[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 7, 2006
No. 06-10216 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-02989-CV-UWC-W
LAQUARIUS GRAY,
a minor, by and through her mother and
next friend, Toniko L. Alexander,
Plaintiff-Appellee,
versus
ANTONIO BOSTIC,
individually and in his official capacity
as Deputy Sheriff for Tuscaloosa County, AL,
EDMUND SEXTON,
individually and in his official capacity
as Principal of Holt Elementary School,
Tuscaloosa, AL,
Defendants-Appellants,
JOYCE SELLERS, individually and in her official
capacity as Superintendent of Tuscaloosa County,
AL, School System and/or Tuscaloosa County, AL,
Board of Education, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 7, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
HULL, Circuit Judge:
This is the second appeal involving the detention and handcuffing of a nine-
year-old student, Laquarius Gray, during her physical education class. The first
time, we reversed the district court’s Rule 12(b)(6) dismissal of this § 1983 action.
Gray v. Bostic, No. 04-12240 (11 th Cir. Dec. 27, 2004). This time, the defendants
appeal the district court’s denial of their motions for summary judgment based on
qualified immunity. After review, we affirm in part and reverse in part.
I. BACKGROUND
A. The Incident
Coach Lattuce Greer Williams believed that Gray was not doing “jumping
jacks” along with the rest of the physical education class. Coach Williams told
Gray she needed to do her exercises. When Gray failed to comply, Coach
Williams told Gray to “[c]ome to the wall” of the gym. Williams testified that as
Gray walked to the wall, “[s]he told me that she would punch me or hit me, hit me
2
in the face.” A nearby teacher, Coach Tara Horton, witnessed the disagreement
with Coach Williams. Coach Horton testified that Gray said, “I bust you in the
head,” which Coach Horton explained meant that “she was going to hit him in the
head.” Although Coach Williams and Coach Horton attribute slightly different
language to Gray, the gist of their testimony is that Gray threatened to hit Coach
Williams.
In contrast, Gray testified that she did not threaten to “bust” Coach Williams
in the head. Although Gray could not remember what she said, she agreed that she
threatened to “do something” to Coach Williams and that what she said was
disrespectful, as follows:
Q: Then, [Coach Williams] told me that, at that point, you told him
that you were going to bust him in his head; is that right?
A: No, sir.
Q: You didn’t say that?
A: No, sir.
Q: Is Coach Williams lying to me?
MR. LIVEOAK: Objection
Q: (By Mr. Wisdom) You can answer. Is Coach Williams telling me a
lie?
A: I guess he did. I don’t remember what I said, but I didn’t say that.
Q: You don’t remember what you said?
A: (Witness shakes head.)
Q. You don’t have any idea what you said?
MR. LIVEOAK: Is that no?
A: No.
Q: (By Mr. Wisdom) So, you don’t know if you said that you might
punch him; is that right: Did you say something to him that was
disrespectful?
3
A: Yes, sir.
Q: What was that?
A. I don’t remember.
Q. Did you tell him that you might do something to him?
A. Yes, sir.
....
Q: What did you tell him that you were going to do to him?
A. I don’t remember.1
Because of the summary judgment posture of the case, we construe Gray’s
testimony as denying the coaches’ version of what she said. However, Gray does
not dispute that she threatened to “do something” physically to Coach Williams.
Thus the precise nature of her physical threat – whether it was to hit him in the
face, poke him in the eye or kick him in the shins – does not change our analysis.
After hearing Gray’s threat to Coach Williams, Coach Horton instructed
Gray to come over to her. Coach Williams then turned his attention back to his
class.
Deputy Antonio Bostic also witnessed the exchange between Gray and
Coach Williams. Deputy Bostic was employed as a Tuscaloosa County Sheriff’s
Deputy and served as a school resource officer (“SRO”) for several schools,
including Holt Elementary. Before Gray reached Coach Horton, Deputy Bostic
1
In the first appeal of the Rule 12(b)(6) dismissal, we reviewed the allegations in the
complaint, which stated only that Gray made a “disrespectful comment” to Coach Williams. We
noted that at the Rule 12(b)(6) juncture, there was no allegation of profanity or fighting words or
that Gray was a danger to any teacher or student. Gray, No. 04-12240, slip op. at 14, 17. Now,
at the summary judgment juncture, we have deposition testimony as to what was said and the
context in which it was said.
