William Meyers, Sr. v. Baltimore County, Maryland

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM MEYERS, SR., 

Individually; as the next friend of

and Personal Representative of the

Estate of Ryan Meyers; ANNA

MAE MEYERS, Individually; as the

next friend of and Personal

Representative of the Estate of

Ryan Meyers,

Plaintiffs-Appellants,

v.

BALTIMORE COUNTY, MARYLAND;

STEPHEN MEE, Police Officer,



Baltimore County Police

Department in both his official No. 11-2192

and individual capacities; VINCENT

ROMEO, Police Officer, Baltimore

County Police Department in both

his official and individual

capacities; KAREN GAEDKE, Police

Officer, Baltimore County Police

Department in both her official

and individual capacities,

Defendants-Appellees,

and

ALLISON PALADINO,

Defendant.



2 MEYERS v. BALTIMORE COUNTY, MARYLAND

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson Everett Legg, District Judge.

(1:10-cv-00549-BEL)

Argued: December 5, 2012

Decided: February 1, 2013

Before SHEDD, KEENAN, and WYNN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published

opinion. Judge Keenan wrote the opinion, in which Judge

Shedd and Judge Wynn joined.

COUNSEL

ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREG-

ORY L. LATTIMER, Washington, D.C., for Appellants. Paul

M. Mayhew, BALTIMORE COUNTY OFFICE OF LAW,

Towson, Maryland, for Appellees. ON BRIEF: Ted J. Wil-

liams, Washington, D.C., for Appellants. Michael E. Field,

County Attorney, BALTIMORE COUNTY OFFICE OF

LAW, Towson, Maryland, for Appellees.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the district court’s summary

judgment holding that certain officers of the Baltimore

County Police Department were entitled to qualified immu-

nity. The conduct at issue involved the officers’ entry into the

MEYERS v. BALTIMORE COUNTY, MARYLAND 3

residence of Ryan Meyers (Ryan) in responding to a report of

domestic violence involving Ryan and members of his family.

While attempting to arrest Ryan, one of the officers directed

his conducted energy device, commonly known as a "taser,"

at Ryan ten times, leading to Ryan’s death.

Ryan’s parents, William Meyers, Sr. (Mr. Meyers) and

Anna Mae Meyers (Mrs. Meyers) (collectively, the plaintiffs),

filed an amended complaint (the complaint) in the district

court, alleging under 42 U.S.C. § 1983 that the officers’

actions leading to Ryan’s death violated his Fourth Amend-

ment rights. The plaintiffs also alleged in their complaint that

the officers’ conduct violated certain provisions of Maryland

state law. The district court held that all three officers

involved in the incident were entitled to qualified immunity

and awarded summary judgment in their favor. Meyers v. Bal-

timore Cnty., Md., 814 F. Supp. 2d 552 (D. Md. 2011).

Upon our review, we hold that the district court did not err

in concluding that two of the officers were entitled to quali-

fied immunity, but that the court erred in awarding summary

judgment in favor of the officer who repeatedly activated his

taser at Ryan. We reach this conclusion based on our holding

that: (1) the one officer’s use of the taser was not objectively

reasonable after Ryan ceased actively resisting arrest; and (2)

a reasonable person in the officer’s position would have

known that the use of a taser in such circumstances violated

clearly established constitutional rights. Accordingly, we

affirm in part, and reverse in part, the district court’s award

of summary judgment.

I.

A.

We review the facts in the light most favorable to the plain-

tiffs, the non-moving party in the district court. See Mat-

sushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

4 MEYERS v. BALTIMORE COUNTY, MARYLAND

574, 587-88 (1986); Henry v. Purnell, 652 F.3d 524, 527 (4th

Cir. 2011) (en banc). The following facts are taken from the

record, including the complaint and the deposition testimony

of Ryan’s family members and the police officers who were

present during the events at issue.

Ryan Meyers was forty years old at the time of his death.

He had been diagnosed with bipolar disorder at the age of fif-

teen, and struggled with this mental illness throughout his

adulthood. He "dropped out" of school after the ninth grade,

and lived with his parents his entire life. Prior to the events

at issue, the Meyers family had contacted law enforcement

authorities on five occasions to have Ryan forcibly detained

and transported to a mental health facility for psychiatric eval-

uation, including three times during the previous ten years.

