On May 3, 2023, the Eleventh Circuit Court of Appeals decided Baker v. City of Madison [Alabama][i], in which officers were sued for excessive force for the use of a Taser. In this case, the plaintiff, Baker, was driving his car with his friend as a passenger, and he crashed into the rear of another vehicle. Paramedics arrived and began to assess Baker’s condition as he sat in his vehicle. Shortly thereafter, Officer Nunez arrived. The facts alleged in Baker’s complaint differ significantly from what was recorded on Officer Nunez’s body camera.
Baker alleged in his civil complaint that he has epilepsy and sometimes has seizures. Baker alleged that his passenger told the paramedics and officer “over and over” that Baker has epilepsy was currently experiencing a seizure. Baker also alleged that Officer Nunez and Officer Hose repeatedly told him to get on the gurney and Baker declined and asked to talk to his mother on the phone. Baker alleged that the paramedics told the officers that Baker could not fully understand the police, but the seizure would likely pass soon. Baker alleged that the Officer Nunez then Tased him multiple times even though he (1) was not combative with the police, (2) only refused to lay on the gurney, (3) was not in any danger from traffic, and (4) was not a danger to anyone.
The officers body camera video showed a different story. Officer Nunez arrived prior to Officer Hose, who did not arrive until after Baker had already been Tased. The video showed the following: Baker’s passenger told Officer Nunez that he “didn’t know if Baker had a seizure or what, but he crossed the lane of traffic and rear-ended somebody.” The paramedics were talking to Baker, who was in his vehicle. They were able to get Baker to exit his vehicle. They placed a stretcher near Baker and told him 13 times to sit on the stretcher. He refused. The paramedics asked Baker for his driver’s license, and Baker did not respond. Officer Nunez told Baker 10 times to sit on the stretcher, explaining that the paramedics were only trying to help him, but Baker refused. The paramedics asked him 9 additional times to sit and he refused. Both the officer and the paramedics again asked for his driver’s license Baker pulled a lighter and broken cigarette from his pocket to try to smoke. A paramedic told Officer Nunez that “something is definitely wrong with Baker,” and he wondered if he was under the influence of something. The paramedic told the officer he “highly doubted” that Baker was having a seizure. The paramedics said that they were going to check his blood sugar to determine if he was diabetic. The remaining facts, taken directly from the case, are as follows:
One of the paramedics prepared the device to check Baker’s blood sugar and then said to Baker, “let me borrow your finger for just a second.” Baker immediately turned away from that paramedic.
Officer Nunez grabbed Baker’s arm and turned Baker back around to face him. Baker replied, “get off me, man.” Baker then said, “where my phone at” and dug through his pockets with both hands, looking for his phone.
Over the next two minutes, Baker tried to get back into his vehicle, despite just having had the rear-end automobile accident and despite the paramedics telling him to sit on the stretcher.
Baker first headed toward the open driver’s door of the vehicle. Officer Nunez put his arm out to block Baker. Officer Nunez told Baker (1) to let the paramedics check him out first and (2) Officer Nunez would “call [Baker’s] phone afterwards.”
Baker again headed toward the open driver’s door of his vehicle to get in the vehicle. Officer Nunez again grabbed Baker’s arm, telling him “no.” Baker pulled his arm away and said he was trying to “get in [his] motherfucking car” and told Officer Nunez to “move.”
Officer Nunez tried to stop Baker from getting back in his vehicle, grabbing his arm. But Baker, becoming more agitated, broke free again and told Officer Nunez to “chill” and “get the fuck off [him].” Baker moved toward Officer Nunez, stating that Officer Nunez would “be in jail somewhere for fucking with [him].”
At this time, Officer Nunez backed away, drew his taser, and pointed it at Baker (but Officer Nunez did not fire it). Officer Nunez told Baker to “chill” and to “step back.” Officer Nunez held his left hand out toward Baker, who pushed it away. Officer Nunez reported on his radio that “the suspect was being combative.”
Next, Baker (1) turned away from Officer Nunez, (2) walked again toward the open driver’s door, (3) pushed past one paramedic who tried to stop him, and (4) sat down sideways in the driver’s seat with his feet still on the road. Officer Nunez put his taser back in the holster, grabbed Baker’s left arm, and attempted to remove Baker from the vehicle by pulling on Baker’s left arm. Baker called Officer Nunez a “bitch” and resisted being removed from the vehicle. As Baker came out of the vehicle, he reached for Officer Nunez and moved toward him.
