||ELEVENTH CIRCUIT DISCUSSES EXCESSIVE FORCE AND PRE-TRIAL DETAINEES

ELEVENTH CIRCUIT DISCUSSES EXCESSIVE FORCE AND PRE-TRIAL DETAINEES

On May 9, 2019, the Eleventh Circuit Court of Appeals decided Piazza v. Jefferson County et al.[i], in which the court examined whether a deputy used excessive force against a pre-trial detainee in the jail, and if so, whether the deputy’s supervisors were also liable.  The relevant facts of Piazza, taken directly from the case, are as follows:

Ricky Hinkle, who suffered from alcoholism, heart disease, and depression, was arrested while “visibly intoxicated” and was taken to the Jefferson County Jail in Bessemer, Alabama.1 The next day, he was transferred to the Birmingham City Jail. Soon thereafter, he began suffering from alcohol-withdrawal symptoms and exhibiting delusional behavior. Jail officers moved Hinkle three different times before eventually (and presumably due to his deteriorating condition) placing him in a cell on Level 3, where Deputies Habimana Dukuzumuremyi and Christopher Cotten were working.

Shortly after Hinkle arrived on Level 3, Dukuzumuremyi realized that he couldn’t see him on the video monitor, so he called to him over the loudspeaker. When Hinkle didn’t respond, Cotten went to investigate and found Hinkle in the corner of his cell, wearing only underpants and shoes. When Cotten asked Hinkle why he was in the corner, Hinkle responded that he “wanted to die.” At this, Cotten decided to move Hinkle to a padded cell. He walked Hinkle toward the cell and asked him to remove his shoes. Hinkle initially obeyed but then ran down the hallway to the bathroom and grabbed a shower curtain. Cotten took the shower curtain away from Hinkle shortly before Dukuzumuremyi arrived on the scene.

After the officers attempted three times to pull Hinkle into his new cell, Dukuzumuremyi fired his taser, hitting Hinkle on the left side of his chest just above his heart. As a result of that taser shock—which lasted 5 seconds—Hinkle fell to the floor on his right side and urinated on himself. Dukuzumuremyi then ordered Hinkle to roll over to be handcuffed, but Hinkle remained unresponsive. Eight seconds after the end of the first shock, and while Hinkle still lay motionless (and wet) on the ground, Dukuzumuremyi tased him again, this time on the front left side of his neck. Shortly after the second shock, Hinkle went into cardiac arrest. He was taken to the emergency room, where he was pronounced dead.[ii]

Piazza filed suit on behalf of Hinkle’s estate against the deputies, the deputy’s supervisor and the sheriff; he alleged excessive force claims against the deputies and supervisor liability claims against the supervisor and the sheriff.  The District Court granted immunity for Deputy Cotton (the deputy that did not fire the Taser) but denied qualified immunity for Deputy Dukuzumuremyi, the supervisor and the sheriff; they subsequently appealed the denial of qualified immunity to the Eleventh Circuit Court of Appeals.

At the outset, it is important to note that when an officer is sued for constitutional violations, he or she is entitled to qualified immunity if the officer was engaged in a discretionary function.  A discretionary function is one that requires an officer to make a decision from a variety of options, such as when using force on person.  In order to defeat qualified immunity, a plaintiff must show (1) the officer violated a federally protected right, and (2) the right was clearly established such that a reasonable officer would have known the conduct was unlawful.

The Eleventh Circuit then set out to determine if Deputy Dukuzumuremyi violated Hinkle’s right to be free from excessive force.

First, the court noted that excessive force claims regarding pre-trial detainees are evaluated under the Fourteenth Amendment, rather the Fourth Amendment.  The Supreme Court, in Kingsley v. Hendrickson[iii], clarified how to apply this legal standard in excessive force allegations involving pre-trial detainees.  This case held that

[A] pretrial detainee raising a Fourteenth Amendment claim needn’t prove an officer’s subjective intent to harm but instead need show only that “the force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2473.[iv] [emphasis added]

In examining the application of Kingsley to subsequent cases the Eleventh Circuit stated