4
intervened and told Coach Horton that he would talk to Gray. Coach Horton
insisted that she would handle the matter. However, Deputy Bostic insisted that he
would handle Gray and escorted Gray out the gym door into a lobby area.
Deputy Bostic told Gray to turn around, pulled her hands behind her back
and put Gray in handcuffs. Deputy Bostic tightened the handcuffs to the point that
they caused Gray pain. Deputy Bostic told Gray, “[T]his is how it feels when you
break the law,” and “[T]his is how it feels to be in jail.” Gray began to cry. Gray
stood with the handcuffs on for not less than five minutes, with Deputy Bostic
standing behind her.2
In discovery responses, Deputy Bostic averred that he detained and
handcuffed Gray “to impress upon her the serious nature of committing crimes that
can lead to arrest, detention or incarceration” and “to help persuade her to rid
herself of her disrespectful attitude.” Deputy Bostic’s discovery responses also
stated that he “did not feel the need to apologize to LaQuarius Gray for telling her
that she committed a misdemeanor in my presence and showing her what would
2
There is a factual dispute about how long Gray was in handcuffs. As to time, Gray
testified that she did not know how long she stood in handcuffs. However, Gray was asked
whether it was “less than five minutes,” and replied “No, sir.” When Coach Horton was asked
how long Gray was in handcuffs, she responded, “I’m going to guestimate two minutes maybe.”
Deputy Bostic averred that he “detained [Gray] for less than 30 seconds . . . .” At the summary
judgment stage, however, we must review the evidence in a light most favorable to Gray and
assume that Gray was handcuffed for not less than five minutes.
5
happen if a less generous officer than I were to arrest her for her actions.”3 After
Deputy Bostic took the handcuffs off, Gray went to the Coaches’ Office until her
next class.
Neither Coach Horton nor Coach Williams was afraid of Gray or believed
that Gray would actually carry out her threat. When asked whether he was “ever
afraid that [Gray] would commit an act of violence towards [him] or Ms. Horton,”
Coach Williams replied, “No, sir.” Similarly, Coach Horton replied “No,’ when
asked if she was “ever afraid that Ms. Gray would physically assault you or
another student?” When asked, “[W]hen Ms. Gray told Coach Williams that she
was going to bust him in the head she’s not actually physically capable of doing
that, is she,” Coach Horton agreed. Coach Horton planned to talk with Gray about
the incident and give her a warning. Coach Horton testified that she would not
have been required to write Gray up, give Gray detention, or send her to the
principal’s office “because it wasn’t that major.”
B. Court Proceedings
On November 4, 2003, by and through her mother, Gray filed suit against
Deputy Bostic and Tuscaloosa County Sheriff, Edmund Sexton in their official and
3
Deputy Bostic was never deposed and did not file a declaration in support of his motion
for summary judgment. Therefore, the only sworn statement from Deputy Bostic relating to the
events is contained in his interrogatory responses.
6
individual capacities.4 Gray’s complaint contained eight counts, including claims:
(1) under 42 U.S.C. § 1983 for violations of Gray’s First, Fourth, Fifth, Eighth and
Fourteenth Amendment rights (Count 1); (2) under 42 U.S.C. § 1981 for race
discrimination (Count 2); and (3) under state law for invasion of privacy, assault
and battery, false imprisonment, defamation and intentional infliction of emotional
distress (Counts 4 through 8). Gray also sought declaratory and injunctive relief
(Count 3). The defendants filed a motion to dismiss, which the district court
granted.
