Tews v. Terrell

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CAROLYN LUKE TEWS,

Plaintiff,

v. Case No. 3:20-cv-810-MMH-JBT

T. L. TERRELL, individually,

Defendant.

ORDER

THIS CAUSE is before the Court on Defendant T. L. Terrell’s Motion for

Summary Judgment and Accompanying Memorandum of Law (Doc. 26; Motion)

filed on May 6, 2022. In support of the Motion, Terrell submitted a number of

items. See Defendant’s Notice of Filing Documents in Support of Motion for

Summary Judgment (Doc. 27; Defendant’s Notice of Filing). First, he filed his

own Declaration. Declaration of T. L. Terrell (Doc. 27-1; Terrell Declaration).

Terrell also submitted a video of Plaintiff Tews’ arrest (Doc. 27-2; Arrest Video),

and the Field Sobriety Report from the arrest (Doc. 27-3) as well as the Sheriff’s

Handcuff Transport (Doc. 27-4) and Response to Resistance Policies for 2016

(Doc. 27-5). See id. Additionally, Terrell filed the Declaration of David A.

Klinger, Ph.D. (Doc. 27-6), including Dr. Klinger’s Curriculum Vitae (Doc. 27-7)

and Expert Report (Doc. 27-8), and the Deposition Transcript of Carolyn Luke

Tews with Exhibits (Doc. 27-9) with the corresponding deposition video (Doc.

27-10; Depo. Video). Plaintiff Carolyn Luke Tews filed her corrected Response

in Opposition (Doc. 35; Response) to the Motion on June 10, 2022. In support,

Tews submitted her Deposition Transcript (Doc. 36-1; Depo. Transcript),1 along

with her Arrest Report and her Response to Defendant’s First Set of

Interrogatories (Interrogatory Answers). See Notice of Filing Deposition

Transcript in Response to Motion for Summary Judgment (Doc. 36; Plaintiff’s

Notice of Filing). Accordingly, Terrell’s Motion is ripe for the Court’s

consideration.

I. Procedural History

On February 7, 2020, Tews initiated this lawsuit by filing a complaint

against Terrell in the Fourth Judicial Circuit Court in and for Duval County,

Florida. See Complaint and Demand for Jury Trial at 1 (Doc. 2; Complaint).

Terrell removed the action to this Court based on federal question jurisdiction.

See Notice of Removal at 1–2 (Doc. 1). In her Complaint, Tews asserts a claim

of excessive force in violation of her Fourth and Fourteenth Amendment rights

(Count I) along with a state-law battery claim (Count II). See Complaint at 4–

5. Terrell filed a Motion to Dismiss Plaintiff’s Complaint (Doc. 3; Motion to

1 Both Plaintiff and Defendant have attached versions of the same transcript, but with

different pagination. Compare Deposition Transcript of Carolyn Luke Tews with Exhibits,

with Depo. Transcript. For ease of reference, the Court will refer to the page numbers in the

transcript filed at docket number 36-1 in resolving the instant Motion.

Dismiss) on July 22, 2020. On September 30, 2020, the Court granted the

Motion to Dismiss in part and denied it in part. See Order (Doc. 22; Order on

Motion to Dismiss). Specifically, the Court dismissed the state-law battery

claim, but found that Tews plausibly alleged a claim for excessive force. Id. at

15. Accordingly, Count I is the only claim remaining for consideration by the

Court. Terrell now seeks the entry of judgment as a matter of law on this

remaining claim, and Tews has responded in opposition.

II. Background Facts2

On February 8, 2016, Tews visited a pool hall from approximately 7:00

P.M. to midnight. Depo. Transcript at 31. While playing pool, she drank

about two pints of beer. Id. at 62. After finishing her pool match, Tews left

the pool hall and began to drive home. Id. at 29. During the drive, Tews’

phone fell off her seat. Id. She swerved while trying to retrieve it, attracting

Officer Terrell’s attention. Id. at 29–30. Concerned that Tews might be

impaired or suffering from a medical emergency, Terrell pulled her over shortly

after midnight on the morning of February 9. Terrell Declaration at 3; Arrest

Report at 1. After pulling over, Tews explained to Terrell that she swerved

while retrieving her phone. Depo. Transcript at 33. She admitted to drinking

2 Unless otherwise noted, the facts recited herein are undisputed. For the purpose of

summary judgment, the Court views all disputed facts and reasonable inferences in the light

most favorable to Tews. See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(describing the summary judgment standard).

two pints of beer while playing pool, but told Terrell that she felt fine. Id. at

29. Terrell asked if Tews would ride with him to a nearby shopping center and

take a sobriety test. Id. at 30. Tews agreed. Id.

