[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15081 OCTOBER 26, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-01671-CV-ORL-31DAB
AMY SHIRLEY OLIVER, as Personal Representative
of the Estate of Anthony Carl Oliver, Sr.,
Deceased, for and on behalf of the survivors
of the Estate of Anthony Carl Oliver, Sr.,
Plaintiff-Appellee,
versus
LORI FIORINO, in the official capacity
as Orlando Police Department officer,
DAVID BURK, in the official capacity
as Orlando Police Department officer,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(October 26, 2009)
Before MARCUS and HILL, Circuit Judges, and VOORHEES,* District Judge.
*
Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
MARCUS, Circuit Judge:
In this civil rights case, Orlando police officers Lori Fiorino and David Burk
appeal from the district court’s denial of their motion for summary judgment on the
basis of qualified immunity. Appellee Amy Shirley Oliver, as personal
representative of the estate of Anthony Carl Oliver, Sr., alleges that the officers
used excessive and unreasonable force in violation of Anthony Oliver’s Fourth
Amendment rights when they shocked him with a Taser gun at least eight times
over a two minute span. The facts, when viewed in a light most favorable to
Oliver, show that Oliver was neither accused nor suspected of a crime at the time
of the incident, that Officer Fiorino tasered Oliver at least eight and as many as
eleven or twelve times with each shock lasting at least five seconds, that the
officers made no attempt to handcuff or arrest Oliver at any time during or after
any Taser shock cycle, that the officer continued to administer Taser shocks to
Oliver while he was lying on the hot pavement, immobilized and clenched up, and,
finally, that these Taser shocks resulted in extreme pain and ultimately caused
Oliver’s death.
After thorough review, we conclude that the officers are not entitled to
qualified immunity on the claim of excessive force, and, accordingly, we affirm.
I.
2
We review de novo the district court’s resolution of a summary judgment
motion on the basis of qualified immunity, and in so doing, we resolve all issues of
material fact in favor of the plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1190
(11th Cir. 2002). We recognize that “facts, as accepted at the summary judgment
stage of the proceedings, may not be the actual facts of the case,” id. (internal
quotation marks omitted); nonetheless we view them in a light most favorable to
the plaintiff because “the issues appealed here concern not which facts the parties
might be able to prove, but, rather, whether or not certain facts showed a violation
of clearly established law.” Id. (internal quotation marks and alterations omitted).
Taking the facts in a light most favorable to the plaintiff, this tragic story
began on May 13, 2004, at approximately 3:17 p.m. Officer Fiorino was driving
her police cruiser; she said she noticed a man, who later turned out to be Anthony
Carl Oliver, Sr. (“Oliver”), standing in an eight to ten-foot-wide grassy median on
West Colonial Drive near Tampa Avenue in Orlando, waving his arms and
attempting to flag her down. Officer Fiorino turned her police cruiser around and
parked in the Eastbound turning lane, blocking the turning lane and stopping any
traffic in that lane. According to one bystander, Carl Hughley, the officer pulled
up and asked Oliver to approach her vehicle. He complied. Oliver then knocked
on the rear driver-side window and unsuccessfully attempted to open the locked
3
rear door of the police cruiser. Fiorino used her loud speaker to instruct Oliver to
move to the front of her vehicle; again, he complied. Fiorino then directed Oliver
to move further away from the vehicle, which he did. Fiorino then exited her
vehicle. At this point, Oliver was standing some twenty-three feet away from
Fiorino, who was near her vehicle.
Oliver did not speak before Officer Fiorino pulled out her Taser gun and
asked Oliver what the problem was. Oliver responded to Fiorino’s questions,
saying “they’re shooting at me” several times, and pointing across the street.
Fiorino told Oliver to calm down and tell her what was going on. Oliver attempted
to walk away; Fiorino asked him to stay and talk. According to Fiorino, Oliver
then began to walk quickly toward her. In response, Fiorino raised her Taser gun
and told Oliver to step away from her. Oliver complied. Fiorino observed that
throughout this encounter, Oliver was “very fidgety.” According to Hughley,
however, Oliver never acted in a threatening or belligerent manner toward the
officers, nor did he even curse at them.
Officer Fiorino asked Oliver for details about who was shooting at him and
under what circumstances. She also called her dispatch to inquire whether there
had been any reported shootings in the area. Dispatch told her there had been a
shooting reported eight or nine miles away, but none in her area. When Fiorino was
4
advised there had been no shooting in the area, she requested back-up.