Gray appealed to this Court, challenging only the district court’s dismissal of
her Fourth Amendment claims against Deputy Bostic and Sheriff Sexton
individually and the denial of her motion for leave to amend her complaint.5 We
reversed, stating that on remand Gray was entitled to pursue her Fourth
Amendment claims against defendants Deputy Bostic and Sheriff Sexton
individually and to file an amended complaint. Gray, No. 04-12240, slip op. at 22.
The district court ordered Gray to file an amended complaint asserting only the
Fourth Amendment claims that remained following her appeal. Gray then
4
Gray’s original complaint also alleged claims against Joyce Harris, Holt Elementary
School’s principal; Joyce Sellers, the Tuscaloosa County School Superintendent; and members
of the Tuscaloosa County Board of Education. Gray subsequently dismissed these claims.
5
In the prior appeal, Gray did not challenge the dismissal of her First, Fifth, Eighth and
Fourteenth Amendment claims, her state law claims or her official capacity claims against
Deputy Bostic and Sheriff Sexton.
7
amended her complaint, asserting claims of excessive use of force and
unreasonable seizure against defendants Bostic and Sexton individually.
Following discovery, the defendants moved for summary judgment based on
qualified immunity. The district court denied the motion, prompting this
interlocutory appeal.
II. STANDARD OF REVIEW
Although the denial of summary judgment generally is not a final appealable
order subject to immediate appeal, an interlocutory appeal may be taken where the
district court denies the defense of qualified immunity and the appeal involves a
question of law. McMillian v. Johnson, 88 F.3d 1554, 1563, amended on other
grounds, 101 F.3d 1363 (11 th Cir. 1996). We review de novo a district court’s
denial of summary judgment based on qualified immunity, viewing the evidence in
a light most favorable to the opposing party. Williams v. Consol. City of
Jacksonville, 341 F.3d 1261, 1266-67 (11 th Cir. 2003).
III. DISCUSSION
A. Qualified Immunity Principles
“Qualified immunity offers a complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
8
have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11 th Cir. 2002) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). To be
entitled to qualified immunity, the defendant must prove that he was acting within
the scope of his discretionary authority. Id. “Once the defendants establish that
they were acting within their discretionary authority, the burden shifts to the
plaintiff to demonstrate that qualified immunity is not appropriate.” Lumley v.
City of Dade City, 327 F.3d 1186, 1194 (11 th Cir. 2003).
The Supreme Court has established a two-part test to evaluate whether an
official is entitled to qualified immunity. First, as a threshold inquiry, we address
whether the facts presented, taken in a light most favorable to the non-moving
party, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121
S. Ct. 2151, 2156 (2001). If we answer this question in the affirmative, then we
“ask whether the right was clearly established.” Id.
B. Deputy Bostic’s Discretionary Authority
Gray argues that Deputy Bostic was not acting within the scope of his
discretionary authority when he detained and handcuffed Gray. “To establish that
the challenged actions were within the scope of his discretionary authority, a
defendant must show that those actions were (1) undertaken pursuant to the
performance of his duties, and (2) within the scope of his authority.” Habert Int’l
9
v. James, 157 F.3d 1271, 1282 (11 th Cir. 1998). To that end, “a court must ask
whether the act complained of, if done for a proper purpose, would be within, or
reasonably related to, the outer perimeter of an official’s discretionary duties.” Id.
(quotation marks omitted).
Although our prior opinion concluding that Deputy Bostic was acting within
his discretionary authority was at the Rule 12(b)(6) stage and was based on merely
the allegations in the complaint, there is no evidence at the summary judgment
stage that changes our conclusion. Deputy Bostic as an SRO, was charged with the
responsibility to investigate criminal activity that might be taking place at Holt
Elementary School. As part of that responsibility, Deputy Bostic’s duties included,
under the right circumstances, detaining and questioning students and possibly
arresting and handcuffing them. The fact that the right circumstances (for
detention or handcuffing) may not have been present in this case is irrelevant to
our inquiry. See id. (explaining that the “inquiry is not whether it was within the
defendant’s authority to commit the allegedly illegal act” because “[f]ramed that
way, the inquiry is no more than an ‘untenable’ tautology”).