Though she found the cold weather challenging, Tews followed Terrell’s

instructions and completed the Field Sobriety Exercises (FSEs). Id. at 37–38;

Terrell Declaration at 4. In evaluating her performance, Terrell concluded

that Tews was impaired. Id. at 4–5. He placed her under arrest, handcuffed

her arms behind her back, and secured her in the back seat of his patrol car.

Id.; Depo. Transcript at 39. Suffering from an old shoulder injury, Tews

struggled to find a comfortable position for her left arm. Depo. Transcript at

39–40. In the process, Tews, who was 5’1” and weighed approximately one

hundred pounds, slipped her left hand out of the handcuffs. Id.; Terrell

Declaration at 5; see also Response at 3 (describing Tews’ height and weight).

Noticing that Tews’ left hand was free, Terrell told her that she had to

keep the handcuffs on. Depo. Transcript at 41; Arrest Video at 00:59:51.3

Worried about her shoulder, Depo. Transcript at 47, Tews responded “no,” and

“this is ridiculous, I’m 60.” Arrest Video at 00:59:48. Terrell exited the car,

opened the rear passenger-side door,4 and repeated that Tews had to keep the

3 The video is overlayed with an internal time stamp. For ease of reference, the Court

will use this time stamp to reference specific points in the video.

4 The rear-facing camera in the patrol car captures a reversed image. Terrell

Declaration at 2. While Tews appears to be sitting behind the driver’s seat with a handcuff

dangling from her left wrist, this is a mirror image of the actual events.

handcuffs on. Id. at 00:59:55. Terrell asked Tews to step out of the vehicle,

adding that it was the Sheriff’s Office policy for everybody in the back seat to

be handcuffed. Id. at 1:00:06. After some hesitation, Tews complied. Id. at

01:00:10; Terrell Declaration at 5. As she was exiting the car, Tews remarked,

“this is the determining factor of the rest of my life, what you’re doing now.”

Arrest Video at 01:00:12.

Tews has trouble remembering exactly what happened next. See Depo.

Transcript at 47, 51. The Arrest Video does not show a clear view of anything

outside the back seat. See Order on Motion to Dismiss at 4 (Doc. 22).

However, Tews can be heard responding to Terrell’s commands by saying “no,

no, no,” followed by “I’m going to force you to kill me right now.” Arrest Video

01:00:26. Terrell then ordered Tews to put her hands behind her back, to

which Tews responded, “no.” Id. at 01:00:34. Terrell then said, “Ms. Carolyn,

do not do this.” Id. at 01:00:37. Tews asked Terrell to repeat his name, and

then stated, “I want you to go ahead and kill me. I want you to go ahead and

kill me right now, Terrell.” Id. at 01:00:42. The video then shows Tews sitting

back down inside the police cruiser before being pulled back out by Terrell. Id.

at 01:00:48; Terrell Declaration at 6 (“After a few seconds, Tews tries to get in

the backseat . . . and I pull her out again.”); Depo. Transcript at 47 (“And then

he pulled and pulled to the point where he got me out and that’s when I don’t

remember anything else.”). As Terrell pulled her, Tews said, “go ahead and

dislocate my shoulder.” Arrest Video at 01:00:50. Outside the car, Terrell

again commanded Tews to put her hands behind her back. Id. at 01:00:51.

Terrell can then be heard saying “stop resisting,” to which Tews responded, “I’m

not resisting.” Id. at 01:00:56.

It is undisputed that Tews was trying to pull her arm away from Terrell

throughout this exchange. See Terrell Declaration at 6; Depo. Transcript at

68. Terrell repeated “stop resisting” four more times, each followed by Tews’

denial that she was resisting. Arrest Video at 01:00:58; Terrell Declaration at

6. Terrell again commanded Tews to put her hands behind her back. Arrest

Video at 01:01:08. Tews responded, “I’m not resisting. I don’t have any

weapons. I don’t have anything.” Id. at 01:01:10.

Throughout this process, Terrell was increasingly concerned by Tews’

“escalating combativeness and agitation,” and feared that the dangling

handcuff could be used as a weapon. Terrell Declaration at 6–7. Terrell was

also alarmed by Tews’ seemingly suicidal statements along with the change in

her demeanor “from compliant to combative.” Id. at 6. Because Terrell could

not use his taser without releasing Tews, he decided to use “the straight-arm

bar take-down technique to overcome Tews’ resistance.” Id. at 7. This

technique involves grabbing the subject’s wrist and bicep, and rotating to the

side while pulling backwards to force the subject into a prone position. Id. at

8. The arm-bar takedown is not visible in the video, but Terrell can be heard

giving a final command for Tews to put her hands behind her back. Arrest Video

at 01:01:13. Tews begins to respond, but is cut short by the sound of a struggle,

followed by the sound of handcuffs being applied. Id.; see also Terrell

Declaration at 7 (“While on the ground, I was then able to grab both of her hands

and handcuff them.”).

