Ethan James Charles v. Jeff Johnson, et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12393
____________________
ETHAN JAMES CHARLES,
Plaintiff-Appellant,
versus
JEFF JOHNSON,
individually and in his official capacity as Sheriff
of Dawson County,
WILLIAM THACKER,
CHARLES BRANTLEY,
RYAN LECKIE,
Defendants-Appellees.
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____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:18-cv-00101-RWS
____________________
Before W ILLIAM PRYOR , Chief Judge, LAGOA , Circuit Judge, and
WATKINS,* District Judge.
WATKINS, District Judge:
After midnight on July 8, 2016, Appellant Ethan Charles was
arrested by Appellee William Thacker, a Dawson County Sheriff’s
Deputy. Charles, who claims to suffer from bipolar disorder and
panic attacks, resisted this arrest for over five minutes. Deputy
Thacker only succeeded in subduing Charles with the aid of Appel-
lee Ryan Leckie—a civilian bystander—and Appellee Charles
Brantley—a second Sheriff’s Deputy. Charles was convicted of fel-
ony obstruction of a law enforcement officer in a Georgia state
court. He then brought suit against the individual Appellees under
42 U.S.C. § 1983 in the United States District Court for the North-
ern District of Georgia, alleging excessive force under the Fourth
and Fourteenth Amendments to the United States Constitution.
Charles also brought related state law claims against the individual
Appellees. Additionally, Charles sued the Dawson County Sheriff,
* Honorable W. Keith Watkins, United States District Judge for the Middle Dis-
trict of Alabama, sitting by designation.
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alleging that a failure to accommodate Charles’s disability consti-
tuted a violation of the Rehabilitation Act.
The district court granted summary judgment in favor of
Defendants on all federal claims and declined to exercise supple-
mental jurisdiction over the pendent state claims. For the reasons
stated below, we affirm.
I
On the night of the traffic stop, Charles was one of four pas-
sengers in a red Ford Mustang stopped for speeding by Deputy
Thacker, who was on patrol alone. Charles was a passenger in the
front seat. The car stopped at a well-lit gas station next to an island
of gas pumps. Deputy Thacker parked to the rear and slightly to
the right of the stopped car. Dash cameras in Deputy Thacker’s
vehicle and, later, in Deputy Brantley’s vehicle, recorded all of the
incident on audio and most of the incident on video.
After collecting the occupants’ identification, Deputy
Thacker discovered that Charles had an outstanding warrant.
Charles was unaware of the warrant. When asked by Deputy
Thacker to step out of the vehicle, Charles exited with a cell phone
to his ear. Deputy Thacker told Charles four times to hang up the
phone and told Charles that he would have an opportunity to call
the person back later. Before making physical contact, Deputy
Thacker also told Charles twice to put his hands behind his back.
Charles ignored the requests and orders of the deputy. Eventually,
after Charles continued to ignore the deputy and move away from
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him, Deputy Thacker reached for Charles, who pulled his arms
away from the deputy’s reach. Deputy Thacker told him to place
his hands behind his back five more times and then told him: “I’m
about to tase you. Hands behind your back! I’m about to tase
you.” Deputy Thacker once again told Charles to put his phone
down and, as Charles continued to struggle and shout, told him:
“Ethan—you’re gonna get tased, Ethan! Stop! Put the phone
down!”
The struggle moved off-video, where Appellee Ryan Leckie,
a bystander, is heard asking, “Sir, can you get a cuff on him?”
Leckie assisted Deputy Thacker by restraining Charles in what
Charles has described as a “chokehold.” Leckie testified that he in-
stead used a “full nelson.” Deputy Thacker told Charles to put his
hands behind his back two more times while Charles continued
yelling at Thacker. While off-video, Deputy Thacker tackled
Charles and brought him to the pavement.1
1 Where video evidence is conclusive, witness testimony cannot be used to
introduce a factual dispute.
Scott v. Harris, 550 U.S. 372, 380 (2007). How-
ever, the dashcam video does not show how Charles and Deputy Thacker
reach the ground. An eyewitness, in an
ex parte affidavit to Charles’s counsel,
stated that Deputy Thacker “body slammed” Charles to the pavement, with
Charles’s head “hit[ting] the ground at least twice.” The contents of this affi-
davit, however, were not disclosed to Defendants until after the eyewitness
was deposed. In her deposition, the eyewitness instead agreed that Deputy
Thacker “tackle[d]” Charles. Under Federal Rule of Evidence 613, the affidavit
would only be admissible at trial for impeachment purposes. With no sub-
stantive admissibility, Charles cannot rely on any statements in the affidavit at
the summary judgment stage.
See Santos v. Murdock, 243 F.3d 681, 684 (2d
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Charles’s yelling could be clearly heard through the radio in
Deputy Brantley’s patrol car as he approached the scene, as well as
on the audio recording from Deputy Thacker’s vehicle. When
Deputy Brantley arrived at the scene, Deputy Thacker, Leckie, and
Charles were seen struggling on the pavement, with Charles at the
bottom of the pile. Charles was lying on his side, with Deputy
Thacker kneeling on or near Charles’s hips and Leckie pressing his
upper body into Charles’s chest and neck. Leckie’s left elbow was
pressed into either the side or back of Charles’s neck while Leckie’s
right arm restrained Charles’s right arm. As Deputy Brantley ex-
ited his vehicle and approached the scrum, his hand reached to his
belt and drew his taser. With taser in hand, Brantley knelt down
near Charles’s chest.
