C. ASHLEY ROYAL, District Judge.
Plaintiff Billy Randall Thomas brings excessive force claims pursuant to 42 U.S.C. § 1983 against Walton County Sheriff Deputies Ben Cornelius, Bill McGee, and Charles Cline. Plaintiff contends Defendants violated his Fourth and Fourteenth Amendment rights after Defendant Cornelius tasered him and then allegedly struck him in the face while he was handcuffed in the back of a police car. Plaintiff also brings Georgia state-law claims for assault and battery and intentional infliction of emotional distress. Currently before the Court is Defendants' Motion for Summary Judgment [Doc. 23]. After careful consideration, the Court finds Defendants are entitled to qualified immunity, and thus Defendants' Motion [Doc. 23] is
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted "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."
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitle it to a judgment as a matter of law.
Plaintiff filed suit for excessive force in this case after Defendant Cornelius deployed his taser and, according to Plaintiff, struck Plaintiff in the face with an object while Plaintiff was handcuffed and lying in the backseat of a police vehicle. The record contains police dash-cam video evidence. The United States Supreme Court has recognized a "wrinkle" in cases where the record contains video evidence, holding that when facts are disputed, and video evidence is present, a court should "view[] the facts in the light depicted by the videotape."
Shortly before 5:30 PM on June 15, 2012, Plaintiff left his employment at the Home Depot and began driving home. At this time, Plaintiff suffered from severe right lateral epicondylitis and was scheduled for surgery the next week. Plaintiff's right arm was required to be in a sling, and he was taking prescription medication to help with his pain.
Defendant Detective Bill McGee was also driving home at that time when he heard a Walton County 911 alert reporting a suspicious driver in a vehicle matching Plaintiff's truck, who appeared to be driving under the influence and travelling on the same road as McGee. McGee saw the truck approaching from the opposite direction. As he prepared to turn around, the truck drifted into McGee's lane of travel, forcing McGee off the road to avoid a head-on collision. McGee immediately turned around and caught up with the truck, where he observed the truck stopped in the middle of the intersection. As McGee got out of his unmarked car to approach, the truck sped off, travelling on the wrong side of the road. McGee returned to his vehicle and pursued the truck using his emergency equipment. Around 5:30 PM, the truck came to a stop shortly after it almost hit a mailbox, and Detective McGee exited his vehicle to make contact with the driver.
Meanwhile, Defendant Deputy Ben Cornelius was responding to the area and heard over the radio that Detective McGee had made contact with the suspicious vehicle after it had nearly hit McGee's vehicle head-on. Detective McGee did not have a dash-cam in his vehicle because he was not assigned to the uniformed patrol division; Deputy Cornelius's patrol car, however, did have a dash-cam, and it recorded much of the underlying events.
When Deputy Cornelius arrived on the scene, he briefly spoke with Detective McGee who told him how the truck drifted over into his lane, and McGee almost "ditched" his own vehicle to avoid a collision.
Plaintiff informed Deputy Cornelius he had last taken Lortab that morning; he had a prescription to take it every 3-4 hours for pain; and he had high blood pressure, high cholesterol, a herniated disk, a torn meniscus, torn ligaments and tendons in his elbow, and was having surgery the next week.
Deputy Cline's patrol vehicle also had a dash-cam video that recorded much of the incident. The built-in audio, however, was not operating correctly, so Cline used a small digital dictaphone recorder in his shirt pocket to record audio. For the Court's benefit, Deputy Cline's audio and video have been merged with no objection from any party.
Upon his arrival on the scene, Deputy Cline briefly spoke with Deputy Cornelius, who gave him a brief summary of what transpired before Cline's arrival, including the fact Plaintiff had taken Lortab at 10:30 AM.
After Deputy Cline finished the sobriety tests, he asked Plaintiff again to tell him about his physical disabilities. Plaintiff calmly responded he had a torn left meniscus and could not stand on that leg; he had bone spurs in his back; and he had torn ligaments and tendons in his elbow.
Deputy Cline informed Deputy Cornelius Plaintiff could not complete any of the sobriety tests, and Detective McGee recapped for the officers his observations prior to the stop.
When Deputy Cornelius asked if he would submit to a blood test, Plaintiff stated he "c[ouldn't] afford it."
As the officers searched his pockets, Plaintiff became distressed, stated he was on probation, and then called out his wife's name.
As the officers put Plaintiff in the backseat of the patrol car, Plaintiff became agitated and yelled out, "I have prescriptions, officer, and I have to drive."
Once Plaintiff stepped out of the vehicle, Deputy Cornelius removed the handcuffs from the front of his body and instructed him to put his hands behind his back.
As Plaintiff stood in front of the open back door, he again yelled to his wife, "They are taking me to jail, regardless of prescriptions, regardless of anything."
After being forced inside the vehicle, Plaintiff was handcuffed behind his back and seated in the backseat of the patrol vehicle, but he did not put feet inside the car; they remained outside on the pavement. As Plaintiff was telling the officers about his broken neck, Deputy Cline instructed Plaintiff to cooperate, and Cornelius informed Plaintiff he had "two seconds to get in there right now, or I am going to tase you."
