Amy Corbitt v. Michael Vickers

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 10, 2019
• Docket: 17-15566
• Status: Published

Opinion

Case: 17-15566 Date Filed: 07/10/2019 Page: 1 of 43

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15566 ________________________

D.C. Docket No. 5:16-cv-00051-LGW-RSB

AMY CORBITT, Individually and as Parent and Natural Guardian of SDC, a Minor,

Plaintiff-Appellee,

versus

MICHAEL VICKERS, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(July 10, 2019)

Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge: Case: 17-15566 Date Filed: 07/10/2019 Page: 2 of 43

In this case involving an alleged use of excessive force, Defendant-

Appellant Michael Vickers (“Vickers”) asks this Court to reverse the district

court’s denial of his motion to dismiss on grounds that he is entitled to qualified

immunity. In addition to hearing from the parties at oral argument, we have

carefully reviewed the briefs, the record, and the relevant case law. Because

Vickers’s actions did not violate any clearly established rights, we conclude that he

is entitled to qualified immunity and that the district court should have granted his

motion to dismiss.

I. BACKGROUND

A. Factual Background.

This case is before us in the posture of an appeal from the district court’s

denial of Vickers’s Fed. R. Civ. P. 12(b)(6) motion to dismiss. We set forth below

the relevant allegations of the plaintiffs’1 complaint. At all times relevant to this

appeal, Vickers was a deputy sheriff in Coffee County, Georgia. On July 10, 2014,

Vickers and other officers “participated in an operation to apprehend a criminal

suspect, Christopher Barnett, whom [plaintiffs] ha[d] never met.” The operation

spilled over onto Plaintiff-Appellee Amy Corbitt’s (“Corbitt”) property after

Barnett “wandered into the area.”

1 Four other plaintiffs collectively sought $2,000,000 in damages (plus punitive damages), but their claims have been withdrawn or resolved and are not at issue in this appeal.

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At the time of the incident, one adult (Damion Stewart) and six minor

children—including Corbitt’s ten-year-old child SDC and two other children under

the age of three—were outside in Corbitt’s yard. Corbitt and two other minors

were inside. At some point after Vickers and the other officers entered Corbitt’s

yard, the officers “demanded all persons in the area, including the children, to get

down on the ground.” An officer handcuffed Stewart and placed a gun at his back.

The children were outnumbered by the officers, and plaintiffs alleged at least four

of the children (including SDC) “remained seized by deadly firearms.”

Then, “while the children were lying on the ground obeying [Vickers’s]

orders . . . without necessity or any immediate threat or cause, [Vickers] discharged

his firearm at the family pet named ‘Bruce’ twice.” The first shot missed, and

Bruce (a dog) temporarily retreated under Corbitt’s home. No other efforts were

made to restrain or subdue the dog, and no one appeared threatened by him. Eight

or ten seconds after Vickers fired the first shot, the dog reappeared and was

“approaching his owners,” when Vickers fired a second shot at the dog. This shot

also missed the dog, but the bullet struck SDC in the back of his right knee. At the

time of the shot, SDC was “readily viewable” and resting “approximately eighteen

inches from . . . Vickers, lying on the ground, face down, pursuant to the orders of

[Vickers].” Barnett (the fleeing suspect) “was visibly unarmed and readily

compliant” with officers. According to the complaint, “[a]t no time did SDC, or

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any other children . . . present any threat or danger to provoke . . . Vickers to fire

two shots.” Importantly, the parties do not dispute that Vickers intended to shoot

the dog and not SDC.

Medical imaging confirmed a serious gunshot wound to SDC’s right knee.

Bullet fragments remained in the wound for an extended period of time after the

shooting. SDC suffered severe pain and mental trauma. He received ongoing care

from an orthopedic surgeon.

B. Procedural Background.

Corbitt, individually and as SDC’s parent and guardian, brought a civil

action against Vickers in his individual capacity pursuant to 42 U.S.C. § 1983.

The complaint alleged deprivations of the right to be free from excessive force as

guaranteed by the Fourth and Fourteenth Amendments to the United States

Constitution. Corbitt asked the district court to award special and compensatory

damages totaling $2,000,000, together with unspecified punitive damages.

In response, Vickers filed a motion to dismiss pursuant to Rule 12(b)(6). He

asserted that he was entitled to qualified immunity because case law had not staked

out a “bright line” indicating that the act of firing at the dog and unintentionally

shooting SDC was unlawful. In support of this contention, Vickers pointed to the

unpublished decision of this Court in Speight v. Griggs, 620 F. App’x 806 (11th

Cir. 2015), which observed that “[i]n this circuit, there is no clearly established

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right to be free from the accidental application of force during arrest, even if that

force is deadly.” Id. at 809.

The district court found that Vickers was not entitled to qualified immunity

and denied his motion to dismiss. See generally Corbitt v. Wooten, No. 5:16-cv-

51, 2017 WL 6028640 (S.D. Ga. Dec. 5, 2017). The district court highlighted

several allegations from Corbitt’s complaint, including that no officer was required

to discharge a gun; that no one tried to restrain the dog; and that SDC was only

eighteen inches from Vickers when Vickers fired at the dog. Id. at *1. The district

court then found that SDC was seized even before Vickers fired a shot. Id. at *4.

Next, the district court reasoned that this case involves an “accidental

shooting” and not an “accidental firing” because, even if Vickers did not intend to

shoot SDC, he did intend to fire his gun at the dog. Id. at *4 & n.4. It then relied

on “a reasonable inference from the allegations in the [c]omplaint, drawn in

[Corbitt’s] favor . . . that Vickers fired his weapon at the animal in order to keep

control of SDC . . . [and] continue [his] seizure.” Id. at *4. In other words, the

district court thought “a jury could find that Vickers intended to shoot the animal

in order to maintain his control of the situation and keep [SDC] from escaping.”

Id.

The district court then considered whether Vickers was entitled to qualified

immunity. It noted this Court’s general statement in Thornton v. City of Macon

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that “[i]t is clearly established that the use of excessive force in carrying out an

arrest constitutes a violation of the Fourth Amendment.” Id. at *5 (citing Thornton

v. City of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998)). Relying on this

statement, the district court then concluded that “Vickers is not entitled to qualified

immunity if he used excessive force in firing his weapon.” Id.

In determining whether Vickers used excessive force, the district court

remarked that in some cases “no factually particularized, preexisting case law [is]

necessary for it to be very obvious to every objectively reasonable officer facing

[the defendant’s] situation that [his] conduct . . . violated [the plaintiff’s] right to be

free of the excessive use of force.” Id. at *6 (alterations in original) (quoting

Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002)). It then emphasized that

“[t]he touchstone for reasonableness in animal shooting cases is typically officer

safety,” before concluding that Vickers may have acted unreasonably because the

complaint alleged he fired his gun “without necessity or any immediate threat or

cause” and that “no allegations suggest that Vickers was unsafe in any way or that

Bruce [the dog] exhibited any signs of aggression.” Id. (citations and alterations

omitted). The district court acknowledged that the record could develop

differently following discovery—at which time Vickers might raise the defense of

qualified immunity again—but it ultimately concluded that “[a]t this stage, the

complaint makes sufficient allegations to proceed.” Id. at *7. Vickers appealed to

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this Court, and we now consider whether the district court erred when it denied

Vickers’s motion to dismiss on grounds that he was not then entitled to qualified

immunity. 2

C. Arguments on Appeal.

On appeal, Vickers argues the district court erred in denying his motion to

dismiss. He contends there is only a single act at issue in this case: the firing of his

gun with the intent to strike a dog. He notes the lack of any cases finding similar

conduct to be unlawful, and emphasizes Supreme Court precedent providing that a

Fourth Amendment seizure occurs “only when there is a governmental termination

of freedom of movement through means intentionally applied.” See Brower v.

