586 F.3d 898 (11th Cir. 2009), 08-15081, Oliver v. Fiorino

Docket Nº:08-15081.
Citation:586 F.3d 898
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Amy Shirley OLIVER, as Personal Representative of the Estate of Anthony Carl Oliver, Sr., Deceased, for and on behalf of the survivors of the Estate of Anthony Carl Oliver, Sr., Plaintiff-Appellee, v. Lori FIORINO, in the official capacity as Orlando Police Department officer, David Burk, in the official capacity as Orlando Police Department office
Attorney:Robert E. Bonner, Gail C. Bradford, Meier, Bonner, Muszynski, O'Dell & Harvey, P.A., Longwood, FL, for Defendants-Appellants. Paul E. Bross, Bross, Bross, Thomas & Savy, LC, Merritt Is., FL, for Oliver.
Judge Panel:Before MARCUS and HILL, Circuit Judges, and VOORHEES,[*] District Judge.
Case Date:October 26, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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586 F.3d 898 (11th Cir. 2009)

Amy Shirley OLIVER, as Personal Representative of the Estate of Anthony Carl Oliver, Sr., Deceased, for and on behalf of the survivors of the Estate of Anthony Carl Oliver, Sr., Plaintiff-Appellee,

v.

Lori FIORINO, in the official capacity as Orlando Police Department officer, David Burk, in the official capacity as Orlando Police Department officer, Defendants-Appellants.

No. 08-15081.

United States Court of Appeals, Eleventh Circuit.

October 26, 2009

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Robert E. Bonner, Gail C. Bradford, Meier, Bonner, Muszynski, O'Dell & Harvey, P.A., Longwood, FL, for Defendants-Appellants.

Paul E. Bross, Bross, Bross, Thomas & Savy, LC, Merritt Is., FL, for Oliver.

Appeals from the United States District Court for the Middle District of Florida.

Before MARCUS and HILL, Circuit Judges, and VOORHEES,[*] District Judge.

MARCUS, Circuit Judge:

In this civil rights case, Orlando police officers Lori Fiorino and David Burk appeal from the district court's denial of their motion for summary judgment on the basis of qualified immunity. Appellee Amy Shirley Oliver, as personal representative of the estate of Anthony Carl Oliver, Sr., alleges that the officers used excessive and unreasonable force in violation of Anthony Oliver's Fourth Amendment rights when they shocked him with a Taser gun at least eight times over a two minute span. The facts, when viewed in a light most favorable to Oliver, show that Oliver was neither accused nor suspected of a crime at the time of the incident, that Officer Fiorino tasered Oliver at least eight and as many as eleven or twelve times with each shock lasting at least five seconds, that the officers made no attempt to handcuff or arrest Oliver at any time during or after any Taser shock cycle, that the officer continued to administer Taser shocks to Oliver while he was lying on the hot pavement, immobilized and clenched up, and, finally, that these Taser shocks resulted in extreme pain and ultimately caused Oliver's death.

After thorough review, we conclude that the officers are not entitled to qualified immunity on the claim of excessive force, and, accordingly, we affirm.

I.

We review de novo the district court's resolution of a summary judgment motion on the basis of qualified immunity, and in so doing, we resolve all issues of material fact in favor of the plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002). We recognize that " facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case," id. (internal quotation marks omitted); nonetheless we view them in a light most favorable to the plaintiff because " the issues appealed here concern not which facts the parties might be able to prove, but, rather, whether or not certain facts showed a violation of clearly established law." Id. (internal quotation marks and alterations omitted).

Taking the facts in a light most favorable to the plaintiff, this tragic story began on May 13, 2004, at approximately 3:17 p.m. Officer Fiorino was driving her police cruiser; she said she noticed a man, who later turned out to be Anthony Carl Oliver, Sr. (" Oliver" ), standing in an eight to ten-foot-wide grassy median on West Colonial Drive near Tampa Avenue in Orlando, waving his arms and attempting to flag her down. Officer Fiorino turned her police cruiser around and parked in the Eastbound turning lane, blocking the turning lane and stopping any traffic in that lane. According to one bystander, Carl Hughley, the officer pulled up and asked Oliver to approach her vehicle. He complied. Oliver then knocked on the rear

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driver-side window and unsuccessfully attempted to open the locked rear door of the police cruiser. Fiorino used her loud speaker to instruct Oliver to move to the front of her vehicle; again, he complied. Fiorino then directed Oliver to move further away from the vehicle, which he did. Fiorino then exited her vehicle. At this point, Oliver was standing some twenty-three feet away from Fiorino, who was near her vehicle.

