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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IRA LEE MCQUEEN,

Plaintiff,

v. Case No. 3:10cv85MCR/EMT

DAVID MORGAN, Sheriff of Escambia 

County, Florida, DEPUTY SGT. SHEDRICK 

JOHNSON, DEPUTY SHERIFF MICKEY

A. O’REILLY, Jr., DEPUTY SHERIFF

JIMMIE TATUM,

 Defendants.

_____________________________________/

ORDER

The plaintiff, Ira Lee McQueen, filed this lawsuit under 42 U.S.C. § 1983 against

David Morgan, Sheriff of Escambia County, Florida (“Sheriff”), in his official capacity, and

Deputy Sergeant Shedrick Johnson (“Johnson”), Deputy Sheriff Mickey A. O’Reilly, Jr.

(“O’Reilly”), and Deputy Sheriff Jimmie Tatum (“Tatum”), in their individual and official

capacities, alleging that the deputy defendants used excessive force against him in the

course of an arrest in violation of his constitutional rights. Pending before the court are 1

two motions for summary judgment – one filed by Tatum (doc. 43) and the other filed by

Johnson and O’Reilly (doc. 44). Having considered the motions and responses, the court 2

finds that Tatum’s motion should denied and that the motion filed by Johnson and O’Reilly

should be granted in part and denied in part.

The plaintiff also asserted a state law claim of battery against Johnson, O’Reilly, and Tatum.

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The court granted the defendants’ motion to bifurcate discovery, for separate trials, and for

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abatement of discovery as to the plaintiff’s claims against the Sheriff in his official capacity. See doc. 35.

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BACKGROUND3

The plaintiff is a Special Agent with the State of Florida, Department of Business

and Professional Regulation, Division of Alcoholic Beverages and Tobacco. On October 4

28, 2008, the plaintiff was working undercover at a liquor store with Special Agent Tammy

Richards (“Richards”), investigating the sale of alcoholic beverages to minors. After

Richards informed the plaintiff that such a sale had occurred, the plaintiff entered the

business, identified himself, explained the infraction to the sales clerk, and asked the clerk

if he was armed. The sales clerk responded that he was, and the plaintiff proceeded to

retrieve a handgun from him. As he was doing so, a customer who had previously entered 5

the business observed the plaintiff holding the handgun and the sales clerk standing with

his hands on his head. The customer left the store and called 911 to report the incident. 

Specifically, the customer informed the dispatcher that a person, whom she initially

believed to be a friend of the sales clerk, was inside the store with a handgun and that she

was not sure what, if anything, was occurring; she also gave a description of the plaintiff. 

In response to the customer’s call, the dispatcher reported a possible armed robbery to the

Escambia County Sheriff’s Office (“ECSO”). 

Unaware that the customer had contacted law enforcement, the plaintiff called the

ECSO to run a check on the sales clerk; he was transferred to the records department and

placed on hold. While the plaintiff was on hold, approximately ten to fifteen deputies

arrived on the scene. The plaintiff observed the deputies while he was still in the store and

on the phone with the dispatcher. The plaintiff was aware that the deputies were yelling

at him, but claims that he could neither hear nor decipher their commands from inside the

In deciding a motion for summary judgment, the court must view the facts in the light most favorable

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to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). The court therefore

does so here, drawing those facts from the pleadings, depositions, and other evidentiary materials on file.

At the time of the events in question, the plaintiff had been employed by the ABT for approximately

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twenty-five years.

After retrieving the weapon, the plaintiff placed it in the right pocket of his jacket.

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store. Fearing that the deputies would begin shooting at him, the plaintiff kept his hands 6

in view and moved toward the door while attempting to identify himself by yelling “state

police.” As the plaintiff exited the store, he continued yelling “state police;” at the same

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time, the deputies demanded that he “show his hands,” “put down the phone,” and “get on

the ground.” The plaintiff began to go down on his knees almost immediately after exiting

the store; as he did so, Johnson, who had observed the plaintiff’s service weapon, which

was secured in a holster on his right hip, shot the plaintiff with a taser, causing him to 8

collapse on the ground. Once the plaintiff hit the ground, Johnson tased him again, 9

causing the plaintiff’s bladder to release, and then four or five deputies jumped on top of

him. While the deputies were on top of the plaintiff, Tatum observed the plaintiff’s service 10

weapon and yelled “gun.” O’Reilly then tased the plaintiff two more times and Tatum

Richards, however, was able to understand the deputies’ commands, as she testified in her

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deposition that the deputies told them to “get down” and that she and the sales clerk complied with their

commands. A video recording from a camera inside the store confirms that fact.

At this point, at least some of the deputies had observed the gun in the plaintiff’s pocket and most

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of them had their weapons drawn.

According to the Eleventh Circuit,

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[a] “taser” is a non-deadly weapon commonly carried by law enforcement.

The taser administers an electric shock to a suspect by shooting two small

probes into the suspect's body. The probes are connected to the firing

mechanism via wires. Once fired, the probes lodge under the suspect's skin

and administer an electric shock. This type of taser permits the officer to

incapacitate a suspect from a modest distance.

Fils v. City of Aventura, 647 F.3d 1272, 1276 n.2 (11th Cir. 2011).

Johnson claims that the plaintiff was not compliant with the deputies’ commands before being tased.

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He also testified that he tased the plaintiff only after he observed that the plaintiff was in possession of two

weapons and witnessed the plaintiff’s hands move in a direction that could have been construed as reaching

for one of the weapons. Similarly, Deputy Sergeant Richard Bailey testified in his deposition that he observed

one of the plaintiff’s arms move in a downward direction when the plaintiff was going to his knees, and an

underage person working undercover with the plaintiff testified that she observed a similar movement. A video

taken by a bystander’s on her cell phone reveals that, upon exiting the store, the plaintiff’s right hand was

grasping a cell phone and holding it to his ear, but the location of his left arm is not apparent.

Although the plaintiff testified in his deposition that his hands were out in front of him, he

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acknowledged in his response to the defendants’ motion that he fell to the ground with his hands beneath him.

Johnson testified that he tased the plaintiff again after he fell to the ground because he noticed the plaintiff

moving his hands.

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released his K-9, which the plaintiff claims attacked him for ten to fifteen seconds while the

deputies remained on top of him, biting him between four and seven times. The plaintiff

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maintains that he was incapacitated after the initial tasing and unable to comply with the

deputies’ commands. Once the plaintiff was restrained in handcuffs, one of the deputies

retrieved his identification from his pocket and discovered that he was a law enforcement

officer. The plaintiff claims that the deputies nevertheless failed to immediately release him

and left him lying on the ground in his urine with his hands handcuffed behind his back.

When he ultimately was released, the plaintiff was transported to Sacred Heart Hospital

for treatment of the injuries he received during the incident.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “[T]he plain language of Rule 56(a) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to 

make a showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). “[T]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is “material” if it might

affect the outcome of the case under the governing law, and it is “genuine” if the record

taken as a whole could lead a rational fact finder to find for the non-moving party. Id. 

Summary judgment is not appropriate “if a reasonable fact finder evaluating the evidence

The number of times the plaintiff was tased and the sequence in which the tasing occurred are in

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dispute. In his response to the defendants’ motion, the plaintiff contends that he was tased at least four times

(twice by Johnson and twice by O’Reilly). The defendants, on the other hand, insist that the plaintiff was tased

only three times (twice by Johnson and once by O’Reilly). In his deposition, the plaintiff testified to three

tasings – one as he was going to his knees, one as he was about to hit the ground, and another after he hit

the ground.

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could draw more than one inference from the facts, and if that inference introduces a

genuine issue of material fact.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th

Cir. 1995). As stated, when assessing the sufficiency of the evidence, the court must view

all the evidence, and all factual inferences reasonably drawn therefrom, in the light most

favorable to the nonmoving party. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,

918 (11th Cir. 1993). Whenever the nonmoving party has presented “sufficient, competent

evidence . . . to support [his] version of the disputed facts,” the court will resolve disputes

in his favor. Pace v. Copobianco, 283 F.3d 1275, 1276 (11th Cir. 2002). A mere scintilla

of evidence in support of the nonmoving party’s position, however, will not suffice to

demonstrate a genuine issue of material fact and thereby preclude summary judgment. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). 

B. Excessive Force

According to 42 U.S.C. § 1983, 

[e]very person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

In this case, the plaintiff claims that the deputies violated his Fourth Amendment right to

be free from unreasonable seizure when they repeatedly tased him and released a K-9,

all while he either was attempting to comply with their commands or was incapacitated.12

The Eleventh Circuit has recognized that, in making an arrest, law enforcement officers are

allowed to use whatever force is “necessary in the situation at hand.” Fils, 647 F.3d at

1288 (internal marks omitted). An officer’s use of force will be considered excessive,

however, if it was “‘objectively [un]reasonable in light of the facts and circumstances

 W here an excessive force claim “arises out of an arrest or investigatory stop of a free citizen, it is

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most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees

citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham

v. Connor, 490 U.S. 386, 395 (1989).

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confronting’ the officer.” Id. at 1287 (quoting Graham, 490 U.S. at 397). “Reasonableness

is ‘judged from the perspective of the reasonable officer on the scene’ without the benefit

of hindsight.” Id. (quoting Graham, 490 U.S. at 396). “This standard ‘allow[s] for the fact

that police officers are often forced to make split-second judgment – in circumstances that

are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in

a particular situation.’” Id. (quoting Graham, 490 U.S. at 396-97). When deciding a motion

for summary judgment, the court “cannot simply accept the officer’s subjective version of

events, but rather must reconstruct the event in the light most favorable to the non-moving

party, and determine whether the officer’s use of force was excessive under those

circumstances.” Id. at 1288. “When determining whether the force used to make an arrest

was reasonable for purposes of the Fourth Amendment, [the] court must carefully balance

the nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests.” Id. (internal marks omitted). The court

does so by considering (1) the severity of the crime of which the individual is suspected;

(2) whether the individual posed an immediate threat to the safety of the officers or others;

and (3) whether the individual actively resisted arrest or attempted to flee. Id. 

Viewed in the light most favorable to the plaintiff, the undisputed facts of this case

demonstrate that the plaintiff was suspected of a serious crime and did not comply with the

deputies’ commands while inside the store. Although there was no indication that the

plaintiff had threatened or harmed anyone at the time he exited the store, considering that

Richards and the sales clerk complied with the deputies’ commands, no jury could

reasonably find other than that the deputies reasonably believed the plaintiff heard their

commands but was resisting arrest in failing to comply with them as he exited the store. 

The court therefore finds that the first tasing was reasonable under the circumstances as

a matter of law. 

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Johnson has asserted the defense of qualified immunity. Because the court has found the first

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tasing incident reasonable under the circumstances, the court need not consider whether Johnson is entitled

to qualified immunity for his actions in that regard. See Fils, 647 F.3d at 1287 (noting that the first element

of a qualified immunity defense is the violation of a constitutional right).

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The plaintiff further claims that he was incapacitated by the initial tasing and

thereafter unable to comply with the deputies’ commands. According to the Eleventh

Circuit, “unprovoked force against a non-hostile and non-violent suspect who has not

disobeyed instructions violates that suspect’s rights under the Fourth Amendment.” Id. at

1289. In other words, although the use of tasers and other weapons may be appropriate

where an officer reasonably believes the suspect is violent, hostile, belligerent, and/or

uncooperative, tasing a suspect who is not violent, does not disobey orders or resist arrest,

and poses no risk to the defendants or anyone else violates the suspect’s Fourth

Amendment Rights. Id. at 1289-90; see Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th

Cir. 2008) (noting that the right of a non-resisting arrestee to be free from the gratuitous

use of force is well established in the Eleventh Circuit); Danley v. Allen, 540 F.3d 1298,

1309 (11th Cir. 2008) (holding that “[w]hen [officers] continue to use substantial force

against [an arrestee] who has clearly stopped resisting – whether because he has decided

to become compliant, he has been subdued, or he is otherwise incapacitated – that use

of force is excessive”); Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002) (noting

that, “[b]y 1998, [Eleventh Circuit] precedent clearly established that government officials

may not use gratuitous force against a [suspect] who has been already subdued or . . .

incapacitated”); Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 927 (11th Cir. 2000)

(denying qualified immunity where officer released K-9 on suspected burglar who put his

hands in the air and followed directions to drop to the ground). Given the plaintiff’s

statement that he was incapacitated after the initial tasing and the absence of any

evidence that the plaintiff was violent, resisting arrest, or disobeying commands, a jury

reasonably could find that the use of any force after the initial tasing was excessive. The

court thus finds that summary judgment is appropriate as to the plaintiff’s claim of

excessive force against Johnson based on the initial tasing, but that a genuine issue of

material fact exists as to the remainder of the plaintiff’s claims of excessive force.

C. Qualified Immunity

In addition to arguing that they did not use excessive force against the plaintiff, the

defendants maintain that they are entitled to summary judgment based on qualified

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immunity. According to the Eleventh Circuit, a claim of qualified immunity is to be analyzed

under a two-part test. First, the court must determine whether the plaintiff has offered

sufficient evidence to establish a constitutional violation. Fils, 647 F.3d at 1287 (citing

Saucier v. Katz, 533 U.S. 194, 200-02 (2001)). In the event he has, the court must

determine whether the constitutional right was clearly established at the time of the alleged

violation “such that a reasonable officer should have known that his conduct violated the

plaintiff’s constitutional rights.” Id. For the reasons set forth above, the court has 14

determined that the plaintiff has demonstrated a violation of his right to be free from the

use of excessive force after the initial tasing; the plaintiff, therefore, has satisfied the first

prong of the test with regard to each incident in which force was used after that point. As

for the second prong, the Eleventh Circuit has held that, to deny qualified immunity, the law

in effect at the time "must have been sufficiently clear to put [the defendants] on notice that

their conduct violated [the plaintiff's] Fourth Amendment rights." Id. at 1291. A defendant

is on notice that his conduct is unconstitutional if the relevant case law at the time of the

alleged violation would have made it clear to a reasonable officer that the amount of force

used was excessive. Id. It is not necessary that the case law demonstrate factual

circumstances “‘materially similar’” to the officer’s conduct; rather, an officer may be put

on notice that his conduct is unconstitutional even in “‘novel factual circumstances.’" Id.

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). A defendant also is on notice that his

conduct is unconstitutional if the conduct “lies so obviously at the very core of what the

Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to

[the officer], notwithstanding the lack of fact-specific case law." Id. (internal marks

omitted). "This method—termed ‘obvious clarity’—is a narrow exception to the normal rule

that only case law and specific factual scenarios can clearly establish a violation" and

applies where the officer’s conduct is so outrageous that it clearly goes beyond the border

between excessive and acceptable force. Id. at 1291-92 (internal marks omitted). The

The Eleventh Circuit has emphasized that the two steps do not have to be analyzed sequentially

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and that, if the law was not clearly established, the court need not decide whether the defendants violated the

plaintiff’s constitutional rights. See id.

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court finds that a genuine issue of material facts exists as to whether the defendants

should have known, based on existing law, that their use of force against the plaintiff after

the initial tasing – when the plaintiff was incapacitated and not resisting arrest – violated

the plaintiff's Fourth Amendment rights. The court thus finds summary judgment

inappropriate as to the defendants’ claims of qualified immunity with respect to each

incident of force after the initial tasing. See Williams v. Scott, No. 10-12075, 2011 WL

2672534, at *4 (11th Cir. July 8, 2011) (affirming district court’s denial of summary

judgment based on qualified immunity where a genuine issue of material fact existed,

noting that the trier of fact had to “decide whom to believe and what actually transpired”).15

CONCLUSION

Accordingly, it is hereby ORDERED that Tatum’s motion for summary judgment

(doc. 43) is DENIED and that the motion for summary judgment filed by Johnson and

O’Reilly (doc. 44) is GRANTED in part and DENIED in part. 

DONE AND ORDERED this 30th day of September, 2011.

s/ M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE 

 

 If the facts at trial do not bear out the plaintiff’s version of events and demonstrate that he, in fact,

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failed to comply with the officers’ commands and was resisting arrest, the court will revisit the issue of qualified

immunity upon motion of the defendants.

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