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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;

JOHN W. MATHIS, in his individual

capacity as Pensacola Police Dept.

Chief; JERALD L. ARD, in his

individual capacity as a Pensacola

Police Officer,

Defendants.

___________________________/

ORDER

This case stems from the tragic and unfortunate death of 17 year-old Victor

Demarius Steen, who, in the early morning hours of October 3, 2009, was killed

after being allegedly “tased” and then struck by a City of Pensacola marked police

car driven by Police Officer Jerald Ard. The decedent’s mother, Cassandra Steen,

has brought this excessive force/wrongful death case against Officer Ard; the City

of Pensacola; and John W. Mathis, the latter of whom has been sued, in Count III

of the second amended complaint, “in his individual capacity as Chief of Police of

the Pensacola Police Department.” 

On May 11, 2011, Chief Mathis filed a motion to dismiss Count III pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure (doc. 22). He made several

interrelated and overlapping arguments in this motion. First, Chief Mathis argued

that being sued in his capacity as “Chief of Police” made him a “redundant party”

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since the plaintiff had also sued the City of Pensacola. He next argued that without

“personal participation or active direct involvement by Mathis in the events leading

to the unfortunate death of Mr. Steen” (and the complaint made no such claims),

he could not be liable since, under Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937,

173 L. Ed. 2d 868 (2009), “individual supervisory liability” is no longer a viable

theory of recovery. Lastly and relatedly, in the final paragraph of his motion, Chief

Mathis argued that he was entitled to “the benefit of qualified immunity from suit.”

The plaintiff filed a response in opposition. After initial review and consideration of

the pleadings, and pursuant to order of June 6, 2011, I invited both parties to brief

the qualified immunity issue in greater detail, which they did by filing supplemental

memoranda. Oral argument was held on July 13, 2011.1

I. Background

The following facts are taken primarily from the plaintiff’s complaint, and

they are assumed true for purposes of this order. Some of these facts are also

taken from the video recording (DVD) of the underlying incident, as recorded by

Officer Ard’s dashboard-mounted camera.2

1

 Chief Mathis originally raised the qualified immunity defense in his motion

to dismiss (as noted), but it was not actually briefed. Thus, I stated in my June 6th

order that it appeared the defense had been asserted “almost as an afterthought.”

In his supplemental filing, Chief Mathis responded that qualified immunity was not

intended to be “‘an afterthought’ but as a primary focus” of his motion to dismiss.

Accordingly, the issue was discussed more extensively in the supplemental memos

and during the oral argument.

2

 Because the DVD was attached to the complaint as an exhibit, the plaintiff

asserts --- and Chief Mathis does not dispute --- that it “may be considered by the

Court in the Motion to Dismiss proceedings” (doc. 52); see also, e.g., Grossman v.

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (in considering a motion

to dismiss “the court limits its consideration to the pleadings and exhibits attached

thereto”). I thus can (and will) consider the video in deciding the pending motion to

dismiss. 

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On October 3, 2009, Officer Ard was on routine patrol in Pensacola, Florida.

At approximately 1:50 a.m., he was driving a marked police cruiser westbound on

Cervantes Street --- a two-way, four-lane street with pedestrian sidewalks on both

sides --- when he saw Steen riding a bicycle on the sidewalk, also westbound on

Cervantes Street. Officer Ard activated his flashing overhead lights and began to

pursue Steen. He can be heard on the video recording ordering Steen to “stop the

bike” three times within 20 seconds of activating his lights, but Steen sped away.3

Officer Ard followed very closely behind Steen, “revving” his engine, “screeching”

his tires, crossing over the wrong side of the street, and driving onto the sidewalk.

At one point, he was driving his vehicle alongside Steen’s bicycle (in the wrong

lane of traffic). Fortunately, the streets were not busy at that early morning hour.

During the chase (which lasted about one minute), Officer Ard and Steen passed

only one other vehicle, although other vehicles could be seen further up the road. 

Officer Ard was armed with an electronic taser device designed to transmit

up to 50,000 volts of electricity into the body of its intended target. Although it

does not appear on the video, the plaintiff contends that “[w]ithout warning, and

while traveling directly beside Steen, Ard pulled the trigger of his Taser and fired

two high voltage darts at Steen, shocking Steen.” Within seconds thereafter, Steen

lost control of his bicycle and crashed in a vacant bank parking lot. Officer Ard then

made a “sudden sharp turn into the bank parking lot,” and, “[w]hile Steen was still

on the ground inside of the bank parking lot, Defendant Ard accelerated his vehicle

3

 The complaint is silent as to what crime, if any, Steen was suspected of at

that time. The plaintiff’s attorney thus stated during oral argument: “There was no

allegation of a crime in this case. What we allege in our complaint, which Your

Honor has to take as true, is that Victor Steen was riding his bicycle at that time

and there was no crime in this situation.” But, in her supplemental memorandum of

law, the plaintiff recognizes that Steen was, if nothing else, “apparently suspected

of operating a bicycle at night without proper lighting” (doc. 49 at 8). 

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and ran over Steen with his patrol car.” The plaintiff alleges in her complaint that

this was not an accident and that Officer Ard “deliberately and intentionally used

his vehicle to ram into Steen.” Steen sustained multiple injuries to his face, head,

and body; and he died as the result of his injuries.

