On August 26, 2021, the Eleventh Circuit Court of Appeals of decided Bradley v. Benton[i], which is instructive regarding reasonable suspicion and the law related to taser’s used against suspects that are in elevated positions. The relevant facts of Bradley, taken directly from the case, are as follows:
On the day of Robinson’s death, Officer Casey Benton of the DeKalb County Police Department was patrolling near The Highlands of East Atlanta apartment complex in Atlanta, Georgia. That area had recently experienced a rise in gang related and violent crime.
Around 7:00 p.m., Officer Benton observed a white SUV with a temporary license plate leaving the apartment complex shortly after it had entered. He decided to follow. The SUV was driven by Wilford Sims and its lone passenger was Troy Robinson. Sims had bought it a few days earlier. Officer Benton later testified that he decided to follow the car because he could not see an expiration date on the temporary tag. While Officer Benton was following Sims’s car, he looked at the temporary tag and ran the tag number in the police department’s computer system. He does not recall the information that was returned by the computer system about the tag, nor did he check the system to see whether the tag was expired. Sims was not suspected of committing any other traffic violations. After about two minutes, Officer Benton stopped the SUV.
Officer Benton asked for Sims’s driver’s license, and Sims provided it. Officer Benton then asked whether there were any weapons in the car. Sims advised Officer Benton that he was carrying a handgun. Officer Benton asked Sims to step out of the vehicle, and Sims complied. Officer Benton then retrieved a loaded handgun from the center console. Officer Benton told Sims that he could reenter the car, which he did. Officer Benton then asked Robinson if he had any identification. Robinson replied that he did not.
There were two other officers on the scene: Officer C.M. Franklin and Officer L.O. Niemann. When Officer Benton asked one of them to run Robinson’s name in the police department’s system, Robinson abruptly exited the vehicle and fled on foot. Robinson ran across a road and through the parking lot of a Family Dollar store that abutted the apartment complex. Officer Benton pursued him on foot while Officer Niemann attempted to follow in his patrol car. Officer Franklin remained with Sims.
At some point after Robinson reached the area behind the Family Dollar, Officer Benton fired a single shot from his taser without warning, striking Robinson. The ground behind the store slopes down toward a chain-link fence that, on the day of the chase, was surrounded by thick undergrowth. The fence stands several feet from an eight-foot-high concrete wall that lines the back of the Highlands apartment complex. By the time Robinson reached the chain-link fence, Officer Benton was still ten to fifteen feet behind him. Robinson went over the fence and tried to climb the concrete wall, fell off the wall, and suffered blunt force trauma to his head and neck that caused his death.
Officer Benton testified that he fired his taser without warning while Robinson was still on the ground. As Officer Benton tells it, the taser did not affect Robinson because only one of the two taser probes pierced Robinson’s skin, with the other getting stuck in Robinson’s clothing. Consequently, Officer Benton stopped his taser short of a full five-second cycle. Robinson proceeded to climb up the fence, then onto the wall, where he lost his balance, fell, and died.
Robinson’s family tells a different story. In their version of events, Officer Benton fired his taser upward at Robinson while he was on top of the wall. The taser probes contacted Robinson with full effect, causing him to become temporarily incapacitated, fall, break his neck, and die. The plaintiffs point to substantial evidence that contradicts Officer Benton’s account. First, several days after the incident, another officer investigating the shooting found a green blast door from a taser cartridge inside the complex, on the opposite side of the wall from where Officer Benton was standing when he fired his taser, suggesting that the taser had been fired upwards and over the wall. Second, several eyewitnesses from the nearby apartment complex testified that they saw Robinson fall. One witness testified that she heard a “pop” while Robinson was still visible on top of the wall. Another witness testified that he heard Robinson “yell ‘help’ three or four times” while on top of the wall. That witness testified that she saw Robinson sitting on the wall until “something occurred” and “[h]is right arm went in the air” before he fell. A third witness said that he also heard Robinson call for help while sitting on the wall. He then saw Robinson “stiffen up” like “he went into shock” before falling over the wall into the apartment complex.