Gray stresses that SROs were not supposed to discipline students and that
Deputy Bostic admitted in his interrogatory responses that his reasons for detaining
and handcuffing Gray were to “impress upon her the serious nature of committing
10
crimes that can lead to arrest, detention or incarceration” and “to help persuade her
to rid herself of her disrespectful attitude.” We note, however, that it is also clear
from Deputy Bostic’s interrogatory responses that he believed Gray had committed
a misdemeanor when she threatened her teacher and that Deputy Bostic detained
her to discuss the incident with her. Therefore, we conclude that Deputy Bostic’s
actions were within his discretionary duties and turn to whether his actions were
unconstitutional.
C. Constitutional Violations
Gray argues that Deputy Bostic used excessive force in detaining her
because he lacked a right to detain her at all. Therefore, her excessive force claim
is not an independent claim, but rather is subsumed in her illegal seizure claim.
See Bashir v. Rockdale County, 445 F.3d 1323, 1331 (11 th Cir. 2006) (stating that
“[u]nder this Circuit’s law . . . a claim that any force in an illegal stop or arrest is
excessive is subsumed in the illegal stop or arrest claim and is not a discrete
excessive force claim” (quotation marks omitted)).6 Thus, our inquiry focuses on
Deputy Bostic’s seizure of Gray.
As stated in Gray’s earlier appeal, we apply the reasonableness standard
6
Although Gray alleges that Deputy Bostic tightened the handcuffs enough to cause her
pain, she has not argued that the handcuffing constituted excessive force even if Deputy Bostic’s
stop was supported by reasonable suspicion.
11
articulated in New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S. Ct. 733, 742-43
(1985), to school seizures by law enforcement officers. See Gray, No. 04-12240,
slip op. at 14. In T.L.O, the Supreme Court recognized that the substantial need to
maintain discipline in the classroom and foster a positive learning environment
“requires some modification of the level of suspicion of illicit activity needed to
justify a search” in the public school setting. Id. at 340, 105 S. Ct. at 742. To that
end, the Supreme Court concluded that “the accommodation of the privacy
interests of schoolchildren with the substantial need of teachers and administrators
for freedom to maintain order in the schools does not require strict adherence to the
requirement that searches be based on probable cause.” Id. at 341, 105 S. Ct. at
742. Instead, under T.L.O.’s reasonableness standard, “the legality of a search of a
student should depend simply on the reasonableness, under all the circumstances,
of the search.” Id. Under the T.L.O standard, the reasonableness of the search is
evaluated using a two-step inquiry: “first, one must consider ‘whether the . . .
action was justified at its inception’; second, one must determine whether the
search as actually conducted ‘was reasonably related in scope to the circumstances
which justified interference in the first place.’” Id. at 341, 105 S. Ct. at 742-43
(citations omitted). The T.L.O. standard mirrors the standard announced in Terry
v. Ohio governing the reasonableness of investigatory stops. See Terry v. Ohio,
12
392 U.S. 1, 20, 88 S. Ct. 1868, 1879 (1968).
Under T.L.O’s first prong, we examine whether Deputy Bostic has a
reasonable basis for calling Gray over to him, i.e., stopping her, and asking her
questions. It is undisputed that Deputy Bostic witnessed Gray threaten to do
something physically to her teacher. Under Alabama Code § 13A-11-8, a verbal
threat, “made with the intent to carry out the threat, that would cause a reasonable
person who is the target of the threat to fear for his or her safety,” constitutes the
crime of harassment, which is a Class C misdemeanor. See Ala. Code § 13A-11-
8(a)(1)-(3). Gray stresses neither Coach Williams nor Coach Horton feared for
their safety and that Deputy Bostic had no probable cause or arguable probable
cause to arrest her. However, under T.L.O., the level of suspicion in a school
setting needed to justify a search or an investigatory stop is only reasonableness
under the circumstances. Given his having witnessed Gray’s threat in a school
setting, Deputy Bostic’s stopping Gray to question her about her conduct was
reasonable.7
7
Although defendants claim Deputy Bostic had probable cause, the conduct in § 13A-11-
8 cases has been generally more egregious and has involved a credible threat. See, e.g., B.B. v.