The plaintiff later filed this case against Officer Ard, the City of Pensacola,

and Chief Mathis, asserting federal and state law claims. The claim against Chief

Mathis has been brought pursuant to Title 42, United States Code, Section1983,

which subjects to liability “[e]very person who, under color of any [state law],”

violates a person’s rights granted by the Constitution or federal law. The plaintiff

alleges that “Mathis’ failure to adopt and implement adequate policies regarding his

officers’ use of force, including, but not limited to the use of Tasers, resulted in the

blatant use of excessive force by Mathis’ police officer, Ard, against Victor Steen,”

in violation of Steen’s rights under the Fourth and Fourteenth Amendments. Thus,

the underlying essence of this claim is not that Chief Mathis personally subjected

Steen to excessive and fatal force, but rather that his policies (or the lack thereof)

did. The plaintiff makes essentially the same claim against the City of Pensacola.

As already noted, Chief Mathis has moved to dismiss under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, arguing that, since the City is also named as a

defendant, it is “redundant” for him to be sued in his capacity as police chief; that

individual supervisory liability did not survive the Supreme Court’s decision in Iqbal,

supra; and that even if individual supervisory liability survived, he is entitled to the

benefit of qualified immunity. 

II. Discussion 

A. Redundant Party

Chief Mathis argues that he is a “redundant party” because the plaintiff “has

also sued . . . the City of Pensacola.” If he were being sued in his official capacity,

Chief Mathis would be correct and dismissal would be appropriate. Busby v. City of

Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (affirming directed verdict in favor of

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police officers sued in their official capacities where “the City of Orlando remained

as a defendant”; explaining that because “suits against a municipal officer sued in

his official capacity and direct suits against municipalities are functionally

equivalent . . . to keep both the City and the officers sued in their official capacity

as defendants in this case would have been redundant”). However, the complaint

makes clear that Chief Mathis is sued “in his individual capacity as Chief of Police

of the Pensacola Police Department.” Although perhaps inartful --- Mathis refers to

the foregoing as an “oxymoronic and hybrid party description” --- the fact remains

that the complaint expressly states (in both the caption and body) that he is being

sued “in his individual capacity” (emphasis added).

Typically, in this type of Section 1983 case, the claim against an individual

officer in his official capacity is duplicative of a claim against the municipality. But,

the law permits an individual capacity suit against an individual officer, and, at the

same time, an official capacity suit against a city or municipality, even if they arise

out of the same claims and allegations. Atheists of Florida, Inc. v. City of Lakeland,

Fla, --- F. Supp. 2d ---, 2011 WL 899661 (M.D. Fla. Mar. 15, 2011), is illustrative.

The plaintiff there, as here, brought the same claims against the city and one of its

officers, the latter of whom was sued in both his official and individual capacities.

In deciding the defendant’s motion to dismiss, the district court stated:

because Plaintiffs assert identical claims against the City

itself, those claims against Defendant Fields in his official

capacity are “redundant” and must be dismissed. Busby

v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).

[However], insofar as Plaintiffs seek a remedy from

Defendant Fields himself, the [individual capacity claim]

provides the proper avenue for the pursuit of such relief.

E.g. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358,

116 L. Ed. 2d 301 (1991).

Id. at *12. In short, the plaintiff may pursue the same claims against the City of

Pensacola (official claim) and Chief Mathis (individual claim). The real question is

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whether, following the Supreme Court’s Iqbal decision in 2009, there is still such

thing as a claim for individual supervisory liability under the factual circumstances

in this case and, if so, whether Chief Mathis is entitled to the defense of qualified

immunity on the facts presented. 

B. Individual Supervisory Liability After Ashcroft v. Iqbal

Based on the plaintiff’s briefing and pleadings, the substantial amount of

time spent discussing it during oral argument, and the language of Count III itself,

the gravamen of the plaintiff’s claim against Chief Mathis is that he failed his “duty

to create, adopt, and implement rules, regulations, practices and procedures which

clearly direct police officers as to the appropriate use of Tasers” (emphasis added);

his failure to do so, the plaintiff maintains, constituted a “de facto” custom, policy

and practice that led to “the blatant use of excessive force” by Officer Ard, which

included “two high voltage [taser] darts” that “intruded upon Steen’s physiological

functions and physical integrity, and caused Steen extreme pain and death.”4 The

4

 In Count III, the plaintiff focuses her attention on Chief Mathis’s “taser

policy” (or lack thereof); indeed, she references taser usage more than a dozen

times in that count. Her attorney briefly suggested at oral argument that Chief

Mathis’s custom and policy also led Officer Ard to use his vehicle to “deliberately

and intentionally . . . ram” Steen’s bicycle, as has been alleged against Officer Ard

in Count I. However, the plaintiff does not assert this claim against Chief Mathis in

the complaint --- at least not expressly (although she does claim that he failed in his

duty to implement adequate use-of-force policies, “including, but not limited to the

use of Tasers”) (emphasis added). Without pleading facts to support such a claim,

any suggestion that Chief Mathis had a policy (de facto or otherwise) of allowing

his officers to use their vehicles to intentionally “ram” people on bicycles and then

deliberately run them over is simply implausible. Cf. Brown v. Hillsborough County

Sheriff’s Office, 342 Fed. Appx. 552, 558 (11th Cir. 2009) (holding that complaint

was properly dismissed, inter alia, where “Brown did not plead facts from which it

could plausibly be inferred that the Sheriff’s Office had a custom or policy that was

the moving force behind Pratt’s sexual assault of Brown”). Therefore, the question

whether Chief Mathis is liable for Steen’s injuries and death will focus solely on his

taser policy, or the lack of one.

