Amy Corbitt v. Michael Vickers ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15566
________________________
D.C. Docket No. 5:16-cv-00051-LGW-RSB
AMY CORBITT, Individually and as Parent
and Natural Guardian of SDC, a Minor,
Plaintiff-Appellee,
versus
MICHAEL VICKERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(July 10, 2019)
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
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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.”
1
Four other plaintiffs collectively sought $2,000,000 in damages (plus punitive
damages), but their claims have been withdrawn or resolved and are not at issue in this appeal.
2
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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
3
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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 F. App’x 806 (11th
Cir. 2015), which observed that “[i]n this circuit, there is no clearly established
4
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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
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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
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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 Speight4 and Cooper v. Rutherford 5 compel the
conclusion that there is no clearly established right to be free from the accidental
2
To the extent it turns on a question of law, a denial of qualified immunity at the motion
to dismiss stage is an immediately appealable interlocutory order. Behrens v. Pelletier, 516 U.S.
299, 308, 116 S. Ct. 834, 839–40 (1996). This is true even if the district court “reserved ruling
on a defendant’s claim to immunity” until a later stage of the litigation because the “immunity is
a right not to be subjected to litigation beyond the point at which immunity is asserted.” Howe v.
City of Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017). Indeed, the “driving force behind
creation of qualified immunity doctrine was a desire to ensure that insubstantial claims against
government officials [will] be resolved prior to discovery.” Pearson v. Callahan, 555 U.S. 223,
232–33, 129 S. Ct. 808, 815 (2009) (alteration in original) (internal quotation marks omitted)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2, 107 S. Ct. 3034, 3039 n.2 (1987)).
3
343 F.3d 1323 (11th Cir. 2003). See also discussion infra, Part II.C.
4
620 F. App’x 806.
5
503 F. App’x 672 (11th Cir. 2012).
7
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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
6
Compare Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir. 1987) (refusing to apply
reasonableness standard to accidental shooting), with Pleasant v. Zamieski, 895 F.2d 272, 276–
77 (6th Cir. 1990) (examining reasonableness even though shooting was accidental). In addition
to the cases cited by Vickers, compare Schultz v. Braga, 455 F.3d 470, 479–483 (4th Cir. 2006)
(focusing primarily on officer’s lack on intent to shoot bystander in rejecting Fourth Amendment
claim), with Roach v. City of Fredericktown, 882 F.2d 294, 296–97 (8th Cir. 1989) (rejecting
Fourth Amendment excessive force claim brought by passengers of oncoming car injured as a
result of high speed police chase but only after determining that officer’s use of high speed chase
was reasonable under the circumstances).
7
Brandon v. Vill. of Maywood, 157 F. Supp. 2d 917, 924–25 (N.D. Ill. 2001); Dahm v.
City of Miamisburg, No. C-3-95-207, 1997 WL 1764770, at *9 (S.D. Ohio 1997).
8
490 U.S. 386, 109 S. Ct. 1865 (1989).
8
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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.
9
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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
9
There is no question in this case that Vickers was acting in his discretionary capacity as
a deputy sheriff when the challenged shooting occurred.
10
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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
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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
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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
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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 own yard when it became an arrest scene by virtue of circumstances beyond
his control. SDC is best described as an innocent bystander.
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Reasonably construing the allegations in the complaint in Corbitt’s favor,
Vickers ordered SDC and the other children to the ground and held them there at
gunpoint. An adult in the yard with SDC and the other children was placed in
handcuffs. Other armed officers were present, and Vickers eventually discharged
his weapon twice. The second shot accidentally hit SDC. We conclude that SDC
was already “seized” when Vickers fired at the dog because “in view of all of the
circumstances surrounding the incident, a reasonable person10 would have believed
that he was not free to leave.” See United States v. Mendenhall, 446 U.S. 544,
554, 100 S. Ct. 1870, 1877 (1980). And even though the complaint does not allege
Vickers applied any physical force against SDC until Vickers’s second shot struck
his knee, there was without question an initial “show of authority” to which SDC
clearly yielded when he lay face down on the ground pursuant to Vickers’s orders.
Cf. California v. Hodari D., 499 U.S. 621, 626–29, 111 S. Ct. 1547, 1550–52
(1991) (finding that fleeing suspect was not seized until he was tackled because he
did not yield to initial pursuit by officers).
SDC’s status as an innocent bystander is not inconsistent with our
conclusion that he was seized by Vickers before any shots were fired. In making
this observation, we are mindful “that the Fourth Amendment governs ‘seizures’ of
10
Cf. Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (finding seizure where “no
reasonable child would have believed that he was free to leave”); Jones v. Hunt, 410 F.3d 1221,
1226 (10th Cir. 2005) (viewing case “through the eyes of a reasonable sixteen-year-old”).
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the person which do not eventuate in a trip to the station house and prosecution for
crime—‘arrests’ in traditional terminology,” and that “[i]t must be recognized that
whenever a police officer accosts an individual and restrains his freedom to walk
away, he has ‘seized’ that person.” Michigan v. Summers, 452 U.S. 692, 696 n.5,
101 S. Ct. 2587, 2591 n.5 (1981) (quoting Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct.
1868, 1877 (1968)).
This general principle applies with equal force in cases involving innocent
bystanders located at the scene of an active arrest. In a case involving the
execution of an anticipatory search warrant, this Court concluded that “officers
were authorized to exercise ‘unquestioned command of the situation’ by placing all
the occupants of the Premises on the ground for several minutes while securing the
home and ensuring there was no danger to the officers or the public.” Croom v.
