STEEN v. CITY OF PENSACOLA et al
Filing
67
ORDER. Chief Mathis's motion to dismiss count III (doc. 22 ) is GRANTED to the extent that it is based on qualified immunity. Signed by SENIOR JUDGE ROGER VINSON on August 22, 2011. (pmc)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
CASSANDRA STEEN, Individually
and as Personal Representative of
the Estate of Victor Damarius Steen,
Plaintiff,
v.
Case No.: 3:11-cv-142-RV/CJK
CITY OF PENSACOLA, a political
subdivision of the State of Florida;
JOHN W. MATHIS, in his individual
capacity as Pensacola Police Dept.
Chief; JERALD L. ARD, in his
individual capacity as a Pensacola
Police Officer,
Defendants.
___________________________/
ORDER
This case stems from the tragic and unfortunate death of 17 year-old Victor
Demarius Steen, who, in the early morning hours of October 3, 2009, was killed
after being allegedly “tased” and then struck by a City of Pensacola marked police
car driven by Police Officer Jerald Ard. The decedent’s mother, Cassandra Steen,
has brought this excessive force/wrongful death case against Officer Ard; the City
of Pensacola; and John W. Mathis, the latter of whom has been sued, in Count III
of the second amended complaint, “in his individual capacity as Chief of Police of
the Pensacola Police Department.”
On May 11, 2011, Chief Mathis filed a motion to dismiss Count III pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure (doc. 22). He made several
interrelated and overlapping arguments in this motion. First, Chief Mathis argued
that being sued in his capacity as “Chief of Police” made him a “redundant party”
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since the plaintiff had also sued the City of Pensacola. He next argued that without
“personal participation or active direct involvement by Mathis in the events leading
to the unfortunate death of Mr. Steen” (and the complaint made no such claims),
he could not be liable since, under Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009), “individual supervisory liability” is no longer a viable
theory of recovery. Lastly and relatedly, in the final paragraph of his motion, Chief
Mathis argued that he was entitled to “the benefit of qualified immunity from suit.”
The plaintiff filed a response in opposition. After initial review and consideration of
the pleadings, and pursuant to order of June 6, 2011, I invited both parties to brief
the qualified immunity issue in greater detail, which they did by filing supplemental
memoranda. Oral argument was held on July 13, 2011.1
I. Background
The following facts are taken primarily from the plaintiff’s complaint, and
they are assumed true for purposes of this order. Some of these facts are also
taken from the video recording (DVD) of the underlying incident, as recorded by
Officer Ard’s dashboard-mounted camera.2
1
Chief Mathis originally raised the qualified immunity defense in his motion
to dismiss (as noted), but it was not actually briefed. Thus, I stated in my June 6th
order that it appeared the defense had been asserted “almost as an afterthought.”
In his supplemental filing, Chief Mathis responded that qualified immunity was not
intended to be “‘an afterthought’ but as a primary focus” of his motion to dismiss.
Accordingly, the issue was discussed more extensively in the supplemental memos
and during the oral argument.
2
Because the DVD was attached to the complaint as an exhibit, the plaintiff
asserts --- and Chief Mathis does not dispute --- that it “may be considered by the
Court in the Motion to Dismiss proceedings” (doc. 52); see also, e.g., Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (in considering a motion
to dismiss “the court limits its consideration to the pleadings and exhibits attached
thereto”). I thus can (and will) consider the video in deciding the pending motion to
dismiss.
Case No.: 3:11-cv-142-RV/CJK
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On October 3, 2009, Officer Ard was on routine patrol in Pensacola, Florida.
At approximately 1:50 a.m., he was driving a marked police cruiser westbound on
Cervantes Street --- a two-way, four-lane street with pedestrian sidewalks on both
sides --- when he saw Steen riding a bicycle on the sidewalk, also westbound on
Cervantes Street. Officer Ard activated his flashing overhead lights and began to
pursue Steen. He can be heard on the video recording ordering Steen to “stop the
bike” three times within 20 seconds of activating his lights, but Steen sped away.3
Officer Ard followed very closely behind Steen, “revving” his engine, “screeching”
his tires, crossing over the wrong side of the street, and driving onto the sidewalk.
At one point, he was driving his vehicle alongside Steen’s bicycle (in the wrong
lane of traffic). Fortunately, the streets were not busy at that early morning hour.
During the chase (which lasted about one minute), Officer Ard and Steen passed
only one other vehicle, although other vehicles could be seen further up the road.
Officer Ard was armed with an electronic taser device designed to transmit
up to 50,000 volts of electricity into the body of its intended target. Although it
does not appear on the video, the plaintiff contends that “[w]ithout warning, and
while traveling directly beside Steen, Ard pulled the trigger of his Taser and fired
two high voltage darts at Steen, shocking Steen.” Within seconds thereafter, Steen
lost control of his bicycle and crashed in a vacant bank parking lot. Officer Ard then
made a “sudden sharp turn into the bank parking lot,” and, “[w]hile Steen was still
on the ground inside of the bank parking lot, Defendant Ard accelerated his vehicle
3
The complaint is silent as to what crime, if any, Steen was suspected of at
that time. The plaintiff’s attorney thus stated during oral argument: “There was no
allegation of a crime in this case. What we allege in our complaint, which Your
Honor has to take as true, is that Victor Steen was riding his bicycle at that time
and there was no crime in this situation.” But, in her supplemental memorandum of
law, the plaintiff recognizes that Steen was, if nothing else, “apparently suspected
of operating a bicycle at night without proper lighting” (doc. 49 at 8).
