Andrews et al v. Williams et al

Filing 73

OPINION. Accordingly, McQueen and Williams's motion for summary judgment will be granted. An appropriate judgment will be entered in favor of them and against Andrews. Signed by Honorable Judge Myron H. Thompson on 9/30/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JAMEISHA ANDREWS,
Plaintiff,
v.
JOHN WILLIAMS, in his
individual capacity, and
JEROME McQUEEN, in his
individual capacity,
Defendants.

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CIVIL ACTION NO.
2:13cv136-MHT
(WO)

OPINION
Plaintiff

Jameisha

Andrews

brought

this

lawsuit,

relying on 42 U.S.C. § 1983, against defendant Jerome
McQueen (a Lowndes County, Alabama Deputy Sheriff) and
his supervisor, defendant John Williams (the Lowndes
County Sheriff).

She alleges that McQueen violated her

Fourth

right

Amendment

force.

She

further

against
alleges

the
that

use

of

excessive

Williams

did

not

adequately train and supervise McQueen to prevent use of
excessive

force.

Jurisdiction

is

properly

invoked

pursuant to 28 U.S.C. §§ 1331 (federal question) and 1343
(civil rights).
The case is now before the court on McQueen and
Williams’s

motion for summary judgment.

For the reasons

discussed below, the motion will be granted.

I.

LEGAL STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.

R.

Civ.

P.

56(a).

The

court

must

view

the

admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.

Matsushita Elec. Indus. Co. Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

2

II.

BACKGROUND

The following is a recitation of the facts of the
case with all reasonable inferences made toward Andrews.
Andrews bought her son a mobile phone and instructed
him to carry it with him at his high school.

She was

more than eight months pregnant and worried that she
could go into labor at some point during a school day,
requiring her son to leave school and drive her to the
hospital.
her

to

On the day of her tasing, Andrews’s son called

say

that

his

phone

had

been

stolen,

suspected one of his classmates of taking it.

and

he

She went

to the school to try to sort out the situation.
Andrews went to the administrative office of the
school

and

principal.

was

able

to

speak

with

the

assistant

The assistant principal and McQueen, who was

serving as a Lowndes County Sheriff’s Deputy and a School
Resource

Officer,

searched

the

accused

student’s

belongings and were able to find a cheaper and less
sophisticated mobile phone.

3

The assistant principal

brought this phone back to the school’s administrative
office where Andrews was waiting, but she revealed that
it was not her son’s phone.
office,

while

administrative

McQueen

The two moved into an inner

stood

offices,

in

behind

a

the

lobby

reception

of

the

counter.

Andrews demanded that the school continue to look for her
son’s phone, but the assistant principal refused, saying
that she had done all she could.

Andrews grabbed the

cheaper phone, saying “Whenever y’all find my son a
phone, I’ll bring this phone back.” Andrews Dep. Defs.’
Ex. A (Doc. No. 46-1) at 52:17-18.

It is not clear from

the record whether McQueen would have been able to hear
Andrews make this statement, but he does not seem to
remember it.

See McQueen Dep. Defs.’ Ex. B (Doc. No.

46-2) at 93:2-10.
Andrews walked out of the inner office and into the
lobby

where

McQueen

was

standing.

The

assistant

principal yelled to McQueen that he should stop her from
walking

out

with

the

phone.

4

McQueen

rushed

behind

Andrews to hold the door to the exterior hallway closed
before she could open it.

Since the door opened into the

office, she was trapped between the door and McQueen.

He

was standing behind her with his arm extended over her,
holding the door shut with his hand.

He demanded that

she

she

hand

him

the

flip

phone,

but

refused

to

relinquish it.
Without

warning,

McQueen

applied

his

Taser

X26

Electronic Compliance Device, in drive-stun mode, to
Andrews’s

chest

and

shoulder.

She

felt

a

painful

“burning sensation going through [her] body ... [her]
chest and arm.” Andrews Dep. 70:5-8.

After being tased,

she gave the flip phone to her son.

The Taser left two

burn marks on her chest and shoulder, and she went to the
hospital so her OB/GYN could monitor the weapon’s effect
on her unborn baby.
A warrant was later issued for Andrews on misdemeanor
charges of Theft of Property in the Third Degree (1975
Ala. Code § 13A-8-5), Resisting Arrest (§ 13A-10-41), and

5

Disorderly

Conduct

(§

13A-11-7).