Officer Benton testified that he was aware of and understood police department policy that a taser “will cause most everyone to fall and therefore should not be used when the risk of falling would likely result in death[.]” He also agreed that under that policy it was “not appropriate” to use a taser “if someone is at an elevated height[.]” Tracy Rucker, the master instructor on taser use for DeKalb County, testified that a person who is tased will experience “neuromuscular incapacitation” and will be paralyzed from pain for around five seconds. He also testified that he instructed DeKalb County officers that tasers could be deadly when the target is in a dangerous position such as an elevated height. And he affirmed that even a fall “from a level that’s not that high” can cause serious injury when the victim has been incapacitated by a taser.
Officer Benton never issued a ticket to Sims for a traffic violation. The temporary tag on Sims’s vehicle did have an expiration date and was valid. Officer Benton later testified that he never felt like Robinson posed an immediate threat to him or any of the other officers. The officers found no weapons on Robinson’s body, and there is no other evidence he had a weapon. A posthumous toxicology report revealed traces of marijuana in Robinson’s system. The record does not explain why Robinson ran away from the traffic stop.[ii]
Robinson’s mother (Bradley) and his nine children sued Benton for violating Robinson’s rights under the Fourth Amendment. The plaintiff alleged the officer violated Robinson’s rights by (1) stopping the car without reasonable suspicion, (2) pursuing him without reasonable suspicion, and (3) seizing him by use of excessive force by tasing him atop a wall. Officer Benton filed a motion for qualified immunity. [Note: This article will not discuss the state law claims for which Officer Benton received official immunity.]
The district court denied Officer Benton’s motion for qualified immunity, and he appealed to the Eleventh Circuit Court of Appeals.
On appeal, the Eleventh Circuit discussed (1) the initial traffic stop, (2) the pursuit of Robinson, and (3) the tasing of Robinson.
Issue One: Did the initial stop of the car driven by Sims, in which Robinson was a passenger, violate the Fourth Amendment?
The court first discussed the constitutional requirements for an officer to stop a vehicle. The court stated
Under the Fourth Amendment an officer may “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence[.]” Id. at 123-24 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). Still, it requires “a minimal level of objective justification for making the stop.” Id. We consider whether a “particularized and objective basis” for the stop existed in light of the totality of the circumstances. Brent v. Ashley, 247 F.3d 1294, 1300 (11th Cir. 2001).[iii]
In this case, Officer Benton testified that he stopped Sims’s vehicle because he could not see the expiration date on the temporary tag, and failing to display an expiration date would be a violation of Georgia traffic law. The other officers present also testified that the expiration date was placed in an unusual location on the tag, and this would have caused them to stop the vehicle. The court of appeals also stated that based on a photograph of the tag in evidence they agreed that the location of the expiration date on the tag could “lead a reasonable officer to believe that the tag was improper.”
Thus, the court of appeals held that Officer Benton had reasonable suspicion to stop Sims’s vehicle. As such, he is entitled to qualified immunity on this claim.
Issue Two: Whether Officer Benton had reasonable suspicion that Robinson was engaged in criminal activity as he pursued him on foot?
The court first examined the legal principles relevant to this issue and stated
Whether Officer Benton had reasonable suspicion to pursue Robinson turns on the totality of the circumstances. See United States v. Gordon, 231 F.3d 750, 757 (11th Cir. 2000) (“[W]hether reasonable suspicion exists must be determined on a case-by-case basis in view of the totality of the circumstances.”). . .The Supreme Court has held that “[h]eadlong flight—wherever it occurs—is the consummate act of evasion,” and though “[i]t is not necessarily indicative of wrongdoing, . . . it is certainly suggestive of such.” Wardlow, 528 U.S. at 124. See also United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003) (reasonable for officers to pursue someone who ran away); Gordon, 231 F.3d at 755 (same).[iv]
In Robinson’s case, he was the passenger in a vehicle that was lawfully stopped by police. When Officer Benton asked another officer to check Robinson through the computer system for warrants, he fled on foot, across a busy road, toward an apartment complex. The court of appeals held that this created sufficient reasonable to pursue and detain Robinson to investigate why he fled from the traffic stop.