Case No.: 3:11-cv-142-RV/CJK
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and ran over Steen with his patrol car.” The plaintiff alleges in her complaint that
this was not an accident and that Officer Ard “deliberately and intentionally used
his vehicle to ram into Steen.” Steen sustained multiple injuries to his face, head,
and body; and he died as the result of his injuries.
The plaintiff later filed this case against Officer Ard, the City of Pensacola,
and Chief Mathis, asserting federal and state law claims. The claim against Chief
Mathis has been brought pursuant to Title 42, United States Code, Section1983,
which subjects to liability “[e]very person who, under color of any [state law],”
violates a person’s rights granted by the Constitution or federal law. The plaintiff
alleges that “Mathis’ failure to adopt and implement adequate policies regarding his
officers’ use of force, including, but not limited to the use of Tasers, resulted in the
blatant use of excessive force by Mathis’ police officer, Ard, against Victor Steen,”
in violation of Steen’s rights under the Fourth and Fourteenth Amendments. Thus,
the underlying essence of this claim is not that Chief Mathis personally subjected
Steen to excessive and fatal force, but rather that his policies (or the lack thereof)
did. The plaintiff makes essentially the same claim against the City of Pensacola.
As already noted, Chief Mathis has moved to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, arguing that, since the City is also named as a
defendant, it is “redundant” for him to be sued in his capacity as police chief; that
individual supervisory liability did not survive the Supreme Court’s decision in Iqbal,
supra; and that even if individual supervisory liability survived, he is entitled to the
benefit of qualified immunity.
II. Discussion
A. Redundant Party
Chief Mathis argues that he is a “redundant party” because the plaintiff “has
also sued . . . the City of Pensacola.” If he were being sued in his official capacity,
Chief Mathis would be correct and dismissal would be appropriate. Busby v. City of
Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (affirming directed verdict in favor of
Case No.: 3:11-cv-142-RV/CJK
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police officers sued in their official capacities where “the City of Orlando remained
as a defendant”; explaining that because “suits against a municipal officer sued in
his official capacity and direct suits against municipalities are functionally
equivalent . . . to keep both the City and the officers sued in their official capacity
as defendants in this case would have been redundant”). However, the complaint
makes clear that Chief Mathis is sued “in his individual capacity as Chief of Police
of the Pensacola Police Department.” Although perhaps inartful --- Mathis refers to
the foregoing as an “oxymoronic and hybrid party description” --- the fact remains
that the complaint expressly states (in both the caption and body) that he is being
sued “in his individual capacity” (emphasis added).
Typically, in this type of Section 1983 case, the claim against an individual
officer in his official capacity is duplicative of a claim against the municipality. But,
the law permits an individual capacity suit against an individual officer, and, at the
same time, an official capacity suit against a city or municipality, even if they arise
out of the same claims and allegations. Atheists of Florida, Inc. v. City of Lakeland,
Fla, --- F. Supp. 2d ---, 2011 WL 899661 (M.D. Fla. Mar. 15, 2011), is illustrative.
The plaintiff there, as here, brought the same claims against the city and one of its
officers, the latter of whom was sued in both his official and individual capacities.
In deciding the defendant’s motion to dismiss, the district court stated:
because Plaintiffs assert identical claims against the City
itself, those claims against Defendant Fields in his official
capacity are “redundant” and must be dismissed. Busby
v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
[However], insofar as Plaintiffs seek a remedy from
Defendant Fields himself, the [individual capacity claim]
provides the proper avenue for the pursuit of such relief.
E.g. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358,
116 L. Ed. 2d 301 (1991).
Id. at *12. In short, the plaintiff may pursue the same claims against the City of
Pensacola (official claim) and Chief Mathis (individual claim). The real question is
Case No.: 3:11-cv-142-RV/CJK
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whether, following the Supreme Court’s Iqbal decision in 2009, there is still such
thing as a claim for individual supervisory liability under the factual circumstances
in this case and, if so, whether Chief Mathis is entitled to the defense of qualified
immunity on the facts presented.
B. Individual Supervisory Liability After Ashcroft v. Iqbal
Based on the plaintiff’s briefing and pleadings, the substantial amount of
time spent discussing it during oral argument, and the language of Count III itself,
the gravamen of the plaintiff’s claim against Chief Mathis is that he failed his “duty
to create, adopt, and implement rules, regulations, practices and procedures which
clearly direct police officers as to the appropriate use of Tasers” (emphasis added);
his failure to do so, the plaintiff maintains, constituted a “de facto” custom, policy
and practice that led to “the blatant use of excessive force” by Officer Ard, which
included “two high voltage [taser] darts” that “intruded upon Steen’s physiological
functions and physical integrity, and caused Steen extreme pain and death.”4 The
4
In Count III, the plaintiff focuses her attention on Chief Mathis’s “taser
policy” (or lack thereof); indeed, she references taser usage more than a dozen
times in that count. Her attorney briefly suggested at oral argument that Chief
Mathis’s custom and policy also led Officer Ard to use his vehicle to “deliberately
and intentionally . . . ram” Steen’s bicycle, as has been alleged against Officer Ard
in Count I. However, the plaintiff does not assert this claim against Chief Mathis in
the complaint --- at least not expressly (although she does claim that he failed in his
duty to implement adequate use-of-force policies, “including, but not limited to the
use of Tasers”) (emphasis added). Without pleading facts to support such a claim,
any suggestion that Chief Mathis had a policy (de facto or otherwise) of allowing
his officers to use their vehicles to intentionally “ram” people on bicycles and then
deliberately run them over is simply implausible. Cf. Brown v. Hillsborough County
Sheriff’s Office, 342 Fed. Appx. 552, 558 (11th Cir. 2009) (holding that complaint
was properly dismissed, inter alia, where “Brown did not plead facts from which it
could plausibly be inferred that the Sheriff’s Office had a custom or policy that was
the moving force behind Pratt’s sexual assault of Brown”). Therefore, the question
whether Chief Mathis is liable for Steen’s injuries and death will focus solely on his
taser policy, or the lack of one.