On the evening of March 16, 2007, Mrs. Meyers placed a

telephone call to a "911 operator" to report that Ryan and his

brother, William Meyers, Jr. (Billy), were engaged in a fight.

When the 911 operator attempted to obtain additional infor-

mation from Mrs. Meyers, she did not respond. However, the

911 operator heard "screaming in [the] background." Based

on this telephone call, officers from the Baltimore County

Police Department (the Department) were dispatched to the

Meyers’ residence (the residence).

Officer Vincent Romeo was the first officer to arrive at the

residence, where he found Mr. Meyers and Billy in the front

yard. Mr. Meyers was holding a towel against his face to

cover a laceration on his nose, which also was swollen. Mr.

Meyers informed Officer Romeo that Ryan was inside the

home, and that Mrs. Meyers had fled and would not return

until the police had removed Ryan from the premises. From

his vantage point on the porch of the residence, Officer

Romeo could see that Ryan was pacing inside the house car-

rying a baseball bat.

Before attempting to enter the residence, Officer Romeo

spoke with Billy about the events that had occurred. Billy

MEYERS v. BALTIMORE COUNTY, MARYLAND 5

stated that when he arrived at the house that evening, he heard

his mother exclaim, "Stop, Ryan. You are hurting me." Billy

responded by punching Ryan, and a fistfight ensued, causing

Mrs. Meyers to contact the police. Billy also told Officer

Romeo that Ryan "has problems upstairs and he’s bipolar."

Officer Karen Gaedke later arrived at the residence in

response to Officer Romeo’s request for additional assistance.

Officer Gaedke was familiar with Ryan’s mental illness, hav-

ing recently arrested him due to an incident at a nearby conve-

nience store. After Officer Gaedke arrived at the residence,

she and Officer Romeo began speaking with Ryan to con-

vince him to surrender peacefully, but he rebuffed their

efforts, stating, "No, you’re going to kill me."

Officer Romeo concluded that Ryan would not voluntarily

leave the residence, that he was in an "agitated state," and that

he posed a threat to the officers’ safety because he was carry-

ing a baseball bat. Accordingly, Officer Romeo contacted a

police dispatcher, asking that an officer trained to use a taser

be sent to the residence.

Officer Stephen Mee, who was authorized by the Depart-

ment to use a taser,1 responded to Officer Romeo’s request.

Upon arriving at the residence, Officer Mee unsuccessfully

engaged in a dialogue with Ryan in an attempt to have him

surrender voluntarily. Thereafter, Officer Mee, Officer

Romeo, Officer Gaedke, and Officer Andrew Callahan, IV,

who also had responded to the scene, (collectively, the offi-

cers) gained access to the home by using a key provided by

Billy. Billy entered the home at the same time and was a wit-

ness to the events described below.2

1

The Department authorized the use of tasers in 2006, but only a few

officers at each police precinct are allowed to carry and use a taser.

2

The officers dispute Billy’s recollection that he entered the home con-

temporaneously with the officers.

6 MEYERS v. BALTIMORE COUNTY, MARYLAND

Upon entry, Officer Mee ordered Ryan to drop the baseball

bat. According to Billy, Officer Mee deployed his taser

almost immediately after ordering Ryan to drop the bat, with-

out giving Ryan time to comply with the officer’s command.

However, it is undisputed that Ryan was holding the bat when

he first was struck by the taser’s probe, and that Ryan may

have taken a step toward the officers immediately before the

probe made contact with his body.

During Officer Mee’s first three deployments of the taser,

the device was in "probe mode," during which two probes

attached to thin electrical wires were fired from the taser,

causing an electric shock to be delivered to Ryan upon contact.3

The first taser probe fired by Officer Mee struck Ryan on his

upper body, registering a shock of about 60,000 volts that

lasted five seconds. Ryan, who was about six feet in height

and weighed about 260 pounds, did not drop his bat or fall to

the floor in response to the first taser shock. Officer Mee

stated that, after the first taser shock, Ryan was still holding

the baseball bat and took two more steps toward the officers.

According to Billy, however, Ryan went into convulsions and

exclaimed, "I give up. I give up. Stop. Stop. I give up."

