FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 April 29, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-13477

________________________

D. C. Docket No. 03-00227-CV-ORL-18-KRS

RAMON A. MERCADO, 

Plaintiff-Appellant, 

versus 

CITY OF ORLANDO, a municipal

corporation and political subdivision of the State

of Florida; RAMFIS PADILLA, Officer, individually

and as an agent and employee of the City of Orlando and

Orlando Police Department, and CHRISTINA ROUSE,

Officer, individually and as an agent and employee of the

City of Orlando and Orlando Police Department. 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 29, 2005)
 Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting *

by designation.

Mercado does not appeal the district court’s grant of summary judgment to the 1

defendants on his Fifth, Sixth, and Eighth Amendment claims. His appellate brief only

challenges the district court rulings on the Fourth Amendment and negligence issues.

His alternative argument, that his Fourteenth Amendment rights were violated, is without

merit because there is no question that Mercado was in custody at the time of the seizure. A

suspect is in custody whenever an officer “restrains the freedom of a person to walk away, he has

seized that person.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)

(citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607

(1975)). Because the police surrounded Mercado and there was no way for him to escape, he

was “seized” for the purposes of the Fourth Amendment. Even if Mercado was not seized at the

point when he was surrounded by police, he was seized at the time he was struck by the

projectile from the Sage Launcher. See Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th Cir. 2003). 

2

Before MARCUS, FAY and SILER , Circuit Judges. *

SILER, Circuit Judge:

Plaintiff Ramon A. Mercado appeals the grant of summary judgment in

favor of the defendants City of Orlando (“Orlando”), and police officers Ramfis

Padilla and Christina Rouse on his 42 U.S.C. § 1983 claims for the use of

excessive force when detaining him and preventing him from committing suicide.1

For the following reasons, we REVERSE and REMAND on the issue of qualified

immunity with respect to Padilla and AFFIRM on all other issues. 

I.

In 2002, Mercado and his wife, Ibis, had a heated argument, during which

Ibis told Mercado that she wanted to end their marriage and return to Puerto Rico

without him. Mercado became despondent, began to cry, and tried to convince her
3

to stay, telling her that he would commit suicide if she left him. To demonstrate

his intent, he wrapped a telephone cord around his neck and attached the other end

to a ceiling vent. Mercado used a kitchen knife to make multiple cuts on his arms.

He then grasped the knife with both hands and pointed it toward his heart. 

Ibis called the Orlando Police Department and reported the attempted

suicide, and officers were dispatched to her apartment. Rouse and Padilla were

among those officers who arrived at Mercado’s residence. Ibis told the officers

that Mercado was armed with a knife and had threatened to commit suicide. The

police attempted to make verbal contact with Mercado for twenty minutes from

outside the apartment door. When this attempt was unsuccessful, the officers

entered the apartment with Ibis’s permission.

Inside, the officers found Mercado sitting on the kitchen floor, crying. He

was holding the knife in both hands and pointing it toward his heart. The

telephone cord was still wrapped around his neck, but there is no evidence that it

was still wrapped around the ceiling vent. The officers identified themselves and

ordered Mercado to drop his knife at least two times (once in English and once in

Spanish), but he refused without making any threatening moves toward the

officers. At no time did the officers warn Mercado that force would be used if he

did not drop his weapon.
Although the officers claim that Mercado was “turning blue” from oxygen deprivation at 2

the time that Padilla hit him with the Sage Launcher, another officer stated that he did not turn

blue until after he was shot. Because this is a motion for summary judgment, we must view all

evidence in the light most favorable to the non-moving party and assume that Mercado was not

suffocating when the police entered his apartment.

According to Mercado’s deposition and medical evidence, he was only hit by one rubber

3

baton, so the other shot must have missed Mercado entirely. 

4

Fifteen to thirty seconds after giving that order, Padilla followed Rouse’s

orders to hit Mercado with the Sage SL6 Launcher (“Sage Launcher”) and subdue

him. The Sage Launcher is a “less lethal” munition that fires a polyurethane baton 2

that is 1.5 inches wide, travels approximately 240 feet per second, and delivers a

force of 154 foot/pounds of energy–approximately the energy of a professionallythrown baseball. The Sage Launcher was designed to be used to protect persons

from self-inflicted injury, especially when using a night stick or baton would be

unsafe or impractical. The projectile is not designed to penetrate the body, but

only to leave bruises. 

