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Corbitt v. Vickers

United States Court of Appeals, Eleventh Circuit

July 10, 2019

AMY CORBITT, Individually and as Parent and Natural Guardian of SDC, a Minor, Plaintiff-Appellee,
v.
MICHAEL VICKERS, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 5:16-cv-00051-LGW-RSB

          Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

          ANDERSON, CIRCUIT JUDGE.

         In this 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.

         I. BACKGROUND

         A. Factual Background.

         This 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'[1] 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."

         At the 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 firearms."

         Then, "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.

         Medical 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 orthopedic surgeon.

         B. Procedural Background.

         Corbitt, 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.

         In 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.

         The 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 *4.

         Next, 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 escaping." Id.

         The 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 weapon." Id.

         In 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.[2]

         C. Arguments on Appeal.

         On 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).

         Vickers also argues that this Court's published decision in Vaughan v. Cox[3]and our unpublished decisions in Speight[4] and Cooper v. Rutherford[5] 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[6] 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[7] from other jurisdictions that found no constitutional violation on facts somewhat similar to those presented here.

         In 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[8] 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.

         II. ANALYSIS

         A. Qualified Immunity in Motion to Dismiss Posture.

         Although "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." Id.

         B. Qualified Immunity Law.

         The 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."[9] 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).

         To 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.

         For a 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).

         "Because 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)).

         C. The Constitutional Right Allegedly Infringed.

         With 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.

         What 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 his ...


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