Officer Mee again directed his taser in probe mode at Ryan,

resulting in an additional 60,000-volt shock that lasted five

seconds. This second taser shock caused Ryan to drop his bat,

3

As described by the district court, "[a] [t]aser can be used either in

‘probe’ mode or in ‘stun’ mode. In probe mode, two probes are fired from

a distance, attached to thin electrical wires, to lodge in the skin of the sub-

ject. The [t]aser then delivers a fixed five-second cycle of electricity

designed to cause electro-muscular disruption, effectively freezing the

subject’s muscles and thereby temporarily disabling him. In stun mode,

the probe cartridge is removed and the [t]aser’s electrodes are applied

directly to the subject. The [t]aser operator can then deliver a painful elec-

tric shock, the duration of which is completely within [the operator’s] con-

trol. In stun mode, the [t]aser does not cause muscular disruption or

incapacitation, but rather functions only as a ‘pain compliance’ tool." 814

F. Supp. 2d at 555 n.3.

MEYERS v. BALTIMORE COUNTY, MARYLAND 7

but he remained standing and again advanced toward the offi-

cers. Officer Mee directed his taser at Ryan a third time,

delivering another 60,000-volt shock that lasted five seconds

and caused Ryan to fall to the ground.

After Ryan fell, Officer Mee, Officer Callahan, and one

other officer sat on Ryan’s back. While the other officers

remained seated on Ryan’s back, Officer Mee fired his taser

a fourth time in probe mode.4 Officer Mee thereafter changed

the taser’s mode from "probe mode" to "stun mode" and, dur-

ing a period slightly exceeding one minute, delivered six addi-

tional taser shocks to Ryan, which each lasted between two

and four seconds.5

After Officer Mee’s tenth use of the taser on Ryan, the offi-

cers observed that Ryan appeared to be unconscious. Thereaf-

ter, an ambulance, which had been requested after Officer

Mee first used the taser, arrived at the residence. The respond-

ing paramedics found Ryan in a state of cardiac arrest, and

they were unable to revive him.

The parties gave conflicting accounts regarding Ryan’s

actions during Officer Mee’s use of his taser for the fourth

4

Officer Mee stated during his deposition that the fourth "probe mode"

use of the taser did not make sufficient contact with Ryan to deliver the

60,000-volt shock.

5

As confirmed by the taser’s internal computer records, Officer Mee

used his taser on Ryan as follows:

8 MEYERS v. BALTIMORE COUNTY, MARYLAND

through the tenth times (the seven additional taser shocks).

According to some of the officers, Ryan was actively resisting

the officers’ efforts to place him in handcuffs. These officers

testified that Ryan was able to regain control of the baseball

bat while he was on the ground, and tried to bite the officers

when he again lost control of the bat. These officers further

testified that Ryan stated loudly during the struggle, "I want

to die, I want to die," and "[j]ust kill me cause I’m going to

kill you."

Officer Gaedke, however, provided a different version of

the events that occurred after Ryan fell to the floor. She testi-

fied in her deposition that after Ryan fell, officers were sitting

on Ryan’s "[u]pper body, lower body, [and] middle body."

She further stated that during this time, instead of screaming

at the officers and attempting to bite them, Ryan said nothing

and was "[s]tiffening up and keeping his body rigid and keep-

ing his hands underneath of his body."

Billy’s testimony concerning the extent of Ryan’s resis-

tance also conflicted with the testimony provided by the male

officers. Billy testified that after Ryan fell to the floor, he

merely tried to move his legs while the officers sat on his

back.

B.

In the complaint filed against Baltimore County and Offi-

cers Mee, Romeo, and Gaedke (collectively, the defendants),

the plaintiffs raised a claim under 42 U.S.C. § 1983 alleging

excessive force in violation of the Fourth Amendment, as well

as several claims under Maryland law.6 The district court

entered an order bifurcating the case, reserving litigation of

6

The Maryland claims included causes of action under the Maryland

Survival Act, the Maryland Wrongful Death Act, Articles 24 and 26 of the

Constitution of Maryland, and the common law torts of negligence, gross

negligence, and negligent training and supervision.

MEYERS v. BALTIMORE COUNTY, MARYLAND 9

the claims against Baltimore County until after the claims

concerning the officers’ liability were resolved.

The defendants filed a motion for summary judgment, con-

tending that the officers were immune from suit under the

doctrine of qualified immunity. In granting the defendants’

motion, the district court concluded: (1) that the officers’ war-

rantless entry into the residence and their initial seizure of

Ryan were objectively reasonable because those actions were

supported by probable cause; (2) that Officer Mee’s first three

uses of his taser, during the period in which Ryan remained

standing, were objectively reasonable and did not constitute

the use of excessive force; and (3) that the evidence did not

support the need for delivering the seven additional taser

shocks, but that those acts did not violate clearly established

law.7 The plaintiffs timely filed a notice of appeal.