From a distance of approximately six feet, Padilla had a clear view and fired

the Sage Launcher twice, hitting Mercado once in the head. Padilla claims that he 3

was aiming at Mercado’s shoulder. The impact fractured Mercado’s skull,

resulting in brain injuries. He now takes medication to prevent seizures, and he

suffers from a host of ailments including headaches, loss of memory, loss of

balance, insomnia, dizziness, stuttering, loss of sensation and movement, loss of
5

strength, and sensitivity to light. He is disabled and cannot work. 

Padilla was trained on the acceptable uses of the Sage Launcher. He was

also aware of Orlando Police Department policies concerning the weapon,

specifically, that “[t]argeting the head or neck with the baton or Sage SL6

projectile is acceptable in deadly force situations only.” Furthermore, the policy

defines “deadly force” as “force that is likely to cause death or great bodily harm.”

The policies also provide that a crisis negotiation team shall be dispatched when a

subject threatens to commit suicide, has the apparent ability to do so, and refuses to

surrender. 

Shortly after the incident, another officer tested Padilla’s Sage Launcher for

accuracy. The weapon was in proper working order and was accurate up to a

distance of five yards. In her deposition, Rouse testified that the incident did not

require deadly force; however, Padilla stated that the situation might have required

such force. The defendants’ expert testified that deadly force would not be

appropriate under these facts and that he would not have purposely aimed the Sage

Launcher at Mercado’s head.

Mercado sued Padilla and Rouse in both their individual and official

capacities, alleging that they used unreasonable force in detaining him, and thus

violated his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth
6

Amendments. He asserted a Monell claim against Orlando, claiming that the city

has a policy of using excessive force against its citizens. He also asserted state-law

claims against Orlando for negligence in training and supervising Padilla and

Rouse.

Later, the defendants filed a motion in limine to prevent, inter alia, the

introduction of a statement by Mercado’s sister, Limarie Vargas, concerning a

conversation with Officer Angel Burgos on the night of the incident. Burgos

allegedly told Vargas that Orlando trains its officers to “shoot people in the head,”

not the body. The district court determined that the statement was inadmissible

hearsay.

The district court granted summary judgment to the defendants, stating that

the officers did not use excessive force against Mercado and were afforded

qualified immunity. It also dismissed the Monell and negligence claims against

Orlando for lack of evidentiary support. 

II.

We review the district court’s grant of summary judgment de novo. Lee v.

Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Summary judgment is appropriate

when the “pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to
Mercado also sued both officers in their official capacities. However, Mercado’s 4

opening brief to this court only addresses the issue of the officers’ qualified immunity for acts

done in their individual capacity. Because Mercado did not argue that the district court erred in

granting summary judgment to the officers in their official capacities, this argument should be

deemed waived. See Four Seasons Hotel and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d

1164, 1167 n.4 (11th Cir. 2004). 

7

any material fact and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. Pro. R. 56(c). When making this determination, we view all

facts in the light most favorable to Mercado, the non-moving party. See Skrtich v.

Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Furthermore, we review the

district court’s grant of a motion in limine for abuse of discretion. Chrysler Intern.

Corp. v. Chemaly, 280 F.3d 1358, 1362 (11th Cir. 2002). 

A. Mercado’s Claim Against the Officers for Excessive Force4

Mercado can only state a claim under Fourth Amendment against Rouse and

Padilla if the officers are not entitled to qualified immunity. “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.” Ferraro,

284 F.3d at 1193-94 (quoting Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.

2001)) (internal quotation marks omitted). Qualified immunity allows government

employees to carry out their discretionary duties without fear of litigation,

“protecting from suit all but the plainly incompetent or one who is knowingly
8

violating the federal law.” Id. at 1194 (citation and internal quotation marks

omitted). 

In order for the defendants to claim protection for qualified immunity, they

must first demonstrate that they were engaged in a discretionary duty. Holloman v.

Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Because the defendants were

trying to apprehend a potentially suicidal subject, they were clearly engaged in a

discretionary capacity. The burden, then, shifts to Mercado to show that qualified

immunity is not appropriate by satisfying a two-part inquiry. Courson v.

McMilliam, 939 F.2d 1479, 1487 (11th Cir. 1991). First, viewing the evidence in

the light most favorable to him, he must show that the officers violated a

constitutional right. Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L.

Ed. 2d 272 (2001). If such violation occurred, then we must determine if that right

was clearly established at the time of the incident. Id. 

1. Whether the Officers Violated Mercado’s Constitutional Rights

The Fourth Amendment’s freedom from unreasonable searches and seizures

includes the right to be free from excessive force during a criminal apprehension.

Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443

(1989). In determining whether the officers’ force was reasonable, we must

determine “whether a reasonable officer would believe that this level of force is
9

necessary in the situation at hand.” Ferraro, 284 F.3d at 1197 (citation omitted).

Under Graham, courts should determine the “objective reasonableness” of a

seizure by balancing the “nature and quality of the intrusion” against the

“governmental interest at stake.” 490 U.S. at 396. In this case, the intrusion was

severe. Mercado was hit in the head by a projectile fired from the Sage Launcher,

causing serious brain injury. Although this weapon is classified as a “less lethal”

munition, Orlando police regulations recognize that it can be used as a deadly

weapon.

When determining the government’s interest, we must consider factors that

include “the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. Furthermore, the reasonableness

of a “particular use of force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id.

Because this situation does not involve a criminal arrest, our facts do not fit

neatly within the Graham framework. Furthermore, because Florida does not

recognize attempted suicide as a crime, Krischer v. McIver, 697 So. 2d 97, 100

(Fla. 1997), it is impossible for this court to measure the “severity of the crime at

issue.” 
10

We must next consider the extent to which Mercado placed himself or others

in danger. See Kesinger v. Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004)

(granting qualified immunity to officer who used deadly force on a suicidal victim

who “posed an immediate threat of harm” to himself, the officer, and others). The

defendants claim that the use of force is justified because suicidal subjects

sometimes make erratic moves that can jeopardize the safety of the officers on the

scene. See Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003) (noting that police

were justified in using “less lethal” bean-bag rounds on the plaintiff who

threatened to blow up his home by igniting propane and kerosene tanks outside his

home). 

However, viewing the facts in the light most favorable to Mercado, we can

find no indication that he made any threatening moves toward the police. See

Deorle v. Rutherford, 272 F.3d 1272, 1284-85 (9th Cir. 1991) (denying officers

qualified immunity after deploying a projectile “bean bag” and taking out the eye

of a subject who was relatively cooperative and not a threat to the officers or

others). Even though he posed no threat to the police, he was a threat to himself,

and Florida law recognizes a “compelling interest in preventing suicide.” Krischer,

697 So. 2d at 103. 

Furthermore, Mercado was not actively resisting arrest, and there is no
11

evidence that he struggled with the police. See Fernandez v. Cooper City, 207 F.

Supp. 2d 1371, 1377 (S.D. Fla. 2002) (holding that officers were afforded qualified

immunity for using force to subdue an emotionally unstable person who was

actively resisting arrest). Arguably, Mercado did not have time to obey Padilla’s

order to drop the knife because Padilla discharged the Sage Laucher within seconds

of making this request. 

All of the factors articulated in Graham weigh in favor of Mercado. Because

he was not committing a crime, resisting arrest, or posing an immediate threat to

the officers at the time he was shot in the head, if Padilla aimed for Mercado’s

head, he used excessive force when apprehending Mercado. At this point, we must

assume that Padilla was aiming for Mercado’s head based on the evidence that

Padilla was trained to use the Sage Launcher, that the weapon accurately hit targets

from distances up to five yards, and that Mercado suffered injuries to his head.

Padilla was aware that the Sage Launcher was a lethal force if he shot at a subject

from close range. The officers were also aware that alternative actions, such as

utilizing a crisis negotiation team, were available means of resolving the situation.

This is especially true in light of the fact that Mercado had not made any

threatening moves toward himself or the officers.

Thus, in the light most favorable to Mercado, Padilla violated his Fourth
12

Amendment rights when he intentionally aimed at and shot Mercado in the head

with the Sage Launcher. See Thornton v. City of Macon, 132 F.3d 1395, 1400

(11th Cir. 1998) (denying qualified immunity for police officers when the suspect

did not commit a serious crime, pose a threat to the officers or others, or actively

resist arrest). 

We further conclude, however, that Officer Rouse did not violate Mercado’s

Fourth Amendment rights. Although Officer Rouse did not fire the Sage Launcher,

Mercado contends that she should be held responsible under a theory of

supervisory liability. 

[S]upervisory liability under § 1983 occurs either when the

supervisor personally participates in the alleged unconstitutional

conduct or when there is a causal connection between the actions of a

supervising official and the alleged constitutional deprivation. 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.

Alternatively the causal connection may be established when a

supervisor’s “custom or policy . . . result[s] in deliberate indifference

to constitutional rights” or when facts support an inference that the

supervisor directed the subordinates to act unlawfully or knew that

the subordinates would act unlawfully and failed to stop them from

doing so. The standard by which a supervisor is held liable in [his]

individual capacity for the actions of a subordinate is extremely

rigorous. 

