Andrews et al v. Williams et al
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
JOHN WILLIAMS, in his
individual capacity, and
JEROME McQUEEN, in his
CIVIL ACTION NO.
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
She alleges that McQueen violated her
adequately train and supervise McQueen to prevent use of
pursuant to 28 U.S.C. §§ 1331 (federal question) and 1343
The case is now before the court on McQueen and
motion for summary judgment.
For the reasons
discussed below, the motion will be granted.
“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.
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.”
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).
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.
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
On the day of her tasing, Andrews’s son called
suspected one of his classmates of taking it.
to the school to try to sort out the situation.
Andrews went to the administrative office of the
The assistant principal and McQueen, who was
serving as a Lowndes County Sheriff’s Deputy and a School
belongings and were able to find a cheaper and less
sophisticated mobile phone.
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.
The two moved into an inner
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
See McQueen Dep. Defs.’ Ex. B (Doc. No.
46-2) at 93:2-10.
Andrews walked out of the inner office and into the
principal yelled to McQueen that he should stop her from
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.
was standing behind her with his arm extended over her,
holding the door shut with his hand.
He demanded that
Electronic Compliance Device, in drive-stun mode, to
“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
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.
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.
causes neuromuscular incapacitation. In other words, the
muscles and nerves are entirely occupied with completing
If an individual is struggling with the
police or otherwise presents a danger, the neuromuscular
individual will stop resisting and can be secured.
mode also causes “intense [pain], felt throughout the
body.” Brave Expert Report (Doc. No. 47-5) at 25.
In drive-stun mode, the probes are taken off
electrodes are able to complete a circuit through the
air, showing an arc of lightning-like electricity.
Brave Rep. Figure 6.
When touched to a person’s body,
the circuit is completed through the top layer of skin
Andrews presents anecdotal evidence that a
muscles to contract, incapacitating her, while McQueen’s
expert opines that drive-stun mode causes only pain and
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.
expert Michael Brave provides evidence that drive-stun
mode does not cause lasting injury, beyond temporary burn
Finally, three-point mode is the name for when an
officer uses a Taser in both probe mode and drive-stun
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.
sexual-harassment complaint or whether McQueen or his
supervisor Williams would have any reason to know about
the complaint or the termination.
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
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
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
encompasses the plain right to be free from the use of
excessive force in the course of an arrest.”).
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.
performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct
constitutional rights of which a reasonable person would
Harlow v. Fitzgerald, 457 U.S. 800, 818
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
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
Callahan, 555 U.S. 223, 236 (2009).
The court will begin with the ‘clearly established’
qualified immunity purposes in one of three ways: (1)
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
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.
a “broad statement of principle within the ... case law
that clearly establishes” that such use of force would
have been a constitutional violation.
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.
2008) (per curiam).
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,
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
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
probable cause to arrest her because she stated that she
intended to return the flip phone when her son’s phone
proposition that an intent to return the phone would mean
that Andrews lacked the requisite intent to be guilty of
theft under Alabama law.
See 1975 Ala. Code §§ 13A-8-
However, the court need not reach
the underlying question of Alabama criminal law.
Andrews lacked the requisite intent and McQueen heard her
probable cause to arrest her.
“[A] police officer need
not credit everything a suspect tells him.” Rodriguez v.
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
Andrews acknowledges that there is no
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).
argues that “general rules of law from ... earlier case
circumstances,” id., and that the Taser use was “so
violated,” Lewis, 561 F.3d at 1292.
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
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
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’
Graham v. Connor, 490 U.S. 386, 396 (1989)
(internal quotations omitted)).
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).
factors include “the severity of the crime at issue,
whether the suspect actively resisted arrest.” Graham,
490 U.S. at 396; accord Hoyt v. Cooks, 672 F.3d 972, 97879 (11th Cir. 2012).
circumstances of previous case law.
There are several
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).
unprovoked force against a non-hostile and non-violent
suspect who has not disobeyed instructions violates that
suspect’s rights under the Fourth Amendment.”