Deputy Brantley told Leckie to “get behind” him. Leckie
stood up and backed away. Deputy Brantley told Charles, “You
move and I will tase you. You got me? Got it?” Brantley repeated,
Cir. 2001). The deposition testimony of the eyewitness, and not her pre-dep-
osition affidavit, is controlling.
Other disputes surround the exact details of this tackle. Deputy Thacker was
not asked about the takedown in his deposition, and his affidavit only says:
“[Leckie] and I eventually got [Charles] on the ground . . . .” Charles testified
that he has no memory of how he was brought to the pavement. Leckie’s
version is inconsistent with the eyewitness’s version: “We fell. . . . I mean, we
got tangled up in each other’s feet, I believe, because [Thacker] was trying to
handcuff when [Charles] was flailing around.” Because there is a material dis-
pute of fact, we take the version most favorable to Charles and assume that
Deputy Thacker tackled Charles.
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“Move, and you will get tased. You got it?” Charles replied “yes
sir” four times. Sometime during the melee, Charles was initially
handcuffed. However, because of Charles’s erratic movements
and awkward position on the ground, Charles’s arms were cuffed
in the front of his body.
While Deputies Thacker and Brantley discussed how to
move Charles to reposition the cuffs to the back, Charles attempted
to lift himself up off the pavement. One of the deputies told him:
“Do it. I’m fixin’ to tase you. Do it. Do it. Move again. Move
again and I will tase you.” Charles continued yelling and arguing.
Deputy Brantley told Charles: “We gone [sic] put these cuffs on
the back of you. You move, I will tase you. You got it?”
As Deputies Thacker and Brantley attempted to readjust
Charles, Charles again raised his body off the pavement. Deputy
Brantley told him to get on the ground four times. Charles replied,
“I can’t. I can’t moves [sic] up my leg.” While on the pavement,
the deputies were unsuccessful in gaining control over Charles’s
hands to recuff him, as Charles “had his hands pulled into his body
and would not relax his hands.” After more seconds of Charles’s
screaming and struggling, Brantley said: “I do not want to tase
you.” Charles replied: “I don’t wanna get tased.”
In an attempt to get the handcuffs to the back of Charles,
Deputy Brantley removed the cuffs and began to instruct Charles:
“Put, put your hands up here in the front. Put your hand in the
front or you can des— (inaudible).” At this point Charles raised his
body off the pavement for a third time, first getting onto his knees
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and then pushing up onto his hands and feet. Deputy Brantley
pressed his taser into the right side of Charles’s back, and the taser
audibly engaged. As Charles fell to the ground, the sound of the
taser briefly stopped, resuming shortly after Charles reached the
pavement. Brantley remarked: “I told you I didn’t wanna tase
you.” The taser was deployed for five seconds in the “drive stun”
mode, a less potent application of the taser device that is only in-
tended to stun the target.
On the pavement, Charles continued struggling and yelling.
Brantley told him: “Stop. Do it again. Do it again, I will tase you
again. You got it?” After Deputies Thacker and Brantley both
warned Charles that he would get tased again, the officers managed
to recuff him in the back and move him into Thacker’s patrol car.
In the patrol car, Charles continued shouting and thrashing about,
and he began beating his head against the metal partition in the
patrol car. Sixteen staples were needed to treat Charles’s self-in-
flicted head injuries.
Charles was arrested and charged with felony obstruction
under Georgia law. He was accused of “unlawfully knowingly and
willfully resist[ing] and oppos[ing] Deputy William Thacker, a law
enforcement officer in the lawful discharge of his official duties, by
offering violence to such officer by resisting a lawful arrest, pulling
away, slamming his head against Deputy Thacker’s patrol vehicle,
and screaming at and fighting with said officer . . . .” Charles
pleaded guilty and was sentenced as a first offender.
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II
We review an order granting summary judgment
de novo.
Yarbrough v. Decatur Hous. Auth., 941 F.3d 1022, 1026 (11th Cir.
2019). To obtain summary judgment, the movant must show that
there is no genuine dispute as to any material fact and that the mo-
vant is entitled to judgment as a matter of law. F ED. R. CIV. P. 56(a).
The facts are construed in the light most favorable to the non-mo-
vant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
We will first address the § 1983 claim against the civilian by-
stander, Appellee Ryan Leckie. Next, we will address the deputies’
qualified immunity. Finally, we will consider Charles’s claim
against the Sheriff under the Rehabilitation Act.
III
Charles’s federal claim against Leckie, the bystander, alleges
that Leckie used excessive force against Charles in violation of the
Fourth and Fourteenth Amendments. The Supreme Court has
held that the Fourth Amendment applies only to governmental ac-
tions.
See Burdeau v. McDowell, 256 U.S. 465, 475 (1921). The
Fourteenth Amendment, by its own language, applies solely to
state action.
See U.S. C ONST. amend. XIV, § 1 (“No State shall
. . . .”). These constitutional rights are enforceable in federal court
through § 1983, which creates a private right of action against those
who violate the rights of others while acting “under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia . . . .” 42 U.S.C. § 1983. The
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requirement that the deprivation be made “under color of state
law” means that the deprivation must be made by a state actor.
