[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
___________ ELEVENTH CIRCUIT
MAR 11, 2009
No. 08-12348 THOMAS K. KAHN
___________ CLERK
D.C. Docket No. 06-81139-CV-DTKH
LINDA LEWIS, as mother and personal representative of the estate of her son,
Donald George Lewis, deceased,
Plaintiff-Appellant,
versus
CITY OF WEST PALM BEACH, FLORIDA, RAYMOND SHAW, ROBERT
LEROY ROOT, III, RANDALL MAALE, THELTON LUKE, AUDREY DUNN,
Police Officers for the City of West Palm Beach Police Department, in their
individual capacities,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Florida
____________
(March 11, 2009)
Before DUBINA and CARNES, Circuit Judges, and GOLDBERG,* Judge.
* Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by
designation.
GOLDBERG, Judge:
While in the custody of five police officers in West Palm Beach, Florida,
Donald George Lewis became unconscious, and eventually died. Following the death
of her son, Linda Lewis filed an action against the City of West Palm Beach and the
individual police officers Raymond Shaw, Robert Leroy Root III, Randall Maale,
Thelton Luke, and Audrey Dunn pursuant to 42 U.S.C. § 1983 and Florida state law.
The district court granted summary judgment in favor of the City of West Palm Beach
and the individual officers. Ms. Lewis appealed this order. For reasons discussed
below, we affirm the decision of the district court.
Background
On October 19, 2005, Officer Raymond Shaw encountered Donald George
Lewis near the intersection of 45th Street and Broadway in West Palm Beach,
Florida. Lewis was disoriented, stumbling into the road, and trying to flag down
passing vehicles. Officer Shaw attempted to stop Lewis, who was breathing heavily,
grunting incoherently, and appeared to be under the influence of some type of
narcotic. Shaw instructed Lewis to sit down on the side of the road. Lewis complied,
but seconds later he stood and ran into traffic. Shaw struggled with Lewis and
maneuvered him to the ground. He then attempted to handcuff Lewis’s hands behind
2
his back. Officer Robert Root appeared on the scene. In an effort to assist Shaw in
the handcuffing process, Officer Root placed his knee on Lewis’s upper back and
neck. Officer Thelton Luke also arrived on the scene. Officers Luke and Root then
bound Lewis’s legs using a leg restraint. Throughout, Lewis continued groaning and
breathing heavily and did not respond to Shaw’s repeated requests to calm down. The
three officers carried Lewis to the side of the road. They attempted to place him in
a seated position, but Lewis would not sit up. Officers Randall Maale and Audrey
Dunn arrived. Officer Maale suggested Root further restrain Lewis by attaching the
ankle restraint to the handcuffs with a hobble cord1 (also known as “TARP,” the total
appendage restraint position). In an attempt to attach the hobble, Luke and Root kept
their knees on Lewis’s back, while Shaw picked up Lewis’s bound legs and pushed
them forward. The hobble was tightened so that Lewis’s hands and feet were close
together behind his back in a “hogtied” position.2 After Lewis’s hands and feet were
bound together, Maale realized that Lewis had become unconscious. The officers
removed the hobble and restraints and began CPR. Paramedics arrived within
minutes, but were unable to resuscitate Lewis. He was later pronounced dead.
The exact cause of death is unclear. At the district court level, the defendants
1
A hobble cord is a strap with a loop on one end and a metal hook at the other that is used to limit
movement by connecting the ankle restraint to the handcuffs.
2
Also referred to as fettering, the hogtie position is one where the hands and feet are strapped
relatively closely together behind the back, rendering the subject immobile.
3
relied on the testimony of Dr. Michael Bell, the county medical examiner who
performed the autopsy of Lewis. Dr. Bell concluded that the cause of death was
“sudden respiratory arrest following physical struggling restraint due to cocaine-
induced excited delirium.” Ms. Lewis offered the expert testimony of Dr. Michael
Baden, who testified that the cause of death was asphyxia caused by neck
compression.3
Standard of Review
A district court’s grant of summary judgment is reviewed de novo.
Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004). In evaluating
the claims, the evidence and factual inferences are viewed in a light most
favorable to the nonmoving party. Id. at 1226.
Discussion
I. Qualified Immunity for the Police Officers
3
The entire incident was captured on videotape, which was submitted as evidence to the district
court, and is part of the record on appeal. We have followed the Supreme Court’s example and
reviewed de novo the videotape evidence that was presented to the district court at the summary
judgment stage. See Scott v. Harris, 550 U.S. 372, ___, 127 S. Ct. 1769, 1776 (2007)
(“Respondent’s version of events is so utterly discredited by the record that no reasonable jury
could have believed him. The Court of Appeals should not have relied on such visible fiction; it
should have reviewed the facts in the light depicted by the videotape.”).
