[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11078 APR 20, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-00052-CV-CDL-4
WILLIE L. GLENN, as Personal
Representative of the Estate
of Lester Zachary,
KAREN ZACHARY, Individually, and
As Next Friend of Lester Zachary,
Plaintiffs-Appellees,
versus
CITY OF COLUMBUS, GEORGIA,
RICHARD BOREN, Individually,
and In his Official Capacity
as Chief of Police, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 20, 2010)
Before BLACK, MARCUS and HIGGINBOTHAM,* Circuit Judges.
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
PER CURIAM:
In this tragic excessive force case, Columbus, Georgia, police officers Gary
Bolen, Kenneth Hudson, Joseph Coats, and Gregory Touchberry appeal the district
court’s denial of their motion for summary judgment on the basis of qualified
immunity. The representatives of Lester Zachary’s estate claim that Officer Coats
and Sergeants Touchberry and Hudson violated Zachary’s rights under the Fourth
Amendment when they fatally shot him with a beanbag gun in the early morning
hours of April 4, 2005. The estate also says that Officer Bolen violated Zachary’s
constitutional rights when he prepared a training manual that incorrectly advised
officers to aim the beanbag gun at the target’s center mass at distances of twenty to
forty feet.
After thorough review, we conclude that the officers are entitled to qualified
immunity. The officers’ use of a beanbag gun under the tense and dangerous
circumstances of this case was not clearly established to be illegal. Accordingly,
we reverse the denial of qualified immunity and remand for further proceedings
consistent with this opinion.
I.
A.
We review de novo a district court’s disposition of a summary judgment
motion based on qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th
Cir. 2002). Summary judgment is appropriate if “there is no genuine issue as to
any material fact and the moving party is entitled to a judgment as a matter of law.”
McCullough v. Antolini, 559 F.3d 1201, 1204-05 (11th Cir. 2009) (citation
omitted). Moreover, we are “required to view the facts and draw reasonable
inferences in the light most favorable to the party opposing the [summary
judgment] motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation and
quotation marks omitted) (alteration in the original). Because the plaintiff is
deceased, and because Helen Stephens, the only other non-officer witness to the
entire event, could not recall the incident when she was deposed, we necessarily
derive many of the facts from the officers’ accounts of the shooting and from the
911 transcript. Nevertheless, “where there is a discrepancy between the statements
of the defendants, we have resolved the dispute by using only those statements
most favorable to the plaintiff.” McCullough, 559 F.3d at 1202.
B.
This sad story began around 3:00 in the morning on April 4, 2005, when
Lester Zachary, a veteran plagued with mental illness and recurring dreams of
deaths he had witnessed in wartime, awoke with bad dreams. He called the
Veteran’s Administration [“VA”] Hospital tele-nurse line to ask for help managing
the nightmare and his anxiety. In that call, Zachary told the nurse that he had been
3
dreaming of killing children, and that he was armed.
A nurse from the VA Hospital reported Zachary’s call to the Columbus, GA
911 line. She described her call with Zachary this way: “He called, he was
extremely upset, that nightmares woke him up, nightmares of killing kids. He was
raving. He has slurred speech. He was talking about the kids he killed. . . . And,
he does have guns, and presume that they’re loaded.” The VA nurse also warned
the dispatcher that Zachary was suicidal, threatening to kill himself with a gun.
The 911 dispatchers relayed this information to police officers at
approximately 3:13 A.M., alerting them that there was a “psychiatric problem”
who had “told calltaker that he was having dreams of 7100 [homicide], and
advis[ed] he does have a gun in the residence.” A firetruck and Emergency
Medical Services drove to Zachary’s one-level house, followed by Columbus
Police Department (“CPD”) officers, including Sergeants Hudson and Touchberry
and Officer Coats. The officers encountered a large dog tied to the fenced-in front
porch.
Between the first police dispatch and Zachary’s shooting at 3:41 A.M., the
police dispatchers called Zachary’s house many times. At first, Zachary threatened
the officers, shouting “[y]ou tell these guys in front my door, I’m . . . going to start
shooting. I’ll start shooting.” Later, Zachary answered in a calmer tone: “Nothing
4
wrong, baby. Nothing wrong, I’m fine.” Nevertheless, after the 911 dispatchers
investigated Zachary in their system, they reported to the officers that he was
classified as dangerous.