See
Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982) (“[I]n a
§ 1983 action brought against a state official, the statutory require-
ment of action ‘under color of state law’ and the ‘state action’ re-
quirement of the Fourteenth Amendment are identical.”);
Focus
on the Fam. v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
1276–77 (11th Cir. 2003). The state action requirement is an ele-
ment of a § 1983 claim that the plaintiff must prove in order to pre-
vail.
See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50
(1999).
In order to meet the state action requirement, the conduct
at issue must be “fairly attributable” to the state:
First, the deprivation must be caused by the exercise
of some right or privilege created by the State or by a
rule of conduct imposed by the state or by a person
for whom the State is responsible. . . . Second, the
party charged with the deprivation must be a person
who may fairly be said to be a state actor.
Lugar, 457 U.S. at 937. Supreme Court precedent has solidified
three situations where private entities can be considered state ac-
tors:
(1) the State has coerced or at least significantly en-
couraged the action alleged to violate the Constitu-
tion (“State compulsion test”); (2) the private parties
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performed a public function that was traditionally the
exclusive prerogative of the State (“public function
test”); or (3) the State had so far insinuated itself into
a position of interdependence with the private parties
that it was a joint participant in the enterprise
(“nexus/joint action test”).
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.
2001) (quoting
Nat’l Broad. Co. v. Commc’ns Workers of Am.,
AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988)) (cleaned up);
see
also Lugar, 457 U.S. at 939.
A
We must first address a procedural issue. Leckie did not spe-
cifically raise lack of state action as a defense in either his
pro se
Answer or his counseled Motion for Summary Judgment. The is-
sue was not addressed until the Magistrate Judge raised and ana-
lyzed it in his Report and Recommendation. Charles objected to
the Report and Recommendation, arguing that Leckie had waived
the defense.
We resolved this issue in
Almand v. DeKalb County, 103
F.3d 1510 (11th Cir. 1997). In
Almand, the plaintiff was assaulted
by a police officer while the police officer was not actively engaged
in the performance of his official duties. The plaintiff sued the po-
lice officer under 42 U.S.C. § 1983 and included in her complaint an
allegation that the police officer was acting “under color of state
law.”
Id. at 1513. The answer admitted the facts alleged in that
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paragraph, but the police officer raised the issue at summary judg-
ment. In our words: “[C]onstruing [the officer’s] answer to [the
allegation] as a binding admission of the color-of-state-law element
would violate Fed. R. Civ. P. 8([e])’s mandate to construe all plead-
ings in a way that does ‘substantial justice.’”
Id. at 1514. In allow-
ing the late-raised defense, we noted that the pleadings and sum-
mary judgment motion were sufficient to put the plaintiff on notice
that state action was a contested issue.
Id.
A motion for summary judgment is not a
sui generis method
for preserving a defense. Instead, the motion in
Almand was im-
portant because it gave the plaintiff pre-trial notice of the defense
and an opportunity to respond. Here, Charles received substan-
tially the same notice and opportunity to respond when the Magis-
trate Judge raised the issue in his summary judgment recommen-
dation. Charles had the opportunity to (and did) file objections to
the Report and Recommendation, fully briefing the issue for the
District Judge.
To salvage his claim of waiver, Charles cites
Sinclair Refin-
ing Co. v. Howell, 222 F.2d 637 (5th Cir. 1955).2 Charles then cites
Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020), presumably to
argue that the prior panel decision—
Sinclair—should be binding
over the later panel decision—
Almand. However,
Williams
2 In
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we
adopted all decisions of the former Fifth Circuit handed down before the close
of business on September 30, 1981, as precedent for this court.
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instructs us to make every attempt to reconcile the two decisions
and to apply the reconciled rule. We are compelled to disregard
the later decision only when a synthesis is impossible.
Sinclair was a wrongful death suit. 222 F.2d at 638. Under
Alabama law, the coverage of workers’ compensation laws was an
affirmative defense to an employee’s suit, and a plaintiff in an em-
ployer-employee relationship had to state in his complaint whether
such compensation laws applied. The plaintiff in
Sinclair alleged
that no such coverage existed. The defendant did not expressly
deny this averment in its answer but moved for a directed verdict
at trial, claiming that such coverage did exist.
Id. at 639. The Fifth
Circuit held that the failure to deny the allegation in the answer
was an admission, and the court emphasized that, had the issue
been properly presented, the plaintiff would have been able to con-
duct discovery on the issue. Because the issue was raised at the
directed verdict stage (now called judgment as a matter of law,
see
F ED. R. C IV. P. 50), the plaintiff in
Sinclair lost not only the oppor-
tunity to conduct discovery on the issue, but also the opportunity
to present evidence on the issue in his case-in-chief.
Id. at 640.
With
Sinclair and
Almand, a synthesized rule is fairly
straightforward: A failure to deny is generally an admission, but
the court can refuse to make this interpretation in order to do sub-
stantial justice. The court should look at the prejudice to the plain-
tiff, taking into account the amount of pre-trial notice and the suf-
ficiency of existing discovery for responding to the defense. An af-
firmative defense, such as the defense in
Sinclair, involves by
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nature the introduction of facts beyond those relevant to the ele-
ments of the claim. Thus, prior discovery and notice are less likely
to be sufficient for responding to unexpected affirmative defenses.