Cty. of Inyo, 489 U.S. 593, 597, 109 S. Ct. 1378, 1381 (1989).

Vickers also argues that this Court’s published decision in Vaughan v. Cox 3

and our unpublished decisions in Speight4 and Cooper v. Rutherford 5 compel the

conclusion that there is no clearly established right to be free from the accidental

2 To the extent it turns on a question of law, a denial of qualified immunity at the motion to dismiss stage is an immediately appealable interlocutory order. Behrens v. Pelletier, 516 U.S. 299, 308, 116 S. Ct. 834, 839–40 (1996). This is true even if the district court “reserved ruling on a defendant’s claim to immunity” until a later stage of the litigation because the “immunity is a right not to be subjected to litigation beyond the point at which immunity is asserted.” Howe v. City of Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017). Indeed, the “driving force behind creation of qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials [will] be resolved prior to discovery.” Pearson v. Callahan, 555 U.S. 223, 232–33, 129 S. Ct. 808, 815 (2009) (alteration in original) (internal quotation marks omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2, 107 S. Ct. 3034, 3039 n.2 (1987)). 3 343 F.3d 1323 (11th Cir. 2003). See also discussion infra, Part II.C. 4 620 F. App’x 806. 5 503 F. App’x 672 (11th Cir. 2012).

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application of force. He takes issue with the district court’s attempt to “fit the facts

of this case into the framework of Vaughan” because, to Vickers, there is no

plausible way to conclude from the pleadings that his goal in shooting at the dog

was to continue SDC’s “lawful temporary detention incidental to the arrest of

Barnett.” He also argues the circuit split 6 on the question of whether the Fourth

Amendment is ever violated by the accidental discharge of a weapon is by itself

enough to show the law at issue here is not clearly established, before pointing to

two district court decisions 7 from other jurisdictions that found no constitutional

violation on facts somewhat similar to those presented here.

In response, Corbitt agrees with the district court that SDC was seized

throughout the entire incident (even before Vickers fired his gun at the dog). She

argues that Vickers’s act of firing his gun at the dog violated SDC’s Fourth

Amendment rights. She then argues this Court should apply the objective

reasonableness test from Graham v. Connor 8 and find that Vickers acted

unreasonably. She contends it is clearly established that the use of excessive force 6 Compare Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir. 1987) (refusing to apply reasonableness standard to accidental shooting), with Pleasant v. Zamieski, 895 F.2d 272, 276– 77 (6th Cir. 1990) (examining reasonableness even though shooting was accidental). In addition to the cases cited by Vickers, compare Schultz v. Braga, 455 F.3d 470, 479–483 (4th Cir. 2006) (focusing primarily on officer’s lack on intent to shoot bystander in rejecting Fourth Amendment claim), with Roach v. City of Fredericktown, 882 F.2d 294, 296–97 (8th Cir. 1989) (rejecting Fourth Amendment excessive force claim brought by passengers of oncoming car injured as a result of high speed police chase but only after determining that officer’s use of high speed chase was reasonable under the circumstances). 7 Brandon v. Vill. of Maywood, 157 F. Supp. 2d 917, 924–25 (N.D. Ill. 2001); Dahm v. City of Miamisburg, No. C-3-95-207, 1997 WL 1764770, at *9 (S.D. Ohio 1997). 8 490 U.S. 386, 109 S. Ct. 1865 (1989).

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in carrying out an arrest violates the Fourth Amendment, and that Vickers used

excessive force because the complaint clearly indicates that it was not necessary to

use any force at all.

II. ANALYSIS

A. Qualified Immunity in Motion to Dismiss Posture.

Although “the defense of qualified immunity is typically addressed at the

summary judgment stage of a case, it may be . . . raised and considered on a

motion to dismiss.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir.

2002). Generally speaking, it is proper to grant a motion to dismiss on qualified

immunity grounds when the “complaint fails to allege the violation of a clearly

established constitutional right.” Id.; see also Quiller v. Barclays Am./Credit, Inc.,

727 F.2d 1067, 1069 (11th Cir. 1984), aff’d en banc 764 F.2d 1400 (11th Cir.

1985). This is a question of law that is reviewed “de novo, accepting the facts

alleged in the complaint as true and drawing all reasonable inferences in the

plaintiff’s favor.” St. George, 285 F.3d at 1337. When reviewing the denial of a

qualified immunity defense asserted in a motion to dismiss, appellate review is

“limited to the four corners of the complaint.” Id. “Once an officer has raised the

defense of qualified immunity, the burden of persuasion on that issue is on the

plaintiff.” Id.

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B. Qualified Immunity Law.

The qualified immunity defense shields “government officials performing

discretionary functions . . . 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.” 9 Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S. Ct. 2727, 2738 (1982). The immunity balances two important public

interests: “the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555

U.S. 223, 231, 129 S. Ct. 808, 815 (2009). This allows officials to work without

fear of liability, protecting “all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096

(1986).

To overcome a qualified immunity defense, the plaintiff must make two

showings. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199–1200 (11th Cir.

2007). First, she “must establish that the defendant violated a constitutional right.”

Id. Second, she must show the violated right was “clearly established.” Id.

Although the lower federal courts were once required to consider the first prong

before the second, they are now “permitted to exercise their sound discretion in

9 There is no question in this case that Vickers was acting in his discretionary capacity as a deputy sheriff when the challenged shooting occurred.

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deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236, 129 S. Ct. at 818.

For a right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,

3039 (1987). This is because “officials are not obligated to be creative or

imaginative in drawing analogies from previously decided cases,” and an

“official’s awareness of the existence of an abstract right . . . does not equate to

knowledge that his conduct infringes the right.” Coffin v. Brandau, 642 F.3d 999,

1015 (11th Cir. 2011) (alteration in original) (citations omitted). “This is not to

say that an official action is protected by qualified immunity unless the very action

in question has previously been held unlawful, but it is to say that in the light of the

pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640,

107 S. Ct. at 3039; see also Hope v. Pelzer, 536 U.S. 730, 736, 739, 122 S. Ct.

2508, 2513, 2515 (2002) (rejecting this Court’s earlier requirement that “federal

law by which the government official’s conduct should be evaluated must be

preexisting, obvious and mandatory” and not based on “abstractions” but instead

only by “materially similar” cases as too rigid a gloss on qualified immunity law).

Indeed, the “‘salient question’ . . . is whether the state of the law gave the

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defendants ‘fair warning’ that their alleged conduct was unconstitutional.”

Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003) (quoting Hope, 536 U.S. at

741, 122 S. Ct. at 2516).

“Because identifying factually similar cases may be difficult in the excessive

force context,” Lee v. Ferraro, 284 F.3d 1188, 1198–99 (11th Cir. 2002), we may

find fair warning in the law without also finding a factually identical case. In fact,

this Court has since Hope identified three different ways a plaintiff can show that

the state of the law gives officials fair warning of a clearly established right. First,

she can still “show that a materially similar case has already been decided.”

Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). “This category

consists of cases where judicial precedents are tied to particularized facts.” Loftus

v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012). In determining whether a

right is clearly established under this prong, this Court looks to “judicial decisions

of the United States Supreme Court, the United States Court of Appeals for the

Eleventh Circuit, and the highest court of the relevant state.” Griffin Indus., 496

F.3d at 1199 & n.6. Second, she can “also show that a broader, clearly established

principle should control the novel facts” of a particular situation. Mercado, 407

F.3d at 1159 (citing Hope, 536 U.S. at 741, 122 S. Ct. at 2516). “[T]he principle

must be established with obvious clarity by the case law so that every objectively

reasonable government official facing the circumstances would know that the

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official’s conduct did violate federal law when the official acted.” Loftus, 690

F.3d at 1205 (alteration in original). Put another way, “in the light of pre-existing

law the unlawfulness must be apparent.” Id. Third, she could show that her case

“fits within the exception of conduct which so obviously violates [the] constitution

that prior case law is unnecessary.” Mercado, 407 F.3d at 1159. Under this final

test, the qualified immunity defense can be successfully overcome in an excessive

force case “only if the standards set forth in Graham and our own case law

inevitably lead every reasonable officer in [the defendant’s] position to conclude

the force was unlawful.” Lee, 284 F.3d at 1199 (alteration in original) (citation

and internal quotation marks omitted). Notwithstanding the availability of these

three independent showings, this Court has observed on several occasions that “if

case law, in factual terms, has not staked out a bright line, qualified immunity

almost always protects the defendant.” See, e.g., Oliver v. Fiorino, 586 F.3d 898,

907 (11th Cir. 2009) (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 926

(11th Cir. 2000)).

C. The Constitutional Right Allegedly Infringed.

With these basic qualified immunity principles in mind, our § 1983 “analysis

begins by identifying the specific constitutional right allegedly infringed.” Graham

v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1870 (1989). Two decisions

provide relevant guidance in this regard. First, the Supreme Court in Graham held

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that the Fourth Amendment governs “a free citizen’s claim that law enforcement

officials used excessive force in the course of making an arrest, investigatory stop,

or other ‘seizure’ of his person.” Id. at 388, 109 S. Ct. at 1868–69. Second, “the

Fourteenth Amendment guards against the use of excessive force against arrestees

and pretrial detainees.” J W ex rel. Tammy Williams v. Birmingham Bd. of Educ.,

904 F.3d 1248, 1259 (11th Cir. 2018). Consequently, it is a threshold question

whether SDC was “seized” at any point during his encounter with Vickers. If SDC

was already seized when Vickers fired at the dog, or if the act of shooting SDC by

itself constituted a seizure, then this case is properly analyzed under Fourth

Amendment standards. If SDC was not already seized, and if the act of shooting

SDC by itself does not constitute a seizure, then Fourteenth Amendment standards

must be applied.

What makes this case more difficult than many excessive force cases is that

SDC’s role in the incident does not fit neatly into any of the usual analytical

categories. SDC was not the intended target of an active arrest or investigatory

stop (in which case the Fourth Amendment clearly would apply), nor was he an

arrestee or pretrial detainee (in which case the Fourteenth Amendment clearly

would apply). Rather, SDC was a ten-year-old child who happened to be playing

in his own yard when it became an arrest scene by virtue of circumstances beyond

his control. SDC is best described as an innocent bystander.

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Reasonably construing the allegations in the complaint in Corbitt’s favor,

Vickers ordered SDC and the other children to the ground and held them there at

gunpoint. An adult in the yard with SDC and the other children was placed in

handcuffs. Other armed officers were present, and Vickers eventually discharged

his weapon twice. The second shot accidentally hit SDC. We conclude that SDC

was already “seized” when Vickers fired at the dog because “in view of all of the

circumstances surrounding the incident, a reasonable person10 would have believed

that he was not free to leave.” See United States v. Mendenhall, 446 U.S. 544,

554, 100 S. Ct. 1870, 1877 (1980). And even though the complaint does not allege

Vickers applied any physical force against SDC until Vickers’s second shot struck

his knee, there was without question an initial “show of authority” to which SDC

clearly yielded when he lay face down on the ground pursuant to Vickers’s orders.

Cf. California v. Hodari D., 499 U.S. 621, 626–29, 111 S. Ct. 1547, 1550–52

(1991) (finding that fleeing suspect was not seized until he was tackled because he

did not yield to initial pursuit by officers).

SDC’s status as an innocent bystander is not inconsistent with our

conclusion that he was seized by Vickers before any shots were fired. In making

this observation, we are mindful “that the Fourth Amendment governs ‘seizures’ of

10 Cf. Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (finding seizure where “no reasonable child would have believed that he was free to leave”); Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir. 2005) (viewing case “through the eyes of a reasonable sixteen-year-old”).

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the person which do not eventuate in a trip to the station house and prosecution for

crime—‘arrests’ in traditional terminology,” and that “[i]t must be recognized that

whenever a police officer accosts an individual and restrains his freedom to walk

away, he has ‘seized’ that person.” Michigan v. Summers, 452 U.S. 692, 696 n.5,

101 S. Ct. 2587, 2591 n.5 (1981) (quoting Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct.

1868, 1877 (1968)).

This general principle applies with equal force in cases involving innocent

bystanders located at the scene of an active arrest. In a case involving the

execution of an anticipatory search warrant, this Court concluded that “officers

were authorized to exercise ‘unquestioned command of the situation’ by placing all

the occupants of the Premises on the ground for several minutes while securing the

home and ensuring there was no danger to the officers or the public.” Croom v.

Balkwill, 645 F.3d 1240, 1253 (11th Cir. 2011) (quoting Muehler v. Mena, 544

U.S. 93, 99, 125 S. Ct. 1465, 1470 (2005)). This was true even with respect to an

innocent bystander (the homeowner’s mother Patsy Croom) who was not involved

in any of the criminal activity in which her son was allegedly participating. After

observing that Croom “was seized in the non-curtilage front yard,” the Court also

noted that the “officers’ authority to detain Croom flowed not from the warrant,

but rather from the Reasonableness Clause of the Fourth Amendment.” Id. at

1248–49 (emphasis added). It then expressly found that there was no Fourth

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Amendment violation because the officers had used only de minimis force in

“pushing Croom to the ground from her squatting position and holding her there

with a foot (or knee) in the back for up to ten minutes.” Id. at 1252–53.

We note that at least two other circuits have recognized that even innocent

bystanders who are temporarily detained have been subjected to a seizure for

purposes of the Fourth Amendment. See Bletz v. Gribble, 641 F.3d 743, 755 (6th

Cir. 2011) (noting that “even absent particularized reasonable suspicion, innocent

bystanders may be temporarily detained where necessary to secure the scene of a

valid search or arrest and ensure the safety of officers and others” and concluding

that a reasonable jury could find that hour-long detention of innocent bystander

following a deadly shooting violated the Fourth Amendment); United States v.

Maddox, 388 F.3d 1356, 1362–63, 1367 (10th Cir. 2004) (applying Fourth

Amendment reasonableness standard in concluding that officers may temporarily

seize bystanders in area immediately adjoining arrest scene when seizure is

justified by safety concerns and the scope of the seizure is reasonable under the

circumstances); Thompson v. City of Lawrence, 58 F.3d 1511, 1517 (10th Cir.

1995) (balancing innocent bystander’s Fourth Amendment rights against

“governmental interest in securing the area around [the target of an arrest

operation] and protecting officers from potential danger” in finding temporary

detention was lawful). For purposes of this appeal, we find these cases persuasive

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to the extent they demonstrate that an innocent bystander who is not suspected of

any wrongdoing may be seized—in some cases reasonably and in other cases

potentially unreasonably—within the meaning of the Fourth Amendment.

