Curtis Baker v. City of Madison, Alabama

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10732

____________________

CURTIS BAKER,

Plaintiff-Appellant,

versus

CITY OF MADISON, ALABAMA,

DANIEL NUNEZ,

DION HOSE,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 5:21-cv-00382-LCB

____________________

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2 Opinion of the Court 22-10732

Before JILL PRYOR, GRANT, and HULL, Circuit Judges.

HULL, Circuit Judge:

In this 42 U.S.C. § 1983 action, plaintiff Curtis Baker alleged

(1) Officer Daniel Nunez used excessive force when Officer Nunez

tased him at the scene of an automobile wreck, (2) Officer Dion

Hose failed to intervene to prevent Officer Nunez’s excessive force,

and (3) the City of Madison, Alabama admitted the officers’ actions

were the result of its municipal policy.

Relying on body camera footage, defendants Officer Nunez,

Officer Hose, and the City moved to dismiss. The district court

considered the body camera footage and granted their motions to

dismiss.

On appeal, Baker argues the district court erred by

(1) considering the officers’ body camera footage when ruling on

the defendants’ motions to dismiss without converting them into

summary judgment motions, (2) granting qualified immunity to

Officer Nunez, (3) dismissing Baker’s failure-to-intervene claim

against Officer Hose, and (4) dismissing his municipal liability claim

against the City.

After careful review of the record and the briefs, and with

the benefit of oral argument, we conclude that the district court

properly considered the body camera footage, correctly ruled that

Officer Nunez did not violate a constitutional right and thus Officer

Hose had no duty to intervene, and accurately determined that

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Baker’s claim against the City failed as a matter of law. Therefore,

we affirm the dismissal of Baker’s complaint.

I. BACKGROUND

A. Allegations in the Complaint

In his pro se complaint, Baker alleged the following. Baker

has epilepsy and sometimes has seizures. Consequently,

emergency medical personnel in the City know him and know

about his condition.

On March 16, 2019, Baker and his friend were in a car

together when they got in a “minor accident.” Paramedics arrived

on the scene after the accident happened. By the time paramedics

arrived, Baker was having a seizure.

Officers Nunez and Hose arrived shortly thereafter. Baker

was still having a seizure. Paramedics and Baker’s friend told the

police “over and over again” that Baker had suffered a seizure and

that he was still in the throes of that seizure. Officers Nunez and

Hose “told Baker to get on a gurney and go to the hospital.” Baker

declined and asked to speak to his mother.

Baker’s friend advised Officers Nunez and Hose that Baker’s

seizure would likely pass in a few moments and Baker could not

fully understand the police. Paramedics also told Officers Nunez

and Hose that Baker could not fully understand the police.

Nonetheless, Officer Nunez tased Baker “multiple times” while

attempting “to make Baker get on the gurney to go to the hospital.”

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Baker alleged that he (1) was not combative with the police,

(2) simply did not get on the gurney, (3) was not in danger from

traffic, and (4) was not endangering anyone.

Later, Baker asked the City to investigate and reprimand the

officers. In response, Baker received a letter from the City, advising

him that the officers’ actions were consistent with municipal

policy.

B. Body Camera Footage

As the district court emphasized, the body camera footage

from Officers Nunez and Hose tells a different story. Importantly,

the footage contains both audio and video, is clear and easy to

follow, and shows all the relevant conduct. Here is what the

footage shows.

Around noon, Officer Nunez arrived on the scene after

Baker, while driving, had rear-ended the vehicle in front of him. As

Officer Nunez approached Baker’s vehicle, (1) a person who had

been in Baker’s car was on the phone with an unidentified person

and said he “d[id]n’t know if [Baker] had a seizure or what, but he

crossed the lane of traffic and rear-ended somebody”; (2) a

paramedic was attending to Baker, who was still in the driver’s seat

of his vehicle; and (3) other paramedics were bringing a stretcher

over to the driver’s side of Baker’s vehicle.

Officer Nunez walked to the back of Baker’s vehicle and

wrote down the license plate number.

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While Officer Nunez remained at the back of Baker’s

vehicle, the paramedics were able to get Baker out of his vehicle.

