In Corbitt v. Vickers 929 F.3d 1304 (11th Cir. Ju. 10, 2019), a parent brought constitutional claims against a police officer after their child was shot while the officer was attempting to shoot their family dog. The Southern District of Georgia denied the officer’s motion to dismiss based on qualified immunity. The officer appealed and the Eleventh Circuit held that the child’s right to not be accidentally shot in the leg was not clearly established.
At the time of the incident, one adult and six minor children were in the parent’s yard while the parent was inside the home. Vickers and other officers entered the yard and, according to the complaint, demanded everyone, including the children, to get on the ground. An officer handcuffed that adult and placed a gun at his back. The children were outnumbered by officers.
According to the complaint, the children were lying on the ground obeying while Vickers discharged his firearm at the family dog twice, both missing the dog. The second bullet, however, hit the minor child in the back of his right knee while he lay on the ground.
The district court found that Vickers was not entitled to qualified immunity because the discharge of a gun was not required, because no one tried to subdue the dog before shooting, and because the minor child was only approximately eighteen inches from Vickers when he fired his service weapon. The district court also found that the minor child was “seized” for the purposes of the Fourth Amendment at the time of the shooting. Because, the district court reasoned, Vickers fired his weapon in continuation of his seizure of the minor, a “jury could find that Vickers intended to shoot the animal in order to maintain his control of the situation and keep [the minor] from escaping.”
As such, the court found that, in considering Vickers’s qualified immunity, the record could develop during discovery as to whether Vickers acted reasonably or whether the act was “without necessity or any immediate threat or cause.” In doing so, the district court denied Vickers’s motion to dismiss. Vickers appealed.
To overcome a qualified immunity defense a plaintiff must both (1) establish that the defendant (Vickers) violated a constitutional right and (2) that that right was clearly established. On appeal, the Eleventh Circuit found that the rights of the minor child to not be accidentally shot by Vickers while Vickers shot at the family dog was not clearly established under the Fourth Amendment. In doing so, the Eleventh Circuit reiterated that the general proposition that the use of excessive force is unconstitutional cannot lead to actual liability and that not every set of facts is so “obvious” to clearly establish the law for officers in the circuit.