©2018 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)

On February 20, 2018, the Eleventh Circuit Court of Appeals decided Callwood v. Jones et al.[i], in which the court examined the use of force against a suspect who was likely suffering from excited delirium. The relevant facts of Callwood, taken directly from the case, are as follows:

On the night that Illidge died, Lee County Sheriff Deputies Steven Mills and Ray Smith received a radio dispatch reporting that a naked man was running down Lee County Road 314. The deputies, who were in separate cars and on separate patrols at the time, began to search for him. An hour later dispatch radioed both deputies a second time, reporting that the same man had entered a house on Lee County Road 308.

Deputy Mills found Illidge walking down that street naked and covered in scratches. He approached Illidge and tried to speak with him. But Illidge “appeared not to recognize that [Mills] was a deputy sheriff and continued to walk with a purpose, past [him], down the road.” Illidge then crossed the road, cutting in front of oncoming traffic, and began walking toward a house that was just off the road. Mills radioed for backup, telling dispatch that Illidge was mentally ill and possibly under the influence. He then followed Illidge, asking Illidge to stop and speak to him.

Illidge ignored his requests and continued forward until he suddenly turned and began walking back toward Mills. Mills warned Illidge that if he did not stop, Mills would tase him. Illidge continued forward, and Mills fired his taser. Illidge did not drop to the ground after being tased, but instead began walking away toward the porch of a nearby home.

Mills used the taser a second time, touching Illidge’s side with it, and Illidge fell to the ground. Mills then attempted to pin Illidge, but Illidge “exhibited superhuman strength” and overpowered him. Mills used his taser three more times, but it appeared to have no effect. He states that he was “fighting for [his] life” when Illidge threw him at least ten feet and then ran away.

“After catching [his] breath,” Deputy Mills radioed dispatch the code for “need[s] assistance.” Deputy Smith arrived at the scene, joined Mills, and the two followed Illidge to the residence of William and Gloria Warr, where Phenix City Police Officer David Butler joined them. The deputies repeatedly called for Illidge to stop, but he ignored them. Smith testified that he believed Illidge may have suffered from excited delirium.

Illidge tried to open the rear door of the Warrs’ house, but it was locked. He then turned back toward the officers, and Deputy Smith discharged his taser, striking Illidge in the chest. Illidge fell to the ground on his stomach, and Deputy Mills and Officer Butler tried to handcuff him. Both officers testified that he began to “resist violently.” As the two men wrestled with Illidge, Smith tased him thirteen more times. Despite being tased fourteen times by Smith alone, Illidge continued to resist the officers.

Deputy Smith placed the taser on the ground and helped Mills and Butler pull Illidge’s arms close enough together to handcuff him. Smith then placed his metal baton between the handcuffs and Illidge’s spine for leverage. Although he was handcuffed, Illidge continued to struggle. Gloria Warr, who witnessed parts of the encounter from inside her home, stated “[Illidge] was trying to move, and [the officers] were trying to get him to stop.” Warr also testified that she heard the officers telling Illidge, “Man, please calm down. Calm down.”

At that point, Lee County Sheriff Deputy Charles Jenkins and Phenix City Police Officers Joey Williams and Shawn Sheely arrived. Williams, who weighed 385 pounds at the time, replaced Smith and placed one knee between Illidge’s shoulder blades and the other in the middle of Illidge’s back with the balls of his feet on the ground. Sheely replaced Butler and held the upper portion of Illidge’s legs while Jenkins held the lower portion. Because Illidge continued to struggle and kick, the other officers placed Illidge in leg irons and flex cuffs, in effect “hog-tying” him. Even with those restraints in place, Illidge continued to struggle until he suddenly went limp.

When Illidge became unresponsive, the officers turned him over and saw a white, frothy substance and blood coming from his mouth. Not long after that, paramedics arrived and transported Illidge to a hospital where he was pronounced dead.[ii]

Callwood, as Administratrix of Illidge’s estate, filed suit against the officers and alleged, that they used excessive force against Illidge in violation of the Amendment. This article will not discuss the state law claims. The district court granted qualified immunity for the officers and Callwood appealed.

The issues this article will discuss pertain to whether officers violated the Fourth Amendment in their use of force against Illidge or failure to intervene during the alleged excessive force. Callwood argued that there were three separate incidents that amounted to excessive force: (1) when Deputy Mills tased Illidge, (2) when Deputy Smith tased Illidge, and (3) when the officers used restraints and their bodyweight to secure Illidge.

The court noted that the officers were performing a discretionary function while they engaged Illidge. A discretionary function is one that requires the officers to choose between various courses of action. Thus, the officers are entitled to qualified immunity unless the plaintiff can show (1) that the officers violated a constitutional right, and (2) the contours of the right were “clearly established” at the time of the violation such that a reasonable officer would have had “fair warning that their conduct was a violation.

