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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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...

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