At that point, after ten instructions to comply with directives to get in the car— four of which specifically instructed Plaintiff to put his feet in the car—and three warnings he would be tased, Deputy Cornelius deployed his taser a single time, releasing a five-second burst of electricity.
After tasing Plaintiff, Deputy Cornelius stood in front of the open back passenger door, leaned into the car and asked Plaintiff, "Are you going to listen to me," to which Plaintiff responded with a resounding "Yes!"
Neither the video nor the audio evidence, however, shows Deputy Cornelius striking Plaintiff. Immediately after Plaintiff used the profanity, the dash-cam evidence shows Deputy Cornelius leaning into the car a little further. The viewer does not have a clear view into the backseat of the patrol car because of the glare of the sun and the flashing lights off of the back window. As soon as Cornelius leaned into the car, Plaintiff almost simultaneoulsy told Cornelius he was on "hard times."
Following these events, Plaintiff filed suit in this Court under 42 U.S.C. § 1983, alleging Defendants violated his Fourth and Fourteenth Amendment rights to be free from excessive force. Plaintiff also asserts state law claims for assault and battery and intentional infliction of emotional distress. Defendants now move for summary judgment contending qualified immunity shields them from § 1983 liability because the use of force was reasonable and did not violate clearly established law. Defendants also contend they are shielded by official immunity as to Plaintiff's state law claims. As explained below, the Court agrees.
"[Q]ualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known."
When an officer invokes qualified immunity, the initial burden is on the officer to show that "he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred."
Here, it is clear all Defendants were acting within the scope of their discretionary authority. Therefore, the burden shifts to Plaintiff to prove the use of the taser and the strike to Plaintiff's face violated his clearly established Fourth and Fourteenth Amendment rights.
The Fourth Amendment's prohibition against unreasonable searches and seizures encompasses the right to be free from excessive force.
To aid in the reasonableness analysis, the Court "measure[s] the quantum of force employed against these factors—the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether the suspect actively resisted arrest or attempted to evade arrest by flight."
Plaintiff first claims Deputy Cornelius used excessive force when he deployed the taser while Plaintiff was handcuffed in the backseat of the patrol vehicle. The Court disagrees: Based on the facts and circumstances confronting him at the time, Deputy Cornelius's use of the taser to effectuate Plaintiff's arrest was "reasonably proportionate to the difficult, tense, and uncertain situation" the officers faced and did not constitute excessive force.
First, Plaintiff was stopped for suspicion of driving under the influence of drugs or alcohol. "Generally, more force is appropriate for a more serious offense and less force is appropriate for a less serious one."
Second, the officers reasonably believed Plaintiff posed a threat to their safety. The officers instructed him four times to sit down in the back seat of the patrol car before putting their hands on him to force him into the vehicle because he would not comply with their instructions. The officers then instructed him four more times to put his feet inside the vehicle and warned Plaintiff three times if he did not comply with their instructions, he would be tased. Plaintiff failed to comply with each of their commands and never put his feet inside the vehicle. Although Plaintiff was handcuffed and seated in the patrol car, his legs were unrestrained, his feet were unsecured and remained on the ground outside of the car, and he continuously ignored the officers' instructions and commands. It was certainly reasonable for the officers to believe he posed an immediate threat to their safety, as he could have easily fought the officers with his legs and feet.
Finally, Plaintiff unquestionably failed to follow the instructions of the officers. "Courts have consistently concluded that using pepper spray is reasonable . . . where the plaintiff was either resisting arrest or refusing police requests, such as requests to enter a patrol car[.]"
Plaintiff argues he was not refusing to comply with the officers' instructions; instead he was simply trying to explain that his physical impairments prevented him from placing his feet inside the vehicle while his hands were handcuffed behind his back. Plaintiff's argument, however, misses the mark. This Court must look at the situation from the perspective of a reasonable officer. Knowing Plaintiff had taken a controlled substance, almost forced a fellow officer off of the road, and repeatedly refused to follow police instructions, a reasonable officer could believe Plaintiff might act erratically, unpredictably, and even violently by kicking and injuring the officers. Even "[i]f an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, [] the officer would be justified in using more force than in fact was needed."
Under the totality of the circumstances in this case, Deputy Cornelius's use of the taser "was reasonably proportionate to the difficult, tense, and uncertain situation that [the officer] faced at this traffic stop, and did not constitute excessive force."
Plaintiff also asserts Deputy Cornelius used excessive force when he allegedly struck Plaintiff in the face. Plaintiff contends a genuine issue of material fact exists as to whether Deputy Cornelius in fact struck him in the face while Plaintiff was handcuffed in the backseat of the patrol car. Defendant contends no genuine issue of material fact exists because Deputy Cline's dash-cam video establishes no strike ever took place. Plaintiff points to Deputy Cline's dash-cam video from 15:19 until 16:14, arguing it is virtually impossible to determine what is happening to Plaintiff inside the vehicle during this time because of the glare caused by the patrol car's flashing lights and the sun's reflection. The Court, however, disagrees. Based on the video and audio evidence, no reasonable juror could find Deputy Cornelius struck Plaintiff during this time.
