K'Cee Kinard Odom v. Tobias Boisvert

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 5, 2024
• Docket: 23-11226
• Status: Unpublished

Opinion

USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 1 of 12

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11226 Non-Argument Calendar ____________________

K’CEE KINARD ODOM, Plaintiff-Appellant, versus TOBIAS BOISVERT, RAY SMITH, THE CITY OF PHENIX CITY,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 2 of 12

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D.C. Docket No. 3:19-cv-00832-ECM-JTA ____________________

Before JORDAN, LAGOA, and MARCUS, Circuit Judges. PER CURIAM: K’cee Odom brought this § 1983 suit against Phenix City po- lice officer, Officer Tobias Boisvert, for violating his Fourth Amendment right to be free from excessive force, after Boisvert tased him when responding to a disturbance involving Odom and members of his family. The district court granted summary judg- ment to Boisvert on qualified immunity grounds after finding that the officer had not acted with unreasonable force. After careful re- view, we affirm. I. The relevant facts -- as gleaned from the record on summary judgment -- are these. On September 12, 2019, a dispute broke out at a restaurant owned and operated by Odom, between Odom and his aunts, Rhonda Kennedy and Cathy Benton. Odom asked the two women to leave, and they went outside. Both Odom and Ken- nedy called 911 to report the incident, and two Phenix City police officers, Tobias Boisvert and Darrell Johnson, were dispatched to the restaurant to respond to the incident. Outside the restaurant, Officer Johnson turned on his body worn camera (“BWC”). The officers spoke with Kennedy, who said that Odom had punched her and had been getting aggressive with Benton. She asked the offic- ers to go inside to check on Odom because he was “on a rampage.” USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 3 of 12

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The two officers entered the restaurant, accompanied by Odom’s two aunts. The restaurant was completely dark, so Officer Johnson turned on a flashlight. As described in the complaint, “Mr. Odom was walking toward Officer Johnson and Cathy Benton and away from [Officer] Boisvert,” when Boisvert, “without provoca- tion, cause or warning, shot Mr. Odom in the back with his Taser.” Johnson’s BWC tells a different story, however. Immediately after Johnson turned on the flashlight, Odom yelled “get the fuck outta here” and people started screaming. The BWC shows another man, now known to be Odom’s brother, trying to restrain Odom, but Odom struggled and broke free from his brother’s grasp and ran toward a group of people a few paces away from him. Seconds later, before he could reach the group, Boisvert tased him. The taser prongs hit Odom in the back and he fell to the floor. The usage report shows that the taser delivered a single five-second burst of current to Odom. Officers handcuffed Odom and brought him outside. Odom can be seen on the BWC footage standing outside, pacing around, arguing with the officers. At some point, Odom began to complain of back pain and requested to be taken to the hospital. In a later written declaration, Odom said that he “was in very bad pain” and that it took approximately 90 minutes for emergency medical per- sonnel (“EMS”) to arrive and remove the taser prongs. After being treated by EMS, Odom was transported to the hospital, accompa- nied by Officer Johnson. At the hospital, he refused treatment be- cause he believed that he should not have to pay the bill. Johnson then arrested Odom and transported him to the jail. USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 4 of 12

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Odom sued Boisvert; Ray Smith, the Chief of Police at the Phenix City Police Department; and the City of Phenix City in the United States District Court for the Middle District of Alabama. Odom brought several state and federal claims against Boisvert and the other defendants, including a claim brought pursuant to 42 U.S.C. § 1983 that Officer Boisvert had violated Odom’s Fourth Amendment right to be free from excessive force. The defendants moved for summary judgment, and, relevant here, Boisvert sought qualified immunity from the lawsuit. In ruling on whether Officer Boisvert was entitled to quali- fied immunity on the excessive force claim, the district court noted that the incident had begun for Officer Boisvert when he entered a dark restaurant moments after being told by Odom’s aunt, Ken- nedy, that Odom had physically assaulted her and had been acting aggressively toward his other aunt, Benton. Thus, the court ex- plained, “a reasonable officer in Boisvert’s position would have per- ceived immediate danger to” Benton when Odom broke free of his brother’s grasp and rushed toward her, barreling through tables and chairs to reach her. The court added that this situation was not one in which our Court has found the use of a taser to be unrea- sonable, like when a suspect is “non-hostile and non-violent.” And, the court pointed out, Odom had not provided any evidence of any injuries, other than his declaration that he “was in very bad pain.” On this record, the court concluded that a single use of a taser in this “rapidly evolving situation where Odom aggressively charged a third party” was not excessive use of force. The district court granted summary judgment to Boisvert on qualified immunity USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 5 of 12