The officers and dispatchers tried to coax Zachary and his common-law
wife, Helen Stephens, out of the house to talk with them. Zachary left the house at
least twice, remaining on the porch, shouting, waving his arms wildly, and pacing.
He told the officers to leave the property. He lifted his shirt to show the officers
that he was unarmed, but he warned the officers that his dog would bite them if
they approached.
Stephens left the porch to talk with Sergeant Hudson. She told him that
Zachary was unarmed and that she felt safe. She also told the officer that there was
a fourteen-year-old child sleeping in the back bedroom. Zachary announced to the
officers that “this is over with” and that he was going to bed. He took Stephens by
her upper arm and “ushered” her back into the house, shutting the door.
Worried that Zachary would retreat into the house before he could be
secured, the officers decided to deploy the beanbag munition to subdue him.
Officer Coats positioned himself behind a car about twenty-one feet from the porch
with the beanbag gun. Hudson and Touchberry summoned Zachary out of the
house. When he emerged, Coats shot Zachary with the beanbag gun. The round
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hit Zachary in the lower back. He fell onto a couch on the porch. After Zachary
tried to push himself up, Coats shot again. The shot ricocheted off of a flower pot
on the porch, hitting Zachary in the upper left chest. Zachary fell to the ground.
Hudson and Touchberry vaulted themselves over the porch fence and handcuffed
Zachary. The officers charged Zachary with making terroristic threats and acts in
violation of O.C.G.A. § 16-11-37(a).1 Although he was able to walk off the porch
after the shooting, Zachary sustained serious internal bleeding. He died two days
later in the hospital.
C.
Willie L. Glenn, the administrator of Zachary’s estate, and Karen Zachary,
Lester Zachary’s wife, brought this suit in the United States District Court for the
Middle District of Georgia, seeking to hold the defendants Hudson, Touchberry,
Coats, Bolen, Chief of Police Richard Boren and the City of Columbus liable under
42 U.S.C. § 1983 for violations of Zachary’s Fourth Amendment right to be free
from an unreasonable seizure and from excessive force. The plaintiffs also
asserted violations of the Fourteenth Amendment’s Due Process Clause, the First
Amendment and Fourteenth Amendment’s Equal Protection Clause. Finally, they
claimed a civil conspiracy under 42 U.S.C. § 1985 and various torts arising under
1
Under Georgia law, “[a] person commits the offense of a terroristic threat when he or
she threatens to commit any crime of violence.” O.C.G.A. § 16-11-37(a).
6
Georgia law.
After discovery, the defendants moved for summary judgment. On
December 2, 2008, the district court issued an order, granting the motion for
summary judgment for most of the claims, but denying qualified immunity to the
officers for the Section 1983 excessive force claims.2 Glenn v. City of Columbus,
Ga., No. 4:07-cv-52 (CDL), 2008 WL 5115032, at *12 (M.D. Ga. Dec. 2, 2008).
In denying the officers qualified immunity, the district court concluded that
their use of force was not objectively reasonable under the Fourth Amendment.
The court reasoned that the two threats of homicide were mitigated when Zachary
appeared to have calmed some and lifted his shirt to show the officers that he was
unarmed. Id. The district court also found that there was a jury question about
whether Bolen violated Section 1983 in delivering instructions to his officers
concerning the use of the beanbag gun. Id. at *14. The officers timely appealed the
denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985).
II.
The only issue before us in this interlocutory appeal is whether Officers
2
The district court also denied summary judgment for the following claims: 1) Section
1983 claims against the City of Columbus for excessive force; 2) assault and battery claims
against Coats, Hudson, and Touchberry; and 3) intentional infliction of emotional distress claims
against Coats, Hudson, and Touchberry. Glenn v. City of Columbus, Ga., No. 4:07-cv-52
(CDL), 2008 WL 5115032, at *20 (M.D. Ga. Dec. 2, 2008).
7
Coats and Bolen and Sergeants Touchberry and Hudson are entitled to qualified
immunity. “[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.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009)
(quoting McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009)).
Qualified immunity is intended to protect officials carrying out their discretionary
duties from “personal monetary liability and harassing litigation . . . as long as their
actions could reasonably have been thought consistent with the rights they are
alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). This
protection is broad. “Defendants will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have concluded that a warrant
should issue; but if officers of reasonable competence could disagree on this issue,
immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Qualified immunity protects officers acting within the scope of their
discretionary authority at the time of the incident. McCullough, 559 F.3d at 1205.