Shortly thereafter, Officer David Burk arrived on the scene. Burk parked his
car so that it, along with Fiorino’s car, boxed in the left turning lane where the
incident was unfolding. When Burk arrived, Oliver was standing several feet from
Fiorino in the median, speaking loudly and “moving his hands around.” Fiorino
and Burk testified that they considered taking Oliver into custody under Florida’s
Mental Health Act, Fla. Stat. § 394-463(1) (“the Baker Act”), because he appeared
to them to be mentally unstable. Nonetheless, Fiorino and Burk never informed
Oliver of this fact, and never attempted to either arrest Oliver or “Baker Act”
Oliver at any time during the entire incident.
Officer Burk approached Oliver, who was still standing in the median, to ask
him for his name and identification. Oliver complied, giving Burk his identification
card. Burk then decided to coax Oliver across the Eastbound side of the street
(across the blocked turning lane and the other lanes) to the sidewalk, so that they
could talk when he saw there was “no traffic at all,” and once the light turned red.
Burk attempted to do so by putting his right hand on Oliver’s left shoulder. Oliver
responded by trying to back away. Oliver then “momentarily stopped” in the
blocked turning lane of the street and began to babble incoherently. When the light
5
changed and the traffic (if any) in the other lanes began to move again,1 Burk tried
to force Oliver across the street, but Oliver struggled and pulled away from him.
During the encounter, Burk held on to Oliver’s shirt as Oliver attempted to
walk away across the street. At this point, Oliver did not try to grab Burk or to
swing at him. Fiorino nevertheless, and without warning, tased Oliver for the first
time.
Fiorino was using a Taser M26 Electronic 10 Control Device, which was
“designed to cause significant, uncontrollable muscle contractions capable of
incapacitating even the most focused and aggressive combatants.” [Doc. 143-8 at
28]. “The [T]aser gun fires two probes up to a distance of twenty-one feet from a
replaceable cartridge. These probes are connected to the [T]aser gun by high-
voltage insulated wire. When the probes make contact with the target, the [T]aser
gun transmits electrical pulses along the wires and into the body of the target,
through up to two inches of clothing.” Draper v. Reynolds, 369 F.3d 1270, 1273
n.3 (11th Cir. 2004). The pulses are five seconds in duration, unless the trigger is
held down longer than five seconds. [Doc. 142-43 at 70]. “Each 5-second cycle is
a ‘window of opportunity’ for the arrest team to apprehend the subject and go
hands on.” Id. at 73.
1
Officer Burk stated that he did not recall any traffic passing by, honking, or almost
striking him or Oliver during the incident.
6
The Taser prongs from Officer Fiorino’s first tase hit Oliver in his abdomen.
According to Carl Hughley, this tase brought Oliver to the ground. While the
Taser cycled through its five-second shock, Burk tried neither to handcuff Oliver
nor to move him. This is so, despite the fact that, according to Hughley, once
Oliver was on the pavement after the first tase, he never got back up, and he never
hit, kicked, punched, or threatened the officers. Three to four seconds after the first
Taser cycle ended, Fiorino tased Oliver once again. Ten seconds after the end of
the second cycle, she tased Oliver still again for the third time.
After Oliver was shocked by the Taser, according to Hughley, Oliver was
lying on the scorching hot asphalt screaming in pain that it was “too hot.” Another
bystander, Richandra Nelson, said that Oliver remained on the ground while Burk
just stood there and watched Fiorino tase him. Both Nelson and Hughley witnessed
Oliver attempting to get up from the ground, but said that they never saw him
struggling with, hit, kick, punch, or threaten Burk in any manner. Hughley stated
that when Oliver went down, he couldn’t roll over. When he tried to sit up, he
flopped down like a “wet cloth” because he had no control over his body.
After approximately the third or fourth tase, one of the Taser wires became
disconnected from the Taser prong and stuck into Oliver’s chest. Fiorino loaded a
second cartridge into her Taser and began tasing Oliver again. This tase and the
7
next three or four tase cycles caused Oliver to be totally immobilized, leaving him
clenched up and lying on his back. After the sixth or seventh tase, Oliver was again
seen lying on the hot asphalt. Officer Fiorino said that when she tased Oliver for
the last time (the eighth recorded tase), he was lying flat and he did not get up.