II.

A.

We review de novo the district court’s award of summary

7

In conducting its analysis, the district court did not consider separately

the plaintiffs’ federal and state law claims, stating that "[e]ach of the

[p]laintiffs’ claims rests on the existence of a single underlying wrong, the

use of excessive force to effect a seizure in violation of [Ryan’s] Fourth

Amendment rights." 814 F. Supp. 2d at 557. The plaintiffs do not argue

on appeal that the district court erred in construing their complaint in this

manner or in conducting a single analysis of their federal and state law

claims. Accordingly, our analysis focuses solely on whether the officers’

conduct violated Ryan’s Fourth Amendment rights. To the extent that the

doctrine of qualified immunity does not shield a state official from liabil-

ity for alleged violations of the Constitution of Maryland, see Okwa v.

Harper, 757 A.2d 118, 140 (Md. 2000), or that any of the claims arising

under Maryland law require a different analysis than the plaintiffs’ Section

1983 claim, those issues have not been raised by the plaintiffs, and,

accordingly, are waived for purposes of this appeal. See United States v.

Hudson, 673 F.3d 263, 268 (4th Cir. 2012) (issues not raised in opening

brief are waived).

10 MEYERS v. BALTIMORE COUNTY, MARYLAND

judgment. See Durham v. Horner, 690 F.3d 183, 188 (4th Cir.

2012). Summary judgment is appropriate only when there is

no genuine dispute regarding any material fact, and the mov-

ing party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d

289, 295 (4th Cir. 2010).

As stated above, we view the facts, and all reasonable infer-

ences that may be drawn from those facts, in the light most

favorable to the non-moving party. See Matsushita, 475 U.S.

at 587-88; Henry, 652 F.3d at 527. Thus, on appeal from an

award of qualified immunity, we generally "adopt[ ] . . . the

plaintiff’s version of the facts." Witt v. W. Va. State Police,

Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (citing Scott v.

Harris, 550 U.S. 372, 378 (2007)).

In conducting this review, "[i]t is not our job to weigh the

evidence." Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991).

Accordingly, disputed questions of fact must be resolved in

favor of the non-moving party at the summary judgment

stage. See Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.

1979) (holding that summary judgment is not appropriate if

the resolution of material issues depends upon credibility

determinations); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) ("[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate infer-

ences from the facts are jury functions, not those of a judge

. . . ruling on a motion for summary judgment"); Ray

Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d

294, 305 (4th Cir. 2012) (credibility determinations are not

part of summary judgment proceedings).

B.

The doctrine of qualified immunity "balances two impor-

tant interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield

MEYERS v. BALTIMORE COUNTY, MARYLAND 11

officials from harassment, distraction, and liability when they

perform their duties reasonably." Pearson v. Callahan, 555

U.S. 223, 231 (2009). The doctrine shields government offi-

cials from liability for civil damages, provided that their con-

duct does not violate clearly established statutory or

constitutional rights within the knowledge of a reasonable

person. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Because qualified immunity is an immunity from suit rather

than merely a defense to liability, such immunity effectively

is lost if a court erroneously permits a case to proceed to trial.

Pearson, 555 U.S. at 231 (citation omitted). The burden of

proof and persuasion with respect to a defense of qualified

immunity rests on the official asserting that defense. Wilson

v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003).

Our application of the qualified immunity doctrine is gov-

erned by the analysis set forth by the Supreme Court in Sau-

cier v. Katz, 533 U.S. 194 (2001), as modified by the Court’s

later decision in Pearson. The Court’s holding in Saucier

requires a two-step approach, under which a court first must

decide whether the facts alleged or shown, taken in the light

most favorable to the plaintiff, establish that the police offi-

cer’s actions violated a constitutional right. 533 U.S. at 201.

When a plaintiff has satisfied this initial step, a court next

must determine whether the right at issue was "clearly estab-

lished" at the time of the officer’s conduct. Id.; see also Pear-

son, 555 U.S. at 236 (modifying the Saucier approach such

that lower courts are no longer required to conduct the analy-

sis in the sequence set forth in Saucier).8 Thus, although a

plaintiff may prove that an officer has violated certain consti-

tutional rights, the officer nonetheless is entitled to qualified

8

Here, we exercise our discretion to analyze the two prongs of the quali-

fied immunity analysis in the order originally provided by the Court in

Saucier. See Pearson, 555 U.S. at 236 ("The judges of the district courts

and the courts of appeals should be permitted to exercise their sound dis-

cretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the par-

ticular case at hand.").

