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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CASSANDRA STEEN, Individually

and as Personal Representative of

the Estate of Victor Damarius Steen,

Plaintiff,

v. Case No.: 3:11-cv-142-RV/CJK

CITY OF PENSACOLA, a political

subdivision of the State of Florida; et al.,

Defendants.

___________________________/

ORDER

This case stems from the death of 17 year-old Victor Damarius Steen, who,

while fleeing from the police in the early morning hours on October 3, 2009, was

killed after being allegedly “tased” and struck by a marked police vehicle driven by

Pensacola Police Officer Jerald Ard. The decedent’s mother, Cassandra Steen, had

filed this excessive force and wrongful death case against Officer Ard; the City of

Pensacola; and Police Chief John Mathis. On August 22, 2011, I entered an order

dismissing the claim against Chief Mathis on the basis of qualified immunity (doc.

67) (“Mathis Order”). Now pending is Officer Ard’s motion for partial judgment on

the pleadings (doc. 68), which the plaintiff opposes.1

 

The plaintiff spends the majority of her memorandum in opposition arguing

that the firing of a single taser shot at Steen on the facts of this case constituted

1

 The Mathis Order sets forth the background of this case and is incorporated

herein. In short, the plaintiff alleges in the amended complaint that Officer Ard used

excessive force in deliberately striking Victor with his patrol car (count I) and tasing

him (count II). Officer Ard moves for judgment on the pleadings only with respect

to count II. 

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excessive force because he was not suspected of any crime --- let alone a serious

one --- and because his fleeing on a bicycle while crossing over four lanes “on an

empty street” only posed a danger to himself, if to anyone at all. This argument,

however, cannot be reconciled with Oliver v. Fiorino, 586 F.3d 898 (11th Cir.

2009), a case that was cited several times and discussed at length in the Mathis

Order. Oliver involved the repeated tasing (between eight and twelve times) of an

individual who “was not accused of or suspected of any crime” but who resisted

the police and sought to avoid a “custodial touch” by “attempt[ing] to walk away

across the street.” The street in Oliver was not only (apparently) empty and devoid

of traffic, as here, but it had been rendered a “safe area” insofar as it was blocked

with police vehicles. Moreover, in stark contrast to the situation we have here, the

individual in that case was “largely compliant and cooperative with the officers,”

and he otherwise “made no effort to flee.” And yet, while the Eleventh Circuit held

that it was excessive force to repeatedly taser a person in that situation, the Court

of Appeals made a point to note that using a single taser shock to gain control over

him in the first instance “may have been justified” (emphasis added).2

The preceding discussion is mostly academic in this case, however, as I did

not hold that Officer Ard was “justified” in using his taser on the facts presented.

To the contrary, I assumed that he was not. See Mathis Order at 17 (because the

factual record in the case has not yet been “fleshed out, . . . I will simply assume

arguendo that there was a constitutional violation”). Instead, I concluded that it

was not “clearly established” in or about October 2009 that using a taser in that

situation was unconstitutionally excessive. To be sure, the Oliver court expressly

2

 The individual in Oliver was “very fidgety,” and the officers testified afterthe-fact that they had “considered” taking him into custody pursuant to the Baker

Act, Florida’s mental health law. However, at no point during the incident did they

advise Mr. Oliver of that fact, nor did they attempt to arrest or “Baker Act” him at

any time. 

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stated that (as of October 2009, when Oliver was decided and when the event at

issue in this case took place): “[N]either the United States Supreme Court nor the

Florida Supreme Court has even addressed the use of Tasers in an excessive force

inquiry, and this Court has only squarely done so in one published decision, Draper

v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), which . . . is not directly on all fours

with this case.” Therefore, if using a single taser shock “may” have been justified

in Oliver, perhaps due in part to the absence of existing analogous case law, how

was it “clearly established” to be unconstitutional here? Obviously, it was not.3

3

 In arguing that the use of a taser in this case violated clearly established

law, the plaintiff continues to rely on cases that are patently distinguishable. See,

e.g., Powell v. Haddock, 366 Fed. Appx. 29 (11th Cir. 2010) (plaintiff tased two

times even though she committed no crime and “there was no instruction given

that [she] failed to obey”); Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)

(plaintiff pepper sprayed in face two or three times even though she was already

secured in handcuffs in back of police car and there was “no indication that she

actively resisted the initial arrest or attempted to flee at any time”). The plaintiff

contends that in looking to existing case law “identical facts” and “fact specific

precedent” is not necessary to decide the “clearly established” question. That is

certainly true; and I stated as much in the Mathis Order, when I recognized that:

“The Supreme Court ‘[does] not require a case directly on point.’” However, as I

further explained, existing precedent must be sufficiently similar or analogous to

have “‘placed the statutory or constitutional question beyond debate.’” Mathis

Order at 18 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d

1149 (2011)). For the reasons discussed in the Mathis Order, the cases on which

plaintiff previously relied (and continues to rely) are distinguishable in notable and

significant ways; and thus, they have not “placed the statutory or constitutional

question beyond debate.” To the contrary, Oliver would suggest that, in or about

October 2009, the question was very much in debate.

The plaintiff further maintains that “[e]ven if the cases mentioned above did not

exist, Ard’s conduct would fall under the obvious clarity exception.” However, I

already discussed in the Mathis Order why this “narrow exception to the normal

rule” [Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011)], which is a

“difficult one to meet” [Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 927

(11th Cir. 2000) (both emphasis added)], does not apply on the facts of this case;

and I need not repeat that analysis here.

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For all the reasons that Chief Mathis was entitled to qualified immunity on

the grounds that it was not clearly established in October 2009 that using a taser

on the facts presented violated the United States Constitution, so is Officer Ard.

Therefore, Officer Ard’s motion for judgment on the pleadings as to Count II (doc.

68) must be, and is, hereby GRANTED. 

 

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

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

Case No.: 3:11-cv-142-RV/CJK

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