On March 10, 2021, the Eleventh Circuit Court of Appeals decided Helm v. Rainbow City[i], in which the court examined whether officers violated the Fourth Amendment when a teenage girl who was having a grand mal seizure at a concert was held down and tased three times. The facts of Helm, taken directly from the case, are as follows:
On January 16, 2015, T.D.H. attended a concert with her younger sister, D.S.H., and some friends at a venue located in Rainbow City, Alabama. D.S.H. knew of T.D.H.’s condition and had been previously instructed by doctors on how to care for T.D.H. during [*3] her seizures. During the concert, T.D.H. began having a grand mal seizure and fell to the floor. In response, D.S.H. started holding T.D.H.’s head as she had been instructed to by the doctors.
Rainbow City Police Officers Timothy Kimbrough, Justin Gilliland, George Morris, and Jimmy Fazekas were at the concert that night providing security. Officer Gilliland first spotted T.D.H. and approached T.D.H. and D.S.H. D.S.H. told Officer Gilliland that T.D.H. was suffering from a seizure and needed help. A man from the crowd picked up T.D.H. and carried her to the lobby of the concert venue, where she began seizing again as she sat in a chair. D.S.H. told Officer Gilliland that T.D.H. was having another seizure. Officer Gilliland, Chief Carroll, and Officers Fazekas and Kimbrough then held T.D.H. on the ground. Officer Gilliland directed another officer to call for paramedics.
As the officers held down T.D.H., Officer Morris entered the lobby and was told that T.D.H. was having seizures. Officer Morris, however, claims he did not hear anyone tell him about T.D.H.’s condition and instead encountered an “out of control female.” Officer Morris [*4] then yelled at T.D.H.—while she was being held down by the other officers—telling her that if she did not calm down, he would tase her. Officer Morris unholstered his taser and waved it in front of T.D.H., repeating his threat. Chief Carroll and Officers Gilliland and Kimbrough heard and saw Officer Morris’s threat. Officer Morris then bent down and tased T.D.H. in the chest using the “drive stun” mode, meaning that he pressed the taser directly on T.D.H. and released an electric current without using probes. Using a taser in drive stun mode is a “pain compliance tool” that, unlike when using a taser’s electro-muscular disrupter probes, does not immobilize a person or disrupt that person’s muscle control.
None of the officers attempted to stop Officer Morris from using his taser on T.D.H. After witnessing Officer Morris tase T.D.H., Chief Carroll remained in the lobby area for three to four minutes before leaving to place a call regarding the paramedics’ arrival time. According to the district court’s view of the record, Chief Carroll witnessed only one instance of Officer Morris tasing T.D.H.
Officer Morris yelled at T.D.H. to calm down or he would tase her again. Officer Morris tased [*5] T.D.H. in the chest a second time and then a third time, each time using the drive stun mode while T.D.H. remained pinned down by four or five officers. T.D.H. blacked out and regained consciousness while on a gurney on the way to a hospital. T.D.H. was not arrested or charged with any crime.
Officers Kimbrough and Gilliland claim that, after her second seizure, T.D.H. cursed and spit at them, told them to let her go, and tried to kick and bite the officers, but D.S.H. maintains that T.D.H. never attempted to kick, bite, or spit at the officers and never yelled at the officers or used vulgar language. Similarly, T.D.H. testified that she blacked out during her first two seizures and remembers being held down by various officers and asking, “What is going on? Y’all let me go. I don’t know what is going on but I cannot breathe,” before blacking out again.
The officers do not dispute that T.D.H. presented no threat to them and, during the tasings, was held down by four or five men. The officers also do not dispute that, other than T.D.H.’s allegedly disorderly conduct while being held down, T.D.H. committed no crime and there was no reason to arrest her.
At some point that night, someone called Michelle Helm, T.D.H. and D.S.H.’s mother, and told her that T.D.H. was suffering seizures at the concert. Helm drove to the concert venue and, while approaching the entrance, saw a crowd of people around a female she assumed was her daughter. Helm saw T.D.H. on the floor seizing with various men holding her down. As Helm ran toward the venue, she yelled, “that’s my daughter, she’s having a seizure,” but an officer tackled her mid-sentence before she entered the lobby. Another officer handcuffed Helm with her arms behind her back and her face to the ground. While Helm lay handcuffed on the floor, Officer Morgan—a nonparty to this case—took out his taser and told Helm that he was going to tase her. Officer Morgan then tased Helm in the lower back using the drive stun mode, causing Helm to urinate on herself. None of the other named officers attempted to stop Officer Morgan from tasing Helm.