The

charges

were

dismissed.
A Taser has three main modes of deployment: probe,
drive-stun, and three-point.

In each mode, some part of

a person’s body is used to complete an electric circuit.
The

sensations

and

consequences

of

the

weapon

vary

depending on how the circuit is completed.
Probe mode is what many people envision when they
think of use of a Taser.

In probe mode, two electrically

charged probes are shot into a person’s body, so that an
electric current runs through the entire body.

This

causes neuromuscular incapacitation. In other words, the
person

loses

control

over

her

own

body

because

her

muscles and nerves are entirely occupied with completing
the circuit.

If an individual is struggling with the

police or otherwise presents a danger, the neuromuscular
incapacitation

can

create

a

window

in

which

individual will stop resisting and can be secured.

the
Probe

mode also causes “intense [pain], felt throughout the

6

body.” Brave Expert Report (Doc. No. 47-5) at 25.
Drive-stun
Andrews.
the

Taser

mode

is

the

mode

which

was

used

on

In drive-stun mode, the probes are taken off
so

only

fixed

electrodes

remain.

The

electrodes are able to complete a circuit through the
air, showing an arc of lightning-like electricity.
Brave Rep. Figure 6.

See

When touched to a person’s body,

the circuit is completed through the top layer of skin
and

fat,

sensation.
Taser

in

leading

to

an

extremely

painful

burning

Andrews presents anecdotal evidence that a
drive-stun

mode

can

cause

an

individual’s

muscles to contract, incapacitating her, while McQueen’s
expert opines that drive-stun mode causes only pain and
not incapacitation.

In drive-stun mode, a Taser is “a

pain compliance tool with limited threat reduction.”
Brave Rep. At 28.

In other words, because it does not

incapacitate an individual, it will not be as effective
at ending a struggle, but it can cause an individual to
comply with police orders by causing pain.

7

McQueen’s

expert Michael Brave provides evidence that drive-stun
mode does not cause lasting injury, beyond temporary burn
marks.
Finally, three-point mode is the name for when an
officer uses a Taser in both probe mode and drive-stun
mode

at

the

same

time,

incapacitating

a

person

and

causing her extra pain.
Andrews alleges that the Taser use was, at least in
part, retaliation for her filing a sexual-harassment
complaint against a Town of Hayneville police officer and
the subsequent termination of that officer.
provides

no

evidence

about

the

However, she

details

of

her

sexual-harassment complaint or whether McQueen or his
supervisor Williams would have any reason to know about
the complaint or the termination.
Andrews

presents

two

use-of-force

reports

from

incidents in October 2013, more than a year and a half
after McQueen used a Taser on her.

She also presents an

affidavit from an individual who says that he was abused

8

by other Lowndes County deputies.
state the date of the incident.

The affidavit does not
Finally, she describes

a number of encounters that she has had with Hayneville
police officers1 and Lowndes County deputies since the
Taser incident.2

III.
A.

DISCUSSION

Liability of McQueen

Andrews argues that the use of the Taser on her was
an excessive use of force.

See Lee v. Ferraro, 284 F.3d

1188, 1197 (11th Cir. 2002) (“The Fourth Amendment’s
freedom

from

unreasonable

searches

and

seizures

encompasses the plain right to be free from the use of
excessive force in the course of an arrest.”).
McQueen

moved

qualified-immunity

for

summary

grounds.

judgment

“[G]overnment

on

officials

1. Hayneville is located in Lowndes County, Alabama.
2. This post-complaint harassment is not pled in the
First Amended Complaint.
While it could have been
considered as evidence if relevant, the court makes no
determination as to the lawfulness of those events.
9

performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct
does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would
Harlow v. Fitzgerald, 457 U.S. 800, 818

have known.”
(1982).

Since there is no dispute in this case that

McQueen was acting within the scope of his discretionary
functions when he tased Andrews, Andrews’s lawsuit may
continue only if, under her version of events, McQueen’s
Taser

use

violated

her

constitutional

right

against

excessive force and the law was clearly established at
the time of the incident that the Constitution prohibited
Terrell v. Smith, 668 F.3d 1244, 1250

such Taser use.
(11th Cir. 2012).

If the action did not violate clearly

established constitutional law, the court need not reach
the

question

Pearson v.

of

whether

her

rights

were

violated.