Cottone v. Jenne, 326 F. 3d 1352, 1360-61 (11th Cir. 2003) (citations and internal

quotation marks omitted).
13

Officer Rouse was in another room during the incident, and did not see

Padilla aim or fire the gun. She did not tell Padilla to fire the Sage Launcher at

Mercado’s head. Given that Padilla was trained in the proper use of the launcher,

that the Department’s guidelines prohibited firing the launcher at a suspect’s head

or neck except in deadly force situations, and that (as explained below) there is no

evidence that Padilla has used similarly excessive force in the past–all of which are

undisputed facts in the record–Rouse could not reasonably have anticipated that

Padilla was likely to shoot Mercado in the head either intentionally or

unintentionally. Even under the “failure to stop” standard for supervisory liability,

Rouse cannot be held liable. 

2. Whether Padilla Violated Clearly Established Law.

Even though Padilla violated Mercado’s constitutional rights, he could still

be afforded qualified immunity provided that Mercado’s rights were not clearly

established at the time of the incident. Mercado can demonstrate that his right was

clearly established in a number of ways. First, he can show that a materially

similar case has already been decided, giving notice to the police. Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). He could

also show that a broader, clearly established principle should control the novel

facts in this situation. Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L.
The case of Wood v. City of Lakeland, 203 F.3d 1288 (11th Cir. 2000), contains the 5

clearest factual similarities to the case at bar. In Wood, the plaintiff’s family called the police to

subdue a suicidal subject. Id. at 1290. When the officers entered the residence, they observed

him sitting on a dresser, with his blood-covered arms holding an object to his neck. Id. After

repeatedly refusing to drop his weapon, he slid off the dresser, prompting an officer to shoot

14

Ed. 2d 666 (2002). Finally, he could show that this case fits within the exception

of conduct which so obviously violates that constitution that prior case law is

unnecessary. Ferraro, 284 F.3d at 1199. To make this showing, Mercado must

point to law as interpreted by the Supreme Court, the Eleventh Circuit, or the

Supreme Court of Florida. See Willingham v. Loughnan, 321 F.3d 1299, 1304

(11th Cir. 2003). 

Any case law that is “materially similar” to the facts in the case at hand must

pre-date the officer’s alleged improper conduct and “truly compel the conclusion

that the plaintiff had a right under federal law.” Ensley v. Soper, 142 F.3d 1402,

1406 (11th Cir. 1998) (internal quotation and citation omitted). Mercado,

however, can point to no controlling case law from the Supreme Court or this

Circuit dealing with the Sage Launcher. Although there are some cases dealing

with “less lethal” weapons, such as pepper spray, none of them is “materially

similar” to the facts in this case or “truly compels” the conclusion that Mercado

had a right established under federal law. See, e.g., Vinyard v. Wilson, 311 F.3d

1340, 1349 (11th Cir. 2002) (denying qualified immunity to an officer who

sprayed pepper in the eyes of an arrestee who was already handcuffed).5
him. The officers were entitled to qualified immunity because they “made a reasonable splitsecond judgment call, in light of [his] volatile, emotional, and aggressive state, to use deadly

force in order to prevent imminent death or great bodily harm to himself or another.” Id. at

1293. Wood has since been called into question by Holloman because the Wood court was too

restrictive in its analysis. Because there is no way to discern how the Wood court would have

decided that case under the correct legal analysis, its relevance is marginal.

15

If there is no case law directly on point, “[g]eneral statements of the law

contained within the Constitution, statute, or caselaw may sometimes provide ‘fair

warning’ of unlawful conduct.” Willingham, 321 F.3d at 1301. These principles

may give notice to officers, provided that the decisions clearly apply to the

situation at hand. The “reasoning, though not the holding” of prior cases can also

send “the same message to reasonable officers” in novel factual situations. Hope,

536 U.S. at 743. 

The general principle of law must be specific enough to give the officers

notice of the clearly established right. Indeed, the principle that officers may not

use excessive force to apprehend a suspect is too broad a concept to give officers

notice of unacceptable conduct. See Jones v. City of Dothan, 121 F.3d 1456, 1460

(11th Cir. 1997) (noting that although the unconstitutionality of using excessive

force is an established principle, the concept is far too broad). 

Mercado, however, relies on the principle that deadly force cannot be

employed in a situation that requires less-than-lethal force. See Tennessee v.

