AMY CORBITT, Individually and as Parent and Natural Guardian of SDC, a Minor, Plaintiff-Appellee,
MICHAEL VICKERS, Defendant-Appellant.
from the United States District Court for the Southern
District of Georgia D.C. Docket No. 5:16-cv-00051-LGW-RSB
WILSON, BRANCH, and ANDERSON, Circuit Judges.
ANDERSON, CIRCUIT JUDGE.
case involving an alleged use of excessive force,
Defendant-Appellant Michael Vickers ("Vickers")
asks this Court to reverse the district court's denial of
his motion to dismiss on grounds that he is entitled to
qualified immunity. In addition to hearing from the parties
at oral argument, we have carefully reviewed the briefs, the
record, and the relevant case law. Because Vickers's
actions did not violate any clearly established rights, we
conclude that he is entitled to qualified immunity and that
the district court should have granted his motion to dismiss.
case is before us in the posture of an appeal from the
district court's denial of Vickers's Fed.R.Civ.P.
12(b)(6) motion to dismiss. We set forth below the relevant
allegations of the plaintiffs' complaint. At all times
relevant to this appeal, Vickers was a deputy sheriff in
Coffee County, Georgia. On July 10, 2014, Vickers and other
officers "participated in an operation to apprehend a
criminal suspect, Christopher Barnett, whom [plaintiffs]
ha[d] never met." The operation spilled over onto
Plaintiff-Appellee Amy Corbitt's ("Corbitt")
property after Barnett "wandered into the area."
time of the incident, one adult (Damion Stewart) and six
minor children-including Corbitt's ten-year-old child SDC
and two other children under the age of three-were outside in
Corbitt's yard. Corbitt and two other minors were inside.
At some point after Vickers and the other officers entered
Corbitt's yard, the officers "demanded all persons
in the area, including the children, to get down on the
ground." An officer handcuffed Stewart and placed a gun
at his back. The children were outnumbered by the officers,
and plaintiffs alleged at least four of the children
(including SDC) "remained seized by deadly
"while the children were lying on the ground obeying
[Vickers's] orders . . . without necessity or any
immediate threat or cause, [Vickers] discharged his firearm
at the family pet named 'Bruce' twice." The
first shot missed, and Bruce (a dog) temporarily retreated
under Corbitt's home. No other efforts were made to
restrain or subdue the dog, and no one appeared threatened by
him. Eight or ten seconds after Vickers fired the first shot,
the dog reappeared and was "approaching his
owners," when Vickers fired a second shot at the dog.
This shot also missed the dog, but the bullet struck SDC in
the back of his right knee. At the time of the shot, SDC was
"readily viewable" and resting "approximately
eighteen inches from . . . Vickers, lying on the ground, face
down, pursuant to the orders of [Vickers]." Barnett (the
fleeing suspect) "was visibly unarmed and readily
compliant" with officers. According to the complaint,
"[a]t no time did SDC, or any other children . . .
present any threat or danger to provoke . . . Vickers to fire
two shots." Importantly, the parties do not dispute that
Vickers intended to shoot the dog and not SDC.
imaging confirmed a serious gunshot wound to SDC's right
knee. Bullet fragments remained in the wound for an extended
period of time after the shooting. SDC suffered severe pain
and mental trauma. He received ongoing care from an
individually and as SDC's parent and guardian, brought a
civil action against Vickers in his individual capacity
pursuant to 42 U.S.C. § 1983. The complaint alleged
deprivations of the right to be free from excessive force as
guaranteed by the Fourth and Fourteenth Amendments to the
United States Constitution. Corbitt asked the district court
to award special and compensatory damages totaling $2, 000,
000, together with unspecified punitive damages.
response, Vickers filed a motion to dismiss pursuant to Rule
12(b)(6). He asserted that he was entitled to qualified
immunity because case law had not staked out a "bright
line" indicating that the act of firing at the dog and
unintentionally shooting SDC was unlawful. In support of this
contention, Vickers pointed to the unpublished decision of
this Court in Speight v. Griggs, 620 Fed.Appx. 806
(11th Cir. 2015), which observed that "[i]n this
circuit, there is no clearly established right to be free
from the accidental application of force during arrest, even
if that force is deadly." Id. at 809.
district court found that Vickers was not entitled to
qualified immunity and denied his motion to dismiss. See
generally Corbitt v. Wooten, No. 5:16-cv-51, 2017 WL
6028640 (S.D. Ga. Dec. 5, 2017). The district court
highlighted several allegations from Corbitt's complaint,
including that no officer was required to discharge a gun;
that no one tried to restrain the dog; and that SDC was only
eighteen inches from Vickers when Vickers fired at the dog.