Callahan, 555 U.S. 223, 236 (2009).

The court will begin with the ‘clearly established’
analysis.

“A

right

may

be

10

clearly

established

for

qualified immunity purposes in one of three ways: (1)
case

law

establishing

with
the

indistinguishable
constitutional

facts

right,;

(2)

clearly
a

broad

statement of principle within the Constitution, statute,
or case law that clearly establishes a constitutional
right; or (3) conduct so egregious that a constitutional
right was clearly violated, even in the total absence of
case law.”

Lewis v. West Palm Beach, Fla., 561 F.3d

1288, 1291-92 (11th Cir. 2009) (citations removed).
Andrews first seems to argue that the Taser use
violated her clearly established constitutional rights
because McQueen was not entitled to arrest her.

There is

a “broad statement of principle within the ... case law
that clearly establishes” that such use of force would
have been a constitutional violation.
1292.

Lewis, 561 F.3d at

Specifically, case law states that even de minimis

force will violate the Fourth Amendment if the officer is
not arguably entitled to arrest or detain the suspect.
Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir.

11

2008) (per curiam).
However,
Andrews.

McQueen

was

legally

entitled

to

arrest

An officer must have probable cause in order to

arrest an individual.

“This standard is met when ‘the

facts and circumstances within the officer’s knowledge,
of

which

he

or

she

has

reasonably

trustworthy

information, would cause a prudent person to believe,
under the circumstances shown, that the suspect ... is
committing ... an offense.’”

Rankin v. Evans, 133 F.3d

1425, 1435 (11th Cir. 1998) (quoting Williamson v. Mills,
65 F.3d 155, 158 (11th Cir. 1995)).

McQueen knew that

Andrews had come to the school to find her son’s phone;
he had participated in the search process.

He then saw

Andrews rush out of the inner administrative office and
heard the assistant principal yell that he should stop
her and that she should not leave the office with the
phone.

A prudent person in that circumstance would

suspect that Andrews was committing the offense of theft.
Andrews seems to argue that McQueen did not have

12

probable cause to arrest her because she stated that she
intended to return the flip phone when her son’s phone
was

returned.

Implicit

in

this

argument

is

the

proposition that an intent to return the phone would mean
that Andrews lacked the requisite intent to be guilty of
theft under Alabama law.
1(2)(a); 13A-8-2(1).

See 1975 Ala. Code §§ 13A-8-

However, the court need not reach

the underlying question of Alabama criminal law.

Even if

Andrews lacked the requisite intent and McQueen heard her
vocal

denial

of

the

requisite

probable cause to arrest her.

intent,

he

still

had

“[A] police officer need

not credit everything a suspect tells him.” Rodriguez v.
Farrell,

294

F.3d

1276,

1278

(11th

Cir.

2002).

A

suspect’s denial of intent does not deprive an arresting
officer of probable cause.
The fact that McQueen was entitled to arrest Andrews
does not resolve the question of whether the use of the
Taser violated her clearly established right against
excessive force.

Andrews acknowledges that there is no

13

case law from the Supreme Court, the Court of Appeals for
the Eleventh Circuit, or the Alabama Supreme Court “that
is materially similar to the current case.” Long v.
Slaton, 508 F.3d 576, 584 (11th Cir. 2007).

However, she

argues that “general rules of law from ... earlier case
law

...

appl[y]

with

‘obvious

clarity’

to

the

circumstances,” id., and that the Taser use was “so
egregious

that

a

constitutional

right

violated,” Lewis, 561 F.3d at 1292.

was

clearly

However, the court

cannot agree, under either test.
The general rules of law on excessive force do not
apply with obvious clarity to McQueen’s Taser use against
Andrews.

In excessive-force cases, “[a] court looks to

the ‘totality of circumstances’ to determine whether the
manner of arrest was reasonable.” Draper v. Reynolds, 369
F.3d

1270,

1278

(11th

Cir.

2004).

Looking

to

the

totality of the circumstances, the court must undertake
“a careful balancing of ‘the nature and quality of the
intrusion on the individual’s Fourth Amendment interests’

14

against

the

countervailing

governmental

interests

at

stake.”

Graham v. Connor, 490 U.S. 386, 396 (1989)

(quoting

Tennessee

v.

Garner,

(internal quotations omitted)).

471

U.S.