After Kingsley, then, if force used against a pretrial detainee is more severe than is necessary to subdue him or otherwise achieve a permissible governmental objective, it constitutes “punishment” and is therefore unconstitutional. Notably, inasmuch as it entails an inquiry into the objective reasonableness of the officers’ actions, the Fourteenth Amendment standard has come to resemble the test that governs excessive-force claims brought by arrestees under the Fourth Amendment.[v] [emphasis added]

The court then noted that the “need to preserve internal order and discipline” and “maintain institutional security” are still “legitimate interests” in examining the reasonableness of a use of force in a jail.  Further, just like under the Fourth Amendment, the court will consider the fact that deputies must make split second decisions in tense, rapidly evolving circumstances.  The court also stated that they will consider the incident from the perspective of a “reasonable officer on the scene,” just as they do in a Fourth Amendment case.

The Eleventh Circuit then stated

How do we know, then, when force is reasonable and when it is “excessive in relation to its purpose”? Well, as relevant to this case, our decisions make one thing clear: “Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is disproportionate to the need.” Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008) (emphasis added), abrogated on other grounds by Kingsley, 135 S. Ct. 2466. Accordingly, “[w]hen jailers continue to use substantial force against a prisoner who has clearly stopped resisting—whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated—that use of force is excessive.” Id. (emphasis added); see also Ort v. White, 813 F.2d 318, 327 (11th Cir. 1987) (“A [F]ourteenth [A]mendment violation occurs . . . where prison officers continue to employ force or other coercive measures after the necessity for such coercive action has ceased.”); In other words, because force in the pretrial detainee context may be defensive or preventative—but never punitive—the continuing use of force is impermissible when a detainee is complying, has been forced to comply, or is clearly unable to comply.[vi] [emphasis added]

After the court examined the legal standard, as set forth above, they next set out to determine whether Deputy Dukuzumuremyi used unreasonable force, or in other words, “whether it was excessive in relation to its purpose.”

The court first observed that, initially, deputies were trying to put Hinkle in a different cell.  He ran and grabbed a shower curtain (not the curtain rod).  After three unsuccessful attempts to put Hinkle in the cell, Deputy Dukuzumuremyi fired his Taser, which struck Hinkle “just above the heart with a five-second shock.”[vii]  According to the plaintiff’s version of events (which must be utilized by the court at this stage of the litigation), Hinkle fell to the ground, urinated on himself, and laid motionless.  The deputies gave him commands to roll over and he did not comply.  Eight seconds after the first shock, Deputy Dukuzumuremyi used his Taser again, this time on the side of his neck.

Both sides agree that the first use of the Taser was reasonable and did not constitute excessive force.  The court stated

The parties don’t dispute that the first shock was a permissible use of force given Hinkle’s resistance and the officers’ need to “preserve internal order and discipline” and “maintain institutional security.” See Kingsley, 135 S. Ct. at 2473.[viii]

The second use of the Taser is the event that the plaintiff alleged was excessive force.

In its analysis of the reasonableness of the second use of the Taser, the court noted that the first use of the Taser caused Hinkle to fall to the floor, urinate on himself, and lay motionless for eight seconds until he was Tased a second time.  The deputy argued that because Hinkle did not roll over as commanded, it was reasonable to Tase him the second time.  However, the court stated

It seems to us totally unreasonable to expect that a man who is lying on the floor immobilized—and incontinent—following a taser shock should pep up, roll over, and submit to handcuffing within eight seconds.[ix]

Further, the deputy argued that his decision to administer the second shock with the Taser was a “split second decision” that should be given deference by the court.  However, the disagreed with that assertion and stated

[I]n eight seconds, we believe, any reasonable officer would have concluded that a detainee who lay inert on the floor, having soiled himself, was no longer putting up a fight.[x]

The court then held that the second use of the Taser was excessive force and therefore a violation of the Fourteenth Amendment.

Since the court held a constitutional violation had occurred, they then moved to the second prong of the test for qualified immunity, particularly whether the law was clearly established such that another reasonable deputy in same situation would have know his conduct was unlawful, or in other words whether the deputy had “fair warning that his conduct was unconstitutional.”