Case No.: 3:11-cv-142-RV/CJK
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claim against Chief Mathis, as noted, is premised on a theory of supervisor liability,
since the allegation is not that Chief Mathis used excessive force (he was not even
there), but that his policies brought about Officer Ard’s use of excessive force. As
will be shown, individual supervisory liability in Section 1983 cases is muddled and
unsettled.
It is well established in the Eleventh Circuit that “supervisory officials are not
liable under § 1983 for the unconstitutional acts of their subordinates ‘on the basis
of respondeat superior or vicarious liability.’” Hartley v. Parnell, 193 F.3d 1263,
1269 (11th Cir. 1999); accord Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396
(11th Cir. 1994)). Rather, the “standard by which a supervisor is held liable in her
individual capacity for the actions of a subordinate is extremely rigorous.” Mann v.
Taser Int’l. Inc., 588 F.3d 1291, 1308 (11th Cir. 2009). Supervisors will be held
individually liable only if (1) the supervisor personally participates in the underlying
violation; or (2) there is a causal connection between the actions of the supervisor
and that violation. Id. Traditionally, a causal connection was established when (1) 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; (2) the supervisor’s custom
and policy results in deliberate indifference to constitutional rights; or (3) the facts
support an inference that the supervisor directed his subordinates to act unlawfully
or knew that the subordinates would act unlawfully, and yet he failed to stop them
from doing so. See, e.g., Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
However, the Supreme Court fomented disagreement on the availability of
individual supervisory liability when it issued its split 5-4 decision in Iqbal, supra.
The majority wrote: “In a § 1983 suit . . . --- where masters do not answer for the
torts of their servants --- the term ‘supervisory liability’ is a misnomer.” See supra
129 S. Ct. 1949. The Court further wrote that “purpose rather than knowledge is
required” for liability to attach, and that “each Government official, his or her title
Case No.: 3:11-cv-142-RV/CJK
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notwithstanding, is only liable for his or her own misconduct.” See id. (emphasis
added). The four dissenting Justices summed up the majority’s opinion as follows:
“Lest there be any mistake, in these words the majority is not narrowing the scope
of supervisory liability; it is eliminating . . . supervisory liability entirely.” See id. at
1957 (Souter, J., dissenting).
As the Tenth Circuit Court of Appeals has observed, these pronouncements
in Iqbal have “generated significant debate about the continuing vitality and scope
of supervisory liability.” Lewis v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010);
accord Dodds v. Richardson, 614 F.3d 1185, 1198-99 (10th Cir. 2010) (noting the
differences of opinion among academics, and stating that “[m]uch has been made
about this aspect of Iqbal, but consensus as to its meaning remains elusive”); see
also id. at 1209 (Iqbal “muddied” the waters of supervisory liability) (Tymkovich,
J., concurring). The courts have thus arrived at differing interpretations following
the decision in Iqbal. See William N. Evans, Comment, Supervisory Liability After
Iqbal: Decoupling Bivens From Section 1983, 77 U. Chi. L. Rev. 1401, 1402
(2010) (noting split among circuits regarding Iqbal’s impact on supervisory liability
claims). It thus “remains to be seen whether the dissent is correct” that the Iqbal
majority, in fact, eliminated individual supervisory liability. Ivan E. Bodensteiner,
Congress Needs to Repair the Court’s Damage to § 1983, 16 Tex. J. C.L. & C.R.
29, 53 (2010).
Despite uncertainty among academics and in some circuits, in the Eleventh
Circuit, supervisory liability appears to have survived Iqbal --- at least for the time
being. See, e.g., Harper v. Lawrence County, Ala., 592 F.3d 1227, 1236 (11th Cir.
2010) (referencing without discussion the same, pre-Iqbal standard for supervisory
liability); Gross v. White, 340 Fed. Appx. 527, 531 (11th Cir. 2009) (same). While
the Eleventh Circuit has recognized that, “in a § 1983 action, a plaintiff must [now]
plead that each Government-official defendant, through the official’s own individual
Case No.: 3:11-cv-142-RV/CJK
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actions, has violated the Constitution,” [see Keating v. City of Miami, 598 F.3d
753, 763 (11th Cir. 2010) (emphasis added) (quoting Iqbal, supra, 129 S. Ct. at
1948)], it appears that the court continues to allow supervisory liability when a
causal connection is established (even when no “individual actions” are present),
for example, when the supervisor merely knows of a constitutional violation, has
the authority to stop it, and fails to do so. Id. at 765.
The plaintiff alleges in Count III that Chief Mathis “knew that his officers
were using [tasers]” in such a way that posed “a serious risk of personal injury,”
and, in particular, that he was “allowing his police officers to use excessive and
unreasonable force by . . . fir[ing] Tasers into moving vehicles or at persons in
operation of moving vehicles, in reckless disregard and deliberate indifference to
the health and welfare of suspects [including Steen].” This would appear to be an
allegation of “knowledge,” not “purpose,” and would therefore seem to fall within
the Iqbal supervisory liability limitation. However, despite uncertainty concerning
the viability of individual supervisory liability in some circuits and academia, this
allegation would appear sufficient to state a claim under the “causal connection”
prong of individual supervisory liability and survive dismissal under Rule 12(b)(6) in
the Eleventh Circuit. See American Federation of Labor & Cong. of Indus. Orgs. v.
