MCQUEEN v. MCNESBY et al
Filing
67
ORDER denying 43 Dft Tatum's Motion for Summary Judgment and granting in part and denying in part 44 Dfts Johnson and O'Reilly's Motion for Summary Judgment. Signed by CHIEF JUDGE M CASEY RODGERS on 9/30/2011. (sps)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
IRA LEE MCQUEEN,
Plaintiff,
v.
Case No. 3:10cv85MCR/EMT
DAVID MORGAN, Sheriff of Escambia
County, Florida, DEPUTY SGT. SHEDRICK
JOHNSON, DEPUTY SHERIFF MICKEY
A. O’REILLY, Jr., DEPUTY SHERIFF
JIMMIE TATUM,
Defendants.
_____________________________________/
ORDER
The plaintiff, Ira Lee McQueen, filed this lawsuit under 42 U.S.C. § 1983 against
David Morgan, Sheriff of Escambia County, Florida (“Sheriff”), in his official capacity, and
Deputy Sergeant Shedrick Johnson (“Johnson”), Deputy Sheriff Mickey A. O’Reilly, Jr.
(“O’Reilly”), and Deputy Sheriff Jimmie Tatum (“Tatum”), in their individual and official
capacities, alleging that the deputy defendants used excessive force against him in the
course of an arrest in violation of his constitutional rights.1 Pending before the court are
two motions for summary judgment – one filed by Tatum (doc. 43) and the other filed by
Johnson and O’Reilly (doc. 44).2 Having considered the motions and responses, the court
finds that Tatum’s motion should denied and that the motion filed by Johnson and O’Reilly
should be granted in part and denied in part.
1
The plaintiff also asserted a state law claim of battery against Johnson, O’Reilly, and Tatum .
2
The court granted the defendants’ m otion to bifurcate discovery, for separate trials, and for
abatem ent of discovery as to the plaintiff’s claim s against the Sheriff in his official capacity. See doc. 35.
Case No. 3:10cv85/MCR/EMT
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BACKGROUND3
The plaintiff is a Special Agent with the State of Florida, Department of Business
and Professional Regulation, Division of Alcoholic Beverages and Tobacco.4 On October
28, 2008, the plaintiff was working undercover at a liquor store with Special Agent Tammy
Richards (“Richards”), investigating the sale of alcoholic beverages to minors. After
Richards informed the plaintiff that such a sale had occurred, the plaintiff entered the
business, identified himself, explained the infraction to the sales clerk, and asked the clerk
if he was armed. The sales clerk responded that he was, and the plaintiff proceeded to
retrieve a handgun from him.5 As he was doing so, a customer who had previously entered
the business observed the plaintiff holding the handgun and the sales clerk standing with
his hands on his head. The customer left the store and called 911 to report the incident.
Specifically, the customer informed the dispatcher that a person, whom she initially
believed to be a friend of the sales clerk, was inside the store with a handgun and that she
was not sure what, if anything, was occurring; she also gave a description of the plaintiff.
In response to the customer’s call, the dispatcher reported a possible armed robbery to the
Escambia County Sheriff’s Office (“ECSO”).
Unaware that the customer had contacted law enforcement, the plaintiff called the
ECSO to run a check on the sales clerk; he was transferred to the records department and
placed on hold. While the plaintiff was on hold, approximately ten to fifteen deputies
arrived on the scene. The plaintiff observed the deputies while he was still in the store and
on the phone with the dispatcher. The plaintiff was aware that the deputies were yelling
at him, but claims that he could neither hear nor decipher their commands from inside the
3
In deciding a m otion for sum m ary judgm ent, the court m ust view the facts in the light m ost favorable
to the non-m oving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). The court therefore
does so here, drawing those facts from the pleadings, depositions, and other evidentiary m aterials on file.
4
At the tim e of the events in question, the plaintiff had been em ployed by the ABT for approxim ately
twenty-five years.
5
After retrieving the weapon, the plaintiff placed it in the right pocket of his jacket.
