# Harris v. Hall

> District Court, N.D. Alabama · April 8, 2024

URL: https://www.frixlaw.com/law-library/cases/9992119

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** April 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9992119

## How later opinions describe it (automated extraction)

- affirming summary judgment on an excessive force claim where an officer tased a belligerent suspect who was handcuffed and being led to a patrol car

## Opinion text

U.S. DISTRICT.
N.D. OF AL
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
BETTY HARRIS, as Personal )
Representative of the Estate )
of Wallace Wilder, )
)
Plaintiff, 7:21-cv-00608-LSC
Vv. )
)
TODD HALL, et al, )
)
Defendants. )
MEMORANDUM OF OPINION
Plaintiff Betty Harris, as the Personal Representative of the Estate of Wallace
Wilder, brings this civil rights and wrongful death action against several law
enforcement officers and other allegedly responsible parties. Most of the defendants
have either settled or have been dismissed; only Plaintiff’s claims against Defendants
Michael Gilliam and Samuel Powell (“‘Defendants”) remain pending. Before the
Court are cross motions for summary judgment filed by Plaintiff and Defendants.
(Docs. 105, 107.) The motions are fully briefed and are ripe for review. (See docs.

105, 107, 112, 113, 117, 118.) For the reasons stated below, Plaintiff’s motion is due

to be DENIED, and Defendants’ motion is due to bb GRANTED.

Page 1 of 27

I. | BACKGROUND'?
On the morning of August 28, 2019, Wilder woke his neighbors by slamming
doors in his apartment “‘so hard that it rattled [his neighbors’ | bedroom wall.” (Doc.
105-23 at 2.) The neighbors described hearing Wilder “screaming about someone
breaking into his house and stealing his food.” (/d.) One of the neighbors claimed
she heard two voices coming from Wilder’s apartment through a shared wall, and

1 The facts set out in this Opinion are gleaned from the parties’ submissions of facts claimed
to be undisputed, their respective responses to those submissions, and the Court’s own
examination of the evidentiary record. These are the “facts” for summary judgment purposes
only. They may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17
F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence
supporting a party’s position. As such, review is limited to exhibits and specific portions of the
exhibits specifically cited by the parties. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1061
(11th Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts buried in a
massive record....”).
2 Subject to a “few qualifications,” Plaintiff concedes that Defendants’ statement of facts is
accurate. (Doc. 113 at 3.) As Defendants note, Plaintiff fails to support any objection she has to
Defendants’ statement of facts with record evidence. (See id. at 1-3.) Under this Court’s Uniform
Initial Order, Defendants’ statement of facts is thus deemed admitted. (See doc. 6 at 16-17 (“Any
statements of fact that are disputed by the non-moving party must be followed by a specific
reference to those portions of the evidentiary record upon which the dispute is based. All material
facts set forth in the statement required of the moving party will be deemed to be admitted for summary
judgment purposes unless controverted by the response of the party opposing summary judgment.”
(emphasis in original).) Accord Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“[M]ere
conclusions and unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.”) (citation omitted). Nevertheless, most of the facts material to the resolution
of the present motions are established by Sergeant Cory Patterson’s body camera footage, and in
considering Defendants’ motion this Court views the evidence in the light most favorable to
Plaintiff. Animal Legal Def: Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015);
but see Scott v. Harris, 550 U.S. 372, 380-81 (2007) (“The Court of Appeals ... should have viewed
the facts in the light depicted by the videotape.”’).

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that it sounded like Wilder was talking to another person. (Doc. 105-24.) Feeling
“nervous” and “threatened” by Wilder’s behavior, the neighbors called the police
to report the disturbance. (Docs. 105-23 at 2; 105-24.) Wilder also called the police
to report someone being at his apartment. (Doc. 105 4 11.)
At around 5:05 p.m., Sergeant Cory Patterson arrived at Wilder’s apartment
in response to a disturbance call. (/d. J 13.) After knocking on Wilder’s door and
announcing his presence, Patterson attempted to engage Wilder in conversation.
(Doc. 107-3 at 0:15-50.) He informed Wilder that he was just there to check on him;
Wilder responded that he was not going to open the door. (/d. at 1:19-29.) Over the

course of the next half hour, Patterson tried several times to get Wilder to come out
and talk, but each time, Wilder refused. (See zd.)
Between attempts to convince Wilder to come out, Patterson talked to some
neighbors, who expressed concern for Wilder’s recent behavior. (See zd. at 6:23-
18:25.) The neighbor who made the disturbance call told Patterson that Wilder had

not physically threatened the neighbor, but that Wilder had previously been
institutionalized after killing somebody with a hammer.’ (/d. at 10:25-48.) He said
that Wilder was “off his medicine,” and that his behavior had “gotten so bad” that
the neighbor was “concerned about [his] family.” (/d. at 8:52-9:13.) He expressed

