night of the shooting, Miami-Dade County, 

the Miami-Dade Police Department, and the directors of the Miami-Dade Police 

Department, seeking damages for various civil rights violations and claims arising 

under state law.

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The court dismissed two of the eleven counts and granted summary 

judgment to the defendants on five others. Only Knight’s and Cure’s civil rights 

claims and assault and battery claims against the officers survived and proceeded 

to trial. The jury ultimately returned a verdict for the defendants on all remaining 

counts. After the plaintiffs’ motion for a new trial was denied and final judgment 

was entered for the police officers, the plaintiffs timely appealed. They alleged error 

in six different trial rulings that they claim warrant a new trial. They also challenged 

the court’s grants of summary judgment to the County, the supervising officers, and 

the detectives who questioned Cure after the shooting.

After careful review, we hold that the trial court did not abuse its

considerable discretion in any of the challenged trial rulings. Further, we conclude 

that the court did not err in granting summary judgment to the County, the 

supervising officers, or the detectives. Accordingly, we affirm.

I.

A.

The undisputed facts in this sad case are these: On the evening of November 

12, 2007, Officers Ryan Robinson and Michael Mendez of the Miami-Dade Police 

Department discharged their firearms, killing Frisco Blackwood and Michael 

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Knight1 and wounding Latasha Cure. At around 10:00 p.m., Blackwood, Knight, 

Cure, and two of their friends left a Miami nightclub in a silver Cadillac SUV. 

Blackwood was driving, Knight sat in the front passenger seat, and Cure and her 

two friends sat in the second row of seats. Cure was seated directly behind the 

driver. The two friends were dropped off and Blackwood, Knight, and Cure 

continued driving. The passengers were all unarmed.

The Cadillac was traveling north on North Miami Avenue when a police car 

that had been idling at the intersection of North Miami Avenue and Northwest 

62nd Street did a U-turn and began to follow it. The police car was occupied by 

Officers Robinson and Mendez, who were on duty as part of the Robbery 

Intervention Unit of the Miami-Dade Police Department. The officers contend that 

the Cadillac ran a red light, while the plaintiffs say they were stopped at a red light 

when they noticed the police car begin to follow them. According to Cure’s sworn 

statement taken shortly after these events, the plaintiffs drove north on North 

Miami Avenue, made a right turn on Northwest 67th Street, sped up, drove a few

more blocks, and then made a right turn on Northeast 2nd Avenue, with the 

officers in pursuit. The Cadillac sped up and drove a few more blocks before 

 1 Knight’s claims are raised by Cheryl Kerr, his mother, as his personal representative and next 

of kin. Throughout this opinion, any mention of Knight or of claims brought on his behalf are 

referred to using “Knight” rather than “Kerr.”

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turning right again, now heading westbound on Northwest 65th Street. The 

officers also sped up and continued following the Cadillac.

The officers attempted to effect a traffic stop by using their P.A. system to 

order the Cadillac to pull over. The Cadillac continued driving and, after crossing 

North Miami Avenue going west, it entered a dead end and stopped. The officers 

parked their car behind the Cadillac, turned on their spotlight, exited the car with 

guns drawn, and ordered the plaintiffs to exit the Cadillac.

On this much, the parties agree. But when it comes to the details and the 

events that followed the cars’ arrival at the dead end, the facts become more

muddled. This is because the only surviving passenger of the Cadillac -- Cure --

presented drastically different accounts in her sworn statement taken the morning 

after the shooting (November 12, 2007), and then later in her deposition, which 

was conducted some three years and two months later (February 1, 2011).

Detectives Terry Goldston and Richard Raphael of the Miami-Dade Police 

Department took Cure’s sworn statement after the shooting. According to that 

statement, when the passengers noticed the police car following them, Knight said, 

“Oh, shit. Squally’s [police] behind us.” After driving a few more blocks, 

Blackwood asked Knight, “Should I bring it?” Knight responded, “Bring it,” 

which Cure said she interpreted as meaning “[d]on’t stop for the police officer.” 

Cure said that when the Cadillac stopped at the dead end, Blackwood’s hands were 

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on the steering wheel and the car was in reverse. The officers approached the car 

on both the driver’s side and the passenger’s side. Blackwood then rotated the 

steering wheel clockwise and accelerated backward, causing the car to swing 

toward the officer standing by the driver’s side window. The officer quickly 

moved to avoid being struck by the car, and then both officers began firing into the 

moving vehicle. As the car reversed, Blackwood slumped over to the side and the 

shots continued; the Cadillac then collided with the police car, two stop signs, and 

a parked car before it ultimately stopped against a fence.

According to Cure’s deposition testimony, however, when the plaintiffs 

noticed the police car following them, Knight said “something about squallies 

[police] behind us.” Cure testified that the police car had its headlights off. At this 

point, they were traveling approximately fifty miles per hour in a thirty-five mileper-hour zone. Blackwood asked Knight what he should do, and Knight 

responded, “just hit it. Get out of here.” Cure said that when the Cadillac stopped 

in the dead end, Blackwood’s right hand was down on his right side and his left 

hand was obscured from her view. The officers turned on their headlights and 

spotlights and got out of the car with their guns drawn; one approached the driver’s 

side and the other approached the passenger’s side. Cure then heard a low noise 

like a “clink” followed by a single shot aimed directly at the driver from the officer 

standing next to the driver’s window; at this point, the car was not moving. After 

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that shot, Blackwood’s body slumped forward and to the right; the car then began

to accelerate in reverse. The path of the reversing car forced the officer who had 

fired on the driver to quickly move to avoid being struck by the car. While the car 

reversed, the officers continued to fire until the car came to rest against a fence.

The officers’ shots ultimately killed Blackwood and Knight. Cure was shot 

once in her right thigh. After the shooting, Cure was transported to Jackson 

Memorial Hospital where she underwent surgery to remove the bullet and suture 

the wound. After the surgery, Detective Goldston approached Cure and said he 

would drive her home once she was discharged. Rather than go with him, Cure 

checked herself out of the hospital and left with a friend at about 1:30 a.m. to go

back to the scene, where many of her friends had gathered. While she was there, 

Detective Goldston called Cure’s cell phone and told her that he needed to take her 

statement at the police station. Cure then left the scene with a friend to return to 

her house.

When Cure got home, Detective Goldston was waiting for her. Cure agreed 

to accompany him to the police station; they left for the station before she had a 

chance to go inside and change out of the hospital scrubs she was wearing. They 

arrived at the police station at about 3:00 a.m. and Cure was placed in a conference 

room. She remained there for about an hour before Detectives Goldston and 

Raphael returned to begin their questioning. The Detectives questioned her 

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intermittently for about forty-five minutes and then left her alone for another hour. 

Cure testified that, while the officers were gone, she “kept dozing off and going 

back and forth to the bathroom.” She also testified that while they were asking her 

questions, they were writing notes to each other on a napkin and passing the napkin 

back and forth. At 8:20 a.m., the detectives brought in a court reporter and took an 

official sworn statement that lasted until 9:13 a.m. Cure testified that, by this 

point, her pain medication was wearing off and her wound was bleeding through 

her hospital scrubs. After she gave her statement, Detective Goldston drove her 

home.

B.

Two years later, on November 12, 2009, Knight’s estate and Cure

individually filed an eleven-count complaint in the United States District Court for 

the Southern District of Florida against Miami-Dade County, the Miami-Dade 

Police Department, Former Police Department Director Robert Parker, Interim 

Police Department Director James Loftus, Officer Robinson, Officer Mendez, 

Detective Goldston, and Detective Raphael. The counts included § 1983 claims by 

Knight and Cure against Miami-Dade County, the Miami-Dade Police Department, 

Officer Robinson, and Officer Mendez for violations of the Fourth, Fifth, Eighth, 

and Fourteenth Amendments due to excessive use of force (Counts 1, 2, 9, and 10); 

wrongful-death claims by Knight against the County, the Police Department, 

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Officer Robinson, and Officer Mendez (Counts 3 and 4); assault and battery claims 

by Knight and Cure against the County, the Police Department, Officer Robinson, 

and Officer Mendez (Counts 5, 6, 7, and 8); and a § 1983 claim by Cure against 

Detectives Goldston and Raphael for violations of the Fourth, Fifth, Eighth, and 

Fourteenth Amendments due to coercive interrogation (Count 11).