This synthesized rule provides an easy resolution to the is-
sue before us. State action is an element of a § 1983 claim, not an
affirmative defense,
see Sullivan, 526 U.S. at 49–50; when Leckie’s
lack of state action was raised by the Magistrate Judge, Charles had
a pre-trial opportunity to respond to the argument; and, lastly,
Charles has not identified any further discovery that would have
been needed to respond to the argument. Thus, all the factors dis-
cussed in
Sinclair and
Almand encourage us to entertain Leckie’s
defense, even at the later stage that it was raised.
Moreover, with the liberal interpretation of waiver stated in
Almand, coupled with our usual rule requiring the liberal interpre-
tation of
pro se pleadings,
see Waldman v. Conway, 871 F.3d 1283,
1289 (11th Cir. 2017), we cannot say that Leckie waived his state
action defense in his Answer. In his
pro se Answer, Leckie said that
he “cannot speak on counts 1-14,” the counts against him. He
stated that, “I feel I am not in any way liable for any of this man[’]s
ALLEGED injuries or issues,” and he maintained that he could not
be sued because he was “a civilian.” Leckie concluded, “I don[’]t
feel I did anything malicious, criminal, or that would merit legal or
financial recourse.” This language, under our rules of liberal con-
struction, sufficiently notified Charles that state action was at issue
in this case and sufficiently preserved Leckie’s defense.
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B
Of the three broad tests for state action, only the
“nexus/joint action test” is adequately argued by Charles.3 Under
the joint action test, the Supreme Court has held that a “willful par-
ticipant in joint activity with the State or its agents” is a state actor.
See United States v. Price, 383 U.S. 787, 794 (1966). At least three
threads of cases have arisen under this doctrine. First, a private
citizen can be held liable when he or she conspires with a state actor
to deprive the plaintiff of his constitutional rights.
See id.;
Adickes
v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). Second, the state can
make an active choice to partner with a private entity in a way that
can impart liability.
See Jackson v. Metro. Edison Co., 419 U.S. 345,
357–58 (1974);
Gilmore v. City of Montgomery, 417 U.S. 556, 574
(1974);
Burton v. Wilmington Parking Auth., 365 U.S. 715, 725
(1961). Last, a private citizen can take up the mantle of sovereignty
through the
ex parte use of civil or criminal processes.
See Lugar,
457 U.S. at 924;
Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir.
1990).
The Supreme Court has cautioned that this analysis will be
heavily fact specific.
See Burton, 365 U.S. at 722 (“Only by sifting
3 Charles additionally argues that the officers “encouraged” Leckie, pointing
to their
deposition testimony expressing appreciation for Leckie stepping in.
Charles does not identify any encouragement that existed at the time of the
incident. Later expressions of appreciation are insufficient to satisfy the state
compulsion test. Thus, only Charles’s joint action argument deserves further
analysis.
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facts and weighing circumstances can the nonobvious involvement
of the State in private conduct be attributed its true significance.”).
Because the joint action test applies to a broad array of factual sce-
narios, some cases nominally interpreting this test have used lan-
guage that is unhelpful in its application to other scenarios. For
example, the Supreme Court has said that private liability will at-
tach where the state “so far insinuated itself into a position of inter-
dependence with the [private entity] that it was a joint participant
in the enterprise.”
Jackson, 419 U.S. at 357–58.
Jackson said that
the state and private entity must form a “symbiotic relationship.”
Id. at 357.
Jackson, however, involved a state’s ongoing relation-
ship with a utility company. It is not clear how Leckie would be-
come part of a “symbiotic relationship” or fall into a “position of
interdependence” with the State of Georgia. This “rule language”
cited by the parties suffers from a lack of context.
The test also suffers from a lack of clarity when it comes to
a conspiracy requirement. The district court cited
Price for the
proposition that a conspiracy is
always needed for private citizen
liability.
Price, however, only says that a conspiracy is sufficient,
not that it is necessary. 383 U.S. at 794. In at least two circuits,
conspiracy has been described as one of many alternatives.
See
Hoai v. Vo, 935 F.2d 308, 313 (D.C. Cir. 1991);
Collins v.
Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). In the Seventh
Circuit, however, private liability is almost impossible without a
conspiracy.
See Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir.
2002) (explaining that private liability is only permissible when
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there is a conspiracy or when private citizens are “deputized” to
help enforce the law). We have admonished a district court for
requiring direct proof of a conspiracy, saying that “nothing more
than an ‘understanding’ and ‘willful participation’ between private
and state defendants is necessary to show the kind of joint action
that will subject private parties to § 1983 liability.”
Bendiburg, 909
F.2d at 469.
This confusion stems from an attempt to apply broad rule
language to disparate factual situations under the joint action test.
The three lines of Supreme Court precedent under this test—con-
spiracy, state-prompted partnership, and individual-prompted use
of state authority—are distinct and require different kinds of proof.
For example, an individual’s
ex parte use of state procedures does
not require a conspiracy with state authorities. Instead, the “un-
derstanding” is proven through the offering of the procedures and
the intentional use of the procedures.