Over the next minute, a paramedic repeatedly asked—at least

thirteen times—for Baker to sit down on the stretcher. Baker

remained standing outside his vehicle and would not sit down on

the stretcher.

That paramedic also asked Baker to produce his driver’s

license. Baker did not respond to this request, prompting the

paramedic to explain to Baker that if he could not respond to

questions, he would have to be taken to the hospital.

Officer Nunez approached and said, “Hey, Curtis man.

Have a seat, man.” When Baker tried to push past a paramedic

who was blocking the driver’s side door of Baker’s vehicle, Officer

Nunez moved the stretcher aside to get closer to Baker. Officer

Nunez told Baker to “relax” and explained that the paramedics

were trying to help Baker.

For the next two minutes, Officer Nunez asked Baker to sit

on the stretcher at least ten times, and the paramedics asked Baker

to do the same at least nine more times. Baker continued to stand

outside his vehicle and did not sit down on the stretcher that was

next to the vehicle.

During this interaction, both Officer Nunez and a paramedic

asked Baker to produce his driver’s license. Baker put his hands in

his pockets, but instead of a driver’s license, Baker pulled out a

lighter and tried to smoke a broken cigarette butt. Officer Nunez

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told Baker he could smoke a cigarette after he had a seat on the

stretcher.

While Baker fiddled with the broken cigarette, Officer

Nunez asked one of the paramedics if Baker was going to the

hospital. The paramedic told Officer Nunez that there was

“something definitely wrong with [Baker],” and the paramedic

wondered if Baker was (1) under the influence, (2) a diabetic, or

(3) having a seizure. The paramedic added that he “highly

doubt[ed]” it was a seizure. The paramedic also stated that they

would check his blood sugar now.

Because Baker had ignored repeated requests to sit on the

stretcher, the paramedics then asked Baker to lean against a

concrete barrier on the road or his vehicle. Baker got closer to his

vehicle but did not lean against it. Baker asked, “what’s the

problem?” Officer Nunez responded that Baker had just been in an

accident, and the paramedics were trying to make sure Baker was

okay.

One of the paramedics prepared the device to check Baker’s

blood sugar and then said to Baker, “let me borrow your finger for

just a second.” Baker immediately turned away from that

paramedic.

Officer Nunez grabbed Baker’s arm and turned Baker back

around to face him. Baker replied, “get off me, man.” Baker then

said, “where my phone at” and dug through his pockets with both

hands, looking for his phone.

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Over the next two minutes, Baker tried to get back into his

vehicle, despite just having had the rear-end automobile accident

and despite the paramedics telling him to sit on the stretcher.

Baker first headed toward the open driver’s door of the

vehicle. Officer Nunez put his arm out to block Baker. Officer

Nunez told Baker (1) to let the paramedics check him out first and

(2) Officer Nunez would “call [Baker’s] phone afterwards.”

Baker again headed toward the open driver’s door of his

vehicle to get in the vehicle. Officer Nunez again grabbed Baker’s

arm, telling him “no.” Baker pulled his arm away and said he was

trying to “get in [his] motherfucking car” and told Officer Nunez

to “move.”

Officer Nunez tried to stop Baker from getting back in his

vehicle, grabbing his arm. But Baker, becoming more agitated,

broke free again and told Officer Nunez to “chill” and “get the fuck

off [him].” Baker moved toward Officer Nunez, stating that Officer

Nunez would “be in jail somewhere for fucking with [him].”

At this time, Officer Nunez backed away, drew his taser, and

pointed it at Baker (but Officer Nunez did not fire it). Officer

Nunez told Baker to “chill” and to “step back.” Officer Nunez held

his left hand out toward Baker, who pushed it away. Officer Nunez

reported on his radio that “the suspect was being combative.”

Next, Baker (1) turned away from Officer Nunez, (2) walked

again toward the open driver’s door, (3) pushed past one

paramedic who tried to stop him, and (4) sat down sideways in the

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driver’s seat with his feet still on the road. Officer Nunez put his

taser back in the holster, grabbed Baker’s left arm, and attempted

to remove Baker from the vehicle by pulling on Baker’s left arm.