Balkwill, 645 F.3d 1240, 1253 (11th Cir. 2011) (quoting Muehler v. Mena, 544
U.S. 93, 99, 125 S. Ct. 1465, 1470 (2005)). This was true even with respect to an
innocent bystander (the homeowner’s mother Patsy Croom) who was not involved
in any of the criminal activity in which her son was allegedly participating. After
observing that Croom “was seized in the non-curtilage front yard,” the Court also
noted that the “officers’ authority to detain Croom flowed not from the warrant,
but rather from the Reasonableness Clause of the Fourth Amendment.” Id. at
1248–49 (emphasis added). It then expressly found that there was no Fourth
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Amendment violation because the officers had used only de minimis force in
“pushing Croom to the ground from her squatting position and holding her there
with a foot (or knee) in the back for up to ten minutes.” Id. at 1252–53.
We note that at least two other circuits have recognized that even innocent
bystanders who are temporarily detained have been subjected to a seizure for
purposes of the Fourth Amendment. See Bletz v. Gribble, 641 F.3d 743, 755 (6th
Cir. 2011) (noting that “even absent particularized reasonable suspicion, innocent
bystanders may be temporarily detained where necessary to secure the scene of a
valid search or arrest and ensure the safety of officers and others” and concluding
that a reasonable jury could find that hour-long detention of innocent bystander
following a deadly shooting violated the Fourth Amendment); United States v.
Maddox, 388 F.3d 1356, 1362–63, 1367 (10th Cir. 2004) (applying Fourth
Amendment reasonableness standard in concluding that officers may temporarily
seize bystanders in area immediately adjoining arrest scene when seizure is
justified by safety concerns and the scope of the seizure is reasonable under the
circumstances); Thompson v. City of Lawrence, 58 F.3d 1511, 1517 (10th Cir.
1995) (balancing innocent bystander’s Fourth Amendment rights against
“governmental interest in securing the area around [the target of an arrest
operation] and protecting officers from potential danger” in finding temporary
detention was lawful). For purposes of this appeal, we find these cases persuasive
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to the extent they demonstrate that an innocent bystander who is not suspected of
any wrongdoing may be seized—in some cases reasonably and in other cases
potentially unreasonably—within the meaning of the Fourth Amendment.
Given our conclusion that SDC was already seized when Vickers fired at the
dog, we proceed by exercising our discretion to address only the qualified
immunity issue as it relates to Corbitt’s claim that Vickers’s second shot at the dog
violated SDC’s clearly established Fourth Amendment rights.11
D. Were Clearly Established Fourth Amendment Rights Violated?
The Fourth Amendment provides a “right of the people to be secure in their
persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. The
amendment “encompasses the right to be free from excessive force during the
course of a criminal apprehension.” Oliver, 586 F.3d at 905. To establish a Fourth
Amendment claim for excessive force, a plaintiff “must allege (1) that a seizure
occurred and (2) that the force used to effect the seizure was unreasonable.”
Troupe v. Sarasota Cty., 419 F.3d 1160, 1166 (11th Cir. 2005).
As noted above, at the time Vickers fired at the dog, SDC just happened to
be playing in his own yard when, for reasons beyond his control, his yard became
11
Corbitt’s complaint also set forth a Fourteenth Amendment claim for relief. She
declined to withdraw that claim during the motion hearing before the district court, but the
district court did not expressly reach the Fourteenth Amendment issue in its decision below.
Although Corbitt briefed the Fourteenth Amendment issue before this Court (her arguments are
not fully developed), there is no need for us to reach the issue given our conclusion that SDC
was already seized—thus implicating the Fourth Amendment—when Vickers shot at the dog.
See Graham, 490 U.S. at 388, 109 S. Ct. at 1868–69.
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the scene of an arrest operation. Although we have held that SDC was already
seized at the time of the shot, SDC is best described as an innocent bystander. And
although the commands of the officers that SDC and the other children lie face
down on the ground were actions directed at SDC and the other children, Corbitt
does not claim that those actions violated SDC’s Fourth Amendment rights; rather,
she claims that the action of Vickers firing at the dog and accidentally hitting SDC
violated the Fourth Amendment. We hold that Vickers’s action of intentionally
firing at the dog and unintentionally shooting SDC did not violate any clearly
established Fourth Amendment rights.
First, we note that Corbitt failed to present us with any materially similar
case from the United States Supreme Court, this Court, or the Supreme Court of
Georgia that would have given Vickers fair warning that his particular conduct
violated the Fourth Amendment. Corbitt admitted as much during the hearing on
Vickers’s motion to dismiss before the district court. Moreover, neither the district
court’s order nor our own research has revealed any such case. Thus, the only way
Corbitt can successfully overcome Vickers’s assertion of qualified immunity is to
show either that “a broader, clearly established principle should control the novel
facts” of this case as a matter of obvious clarity, or that Vickers’s conduct “so
obviously violates [the] constitution that prior case law is unnecessary.” Mercado,
407 F.3d at 1159. As our cases suggest, it is very difficult to demonstrate either.
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The district court found that Vickers was not entitled to qualified immunity
at the motion to dismiss stage because (1) this Court had previously stated that “[i]t
is clearly established that the use of excessive force in carrying out an arrest
constitutes a violation of the Fourth Amendment,” Corbitt, 2017 WL 6028640 at
*5 (quoting Thornton, 132 F.3d at 1400), and (2) Vickers acted unreasonably and
used excessive force in firing his weapon because there was no reasonable threat of
harm, id. at *6. This line of reasoning is an application of the second qualified
immunity test that asks whether a broader, clearly established principle should, as a
matter of obvious clarity, control the novel facts of a case. In so reasoning, we
think the district court placed too much emphasis on this Court’s statement in
Thornton. For starters, we have expressly said otherwise in other qualified
immunity cases. See, e.g., Mercado, 407 F.3d at 1159 (“[T]he principle that
officers may not use excessive force to apprehend a suspect is too broad a concept
to give officers notice of unacceptable conduct.”); Post v. City of Ft. Lauderdale, 7
F.3d 1552, 1557 (11th Cir. 1993) (“The line between lawful and unlawful conduct
is often vague. [The] ‘clearly established’ standard demands that a bright line be
crossed. The line is not found in abstractions—to act reasonably, to act with
probable cause, and so on—but in studying how these abstractions have been
applied in concrete circumstances.”), as modified 14 F.3d 583 (11th Cir. 1994).