4
Appellant claims that Officers Shaw, Root, and Luke in restraining Lewis
used excessive force in violation of the Fourth Amendment. Appellant argues that
Officers Maale and Dunn had a duty to intervene when witnessing the use of
excessive force, and they failed to do so. She asserts that pursuant to 42 U.S.C. §
1983 the officers are liable for constitutional violations in their individual
capacities. The officers dispute these assertions and claim exemption from civil
liability under the doctrine of qualified immunity.
Qualified immunity protects municipal officers from liability in § 1983
actions as long “as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). To receive qualified immunity, the officer
must first show that he acted within his discretionary authority. Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002). It is undisputed in this case that the officers
were acting within their discretionary authority.
Once discretionary authority is established, the burden then shifts to the
plaintiff to show that qualified immunity should not apply. Id. In analyzing the
applicability of qualified immunity, the Court has at its disposal a two-step
process. Saucier v. Katz, 533 U.S. 194, 201 (2001). Traditionally, a court first
determines whether the officer’s conduct amounted to a constitutional violation.
5
Id. Second, the court analyzes whether the right violated was “clearly established”
at the time of the violation. Id. The intention is to “ensure that before they are
subjected to suit, officers are on notice that their conduct is unlawful.” Id. at 206.
Thus, if the violated right was not clearly established, qualified immunity still
applies. Id. at 201. The Supreme Court recently clarified the Saucier two-step
process explaining that the order of the inquiry is fluid, providing the Court with
the flexibility to focus on the determinative question. Pearson v. Callahan, U.S.
2009, 555 U.S. ___ (No. 07-751, Jan. 21, 2009). The Supreme Court recognized
that discussion of a constitutional violation may become unnecessary for qualified
immunity purposes when the right was not clearly established. Id. It is therefore
not mandated that the Court examine the potential constitutional violation under
Saucier step one prior to analyzing whether the right was clearly established under
step two. Id.
Such analytical flexibility is certainly applicable here. Even if the officers’
actions violated Lewis’s Fourth Amendment rights, the appellant did not
demonstrate that the officers’ conduct was an intrusion on a clearly established
right. A right may be clearly established for qualified immunity purposes in one
of three ways: (1) case law with indistinguishable facts clearly establishing the
constitutional right, Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007); (2) a
6
broad statement of principle within the Constitution, statute, or case law that
clearly establishes a constitutional right, id.; or (3) conduct so egregious that a
constitutional right was clearly violated, even in the total absence of case law.
Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).
Here, case law does not provide the necessary precedent, either specifically
or through broad principles, to clearly establish the right. Thus, only if the
officers’ conduct was so egregious and unacceptable so as to have blatantly
violated the Constitution would qualified immunity be unavailable to them.
However, to come within this narrow exclusion, “plaintiff 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 case law on point.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.
1997). This standard is met when every reasonable officer would conclude that
the excessive force used was plainly unlawful. Priester v. City of Riviera Beach,
Fla., 208 F.3d 919, 926-27 (11th Cir. 2000). Appellant argues that because the
officers further restrained Lewis with the hobble after the need for any use of force
had passed and tightened it to form a hogtie, the officers’ conduct rose to this level
of egregiousness. This is not the case. Even though most of the officers in this
case testified that Lewis was not a danger to them and was merely resisting arrest,
7
he was, as the district court described, “an agitated and uncooperative man with
only a tenuous grasp on reality.” Because of his refusal to sit upright and his
inability to remain calm, Lewis remained a safety risk to himself and to others.
As the district court observed, this was precisely the type of situation where
the decisions of the officers confronted with “circumstances that are tense,
uncertain, and rapidly evolving” should not be second-guessed. See Graham v.
Connor, 490 U.S. 386, 397 (1989). Unlike many of the cases cited by plaintiff,
Lewis did not remain compliantly restrained. Cf. Lee v. Ferraro, 284 F.3d 1188
(11th Cir. 2002) (qualified immunity denied to officer who was physically rough
with arrestee despite any sort of threat or physical aggression on her part); Priester
v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (qualified immunity
denied to officer who ordered a dog attack on a passive suspect); Smith v. Mattox,
127 F.3d 1416 (11th Cir. 1997) (qualified immunity denied on summary judgment
to officer who broke arrestee’s arm after he was passively under arrest). Even
though he was not forcefully attacking the officers, Lewis continued to struggle.
The application of the hobble may not have been entirely necessary; however, the
officers’ attempts to restrain Lewis were not so violent and harsh to be considered
an egregious violation of a constitutional right, and they are not an obstacle to the
8
application of qualified immunity. Despite the unfortunate result that night,
qualified immunity insulates the officers from liability for Lewis’s death.