Baker called Officer Nunez a “bitch” and resisted being removed

from the vehicle. As Baker came out of the vehicle, he reached for

Officer Nunez and moved toward him. 1

Officer Nunez then stepped back, drew his taser again, and

fired the taser, hitting Baker in the stomach. Officer Nunez’s body

camera footage shows that from approximately 12:06:36 to

12:06:48, Baker (1) fought the taser’s charge, (2) moved back

toward the driver’s seat of his vehicle, (3) pulled off his sweatshirt,

and (4) told Officer Nunez to “chill out.”

Officer Nunez removed his taser’s cartridge, loaded a new

one, and again pointed the taser at Baker. When Officer Nunez

threatened to deploy the taser again, Baker said, “Damn, that shit

hurt my boy.”

After firing his taser the one time, Officer Nunez told Baker

at least sixteen times to turn around. Baker repeatedly did not turn

around, continued to resist Officer Nunez’s commands, and once

again tried to get in his vehicle.

1 The defendants characterize this action as a shove.It may have been a shove,

but Officer Nunez’s body camera footage does not clearly depict that. As

explained more thoroughly below, see infra Section III.C, we construe all

ambiguities in the footage in favor of Baker at the motion-to-dismiss stage.

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More than two minutes after Officer Nunez had tased Baker,

Officer Hose arrived on the scene. When Officer Hose approached

Baker, Baker said, “Hey, Mr. Officer. Can y’all get this man? He

just shot me in my stomach.”

Officer Hose engaged Baker (who was still resisting Officer

Nunez) and, with help from a third officer, subdued Baker and

placed him in handcuffs.

At several points, Baker asked the officers to call his mother.

Eventually, Baker’s mother came to the scene. After extended

discussion and the writing of reports, the officers allowed Baker to

leave the scene with his mother.

C. Procedural History

In March 2021, Baker filed his pro se § 1983 complaint. Baker

sued (1) Officer Nunez for excessive force in violation of the Fourth

and Fourteenth Amendments, (2) Officer Hose for failure to

intervene in Officer Nunez’s allegedly unconstitutional use of

force, and (3) the City for municipal liability because the officers’

acts were the result of the City’s unconstitutional policy.

Baker’s complaint referenced a “video recording” of the

incident several times, stating that “[u]pon information and belief,

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it is averred that the video recording is a display of what

happened.” 2

The defendants each moved to dismiss under Federal Rule

of Civil Procedure 12(b)(6). In addition, Officer Hose filed the

video footage from the body cameras of Officers Nunez and Hose.

Baker, now represented by counsel, responded to the motions to

dismiss.

On February 2, 2022, the district court held a telephonic

hearing on the motions to dismiss. During the hearing, Baker’s

counsel argued that the defendants’ motions to dismiss did not

really raise an “Iqbal or Twombly issue” because they relied on the

body camera footage, which was “outside the record.” Baker’s

counsel argued that under the circumstances, the district court

should allow Baker “very limited discovery” so he could “put[] that

video evidence in context.”

On February 8, 2022, the district court granted the

defendants’ motions to dismiss for failure to state a claim and

dismissed Baker’s claims with prejudice. In doing so, the district

court considered the body camera footage, which it concluded told

2 The pro se complaint also alleged that the defendants refused to provide

Baker with the video. However, later when Officer Hose filed the footage

with the district court, he provided notice that he would serve the footage on

Baker via United States Postal Service Priority Mail. According to the tracking

information, Baker received the thumb drive containing the footage at 2:06

p.m. on April 20, 2021. On appeal, Baker does not dispute that he received the

footage from the defendants.

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“a different story” from the allegations in Baker’s complaint.

Relying on McDowell v. Gonzalez, 820 F. App’x 989 (11th Cir.

2020) (unpublished), the district court concluded it was proper to

consider the body camera footage because it met the requirements

of the incorporation-by-reference doctrine.

The district court dismissed Baker’s failure-to-intervene

claim against Officer Hose because the footage showed Officer

Hose did not arrive on the scene until two minutes after Officer

Nunez tased Baker.

