MARY JO BRADLEY, R.B., et al. v. CASEY BENTON
No. 20-11509
United States Court of Appeals for the Eleventh Circuit
August 26, 2021
D.C. Docket No. 1:18-cv-01518-CAP; [PUBLISH]
(August 26, 2021)
Before JORDAN, BRASHER, and ANDERSON, Circuit Judges.
BRASHER, Circuit Judge:
This appeal is about a traffic stop for an unusual temporary tag that ended in a fatality. Troy Robinson, a passenger in the stopped vehicle, inexplicably fled the
What happened next is hotly disputed. But a reasonable jury could find that the pursuing officer, Casey Benton, fired his taser at Robinson while he was on top of the wall and that the shock from the taser incapacitated Robinson, causing him to fall, break his neck, and die. Robinson’s family sued, Officer Benton asserted the defense of qualified immunity, the district court rejected that defense, and Officer Benton appealed. After a thorough review and with the benefit of oral argument, we affirm in part and reverse in part. We conclude that Officer Benton cannot be held liable for conducting the traffic stop or pursuing Robinson when he fled. On these two issues, we reverse the district court. But we hold that Officer Benton’s decision to tase Robinson at an elevated height violated Robinson’s clearly established right to be free from excessive force. On that issue, we affirm.
I. BACKGROUND
On the day of Robinson’s death, Officer Casey Benton of the DeKalb County Police Department was patrolling near The Highlands of East Atlanta apartment complex in Atlanta, Georgia. That area had recently experienced a rise in gang-related and violent crime.
Around 7:00 p.m., Officer Benton observed a white SUV with a temporary license plate leaving the apartment complex shortly after it had еntered. He decided
Officer Benton asked for Sims’s driver’s license, and Sims provided it. Officer Benton then asked whether there were any weapons in the car. Sims advised Officer Benton that he was carrying a handgun. Officer Benton asked Sims to step out of the vehicle, and Sims complied. Officer Benton then retrieved a loaded handgun from the center console. Officer Benton told Sims that he could reenter the car, which he did. Officer Benton then asked Robinson if he had any identification. Robinson replied that he did not.
There were two other officers on the scene: Officer C.M. Franklin and Officer L.O. Niemann. When Officer Benton asked one of them to run Robinson’s name in the police department’s system, Robinson abruptly exited the vehicle and fled on foot. Robinson ran across a road and through the parking lot of a Family Dollar store
At some point after Robinson reached the area bеhind the Family Dollar, Officer Benton fired a single shot from his taser without warning, striking Robinson. The ground behind the store slopes down toward a chain-link fence that, on the day of the chase, was surrounded by thick undergrowth. The fence stands several feet from an eight-foot-high concrete wall that lines the back of the Highlands apartment complex. By the time Robinson reached the chain-link fence, Officer Benton was still ten to fifteen feet behind him. Robinson went over the fence and tried to climb the concrete wall, fell off the wall, and suffered blunt force trauma to his head and neck that cаused his death.
Officer Benton testified that he fired his taser without warning while Robinson was still on the ground. As Officer Benton tells it, the taser did not affect Robinson because only one of the two taser probes pierced Robinson’s skin, with the other getting stuck in Robinson’s clothing. Consequently, Officer Benton stopped his taser short of a full five-second cycle. Robinson proceeded to climb up the fence, then onto the wall, where he lost his balance, fell, and died.
Robinson’s family tells a different story. In their version of events, Officer Benton fired his taser upward at Robinson while he was on top of the wаll. The taser
Officer Benton testified that he was aware of and understood police department policy that a taser “will cause most everyone to fall and therefore should not be used when the risk of falling would likely result in death[.]” He also agreed that under that policy it was “not appropriate” to use a taser “if someone is at an elevated height[.]” Tracy Rucker, the master instructor on taser use for DeKalb
Officer Benton never issued a ticket to Sims for a traffic violation. The temporary tag on Sims’s vehicle did have an expiration date and was valid. Officer Benton later testified that he never felt like Robinson posed an immediate threat to him or any of the other officers. The officers found no weapons on Robinson’s body, and there is no other evidence he had a weapon. A posthumous toxicology report revealed traces of marijuana in Robinson’s system. The record does not explain why Robinson ran away from the traffic stop.
