On November 20, 2023, the Eleventh Circuit Court of Appeals decided Bouvier v. City of Covington[i], which serves as excellent review of the law related arrest and use of force.  The relevant facts of Bouvier are as follows:

On August 18, 2018, the officers responded to a 9-1-1 call from Lance Taylor, a contract security guard for Piedmont Hospital Newton, regarding a disturbance in the labor-and-delivery unit. Smith was the first to arrive. Taylor told Smith that the hospital staff “were trying to give this girl an epidural” but that another girl, later identified as Bouvier, “was refusing to leave the room after she was asked numerous times by the staff. We asked her. She wouldn’t leave.” Taylor said that the staff “finally just got the procedure done anyway,” but the doctor said that he wanted “her to follow the rules.” Taylor also told Smith, “[I]f she’s gonna act like that all day, . . . if she’s gonna be interfering with the staff and all that, she’s probably gonna end up having to go.” He explained it was up to the hospital representative to decide whether to remove Bouvier.

Inside the hospital room, Smith asked the representative, “Do you want her to stay or no?” The representative whispered, “No,” and then hesitated, “I don’t know. . . . If they were able to do the procedure, then—then I’m cool. Um, but if this continues, then yes, she’s going to have to . . . because she’s putting the patient at risk.” Smith relayed that the doctor was able to administer the epidural and said, “[I]f you want her out, she’ll be out. I don’t want her giving y’all a hard time all day long.”

Wilkerson and Fairburn arrived and stood outside the room while Smith waited to speak to one of the nurses. As the nurse was leaving the room, she widened her eyes at the hospital representative and inhaled. When the hospital representative asked if the nurse wanted Bouvier removed, the nurse raised her eyebrows, made a face, and said that she only had ten minutes left on her shift so Bouvier could “f**k off for all I care.” The representative told Smith, “She’s okay for now.”

Smith walked into the room and said to Bouvier, “Ma’am. Ma’am. Come here for me.” After Bouvier ignored her, Smith said, “[Y]ou’re giving a problem. So instead of removing you—listen, listen—instead of removing you, I just need to speak with you.” Bouvier asked “[a]bout what?” and Smith stated, “About the whole thing. So, so you can stay here with [your friend], put the cup down and come talk to me.” Bouvier’s friend told Bouvier to talk to Smith and asked Smith to promise that Bouvier could come back. Smith said, “Yes, if she cooperates with me,” and again told Bouvier to come talk to her.

Outside the room, Smith asked Bouvier if she had identification on her, and Bouvier said she did but asked, “For what?” Smith explained that Bouvier could make this as simple or as hard as she wanted to, and Bouvier responded, “You guys are doing too much.” Bouvier then told her friend’s boyfriend, Mr. Young, “They’re kicking me out of the hospital.” Smith said, “No I’m not. If you’ll listen to me, I want your ID, and I want you to cooperate. And then you can stay.” Bouvier said, “For what? I didn’t get stopped by an officer.” The other officers explained, “We’re here for you,” and, “We’re here for a reason. The law says you have to give us your ID.” During this exchange, Smith explained to Young that his girlfriend wanted Bouvier to stay, but Bouvier was not cooperating with staff or the officers. After Bouvier complained about the hospital’s service and told the officers that they were “starting problems,” she tried to walk past Smith to re-enter the room, but Smith extended her arm across the doorway. Bouvier said that Smith had committed a battery and began shouting, “My boyfriend’s mother is an officer,” and “Don’t make me make those calls.”

Because of the shouting, a nurse closed the door to the room. At that point, Smith announced to Bouvier and the other officers, “There are other people here. We’re fixin’ to get out of the hospital.” Bouvier said she was making a phone call to an officer she knew and grabbed onto the railing on the wall behind her with both hands. Smith grabbed Bouvier’s arm and said three times, “It is time for you to leave,” while moving her away from the door. A few seconds later, Bouvier, who was arguing with Fairburn and Wilkerson, pulled her arm away from Smith. Smith announced that Bouvier was under arrest and instructed twice, “Give us your hands now.” Bouvier instead pulled her hands up to her chest so that Smith could not handcuff her.

Bouvier alleges that she was wrestled to the floor. Because the video is unclear about whether she dropped or was forced to the floor, we accept Bouvier’s allegation. In either event, after Bouvier was face down on the floor, Smith shouted six times, “Give us your hands,” but Bouvier screamed and refused to unlock her arms. One officer used a pressure-point technique to keep Bouvier on the floor, but Smith and the other officer still were unable to get both of Bouvier’s hands behind her back to be handcuffed. After the officers announced “Taser” eight times, one of the officers deployed his Taser in a five-second burst, a two-second burst, and a three-second burst, over the course of 17 seconds. An officer explained to Young that they were tasing her “[be]cause she won’t comply.”

After Bouvier put her hands behind her back and was handcuffed, the officers pulled Bouvier to her feet and walked her out of the labor-and-delivery unit while she continued yelling at and struggling with them because she wanted to go back for her cell phone. Smith told Bouvier three times that she was “still not obeying orders.” Bouvier was charged with misdemeanor disorderly conduct, O.C.G.A. § 16-11-39(a), and misdemeanor obstruction, id. § 16-10-24(a).[ii]

Bouvier filed suit in federal court and argued that the officers violated her right to be free from an unlawful seizure without probable cause and right to be free from excessive force, both under the Fourth Amendment.  The officers filed motions for qualified immunity.  The district court denied their motions for qualified immunity finding (1) that the officers lacked probable cause to arrest Bouvier for criminal trespass and obstruction because the encounter was considered a consensual encounter under Georgia law so Bouvier was free to walk away from the police and not provide identification, and (2) that the use of the Taser was objectively unreasonable because it was unclear if Bouvier committed a crime, posed an immediate threat, or was required to comply with officers.  The officers appealed the denial of qualified immunity to the Eleventh Circuit Court of Appeals.