Officer Fazekas claims that, before witnessing Officer Morgan detain and tase Helm, he saw Officer Morgan grab Helm’s arm to stop her and she pulled away from him. Officer Fazekas stated that he handcuffed Helm after Officer Morgan tased her. Moreover, [*7] Officer Fazekas contends that Helm first almost knocked him off his feet, pushed him off when he tried to grab her, and entered the concert venue while yelling and trying to remove the officers from T.D.H. This is disputed, as D.S.H. claims her mother was tackled outside of the concert venue and never made it inside. Helm was arrested for disorderly conduct and spent the night in jail. Rainbow City later dismissed the charge against Helm.[ii]
Helm filed suit on behalf of herself and her T.D.H and alleged violations of the Fourth Amendment for excessive force, failure to intervene, and false arrest, as well as a violation of T.D.H. rights under the Fourteenth Amendment. The officers filed a motion for summary judgment and qualified immunity. The district court denied their motion and the officers appealed to the Eleventh Circuit Court of Appeals. [NOTE: This article will only address the Fourth Amendment excessive force claims.]
The court of appeals first noted that to overcome the officer’s qualified immunity, the plaintiff must show (1) that the officers violated the constitution, and (2) that the law was “clearly established” such that any reasonable officer in the same situation would have known he was violating the constitution. In order to show that the law was “clearly established,” a plaintiff can point to case law from the Supreme Court, Eleventh Circuit Court of Appeals, or the relevant State Supreme Court that is factually similar enough to give a reasonable officer fair warning that the conduct was unconstitutional. Additionally, if the conduct of the officers “so obviously violates the constitution,” then “prior case law is unnecessary.”[iii]
The court then discussed the alleged Constitutional violations. It is important to note that at this stage of the litigation, the court of appeals must view facts that are in dispute in a light most favorable to the plaintiff. Later, if the case goes to trial, a jury will hear testimony, weigh credibility and decide which version of the facts to believe.
Issue1. Did Tasing T.D.H. three times violate the Fourth Amendment?
The court first examined T.D.H.’s claim for excessive force against Officer Morris for tasing her three times. The court of appeals noted that excessive force claims are governed by the objective reasonableness standard of the Fourth Amendment. The court stated
This objective reasonableness test depends on the “facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. Because determining reasonableness is an objective test, we do not consider an officer’s intent or motivation. Id. at 397. This Court also considers the need for application of force, the relationship between the need and amount of force used, and the extent of the injury inflicted by the arresting officer. Lee, 284 F.3d at 1198 & n.7. In conducting this analysis, “[t]he only perspective that counts is that of a reasonable officer on the scene at the time the events unfolded.” Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009).[iv]
The court of appeals examined the facts of the case in a light most favor to the plaintiffs. The court noted that when T.D.H. began having the grand mal seizure, a good Samaritan carried her to the lobby area. When officers arrived D.S.H., T.D.H.’s younger sister, was holding her sister’s head. She told the officers that her sister was having a seizure. Chief Carroll, Officer Kimbrough, and Officer Gilliland then held T.D.H. down by her limbs. Officer Morris then drew his Taser and stated that he was going to Tase her. He subsequently delivered three shocks, in drive-stun mode, to T.D.H.