If the officer was acting within his discretionary authority -- and it is undisputed
that Bolen, Hudson, Touchberry, and Coats were -- then the plaintiff has the
burden to prove that a reasonable officer would have known that he was violating
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the Constitution or the laws of the United States. Id. To defeat the presumption of
qualified immunity, the plaintiff must demonstrate both that the facts, when viewed
in a light most favorable to the plaintiff, establish a constitutional violation and that
the illegality of the officer’s actions was “clearly established” at the time of the
incident. Pearson v. Callahan, 129 S.Ct. 808, 815-16, 818 (2009). In Pearson, the
Supreme Court recently held that we are no longer obliged to conduct the qualified
immunity analysis in the sequence set forth in Saucier v. Katz, 533 U.S. 194
(2001). Accordingly, we may now exercise our discretion to decide which prong
of the inquiry to address first. Pearson, 129 S.Ct. at 818.
In this case, we need not address the first question at all because, even if we
were to assume that Zachary’s shooting violated the Constitution, the plaintiffs
cannot demonstrate that the law was so clearly established as to give the officers
fair warning that shooting a beanbag gun at Zachary under these circumstances
would have been illegal. We, therefore, begin and end our analysis with an
examination of the second prong.
To prove that the officers violated “clearly established statutory or
constitutional rights of which a reasonable person would have known,” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982), the plaintiff may either offer case law from
the relevant jurisdictions or show that the right is one of “‘obvious clarity’-- i.e.,
9
where the officer’s conduct ‘lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily apparent to
[the official], notwithstanding the lack of fact-specific case law’ on point.” Oliver,
586 F.3d at 907 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir.
2002)) (alteration in the original).
As for the case law, “we look to the precedent of the Supreme Court of the
United States, this Court’s precedent, and the pertinent state’s supreme court
precedent, interpreting and applying the law in similar circumstances.” Id.;
McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007); Marsh v. Butler
County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc). Prior cases need not
demonstrate the illegality of challenged conduct in the exact factual circumstance.
Hope v. Pelzer, 536 U.S. 730, 739 (2002). Rather, the issue is “whether the state
of the law [on April 4, 2005] gave respondents fair warning that their alleged
treatment of [Zachary] was unconstitutional.” Id. at 741; Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1278 (11th Cir. 2004). “This inquiry ‘must
be undertaken in light of the specific context of the case, not as a broad general
proposition.’” McCullough, 559 F.3d at 1205 (quoting Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002)).
“[A] claim of ‘excessive force in the course of making [a] . . . ‘seizure’ of
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[the] person . . . [is] properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard.’” Scott v. Harris, 550 U.S. 372, 381 (2007) (quoting
Graham v. Connor, 490 U.S. 386, 388 (1989)) (alterations in the original); Lee,
284 F.3d at 1197. When determining whether the force used to effect a seizure is
reasonable for Fourth Amendment purposes, a court must balance “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests.” Graham, 490 U.S. at 396. We necessarily
consider several factors in the calculus, including “the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. “The ‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. This standard allows for an understanding that reasonable
officers may incorrectly perceive the seriousness of a threat: “[t]he calculus of
reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments -- in circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that is necessary in a particular
situation.” Id. at 396-97.
To begin with, there is no case in either the United States Supreme Court,
11
the Supreme Court of Georgia, or in the United States Court of Appeals for the
Eleventh Circuit that comes close to identifying the illegality of the officers’ use of
force in these factual circumstances. First, there is no case involving beanbag
munitions in any of the relevant courts. The plaintiff principally relies upon the
Ninth Circuit’s beanbag case, Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001),
to establish that the officers violated clearly established law. Despite factual
similarities, the California case cannot provide fair warning to the officers in
Columbus, Georgia, because, again, in this Circuit, only cases from the pertinent
state supreme court, the United States Supreme Court, or the Eleventh Circuit can
clearly establish the law.3
Nor is there any roughly analogous case law that would suffice to put the
officers on notice of the illegality of their conduct in these “tense, uncertain”
circumstances. On April 4, 2005, there were no cases in the relevant jurisdictions
3
The case is also factually distinguishable. In Deorle, Officer Rutherford fired a beanbag
gun at a psychologically troubled man who had been threatening to commit suicide and had been
acting erratically. Deorle v. Rutherford, 272 F.3d 1272, 1275-78 (9th Cir. 2001). Although
Deorle had been holding a hatchet, a crossbow, and a can, he had discarded the weapons at the
officers’ request. Id. at 1276-77. Rutherford shot nevertheless, hitting Deorle in the face,
fracturing his skull, and dislodging his left eye. Id. at 1278. Because the threats the officers
faced in this case differed substantially from those found in Deorle, the facts give yet another
reason why Deorle could not “fairly warn” the officers of a potential constitutional violation in
these circumstances. In Deorle, the officers had full view of Deorle throughout the incident and
could assess the threat he posed to himself. In sharp contrast, here, the officers feared allowing
Zachary to retreat back into the house, where he might have weapons hidden and a child was
asleep.