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claim against Chief Mathis, as noted, is premised on a theory of supervisor liability,

since the allegation is not that Chief Mathis used excessive force (he was not even

there), but that his policies brought about Officer Ard’s use of excessive force. As

will be shown, individual supervisory liability in Section 1983 cases is muddled and

unsettled.

It is well established in the Eleventh Circuit that “supervisory officials are not

liable under § 1983 for the unconstitutional acts of their subordinates ‘on the basis

of respondeat superior or vicarious liability.’” Hartley v. Parnell, 193 F.3d 1263,

1269 (11th Cir. 1999); accord Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396

(11th Cir. 1994)). Rather, the “standard by which a supervisor is held liable in her

individual capacity for the actions of a subordinate is extremely rigorous.” Mann v.

Taser Int’l. Inc., 588 F.3d 1291, 1308 (11th Cir. 2009). Supervisors will be held

individually liable only if (1) the supervisor personally participates in the underlying

violation; or (2) there is a causal connection between the actions of the supervisor

and that violation. Id. Traditionally, a causal connection was established when (1) a

history of widespread abuse puts the responsible supervisor on notice of the need

to correct the alleged deprivation and he fails to do so; (2) the supervisor’s custom

and policy results in deliberate indifference to constitutional rights; or (3) the facts

support an inference that the supervisor directed his subordinates to act unlawfully

or knew that the subordinates would act unlawfully, and yet he failed to stop them

from doing so. See, e.g., Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). 

However, the Supreme Court fomented disagreement on the availability of

individual supervisory liability when it issued its split 5-4 decision in Iqbal, supra.

The majority wrote: “In a § 1983 suit . . . --- where masters do not answer for the

torts of their servants --- the term ‘supervisory liability’ is a misnomer.” See supra

129 S. Ct. 1949. The Court further wrote that “purpose rather than knowledge is

required” for liability to attach, and that “each Government official, his or her title

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notwithstanding, is only liable for his or her own misconduct.” See id. (emphasis

added). The four dissenting Justices summed up the majority’s opinion as follows:

“Lest there be any mistake, in these words the majority is not narrowing the scope

of supervisory liability; it is eliminating . . . supervisory liability entirely.” See id. at

1957 (Souter, J., dissenting). 

As the Tenth Circuit Court of Appeals has observed, these pronouncements

in Iqbal have “generated significant debate about the continuing vitality and scope

of supervisory liability.” Lewis v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010);

accord Dodds v. Richardson, 614 F.3d 1185, 1198-99 (10th Cir. 2010) (noting the

differences of opinion among academics, and stating that “[m]uch has been made

about this aspect of Iqbal, but consensus as to its meaning remains elusive”); see

also id. at 1209 (Iqbal “muddied” the waters of supervisory liability) (Tymkovich,

J., concurring). The courts have thus arrived at differing interpretations following

the decision in Iqbal. See William N. Evans, Comment, Supervisory Liability After

Iqbal: Decoupling Bivens From Section 1983, 77 U. Chi. L. Rev. 1401, 1402

(2010) (noting split among circuits regarding Iqbal’s impact on supervisory liability

claims). It thus “remains to be seen whether the dissent is correct” that the Iqbal

majority, in fact, eliminated individual supervisory liability. Ivan E. Bodensteiner,

Congress Needs to Repair the Court’s Damage to § 1983, 16 Tex. J. C.L. & C.R.

29, 53 (2010).

Despite uncertainty among academics and in some circuits, in the Eleventh

Circuit, supervisory liability appears to have survived Iqbal --- at least for the time

being. See, e.g., Harper v. Lawrence County, Ala., 592 F.3d 1227, 1236 (11th Cir.

2010) (referencing without discussion the same, pre-Iqbal standard for supervisory

liability); Gross v. White, 340 Fed. Appx. 527, 531 (11th Cir. 2009) (same). While

the Eleventh Circuit has recognized that, “in a § 1983 action, a plaintiff must [now]

plead that each Government-official defendant, through the official’s own individual

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actions, has violated the Constitution,” [see Keating v. City of Miami, 598 F.3d

753, 763 (11th Cir. 2010) (emphasis added) (quoting Iqbal, supra, 129 S. Ct. at

1948)], it appears that the court continues to allow supervisory liability when a

causal connection is established (even when no “individual actions” are present),

for example, when the supervisor merely knows of a constitutional violation, has

the authority to stop it, and fails to do so. Id. at 765.

The plaintiff alleges in Count III that Chief Mathis “knew that his officers

were using [tasers]” in such a way that posed “a serious risk of personal injury,”

and, in particular, that he was “allowing his police officers to use excessive and

unreasonable force by . . . fir[ing] Tasers into moving vehicles or at persons in

operation of moving vehicles, in reckless disregard and deliberate indifference to

the health and welfare of suspects [including Steen].” This would appear to be an

allegation of “knowledge,” not “purpose,” and would therefore seem to fall within

the Iqbal supervisory liability limitation. However, despite uncertainty concerning

the viability of individual supervisory liability in some circuits and academia, this

allegation would appear sufficient to state a claim under the “causal connection”

prong of individual supervisory liability and survive dismissal under Rule 12(b)(6) in

the Eleventh Circuit. See American Federation of Labor & Cong. of Indus. Orgs. v.

City of Miami, 637 F.3d 1178, 1190 (11th Cir. 2011) (“A causal connection can be

established if a supervisor has the ability to prevent or stop a known constitutional

violation by exercising his supervisory authority and he fails to do so.”).