See, e.g.,
id. A state’s ongo-
ing partnership with a private entity is itself proof of an “under-
standing.” Where
Jackson and
Lugar do not reach, however, addi-
tional proof of conspiracy is needed in order to show the requisite
“understanding.”
When a private citizen steps in to render brief,
ad hoc assis-
tance to a police officer,
Jackson and
Lugar are immediately distin-
guishable. The citizen clearly does not make use of state processes
against his personal enemy, and the state is clearly not reaching out
to the citizen to form a partnership. Because no other form of
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citizen-state collaboration applies, the only thread of precedent that
could cover the private citizen’s actions is the conspiracy thread.
We need not determine what the specifics of the conspiracy
must be, because it is clear in this case that there is no evidence of
a conspiracy whatsoever. The communication between Leckie
and Deputy Thacker consisted only of Leckie asking: “Sir, can you
get a cuff on him?” This is not an agreement between the two, and
it is certainly distinguishable from the conspiracies examined by the
Supreme Court in
Price and
Adickes.
The Seventh Circuit reached the same conclusion under
similar facts in
Proffitt v. Ridgeway. In
Proffitt, a police officer ac-
cepted a bystander’s offer to help restrain an arrestee. 279 F.3d at
505. Our sister circuit held that “the rendering of brief, ad hoc as-
sistance” did not transform a bystander into a state actor.
Id. at 508.
We hold that a civilian’s rendering of brief,
ad hoc assistance
to a law enforcement officer is not state action, absent proof of a
conspiracy to violate the constitutional rights of another. Sum-
mary judgment in favor of Leckie was therefore proper.
IV
We turn next to the question of qualified immunity.
Government officials acting in their discretionary duties are
entitled to qualified immunity from individual capacity suits.
Lee
v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002). Qualified im-
munity protects them from suit unless they violate “clearly estab-
lished statutory or constitutional rights of which a reasonable
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person would have known.”
Hope v. Pelzer, 536 U.S. 730, 739
(2002) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“To establish the defense of qualified immunity, the burden
is first on the defendant to establish that the allegedly unconstitu-
tional conduct occurred while he was acting within the scope of his
discretionary authority.”
Harbert Int’l, Inc. v. James, 157 F. 3d
1271, 1281 (11th Cir. 1998). “Once the defendant establishes that
he was acting within his discretionary authority, the burden shifts
to the plaintiff to show that qualified immunity is not appropriate.”
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting
Lee, 284 F.3d at 1194).
Whether governmental officials are entitled to qualified im-
munity at summary judgment entails a two-part inquiry.
Dukes v.
Deaton, 852 F.3d 1035, 1042 (11th Cir. 2017). “[O]fficers are enti-
tled to qualified immunity under § 1983 unless (1) they violated a
federal statutory or constitutional right, and (2) the unlawfulness
of their conduct was ‘clearly established at the time.’”
District
ofColumbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle
v. Howards, 566 U.S. 658, 664 (2012)). “‘Clearly established’ means
that, at the time of the officer’s conduct, the law was ‘sufficiently
clear that every reasonable officer would understand that what he
is doing’ is unlawful.”
Id. (quoting
Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)). “This is not to say that an official action is pro-
tected by qualified immunity unless the very action in question has
previously been held unlawful, . . . but it is to say that in the light
of pre-existing law the unlawfulness must be apparent.”
Hope, 536
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U.S. at 739 (quoting
Anderson v. Creighton, 483 U.S. 635, 640
(1987)). The essential question here is whether the officer had “fair
warning” that his actions were unconstitutional.
See Willingham
v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003).
This analysis is primarily conducted by looking at the bind-
ing case law of the Supreme Court and this circuit.
See generally
al-Kidd, 563 U.S
. at 741;
see also Reichle , 566 U.S. at 664 (“[E]xist-
ing precedent must have placed the statutory or constitutional
question beyond debate.” (quoting
al-Kidd, 563 U.S. at 741));
Ste-
phens v. DeGiovanni, 852 F.3d 1298, 1315–16 (11th Cir. 2017)
(holding that “relevant case law” is the default way to determine
qualified immunity, but qualified immunity can still be defeated
under the “narrow exception” where the actions were obviously
unconstitutional).
It is undisputed that Deputy Thacker and Deputy Brantley
were acting within their discretionary authority. Therefore, the is-
sue turns to whether Charles can carry his burden to establish that
they violated his constitutional rights, and whether, in light of ex-
isting precedent, those violations should have been apparent to
them respectively.
A
As to Deputy Thacker, Charles only argues that Thacker’s
“tackle” was a constitutional violation. Charles argues that this
tackle was excessive force in violation of the Fourth Amendment.
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The Fourth Amendment protects against excessive force in
the arrest context.
See Graham v. Connor, 490 U.S. 386, 396 (1989).
A “reasonableness” standard is used to judge the actions of the of-
ficer: “Not every push or shove, even if it may later seem unnec-
essary in the peace of a judge’s chambers, violates the Fourth
Amendment.”
Id. (citation omitted). “In determining the reason-
ableness of the force applied, we look at the fact pattern from the
perspective of a reasonable officer on the scene with knowledge of
the attendant circumstances and facts, and balance the risk of bod-
ily harm to the suspect against the gravity of the threat the officer
sought to eliminate.”
