Lewis v. City of West Palm Beach, Fla., No. 08-12348.

• Decision Date: 11 March 2009
• Docket Number: No. 08-12348.
• Citation: 561 F.3d 1288
• Parties: Linda LEWIS, as mother and personal representative of the estate of her son, Donald George Lewis, deceased, Plaintiff-Appellant, v. CITY OF WEST PALM BEACH, FLORIDA, Raymond Shaw, Robert Leroy Root, III, Randall Maale, Thelton Luke, Audrey Dunn, Police Officers for the City of West Palm Beach Police Department, in their individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

561 F.3d 1288

Linda LEWIS, as mother and personal representative of the estate of her son, Donald George Lewis, deceased, Plaintiff-Appellant, v. CITY OF WEST PALM BEACH, FLORIDA, Raymond Shaw, Robert Leroy Root, III, Randall Maale, Thelton Luke, Audrey Dunn, Police Officers for the City of West Palm Beach Police Department, in their individual capacities, Defendants-Appellees.

No. 08-12348.

United States Court of Appeals, Eleventh Circuit.

March 11, 2009.

Matthew P. Farmer, Farmer & Fitzgerald, P.A., Ronald J. Kurpiers, II, Atty. at Law, Tampa, FL, for Plaintiff-Appellant.

Douglas Neil Yeargin and Elissa Dale Cohen, West Palm Beach, FL, Bradley Gerard Harper, Olds & Stephens, P.A., West Palm Beach, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and CARNES, Circuit Judges, and GOLDBERG,^* Judge.

GOLDBERG, Judge:

While in the custody of five police officers in West Palm Beach, Florida, Donald George Lewis became unconscious, and eventually died. Following the death of her son, Linda Lewis filed an action against the City of West Palm Beach and the individual police officers Raymond Shaw, Robert Leroy Root III, Randall Maale, Thelton Luke, and Audrey Dunn pursuant to 42 U.S.C. § 1983 and Florida state law. The district court granted summary judgment in favor of the City of West Palm Beach and the individual officers. Ms. Lewis appealed this order. For reasons discussed below, we affirm the decision of the district court.

Background

On October 19, 2005, Officer Raymond Shaw encountered Donald George Lewis near the intersection of 45th Street and Broadway in West Palm Beach, Florida. Lewis was disoriented, stumbling into the road, and trying to flag down passing vehicles. Officer Shaw attempted to stop Lewis, who was breathing heavily, grunting incoherently, and appeared to be under the influence of some type of narcotic. Shaw instructed Lewis to sit down on the side of the road. Lewis complied, but seconds later he stood and ran into traffic. Shaw struggled with Lewis and maneuvered him to the ground. He then attempted to handcuff Lewis's hands behind his back. Officer Robert Root appeared on the scene. In an effort to assist Shaw in the handcuffing process, Officer Root placed his knee on Lewis's upper back and neck. Officer Thelton Luke also arrived on the scene. Officers Luke and Root then bound Lewis's legs using a leg restraint. Throughout, Lewis continued groaning and breathing heavily and did not respond to Shaw's repeated requests to calm down. The three officers carried Lewis to the side of the road. They attempted to place him in a seated position, but Lewis would not sit up. Officers Randall Maale and Audrey Dunn arrived. Officer Maale suggested Root further restrain Lewis by attaching the ankle restraint to the handcuffs with a hobble cord¹ (also known as "TARP," the total appendage restraint position). In an attempt to attach the hobble, Luke and Root kept their knees on Lewis's back, while Shaw picked up Lewis's bound legs and pushed them forward. The hobble was tightened so that Lewis's hands and feet were close together behind his back in a "hogtied" position.² After Lewis's hands and feet were bound together, Maale realized that Lewis had become unconscious. The officers removed the hobble and restraints and began CPR. Paramedics arrived within minutes, but were unable to resuscitate Lewis. He was later pronounced dead.