II. Municipal Liability for the City of West Palm Beach
In addition to the liability pegged on the police officers, Appellant also
claims that the City of West Palm Beach is responsible for Lewis’s death pursuant
to 42 U.S.C. § 1983 because of a failure to provide adequate training to its police
officers on the use and application of hobbles. Appellant contends that the
pressure applied to Lewis’s upper back and neck by Officer Luke and then Officer
Shaw, along with the use of the hobble as a hogtie caused Lewis’s sudden death,
and that these actions can be attributed to City policy.
A city may only be held liable under 42 U.S.C. § 1983 when the injury
caused was a result of municipal policy or custom. City of Canton v. Harris, 489
U.S. 378, 385 (1989). Municipal policy or custom may include a failure to
provide adequate training if the deficiency “evidences a deliberate indifference to
the rights of its inhabitants.” Id. at 388. To establish a city’s deliberate
indifference, “a plaintiff must present some evidence that the municipality knew of
a need to train and/or supervise in a particular area and the municipality made a
deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346,
9
1350 (11th Cir. 1998). A city may be put on notice in two ways. First, if the city
is aware that a pattern of constitutional violations exists, and nevertheless fails to
provide adequate training, it is considered to be deliberately indifferent. Id. at
1351. Alternatively, deliberate indifference may be proven without evidence of
prior incidents, if the likelihood for constitutional violation is so high that the need
for training would be obvious. Id. at 1351-52.
Appellant’s argument rests on the latter premise. Appellant claims that the
need for training on the proper use of hobble restraints and the proper placement
of weight on an arrestee’s back during the restraint process is “so obvious” that it
requires proactive training by the City to ensure avoidance of constitutional
violations. In establishing this form of notice, the Supreme Court referenced the
proper use of firearms and the correct use of deadly force as an area that would be
so obvious as to require adequate training by the municipality to avoid liability.
City of Canton, 489 U.S. at 390 n. 10. In comparison, this Court refused to
acknowledge the proper response to handcuff complaints as so obvious as to put
the municipality on notice that training is required. Gold, 151 F.3d at 1352.
Similarly, the application of a hobble does not rise to the level of obviousness
reserved for “a narrow range of circumstances [where] a violation of federal rights
may be a highly predictable consequence” of a failure to provide adequate
10
training. Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397,
409 (1997). Despite the questionable use of the hobble in this particular situation,
hobbles do not have the same potential flagrant risk of constitutional violations as
the use of deadly firearms. Failure to provide training on hobbles is not a
“particular glaring omission in a training regimen.” Id. at 410. Notably, in both
the case at bar and as previously decided in Garrett v. Athens-Clarke County, 378
F.3d 1274, 1280 (11th Cir. 2004), hogtying or “fettering” under the given
circumstances does not violate the Fourth Amendment. The City is therefore
unlikely to be on notice of its potential legal ramifications in this context. Thus,
the hobble, and the understanding of its proper application, does not carry a high
probability for constitutional violations in the manner intended by the “so
obvious” notice that would open the door to municipal liability.
Additionally, the City of West Palm Beach does provide training on the use
of the hobble. In resolving the issue of the City’s liability, “the focus must be on
the adequacy of the training programs in relation to the tasks the particular officers
must perform,” and not merely on the training deficiencies for a particular officer.
Canton, 489 U.S. at 390. It is thus irrelevant what training each specific officer
present at the scene was given or retained. Training Officer Gerald MacCauley
testified that the City of West Palm Beach provides regular training on the use of
11
force, and additionally provides specific training on the use of hobbles. The
officers are also told that the proper placement of pressure or weight placed on an
individual while restraining them should be on the back, near the shoulder blades,
and not on the neck area. Officer MacCauley further emphasized that it is
department policy not to hogtie arrestees; however it is acceptable to bring the
ankles near the wrists briefly, if necessary, while attaching the hobble. While not
under a specific constitutional duty under § 1983, the City takes actions to ensure
that arrestees are not subjected to unnecessary or painful procedures when
restrained.
Because the City of West Palm Beach did not maintain a deliberate
indifference to a potentially obvious constitutional violation and because the City
provides some training on the use of hobbles, the City cannot be held liable under
42 U.S.C. § 1983.
III. Wrongful Death Claim Against the City
The district court found that Appellant failed to state a claim of wrongful
death because she alleged that the officers’ use of force was negligent, and there is
no cause of action for the negligent use of force. The district court is correct on
this count; it is inapposite to allege the negligent commission of an intentional
12
tort, such as the use of excessive force. See City of Miami v. Ross, 695 So.2d 486,
487 (Fla. 3d DCA 1997); City of Miami v. Sanders, 672 So.2d 46, 48 (Fla. 3d
DCA 1996). This claim fails.
Conclusion
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of the individual police officers named in this case, and the City
of West Palm Beach.
AFFIRMED.
13