20
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More important, perhaps, are two recent Supreme Court cases reminding
courts that the qualified immunity analysis requires a clearly established right to be
defined with specificity. In White v. Pauly, the Supreme Court—with palpable
frustration—reiterated “the longstanding principle that clearly established law
should not be defined at a high level of generality.” ___ U.S. ___, ___, 137 S. Ct.
548, 552 (2017) (per curiam) (internal quotation marks omitted) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)). Instead, “the clearly
established law must be ‘particularized’ to the facts of the case.” Id. (quoting
Anderson, 483 U.S. at 640, 107 S. Ct. at 3039). The Supreme Court ultimately
vacated a decision authored by a divided Tenth Circuit panel, faulting it for
“fail[ing] to identify a case where an officer acting under similar
circumstances . . . was held to have violated the Fourth Amendment . . . [and for]
rel[ying] on Graham, Garner, and their Court of Appeals progeny, which . . . lay
out excessive-force principles at only a general level.” Id. at ___, 137 S. Ct. at
550–52. Although the Supreme Court acknowledged that “general statements of
the law are not inherently incapable of giving fair and clear warning[,]” it also
emphasized that “Garner and Graham do not by themselves create clearly
established law outside ‘an obvious case.’” Id. (first quoting United States v.
Lanier, 520 U.S. 259, 271, 117 S. Ct. 1219, 1227 (1997); then quoting Brosseau v.
Haugen, 543 U.S. 194, 199, 125 S. Ct. 596, 599 (2004)).
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Just this year, the Supreme Court explained in another excessive force case:
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, here
excessive force, will apply to the factual situation the officer
confronts. Use of excessive force is an area of the law in which the
result depends very much on the facts of each case, and thus police
officers are entitled to qualified immunity unless existing precedent
squarely governs the specific facts at issue . . . .
[I]t does not suffice for a court simply to state that an officer
may not use unreasonable and excessive force, deny qualified
immunity, and then remit the case for a trial on the question of
reasonableness. An officer cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently definite
that any reasonable official in the defendant’s shoes would have
understood that he was violating it.
City of Escondido v. Emmons, ___ U.S. ___, ___, 139 S. Ct. 500, 2019 WL
113027, at *2–3 (2019) (per curiam) (alterations in original) (quoting Kisela v.
Hughes, ___ U.S. ___, 138 S. Ct. 1148, 1153 (2018) (per curiam)).
In light of these basic principles, we conclude that the district court erred in
relying on the general proposition that it is clearly established that the use of
excessive force is unconstitutional. The unique facts of this case bear this out. Not
only was SDC not the intended target of the arrest operation, he also was not the
intended target of Vickers’s gunshot. Both of these facts take this case outside “a
run-of-the-mill Fourth Amendment violation.” White, ___ U.S. at ___, 137 S. Ct.
at 552. In other words, we are not dealing with “an obvious case,” and no
principles emerge from our decisions that speak with “obvious clarity” to the
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unique and unfortunate circumstances that befell SDC. Indeed, we are unable to
identify any settled Fourth Amendment principle making it obviously clear that
volitional conduct which is not intended to harm an already-seized person gives
rise to a Fourth Amendment violation.
Narrower principles do emerge from our excessive force cases. See, e.g.,
Vinyard, 311 F.3d at 1348 (finding use of pepper spray on mildly intoxicated and
profane misdemeanant constituted “force that was plainly excessive, wholly
unnecessary, and, indeed, grossly disproportionate under Graham”); Oliver, 586
F.3d at 907–08 (denying qualified immunity where repeated use of Taser on non-
threatening subject was “grossly disproportionate to any threat posed” and “any
reasonable officer would have recognized that his actions were unlawful”).
However, unlike the present facts these cases—along with those cited by our
dissenting colleague in support of an almost identical proposition—all involve
conduct that was intentional as to the injured plaintiff.
Unlike any prior cases that could clearly establish the law for this case, at the
time Vickers fired at the dog, SDC was not the intended target of an arrest or
investigatory stop. Nor was he the intended target of Vickers’s shot; rather, he was
accidentally hit when Vickers fired at the dog. The Supreme Court’s decision in
Brower indicates that a Fourth Amendment violation depends upon intentional
action on the part of the officer. The Brower decision provides:
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Violation of the Fourth Amendment requires an intentional acquisition
of physical control. A seizure occurs even when an unintended person
or thing is the object of the detention or taking, but the detention or
taking itself must be willful. This is implicit in the word “seizure,”
which can hardly be applied to an unknowing act. . . . In sum, the
Fourth Amendment addresses “misuse of power,” not the accidental
effects of otherwise lawful government conduct.
Thus, if a parked and unoccupied police car slips its brake and
pins a passerby against a wall, it is likely that a tort has occurred, but
not a violation of the Fourth Amendment. And the situation would
not change if the passerby happened, by lucky chance, to be a serial
murderer for whom there was an outstanding arrest warrant—even if,
at the time he was thus pinned, he was in the process of running away
from two pursuing constables. It is clear, in other words, that a Fourth
Amendment seizure does not occur whenever there is a
governmentally caused termination of an individual’s freedom of
movement (the innocent passerby), nor even whenever there is a
governmentally caused and governmentally desired termination of an
individual’s freedom of movement (the fleeing felon), but only when
there is a governmental termination of freedom of movement through
means intentionally applied. . . .