Id. at *1. The district court then found that SDC
was seized even before Vickers fired a shot. Id. at
the district court reasoned that this case involves an
"accidental shooting" and not an "accidental
firing" because, even if Vickers did not intend to shoot
SDC, he did intend to fire his gun at the dog. Id.
at *4 & n.4. It then relied on "a reasonable
inference from the allegations in the [c]omplaint, drawn in
[Corbitt's] favor . . . that Vickers fired his weapon at
the animal in order to keep control of SDC . . . [and]
continue [his] seizure." Id. at *4. In other
words, the district court thought "a jury could find
that Vickers intended to shoot the animal in order to
maintain his control of the situation and keep [SDC] from
district court then considered whether Vickers was entitled
to qualified immunity. It noted this Court's general
statement in Thornton v. City of Macon that
"[i]t is clearly established that the use of excessive
force in carrying out an arrest constitutes a violation of
the Fourth Amendment." Id. at *5 (citing
Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th
Cir. 1998)). Relying on this statement, the district court
then concluded that "Vickers is not entitled to
qualified immunity if he used excessive force in firing his
determining whether Vickers used excessive force, the
district court remarked that in some cases "no factually
particularized, preexisting case law [is] necessary for it to
be very obvious to every objectively reasonable officer
facing [the defendant's] situation that [his] conduct . .
. violated [the plaintiff's] right to be free of the
excessive use of force." Id. at *6 (alterations
in original) (quoting Vinyard v. Wilson, 311 F.3d
1340, 1355 (11th Cir. 2002)). It then emphasized that
"[t]he touchstone for reasonableness in animal shooting
cases is typically officer safety," before concluding
that Vickers may have acted unreasonably because the
complaint alleged he fired his gun "without necessity or
any immediate threat or cause" and that "no
allegations suggest that Vickers was unsafe in any way or
that Bruce [the dog] exhibited any signs of aggression."
Id. (citations and alterations omitted). The
district court acknowledged that the record could develop
differently following discovery-at which time Vickers might
raise the defense of qualified immunity again-but it
ultimately concluded that "[a]t this stage, the
complaint makes sufficient allegations to proceed."
Id. at *7. Vickers appealed to this Court, and we
now consider whether the district court erred when it denied
Vickers's motion to dismiss on grounds that he was not
then entitled to qualified immunity.
Arguments on Appeal.
appeal, Vickers argues the district court erred in denying
his motion to dismiss. He contends there is only a single act
at issue in this case: the firing of his gun with the intent
to strike a dog. He notes the lack of any cases finding
similar conduct to be unlawful, and emphasizes Supreme Court
precedent providing that a Fourth Amendment seizure occurs
"only when there is a governmental termination of
freedom of movement through means intentionally
applied." See Brower v. Cty. of Inyo, 489
U.S. 593, 597, 109 S.Ct. 1378, 1381 (1989).
also argues that this Court's published decision in
Vaughan v. Coxand our unpublished decisions in
Speight and Cooper v.
Rutherford compel the conclusion that there is no
clearly established right to be free from the accidental
application of force. He takes issue with the district
court's attempt to "fit the facts of this case into
the framework of Vaughan" because, to Vickers,
there is no plausible way to conclude from the pleadings that
his goal in shooting at the dog was to continue SDC's
"lawful temporary detention incidental to the arrest of
Barnett." He also argues the circuit split on the question
of whether the Fourth Amendment is ever violated by the
accidental discharge of a weapon is by itself enough to show
the law at issue here is not clearly established, before
pointing to two district court decisions from other
jurisdictions that found no constitutional violation on facts
somewhat similar to those presented here.
response, Corbitt agrees with the district court that SDC was
seized throughout the entire incident (even before Vickers
fired his gun at the dog). She argues that Vickers's act
of firing his gun at the dog violated SDC's Fourth
Amendment rights. She then argues this Court should apply the
objective reasonableness test from Graham v.
Connor and find that Vickers acted unreasonably.
She contends it is clearly established that the use of
excessive force in carrying out an arrest violates the Fourth
Amendment, and that Vickers used excessive force because the
complaint clearly indicates that it was not necessary to use
any force at all.
Qualified Immunity in Motion to Dismiss Posture.
"the defense of qualified immunity is typically
addressed at the summary judgment stage of a case, it may be
. . . raised and considered on a motion to dismiss."
St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002). Generally speaking, it is proper to grant a
motion to dismiss on qualified immunity grounds when the
"complaint fails to allege the violation of a clearly
established constitutional right." Id.; see
also Quiller v. Barclays Am./Credit, Inc., 727 F.2d
1067, 1069 (11th Cir. 1984), aff'd en banc 764
F.2d 1400 (11th Cir. 1985). This is a question of law that is
reviewed "de novo, accepting the facts alleged
in the complaint as true and drawing all reasonable
inferences in the plaintiff's favor." St.
George, 285 F.3d at 1337. When reviewing the denial of a
qualified immunity defense asserted in a motion to dismiss,
appellate review is "limited to the four corners of the
complaint." Id. "Once an officer has
raised the defense of qualified immunity, the burden of
persuasion on that issue is on the plaintiff."
Qualified Immunity Law.
qualified immunity defense shields "government officials
performing discretionary functions . . . 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). The 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). This allows officials to work
without fear of liability, protecting "all but the
plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 341, 106
S.Ct. 1092, 1096 (1986).
overcome a qualified immunity defense, the plaintiff must
make two showings. See Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1199-1200 (11th Cir. 2007). First,
she "must establish that the defendant violated a
constitutional right." Id. Second, she must
show the violated right was "clearly established."