McCullough v. Antolini, 559 F.3d 1201, 1206
(11th Cir. 2009). The court must look at the “totality of the circum-
stances” in assessing the manner of arrest.
Tennessee v. Garner,
471 U.S. 1, 9 (1985). The Supreme Court has analyzed a non-ex-
haustive list of factors, such as “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or at-
tempting to evade arrest by flight.”
Graham, 490 U.S. at 396. “The
calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situa-
tion.”
Id. at 396–97.
Determining whether an officer’s use of force is unconstitu-
tionally excessive involves two steps. First, we ask whether the
specific kind of force is categorically unconstitutional.
See Hope,
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536 U.S. at 745–46. Second, if the kind of force is not categorically
unconstitutional, we then ask, weighing the
Graham factors,
whether the amount of force was excessive.
We have never held that a tackle is a categorically unconsti-
tutional kind of force.4 And for good reason: It is obvious that a
police office will be authorized to tackle an arrestee under some
circumstances. The only question here is whether, under the cir-
cumstances, Deputy Thacker’s tackle was an excessive use of force.
Assessing the
Graham factors, we cannot say that it was.
Charles cites
Stephens v. DeGiovanni, 852 F.3d 1298 (11th
Cir. 2017), as an example where an officer who threw an individual
to the ground was not entitled to qualified immunity. The facts of
Stephens, however, are not comparable to the facts here. We
noted in
Stephens that the arrestee was compliant, had committed
no crime, had not made any threatening or erratic actions, and did
not attempt to flee from the scene. None of the
Graham factors
supported any use of force. We therefore concluded that “[q]uali-
fied immunity is not appropriate when the
Graham analysis yields
an answer that is clear beyond all doubt.”
Id. at 1324 (quoting
Lee,
284 F.3d at 1200). The facts of this case are diametrically opposed
to such a clear answer.
4
Cf. Durruthy v. Pastor, 351 F.3d 1080, 1085 (11th Cir. 2003) (Two officers
who “pulled [the arrestee] onto the ground, while struggling to pin his arms
behind him and handcuff him,” were entitled to qualified immunity.)
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To be sure, the
Graham factors do not point unwaveringly
in Deputy Thacker’s favor. Charles’s pre-tackle behavior consti-
tuted active resistance and a sure attempt to resist arrest, but he
never made a clear move to flee the scene. Charles, in twisting his
arms away from Deputy Thacker’s reach, knocked Thacker’s sun-
glasses from his forehead, but he did not otherwise direct any vio-
lent behavior toward Deputy Thacker before the tackle. Neverthe-
less, at the time of the tackle, Charles did have an outstanding war-
rant for his arrest. Regardless of the seriousness of the underlying
offense, an officer on duty may use reasonable force to effectuate a
lawful arrest.
The situation certainly entailed a risk of danger to Deputy
Thacker and to Charles. Even when taking the evidence in the
light most favorable to Charles, the situation that night was tense.
It was after midnight, Deputy Thacker had no backup on the scene,
and he had detained a car full of young people, presumably friends
of Charles, at a fairly busy gas station. Charles was loudly yelling
and acting erratically, and the occupants of the vehicle were getting
agitated, leaning out of and eventually leaving the vehicle. By the
time Deputy Thacker tackled Charles, Charles had ignored at least
thirteen commands from Thacker and had gone nearly a minute
without complying. Thacker tried multiple times to pull Charles’s
hands behind his back, but Charles maneuvered his body and arms
away from Thacker in order to prevent handcuffing. Deputy
Thacker had so far acted reasonably, but continuing the arrest in
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this fashion was not an option, thanks to Charles’s unabated re-
sistance.
In order for Deputy Thacker to stabilize the situation, he had
to immobilize and handcuff Charles by using an increased level of
force. But instead of using a weapon, such as a taser, to achieve
these ends, and instead of striking Charles with, say, his flashlight
or fist, Thacker chose in the heat of the moment to tackle Charles.
Considering all the circumstances of the situation with which
Thacker was faced, a tackle was among the least forceful ways to
advance the arrest and gain control of the situation.
The evidence of injury confirms that Deputy Thacker did
not use excessive force. A plaintiff who suffers only
de minimis
injury does not necessarily lack a claim for excessive force under
§ 1983.
Stephens, 852 F.3d at 1328 n.33;
Saunders v. Duke, 766 F.3d
1262, 1270 (11th Cir. 2014). However, the resulting injuries can be
evidence of the kind or degree of force that was used by the officer.
See Crocker v. Beatty, 995 F.3d 1232, 1251 (11th Cir. 2021). The
injuries attributable to Deputy Thacker’s tackle were minor. The
small scrapes, bumps, and bruises suffered from the tackle are en-
tirely consistent with a routine takedown. When Charles is picked
up off the pavement and placed into Deputy Thacker’s patrol car,
no blood can be seen on the pavement, nor is there evidence in the
record that any eyewitness saw blood on the scene before Charles
was placed in the patrol car. The evidence all tends to show that
there was no especially violent character to Thacker’s tackle.
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Weighing the factors identified in
Graham and reflecting on
the totality of the circumstances, we cannot say that the tackle was
unreasonable. Nor did the law of this circuit clearly establish the
unreasonableness of the Deputy Thacker’s actions at the time of
Charles’s arrest. Thus, Deputy Thacker is entitled to qualified im-
munity.