All of the defendants moved to dismiss the complaint based on qualified 

immunity, immunity under Florida law, and failure to state a claim. The court 

dismissed the Miami-Dade Police Department from the action entirely, and it also 

dismissed the state-law claims against the County. The court denied the motion to 

dismiss the remaining nine counts. The case was then referred to a magistrate 

judge, with the consent of all parties, for further proceedings including trial. See

Fed. R. Civ. P. 73(a).

After discovery, all of the defendants moved for summary judgment on the 

remaining counts. Officers Robinson and Mendez and Detectives Goldston and 

Raphael argued that they were entitled to qualified immunity, while the County 

claimed that it was immune from suit on the state-law claims and that the plaintiffs 

had failed to show the existence of an official policy or an unofficial custom or 

practice necessary to subject the County to liability. Directors Parker and Loftus 

moved for summary judgment as well, urging that they, too, were entitled to 

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qualified immunity and that they had never been named in any counts of the 

complaint.

The court ultimately granted summary judgment to the County, Directors 

Parker and Loftus, and Detectives Goldston and Raphael on all counts levelled 

against them, as well as on the wrongful-death claims pending against Officers 

Robinson and Mendez. However, the court denied summary judgment on the 

assault and battery and § 1983 claims against Officers Robinson and Mendez, 

concluding that the officers were not entitled to qualified immunity. Officers 

Robinson and Mendez appealed the denial of summary judgment. On December 

19, 2013, a panel of this Court affirmed the denial of summary judgment in an 

unpublished decision. See Knight v. Miami-Dade Cty., 548 F. App’x 607, 608 

(11th Cir. 2013). We concluded that the court did not err in finding that genuine 

issues of material fact remained regarding the officers’ conduct. Id.

When the case returned to the trial court, the court made several rulings on 

evidentiary issues including, as relevant to this appeal, the admissibility of various 

expert witnesses’ testimony and the admissibility of criminal-history evidence. 

Trial started on June 9, 2014. Among other rulings, the trial court limited the

plaintiffs’ cross-examination of the defendants’ police-practices expert to one hour. 

Evidence of the Police Department’s pursuit policy, proffered by the plaintiffs, was 

excluded. And the trial court declined to give a jury instruction that had been 

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requested by the plaintiffs -- that “the Defendants are not justified in using deadly 

force if their own objectively unreasonable actions created the very risk that 

generated the eventual use of deadly force.”

After the plaintiffs rested their case, the defendants moved for judgment as a 

matter of law pursuant to Fed. R. Civ. P. 50(a). The trial court deferred ruling on 

the motion, and, after the defendants rested, they renewed the motion. At the 

conclusion of the trial but before the case was submitted to the jury, the plaintiffs 

in turn moved pursuant to Rule 50(b) for judgment in their favor on all affirmative 

defenses; again, the trial court reserved ruling until after the jury’s verdict.

On June 19, 2014, jury instructions were given and the jury began its

deliberations. After seven hours of deliberation spanning two days, the jury 

informed the court that it was ready to consider itself a hung jury. The judge 

ordered them to continue deliberating and, eventually, the parties consented to 

receiving a verdict by a supermajority (at least six to two). The jury ultimately 

rendered its verdict by a vote of seven to one for the defendants on all counts. As 

for Knight, the verdict questions read this way:

1. Do you find from the greater weight of the evidence in Plaintiff Michael 

Knight’s favor on the federal claim of excessive use of force against 

Defendant Ryan Robinson?

. . .

2. Do you find from the greater weight of the evidence in Plaintiff Michael 

Knight’s favor on the federal claim of excessive use of force against 

Defendant Michael Mendez?

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. . .

3. Do you find from the greater weight of the evidence in Plaintiff Michael 

Knight’s favor on the state law claims of assault and/or battery against 

Defendant Ryan Robinson?

. . .

4. Do you find from the greater weight of the evidence in Plaintiff Michael 

Knight’s favor on the state law claims of assault and/or battery against 

Defendant Michael Mendez?

The jury answered each question in the negative; again, the split was seven to one. 

The same verdicts were rendered for Cure.

After the verdict, the plaintiffs moved for a new trial. They alleged that the 

trial court committed error in excluding evidence of any violations of the Police 

Department’s pursuit policy, admitting testimony from the defendants’ policepractices expert, failing to give the jury a proffered instruction, and admitting some 

criminal-history evidence. The trial court entered an omnibus order finding no 

error on any of the points raised and resolving certain other disputed issues about 

costs. Accordingly, an amended final judgment was entered on the same day 

reflecting the apportionment of costs between the parties. The plaintiffs timely 

appealed.

II.

This is undoubtedly a heartbreaking case. But on appeal, the plaintiffs do 

not argue that the jury’s verdict was rendered against the substantial weight of the 

evidence. Rather, Knight and Cure say that six discrete errors entitle them to a 

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new trial: the inclusion of the defendants’ police-practices expert; the exclusion of 

the plaintiffs’ ballistics and reconstruction experts; the exclusion of evidence 

showing violations of the Police Department’s pursuit policy; the refusal to give a 

specific jury instruction; the admission of some criminal-history evidence; and, 

finally, the failure to address the prejudicial nature of the defendants’ opening and 

closing statements.

“A timely motion for new trial is addressed to the sound judicial discretion 

of the trial court”; therefore, “[a] decision denying a new trial motion is reviewable 

only for an abuse of that discretion.” Hercaire Int’l, Inc. v. Argentina, 821 F.2d 

559, 562 (11th Cir. 1987). In evaluating whether specific trial errors warrant a new 

trial, we apply the harmless-error standard of Fed. R. Civ. P. 61. In accordance 

with Rule 61, we will conclude “that a new trial is warranted only where the error 

has caused substantial prejudice to the affected party (or, stated somewhat 

differently, affected the party’s ‘substantial rights’ or resulted in ‘substantial 

injustice’).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1162 (11th Cir. 

2004). We take each alleged trial error in turn.

A.

Knight and Cure first say that they are entitled to a new trial because the trial 

court erred in admitting testimony from W. Kenneth Katsaris, the defendants’ 

police-practices expert. Katsaris was called as a rebuttal expert to the plaintiffs’ 

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police-practices expert, Robert Pusins. Pusins had testified that the officers’

behavior was objectively unreasonable under the circumstances of this case. In 

rebuttal, Katsaris testified that the officers “acted objectively reasonabl[y] and in 

accordance with what is recognized as training throughout the country.” Before 

trial, both sides moved to exclude the others’ police-practices witness for various 

reasons; the trial court denied these motions to the extent that they sought to 

exclude the witnesses entirely, but it did place limits on the scope of the testimony. 

Specifically, the court ruled that the police-practices experts could not be 

questioned on “the constitutionality of the Miami-Dade Police Department’s 

policies” or on “any ballistics, bullet projectile, or accident reconstruction issues,” 

and that they could not “testify, reference, or analyze any caselaw before the jury.” 

After the verdict, the plaintiffs argued that the inclusion of the defendants’ expert

entitled them to a new trial.

“We review for abuse of discretion the district court’s decisions regarding 

the admissibility of expert testimony and the reliability of an expert opinion.” 

United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc); see also

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (“[A] court of 

appeals is to apply an abuse-of-discretion standard when it reviews a trial court’s 

decision to admit or exclude expert testimony.”) (quotations and alterations

omitted). Under this standard, “we must affirm unless we find that the district 

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court has made a clear error of judgment, or has applied the wrong legal standard.” 

Frazier, 387 F.3d at 1259.

The starting point in our analysis is found in Rule 702 of the Federal Rules 

of Evidence, which controls the admission of expert testimony. Id. Rule 702 says:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge 

will help the trier of fact to understand the evidence or to determine a 

fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; 

and

(d) the expert has reliably applied the principles and methods to the 

facts of the case.

Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 

589 (1993) (“[T]he trial judge must ensure that any and all scientific testimony or 

evidence admitted is not only relevant, but reliable. The primary locus of this 

obligation is Rule 702, which clearly contemplates some degree of regulation of 

the subjects and theories about which an expert may testify.”).

Rule 702 requires the district court to perform a critical gatekeeping function 

regarding the admissibility of expert testimony. See Frazier, 387 F.3d at 1260. 

We employ a rigorous three-part inquiry to review the admissibility of expert 

testimony under Rule 702. Under this framework, the trial court must consider 

whether:

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(1) the expert is qualified to testify competently regarding the matters he 

intends to address; (2) the methodology by which the expert reaches his 

conclusions is sufficiently reliable as determined by the sort of inquiry 

mandated in Daubert; and (3) the testimony assists the trier of fact, through 

the application of scientific, technical, or specialized expertise, to understand 

the evidence or to determine a fact in issue.

Id. (quotations omitted).

The proponent of the expert testimony bears the burden of establishing that 

each of these criteria are satisfied. Id. As for qualification, experts may be 

deemed qualified in a variety of ways including by “knowledge, skill, experience, 

training, or education.” Id. at 1261 (quoting Fed. R. Evid. 702) (emphasis 

omitted). As for reliability, the Supreme Court has said that “the trial judge must 

have considerable leeway in deciding in a particular case how to go about 

determining whether particular expert testimony is reliable.” Kumho Tire, 526 

U.S. at 152; see also Frazier, 387 F.3d at 1262. Finally, expert testimony assists 

the trier of fact “if it concerns matters that are beyond the understanding of the 

average lay person.” Frazier, 387 F.3d at 1262. Thus, “[p]roffered expert 

testimony generally will not help the trier of fact when it offers nothing more than 

what lawyers for the parties can argue in closing arguments.” Id. at 1262–63.

On this record, there was no error (let alone a clear error of judgment) in 

permitting Katsaris to testify. The plaintiffs first claim that Katsaris’s opinions 

were not grounded in reliable principles and methods because “[h]e did not 

examine the scene, the vehicles involved, the pursuit route, photographs of the 

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area, or post-incident photographs of the vehicles and bodies.” However, these 

claims are contradicted by Katsaris’s very testimony that he reviewed “statements 

taken in the case of officers and those present,” “reviewed all the evidence and 

information that’s in the file,” “read, reviewed, looked at photos,” went to the 

scene of the shooting the night before giving his testimony, drove through the route 

twice, and “read and reviewed how the incident occurred.” The plaintiffs have not

provided any support for their argument that these methods were unreliable. And 

notably, these are virtually the same preparations that Pusins, the plaintiffs’ own 

police-practices expert, took before testifying. The trial court did not abuse its 

discretion in finding Katsaris’s expert opinion to be sufficiently reliable and 

grounded on sound principles and methods.

The plaintiffs also argue that Katsaris’s testimony was inadmissible because 

he relied on various hearsay statements to create a justification for the officers’ 

actions. But, as we have long recognized, an expert may rely on hearsay evidence 

as part of the foundation for his opinion so long as the hearsay evidence is “the 

type of evidence reasonably relied upon by experts in the particular field in 

forming opinions or inferences on the subject.” United States v. Scrima, 819 F.2d 

996, 1002 (11th Cir. 1987); see also Daubert, 509 U.S. at 592 (noting that experts 

are given “wide latitude to offer opinions, including those that are not based on 

firsthand knowledge or observation”). Katsaris relied on hearsay statements made 

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by those present at the scene in concert with his review of the photographs, 

investigative reports, forensic reports, and Cure’s testimony, just as Pusins did. 

This evidence is precisely the kind reasonably relied on by experts in the field, and 

the trial court did not abuse its discretion in allowing the expert’s testimony.

Relatedly, the plaintiffs urge that Katsaris’s opinion is inadmissible for the 

additional reason that it was not based on facts available to the officers at the time 

of the critical events. Specifically, the plaintiffs object to the expert’s reliance on 

Cure’s testimony that Blackwood refused to put the car in park when she told him 

to and that the occupants could see the officers out of the window despite the 

tinting. The plaintiffs say that Katsaris improperly relied on these statements, 

which were facts not known to the officers at the time, to form his opinion that 

Blackwood deliberately backed the car into the officers, creating a reasonable basis

for the officers’ use of deadly force.

It is true that in excessive-force cases, “[t]he question is whether the 

officer’s conduct is objectively reasonable in light of the facts confronting the 

officer.” Durruthy v. Pastor, 351 F.3d 1080, 1093 (11th Cir. 2003) (quotations

omitted). The defendants do not dispute that what was said inside the Cadillac was

unknown to the officers at the time. But Katsaris testified that he relied on Cure’s 

statements to corroborate the officer’s testimony, not to reach independent 

conclusions based on those statements. As Katsaris explained, regardless of the 

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passengers’ statements inside the car at the time, the officers knew (and testified)

that the car was placed in reverse and moving toward them, and that fact alone (if 

credited by the jury) was enough to allow the officers to use deadly force. And 

even if it fairly could be said that Katsaris improperly relied on Cure’s statements, 

the plaintiffs had an opportunity to question his use of those statements both during 

his deposition and again at trial. They did not do so and they have not established 

any prejudice from the use of the statements by the expert.

Moreover, to the extent the plaintiffs suggest that Katsaris was not a credible 

witness, the jury was free to make that determination on its own. Katsaris was 

called as a rebuttal witness to Pusins. Which expert to believe and how much of 

his testimony to credit were basic determinations for the jury to make based on 

everything it heard; again, the court properly permitted both experts to testify. See

Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 n.7 (11th Cir. 2005) (“[A] district 

court may not exclude an expert because it believes one expert is more persuasive 

than another expert. . . . Vigorous cross-examination ensures that these issues of 

general credibility are properly presented for consideration by the trier of fact.”). 

The plaintiffs’ last argument regarding Katsaris is that the trial court abused 

its discretion by limiting the time available for cross-examination. “We review the 

district court’s decisions limiting cross-examination for abuse of discretion.” 

United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007). After thirty 

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minutes of cross-examination, which was primarily spent challenging Katsaris’s 

qualifications, the following exchange occurred:

THE COURT: Come up here, please.

[Proceedings at sidebar follow]:

THE COURT: Mr. Allen, we have now consumed 30 minutes of your 

examination of which the value in terms of focusing on the issues that relate 

to what this jury have to decide has hardly been covered.

I’m putting you on a clock. You have 20 minutes. If you want to focus 20 

minutes on that, you can do so. All I’m telling you, as a friendly observer, 

you are losing the jury, and it’s not fair to the plaintiff at the conclusion of 

the trial.

Your examination will end at 20 after. Whatever you’re going to cover, 

you’re going to cover.

[Plaintiffs’ Counsel 1]: We are allowed the same amount as defendant?

[Plaintiffs’ Counsel 2]: This witness is very difficult to deal with.

THE COURT: No, he is not. If you want to take time to do that, I’m not 

going to stop you. All I’m telling you, as a friend of the Bar, you’re losing 

the jury. You do not want to lose the jury on the last day of the trial.

With that, go.

The plaintiffs then proceeded in their cross-examination for another thirty minutes, 

resulting in an hour-long exchange.

On appeal, the plaintiffs allege that “[f]ifty minutes was not enough for the 

jury to understand the factual misunderstandings and unreliable methods 

underlying the opinions.” But the plaintiffs have not identified anything that they 

would have asked Katsaris that they did not have an opportunity to ask during 

cross-examination. The fact that the defendants were given eighty minutes to 

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cross-examine the witness in comparison to the plaintiffs’ sixty minutes does not,

on its own, result in substantial injustice to the plaintiffs. The plaintiffs’ claim 

seems to be that they did not have time to call into question Katsaris’s belief that 

Officer Robinson was behind the car rather than beside it, a fact that was central to

his conclusions. But they did explore those topics during the time they had, and 

they have not identified for us any additional questions they would have posed to 

show how they were prejudiced by this limitation.