City of Miami, 637 F.3d 1178, 1190 (11th Cir. 2011) (“A causal connection can be
established if a supervisor has the ability to prevent or stop a known constitutional
violation by exercising his supervisory authority and he fails to do so.”).
Assuming there is possible supervisory liability on this claim, the question is
thus winnowed down to whether Chief Mathis is entitled to qualified immunity.
C. Qualified Immunity
“The qualified immunity defense ‘shields government agents from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’” Behrens
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v. Pelletier, 516 U.S. 299, 305-06, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996)
(brackets and citation omitted). The purpose of the defense is to allow government
officials to carry out their discretionary duties without fear of personal liability, and
it protects from litigation “all but the plainly incompetent or one who is knowingly
violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
Since qualified immunity is a defense from suit, not mere liability, “it is important
for a court to ascertain the validity of a qualified immunity defense as early in the
lawsuit as possible.” Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th
Cir. 2003).
“In order to receive qualified immunity, the public official must first prove
that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Lee, supra, 284 F.3d at 1194 (citation omitted).
It is unchallenged in this case that Officer Ard and Chief Mathis were acting within
their “discretionary authority” when the alleged violation took place.
Once the government official shows that he was acting within the scope of
his discretionary authority when the alleged wrongful act(s) occurred, the burden
then shifts to the plaintiff to show that qualified immunity is not appropriate. See
Lee, supra, 284 F.3d at 1194. The Supreme Court has set forth a two-prong test
for determining whether qualified immunity applies. Pearson v. Callahan, 555 U.S.
223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). The first prong is whether the
facts alleged make out a violation of a constitutional right, and the second prong is
whether that right was “clearly established” at the time of the defendant’s alleged
misconduct. See id. at 232. “This second inquiry ‘must be undertaken in light of
the specific context of the case, not as a broad general proposition.’” Lee, supra,
284 F.3d at 1194 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001)). Satisfying both these prongs is required to overcome
the qualified immunity defense.
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Before undertaking the above analysis, I must make clear what and whose
conduct is at issue. The issue of whether Chief Mathis has supervisory liability is
necessarily dependent on there being an underlying Section 1983 violation in the
first instance. Thus, if the underlying Section 1983 claim fails, a fortiori, so does
the supervisory liability claim against Chief Mathis. See, e.g., Mann, supra, 588
F.3d at 1308 (supervisory liability claim must fail “because the underlying Section
1983 claims fail”); Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005) (where
the plaintiff’s rights were not violated, “Plaintiff cannot maintain a § 1983 action
for supervisory liability”). Therefore, the relevant question is whether Officer Ard’s
use of his taser on the facts of this case was a violation of Steen’s constitutional
rights and, if so, whether the right was “clearly established” on October 3, 2009.5
1.
Was there a constitutional violation?
The plaintiff maintains that it was “blatant excessive force” for Officer Ard
to use his taser on Steen on the facts presented. As an excessive force claim, the
constitutionality of Officer Ard’s conduct is judged under the Fourth Amendment’s
“objective reasonableness” standard. See, e.g., Brosseau v. Haugen, 543 U.S. 194,
197, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004).
The “reasonableness” of a particular use of force should be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed.
2d 443 (1989). The test for reasonableness is an objective one, without regard to
5
As explained in supra note 4, the only claim against Chief Mathis plausibly
asserted in the complaint involves his policy (or lack thereof) regarding taser usage.
The following analysis thus only applies to Count III and is limited to that one issue.
Nothing in this order should be read as to apply to any other claim that the plaintiff
has alleged or any other alleged use of excessive force, such as, for example, the
claim in Count I that Officer Ard “deliberately and intentionally used his vehicle to
ram into Steen.”
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the official’s underlying subjective intent or motivation. Id. at 397 (“An officer’s
evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.”). In deciding whether the use of force
was reasonable, courts must “‘balance the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.’” Scott v. Harris, 550 U.S.
372, 383, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (quoting United States v.
Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983)).
The test for reasonableness requires close and careful attention to the facts
and circumstances of each particular case. Graham, supra, 490 U.S. at 396. In the
Eleventh Circuit, to balance the need for the application of force, a court must look
to, and evaluate, three factors as set forth in Graham: (i) the severity of the crime
at issue, (ii) whether the suspect poses an immediate threat to the safety of the
officers or others, and (iii) whether he is actively resisting arrest or attempting to
evade arrest by flight. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 738
(11th Cir. 2010) (citing Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002) in turn
quoting Graham, supra, 490 U.S. at 396).
The plaintiff suggests that --- on the facts of this case --- a different test for
reasonableness is appropriate; specifically, the “deadly force” test as set forth by
the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed.
2d 1 (1985), and as applied by the Eleventh Circuit in Vaughan v. Cox, 343 F.3d
1323 (11th Cir. 2003). Under that analysis, a police officer’s use of deadly force is
constitutional where (1) the officer has probable cause to believe that the suspect
poses a threat of serious physical harm (either to the officer or to others) or if the
suspect has committed a crime involving the infliction or threatened infliction of
serious physical harm; (2) deadly force is necessary to prevent his escape; and (3)
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the suspect has been warned about the possibility of deadly force, where feasible.