Tews was thrown to the "hard asphalt” during the struggle, where she

landed on her face and was knocked unconscious. See Terrell Declaration 7

(describing the “hard asphalt” and Terrell’s use of “the straight-arm bar take-

down technique”); Depo. Transcript at 47, 52. One of Tews’ teeth was knocked

out on the pavement, and two others were fractured. See Depo. Transcript at

53; Terrell Declaration at 7. Tews also suffered contusions, lacerations, nerve

damage, and a concussion. Depo. Transcript at 54–58. Paramedics took Tews

to the hospital, and she was taken to jail upon her release the following day.

Id. at 71. Her shoulder pain became more extreme, limiting her ability to work

as a massage therapist and causing her to lose clients. Id. at 92–94.

Tews was charged with DUI and resisting an officer without violence, but

the DUI charge was eventually reduced to reckless driving. See id. at 73;

Terrell Declaration at 9. Tews does not dispute that Terrell had probable

cause for the traffic stop. See Depo. Transcript at 74. The parties also agree

that Terrell used no other force after taking Tews to the ground and applying

the handcuffs. See Depo. Transcript at 70; Terrell Declaration at 7.

III. Legal Standard

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court

shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Rule 56(a). The record to be considered on a motion for

summary judgment may include “depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials.” Rule 56(c)(1)(A).5 An issue is genuine when the evidence is such

that a reasonable jury could return a verdict in favor of the nonmovant. See

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting

Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]

5 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The

language of subdivision (a) continues to require that there be no genuine dispute

as to any material fact and that the movant be entitled to judgment as a matter

of law. The amendments will not affect continuing development of the decisional

law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable and applies

here.

In citing to Campbell, the Court notes that “[a]lthough an unpublished opinion is not

binding . . . , it is persuasive authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th

Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished

opinions are not considered binding precedent, but they may be cited as persuasive

authority.”).

mere scintilla of evidence in support of the non-moving party’s position is

insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate

of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged

its burden, the non-moving party must then go beyond the pleadings, and by its

own affidavits, or by depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)

(citations and quotation marks omitted). Substantive law determines the

materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City

of Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of

some factual dispute will not defeat summary judgment unless the factual

dispute is material to an issue affecting the outcome of the case.”). In

determining whether summary judgment is appropriate, a court “must view all

evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)).

IV. Discussion

In Count I, Tews asserts that Terrell used unconstitutionally excessive

force when he threw her to the ground in the early morning hours of February

9, 2016. Complaint at 4. Terrell seeks summary judgment, asserting both

that the force was constitutional as a matter of law, and that he is entitled to

qualified immunity. Motion at 2.

The doctrine of “[q]ualified immunity protects from civil liability

government officials who perform discretionary functions if the conduct of the

officials does not violate ‘clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Nolin v. Isbell, 207 F.3d 1253,

1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

As a result, this defense protects from suit “‘all but the plainly incompetent or

those who knowingly violate the law.’”6 Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); Carr v. Tatangelo, 338 F.3d

1259, 1266 (11th Cir. 2003). Indeed, as “‘government officials are not required

6 In determining whether a defendant is entitled to qualified immunity, courts view the

facts and all reasonable inferences in the light most favorable to the plaintiff to the extent

supported by the record, and then consider “the legal issue of whether the plaintiff’s ‘facts,’ if

proven, show that the defendant violated clearly established law.” Priester v. City of Riviera

Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000); Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).

to err on the side of caution,’ qualified immunity is appropriate in close cases

where a reasonable officer could have believed that his actions were lawful.”

Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (quoting Marsh v. Butler

Cnty., 268 F.3d 1014, 1031 n.8 (11th Cir. 2001)).

To be entitled to qualified immunity, a defendant bears the initial burden

of showing that his conduct was within the scope of his discretionary authority.

See Webster v. Beary, 228 F. App’x 844, 848 (11th Cir. 2007); Lee, 284 F.3d at

1194. Here, it is undisputed that, at all times material to this case, Officer

Terrell was acting in his official capacity and within the scope of his

discretionary authority. 7 Accordingly, the burden shifts to Tews to

demonstrate that qualified immunity is not appropriate using the test

established by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201 (2001).

