UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF
ALABAMA, NORTHERN DIVISION
v.
DEPUTY CHRIS INABINETT, in
his individual capacity, Defendant
2:05-CV-740-DRB WO
2006 U.S. Dist. Lexis 68003
September 20, 2006,
Decided
September 20, 2006, Filed
MEMORANDUM OPINION AND ORDER
This 42 U.S.C. § 1983 complaint of Fourth Amendment-barred
excessive force arises from an encounter between Covington County Deputy
Sheriff Chris Inabinett ("Defendant") and N.A., then a sixteen-year
old boy ("Plaintiff"), whose mother, Janet Ainsworth ("Mrs.
Ainsworth") summoned law enforcement officers to their residence in
response to the boy's attempted suicide. In a Memorandum Opinion and Order
filed February 7, 2006 (Doc. 30), 2006 U.S. Dist. Lexis 7446, the court granted
defendants' Fed. R. Civ.P 12(b)(6) dismissal motions, grounded on qualified
immunity, on all claims asserted by Ainsworth but denied the similarly grounded
motion on the boy's claim against the deputy sheriff in his individual capacity. n1
On July 28, 2006, Deputy Sheriff Inabinett, the sole remaining
defendant, filed his Motion for Summary Judgment (Doc.37) along with a
memorandum brief and evidentiary materials as support (Docs. 38, 39). Upon
Plaintiff's failure to file any response in opposition, Defendant filed a Reply
Brief (Doc.42, Aug. 31, 2006) to highlight the unopposed nature of his motion.
n2 Following due consideration of summary judgment motion, the evidentiary
record, and applicable law, the court concludes and explains herein that the
requested summary judgment is appropriate.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ. P. 56(c). The
party seeking summary judgment "always bears the initial
responsibility of informing the district court of the basis for its motion,
identifying those portions of "the pleadings and evidentiary record"
which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993)(discussing burden-shifting under Rule 56). In response to a
properly supported motion for summary judgment, the "adverse party may not
rest upon the mere allegations or denials of the adverse party's pleading, but
the adverse party's response, by affidavits, or as otherwise provided . . . .
must set forth specific facts showing that there is a genuine issue for
trial. " Fed. R.Civ.P.56(e).
II. UNDISPUTED FACTUAL BACKGROUND
The court finds the relevant facts both undisputed by Plaintiff
and amply supported by evidentiary materials filed with Defendant's summary
judgment motion.
Upon noticing her sixteen- year old, mentally unstable son's
"distressed state" in his bedroom after "wrapp[ing] a belt
around his neck and . . . choking himself with it" in the afternoon of
July 13, 2005, Ainsworth made an emergency call for immediate dispatch of a
rescue squad and "told the 911 operator that her son had just tried to
choke himself." n3 The Complaint describes N.A. as "a troubled young
man with a diagnosed history of mental illness and instability which is largely
controlled by medication," and reports that "[t]he fact of that
mental illness is well known to the Sheriffs Department of Covington County, as
deputies have been dispatched to N.A.'s home on several occasions to assist the
family in administering medication to him." n4
Defendants have filed extensive medical records which document
his significant history of diagnosed mental illnesses -- including -- Bipolar
II Disorder (with possible psychotic features), Conduct disorder, Oppositional
Defiant Disport, and antisocial personality traits -- as well as previous
suicide attempts and other episodic manifestations of his illness. n5 Also
documented on this summary judgment record is the Plaintiff's threat -- made
barely six months before the July 2005 incident -- to kill his mother with a
gun located inside the family's home; this threat resulted in his arrest for
Third Degree Assault Violence, for
which Plaintiff received probation still active on the incident underlying this
litigation. n6
Deposition testimony by the Plaintiff's parents confirm the
triggering event for the episode which resulted in the summoning of officers to
their home on July 13, 2005: his arguments with them upon being confronted
about his failure to take his medications. In response to his mother's reported
attempt to get him admitted into a treatment facility, Plaintiff retreated to
his bedroom, where he sat on his bed with his back against the wall near the
foot of the bed, placed a leather belt around his neck, running the loose end
through the buckle, and began choking himself for ten to fifteen seconds. n7
His brother Robert found him, and after alerting his mother and with assistance
from his father, struggled for about two minutes to prevent the suicide
attempt; they witnessed Plaintiff either foaming at the mouth or vomiting.