State, 863 So.2d 132, 135-36 (Ala. Crim. App. 2003) (holding that a disruptive seventh grade
student who threatened to kill his teacher violated § 13A-11-8 where the student was very angry
during the incident, uttered the threat through clenched teeth and threw a desk across the room
while stating, “I hate that teacher, I hate that teacher,” and the teacher and another witness both
testified that they feared the student would harm the teacher); Fallin v. City of Huntsville, 865
So.2d 473, 477 (Ala. Crim. App. 2003) (concluding that defendant violated § 13A-11-8 where
defendant, a large man, was yelling threats to his daughter’s cheerleading coach while
13
Turning to T.L.O’s second prong, we must consider whether Deputy
Bostic’s subsequent handcuffing of Gray “was reasonably related to the scope of
the circumstances which justified the interference in the first place.” Id. at 341,
105 S. Ct. at 743 (quotation marks omitted and emphasis supplied). “[A seizure]
will be permissible in its scope when the measures adopted are reasonably related
to the objectives of the [seizure] and not excessively intrusive in light of the age
and sex of the student and the nature of the infraction.” T.L.O., 469 U.S. at 342,
105 S. Ct. at 743. After stopping Gray, Deputy Bostic not only questioned her,
but also handcuffed her for not less than five minutes. Thus, the question under the
second prong is whether the handcuffing of nine-year-old Gray was reasonably
related to the scope of the circumstances which justified Deputy Bostic’s initial
interference and was not excessively intrusive.
By his own admission, Deputy Bostic did not handcuff Gray to effect an
arrest of Gray. Rather, his handcuffing of Gray was during an investigatory stop.
Nonetheless, during an investigatory stop, an officer can still handcuff a detainee
when the officer reasonably believes that the detainee presents a potential threat to
approaching her with waiving arms and pointing fingers and the coach and other witnesses
testified that they were afraid for their safety).
However, because T.L.O. does not require probable cause in a school setting, we need
not reach the issue of whether Deputy Bostic had probable cause or arguable probable cause.
See Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (explaining that a showing of only
arguable probable cause is required to establish that an officer is entitled to qualified immunity).
14
safety. See United States v. Hastamorir, 881 F.2d 1551, 1557 (11 th Cir. 1989);
United States v. Blackman, 66 F.3d 1572, 1576-77 (11 th Cir. 1995); United States
v. Kapperman, 764 F.2d 786, 790-91 & n.4 (11 th Cir. 1985).
The problem in this case for Deputy Bostic is that, at the time Deputy Bostic
handcuffed Gray, there was no indication of a potential threat to anyone’s safety.
The incident was over, and Gray, after making the comment, had promptly
complied with her teachers’ instructions, coming to the gym wall and then to
Coach Horton when told to do so. There is no evidence that Gray was gesturing or
engaging in any further disruptive behavior. Rather, Gray had cooperated with her
teachers and did not pose a threat to anyone’s safety. In fact, Coach Horton had
insisted that she would handle the matter, but Deputy Bostic still intervened.
Deputy Bostic does not even claim that he handcuffed Gray to protect his or
anyone’s safety. Rather, Deputy Bostic candidly admitted that he handcuffed Gray
to persuade her to get rid of her disrespectful attitude and to impress upon her the
serious nature of committing crimes. In effect, Deputy Bostic’s handcuffing of
Gray was his attempt to punish Gray in order to change her behavior in the future.
Thus, Deputy Bostic’s handcuffing Gray was not reasonably related to the
scope of the circumstances that justified the initial investigatory stop. Rather, the
handcuffing was excessively intrusive given Gray’s young age and the fact that it
15
was not done to protect anyone’s safety. Therefore, the handcuffing of Gray
violated Gray’s Fourth Amendment rights.