Officer Nunez then stepped back, drew his taser again, and fired the taser, hitting Baker in the stomach. Officer Nunez’s body camera footage shows that from approximately 12:06:36 to 12:06:48, Baker (1) fought the taser’s charge, (2) moved back toward the driver’s seat of his vehicle, (3) pulled off his sweatshirt, and (4) told Officer Nunez to “chill out.”
Officer Nunez removed his taser’s cartridge, loaded a new one, and again pointed the taser at Baker. When Officer Nunez threatened to deploy the taser again, Baker said, “Damn, that shit hurt my boy.”
After firing his taser the one time, Officer Nunez told Baker at least sixteen times to turn around. Baker repeatedly did not turn around, continued to resist Officer Nunez’s commands, and once again tried to get in his vehicle.
More than two minutes after Officer Nunez had tased Baker, Officer Hose arrived on the scene. When Officer Hose approached Baker, Baker said, “Hey, Mr. Officer. Can y’all get this man? He just shot me in my stomach.”
Officer Hose engaged Baker (who was still resisting Officer Nunez) and, with help from a third officer, subdued Baker and placed him in handcuffs.
At several points, Baker asked the officers to call his mother. Eventually, Baker’s mother came to the scene. After extended discussion and the writing of reports, the officers allowed Baker to leave the scene with his mother.[ii]
Baker filed a complaint with the police department. The internal investigation found that Officer’s Nunez and Hose acted within department policy.
Baker then filed suit in federal court and alleged that (1) Officer Nunez violated his rights under the Fourth Amendment by using unreasonable force, particularly the Taser, (2) Officer Hose violated the Fourth Amendment by failing to intervene in the alleged excessive force, and (3) the city violated his rights because the officers’ acts were the result of the city’s unconstitutional policy regarding use of force. In his complaint, Baker made reference to body camera video and stated that it was his belief the video “is a display of what happened.” Baker was provided with a copy of the video, which was documented in the record. The officers and city filed motions to dismiss the case. Baker attempted to prevent the district court of considering the body camera footage, which the district court noted showed a different story than what Baker alleged in his complaint. The district court considered the video and granted qualified immunity for Officer Nunez, and the motion to dismiss for Officer Hose and the city. Baker appealed to the Eleventh Circuit Court of Appeals.
First, the court considered the legal requirements for the district court to rely upon the body camera video. This article will not discuss that aspect of the case, but suffice it to say, the legal requirements for the consideration of the video were met.[iii] Additionally, the court of appeals noted
[W]here a video is clear and obviously contradicts the plaintiff’s alleged facts, we accept the video’s depiction instead of the complaint’s account, see Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2021), and view the facts in the light depicted by the video, see Scott v. Harris, 550 U.S. 372, 381, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). After all, courts are not required to rely on “visible fiction.” Scott, 550 U.S. at 380-81, 127 S. Ct. at 1776.[iv]
The court of appeals then set out to determine if Officer Nunez was entitled to qualified immunity. An officer is entitled to qualified immunity when he is engaged in a discretionary function, such as deciding what level of force to use when making an arrest. In order to defeat an officer’s motion for qualified immunity, the plaintiff must show (1) that the officer violated his constitutional rights, and (2) that the law was clearly established such that any reasonable officer in the same situation would have known he was violating the plaintiff’s rights. The law is considered “clearly established” when a factually similar case from the Supreme Court, the federal appellate court, or the highest court in the state where the incident occurred, has ruled that similar conduct is unconstitutional or it would be “plainly obvious,” based on egregious conduct, that the officer was violating the plaintiff’s rights.
The court of appeals then examined whether Officer Nunez violated Baker’s right to be free from unreasonable force under the Fourth Amendment. The court stated
To determine whether the force was objectively reasonable, courts examine the totality of the circumstances, “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 [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989). Other considerations are the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury inflicted, and whether the force was applied in good faith or maliciously and sadistically. Hadley, 526 F.3d at 1329.