The district court dismissed the municipal liability claim

against the City because Baker had not responded to the City’s

argument that the claim failed to satisfy the pleading standards of

Federal Rule of Civil Procedure 8(a) and thus Baker had abandoned

the claim. Alternatively, the district court concluded Baker, who

“alleged only a single instance of officer conduct to support his

claim,” had failed to plausibly plead either an actionable policy or

custom or prior ratification by the City’s policymakers.

The district court dismissed Baker’s excessive force claim

against Officer Nunez, concluding that Officer Nunez was entitled

to qualified immunity. To begin with, the district court

determined that Baker had not shown Officer Nunez’s use of force

violated a clearly established right. Alternatively, the district court

concluded that the body camera footage established that Officer

Nunez’s use of force was reasonable given the circumstances he

faced, including Baker’s “aggressive and non-compliant behavior”

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and active resistance to Officer Nunez’s “efforts to prevent him

from getting in his car.”

Baker timely appealed.

II. STANDARD OF REVIEW

We review de novo the district court’s grant of a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim. McGroarty v. Swearingen, 977 F.3d 1302, 1306

(11th Cir. 2020). We also review de novo a district court’s decision

to grant the defense of qualified immunity on a motion to dismiss.

Davis v. Carter, 555 F.3d 979, 981 (11th Cir. 2009).

We “may affirm on any basis in the record, regardless of

whether the [d]istrict [c]ourt actually relied upon that basis in

dismissing the plaintiff’s claim.” Henley v. Payne, 945 F.3d 1320,

1333 (11th Cir. 2019).

III. CONSIDERATION OF BODY CAMERA FOOTAGE AT

THE MOTION-TO-DISMISS STAGE

On appeal, Baker argues as a threshold matter that the

district court improperly considered the officers’ body camera

footage without first converting the defendants’ motions to dismiss

into summary judgment motions and permitting Baker to conduct

limited discovery. We address that threshold issue first.

A. General Principles

Generally, when considering a motion to dismiss, the

district court must limit its consideration to the pleadings and any

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exhibits attached to it. Grossman v. Nationsbank, N.A., 225 F.3d

1228, 1231 (11th Cir. 2000). If the parties present, and the court

considers, evidence outside the pleadings, the motion to dismiss

generally must be converted into a motion for summary judgment.

Fed. R. Civ. P. 12(d); Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.

1984).

There are two exceptions to this conversion rule: (1) the

incorporation-by-reference doctrine and (2) judicial notice.

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322,

127 S. Ct. 2499, 2509 (2007) (“[C]ourts must consider the complaint

in its entirety, as well as other sources courts ordinarily examine

when ruling on Rule 12(b)(6) motions to dismiss, in particular,

documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.”). Both

exceptions permit district courts to consider materials outside a

complaint at the motion-to-dismiss stage. Because only the

incorporation-by-reference doctrine is at issue here, we need not

address judicial notice.

Under the incorporation-by-reference doctrine, a court may

consider evidence attached to a motion to dismiss without

converting the motion into one for summary judgment if (1) “the

plaintiff refers to certain documents in the complaint,” (2) those

documents are “central to the plaintiff’s claim,” and (3) the

documents’ contents are undisputed. Horsley v. Feldt, 304 F.3d

1125, 1134 (11th Cir. 2002); Brooks v. Blue Cross & Blue Shield of

Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Evidence is

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“undisputed” in this context if its authenticity is unchallenged.

Horsley, 304 F.3d at 1134.

Traditionally, we have applied the incorporation-by-

reference doctrine to various types of documentary evidence. See,

e.g., Hi-Tech Pharm., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189

(11th Cir. 2018) (marketing label); Maxcess, Inc. v. Lucent Techs.,

Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (purchase agreement);

Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225–26 (11th Cir. 2002)

(book); Horsley, 304 F.3d at 1134–35 (news article). The question

in this case is whether the incorporation-by-reference doctrine also

applies to the body camera footage.

B. Application of the Incorporation-by-Reference Doctrine

Here, the requirements of the incorporation-by-reference

doctrine are easily satisfied. First, Baker referenced the body

camera footage in his complaint several times. At one point, the

complaint even alleged that “[u]pon information and belief, it is

averred that the video recording is a display of what happened.”