In accordance with Saucier, the Court must ask whether the facts viewed

in the light most favorable to the plaintiff “show the officer’s conduct violated a

constitutional right.” Id.; see also Hope v. Pelzer, 536 U.S. 730, 736 (2002);

Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting Scott v.

7 “‘A government official acts within [his] discretionary authority if the actions were (1)

undertaken pursuant to the performance of [his] duties and (2) within the scope of [his]

authority.’” Jones v. City of Atlanta, 192 F. App’x 894, 897 (11th Cir. 2006) (per curiam)

(quoting Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995)). Making an arrest is thus a

discretionary function for a police officer. See Crosby v. Monroe Cnty., 394 F.3d 1328, 1332

(11th Cir. 2004); see also Lee, 284 F.3d at 1194 (finding that “there can be no doubt that [the

officer] was acting in [her] discretionary capacity when [s]he arrested [the plaintiff],” even

though the plaintiff asserted that the officer used excessive force in the manner in which she

was arrested).

Harris, 550 U.S. 372, 377 (2007)). The court must also ask whether the right

allegedly violated was clearly established at the time of the violation. Hope,

536 U.S. at 739; Saucier, 533 U.S. at 201; Scott, 550 U.S. at 377; Underwood v.

City of Bessemer, 11 F.4th 1317, 1328 (11th Cir. 2021) (“we ask two questions:

(1) whether the facts that a plaintiff has alleged or shown make out a violation

of a constitutional right, and (2) if so, whether the right at issue was clearly

established at the time of the defendant’s alleged misconduct”) (internal

quotations omitted). The Court may consider these questions in whichever

order it chooses, and qualified immunity will protect the defendant if the

answer to either question is “no.” Pearson v. Callahan, 555 U.S. 223, 232, 236

(2009)8; Underwood, 11 F.4th at 1328.

A. Excessive Force

Addressing the first question, the Court must determine whether Terrell

subjected Tews to an unlawful use of force during the arrest. Specifically, the

Court must evaluate whether Terrell applied excessive force when he used the

arm-bar takedown. In conducting this analysis, the Court heeds the Supreme

Court’s cautions that:

[d]etermining whether the force used to effect a

particular seizure is “reasonable” under the Fourth

Amendment requires a careful balancing of the nature

8 In Pearson, the Supreme Court modified the procedure mandated in Saucier,

permitting courts the discretion to determine which prong of the qualified immunity analysis

should be resolved first. See Pearson, 555 U.S. at 236.

and quality of the intrusion on the individual's Fourth

Amendment interests against the countervailing

governmental interests at stake. Our Fourth

Amendment jurisprudence has long recognized that the

right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.

Because the test of reasonableness under the Fourth

Amendment is not capable of precise definition or

mechanical application, however, its proper application

requires careful attention to the facts and

circumstances of each particular case, including the

severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers

or others, and whether [she] is actively resisting arrest

or attempting to evade arrest by flight.

The “reasonableness” of a particular use of force must

be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of

hindsight . . . . With respect to a claim of excessive force,

the same standard of reasonableness at the moment

applies: Not every push or shove, even if it may later

seem unnecessary in the peace of a judge's chambers,

violates the Fourth Amendment. 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 situation.

Graham v. Connor, 490 U.S. 386, 396–97 (1989) (internal citations and

quotations omitted). See also Croom v. Balkwill, 645 F.3d 1240, 1251–52 (11th

Cir. 2011); Draper v. Reynolds, 369 F.3d 1270, 1277–78 (11th Cir. 2004);

Durruthy v. Pastor, 351 F.3d 1080, 1093–94 (11th Cir. 2003). Consistent with

this authority, a court uses the (1) severity of the crime, (2) danger to officer

safety, and (3) risk of flight, referred to as the Graham factors, to analyze the

reasonableness of an officer’s use of force. See Lee, 284 F.3d at 1198. Indeed,

“Graham dictates unambiguously that the force used by a police officer in

carrying out an arrest must be reasonably proportionate to the need for that

force, which is measured by the severity of the crime, the danger to the officer,

and the risk of flight.” Id.; see also Taylor v. Taylor, 649 F. App’x 737, 746

(11th Cir. 2016). In addition to the Graham factors, the Eleventh Circuit has

also set forth the following considerations for determining if force was

reasonable: “(1) the need for the application of force, (2) the relationship

between the need and amount of force used, and (3) the extent of the injury

inflicted.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (citing Lee,

284 F.3d at 1197-98). Significantly, "an officer will be entitled to qualified

immunity . . . if an objectively reasonable officer in the same situation could

have believed that the force used was not excessive.” Vinyard, 311 F.3d at

1346.