 Assuming there is possible supervisory liability on this claim, the question is

thus winnowed down to whether Chief Mathis is entitled to qualified immunity.

C. Qualified Immunity

“The qualified immunity defense ‘shields government agents from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’” Behrens

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v. Pelletier, 516 U.S. 299, 305-06, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996)

(brackets and citation omitted). The purpose of the defense is to allow government

officials to carry out their discretionary duties without fear of personal liability, and

it protects from litigation “all but the plainly incompetent or one who is knowingly

violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

Since qualified immunity is a defense from suit, not mere liability, “it is important

for a court to ascertain the validity of a qualified immunity defense as early in the

lawsuit as possible.” Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th

Cir. 2003). 

“In order to receive qualified immunity, the public official must first prove

that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred.” Lee, supra, 284 F.3d at 1194 (citation omitted).

It is unchallenged in this case that Officer Ard and Chief Mathis were acting within

their “discretionary authority” when the alleged violation took place.

Once the government official shows that he was acting within the scope of

his discretionary authority when the alleged wrongful act(s) occurred, the burden

then shifts to the plaintiff to show that qualified immunity is not appropriate. See

Lee, supra, 284 F.3d at 1194. The Supreme Court has set forth a two-prong test

for determining whether qualified immunity applies. Pearson v. Callahan, 555 U.S.

223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). The first prong is whether the

facts alleged make out a violation of a constitutional right, and the second prong is

whether that right was “clearly established” at the time of the defendant’s alleged

misconduct. See id. at 232. “This second inquiry ‘must be undertaken in light of

the specific context of the case, not as a broad general proposition.’” Lee, supra,

284 F.3d at 1194 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,

150 L. Ed. 2d 272 (2001)). Satisfying both these prongs is required to overcome

the qualified immunity defense.

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Before undertaking the above analysis, I must make clear what and whose

conduct is at issue. The issue of whether Chief Mathis has supervisory liability is

necessarily dependent on there being an underlying Section 1983 violation in the

first instance. Thus, if the underlying Section 1983 claim fails, a fortiori, so does

the supervisory liability claim against Chief Mathis. See, e.g., Mann, supra, 588

F.3d at 1308 (supervisory liability claim must fail “because the underlying Section

1983 claims fail”); Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005) (where

the plaintiff’s rights were not violated, “Plaintiff cannot maintain a § 1983 action

for supervisory liability”). Therefore, the relevant question is whether Officer Ard’s

use of his taser on the facts of this case was a violation of Steen’s constitutional

rights and, if so, whether the right was “clearly established” on October 3, 2009.5

1. Was there a constitutional violation?

The plaintiff maintains that it was “blatant excessive force” for Officer Ard

to use his taser on Steen on the facts presented. As an excessive force claim, the

constitutionality of Officer Ard’s conduct is judged under the Fourth Amendment’s

“objective reasonableness” standard. See, e.g., Brosseau v. Haugen, 543 U.S. 194,

197, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004). 

The “reasonableness” of a particular use of force should be judged from the

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

of hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed.

2d 443 (1989). The test for reasonableness is an objective one, without regard to

5

 As explained in supra note 4, the only claim against Chief Mathis plausibly

asserted in the complaint involves his policy (or lack thereof) regarding taser usage.

The following analysis thus only applies to Count III and is limited to that one issue.

Nothing in this order should be read as to apply to any other claim that the plaintiff

has alleged or any other alleged use of excessive force, such as, for example, the

claim in Count I that Officer Ard “deliberately and intentionally used his vehicle to

ram into Steen.”

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the official’s underlying subjective intent or motivation. Id. at 397 (“An officer’s

evil intentions will not make a Fourth Amendment violation out of an objectively

reasonable use of force; nor will an officer’s good intentions make an objectively

unreasonable use of force constitutional.”). In deciding whether the use of force

was reasonable, courts must “‘balance the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.’” Scott v. Harris, 550 U.S.

372, 383, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (quoting United States v.

Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983)).

The test for reasonableness requires close and careful attention to the facts

and circumstances of each particular case. Graham, supra, 490 U.S. at 396. In the

Eleventh Circuit, to balance the need for the application of force, a court must look

to, and evaluate, three factors as set forth in Graham: (i) the severity of the crime

at issue, (ii) whether the suspect poses an immediate threat to the safety of the

officers or others, and (iii) whether he is actively resisting arrest or attempting to

evade arrest by flight. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 738

(11th Cir. 2010) (citing Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002) in turn

quoting Graham, supra, 490 U.S. at 396).

The plaintiff suggests that --- on the facts of this case --- a different test for

reasonableness is appropriate; specifically, the “deadly force” test as set forth by

the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed.

2d 1 (1985), and as applied by the Eleventh Circuit in Vaughan v. Cox, 343 F.3d

1323 (11th Cir. 2003). Under that analysis, a police officer’s use of deadly force is

constitutional where (1) the officer has probable cause to believe that the suspect

poses a threat of serious physical harm (either to the officer or to others) or if the

suspect has committed a crime involving the infliction or threatened infliction of

serious physical harm; (2) deadly force is necessary to prevent his escape; and (3)

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the suspect has been warned about the possibility of deadly force, where feasible.