....
. . . In determining whether the means that terminates the
freedom of movement is the very means that the government intended
we cannot draw too fine a line, or we will be driven to saying that one
is not seized who has been stopped by the accidental discharge of a
gun with which he was meant only to be bludgeoned, or by a bullet in
the heart that was meant only for the leg. We think it enough for a
seizure that a person be stopped by the very instrumentality set in
motion or put in place in order to achieve that result. It was enough
here, therefore, that, according to the allegations of the complaint,
Brower was meant to be stopped by the physical obstacle of the
roadblock—and that he was so stopped.
489 U.S. at 596–99, 109 S. Ct. at 1381–82 (citations omitted).
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Lower court decisions construing Brower have required, in order to state a
violation of Fourth Amendment rights, that the officer’s action must have been
intended to stop the plaintiff, the party suing the officer. This reading of Brower
finds strong support in the language quoted above. There is a clear indication that
intentional government action directed toward the plaintiff, not accidental effects,
is required. See id. at 596, 109 S. Ct. at 1381 (“[T]he Fourth Amendment
addresses misuse of power, not the accidental effects of otherwise lawful
government conduct.” (citation and internal quotation marks omitted)). Also, the
Supreme Court’s hypothetical of the police car rolling and pinning a person against
a wall suggests that a Fourth Amendment violation occurs only when the
governmental action intentionally targets the person thus pinned. And no Fourth
Amendment violation occurs when the governmental action impacts an innocent
passerby, or even when a serial murderer for whom there is an outstanding warrant
is thus pinned, but only by lucky chance, as opposed to the murderer having been
pinned by intentional action targeting him.
Lower courts have usually construed Brower to require such intentional
action. For example, our own decision in Vaughan, 343 F.3d 1323, so construed
Brower. There, this Court reversed the district court’s grant of summary judgment
in favor of an officer under the following circumstances. The officer, with another
officer, was engaged in a high-speed chase of a red pickup truck suspected of
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having been stolen. The pickup truck was driven by Rayson, and the man in the
passenger seat, Vaughan, matched the description of the suspect. During a high-
speed chase, the officer, Cox, fired three bullets into the pickup truck, none of
which disabled either the truck or the driver. However, the third bullet punctured
Vaughan’s spine, seriously injuring him. This Court reversed the district court’s
grant of summary judgment to Officer Cox, but only after we concluded that
“Vaughan was hit by a bullet that was meant to stop him,” and therefore “he was
subjected to a Fourth Amendment seizure.” Id. at 1329. In so holding, we rejected
as inapplicable cases from other circuits which had rejected Fourth Amendment
claims brought by innocent bystanders or hostages accidentally harmed by police
fire, noting that those “cases are of little aid to our inquiry . . . because Vaughan
was neither an innocent bystander nor a hostage; instead, he was a suspect whom
Deputy Cox sought to apprehend.” Id. at 1328 n.4.
It is true that the Supreme Court’s decision in Brower, and our Eleventh
Circuit decision in Vaughan discussed above, focus on the seizure aspect of the
claimed Fourth Amendment violation. And it is also true that we have held that
SDC was already temporarily seized at the command of Vickers and the other
officers who were controlling the scene in their attempt to capture the suspect,
Barnett. Thus, Corbitt argues that Brower’s requirement of intentional government
conduct targeting SDC is satisfied, and thus she can prove a Fourth Amendment
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violation pursuant solely to the objective reasonableness test without regard to any
further intentionality element.
We conclude that Corbitt’s argument cannot overcome Vickers’s claim of
qualified immunity. No case capable of clearly establishing the law for this case
holds that a temporarily seized person—as was SDC in this case—suffers a
violation of his Fourth Amendment rights when an officer shoots at a dog—or any
other object—and accidentally hits the person. In other words, Corbitt is not
claiming that the officers’ command that SDC and the other children lie face down
on the ground violated Fourth Amendment rights. Nor is she claiming that any
other action of the officers directed toward SDC and the other children violated
Fourth Amendment rights. Rather, she is claiming SDC’s Fourth Amendment
rights were violated by Vickers’s shot—an action targeting the dog, not SDC.
Corbitt’s Fourth Amendment claim is based on a governmental action not directed
toward SDC and which only accidentally harmed SDC.
Indeed, dicta in Brower itself (as noted above) suggests that accidental
effects do not rise to the level of a misuse of power constituting a Fourth
Amendment violation. 12 See Brower, 489 U.S. at 596, 109 S. Ct. at 1381. Cases
from other circuits are generally in accord with this principle, especially when
12
As indicated above, there is a circuit split as to whether government action which
accidentally harms the plaintiff can rise to the level of a Fourth Amendment violation. See
discussion supra note 6. This only further strengthens Vickers’s claim that he is entitled to
qualified immunity.
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bystanders are involved. See Schultz v. Braga, 455 F.3d 470, 479–83 (4th Cir.
2006) (declining to extend Fourth Amendment protections to “reasonably
foreseeable” victim of officer’s gunshot where victim was already seized by traffic
stop and officer did not intend to shoot her but instead intended to shoot her
passenger); Childress v. City of Arapaho, 210 F.3d 1154, 1155–57 (10th Cir. 2000)
(holding no Fourth Amendment seizure occurred when two escapees abducted
plaintiff and her two-year-old daughter and stole their minivan, and law
enforcement officers shot intending to restrain the minivan and escapees but
accidentally injured plaintiff and her daughter who were hostages in the minivan);
Medeiros v. O’Connell, 150 F.3d 164, 167–69 (2d Cir. 1998) (in similar factual
situation, holding no Fourth Amendment seizure and relying upon Brower, 489
U.S. at 596, 109 S. Ct. at 1381, for the proposition that the Fourth Amendment
addresses misuse of power, not accidental effects of otherwise lawful conduct);
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990) (in a similar
factual situation, holding: “[a] police officer’s deliberate decision to shoot at a car
containing a robber and a hostage for the purpose of stopping the robber’s flight
does not result in the sort of willful detention of the hostage that the Fourth
Amendment was designed to govern,” and relying upon Brower for the proposition
that the Fourth Amendment addresses misuse of power, not accidental effects of
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otherwise lawful conduct);13 cf. Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir.