The court of appeals examined case law provided by both the officers and the plaintiffs. The court also considered the factors from the reasonableness test above. They noted that T.D.H. was (1) not suspected of a crime and (2) did not pose a threat to the officers or others. The court of appeals then held
Officer Morris’s use of his taser on T.D.H. three separate times, while T.D.H. was held down by four men while suffering a grand mal seizure, “was grossly disproportionate to any threat posed and unreasonable under the circumstances.” See id. at 907; see also Saunders v. Duke, 766 F.3d 1262, 1268-69 (11th Cir. 2014) (finding the gratuitous use of force on a compliant and restrained suspect is excessive). When viewed in the light most favorable to T.D.H., no reasonable officer in this situation would believe that the use of a taser against T.D.H. was necessary. Moreover, a jury could find that Officer Morris’s repeated tasings of T.D.H. amounted to excessive force. See Lee, 284 F.3d at 1197 (noting that reasonableness of use of force depends on “whether a reasonable officer would believe that this level of force is necessary in the situation at hand”) (internal quotation marks omitted). We therefore conclude that on this summary judgment record T.D.H. has established a violation of the Fourth Amendment.[v]
The court then moved to the second prong of the test for qualified immunity, particularly whether the law was clearly established such that any reasonable officer would have known the conduct violated the constitution.
The court of appeals stated that Oliver v. Fiorino[vi] and Smith v. Mattox[vii] together,
[C]learly establish that the repeated tasing of a subdued arrestee who has ceased any resistance or threatening conduct is excessive force in violation of the Fourth Amendment.[viii]
The court also noted that the “obvious clarity” method also “clearly establishes” the law in this case. The court stated
Under the “obvious clarity” exception, this Court looks to the officer’s conduct and “inquires whether that 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 officer], notwithstanding the lack of fact-specific case law.” Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002))[ix]
The court stated that Officer Morris deployed his taser on a teenage girl, three times, while she was held immobile by four officers as she was experiencing a grand mal seizure. The court again noted that she had committed no crime and was not a threat, as she was held immobile by four officers. Thus, the court found that the unconstitutionality of the conduct was obviously clear to any reasonable officer.
Therefore, Officer Morris was not entitled to qualified immunity.
Issue 2. Did Chief Carroll, Officer Kimbrough and Officer Gilliland’s failure to interview in the use of the Taser violate the Fourth Amendment?
The second issue before the court was whether Chief Carroll, Officer Kimbrough and Officer Gilliland violated the Fourth Amendment by failing to intervene in Officer Morris’ use of the taser?
The court examined the law related to “failure to intervene” during a constitutional violation. The court stated
[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation . . . takes place in his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). “This liability, however, only arises when the officer is in a position to intervene and fails to do so.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000). The principle that an officer must intervene when he or she witnesses unconstitutional force has been clearly established in this Circuit for decades. Id. at 927 (“That a police officer had a duty to intervene when he witnessed the use of excessive force and had the ability to intervene was clearly established in February 1994.”). When an officer witnesses another officer’s excessive use of force and makes “no effort to intervene and stop the ongoing constitutional violation[,] . . . [the witnessing officer] is no more entitled to qualified immunity than [the officer using force].” Edwards v. Shanley, 666 F.3d 1289, 1298 (11th Cir. 2012).[x]
Simply put, an officer has a duty to intervene in an unconstitutional use of force when (1) the officer witnesses the unlawful force, and (2) the officer is in a position with sufficient time to intervene. The court also noted that the law was clearly established in 1994 regarding this duty.
Applying the facts of the case to the rules above, the court noted that Chief Carroll, Officer Kimbrough and Officer Gilliland were in close proximity to Officer Morris when he threatened to Tase T.D.H. and then tased her three times, in drive stun mode, in the chest area. The court of appeals stated that this suggests that they were close enough to attempt to intervene by speaking or yelling at Officer Morris to stop tasing T.D.H.
As such, the court of appeals held the officers violated the Fourth Amendment by failing to intervene and the law was clearly established; therefore, the officers were not entitled to summary judgment or qualified immunity.
Thus, the court of appeals affirmed the denial of qualified immunity for the officers on the excessive force allegations.
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Citations
[i] No. 19-11569 (11th Cir. Decided March 10, 2021)
[ii] Id. at 2-7
[iii] Id. at 11
[iv] Id. at 12-13 (emphasis added)
[v] Id. at 19-20 (emphasis added)
[vi] 586 F.3d 898 (11th Cir. 2009)
[vii] 127 F.3d 1416 (11th Cir. 1997)
[viii] Helm at 21 (emphasis added)
[ix] Id. at 21-22 (emphasis added)
[x] Id. at 11-12 (emphasis added)