See Garner, supra, 471 U.S. at 11-12; accord Vaughan, supra, 343 F.3d at 132930. Because Steen did not pose a serious threat of physical harm (and/or was not
suspected of committing a crime involving serious physical harm), because deadly
force was not “necessary to prevent his escape,” and because Officer Ard did not
warn him before utilizing his taser, the plaintiff argues that these factors all weigh
in favor of finding an unconstitutional use of deadly force. However, the plaintiff’s
argument on this point presupposes that the force Officer Ard used was “deadly
force” in the first instance. It was not. Garner and Vaughan, for example, involved
the situation where the police took actions that were “virtually certain” to result in
death (i.e., shooting a fleeing suspect in the back of the head, and firing a gun into
the cabin of a vehicle traveling down a “heavily congested” interstate highway at
around 80-85 mph, respectively). Here, by contrast, Officer Ard tased Steen one
time while the latter was riding his bicycle. As the Eleventh Circuit recently noted:
“A ‘taser’ is a non-deadly weapon.” Fils v. City of Aventura, --- F.3d ---, 2011 WL
3241618, at *1 n.2 (11th Cir. July 28, 2011).6 Although it is true (as the plaintiff
has observed) that tasing someone who is on a bicycle while driving alongside him
in a vehicle may carry with it the possibility of serious injury or even death (e.g., if
the tasing is followed by an impact with the vehicle), that outcome by no means a
6
That is not to say, of course, that a taser is incapable of resulting in death.
See, e.g., Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009) (pedestrian died after
being tased by the police multiple times). Indeed, as the Sixth Circuit has stated:
“[M]any law enforcement tools possess the potential for being deadly force,
including a state university police officer’s nightstick, and a police officer’s vehicle.
Indeed, as any faithful reader of mystery novels can attest, an instrument of death
need not be something as obviously lethal as a gun or knife. The ubiquitous ‘blunt
object’ kills just as effectively.” Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir.
1988) (internal citations omitted).
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“virtual certainty” as it was in both Garner and Vaughan.7 The fact that Steen died
(while unfortunate) does not convert the use of non-deadly force into deadly force.
Consequently, the “deadly force” test does not apply, and the question is whether
the force used was reasonable under the three-factor Graham analysis.
The first and third Graham factors tend to weigh against each other, as it
may be reasonably inferred from the allegations of the complaint and from review
of the video that Steen was not suspected of having committed a serious crime
(first factor), but he was ignoring Officer Ard’s commands to stop and actively
fleeing to evade capture (third factor). The plaintiff contends, however, that the
second Graham factor regarding whether Steen posed an “immediate threat” to
Officer Ard is in her favor, thereby tipping the scales in favor of finding the force
unconstitutional.
In making this argument, the plaintiff highlights the fact that Steen did not
direct any verbal or physical threats at Officer Ard. In fact, during oral argument,
the plaintiff’s attorney even went so far as to intimate that Steen could not have
been a threat because he was fleeing from the officer. However, violation of the
third Graham factor should not be applied in the plaintiff’s favor with respect to
analyzing the second Graham factor. The Supreme Court’s decision in Scott v.
Harris, supra, is instructive on this point.
In that case, a police officer observed the plaintiff driving 18 mph over the
speed limit, and he activated his overhead lights to pull him over. The plaintiff sped
away, initiating what the Supreme Court described as a “Hollywood-style car chase
of the most frightening sort.” The chase took place mostly on a two-lane street and
7
Plaintiff’s counsel suggested at oral argument that a bicycle is a vehicle just
as a truck is a vehicle and, therefore, Vaughan is on point. However, the difference
in the relative danger posed by firing a gun into a truck going 80 miles an hour on a
“heavily congested” interstate highway, and utilizing a taser on a person operating
his bicycle on a scarcely-traveled road at 1:50 a.m., is obvious and apparent.
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at “shockingly fast” speeds in excess of 85 mph. During the chase, the plaintiff
swerved around more than one dozen other cars, crossed the yellow line, forced
cars traveling in both directions to the respective shoulders of their road, and ran
numerous red lights. Eventually, one officer, Deputy Timothy Scott, rammed the
plaintiff’s bumper, which caused the plaintiff to lose control of his car, overturn,
and crash into an embankment. He sustained serious injuries and was rendered a
quadriplegic. In holding that it was “quite clear” that Deputy Scott did not violate
plaintiff’s Fourth Amendment rights, the Court began by rejecting --- as I have --the argument that the case should be analyzed under the “deadly force” test of
Tennessee v. Garner. The Court explained:
Garner did not establish a magical on/off switch that
triggers rigid preconditions whenever an officer’s actions
constitute ‘deadly force.’ . . . Garner had nothing to do
with one car striking another or even with car chases in
general. A police car’s bumping a fleeing car is, in fact,
not much like a policeman’s shooting a gun so as to hit a
person.
(citation and ellipsis omitted). Although “Scott’s actions [in ramming the bumper]
posed a high likelihood of serious injury or death to the respondent,” the Supreme
Court noted, those actions did not pose the same “near certainty of death posed
by, say, shooting a fleeing felon in the back of the head, or pulling alongside a
fleeing motorist’s car and shooting the motorist” (emphasis original; citing Garner
and Vaughan). Despite the increased likelihood of serious injury or even death in
ramming the plaintiff’s car on the facts of that case, the Court concluded that the
officer’s conduct was reasonable in light of “the actual and imminent threat to the
lives of any pedestrians who might have been present, to other civilian motorists,
and to the officers involved in the chase.” Harris, supra, 550 U.S. at 374-85.