The court stated

It was more than ten years ago now that this Court held, in no uncertain terms, that “[w]hen jailers continue to use substantial force against a prisoner who has clearly stopped resisting—whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated—that use of force is excessive.” Danley, 540 F.3d at 1309; see also id. (“Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is disproportionate to the need.”).  And Danley was no innovation; for decades our decisions have embraced and reiterated the principle that an officer may not continue to use force after a detainee has clearly stopped resisting. See Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002).[xi]   [emphasis added]

The court noted that it did not matter that previous precedent involved uses of different weapons such as pepper spray, rather than the use of a Taser, because those cases established clear principles that gave the deputy “fair warning.”  Specifically, the court stated

There is “no meaningful distinction” between pepper spray to an unresisting detainee’s face, a kick to his gut, or a taser to his chest and neck. The crucial question is whether the law gave Dukuzumuremyi “fair warning” that his conduct—tasing an already-tased, incapacitated, incontinent, and unresisting detainee—violated the Fourteenth Amendment. In the light of our use-of-force precedent, we have no trouble concluding that it did.

Accordingly, we hold that Deputy Dukuzumuremyi’s second taser shock violated Hunter’s clearly established Fourteenth Amendment right to be free from excessive force…[xii]

As such, the court held that the law was clearly established and Deputy Dukuzumuremyi was not entitled to qualified immunity.

The court next set out to determine of whether Captain Eddings and Sheriff Hale bore supervisory liability for the deputy’s actions.  The court first discussed the legal standards for supervisor liability and stated

The standard by which a supervisor can be held liable for the actions of a subordinate is “extremely rigorous.” Cottone, 326 F.3d at 1360. Supervisory officials cannot be held liable under § 1983 for unconstitutional acts by their subordinates based on respondeat-superior or vicarious-liability principles. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Instead, absent allegations of personal participation—of which there are none here concerning Hale or Eddings—supervisory liability is permissible only if there is a “causal connection” between a supervisor’s actions and the alleged constitutional violation. Cottone, 326 F.3d at 1360.

One way that a plaintiff can show the requisite causal connection is by demonstrating that a supervisor’s policy or custom resulted in “deliberate indifference to constitutional rights.”  Id. at 1360-61. A plaintiff can also show that the absence of a policy led to a violation of constitutional rights. Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). Either way, though, to prove that a policy or its absence caused a constitutional harm, a plaintiff must point to multiple incidents, see Rivas, 940 F.2d at 1495-96, or multiple reports of prior misconduct by a particular employee, see Danley, 540 F.3d at 1315. “A single incident of a constitutional violation is insufficient to prove a policy or custom even when the incident involves several [subordinates].” Craig v. Floyd County, 643 F.3d 1306, 1312 (11th Cir. 2011); see also Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007)…

First, the plaintiff argued that the sheriff failed to implement adequate policies concerning use of force and that this failure resulted in the excessive force used against Hinkle.  However, the court noted that the plaintiff failed to allege any other incidents of excessive force and only used Hinkle’s incident as a basis for this claim.  As such, the claim fails as a matter of law.

Second, the plaintiff argued supervisory liability for deliberate indifference to Hinkle’s serious medical needs, particularly they failed to treat him for his alcoholism or provide him with his prescription medication.  However, the court noted that the plaintiff did not point to any other instances of delayed medical treatment.  Further, the plaintiff did not allege any facts to indicate that the captain or sheriff were on notice regarding any alleged deliberate indifference on the part of deputies at the jail.  The court stated

Because Hunter’s complaint contains only conclusory assertions that jail officers were indifferent to Hinkle’s needs pursuant to certain policies or customs—without alleging any facts concerning those policies or customs—he has not stated a claim for supervisory liability for deliberate indifference to serious medical needs. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.'”).[xiii] [emphasis added]

As such, the court held that the captain and sheriff were entitled to qualified immunity.

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Citations

[i] No. 18-10487 (11th Cir. Decided May 9, 2019)

[ii] Id. at 2-4

[iii] 135 S. Ct. 2466 (2015)

[iv] Piazza at 8

[v] Id. at 9

[vi] Id. at 10-11

[vii] Id. at 12

[viii] Id.

[ix] Id.

[x] Id. at 13

[xi] Id. at 15-16

[xii] Id. at 18-19

[xiii] Id. at 22

By |2019-12-23T14:49:30+00:00December 23rd, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.