Fiorino said she was not sure how many times she tased Oliver, but that she
just kept pulling the trigger until he stayed on the ground. She said that she
believed she tased Oliver approximately eleven or twelve times. Fiorino’s Taser
log shows that she tased Oliver a total of eight times over a two-minute period as
follows: (note that each tase lasts five seconds) 1) Tase at 14:18:19 (2:18:19
p.m.);2) Tase at 14:18:28 (2:18:28 p.m.); 3) Tase at 14:18:43 (2:18:43 p.m.); 4)
Tase at 14:19:08 (2:19:08 p.m.); 5) Tase at 14:19:21 (2:19:21 p.m.); 6) Tase at
14:19:31 (2:19:31 p.m.); 7) Tase at 14:19:38 (2:19:38 p.m.); and 8) Tase at
14:20:27 (2:20:27 p.m.).2
Nelson observed that once backup arrived at 3:24 p.m., the officers finally
handcuffed Oliver. Fiorino stated that after Oliver was handcuffed, he began
foaming at the mouth. It appeared as if Oliver’s body had gone limp, but he still
screamed in pain. After Officer Burk walked Oliver back to the median, Fiorino
took some of the Taser prongs out of his body, but was unable to remove them all.
2
The Taser had apparently not yet been adjusted for daylight savings time so that the Taser
log reading at 14:18:19 (2:18 p.m.) should actually have read 15:18:19 (3:18 pm).
8
At 3:35 p.m., paramedics arrived on the scene. At that point, Oliver was
handcuffed and seated on the median, awake but not talking. After Oliver was
placed on a stretcher, Burk noticed that Oliver had blood in his mouth. As Oliver
was placed in the ambulance, he sat straight up and began to have a seizure. His
health deteriorated rapidly; his body temperature was measured at 107 degrees.
Oliver was pronounced dead on June 1, 2004, at Florida Hospital.
An autopsy revealed that Oliver had low levels of cocaine in his system, but
Dr. Rudner, Plaintiff’s expert witness and forensic pathologist opined “to a
reasonable degree of medical certainty” that Oliver died as a result of “ventricular
dysrhythmia in conjunction with Rhabdomyolisis” as a result of “being struck by a
Taser.”
On December 11, 2006, Appellee Amy Shirley Oliver, on behalf of the
estate of the deceased Anthony Carl Oliver, Sr., filed this amended complaint
against Officers Fiorino and Burk, the city of Orlando, and Taser International (the
maker of the Taser used in the incident). The claim charged Fiorino and Burk with
having used excessive force (tasering him at least eight times), and ultimately
killing him in violation of the Fourth Amendment.3
On June 16, 2008, Officers Fiorino and Burk sought summary judgment on
3
The claims against the City of Orlando and Taser International are not currently before this
Court.
9
the ground of qualified immunity. Soon thereafter, the district court denied the
motion concluding on this fact pattern that the officers were not entitled to
immunity. This timely interlocutory appeal followed.
II.
The only issue before us is whether Officers Fiorino and Burk are entitled to
qualified immunity on the Fourth Amendment claim that they used excessive and
unreasonable force by repeatedly tasering Oliver. “Summary judgment is
appropriate if the evidence before the court shows that 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 (11th Cir. 2009) (internal
quotation marks omitted).
As we have recognized repeatedly, “[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.’” Id. at 1205 (quoting Lee, 284
F.3d at 1193-94). The purpose of qualified immunity is to allow officials to carry
out their discretionary duties without the fear of personal liability or harassing
litigation, Anderson v. Creighton, 483 U.S. 635, 638-39 (1987), “protecting from
10
suit all but the plainly incompetent or one who is knowingly violating the federal
law.” Lee, 284 F.3d at 1194 (internal citation and quotation marks omitted).
“[T]o receive qualified immunity, an official must first establish that ‘he was
acting within the scope of his discretionary authority when the allegedly wrongful
acts occurred.’” McCullough, 559 F.3d at 1205 (quoting Lee, 284 F.3d at 1194).
“If the official was acting within the scope of his discretionary authority” -- and it
is undisputed that Officers Burk and Fiorino were -- “the burden then shifts to the
plaintiff to show that the grant of qualified immunity is inappropriate.” Id.
Under the qualified immunity standard recently rearticulated by the Supreme
Court in Pearson v. Callahan, 129 S. Ct. 808 (2009), we are obliged to grant
qualified immunity to a law enforcement officer unless the plaintiff can
demonstrate: first, that the facts when viewed in a light most favorable to the
plaintiff establish a constitutional violation; and, second, that the illegality of the
officer’s actions was “clearly established” at the time of the incident. Id. at 815-
16, 818. As we noted in Lee, this inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition.” Lee, 284 F.3d at
1194.