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
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
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
spitting blood at an officer, Zivojinovich v. Barner, 525
F.3d 1059, 1073 (11th Cir. 2008).
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.
Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004).
minor, such as a broken tag light, Draper, 369 F.3d at
1272, or trespassing, Zivojinovich, 525 F.3d at 1063.
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
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.
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.
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
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
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
instructions and was emotional, he was able to hold the
door shut and keep her from leaving the office.
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.
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
However, there is a factual dispute as to
whether she was actively or passively resisting.
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
McQueen, on the other hand, testified that
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
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).
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
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.
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
suspect could just as easily punch, kick, or otherwise
injure an officer during and after drive-stun Taser use
Rather than allowing distance and creating time for
an officer to secure a suspect, drive-stun Taser use is
punishment and part threat.
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
Such techniques have not been addressed by the
Eleventh Circuit or the Supreme Court.
court finds pain compliance profoundly troubling as a
In many excessive-force cases, the suspect was
injured incident to another police objective, such as
For a pain-compliance technique, the pain is
the goal of the officer’s action.
Such techniques may be
an important option in some law-enforcement situations,
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
purpose of causing harm”).
Despite this court’s misgivings about pain-compliance
techniques, there is no case law on the subject.
there clear case law concerning drive-stun-only Taser use
or appropriate responses to passive resistance when no
extreme than those instances which the Eleventh Circuit
has found to be constitutionally excessive, and in some
Eleventh Circuit has endorsed more serious Taser use.
But see Brown v. City of Golden Valley, 574 F.3d 491 (8th
Cir. 2009) (drive-stun Taser use against misdemeanant who
Haddock, 292 Fed. Appx. 791 (11th Cir. 2008).
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
After several attempts to get Buckley to stand
up, the sheriff’s deputy warned him that he would be
The deputy then used the taser,
in drive-stun mode, three times before another deputy
arrived and Buckley was escorted to the police car.
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”
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
See 11th Cir. R. 36-2.
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.
even if it were binding, the use of force against Andrews
was more justified and less serious than that against
pain-compliance techniques, drive-stun Taser use, and
Nor did McQueen have clear guidance from the case law
based on the fact that Andrews was visibly pregnant.
concerning use of force against a pregnant woman.
Moore v. Gwinnett Cty., 967 F.2d 1495 (11th Cir. 1992),
a woman who was eight-months pregnant refused to comply
During the course of the arrest, the officer
“‘grabbed’ her with both of his arms--taking her left arm
Id. at 1497.
Moore’s pregnant status did not
Id. at 1498-99.
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).
case, the Taser use in drive-stun mode did not cause
particular injury because of Andrews’s pregnancy.
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.
pregnant woman into the ground with his knee to her back
because woman and fetus “w[ere]--miraculously--not harmed
by the deputies’ use of force”).
In summary, Andrews cannot point to “case law with
constitutional right [or] a broad statement of principle
clearly establishes a constitutional right.”
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.
The court cannot find that the Taser use was so far
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.
Chaney, 291 Fed. Appx. at 244.
case resembles one of the cases decided in Mattos v.
Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc).
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.
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.
Liability of Williams
Andrews also brings claims against Lowndes County
Sheriff Williams, grounded in McQueen’s actions.
unconstitutional acts of their subordinates on the basis
of respondeat superior or vicarious liability.”
Instead, a plaintiff must prove that “there is a causal
connection between the actions of a supervising official
and the alleged constitutional deprivation.”
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
Andrews argues that Williams negligently failed to
train and supervise his deputies, including McQueen.
connection’ between a supervisor’s failure to train or
failure to supervise and a constitutional violation, the
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
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
[supervisor] made a deliberate choice not to take any
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 ...
constitutional rights, Andrews provides no evidence that
Williams knew or should have known of a need for any
In fact, she offers no evidence of
any improper use of force by McQueen, or any other
Lowndes County Deputy, before the incident at issue in
Therefore, the court cannot find that
Williams’s approach to training and supervising McQueen
amounted to deliberate indifference.
* * *
judgment will be entered in favor of them and against
DONE, this the 30th day of September, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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