B
As to Deputy Brantley, Charles only identifies Brantley’s use
of a taser as a potential constitutional violation. Like the tackle,
Charles argues that this taser use was excessive force in violation
of the Fourth Amendment.
The use of a taser is not categorically unconstitutional. We
have found that the use of a taser can be appropriate in a wide array
of situations.
See Hoyt v. Cooks, 672 F.3d 972, 980 (11th Cir. 2012);
Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008);
Draper
v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). The only ques-
tion is whether Deputy Brantley’s use of a taser constituted exces-
sive force under the totality of the circumstances. To lose qualified
immunity, the circumstances must show that the force was clearly
excessive.
See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559
(11th Cir. 1993) (“Because [the Fourth Amendment’s use-of-force]
standard establishes no bright line, qualified immunity applies un-
less application of the standard would inevitably lead every reason-
able officer in [the same] position to conclude the force was unlaw-
ful.”),
modified on other grounds, 14 F.3d 583 (11th Cir. 1994).
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Applying the
Graham factors to the evidence in the light
most favorable to Charles, we find that Deputy Brantley’s use of
the taser was not clearly excessive under the circumstances. Two
crimes were at issue by the time the taser was deployed: Charles
had an outstanding warrant for his arrest, and he had already begun
his active and loud obstruction of the arrest. As established by his
obstruction conviction, Charles was “offering or doing violence” to
one of the officers. Further, Charles was actively resisting when
Brantley arrived on the scene. Charles was not tased until five
minutes and six seconds after he had first been given an order by
Deputy Thacker. In those five minutes, Charles ignored twenty-
one commands from the officers and was warned nine times that a
taser would be used. His resistance was active resistance because
he actively navigated his arms and body away from Deputy
Thacker in order to avoid being properly handcuffed. By pulling
his arms and body away from the grasp of Deputy Thacker, Charles
led the pair from one side of the patrol car to the other and actively
evaded being handcuffed in the back until Deputy Brantley arrived
and tased him. Charles actively resisted by screaming at Thacker
and by pushing his body off the pavement three times after he was
ordered to stay down. The undisputed video evidence clearly
shows this resistance.
The
Graham factors therefore authorize use of force. Under
the totality of the circumstances, we cannot say that Deputy Brant-
ley’s use of a taser only once, for not more than five seconds, in
“stun” mode, was excessive. Because this instance of taser use
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cannot be described as excessive, it logically could not have been
“clearly established” or “apparent” to Deputy Brantley that use of
the taser was excessive. Deputy Brantley is therefore entitled to
qualified immunity.
Charles argues that a non-
Graham factor should be injected
into our qualified immunity analysis. Specifically, Charles cites
Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005), for the
proposition that a violation of department policy can defeat quali-
fied immunity. Department policy in this case directs that a taser
“should not be used against persons displaying passive resistance,”
and Charles argues that Deputy Brantley violated this policy.
In
Mercado, the officers responded to a report of attempted
suicide. They found Mercado with a knife in his hand and a cord
wrapped around his neck. The officers ordered Mercado to drop
the knife but failed to warn him that force would be used if he did
not comply.
Id. at 1154. Fifteen to thirty seconds later, the officers
shot Mercado with a Sage Launcher, a plastic munition designed to
bruise the target. The officers fired the Sage Launcher twice, with
one of the two shots hitting Mercado in the head, causing a skull
fracture and brain injuries.
Id. at 1154–55. We held that the officers
had violated clearly established law.
In
Mercado, we noted that police department policy
restricted use of a Sage Launcher such that a shot to the head
should only be taken in deadly force situations.
Id. at 1155. Charles
argues that this violation of department policy is comparable to
Deputy Brantley’s violation of department policy regarding taser
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use, and therefore Deputy Brantley’s actions also violate clearly
established law.
We need not determine whether Deputy Brantley in fact vi-
olated the policy at issue in this case, though it is plain that Charles
was actively resisting for more than five minutes. In
Mercado, the
violation of department policy did not govern our
Graham analy-
sis. After all, the ultimate question was whether the officers vio-
lated the Fourth Amendment to the United States Constitution,
not whether they violated a department policy. In
Mercado, none
of the
Graham factors weighed in favor of the use of force. At-
tempted suicide was not a crime under Florida law, Mercado had
not demonstrated a flight risk and did not pose a danger to the of-
ficers, and he had failed to comply for only a few seconds. On those
facts, we were compelled to conclude that the use of force was un-
reasonable.
We found the department policy useful in
Mercado for a dif-
ferent reason. Once we determined that the use of force was ex-
cessive, the next question in the qualified immunity analysis asks
whether the officer violated clearly established law. We had to de-
termine whether the officers had “fair warning” that their actions
were unconstitutional.
See Willingham, 321 F.3d at 1301. A police
handbook that directs an officer to avoid a particular unconstitu-
tional activity can be evidence that the officer was so warned. In
Mercado, for example, the restriction against firing a Sage
Launcher at the head of a non-threatening suspect was tantamount
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to a codification of the general constitutional principle that deadly
force cannot be used in non-deadly-force situations.
Because we find that Deputy Brantley did not engage in un-
constitutional excessive force, we need not consider the depart-
ment policy.