The court of appeals then examined whether Deputies Mills and Smith violated clearly established law when they tased Illidge. Callwood points to the Eleventh Circuit case, Oliver v. Fiorino,[iii] to support their allegation that it was excessive force to continue to tase Illidge. The court of appeals discussed Oliver and stated

[I]n Oliver, which held that officers were not entitled to qualified immunity when they tased a suspect seven times while he lay clenched up on the hot asphalt pavement. 586 F.3d at 903. We concluded that despite the lack of fact-specific, on point precedent, “any reasonable officer would have recognized that his actions were unlawful” because “the force employed was so utterly disproportionate to the level of force reasonably necessary.” Id. at 908. The repeated use of the taser in that case was clearly unlawful because the suspect:

was not accused of or suspected of any crime, . . . . was not threatened with arrest or apprehension at any time prior to (or after) the use of force[,] . . . . posed no immediate threat of danger to officers[,] . . . . did not act belligerently[,] . . . . was largely compliant and cooperative[,] . . . . did not pose a grave danger to others[,] . . . . [and] was not actively resisting arrest nor attempting to evade arrest by flight.[iv]

In Callwood, the court observed that the facts are not similar to Oliver. Here, Illidge acted erratically, ignored officers commands to stop, and tried enter homes. Additionally, Deputy Mills tased Illidge because he ignored his commands and kept moving toward Mills. Mills continued to use the Taser because Illidge was fighting violently, and Mills felt as though he was “fighting for his life.” Deputy Smith used his Taser on Illidge when he was fighting three officers attempting to restrain him.

Callwood argued it was unreasonable to tase Illidge repeatedly after he exhibited signs of excited delirium. The use of the Taser in Oliver was not reasonable because that suspect had given up and was not a threat or resisting. The court stated

Instead that point usually turns on whether the suspect is completely restrained or otherwise resisting arrestSee Mobley v. Palm Beach Cty. Sheriff Dep’t, 783 F.3d 1347, 1356 (11th Cir. 2015) (“[F]orce applied while the suspect has not given up and stopped resisting and may still pose a danger to the arresting officers, even when that force is severe, is not necessarily excessive.”); see also Hoyt, 672 F.3d at 978-80 (refusing to extend Oliver‘s holding when officers tased the suspect after he fell to the ground because he “continued to pose a danger” and “never ceased his vigorous resistance to the attempts to handcuff him“); Mann, 588 F.3d at 1306 (concluding that the “use of a [t]aser[ ] was appropriate” when the suspect’s “behavior was violent, aggressive, and prolonged”).[v] [emphasis added]

The court then observed, from the record, that when Deputies Mills and Smith tased Illidge, he was “unrestrained and aggressively resisting the officers attempts to stop and secure him.”[vi] Thus, their use of the Taser on Illidge did not violate clearly established law; as such, both officers are entitled to qualified immunity from suit on this claim.

The court of appeals next examined whether the officers were liable for “failure to intervene.” The court stated

An officer’s duty to intervene is triggered when he sees a fellow officer use excessive forceSeeRiley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996) (finding the officer had no duty to intervene because he “observed no use of excessive force”).[vii]

Thus, in order for an officer to be liable for failure to intervene in an excessive force incident, the plaintiff must show an underlying excessive force violation. In the case at hand, the court stated that the law does not clearly establish that Mills and Smith used excessive force. Therefore, the officers are entitled to qualified immunity on this claim.

Next, the court examined whether the officers violated clearly established law when they restrained Illidge. Specifically, Callwood argued that it was excessive force to hogtie and hold Illidge with their body weight, after he was handcuffed. However, officers did so because Illidge continue to struggle and resist. The court stated

Callwood responds that a jury could reasonably infer that Illidge continued to move not because he was resisting but because he was struggling to breathe. Tragically that may be so, but for qualified immunity purposes we must take the facts as a reasonable officer on the scene could have viewed them. See Vinyard, 311 F.3d at 1347. Throughout the incident, Illidge resisted all of the officers’ attempts to subdue him and ignored their repeated requests to calm down. A reasonable officer could have believed that Illidge continued to resist arrest and that he posed a danger to the officers and himself by resisting. For that reason, we cannot say that the officers’ use of force was so “utterly disproportionate” that “any reasonable officer would have recognized that his actions were unlawful.” Oliver, 586 F.3d at 908.[viii] [emphasis added]

The court went on to state that often a suspect will cease to be a threat once they are handcuffed, but that is not always the case. The court discussed another Eleventh Circuit case and stated

In Lewis we held that officers did not violate clearly established law when they physically restrained and hogtied a suspect because he repeatedly ignored their requests to calm down and continued to resist even after being placed in handcuffs and leg restraints. Id. The suspect was “an agitated and uncooperative man with only a tenuous grasp on reality.” Id. (quotation marks omitted). And he “remained a safety risk to himself and others” because he continued to kick and struggle and refused to remain calmId.; see also Garrett v. Athens-Clarke County, 378 F.3d 1274, 1280 (11th Cir. 2004) (holding that officers were entitled to qualified immunity when they held a suspect to the ground, sprayed him with pepper spray, and hogtied him because the suspect “consistently put his life and the lives of others in danger” and showed “that he ha[d] every intention of fighting and forcibly escaping arrest if possible”).

The court noted that Illidge, like Lewis, resisted arrest, ignored commands to calm down, appeared to suffer from excited delirium and seemed to only have a “tenuous grasp of reality.” As such, the officer’s use of restraints did not violate clearly established law and they were entitled to qualified immunity. Further, since there was no violation of clearly established law, there was no failure to intervene regarding the use of restraints.



[i]  No. 16-17454 (11th Cir. Decided February 20, 2018 Unpublished)

[ii] Id. at 2-6

[iii] 586 F.3d 898 (11th Cir. 2009)

[iv] Callwood at 13

[v] Id. at 14

[vi] Id. at 15

[vii] Id.

[viii] Id. at 16

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