Warden Stephen Benton v. Brian Hopkins , 190 F. App'x 856 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 06-11251 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar July 25, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-03191-CV-BBM-1
WARDEN STEPHEN BENTON,
Plaintiff-Appellant,
versus
BRIAN HOPKINS,
JOHN ANDERSON,
Defendants-Appellees,
COUNTY OF CHEROKEE,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 25, 2006)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Stephen Benton appeals the district court’s entry of summary judgment in
favor of Officers Brian Hopkins and John Anderson of the Cherokee County
Sheriff’s Department on Benton’s claim, filed under 42 U.S.C. § 1983, alleging
use of excessive force during a traffic stop and attendant arrest. On appeal,
Benton argues that the district court erred by concluding the officers were entitled
to qualified immunity because Benton failed to allege a constitutional violation.1
We disagree and, accordingly, affirm the entry of summary judgment based on
qualified immunity.
The parties are familiar with the background facts, which were thoroughly
described by the district court in its order, and we do not recount them again here.
We review de novo a district court’s entry of a summary judgment motion based
on qualified immunity, applying the same legal standards as the district court. See
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We are unpersuaded by Benton’s other arguments, which he makes in summary fashion, that
his state law claims were valid, that the defendants were not entitled to official immunity, and that
Benton presented sufficient evidence from which to infer a conspiracy existed between the
defendants. Pursuant to Rule 28(a)(9) of the Federal Rules of Appellate Procedure, an appellant’s
brief must contain “(A) appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies; and (B) for each issue, a concise
statement of the applicable standard of review.” Fed. R. App. P. 28(a)(9)(A)-(B). We have held that
the failure to elaborate or provide any citation of authority in support of an argument on appeal acts
as a waiver of the argument for appellate purposes. See Flanigan's Enters., Inc. of Ga. v. Fulton
County, 242 F.3d 976, 987 n.16 (11th Cir. 2001). Moreover, failure to offer argument on an issue
abandons it. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005). Finally,
and most fatal to the aforementioned additional arguments, is that passing references to issues are
insufficient to raise the claim on appeal. Id.2
Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). We resolve all issues of
material
fact in favor of the plaintiff, and then determine the legal question of whether the
defendant is entitled to qualified immunity under that version of the facts. Id.As we observed in Lee v. Ferraro:
Qualified immunity offers “complete protection for government
officials sued in their individual capacities as long as ‘their conduct
violates no clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Thomas v. Roberts,
261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982))
(additional quotations omitted). The purpose of this immunity is to
allow government officials to carry out their discretionary duties
without the fear of personal liability or harassing litigation, see
Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97
L. Ed. 2d 523 (1987), protecting from suit “all but the plainly
incompetent or one who is knowingly violating the federal law.”
Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001).
Because qualified immunity is a defense not only from liability, but
also from suit, it is “important for a court to ascertain the validity of a
qualified immunity defense as early in the lawsuit as possible.” GJR
Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir.
1998) (citation omitted).
284 F.3d at 1193-94.
A government official who is sued under § 1983 may seek summary
judgment on the ground that he is entitled to qualified immunity. Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). To be eligible for
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qualified immunity, the official must first establish that he was performing a
“discretionary function” at the time the alleged violation of federal law occurred.
Id. at 1263-64. Once the official has established that he was engaged in a
discretionary function, the plaintiff bears the burden of demonstrating that the
official is not entitled to qualified immunity. Id. at 1264. In order to demonstrate
that the official is not entitled to qualified immunity, the plaintiff must show two
things: (1) that the defendant has committed a constitutional violation, and (2) that
the constitutional right the defendant violated was “clearly established” at the time
he did it. Saucier v. Katz, 533 U.S. 194, 201 (2001); Holloman, 370 F.3d at 1264.
This two-step inquiry provides “ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 341 (1986).
Here, it is not disputed that the officers were acting within the scope of their
discretionary authority at all material times. The district court found that the force
used to restrain a noncompliant Benton -- consisting of the use of pepper spray
and multiple blows with an ASP baton, which is a retractable metal baton with a
blunt tip -- was not excessive in nature and, indeed, was called for under the
circumstances. Accordingly, on the first prong of Saucier, the district court
concluded that Benton failed to present sufficient evidence to establish a
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constitutional violation and the defendants were entitled to the defense of qualified
immunity.
The Fourth Amendment safeguards “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” The Fourth Amendment encompasses a person’s right to be free from
the use of excessive force in the course of an investigatory stop or “seizure” of the
person. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). Moreover, “Fourth
Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Id.In an excessive force case, “qualified immunity applies unless application of
the standard would inevitably lead every reasonable officer . . . to conclude the
force was unlawful.” See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th
Cir. 1993) (quotation omitted). “The calculus of reasonableness 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 --
about the amount of force that is necessary in a particular situation.” See Graham,
490 U.S. at 396-97. We have said that “Graham dictates unambiguously that the
force used by a police officer in carrying out an arrest must be reasonably
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proportionate to the need for that force, which is measured by the severity of the
crime, the danger to the officer, and the risk of flight.” Lee, 284 F.3d at 1198.