V
Finally, we turn to Charles’s claim against Sheriff Jeff John-
son under the Rehabilitation Act.
The Rehabilitation Act says that no disabled person “shall,
solely by reason of her or his disability, be excluded from the par-
ticipation in, be denied the benefits of, or be subjected to discrimi-
nation under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C. § 794.5 In order to recover under the
Rehabilitation Act, a plaintiff must establish: “(1) that he is a quali-
fied individual with a disability, (2) that he was excluded from par-
ticipation in or denied the benefits of the services, programs, or ac-
tivities of a public entity or otherwise discriminated against by such
entity, (3) by reason of such disability.”
Shotz v. Cates, 256 F.3d
1077, 1079 (11th Cir. 2001) (alterations adopted) (quotation marks
omitted) (quoting 42 U.S.C. § 12132). Of course, “the duty to
5 Claims under the Rehabilitation Act are generally governed by the same
standards used in Americans with Disabilities Act cases.
See 42 U.S.C. § 12101
et seq.;
Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). Thus, cases de-
cided under one are precedent under the other.
See Cash, 231 F.3d at 1305
n.2.
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provide a reasonable accommodation is not triggered unless a spe-
cific demand for an accommodation has been made.”
Gaston v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999). Additionally, a plaintiff seeking compensatory damages
must show that the lack of accommodation was due to “intentional
discrimination or bad faith,”
Wood v. President of Spring Hill Coll.,
978 F.2d 1214, 1219 (11th Cir. 1992), and must show that injury re-
sulted from the lack of accommodation,
see Bircoll v. Miami-Dade
Cnty., 480 F.3d 1072, 1088 (11th Cir. 2007).
Charles’s claim fails at the first element. He does not
demonstrate that he was disabled within the meaning of the Reha-
bilitation Act.
For Rehabilitation Act purposes, a “disability” is “a physical
or mental impairment that substantially limits one or more major
life activities.”
See 29 U.S.C. § 705(9)(B) (cross-referencing 42
U.S.C. § 12102). “[M]ajor life activities include, but are not limited
to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communi-
cating, and working.” 42 U.S.C. § 12102(2)(A).
Charles does not identify the major life activity that his im-
pairments interfere with. He does not explain how his bipolar dis-
order or panic attacks would substantially limit such a life activity.
The identification of a major life activity is a necessary step in prov-
ing a disability.
See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
Instead of providing any explanation or citation to the record,
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Charles simply cites three cases to support bipolar disorder as a dis-
ability and two to support panic attacks as a disability.
To support bipolar disorder as a disability, Charles cites
Kassa v. Synovus Fin. Corp., 800 F. App’x 804 (11th Cir. 2020),
To-
bin v. Liberty Mut. Ins. Co., 433 F.3d 100 (1st Cir. 2005), and
Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999). Neither
Kassa nor
Tobin held that bipolar disorder is a qualifying disability
because neither decided the issue at all.
See Kassa, 800 F. App’x at
807 (“For purposes of summary judgment, the district court as-
sumed that Plaintiff was both disabled and was a qualified individ-
ual. Thus, only the third factor is at issue in this appeal.”);
Tobin,
433 F.3d at 105 (“[I]t is undisputed that Tobin has established a
prima facie case . . . .”). As for
Taylor, the case does say that bipolar
disorder
could be a qualifying disability. However,
Taylor instructs
that this is a fact-specific inquiry, and that bipolar disorder is not
automatically qualifying. 184 F.3d at 302. All three cases are, of
course, distinguishable simply because the plaintiffs in those cases
identified a major life activity that was impaired. Charles does not.
To support panic attacks as a disability, Charles cites
Reeves
v. Johnson Controls World Servs., Inc., 140 F.3d 144 (2d Cir. 1998),
and
Zirpel v. Toshiba Am. Info. Sys., Inc., 111 F.3d 80 (8th Cir.
1997). Instead of holding that panic attacks are a qualifying disabil-
ity,
Reeves held that the plaintiff had
failed to demonstrate a disa-
bility: “We hold that the activity described by plaintiff . . . does not
constitute a major life activity within the meaning of the ADA, and
that plaintiff therefore has not demonstrated that he is disabled for
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purposes of that statute.” 140 F.3d at 147;
see also id. at 151.
Reeves reiterates that the identification of a major life activity is a
critical step in making out a Rehabilitation Act case.
Charles’s second case,
Zirpel, is unhelpful for the same
reason. In
Zirpel, the plaintiff also failed to prove a limitation on
her major life activities.
See 111 F.3d at 81 (“Obviously, Toshiba
cannot have violated Zirpel’s rights under the ADA unless Zirpel is
disabled. Zirpel suffers from a mental impairment, panic disorder,
but Zirpel failed to create a triable dispute about whether her
disorder substantially limits any of her major life activities.
Although Zirpel’s ability to breathe and speak is hampered during
an actual panic attack, Zirpel admits her panic disorder does not
usually limit her activities.” (citations omitted)).
Charles omits this critical step. His Rehabilitation Act claim
therefore fails, and summary judgment for the Sheriff was appro-
priate. We have no occasion to consider the other elements of a
Rehabilitation Act claim.
VI
We AFFIRM the summary judgment in favor of Appellees.
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