The court first discussed qualified immunity and stated

Qualified immunity shields officials who are acting within their discretionary authority from liability when their conduct does not violate a constitutional right that was clearly established at the time of the conduct. Williams v. Aguirre, 965 F.3d 1147, 1156 (11th Cir. 2020). “We are required to grant qualified immunity to a defendant official” who was acting within her discretionary authority unless the plaintiff can prove “(1) that the facts, when construed in the plaintiff’s favor, show that the official committed a constitutional violation and, if so, (2) that the law, at the time of the official’s act, clearly established the unconstitutionality of that conduct.” Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015).[iii]

Thus, to defeat an officers’ motion for qualified immunity, a plaintiff must show (1) there was a constitutional violation, and (2) that the law was clearly established such that every reasonable officer in the same situation would have known he or she was violating the person’s rights.

The court then examined Bouvier’s unlawful seizure claim, which is a claim for unlawful arrest without probable cause.  The court first discussed the legal principles relevant to this issue and stated

A warrantless arrest must be supported by probable cause to believe that the suspect committed a crime. See Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019). “Probable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish ‘a probability or substantial chance of criminal activity.'” Washington v. Howard, 25 F.4th 891, 898-99 (11th Cir. 2022) (quoting District of Columbia v. Wesby, 583 U.S. 48, 57, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018)). To determine whether probable cause exists, we ask “whether a reasonable officer could conclude . . . that there was a substantial chance of criminal activity.” Id.[iv]

The court then noted that the responding officers initially had reasonable suspicion to detain Bouvier outside the hospital room based on the 911 call regarding her behavior and refusal to leave to the hospital room when instructed to do so by the hospital staff.  The court stated

[L]aw enforcement may detain a person briefly for an investigatory stop if they have a reasonable, articulable suspicion based on objective facts that the person has engaged in, or is about to engage in, criminal activity.[v]

When the officers discussed whether hospital representative wanted Bouvier immediately removed from the hospital, the representative stated that Bouvier was “okay” to stay “for now.”  The court stated that this “reasonably suggested to the officers that the staff was concerned that Bouvier would cause another disturbance,” therefore the officers had reasonable suspicion to detain her to investigate.  As such, the court of appeals stated that the district court erred by considering this a consensual encounter under Georgia court precedent, rather than using the objective reasonableness standard of the Fourth Amendment.

The court then stated

Probable cause supported Bouvier’s arrest because a reasonable officer could conclude that she was obstructing their lawful investigation. After being detained, Bouvier tried to walk away from the officers, refused their requests for identification, raised her voice, and defied Smith’s instruction that the group walk away from the patient’s room by grabbing onto the railing on the wall. See Draper, 369 F.3d at 1276-77 (granting qualified immunity where the defendant refused to produce requested documents and “acted in a confrontational and agitated manner, paced back and forth, and repeatedly yelled at [the officer].”); Harris, 726 S.E.2d at 458.[vi]

Thus, the court of appeals held that there was probable cause to arrest Bouvier for obstruction and, as such, the officers were entitled to qualified immunity on the unlawful arrest claim.

The court then examined the excessive force claim.  The court first noted that

[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 the officer.” Id. (quotation marks omitted).[vii]

The court also discussed Oliver v. Fiorino, an Eleventh Circuit case in which a mentally disturbed man was confronted by police.  The court stated

[A]lthough the initial deployment of the Taser might have been justified, repeatedly deploying the Taser and reloading it to continue tasing the individual, who was not suspected of a crime and did not act belligerently, was unreasonable under the circumstances as a matter of obvious clarity, such that a reasonable officer in the situation would have recognized that his actions were unlawful.[viii]

However, in Bouvier’s case, while she may not have posed a violent threat and was only suspected of a misdemeanor, she physically resisted being handcuffed in a maternity ward of a hospital, she refused to comply with eight commands to give officers her hands, and she kept her hands pulled to her chest and her elbows locked to physically resist handcuffing.  In light of these facts, which were in contrast to the facts of Oliver, the court held

In the light of Bouvier’s physical resistance and refusal to comply with repeated verbal commands, the application of the Taser for 10 total seconds within a 17-second period to gain control of her and restore order to the hospital unit was not “wholly disproportionate to the situation.” Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008).[ix]

Therefore, the court held that the force was reasonable in this situation, the officers were entitled to qualified immunity on the excessive force claim.

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.

______________________________________________________________

Citations

[i] No. 23-11410 (11th Cir. Decided November 20, 2023 Unpublished)

[ii] Id. at 2-6

[iii] Id. at 8-9 (emphasis added)

[iv] Id. at 9-10 (emphasis added)

[v] Id. at 10 (quoting  United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000))

[vi] Id. at 11-12

[vii] Id. at 12-13 (citing Fils v. City of Aventura, 647 F.3d 1272, 1290 (11th Cir. 2011)

[viii] Id. at 13 (emphasis added)

[ix] Id. at 13-14 (emphasis added)