D. Clearly Established Law
Whether a constitutional right was “clearly established” at the time of the
violation turns on “‘whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.’” Bashir, 445 F.3d at 1330
(quoting Saucier, 533 U.S. at 202, 121 S. Ct. at 2156). We focus on the status of
the law in March 2003 when Deputy Bostic detained and handcuffed Gray.
It is well settled that, under the Fourth Amendment, “[t]he scope of a
detention must be carefully tailored to its underlying justification” and that the
“investigatory methods employed [during a detention] should be the least intrusive
means reasonably available to verify or dispel the officer’s suspicion in a short
period of time.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26
(1983). As we have already discussed, this Court has long concluded that it is
reasonable for officers to use handcuffs to protect themselves during an
investigative detention. See Hastamorir, 881 F.2d 1556-57; Kapperman, 764 F.2d
at 790 n.4. However, Gray does not cite and we cannot locate a case addressing
before today when it may be reasonable to use handcuffs in an investigatory stop
absent a safety rationale. Thus, no factually similar pre-existing case law put
16
Deputy Bostic on notice that his use of handcuffs to discipline Gray was
objectively unreasonable for Fourth Amendment purposes.
However, our inquiry does not end here. Even in the absence of factually
similar case law, an official can have fair warning that his conduct is
unconstitutional when the constitutional violation is obvious, sometimes referred to
as “obvious clarity” cases. See United States v. Lanier, 520 U.S. 259, 271, 117 S.
Ct. 1219, 1227 (1997) (“[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] been previously held unlawful.”
(quotation marks omitted)); Vinyard v. Wilson, 311 F.3d 1340, 1350-51 (11 th Cir.
2002).
The Fourth Amendment’s general proscription against “unreasonable”
seizures seldom puts officers on notice that certain conduct is unlawful under
precise circumstances. Evans v. Stephens, 407 F.3d 1272, 1283 (11 th Cir. 2005)
(en banc). Nonetheless, on rare occasion we have concluded that general Fourth
Amendment principles make the constitutional violation obvious. See, e.g., Evans,
407 F.3d at 1283 (concluding that the constitutional violation was obvious where
an officer conducted body cavity searches in a degrading and forceful manner and
when there was no need for immediate action); Vinyard, 311 F.3d at 1355
17
(concluding that the constitutional violation was obvious where the officer grabbed
the arrestee by the hair and arm and applied pepper spray after she had been
handcuffed and secured in the back of the patrol car); Lee v. Ferraro, 284 F.3d
1188, 1198-99 (11 th Cir. 2002) (concluding that the constitutional violation was
readily apparent where an officer slammed the arrestee’s head against the trunk
after she was handcuffed, secured and any risk of danger or flight had passed);
Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11 th Cir. 2000) (concluding
that the constitutional violation was obvious where an officer permitted his dog to
attack a handcuffed, compliant arrestee for two minutes and then threatened to kill
the arrestee when he kicked the dog in an effort to resist the attack). In these cases,
the officer’s conduct at issue lay “so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily apparent to
[him] notwithstanding the lack of [fact-specific] case law.” Lee, 284 F.3d at 1199
(internal quotation marks omitted). Put another way, the officer’s conduct in these
cases was “well beyond the ‘hazy border’ that sometimes separates lawful conduct
from unlawful conduct,” such that every objectively reasonable officer would have
known that the conduct was unlawful. Evans, 407 F.3d at 1283.
We likewise conclude that Deputy Bostic’s conduct in handcuffing Gray, a
compliant, nine-year-old girl for the sole purpose of punishing her was an obvious
18
violation of Gray’s Fourth Amendment rights. After making the comment, Gray
had complied with her teachers’ and Deputy Bostic’s instructions. Indeed, one of
the teachers had informed Deputy Bostic that she would handle the matter. In
addition, Deputy Bostic’s purpose in handcuffing Gray was not to pursue an
investigation to confirm or dispel his suspicions that Gray had committed a
misdemeanor. Rather, Deputy Bostic’s purpose in handcuffing Gray was simply to
punish her and teach her a lesson. Every reasonable officer would have known that
handcuffing a compliant nine-year-old child for purely punitive purposes is
unreasonable. We emphasize that the Court is not saying that the use of handcuffs
during an investigatory stop of a nine-year-old child is always unreasonable, but
just unreasonable under the particular facts of this case.