The exact cause of death is unclear. At the district court level, the defendants relied on the testimony of Dr. Michael Bell, the county medical examiner who performed the autopsy of Lewis. Dr. Bell concluded that the cause of death was "sudden respiratory arrest following physical struggling restraint due to cocaine-induced excited delirium." Ms. Lewis offered the expert testimony of Dr. Michael Baden, who testified that the cause of death was asphyxia caused by neck compression.³

Standard of Review

A district court's grant of summary judgment is reviewed de novo. Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir.2004). In evaluating the claims, the evidence and factual inferences are viewed in a light most favorable to the nonmoving party. Id. at 1226.

Discussion

I. Qualified Immunity for the Police Officers

Appellant claims that Officers Shaw, Root, and Luke in restraining Lewis used excessive force in violation of the Fourth Amendment. Appellant argues that Officers Maale and Dunn had a duty to intervene when witnessing the use of excessive force, and they failed to do so. She asserts that pursuant to 42 U.S.C. § 1983 the officers are liable for constitutional violations in their individual capacities. The officers dispute these assertions and claim exemption from civil liability under the doctrine of qualified immunity.

Qualified immunity protects municipal officers from liability in § 1983 actions as long "as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To receive qualified immunity, the officer must first show that he acted within his discretionary authority. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002). It is undisputed in this case that the officers were acting within their discretionary authority.

Once discretionary authority is established, the burden then shifts to the plaintiff to show that qualified immunity should not apply. Id. In analyzing the applicability of qualified immunity, the Court has at its disposal a two-step process. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Traditionally, a court first determines whether the officer's conduct amounted to a constitutional violation. Id. Second, the court analyzes whether the right violated was "clearly established" at the time of the violation. Id. The intention is to "ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful." Id. at 206, 121 S.Ct. 2151. Thus, if the violated right was not clearly established, qualified immunity still applies. Id. at 201, 121 S.Ct. 2151. The Supreme Court recently clarified the Saucier two-step process explaining that the order of the inquiry is fluid, providing the Court with the flexibility to focus on the determinative question. Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Supreme Court recognized that discussion of a constitutional violation may become unnecessary for qualified immunity purposes when the right was not clearly established. Id. It is therefore not mandated that the Court examine the potential constitutional violation under Saucier step one prior to analyzing whether the right was clearly established under step two. Id.

Such analytical flexibility is certainly applicable here. Even if the officers' actions violated Lewis's Fourth Amendment rights, the appellant did not demonstrate that the officers' conduct was an intrusion on a clearly established right. A right may be clearly established for qualified immunity purposes in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right, Long v. Slaton, 508 F.3d 576, 584 (11th Cir.2007); (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right, id.; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law. Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).

Here, case law does not provide the necessary precedent, either specifically or through broad principles, to clearly establish the right. Thus, only if the officers' conduct was so egregious and unacceptable so as to have blatantly violated the Constitution would qualified immunity be unavailable to them. However, to come within this narrow exclusion, "plaintiff must show that the official's conduct was so far beyond the hazy border between excessive and acceptable force that the official had to know he was violating the Constitution even without case law on point." Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997). This standard is met when every reasonable officer would conclude that the excessive force used was plainly unlawful. Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926-27 (11th Cir.2000). Appellant argues that because the officers further restrained Lewis with the hobble after the need for any use of force had passed and tightened it to form a hogtie, the officers' conduct rose to this level of egregiousness. This is not the case. Even though most of the officers in this case testified that Lewis was not a danger to them and was merely resisting arrest, he was, as the district court described, "an agitated and uncooperative man with only a tenuous grasp on reality." Because of his refusal to sit upright and his inability to remain calm, Lewis remained a safety risk to himself and to others.

As the district court observed, this was precisely the type of situation where the decisions of the officers confronted with "circumstances that are tense, uncertain, and rapidly evolving" should not be second-guessed. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Unlike many of the cases cited by plaintiff, Lewis did not remain compliantly restrained. Cf. Lee v. Ferraro, 284 F.3d 1188 (11th Cir.2002) (qualified immunity denied to officer who was physically rough with arrestee despite any sort of threat or physical aggression on her part); Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir.2000) (qualified immunity denied to officer who ordered a dog attack on a passive suspect); Smith v. Mattox, 127 F.3d 1416 (11th Cir.1997) (qualified immunity denied on summary judgment to officer who broke arrestee's arm after he was passively under...