Robinson’s mother and his nine surviving children sued under federal and state law. Their complaint included the following claims: (1) a
The district court granted the motion in part and denied it in part. The district court concluded that official immunity shielded Officer Benton from the plaintiffs’ state law claims against him. But it also concluded that he was not entitled to qualified immunity from the
II. STANDARD OF REVIEW
We review an order denying summary judgment based on qualified immunity de novo. See Helm v. Rainbow City, Ala., 989 F.3d 1265, 1271 (11th Cir. 2021). On
“Qualified immunity shields public officials from liability for civil damаges when their conduct does not violate a constitutional right that was clearly established at the time of the challenged action.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). In other words, an officer is entitled to qualified immunity unless he (1) violated a constitutional right, and (2) that constitutional right was clearly established at the time. See Helm, 989 F.3d at 1272. These two elements may be analyzed in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the evidence at the summary judgment stage, construed in the light most favorable to the non-movant, contains “facts inconsistent with granting qualified immunity, then the case and the qualified immunity defense proceed to trial.” Stryker v. City of Homewood, 978 F.3d 769, 773 (11th Cir. 2020).
This appeal is about Officer Benton’s qualified immunity defense as to three separate actions: the initial traffic stop, the pursuit of Robinson, and the tasing. We address each in turn.
A. The Initial Traffic Stop
The district court denied Officer Benton’s motion for summary judgment as it pertained to the initial traffic stop, concluding that a jury could find that Benton lacked reasonable suspicion. On appeal, Officer Benton argues that the district court erred because he had a particularized and objective basis for conducting the stop. We agree.
Under the Fourth Amendment an officer may “conduct a brief, investigatory stop when the officer has a reasonable, articulable susрicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence[.]” Id. at 123–24 (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). Still, it requires “a minimal level of objective justification for making the stop.” Id. We consider whether a “particularized and objective basis” for the stop existed in
Here, Officer Benton had a particularized and objective basis for the stop. He testified that when he first observed Sims’s vehicle, he could not see the expiration date on the tag. And he testified that he stopped Sims because the temporary tag on Sims’s vehicle appeared to be in violation of state law requiring an expiration date to be displayed.
The plaintiffs contend that the record contains evidence that could lead a jury to conclude that Officer Benton merely used the tag violation as a pretext for an otherwise unlawful stop. But Officer Benton’s subjective purpose for conducting the traffic stop is immaterial. See Whren v. United States, 517 U.S. 806, 813 (1996); see
B. Officer Benton’s Pursuit of Robinson
The district court also held that because Officer Benton failed to establish that the initial stop was lawful, he necessarily failed to establish that his pursuit of Robinson was lawful. On appeal, Officer Benton argues that Robinson’s headlong flight from the traffic stop justified pursuing him. Again, we agree with Officer Benton.
Whether Officer Benton had reasonable suspicion to pursue Robinson turns on the totality of the circumstances. See United States v. Gordon, 231 F.3d 750, 757 (11th Cir. 2000) (“[W]hether reasonable suspicion exists must be determined on a case-by-case basis in view of the totality of the circumstances.”). Even though Robinson was merely a passenger in a vehicle that Officer Benton stopped on suspicion of driving with an invalid tag, his behavior was suspicious enough to warrant pursuit. When Officer Benton asked another officer to run Robinson’s name
C. Officer Benton’s Tasing of Robinson
The district court denied Officer Benton qualified immunity for killing Robinson, concluding that a jury could find Benton’s use of force was excessive. On appeal, Officer Benton argues that his use of force against Robinson was objectively reasonable and not excessive. Alternatively, he argues that the unlawfulness of his use of force was not clearly established at the time of the incident. We disagree.