Given our conclusion that SDC was already seized when Vickers fired at the

dog, we proceed by exercising our discretion to address only the qualified

immunity issue as it relates to Corbitt’s claim that Vickers’s second shot at the dog

violated SDC’s clearly established Fourth Amendment rights.11

D. Were Clearly Established Fourth Amendment Rights Violated?

The Fourth Amendment provides a “right of the people to be secure in their

persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. The

amendment “encompasses the right to be free from excessive force during the

course of a criminal apprehension.” Oliver, 586 F.3d at 905. To establish a Fourth

Amendment claim for excessive force, a plaintiff “must allege (1) that a seizure

occurred and (2) that the force used to effect the seizure was unreasonable.”

Troupe v. Sarasota Cty., 419 F.3d 1160, 1166 (11th Cir. 2005).

As noted above, at the time Vickers fired at the dog, SDC just happened to

be playing in his own yard when, for reasons beyond his control, his yard became

11 Corbitt’s complaint also set forth a Fourteenth Amendment claim for relief. She declined to withdraw that claim during the motion hearing before the district court, but the district court did not expressly reach the Fourteenth Amendment issue in its decision below. Although Corbitt briefed the Fourteenth Amendment issue before this Court (her arguments are not fully developed), there is no need for us to reach the issue given our conclusion that SDC was already seized—thus implicating the Fourth Amendment—when Vickers shot at the dog. See Graham, 490 U.S. at 388, 109 S. Ct. at 1868–69.

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the scene of an arrest operation. Although we have held that SDC was already

seized at the time of the shot, SDC is best described as an innocent bystander. And

although the commands of the officers that SDC and the other children lie face

down on the ground were actions directed at SDC and the other children, Corbitt

does not claim that those actions violated SDC’s Fourth Amendment rights; rather,

she claims that the action of Vickers firing at the dog and accidentally hitting SDC

violated the Fourth Amendment. We hold that Vickers’s action of intentionally

firing at the dog and unintentionally shooting SDC did not violate any clearly

established Fourth Amendment rights.

First, we note that Corbitt failed to present us with any materially similar

case from the United States Supreme Court, this Court, or the Supreme Court of

Georgia that would have given Vickers fair warning that his particular conduct

violated the Fourth Amendment. Corbitt admitted as much during the hearing on

Vickers’s motion to dismiss before the district court. Moreover, neither the district

court’s order nor our own research has revealed any such case. Thus, the only way

Corbitt can successfully overcome Vickers’s assertion of qualified immunity is to

show either that “a broader, clearly established principle should control the novel

facts” of this case as a matter of obvious clarity, or that Vickers’s conduct “so

obviously violates [the] constitution that prior case law is unnecessary.” Mercado,

407 F.3d at 1159. As our cases suggest, it is very difficult to demonstrate either.

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The district court found that Vickers was not entitled to qualified immunity

at the motion to dismiss stage because (1) this Court had previously stated that “[i]t

is clearly established that the use of excessive force in carrying out an arrest

constitutes a violation of the Fourth Amendment,” Corbitt, 2017 WL 6028640 at

*5 (quoting Thornton, 132 F.3d at 1400), and (2) Vickers acted unreasonably and

used excessive force in firing his weapon because there was no reasonable threat of

harm, id. at *6. This line of reasoning is an application of the second qualified

immunity test that asks whether a broader, clearly established principle should, as a

matter of obvious clarity, control the novel facts of a case. In so reasoning, we

think the district court placed too much emphasis on this Court’s statement in

Thornton. For starters, we have expressly said otherwise in other qualified

immunity cases. See, e.g., Mercado, 407 F.3d at 1159 (“[T]he principle that

officers may not use excessive force to apprehend a suspect is too broad a concept

to give officers notice of unacceptable conduct.”); Post v. City of Ft. Lauderdale, 7

F.3d 1552, 1557 (11th Cir. 1993) (“The line between lawful and unlawful conduct

is often vague. [The] ‘clearly established’ standard demands that a bright line be

crossed. The line is not found in abstractions—to act reasonably, to act with

probable cause, and so on—but in studying how these abstractions have been

applied in concrete circumstances.”), as modified 14 F.3d 583 (11th Cir. 1994).

20 Case: 17-15566 Date Filed: 07/10/2019 Page: 21 of 43

More important, perhaps, are two recent Supreme Court cases reminding

courts that the qualified immunity analysis requires a clearly established right to be

defined with specificity. In White v. Pauly, the Supreme Court—with palpable

frustration—reiterated “the longstanding principle that clearly established law

should not be defined at a high level of generality.” ___ U.S. ___, ___, 137 S. Ct.

548, 552 (2017) (per curiam) (internal quotation marks omitted) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)). Instead, “the clearly

established law must be ‘particularized’ to the facts of the case.” Id. (quoting

Anderson, 483 U.S. at 640, 107 S. Ct. at 3039). The Supreme Court ultimately

vacated a decision authored by a divided Tenth Circuit panel, faulting it for

“fail[ing] to identify a case where an officer acting under similar

circumstances . . . was held to have violated the Fourth Amendment . . . [and for]

rel[ying] on Graham, Garner, and their Court of Appeals progeny, which . . . lay

out excessive-force principles at only a general level.” Id. at ___, 137 S. Ct. at

550–52. Although the Supreme Court acknowledged that “general statements of

the law are not inherently incapable of giving fair and clear warning[,]” it also

emphasized that “Garner and Graham do not by themselves create clearly

established law outside ‘an obvious case.’” Id. (first quoting United States v.

Lanier, 520 U.S. 259, 271, 117 S. Ct. 1219, 1227 (1997); then quoting Brosseau v.

Haugen, 543 U.S. 194, 199, 125 S. Ct. 596, 599 (2004)).

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Just this year, the Supreme Court explained in another excessive force case:

Specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue . . . .

[I]t does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness. An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.

City of Escondido v. Emmons, ___ U.S. ___, ___, 139 S. Ct. 500, 2019 WL

113027, at *2–3 (2019) (per curiam) (alterations in original) (quoting Kisela v.

Hughes, ___ U.S. ___, 138 S. Ct. 1148, 1153 (2018) (per curiam)).

In light of these basic principles, we conclude that the district court erred in

relying on the general proposition that it is clearly established that the use of

excessive force is unconstitutional. The unique facts of this case bear this out. Not

only was SDC not the intended target of the arrest operation, he also was not the

intended target of Vickers’s gunshot. Both of these facts take this case outside “a

run-of-the-mill Fourth Amendment violation.” White, ___ U.S. at ___, 137 S. Ct.

at 552. In other words, we are not dealing with “an obvious case,” and no

principles emerge from our decisions that speak with “obvious clarity” to the

22 Case: 17-15566 Date Filed: 07/10/2019 Page: 23 of 43

unique and unfortunate circumstances that befell SDC. Indeed, we are unable to

identify any settled Fourth Amendment principle making it obviously clear that

volitional conduct which is not intended to harm an already-seized person gives

rise to a Fourth Amendment violation.

Narrower principles do emerge from our excessive force cases. See, e.g.,

Vinyard, 311 F.3d at 1348 (finding use of pepper spray on mildly intoxicated and

profane misdemeanant constituted “force that was plainly excessive, wholly

unnecessary, and, indeed, grossly disproportionate under Graham”); Oliver, 586

F.3d at 907–08 (denying qualified immunity where repeated use of Taser on non-

threatening subject was “grossly disproportionate to any threat posed” and “any

reasonable officer would have recognized that his actions were unlawful”).

However, unlike the present facts these cases—along with those cited by our

dissenting colleague in support of an almost identical proposition—all involve

conduct that was intentional as to the injured plaintiff.