Although Harris involved factually different circumstances (e.g., it was a high
speed car chase on a populated road), it is notable that the suspect did not direct a
threat at the officer(s); instead it was his reckless behavior in fleeing that posed the
Case No.: 3:11-cv-142-RV/CJK
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substantial --- but indirect --- threat to the officers and others. In this respect, it is
also important to note that the “substantial and immediate risk of serious physical
injury to others” in that case did not exist until after the pursuit began. In regards
to that issue (and, relatedly, whether the police could have protected themselves
and the public merely by calling off the chase) the Supreme Court said: “[W]e are
loath to lay down a rule requiring the police to allow fleeing suspects to get away
whenever they drive so recklessly that they put other people’s lives in danger.” See
Harris, supra, 550 U.S. at 385-86.
Here, although Steen did not directly threaten Officer Ard, the video shows
him riding in the middle of the road, and crossing over all four lanes of the street
two times, with Officer Ard following closely behind. While the roads were mostly
empty during the chase, the bicycle (and the pursuing vehicle) crossing a four-lane
road multiple times could potentially be dangerous to any others who may have
been in the area at that time. Although the danger caused by Steen fleeing on his
bicycle may not be the same as that caused by the speeding motorist in Harris,
there was a serious threat to the safety of others caused by his flight and Officer’s
Ard’s pursuit. Thus, the second Graham factor must be evaluated as both favorable
and unfavorable to the plaintiff.
However, even if the first two Graham factors --- no serious crime, and no
immediate threat --- weighed entirely for the plaintiff, I cannot ignore that Steen
was fleeing the scene and disregarding Officer Ard’s repeated orders to “stop the
bike.” The Eleventh Circuit stated in Brown v. City of Huntsville, Ala., supra, that
the use of pepper spray (which may be, and often is, analogized to using a taser)
“is not excessive force in situations where the arrestee . . . attempts to flee.” 608
F.3d at 739 (citing Vinyard, supra, 311 F.3d at 1348 (“[c]ourts have consistently
concluded that using pepper spray is reasonable . . . where the plaintiff was either
resisting arrest or refusing police requests”). Oliver v. Fiorino, 586 F.3d 898 (11th
Cir. 2009), is instructive. In that case, the survivors of a pedestrian who died after
Case No.: 3:11-cv-142-RV/CJK
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being tased at least eight times by the police (even though he “was not accused of
or suspected of any crime”) filed an action alleging excessive force. The Eleventh
Circuit held that tasing the decedent several times was clearly excessive. Notably,
however, the court said that “the use of an initial, single Taser shock” in order to
subdue and control him in the first instance “may have been justified.” See id. at
906. At a minimum, it is apparent that the use of a taser is a lesser use of force
than the use of a firearm in apprehending someone evading arrest by flight.
The factual record in this case has not yet been fleshed out, and I am only
considering the plaintiff’s allegations in the complaint and the facts as seen in the
attached video. Based only on those limited facts, I cannot say that the single use
of a taser on the fleeing, albeit non-violent, Steen was an unconstitutional use of
excessive force. Ultimately, however, I do not need to make that decision. I will
simply assume arguendo that there was a constitutional violation and proceed to
the second step of the qualified immunity analysis.
2.
Was the right “clearly established” at the time of the violation?
“Whether a claimed right ‘is clearly established is a question of law for the
court to decide.’” Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)
(citation omitted). In determining whether a right is clearly established, the court
must decide “‘whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.’” Vinyard, supra, 311 F.3d at 1350
(emphasis original) (citing Saucier, supra, 533 U.S. at 202). The Supreme Court
has emphasized in this context that the important question is whether the law gave
the officer “fair warning” that his conduct would be clearly unlawful. See id. (citing
Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)).
In the Eleventh Circuit, there are two methods to determine if a reasonable
officer would have “fair warning” that his conduct is clearly unconstitutional. The
first method “looks at the relevant case law at the time of the violation; the right is
Case No.: 3:11-cv-142-RV/CJK
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clearly established if a concrete factual context exists so as to make it obvious to a
reasonable government actor that his actions violate federal law.” See Fils, supra, -- F.3d ---, 2011 WL 3241618, at *15 (citation and brackets omitted). The second
method “looks not at case law, but at the officer’s conduct, and inquires whether
that 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.’” See id. (citation and brackets
omitted). Cases falling under the second method are referred to as “obvious clarity”
cases. See Vinyard, supra, 311 F.3d at 1350. The plaintiff argues in this case that
Officer Ard had “fair warning” that his conduct was clearly unlawful under existing
case law and/or because this is an “obvious clarity” case.
For a constitutional right to be clearly established under the first method, the
Eleventh Circuit has stated many times that “if case law, in factual terms, has not
staked out a bright line, qualified immunity almost always protects the defendant.”
Oliver, supra, 586 F.3d at 907 (citation omitted). Prior existing case law will give
adequate notice to an officer when the circumstances are “materially similar” and
not “fairly distinguishable.” See Vinyard, supra, 311 F.3d at 1352. The Supreme
Court “[does] not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd,
--- U.S. ---, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011). In determining if
existing case law provided an officer with fair warning that a specific use of force
was unlawful “beyond debate,” the Eleventh Circuit has made clear that it "[does]
not expect public officials to sort out the law of every jurisdiction in the country."
See Marsh v. Butler County, Ala., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001).
Therefore, “[w]hen case law is needed to ‘clearly establish’ the law applicable to
the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the
United States Court of Appeals for the Eleventh Circuit, and the highest court of
the pertinent state.” Id.