Notwithstanding Plaintiff's physical and verbal resistance, they managed to
secure him lying down on the bed with his head near the headboard and his feet
near the foot of the bed.
A Covington County emergency line dispatcher responded to Mrs.
Ainsworth's call by sending to her home an Andalusia Rescue Unit Squad, Deputy
Inabinett, Red Level, Alabama Chief of Police David Anderson, and several other
county law enforcement officers. The transcript of the emergency call captured Plaintiff's continuing resistance to his
parents' summons for help n8 and documents graphically that Plaintiff's
physical resistance increased during the approximate lapse of eleven minutes
until the very moment of the Deputy's arrival with other rescue officers. n9
The fact of Plaintiff's physical battle with his parents was
communicated by the emergency operator over the Covington County public safety
radio and thereby heard by Defendant; a female command reported Plaintiff's
attempted suicide and his" threatening violence toward officers"
while a male command added, "hope you got your TASER . . . they're still
fighting with him . . Units responding, be advised, the subject's fighting with
them again now." n10 Defendant responded with inquiries about the need for
an additional unit and about any weapons used by Plaintiff. n11
Familiar with Plaintiff and his family through similar incidents
at the residence, Chief David Anderson arrived with the first emergency unit
and received a report from Mrs. Ainsworth before entering Plaintiff's bedroom
to find him still struggling with his father and brother, who acquiesced in the
Chief's request that they leave. Alone with Plaintiff for one to two minutes,
the Chief attempted to calm him.
The events which unfolded upon Defendant's arrival within a
minute or so are documented by consistent testimony from Chief Anderson and
Deputy Inabinett as well as the video taken from the Defendant deputy's
dashboard video system, which included a remote body microphone worn by the
deputy to enable the video system to record audio anywhere the deputy went. n12
Reflecting his priority concern for Chief Anderson's safety, Defendant --
holding his M-26 Advanced TASER gun in his right hand -- did not linger with
Mrs. Ainsworth standing in the front doorway but instead. rushed in the
direction specified pointed as his location. Approaching Plaintiff's bedroom,
he saw the Chief and Plaintiff "sitting on a bed that was pushed up
against a wall in the far corner of the room . . . holding on to the metal
frame headboard railing with both hands." Defendant recalled as follows
the next occurrence:
As I entered the room, I
asked Neal, "What's up, man?" I stopped next to Chief Anderson on his
right hand side. Neal responded that he was not going anywhere. Both Chief
Anderson and I said, "come on Neal." In response, Neal began using
profanity and repeated that he was not going anywhere. While this was going on,
the Plaintiff appeared to be foaming at the mouth. He had a wild look on his
face. He glared at Chief Anderson and myself and said we were going to have to
"choke him down" because he was not going anywhere. Based upon
Plaintiff's violent and irrational behavior, I concluded that the Plaintiff
posed a significant danger to himself as well as Chief Anderson and I. As a
result, I issued the Plaintiff his first warning that I would use the TASER
that was in my hand. The Plaintiff responded that I would not shoot him with
the TASER. Janet Ainsworth, the Plaintiff's mother, was behind me, became
emotional, and asked me not to use the TASER. Her demeanor only increased my
concerns regarding the volatility of the situation.