Therefore, Deputy Bostic is not entitled to qualified immunity, and the
district court properly denied summary judgment in his favor.
E. Sheriff Sexton
Gray alleges that Sheriff Sexton failed to train and supervise adequately
Deputy Bostic on the proper use of force in this elementary school setting. The
district court dismissed Gray’s official capacity claim against Sheriff Sexton
without challenge. Thus, all that remains is her individual capacity claim against
Sheriff Sexton as Deputy Bostic’s supervisor.
19
Supervisory officials cannot be held liable under § 1983 for the
unconstitutional actions of their subordinates based on respondeat superior
liability. Hartley v. Parnell, 193 F.3d 1263, 1269 (11 th Cir. 1999).8 Instead,
supervisors can be held personally liable when either (1) the supervisor personally
participates in the alleged constitutional violation, or (2) there is a causal
connection between the actions of the supervisor and the alleged constitutional
violation. Id. Gray does not allege that Sheriff Sexton personally participated in
her handcuffed detention. Thus, Gray attempts to use the second method.
Under the second method, “[t]he causal connection can be established when
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.” Id. (quoting Brown v.
Crawford, 906 F.2d 667, 671 (11 th Cir. 1990)). Furthermore, to be sufficient to
notify the supervisor, the deprivations must not only be widespread, they also
“must be obvious, flagrant, rampant and of continued duration, rather than isolated
occurrences.” Id. (quoting Brown, 906 F.2d at 671).
There is no evidence in the record of widespread and obvious handcuffed
detentions of students by Deputy Bostic or other deputy sheriffs. There was some
8
For this reason, we reject Gray’s argument that Sheriff Sexton can be held liable
because, under Alabama law, a deputy sheriff is the agent and alter ego of the sheriff. To hold
Sheriff Sexton liable for Deputy Bostic’s alleged constitutional violation under an alter ego
theory would amount to respondeat superior liability.
20
vague, arguably hearsay testimony by Coach Horton that she had heard that
Deputy Bostic once placed another Holt Elementary student in handcuffs.
However, there is no evidence that Sheriff Sexton was aware of this alleged
incident. Furthermore, this one isolated incident, of which there are no details, is
not sufficient to put Sheriff Sexton on notice that Deputy Bostic needed additional
training or supervision on the use of force when detaining minors.
We also recognize that Gray alleges that Sheriff Sexton instituted a policy
instructing deputies to detain, handcuff, arrest and incarcerate individuals who
were not suspected of committing a crime. There is no evidence in the record,
however, that Sheriff Sexton instituted such a policy or any other policy that would
have led Deputy Bostic to believe that he could detain a student in handcuffs
absent safety concerns.
Finally, Gray emphasizes that Deputy Bostic received no training
specifically addressing the detention of students. She contends that Sheriff Sexton
should have foreseen that unwarranted handcuffed detentions of students were
“bound to happen” without such training. Thus, Gray is arguing that the need to
train was “so obvious” that the failure to do so constituted deliberate indifference
without prior notice. See Gold v. City of Miami, 151 F.3d 1346, 1352 (11 th Cir.
1998) (addressing municipal liability for failure to train).
21
The Supreme Court has “hypothesized that, in a narrow range of
circumstances, a violation of federal rights may be a highly predictable
consequence of a failure to equip law enforcement officers with specific tools to
handle recurring situations.” Id. (quoting Bd. of County Comm’rs v. Brown, 520
U.S. 397, 409, 117 S. Ct. 1382, 1391 (1997). However, the Supreme Court’s only
example of an obvious training need was the use of deadly force when police
officers are given firearms. We have already determined that the need for training
regarding the proper use of handcuffs is “‘[u]nlike the risk from a particular glaring
omission in a training regimen,’” and is instead a risk from a “possible
imperfection[], . . . in . . . training and supervision” that is “‘not obvious in the
abstract.’” Id. at 1352 (quoting in part Brown, 520 U.S. at 409, 117 S. Ct. at
1391).