Case No.: 3:11-cv-142-RV/CJK
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The plaintiff has not identified --- and my research has not revealed --- a case
from the United States Supreme Court, the Eleventh Circuit, or the Florida Supreme
Court, “stak[ing] out a bright line” and holding that it is excessive force for a police
officer in a vehicle to tase someone who is fleeing on a bicycle.8 The cases cited by
the plaintiff either do not involve a fleeing suspect (the third Graham factor used to
analyze reasonableness),9 and/or they are otherwise “fairly distinguishable.”10
8
Although the plaintiff did not present this case as supporting her claim, a
federal district court in Minnesota held that tasing a man riding on a bicycle could
be unconstitutional; however, the facts of the case are readily distinguishable and,
as that decision is not controlling in this jurisdiction, it is not binding on the officer
in this case. See generally Orsak v. Metro. Airports Com'n Airport Police Dept.,
675 F. Supp. 2d 944 (D. Minn. 2009).
9
See, for example: Powell v. Haddock, 366 Fed. Appx. 29 (11th Cir. 2010)
(plaintiff tased two times even though she committed no crime and “there was no
instruction given that Powell failed to obey”); Oliver v. Fiorino, 586 F.3d 898 (11th
Cir. 2009) (deceased tased multiple times even though he was “largely compliant
and cooperative with officers”); Moretta v. Abbott, 280 Fed. Appx. 823 (11th Cir.
2008) (taser victim was a 6 year-old, 3 foot/5 inch tall, 53-lb child who, when the
police officer encountered him, was “standing motionless and passive”); Priester v.
City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (burglary suspect “submitted
immediately to the police”; “complied” with their orders; and “was not attempting
to flee or to resist arrest”).
10
To highlight just one example, the plaintiff cites Vinyard v. Wilson, 311
F.3d 1340 (11th Cir. 2002), as proof that, on or about October 3, 2009, “it was
clearly established that [a taser] could not constitutionally be used against a
nonthreatening suspect when the alleged suspect’s crime was a minor offense.”
However, in Vinyard, the officer had arrested the plaintiff for a minor offense, and
there was “no indication that she actively resisted the initial arrest or attempted to
flee at any time.” She was fully secured with handcuffs and placed in the back seat
of the patrol car. While on the way to the police station, the plaintiff screamed and
directed profanities at the officer. He then stopped the car and grabbed her arm and
breast (bruising both); pulled her head back by the hair; and sprayed her in the face
with several bursts of pepper spray. Using that type of force on an already-secured
and handcuffed suspect is clearly different than firing a single taser shock to stop a
suspect who is in the process of fleeing.
Case No.: 3:11-cv-142-RV/CJK
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Thus, to the extent that the plaintiff contends there is a “controlling case”
that clearly established on October 3, 2009, that Officer Ard’s use of force was
unconstitutional, I find that each cited case is readily distinguishable.11 I will now
turn to the second method of determining whether Officer Ard had “fair warning”
that his conduct was unlawful.
The second method --- for “obvious clarity” cases --- is a “narrow exception
to the normal rule that only case law and specific factual scenarios can establish a
violation.” Fils, supra, --- F.3d ---, 2001 WL 3241618, at *15. The Eleventh Circuit
recently described the method this way: “Concrete facts are generally necessary to
provide officers with notice of the ‘hazy border between excessive and acceptable
force.’ But, where the officer's conduct is so outrageous that it clearly goes ‘so far
beyond’ these borders, qualified immunity will not protect him even in the absence
of case law.” Id. In such cases, force will be deemed excessive if it violates “some
broad statements of principle in case law [that] are not tied to particularized facts.”
Vinyard, supra, 311 F.3d at 1351. This “clearly-excessive-even-in-the-absence-ofcase-law standard is a difficult one to meet.” Priester v. City of Riviera Beach, 208
F.3d 919, 927 (11th Cir. 2000).
The plaintiff contends that in this case “we are dealing with an officer that
[sic] intentionally deployed his Taser from the window of his speeding patrol car at
an individual riding on another vehicle (a bicycle), from a distance of no more than
eight (8) feet while both vehicles were underway.” These conditions, the plaintiff
further contends, “presented an abnormally high likelihood of serious injury or death
11
Subsequent to the briefing and oral argument in this case, the Eleventh
Circuit decided another taser case, but it too did not involve a fleeing suspect and
is otherwise quite different factually. See Fils v. City of Aventura, --- F.3d ---, 2011
WL 3241618 (11th Cir. July 28, 2011) (use of force held to be excessive when the
suspect “was tased even though he committed at most a minor offense; he did not
resist arrest; he did not threaten anyone; and he did not disobey any instructions
(for none were given)”) (emphasis added).
Case No.: 3:11-cv-142-RV/CJK
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to Mr. Steen.” Relying primarily on Garner, Vaughan, and Oliver, supra, the plaintiff
insists that the purported excessive force in this case was clearly established under
the “obvious clarity” standard. I do not agree.
As previously discussed, Garner and Vaughan are plainly distinguishable. To
paraphrase the Supreme Court in Harris, supra, tasing a person riding a bicycle “is,
in fact, not much like a policeman’s shooting a gun so as to hit a person” and thus
does not pose the same “near certainty of death posed by, say, shooting a fleeing
felon in the back of the head, or pulling alongside a fleeing motorist’s car [traveling
80+ mph on an interstate highway] and shooting the motorist.” 550 U.S. at 38384 (distinguishing both Garner and Vaughan). While it was obvious and apparent in
those cases that the force being used was “virtually certain” to result in death, that
is simply not the case here.12
Oliver is also different factually. The evidence in that case, as summarized by
the Eleventh Circuit, established that:
Oliver was neither accused nor suspected of a crime at
the time of the incident, that Officer Fiorino tasered Oliver
at least eight and as many as eleven or twelve times with
each shock lasting at least five seconds, that the officers
made no attempt to handcuff or arrest Oliver at any time
during or after any Taser shock cycle, that the officer
continued to administer Taser shocks to Oliver while he
was lying on the hot pavement, immobilized and clenched
up, and, finally, that these Taser shocks resulted in
extreme pain and ultimately caused Oliver's death.