Issue Three: Whether Tasing Robinson as he was on an elevated wall was excessive force under the Fourth Amendment?
At the outset it is important to note that, at this stage of the litigation, where the court is determining an officers motion for qualified immunity, the court is required to view the evidence in a light most favorable to the plaintiff. This means if the officer’s version of events materially differs from the plaintiff’s version of events, the court must view the facts as the plaintiff alleges, unless there is clear evidence to the contrary, such as video. It is also important to note that the officer testified that he fired the taser at Robinson while Robinson was still on the ground, but a clothing disconnect rendered the taser ineffective. The officer testified that he stopped the taser prior to the to the end of the five-second cycle because it was ineffective. He testified that Robinson then climbed the fence, then the wall, lost his balance on his own accord, fell, and died.
In contrast, the plaintiffs allege that the officer fired his taser at Robinson while he was on top of the wall, which caused him to fall, break his neck, and die. The plaintiff’s cited evidence in support of their allegation. First, they noted that an officer investigating the incident found the taser’s green blast door on the opposite side of the wall. They allege this indicates the officer fired his taser in an upward manner toward Robinson when he was on top of the wall. Second, the plaintiff’s produced three witnesses that all, in effect, stated that Robinson was on top of the wall when he stiffened up, lost his balance and fell.
Based on the conflicting version of events and the existence of evidence to support the plaintiff’s allegation, the court of appeals is required to credit the plaintiff’s version of events for the purpose of this appeal regarding qualified immunity. As such, the court proceeded with the case crediting the plaintiff’s version of events, specifically, that the officer fired his taser at Robinson when Robinson was atop the eight-foot tall wall.
The court of appeals also explained the legal principles that control their analysis of this issue. The court first stated
The amount of force used by an officer “must be reasonably proportionate to the need for that force.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). “‘The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene,’ and the inquiry ‘is an objective one.‘” Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). A court cannot apply this standard mechanically. Kingsley v. Hendrickson, 576 U.S. 389, 397, 135 S. Ct. 2466, 192 L. Ed. 2d 416 (2015). Instead, the inquiry “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S. at 396.[v]
The court also discussed factors that they must consider when evaluating the reasonableness of a use of force. The court stated
We therefore consider  “the relationship between the need for the use of force and the amount of force used;  the extent of the plaintiff’s injury;  any effort made by the officer to temper or to limit the amount of force;  the severity of the [crime] at issue;  the threat reasonably perceived by the officer; and  whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397.[vi]
Lastly, the court of appeals discussed the legal principles related to an officer’s use of deadly force. The court explained
When an officer uses deadly force, we must also consider whether the officer (1) “‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others’ or ‘that he has committed a crime involving the infliction or threatened infliction of serious physical harm'”; (2) “reasonably believes that the use of deadly force was necessary to prevent escape”; and (3) “has given some warning about the possible use of deadly force, if feasible.” McCullough, 559 F.3d at 1206 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329-30 (2003)); see also Cantu v. City of Dothan, Alabama, 974 F.3d 1217, 1229 (11th Cir. 2020).[vii]
The court of appeals then set out to determine if firing the taser at Robinson while he was atop an eight-foot high wall constituted deadly force. The court stated
We have recognized that a taser is generally not a deadly weapon. Fils v. City of Aventura, 647 F.3d 1272, 1276 n.2 (11th Cir. 2011). . . See United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982) (“[W]hether an object constitutes a ‘dangerous weapon’ turns not on the object’s latent capability alone, but also on the manner in which the object was used,” especially “when used in a manner likely to endanger life or inflict great bodily harm.”).[viii]
The court then explained that other federal circuits have held that tasing a person who is at an elevated height may cause a substantial risk of serious bodily injury or death.[ix]
The court then applied these legal principles to the facts of this case. The court noted that Officer Benton had been trained that suspects should not be tased when they are on elevated locations because they can easily lose their balance and fall. Officer Benton also stated that he knew the taser should not be used when the risk of falling could result in death, such as from rooftops. He also stated that he agreed that it was “not appropriate” to use a taser when a suspect is at an elevated height.
