K'Cee Kinard Odom v. Tobias Boisvert

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11226

Non-Argument Calendar

____________________

K’CEE KINARD ODOM,

Plaintiff-Appellant,

versus

TOBIAS BOISVERT,

RAY SMITH,

THE CITY OF PHENIX CITY,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

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2 Opinion of the Court 23-11226

D.C. Docket No. 3:19-cv-00832-ECM-JTA

____________________

Before JORDAN, LAGOA, and MARCUS, Circuit Judges.

PER CURIAM:

K’cee Odom brought this § 1983 suit against Phenix City po-

lice officer, Officer Tobias Boisvert, for violating his Fourth

Amendment right to be free from excessive force, after Boisvert

tased him when responding to a disturbance involving Odom and

members of his family. The district court granted summary judg-

ment to Boisvert on qualified immunity grounds after finding that

the officer had not acted with unreasonable force. After careful re-

view, we affirm.

I.

The relevant facts -- as gleaned from the record on summary

judgment -- are these. On September 12, 2019, a dispute broke out

at a restaurant owned and operated by Odom, between Odom and

his aunts, Rhonda Kennedy and Cathy Benton. Odom asked the

two women to leave, and they went outside. Both Odom and Ken-

nedy called 911 to report the incident, and two Phenix City police

officers, Tobias Boisvert and Darrell Johnson, were dispatched to

the restaurant to respond to the incident. Outside the restaurant,

Officer Johnson turned on his body worn camera (“BWC”). The

officers spoke with Kennedy, who said that Odom had punched her

and had been getting aggressive with Benton. She asked the offic-

ers to go inside to check on Odom because he was “on a rampage.”

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The two officers entered the restaurant, accompanied by

Odom’s two aunts. The restaurant was completely dark, so Officer

Johnson turned on a flashlight. As described in the complaint, “Mr.

Odom was walking toward Officer Johnson and Cathy Benton and

away from [Officer] Boisvert,” when Boisvert, “without provoca-

tion, cause or warning, shot Mr. Odom in the back with his Taser.”

Johnson’s BWC tells a different story, however. Immediately after

Johnson turned on the flashlight, Odom yelled “get the fuck outta

here” and people started screaming. The BWC shows another

man, now known to be Odom’s brother, trying to restrain Odom,

but Odom struggled and broke free from his brother’s grasp and

ran toward a group of people a few paces away from him. Seconds

later, before he could reach the group, Boisvert tased him. The

taser prongs hit Odom in the back and he fell to the floor. The

usage report shows that the taser delivered a single five-second

burst of current to Odom.

Officers handcuffed Odom and brought him outside. Odom

can be seen on the BWC footage standing outside, pacing around,

arguing with the officers. At some point, Odom began to complain

of back pain and requested to be taken to the hospital. In a later

written declaration, Odom said that he “was in very bad pain” and

that it took approximately 90 minutes for emergency medical per-

sonnel (“EMS”) to arrive and remove the taser prongs. After being

treated by EMS, Odom was transported to the hospital, accompa-

nied by Officer Johnson. At the hospital, he refused treatment be-

cause he believed that he should not have to pay the bill. Johnson

then arrested Odom and transported him to the jail.

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Odom sued Boisvert; Ray Smith, the Chief of Police at the

Phenix City Police Department; and the City of Phenix City in the

United States District Court for the Middle District of Alabama.

Odom brought several state and federal claims against Boisvert and

the other defendants, including a claim brought pursuant to 42

U.S.C. § 1983 that Officer Boisvert had violated Odom’s Fourth

Amendment right to be free from excessive force. The defendants

moved for summary judgment, and, relevant here, Boisvert sought

qualified immunity from the lawsuit.

In ruling on whether Officer Boisvert was entitled to quali-

fied immunity on the excessive force claim, the district court noted

that the incident had begun for Officer Boisvert when he entered a

dark restaurant moments after being told by Odom’s aunt, Ken-

nedy, that Odom had physically assaulted her and had been acting

aggressively toward his other aunt, Benton. Thus, the court ex-

plained, “a reasonable officer in Boisvert’s position would have per-

ceived immediate danger to” Benton when Odom broke free of his

brother’s grasp and rushed toward her, barreling through tables

and chairs to reach her. The court added that this situation was not

one in which our Court has found the use of a taser to be unrea-

sonable, like when a suspect is “non-hostile and non-violent.” And,

the court pointed out, Odom had not provided any evidence of any

injuries, other than his declaration that he “was in very bad pain.”

On this record, the court concluded that a single use of a taser in

this “rapidly evolving situation where Odom aggressively charged

a third party” was not excessive use of force. The district court

granted summary judgment to Boisvert on qualified immunity

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grounds, and then disposed of the remaining claims against the de-

fendants.

Odom timely appealed, but only as to the excessive force

claim against Officer Boisvert.

II.