1987) (rejecting a Fourth Amendment claim of a § 1983 plaintiff where suspected
burglar was deemed to have been already seized and holding: “It makes little sense
to apply a standard of reasonableness to an accident.”). 14
The foregoing authorities do not support Corbitt’s argument that once SDC
was already seized in an unchallenged manner, the intent requirement of Brower is
satisfied, and a Fourth Amendment violation is established if the officer’s actions
were objectively unreasonable. As the Second Circuit noted in Dodd, that would
mean that a Fourth Amendment violation could be based upon simple negligence.
Dodd, 827 F.2d at 7–8. Moreover, the cases noted above have not distinguished
between the following two factual situations. In the first situation, an officer fires
at the robber or escapee and the vehicle in which he is fleeing with the plaintiff-
hostage, but the bullet accidentally also hits the unseized plaintiff-hostage, thus
raising the issue of whether the bullet striking the plaintiff-hostage constitutes a
13
See also discussion infra note 17 (comparing First Circuit case finding Fourth
Amendment violation where accidental effects of conduct intentionally directed toward plaintiff
resulted in shooting death of plaintiff).
14
While it is true that “only binding precedent can clearly establish a right for qualified
immunity purposes,” Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir. 2013), non-binding
persuasive authority can be used to indicate that a particular constitutional right is not clearly
established, see Denno v. School Bd. of Volusia Cty., 218 F.3d 1267, 1272–75 (11th Cir. 2000)
(concluding that school officials were entitled to qualified immunity because, in part, they could
justifiably rely on “the perspective of several reasonable jurists” from outside Eleventh Circuit in
navigating the “relevant legal landscape”). Thus, we need not, and expressly do not, express an
opinion with respect to the correctness of cases like Schultz, Childress, Medeiros, Landol-Rivera,
or Dodd. We cite such cases solely as examples of opinions of reasonable jurists which indicate
that the relevant law is not clearly established.
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Fourth Amendment seizure. This factual situation is presented in the Brower dicta,
and in cases like Childress, Medeiros, and Landol-Rivera, all indicating there is no
Fourth Amendment seizure in that situation. In the second factual situation, the
plaintiff-bystander is already seized in an unchallenged manner, but then is harmed
accidentally by a shot fired at someone or something other than the plaintiff-
bystander. For example, in Schultz, the officer fired the shot at the person he
believed to be a robbery suspect in the passenger seat, but “blood and glass set in
motion by the gunshot” hit the already-seized Harkum in the driver’s seat. Schultz,
455 F.3d at 483. The court held that the officer was properly granted qualified
immunity from Harkum’s Fourth Amendment claim “because the force employed
was not directed towards her,” and because the focus of the Fourth Amendment
“did not involve unintended consequences of government action.” Id. (second
quotation quoting from Brower, 489 U.S. at 596, 109 S. Ct. at 1381). And in the
instant case, the already-seized bystander, SDC, was harmed accidentally when
Vickers intentionally fired at the dog. See Dodd, 827 F.2d at 7–8 (holding no
Fourth Amendment violation in a factual situation involving an accidental shooting
during handcuffing after the suspect was deemed to have been already seized).
Not only have the cases not distinguished between these two factual
situations, it is not obvious that there should be a different result in the two
situations, in light of the fact that the focus of the Fourth Amendment analysis is
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on the “misuse of power,” not the “accidental effects of otherwise lawful
government conduct.” Brower, 489 U.S. at 596, 109 S. Ct. at 1381. In other
words, it is the “accidental effect” that is significant. Stated in the language of the
relevant standard, the law is not clearly established that there is a Fourth
Amendment violation when an already-seized bystander, as in the instant case, is
accidentally harmed as an unintended consequence of an officer’s intentional shot
at something else entirely.
In sum, not only is there no materially similar binding case that clearly
establishes a Fourth Amendment violation; dicta from the Supreme Court and
nonbinding case law indicates that reasonable jurists have found no Fourth
Amendment violation in similar circumstances.15 We conclude that the accidental
shooting, as occurred here, does not constitute a clearly established Fourth
Amendment violation as a matter of obvious clarity. 16 Thus, Corbitt has failed to
demonstrate a clearly established Fourth Amendment violation, either by the first
method (a materially similar, binding case), or the second method (the violation is
15
See also discussion supra note 14.
16
The district court assumed the Brower intent requirement could be satisfied by the
inference the district court derived from plaintiffs’ allegations “that Vickers fired his weapon at
the animal in order to keep control of SDC . . . [and] continue [his] seizure.” Corbitt, 2017 WL
6028640, at *4. Thus, under the district court’s construction, Vickers’s shot was an attempt to
continue his seizure of SDC, and thus satisfied the required intent element. However, the shot
fired by Vickers—the act on which Corbitt bases her allegation of excessive force in violation of
the Fourth Amendment—was clearly targeting Bruce, the dog; it is absolutely clear that it was by
pure accident that the shot struck SDC. In any event, as demonstrated in the text, the district
court’s position is not supported by clearly established law such that it would be apparent to any
reasonable officer in Vickers’s shoes that his actions violated the Fourth Amendment.