1,

8

(1985)

This analysis must be

done “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Oliver v. Fiorino, 586 at 905.
A number of factors can help to understand whether
use of force in a particular instance was excessive.
These include “(1) the need for the application of force,
(2) the relationship between the need and amount of force
used, and (3) the extent of the injury inflicted.” Draper
v. Reed, 369 F.3d 127, 1277 (11th Cir. 2004).

Other

factors include “the severity of the crime at issue,
whether

the

suspect

posed

an

immediate

threat,

and

whether the suspect actively resisted arrest.” Graham,
490 U.S. at 396; accord Hoyt v. Cooks, 672 F.3d 972, 97879 (11th Cir. 2012).
Because

these

factors

15

require

a

fact-intensive

application,

it

is

helpful

to

review

circumstances of previous case law.
reported

cases

considered

in

which

whether

the

the

There are several

Eleventh

particular

particular

Circuit

Taser

use

has
was

constitutionally excessive. It has also analogized Taser
use to other nonlethal force, such as the use of pepper
sprays and similar chemical weapons.

See Fils v. City of

Aventura, 647 F.3d 1272, 1289 (11th Cir. 2011).
On

the

one

hand,

“these

cases

establish

that

unprovoked force against a non-hostile and non-violent
suspect who has not disobeyed instructions violates that
suspect’s rights under the Fourth Amendment.”
example,

the

Fils

court

found

clearly

Id.

For

established

excessive force when the defendant officer had responded
to a bystander’s comment of “they’re overreacting, these
motherfuckers are overreacting” by using the Taser twice
in probe mode and once in drive-stun mode.

Id. at 1277.

Similarly, in Vinyard v. Wilson, 311 F.3d 1340 (11th Cir.
2002), the use of pepper spray on a handcuffed and

16

secured suspect while she was secured in the back of a
police car was found to be excessive.
On the other hand, police are permitted to use Tasers
in

order

perceive

to
as

secure

a

suspect

threatening.

The

whom

they

Eleventh

reasonably
Circuit

has

approved Taser use on a suspect who was “attempting to
kick and ‘shin scrape’ [and] head butt the deputies,”
Mann v. Taser Intern., Inc., 588 F.2d 1291, 1299 (11th
Cir

2009),

and

another

suspect

who

appeared

to

be

spitting blood at an officer, Zivojinovich v. Barner, 525
F.3d 1059, 1073 (11th Cir. 2008).

Furthermore, the

appellate court found that the use of a Taser in probe
mode was reasonable against a suspect who was “hostile,
belligerent, and uncooperative,” but was not close enough
to the officer to pose an immediate threat.

Draper v.

Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004).
initial

offenses

in

these

cases

are

sometimes

The
quite

minor, such as a broken tag light, Draper, 369 F.3d at
1272, or trespassing, Zivojinovich, 525 F.3d at 1063.

17

However,

the

potential

threat

posed

by

a

suspect

sufficiently alters the constitutional calculus as to
allow a greater use of force.
In each of these cases the officer used the Taser in
probe mode, at least once.3

In Draper, Eleventh Circuit

contrasts such Taser use against a hypothetical “verbal
arrest

command

accompanied

by

attempted

physical

handcuffing” which “may well have, or would likely have,
escalated a tense and difficult situation into a serious
physical struggle in which either Draper or Reynolds
would be seriously hurt.”

369 F.3d at 1278.

The Taser,

in probe mode, allows an officer to avoid such a struggle
because he can engage the Taser from a distance and the
weapon incapacitates its target.
Examining Andrews’s case through the lens of these
precedents and the factors articulated in Draper and

3. The Zivojinovich court does not specifically note
which mode was used, but it does describe the Taser as
incapacitating the plaintiff. Such incapacitation is
consistent with probe mode and not with drive-stun mode.
18

Graham, this court cannot say that the Taser use was
clearly established as excessive.
With regard to the need for use of force, Andrews was
passively

resisting

an

officer

during

arrest

for

a

moderately serious misdemeanor; however, she posed no
threat to the officer.

Andrews’s core offense was Theft

of Property in the Third Degree, 18 U.S.C. § 13A-8-5, a
Class A Misdemeanor.

This is the least serious theft

offense under Alabama law, for property with a value less
than $ 500.

Andrews was also charged with Disorderly

Conduct, a Class C Misdemeanor, and Resisting Arrest, a
Class B Misdemeanor.
(Doc. No. 52-3).