We have “stress[ed] the broad discretion district courts have in managing 

their cases.” Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 

2002). In the absence of any identifiable prejudice to the plaintiffs, we cannot find 

any abuse of discretion. In short, none of the trial court’s rulings concerning 

Katsaris’s expert testimony warrants a new trial.

B.

Knight and Cure also argue that the trial court erred in excluding their 

ballistics and reconstruction experts. The court’s original scheduling order called 

for the disclosure of expert witnesses’ reports by December 31, 2010; the 

production of rebuttal expert witnesses’ reports by January 21, 2011; and the 

completion of all expert discovery by February 4, 2011. The plaintiffs disclosed 

their expert witnesses thirty-five days late, on February 4, 2011. This list included 

trajectory reconstructionist Sharon Ballou and accident reconstructionist Miles 

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Moss (or, alternatively, his son Aaron Moss). The defendants objected to the 

discovery requests and disclosures as untimely, and the plaintiffs then moved for 

leave to modify or extend the scheduling order. The trial court eventually issued a 

new pretrial schedule that continued the trial by 188 days and required expert 

discovery to be completed by September 12, 2011, which was 220 days after the 

original deadline. The court also allowed the plaintiffs’ medical expert, John 

Marraccini, and their police-practices expert, Pusins, to testify, even though their 

summaries were untimely filed. However, the court excluded Ballou and the 

Mosses because the plaintiffs did not show “substantial justification for their 

untimely disclosure,” and because “permitting discovery regarding these experts 

would impose undue prejudice on Defendants.” The plaintiffs now argue that this 

exclusion warrants a new trial.

We also review the trial court’s decision to exclude late-disclosed witness 

testimony for an abuse of discretion. See Romero v. Drummond Co., Inc., 552 

F.3d 1303, 1313–14 (11th Cir. 2008). “Discretion means the district court has a 

range of choice, and that its decision will not be disturbed as long as it stays within 

that range and is not influenced by any mistake of law.” Betty K Agencies, Ltd. v. 

M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (quotations omitted). “[I]n 

evaluating whether the exclusion of a late witness was an abuse of discretion, an 

appellate court should consider the explanation for the failure to disclose the 

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witness, the importance of the testimony, and the prejudice to the opposing party if 

the witness had been allowed to testify.” Romero, 552 F.3d at 1321 (quotations 

and alteration omitted).

Discovery procedures are governed by Fed. R. Civ. P. 26. Specifically, Rule 

26(a)(2)(D) requires the disclosure of expert testimony “at the times and in the 

sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Absent a court order 

saying otherwise, disclosure of expert testimony must occur “at least 90 days 

before the date set for trial or for the case to be ready for trial.” Fed. R. Civ. P. 

26(a)(2)(D)(i). Thus, Rule 26(a)(2)(D)(i) sets a default deadline in the event that 

the trial court does not set its own schedule. While a court may “grant a post hoc

extension of the discovery deadline for good cause, it [is] under no obligation to do 

so” and, “in fact, we have often held that a district court’s decision to hold litigants 

to the clear terms of its scheduling orders is not an abuse of discretion.” Josendis

v. Wall to Wall Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011). If a party fails 

to disclose information or witnesses required by Rule 26, it may still be allowed to 

use that information or witness provided that “the failure was substantially justified 

or is harmless.” Fed. R. Civ. P. 37(c)(1). “Substantially justified means that 

reasonable people could differ as to the appropriateness of the contested action.” 

Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997).

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It is undisputed that the plaintiffs’ disclosures were untimely under the 

court’s original scheduling order, which required disclosures to be made 151 days 

before trial. The plaintiffs nevertheless argue that their disclosures were timely 

under Rule 26, which requires disclosures at least ninety days before trial, and that 

the court abused its discretion in excluding their experts because the potential 

harms to the defendants were limited given the 188-day delay of the trial. But 

Rule 26 provides the controlling deadline only in the absence of a scheduling order

issued by the trial court. See Fed. R. Civ. P. 26(a)(2)(D) (providing deadlines that 

apply “[a]bsent a stipulation or a court order”). When, as in this case, the court has 

entered a scheduling order, the court’s deadlines control. The fact that the 

disclosures complied with the general default deadlines embodied in the Federal 

Rule is therefore irrelevant because the disclosures did not comply with the trial 

court’s unambiguous deadlines.

The plaintiffs argue, nonetheless, that exclusion was an abuse of discretion 

because their untimeliness was “substantially justified or [ ] harmless” under Rule 

37(c)(1). The trial court rejected this argument, too, in its order excluding the

experts, concluding that the plaintiffs had not shown any justification for their 

tardiness and that the defendants would be unduly prejudiced if the experts were 

included. There was no abuse of discretion in this conclusion. The plaintiffs’ 

reasons for their untimeliness were an unavailability of funds to secure expert 

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services and a belated realization that ballistics and reconstruction experts would 

be necessary. But even assuming that financial difficulties would justify an 

extension, the plaintiffs failed to move for an extension until the deadline had 

already expired and did not provide any notice to the trial court that they were 

experiencing such difficulties. Moreover, the court’s first scheduling order was 

issued in July 2010 and required the disclosure of experts in October 2010; in 

November 2010, the court pushed that deadline back to December 23, 2010. The

plaintiffs thus had at least five months’ notice to gather their experts and they have 

not carried their burden of showing a substantial justification for their tardiness.

But even if the exclusion of these experts amounted to an abuse of 

discretion, the plaintiffs have failed anyway to establish substantial harm. See

Josendis, 662 F.3d at 1307. The plaintiffs were permitted to introduce the 

testimony of their forensic-pathology expert, Marraccini, who testified regarding

the positions of the officers when the shooting took place. Marraccini was 

permitted to rely on reports prepared by Miles Moss, and he cited data and results 

from Moss’s reports in his trial testimony. Given the reconstruction evidence that

was presented at trial, it is difficult to see how the plaintiffs suffered substantial 

harm by the exclusion of their reconstruction experts. Accordingly, the plaintiffs 

have not shown that the ruling “resulted in substantial harm to [their] case.” Id.

(quotation omitted). “Although the district court may have had discretion to admit 

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an untimely report, it did not abuse its discretion to exclude it as untimely in the 

circumstances under which the [plaintiffs] offered it.” Bearint ex rel. Bearint v.

Dorel Juvenile Grp., Inc., 389 F.3d 1339, 1349 (11th Cir. 2004) (citation omitted).

C.

Knight and Cure next contest the exclusion of the Miami-Dade Police 

Department’s pursuit policy.2

 The plaintiffs wanted to introduce evidence and 

testimony at trial that the officers allegedly violated the pursuit policy; the trial 

court decided to exclude this evidence due to its attenuation from the 

circumstances preceding the use of force at issue in the case. On appeal, the 

plaintiffs argue that this evidence was improperly excluded for two reasons. First, 

they say that by violating the Police Department’s pursuit policy, the officers 

“created the very risk that generated the eventual use of deadly force,” which alone

should deprive them of qualified immunity. Second, the plaintiffs argue that the 

defendants “opened the door to introduction of the chase policy” because, in 

opening statements, the defendants said that “for every action there’s an equal and 

opposite reaction.” The trial court disagreed on both counts and refused to admit 

 2 In the district court, the only direct reference to the pursuit policy was in the plaintiffs’ motion 

for a new trial; the policy itself was never entered into the record. The citation and quotation are 

repeated in the plaintiffs’ opening brief on appeal. According to these quotations, the relevant 

policy says: “Officers may only engage in pursuits when they have a reasonable belief that the 

fleeing subject has committed or attempted to commit a felony which involves the use or threat 

of physical force or violence to a person. All other pursuits are prohibited.”

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the evidence; it reaffirmed that conclusion in its denial of the plaintiffs’ motion for 

a new trial.