Unlike any prior cases that could clearly establish the law for this case, at the

time Vickers fired at the dog, SDC was not the intended target of an arrest or

investigatory stop. Nor was he the intended target of Vickers’s shot; rather, he was

accidentally hit when Vickers fired at the dog. The Supreme Court’s decision in

Brower indicates that a Fourth Amendment violation depends upon intentional

action on the part of the officer. The Brower decision provides:

23 Case: 17-15566 Date Filed: 07/10/2019 Page: 24 of 43

Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful. This is implicit in the word “seizure,” which can hardly be applied to an unknowing act. . . . In sum, the Fourth Amendment addresses “misuse of power,” not the accidental effects of otherwise lawful government conduct.

Thus, if a parked and unoccupied police car slips its brake and pins a passerby against a wall, it is likely that a tort has occurred, but not a violation of the Fourth Amendment. And the situation would not change if the passerby happened, by lucky chance, to be a serial murderer for whom there was an outstanding arrest warrant—even if, at the time he was thus pinned, he was in the process of running away from two pursuing constables. It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. . . .

....

. . . In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result. It was enough here, therefore, that, according to the allegations of the complaint, Brower was meant to be stopped by the physical obstacle of the roadblock—and that he was so stopped.

489 U.S. at 596–99, 109 S. Ct. at 1381–82 (citations omitted).

24 Case: 17-15566 Date Filed: 07/10/2019 Page: 25 of 43

Lower court decisions construing Brower have required, in order to state a

violation of Fourth Amendment rights, that the officer’s action must have been

intended to stop the plaintiff, the party suing the officer. This reading of Brower

finds strong support in the language quoted above. There is a clear indication that

intentional government action directed toward the plaintiff, not accidental effects,

is required. See id. at 596, 109 S. Ct. at 1381 (“[T]he Fourth Amendment

addresses misuse of power, not the accidental effects of otherwise lawful

government conduct.” (citation and internal quotation marks omitted)). Also, the

Supreme Court’s hypothetical of the police car rolling and pinning a person against

a wall suggests that a Fourth Amendment violation occurs only when the

governmental action intentionally targets the person thus pinned. And no Fourth

Amendment violation occurs when the governmental action impacts an innocent

passerby, or even when a serial murderer for whom there is an outstanding warrant

is thus pinned, but only by lucky chance, as opposed to the murderer having been

pinned by intentional action targeting him.

Lower courts have usually construed Brower to require such intentional

action. For example, our own decision in Vaughan, 343 F.3d 1323, so construed

Brower. There, this Court reversed the district court’s grant of summary judgment

in favor of an officer under the following circumstances. The officer, with another

officer, was engaged in a high-speed chase of a red pickup truck suspected of

25 Case: 17-15566 Date Filed: 07/10/2019 Page: 26 of 43

having been stolen. The pickup truck was driven by Rayson, and the man in the

passenger seat, Vaughan, matched the description of the suspect. During a high-

speed chase, the officer, Cox, fired three bullets into the pickup truck, none of

which disabled either the truck or the driver. However, the third bullet punctured

Vaughan’s spine, seriously injuring him. This Court reversed the district court’s

grant of summary judgment to Officer Cox, but only after we concluded that

“Vaughan was hit by a bullet that was meant to stop him,” and therefore “he was

subjected to a Fourth Amendment seizure.” Id. at 1329. In so holding, we rejected

as inapplicable cases from other circuits which had rejected Fourth Amendment

claims brought by innocent bystanders or hostages accidentally harmed by police

fire, noting that those “cases are of little aid to our inquiry . . . because Vaughan

was neither an innocent bystander nor a hostage; instead, he was a suspect whom

Deputy Cox sought to apprehend.” Id. at 1328 n.4.

It is true that the Supreme Court’s decision in Brower, and our Eleventh

Circuit decision in Vaughan discussed above, focus on the seizure aspect of the

claimed Fourth Amendment violation. And it is also true that we have held that

SDC was already temporarily seized at the command of Vickers and the other

officers who were controlling the scene in their attempt to capture the suspect,

Barnett. Thus, Corbitt argues that Brower’s requirement of intentional government

conduct targeting SDC is satisfied, and thus she can prove a Fourth Amendment

26 Case: 17-15566 Date Filed: 07/10/2019 Page: 27 of 43

violation pursuant solely to the objective reasonableness test without regard to any

further intentionality element.

We conclude that Corbitt’s argument cannot overcome Vickers’s claim of

qualified immunity. No case capable of clearly establishing the law for this case

holds that a temporarily seized person—as was SDC in this case—suffers a

violation of his Fourth Amendment rights when an officer shoots at a dog—or any

other object—and accidentally hits the person. In other words, Corbitt is not

claiming that the officers’ command that SDC and the other children lie face down

on the ground violated Fourth Amendment rights. Nor is she claiming that any

other action of the officers directed toward SDC and the other children violated

Fourth Amendment rights. Rather, she is claiming SDC’s Fourth Amendment

rights were violated by Vickers’s shot—an action targeting the dog, not SDC.

Corbitt’s Fourth Amendment claim is based on a governmental action not directed

toward SDC and which only accidentally harmed SDC.

Indeed, dicta in Brower itself (as noted above) suggests that accidental

effects do not rise to the level of a misuse of power constituting a Fourth

Amendment violation. 12 See Brower, 489 U.S. at 596, 109 S. Ct. at 1381. Cases

from other circuits are generally in accord with this principle, especially when

12 As indicated above, there is a circuit split as to whether government action which accidentally harms the plaintiff can rise to the level of a Fourth Amendment violation. See discussion supra note 6. This only further strengthens Vickers’s claim that he is entitled to qualified immunity.

27 Case: 17-15566 Date Filed: 07/10/2019 Page: 28 of 43

bystanders are involved. See Schultz v. Braga, 455 F.3d 470, 479–83 (4th Cir.

2006) (declining to extend Fourth Amendment protections to “reasonably

foreseeable” victim of officer’s gunshot where victim was already seized by traffic

stop and officer did not intend to shoot her but instead intended to shoot her

passenger); Childress v. City of Arapaho, 210 F.3d 1154, 1155–57 (10th Cir. 2000)

(holding no Fourth Amendment seizure occurred when two escapees abducted

plaintiff and her two-year-old daughter and stole their minivan, and law

enforcement officers shot intending to restrain the minivan and escapees but

accidentally injured plaintiff and her daughter who were hostages in the minivan);

Medeiros v. O’Connell, 150 F.3d 164, 167–69 (2d Cir. 1998) (in similar factual

situation, holding no Fourth Amendment seizure and relying upon Brower, 489

U.S. at 596, 109 S. Ct. at 1381, for the proposition that the Fourth Amendment

addresses misuse of power, not accidental effects of otherwise lawful conduct);

Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990) (in a similar

factual situation, holding: “[a] police officer’s deliberate decision to shoot at a car

containing a robber and a hostage for the purpose of stopping the robber’s flight

does not result in the sort of willful detention of the hostage that the Fourth

Amendment was designed to govern,” and relying upon Brower for the proposition

that the Fourth Amendment addresses misuse of power, not accidental effects of

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otherwise lawful conduct);13 cf. Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir.

1987) (rejecting a Fourth Amendment claim of a § 1983 plaintiff where suspected

burglar was deemed to have been already seized and holding: “It makes little sense

to apply a standard of reasonableness to an accident.”). 14

The foregoing authorities do not support Corbitt’s argument that once SDC

was already seized in an unchallenged manner, the intent requirement of Brower is

satisfied, and a Fourth Amendment violation is established if the officer’s actions

were objectively unreasonable. As the Second Circuit noted in Dodd, that would

mean that a Fourth Amendment violation could be based upon simple negligence.

