[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15915 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 13, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cv-00916-TMP
LEWIS FLOYD, JR.,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
DUANE CORDER,
individually and in his capacity
as a Deputy Sheriff of Jefferson
County Sheriff Department,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 13, 2011)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Lewis Floyd appeals the court’s dismissal of his lawsuit against Jefferson
County Deputy Sheriff Duane Corder. Floyd brought suit against Deputy Sheriff
Corder pursuant to 42 U.S.C. § 1983, alleging that he used unreasonable and
excessive force in violation of Floyd’s Fourth Amendment rights by tasing Floyd
three times in the course of making an arrest. The court granted Deputy Sheriff
Corder’s Motion for Judgment on the Pleadings, finding that he was entitled to
qualified immunity because the law was clearly established at the time of the
incident—October 23, 2007—“that a taser could be employed on a noncompliant
suspect where the crime alleged was minor, and even where no violence had
occurred.” Floyd appeals, arguing that Deputy Sheriff Corder was not entitled to
qualified immunity. For the following reasons, we affirm.
Floyd argues that Deputy Sheriff Corder violated his clearly established
constitutional rights because, at the time of the tasing, he was unarmed, was not
disorderly, was not acting in an unreasonable manner, posed no threat of harm to
Deputy Sheriff Corder or others, was not physically resisting arrest when
assaulted, and was not disturbing the peace. The facts of the incident are
summarized in the court’s opinion:
Floyd arrived at school about the time that the school day
ended to pick up his nephew. He found out from a school
employee, Bridgette Willis, that the nephew was in a
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tutoring session, when he was supposed to be in detention.
Willis went to get the nephew from the classroom, but
Floyd followed her. Floyd’s nephew left the classroom
with him, and the school employee walked in front of them
back toward the school office. At one point, she believed
that she heard a noise that sounded like Floyd hitting the
child. Being alarmed, Willis summoned Deputy Corder
from the school office, because she wanted his assistance
“when a parent gets upset.” Willis told Corder that she
though[t] Floyd had hit the student. Corder confronted
Floyd in a breezeway between the school buildings, but
Floyd did not respond. He continued moving toward his
nephew. Corder put his hand up to stop Floyd from moving
toward the nephew, but Floyd pushed or hit Corder’s hand
away. Corder then pulled out his taser and told Floyd to get
on the ground. Floyd did not comply, but continued to walk
away and toward an entrance to the school. Corder again
told Floyd to stop, but he kept going. Corder then fired the
taser at him three times, causing Floyd to fall to the ground.
At the time, Corder had no handcuffs with him . . . so he
summoned help from another deputy.1
Deputy Sheriff Corder used his taser gun three times since Floyd did not react to
the first tase and because Deputy Sheriff Corder did not think he made contact
with Floyd on the second tase. Following this incident, Floyd was arrested and
charged with domestic violence, harassment, disorderly conduct, and resisting
arrest.
1
Floyd attached to his amended complaint a transcript of testimony given during his
criminal trial. The transcript contained testimony from two witnesses: Ms. Willis and Deputy
Sheriff Corder. Floyd stated in his amended complaint that the transcript was attached and “fully
incorporated” into the complaint. Thus, the court considered the trial transcript in assessing the
merits of the Rule 12(c) motion.
3
Floyd does not dispute that Deputy Sheriff Corder was acting within the
scope of his discretionary authority at the time of the incident. Thus, the burden is
on Floyd to show that Deputy Sheriff Corder was not entitled to qualified
immunity. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.
2004). To defeat qualified immunity, the plaintiff must show that “(1) the
defendant violated a constitutional right, and (2) this right was clearly established
at the time of the alleged violation.” Id. We can address either prong first.
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
We find that even assuming Deputy Sheriff Corder’s use of force was
excessive, he would still be entitled to qualified immunity because Floyd cannot
show that, on the day of the tasing, it was “clearly established” that such force was
excessive. Floyd cites one taser case to try and meet his burden: Powell v.
Haddock, 366 F. App’x 29 (11th Cir. 2010) (per curiam). First, we note that this
unpublished case is not binding. Moreover, the facts of Powell differ markedly
from the facts of the instant case: “As to Deputy Rackard’s use of his taser, Powell
had simply taken steps away from Deputy Stone before Deputy Rackard deployed
his taser the first time, and Powell was on the ground and unable to resist when
Deputy Rackard tasered her a second time.” Id. at 31. The suspect in Powell was
non-threatening. Id. at 30–31.
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By contrast, Floyd was threatening: he was believed to have struck his
nephew in Ms. Willis’ presence, he was yelling at his nephew as Deputy Sheriff
Corder arrived, he refused to cooperate with Deputy Sheriff Corder’s attempts to
assess the situation, he made a move towards his nephew after Deputy Sheriff
Corder arrived, he hit Deputy Sheriff Corder’s hand away when Deputy Sheriff
Corder attempted to intervene, he refused to get on the ground after being ordered
to do so, and he refused to stop when ordered to do so. Thus, Powell does not
show that it was “clearly established” on October 23, 2007, that Deputy Sheriff
Corder’s use of his taser constituted excessive force.
Moreover, Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), indicates
that, at the time of the incident, our case law established that the use of a taser in a
similar situation did not violate the suspect’s constitutional rights. In Draper, the
suspect was not armed, was not attempting to flee, and there was no violence or
report of violence concerning the suspect. See generally id. at 1272–74. Instead,
the suspect refused to get documents that the officer requested and was “hostile,
belligerent, and uncooperative.” Id. at 1278. We found that the officer’s use of a
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.”
Id. In fact, the use of the taser “may well have prevented a physical struggle and
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serious harm” to the officer and the suspect. Id. Thus the existing law at the time
of the incident did not put Deputy Sheriff Corder on notice that deploying his taser
three times to subdue a noncompliant suspect where the underlying crime was
minor and where no violence had occurred violated Floyd’s constitutional rights.2
In conclusion, even if Deputy Sheriff Corder’s use of his taser constituted
excessive force, he is entitled to qualified immunity because his actions did not
violate Floyd’s “clearly established rights.” Accordingly, we affirm the judgment
of the court.
AFFIRMED.
2
Floyd also relies on Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), a case
involving pepper spray, to argue that Deputy Sheriff Corder violated his clearly established
constitutional rights. But because the facts of Draper are more similar to the case at hand,
Vinyard does not entitle Floyd to relief.
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