12 MEYERS v. BALTIMORE COUNTY, MARYLAND

immunity if a reasonable person in the officer’s position

"could have failed to appreciate that his conduct would violate

those rights." Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th

Cir. 1991) (citation and internal quotation marks omitted).

C.

1.

We first consider the plaintiffs’ argument that the officers

are not entitled to qualified immunity because their initial sei-

zure of Ryan was not supported by probable cause and, thus,

was unlawful. The district court rejected the plaintiffs’ argu-

ment, holding that the officers had ample reason to conclude

that Ryan had assaulted one or more members of his family.

We agree with the district court’s determination.

Police officers may arrest an individual in the absence of a

warrant when the totality of the circumstances establishes

probable cause that the individual has committed a felony.

Park v. Shiflett, 250 F.3d 843, 850 (4th Cir. 2001) (citing Illi-

nois v. Gates, 462 U.S. 213, 230–31 (1983)). Under Maryland

law, a police officer also may arrest an individual without a

warrant when there is probable cause that the individual has

assaulted a person with whom he resides, irrespective whether

the assaultive behavior constitutes a misdemeanor or a felony.

See Md. Code Ann. Crim. Proc. § 2-204 (domestic assault).

As the Supreme Court recognized in Gates, "probable

cause is a fluid concept—turning on the assessment of proba-

bilities in particular factual contexts—not readily, or even

usefully, reduced to a neat set of legal rules." 462 U.S. at 232.

In the present case, the facts established that when the officers

arrived at the residence, they knew that there had been an

altercation involving Ryan and three family members. The

officers also were aware from the 911 telephone call that

Ryan’s mother had reported an ongoing fight between her

sons, and that there had been screaming heard on the line dur-

MEYERS v. BALTIMORE COUNTY, MARYLAND 13

ing the call. Additionally, the officers knew that Mr. Meyers

had sustained a laceration on his face, that Mrs. Meyers had

fled the home, and that Ryan was inside the home pacing with

a baseball bat.

Under the totality of these circumstances, the officers had

probable cause to arrest Ryan for domestic assault under

Maryland law. See Md. Code Ann. Crim. Proc. § 2-204. As

provided by the Maryland domestic assault statute, police

may make an arrest without a warrant, irrespective whether

the crime is a misdemeanor or a felony, when there is proba-

ble cause that: (1) the individual assaulted a person with

whom he resides; (2) there is evidence of physical injury; and

(3) the individual may cause additional injury or property

damage. Id.; see also Torres v. State, 807 A.2d 780, 782 n.3

(Md. Ct. Spec. App. 2002) (discussing domestic assault as a

misdemeanor crime for which a police officer may make a

warrantless arrest). Here, the officers had probable cause to

believe that Ryan had assaulted at least one of his parents

with whom he resided, that Mr. Meyers had sustained a facial

laceration as a result of being assaulted by Ryan, and that

Ryan, armed with a baseball bat, could cause additional phys-

ical injury or property damage.

We disagree with the plaintiffs’ contention that it was

unreasonable for the officers to enter the home and seize

Ryan, rather than to request the assistance of the Depart-

ment’s Mobile Crisis Team (MCT), which often responds to

ongoing events involving mentally ill individuals. Among

other reasons, this argument fails because it is undisputed that

under Department policy, the MCT is not permitted to

respond to situations involving "[d]omestic violence with a

weapon" or "active violence," circumstances that were present

when the officers decided to enter the residence to arrest

Ryan.

Accordingly, we conclude that the officers’ entry into the

residence to arrest Ryan, with the key provided by Billy, did

14 MEYERS v. BALTIMORE COUNTY, MARYLAND

not violate Ryan’s Fourth Amendment rights. Because Officer

Romeo and Officer Gaedke were not responsible for the man-

ner in which Officer Mee used his taser, we conclude that the

district court did not err in holding that Officer Romeo and

Officer Gaedke are entitled to qualified immunity.

2.