Again, “we review the district court’s evidentiary rulings for an abuse of 

discretion, but will reverse only if the error may have had a substantial influence 

on the outcome of the proceeding.” United States v. Augustin, 661 F.3d 1105, 

1127 (11th Cir. 2011) (quotation omitted). Consistent with Fed. R. Civ. P. 61, we 

will “hold that a new trial is warranted only where the error has caused substantial 

prejudice to the affected party (or, stated somewhat differently, affected the party’s 

‘substantial rights’ or resulted in ‘substantial injustice’).” Peat, 378 F.3d at 1162. 

On this standard, the plaintiffs’ arguments must be rejected.

The trial court excluded this evidence due, in part, to the risk that it would 

confuse the jurors by leading them to believe that they could find liability based on 

a violation of the pursuit policy rather than on a violation of the Fourth 

Amendment. Notably, the plaintiffs do not argue that the officers’ alleged 

violation of the pursuit policy was itself a Fourth Amendment violation. They 

argue instead that the officers’ decision to pursue the Cadillac created a situation 

that required the use of deadly force. However, many police departments have 

internal procedures that are more restrictive of conduct than what is otherwise 

permitted under state and federal law, and the Supreme Court has observed that a 

violation of these policies “does not itself negate qualified immunity where it 

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would otherwise be warranted.” City & Cty. of San Francisco, Ca. v. Sheehan, 

135 S. Ct. 1765, 1777 (2015). Thus, the plaintiffs “cannot establish a Fourth 

Amendment violation based merely on bad tactics that result in a deadly 

confrontation that could have been avoided.” Id. (quotations omitted). Indeed, “so 

long as a reasonable officer could have believed that his conduct was justified,” a 

plaintiff cannot succeed “by simply producing an expert’s report that an officer’s 

conduct leading up to a deadly confrontation was imprudent, inappropriate, or even 

reckless.” Id. (quotations omitted). The risk of confusing the jury on this point 

was not insubstantial, and the court did not abuse its considerable discretion by

trying to mitigate that risk.

Moreover, the probative value found in this evidence was decreased 

measurably because it concerned events that were temporally separated from the 

actual use of force. As we have said, “[i]n determining whether the officers in this 

case are entitled to qualified immunity, we analyze the precise circumstances 

immediately preceding [the victim’s] being shot” rather than more-attenuated 

events that occurred before and after the shooting. Carr v. Tatangelo, 338 F.3d 

1259, 1270 (11th Cir. 2003). It was within the trial court’s discretion to conclude 

that an alleged violation of the pursuit policy fell outside of this window. After 

Officers Robinson and Mendez began following the Cadillac, the cars drove for 

approximately six-tenths of a mile before coming to a stop at the dead end. Cure 

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testified that after the cars stopped, approximately two minutes passed between the 

moment the officers exited their car and the moment that the first shot was fired;

during those two minutes, the officers were issuing commands and asking the 

occupants to exit the Cadillac with their hands up. The trial court carefully 

considered the temporal separation between any claimed pursuit-policy violation

and the moment that shots were fired, and it concluded that the relevant violations 

were only those that occurred after the cars stopped. This was a careful, factbound decision. We cannot say that it amounted to an abuse of discretion.

D.

The plaintiffs next argue that the trial court erred in failing to give their 

proposed jury instruction based on Swofford v. Eslinger, 671 F. Supp. 2d 1289 

(M.D. Fla. 2009), and Kirby v. Duva, 530 F.3d 475 (6th Cir. 2008). “We review 

only for abuse of discretion a district court’s refusal to give a requested jury 

instruction.” Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 

1224 (11th Cir. 2012). When evaluating a trial court’s failure to give a requested 

instruction, “the omission is error only if the requested instruction is correct, not 

adequately covered by the charge given, and involves a point so important that 

failure to give the instruction seriously impaired the party’s ability to present an 

effective case.” Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 

1222 (11th Cir. 1992).

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The plaintiffs proposed telling the jury that “the Defendants are not justified 

in using deadly force if their own objectively unreasonable actions created the very 

risk that generated the eventual use of deadly force.” This instruction was based 

on language drawn from Swofford, in which a district court said that “defendants 

cannot claim the protection of qualified immunity when their own objectively

unreasonable actions created the very risk that generated the eventual use of deadly 

force.” Swofford, 671 F. Supp. 2d at 1305 (quotations and alteration omitted). In 

reaching this conclusion, the trial court in that case relied on case law from the 

Western District of Michigan and the Sixth and Seventh Circuits. See id. (quoting 

Bletz v. Gribble, 640 F. Supp. 2d 907, 919 (W.D. Mich. 2009), and citing Yates v. 

City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991), and Kirby, 530 F.3d at 482).3 

The jury instructions that were ultimately given in this case did not include the 

Swofford language.

We see no abuse of discretion in excluding this instruction. It was proposed 

as an instruction on “§ 1983 Excessive Force” and is related to the question 

whether Officers Robinson and Mendez were entitled to qualified immunity. If the 

officers’ conduct violated “clearly established statutory or constitutional rights of 

which a reasonable person would have known,” then they would not be entitled to 

 3 The district court’s opinion in Swofford was affirmed by this Court without argument in an 

unpublished per curiam opinion. See Swofford v. Eslinger, 395 F. App’x 559 (11th Cir. 2010). 

That opinion did not, however, discuss the language at issue in this case.

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qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The district 

court therefore was required to instruct the jury on the clearly established law 

applicable to the plaintiffs’ excessive-force claim. See Ansley v. Heinrich, 925 

F.2d 1339, 1347 (11th Cir. 1991). Because there is no decision from the Supreme 

Court, this Circuit, or the Florida Supreme Court clearly establishing that the 

plaintiffs’ requested instruction is a correct statement of the law, the district court 

acted within its discretion in declining to give it.

Further, the plaintiffs’ proposed instruction suggests that if the officers acted 

unreasonably in pursuing the plaintiffs, then they would not be entitled to qualified 

immunity because they created the circumstances that ultimately led to the fatal 

use of force. The district court concluded, however, that any connection between 

the officers’ pursuit (which may have violated the pursuit policy) and their use of 

deadly force was attenuated. The plaintiffs’ proposed instruction thus risked

confusing the jury regarding which violations could give rise to liability. Given 

the trial court’s decision to exclude the pursuit policy and our decision that that 

was not an abuse of discretion, the exclusion of this instruction was not error

either.

To the extent that the plaintiffs suggest that the pursuit itself constituted a

separate Fourth Amendment violation, they have provided no evidence suggesting 

that the officers’ pursuit independently violated clearly established law. “In this 

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circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this 

court, or the highest court of the state in which the case arose.” Thomas ex rel. 

Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003). The plaintiffs have again 

offered no cases from the United States Supreme Court, the Eleventh Circuit, or 

the Florida Supreme Court, and thus they cannot show that a reasonable officer 

would have known that his conduct was violating clearly established law. See

D’Aguanno v. Gallagher, 50 F.3d 877, 881 n.6 (11th Cir. 1995).

In any event, the instruction given on excessive force was proper and largely 

tracked this Court’s pattern jury instruction on excessive force in § 1983 actions. 

See Eleventh Circuit Civil Pattern Jury Instructions § 5.2 (2013). “So long as the 

instructions accurately reflect the law, the trial judge is given wide discretion as to 

the style and wording employed in the instructions.” United States v. Starke, 62 

F.3d 1374, 1380 (11th Cir. 1995). The trial court did not abuse its discretion by 

giving a correct jury instruction.

E.

Next, Knight and Cure argue that the trial court fatally erred in admitting 

evidence of Blackwood’s and Cure’s criminal histories. “We review questions 

regarding the district court’s admission of evidence for abuse of discretion.” 

Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1316 (11th Cir. 2011). 

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Again, we will “hold that a new trial is warranted only where the error has caused 

substantial prejudice to the affected party.” Peat, 378 F.3d at 1162.

The plaintiffs moved in limine to exclude Blackwood’s and Cure’s criminal 

histories. Blackwood had four prior felony convictions for burglary. All but his 

most recent conviction were excluded by the trial court, and that conviction was 

allowed because it was “material to the defense theory that his earlier conviction 

and his probation status caused him to initiate, and refuse to cease, flight when 

confronted by the officers.” The defendants argued that because Blackwood was 

due to appear in court the next day for a probation hearing, he had reason to flee 

from the officers rather than pull over. If he had pulled over, he would have been

caught associating with other people on probation (Knight and Cure) -- which 

might have put his probationary status at risk.