Further, the body camera footage was filed concurrently with

Officer Hose’s motion to dismiss. See Day v. Taylor, 400 F.3d 1272,

1276 (11th Cir. 2005) (explaining that “a document need not be

physically attached”).

Second, the body camera footage depicts the events that are

central to Baker’s claims. The footage shows all the relevant

conduct and is particularly clear here because (1) the incident took

place in broad daylight, so the area depicted in the footage is

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well-lit, (2) the footage presents both visual and audio depictions of

the events that transpired, and (3) for the most part, the viewer has

a good angle of the events with no visual obstructions.

Third, the body camera footage is undisputed because Baker

does not challenge the authenticity of the footage. See Horsley,

304 F.3d at 1134. There are no allegations or indications that the

footage has been altered in any way, nor any contention that what

the footage depicts differs from what actually happened.

Because the requirements of the incorporation-by-reference

doctrine are met, the district court properly considered the body

camera footage from Officers Hose and Nunez when ruling on the

motions to dismiss.

C. Evaluating the Contents of Body Camera Footage

Before proceeding to the merits of Baker’s claims, we

address Baker’s other objection to the consideration of the footage

at the motion-to-dismiss stage. Baker argues that the footage is

subjective and open to interpretation. 3

We agree that, at times, videos do not paint the entire

picture and may contain ambiguities that are subject to

3 Significantly, this argument does not pertain to whether the district court

properly incorporated by reference the body camera footage into the

complaint because with the incorporation-by-reference doctrine,

“undisputed” means that the authenticity is not challenged, Horsley, 304 F.3d

at 1134, not that the incorporated evidence is free from any disagreement over

the meaning of its content.

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interpretation. There can be many reasons for that. Perhaps the

video was shot from a bad angle, and thus the viewer cannot see

all of the events as they unfold. Or perhaps the video contains a

visual representation of what happened but does not contain

crucial audio. When that is true, courts must construe all

ambiguities in the video footage in favor of the plaintiff, as they

must, at this stage, construe all ambiguities in the written pleadings

in the plaintiff’s favor. See Speaker v. U.S. Dep’t of Health & Hum.

Servs., 623 F.3d 1371, 1379 (11th Cir. 2010).

But where a video is clear and obviously contradicts the

plaintiff’s alleged facts, we accept the video’s depiction instead of

the complaint’s account, see Pourmoghani-Esfahani v. Gee, 625

F.3d 1313, 1315 (11th Cir. 2021), and view the facts in the light

depicted by the video, see Scott v. Harris, 550 U.S. 372, 381,

127 S. Ct. 1769, 1776 (2007). After all, courts are not required to

rely on “visible fiction.” Scott, 550 U.S. at 380–81, 127 S. Ct. at 1776.

In sum, while reviewing the district court’s ruling on the

defendants’ motions to dismiss, we have credited, as we must,

Baker’s factual allegations where no obviously contradictory video

evidence is available. But the footage plainly contradicts Baker’s

alleged version of events, leading us to view most of the facts as

depicted by the video. Cf. Pourmoghani-Esfahani, 625 F.3d at 1315

(explaining that a video may not “obviously contradict[]” a

plaintiff’s version of the facts because the video “fails to convey

spoken words or tone” or “fails to provide an unobstructed view of

the events”). That said, we turn to qualified immunity generally

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and then specifically to whether Officer Nunez violated Baker’s

constitutional rights.

IV. QUALIFIED IMMUNITY

Under the doctrine of qualified immunity, “government

officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).

Qualified immunity balances two important public interests:

“the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.

Ct. 808, 815 (2009).

When a government official raises the “defense of qualified

immunity, we first consider whether the defendant government

official has proved that he was acting within the scope of his

discretionary authority when the alleged wrongful act occurred.”

Gonzalez v. Lee Cnty. Hous. Auth., 161 F.3d 1290, 1294–95 (11th

Cir. 1998) (alteration and quotation marks omitted). “Once the

defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that qualified

immunity is not appropriate.” Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002).

