The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12724
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-02378-LMM
HERMAN DARNELL BAKER,
Plaintiff - Appellant,
versus
PATRICK J. CLEMENTS,
JOSEPH S. DWYER,
individually and as employees of the City of Douglasville, Georgia,
CITY OF DOUGLASVILLE, GEORGIA,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(February 4, 2019)
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Before BRANCH, EDMONDSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Herman Baker appeals the district court’s order granting summary
judgment in favor of Defendant Officers Patrick Clements and Joseph Dwyer in
Plaintiff’s civil action, filed pursuant to 42 U.S.C. § 1983 and state law. Plaintiff
contends that the force Defendant Officers used to effect Plaintiff’s arrest
constituted excessive force in violation of the Fourth Amendment and battery
under Georgia law. 1 No reversible error has been shown; we affirm.
This appeal arises out of a traffic stop on 3 August 2014. Officer Clements
initiated the traffic stop after observing Plaintiff driving a car at night with no tag
light illuminating the license plate and with cracks in each tail light. The encounter
between Plaintiff and Defendant Officers was captured on a dash camera video and
audio recording.
The facts pertinent to this appeal are as follows. During the traffic stop,
Officer Clements and Plaintiff walked to the back of Plaintiff’s car so Plaintiff
1
Plaintiff raises no challenge to the district court’s grant of summary judgment in favor of the
City of Douglasville, Georgia. Nor does Plaintiff challenge the district court’s grant of summary
judgment on his claim against Defendant Officers for unlawful arrest. Those claims are not at
issue on appeal.
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could see the broken tag light. Officer Clements conducted a brief pat-down
search of Plaintiff’s person and found no weapons or contraband. Plaintiff -- who
had marijuana in his possession -- says he “got nervous.” Meanwhile, Officer
Dwyer arrived on the scene as routine backup.
Officer Clements asked for Plaintiff’s consent to search the car. Plaintiff
provided no verbal response and, instead, started to walk away. Officer Clements
told Plaintiff to “come here” and to sit on the front bumper of the police car, which
Plaintiff did. Officer Clements asked again for Plaintiff’s consent to search the car.
Plaintiff turned his head away from Officer Clements and provided no verbal
response.
Seconds later, Plaintiff started to run away. Officer Clements grabbed
Plaintiff’s shirt and brought Plaintiff to the ground. As Officer Clements and
Plaintiff struggled, both officers ordered Plaintiff to get on the ground and to give
Officer Clements his hands. At one point, Officer Dwyer also tased Plaintiff.
Defendant Officers pinned Plaintiff face down on the ground as Plaintiff
continued to struggle. Defendant Officers issued repeated orders for Plaintiff to
stop resisting and for Plaintiff to give Officer Clements his hands. Officer
Clements was able to handcuff Plaintiff’s left hand, but Plaintiff’s right hand
remained free. The video shows that Defendant Officers both struggled to get
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ahold of Plaintiff’s right arm while also ordering Plaintiff repeatedly to give them
his hand. At that point, Defendant Officers delivered a series of closed-fist strikes
to Plaintiff’s right side. Officer Clements ultimately succeeded in handcuffing
Plaintiff’s right hand about 40 seconds after handcuffing Plaintiff’s left hand.
After Plaintiff was fully handcuffed, Plaintiff continued to move around on the
ground. Defendant Officers held Plaintiff still, but used no further fist strikes or
other force.
Plaintiff was charged with two counts of tag violations, two counts of
obstructing a police officer, and one count of marijuana possession. Plaintiff
entered a plea agreement and served twelve months’ probation.
Plaintiff filed this civil action against Defendant Officers individually,
asserting claims for excessive force in violation of the Fourth Amendment and for
state law battery. The district court granted Defendants Officers’ motion for
summary judgment. The district court concluded that no constitutional violation
occurred. The district court also concluded that Defendant Officers were entitled
to official immunity from Plaintiff’s state law battery claim because Plaintiff had
produced no evidence that Defendant Officers acted with actual malice.
We review de novo a district court’s grant of summary judgment, viewing
the evidence and all reasonable factual inferences in the light most favorable to the
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nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
When a video recording exists of the pertinent events -- as in this case -- we
“view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S.
372, 380-81 (2007).
I. Fourth Amendment Excessive Force
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). To
avoid summary judgment based on qualified immunity, Plaintiff must show both
that Defendant Officers violated a federal right and that the right was already
clearly established when Defendant Officers acted. See id.
A federal right is “clearly established” when “at the time of the officer’s
conduct, the law was sufficiently clear that every reasonable official would
understand that what he is doing is unlawful.” D.C. v. Wesby, 138 S. Ct. 577, 589
(2018) (quotations omitted). “We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond
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debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis added); Wesby,
138 S. Ct. at 589.
“Although suspects have a right to be free from force that is excessive, they
are not protected against a use of force that is necessary in the situation at hand.”
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotations
omitted). “[T]he 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.” Graham v. Connor, 490 U.S. 386, 396 (1989). An officer’s use of force is
unconstitutionally excessive only if the force used was “objectively [un]reasonable
in light of the facts and circumstances confronting” the officer. Id. at 397
(quotations omitted).
“In determining the reasonableness 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 bodily 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). We consider,
among other things, “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
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actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.
at 396.