See Andrews Warrants, Pl.’s Ex. 6

This crime is relatively unserious, but

more serious than the trespassing in Zivojinovich, 525
F.3d 1059, or the missing tag light in Draper, 369 F.3d
1270.
Next, there is no evidence that Andrews posed an
immediate threat to McQueen.
front of the door.

McQueen had her secured in

Although she was not following his

19

instructions and was emotional, he was able to hold the
door shut and keep her from leaving the office.

None of

the witnesses, including McQueen, provide any indication
that she was made any threatening or dangerous movements.
Instead of describing his Taser use as a response to a
threat, McQueen implies that he would have used his hands
to secure Andrews, if she were not a woman.

This factor

does tilt in Andrews’s favor.
The final question in determining the need for use of
force is whether Andrews was “actively resisting arrest.”
Graham, 490 U.S. at 396.

There is no question that

Andrews was refusing to follow the instructions of the
officer.

However, there is a factual dispute as to

whether she was actively or passively resisting.

Andrews

describes herself as having been unable to move once
McQueen held the door shut.

The assistant principal

testified in deposition that Andrews stopped walking when
McQueen asked her to, although she refused to relinquish
the phone.

McQueen, on the other hand, testified that

20

Andrews continued to try to open the door and leave.
Making all reasonable inferences in Andrews’s favor, the
court cannot find that Andrews was actively resisting
arrest or actively resisting McQueen’s instructions. Any
jury would find that she was not complying with McQueen’s
instruction, but a reasonable jury could find that she
was merely passively resisting.

However, there is no

guidance in the case law regarding how the court (or an
officer

in

McQueen’s

position)

should

consider

such

passive resistance in an excessive-force analysis. See
Chaney v. City of Orlando, Fla., 291 Fed. Appx. 238, 244
(11th Cir. 2008) (noting that Orlando Police Department
policy encouraged Taser use as a response to passive
resistance); cf. Mann v. Darden, 630 F.Supp.2d 1305, 1320
(M.D. Ala. 2009) (Thompson, J.) (repeated Taser use on
psychiatric patient for passive resistance could be seen
as “willful, malicious, in bad faith, and well beyond
[officer’s] authority” under Alabama law).

21

Turning to the extent of the injury inflicted, there
is no reported Eleventh Circuit case which considered the
use of a Taser in only drive-stun mode.

All of the cases

involved probe mode, a significantly more intrusive and
painful experience.

Drive-stun mode causes pain to a

subject, but it generally leaves little lasting damage
beyond a burn mark.

In this way, it is a less serious

use of force than the Taser use discussed in the case
law, whether constitutionally reasonable or excessive.
However, when the court considers the relationship
between the need for use of force and the nature of the
force used, the use of drive-stun mode makes the force
seem less reasonable.

Drive-stun mode does not provide

the advantages of distance and incapacitation,4 which
allow an officer to secure a suspect without exposing
himself to potential injury.
the suspect.

It merely causes pain to

A hostile, belligerent, and uncooperative

4. Andrews herself offers some evidence that
drive-stun Taser use does incapacitate a subject, but it
is merely anecdotal and experiential, not scientific or
technical.
22

suspect could just as easily punch, kick, or otherwise
injure an officer during and after drive-stun Taser use
as before.
Rather than allowing distance and creating time for
an officer to secure a suspect, drive-stun Taser use is
a

“pain-compliance

appears

that

the

technique.”
theory

of

punishment and part threat.

From
the

the

record,

technique

is

it

part

The officer can use the

Taser, or another tool or technique, in order to cause a
non-cooperative suspect pain, so that the suspect will be
prodded into cooperating for fear of receiving additional
pain.

Such techniques have not been addressed by the

Eleventh Circuit or the Supreme Court.

However, this

court finds pain compliance profoundly troubling as a
practice.

In many excessive-force cases, the suspect was

injured incident to another police objective, such as
stopping

a

individual.

fleeing

suspect

or

handcuffing

a

violent

For a pain-compliance technique, the pain is

the goal of the officer’s action.

23

Such techniques may be

an important option in some law-enforcement situations,
especially

where

an

alternative

means

of

securing

compliance has the potential of causing lasting injury
rather than momentary pain.