See Garner, supra, 471 U.S. at 11-12; accord Vaughan, supra, 343 F.3d at 1329-

30. Because Steen did not pose a serious threat of physical harm (and/or was not

suspected of committing a crime involving serious physical harm), because deadly

force was not “necessary to prevent his escape,” and because Officer Ard did not

warn him before utilizing his taser, the plaintiff argues that these factors all weigh

in favor of finding an unconstitutional use of deadly force. However, the plaintiff’s

argument on this point presupposes that the force Officer Ard used was “deadly

force” in the first instance. It was not. Garner and Vaughan, for example, involved

the situation where the police took actions that were “virtually certain” to result in

death (i.e., shooting a fleeing suspect in the back of the head, and firing a gun into

the cabin of a vehicle traveling down a “heavily congested” interstate highway at

around 80-85 mph, respectively). Here, by contrast, Officer Ard tased Steen one

time while the latter was riding his bicycle. As the Eleventh Circuit recently noted:

“A ‘taser’ is a non-deadly weapon.” Fils v. City of Aventura, --- F.3d ---, 2011 WL

3241618, at *1 n.2 (11th Cir. July 28, 2011).6 Although it is true (as the plaintiff

has observed) that tasing someone who is on a bicycle while driving alongside him

in a vehicle may carry with it the possibility of serious injury or even death (e.g., if

the tasing is followed by an impact with the vehicle), that outcome by no means a

6

 That is not to say, of course, that a taser is incapable of resulting in death.

See, e.g., Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009) (pedestrian died after

being tased by the police multiple times). Indeed, as the Sixth Circuit has stated:

“[M]any law enforcement tools possess the potential for being deadly force,

including a state university police officer’s nightstick, and a police officer’s vehicle.

Indeed, as any faithful reader of mystery novels can attest, an instrument of death

need not be something as obviously lethal as a gun or knife. The ubiquitous ‘blunt

object’ kills just as effectively.” Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir.

1988) (internal citations omitted).

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“virtual certainty” as it was in both Garner and Vaughan.

7

 The fact that Steen died

(while unfortunate) does not convert the use of non-deadly force into deadly force.

Consequently, the “deadly force” test does not apply, and the question is whether

the force used was reasonable under the three-factor Graham analysis.

The first and third Graham factors tend to weigh against each other, as it

may be reasonably inferred from the allegations of the complaint and from review

of the video that Steen was not suspected of having committed a serious crime

(first factor), but he was ignoring Officer Ard’s commands to stop and actively

fleeing to evade capture (third factor). The plaintiff contends, however, that the

second Graham factor regarding whether Steen posed an “immediate threat” to

Officer Ard is in her favor, thereby tipping the scales in favor of finding the force

unconstitutional. 

In making this argument, the plaintiff highlights the fact that Steen did not

direct any verbal or physical threats at Officer Ard. In fact, during oral argument,

the plaintiff’s attorney even went so far as to intimate that Steen could not have

been a threat because he was fleeing from the officer. However, violation of the

third Graham factor should not be applied in the plaintiff’s favor with respect to

analyzing the second Graham factor. The Supreme Court’s decision in Scott v.

Harris, supra, is instructive on this point.

In that case, a police officer observed the plaintiff driving 18 mph over the

speed limit, and he activated his overhead lights to pull him over. The plaintiff sped

away, initiating what the Supreme Court described as a “Hollywood-style car chase

of the most frightening sort.” The chase took place mostly on a two-lane street and

7

 Plaintiff’s counsel suggested at oral argument that a bicycle is a vehicle just

as a truck is a vehicle and, therefore, Vaughan is on point. However, the difference

in the relative danger posed by firing a gun into a truck going 80 miles an hour on a

“heavily congested” interstate highway, and utilizing a taser on a person operating

his bicycle on a scarcely-traveled road at 1:50 a.m., is obvious and apparent.

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at “shockingly fast” speeds in excess of 85 mph. During the chase, the plaintiff

swerved around more than one dozen other cars, crossed the yellow line, forced

cars traveling in both directions to the respective shoulders of their road, and ran

numerous red lights. Eventually, one officer, Deputy Timothy Scott, rammed the

plaintiff’s bumper, which caused the plaintiff to lose control of his car, overturn,

and crash into an embankment. He sustained serious injuries and was rendered a

quadriplegic. In holding that it was “quite clear” that Deputy Scott did not violate

plaintiff’s Fourth Amendment rights, the Court began by rejecting --- as I have ---

the argument that the case should be analyzed under the “deadly force” test of

Tennessee v. Garner. The Court explained:

Garner did not establish a magical on/off switch that

triggers rigid preconditions whenever an officer’s actions

constitute ‘deadly force.’ . . . Garner had nothing to do

with one car striking another or even with car chases in

general. A police car’s bumping a fleeing car is, in fact,

not much like a policeman’s shooting a gun so as to hit a

person.

(citation and ellipsis omitted). Although “Scott’s actions [in ramming the bumper]

posed a high likelihood of serious injury or death to the respondent,” the Supreme

Court noted, those actions did not pose the same “near certainty of death posed

by, say, shooting a fleeing felon in the back of the head, or pulling alongside a

fleeing motorist’s car and shooting the motorist” (emphasis original; citing Garner

and Vaughan). Despite the increased likelihood of serious injury or even death in

ramming the plaintiff’s car on the facts of that case, the Court concluded that the

officer’s conduct was reasonable in light of “the actual and imminent threat to the

lives of any pedestrians who might have been present, to other civilian motorists,

and to the officers involved in the chase.” Harris, supra, 550 U.S. at 374-85.