Case No. 3:10cv85/MCR/EMT
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store.6 Fearing that the deputies would begin shooting at him, the plaintiff kept his hands
in view and moved toward the door while attempting to identify himself by yelling “state
police.”7 As the plaintiff exited the store, he continued yelling “state police;” at the same
time, the deputies demanded that he “show his hands,” “put down the phone,” and “get on
the ground.” The plaintiff began to go down on his knees almost immediately after exiting
the store; as he did so, Johnson, who had observed the plaintiff’s service weapon, which
was secured in a holster on his right hip, shot the plaintiff with a taser,8 causing him to
collapse on the ground.9 Once the plaintiff hit the ground, Johnson tased him again,
causing the plaintiff’s bladder to release, and then four or five deputies jumped on top of
him.10 While the deputies were on top of the plaintiff, Tatum observed the plaintiff’s service
weapon and yelled “gun.” O’Reilly then tased the plaintiff two more times and Tatum
6
Richards, however, was able to understand the deputies’ com m ands, as she testified in her
deposition that the deputies told them to “get down” and that she and the sales clerk com plied with their
com m ands. A video recording from a cam era inside the store confirm s that fact.
7
At this point, at least som e of the deputies had observed the gun in the plaintiff’s pocket and m ost
of them had their weapons drawn.
8
According to the Eleventh Circuit,
[a] “taser” is a non-deadly weapon com m only carried by law enforcem ent.
The taser adm inisters an electric shock to a suspect by shooting two sm all
probes into the suspect's body. The probes are connected to the firing
m echanism via wires. Once fired, the probes lodge under the suspect's skin
and adm inister an electric shock. This type of taser perm its the officer to
incapacitate a suspect from a m odest distance.
Fils v. City of Aventura, 647 F.3d 1272, 1276 n.2 (11th Cir. 2011).
9
Johnson claim s that the plaintiff was not com pliant with the deputies’ com m ands before being tased.
He also testified that he tased the plaintiff only after he observed that the plaintiff was in possession of two
weapons and witnessed the plaintiff’s hands m ove in a direction that could have been construed as reaching
for one of the weapons. Sim ilarly, Deputy Sergeant Richard Bailey testified in his deposition that he observed
one of the plaintiff’s arm s m ove in a downward direction when the plaintiff was going to his knees, and an
underage person working undercover with the plaintiff testified that she observed a sim ilar m ovem ent. A video
taken by a bystander’s on her cell phone reveals that, upon exiting the store, the plaintiff’s right hand was
grasping a cell phone and holding it to his ear, but the location of his left arm is not apparent.
10
Although the plaintiff testified in his deposition that his hands were out in front of him , he
acknowledged in his response to the defendants’ m otion that he fell to the ground with his hands beneath him .
Johnson testified that he tased the plaintiff again after he fell to the ground because he noticed the plaintiff
m oving his hands.
Case No. 3:10cv85/MCR/EMT
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released his K-9, which the plaintiff claims attacked him for ten to fifteen seconds while the
deputies remained on top of him, biting him between four and seven times.11 The plaintiff
maintains that he was incapacitated after the initial tasing and unable to comply with the
deputies’ commands. Once the plaintiff was restrained in handcuffs, one of the deputies
retrieved his identification from his pocket and discovered that he was a law enforcement
officer. The plaintiff claims that the deputies nevertheless failed to immediately release him
and left him lying on the ground in his urine with his hands handcuffed behind his back.
When he ultimately was released, the plaintiff was transported to Sacred Heart Hospital
for treatment of the injuries he received during the incident.
DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[T]he plain language of Rule 56(a) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is “material” if it might
affect the outcome of the case under the governing law, and it is “genuine” if the record
taken as a whole could lead a rational fact finder to find for the non-moving party. Id.
Summary judgment is not appropriate “if a reasonable fact finder evaluating the evidence
11
The num ber of tim es the plaintiff was tased and the sequence in which the tasing occurred are in
dispute. In his response to the defendants’ m otion, the plaintiff contends that he was tased at least four tim es
(twice by Johnson and twice by O’Reilly). The defendants, on the other hand, insist that the plaintiff was tased
only three tim es (twice by Johnson and once by O’Reilly). In his deposition, the plaintiff testified to three
tasings – one as he was going to his knees, one as he was about to hit the ground, and another after he hit
the ground.
Case No. 3:10cv85/MCR/EMT
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could draw more than one inference from the facts, and if that inference introduces a
genuine issue of material fact.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th
Cir. 1995). As stated, when assessing the sufficiency of the evidence, the court must view
all the evidence, and all factual inferences reasonably drawn therefrom, in the light most
favorable to the nonmoving party. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,
918 (11th Cir. 1993). Whenever the nonmoving party has presented “sufficient, competent
evidence . . . to support [his] version of the disputed facts,” the court will resolve disputes
in his favor. Pace v. Copobianco, 283 F.3d 1275, 1276 (11th Cir. 2002). A mere scintilla
of evidence in support of the nonmoving party’s position, however, will not suffice to
demonstrate a genuine issue of material fact and thereby preclude summary judgment.