However, it would seem

dangerous to encourage frequent use of such practices.
Cf. Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (use
of force on a prisoner is excessive under the Eight
Amendment protection against cruel and unusual punishment
if

used

“maliciously

and

sadistically

for

the

very

purpose of causing harm”).
Despite this court’s misgivings about pain-compliance
techniques, there is no case law on the subject.

Nor is

there clear case law concerning drive-stun-only Taser use
or appropriate responses to passive resistance when no
threat

is

presented.

McQueen’s

Taser

use

was

less

extreme than those instances which the Eleventh Circuit
has found to be constitutionally excessive, and in some
ways

is

closer

to

those

circumstances

in

which

the

Eleventh Circuit has endorsed more serious Taser use.

24

But see Brown v. City of Golden Valley, 574 F.3d 491 (8th
Cir. 2009) (drive-stun Taser use against misdemeanant who
posed

no

threat

but

refused

instructions

to

hang

up

her

established

as

excessive

to

cell

force

follow

officer

phone

was

clearly

within

the

Eighth

Circuit).
In

many

ways,

this

case

resembles

Buckley

Haddock, 292 Fed. Appx. 791 (11th Cir. 2008).

v.

In that

case, Buckley had gotten extremely emotional after he was
pulled over for speeding.

He “began to sob” and “refused

to sign the traffic citation.” Id. at 792.

When he was

warned that he would be arrested, he said “arrest me” and
allowed himself to be handcuffed.

However, as he was

walking to the car, he dropped to the ground and refused
to move.

After several attempts to get Buckley to stand

up, the sheriff’s deputy warned him that he would be
tased,

“to

which

anymore--tase me.’”

[Buckley]
Id.

shouted,

‘I

don’t

care

The deputy then used the taser,

in drive-stun mode, three times before another deputy

25

arrived and Buckley was escorted to the police car.

Two

of the judges who sat on Buckley’s appellate panel found
that the Taser use violated his rights against excessive
force, relying in part on the fact that video evidence
showed “an emotionally overwrought individual, through
sobs, passively refusing, if not unable, to comply with”
police orders.

Id. at 802 (Martin, D.J., dissenting)

(emphasis in original).

However, two of the appellate

judges held that the officer’s Taser use was not clearly
established as excessive.5

Because it is unpublished,

Buckley is not binding legal authority and therefore
could

not

operate

excessive force.

to

clearly

establish

See 11th Cir. R. 36-2.

any

law

on

Furthermore,

5. On the appellate panel which heard Buckley’s case,
Judge Martin found there to be excessive force and that
the law was clearly established; another judge found
there to be excessive force and that the law was not
clearly established; and the third found that there was
no excessive force.
Since two judges found that the
right was not clearly established, the deputy was found
to be immune from suit.
Thus, while Judge Martin
represented a minority view on the question of whether
the Taser use was clearly established excessive force,
her view as to the constitutional violation was held by
a majority of the panel.
26

even if it were binding, the use of force against Andrews
was more justified and less serious than that against
Buckley,

despite

the

parallels

with

regard

to

pain-compliance techniques, drive-stun Taser use, and
passive resistance.
Nor did McQueen have clear guidance from the case law
based on the fact that Andrews was visibly pregnant.
Eleventh

Circuit

has

issued

only

one

reported

concerning use of force against a pregnant woman.

The
case
In

Moore v. Gwinnett Cty., 967 F.2d 1495 (11th Cir. 1992),
a woman who was eight-months pregnant refused to comply
with

police

arrested.

orders

during

a

traffic

stop

and

was

During the course of the arrest, the officer

“‘grabbed’ her with both of his arms--taking her left arm
in

one

hand

and

placing

abdomen.”

Id. at 1497.

transform

what

excessive force.

was

his

right

arm

across

her

Moore’s pregnant status did not

otherwise

de

Id. at 1498-99.

27

minimis

force

into

More
arrestee

generally,
has

a

when

an

preexisting

officer

is

vulnerability

aware
that

that
would

render the person particularly susceptible to injury, he
may not knowingly use force which will cause serious
injury to the arrestee, even if that force would cause
little injury to another individual.

See Rodriguez v.

Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (rejecting
an excessive-force claim because reasonable officer would
not have known of preexisting vulnerability).

In this

case, the Taser use in drive-stun mode did not cause
particular injury because of Andrews’s pregnancy.

While

there is evidence that McQueen did not know how the Taser
would affect Andrews’s unborn child, such uncertainty
does not transform potentially reasonable force into
clearly established excessive force.