Id. Although the lower federal courts were once
required to consider the first prong before the second, they
are now "permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the
circumstances in the particular case at hand."
Pearson, 555 U.S. at 236, 129 S.Ct. at 818.
right to be clearly established, "[t]he contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that
right." Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039 (1987). 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." Coffin v. Brandau, 642 F.3d 999, 1015
(11th Cir. 2011) (alteration in original) (citations
omitted). "This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of the pre-existing law the unlawfulness
must be apparent." Anderson, 483 U.S. at 640,
107 S.Ct. at 3039; see also Hope v. Pelzer, 536 U.S.
730, 736, 739, 122 S.Ct. 2508, 2513, 2515 (2002) (rejecting
this Court's earlier requirement that "federal law
by which the government official's conduct should be
evaluated must be preexisting, obvious and mandatory"
and not based on "abstractions" but instead only by
"materially similar" cases as too rigid a gloss on
qualified immunity law). Indeed, the "'salient
question' . . . is whether the state of the law gave the
defendants 'fair warning' that their alleged conduct
was unconstitutional." Vaughan v. Cox, 343 F.3d
1323, 1332 (11th Cir. 2003) (quoting Hope, 536 U.S.
at 741, 122 S.Ct. at 2516).
identifying factually similar cases may be difficult in the
excessive force context," Lee v. Ferraro, 284
F.3d 1188, 1198-99 (11th Cir. 2002), we may find fair warning
in the law without also finding a factually identical case.
In fact, this Court has since Hope identified three
different ways a plaintiff can show that the state of the law
gives officials fair warning of a clearly established right.
First, she can still "show that a materially similar
case has already been decided." Mercado v. City of
Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).
"This category consists of cases where judicial
precedents are tied to particularized facts." Loftus
v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012). In
determining whether a right is clearly established under this
prong, this Court looks to "judicial decisions of the
United States Supreme Court, the United States Court of
Appeals for the Eleventh Circuit, and the highest court of
the relevant state." Griffin Indus., 496 F.3d
at 1199 & n.6. Second, she can "also show that a
broader, clearly established principle should control the
novel facts" of a particular situation.
Mercado, 407 F.3d at 1159 (citing Hope, 536
U.S. at 741, 122 S.Ct. at 2516). "[T]he principle must
be established with obvious clarity by the case law so that
every objectively reasonable government official facing the
circumstances would know that the official's conduct did
violate federal law when the official acted."
Loftus, 690 F.3d at 1205 (alteration in original).
Put another way, "in the light of pre-existing law the
unlawfulness must be apparent." Id. Third, she
could show that her case "fits within the exception of
conduct which so obviously violates [the] constitution that
prior case law is unnecessary." Mercado, 407
F.3d at 1159. Under this final test, the qualified immunity
defense can be successfully overcome in an excessive force
case "only if the standards set forth in Graham
and our own case law inevitably lead every reasonable officer
in [the defendant's] position to conclude the force was
unlawful." Lee, 284 F.3d at 1199 (alteration in
original) (citation and internal quotation marks omitted).
Notwithstanding the availability of these three independent
showings, this Court has observed on several occasions that
"if case law, in factual terms, has not staked out a
bright line, qualified immunity almost always protects the
defendant." See, e.g., Oliver v.
Fiorino, 586 F.3d 898, 907 (11th Cir. 2009) (quoting
Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000)).
The Constitutional Right Allegedly Infringed.
these basic qualified immunity principles in mind, our §
1983 "analysis begins by identifying the specific
constitutional right allegedly infringed." Graham v.
Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870 (1989).
Two decisions provide relevant guidance in this regard.
First, the Supreme Court in Graham held that the
Fourth Amendment governs "a free citizen's claim
that law enforcement officials used excessive force in the
course of making an arrest, investigatory stop, or other
'seizure' of his person." Id. at 388,
109 S.Ct. at 1868-69. Second, "the Fourteenth Amendment
guards against the use of excessive force against arrestees
and pretrial detainees." J W ex rel. Tammy Williams
v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259 (11th
Cir. 2018). Consequently, it is a threshold question whether
SDC was "seized" at any point during his encounter
with Vickers. If SDC was already seized when Vickers fired at
the dog, or if the act of shooting SDC by itself constituted
a seizure, then this case is properly analyzed under Fourth
Amendment standards. If SDC was not already seized, and if
the act of shooting SDC by itself does not constitute a
seizure, then Fourteenth Amendment standards must be applied.
makes this case more difficult than many excessive force
cases is that SDC's role in the incident does not fit
neatly into any of the usual analytical categories. SDC was
not the intended target of an active arrest or investigatory
stop (in which case the Fourth Amendment clearly would
apply), nor was he an arrestee or pretrial detainee (in which
case the Fourteenth Amendment clearly would apply). Rather,
SDC was a ten-year-old child who happened to be playing in