The Court first notes that Terrell was justified in using some amount of

force in reapplying the handcuff to effectuate Tews’ arrest. See Brown v. City

of Huntsville, 608 F.3d 738, 739–40 (11th Cir. 2010) (“[T]he law permits some

use of force in any arrest.”). Indeed, a “law enforcement officer’s right to arrest

necessarily carries with it the ability to use some force in making the arrest.”

Id. at 740. Even when a suspect is not actively resisting arrest or attempting

to flee, the police may use a “reasonable amount of force to subdue and secure”

the suspect.” Lee, 284 F.3d at 1198. Moreover, even for “minor offenses,

permissible force includes physical restraint, use of handcuffs, and pushing into

walls.” Brown, 608 F.3d at 740.

Here, the first Graham factor—the severity of the crime at issue—

supports Terrell’s use of force to effectuate Tews’ arrest. See Cooper v. Brown,

844 F.3d 517, 522 (5th Cir. 2016) (noting that this factor favored an officer

during a DUI arrest, even where other factors did not, because “DUI is a serious

offense”). The second Graham factor—the danger to officers or others—also

supports Terrell’s use of force. 490 U.S. at 396. Tews argues that she “did not

pose any threat” because she had been searched and was in the back of Terrell’s

patrol car. Response 3–4. But when Terrell used the arm-bar takedown,

Tews was no longer inside the car and had removed one arm from the handcuffs

applied by Terrell. See Terrell Declaration at 6 (describing how, prior to the

arm-bar takedown, he “placed [Tews] at the rear passenger quarter-panel of my

patrol car”). And while Tews was smaller than Terrell, and was not armed or

committing a violent crime, see Response at 3, she does not dispute Terrell’s

statement that he feared that the unsecured handcuff could be used as a

weapon. Id. at 7. Nor does she dispute Terrell’s belief that Tews was

intoxicated, his observation of the change in Tews’ mood, his assessment of her

escalating statements of doom, and her refusal to comply with his instructions.

Certainly these facts could cause a reasonable officer to be concerned that

leaving Tews with the unsecured handcuff presented a danger. Even setting

aside the risk to Terrell, Tews’ suicidal statements9 could reasonably have

indicated that she was a risk to herself. Coupled with Tews’ repeated attempts

to “pull away her free arm,” Terrell Declaration at 6, Terrell could reasonably

fear that Tews posed a risk to both of them.

The third Graham factor, “whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight,” 490 U.S. at 396, also weighs in

favor of Terrell’s use of force. See Draper, 369 F.3d at 1278 (officer’s use of

taser against plaintiff was reasonable where plaintiff was “hostile, belligerent,

and uncooperative” with officer in the course of the arrest); Hines v. Jefferson,

338 F. Supp. 3d 1288, 1298 (N.D. Ga. 2018) (officer’s use of chokehold was

reasonable where plaintiff admitted to resisting and struggling against officer);

Crutcher v. Athens Police Dep’t, NO. CV-10-S-1176-NE, 2014 WL 5521944, at

*6 (N.D. Ala. Oct. 31, 2014) (officer’s use of chokehold that resulted in plaintiff

losing consciousness was reasonable where plaintiff actively resisted arrest).10

9 In her Deposition, Tews explained that she felt “doomed” and “desperate,” but not

suicidal, when making the statements. Depo. Transcript 46. But her intended meaning

does not change the result. While the Court must view all facts in the light most favorable

to Tews, see Priester, 208 F.3d at 925 n.3, qualified immunity hinges on how those facts could

be perceived by “a reasonable officer on the scene.” Graham, 490 U.S. at 396. And a

reasonable officer could, as Terrell did, interpret her statement as suicidal.

10 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

While Tews expresses her view that she was not resisting, Depo. Transcript at

42, she admits that she does not remember anything after she was pulled from

the car. See Depo. Transcript at 47. Moreover, she does not dispute that she

was refusing to allow Terrell to re-apply the handcuff. Accordingly, Tews

provides no evidence to dispute Terrell’s assertion that Tews “continued to pull

away her free arm” and “refused” to place her hands behind her back. Terrell

Declaration at 6. And while Tews can be heard saying “I’m not resisting” on

the video, Arrest Video at 01:00:56, this is consistent with Terrell’s account, in

which he stated, “Tews kept saying she was not resisting while her actions of

pulling away and not allowing me to cuff her clearly demonstrated that she was

not complying with my commands.” See Terrell Declaration at 6–7.