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on the use of less than deadly force (here a beanbag munition) to subdue a suspect
who had threatened to shoot at officers who were in front of his house, spoke about
killing children, and threatened suicide.4 There were reported cases involving
handguns, see, e.g., Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003), and a case
involving the use of a Taser gun, see Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004), but this weapon (a beanbag gun) lies in the unwashed middle somewhere
between deadly force and the use of a Taser gun.
For the clearly established prong, the district court’s opinion cites only to
Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), for the proposition that “[t]he use
of deadly force to prevent the escape of all felony suspects, whatever the
circumstances, is constitutionally unreasonable. . . . Where the suspect poses no
immediate threat to the officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly force to do so.” Id. at
4
The closest factual case involving the use of less than lethal munitions is Mercado v.
City of Orlando, 407 F.3d 1152 (11th Cir. 2005), where a panel of this Court held that the
officers used excessive force in shooting a baton gun at the head of man threatening to commit
suicide. However, the Mercado opinion was issued on April 29, 2005, a few weeks after the
incident. It cannot be considered for the purposes of whether the officers’ actions were clearly
established to be illegal at the time of the shooting. In any case, Mercado is factually
distinguishable because the victim in that case “was not committing a crime, resisting arrest, or
posing an immediate threat to the officers at the time he was shot in the head.” Id. at 1157-58.
Here, the officers had probable cause to arrest Zachary for making terroristic threats in violation
of O.C.G.A. § 16-11-37(a). The officers also perceived a real threat to the child in the house and
to Stephens as well. Finally, it is not at all clear that the use of a baton gun was equivalent to the
use of a beanbag munition.
13
11. However, Garner itself held that where the officer “has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer
or to others, it is not constitutionally unreasonable to prevent escape by using
deadly force.” Id. When there is “threatened infliction of serious physical harm,
deadly force may be used if necessary to prevent escape, and if, where feasible,
some warning has been given.” Id. at 11-12.
The district court’s reliance on Garner is misplaced. First, Garner is
distinguishable, because, instead of merely preventing the “escape” of a non-
threatening felon, the officers in this case used force to prevent threatened harm
against a child, whom the officers identified as the fourteen-year-old sleeping in
the house, against Stephens, or against Zachary himself. Moreover, under Garner’s
terms, deadly force may be used when “the suspect poses a threat of serious
physical harm, either to the officer or to others.” Id. at 11. Here, the officers
reasonably believed on the basis of the defendant’s threats that he was equipped to
commit and had contemplated homicide as well as suicide. Beyond that, and
perhaps most importantly, the use of a bean bag munition, unlike a firearm, is not
characterized as deadly force. The bean bag was classified by the Columbus Police
Department as a Level 6, the highest level use of force below deadly force, and was
authorized “when deadly force is not justified, but empty hand control and OC
14
[pepper spray] is not sufficient in effecting an arrest.”
The plaintiff also argues that Lundgren v. McDaniel, 814 F.2d 600 (11th Cir.
1987), and Pablo Hernandez v. City of Miami, 302 F.Supp.2d 1373 (S.D. Fla.
2004), clearly establish the law. Again, we are unpersuaded. In Lundgren, where
officers shot store owners with a handgun, a panel of this Court held that “shooting
a suspected felon who was apparently neither fleeing nor threatening the officers or
others . . . clearly violated fourth amendment law.” 814 F.2d at 603. In Pablo
Hernandez, a district court denied qualified immunity where the officers shot after
the suspect had dropped the gun and was fleeing on foot. 302 F. Supp. 2d at 1380-
81. But Pablo Hernandez, a district court case, cannot clearly establish the law in
this Circuit. Moreover, neither case involved unresolved threats to use deadly
force and neither involved the use of a beanbag gun. In short, neither of those gun
cases are similar enough to make the “contours of the right . . . sufficiently clear
[so] that a reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In the absence of clearly established case law on point, we are obliged to ask
whether the officers’ conduct was “so obviously at the very core of what the Fourth
Amendment prohibits” that any officer would know it was illegal. See Lee, 284
F.3d at 1199 (concluding “the peculiar facts of this case are ‘so far beyond the hazy
15
border between excessive and acceptable force that [the officer] had to know he
was violating the Constitution even without caselaw on point’”) (quoting Smith v.
Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)); Priester v. City of Riviera Beach,
Fla., 208 F.3d 919, 927 (11th Cir. 2000) (concluding that the law was clearly
established despite the absence of on-point caselaw when an officer released police
dog to attack plaintiff who was subdued on the ground and was not resisting
arrest). “This standard is met when every reasonable officer would conclude that
the excessive force used was plainly unlawful.” Lewis v. City of W. Palm Beach,
Fla., 561 F.3d 1288, 1292 (11th Cir. 2009). The instant case does not meet the
standard for obvious clarity.
Although, as the district court has noted, the officers received some
information that may have mitigated Zachary’s threats to shoot himself or the
police, the officers also received substantial corroboration that the situation was
fraught with grave danger that Zachary would use deadly force. Again, when the
officers first received the dispatch call at 3:13 A.M., they were told that Zachary
was armed, was dreaming of killing children, and had threatened both suicide and
homicide. At 3:17 A.M., Zachary repeated the threats of violence, this time
specifically shouting to the 911 dispatcher, “[y]ou tell these guys in front [of] my
door, I’m . . . going to start shooting. I’ll start shooting.” At 3:25 A.M., the 911
16
dispatch added that the 911 database had identified Zachary as dangerous. The
officers also recounted that Zachary was ranting, raving, and yelling at them, that
he ordered them to leave, that he was believed to possess a loaded firearm, and that
he threatened the police that his large dog tied to the front porch would bite them.
At 3:34 A.M., when Stephens told Sergeant Hudson that there was a
fourteen-year-old child asleep in the house, the new information increased the
palpable fear that there was still another potential victim in the house. Similarly,
when Zachary “ushered” Stephens by her upper arm into the house at 3:37 A.M.,
he gave the officers further reason to fear that deadly force would be used.
Moreover, Zachary’s actions on the porch were -- even taking the facts in the
light most favorable to the plaintiff -- belligerent and unpredictable. Although
Zachary did show his empty waistband, he shouted for the police officers to leave
and never came off of the porch. This is not a case where the victim was remotely
restrained or compliant. See Lewis, 561 F.3d at 1292. Indeed, this case stands in
contrast to those where we have denied qualified immunity to officers who used
force once a subject was secured. See, e.g., Vinyard, 311 F.3d at 1348 (denying
qualified immunity where an officer used force and pepper spray on a suspect who
was “under arrest and secured with handcuffs and in the back seat of the patrol
car”); Lee, 284 F.3d at 1200 (denying qualified immunity to an officer who beat
17
the victim’s head against the police car after she was handcuffed); Priester, 208
F.3d at 923-24, 928 (denying qualified immunity to an officer who ordered a dog
attack on a defendant who was subdued on the ground).
Ultimately, this is one of those tragic, mistaken cases in the “hazy border
between permissible and forbidden force.” Smith v. Mattox, 127 F.3d 1416, 1419
(11th Cir. 1997). Quite simply, there was no clearly established law at the time that
would have put Officer Coats and Sergeants Hudson and Touchberry on notice that
the use of a beanbag munition in these circumstances violated the Fourth
Amendment.
The district court’s denial of Officer Bolen’s claim for qualified immunity
likewise fails on the clearly established prong.5 The case law from the relevant
jurisdictions teaches us nothing about safe distances for shooting a beanbag gun.
We are also hard pressed to describe this case as one of “obvious clarity.”
This is a close case, and where the officers’ actions were not clearly
established to be unconstitutional, and reasonable officers could disagree, the
officers are afforded qualified immunity. Accordingly, we REVERSE and
REMAND for proceedings consistent with this opinion.
REVERSED and REMANDED.
5
Officers facing supervisory liability claims are also entitled to qualified immunity
unless the plaintiff proves a violation of a clearly established Constitutional right. See, e.g.,
Harper v. Lawrence County, Ala., 592 F.3d 1227, 1235-36 (11th Cir. 2010).
18