In determining whether an officer’s use of force was objectively reasonable,
the Court considers a variety of factors including “(1) the need for the application
of force, (2) the relationship between the need and the amount of force used, (3)
the extent of the injury inflicted and, (4) whether the force was applied in good
faith or maliciously and sadistically.” Slicker v. Jackson, 215 F.3d 1225, 1233
(11th Cir. 2000) (quoting Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)).
The Court also considers “the severity of the crime, whether the suspect pose[d] an
immediate threat, and whether the suspect [was] resisting or fleeing.” See Post, 7
F.3d at 1559 (citation omitted).
On appeal, Benton highlights two instances that he alleges were excessive
force: (1) the use of pepper spray, and (2) the use of an ASP baton. When these
two restraint methods were employed, the following circumstances existed.
During a traffic stop, much of which was captured by a video camera mounted in
the arresting officer’s squad car, the officers had learned that Benton was driving
with a license that had been revoked for a “serious violation.” After being
informed that he was under arrest for driving with a revoked license, Benton
refused the officers’ verbal commands. When Officer Hopkins moved behind Mr.
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Benton and attempted an unarmed controlling technique to get Mr. Benton’s arms
in position for handcuffing, Mr. Benton did not comply. As the officers continued
their attempts to restrain Benton, he struggled and, at one point, swung an elbow at
the officers. It was after Benton attempted to pull away from the officers by
twisting his own arm that Officer Hopkins attempted to spray Benton with pepper
spray. After the wind blew the spray back in both officers’ faces, Officer Hopkins
ran up closer to Benton and fired a direct burst of pepper spray into Benton’s eyes.
After yelling at the officers, “I have contacts in, you asshole,” Benton continued to
struggle and act non-compliantly.
At some point after administration of the pepper spray, Benton attempted to
back away. After Officer Anderson tried to tackle Benton, but lost his footing,
Benton landed on top of Officer Anderson. It was at that point that Officer
Hopkins struck Benton with the ASP baton, two or three times in the legs and once
in the neck. As Officer Hopkins applied the strikes, he commanded Benton to
comply. Hopkins stopped applying force when Benton stopped resisting. The
length of the videotape recorded from Anderson’s squad car revealed that the
entire incident lasted about 40 seconds.
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Even assuming Benton’s version of the facts, we cannot say that the use of
pepper spray to subdue him and force him to comply was unreasonable. We have
observed:
Pepper spray is an especially noninvasive weapon and may be one
very safe and effective method of handling a violent suspect who may
cause further harm to himself or others. Shock and surprise may be
proper and useful tools in avoiding unnecessary injury to everyone
involved when dealing with potentially violent suspects. Given that
pepper spray ordinarily causes only temporary discomfort, it may be
reasonably employed against potentially violent suspects, especially
those suspects who have already assaulted another person and remain
armed.
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003); see
also Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002) (noting that “pepper
spray is a very reasonable alternative to escalating a physical struggle with an
arrestee”). “Courts have consistently concluded that using pepper spray is
reasonable . . . where the plaintiff was either resisting arrest or refusing police
requests, such as requests to enter a patrol car or go to the hospital.” Vinyard, 311
F.3d at 1348. The factors we outlined in Slicker plainly weigh against finding a
constitutional violation here. See 215 F.3d at 1233. The pepper spray was used
based on Benton’s continued resistance, and the use of pepper spray, in the face of
Benton’s non-compliance, plainly was proportional to the need for force.
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Moreover, Benton presented no evidence that the officers acted in a malicious or
sadistic manner. Id.
We likewise find that there was no evidence of excessive force resulting
from the baton strikes, which followed Benton’s continued non-compliance, even
after the officers had administered the pepper spray directly in his eyes. Benton
had started to back away in a manner that a reasonable officer could have
construed as an attempt to flee, see Post, 7 F.3d at 1559 (stating that in evaluating
an officer’s use of force, Court will consider “whether the suspect [was] resisting
or fleeing”). Moreover, when Officer Anderson tried to tackle him, Benton landed
on top of the officer, thus pinning him down. It was after observing Benton on top
of Anderson that Officer Hopkins applied the baton strikes. Cf. id. (enumerating
“whether the suspect pose[d] an immediate threat” as a factor to consider when
evaluating officer’s use of force). Simply put, given the totality of the
circumstances which faced the officers at the scene of the traffic stop and the
events that developed when the officers tried to arrest Benton, there is no evidence
sufficient to show that the force used was unreasonable. We agree with the district
court’s analysis of the first Saucier prong and its conclusion that, on this record,
Benton did not satisfy his burden to show that the officers’ conduct violated a
constitutional right. Accordingly, we affirm the entry of summary judgment.
AFFIRMED.
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