3 Plaintiff explains that Wilder suffered from paranoid schizophrenia, and in 1988 he was
hospitalized after being acquitted of murder by reason of mental disease or defect. (Doc. 20 16.)
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his opinion to Patterson that “somebody has got to do something before something
happens that can’t be taken back.” (/d. at 9:40-46.)
At around 5:38 p.m., Gordo Chief of Police Johnny Stephenson arrived at the

scene and called for additional officers to come assist. (/d. at 32:55; doc. 105 16.)
Seven other law enforcement officers, including Powell and Gilliam, responded. (Ja.
q 18.) Stephenson and another officer told Powell that “there was a barricaded
subject” and that Wilder had reported a break-in that morning, leading Powell to
believe there was possibly another person in Wilder’s apartment. (Doc. 105-27 at 2.)
Gilliam was likewise told that “there was a barricaded subject and that there was
potentially another individual in the apartment.” (Doc. 105-27 at 2.)
Chief Stephenson, who was familiar with Wilder’s history of mental illness,
formed a plan to “convince [Wilder] to go to the hospital” and get help, as he had
done in the past. (Doc. 105 J 3, 17; doc. 107 2, 10.) That plan involved having
Powell distract Wilder at a side window while other officers attempted to forcibly
enter his apartment through the front door. (Doc. 105 J 19.) It also involved calling
an ambulance to transport Wilder to the hospital, which one of the officers did before
they attempted entry. (Doc. 107-3 at 47:30-36.)
At about 5:57 p.m., Chief Stephenson attempted to enter Wilder’s apartment
using a key provided by a maintenance man who worked at the apartment complex.

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(Id. at 22:20-27, 52:10.) After the key failed to unlock the door, Patterson kicked the
door open, saw Wilder, and said, “Oh, he’s got a knife, he’s got a knife, he’s got a
knife!” (Ud. at 52:12-18.) Wilder slammed the door shut. (/d.) Patterson kicked the
door open a second time and deployed his taser at Wilder. (/d. at 52:45-52.) The

taser missed, and Wilder shut his door again. (Doc. 105 {J 22-23.) Stephenson
opened the door a third time. (/d. 7 24.) One officer tried and failed to tase Wilder,
and another officer apparently tased himself while attempting to tase Wilder. (See
doc. 107-3 at 52:55-53:12.) Wilder closed the door once more. (/d. at 53:05.)
An officer opened Wilder’s door a fourth time and placed a bench in the
opening to prevent the door from closing. (Doc. 105 25.) Stephenson tried to
convince Wilder to come out, but he refused. (Doc. 107-3 at 54:00-10.) Another
officer ordered Wilder to drop his knife, to which he responded, “I ain’t dropping
shit.” (/d. at 54:16-20.) Stephenson deployed a taser at Wilder, this time making
contact. (Doc. 105 J 29.) Wilder fell backward. (/d. J 30.)
Several officers, including Powell, entered the apartment to subdue Wilder.
As they neared, Wilder stood up holding the knife. (Za. J 31.) The officers tried

to retreat, but two were blocked in by a table. (/d.) As Wilder advanced on those two
officers with the knife, they shot him. (/d. 7 33.) An autopsy report indicates Wilder
died that day from multiple gunshot wounds. (Doc. 105-18 at 1.)

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Gilliam did not enter the apartment until the shots were fired. (/d. 34.)
Neither Gilliam nor Powell discharged any weapon during this entire encounter. (Jd.
q 35.) Nevertheless, Plaintiff claims they are responsible for Wilder’s death.
II. STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Hzckson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine
dispute as to a material fact exists “if the nonmoving party has produced evidence
such that a reasonable factfinder could return a verdict in its favor.” Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.
Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge
should not weigh the evidence, but should determine whether there are any genuine
issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “view|ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal Legal

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Def: Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated
assertions alone are not enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory
allegations and “mere scintilla of evidence in support of the nonmoving party will

not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d

1207, 1219 (11th Cir. 2016) (per curzam) (quoting Young v. City of Palm Bay, Fla., 358
F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the
moving party has the burden of either negating an essential element of the
nonmoving party’s case or showing that there is no evidence to prove a fact necessary
to the nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d
1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Ill. DISCUSSION
Plaintiff alleges several constitutional violations under 42 U.S.C. § 1983 and
wrongful death claims under Alabama law. Although Plaintiff’s claims and theories
of liability are varied, they all are based on Defendants’ failure to intervene in the

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warrantless entry into Wilder’s home and his subsequent seizure by other officers.
Defendants insist they did not violate Wilder’s constitutional rights, and even if they
did, they are nonetheless entitled to qualified immunity from Plaintiff’s § 1983
claims. As to Plaintiff’s state-law claims, they assert state-agent immunity. This
Court first outlines the principles of qualified immunity, then applies those
principles to Plaintiff’s § 1983 claims, and closes by addressing Defendants’
immunity from the state-law claims.
A. Qualified immunity shields Powell and Gilliam from § 1983 liability
unless Plaintiff shows that they violated clearly established law.
Qualified immunity “gives government officials breathing room to make
reasonable but mistaken judgments.” Messerschmidt v. Millender, 565 U.S. 535, 546
(2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). It “allow[s]
government officials to carry out their discretionary duties without the fear of
personal liability or harassing litigation, protecting from suit all but the plainly
incompetent or one who is knowingly violating the federal law.” Brown v. City of
Huntsville, Ala., 608 F.3d 724, 733 (11th Cir. 2010) (quoting Lee v. Ferraro, 284 F.3d

1188, 1194 (11th Cir. 2002)). “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

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person would have known.’” Jd. (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346
(11th Cir. 2002)).4
To overcome a qualified immunity defense, a plaintiff must satisfy a two-part
test. Jd. at 734. First, “the facts, construed as they must be ... in the light most
favorable to the plaintiff,” must establish that the defendant violated a constitutional
right. Jd. Second, the plaintiff must show that the violated right was “clearly
established” when it was violated. Jd. “|['T his two-pronged analysis may be done in
whatever order is deemed most appropriate for the case.” Jd. (citing Pearson ».
Callahan, 555 U.S. 223, 129 (2009)).
A right was clearly established when it was violated if “the state of the law

gave the defendants fair warning that their alleged conduct was unconstitutional.”
Washington v. Rivera, 939 F.3d 1239, 1245 (11th Cir. 2019) (quoting Vaughan v. Cox,
343 F.3d 1323, 1332 (11th Cir. 2003)). “Fair warning comes in the form of [materially
similar] binding caselaw from the Supreme Court, the Eleventh Circuit, or the
highest court of the state ([Alabama], here) that makes it obvious to all reasonable

government actors, in the defendant’s place, that what he is doing violates a federal

4 To receive immunity, the government official ordinarily must first establish that “he was
acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.”
Lee, 284 F.3d at 1194 (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). But
here, Plaintiff does not dispute that Defendants were acting within the scope of their discretionary
authority at all times relevant to the complaint. (Docs. 113 at 6; 20 [J 8-9.)
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law.” Jones v. Fransen, 857 F.3d 843, 851-52 (11th Cir. 2017) (cleaned up) (citing
Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)). ““We do not
require a case directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12
(2015) (quoting al-Kzdd, 563 U.S. at 741).
The Supreme Court has repeatedly cautioned courts “not to define clearly
established law at a high level of generality.” Jd. “This is because officials are not
obligated to be creative or imaginative in drawing analogies from previously decided

cases, and an official’s awareness of the existence of an abstract right does not equate
to knowledge that his conduct infringes the right.” Corbitt v. Vickers, 929 F.3d 1304,
1311-12 (11th Cir. 2019) (cleaned up) (quoting Coffin v. Brandau, 642 F.3d 999, 1015
(11th Cir. 2011)). “Such specificity is especially important in the Fourth Amendment

context, where the Court has recognized that it is sometimes difficult for an officer

to determine how the relevant legal doctrine ... will apply to the factual situation the
officer confronts.” Mullenix, 577 U.S. at 12 (cleaned up) (quoting Brosseau ».
Haugen, 543 U.S. 194, 198 (2004) (per curzam)). “The relevant, dispositive inquiry
is whether it would be clear to a reasonable officer that the conduct was unlawful in
the situation he confronted.” Saucier □□ Katz, 533 U.S. 194, 194-95 (2001) (citation
omitted). “If the law did not put the officer on notice that his conduct would be

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clearly unlawful, summary judgment based on qualified immunity is appropriate.”
Ta.
B. Plaintiff’ s deprivation of life claim is not cognizable under the Fourteenth
Amendment (Count One).
In Count One, Plaintiff asserts a deprivation of life claim under § 1983 and the
due process clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV, § 1
(“[N]or shall any State deprive any person of life, liberty, or property, without due

process of law....”). This Count remains asserted against only Powell as this Court
previously granted a motion by Gilliam to dismiss this Count. (Doc. 67.) Powell

argues that he is entitled to summary judgment on this claim because it may only be
properly asserted under the Fourth Amendment. This Court agrees, and Plaintiff
acknowledges that this claim is duplicative of her Fourth Amendment claims. (See
doc. 113 at 5.)
When a plaintiff asserts an excessive force claim under § 1983, the claim must
“be judged by reference to the specific constitutional standard which governs that
right.” Graham »v. Connor, 490 U.S. 386, 394 (1989). “In most instances, that will be
either the Fourth Amendment’s prohibition against unreasonable seizures of the

person, or the Eighth Amendment’s ban on cruel and unusual punishments, which

are the two primary sources of constitutional protection against physically abusive
governmental conduct.” Jd. at 395. The Supreme Court has explicitly held that “al/
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claims that law enforcement officers have used excessive force—deadly or not—in
the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather
than under a ‘substantive due process’ approach.” Jd. (emphasis in original).
Accordingly, Powell is entitled to summary judgment on Count One.
C. Defendants are not liable for failing to intervene in Chief Stephenson’s
plan to enter Wilder’s home to conduct a welfare check (Count Five).
In Count Five, Plaintiff claims that Defendants violated Wilder’s right to be
free from unreasonable searches in failing to prevent the warrantless entry into
Wilder’s apartment. See U.S. CONST. amend. IV (“The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated....”). Defendants contend that exigent
circumstances justified the warrantless entry into Wilder’s apartment, and even if

not, they had no duty to thwart Chief Stephenson’s plan to enter the apartment.
Relevant authority supports both of Defendants’ contentions.

1. Exigent circumstances justified the entry into Wilders apartment.
The Fourth Amendment prohibits an officer’s warrantless entry into a
person’s home, except in certain circumstances. Roberts v. Spielman, 643 F.3d 899,
905 (11th Cir. 2011) (per curtam). One exception to the warrant requirement applies
where □ ‘exigent circumstances’ mandate immediate action.” Jd. (quoting United
Page 12 of 27

States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002)). The “exigent
circumstances” exception applies “where officers reasonably believe a person is in
danger.” Jd. In the context of a mental health welfare check, “the Fourth
Amendment requires the officer to have probable cause to believe the person is
dangerous either to himself or to others.” See zd. (citations omitted); see also Ingram
Kubik, 30 F.4th 1241, 1250 (11th Cir.), cert. dismissed, 142 S. Ct. 2855 (2022)
(requiring a “substantial chance” of “dangerous behavior”’). ‘Probable cause does

not require conclusive evidence and ‘is not a high bar.’” Washington v. Howard, 25
F.4th 891, 899 (11th Cir. 2022) (quoting D.C. v. Wesby, 583 U.S. 48, 57 (2018)).
The Eleventh Circuit has concluded that an officer does not violate the Fourth
Amendment in executing a warrantless entry for the purpose of conducting a welfare
check on a person suspected of suffering a mental health crisis. See Harrison □□
Davidson Hotel Co., LLC, 806 F. App’x 684 (11th Cir. 2020). The officers in
Harrison responded to a call for a wellness check at a hotel. Jd. at 685. When they
arrived, they were told by hotel staff that the plaintiff had been claiming he owned
the hotel and had been timing how long it took for room service orders to arrive. Jd.

at 685-86. One of the officers knocked on the plaintiff’s door, announced he was a
police officer, and asked the plaintiff to come speak with him. Instead of complying,
the plaintiff asked the officers to bring him a drink and to clean his room. Jd. at 686.

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A neighboring guest told the officers that he had heard screaming and glass breaking,
and that he did not feel safe in his room. /d. The officers decided to enter the room
“for the safety of [the plaintiff] and anyone else inside.” Jd. Based on the plaintiff’ □
erratic behavior, the court concluded that exigent circumstances justified the
officers’ entry into his room “because the officers reasonably believed his mental

state made him a danger to himself.” See zd. at 688.
In a case strikingly similar to this one, the Supreme Court found “no doubt
that the officers did not violate any federal right” when they entered the plaintiff’s
room without a warrant to conduct a welfare check. See City & Cnty. of San Francisco,
Calif. v. Sheehan, 575 U.S. 600, 612 (2015). There, officers responding to a call for a
welfare check went to the plaintiff’s room, knocked on her door, announced who
they were, and told her that they wanted to help her. Jd. at 604. When they entered
using a key, the plaintiff grabbed a knife and yelled, “I am going to kill you. I don’t
need help. Get out.” Jd. The officers retreated and called for backup. Jd. But because
the officers believed the situation required their immediate attention, they chose to

reenter instead of waiting for backup to arrive. Jd. at 605. While one officer pushed
the door open, the other officer used pepper spray to subdue the plaintiff. Jd. Despite
being pepper sprayed in the face, the plaintiff advanced on the officers and would not
drop her knife. /d. at 605-06. Once she closed the distance to within a few feet, the

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officers shot her multiple times. /d. at 606. The Court held unequivocally that the
officers’ conduct was not unconstitutional. /d. at 612.
Here, Sergeant Patterson responded to a disturbance call and, like the officers
in Harrison and Sheehan, knocked on Wilder’s door and announced his authority and
intent to help. After Wilder repeatedly refused to come out or talk, Patterson talked

to his neighbors. He learned that Wilder suffered from mental illness, was not taking
his medication, had been acting erratically, and had previously been institutionalized
after killing somebody. He also learned that there might be someone else in Wilder’s

apartment, and that neighbors were concerned for their safety.° ° Under these facts,
the officers reasonably could have concluded that there was a “substantial chance”
that Wilder would exhibit “dangerous behavior” toward himself or others. See
Ingram, 30 F.Ath at 1250. Thus, there is “no doubt that the officers did not violate

This Court briefly notes that the accuracy of this information is not relevant to the analysis,
absent any evidence that Patterson or the other officers should have doubted it. See Roberts, 643
F.3d at 905 (finding no constitutional violation in a mental health search and seizure where there
was “nothing in the record to suggest [the officer] should have doubted the information” given to
him); Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir. 2013) (“What counts ... is the information
known to the defendant officers or officials at the time of their conduct, not the facts known to the
plaintiff then or those known to a court later.’’).
6 Just before the officers attempted entry, Chief Stephenson can be heard on Patterson’s
body camera footage describing what sounds like a call that dispatch received earlier that day from
Wilder threatening to kill his neighbors. (See doc. 107-3 at 49:10-25.) But because this particular
evidence is somewhat ambiguous, and because Defendants failed to offer this fact as undisputed,
the Court does not consider it in determining the existence of probable cause.
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any federal right” when they entered Wilder’s apartment without a warrant to
conduct a welfare check. See Sheehan, 575 U.S. at 612.
To argue the contrary, Plaintiff relies on the testimony of her expert witness,
who opined that the entry into Wilder’s apartment was unlawful. This reliance is
misplaced. See Commodores Ent. Corp. v. McClary, 879 F.3d 1114, 1128-29 (11th Cir.
2018) (“[Qluestions of law are not subject to expert testimony.”); United States v.
Duldulao, 87 F 4th 1239, 1269 (11th Cir. 2023) (“Rule 704 bars a witness from giving
legal opinions (e.g., ‘the defendant broke the law’)....”).
But even if the existence of probable cause supporting the initial breach of
Wilder’s door were in doubt, there is no question that exigent circumstances justified
Powell’s and Gilliam’s entry. By the time Powell entered Wilder’s apartment, he
knew that (1) Wilder had a knife that he refused to drop; (2) Wilder was acting
belligerently and not obeying orders; (3) another person potentially was in the

apartment with Wilder; (4) an officer had been tased; and (5) Wilder had been tased.
By the time Gilliam entered, Wilder had been shot. Clearly, by then, Defendants
“reasonably believe[d] a person [was] in danger,” thus giving them probable cause

to enter lawfully without a warrant. Roberts, 643 F.3d at 905. Plaintiff appears to
concede this point. (See doc. 113 at 3-4 (“If one were to view the incident only from

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the time the officers broke into the apartment and were allegedly threatened by
Wilder, qualified immunity would protect [Defendants]....”).)
2. Powell and Gilliam had no duty to intervene in the warrantless entry.
Plaintiff claims that Defendants had a legal obligation to intervene and prevent
the other officers’ warrantless entry into Wilder’s apartment. This claim necessarily
fails in that, as explained above, the warrantless entry into Wilder’s apartment was
justified by exigent circumstances. But even assuming the initial entry into Wilder’s

apartment was unconstitutional, this claim still fails. Defendants had no duty to
intervene because they had no reason to believe that they were participating in an
unlawful search and seizure.
Plaintiff cites no cases holding that an officer violates the constitution by
failing to intervene in a warrantless entry.’ She does, however, cite binding authority
holding that an officer may violate the constitution by failing to intervene in an
unlawful arrest. See Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013).
Analogizing the rule pronounced in W2lkerson to the context of warrantless entries,

an officer may be liable for failing to intervene in a warrantless entry if (1) the officer
“sufficiently participated” in the entry; and (2) the officer “knew the [entry] lacked

any constitutional basis and yet participated” anyway. See zd.

7 This, of course, precludes Plaintiff’s ability to satisfy her burden to show that the relevant
law was clearly established, as necessary to overcome qualified immunity.
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Given their minimal roles— Powell only knocked on Wilder’s window while
Gilliam merely was present—this Court is doubtful that they “sufficiently
participated” in the warrantless entry. See zd.; Brown v. City of Huntsville, Ala., 608
F.3d 724, 737 (11th Cir. 2010) (“Merely being present with the arresting officers at
the scene is not enough, unless the plaintiff can show that the defendant officer was

part of the chain of command authorizing the arrest action.”). But even “assuming
that [Defendants] sufficiently participated in [the entry], [they] still lacked the
requisite information to put [them] on notice that an unlawful [entry] was occurring
or had occurred.” Wilkerson, 736 F.3d at 980. When they responded to Chief
Stephenson’s call for backup, Defendants knew only what they were told by other
officers, i.e., that there was a “barricaded subject” and possibly another person
inside the apartment. Defendants were “entitled to rely” on this information and to
in any gaps ... with reasonable inferences premised on [the other officers] acting
in aconstitutional manner and in good faith.” /d. They had no duty to investigate the
basis of Stephenson’s plan to execute the warrantless entry. Jd. (citing Jones ».
Cannon, 174 F.3d 1271, 1284-86 (11th Cir. 1999)).
Thus, because Plaintiff can point to no evidence which would have “raise[d]
any obvious concerns as to the existence of probable cause,” Defendants cannot be
held liable for failing to intervene in the warrantless entry. See zd.; cf. Hartsfield v.

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Lemacks, 50 F.3d 950, 956 (11th Cir. 1995), as amended (June 14, 1995) (affirming
summary judgment for officers where “nothing in the record indicate[d] that these
officers acted unreasonably in following [another officer’s] lead, or that they knew

or should have known that their conduct might result in a violation of the [plaintiffs’ |
Fourth Amendment rights”); Brent v. Ashley, 247 F.3d 1294, 1306 (11th Cir. 2001)
(“Each of these individuals acted at the order of a superior and the record reflects

no reason why any of them should question the validity of that order. We, therefore,
affirm the district court’s grant of qualified immunity....”); accord White v. Goforth,
No. 22-5409, 2023 WL 3546527, at *5 (6th Cir. May 18, 2023) (“[W]ithout
knowledge of the underlying constitutional violation, [the defendant officer] cannot
be liable for failing to stop it.”); Vela v. White, 703 F.2d 147, 152 (5th Cir. 1983) (per
curtam) (‘Under the circumstances of this case, it would not be fair to force [the
defendant officer] to either violate a direct order or else stop and interrogate [his
superior] as to the reasons for his order, at the risk of being held liable for damages
for an unlawful arrest.”).
This result makes sense both logically and practically. As then-District Judge
Brasher explained, there is a vast ocean of consequence between requiring an officer

to intervene in an excessive use of force and requiring an officer to investigate the
basis for another officer’s arrest—or, in this case, warrantless entry:

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It is one thing to require a police officer to stop his partner from hitting
someone with a baton. It is another to require that every officer on the
street actively inquire as to the constitutional merits and predicate of
each seizure by other officers, and then countermand seizures they
believe are unreasonable. It would effectively conscript every police
officer to play the role of internal affairs as well as peacekeeper.
Stallworth »v. Hurst, No. 2:18-CV-1005-ALB-SRW, 2019 WL 5070196, at *2 (M.D.
Ala. Oct. 8, 2019) (Brasher, J.).
Accordingly, Defendants are entitled to summary judgment on Count Five.
D. Defendants are not liable for failing to intervene in the other officers’ use
of force against Wilder (Counts Two and Three).
In Counts Two and Three, Plaintiff contends that law enforcement officers
used excessive force when they tased and shot Wilder. Because Defendants did not
themselves apply any force to Wilder, Plaintiff argues instead that they are liable for
failing to intervene. She appears to advance two different theories in support of this

argument. Both fail.
First, Plaintiff contends that, because the officers lacked a constitutional basis

to enter Wilder’s home, any use of force was necessarily excessive. This argument
fails outright under the very opinion that Plaintiff cites as authority. See Jackson ».
Sauls, 206 F.3d 1156 (11th Cir. 2000). Jackson confirms that “if a stop or arrest is
illegal, then there is no basis for any threat or any use of force,” and therefore any
use of force would be presumptively excessive. See zd. at 1171. But such a claim is
viable only as an unlawful arrest claim, not as an excessive force claim. Jd. (“Under
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this Circuit’s law, however, a claim that any force in an illegal stop or arrest is
excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive
force claim.”); Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1332 (11th Cir. 2006)
(concluding that the plaintiff’s excessive force claim “fail[ed] as a matter of law”
because it was “entirely derivative of, and [] subsumed within, the unlawful arrest
claim”). Moreover, even if this Court considered these claims discretely, they would
fail: as explained above, there was no unlawful entry.
Second, to the extent Plaintiff argues that—assuming the entry was lawful—
Defendants are liable for failing to intervene in the other officers’ use of allegedly
excessive force, her claims still fail. An officer can be held liable under § 1983 if he
“had the opportunity to intervene in [another officer’s] use of excessive force and
[yet] failed to do so.” Priester, 208 F.3d at 925. Here, Defendants argue that Plaintiff
fails to establish either that the force used was excessive under the circumstances or
that Defendants had the opportunity to intervene. This Court agrees.
Plaintiff offers no rebuttal to Defendants’ argument that they had no
opportunity to intervene in the other officers’ use of force. The Court agrees with
Defendants that there is no evidence to suggest they could have prevented Wilder
from being shot in response to his advancing with a knife on the officers pinned by a
table—Gilliam was not even in the room when the shots were fired. Cf Riley ».

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Newton, 94 F.3d 632, 635 (11th Cir. 1996). There is, however, some evidence that
Defendants could have prevented Wilder from being tased. Various officers made
several unsuccessful attempts to tase Wilder, the first of which occurred about one
minute and forty-five seconds before he was successfully tased. A reasonable jury
could conclude from this that Defendants could have anticipated and prevented the
successful tasing of Wilder. See Priester, 208 F.3d at 924-25 (reversing where the
district court granted qualified immunity based on evidence that the defendant
officer had no opportunity to intervene in a police dog attack that “lasted for only 5

or 10 seconds,” but where other evidence indicated that the attack might have lasted

as long as two minutes). But this finding is inconsequential here because the use of

tasers was not an excessive use of force under the circumstances. As such, there is

no basis to hold Defendants liable for failing to intervene. See Jackson, 206 F.3d at

1174 (“Since Pinckney is entitled to qualified immunity on his use of deadly force,
there is no derivative claim against Fields.”’).
“A determination that an officer used excessive force requires careful
attention to the facts and circumstances of each particular case while recognizing
that the right to make an arrest necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.” Ingram, 30 F.4th at 1251 (cleaned
up) (citing Graham, 490 U.S. at 396). The excessive force framework set forth in

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Graham, which asks whether the degree of force used was reasonable under the
circumstances, applies to mental health seizures “even though they do not involve a
criminal arrest.” See zd. (cleaned up) (citing Mercado v. City of Orlando, 407 F.3d

1152, 1157-58 (11th Cir. 2005)). The Eleventh Circuit has consistently held that “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.” Smith v.
LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (quoting Zvojinovich v. Barner, 525 F.3d

1059, 1073 (11th Cir. 2008)). This was such a situation. Cf Zzvojinovich, 525 F.3d at

1071, 1073 (affirming summary judgment on an excessive force claim where an officer
tased a belligerent suspect who was handcuffed and being led to a patrol car).
Rather than rebut Defendants’ assertion that each use of force on Wilder was
justified in the moment of its use, Plaintiff maintains that any use of force against
Wilder was excessive because it could have been avoided had the officers simply left
him alone. (See doc. 113 at 7-9.) Plaintiff again relies on the opinions of experts to
reach this conclusion, and again that reliance is misplaced. The Supreme Court has
held that “so long as a reasonable officer could have believed that his conduct was
justified, a plaintiff cannot avoid summary judgment by simply producing an expert’s
report that an officer’s conduct leading up to a deadly confrontation was imprudent,
inappropriate, or even reckless.” Sheehan, 575 U.S. at 616-17 (cleaned up) (citation

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omitted). Thus, ‘“‘even if [Powell] and [Gilliam] misjudged the situation, [Plaintiff]
cannot establish a Fourth Amendment violation based merely on bad tactics that
result in a deadly confrontation that could have been avoided.” Jd. at 615 (citation
and quotation marks omitted); Garczynski v. Bradshaw, 573 F.3d 1158, 1167 (11th Cir.
2009) (“Our task is not to evaluate what the officers could or should have done in
hindsight.’’).
Accordingly, Defendants are entitled to summary judgment on Counts Two
and Three.
E. Plaintiff fails to show that clearly established law gave Defendants fair
warning that their conduct was unlawful (Counts Two, Three, and Five).
Even if Defendants violated Wilder’s constitutional rights, they are
nonetheless entitled to summary judgment unless Plaintiff shows they violated
clearly established law. She makes no such showing.
Plaintiff cites no existing precedent placing the constitutional questions before
this Court “beyond debate.” Mullenzx, 577 U.S. at 12. Instead, she plainly concedes
that the question of Defendants’ liability ‘“‘is certainly debatable.” (Doc. 113 at 8.)
And although Plaintiff cites opinions arguably supporting her claims in the abstract,
she offers no materially similar cases giving Defendants “fair warning that their
alleged conduct was unconstitutional.” Washington, 939 F.3d at 1245. Especially in
the context of Fourth Amendment claims, this is insufficient to meet her burden to
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overcome Defendants’ entitlement to qualified immunity. See Priester, 208 F.3d at

927 (“In the context of Fourth Amendment excessive force claims, we have noted
that generally no bright line exists for identifying when force is excessive; we have
therefore concluded that unless a controlling and materially similar case declares the
official’s conduct unconstitutional, a defendant is usually entitled to qualified
immunity.”). Rather than show the governing law to be clearly established, much of
the authority Plaintiff cites refutes her claims instead.
Accordingly, Defendants are entitled to summary judgment on Counts Two,
Three, and Five.
F. State-agent immunity shields Defendants from Plaintiff's state-law
claims (Counts Six and Seven).
Counts Six and Seven allege state-law wrongful death claims premised on the

same theories of allegedly unconstitutional acts and omissions that this Court has
rejected. For the same reasons that Plaintiff’s § 1983 claims fail, so too her state-law
claims fail.? Alternatively, Defendants are entitled to state-agent immunity.

8 The Court notes that this may not be true in every case. But Defendants argue
convincingly—citing relevant facts and applicable law—that it is true here. And Plaintiff fails to
address these arguments in her response. Federal courts frequently treat a plaintiff’s failure to
respond to arguments supporting the dismissal of a claim as an abandonment of that claim. See,
Whitehurst v. Harris, No. 6:14-CV-01602-LSC, 2015 WL 71780, at *7 (N.D. Ala. Jan. 6, 2015)
(“Refusing to acknowledge a contested claim in a response brief is a ground for dismissal.” (citing
Coal. for the Abolition of Maryuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1325-26 (11th Cir.
2000) (noting that an appellant’s “failure to brief and argue [an] issue during the proceedings
before the district court is grounds for finding the issue abandoned”))); Hamilton v. Southland
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Under Alabama law, law enforcement officers are immune from tort liability
arising from discretionary acts performed in the line of duty. Moore v. Crocker, 852
So. 2d 89, 90 (Ala. 2002). State-agent immunity does not apply, however, where an
officer “acts willfully, maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law.” /d. at 91 (emphasis
omitted) (quoting Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). The plaintiff
bears the burden of showing that one of these exceptions applies. Ex parte Est. of
Reynolds, 946 So. 2d 450, 452 (Ala. 2006). Here, Plaintiff does not even attempt to
show that one of these exceptions applies. (See generally doc. 113.) Thus, Defendants

are immune from her state-law claims. See zd.
Accordingly, Defendants are entitled to summary judgment on Counts Six and
Seven.
IV. CONCLUSION
For the reasons discussed above, Defendants’ motion for summary judgment
is due to be GRANTED and Plaintiff’s motion for summary judgment is due to be
DENIED. The Court will enter an Order consistent with this Opinion.
DONE ORDERED ON APRIL 8, 2024.

Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and
cite authorities in support of an issue waives it.” (citing Singh v. U.S. Att’y Gen., 561 F.3d 1275,
1278 (11th Cir.2009) (per curiam))).

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L. SCOTT Ce
UNITED STATES DIS¥RICT JUDGE
215647

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9992119. Public record. Not legal advice.