We similarly conclude that the need for training regarding the detention of
students specifically is not obvious in the abstract and that a lack of such training is
a “possible imperfection,” but not a “glaring omission” from a training regimen.
Deputy Bostic received training, at both the police academy and the Tuscaloosa
County Sheriff’s Department, on the proper use of force and the principles of
probable cause. The failure to provide specific training regarding the detention of
students, in addition to general training regarding use of force during detention and
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arrest, was not “so likely” to result in the violation of students’ Fourth Amendment
rights that Sheriff Sexton reasonably can be said to have been deliberately
indifferent to the need for this particularized training without any prior notice. See
City of Canton v. Harris, 489 U.S. 378, 390-92, 109 S. Ct. 1197, 1205-07 (1989)
(finding no obvious need to train jail supervisors regarding when to provide
medical treatment beyond first aid); Gold, 151 F.3d at 1352; Young v. City of
Augusta, 59 F.3d 1160, 1172 (11th Cir. 1995) (finding no obvious need to train
jailers regarding medical treatment for mental illnesses and dispensing of
prescribed medication).9 Accordingly, Sheriff Sexton was entitled to summary
judgment in his individual capacity.
F. Injunctive Relief
Defendants also argue that the district court erred in failing to grant
summary judgment on Gray’s claim for injunctive relief against Sheriff Sexton.10
9
Gray cites no case law or statute that required Sheriff Sexton to train SROs, such as
Deputy Bostic, on how to detain students. Therefore, the law was not “clearly established” for
purposes of qualified immunity such that a reasonable official in Sheriff Sexton’s shoes would
have known that the failure to provide such training constituted deliberate indifference. See
Riley v. Newton, 94 F.3d 632, 637 (11th Cir. 1996) (concluding that sheriff was entitled to
qualified immunity on failure-to-train claim where plaintiffs failed to cite case law or
constitutional provision requiring sheriff to provide training on how to use Army personnel and
rejecting plaintiffs’ argument that City of Canton’s general standard of liability in failure to train
cases clearly established the right).
10
Generally, the denial of summary judgment on a claim for injunctive relief is not a final
appealable decision. Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 25,
87 S. Ct. 193, 195 (1966). However, “[u]nder the pendant appellate jurisdiction doctrine, we
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Specifically, Gray’s injunctive relief claim seeks a declaration that Sheriff Sexton’s
custom or policy of failing to train deputies on the detention of students is
unconstitutional and seeks to enjoin Sheriff Sexton from continuing to implement
that custom or policy. However, there is no evidence of an unconstitutional policy
or custom implemented by Sheriff Sexton. Therefore, Gray’s claim for injunctive
relief against Sheriff Sexton also necessarily fails. Accordingly, Sheriff Sexton is
entitled to summary judgment on Gray’s claim for injunctive relief.
IV. CONCLUSION
For the forgoing reasons, we affirm the district court’s denial of summary
judgment on Gray’s illegal seizure claim against Deputy Bostic in his individual
capacity, reverse the district court’s denial of summary judgment on Gray’s claims
against Sheriff Sexton and on her separate excessive force claim against Deputy
Bostic, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMAND.
may address [otherwise] nonappealable orders if they are ‘inextricably intertwined’ with an
appealable decision.” Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (quotation marks
omitted). Here, Gray’s claim for injunctive relief and Sheriff Sexton’s argument that he is
entitled to qualified immunity are inextricably intertwined because both turn on whether Sheriff
Sexton has implemented an unconstitutional policy or custom. See Moniz v. City of Fort
Lauderdale, 145 F.3d 1278, 1281 n.3 (11th Cir. 1998) (concluding that the issues are inextricably
intertwined when the court, in resolving the qualified immunity issue, also reaches the merits of
the pendant claim).
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