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
B.
Excessive Force
According to 42 U.S.C. § 1983,
[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
In this case, the plaintiff claims that the deputies violated his Fourth Amendment right to
be free from unreasonable seizure when they repeatedly tased him and released a K-9,
all while he either was attempting to comply with their commands or was incapacitated.12
The Eleventh Circuit has recognized that, in making an arrest, law enforcement officers are
allowed to use whatever force is “necessary in the situation at hand.” Fils, 647 F.3d at
1288 (internal marks omitted). An officer’s use of force will be considered excessive,
however, if it was “‘objectively [un]reasonable in light of the facts and circumstances
12
W here an excessive force claim “arises out of an arrest or investigatory stop of a free citizen, it is
m ost properly characterized as one invoking the protections of the Fourth Am endm ent, which guarantees
citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham
v. Connor, 490 U.S. 386, 395 (1989).
Case No. 3:10cv85/MCR/EMT
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confronting’ the officer.” Id. at 1287 (quoting Graham, 490 U.S. at 397). “Reasonableness
is ‘judged from the perspective of the reasonable officer on the scene’ without the benefit
of hindsight.” Id. (quoting Graham, 490 U.S. at 396). “This standard ‘allow[s] for the fact
that police officers are often forced to make split-second judgment – in circumstances that
are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in
a particular situation.’” Id. (quoting Graham, 490 U.S. at 396-97). When deciding a motion
for summary judgment, the court “cannot simply accept the officer’s subjective version of
events, but rather must reconstruct the event in the light most favorable to the non-moving
party, and determine whether the officer’s use of force was excessive under those
circumstances.” Id. at 1288. “When determining whether the force used to make an arrest
was reasonable for purposes of the Fourth Amendment, [the] court must carefully balance
the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests.” Id. (internal marks omitted). The court
does so by considering (1) the severity of the crime of which the individual is suspected;
(2) whether the individual posed an immediate threat to the safety of the officers or others;
and (3) whether the individual actively resisted arrest or attempted to flee. Id.
Viewed in the light most favorable to the plaintiff, the undisputed facts of this case
demonstrate that the plaintiff was suspected of a serious crime and did not comply with the
deputies’ commands while inside the store. Although there was no indication that the
plaintiff had threatened or harmed anyone at the time he exited the store, considering that
Richards and the sales clerk complied with the deputies’ commands, no jury could
reasonably find other than that the deputies reasonably believed the plaintiff heard their
commands but was resisting arrest in failing to comply with them as he exited the store.
The court therefore finds that the first tasing was reasonable under the circumstances as
a matter of law.13
13
Johnson has asserted the defense of qualified im m unity. Because the court has found the first
tasing incident reasonable under the circum stances, the court need not consider whether Johnson is entitled
to qualified im m unity for his actions in that regard. See Fils, 647 F.3d at 1287 (noting that the first elem ent
of a qualified im m unity defense is the violation of a constitutional right).
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The plaintiff further claims that he was incapacitated by the initial tasing and
thereafter unable to comply with the deputies’ commands. According to the Eleventh
Circuit, “unprovoked force against a non-hostile and non-violent suspect who has not
disobeyed instructions violates that suspect’s rights under the Fourth Amendment.” Id. at
1289. In other words, although the use of tasers and other weapons may be appropriate
where an officer reasonably believes the suspect is violent, hostile, belligerent, and/or
uncooperative, tasing a suspect who is not violent, does not disobey orders or resist arrest,
and poses no risk to the defendants or anyone else violates the suspect’s Fourth
Amendment Rights. Id. at 1289-90; see Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th
Cir. 2008) (noting that the right of a non-resisting arrestee to be free from the gratuitous
use of force is well established in the Eleventh Circuit); Danley v. Allen, 540 F.3d 1298,
1309 (11th Cir. 2008) (holding that “[w]hen [officers] continue to use substantial force
against [an arrestee] who has clearly stopped resisting – whether because he has decided
to become compliant, he has been subdued, or he is otherwise incapacitated – that use
of force is excessive”); Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002) (noting
that, “[b]y 1998, [Eleventh Circuit] precedent clearly established that government officials
may not use gratuitous force against a [suspect] who has been already subdued or . . .