We review de novo a district court’s grant of summary judg-

ment based on qualified immunity. Johnson v. City of Miami Beach,

18 F.4th 1267, 1271 (11th Cir. 2021). Summary judgment is appro-

priate “if the movant shows that there is no genuine dispute as to

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

ter of law.” Fed. R. Civ. P. 56(a). At the summary-judgment stage,

we view all evidence in the light most favorable to the nonmovant

and draw all reasonable inferences in their favor, Johnson, 18 F.4th

at 1271–72, except where video evidence “obviously contradicts

[the nonmovant’s] version of the facts,” in which case “we accept

the video’s depiction instead of [the nonmovant’s] account,” Shaw

v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (quoting Pour-

moghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010)).

Qualified immunity “shields officials from civil liability so

long as their conduct ‘does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.’” Crocker v. Beatty, 995 F.3d 1232, 1239 (11th Cir. 2021)

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). In seeking quali-

fied immunity, the defendant-officer first must prove that he was

“acting within his discretionary authority.” Piazza v. Jefferson

County, 923 F.3d 947, 951 (11th Cir. 2019) (quoting Skop v. City of

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6 Opinion of the Court 23-11226

Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007)). If he makes this

showing, the burden shifts to the plaintiff to prove that “(1) the of-

ficer violated a constitutional right and (2) the right was clearly es-

tablished at the time of the alleged violation.” Id. “We may con-

sider these two prongs in either order; an official is entitled to qual-

ified immunity if the plaintiff fails to establish either.” Id.

A.

“[T]o pass the first step of the discretionary function test for

qualified immunity, the defendant must have been performing a

function that, but for the alleged constitutional infirmity, would

have fallen with[in] his legitimate job description.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004) (emphasis

omitted). In other words, we ask “whether the act complained of,

if done for a proper purpose, would be within, or reasonably re-

lated to, the outer perimeter of an official’s discretionary duties.”

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (quo-

tations omitted).

In the district court, Officer Boisvert demonstrated that he

had acted well within his discretionary authority throughout the

time he was at Odom’s restaurant responding to the 911 call. And

Odom never disputed that Boisvert had been performing a discre-

tionary function; rather, as the district court noted, Odom “disre-

gard[ed] this step of the analysis altogether.” On appeal, Odom

says that he did dispute that Boisvert was performing a discretion-

ary function in his Memorandum in Opposition to Summary Judg-

ment, when he argued that Boisvert was not “protect[ing] innocent

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civilians,” as the Motion for Summary Judgment had claimed. But

this has nothing to do with whether Boisvert was performing a dis-

cretionary function: for this analysis, we look at the officer’s actions

regardless of any alleged improper purpose. See id. Odom thus has

waived any argument that Boisvert was not performing a discre-

tionary function. Hunter v. Leeds, 941 F.3d 1265, 1278 n.16 (11th

Cir. 2019) (refusing to consider a plaintiff’s argument that the de-

fendant-officer was not performing a discretionary function on ap-

peal when the plaintiff did not contest the point in district court).

In any event, even if Odom had raised the issue, it would

have been futile: our case law and common sense tell us that re-

sponding to a 911 call, apprehending a suspect, and making an ar-

rest, as Boisvert did, are at the heart of a police officer’s duties. See

id. (“The pursuit and apprehension of suspected criminals is a core

discretionary function of the police.”); Crosby v. Monroe County, 394

F.3d 1328, 1332 (11th Cir. 2004) (finding that “making an arrest is

within the official responsibilities of [an officer],” and so the defend-

ant-officer “was performing a discretionary function when he ar-

rested [the plaintiff]”).

B.

The burden therefore shifts to Odom to show that Officer

Boisvert violated his constitutional right and that this right was

clearly established at the time of the alleged violation. As we’ll ex-

plain, Odom has not shown that Boisvert violated any of his con-

stitutional rights, so we need not consider the clearly established

prong of the analysis.

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Odom’s claim is straightforward -- he says that Officer Bois-

vert violated his Fourth Amendment right to be free from excessive

force when Boisvert tased him in the back. “The Fourth Amend-

ment’s freedom from unreasonable searches and seizures encom-

passes the plain right to be free from the use of excessive force in

the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th

Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 394–95 (1989)).

Making an arrest necessarily involves “some degree of physical co-

ercion or threat thereof”; the Fourth Amendment simply requires

that the force used to effect an arrest be reasonable. Brown v. City

of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010) (quoting Lee, 284

F.3d at 1197). Determining “whether the force is reasonable de-

pends on ‘a careful balancing of the nature and quality of the intru-

sion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’” Id. at 737–38

(quoting Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)).

Reasonableness is an objective test: “the question is whether

the officer[’s] actions are ‘objectively reasonable’ in light of the facts

and circumstances confronting them, without regard to their un-

derlying intent or motivation.” Graham, 490 U.S. at 397. We assess

reasonableness “from the perspective of a reasonable officer on the

scene,” bearing in mind that “police officers are often forced to

make split-second judgments -- in circumstances that are tense, un-

certain, and rapidly evolving -- about the amount of force that is

necessary in a particular situation.” Id. at 396–97.