Notwithstanding Tews’ comments about her memory, some of her

statements suggest that—at least once she was outside the car—she pulled

away out of reflex or pain rather than any intent to resist. See Depo.

Transcript at 42 (“I was not resisting. I was wanting to not be hurt.”); id. at 49

(“And I couldn’t help but to not let him have this shoulder, this arm.”). But

this would not change the analysis. As previously discussed, the Court must

analyze a reasonable officer’s perception of Tews’ behavior, not Tews’ actual

intent. Graham, 490 U.S. at 396. Because Tews does not dispute Terrell’s

other district court’s determination, the decision would have significant persuasive effects.”).

description of her actions, this factor favors Terrell. See Horn v. Barron, 720

F. App’x 557, 564–65 (11th Cir. 2018) (reasoning that an officer could

reasonably “think [an arrestee] was resisting and posed a threat of resisting

further” after she “pulled her arm away”).

In a similar case where an individual refused to comply with an officer’s

instructions, the Eleventh Circuit held that the officer was entitled to qualified

immunity for tasing even a restrained plaintiff who failed to comply with the

officer’s orders. See Buckley v. Haddock, 292 F. App'x 791, 792 (11th Cir.

2008).11 In Buckley, the officer stopped the plaintiff for speeding, and the

plaintiff began to sob and refused to sign his traffic citation. Id. The officer

warned the plaintiff that if he refused to sign the ticket he would be arrested.

Id. The plaintiff insisted that the officer arrest him, and allowed the officer to

handcuff him. Id. As the pair walked to the patrol car, the plaintiff dropped

to the ground, crossed his legs, and continued to sob. Id. The plaintiff then

stated, “My life would be better if I was dead.” Id. The officer asked the

plaintiff several times to stand up, attempted to lift him up, and warned him

that he would use a taser, but the plaintiff responded, “I don’t care anymore—

11 The Court does not rely on unpublished opinions as binding precedent; however, they may

be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

tase me.” Id. The officer subsequently discharged his taser. Id. The officer

again asked the plaintiff to stand, warned he would tase him, and gave the

plaintiff more time to comply, but ultimately deployed the taser a second time.

Id. at 793. After calling for backup, the officer returned to the plaintiff and

ordered him to stand, gave him yet another warning, attempted to lift him once

more, and when he still did not comply the officer discharged the taser a third

time. Id. In its analysis, the Eleventh Circuit noted that although the traffic

citation was minor, the government has a significant interest in enforcing the

law on its own terms and in “arrests being completed efficiently and without

waste of limited resources: police time and energy that may be needed

elsewhere at any moment.” Id. at 794. The court found that the deputy gave

the plaintiff “ample warning and opportunity to cease resisting before the

deputy resorted gradually to more forceful measures” and that his “use of force

was not unconstitutionally excessive.” Id. at 796. As noted above,

unpublished opinions are not binding authority, but the Court nevertheless

finds the court’s analysis in Buckley informative. Like Buckley, Tews did not

try to escape arrest altogether, but she nonetheless refused to be arrested on

the government’s terms. See Depo. Transcript 42–44. Terrell was entitled to

use force to overcome this resistance and ensure that Tews was properly

handcuffed.

Accordingly, all three Graham factors—the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of officers or

others, and whether the suspect is attempting to resist arrest or evade capture

by flight—weigh in Terrell’s favor. The Court does not end its inquiry there,

however. The Eleventh Circuit also instructs district courts to consider three

other factors: “(1) the need for the application of force, (2) the relationship

between the need and amount of force used, and (3) the extent of the injury

inflicted.” Lee, 284 F.3d at 1197–98. The Court refers to these as “the Lee

factors.”

The first Lee factor—the need for the application of force—is answered by

the Graham factors themselves. Tews’ dangling handcuff created a need to

restrain her. Her refusal to follow commands, coupled with her escalating

behavior and suicidal statements, suggested that Terrell needed to act quickly

before the situation spiraled out of control. See Horn, 720 F. App’x at 565

(holding that an officer was justified in using force to subdue an arrestee, even

where that arrestee “was not disobeying a lawful command,” because a

reasonable officer could have perceived resistance and the threat of further

disruption).