In Pearson, the Supreme Court recognized that we are no longer required to
conduct the qualified immunity analysis in the sequence articulated by Saucier v.
11
Katz, 533 U.S. 194 (2001); rather, we may now exercise our sound discretion to
decide which prong of the inquiry to address first. Pearson, 129 S. Ct. at 818. We
begin our analysis with the first question: whether under the facts viewed in a light
most favorable to Oliver, the officers violated Oliver’s Fourth Amendment rights.
A. Was there a constitutional violation?
The complaint says that Officers Burk and Fiorino used excessive and
unreasonable force in violation of the Fourth Amendment when they shocked
Oliver with a Taser at least eight, and as many as eleven or twelve times over a
two-minute span, eventually causing his death. The Fourth Amendment's freedom
from unreasonable searches and seizures encompasses the right to be free from
excessive force during the course of a criminal apprehension. Graham v. Connor,
490 U.S. 386, 394-95 (1989); Mercado v. City of Orlando, 407 F.3d 1152, 1156
(11th Cir. 2005). We analyze a claim of excessive force under the Fourth
Amendment’s “objective reasonableness” standard. Graham, 490 U.S. at 388. In
order to determine whether the use of force is “objectively reasonable,” we
carefully balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests” against “the countervailing governmental interests at stake”
under the facts of the particular case. Id. at 396 (internal citations and quotations
omitted). We measure the quantum of force employed against these factors -- the
12
severity of the crime at issue; whether the suspect poses an immediate threat to the
safety of the officers or others; and whether the suspect actively resisted arrest or
attempted to evade arrest by flight. Lee, 284 F.3d at 1197-98. Notably, we
consider the officers’ actions “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight,” Kesinger ex rel. Estate of
Kesinger v. Herrington, 381 F.3d 1243, 1249 (11th Cir. 2004), recognizing that
“[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.” Graham, 490 U.S. at 396-97.
In Draper v. Reynolds, we addressed the use of a Taser shock in the course
of an arrest. 369 F.3d at 1270. In that case, we concluded that where the police had
used a single Taser shock against a “hostile, belligerent, and uncooperative”
suspect, not causing any serious injury and leaving the suspect “coherent” and
“calmed” shortly after the shock, the force used was proportionate and reasonable.
Id. at 1278. We observed that under the facts of the case, “the single use of the
[T]aser gun may well have prevented a physical struggle and serious harm to either
[the suspect] or [the officer],” and, therefore, “[u]nder the ‘totality of the
circumstances,’ [the officer’s] use of the [T]aser gun did not constitute excessive
13
force.” Id.
In this case, appellee has conceded that when Oliver struggled to free
himself from Officer Burk in the street, he at least arguably placed himself and
Officer Burk in some danger, and therefore, under the rationale of Draper, the use
of an initial, single Taser shock to calm the suspect may have been justified.
Here, however, the force used against Oliver did not end there. The officers
did not merely shock Oliver once and then attempt to engage him, arrest him, or
“Baker Act” him. Rather, again viewing the facts in a light most favorable to
Oliver, the first shock brought Oliver down to the burning hot pavement. Without
any warning or instruction to Oliver, Officer Fiorino then tased Oliver once again.
Ten seconds later, she tased Oliver still again. When her Taser broke and lodged
the Taser prongs in Oliver, she reloaded and tased him again. The first Taser
shocks left Oliver unable to roll over, and when he tried to sit up, he flopped down
like a “wet cloth” because he had no control over his body. Yet Officer Fiorino
continued to tase him several more times over the next minute, leaving him totally
immobilized and clenched up. He could not sit up, screaming in pain while lying
on the burning hot pavement. Yet the officer tased him still again. When Fiorino
tased Oliver for the final (and at least eighth) time, he was already lying on his
back. By the time the ambulance came, blood was coming out of Oliver's mouth.
14
His body temperature rose to 107 degrees and he ultimately died as a result of the
Taser shocks.