As for Cure, she had at least four felony convictions, which included crimes 

of falsehood and fraudulent use of another’s identification, grand theft, and at least

two other convictions. The trial court concluded that her convictions for crimes of 

falsehood and fraudulent use of another’s identification were admissible, as was 

her conviction for grand theft. Her other convictions were deemed inadmissible

under Rule 403 because they were cumulative. The plaintiffs now appeal the 

admission of any criminal-history evidence, arguing that this evidence was “unduly 

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34

prejudicial” and that there was “no nexus between the criminal charges, 

convictions, or misconduct and the issues pending in the case.”

Two rules of evidence specifically relate to criminal-history evidence. The 

first, Rule 404(b), governs evidence of prior crimes, wrongs, or acts, and it 

provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove 

a person’s character in order to show that on a particular occasion the person acted 

in accordance with the character.” Fed. R. Evid. 404(b)(1). However, this 

evidence “may be admissible for another purpose, such as proving motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.” Fed. R. Evid. 404(b)(2). The second, Rule 609(a), governs the 

admissibility of evidence of a criminal conviction when it is offered for 

impeachment purposes. This rule, in turn, requires that any “prior convictions of a 

non-defendant witness be admitted if (1) the convictions are for crimes punishable 

by death or imprisonment in excess of one year, (2) the convictions are less than 

ten years old, and (3) the evidence is being used to attack the witness’[s] 

credibility.” United States v. Burston, 159 F.3d 1328, 1335 (11th Cir. 1998). 

Prior-conviction evidence governed by Rule 609(a)(1) (like all proffers of 

evidence) is still subject to Rule 403’s balancing test, meaning that “[e]vidence that 

is otherwise admissible under Rule 609(a)(1) is to be excluded ‘if its probative 

value is substantially outweighed by the danger of unfair prejudice, confusion of 

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the issues, or misleading the jury, or by considerations of undue delay, waste of 

time, or needless presentation of cumulative evidence.’” Id. at 1336 (quoting Fed.

R. Evid. 403). In addition, Rule 609(a)(2) allows for the admission of a prior 

conviction “if the court can readily determine that establishing the elements of the 

crime required proving -- or the witness’s admitting -- a dishonest act or false 

statement.” Fed. R. Evid. 609(a)(2).

Again, we hold that the trial court did not abuse its broad discretion. As for 

Blackwood’s criminal history, the evidence was plainly admissible under Rule 

404(b) to establish his motive to flee from Officers Robinson and Mendez. 

Blackwood, Knight, and Cure were all on probation at the time, and Blackwood 

had a probation hearing the next day. Evidence of Blackwood’s most recent 

conviction, for which he was then on probation, was therefore probative of his 

motive to flee from the officers: had he pulled over, he would have been caught 

associating with other people on probation, which might have jeopardized his 

probationary status. Given the plain text of this rule, and the fact that the trial 

court expressly limited evidence of Blackwood’s prior convictions to only the 

conviction for which he was on parole, there was no abuse of discretion.

Regarding Cure’s criminal history, the defendants sought to introduce this

evidence for impeachment purposes. Such evidence “must be admitted, subject to 

Rule 403, in a civil case.” Fed. R. Evid. 609(a)(1)(A). Rule 403’s balancing test 

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does not favor exclusion in this case. This Court has previously recognized that 

“[t]he implicit assumption of Rule 609 is that prior felony convictions have 

probative value.” Burston, 159 F.3d at 1335. Because this is a civil case, we see 

less danger of unfair prejudice. As for Cure’s convictions for crimes of falsehood 

and fraudulent use of another’s identification, these convictions were admissible

under Rule 609(a)(2), which requires the admission of crimes involving “a 

dishonest act or false statement.” Fed. R. Evid. 609(a)(2). The trial court did not 

abuse its discretion in admitting this evidence.

Two additional points warrant further comment. First, our case law provides 

no support for the plaintiffs’ suggestion that there must be a “nexus between the 

criminal charges, convictions, or misconduct and the issues pending in the case.” 

Evidence of Cure’s prior convictions was relevant for impeachment, see Fed. R. 

Evid. 609, and evidence of Blackwood’s prior conviction was relevant to offer a 

reason for his flight, see Fed. R. Evid. 404(b). No more “nexus” is required.

Second, the plaintiffs urge that the trial court erred in admitting Cure’s 

testimony that she “smoked marijuana every day before the police shooting.” 

While this is not an argument that the trial court improperly admitted evidence of 

Cure’s criminal history, the plaintiffs argue that this testimony had the same 

prejudicial effect. We have previously recognized the “extreme potential for unfair 

prejudice flowing from evidence of drug use,” and we have “held that such 

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37

evidence may properly be limited to specific instances of drug use during relevant 

periods of trial and the transaction” at issue in the case. United States v. Sellers, 

906 F.2d 597, 602 (11th Cir. 1990) (quotations and alteration omitted); accord

Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987) (“A witness’s use of 

drugs may not be used to attack his or her general credibility, but only his or her 

ability to perceive the underlying events and testify lucidly at the trial.”). When, in 

this case, the plaintiffs asked for the evidence of drug use to be excluded, the trial 

court acted in conformity with our precedent: the Court informed the jury that 

Cure’s drug use “could not be used to attack her credibility but only to evaluate her 

ability to perceive and recall events.” This limiting instruction was appropriate and 

limited any unfair prejudice that might otherwise have arisen from the admission 

of such evidence. Plainly, the jury was entitled to consider Cure’s use of drugs in 

evaluating her ability to recount the critical events as they unfolded that night. 

Thus, there was no abuse of discretion.

F.

Knight and Cure’s final argument regarding the trial is that the defendants’ 

opening and closing statements were so prejudicial that they require a new trial. 

“We review for an abuse of discretion the decisions of the district court to regulate 

closing arguments of counsel.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 

1261, 1275 (11th Cir. 2008). The trial court has “considerable discretion to control 

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the tone of counsels’ arguments and, absent an abuse of discretion, the decision of 

the trial court, which has had the opportunity to hear the offensive remarks within 

the context of the argument and to view their effect on the jury, should not be 

disturbed.” Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988). “For 

reversible error to be found in a closing argument, the challenged argument must 

be plainly unwarranted and clearly injurious.” Goldsmith, 513 F.3d at 1282 

(quotations omitted). The comments must have been “of a nature to impair calm 

and dispassionate consideration by the jury.” Allstate, 845 F.2d at 318.

The plaintiffs challenge the closing statements for the first time on appeal, so 

we need not, and will not, address it now. See Access Now, Inc. v. Sw. Airlines 

Co., 385 F.3d 1324, 1335 (11th Cir. 2004) (“We will not address a claim . . . that is 

being raised for the first time on appeal, without any special conditions.”). The 

plaintiffs did not object during the defendants’ closing statements, nor did they 

raise any claims regarding the closing statements in their motion for a new trial. 

Thus, they gave the trial court no opportunity to address the “offending 

comments.” The plaintiffs have waived this argument. See Cummings v. Dep’t of 

Corr., 757 F.3d 1228, 1234 (11th Cir. 2014).

The plaintiffs also argue that they were prejudiced because in opening 

statements, defense counsel argued that “the plaintiffs committed crimes and 

lacked credibility because of drug use, speculated about the dead driver’s 

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39

intentions, and inaccurately contended the officers followed proper policies.” 

They also allege that the opening statement impermissibly urged the jurors to infer 

that the plaintiffs had engaged in criminal activity. But “look[ing] to the entire 

argument, the context of the remarks, [and] the objection raised,” we cannot 

conclude that these remarks “impair[ed] gravely the calm and dispassionate 

consideration of the case by the jury.” Allstate, 845 F.2d at 318 (quotations 

omitted). Each of the allegedly prejudicial statements has been addressed in other 

arguments raised and rejected on appeal. As we have discussed, evidence of the 

plaintiffs’ criminal histories was admissible: Cure’s because her credibility as a 

witness was at issue, and Blackwood’s because it showed his motive to flee. 