Oliver did not speak before Officer Fiorino pulled out her Taser gun and asked Oliver what the problem was. Oliver responded to Fiorino's questions, saying " they're shooting at me" several times, and pointing across the street. Fiorino told Oliver to calm down and tell her what was going on. Oliver attempted to walk away; Fiorino asked him to stay and talk. According to Fiorino, Oliver then began to walk quickly toward her. In response, Fiorino raised her Taser gun and told Oliver to step away from her. Oliver complied. Fiorino observed that throughout this encounter, Oliver was " very fidgety." According to Hughley, however, Oliver never acted in a threatening or belligerent manner toward the officers, nor did he even curse at them.

Officer Fiorino asked Oliver for details about who was shooting at him and under what circumstances. She also called her dispatch to inquire whether there had been any reported shootings in the area. Dispatch told her there had been a shooting reported eight or nine miles away, but none in her area. When Fiorino was advised there had been no shooting in the area, she requested back-up.

Shortly thereafter, Officer David Burk arrived on the scene. Burk parked his car so that it, along with Fiorino's car, boxed in the left turning lane where the incident was unfolding. When Burk arrived, Oliver was standing several feet from Fiorino in the median, speaking loudly and " moving his hands around." Fiorino and Burk testified that they considered taking Oliver into custody under Florida's Mental Health Act, Fla. Stat. § 394-463(1) (" the Baker Act" ), because he appeared to them to be mentally unstable. Nonetheless, Fiorino and Burk never informed Oliver of this fact, and never attempted to either arrest Oliver or " Baker Act" Oliver at any time during the entire incident.

Officer Burk approached Oliver, who was still standing in the median, to ask him for his name and identification. Oliver complied, giving Burk his identification card. Burk then decided to coax Oliver across the Eastbound side of the street (across the blocked turning lane and the other lanes) to the sidewalk, so that they could talk when he saw there was " no traffic at all," and once the light turned red. Burk attempted to do so by putting his right hand on Oliver's left shoulder. Oliver responded by trying to back away. Oliver then " momentarily stopped" in the blocked turning lane of the street and began to babble incoherently. When the light changed and the traffic (if any) in the other lanes began to move again,1 Burk tried to force Oliver across the street, but Oliver struggled and pulled away from him.

During the encounter, Burk held on to Oliver's shirt as Oliver attempted to walk away across the street. At this point, Oliver did not try to grab Burk or to swing at him. Fiorino nevertheless, and without warning, tased Oliver for the first time.

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Fiorino was using a Taser M26 Electronic 10 Control Device, which was " designed to cause significant, uncontrollable muscle contractions capable of incapacitating even the most focused and aggressive combatants." [Doc. 143-8 at 28]. " The [T]aser gun fires two probes up to a distance of twenty-one feet from a replaceable cartridge. These probes are connected to the [T]aser gun by high-voltage insulated wire. When the probes make contact with the target, the [T]aser gun transmits electrical pulses along the wires and into the body of the target, through up to two inches of clothing." Draper v. Reynolds, 369 F.3d 1270, 1273 n. 3 (11th Cir.2004). The pulses are five seconds in duration, unless the trigger is held down longer than five seconds. [Doc. 142-43 at 70]. " Each 5-second cycle is a ‘ window of opportunity’ for the arrest team to apprehend the subject and go hands on." Id. at 73.

The Taser prongs from Officer Fiorino's first tase hit Oliver in his abdomen. According to Carl Hughley, this tase brought Oliver to the ground. While the Taser cycled through its five-second shock, Burk tried neither to handcuff Oliver nor to move him. This is so, despite the fact that, according to Hughley, once Oliver was on the pavement after the first tase, he never got back up, and he never hit, kicked, punched, or threatened the officers. Three to four seconds after the first Taser cycle ended, Fiorino tased Oliver once again. Ten seconds after the end of the second cycle, she tased Oliver still again for the third time.

After Oliver was shocked by the Taser, according to Hughley, Oliver was lying on the scorching hot asphalt screaming in pain that it was " too hot." Another bystander, Richandra Nelson, said that Oliver remained on the ground while Burk just stood there and watched Fiorino tase him. Both Nelson and Hughley witnessed Oliver attempting to get up from the ground, but said that they never saw him struggling with, hit, kick, punch, or threaten Burk in any manner. Hughley stated that when Oliver went down, he couldn't roll over. When he tried to sit up, he flopped down like a " wet cloth" because he had no control over his body.

After approximately the third or fourth tase, one of the Taser wires became disconnected from the Taser prong and stuck into Oliver's chest. Fiorino loaded a second cartridge into her Taser and began tasing Oliver again. This tase and the next three or four tase cycles caused Oliver to be totally immobilized, leaving him clenched up and lying on his back. After the sixth or seventh tase, Oliver was again seen lying on the hot asphalt. Officer Fiorino said that when she tased Oliver for the last time (the eighth recorded tase), he was lying flat and he did not get up.

Fiorino said she was not sure how many times she tased Oliver, but that she just kept pulling the trigger until he...

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