The justification for the repeated use of Taser force, at least beyond an initial
Taser shock, was minimal. The plaintiff was not accused of or suspected of any
crime, and indeed was not threatened with arrest or apprehension at any time prior
to (or after) the use of force. The plaintiff posed no immediate threat of danger to
officers beyond the moment of struggle with Officer Burk. He did not act
belligerently toward the police officers, and he did not curse or yell at them. In
fact, he was largely compliant and cooperative with the officers -- moving away
from their vehicle when instructed, stopping and talking the first time he was
requested to do so (even though not threatened with detainment), stopping when
instructed, providing requested identification, and only attempting to disregard the
officer and walk away when the officer attempted a “custodial touch” on Oliver’s
shoulder.
Moreover, the plaintiff did not pose a grave danger to others. While Oliver
did stop in the street and may have attempted to cross the street against the light,
viewing the facts in a light most favorable to Oliver, we may infer that Oliver was
within the lane that was boxed in by the police cars, and thus not exposed to traffic
during the incident. This inference is supported by Officer Burk's statement that the
15
entire incident occurred in "the safe area," that "none of this incident took place in
the middle of the intersection," and that he did not recall any traffic passing by,
honking, or almost striking him or Oliver during the incident. Finally, Oliver was
not actively resisting arrest nor attempting to evade arrest by flight.
Quite simply, though the initial use of force (a single Taser shock) may have
been justified, the repeated tasering of Oliver into and beyond his complete
physical capitulation was grossly disproportionate to any threat posed and
unreasonable under the circumstances. On this summary judgment record, Oliver
has established a violation of the Fourth Amendment.
B) Was the right clearly established?
Even though the actions of Officers Fiorino and Burk violated the
Constitution, we also must ask whether Oliver has shown that the right violated
was clearly established at the time of the violation. Pearson, 129 U.S. at 814-15.
The Supreme Court has declared that the inquiry “must be undertaken in light of
the specific context of the case, not as a broad general proposition.” Id. The
relevant inquiry to determine whether a right is clearly established is to ask
whether it would be “‘sufficiently clear that a reasonable officer would understand
that what he is doing violates that right.’” Wilson v. Layne, 526 U.S. 603, 615
(1999) (quoting Anderson, 483 U.S. at 639).
16
In order to determine whether a right is clearly established, 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. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).
“We have said many times that ‘if case law, in factual terms, has not staked out a
bright line, qualified immunity almost always protects the defendant.’” Priester v.
City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000) (quoting Smith v.
Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)). However, in some cases, we may
find that the right is clearly established, even in the absence of case law. One such
instance is where the case is one of “obvious clarity” – i.e., 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. Vinyard v. Wilson,
311 F.3d 1340, 1355 (11th Cir. 2002) (quoting Lee, 284 F.3d at 1199). Under this
test, “the law is clearly established, and qualified immunity can be overcome, only
if the standards set forth in Graham and our own case law inevitably lead every
reasonable officer in [the defendant's] position to conclude the force was
unlawful.” Lee, 284 F.3d at 1199 (internal quotation marks omitted).
No decision from the United States Supreme Court, or from this Court, or
17
from the Florida Supreme Court, has clearly established that an officer’s repeated
use of a Taser constituted excessive force under circumstances like these. Indeed,
neither the United States Supreme Court nor the Florida Supreme Court has even
addressed the use of Tasers in an excessive force inquiry, and this Court has only
squarely done so in one published decision, Draper v. Reynolds, 369 F.3d at 1270,
which, as we have said, is not directly on all fours with this case. The question
then boils down to this: whether it would be clear to every reasonable officer, even
in the absence of case law, that the force used -- repeatedly tasering Oliver over a
two-minute period without warning -- was excessive under the circumstances.
We agree with the district court’s determination that the force employed was
so utterly disproportionate to the level of force reasonably necessary that any
reasonable officer would have recognized that his actions were unlawful. The need
for force was exceedingly limited. Again, Oliver was not accused of or suspected
of any crime, let alone a violent one; he did not act belligerently or aggressively; he
complied with most of the officers’ directions; and he made no effort to flee.
Tasering the plaintiff at least eight and as many as eleven or twelve times
over a two-minute span without attempting to arrest or otherwise subdue the
plaintiff -- including tasering Oliver while he was writhing in pain on the hot
pavement and after he had gone limp and immobilized -- was so plainly
18
unnecessary and disproportionate that no reasonable officer could have thought
that this amount of force was legal under the circumstances. When measured
against these facts, the officers violated a clearly established right.
The district court properly rejected qualified immunity for Officers Burk and
Fiorino. Accordingly, we affirm.
AFFIRMED.
19
Oliver v. Fiorino
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2009-10-26
Citations: 586 F.3d 898
Copy Citations