We next consider the plaintiffs’ argument that Officer

Mee’s first three uses of his taser constituted unreasonable

and excessive force, in violation of the Fourth Amendment. In

relevant part, the Fourth Amendment prohibits police officers

from using force that is "excessive" or not "reasonable" in the

course of making an arrest. Graham v. Connor, 490 U.S. 386,

395 (1989). We determine whether an officer has used exces-

sive force to effect an arrest based on a standard of "objective

reasonableness," taking into account "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 attempting to evade arrest by flight." Id. at

396, 399.

We conclude that Officer Mee’s first three deployments of

his taser did not amount to an unreasonable or excessive use

of force. During the period that Officer Mee administered the

first three taser shocks, Ryan was acting erratically, was hold-

ing a baseball bat that he did not relinquish until after he

received the second shock, and was advancing toward the

officers until the third shock caused him to fall to the ground.

Under these circumstances, Ryan posed an immediate threat

to the officers’ safety, and was actively resisting arrest. See id.

As aptly stated by the district court, "Officer Mee was faced

with the task of subduing an armed, agitated, physically

imposing suspect in the confined space of a living room with-

out risking his own safety or that of his fellow officers." 814

F. Supp. 2d at 559. Accordingly, we conclude that Officer

Mee’s first three uses of the taser were objectively reasonable

and did not violate Ryan’s Fourth Amendment rights.

MEYERS v. BALTIMORE COUNTY, MARYLAND 15

3.

a.

We next address the plaintiffs’ argument that Officer Mee

is not entitled to qualified immunity because his further use

of the taser, administering the seven additional taser shocks,

was not objectively reasonable and violated Ryan’s clearly

established constitutional rights. We emphasize that our anal-

ysis is based on the plaintiffs’ version of the facts as drawn

primarily from the depositions of Ryan’s family members,

including Billy who stated that he was inside the residence

and directly observed Officer Mee’s conduct. Although a jury

ultimately may find that the officers’ version of the events is

more credible, we are not permitted to make such credibility

determinations when considering whether a police officer

properly was held immune from suit under the doctrine of

qualified immunity. See Anderson, 477 U.S. at 255; Ray

Commc’ns, 673 F.3d at 305.

Our conclusion that Officer Mee’s first three uses of the

taser were objectively reasonable does not resolve our inquiry

into the reasonableness of the seven additional taser shocks

that he administered, because "force justified at the beginning

of an encounter is not justified even seconds later if the justi-

fication for the initial force has been eliminated." Waterman

v. Batton, 393 F.3d 471, 481 (4th Cir. 2005). Here, the evi-

dence showed that the justification for Officer Mee’s first

three uses of his taser had been eliminated after Ryan relin-

quished the baseball bat and fell to the floor. At that point,

several officers sat on Ryan’s back, and Ryan only was able

to move his legs. Moreover, according to Officer Gaedke,

Ryan was silent and "stiffened" his body, keeping it rigid

while he was on the ground. Therefore, the above testimony

from Billy and Officer Gaedke indicated that, after Ryan fell

to the floor, he no longer was actively resisting arrest, and did

not pose a continuing threat to the officers’ safety. Cf. Gra-

16 MEYERS v. BALTIMORE COUNTY, MARYLAND

ham, 490 U.S. at 396. Nevertheless, Officer Mee continued to

use his taser until he had rendered Ryan unconscious.

The district court recognized that Officer Mee’s actions

implementing the seven additional taser shocks were inappro-

priate, concluding that "the Court cannot say as a matter of

law that Officer Mee’s actions were objectively reasonable."

814 F. Supp. 2d at 560. We agree but state the conclusion

affirmatively: It is an excessive and unreasonable use of force

for a police officer repeatedly to administer electrical shocks

with a taser on an individual who no longer is armed, has

been brought to the ground, has been restrained physically by

several other officers, and no longer is actively resisting

arrest. Because the plaintiffs’ evidence supports the inference

that such conduct occurred here, the plaintiffs have satisfied

their initial burden at the summary judgment stage of demon-

strating that Ryan’s Fourth Amendment rights were violated.

b.

The second step of the qualified immunity analysis requires

us to consider whether Officer Mee’s objectively unreason-

able conduct violated a constitutional right that was clearly

established at the time the conduct occurred. Saucier, 533

U.S. at 201. Despite his violation of Ryan’s constitutional

rights, Officer Mee would be entitled to qualified immunity

"if a reasonable person in [Officer Mee’s] position could have

failed to appreciate that his conduct would violate [Ryan’s]

rights." Torchinsky, 942 F.2d at 261 (citation and internal

quotation marks omitted).