Although Harris involved factually different circumstances (e.g., it was a high

speed car chase on a populated road), it is notable that the suspect did not direct a

threat at the officer(s); instead it was his reckless behavior in fleeing that posed the

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substantial --- but indirect --- threat to the officers and others. In this respect, it is

also important to note that the “substantial and immediate risk of serious physical

injury to others” in that case did not exist until after the pursuit began. In regards

to that issue (and, relatedly, whether the police could have protected themselves

and the public merely by calling off the chase) the Supreme Court said: “[W]e are

loath to lay down a rule requiring the police to allow fleeing suspects to get away

whenever they drive so recklessly that they put other people’s lives in danger.” See

Harris, supra, 550 U.S. at 385-86.

Here, although Steen did not directly threaten Officer Ard, the video shows

him riding in the middle of the road, and crossing over all four lanes of the street

two times, with Officer Ard following closely behind. While the roads were mostly

empty during the chase, the bicycle (and the pursuing vehicle) crossing a four-lane

road multiple times could potentially be dangerous to any others who may have

been in the area at that time. Although the danger caused by Steen fleeing on his

bicycle may not be the same as that caused by the speeding motorist in Harris,

there was a serious threat to the safety of others caused by his flight and Officer’s

Ard’s pursuit. Thus, the second Graham factor must be evaluated as both favorable

and unfavorable to the plaintiff. 

However, even if the first two Graham factors --- no serious crime, and no

immediate threat --- weighed entirely for the plaintiff, I cannot ignore that Steen

was fleeing the scene and disregarding Officer Ard’s repeated orders to “stop the

bike.” The Eleventh Circuit stated in Brown v. City of Huntsville, Ala., supra, that

the use of pepper spray (which may be, and often is, analogized to using a taser)

“is not excessive force in situations where the arrestee . . . attempts to flee.” 608

F.3d at 739 (citing Vinyard, supra, 311 F.3d at 1348 (“[c]ourts have consistently

concluded that using pepper spray is reasonable . . . where the plaintiff was either

resisting arrest or refusing police requests”). Oliver v. Fiorino, 586 F.3d 898 (11th

Cir. 2009), is instructive. In that case, the survivors of a pedestrian who died after

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being tased at least eight times by the police (even though he “was not accused of

or suspected of any crime”) filed an action alleging excessive force. The Eleventh

Circuit held that tasing the decedent several times was clearly excessive. Notably,

however, the court said that “the use of an initial, single Taser shock” in order to

subdue and control him in the first instance “may have been justified.” See id. at

906. At a minimum, it is apparent that the use of a taser is a lesser use of force

than the use of a firearm in apprehending someone evading arrest by flight.

The factual record in this case has not yet been fleshed out, and I am only

considering the plaintiff’s allegations in the complaint and the facts as seen in the

attached video. Based only on those limited facts, I cannot say that the single use

of a taser on the fleeing, albeit non-violent, Steen was an unconstitutional use of

excessive force. Ultimately, however, I do not need to make that decision. I will

simply assume arguendo that there was a constitutional violation and proceed to

the second step of the qualified immunity analysis. 

2. Was the right “clearly established” at the time of the violation?

“Whether a claimed right ‘is clearly established is a question of law for the

court to decide.’” Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)

(citation omitted). In determining whether a right is clearly established, the court

must decide “‘whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.’” Vinyard, supra, 311 F.3d at 1350

(emphasis original) (citing Saucier, supra, 533 U.S. at 202). The Supreme Court

has emphasized in this context that the important question is whether the law gave

the officer “fair warning” that his conduct would be clearly unlawful. See id. (citing

Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)).

In the Eleventh Circuit, there are two methods to determine if a reasonable

officer would have “fair warning” that his conduct is clearly unconstitutional. The

first method “looks at the relevant case law at the time of the violation; the right is

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clearly established if a concrete factual context exists so as to make it obvious to a

reasonable government actor that his actions violate federal law.” See Fils, supra, --

- F.3d ---, 2011 WL 3241618, at *15 (citation and brackets omitted). The second

method “looks not at case law, but at the officer’s conduct, and inquires whether

that 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.’” See id. (citation and brackets

omitted). Cases falling under the second method are referred to as “obvious clarity”

cases. See Vinyard, supra, 311 F.3d at 1350. The plaintiff argues in this case that

Officer Ard had “fair warning” that his conduct was clearly unlawful under existing

case law and/or because this is an “obvious clarity” case.

For a constitutional right to be clearly established under the first method, the

Eleventh Circuit has stated many times that “if case law, in factual terms, has not

staked out a bright line, qualified immunity almost always protects the defendant.”

Oliver, supra, 586 F.3d at 907 (citation omitted). Prior existing case law will give

adequate notice to an officer when the circumstances are “materially similar” and

not “fairly distinguishable.” See Vinyard, supra, 311 F.3d at 1352. The Supreme

Court “[does] not require a case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd,

--- U.S. ---, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011). In determining if

existing case law provided an officer with fair warning that a specific use of force

was unlawful “beyond debate,” the Eleventh Circuit has made clear that it "[does]

not expect public officials to sort out the law of every jurisdiction in the country."

See Marsh v. Butler County, Ala., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001).

Therefore, “[w]hen case law is needed to ‘clearly establish’ the law applicable to

the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the

United States Court of Appeals for the Eleventh Circuit, and the highest court of

the pertinent state.” Id.