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a matter of obvious clarity from such a binding case). We turn therefore to the
third method (the challenged conduct so obviously violates the Fourth Amendment
that prior case law is unnecessary).
This is not a case that so obviously violates the Fourth Amendment that prior
case law is unnecessary to hold Vickers individually liable for his conduct. To find
otherwise would require us to conclude that no reasonable officer would have fired
his gun at the dog under the circumstances. This we are unable to do. With the
benefit of hindsight, we do not doubt Vickers could have acted more carefully; the
firing of a deadly weapon at a dog located close enough to a prone child that the
child is struck by a trained officer’s errant shot hardly qualifies as conduct we wish
to see repeated. However, even the underlying constitutional issue itself (which of
course is easier for a plaintiff to prove than proving that particular circumstances
violate clearly established constitutional law) is evaluated pursuant to a
“calculus . . . [that] must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving.” Graham, 490 U.S. at 396–97, 109 S. Ct. at 1872.
In the instant qualified immunity context, we are cognizant that several cases
(some of which are mentioned above) have considered similar accidental shootings
of bystanders, and that many, if not most, of the jurists involved have concluded
that there was no clearly established Fourth Amendment violation. Indeed, we are
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aware of no case and no jurist indicating that such an accidental shooting (i.e., one
resulting from volitional conduct indisputably intended to stop someone or
something other than the plaintiff) so obviously violates the Fourth Amendment
that prior case law is unnecessary to hold that the officer violated clearly
established law.17 Moreover, the facts alleged here involve “accidental effects” of
conduct directed toward something other than the plaintiff, not the kind of “misuse
of power” which Brower suggests is the focus of a Fourth Amendment violation.
Brower, 489 U.S. at 596, 109 S. Ct. at 1381. We conclude that the circumstances
alleged in this case do not so obviously violate the Fourth Amendment such that it
would be apparent to every reasonable officer that his actions were in violation of
the Fourth Amendment. See Lee, 284 F.3d at 1199 (recognizing that a plaintiff can
surmount a qualified immunity defense by showing “that the official’s conduct lies
17
Cf. Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir. 2016). In Stamps, the First
Circuit denied qualified immunity to an officer accused of using excessive force during the
execution of a search warrant where the officer pointed a “loaded assault rifle at the head of a
prone, non-resistant, innocent person who present[ed] no danger, with the safety off and a finger
on the trigger,” then accidentally shot the person to death. Id. at 29, 39–40.
Although relevant to our discussion here, the legal principle deemed clearly established
in Stamps is materially different from the principle at issue in this case because Stamps involved
the accidental consequences of conduct otherwise intentionally directed toward the plaintiff. In
Stamps, the officer intentionally aimed his assault rifle at the plaintiff and then accidentally shot
the plaintiff. Here, Vickers intentionally fired his gun at the dog and then accidentally shot SDC.
Recognizing a similar distinction, the First Circuit in Stamps noted that its decision there was not
inconsistent with its earlier decision in Landol-Rivera, 906 F.2d 791. In particular, it observed
that the Landol-Rivera court had relied on Brower’s intent requirement in finding no Fourth
Amendment violation on grounds that “it was not the officer’s intent to seize the hostage.”
Stamps, 813 F.3d at 37 n.10. Put another way, Landol-Rivera’s “holding simply has no
relevance [to Stamps] since there is no question that Stamps was the intended target of [the
officer’s] seizure.” Id. We agree and find that this case is more like Landol-Rivera than Stamps
because Vickers intended to shoot the dog, not SDC.
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so obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of case law” and emphasizing that “[u]nder this test, the law is clearly
established, and qualified immunity can be overcome, only if the standards in
Graham and our own case law inevitably lead every reasonable officer in [the
defendant’s] position to conclude the force was unlawful” (second alteration in
original) (citations and internal quotation marks omitted)).
We cannot agree with our dissenting colleague either on the facts or the law.
For example, in the absence of allegations of actual facts demonstrating that every
objectively reasonable officer in Vickers’s shoes would necessarily perceive a total
lack of reason to subdue a dog roaming freely at the scene of an active arrest, we
decline to accept the plaintiffs’ conclusory allegations that there was no need to
subdue the dog. See Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th
Cir. 2003) (“[C]onclusory allegations, unwarranted factual deductions or legal
conclusions masquerading as facts will not prevent dismissal.”). We think it even
more appropriate to disregard such allegations in the context of the qualified
immunity and excessive force issues raised by this case, where the Supreme Court
has directed us to judge the “reasonableness at the moment” of the officer’s actions
not from the plaintiff’s perspective, but instead “from the perspective of a
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reasonable officer on the scene,” who was operating without the “20/20 vision of
hindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872.
In any event, the allegations of the complaint are lacking in allegations of
actual facts18 that paint a scenario that so clearly and obviously presented such
danger to SDC that every objectively reasonable officer confronted with the
situation Vickers encountered would have known, in light of “the standards set
forth in Graham and our own case law,” Lee, 284 F.3d at 1199, and in the ten
seconds allegedly available, that a shot at the dog would violate the Fourth
Amendment. Thus, we cannot conclude that the instant allegations rise to that rare
level of conduct that “lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily apparent to
the official, notwithstanding the lack of case law.” Id.; see also Mercado, 407 F.3d
18
Contrary to the dissent’s suggestion, we do not discount the complaint’s conclusory
allegation that the dog presented no threat because we accept instead Vickers’s conclusory
allegation that he did feel the need to subdue the dog. Rather, we discount the complaint’s
allegation because it is conclusory. There are no allegations of actual fact indicating that the dog
was non-threatening. In contrast to Corbitt’s conclusory allegations of no threat and no
justification, we suggest hypothetical illustrations of allegations of actual fact which Corbitt
might have alleged depending upon what the actual facts were. For example, Corbitt might have
alleged that the dog was a small and non-aggressive breed, like a toy poodle, or, if it was a breed
known for aggression, that the dog was walking slowly towards its owners and not barking at all.