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Further, the reasonableness of a use of force “depends on the

‘facts and circumstances of each particular case.’” Helm v. Rainbow

City, 989 F.3d 1265, 1273 (11th Cir. 2021) (quoting Graham, 490 U.S.

at 396). These include: (1) the severity of the crime at issue; (2)

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

officers or others; (3) whether he is actively resisting arrest or at-

tempting to evade arrest by flight; (4) the need for application of

force; (5) the relationship between the need and amount of force

used; and (6) the extent of the injury inflicted by the arresting of-

ficer. Id.

In this case, there is no genuine dispute of material fact

about whether Boisvert’s single use of the taser was reasonable. In-

deed, based on all the circumstances surrounding the incident at

Odom’s restaurant, Boisvert reasonably feared that Odom posed

an immediate threat to third parties and applied a relatively small

amount of force (which led to no lasting injury) in order to prevent

any violence from occurring.

As the undisputed record reflects, Officer Boisvert arrived

on the scene after being dispatched in response to a 911 call. Upon

his arrival, the caller, Kennedy, told him that Odom had punched

her and that he was “on a rampage.” When the officers entered the

restaurant, Odom yelled “get the fuck outta here,” and Boisvert

saw Odom break free from another man’s grasp and start running,

pushing furniture out of his way as he went, toward a group of

people that included Benton. The situation was chaotic: the res-

taurant was dark, people were screaming, and Odom was yelling

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and running toward a group of people, including someone he had

allegedly been aggressive toward earlier. A reasonable officer

could have believed that Odom was a threat to those people, espe-

cially given the aggressive nature of his yelling and the fact that he

had wrenched himself free of his brother’s restraint to run toward

them. Boisvert fired his taser once, seconds after the chaos began.

Though Odom was in pain from the taser prongs, he has not

claimed lasting injury and did not receive any hospital treatment.

The reasonableness of Officer Boisvert’s conduct in these

circumstances is well supported by our case law. In Draper v. Reyn-

olds, 369 F.3d 1270 (11th Cir. 2004), for example, we upheld the

grant of qualified immunity to an officer on an excessive force

claim where the officer had fired a taser during a traffic stop. Before

the officer deployed the taser, the suspect had refused to comply

with commands, “used profanity, moved around and paced in agi-

tation, and repeatedly yelled at [the officer].” Id. at 1278. We ex-

plained that the officer’s single “use of the taser gun to effectuate

the arrest of [the suspect] was reasonably proportionate to the dif-

ficult, tense and uncertain situation that [the officer] faced,” espe-

cially since it “may well have prevented a physical struggle and se-

rious harm to either [the suspect] or [the officer].” Id.

Here, Odom was acting more combatively than the suspect

in Draper -- who was being merely “hostile, belligerent, and unco-

operative,” id. -- by yelling and running toward someone with

whom he had just had a dispute, despite someone else trying to

hold him back. Officer Boisvert thus faced a far more volatile

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situation, and a threat far more immediate, than any threat faced

by the officer in Draper. Yet the amount of force used was the same:

the single use of a taser, causing no serious injury. Under the cir-

cumstances, there can be no dispute that Boisvert’s reaction was

reasonable.

Odom argues to us that the district court failed to view the

evidence in the light most favorable to him when analyzing the fac-

tors. In particular, Odom says that the court’s finding that he did

not suffer serious harm is contrary to the record, which shows that

he was hospitalized after being tased. But the undisputed record

reflects that Odom was taken to hospital at his request, not that he

was “hospitalized” -- in fact, according to the evidence, he refused

treatment at the hospital. The record shows, at most, that Odom

suffered “very bad pain” from being tased. And as we said in

Draper, “[a]lthough being struck by a taser gun is an unpleasant ex-

perience,” an officer’s single use of a taser “causing a one-time

shocking” that “may well have prevented a physical struggle and

serious harm” to someone at the scene is “reasonably proportion-

ate to the need for force and did not inflict any serious injury.” Id.

Odom also argues that the evidence taken in the light most

favorable to him does not support the district court’s finding that

he presented a threat to a third party. But his interpretation of the

record is not supported by the applicable case law. While the sum-

mary judgment standard requires that the evidence be taken in the

light most favorable to him, we will not do so where his character-

ization of the events is squarely contradicted by the video evidence.

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See Shaw, 884 F.3d at 1098. Here, the BWC footage unambiguously

shows Kennedy telling the officers that Odom punched her, and

unambiguously shows Odom struggling and breaking free from a

man’s grasp and rushing toward a group of people, pushing furni-

ture out of the way to get there. It also reveals that Odom distinctly

yelled “get the fuck outta here” when the officers and his aunts

walked in -- an outburst he has not denied. Under our case law, the

district court properly considered that footage when deciding the

motion for summary judgment, and, moreover, after considering

the circumstances as a whole, properly determined that a reasona-

ble officer could have believed that Odom presented a threat to a

third party at the time Officer Boisvert deployed the taser on him.

In short, Odom has not shown that Boisvert violated his con-

stitutional right to be free from excessive force when the officer

discharged his taser a single time to prevent what he reasonably

perceived to be a volatile situation from turning violent. Accord-

ingly, the district court did not err in granting Boisvert’s motion for

summary judgment on qualified immunity grounds, and we affirm.

AFFIRMED.