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“To overcome a qualified immunity defense, the plaintiff

must make two showings.” Christmas v. Harris Cnty., 51 F.4th

1348, 1354 (11th Cir. 2022) (quotation marks omitted). “First, the

plaintiff must establish that the defendant violated a constitutional

right.” Id. (emphasis and quotation marks omitted). “Second, the

plaintiff must show that the violation was clearly established.” Id.

(emphasis and quotation marks omitted). “Both elements must be

satisfied for an official to lose qualified immunity.” Grider v. City

of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010). We may analyze

these two elements in whatever order is most appropriate for the

case. Pearson, 555 U.S. at 236, 129 S. Ct. at 818.

V. OFFICER NUNEZ’S USE OF FORCE

Baker claims Officer Nunez used excessive force against him

when Officer Nunez tased him in violation of the Fourth

Amendment. Because no one disputes that Officer Nunez was

acting within the scope of his discretionary authority when he tased

Baker, we first outline the applicable Fourth Amendment

principles and then address whether Baker’s complaint and the

incorporated body camera footage established a constitutional

violation.

A. Fourth Amendment Principles

The Fourth Amendment provides a “right of the people to

be secure in their persons . . . against unreasonable . . . seizures.”

U.S. Const. amend. IV. The Fourth Amendment’s freedom from

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unreasonable seizures includes the right to be free from excessive

force. Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009).

In excessive force cases, the first qualified immunity

inquiry—i.e., whether a plaintiff’s constitutional rights were

violated—is governed by the Fourth Amendment’s objective

reasonableness standard. Hadley v. Gutierrez, 526 F.3d 1324, 1329

(11th Cir. 2008). “Under that standard, we judge the officer’s use

of force ‘on a case-by-case basis from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.’” Johnson v. City of Miami Beach, 18 F.4th 1267, 1272

(11th Cir. 2021) (quoting Brown v. City of Huntsville, 608 F.3d 724,

738 (11th Cir. 2010)).

To determine whether the force was objectively reasonable,

courts examine the totality of the circumstances, “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 [the suspect] is actively resisting arrest or attempting to

evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396,

109 S. Ct. 1865, 1872 (1989). Other considerations are the need for

the application of force, the relationship between the need and the

amount of force used, the extent of the injury inflicted,

and whether the force was applied in good faith or maliciously and

sadistically. Hadley, 526 F.3d at 1329.

“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

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evolving—about the amount of force that is necessary in a

particular situation.” Graham, 490 U.S. at 396–97, 109 S. Ct. at

1872.

Ultimately, “[a]n officer’s use of force is excessive under the

Fourth Amendment if the use of force was objectively

unreasonable in light of the facts and circumstances confronting

the officer.” Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir.

2011) (alteration adopted) (quotation marks omitted).

B. No Constitutional Violation by Officer Nunez

The body camera footage shows that as Officer Nunez was

investigating the automobile accident (1) Baker repeatedly ignored

instructions from Officer Nunez and the paramedics to sit down on

the stretcher, (2) Baker failed to provide Officer Nunez with his

driver’s license when requested, instead attempting to smoke a

broken cigarette, (3) Baker ignored an instruction from one of the

paramedics to lean against a concrete barrier on the road or against

his vehicle, (4) Baker cursed at Officer Nunez, (5) Baker broke free

from Officer Nunez’s grip, and (6) Baker got back into the driver’s

seat of his vehicle despite Officer Nunez’s commands not to do so.

The circumstances confronting Officer Nunez thus included

that Baker had just rear-ended someone, was not following the

paramedics’ or Officer Nunez’s commands, and instead attempted

three times to go back to his vehicle, even successfully reentering

it once. Under these circumstances, a reasonable officer on the

scene would perceive that Baker, at best, was not safe to drive his

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vehicle, or, at worst, might try to flee using his vehicle (which itself

could be used as a deadly weapon), thereby endangering Officer

Nunez, the paramedics, and nearby motorists because of Baker’s

apparent state of disorientation.

The body camera footage further shows that Officer Nunez

tried to remove Baker from the car verbally and physically. But

when faced with Baker’s physical resistance, Officer Nunez used

his taser (a nondeadly use of force) once in dart-mode to try to

obtain Baker’s compliance. 4

“Although being struck by a taser gun is an unpleasant

experience, the amount of force [Officer Nunez] used—a single use

of the taser gun causing a one-time shocking—was reasonably

proportionate to the need for force and did not inflict any serious

injury.” See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.

2004). Indeed, the body camera footage shows that Baker was not

incapacitated by the taser: Baker fought the taser’s charge, moved

toward the driver’s seat of his vehicle again, pulled off his

sweatshirt, and told Officer Nunez to “chill out.” “The single use

4 In dart-mode, the taser:

uses compressed nitrogen to propel a pair of “probes”—

aluminum darts tipped with stainless steel barbs connected to

the [taser] by insulated wires—toward the target at a rate of

over 160 feet per second. Upon striking a person, the [taser]

delivers a 1200 volt, low ampere electrical charge through the

wires and probes and into [the person’s] muscles.

Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010) (footnote omitted).

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22 Opinion of the Court 22-10732

of the taser gun may well have prevented a physical struggle and

serious harm to either” Baker or Officer Nunez. See id.; see also

Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (“[W]here a

suspect appears hostile, belligerent, and uncooperative, use of a

taser might be preferable to a physical struggle causing serious

harm to the suspect or officer.” (quotation marks omitted)).

Baker argues Helm v. Rainbow City, 989 F.3d 1265 (11th Cir.

2021), controls the outcome here. We disagree. The Helm facts

are easily and materially distinguishable from our facts. In Helm,

a seventeen-year-old girl, who was suffering a grand mal seizure,

was tased three times while four or five officers held her down. 989

F.3d at 1269–70 & n.1. The girl was not resisting or combative, and

the officers did not dispute that the teenage girl presented no threat

to them and committed no crime. Id. at 1270, 1274. Unlike the

teenage girl in Helm, Baker was unrestrained, combative, and

noncompliant with repeated police commands when he was tased.

We believe the facts here are more like Draper v. Reynolds.

In that case, a police officer pulled over the plaintiff, who was

driving a tractor trailer truck, “because [the truck’s] tag light was

not appropriately illuminated under Georgia law.” 369 F.3d at

1272. During the ensuing traffic stop, the plaintiff “acted in a

confrontational and agitated manner, paced back and forth, and

repeatedly yelled at [the officer].” Id. at 1276–77. When the

plaintiff failed to comply with the officer’s fifth request to produce

certain documents, the officer tased him. Id. at 1273. We held that

the use of the taser “was reasonably proportionate to the difficult,

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22-10732 Opinion of the Court 23

tense[,] and uncertain situation that [the officer] faced in this traffic

stop[] and did not constitute excessive force.” Id. at 1278.

In light of our holding in Draper, Officer Nunez’s use of the

taser was justified because of (1) Baker’s repeated failure to comply

with Officer Nunez’s commands, (2) Baker’s unsafe driving that

had just caused an automobile accident, (3) Baker’s repeated efforts

to get back in the vehicle, (4) Baker’s physical resistance to Officer

Nunez’s attempts to remove him from the vehicle, and (5) the

tense, uncertain, and rapidly evolving series of events. What

started as a routine incident response escalated. Officer Nunez

“was not required to wait and hope for the best” before making the

split-second decision to tase Baker. Jean-Baptiste v. Gutierrez, 627

F.3d 816, 821 (11th Cir. 2010) (alteration adopted) (quotation marks

omitted).

Based on the totality of the circumstances, we conclude that

Officer Nunez’s single use of a taser in dart-mode was objectively

reasonable and did not constitute excessive force. See, e.g.,

Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008) (“[I]n

a difficult, tense[,] and uncertain situation[,] the use of a taser gun

to subdue a suspect who has repeatedly ignored police instructions

and continues to act belligerently toward police is not excessive

force.” (quotation marks omitted)).

Because we conclude Officer Nunez did not violate a

constitutional right, we need not reach the other qualified

immunity question. Accordingly, we affirm the district court’s

grant of qualified immunity to Officer Nunez.