We stress that “[t]he ‘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.” Id. And we must allow “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.” Id. “We are loath to second-guess the
decisions made by police officers in the field.” Vaughan v. Cox, 343 F.3d 1323,
1331 (11th Cir. 2003).
On appeal, Plaintiff challenges -- as unconstitutionally excessive -- only
Defendant Officers’ use of fist strikes while Plaintiff was face-down on the ground.
The evidence, viewed in the light most favorable to Plaintiff, shows that Defendant
Officers’ use of force was objectively reasonable under the circumstances. When
Defendant Officers employed the fist strikes, Plaintiff had just attempted to evade
arrest by flight and had refused multiple orders to get on the ground, to stop
resisting, and to give his hands to the officers. An objective officer could also have
believed reasonably that Plaintiff -- who had only a single hand in handcuffs --
presented an immediate threat to Defendant Officers’ safety when the fist strikes
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were used. Not only had Plaintiff offered continuous physical resistance to
Defendant Officers’ efforts to restrain him, but we have said that an arrestee with
only one hand handcuffed may pose a danger to officers because “without both
hands shackled, the single handcuff could be used as a weapon.” See Hoyt v.
Cooks, 672 F.3d 972, 979 (11th Cir. 2012).
Given Plaintiff’s active and aggressive resistance to arrest -- which also
constituted obstruction of an officer -- an objective officer under the circumstances
could have concluded reasonably that the use of fist strikes was necessary to
complete Plaintiff’s arrest. Faced with a “tense, uncertain, and rapidly evolving”
situation, Defendant Officers made a split-second decision to employ force to gain
control of the situation and to avoid the risk of serious injury. Under these
circumstances, we cannot say that Defendant Officers’ use of force was
constitutionally unreasonable.
On appeal, Plaintiff contends that he was unable to move his right arm
behind his back due to a pre-existing shoulder injury. Accepting Plaintiff’s version
of the facts as true, nothing evidences that a reasonable officer would have known
about Plaintiff’s shoulder injury. Plaintiff said nothing to Defendant Officers
about his physical impairment, and Plaintiff’s shoulder injury was not visibly
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apparent. Instead, it was reasonable for Defendant Officers to perceive Plaintiff’s
failure to present his right hand to be handcuffed as a sign of intentional resistance.
Plaintiff has failed to establish that Defendant Officers’ use of force
constituted a violation of his Fourth Amendment rights. Moreover, it was not
already clearly established -- such that the question was “beyond debate” -- when
Defendant Officers acted in 2014 that the amount of force used to restrain Plaintiff
under the circumstances of this case was constitutionally excessive. See Mullenix,
136 S. Ct. at 308; Wesby, 138 S. Ct. at 589. The Supreme Court has stressed that
the “clearly established” standard requires a “high degree of specificity.” Wesby,
138 S. Ct. at 590 (quotations omitted). This heightened specificity is particularly
important in Fourth Amendment (a reasonableness-is-the-standard provision)
cases, where -- given the number of variables confronting an officer on the scene --
it is often difficult for officers to know how the pertinent legal doctrine (excessive
force) applies to the precise factual situation encountered. Id.; Mullenix, 136 S. Ct.
at 308. Defendant Officers were entitled to summary judgment on Plaintiff’s claim
for excessive force.
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II. State Law Battery
Under Georgia law, law enforcement officers are entitled to official
immunity from suit and liability unless they “negligently perform a ministerial act
or act with actual malice or an intent to injure when performing a discretionary
act.” Roper v. Greenway, 751 S.E.2d 351, 352 (Ga. 2013); see also Ga. Const. art.
I, § II, para. IX(d). That Defendant Officers were performing a discretionary act
when attempting to arrest Plaintiff is undisputed.
For purposes of official immunity, “actual malice” means “express malice,
i.e., a deliberate intention to do wrong.” Murphy v. Bajjani, 647 S.E.2d 54, 60
(Ga. 2007). “A ‘deliberate intention to do wrong’ such as to constitute the actual
malice necessary to overcome official immunity must be the intent to cause the
harm suffered by the plaintiffs.” Id. We have described this as “a demanding
standard.” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016).
In response to Defendant Officers’ motion for summary judgment on
Plaintiff’s battery claim, Plaintiff said only that “[t]he facts of this case clearly
demonstrate that these Defendants acted with malice and with an intent to injure
Plaintiff Baker . . ..” Likewise -- on appeal -- Plaintiff asserts in a conclusory
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manner that there exists sufficient evidence to create a question of fact about
whether Defendant Officers acted with actual malice.
Among other things, Plaintiff says that “[d]uring the beating, one of the
Defendant-Appellees used an expletive” and that -- after Plaintiff was arrested and
placed in custody -- one of the Defendant Officers said, “This is what you live for
man.” The video recording confirms that an expletive was used during Plaintiff’s
arrest and that -- about 30 minutes after Plaintiff was handcuffed -- an unidentified
person said, “This is what you live for man.” This evidence, viewed in the light
most favorable to Plaintiff, is insufficient to satisfy the “demanding standard” of
demonstrating that Defendant Officers acted with actual malice when they used fist
strikes during Plaintiff’s arrest. The district court concluded correctly that
Defendant Officers were entitled to summary judgment on Plaintiff’s claim for
battery.
AFFIRMED.
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