Christian Powell v. Bobby Haddock ( 2010 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                 FILED
    U.S. COURT OF APPEALS
    No. 09-14944               ELEVENTH CIRCUIT
    FEBRUARY 12, 2010
    Non-Argument Calendar
    JOHN LEY
    ________________________
    CLERK
    D. C. Docket No. 08-00367-CV-5-RS-MD
    CHRISTIAN POWELL,
    Plaintiff-Appellee,
    versus
    BOBBY HADDOCK,
    In his official capacity as sheriff
    Washington County Florida,
    LOU ROBERTS,
    In his official capacity as sheriff
    Jackson County Florida,
    Defendants,
    JONATHAN RACKARD,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (February 12, 2010)
    Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
    PER CURIAM:
    Deputy Jonathan Rackard appeals the district court’s denial of his motion for
    summary judgment based on the defense of qualified immunity in Christian
    Powell’s § 1983 suit alleging false arrest and use of excessive force. Denials of
    summary judgment on qualified immunity grounds are appealable notwithstanding
    the absence of a final judgment. McMillian v. Johnson, 
    88 F.3d 1554
    , 1563 (11th
    Cir. 1996). For the reasons stated below, we affirm.
    We assume, as we must on a motion for summary judgment, that the facts
    are as represented by Powell. Galvez v. Bruce, 
    552 F.3d 1238
    , 1239 (11th Cir.
    2008). On May 20, 2006, Powell was involved in a family altercation at the side of
    a highway in Jackson County, Florida, when deputies from the Washington County
    Sheriff’s Office arrived. Once deputies arrived at the scene, Deputy Frank Stone
    grabbed Powell’s arm as though to push her off the road as she was telling him
    what had happened. Powell told Deputy Stone to “get [his] hands off [her],” and
    took a few steps away from Deputy Stone, when Deputy Rackard told Powell that
    if she didn’t listen or follow his lawful command he was going to shoot her.
    Powell raised her hands about shoulder height and responded “what?” or “you’re
    going to do what?” At that point, Deputy Rackard deployed his taser and shot
    2
    Powell in the chest area. After Powell was on the ground, Deputy Rackard
    deployed his taser on her a second time. At this point, Powell was bleeding and
    hurting in her chest area. Deputy Rackard then arrested Powell on the charge of
    resisting an officer without violence, in violation of 
    Fla. Stat. § 843.02
    . She was
    never convicted.
    Under the facts portrayed by Powell, there was no arguable probable cause
    to arrest her, and certainly no justification for deploying a taser. Deputy Rackard
    argues that he had arguable probable cause to arrest Powell for resisting an officer
    without violence once she failed to follow his instructions, but there was no
    instruction given that Powell failed to obey and her words alone did not rise to the
    level of resisting an officer. See Davis v. Williams, 
    451 F.3d 759
    , 765 (11th Cir.
    2006) (citing D.G. v. State, 
    661 So.2d 75
    , 76 (Fla. Dist. Ct. App. 1996)) (holding
    that verbal protests and refusal to answer questions did not constitute a violation of
    § 843.02). It is clearly established that an arrest made without probable cause
    violates the Fourth Amendment. Thornton v. City of Macon, 
    132 F.3d 1395
    , 1399
    (11th Cir. 1998).
    As to Deputy Rackard’s use of his taser, Powell had simply taken steps away
    from Deputy Stone before Deputy Rackard deployed his taser the first time, and
    Powell was on the ground and unable to resist when Deputy Rackard tasered her a
    3
    second time. There was no evidence that Powell’s “behavior was violent,
    aggressive, and prolonged” or that she was a “danger to herself and others.” Mann
    v. Taser Intern, Inc., 
    588 F.3d 1291
    , 1306 (11th Cir. 2009) (holding that use of a
    taser constituted reasonable force when methamphetamine user’s behavior was
    violent and extended). Rather, it was clearly established, at the time of Powell’s
    arrest, that such force cannot constitutionally be used against a non-threatening
    suspect when the alleged crime of the suspect is a minor offense. See Vinyard v.
    Wilson, 
    311 F.3d 1340
    , 1347 (11th Cir. 2002) (holding that it violates the Fourth
    Amendment to use pepper spray on an individual suspected of resisting an officer
    when that individual was not posing a threat). For these reasons, the district
    court’s denial of summary judgment based on qualified immunity is
    AFFIRMED.
    4