The court of appeals then held that Officer Benton “applied force that he knew created a substantial risk of serious bodily harm or death,”[x] in other words, deadly force.
Next, the court of appeals set out to determine whether the use of deadly force against Robinson was reasonable under the Fourth Amendment.
First, the court noted that the officer lacked probable cause to believe that Robinson posed a threat of serious bodily harm to the officer or others. The court stated that the officer had no reason to believe Robinson was armed, he made no threatening gestures, and their was not evidence to show that Robinson was dangerous.
Second, the court noted that the officer did not have probable cause to believe that Robinson committed a crime involving the infliction or threatened infliction of serious physical harm. In fact, the court stated that there was no probable cause to believe Robinson had committed any crime; while he had run from the officers giving rise to reasonable suspicion, probable cause that he committed a crime was still lacking.
Third, the court noted that the officer fired his taser at Robinson without warning. The court, considering time and opportunity, noted that the officer was in close proximity to Robinson during the foot pursuit and had opportunity to warn him that he would be tased. Rather, viewing the facts in a light most favorable to the plaintiff’s, the court stated that the officer waited until Robinson was atop a wall to tase him without warning.
Thus, the court of appeals held the use of deadly force was not reasonable under the Fourth Amendment.
Lastly, the court set out to determine if Officer Benton should nonetheless be granted qualified immunity. For a plaintiff to defeat an officer’s qualified immunity the plaintiff must show (1) that the officer violated his constitutional rights, and (2) that the law was clearly established such that a reasonable officer in the same situation would have known he was violating the constitution.
The plaintiff, based on her version of events, has satisfied the first prong required to defeat qualified immunity, particularly that the officer violated the Fourth Amendment. In order to satisfy the second prong, clearly established law, the plaintiff must show case law from the Supreme Court, Eleventh Circuit Court of Appeals or Georgia Supreme Court, that is similar enough to provide a reasonable officer fair warning that the conduct is unlawful. Additionally, some conduct is considered “plainly obvious” to be a violation such that any reasonable officer would know he was violating the constitution.
Here, the court of appeals held that the law was clearly established based upon the Supreme Court’s holding in Tennessee v. Garner. The court noted that Garner held that it was unlawful to shoot (use deadly force) a suspect to prevent the escape of an unarmed, non-violent felon. The court stated
Garner clearly established that an officer cannot use deadly force to stop an unarmed man who is not suspected of committing a violent crime from fleeing on foot. That is precisely what happened in Garner and that is precisely what happened in this case. Accordingly, Garner put Officer Benton on notice that he could not use deadly force to stop Robinson from running away on foot.[xi]
Additionally, the court of appeals also held that this is also a case where it should be plainly obvious to any reasonable officer that deadly force would violate the Fourth Amendment.
As such, the officer was denied qualified immunity for the excessive force claim. Thus, the case must go to a jury to make a decision on which version of events to credit.
[i] No. 20-11509 (11th Cir. Decided August 26, 2021 Unpublished)
[ii] Id. at 2-7
[iii] Id. at 10 (emphasis added)
[iv] Id. at 12-13 (emphasis added)
[v] Id. at 14-15 (emphasis added)
[vi] Id. at 15 (emphasis added)
[vii] Id. (emphasis added)
[viii] Id. at 16 (emphasis added)
[ix] Id. (See Peroza-Benitez v. Smith, 994 F.3d 157, 168 (3d Cir. 2021) (collecting cases); Baker v. Union Twp., 587 F. App’x 229, 234 (6th Cir. 2014) (“It is widely known among law enforcement . . . that tasers should not be employed against suspects on elevated surfaces because of the risk of serious injury from a resulting fall.”).
[x] Id. at 17
[xi] Id. at 22 (emphasis added)