"It is true that we construe the facts in the light most favorable to the non-moving party. But when `opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it,' a court should not adopt the contradicted version for purposes of ruling on a motion for summary judgment. This is so because when the non-movant's assertion is `so utterly discredited' by the record, no `genuine' dispute of material fact exists sufficient to prompt an inference on behalf of the non-movant."
That is the case here. Given the video and audio evidence, Plaintiff's testimony cannot create a genuine issue of material as to whether Defendant Cornelius struck him. Upon watching the video, it is wholly unbelievable Defendant Cornelius struck Plaintiff. Throughout this entire time, the video shows Deputy Cornelius leaning into the car through the open back passenger door with his right arm outside the vehicle on top of the open door frame and, for most of the time, his left arm resting on the roof of the car. There is a total of nine seconds that the viewer cannot see Deputy Cornelius's left arm: for one second, from 15:44 until 15:45, and for eight seconds, from 15:49 until 15:57. These nine seconds are the only conceivable times Cornelius could have struck Plaintiff. Deputy Cornelius's body, however, makes no motion indicating he swung at or struck Plaintiff. On the contrary, his body indicates he made no such motion, as he remains leaned over through the car door.
More importantly, there is absolutely no audio indication Plaintiff was struck. In fact, the audio confirms Plaintiff was not struck. Deputy Cornelius and Plaintiff can be heard having a conversation the entire time about how Plaintiff is "on hard times." Plaintiff does not yell, grunt, call out, or make any other indication he was struck. It is simply wholly unbelievable Plaintiff would make no audible indication after allegedly being struck across the face with an object that caused severe bruising to his eyes and face, and contusions to his head. The Court finds the video and audio conclusively establish Deputy Cornelius did not strike Plaintiff, and thus, Defendants are entitled to summary judgment on this claim.
Even if Deputy Cornelius's use of the taser did violate Plaintiff's constitutional rights, qualified immunity still protects Defendants because any such rights were not clearly established. "For a constitutional right to be clearly established the contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates the law."
Despite Plaintiff's contentions otherwise, no case law gave Defendants fair warning their actions would violate Plaintiff's constitutional rights. On the one hand, Eleventh Circuit cases considering whether the use of a taser is constitutionally excessive "establish that unprovoked force against a non-hostile and non-violent suspect who has not disobeyed instructions violates the suspect's rights under the Fourth Amendment."
On the other hand, police are permitted to use tasers in order to secure a suspect whom they reasonably perceive as threatening or disobeying their commands. In Zivojinovich v. Barner,
Here, as in Draper and Zivojinovich, Plaintiff refused to comply with the arresting officers' commands and instructions. Although Plaintiff was handcuffed and seated in the back seat of the patrol vehicle, seemingly making this case more like Vinyard, he was not fully secured, was uncooperative, and was noncompliant, thus establishing this case's material differences from Vinyard. Plaintiff's feet remained outside of the car posing a threat to the officers' safety. By contrast, the Vinyard court specified that "[a]t all times Vinyard remained in the back seat and handcuffed behind her back
Existing law at the time of this incident did not put Deputy Cornelius on notice that deployment of the taser violated Plaintiff's constitutional rights where the taser was used to subdue a noncompliant suspect, whose hands were handcuffed, but whose feet and legs were not fully secured, thus posing a threat to the officers' safety. Moreover, Deputy Cornelius's one-time use of the taser under these circumstances does not rise to the level of "obvious clarity," which would require all reasonable officers to inevitably conclude the force was excessive.
In addition to the § 1983 claims, Plaintiff brings state law assault and battery and intentional infliction of emotional distress claims against Defendants. Defendants move for summary judgment arguing official immunity bars these claims. The Court agrees.
Under Georgia law, an officer is entitled to official immunity for injuries caused by his actions unless he negligently performed "ministerial functions" or performed "official functions" "with actual malice or with actual intent to cause injury."
Here, as mentioned above, Defendants were performing a discretionary function when they decided to stop and arrest Plaintiff.
Construing the facts in the light most favorable to Plaintiff, there is no evidence showing any Defendant acted with malice or intent to cause injury. On the contrary, the evidence shows Defendants reasonably believed Plaintiff posed a threat to their safety by refusing to place his legs inside the patrol car, and the use of the taser was necessary to get Plaintiff to comply with their commands without engaging in a physical struggle that could cause physical injuries to Plaintiff and the officers. Accordingly, Defendants are entitled to official immunity, and summary judgment is granted as to Plaintiff's state-law assault and battery and intentional infliction of emotional distress claims.
Based on the foregoing, Defendants' Motion for Summary Judgment [Doc. 23] is