The second Lee factor—the relationship between the need and the

amount of force used—likewise weighs in favor of Terrell. Faced with a rapidly

escalating situation (and an arrestee that he reasonably believed to be

intoxicated, increasingly agitated, and beginning to express suicidal ideation),

Terrell reasonably believed that he needed to restrain Tews quickly. He ruled

out the use of a taser because of his proximity to (and contact with) Tews, and

ultimately resorted to an arm-bar takedown. Terrell Declaration at 7. Once

Tews was on the ground, Terrell reapplied the handcuffs and used no additional

force. See Depo. Transcript 70; Terrell Declaration 7. Under the

circumstances, a reasonable officer in Terrell’s position could have believed that

this was a proportionate response. See Horn, 720 F. App’x at 565 (concluding

that a concertgoer’s act of pulling away, combined with her volatile behavior

and aggressive statements, justified the use of an arm-bar takedown).

In her Response, Tews argues that Terrell could have avoided the

situation by “call[ing] a female officer to the scene to assist him,” and that

Terrell “could have been more patient” in re-cuffing her. Response at 4.

While Tews makes these arguments, she points to no evidence in support, and

also fails to suggest how either contention raises a genuine issue of fact as to

the reasonableness of Terrell’s use of force. Moreover, the Eleventh Circuit has

noted that a “single officer . . . confronting a non-compliant arrestee . . . need

not—as a matter of federal constitutional law—wait idly for backup to arrive to

complete an otherwise lawful arrest that the officer has started.” Buckley, 292

F. App’x at 795. Indeed, as the court explained:

We do not sit in judgment to determine whether an

officer made the best or a good or even a bad decision in

the manner of carrying out an arrest. The Court’s task

is only to determine whether an officer’s conduct falls

within the outside borders of what is reasonable in the

constitutional sense.

Id. at 791; see also Horn, 720 F. App’x at 564 (noting that even if an arm-bar

takedown “was unnecessary, it was not unlawful” under the circumstances).

Here, Tews’ arguments are unavailing regardless of whether the alternatives

she identifies were viable because the undisputed facts show that Terrell’s

decision to use the arm-bar takedown was reasonable.

The third Lee factor—the extent of the injury inflicted—likely weighs in

favor of Tews. Her injuries include missing and fractured teeth, lacerations

and contusions to her lip and head, a concussion, nerve damage, and

aggravation of her existing shoulder injury. See Depo. Transcript 53–58, 92.

These injuries, while not trivial, also are not especially severe. But regardless

of how serious one considers Tews’ injuries to be, they were “the unfortunate

result of” Terrell’s “reasonable use of force” in a potentially dangerous situation.

Horn, 720 F. App’x at 565.

In consideration of the record, construing the facts and drawing all

reasonable inferences in Tews’ favor, Haves, 52 F.3d at 921, Tews cannot show

that Terrell’s use of force against her was objectively unreasonable. Given

Tews’ suicidal statements, her refusal to follow commands, and her apparent

ability to harm herself or Terrell with the loose handcuff if left unrestrained,

Terrell reasonably believed force was necessary to re-apply the handcuffs.

This was all the more reasonable because Terrell was the only officer at the

scene. Accordingly, Terrell’s use of the arm-bar takedown did not violate Tews’

Fourth Amendment rights. The Court thus determines that Tews has failed

to show a genuine issue of fact for trial on her claim against Terrell, and Terrell

is therefore entitled to summary judgment.

B. Clearly Established Law

Even if the Court found that Terrell’s arm-bar takedown was

unconstitutionally excessive, Tews fails to point to authority supporting a

conclusion that Terrell violated a clearly established constitutional right. See

Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004), abrogated on

other grounds by Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020). As the

Supreme Court has explained:

[f]or a constitutional right to be clearly established, its contours

“must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This is not to

say that an official action is protected 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 v. Pelzer, 536 U.S. 730, 739 (2002) (citation omitted) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). For purposes of this analysis, the critical

question is whether the state of the law gave the government actor “fair

warning” that his alleged treatment of the plaintiff was unconstitutional.

Vinyard, 311 F.3d at 1350 (quoting Hope, 536 U.S. at 741); see also Marsh, 268

F.3d at 1031 (“[F]air and clear notice to government officials is the cornerstone

of qualified immunity.”). The Eleventh Circuit recognizes three sources of law

that would provide a government official adequate notice of statutory or

constitutional rights: “specific statutory or constitutional provisions; principles

of law enunciated in relevant decisions; and factually similar cases already

decided by state and federal courts in the relevant jurisdiction.” Harper v.

Lawrence County, Ala., 592 F.3d 1227, 1233 (11th Cir. 2010) (quoting Goebert

v. Lee County, 510 F.3d 1312, 1330 (11th Cir. 2007)). Thus, where the words

of the federal statute or federal constitutional provision are specific enough “to

establish clearly the law applicable to particular conduct and circumstances,”

then the plaintiff can overcome the qualified immunity privilege, even in the

absence of case law. Vinyard, 311 F.3d at 1350. In this type of “obvious

clarity” case, “the words of the federal statute or federal constitutional provision

may be so clear and the conduct so bad that case law is not needed to establish

that the conduct cannot be lawful.” Id.