We also cannot agree with our dissenting colleague that the actual facts alleged warrant
the inference that the dog “was surrounded by children.” The complaint does not contain
allegations of actual fact to support the dissent’s assertion that the dog was surrounded by
children when Vickers fired at it. To the extent that the allegations focus on the relative
locations of the dog to other children, they allege only that Vickers “discharged his firearm in the
immediate vicinity of several innocent minor children and bystanders,” and “a large number of
innocent bystanders, mostly children in the immediate area.” The dissent’s inference that
Vickers shot “into a group of children” overstates the factual allegations contained in Corbitt’s
complaint.
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at 1159 (noting that, under the third method, the conduct at issue must rise to a
level that “so obviously violates [the] constitution that prior case law is
unnecessary”). As a result, we also cannot conclude that Corbitt has overcome the
high legal threshold placed on plaintiffs who seek to overcome an officer’s
qualified immunity defense on the basis of the third method on which the dissent
focused. That this complaint fails to surmount that high legal threshold is
especially apparent in light of the considerable case law indicating that a Fourth
Amendment violation must involve official action that intentionally targets the
plaintiff. Not only does that case law strongly indicate it is not clearly established
that the accidental effects of official actions targeting others gives rise to a Fourth
Amendment violation, it even suggests that such actions may not even constitute a
Fourth Amendment violation in the first place. The relevant question is not
whether a reasonable officer would have refrained from shooting the dog. Instead,
the relevant question is whether every reasonable officer would have inevitably
refused to do so in light of the Fourth Amendment standards established by
Graham and our own case law. Our answer to that relevant question is in the
negative.
Accordingly, Vickers’s qualified immunity defense must prevail in the
absence of a materially similar case or a governing legal principle or binding case
that applies with obvious clarity to the facts of this case.
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III. CONCLUSION
In conclusion, we hold that Vickers is entitled to qualified immunity
because, at the time of the incident giving rise to this appeal, there was no clearly
established law making it apparent to any reasonable officer in Vickers’s shoes that
his actions in firing at the dog and accidentally shooting SDC would violate the
Fourth Amendment. Because we find no violation of a clearly established right,
we need not reach the other qualified immunity question of whether a
constitutional violation occurred in the first place. This opinion expressly takes no
position as to that question. The order of the district court denying Vickers’s
motion to dismiss is hereby reversed, and the case is remanded to the district court
with instructions to dismiss the action against Vickers.
REVERSED and REMANDED.
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WILSON, Circuit Judge, dissenting:
The majority accurately points out that qualified immunity protects “all but
the plainly incompetent.” Maj. Op. at 10 (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)). Because no competent officer would fire his weapon in the direction
of a nonthreatening pet while that pet was surrounded by children, qualified
immunity should not protect Officer Vickers. Therefore, I dissent.
I.
On July 10, 2014, several officers, including Deputy Sheriff Michael
Vickers, initiated a search to locate and apprehend a criminal suspect, Christopher
Barnett. 1 The search led them to Amy Corbitt’s property after Barnett, “whom
[plaintiffs] ha[d] never met,” “wandered into the area.” Barnett, Damion Steward,
and six children—including Corbitt’s ten-year-old child S.D.C., and two children
under the age of three—were on the property’s front yard. The officers detained
Barnett and ordered everyone to get on the ground. An unidentified officer
handcuffed Steward and held a gun against his back. The detained children “were
1
The summary of the facts is based on the allegations made in the Complaint. See Sebastian v.
Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019) (noting that, at the motion to dismiss stage, “[w]e
are required to accept all allegations in the complaint as true and draw all reasonable inferences
in the plaintiff’s favor”).
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[also] held at gun point, each having an officer forcefully shove the barrel of a
loaded gun into their backs.”
While Barnett, Damion, and the children were detained on the lawn, Vickers
spotted the Corbitt family pet, a dog named Bruce. Although no one “appear[ed]
to be threatened by [Bruce’s] presence,” Vickers attempted to shoot the dog. He
missed, and Bruce retreated under the Corbitt’s residence. Roughly ten seconds
later, Bruce reemerged and was “approaching his owners” on the yard. Vickers
fired another shot, again missing the pet. The errant bullet struck S.D.C. behind
the knee as the child lay in a “face down position on the ground at the request of
defendants.” Importantly, S.D.C. was “readily viewable” a mere eighteen inches
from Vickers at the time the shot was fired, and “[o]ther minor children were [ ]
within only a few feet of [ ] Vickers.” As a result of the bullet wound, S.D.C.
suffered severe physical pain and mental trauma.
II.
To overcome a qualified immunity defense, the plaintiff must (1) “establish
that the defendant violated a constitutional right” and (2) demonstrate that the
violated right was “clearly established.” Griffin Indus., Inc. v. Irvin, 496 F.3d
1189, 1199–1200 (11th Cir. 2007). I agree with the majority’s determination that
Corbitt satisfied the first requirement. See Maj. Op. at 14–18. I disagree, however,
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with the majority’s conclusion that Corbitt failed to demonstrate that Vickers
violated a “clearly established” constitutional right.
We have identified three ways a plaintiff can show that a right was clearly
established at the time of the defendant’s action. First, she can “show that a
materially similar case has already been decided.” Mercado v. City of Orlando,
407 F.3d 1152, 1159 (11th Cir. 2005). Second, she can “show that a broader,
clearly established principle should control the novel facts” of a particular
situation. Id. (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Third, she can
show that her case “fits within the exception of conduct which so obviously
violates [the] constitution that prior case law is unnecessary.” Id.; see also Lee v.
Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (noting that, to show that a right is
“clearly established,” plaintiffs may show “that the official’s conduct lies so
obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of case law.” (citation omitted)). I believe the instant case falls within the
third category.
Under this third recognized category, a plaintiff in an excessive force case
can overcome an officer’s qualified immunity defense “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
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1199 (alteration in original) (citation and internal quotation marks omitted). In
Graham v. Connor, the Supreme Court held that the reasonableness analysis
“requires careful attention to the facts and circumstances of each particular case,”
including the severity of the crime at issue, the safety interests of officers and
others, and any risk of violence or flight by a suspect. 490 U.S. 286, 396 (1989)
(citation omitted).
Consider the present facts and circumstances: officers arrived at a home and
found the subject of their search. At gunpoint, the officers ordered the suspect and
all persons in the area—including six children—to the ground. Everyone
complied. A nonthreatening family pet was present on the scene; there is nothing
to suggest that this pet acted with hostility or threatened the safety of anyone—
including the officers. With all the children and the suspect still lying on the
ground pursuant to the officers’ commands, Officer Vickers shot at the family pet.
He missed. He waited. He shot again. He missed again, instead striking a child
who had been—at all times—lying within arm’s reach of the officer.
This conduct—discharging a lethal weapon at a nonthreatening pet that was
surrounded by children 2—is plainly unreasonable. The nonthreatening nature of
2
The majority maintains that the Complaint does not “contain allegations of actual fact to
support the dissent’s assertion that the dog was surrounded by children when Vickers fired at it.”
Maj. Op. at 37 n.18. But there are allegations in the Complaint that, considered together, lead to
the reasonable inference that the dog was surrounded by children at the time Officer Vickers
fired the shot. See Sebastian, 918 F.3d at 1307 (noting that, at the motion to dismiss stage, we
must draw all reasonable inferences in favor of the nonmoving party). Specifically, the
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the pet is crucial to this conclusion. 3 We have consistently denied qualified
immunity when the defendant-officer exhibited excessive force in the face of no
apparent threat. See cf. Saunders v. Duke, 706 F.3d 1262, 1265 (11th Cir. 2014)
(“We have repeatedly ruled that a police officer violates the Fourth Amendment,
and is denied qualified immunity, if he or she uses gratuitous and excessive force
against a suspect who is under control, not resisting, and obeying commands.”);
see, e.g., Slicker v. Jackson, 215 F.3d 1225, 1227 (11th Cir. 2000) (denying
qualified immunity to officer who arrested plaintiff, placed him in handcuffs and
then, after he had been fully secured, slammed his head into the pavement);
Complaint alleges that the dog was “approaching his owners,” including S.D.C., on the yard
when Officer Vickers fired. It also alleges that S.D.C. “was approximately eighteen inches from
Defendant Vickers” and “[o]ther minor children were [ ] within only a few feet of Defendant
Vickers” when Officer Vickers fired. Finally, the Complaint alleges that Officer Vickers fired a
shot at the dog but instead hit S.D.C. Based on these three allegations—(1) that the dog was
approaching S.D.C., (2) that Officer Vickers was a few feet from S.D.C. and the other children,
and (3) that Officer Vickers fired a shot at the dog, but instead struck a child—we can, and
should, reasonably infer that the dog and the children were closely situated.
3
The majority declined to accept Corbitt’s allegations that the dog was nonthreatening,
reasoning that the allegations were “conclusory.” Maj. Op. at 37. I disagree with such a
characterization. At this stage, we must take plaintiff’s allegations as true. Sebastian, 918 F.3d
at 1307; St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (“While there may
be a dispute as to whether the alleged facts are the actual facts, in reviewing the grant of a motion
to dismiss, we are required to accept the allegations in the complaint as true.”). We are therefore
obligated to accept that the dog “posed no threat,” that “[no]one appear[ed] to be threatened by
its presence,” and that it was merely “approaching his owners” at the time Officer Vickers fired.
Instead, the majority appears to credit Officer Vickers’ own conclusory account—that he shot the
dog “because it was approaching him, the officers, and the detained bystanders in a manner that
led him to conclude that he needed to subdue it.” See Maj. Op. at 37 (concluding that some
officers may find it reasonable to subdue a dog “roaming freely at the scene of an active arrest”).
Neither Officer Vickers nor the majority elaborates on the dog’s behavior or explains how its
behavior was so outrageous as to warrant shooting into a group of children. And even if such an
explanation existed, we are required to accept Corbitt’s allegations as true. It is not for us to
weigh the likelihood of either account. That is a job for the jury.
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Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926–27 (11th Cir. 2000)
(denying qualified immunity to officer who allowed police dog to attack arrestee
who was already subdued and lying on the ground); Smith v. Mattox, 127 F.3d
1416, 418–20 (11th Cir. 1997) (denying qualified immunity to officer who broke
plaintiff’s arm after plaintiff “docilely submitted” to officer’s request to “get
down”). It is also relevant that Officer Vickers was a mere foot and a half from
S.D.C. and was only a few feet from several other children. Nonetheless, facing no
apparent threat, Officer Vickers chose to fire his lethal weapon in the direction of
these children. 4 No reasonable officer would engage in such recklessness and no
reasonable officer would think such recklessness was lawful. Therefore, I agree
with the district court that Officer Vickers should not be entitled to qualified
immunity. Lee, 284 F.3d at 1199.
I respectfully dissent.
4
Officer Vickers emphasizes that he intended to shoot the dog and only accidentally struck
S.D.C. He argues that such an inadvertent injury cannot be deemed a result of “excessive force.”
I do not dispute that the shooting of S.D.C. was accidental. I maintain that Officer Vickers’
intentional action—shooting at a dog that was surrounded by children—was unreasonable.
43