“The 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, 109 S. Ct. at 1872.[v]
The court of appeals also examined relevant legal precedent from the Eleventh Circuit and noted that, in Draper v. Reynolds[vi], the plaintiff, a driver a tractor-trailer, was confrontational, agitated, paced back and forth near his truck, and refused to provide the officer with requested documents. Ultimately, the officer Tased the plaintiff. The court of appeals held that the use of the Taser was reasonable under the Fourth Amendment, as the officer was faced with a tense and uncertain situation.
Baker urged the court to follow the Eleventh Circuit’s decision in Helm v. Rainbow City[vii], in which a 17-year-old girl was suffering from a grand mal seizure. She was held down by four officers and Tased three times. The girl was not a threat, not committing a crime, and not combative. The court held this violated the Fourth Amendment, as the force was not reasonable.
However, the court of appeals noted that Helm was distinguishable from Baker’s case. Baker (1) refused 31 commands of paramedics and officers to sit on the stretcher, (2) failed to provide his driver’s license or identification, (3) tried to smoke a cigarette against the commands of the officer, (4) ignored instruction from a paramedic to sit against a concrete barrier away from traffic, (5) cursed at Officer Nunez, (6) actively resisted the officer and broke free from Officer Nunez’s grip, and (7) got back into the driver’s seat of his vehicle against verbal commands and physical efforts to stop him. In light of these facts, the Eleventh Circuit stated
Although being struck by a taser gun is an unpleasant experience, the amount of force [Officer Nunez] used—a single use of the taser gun causing a one-time shocking—was reasonably proportionate to the need for force and did not inflict any serious injury.” See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). Indeed, the body camera footage shows that Baker was not incapacitated by the taser: Baker fought the taser’s charge, moved toward the driver’s seat of his vehicle again, pulled off his sweatshirt, and told Officer Nunez to “chill out.” “The single use of the taser gun may well have prevented a physical struggle and serious harm to either” Baker or Officer Nunez. See id.; see also Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (“[W]here a suspect appears hostile, belligerent, and uncooperative, use of a taser might be preferable to a physical struggle causing serious harm to the suspect or officer.” [viii]
Thus, since the court of appeals held that Officer Nunez did not violate Baker’s rights under the Fourth Amendment, Baker failed to meet the first requirement to defeat the officer’s qualified immunity. As such, there was no need to examine the second part of the qualified immunity test. Therefore, the court of appeals the affirmed the grant of qualified immunity for Officer Nunez.
The court then examined whether Officer Hose violated Baker’s rights under the Fourth Amendment for failing to intervene with Nunez’s use of the Taser.
The court first noted
[A]n officer can be liable for failing to intervene when another officer uses excessive force.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000). Specifically, “an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force[] can be held liable for his nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) (quotation marks omitted).[ix]
The court then noted that Baker’s claim against Officer Hose failed for two reasons. First, Officer Nunez’s use of force was not excessive force, therefore, Officer Hose was not required to intervene. Second, Officer Hose was not present when Officer Nunez tased Baker, so he could not have intervened.
Therefore, the court of appeals affirmed the dismissal of Baker’s failure to intervene claim against Officer Hose.
Lastly, the court of appeals considered whether the city was liable. The court first noted
[T]o establish municipal liability, a plaintiff must show that (1) his constitutional rights were violated, (2) the municipality had a policy (or custom) that constituted deliberate indifference to that constitutional right, and (3) the municipal policy (or custom) caused the violation. McDowell v. Brown, 392 F.3d 1283, 1289-90 (11th Cir. 2004).[x]
In Baker’s case, he failed to meet the first element to establish municipal liability, particularly, he did not show that his constitutional rights were violated. Since there was no underlying constitutional violation, the court of appeals affirmed the dismissal of the claim against the city.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-10732 (11th Cir. Decided May 3, 2023)
[ii] Id. 6-9
[iii] Id. at 12-15
[iv] Id. at 16 (emphasis added)
[v] Id. at 19 (emphasis added)
[vi] 369 F.3d 1270 (11th Cir. 2004)
[vii] 989 F.3d 1265 (11th Cir. 2021)
[viii] Baker at 21-22 (emphasis added)
[ix] Id. at 24 (emphasis added)
[x] Id. at 26 (emphasis added)