In both my training and
experience, I have learned that domestic situations can rapidly escalate and
explode into violent confrontations with little to no warning. Family members who call for help can, and often do, turn
on officers who were summoned to help them. In this situation, I had a clearly
violent and unstable subject to my front, and at least three members of his
family at my back. Their position cut off my only line of retreat if it became
necessary. Accordingly, based upon my training, experience, and the information
I had at the time, I decided to end the situation as quickly as I possibly
could, and get the Plaintiff out of the residence. Furthermore, the Andalusia
Rescue ambulance crew could not, and would not, treat the Plaintiff until the
scene was secure. I issued the Plaintiff his second warning that I would use
the TASER. n13
Notwithstanding the two
warnings, Plaintiff remained belligerent and more aggravated as his mother's
emotional response to the situation heightened. Defendant then "tucked the
TASER into [his] back pocket" and tried without luck to cajole Plaintiff
into submission; after ignoring four orders from Defendant and two from Chief
Anderson to come off the bed, Plaintiff threatened to hit Defendant if he
ventured to move him. The officers' then applied more direct pressure with the
Plaintiff, as Defendant recalls:
Chief Anderson and I moved
simultaneously. He came across the bed and tried to grab one of the Plaintiff's
arms and pull it from the bed. I came across the foot of the bed, and grabbed
the Plaintiff's other arm. Chief Anderson and I tried unsuccessfully for
several seconds to pry the Plaintiff's hands off of the headboard. The
Plaintiff was very strong and we were unable to get the Plaintiff's hands free.
Seeing that we were not going to be able to make the Plaintiff let go of the
headboard by simply pulling on his arms, I attempted a nerve-strike technique I
learned in the academy. Using my fist, I struck twice at the Plaintiff's arms
in the area of a nerve that is located on the forearm below the elbow. A strike
of sufficient force on the nerve will cause a temporary numbness that would
have enabled us to pry the Plaintiff's hand loose. My first strike was to the
Plaintiff's left arm and he let go of the headboard with that arm. My second
strike to the Plaintiff's right arm was unsuccessful as the Plaintiff
maintained his hold on the bed with his right hand. n14
In lieu of continuing to apply blunt force to no avail,
Defendant, a certified TASER instructor, resorted to that weapon with the
direction and support of Chief Anderson, using only the force necessary to subdue
Plaintiff, as reflected by his testimony as follows:
I withdrew my TASER, turned
it on, aimed it at the Plaintiff and fired. *** I used the TASER with a
cartridge on the front. The cartridge fires two probes that are the equivlent
of a straightened number 2 fishhook. The probes are connected to the TASER by
two thin wires that deliver electricity from the TASER, through the probes, and
into the subject's body. When the trigger is pulled on the TASER, in addition
to firing the probes if a cartridge is attached, the device delivers a
five-second discharge of electricity at .0036 amps. The TASER will deliver the
electricity for the full five-seconds, regardless of whether the user continues
to depress the trigger. The cycle can be interrupted by turning the TASER's
safety on, and thus turning the TASER off.
In this incident, I used a
cartridge and depressed the trigger one time. When I did so, the two probes
from the TASER hit the Plaintiff in the upper left arm and left side. The
Plaintiff received a five-second discharge from the TASER. When the probes hit
the Plaintiff, he finally turned loose on the headboard. I instructed the
Plaintiff to lay down on his belly so he could be handcuffed. The Plaintiff
finally complied with my instructions and Chief Anderson put handcuffs on him.
***
The Plaintiff did not put up
any further struggle after he was handcuffed and I used no further force
against him, other than to guide him by his arm to my patrol car, and
eventually the ambulance. n15
At the Andalusia Regional Hospital Emergency Room, Plaintiff had
cream and a band-aid applied on each of his TASER wounds, and the report
disclosed no injuries or abnormalities which required treatment. n16 Though
advised at the scene of his arrest on misdemeanor charges, Plaintiff was not
taken to jail but instead released by ambulance from the hospital, after an
hour or so, to the Laurel Oaks
Behavioral Health Center for treatment between fourteen and eighteen days.
Admission records included a diagram of the bodily wounds, described as two
taser marks; four bruises -- one on the right side of his neck, another on his
left knee, and two near the left center of his back; a forehead abrasion from a
previous accident; two 1/2 inch cuts on his left hand from glass; a one-inch
cut on his left forefinger from tin; and an old scar on his right knee. n17 The
misdemeanor charges -obstruction of governmental operations and resisting
arrest -- have not advanced to trial or otherwise been terminated. n18
III. DISCUSSION
A. Standard of Review: Excessive Force" and Qualified
Immunity
When a defendant properly asserts the defense of qualified
immunity, n19 as Defendant has in this case,
n20 judicial review sharpens in the first instance to the existence vel
non of allegations which rise to the level of a constitutional violation; as
the Court expressed the inquiry in Saucier v. Katz, 533 U.S. 194, 201, 121 S.
Ct. 2151, 150 L. Ed. 2d 272 (2001):
A court required to rule
upon the qualified immunity issue must consider, then, this threshold question:
Taken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer's conduct violated a constitutional right? . . .
[I]f a violation could be made out on a favorable view of the parties'
submissions, the next, sequential step is to ask whether the right was clearly
established. This inquiry . . . must be undertaken in light of the specific
context of the case, not as a broad general proposition.
See also Marsh v. Butler
County, 268 F.3d 1014, 1031-33 (11th Cir. 2001)(en banc).
The Fourth Amendment's protection against unreasonable searches
and seizures' includes an individual's right to be free from the use of
excessive force. A constitutional standard of "objective
reasonableness", outlined in Graham v. Connor, 490 U.S. 386, 396, 109 S.
Ct. 1865, 104 L. Ed. 2d 443 (1989), "governs a free citizen's claim that
law enforcement officials used excessive force in the course of making an
arrest, investigatory stop, or other 'seizure' of his person." Id. at 388:
Because "[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application," Bell v. Wolfish, 441 U.S. 520, 550, 99 S. Ct.
1861, 60 L. Ed. 2d 447 (1979), however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.
( emphasis added). Assessing
the reasonableness of the force in controversy must be "judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight." Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.
Ct. 1868, 20 L. Ed. 2d 889 (1968)).
B. Excessive Force Analysis
Plaintiff's complaint survived dismissal against Defendant's
assertion of qualified immunity solely because it alleged that the Defendant
deputy assaulted him gratuitously, with fists followed by a TASER, absent any
provocation, resistance, legitimate law enforcement or other reasonably
necessary purpose. The well-documented and wholly undisputed evidentiary record
establishes clearly and convincingly, however, the absence of any such assault.
Instead, it graphically portrays law enforcement
officers' patient and reasonable efforts to restrain an indisputably mentally
disturbed youngster whose suicide attempt and unrelenting belligerence
threatened further harm to him, to his mother who summoned officers to the
residence for just that purpose, and also to his father and brother frantically
seeking to calm him. Before applying physical force to any degree, Defendant --
acting at all relevant times within his discretionary authority as a deputy
sheriff -- n21 made repeated though failed attempts to gain Plaintiff's
confidence and cooperation.
Guided by relevant Eleventh Circuit case law established at the
time, the court readily concludes that the minimal physical force and TASER
strikes applied by Deputy Inabinett against Plaintiff fell well short of any
constitutional violation. The specific force he applied must be weighed against
the totality of these relevant facts and circumstances:
(1) Plaintiff's propensity
for, and history of mental illness attended by violence;
(2) Plaintiff's history of
suicidal behavior and actual attempts; Defendant's knowledge -- through
Plaintiff's past encounters with law enforcement officers -- of Plaintiff's
violent character;
(3) the fact that
Plaintiff's mother summoned officers to quell what she observed as Plaintiff's
uncontrollable, threatening, suicidal behavior, coupled with valid
governmental/law enforcement interest in preventing suicides;
(4) the fact that the
emergency line operator's telephone contact with Plaintiff's mother allowed her
to monitor, and to receive reports on, Plaintiff's increasingly violent and
threatening behavior as his family tried to calm him;
(5) the fact of the
emergency line operator's radioed communications to summoned officers,
including Defendant, of the Plaintiff's continuing violence;
(6) the fact that Defendant
received a specific warning from radio dispatchers that Plaintiff threatened to
harm officers and should be considered dangerous;
(7) Plaintiff's actual,
specific threats to Defendant in response to efforts to restrain him without the use of force coupled with Plaintiff's
pledge to harm officers if they persisted in using force to restrain him;
(8) Defendant's efforts
first to restrain Plaintiff by reasoning with him, next by applying strategic
force with his hands, and only as a last resort, by firing the TASER only once
for a five-second discharge;
(9) Defendant's two warnings
to Plaintiff before using the TASER and his delay after each warning in order
to solicit Plaintiff's cooperation;
(10) the fact that Defendant
did not fire the TASER more than the single time needed to subdue and handcuff
Plaintiff; and
(11) the absence of any
serious or permanent injuries to Plaintiff as a result of the force applied,
and evidence that the force left no injuries which required more than a single
minor examination and minimal treatment in the emergency room. n22
Balancing the force in
controversy with these several facts militates clearly in favor of Defendant on
the allegation of excessive force. While no single factor is determinative, it
bears noting that within the Eleventh Circuit the use of a TASER is not alone
evidence of excessive force. See Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004). n23
In sum, the court concludes readily that the defendant deputy sheriff
did not violate Plaintiff's constitutional right to be free from excessive
force because the force applied was not "plainly excessive, wholly
unnecessary, [or] grossly disproportionate under Graham." See Lee v.
Ferraro, 284 F.3d 1188, 1199(11th Cir. 2002)(denying qualified immunity on
evidentiary finding of excessive force from officer's beating attack on
handcuffed suspect who neither resisted nor attempted to flee)).
IV. CONCLUSION
Consistent with the foregoing Memorandum Opinion, it is ORDERED
as follows:
1. Defendant's summary judgment motion (Doc. 37) is GRANTED;
2. Judgment is GRANTED in favor of the Defendant, Covington
County Deputy Sheriff Chris Inabinett, in his individual capacity and against
the Plaintiff, N.A., a minor who sues by and through Janet Ainsworth, his
mother and next friend. All claims asserted are dismissed with prejudice, and a
separate Final Judgment is entered herewith;
3. Costs are taxed against the Plaintiff; and
4. The scheduled pretrial conference on October 12, 2006, and the scheduled jury trial on November 6, 2006, are each hereby cancelled.
Done this 20th day of September, 2006.
/s/ DELORES R. BOYD
UNITED STATES MAGISTRATE JUDGE
FINAL JUDGMENT
In accordance with the Memorandum Opinion and Order entered on
this day granting the Defendant's Motion for Summary Judgment, it is the ORDER,
JUDGMENT, and DECREE of this Court that:
1. JUDGMENT, pursuant to
Rule 58 of the Federal Rules of Civil Procedure, is hereby entered in favor of
the Defendant, Covington County Deputy Sheriff Chris Inabinett, in his
individual capacity, and against the Plaintiff, N.A., a minor who sues by and
through Janet Ainsworth, his mother and next friend.
2. Costs are hereby taxed
against the Plaintiff.
3. This action is dismissed
with prejudice.
Done this 20th day of September, 2006.
/s/ DELORES R. BOYD
UNITED STATES MAGISTRATE JUDGE
FOOTNOTES:
n1 This
claim of "unreasonable force" comprises Count II of the Second
Amended Complaint (Doc. 26), PP 55-65 at 7-8.
n2
Defendant also argues, citing Greenbriar Ltd. v. City of Alabaster 881 F.2d
1570, 1573 n.6 (11th Cir. 1989) that "Plaintiff's failure to file an
opposition brief constitutes a waiver of his claim against Deputy
Inabinett." Lack of opposition to a summary judgment motion, however, does
not authorize its grant for that reason; instead, the court is required to
examine the merits of the motion. See Trustees of Central Pension Fund v. Wolf
Crane Service, Inc., 374 F. 3d 1035, 1039(11th Cir. 2004)( "summary
judgment cannot be granted as a sanction for merely failing to file a response
to a motion for summary judgment"); United States v. One Piece of
Property, 5800 S.W. 4th Ave., Miami, Florida, 363 F.3d 1099 (11th Cir. 2004)("The
district court cannot base the entry of summary judgment on the mere fact that
the motion was unopposed but, rather, must consider the merits of the
motion.")
n3
Compl. PP 8-9. All references to the Complaint relate to the Second Amended
Complaint allowed for filing on January 6, 2006 (Doc. 26).
n4 Id.
n5 See
Laurel Oaks Behavioral Health Center Records (Exs. A and C); Excerpts of
Deposition of Janet Ainsworth (Ex. B); Excerpts of Deposition of Robert
Ainsworth, Sr. (Ex. E).
n6 See
Ex. A and Ex. F, Alabama Uniform Incident/Offense Report, Case No. 051100208.
n7
Def.'s Br. at 5, citing from the depositions of Plaintiff and his parents.
n8
Apparently overhearing his mother's request for a "rescue squad [because
he] tried to hang himself, Plaintiff emphatically declared to her, "I'm
not going" and commenced to increase his belligerence with his father's
and brother's efforts to restrain, to the extent of inflicting injury to his
father. Though she remained on the phone with the emergency dispatcher, Mrs. Ainsworth
tried to calm her son, to dissuade him from hurting his father and brother, and
to reinforce his need for hospitalization. When Plaintiff demands that she put
down the phone, she responds: "No, I've got to hold it. Neal, it's the
rescue squad. What I'm calling is the rescue squad. You've got to have
help." Ignoring his mother's pleas for his cooperation, Plaintiff
threatened: "When they come, I'm going to hit them and hit everybody else,
you got to hold . . . I ain't going back to jail . . . I'm gonna punch 'em in
the face. I'm telling you . . . . They can't take me out of here. They better
have some guns, stun guns, They better have a bulldozer."
In response to the emergency operator's
inquiry, "tell me what's going on", Mrs. Ainsworth offered: "He's
just laying here fighting us." As Ainsworth provided requested information
to the emergency operator, Plaintiff's rants became more threatening, profane,
and hostile (e.g., "[t]hey ain't gonna calm me if they ain't got a
bullwhip."), prompting the operator to assure Ainsworth that help is
enroute and to caution Ainsworth to watch Plaintiff's breathing and make sure
he did not choke on his vomit.
See Ex. I at 1-8.
n9 The
following colloquy illustrates the ongoing battle up to the officers' arrival:
911 Operator: They're coming to you, OK?
Janet Ainsworth: All right.
Plaintiff: Where are they at so I can go
ahead and get up here
from the bed?
Janet Ainsworth: You . . . Wipin' under your nose and around
your mouth.
Be still.
Plaintiff: I don't care what I have.
Janet Ainsworth: You smell like vomit Neal. Stop.
Robert Ainsworth Jr.: I got
him, mama.
Janet Ainsworth: Stop Neal.
***
No. I'm gonna . . . you're going to stay
still.
Plaintiff: I'll get ya.
Janet Ainsworth: Nuh oh, Neal.
Plaintiff: I'll show you what I'm gonna do.
Janet Ainsworth: Neal. They are right here now.
Robert Ainsworth Jr.: You
can't do that.
911 Operator: They're coming to you.
Janet Ainsworth: Neal. Neal.
Robert Ainsworth Jr.: Come
on Neal.
Janet Ainsworth: Stop Neal. Neal, stop.
Robert Ainsworth Sr. Neal . . .
Janet Ainsworth: Stop!
Robert Ainsworth Jr.: Come
on, Neal.
Janet Ainsworth: You gotta . . . Neal stop.
Robert Ainsworth Sr.: Stop
it now.
Janet Ainsworth: Stop Neal. Stop Neal.
Robert Ainsworth: Neal. Nuh uh, don't break that.
Janet Ainsworth: Nuh uh.
911 Operator: What's he doing, honey?
Robert Ainswoth Sr.: Neal!
Janet Ainsworth: He's fightin'.
Robert Ainsworth Sr.: Neal!
Janet Ainsworth: Oh God.
Robert Ainsworth Sr.: Oh
[approximately]
911 Operator: OK. [following beeping of phone
twice]
Janet Ainsworth: Stop it. They're right here. They out
here.
Robert Ainsworth: Quit. Quit [approximately]
Plaintiff: Y'all, stop [approximately]
911 operator: OK, I've got an officer there, baby.
Robert Ainsworth Sr. Grab that.
Janet Ainsworth: Need help? Hold him down.
911 Operator: OK, he's coming to you. He's at your
yard. Can he get
in? Can the officer come in?
Janet Ainsworth: Yes, please hurry.
911 Operator: David Anderson is in the front yard
now.
Janet Ainsworth: Yes, I see him. OK, he's here.
911 Operator: OK.
Janet Ainsworth: He's tried to hang himself and he's
vomited on us in
here. OK, he's here, thank you, ma'am.
Ex. I at 12-14 and Ex.
A (audio tape of E911 call, filed on July 28, 2006, as Doc. 39).
n10
Def.'s Br. at 13.
n11 Ex.
J, Affidavit of Chris Inabinett ("Inabinett Aff.") and attached Ex. B
(audio tape of radio traffic) and Ex. C (transcript of radio traffic).
n12 See
Inabinett Aff. (Ex. J), and Anderson Aff. (Ex. K); Radio Traffic disk (Ex. B to
Ex. J); Dashboard video disk and transcript(Exs. D and E to Ex. J). The court
bases its summary of these events on a reading of all this relevant evidence.
n13
Inabinett Aff. PP 36-47.
n14 Id. PP
56-59.
n15 Id.
PP 62, 66-70.
n16 Ex.
M, 7/13/05, Andalusia Regional Hospital Records; Ex. D, N. Ainsworth Dep. at
86.
n17 Ex.
N.
n18
Def.'s Br. at 24.
n19
Qualified immunity offers "complete protection for government officials
sued in their individual capacities if 'their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.
2002)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.
Ed. 2d 396 (1982)).
n20 See
Answer to Plaintiff's Second Amended Complaint, Doc. 32, P 2.
n21 An
officer asserting qualified immunity "must first prove that 'he was acting
within the scope of his discretionary authority when the allegedly wrongful
acts occurred.'" Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.
1991)(quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1998)).
n22 See,
e.g., Nolin v. Isbell, 207 F. 3d 1253, 1257 (11th Cir. 2000)(discussing de
minimis injuries).
n23 As
established on summary judgment submissions, the Draper facts reveal a
belligerent truck driver who, after being stopped by an officer for a traffic
infraction, became increasingly loud, profane, hostile, and obstinate,
complaining of mistreatment and refusing after four requests to comply with the
officer's request for certain documents. On the fifth request the officer
"promptly discharged his taser gun at Draper's chest", felling him,
and "threatened to discharge the taser gun again if Draper did not
comply." 369 F.3d at 1273. Under those specific circumstances, the
Eleventh Circuit held, in pertinent part:
Reynold's
use of the taser gun to effectuate the arrest of Draper was reasonably
proportionate to the difficult, tense and uncertain situation that Reynolds
faced in this traffic stop, and did not constitute excessive force. From the
time Draper met Reynolds at the back of the truck, Draper was hostile,
belligerent, and uncooperative. . . . [T]here was a reasonable need for some
use of force in this arrest. . . . Although being struck by a taser gun is an
unpleasant experience, the amount of force Reynolds used -- a single use of the
taser gun causing a one-time shocking -- was reasonably proportionate to
the need for force and did not inflict
any serious injury.
Id. at
1278.