Dodd, 827 F.2d at 7–8. Moreover, the cases noted above have not distinguished

between the following two factual situations. In the first situation, an officer fires

at the robber or escapee and the vehicle in which he is fleeing with the plaintiff-

hostage, but the bullet accidentally also hits the unseized plaintiff-hostage, thus

raising the issue of whether the bullet striking the plaintiff-hostage constitutes a

13 See also discussion infra note 17 (comparing First Circuit case finding Fourth Amendment violation where accidental effects of conduct intentionally directed toward plaintiff resulted in shooting death of plaintiff). 14 While it is true that “only binding precedent can clearly establish a right for qualified immunity purposes,” Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir. 2013), non-binding persuasive authority can be used to indicate that a particular constitutional right is not clearly established, see Denno v. School Bd. of Volusia Cty., 218 F.3d 1267, 1272–75 (11th Cir. 2000) (concluding that school officials were entitled to qualified immunity because, in part, they could justifiably rely on “the perspective of several reasonable jurists” from outside Eleventh Circuit in navigating the “relevant legal landscape”). Thus, we need not, and expressly do not, express an opinion with respect to the correctness of cases like Schultz, Childress, Medeiros, Landol-Rivera, or Dodd. We cite such cases solely as examples of opinions of reasonable jurists which indicate that the relevant law is not clearly established.

29 Case: 17-15566 Date Filed: 07/10/2019 Page: 30 of 43

Fourth Amendment seizure. This factual situation is presented in the Brower dicta,

and in cases like Childress, Medeiros, and Landol-Rivera, all indicating there is no

Fourth Amendment seizure in that situation. In the second factual situation, the

plaintiff-bystander is already seized in an unchallenged manner, but then is harmed

accidentally by a shot fired at someone or something other than the plaintiff-

bystander. For example, in Schultz, the officer fired the shot at the person he

believed to be a robbery suspect in the passenger seat, but “blood and glass set in

motion by the gunshot” hit the already-seized Harkum in the driver’s seat. Schultz,

455 F.3d at 483. The court held that the officer was properly granted qualified

immunity from Harkum’s Fourth Amendment claim “because the force employed

was not directed towards her,” and because the focus of the Fourth Amendment

“did not involve unintended consequences of government action.” Id. (second

quotation quoting from Brower, 489 U.S. at 596, 109 S. Ct. at 1381). And in the

instant case, the already-seized bystander, SDC, was harmed accidentally when

Vickers intentionally fired at the dog. See Dodd, 827 F.2d at 7–8 (holding no

Fourth Amendment violation in a factual situation involving an accidental shooting

during handcuffing after the suspect was deemed to have been already seized).

Not only have the cases not distinguished between these two factual

situations, it is not obvious that there should be a different result in the two

situations, in light of the fact that the focus of the Fourth Amendment analysis is

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on the “misuse of power,” not the “accidental effects of otherwise lawful

government conduct.” Brower, 489 U.S. at 596, 109 S. Ct. at 1381. In other

words, it is the “accidental effect” that is significant. Stated in the language of the

relevant standard, the law is not clearly established that there is a Fourth

Amendment violation when an already-seized bystander, as in the instant case, is

accidentally harmed as an unintended consequence of an officer’s intentional shot

at something else entirely.

In sum, not only is there no materially similar binding case that clearly

establishes a Fourth Amendment violation; dicta from the Supreme Court and

nonbinding case law indicates that reasonable jurists have found no Fourth

Amendment violation in similar circumstances.15 We conclude that the accidental

shooting, as occurred here, does not constitute a clearly established Fourth

Amendment violation as a matter of obvious clarity. 16 Thus, Corbitt has failed to

demonstrate a clearly established Fourth Amendment violation, either by the first

method (a materially similar, binding case), or the second method (the violation is

15 See also discussion supra note 14. 16 The district court assumed the Brower intent requirement could be satisfied by the inference the district court derived from plaintiffs’ allegations “that Vickers fired his weapon at the animal in order to keep control of SDC . . . [and] continue [his] seizure.” Corbitt, 2017 WL 6028640, at *4. Thus, under the district court’s construction, Vickers’s shot was an attempt to continue his seizure of SDC, and thus satisfied the required intent element. However, the shot fired by Vickers—the act on which Corbitt bases her allegation of excessive force in violation of the Fourth Amendment—was clearly targeting Bruce, the dog; it is absolutely clear that it was by pure accident that the shot struck SDC. In any event, as demonstrated in the text, the district court’s position is not supported by clearly established law such that it would be apparent to any reasonable officer in Vickers’s shoes that his actions violated the Fourth Amendment.

31 Case: 17-15566 Date Filed: 07/10/2019 Page: 32 of 43

a matter of obvious clarity from such a binding case). We turn therefore to the

third method (the challenged conduct so obviously violates the Fourth Amendment

that prior case law is unnecessary).

This is not a case that so obviously violates the Fourth Amendment that prior

case law is unnecessary to hold Vickers individually liable for his conduct. To find

otherwise would require us to conclude that no reasonable officer would have fired

his gun at the dog under the circumstances. This we are unable to do. With the

benefit of hindsight, we do not doubt Vickers could have acted more carefully; the

firing of a deadly weapon at a dog located close enough to a prone child that the

child is struck by a trained officer’s errant shot hardly qualifies as conduct we wish

to see repeated. However, even the underlying constitutional issue itself (which of

course is easier for a plaintiff to prove than proving that particular circumstances

violate clearly established constitutional law) is evaluated pursuant to a

“calculus . . . [that] must embody allowance for the fact that police officers are

often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving.” Graham, 490 U.S. at 396–97, 109 S. Ct. at 1872.

In the instant qualified immunity context, we are cognizant that several cases

(some of which are mentioned above) have considered similar accidental shootings

of bystanders, and that many, if not most, of the jurists involved have concluded

that there was no clearly established Fourth Amendment violation. Indeed, we are

32 Case: 17-15566 Date Filed: 07/10/2019 Page: 33 of 43

aware of no case and no jurist indicating that such an accidental shooting (i.e., one

resulting from volitional conduct indisputably intended to stop someone or

something other than the plaintiff) so obviously violates the Fourth Amendment

that prior case law is unnecessary to hold that the officer violated clearly

established law.17 Moreover, the facts alleged here involve “accidental effects” of

conduct directed toward something other than the plaintiff, not the kind of “misuse

of power” which Brower suggests is the focus of a Fourth Amendment violation.

Brower, 489 U.S. at 596, 109 S. Ct. at 1381. We conclude that the circumstances

alleged in this case do not so obviously violate the Fourth Amendment such that it

would be apparent to every reasonable officer that his actions were in violation of

the Fourth Amendment. See Lee, 284 F.3d at 1199 (recognizing that a plaintiff can

surmount a qualified immunity defense by showing “that the official’s conduct lies

17 Cf. Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir. 2016). In Stamps, the First Circuit denied qualified immunity to an officer accused of using excessive force during the execution of a search warrant where the officer pointed a “loaded assault rifle at the head of a prone, non-resistant, innocent person who present[ed] no danger, with the safety off and a finger on the trigger,” then accidentally shot the person to death. Id. at 29, 39–40. Although relevant to our discussion here, the legal principle deemed clearly established in Stamps is materially different from the principle at issue in this case because Stamps involved the accidental consequences of conduct otherwise intentionally directed toward the plaintiff. In Stamps, the officer intentionally aimed his assault rifle at the plaintiff and then accidentally shot the plaintiff. Here, Vickers intentionally fired his gun at the dog and then accidentally shot SDC. Recognizing a similar distinction, the First Circuit in Stamps noted that its decision there was not inconsistent with its earlier decision in Landol-Rivera, 906 F.2d 791. In particular, it observed that the Landol-Rivera court had relied on Brower’s intent requirement in finding no Fourth Amendment violation on grounds that “it was not the officer’s intent to seize the hostage.” Stamps, 813 F.3d at 37 n.10. Put another way, Landol-Rivera’s “holding simply has no relevance [to Stamps] since there is no question that Stamps was the intended target of [the officer’s] seizure.” Id. We agree and find that this case is more like Landol-Rivera than Stamps because Vickers intended to shoot the dog, not SDC.

33 Case: 17-15566 Date Filed: 07/10/2019 Page: 34 of 43

so obviously at the very core of what the Fourth Amendment prohibits that the

unlawfulness of the conduct was readily apparent to the official, notwithstanding

the lack of case law” and emphasizing that “[u]nder this test, the law is clearly

established, and qualified immunity can be overcome, only if the standards in

Graham and our own case law inevitably lead every reasonable officer in [the

defendant’s] position to conclude the force was unlawful” (second alteration in

original) (citations and internal quotation marks omitted)).

We cannot agree with our dissenting colleague either on the facts or the law.

For example, in the absence of allegations of actual facts demonstrating that every

objectively reasonable officer in Vickers’s shoes would necessarily perceive a total

lack of reason to subdue a dog roaming freely at the scene of an active arrest, we

decline to accept the plaintiffs’ conclusory allegations that there was no need to

subdue the dog. See Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th

Cir. 2003) (“[C]onclusory allegations, unwarranted factual deductions or legal

conclusions masquerading as facts will not prevent dismissal.”). We think it even

more appropriate to disregard such allegations in the context of the qualified

immunity and excessive force issues raised by this case, where the Supreme Court

has directed us to judge the “reasonableness at the moment” of the officer’s actions

not from the plaintiff’s perspective, but instead “from the perspective of a

34 Case: 17-15566 Date Filed: 07/10/2019 Page: 35 of 43

reasonable officer on the scene,” who was operating without the “20/20 vision of

hindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872.

In any event, the allegations of the complaint are lacking in allegations of

actual facts18 that paint a scenario that so clearly and obviously presented such

danger to SDC that every objectively reasonable officer confronted with the

situation Vickers encountered would have known, in light of “the standards set

forth in Graham and our own case law,” Lee, 284 F.3d at 1199, and in the ten

seconds allegedly available, that a shot at the dog would violate the Fourth

Amendment. Thus, we cannot conclude that the instant allegations rise to that rare

level of conduct that “lies so obviously at the very core of what the Fourth

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

the official, notwithstanding the lack of case law.” Id.; see also Mercado, 407 F.3d

18 Contrary to the dissent’s suggestion, we do not discount the complaint’s conclusory allegation that the dog presented no threat because we accept instead Vickers’s conclusory allegation that he did feel the need to subdue the dog. Rather, we discount the complaint’s allegation because it is conclusory. There are no allegations of actual fact indicating that the dog was non-threatening. In contrast to Corbitt’s conclusory allegations of no threat and no justification, we suggest hypothetical illustrations of allegations of actual fact which Corbitt might have alleged depending upon what the actual facts were. For example, Corbitt might have alleged that the dog was a small and non-aggressive breed, like a toy poodle, or, if it was a breed known for aggression, that the dog was walking slowly towards its owners and not barking at all. We also cannot agree with our dissenting colleague that the actual facts alleged warrant the inference that the dog “was surrounded by children.” The complaint does not contain allegations of actual fact to support the dissent’s assertion that the dog was surrounded by children when Vickers fired at it. To the extent that the allegations focus on the relative locations of the dog to other children, they allege only that Vickers “discharged his firearm in the immediate vicinity of several innocent minor children and bystanders,” and “a large number of innocent bystanders, mostly children in the immediate area.” The dissent’s inference that Vickers shot “into a group of children” overstates the factual allegations contained in Corbitt’s complaint.

35 Case: 17-15566 Date Filed: 07/10/2019 Page: 36 of 43

at 1159 (noting that, under the third method, the conduct at issue must rise to a

level that “so obviously violates [the] constitution that prior case law is

unnecessary”). As a result, we also cannot conclude that Corbitt has overcome the

high legal threshold placed on plaintiffs who seek to overcome an officer’s

qualified immunity defense on the basis of the third method on which the dissent

focused. That this complaint fails to surmount that high legal threshold is

especially apparent in light of the considerable case law indicating that a Fourth

Amendment violation must involve official action that intentionally targets the

plaintiff. Not only does that case law strongly indicate it is not clearly established

that the accidental effects of official actions targeting others gives rise to a Fourth

Amendment violation, it even suggests that such actions may not even constitute a

Fourth Amendment violation in the first place. The relevant question is not

whether a reasonable officer would have refrained from shooting the dog. Instead,

the relevant question is whether every reasonable officer would have inevitably

refused to do so in light of the Fourth Amendment standards established by

Graham and our own case law. Our answer to that relevant question is in the

negative.

Accordingly, Vickers’s qualified immunity defense must prevail in the

absence of a materially similar case or a governing legal principle or binding case

that applies with obvious clarity to the facts of this case.

36 Case: 17-15566 Date Filed: 07/10/2019 Page: 37 of 43

III. CONCLUSION

In conclusion, we hold that Vickers is entitled to qualified immunity

because, at the time of the incident giving rise to this appeal, there was no clearly

established law making it apparent to any reasonable officer in Vickers’s shoes that

his actions in firing at the dog and accidentally shooting SDC would violate the

Fourth Amendment. Because we find no violation of a clearly established right,

we need not reach the other qualified immunity question of whether a

constitutional violation occurred in the first place. This opinion expressly takes no

position as to that question. The order of the district court denying Vickers’s

motion to dismiss is hereby reversed, and the case is remanded to the district court

with instructions to dismiss the action against Vickers.

REVERSED and REMANDED.

37 Case: 17-15566 Date Filed: 07/10/2019 Page: 38 of 43

WILSON, Circuit Judge, dissenting:

The majority accurately points out that qualified immunity protects “all but

the plainly incompetent.” Maj. Op. at 10 (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)). Because no competent officer would fire his weapon in the direction

of a nonthreatening pet while that pet was surrounded by children, qualified

immunity should not protect Officer Vickers. Therefore, I dissent.

I.

On July 10, 2014, several officers, including Deputy Sheriff Michael

Vickers, initiated a search to locate and apprehend a criminal suspect, Christopher

Barnett. 1 The search led them to Amy Corbitt’s property after Barnett, “whom

[plaintiffs] ha[d] never met,” “wandered into the area.” Barnett, Damion Steward,

and six children—including Corbitt’s ten-year-old child S.D.C., and two children

under the age of three—were on the property’s front yard. The officers detained

Barnett and ordered everyone to get on the ground. An unidentified officer

handcuffed Steward and held a gun against his back. The detained children “were

1 The summary of the facts is based on the allegations made in the Complaint. See Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019) (noting that, at the motion to dismiss stage, “[w]e are required to accept all allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor”).

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[also] held at gun point, each having an officer forcefully shove the barrel of a

loaded gun into their backs.”

While Barnett, Damion, and the children were detained on the lawn, Vickers

spotted the Corbitt family pet, a dog named Bruce. Although no one “appear[ed]

to be threatened by [Bruce’s] presence,” Vickers attempted to shoot the dog. He

missed, and Bruce retreated under the Corbitt’s residence. Roughly ten seconds

later, Bruce reemerged and was “approaching his owners” on the yard. Vickers

fired another shot, again missing the pet. The errant bullet struck S.D.C. behind

the knee as the child lay in a “face down position on the ground at the request of

defendants.” Importantly, S.D.C. was “readily viewable” a mere eighteen inches

from Vickers at the time the shot was fired, and “[o]ther minor children were [ ]

within only a few feet of [ ] Vickers.” As a result of the bullet wound, S.D.C.

suffered severe physical pain and mental trauma.

II.

To overcome a qualified immunity defense, the plaintiff must (1) “establish

that the defendant violated a constitutional right” and (2) demonstrate that the

violated right was “clearly established.” Griffin Indus., Inc. v. Irvin, 496 F.3d

1189, 1199–1200 (11th Cir. 2007). I agree with the majority’s determination that

Corbitt satisfied the first requirement. See Maj. Op. at 14–18. I disagree, however,

39 Case: 17-15566 Date Filed: 07/10/2019 Page: 40 of 43

with the majority’s conclusion that Corbitt failed to demonstrate that Vickers

violated a “clearly established” constitutional right.

We have identified three ways a plaintiff can show that a right was clearly

established at the time of the defendant’s action. First, she can “show that a

materially similar case has already been decided.” Mercado v. City of Orlando,

407 F.3d 1152, 1159 (11th Cir. 2005). Second, she can “show that a broader,

clearly established principle should control the novel facts” of a particular

situation. Id. (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Third, she can

show that her case “fits within the exception of conduct which so obviously

violates [the] constitution that prior case law is unnecessary.” Id.; see also Lee v.

Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (noting that, to show that a right is

“clearly established,” plaintiffs may show “that the official’s 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 official, notwithstanding

the lack of case law.” (citation omitted)). I believe the instant case falls within the

third category.

Under this third recognized category, a plaintiff in an excessive force case

can overcome an officer’s qualified immunity defense “only if the standards set

forth in Graham and our own case law inevitably lead every reasonable officer in

[the defendant’s] position to conclude the force was unlawful.” Lee, 284 F.3d at

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1199 (alteration in original) (citation and internal quotation marks omitted). In

Graham v. Connor, the Supreme Court held that the reasonableness analysis

“requires careful attention to the facts and circumstances of each particular case,”

including the severity of the crime at issue, the safety interests of officers and

others, and any risk of violence or flight by a suspect. 490 U.S. 286, 396 (1989)

(citation omitted).

Consider the present facts and circumstances: officers arrived at a home and

found the subject of their search. At gunpoint, the officers ordered the suspect and

all persons in the area—including six children—to the ground. Everyone

complied. A nonthreatening family pet was present on the scene; there is nothing

to suggest that this pet acted with hostility or threatened the safety of anyone—

including the officers. With all the children and the suspect still lying on the

ground pursuant to the officers’ commands, Officer Vickers shot at the family pet.

He missed. He waited. He shot again. He missed again, instead striking a child

who had been—at all times—lying within arm’s reach of the officer.

This conduct—discharging a lethal weapon at a nonthreatening pet that was

surrounded by children 2—is plainly unreasonable. The nonthreatening nature of

2 The majority maintains that the Complaint does not “contain allegations of actual fact to support the dissent’s assertion that the dog was surrounded by children when Vickers fired at it.” Maj. Op. at 37 n.18. But there are allegations in the Complaint that, considered together, lead to the reasonable inference that the dog was surrounded by children at the time Officer Vickers fired the shot. See Sebastian, 918 F.3d at 1307 (noting that, at the motion to dismiss stage, we must draw all reasonable inferences in favor of the nonmoving party). Specifically, the

41 Case: 17-15566 Date Filed: 07/10/2019 Page: 42 of 43

the pet is crucial to this conclusion. 3 We have consistently denied qualified

immunity when the defendant-officer exhibited excessive force in the face of no

apparent threat. See cf. Saunders v. Duke, 706 F.3d 1262, 1265 (11th Cir. 2014)

(“We have repeatedly ruled that a police officer violates the Fourth Amendment,

and is denied qualified immunity, if he or she uses gratuitous and excessive force

against a suspect who is under control, not resisting, and obeying commands.”);

see, e.g., Slicker v. Jackson, 215 F.3d 1225, 1227 (11th Cir. 2000) (denying

qualified immunity to officer who arrested plaintiff, placed him in handcuffs and

then, after he had been fully secured, slammed his head into the pavement);

Complaint alleges that the dog was “approaching his owners,” including S.D.C., on the yard when Officer Vickers fired. It also alleges that S.D.C. “was approximately eighteen inches from Defendant Vickers” and “[o]ther minor children were [ ] within only a few feet of Defendant Vickers” when Officer Vickers fired. Finally, the Complaint alleges that Officer Vickers fired a shot at the dog but instead hit S.D.C. Based on these three allegations—(1) that the dog was approaching S.D.C., (2) that Officer Vickers was a few feet from S.D.C. and the other children, and (3) that Officer Vickers fired a shot at the dog, but instead struck a child—we can, and should, reasonably infer that the dog and the children were closely situated. 3 The majority declined to accept Corbitt’s allegations that the dog was nonthreatening, reasoning that the allegations were “conclusory.” Maj. Op. at 37. I disagree with such a characterization. At this stage, we must take plaintiff’s allegations as true. Sebastian, 918 F.3d at 1307; St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (“While there may be a dispute as to whether the alleged facts are the actual facts, in reviewing the grant of a motion to dismiss, we are required to accept the allegations in the complaint as true.”). We are therefore obligated to accept that the dog “posed no threat,” that “[no]one appear[ed] to be threatened by its presence,” and that it was merely “approaching his owners” at the time Officer Vickers fired. Instead, the majority appears to credit Officer Vickers’ own conclusory account—that he shot the dog “because it was approaching him, the officers, and the detained bystanders in a manner that led him to conclude that he needed to subdue it.” See Maj. Op. at 37 (concluding that some officers may find it reasonable to subdue a dog “roaming freely at the scene of an active arrest”). Neither Officer Vickers nor the majority elaborates on the dog’s behavior or explains how its behavior was so outrageous as to warrant shooting into a group of children. And even if such an explanation existed, we are required to accept Corbitt’s allegations as true. It is not for us to weigh the likelihood of either account. That is a job for the jury.

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Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926–27 (11th Cir. 2000)

(denying qualified immunity to officer who allowed police dog to attack arrestee

who was already subdued and lying on the ground); Smith v. Mattox, 127 F.3d

1416, 418–20 (11th Cir. 1997) (denying qualified immunity to officer who broke

plaintiff’s arm after plaintiff “docilely submitted” to officer’s request to “get

down”). It is also relevant that Officer Vickers was a mere foot and a half from

S.D.C. and was only a few feet from several other children. Nonetheless, facing no

apparent threat, Officer Vickers chose to fire his lethal weapon in the direction of

these children. 4 No reasonable officer would engage in such recklessness and no

reasonable officer would think such recklessness was lawful. Therefore, I agree

with the district court that Officer Vickers should not be entitled to qualified

immunity. Lee, 284 F.3d at 1199.

I respectfully dissent.

4 Officer Vickers emphasizes that he intended to shoot the dog and only accidentally struck S.D.C. He argues that such an inadvertent injury cannot be deemed a result of “excessive force.” I do not dispute that the shooting of S.D.C. was accidental. I maintain that Officer Vickers’ intentional action—shooting at a dog that was surrounded by children—was unreasonable.