12
Indeed, the plaintiff’s argument on this point is somewhat inconsistent. On
the one hand, she suggests that there was a high likelihood of death (and that this
is an “obvious clarity” case) because tasing Steen while he was on his bicycle left
“essentially no time for Officer Ard to avoid running over [him], given the obvious
limitations in human reaction time.” On the other hand, the plaintiff suggests that it
was not “limitations in human reaction time” that brought about Steen’s death, but
rather Officer Ard made a “sudden sharp turn” into the parking lot, “accelerated his
vehicle,” and “deliberately and intentionally used his vehicle to ram into Steen.”
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Supra, 586 F.3d at 901. The court recognized that there was no binding federal or
state case “directly on all fours with this case.” See id. at 907. Nevertheless, even
though there was no prior decision expressly holding that it was excessive force to
use a taser “under circumstances like these” [see id.], case law was not necessary
since the case under review was one of “obvious clarity”:
[T]he force employed was so utterly disproportionate to
the level of force reasonably necessary that any
reasonable officer would have recognized that his actions
were unlawful [even in the absence of case law on point].
The need for force was exceedingly limited. Again, Oliver
was not accused of or suspected of any crime, let alone a
violent one; he did not act belligerently or aggressively;
he complied with most of the officers’ directions; and he
made no effort to flee.
Tasering the plaintiff at least eight and as many as eleven
or twelve times over a two-minute span without
attempting to arrest or otherwise subdue the plaintiff --including tasering Oliver while he was writhing in pain on
the hot pavement and after he had gone limp and
immobilized --- was so plainly unnecessary and
disproportionate that no reasonable officer could have
thought that this amount of force was legal under the
circumstances. When measured against these facts, the
officers violated a clearly established right.
Id. at 908 (emphasis added). Oliver is thus clearly distinguishable on its facts.13
13
Other “obvious clarity” cases can also be easily distinguished as they did
not involve fleeing suspects. See, e.g., Slicker v. Jackson, 215 F.3d 1225 (11th Cir.
2000) (concluding, without case law on point, that the evidence --- if credited --showed that “the officers used excessive force in beating Slicker even though he
was handcuffed and did not resist, attempt to flee, or struggle with the officers in
any way”); Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (force
was “clearly-excessive-even-in-absence-of-case-law” when police officer released
his K-9 to attack suspect who was lying on the ground, did not pose any threat to
officers or others, and was not attempting to flee the scene or resist arrest); Smith
v. Mattox, 127 F.3d 1416 (11th Cir. 1997) (officer’s conduct went “far beyond the
Case No.: 3:11-cv-142-RV/CJK
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There are, as noted, situations where “a general constitutional rule already
identified in the decisional law may apply with obvious clarity to the specific
conduct in question, even though the very action in question has [not] previously
been held unlawful.” Vinyard, supra, 311 F.3d at 1352. However, the Eleventh
Circuit has stated “if a broad principle in case law is to establish clearly the law
applicable to a specific set of facts facing a governmental official, it must do so
‘with obvious clarity’ to the point that every objectively reasonable government
official facing the circumstances would know that the official’s conduct did violate
federal law when the official acted.” Id. (emphasis added). Because it can scarcely
be claimed that “every objectively reasonable government official” in Officer Ard’s
position would have known that tasing a suspect who was fleeing on his bicycle
violated clearly established federal law, this case is not one of “obvious clarity.”
Although the morning of October 3, 2009, ended in tragedy, Officer Ard’s
use of the taser on the facts presented was not “so far beyond the hazy border
between excessive and acceptable force that [Ard] had to know he was violating
the Constitution even without case law on point.” See Priester, supra, 208 F.3d at
926. A taser is generally recognized as having many useful and lawful applications
for law enforcement purposes. It is not a deadly weapon, as the Eleventh Circuit
recently noted in Fils, supra. Accordingly, I must conclude that, as of that date, it
hazy border,” and unlawfulness was “readily apparent even without clarifying case
law,” when the officer, while on the plaintiff's back and handcuffing him, broke
plaintiff’s arm requiring surgery for numerous fractures even though plaintiff at the
time was offering no resistance at all); see also Lee v. Ferraro, 284 F.3d 1188 (11th
Cir. 2002) (officer stopped motorist for improperly honking her car horn, and, in the
course of arresting her for violating local noise ordinance (during which she did not
resist or attempt to flee), he “slammed” her head down on the trunk “after she was
arrested, handcuffed, and completely secured, and after any danger to the arresting
officer as well as any risk of flight had passed”; concluding, “as in Slicker, Priester,
and Smith, the peculiar facts of this case are ‘so far beyond the hazy border
between excessive and acceptable force that [the officer] had to know he was
violating the Constitution even without case law on point’”) (emphasis original).
Case No.: 3:11-cv-142-RV/CJK
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was not clearly established to “every objectively reasonable government official”
(and thus, there was no “fair warning”) that discharging a single taser shock to a
suspect attempting to flee on a bicycle was unconstitutional.
Therefore, Chief Mathis is entitled to qualified immunity on the supervisory
liability claim.
III. Conclusion
For the above reasons, Chief Mathis’s motion to dismiss count III (doc. 22)
must be, and is, GRANTED, to the extent that it is based on qualified immunity.
DONE and ORDERED this 22nd day of August, 2011.
/s/ Roger Vinson
ROGER VINSON
Senior United States District Judge
Case No.: 3:11-cv-142-RV/CJK
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