1. Officer Benton Violated Robinson’s Constitutional Right to be Free from Deadly Force
Officer Benton maintains that he fired his taser while Robinson was still on the ground. But the plaintiffs point to evidence in the record—eyewitness testimony contradicting Officer Benton аnd a taser cartridge’s blast door on the far-side of the wall from where Officer Benton was standing—suggesting that Officer Benton fired his taser while Robinson was in a precarious position atop the eight-foot wall. On a
We have little trouble in concluding that this use of force was excessive. The amount of force used by an officer “must be reasonably proportionate to the need for that force.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). “‘The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene,’ and the inquiry ‘is an objective one.’” Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)). A court cannot apply this standard mechanically. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Instead, the inquiry “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S. at 396.
We therefore consider “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security
Here, a reasonable jury could find that Officer Benton applied deadly force, that is, force that an officer “knows to create a substantiаl risk of causing death or serious bodily harm.” Pruitt v. City of Montgomery, Ala., 771 F.2d 1475, 1479 n.10 (11th Cir. 1985). We have recognized that a taser is generally not a deadly weapon. Fils v. City of Aventura, 647 F.3d 1272, 1276 n.2 (11th Cir. 2011). But like many other weapons, a foot, or a fist, a taser may be used to apply deadly force. See United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982) (“[W]hether an object constitutes a ‘dangerous weapon’ turns not on the object’s latent capability alone, but also on the manner in which the object was used,” especially “when used in a manner likely to endanger life or inflict great bodily harm.”). As relevant here, we
Moreover, again taking the facts in the light most favorable to the plaintiffs, Officer Benton knew that he was using deadly force when he tased Robinson on top of the wall. He had been trained that a person who is tased will experience “neuromuscular incapacitation” and will be paralyzed from pain for аround five seconds; more than enough time for Robinson to lose his balance and fall from atop the wall. In his deposition, Officer Benton was asked if he understood department policy that a taser “should not be used when the risk of falling would likely result in death, for example, on a roof or next to a swimming pool.” He replied that he did. He was then asked if he agreed that it was “not appropriate” to use a taser “if someone is at an elevated height[.]” He replied, “I agree.” Cf. Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239, 2241 (2021) (when deciding whether to grant summary judgment on an excessive force claim, relevant fаcts include departmental instructions and other well-known police guidance). Accordingly, considering the
We also conclude that Officer Benton’s decision to use this level of force was not reasonable under these circumstances. This is so for three reasons.
First, Officer Benton lacked “probable cause to believe that [Robinson] posed a threat of ‘serious physical harm’” to anyone. Cantu, 974 F.3d at 1229 (quoting McCullough, 559 F.3d at 1206). Robinson was unarmed and never made any move indicating that he was about to draw a weapon. The gun in the center console of the car belonged to Sims and had already been retrieved by Officer Benton, eliminating the possibility that Robinson had taken the gun. Robinson made no threatening gestures of any kind. There is no evidence that he posed a threat to anyone in the apartment complex, which he had just left. There is no objective evidence in the record suggesting that Robinson was dangerous at all. This lack of evidence accords with Officer Benton’s subjective imprеssion of the situation; he testified that he never felt like Robinson posed an immediate threat to him or any of the other officers.
Second, Officer Benton did not have probable cause to believe Robinson had committed a crime “involving the infliction or threatened infliction of serious physical harm.” McCullough, 559 F.3d at 1206. In fact, Officer Benton lacked probable cause to believe that Robinson had committed any crime. See Cantu, 974
Third, Officer Benton fired his taser at Robinson without warning. “When considering whether it was feasible for a police officer to warn a suspect that []he plans to use deadly force, we consider both time and opportunity.” Cantu, 974 F.3d at 1231. Officer Benton had both. He was never more than a few seconds behind Robinson and had еyes on him throughout the entire chase. He could have ordered Robinson to stop or warned him that he intended to fire his taser if Robinson failed to comply. Instead, he waited until Robinson was on top of the wall before firing his taser at him without warning, causing him to fall to his death.