incapacitated”); Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 927 (11th Cir. 2000)
(denying qualified immunity where officer released K-9 on suspected burglar who put his
hands in the air and followed directions to drop to the ground). Given the plaintiff’s
statement that he was incapacitated after the initial tasing and the absence of any
evidence that the plaintiff was violent, resisting arrest, or disobeying commands, a jury
reasonably could find that the use of any force after the initial tasing was excessive. The
court thus finds that summary judgment is appropriate as to the plaintiff’s claim of
excessive force against Johnson based on the initial tasing, but that a genuine issue of
material fact exists as to the remainder of the plaintiff’s claims of excessive force.
C.
Qualified Immunity
In addition to arguing that they did not use excessive force against the plaintiff, the
defendants maintain that they are entitled to summary judgment based on qualified
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immunity. According to the Eleventh Circuit, a claim of qualified immunity is to be analyzed
under a two-part test. First, the court must determine whether the plaintiff has offered
sufficient evidence to establish a constitutional violation. Fils, 647 F.3d at 1287 (citing
Saucier v. Katz, 533 U.S. 194, 200-02 (2001)). In the event he has, the court must
determine whether the constitutional right was clearly established at the time of the alleged
violation “such that a reasonable officer should have known that his conduct violated the
plaintiff’s constitutional rights.”14 Id. For the reasons set forth above, the court has
determined that the plaintiff has demonstrated a violation of his right to be free from the
use of excessive force after the initial tasing; the plaintiff, therefore, has satisfied the first
prong of the test with regard to each incident in which force was used after that point. As
for the second prong, the Eleventh Circuit has held that, to deny qualified immunity, the law
in effect at the time "must have been sufficiently clear to put [the defendants] on notice that
their conduct violated [the plaintiff's] Fourth Amendment rights." Id. at 1291. A defendant
is on notice that his conduct is unconstitutional if the relevant case law at the time of the
alleged violation would have made it clear to a reasonable officer that the amount of force
used was excessive. Id. It is not necessary that the case law demonstrate factual
circumstances “‘materially similar’” to the officer’s conduct; rather, an officer may be put
on notice that his conduct is unconstitutional even in “‘novel factual circumstances.’" Id.
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). A defendant also is on notice that his
conduct is unconstitutional if the conduct “lies so obviously at the very core of what the
Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to
[the officer], notwithstanding the lack of fact-specific case law." Id. (internal marks
omitted). "This method—termed ‘obvious clarity’—is a narrow exception to the normal rule
that only case law and specific factual scenarios can clearly establish a violation" and
applies where the officer’s conduct is so outrageous that it clearly goes beyond the border
between excessive and acceptable force. Id. at 1291-92 (internal marks omitted). The
14
The Eleventh Circuit has em phasized that the two steps do not have to be analyzed sequentially
and that, if the law was not clearly established, the court need not decide whether the defendants violated the
plaintiff’s constitutional rights. See id.
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court finds that a genuine issue of material facts exists as to whether the defendants
should have known, based on existing law, that their use of force against the plaintiff after
the initial tasing – when the plaintiff was incapacitated and not resisting arrest – violated
the plaintiff's Fourth Amendment rights.
The court thus finds summary judgment
inappropriate as to the defendants’ claims of qualified immunity with respect to each
incident of force after the initial tasing. See Williams v. Scott, No. 10-12075, 2011 WL
2672534, at *4 (11th Cir. July 8, 2011) (affirming district court’s denial of summary
judgment based on qualified immunity where a genuine issue of material fact existed,
noting that the trier of fact had to “decide whom to believe and what actually transpired”).15
CONCLUSION
Accordingly, it is hereby ORDERED that Tatum’s motion for summary judgment
(doc. 43) is DENIED and that the motion for summary judgment filed by Johnson and
O’Reilly (doc. 44) is GRANTED in part and DENIED in part.
DONE AND ORDERED this 30th day of September, 2011.
s/
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
15
If the facts at trial do not bear out the plaintiff’s version of events and dem onstrate that he, in fact,
failed to com ply with the officers’ com m ands and was resisting arrest, the court will revisit the issue of qualified
im m unity upon m otion of the defendants.
Case No. 3:10cv85/MCR/EMT
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