The district court held that Officer Mee’s actions did not

violate a clearly established constitutional right. The court

concluded that there was an absence of precedent "offering

guidance as to the point at which continued tasings become

excessive when the suspect is actively resisting." 814 F. Supp.

2d at 561 (emphasis added). We disagree with the district

court’s conclusion, which was based on a false premise.

MEYERS v. BALTIMORE COUNTY, MARYLAND 17

Viewing the facts in the light most favorable to the plain-

tiffs, the evidence did not show that Ryan was actively resist-

ing arrest at the time the seven additional taser shocks were

administered. Instead, as stated above, the evidence showed

that after Officer Mee’s third use of the taser, Ryan fell to the

floor and did not continue to resist arrest actively at that time.

We repeatedly have held that it is not required that a right

violated already have been recognized by a court in a specific

context before such right may be held "clearly established"

for purposes of qualified immunity. See Buonocore v. Harris,

65 F.3d 347, 356–57 (4th Cir. 1995); Pritchett v. Alford, 973

F.2d 307, 314 (4th Cir. 1992); see also Hope v. Pelzer, 536

U.S. 730, 739 (2002) (rejecting proposition that qualified

immunity is inapplicable only if the very action in question

has previously been held unlawful); Robles v. Prince

George’s Cnty., 302 F.3d 262, 270 (4th Cir. 2002) (same);

Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (en banc)

(same). Thus, the absence of a judicial decision holding that

it is unlawful to use a taser repeatedly and unnecessarily

under similar circumstances does not prevent a court from

denying a qualified immunity defense. See Edwards v. City of

Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999); Kittoe, 337

F.3d at 403. As the Supreme Court has emphasized, "officials

can still be on notice that their conduct violates established

law even in novel factual circumstances." Hope, 536 U.S. at

741.

We also have stated in forthright terms that "officers using

unnecessary, gratuitous, and disproportionate force to seize a

secured, unarmed citizen, do not act in an objectively reason-

able manner and, thus, are not entitled to qualified immunity."

Bailey v. Kennedy, 349 F.3d 731, 744-45 (4th Cir. 2003)

(quoting Jones v. Buchanan, 325 F.3d 520, 531-32 (4th Cir.

2003)). The fact that the force used in the present case ema-

nated from a taser, rather than from a more traditional device,

is not dispositive. The use of any "unnecessary, gratuitous,

and disproportionate force," whether arising from a gun, a

18 MEYERS v. BALTIMORE COUNTY, MARYLAND

baton, a taser, or other weapon, precludes an officer from

receiving qualified immunity if the subject is unarmed and

secured. See Park, 250 F.3d at 852-53 (concluding that an

officer’s use of "pepper spray" to subdue an unarmed subject

was irresponsible and excessive when the subject was not a

threat to the officer or the public, and that the officer was not

entitled to qualified immunity); see also Orem v. Rephann,

523 F.3d 442, 449 (4th Cir. 2008) (concluding that use of a

taser to "punish or intimidate" a pretrial detainee is not objec-

tively reasonable and is contrary to clearly established law).

Here, Ryan was unarmed and effectively was secured with

several officers sitting on his back. In such circumstances, the

seven additional taser shocks administered by Officer Mee

were clearly "unnecessary, gratuitous, and disproportionate."

See Bailey, 349 F.3d at 744-45. Thus, based on the present

record, because Ryan did not pose a threat to the officers’

safety and was not actively resisting arrest, a reasonable offi-

cer in Officer Mee’s position would have understood that his

delivery of some, if not all, of the seven additional taser

shocks violated Ryan’s Fourth Amendment right to be free

from the use of excessive and unreasonable force. Accord-

ingly, we hold that the district court erred in concluding that

Officer Mee met his burden of proving that he was entitled to

qualified immunity.

III.

For these reasons, we affirm the district court’s judgment

granting qualified immunity to Officer Romeo and Officer

Gaedke, but reverse the district court’s judgment granting

qualified immunity to Officer Mee. We remand this matter to

the district court for further proceedings consistent with this

opinion.9

9

We do not address the extent to which Baltimore County may remain

subject to trial for the events leading to Ryan’s death. We leave for the

district court’s determination whether any claims asserted against the

County should be dismissed in light of our holding.

MEYERS v. BALTIMORE COUNTY, MARYLAND 19

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED