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The Eleventh Circuit Denies Qualified Immunity Even When an Officer Did Not Have Specific Warning That His Actions Were Unconstitutional

September 20, 2018

 

                While driving his truck down the interstate in Alabama, Bob Glasscox suddenly experienced an episode of diabetic shock.  The episode caused Glasscox to begin driving erratically at high speeds.  Witnesses contacted the police and David Moses from Argo City Police responded and began pursuit of Glasscox.  Glasscox’s vehicle finally came to rest in the median and Officer Moses quickly approached the truck and yelled at Glasscox to get out.  Glasscox had difficulty responding due to the episode and Officer Moses tased Glasscox four times in rapid succession.  Importantly, the incident was captured on Officer Moses’s body camera. 

 

                Glasscox sued Officer Moses and Argo City (the “City”) (collectively “Defendants”) under 42 U.S.C. § 1983 for excessive use of force in violation of the Fourth Amendment. Glasscox v. Argo, City of, 16-16804, 2018 WL 4346357 (11th Cir. 2018).  The Defendants moved to dismiss (which the court converted to a motion for summary judgment) on the basis of Officer Moses being entitled to qualified immunity and that Officer Moses did not violate Glasscox’s constitutional rights.  The district court concluded that Officer Moses violated Glasscox’s clearly established right to be free from the excessive use of force and the Defendants appealed. 

 

                On appeal, Officer Moses argued that his repeated use of the taser was reasonable due to the dangerous circumstances that he encountered when pursuing Glasscox.  In addition, when he gave Glasscox commands, Glasscox would not comply.  However, in viewing the body camera footage, the Eleventh Circuit found that even assuming that Officer Moses reasonably deployed his taser twice, a reasonable jury could find that the continued tasing after it was clear that Glasscox was attempting to comply, violated Glasscox’s Fourth Amendment right to be free from the excessive use of force.  In other words, the jury could conclude that any reasonable officer in Officer Moses’s position would have believed that continued taser shocks were unnecessary.

 

                After establishing that a constitutional violation occurred, the second step in the qualified immunity analysis is determining whether a reasonable officer in such circumstances would have had fair warning that repeatedly deploying his taser, when the suspect was no longer resisting and was attempting to comply with the officer’s commands, was unconstitutionally excessive.  To determine whether a right was clearly established, the Court evaluated whether it would be “sufficiently clear that every reasonable official would understand that what he is doing is unlawful.”  The Court could not point to any decision that had clearly established that an officer’s repeated use of a taser constituted excessive force under circumstances like those confronting Officer Moses.  However, prior case law made it clear to any reasonable officer that a police officer’s use of force on a “previously threatening” arrestee after the arrestee ceased any resistance was excessive.

 

                In light of the clearly established law, the Court held that no objectively reasonable officer in Officer Moses’s position could have thought it was lawful to use a taser repeatedly on an arrestee who was not resisting, even if that arrestee had previously offered resistance and was not yet restrained. Therefore, the Court affirmed the district court’s denial of the Defendants’ motion for summary judgment.  This case presents a problematic situation for officers who deal with a resistant arrestee who may appear to become compliant but who already resisted and still has capacity to inflict harm.

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