Evidence of Cure’s drug use was likewise admissible to challenge her ability to 

perceive the events of that night and accurately recount them to the jury. The 

alleged “inferences” that the plaintiffs engaged in criminal activity were merely 

statements of undisputed record facts -- namely, that the officers were members of 

the Robbery Intervention Detail and that they were policing a high-crime area. All 

of the challenged statements were based on record facts and were admissible on 

their own merit. Moreover, the trial court correctly instructed the jury that 

“anything the lawyers say is not evidence in the case.” The plaintiffs have not 

shown that the statements were “plainly unwarranted and clearly injurious,” 

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Goldsmith, 513 F.3d at 1282 (quotation omitted), and there was no abuse of 

discretion in allowing them.

III.

Knight and Cure also claim that the court erred in granting summary 

judgment to certain defendants. Specifically, they challenge the orders granting

summary judgment to the County and the supervising officers based on their

“failure . . . to train and implement clear policies to protect individuals from 

excessive police force,” and to Detectives Goldston and Raphael premised on 

allegedly unconstitutional interrogation tactics. We remain unpersuaded.

We review a district court’s order granting summary judgment based on 

qualified immunity de novo. Carr, 338 F.3d at 1266. “Summary judgment is 

proper if ‘there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.’” FindWhat Inv’r Grp. v. FindWhat.com, 

658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “We review 

all evidence and factual inferences in the light most favorable to the non-moving 

party, and resolve all reasonable doubts about the facts in favor of the nonmovant.” Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013) (quotations 

omitted).

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A.

As for the § 1983 claims levelled against the County and the supervising 

officials, the plaintiffs claim that disputed issues of material fact remained as to 

whether these defendants failed to develop a constitutionally adequate excessiveforce policy and failed to properly train police officers on the use of force.

4

 The

district court did not err in granting summary judgment on either claim.

As for the plaintiffs’ policy-based claim, it is by now well established that 

municipalities “can be sued directly under § 1983 for monetary, declaratory, or 

injunctive relief where, as here, the action that is alleged to be unconstitutional 

implements or executes a policy statement, ordinance, regulation, or decision 

officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of 

Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). This liability is

premised on a constitutional violation carried out by the County itself and cannot 

be based on theories of respondeat superior or vicarious liability. See City of 

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).

To establish a county’s policy, a plaintiff must “identify either (1) an 

officially promulgated county policy or (2) an unofficial custom or practice of the 

 4 Although the plaintiffs style their argument as a challenge to “all counts” on which summary 

judgment was granted, their briefs do not mention the wrongful-death claim against the County. 

Thus, any argument concerning the wrongful-death claim against the County has been waived 

and is not at issue on appeal. See Access Now, 385 F.3d at 1330.

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county shown through the repeated acts of a final policymaker for the county.” 

Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). As 

we have recognized, “a county rarely will have an officially-adopted policy of 

permitting a particular constitutional violation.” Id. at 1330. Thus, most plaintiffs 

“must show that the county has a custom or practice of permitting [the violation]

and that the county’s custom or practice is the moving force behind the 

constitutional violation.” Id. (quotations and alteration omitted). Under either 

theory, a plaintiff must show that the county “has authority and responsibility over 

the governmental function in issue” and must also “identify those officials who 

speak with final policymaking authority for that local governmental entity 

concerning the act alleged to have caused the particular constitutional violation in 

issue.” Id.

In this case, the plaintiffs do not claim that the County has an official policy 

allowing officers to shoot the unarmed occupants of a vehicle without provocation 

or an objectively reasonable basis to do so. They argue instead that the County’s 

use-of-force policy is constitutionally deficient. But the plaintiffs never introduced 

this policy into the record and never explained how the policy itself was 

constitutionally deficient. Thus, a claim based on an official policy fails, and the 

plaintiffs must instead establish “an unofficial custom or practice of the county 

shown through the repeated acts of a final policymaker for the county.” Id. at 

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1329. However, the plaintiffs have provided no evidence of repeated acts by the 

County besides the events at issue in this case. They merely asserted that “[t]he 

ambiguity of the controlling policies renders county liability ripe for jury 

determination” and that the evidence was “sufficient to show a wide scale practice 

posing a persuasive and unreasonable risk of constitutional injury to citizens.” 

Without more, so broad and general a claim cannot give rise to liability.

The trial court also correctly rejected the plaintiffs’ failure-to-train claims. 

Both municipalities and supervising officers may be held liable under § 1983 for a 

failure to train subordinate officers. A municipality may be held liable for the 

failure to train its employees when “the failure to train amounts to deliberate 

indifference to the rights of persons with whom the police come into contact.” 

Harris, 489 U.S. at 388. To establish “‘deliberate indifference,’ a plaintiff must 

present some evidence that the municipality knew of a need to train and/or 

supervise in a particular area and the municipality made a deliberate choice not to 

take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). 

“[S]howing merely that additional training would have been helpful in making 

difficult decisions does not establish municipal liability.” Connick v. Thompson, 

563 U.S. 51, 68 (2011). As we have said, “without notice of a need to train or 

supervise in a particular area, a municipality is not liable as a matter of law for any 

failure to train and supervise.” Gold, 151 F.3d at 1351.

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Supervising officers can be held independently liable under § 1983 for a 

failure to train their subordinates “either when the supervisor personally 

participates in the alleged constitutional violation or when there is a causal 

connection between actions of the supervising official and the alleged 

constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 

1990). The necessary causal connection “can be established when a history of 

widespread abuse puts the responsible supervisor on notice of the need to correct 

the alleged deprivation, and he fails to do so.” Id. But one incident will not 

suffice; rather, “[t]he deprivations that constitute widespread abuse sufficient to 

notify the supervising official must be obvious, flagrant, rampant, and of continued 

duration, rather than isolated occurrences.” Id. As we have recognized, “[t]he 

standard by which a supervisor is held liable in her individual capacity for the 

actions of a subordinate is extremely rigorous.” Braddy v. Fla. Dep’t of Labor & 

Emp’t Sec., 133 F.3d 797, 802 (11th Cir. 1998).

In this case, the plaintiffs argued that “[i]t is for the jury in such cases . . . to 

determine whether the failure to train and supervise were the causes of the ensuing 

use of deadly force.” But they offered no evidence that the County or supervising 

officers had notice of a need to improve the officers’ training or supervision, they 

never provided any indication that this is a widespread problem of which the 

County or supervising officers should have been aware, and they never highlighted 

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specific deficiencies in the County’s training program. Instead, the only 

“evidence” suggesting a pattern of tortious conduct is this case itself. The district 

court thus correctly concluded that “there [was] absolutely no evidence in the 

record to support such a finding” of deliberate indifference. On this basis, it was 

proper to grant summary judgment to the County.

The plaintiffs’ § 1983 policy-based and supervisory liability claims also fail 

for a second reason: the jury determined that the officers did not use excessive 

force and therefore committed no constitutional violations. There can be no 

policy-based liability or supervisory liability when there is no underlying 

constitutional violation. See City of Los Angeles v. Heller, 475 U.S. 796, 799 

(1986) (“If a person has suffered no constitutional injury at the hands of the 

individual police officer, the fact that the departmental regulations might have 

authorized the use of constitutionally excessive force is quite beside the point.”)

(emphasis omitted). Because the jury in this case decided that the plaintiffs 

suffered no constitutional injury, the County and the Police Department cannot be 

held liable for failure to promulgate or train on a force policy. See Miller v. 

Harget, 458 F.3d 1251, 1261 (11th Cir. 2006). There was no error in the district 

court’s grant of summary judgment to the County and the supervising officers.

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B.

The district court also granted summary judgment to Detectives Goldston 

and Raphael on Count 11 -- Cure’s § 1983 claim for violations of her Fourth, Fifth, 

Eighth, and Fourteenth Amendment rights -- finding that, on the undisputed facts,

no constitutional violations occurred.