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24 Opinion of the Court 22-10732

VI. FAILURE TO INTERVENE

Baker sued Officer Hose for failure to intervene. “[A]n

officer can be liable for failing to intervene when another officer

uses excessive force.” Priester v. City of Riviera Beach, 208 F.3d

919, 924 (11th Cir. 2000). Specifically, “an officer who is present at

the scene and who fails to take reasonable steps to protect the

victim of another officer’s use of excessive force[] can be held liable

for his nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340,

1341 (11th Cir. 2007) (quotation marks omitted).

Baker’s failure-to-intervene claim fails for two reasons. First,

because Officer Nunez’s use of the taser did not constitute

excessive force, see supra Section V.B, Officer Hose had no

obligation to intervene. See Crenshaw v. Lister, 556 F.3d 1283,

1294 (11th Cir. 2009) (explaining that there is “no attendant

obligation to intervene” if the other officer’s force is not excessive).

Second, even assuming Officer Nunez’s use of the taser was

excessive, Officer Hose did not witness Officer Nunez’s use of the

taser and thus did not have the ability to intervene to prevent that

use of force. The body camera footage shows that Officer Hose

arrived at the scene more than two minutes after Officer Nunez

fired his taser. That alone is fatal to Baker’s claim. See Priester, 208

F.3d at 924 (explaining that liability for failure to intervene “only

arises when the officer is in a position to intervene and fails to do

so”).

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For these reasons, we affirm the district court’s dismissal of

Baker’s failure-to-intervene claim against Officer Hose.

VII. MUNICIPIAL LIABLITY

Baker’s claim against the City is based on the City’s alleged

determination that Officers Nunez and Hose acted “consistent

with [m]unicipal policy.” The Supreme Court’s Monell decision

authorizes lawsuits directly against municipalities where “the

action that is alleged to be unconstitutional implements or executes

a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.” Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035–36 (1978).

A municipality may be held liable for the actions of its law

enforcement officers only when the officers’ execution of official

policy (or custom) is the moving force of a constitutional violation.

Id. at 694, 98 S. Ct. at 2037–38. Thus, to establish municipal

liability, a plaintiff must show that (1) his constitutional rights were

violated, (2) the municipality had a policy (or custom) that

constituted deliberate indifference to that constitutional right, and

(3) the municipal policy (or custom) caused the violation.

McDowell v. Brown, 392 F.3d 1283, 1289–90 (11th Cir. 2004).

Here, because there was no underlying constitutional

violation, Baker’s municipal liability claim against the City fails as

a matter of law. See Knight ex rel. Kerr v. Miami-Dade Cnty.,

856 F.3d 795, 821 (11th Cir. 2017) (“There can be no policy-based

liability or supervisory liability when there is no underlying

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26 Opinion of the Court 22-10732

constitutional violation.”); see also City of Los Angeles v. Heller,

475 U.S. 796, 799, 106 S. Ct. 1571, 1573 (1986) (“[None] of our cases

authorize[] the award of damages against a municipal corporation

based on the actions of one of its officers when in fact the jury has

concluded that the officer inflicted no constitutional harm. If a

person has suffered no constitutional injury at the hands of the

individual police officer, the fact that the departmental regulations

might have authorized the use of constitutionally excessive force is

quite beside the point.” (emphasis omitted)).

We therefore affirm the district court’s dismissal of the

municipal liability claim on this basis. 5

VIII. CONCLUSION

We conclude that the district court properly considered the

body camera footage from Officers Nunez and Hose when ruling

on the defendants’ motions to dismiss. We affirm the district

court’s grant of the defendants’ motions to dismiss.

5 We also reject Baker’s argument that he should have been allowed to amend

his complaint before the district court dismissed it with prejudice. “A district

court is not required to grant a plaintiff leave to amend his complaint sua

sponte when the plaintiff, who is represented by counsel, never filed a motion

to amend nor requested leave to amend before the district court.” Wagner v.

Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).

Although Baker filed his complaint pro se, Baker was represented by counsel

(1) while he opposed the defendants’ motions to dismiss, (2) at the district

court’s hearing on the motions to dismiss, and (3) when the dismissal

occurred. Yet Baker’s counsel never sought to amend Baker’s complaint

before the district court.

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AFFIRMED.