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grounds, and then disposed of the remaining claims against the de- fendants. Odom timely appealed, but only as to the excessive force claim against Officer Boisvert. II. We review de novo a district court’s grant of summary judg- ment based on qualified immunity. Johnson v. City of Miami Beach, 18 F.4th 1267, 1271 (11th Cir. 2021). Summary judgment is appro- priate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a mat- ter of law.” Fed. R. Civ. P. 56(a). At the summary-judgment stage, we view all evidence in the light most favorable to the nonmovant and draw all reasonable inferences in their favor, Johnson, 18 F.4th at 1271–72, except where video evidence “obviously contradicts [the nonmovant’s] version of the facts,” in which case “we accept the video’s depiction instead of [the nonmovant’s] account,” Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (quoting Pour- moghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010)). Qualified immunity “shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Crocker v. Beatty, 995 F.3d 1232, 1239 (11th Cir. 2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). In seeking quali- fied immunity, the defendant-officer first must prove that he was “acting within his discretionary authority.” Piazza v. Jefferson County, 923 F.3d 947, 951 (11th Cir. 2019) (quoting Skop v. City of USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 6 of 12

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Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007)). If he makes this showing, the burden shifts to the plaintiff to prove that “(1) the of- ficer violated a constitutional right and (2) the right was clearly es- tablished at the time of the alleged violation.” Id. “We may con- sider these two prongs in either order; an official is entitled to qual- ified immunity if the plaintiff fails to establish either.” Id. A. “[T]o pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen with[in] his legitimate job description.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004) (emphasis omitted). In other words, we ask “whether the act complained of, if done for a proper purpose, would be within, or reasonably re- lated to, the outer perimeter of an official’s discretionary duties.” Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (quo- tations omitted). In the district court, Officer Boisvert demonstrated that he had acted well within his discretionary authority throughout the time he was at Odom’s restaurant responding to the 911 call. And Odom never disputed that Boisvert had been performing a discre- tionary function; rather, as the district court noted, Odom “disre- gard[ed] this step of the analysis altogether.” On appeal, Odom says that he did dispute that Boisvert was performing a discretion- ary function in his Memorandum in Opposition to Summary Judg- ment, when he argued that Boisvert was not “protect[ing] innocent USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 7 of 12

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civilians,” as the Motion for Summary Judgment had claimed. But this has nothing to do with whether Boisvert was performing a dis- cretionary function: for this analysis, we look at the officer’s actions regardless of any alleged improper purpose. See id. Odom thus has waived any argument that Boisvert was not performing a discre- tionary function. Hunter v. Leeds, 941 F.3d 1265, 1278 n.16 (11th Cir. 2019) (refusing to consider a plaintiff’s argument that the de- fendant-officer was not performing a discretionary function on ap- peal when the plaintiff did not contest the point in district court). In any event, even if Odom had raised the issue, it would have been futile: our case law and common sense tell us that re- sponding to a 911 call, apprehending a suspect, and making an ar- rest, as Boisvert did, are at the heart of a police officer’s duties. See id. (“The pursuit and apprehension of suspected criminals is a core discretionary function of the police.”); Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (finding that “making an arrest is within the official responsibilities of [an officer],” and so the defend- ant-officer “was performing a discretionary function when he ar- rested [the plaintiff]”). B. The burden therefore shifts to Odom to show that Officer Boisvert violated his constitutional right and that this right was clearly established at the time of the alleged violation. As we’ll ex- plain, Odom has not shown that Boisvert violated any of his con- stitutional rights, so we need not consider the clearly established prong of the analysis. USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 8 of 12

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Odom’s claim is straightforward -- he says that Officer Bois- vert violated his Fourth Amendment right to be free from excessive force when Boisvert tased him in the back. “The Fourth Amend- ment’s freedom from unreasonable searches and seizures encom- passes the plain right to be free from the use of excessive force in the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 394–95 (1989)). Making an arrest necessarily involves “some degree of physical co- ercion or threat thereof”; the Fourth Amendment simply requires that the force used to effect an arrest be reasonable. Brown v. City of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010) (quoting Lee, 284 F.3d at 1197). Determining “whether the force is reasonable de- pends on ‘a careful balancing of the nature and quality of the intru- sion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’” Id. at 737–38 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)). Reasonableness is an objective test: “the question is whether the officer[’s] actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their un- derlying intent or motivation.” Graham, 490 U.S. at 397. We assess reasonableness “from the perspective of a reasonable officer on the scene,” bearing in mind that “police officers are often forced to make split-second judgments -- in circumstances that are tense, un- certain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.” Id. at 396–97. USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 9 of 12

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Further, the reasonableness of a use of force “depends on the ‘facts and circumstances of each particular case.’” Helm v. Rainbow City, 989 F.3d 1265, 1273 (11th Cir. 2021) (quoting Graham, 490 U.S. at 396). These include: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; (3) whether he is actively resisting arrest or at- tempting to evade arrest by flight; (4) the need for application of force; (5) the relationship between the need and amount of force used; and (6) the extent of the injury inflicted by the arresting of- ficer. Id. In this case, there is no genuine dispute of material fact about whether Boisvert’s single use of the taser was reasonable. In- deed, based on all the circumstances surrounding the incident at Odom’s restaurant, Boisvert reasonably feared that Odom posed an immediate threat to third parties and applied a relatively small amount of force (which led to no lasting injury) in order to prevent any violence from occurring. As the undisputed record reflects, Officer Boisvert arrived on the scene after being dispatched in response to a 911 call. Upon his arrival, the caller, Kennedy, told him that Odom had punched her and that he was “on a rampage.” When the officers entered the restaurant, Odom yelled “get the fuck outta here,” and Boisvert saw Odom break free from another man’s grasp and start running, pushing furniture out of his way as he went, toward a group of people that included Benton. The situation was chaotic: the res- taurant was dark, people were screaming, and Odom was yelling USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 10 of 12

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and running toward a group of people, including someone he had allegedly been aggressive toward earlier. A reasonable officer could have believed that Odom was a threat to those people, espe- cially given the aggressive nature of his yelling and the fact that he had wrenched himself free of his brother’s restraint to run toward them. Boisvert fired his taser once, seconds after the chaos began. Though Odom was in pain from the taser prongs, he has not claimed lasting injury and did not receive any hospital treatment. The reasonableness of Officer Boisvert’s conduct in these circumstances is well supported by our case law. In Draper v. Reyn- olds, 369 F.3d 1270 (11th Cir. 2004), for example, we upheld the grant of qualified immunity to an officer on an excessive force claim where the officer had fired a taser during a traffic stop. Before the officer deployed the taser, the suspect had refused to comply with commands, “used profanity, moved around and paced in agi- tation, and repeatedly yelled at [the officer].” Id. at 1278. We ex- plained that the officer’s single “use of the taser gun to effectuate the arrest of [the suspect] was reasonably proportionate to the dif- ficult, tense and uncertain situation that [the officer] faced,” espe- cially since it “may well have prevented a physical struggle and se- rious harm to either [the suspect] or [the officer].” Id. Here, Odom was acting more combatively than the suspect in Draper -- who was being merely “hostile, belligerent, and unco- operative,” id. -- by yelling and running toward someone with whom he had just had a dispute, despite someone else trying to hold him back. Officer Boisvert thus faced a far more volatile USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 11 of 12

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situation, and a threat far more immediate, than any threat faced by the officer in Draper. Yet the amount of force used was the same: the single use of a taser, causing no serious injury. Under the cir- cumstances, there can be no dispute that Boisvert’s reaction was reasonable. Odom argues to us that the district court failed to view the evidence in the light most favorable to him when analyzing the fac- tors. In particular, Odom says that the court’s finding that he did not suffer serious harm is contrary to the record, which shows that he was hospitalized after being tased. But the undisputed record reflects that Odom was taken to hospital at his request, not that he was “hospitalized” -- in fact, according to the evidence, he refused treatment at the hospital. The record shows, at most, that Odom suffered “very bad pain” from being tased. And as we said in Draper, “[a]lthough being struck by a taser gun is an unpleasant ex- perience,” an officer’s single use of a taser “causing a one-time shocking” that “may well have prevented a physical struggle and serious harm” to someone at the scene is “reasonably proportion- ate to the need for force and did not inflict any serious injury.” Id. Odom also argues that the evidence taken in the light most favorable to him does not support the district court’s finding that he presented a threat to a third party. But his interpretation of the record is not supported by the applicable case law. While the sum- mary judgment standard requires that the evidence be taken in the light most favorable to him, we will not do so where his character- ization of the events is squarely contradicted by the video evidence. USCA11 Case: 23-11226 Document: 27-1 Date Filed: 08/05/2024 Page: 12 of 12

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See Shaw, 884 F.3d at 1098. Here, the BWC footage unambiguously shows Kennedy telling the officers that Odom punched her, and unambiguously shows Odom struggling and breaking free from a man’s grasp and rushing toward a group of people, pushing furni- ture out of the way to get there. It also reveals that Odom distinctly yelled “get the fuck outta here” when the officers and his aunts walked in -- an outburst he has not denied. Under our case law, the district court properly considered that footage when deciding the motion for summary judgment, and, moreover, after considering the circumstances as a whole, properly determined that a reasona- ble officer could have believed that Odom presented a threat to a third party at the time Officer Boisvert deployed the taser on him. In short, Odom has not shown that Boisvert violated his con- stitutional right to be free from excessive force when the officer discharged his taser a single time to prevent what he reasonably perceived to be a volatile situation from turning violent. Accord- ingly, the district court did not err in granting Boisvert’s motion for summary judgment on qualified immunity grounds, and we affirm. AFFIRMED.