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The plaintiff has not identified --- and my research has not revealed --- a case

from the United States Supreme Court, the Eleventh Circuit, or the Florida Supreme

Court, “stak[ing] out a bright line” and holding that it is excessive force for a police

officer in a vehicle to tase someone who is fleeing on a bicycle.8 The cases cited by

the plaintiff either do not involve a fleeing suspect (the third Graham factor used to

analyze reasonableness),9 and/or they are otherwise “fairly distinguishable.”10

8

 Although the plaintiff did not present this case as supporting her claim, a

federal district court in Minnesota held that tasing a man riding on a bicycle could

be unconstitutional; however, the facts of the case are readily distinguishable and,

as that decision is not controlling in this jurisdiction, it is not binding on the officer

in this case. See generally Orsak v. Metro. Airports Com'n Airport Police Dept.,

675 F. Supp. 2d 944 (D. Minn. 2009).

9

 See, for example: 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 Powell failed to obey”); Oliver v. Fiorino, 586 F.3d 898 (11th

Cir. 2009) (deceased tased multiple times even though he was “largely compliant

and cooperative with officers”); Moretta v. Abbott, 280 Fed. Appx. 823 (11th Cir.

2008) (taser victim was a 6 year-old, 3 foot/5 inch tall, 53-lb child who, when the

police officer encountered him, was “standing motionless and passive”); Priester v.

City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (burglary suspect “submitted

immediately to the police”; “complied” with their orders; and “was not attempting

to flee or to resist arrest”).

10 To highlight just one example, the plaintiff cites Vinyard v. Wilson, 311

F.3d 1340 (11th Cir. 2002), as proof that, on or about October 3, 2009, “it was

clearly established that [a taser] could not constitutionally be used against a

nonthreatening suspect when the alleged suspect’s crime was a minor offense.”

However, in Vinyard, the officer had arrested the plaintiff for a minor offense, and

there was “no indication that she actively resisted the initial arrest or attempted to

flee at any time.” She was fully secured with handcuffs and placed in the back seat

of the patrol car. While on the way to the police station, the plaintiff screamed and

directed profanities at the officer. He then stopped the car and grabbed her arm and

breast (bruising both); pulled her head back by the hair; and sprayed her in the face

with several bursts of pepper spray. Using that type of force on an already-secured

and handcuffed suspect is clearly different than firing a single taser shock to stop a

suspect who is in the process of fleeing.

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Thus, to the extent that the plaintiff contends there is a “controlling case”

that clearly established on October 3, 2009, that Officer Ard’s use of force was

unconstitutional, I find that each cited case is readily distinguishable.11 I will now

turn to the second method of determining whether Officer Ard had “fair warning”

that his conduct was unlawful.

The second method --- for “obvious clarity” cases --- is a “narrow exception

to the normal rule that only case law and specific factual scenarios can establish a

violation.” Fils, supra, --- F.3d ---, 2001 WL 3241618, at *15. The Eleventh Circuit

recently described the method this way: “Concrete facts are generally necessary to

provide officers with notice of the ‘hazy border between excessive and acceptable

force.’ But, where the officer's conduct is so outrageous that it clearly goes ‘so far

beyond’ these borders, qualified immunity will not protect him even in the absence

of case law.” Id. In such cases, force will be deemed excessive if it violates “some

broad statements of principle in case law [that] are not tied to particularized facts.”

Vinyard, supra, 311 F.3d at 1351. This “clearly-excessive-even-in-the-absence-ofcase-law standard is a difficult one to meet.” Priester v. City of Riviera Beach, 208

F.3d 919, 927 (11th Cir. 2000). 

The plaintiff contends that in this case “we are dealing with an officer that

[sic] intentionally deployed his Taser from the window of his speeding patrol car at

an individual riding on another vehicle (a bicycle), from a distance of no more than

eight (8) feet while both vehicles were underway.” These conditions, the plaintiff

further contends, “presented an abnormally high likelihood of serious injury or death

11 Subsequent to the briefing and oral argument in this case, the Eleventh

Circuit decided another taser case, but it too did not involve a fleeing suspect and

is otherwise quite different factually. See Fils v. City of Aventura, --- F.3d ---, 2011

WL 3241618 (11th Cir. July 28, 2011) (use of force held to be excessive when the

suspect “was tased even though he committed at most a minor offense; he did not

resist arrest; he did not threaten anyone; and he did not disobey any instructions

(for none were given)”) (emphasis added). 

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to Mr. Steen.” Relying primarily on Garner, Vaughan, and Oliver, supra, the plaintiff

insists that the purported excessive force in this case was clearly established under

the “obvious clarity” standard. I do not agree.

As previously discussed, Garner and Vaughan are plainly distinguishable. To

paraphrase the Supreme Court in Harris, supra, tasing a person riding a bicycle “is,

in fact, not much like a policeman’s shooting a gun so as to hit a person” and thus

does not pose the same “near certainty of death posed by, say, shooting a fleeing

felon in the back of the head, or pulling alongside a fleeing motorist’s car [traveling

80+ mph on an interstate highway] and shooting the motorist.” 550 U.S. at 383-

84 (distinguishing both Garner and Vaughan). While it was obvious and apparent in

those cases that the force being used was “virtually certain” to result in death, that

is simply not the case here.12

 Oliver is also different factually. The evidence in that case, as summarized by

the Eleventh Circuit, established that:

Oliver was neither accused nor suspected of a crime at

the time of the incident, that Officer Fiorino tasered Oliver

at least eight and as many as eleven or twelve times with

each shock lasting at least five seconds, that the officers

made no attempt to handcuff or arrest Oliver at any time

during or after any Taser shock cycle, that the officer

continued to administer Taser shocks to Oliver while he

was lying on the hot pavement, immobilized and clenched

up, and, finally, that these Taser shocks resulted in

extreme pain and ultimately caused Oliver's death. 