Garner, 471 U.S. at 11-12 (holding that a police officer cannot “seize an unarmed
16

nondangerous suspect by shooting him dead”). Because the Fourth Amendment

protects citizens from “unreasonable” seizures, the use of deadly force must be

reasonable under the circumstances. Vaughan v. Cox, 343 F.3d 1323, 1329 (11th

Cir. 2003). Using deadly force in a situation that clearly would not justify its use is

unreasonable under the Fourth Amendment.

Under Florida law, “deadly force” means any “force that is likely to cause

death or great bodily harm,” but does not include “the discharge of a firearm by a

law enforcement officer or correctional officer during and within the scope of his

or her official duties which is loaded with a ‘less lethal munition.’” Fla. Stat. §

776.06. “Less-lethal munition” is, in turn, defined as “a projectile that is designed

to stun, temporarily incapacitate, or cause temporary discomfort to a person

without penetrating the person’s body.” Id. According to Orlando policies, the

Sage Launcher is defined as a “less lethal” munition; however, they also recognize

that some uses of the weapon should only be employed in deadly force situations.

Shooting a suspect in the head is specifically forbidden unless the situation

requires deadly force. 

As noted above, for the purposes of summary judgment, we must assume

that Padilla intended to shoot Mercado in the head based on Mercado’s injuries and

the proven accuracy of Padilla’s weapon. Because shooting a subject in the head
17

with a Sage Launcher employs force “likely to cause death or great bodily harm,”

this action can be considered “deadly force.” Both Padilla and Rouse were aware

that police policy forbade them from utilizing this magnitude of force under the

facts at bar. Because this situation was clearly not a deadly force situation, and

because the officers utilized deadly force to subdue Mercado, they violated the

clearly established principle that deadly force cannot be used in non-deadly

situations.

Furthermore, this is one of the cases that lie “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.” Ferraro, 284

F.3d at1199 (internal quotation and citation omitted). The facts in this case are

also “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.” Willingham, 321 F.3d at 1303. 

We have repeatedly held that police officers cannot use force that is “wholly

unnecessary to any legitimate law enforcement purpose.” Ferraro, 284 F.3d at

1199 (holding that slamming a handcuffed arrestee’s head against a vehicle

violated the Fourth Amendment); see Slicker v. Jackson, 215 F.3d 1225, 1227

(11th Cir. 2002) (denying qualified immunity for an officer who kicked an arrestee
18

already in handcuffs); Priester v. City of Riviera Beach, 208 F.3d 919, 926-27

(11th Cir. 2000) (denying qualified immunity to officers who allowed a police dog

to attack an arrestee who was already on the ground). 

Officer Padilla should not have needed case law to know that by

intentionally shooting Mercado in the head, he was violating Mercado’s Fourth

Amendment rights. When the officers entered the apartment, they found Mercado

crying on the floor of his kitchen with a loose cord around his neck and a kitchen

knife placed up to, but not poking into, his chest. From a distance of about six feet

away, Padilla twice shouted for Mercado to drop his knife, and then discharged the

Sage Launcher, hitting Mercado in the head from short range. Assuming that

Padilla was aiming at Mercado’s head intentionally, his use of force was clearly

excessive.

There is sufficient evidence in the record to support a finding that Padilla

intentionally aimed for Mercado’s head. First Padilla had been trained in the use

of the Sage Launcher. Second, the defendants’ witness testified that the Sage

Launcher fired accurately from a distance of up to five yards. Third, Padilla fired

from a distance of six feet. Finally, the only shot that made contact with Mercado

hit him in the head. Since such circumstantial evidence could lead a reasonable

jury to find that Padilla intended to hit Mercado in the head, we REVERSE the
19

district court’s ruling as to Padilla and find that he should not be afforded the

protection of qualified immunity. 

B. Mercado’s Fourth Amendment Claim Against Orlando

Under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct.

2018, 56 L. Ed. 2d 611 (1978), municipalities are subject to § 1983 liability “when

execution of a government’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may be fairly said to represent official policy, inflicts

the injury[.]” Id. at 694. Furthermore, municipalities cannot be held liable for

employees under respondeat superior. Samples v. City of Atlanta, 846 F.2d 1328,

1333 (11th Cir. 1988). 

For Mercado’s Monell claim to survive summary judgment, he must bring

forth some evidence of a pattern of improper training to sustain his claim, and he

must show that Orlando was aware of the deficiencies in the program. See City of

Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)

(noting that constitutional policies can become unconstitutionally applied through a

repeated failure to train); see also Riley v. Newton, 94 F.3d 632, 638 (11th Cir.

