Herman Joseph Zann, III v. Daniel R. Whidby

Case: 12-16013 Date Filed: 08/16/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16013
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D.C. Docket No. 2:11-cv-000919-JHH
HERMAN JOSEPH ZANN, III,
Plaintiff - Appellee,
versus
DANIEL R. WHIDBY
Deputy,
Defendant - Appellant,
JEFFERSON COUNTY SHERIFF'S DEPARTMENT,
as a person under USC Section 1983,
Defendant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(August 16, 2013)
Case: 12-16013 Date Filed: 08/16/2013 Page: 2 of 3
Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MARRA, * District
Judge.
PER CURIAM:
After studying the briefs and the relevant parts of the record, we conclude
that the district court’s order denying summary judgment is due to be affirmed
because viewing the evidence, especially the testimony in his deposition, in the
light most favorable to Zann, no reasonable officer could have believed that all of
the force applied to him after the first application of the taser was reasonable and
not excessive in violation of the Fourth Amendment. See Fils v. City of Aventura,
647 F.3d 1272, 1288–90 (11th Cir. 2011).
We have not overlooked Whidby’s argument that the “obvious clarity”
exception to qualified immunity was not argued to the district court. We reject that
argument for several reasons. First, in his brief to the district court Zann did argue
that “the amount of force used against [him] by Defendant Whidby went well
beyond anything that could be considered reasonable.” That is, essentially, the
obvious clarity test applied to this type of claim. Second, in his brief Zann relied
in part on Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009), which is an obvious
clarity case. Third, we will not reverse a district court for applying the proper law
and reaching the correct result even though the prevailing party was not as helpful
*
Honorable Kenneth A. Marra, United States District Judge for the Southern District of
Florida, sitting by designation.
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as it could have been. See Fils, 647 F.3d at 1285 (“A district court may look at all
the evidence in the record to determine whether issues of material fact exist
regarding the plaintiff’s asserted causes of action.”); see also Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“We may affirm the district
court’s judgment on any ground that appears in the record whether or not that
ground was relied upon or even considered by the court below.”). Our review,
after all, is de novo, so Whidby had a full and fair opportunity to put forward his
argument about why the facts of this case do not fall squarely within the obvious
clarity exception, and we have found those arguments to be obviously
unpersuasive.
AFFIRMED. 1
1
This case was originally scheduled for oral argument but was removed from the oral
argument calendar under 11th Cir. R. 34-3(f).
3