12 Indeed, the plaintiff’s argument on this point is somewhat inconsistent. On

the one hand, she suggests that there was a high likelihood of death (and that this

is an “obvious clarity” case) because tasing Steen while he was on his bicycle left

“essentially no time for Officer Ard to avoid running over [him], given the obvious

limitations in human reaction time.” On the other hand, the plaintiff suggests that it

was not “limitations in human reaction time” that brought about Steen’s death, but

rather Officer Ard made a “sudden sharp turn” into the parking lot, “accelerated his

vehicle,” and “deliberately and intentionally used his vehicle to ram into Steen.” 

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Supra, 586 F.3d at 901. The court recognized that there was no binding federal or

state case “directly on all fours with this case.” See id. at 907. Nevertheless, even

though there was no prior decision expressly holding that it was excessive force to

use a taser “under circumstances like these” [see id.], case law was not necessary

since the case under review was one of “obvious clarity”:

[T]he force employed was so utterly disproportionate to

the level of force reasonably necessary that any

reasonable officer would have recognized that his actions

were unlawful [even in the absence of case law on point].

The need for force was exceedingly limited. Again, Oliver

was not accused of or suspected of any crime, let alone a

violent one; he did not act belligerently or aggressively;

he complied with most of the officers’ directions; and he

made no effort to flee.

Tasering the plaintiff at least eight and as many as eleven

or twelve times over a two-minute span without

attempting to arrest or otherwise subdue the plaintiff ---

including tasering Oliver while he was writhing in pain on

the hot pavement and after he had gone limp and

immobilized --- was so plainly unnecessary and

disproportionate that no reasonable officer could have

thought that this amount of force was legal under the

circumstances. When measured against these facts, the

officers violated a clearly established right.

Id. at 908 (emphasis added). Oliver is thus clearly distinguishable on its facts.13

13 Other “obvious clarity” cases can also be easily distinguished as they did

not involve fleeing suspects. See, e.g., Slicker v. Jackson, 215 F.3d 1225 (11th Cir.

2000) (concluding, without case law on point, that the evidence --- if credited ---

showed that “the officers used excessive force in beating Slicker even though he

was handcuffed and did not resist, attempt to flee, or struggle with the officers in

any way”); Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (force

was “clearly-excessive-even-in-absence-of-case-law” when police officer released

his K-9 to attack suspect who was lying on the ground, did not pose any threat to

officers or others, and was not attempting to flee the scene or resist arrest); Smith

v. Mattox, 127 F.3d 1416 (11th Cir. 1997) (officer’s conduct went “far beyond the

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There are, as noted, situations where “a general constitutional rule already

identified in the decisional law may apply with obvious clarity to the specific

conduct in question, even though the very action in question has [not] previously

been held unlawful.” Vinyard, supra, 311 F.3d at 1352. However, the Eleventh

Circuit has stated “if a broad principle in case law is to establish clearly the law

applicable to a specific set of facts facing a governmental official, it must do so

‘with obvious clarity’ to the point that every objectively reasonable government

official facing the circumstances would know that the official’s conduct did violate

federal law when the official acted.” Id. (emphasis added). Because it can scarcely

be claimed that “every objectively reasonable government official” in Officer Ard’s

position would have known that tasing a suspect who was fleeing on his bicycle

violated clearly established federal law, this case is not one of “obvious clarity.” 

Although the morning of October 3, 2009, ended in tragedy, Officer Ard’s

use of the taser on the facts presented was not “so far beyond the hazy border

between excessive and acceptable force that [Ard] had to know he was violating

the Constitution even without case law on point.” See Priester, supra, 208 F.3d at

926. A taser is generally recognized as having many useful and lawful applications

for law enforcement purposes. It is not a deadly weapon, as the Eleventh Circuit

recently noted in Fils, supra. Accordingly, I must conclude that, as of that date, it

hazy border,” and unlawfulness was “readily apparent even without clarifying case

law,” when the officer, while on the plaintiff's back and handcuffing him, broke

plaintiff’s arm requiring surgery for numerous fractures even though plaintiff at the

time was offering no resistance at all); see also Lee v. Ferraro, 284 F.3d 1188 (11th

Cir. 2002) (officer stopped motorist for improperly honking her car horn, and, in the

course of arresting her for violating local noise ordinance (during which she did not

resist or attempt to flee), he “slammed” her head down on the trunk “after she was

arrested, handcuffed, and completely secured, and after any danger to the arresting

officer as well as any risk of flight had passed”; concluding, “as in Slicker, Priester,

and Smith, the peculiar facts of this case are ‘so far beyond the hazy border

between excessive and acceptable force that [the officer] had to know he was

violating the Constitution even without case law on point’”) (emphasis original).

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was not clearly established to “every objectively reasonable government official”

(and thus, there was no “fair warning”) that discharging a single taser shock to a

suspect attempting to flee on a bicycle was unconstitutional.

Therefore, Chief Mathis is entitled to qualified immunity on the supervisory

liability claim.

III. Conclusion

For the above reasons, Chief Mathis’s motion to dismiss count III (doc. 22)

must be, and is, GRANTED, to the extent that it is based on qualified immunity.

 

 DONE and ORDERED this 22nd day of August, 2011.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

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