Alternatively, where the conduct alleged is not so egregious as to violate

a statutory or constitutional right on its face, courts look to case law to

determine whether the law is “clearly established.” Id. at 1351. If the case

law contains “some broad statements of principle” which are “not tied to

particularized facts,” then it may be sufficient to clearly establish the law

applicable in the future to different facts. Id. However, to provide officials

with sufficient warning, the case law must establish a principle with such

“obvious clarity” that “every objectively reasonable government official facing

the circumstances would know that the official's conduct did violate federal law

when the official acted.” Id. Last, in the absence of broad statements of

principle, precedent can clearly establish the applicable law where “the

circumstances facing a government official are not fairly distinguishable, that

is, are materially similar,” to the particularized facts of prior case law. Id. at

1352. Such precedent must be found in decisions from the Supreme Court, the

controlling circuit court of appeals, or the pertinent state supreme court. Id.

at 1351. Although such a case “on all fours” with materially identical facts is

not required to establish “fair warning” to government officials, see Holloman

ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004) (discussing

the impact of Hope on Eleventh Circuit precedent), “existing precedent must

have placed the statutory or constitutional question beyond debate,” see

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Malley, 475 U.S. at 341)).

In her Response, Tews cites to Johnson v. City of Miami Beach, 18 F.4th

1267 (11th Cir. 2021). See Response at 4. Johnson involved an arrestee who

was uncooperative while police transported him to jail. 18 F.4th at 1270. The

arrestee consistently delayed in obeying commands, and, at the police station,

confronted an officer by saying “I ain’t scared of you by a long shot, buddy.” Id.

Six officers escorted the arrestee, who was unhandcuffed, to a holding cell. Id.

Arriving at the cell, the arrestee stated, “I’m not going to go in there.” Id. An

officer grabbed the arrestee’s shoulder and pushed him into the cell. Id. As

the arrestee stood motionless inside the cell and an officer reached to close the

cell door, a second officer took “two or three steps forward, came into the cell,

and forcibly struck [the arrestee] in the face with his elbow,” lacerating his

mouth. Id. at 1271. The Eleventh Circuit held that a jury could find the elbow

strike excessive because the arrestee “was fully secured . . . [and was] not

moving, resisting, or otherwise posing a threat,” and because officers had no

justification to use force at the time the blow landed. Id. at 1273. Turning to

whether this excessive force violated clearly established law, the Eleventh

Circuit applied the principle that an officer may not “use[] gratuitous force

against an arrestee who is fully secured, not resisting arrest, and not posing a

safety threat to the officer.” Id. at 1274.

Tews’ reliance on Johnson is simply unpersuasive. Unlike the arrestee

in Johnson, Tews was not fully secured. While the Johnson arrestee was not

handcuffed, he was being escorted by six officers and was “well inside the cell

and standing still.” Id. at 1271. One of the six arresting officers also stated

in a deposition that he could have “simply closed” the cell door without any use

of force. Id. at 1271 & n.1. In contrast, it is undisputed that Terrell was alone,

and that he executed the arm-bar takedown when Tews was outside the patrol

car, “continu[ing] to pull away her free arm,” and only partially handcuffed.

Terrell Declaration 6. Indeed, Tews does not argue that she did not resist, only

that she did not do so in a “way which justified” the force used, and that she

was not “intentionally uncooperative.” Response 3. Because Tews was not

secured, and was moving, resisting, and reasonably appeared to be a threat to

herself or Terrell, Tews’ reliance on Johnson is unavailing. Accordingly, even

if Tews could show the violation of a right, she would not be able to show that

it was clearly established.

V. Conclusion

For the foregoing reasons, Tews cannot show a genuine issue of material

fact for trial as to her remaining claim of excessive force. Accordingly, Terrell’s

Motion for Summary Judgment is due to be granted.

Accordingly, it is

ORDERED:

1. Defendant T. L. Terrell’s Motion for Summary Judgment and

Accompanying Memorandum of Law (Doc. 26) is GRANTED.

2. The Clerk of the Court is directed to enter JUDGMENT in favor of

Defendant.

3. The Clerk of the Court is further directed to terminate any

remaining motions and deadlines as moot and close the file.

DONE AND ORDERED in Jacksonville, Florida this 6th day of

December, 2022.

MARCIA MORALES HOWARD

United States District Judge

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