Accepting the plaintiffs’ version of the facts as true, Robinson posed no threat of serious physical harm to anyone. Nor was he suspected of committing a crime involving the infliction or threatened infliction of serious physical harm. He was not even the suspect of the traffic stop; the vehicle was owned and driven by Sims. Nevertheless, Officer Benton applied deadly force without warning to prevent
2. The Tasing Violated Clearly Established Law
To prevail, it is not enough for the plaintiffs to show that Officer Benton violated Robinson’s Fourth Amendment right to be free from deadly force. They must also show that the right in question was clearly established at the time of the incident. The ordinary way of showing that a right is clearly established is by showing that “a materially similar case has already been decided.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). A plaintiff may also show that a “broader, clearly established principle should control the novel facts [of the] situation.” Mercado, 407 F.3d at 1159 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). To control a novel factual situation, a broad principle “must be established with obvious clarity by the case law so that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the offiсial acted.” Waldron v. Spicher, 954 F.3d 1297, 1305 (11th Cir. 2020) (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1205 (11th Cir. 2012)).
The Supreme Court has held that the existence of materially similar caselaw is “especially important in the Fourth Amendment context.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotation marks omitted). To defeat a qualified immunity defense without a materially similar precedent on point, a Fourth Amendment plaintiff must show that an officer’s “conduct lies so obviously at the very core of what thе Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official.” Cantu, 974 F.3d at 1232 (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)). She “must show that the official’s conduct ‘was so far beyond the hazy border between excessive and acceptable force that [the official] had to know he was violating the Constitution even without caselaw on point.’” Id. at 1232–33 (quoting Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000)).
This case passes both tests: the right in question was clearly established by a materially similar precedent and was obviously clear in any event.
First, there is a materially similar precedent: Tennessee v. Garner, 471 U.S. 1 (1985). There, the Supreme Court held that a police officer used excessive force when he shot аn unarmed burglary suspect to stop him from fleeing on foot. See
To be sure, there is one factual distinction between this case and Garner. In Garner, the officer shot the suspect with a gun. Here, Officer Benton shot Robinson with a taser. But that is a distinction without a difference. As explained above, taking the facts in the light most favorable to Robinson, Benton used deadly force when he shot Robinson off the eight-foot wall with a taser. That is, he used force that he knew would “create a substantial risk of causing death or serious bodily harm.” Pruitt, 771 F.2d at 1479 n.10. He used this level of force to stop an unarmed man who was not suspected of committing a violent crime from fleeing on foot. Garner establishes that this level of force is excessive in that circumstance.
Officer Benton argues that the law was not clearly established on this point because of our unpublished, nonprecedential opinion in Harper v. Davis, 571 F. App’x 906 (11th Cir. 2014). We disagree. In Harper, police officers responded to an emergency call about an armed man who “had been drinking all day and taken methadone” and who was “pointin’ guns at everybody” and “beatin’ on his wife.” Id. at 908–09. Around 10:30 p.m., the officers donned bullet proof vests and tracked the suspect into the woods. When they found the suspect hiding in a tree with a gun, they shot him with a taser, causing him to fall and suffer serious injuries. Id. at 910. We recognized that the officers had used “significant force” that “border[ed] on deadly force” when they shot the suspect with a taser while he was in the tree. Id. at 912. But we reasoned that the officers had qualified immunity because of the seriousness of the suspect’s crimes and the threat that the armed and violent suspect posed to the safety of the officers and to others. Id. at 913–14. Unlike the suspect in Harper, Robinson was neither armed nor suspected of committing a violent crime. But, despite lacking these justifications, Officer Benton used the same significant degree of force against Robinson that the officers used in Harper. Accordingly, our nonbinding opinion in Harper does not support Officer Benton’s position.
Second, we would conclude that the use of force here was obviously unconstitutional even absent a case directly on point. Robinson posed no immediate threat to Officer Benton. He never tried to harm any of the officers, nor did he make any threatening movements or gestures. The officers also had no reason to think he posed a threat to anyone in the apartment complex, which he had just left. He was
IV. CONCLUSION
We see no constitutional infirmity in either Officer Benton’s decision to conduct the initial traffic stop or to pursue Robinson on foot, and we reverse the district court’s ruling as to those two issues. Regarding the main issue in this case—Officer Benton allegedly tasing Robinson on top of the wall, causing him to fall, break his neck, and die—we affirm the district court’s denial of Officer Benton’s motion for summary judgment on qualified immunity grounds, and remand so that
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.