5

 These claims arose from Cure’s allegations 

that the Detectives detained her “against her will and [used] threats, promises, 

coercion, and intimidation in order to extract a false statement from her to justify 

the police shooting.”

As this Court has often observed, “qualified immunity offers complete 

protection for government officials sued in their individual capacities as long as 

their conduct violates no clearly established statutory or constitutional rights of 

which a reasonable person would have known.” McCullough v. Antolini, 559 F.3d 

1201, 1205 (11th Cir. 2009) (quotations and alteration omitted). “The purpose of 

qualified immunity is to allow officials to carry out discretionary duties without the 

chilling fear of personal liability or harrassive litigation, ‘protecting from suit all 

but the plainly incompetent or one who is knowingly violating the federal law.’”

Id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)) (citation 

omitted); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“Qualified 

 5 Cure’s pleadings did not allege any facts supporting or relating to her Eighth Amendment 

arguments; that argument is also absent in the briefing. This claim has therefore been waived 

and is not at issue on appeal. See Access Now, 385 F.3d at 1330.

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immunity balances two important interests -- the need to hold public officials 

accountable when they exercise power irresponsibly and the need to shield officials 

from harassment, distraction, and liability when they perform their duties 

reasonably.”).

“[T]o receive qualified immunity, an official must first establish that he was 

acting within the scope of his discretionary authority when the allegedly wrongful 

acts occurred.” McCullough, 559 F.3d at 1205 (quotations omitted). If the official 

can make that showing, “the burden then shifts to the plaintiff to show that the 

grant of qualified immunity is inappropriate.” Id. Under the Supreme Court’s 

instruction in Pearson, this Court will grant qualified immunity to the officials

unless the plaintiff satisfies two requirements: “first, that the facts viewed in the 

light most favorable to the plaintiff establish a constitutional violation by the 

officers, and, second, that it was clearly established at the time of the incident that

the actions of the defendant were unconstitutional.” Id. We are “permitted to 

exercise our sound discretion in deciding which prong of this inquiry to address 

first.” Id. (quotations and alteration omitted).

Cure’s claims raise both Fourth and Fifth Amendment issues. The Fourth 

Amendment issues arise from her allegations that she was unlawfully seized by 

Detectives Goldston and Raphael “without lawful authority and absent [her] 

voluntary consent.” The Fifth Amendment issues center around the allegedly

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coercive interrogation tactics that the detectives employed during their questioning. 

After careful review, we hold that the district court did not err in concluding that 

the detectives were entitled to qualified immunity on both claims.

1.

Under the Fourth Amendment, “a person is ‘seized’ only when, by means of 

physical force or a show of authority, his freedom of movement is restrained” so

that, “in view of all of the circumstances surrounding the incident, a reasonable 

person would have believed that he was not free to leave.” United States v. 

Mendenhall, 446 U.S. 544, 553–54 (1980); see also United States v. House, 684 

F.3d 1173, 1199 (11th Cir. 2012). But “[a]s long as the person to whom questions 

are put remains free to disregard the questions and walk away, there has been no 

intrusion upon that person’s liberty or privacy as would under the Constitution 

require some particularized and objective justification.” Mendenhall, 446 U.S. at 

554; see also United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir. 2001) 

(explaining that whether a person is in custody “depends on whether under the 

totality of the circumstances, a reasonable man in his position would feel a restraint 

on his freedom of movement to such extent that he would not feel free to leave”) 

(quotations and alterations omitted). As we have said, “[t]he test is objective: the 

actual, subjective beliefs of the [interviewee] and the interviewing officer on 

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whether the [interviewee] was free to leave are irrelevant.” United States v. Moya, 

74 F.3d 1117, 1119 (11th Cir. 1996).

To determine whether an individual was in custody, we have considered

factors such as whether the individual was “physically moved or restrained by 

officers on the way to the scene of the interview”; whether “handcuffs were 

employed” or “guns were drawn”; and whether the individual was “booked or told 

of formal accusations” or “told that [s]he was under arrest.” Id. In addition, a 

“conclusion that no seizure occurred is not affected by the fact that the respondent 

was not expressly told by the agents that she was free to decline to cooperate with 

their inquiry, for the voluntariness of her responses does not depend upon her 

having been so informed.” Mendenhall, 446 U.S. at 555.

Based on these factors, the district court was correct to determine that no 

genuine issue of material fact existed regarding whether Detectives Goldston and 

Raphael were entitled to qualified immunity. Cure was never handcuffed or 

physically restrained, she was never booked, she was never told that she could not 

leave, she was never told that she was under arrest, and she was never told that any 

charges against her were being considered. Moreover, she voluntarily agreed to 

accompany Detective Goldston to the police department that night. There was no 

error in granting summary judgment to Detectives Goldston and Raphael on Cure’s 

§ 1983 claims stemming from alleged Fourth Amendment violations.

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2.

Cure also alleges that her Fifth Amendment rights were violated because

Detectives Goldston and Raphael “subjected her to coerced interrogation, extracted 

a false and erroneous statement from her procured by promises and benefits, and 

refused to allow her to leave until she gave a statement purporting to justify the 

police shooting.” These claims implicate two clauses of the Fifth Amendment: the 

Self-Incrimination Clause and the Due Process Clause. The Fifth Amendment’s 

Self-Incrimination Clause “requires that ‘[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself.’” Chavez v. Martinez, 538 U.S. 760, 

766 (2003) (quoting U.S. Const. amend. V) (emphasis in original). This clause is 

violated only when compelled testimony is used against the witness in a criminal 

case. See id. (“We fail to see how, based on the test of the Fifth Amendment, 

Martinez can allege a violation to this right, since Martinez was never prosecuted 

for a crime, let alone compelled to be a witness against himself in a criminal 

case.”). On the plain text of the Fifth Amendment, then, we need not proceed any 

further with Cure’s claims of self-incrimination. As the trial court correctly noted, 

Cure was never arrested or subjected to prosecution and her statements were not 

being used against her in a criminal proceeding. Thus, summary judgment was 

properly granted to the detectives on her Fifth Amendment self-incrimination 

claims.

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As for Cure’s due process claim, the district court’s grant of summary 

judgment again must be affirmed. Separate and apart from self-incrimination 

concerns, we have noted that “coercive interrogation alone may violate a suspect’s 

right to substantive due process, even when no self-incriminating statement is used 

against the person interrogated.” Tinker v. Beasley, 429 F.3d 1324, 1327 (11th 

Cir. 2005). To give rise to a constitutional violation, such techniques must 

“shock[ ] the conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 

This is a high standard -- “[o]nly the most egregious official conduct will be the 

sort of abusive executive action that can be sufficiently arbitrary for constitutional 

recognition as a potentially viable substantive due process claim.” Carr, 338 F.3d 

at 1271 (quotations omitted).

On this record, there is no evidence of coercion at all, let alone coercion that 

“shocks the conscience.” Cure was never threatened and force was never used 

against her. Nevertheless, Cure argues that, given her mental state, the way in 

which the questioning was carried out shocked the conscience. She alleges that

she was “subjected to an exhaustingly long interrogation”; that “she was left alone 

to deal with diarrhea, nausea, and bleeding from her wound”; and that she was 

anguished because “Goldston belonged to the very same department that shot [her]

and killed her friends.” While these circumstances no doubt resulted in a very 

difficult night, they do not rise to the level of extreme conduct that is “so offensive 

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to a civilized system of justice that [it] must be condemned under the Due Process 

Clause.” Miller v. Fenton, 474 U.S. 104, 109 (1985). Again, we conclude that 

there was no error in the district court’s ruling.

IV.

This is, undoubtedly, a very sad case. But after carefully reviewing this 

record, we cannot conclude that there was any reversible error during the trial. Nor 

can we find any error in the district court’s grants of summary judgment to the 

County, the supervising officers, or Detectives Goldston and Raphael. Thus, the 

trial court’s judgment is AFFIRMED.

AFFIRMED.

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