1996). Furthermore, Mercado must show that this training or failure to train

amounted to “deliberate indifference” on the part of the Orlando. See City of

Canton, 489 U.S. at 389; see also Gold v. City of Miami, 151 F.3d 1346, 1350
20

(11th Cir. 1998) (noting that there are only “limited circumstances in which an

allegation of a failure to train or supervise can be the basis for liability under §

1983”) (internal quotation marks omitted). 

Both of Mercado’s arguments regarding his Monell claim challenge the

district court’s rulings on the defendants’ motion in limine to exclude evidence

from trial. Mercado first claims that the court erred in determining that Officer

Burgos’s statement, which would have been introduced through Mercado’s sister,

that officers are trained to “shoot people in the head,” is inadmissible hearsay and

more prejudicial than probative. The district court, however, did not abuse its

discretion when it determined that the statement was hearsay. 

Rule 801(d)(2)(D) states that a non-hearsay party admission includes a

“statement by the party’s agent or servant concerning a matter within the scope of

the agency or employment, made during the existence of the relationship.”

Although the statement may meet all of these requirements, the Rule further

provides that “the contents of the statement shall be considered but are not alone

sufficient to establish the agency or employment relationship and scope thereof

under subdivision (D).” The only evidence Mercado has produced relating to

Burgos’s statement is the uncorroborated statement itself. Because Mercado has

not brought forth any evidence to corroborate this statement, the district court did
This court must first determine if the claims that Mercado is alleging against Orlando 6

would be actionable against a private person. The torts of negligent supervision and negligent

training are recognized in Florida, and no party contends otherwise.

21

not abuse its discretion in finding that the statement is inadmissible hearsay. 

Mercado also argues that the district court erred in precluding him from

introducing into evidence other instances of Orlando officers using excessive force.

In Gold, we determined that a plaintiff could not establish a Monell claim when he

could not point to any other incidents involving similar facts. 151 F.3d at 1351.

Mercado, too, cannot meet this burden. During discovery, he was given a list of all

cases involving excessive force, but he cannot show that any of them involved

factual situations that are substantially similar to the case at hand. For this reason,

the district court did not abuse its discretion, and the dismissal of Mercado’s

Monell claim against Orlando should be AFFIRMED. 

C. Mercado’s Negligence Claims Against Orlando

Finally, Mercado alleged that Orlando was negligent in training and

supervising its employees, and Orlando defends on the grounds of sovereign

immunity. Although Florida Statute § 768.28(1) waives sovereign immunity for

acts which would create liability for a private person, such waiver extends only to

the government’s “operational,” not “discretionary” acts. Lewis v. City of St.

Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). Even though the officers had a 6
22

duty of care with respect to Mercado because he was in custody, Moore v. State,

861 So. 2d 1251, 1253 (Fla. Dist. Ct. App. 2003), he must show that the training

and supervision of the defendant officers constituted an operational duty before it

can seek to recover any damages.

1. Negligent Training

For Mercado to state a claim for negligent training, he must show that

Orlando was negligent in the implementation or operation of the training program.

He cannot merely challenge the content of the program. The determination of the

content of a training program is a discretionary function for the city which is

afforded sovereign immunity. Lewis, 260 F.3d at 1266. Because Mercado only

challenges the content of the program, not the way in which the program was

implemented, Orlando is entitled to sovereign immunity with respect to this claim.

2. Negligent Supervision

The Florida Supreme Court recognized the tort of negligent retention as

early as 1954, stating that the employer cannot knowingly keep “a dangerous

servant on the premises which defendant knew or should have known was

dangerous and incompetent[.]” Mallory v. O’Neil, 69 So. 2d 313, 315 (Fla. 1954).

To state a claim of negligent retention of employees, Mercado must show that

Orlando was put on notice of the “harmful propensities of the employees.” Willis
23

v. Dade County Sch. Bd., 411 So. 2d 245, 246 n.1 (Fla. Dist. Ct. App. 1982).

Because Mercado has not brought forth any evidence that Orlando had notice that

either of the officers had “harmful propensities” or was otherwise unfit to serve as

a police officer, he cannot state a claim for negligent supervision. For these

reasons, we AFFIRM the district court’s rulings as to Mercado’s claims for both

negligent training and negligent supervision.

AFFIRMED in part and REVERSED and REMANDED in part.