Accord Williams v.

Sirmons,

307

Fed.

(11th

(officer

did

not

Appx.
use

354,

362

excessive

force

Cir.

when

2009)

pressing

pregnant woman into the ground with his knee to her back

28

because woman and fetus “w[ere]--miraculously--not harmed
by the deputies’ use of force”).
In summary, Andrews cannot point to “case law with
indistinguishable

facts

clearly

establishing

the

constitutional right [or] a broad statement of principle
within

the

Constitution,

statute,

or

case

clearly establishes a constitutional right.”
F.3d

1291-92.

Therefore,

McQueen

is

law

that

Lewis, 561

entitled

to

qualified immunity unless his conduct was “so far beyond
the hazy border between excessive and acceptable force
that [he] had to know he was violating the Constitution.”
Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir.
2003).
The court cannot find that the Taser use was so far
past

that

border.

The

constitutional

limits

on

drive-stun Taser use and of use of force against pregnant
women are quite murky.

As noted above, at least one

major police department in this region, the City of
Orlando’s, encourages Taser use in similar situations.

29

Chaney, 291 Fed. Appx. at 244.

Furthermore, Andrews’s

case resembles one of the cases decided in Mattos v.
Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc).

In that

case,

Circuit

the

Court

of

Appeals

for

the

Ninth

considered the case of a pregnant woman who had been
subject to drive-stun Taser use after passively resisting
arrest during a traffic stop.

Although the Ninth Circuit

found the Taser use to be excessive force, it held that
the right was not clearly established as of 2004.

Id. at

448; see also Buckley, 292 Fed. Appx. 791 (majority of
panel finding use of force not to be so egregious as to
be clearly established as excessive).

This court will

follow the guidance of the Buckley panel and of the Ninth
Circuit; McQueen’s actions were not so egregious as to
violate clearly established constitutional law.

B.

Liability of Williams

Andrews also brings claims against Lowndes County
Sheriff Williams, grounded in McQueen’s actions.

30

“It is

well

established

officials

are

in

not

this

circuit

liable

that

under

§

supervisory

1983

for

the

unconstitutional acts of their subordinates on the basis
of respondeat superior or vicarious liability.”
v.

Parnell,

193

F.3d

1263,

1269

(11th

Hartley

Cir.

1999).

Instead, a plaintiff must prove that “there is a causal
connection between the actions of a supervising official
and the alleged constitutional deprivation.”

Cottone v.

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
Andrews argues that Williams negligently failed to
train and supervise his deputies, including McQueen.
order

for

a

plaintiff

to

show

an

adequate

In

‘causal

connection’ between a supervisor’s failure to train or
failure to supervise and a constitutional violation, the
plaintiff
“custom

must
or

show

policy

that

the

[that]

failure

resulted

amounted
in

to

a

deliberate

indifference to constitutional rights.” Gonzalez v. Reno,
325 F.3d 1228, 1235 (11th Cir. 2003).

In order to

determine whether a failure to train or to supervise

31

amounts to ‘deliberate indifference,’ the court uses the
analysis for deliberate indifference in the municipalliability context.

Greason v. Kemp, 891 F.2d 829, 837

(11th Cir. 1990).

“[A] plaintiff must present some

evidence that the [supervisor] knew of a need to train
and/or

supervise

in

a

particular

area

and

the

[supervisor] made a deliberate choice not to take any
action.”

Gold v. City of Miami, 151 F.3d 1346, 1350

(11th Cir. 1998); see also Bryan County, Okl. v. Brown,
520 U.S. 397, 407-08 (1997) (“continued adherence to an
approach that they know or should know has failed to
prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their actionthe ‘deliberate indifference’-necessary to trigger ...
liability”)
Even

if

McQueen’s

Taser

use

violated

Andrews’s

constitutional rights, Andrews provides no evidence that
Williams knew or should have known of a need for any
particular policies.

In fact, she offers no evidence of

32

any improper use of force by McQueen, or any other
Lowndes County Deputy, before the incident at issue in
this lawsuit.

Therefore, the court cannot find that

Williams’s approach to training and supervising McQueen
amounted to deliberate indifference.
* * *
Accordingly,
summary

judgment

McQueen
will

be

and

Williams’s

granted.

An

motion

for

appropriate

judgment will be entered in favor of them and against
Andrews.
DONE, this the 30th day of September, 2015.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE