IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RALPH WALTER BROWN,

et al.,

Plaintiffs,

vs. CASE NO. 5:10-cv-130/RS-GRJ

HON. BOBBY HADDOCK, et al.,

Defendants.

_________________________________________/

UORDER

Before me are Defendant Brandon Stevenson‟s, Defendant Jonathan Rackard‟s, 

and Defendant Bobby Haddock‟s Motions for Summary Final Judgment (Docs. 25, 26, & 

27), and Plaintiffs‟ Response in Opposition (Doc. 31). 

Standard of Review

Summary judgment is appropriate when “there is no genuine issue as to any 

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

P. 56 (c). In other words, the basic issue before the court is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of 

showing the absence of a genuine issue as to any material fact, and in deciding whether 

the movant has met this burden, the court must view the movant‟s evidence and all 

factual inferences arising from it in the light most favorable to the nonmoving party. 

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Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences 

arising from undisputed facts, then a court should deny summary judgment. Miranda v. B 

& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile 

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that party. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 

251). 

Background

I accept the facts in the light most favorable to Plaintiffs. See Galvez v.

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d

1340, 1343 n.1 (11th Cir. 2002)). “All reasonable doubts about the facts should

be resolved in favor of the non-movant.” Id. (quoting Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684

F.2d 1365, 1368-69 (11th Cir. 1982).

On August 16, 2007, Defendant Brandon Stevenson (“Officer Stevenson”) and 

Defendant Jonathan Rackard (“Officer Rackard”), both officers with the Washington 

County Sherriff‟s Office (“WCSO”), responded to a call at a home in Vernon, Florida. 

The call concerned a fight between two minors, cousins Courtland and Antonio. 

Plaintiff April Works (“Ms. Works”), the mother of one of the minors, returned to the 

home after being called by her family about the incident. Ms. Works “was trying to find 

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out from Officer Stevenson what was going on with her child when Officer Rackard 

turned to [Ms.] Works and chest bumped her, knocking her backwards about two feet, 

and ordered her into the house.” (Doc. 19, p.4). 

Ms. Works did not comply with this order. Instead, she protested that she needed 

to find out what was going on with the altercation between the cousins. Officer Rackard 

told her that he was going to take her to jail. Ms. Works then “demonstratively put out 

her hands to be cuffed.” (Doc. 19, p.5). Instead of hand-cuffing Ms. Works, Officer 

Rackard attempted a leg sweep on her by kicking her ankles. This leg sweep was, at first, 

unsuccessful. With the help of Officer Stevenson, Officer Rackard did finally knock Ms. 

Works to the ground so that her face landed on a patch of oyster shells. Ms. Works was 

then placed in the back of a patrol car. 

Plaintiff Ralph Brown, (“Mr. Brown”), Ms. Works‟ father, was also called to the 

home because of the altercation between the minor cousins and the arrest of Ms. Works. 

Mr. Brown, after arriving at the home, asked Officer Rackard why he threw Ms. Works 

to the ground. Officer Rackard ordered Mr. Brown to “close the patrol car door and get 

away from the car.” However, before Mr. Brown could respond, Officer Rackard 

“grabbed Mr. Brown‟s arm and tried to throw him down.” In this process, Officer 

Rackard slipped, fell and pulled Mr. Brown on top of him. (Doc. 19, p. 5).

Officer Rackard called for Officer Stevenson to shoot Mr. Brown with his Taser. 

Officer Stevenson then engaged his Taser and shot Mr. Brown at least twice, in the neck 

and lower back. 

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Ms. Works was charged with resisting arrest without violence, and Mr. Brown was 

charged with battery on a law enforcement officer and resisting arrest with violence. 

They were acquitted on these charges. 

Qualified Immunity

Qualified immunity is a shield against liability for government actors, prohibiting 

“civil damages for torts committed while performing discretionary duties unless their 

conduct violates a clearly established statutory or constitutional right.” Hadley v. 

Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008); Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982). Qualified immunity “„allow[s] government officials to carry out their 

discretionary duties without the fear of personal liability or harassing litigation, 

protecting from suit all but the plainly incompetent or one who is knowingly violating the 

federal law.‟” Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting Lee v. 

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). “Qualified immunity is „an immunity 

from suit rather than a mere defense to liability . . . .‟” Scott v. Harris, 127 S. Ct. 1769 n.2 

(2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1986)).

Qualified immunity requires a three-step inquiry. First, the defendant public

official must prove is that “„he was acting within the scope of his discretionary authority 

when the allegedly wrongful acts occurred.‟” Courson v. McMillan, 939 F.2d 1479 (11th 

Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir. 1988)). Once the 

defendant public official has satisfied his burden, the burden shifts to the plaintiff and the 

second step is to answer the question whether “[t]aken in the light most favorable to the 

party asserting the injury, do the facts alleged show [that Defendants‟] conduct violated a 

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constitutional [or statutory] right?” Hadley, 526 F.3d at 1329 (quoting Saucier v. Katz, 

533 U.S. 194, 201 (2001)). If, and only if, the answer to the first question is “yes,” the 

next question is “whether the right, be it constitutional or statutory, was clearly 

established.” Id. In Pearson v. Callahan, 129 S. Ct. 808 (2009), the Supreme Court 

reaffirmed the established standard for qualified immunity, but held that courts are no 

longer required to conduct the analysis in the order articulated in Saucier, leaving the 

order of analysis of the two prongs to the sound discretion of the court. 

The Eleventh Circuit has indicated that a government official can prove that he is 

acting within his discretionary authority by showing “„objective circumstances which 

would compel the conclusion that his actions were undertaken pursuant to the 

performance of his duties and within the scope of his authority.‟” Rich, 841 F.2d at 1564 

(quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. 1981 )). The depositions of 

Ms. Works and Mr. Brown (Doc. 28), as well as the Plaintiffs‟ Complaint (Doc. 1) 

adequately demonstrate that the officers‟ actions in arresting, sweep-kicking, and tasing 

Plaintiffs were carried out during the performance of their normal job duties and were 

within the scope of the authority delegated to them by their employer. The officers were 

on duty and responding to a police dispatch. They arrived on the scene in uniform and in 

police vehicles. Accordingly, I conclude that Defendants have satisfied their burden of 

demonstrating that the officers were acting “within the scope of [their] discretionary 

authority when the allegedly wrongful acts occurred.” Zeigler v. Jackson, 716 F.2d 847, 

849 (11th Cir. 1983).

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Having found that Defendants were acting within their discretionary powers when 

they arrested Plaintiffs, “„the burden shifts to the plaintiff[s] to show that qualified 

immunity is not appropriate.‟” Galvez, 552 F.3d at 1242 (quoting Lee, 284 F.3d at 1194). 

In this second step of the qualified immunity analysis, a court must determine whether 

the plaintiff has alleged a constitutional violation.

Unlawful Arrest

The Fourth Amendment protects individuals from unreasonable search and

seizure. An arrest without probable cause clearly violates this Fourth Amendment right. 

Durrithy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003) (citing Redd v. City of 

Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998)).

The Eleventh Circuit has concluded that the standard for determining the existence 

of probable cause is the same under both Florida and federal law – whether “„a 

reasonable man would have believed [probable cause existed] had he known all of the 

facts known by the officer.‟” Rankin v. Evans, 133 F.3d 1425, 1433 (11th Cir. 1998) 

(quoting United States v. Ulrich, 580 F.2d 765, 769 (5th Cir. 1978)). A plaintiff bears the 

burden of demonstrating the absence of probable cause in order to succeed in their § 1983 

claim. Rankin, 133 F.3d at 1436. Probable cause “constitutes an absolute bar to both 

state and § 1983 claims alleging false arrest . . .” Id. at 1435. “[O]fficers who make an 

arrest without probable cause are entitled to qualified immunity if there was arguable 

probable cause for the arrest.” Kingsland v. City of Miami, 382 F. 3d 1220, 1232 (11th 

Cir. 2004) (citing Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999 )). Arguable 

probable cause exists if reasonable officers in the same circumstances and possessing the 

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same knowledge as the Defendants could have believed that probable cause existed to 

arrest Plaintiffs. Id. Qualified immunity does not apply, however, where a governmental

official engages in conduct that violates clearly established statutory or constitutional 

rights. Bashir v. Rockdale County, 445 F.3d 1323, 1327 (11th Cir. 2006).

Viewed in the light most favorable to Plaintiffs, the facts support a conclusion that 

there was no probable cause for their arrest. Ms. Works was charged with violating FLA.

STAT. § 843.02 for resisting an officer without violence. For a conviction for resisting an 

officer without violence under Section 843.02, the state must show that: (1) the officer 

was engaged in the lawful execution of a legal duty; and (2) the action by the defendant 

constituted obstruction or resistance of the lawful duty. Slydell v. State, 792 So. 2d 667, 

671 (Fla. 4th DCA 2001). In this case, the focus is on the second requirement as there is 

no question that the deputies were in the process of investigating a police dispatch, and 

thus, they were engaged in the lawful execution of a legal duty. 

 Ms. Works contends that she did not refuse an order of the sheriff‟s deputies and 

therefore there was no probable cause for her arrest (Doc. 31, p.5). The facts as presented 

by Plaintiffs cast some doubt on this version of events as Plaintiffs admit that Ms. Works 

refused Officer Rackard‟s order for her go into the house rather than remain outside near 

the ongoing investigation (Doc. 19, p.4). However, the lawfulness of an order that a 

person be sequestered inside while officers were on private property without warrant is in 

question. See Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006) (noting that “an 

owner‟s simple inquiry as to why officers are present on his property” does not support a 

charge of obstructing justice under Florida law). Thus, in the light most favorable to 

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Plaintiffs, Ms. Works was within her rights to refuse to go inside the house and her arrest 

lacked probable cause. 

As for Mr. Brown, Plaintiffs again assert that he did not refuse an order (Doc. 31, 

p.5). More specifically, they allege that Mr. Brown had no time to respond to Officer 

Rackard‟s command that “[Mr.] Brown . . . close the patrol car door and get away from 

the car” before the kerfuffle began that resulted in Mr. Brown‟s tasing (Doc. 19, p.5). In 

the light most favorable to Plaintiffs, the allegation that Mr. Brown was given no time to 

respond to the officer‟s demand negates the requirement that there be some actus reus. 

See e.g., Francis v. State, 736 So. 2d 97, 99 (Fla. 4th DCA 1999) (finding “physical 

conduct” is generally a requirement to support a conviction for resisting an officer). In 

other words, Mr. Brown could not resist if he had no time to comply. 

Mr. Brown‟s charge for battery on a law enforcement officer in violation of FLA.

STAT. § 784.07 also lacks probable cause. The facts as presented by Plaintiffs show that 

Officer Rackard grabbed Mr. Brown‟s arm and tried to throw him to the ground. This 

action resulted in Officer Rackard slipping whereby Mr. Brown was pulled on top of 

Officer Rackard. Mr. Brown alleges that he could not get off of Officer Rackard because 

Officer Rackard continued to tightly grip Mr. Brown by the front of his shirt. Plaintiffs 

allege that Mr. Brown never battered the officers, and without substantial evidence to the 

contrary, this must be accepted as true. 

The right to be free from arrest without probable cause is a clearly established 

right. “Plainly, an arrest without probable cause violates the right to be free from an 

unreasonable search under the Fourth Amendment.” Durrithy v. Pastor, 351 F.3d 1080, 

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1088 (11th Cir. 2003) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 

1998)). Therefore, the third prong of the qualified immunity analysis with respect to the 

unlawful arrest claim has been satisfied and no further inquiry is necessary. Defendants 

are not entitled to qualified immunity on the unlawful arrest claims.

Excessive Force

Whether a constitutional violation occurred in an excessive force case arising out 

of an arrest is determined using an “objective reasonableness” standard. Brosseau v. 

Haugen, 543 U.S. 194, 197 (2004) (citations omitted). An excessive force claim “relates 

to the manner in which an arrest was carried out, independent of whether law 

enforcement had the power to arrest.” Hadley, 526 F.3d at 1329 (citing Bashir, 445 F.3d

at 1332). The Fourth Amendment‟s protection against unreasonable searches and 

seizures “„encompasses the plain right to be free from the use of excessive force in the 

course of an arrest.‟” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1244 (11th 

Cir. 2003) (quoting Lee, 284 F.3d at 1197). “„Fourth Amendment jurisprudence has long 

recognized that the right to make an arrest or investigatory stop necessarily carries with it 

the right to use some degree of physical coercion or threat thereof to effect it.‟” Galvez, 

552 F.3d at 1242-43 (quoting Lee, 284 F.3d at 1197).

The question presented here is whether, under Plaintiff‟s version of the facts,

Defendants “behaved reasonably in the light of the circumstances before [them].”

McCormick, 333 F.3d at 1244 (citing Vinyard, 311 F.3d at 1347). In order to determine 

whether the force used in a particular case was reasonable, courts must examine: 1) the 

need for the application of force; 2) the relationship between the need and the amount of 

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force used; and 3) the extent of the injury inflicted. Draper v. Reynolds, 369 F.3d 1270, 

1277-78 (11th Cir. 2004). To be reasonable, “the force used by a police officer in 

carrying out an arrest must be reasonably proportionate to the need for that force, which 

is measured by the severity of the crime, the danger to the officer, and the risk of flight.” 

Lee, 284 F.3d 1198. However, “[u]se of force must be judged on a case-by-case basis 

from the perspective of a reasonable officer on the scene, rather than with the 20/20 

vision of hindsight.” Vinyard, 311 F.3d at 1347.

For situations involving tasers, the Eleventh Circuit has found that in a “difficult, 

tense and uncertain situation the use of a taser gun to subdue a suspect who has 

repeatedly ignored police instructions and continues to act belligerently toward police is 

not excessive force.” Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008). 

Considering the severity of the crimes, the danger Plaintiff posed to the officers,

and the risk of flight by the Plaintiffs (the three factors identified by the Supreme Court in 

Graham v. Conner, 490 U.S. 386 (1989) and restated by the Eleventh Circuit in Lee and 

Galvez), I find that the crime with which Ms. Works was charged (resisting an officer 

without violence) was not severe. I also find that the crimes with which Mr. Brown were 

charged (resisting an officer with violence and battery of a law enforcement officer) are 

severe. However, under Plaintiffs‟ version of the facts, neither Ms. Works nor Mr. 

Brown were resisting the officers, and the alleged battery was the result of Officer 

Rackard‟s slipping and pulling Mr. Brown down to the ground. Thus danger to 

Defendants is questionable and there was no risk of flight. Again, for the purposes of 

summary judgment, I must accept Plaintiffs‟ version of the facts as true. See McCormick,

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333 F.3d at 1244 n.14 (“We have repeatedly said that „facts, as accepted at the summary 

judgment stage of the proceedings, may not be the actual facts of the case.‟” (quoting 

Lee, 284 F.3d at 1190)). I find that under the Plaintiffs‟ version of the facts, the acts of 

leg-sweeping Ms. Works and forcibly throwing her to the ground when she had submitted 

peaceably to arrest in a nonthreatening way and knocking Mr. Brown to the ground

without giving him the opportunity to submit and tasing him while he was being held in 

place by Officer Rackard were disproportionate to the need for that force, in violation of 

their constitutional rights. Cf. Buckley v. Haddock, 292 Fed. Appx. 791, 792 (11th Cir. 

2008) (unpublished) (where suspect actively but not violently acted to frustrate officer‟s 

attempts at arrest and suspect had been warned of taser use). 

Defendants‟ contend that the force used on Ms. Works was de minimus. 

“Application of de minimis force, without more, will not support a claim for excessive 

force.” AFL-CIO v. City of Miami, 2011 U.S. App. LEXIS 6825 (11th Cir. 2011). 

Defendants cite two cases to support their proposition. In Nolin v. Isbell, 207 F.3d 1253 

(11th Cir. 2000), the suspect who was thrown against a van and kneed in the back by 

police officers was suspected of being in a physical altercation. Id. at 1254. In 

Metcalf v. City of Tallahassee Police Dep't, 2001 U.S. Dist. LEXIS 21695, *18 (N.D. 

Fla. Apr. 20, 2001), the suspect who was shoved to the ground and had knee put in his 

back was suspected of being in a domestic disturbance and had been carrying a firearm at 

the time police arrived. Here, Ms. Works was not the subject of the investigation, was 

not suspected of being in a physical altercation, and was not carrying a firearm. Rather, 

Plaintiffs paint Ms. Works as merely a concerned mother and property owner. This case 

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is clearly distinguishable. Kicking Ms. Works to the ground after she had offered her 

hands for arrest was excessive. 

Clearly Established Law

The final inquiry in the qualified immunity analysis for the excessive force claim 

is whether the constitutional right violated was clearly established. Hadley v. Gutierrez, 

526 F.3d 1324, 1329 (11th Cir. 2008) (quoting Saucier v. Katz, 533 U.S. 194, 201 

(2001)). In determining whether a right is clearly established, “[t]he relevant, dispositive 

inquiry . . . is whether it would be clear to a reasonable officer that his conduct was 

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “For a right to be 

„clearly established,‟ previous case law must have developed it in a concrete factual 

context so as to make it obvious to a reasonable government actor that his actions violate 

federal law.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1366 (11th Cir. 

1998). “Thus, „fair and clear notice to government officials is the cornerstone of qualified 

immunity.‟” Bashir, 445 F.3d at 1331 (quoting Vinyard, 311 F.3d at 1350). I must judge 

Defendants‟ conduct “from the perspective of a reasonable officer on the scene, rather 

than through the lens of hindsight . . .” Kesinger ex rel. Kesinger v. Herrington, 381

F.3d 1243, 1249 (11th Cir. 2004). As discussed above, under Plaintiffs‟ version of the 

facts, both Ms. Works and Mr. Brown were compliant and non-violent arrestees.

It is well established in the Eleventh Circuit that gratuitous use of force when a 

criminal suspect is not resisting arrest constitutes excessive force. Hadley, 526 F.3d at 

1330 (citing Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002)). This principle has been 

well established since at least 2002. Hadley, 526 F.3d at 1333.

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Here, Ms. Works and Mr. Brown were unarmed, nonthreatening, and in the 

presence of two armed officers. The only thing Ms. Works did was refuse to go inside her 

home. She even offered her hands to the officers to be cuffed. Similarly, Mr. Brown was

standing at the police car door and given no time to obey instructions before he was taken 

to the ground and tased. 

The cases Defendants cite in support of their argument for qualified immunity are 

notably distinguishable from the instant case. In Draper, the arrestee was belligerent, 

loud, hostile, and profane. Draper v. Reynolds, 369 F. 3d 1270, 1273 (11th Cir. 2004). 

He gestured animatedly, and continuously paced. Id. Draper repeatedly yelled at the 

officer, and five times refused to obey the officer‟s command before he was tased one 

time by officers. Id. In Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008), the 

arrestee repeatedly ignored police instructions and continued to act belligerently. These 

cases stand in complete contrast to Mr. Brown, who had no time to respond to the 

officer‟s command and there is no indication that Mr. Brown was acting out of control. 

Because Plaintiffs offered no resistance and because Mr. Brown was given no time 

to comply with the officer‟s demands, it was clearly established at the time of the 

incident, that it was unreasonable to use the force that Defendants did. Defendants 

Rackard and Stevenson are not entitled to qualified immunity. As such, Defendant 

Haddock is also not entitled to summary judgment either. 

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State Law Claims

As to any remaining state law claims, I find that there are conflicts in the facts that 

a reasonable jury could resolve in favor of Plaintff. Consequently summary judgment is 

inappropriate for these claims. 

Conclusion

The Motions for Summary Judgment (Docs 25, 26, & 27) are DENIED. 

ORDERED on May 2, 2011.

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE 

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