Curtis Baker v. City of Madison, Alabama ( 2023 )

USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 1 of 27
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10732
____________________
CURTIS BAKER,
Plaintiff-Appellant,
versus
CITY OF MADISON, ALABAMA,
DANIEL NUNEZ,
DION HOSE,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:21-cv-00382-LCB
____________________
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 2 of 27
2 Opinion of the Court 22-10732
Before JILL PRYOR, GRANT, and HULL, Circuit Judges.
HULL, Circuit Judge:
In this 42 U.S.C. § 1983 action, plaintiff Curtis Baker alleged
(1) Officer Daniel Nunez used excessive force when Officer Nunez
tased him at the scene of an automobile wreck, (2) Officer Dion
Hose failed to intervene to prevent Officer Nunez’s excessive force,
and (3) the City of Madison, Alabama admitted the officers’ actions
were the result of its municipal policy.
Relying on body camera footage, defendants Officer Nunez,
Officer Hose, and the City moved to dismiss. The district court
considered the body camera footage and granted their motions to
dismiss.
On appeal, Baker argues the district court erred by
(1) considering the officers’ body camera footage when ruling on
the defendants’ motions to dismiss without converting them into
summary judgment motions, (2) granting qualified immunity to
Officer Nunez, (3) dismissing Baker’s failure-to-intervene claim
against Officer Hose, and (4) dismissing his municipal liability claim
against the City.
After careful review of the record and the briefs, and with
the benefit of oral argument, we conclude that the district court
properly considered the body camera footage, correctly ruled that
Officer Nunez did not violate a constitutional right and thus Officer
Hose had no duty to intervene, and accurately determined that
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 3 of 27
22-10732 Opinion of the Court 3
Baker’s claim against the City failed as a matter of law. Therefore,
we affirm the dismissal of Baker’s complaint.
I. BACKGROUND
A. Allegations in the Complaint
In his pro se complaint, Baker alleged the following. Baker
has epilepsy and sometimes has seizures. Consequently,
emergency medical personnel in the City know him and know
about his condition.
On March 16, 2019, Baker and his friend were in a car
together when they got in a “minor accident.” Paramedics arrived
on the scene after the accident happened. By the time paramedics
arrived, Baker was having a seizure.
Officers Nunez and Hose arrived shortly thereafter. Baker
was still having a seizure. Paramedics and Baker’s friend told the
police “over and over again” that Baker had suffered a seizure and
that he was still in the throes of that seizure. Officers Nunez and
Hose “told Baker to get on a gurney and go to the hospital.” Baker
declined and asked to speak to his mother.
Baker’s friend advised Officers Nunez and Hose that Baker’s
seizure would likely pass in a few moments and Baker could not
fully understand the police. Paramedics also told Officers Nunez
and Hose that Baker could not fully understand the police.
Nonetheless, Officer Nunez tased Baker “multiple times” while
attempting “to make Baker get on the gurney to go to the hospital.”
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 4 of 27
4 Opinion of the Court 22-10732
Baker alleged that he (1) was not combative with the police,
(2) simply did not get on the gurney, (3) was not in danger from
traffic, and (4) was not endangering anyone.
Later, Baker asked the City to investigate and reprimand the
officers. In response, Baker received a letter from the City, advising
him that the officers’ actions were consistent with municipal
policy.
B. Body Camera Footage
As the district court emphasized, the body camera footage
from Officers Nunez and Hose tells a different story. Importantly,
the footage contains both audio and video, is clear and easy to
follow, and shows all the relevant conduct. Here is what the
footage shows.
Around noon, Officer Nunez arrived on the scene after
Baker, while driving, had rear-ended the vehicle in front of him. As
Officer Nunez approached Baker’s vehicle, (1) a person who had
been in Baker’s car was on the phone with an unidentified person
and said he “d[id]n’t know if [Baker] had a seizure or what, but he
crossed the lane of traffic and rear-ended somebody”; (2) a
paramedic was attending to Baker, who was still in the driver’s seat
of his vehicle; and (3) other paramedics were bringing a stretcher
over to the driver’s side of Baker’s vehicle.
Officer Nunez walked to the back of Baker’s vehicle and
wrote down the license plate number.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 5 of 27
22-10732 Opinion of the Court 5
While Officer Nunez remained at the back of Baker’s
vehicle, the paramedics were able to get Baker out of his vehicle.
Over the next minute, a paramedic repeatedly asked—at least
thirteen times—for Baker to sit down on the stretcher. Baker
remained standing outside his vehicle and would not sit down on
the stretcher.
That paramedic also asked Baker to produce his driver’s
license. Baker did not respond to this request, prompting the
paramedic to explain to Baker that if he could not respond to
questions, he would have to be taken to the hospital.
Officer Nunez approached and said, “Hey, Curtis man.
Have a seat, man.” When Baker tried to push past a paramedic
who was blocking the driver’s side door of Baker’s vehicle, Officer
Nunez moved the stretcher aside to get closer to Baker. Officer
Nunez told Baker to “relax” and explained that the paramedics
were trying to help Baker.
For the next two minutes, Officer Nunez asked Baker to sit
on the stretcher at least ten times, and the paramedics asked Baker
to do the same at least nine more times. Baker continued to stand
outside his vehicle and did not sit down on the stretcher that was
next to the vehicle.
During this interaction, both Officer Nunez and a paramedic
asked Baker to produce his driver’s license. Baker put his hands in
his pockets, but instead of a driver’s license, Baker pulled out a
lighter and tried to smoke a broken cigarette butt. Officer Nunez
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 6 of 27
6 Opinion of the Court 22-10732
told Baker he could smoke a cigarette after he had a seat on the
stretcher.
While Baker fiddled with the broken cigarette, Officer
Nunez asked one of the paramedics if Baker was going to the
hospital. The paramedic told Officer Nunez that there was
“something definitely wrong with [Baker],” and the paramedic
wondered if Baker was (1) under the influence, (2) a diabetic, or
(3) having a seizure. The paramedic added that he “highly
doubt[ed]” it was a seizure. The paramedic also stated that they
would check his blood sugar now.
Because Baker had ignored repeated requests to sit on the
stretcher, the paramedics then asked Baker to lean against a
concrete barrier on the road or his vehicle. Baker got closer to his
vehicle but did not lean against it. Baker asked, “what’s the
problem?” Officer Nunez responded that Baker had just been in an
accident, and the paramedics were trying to make sure Baker was
okay.
One of the paramedics prepared the device to check Baker’s
blood sugar and then said to Baker, “let me borrow your finger for
just a second.” Baker immediately turned away from that
paramedic.
Officer Nunez grabbed Baker’s arm and turned Baker back
around to face him. Baker replied, “get off me, man.” Baker then
said, “where my phone at” and dug through his pockets with both
hands, looking for his phone.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 7 of 27
22-10732 Opinion of the Court 7
Over the next two minutes, Baker tried to get back into his
vehicle, despite just having had the rear-end automobile accident
and despite the paramedics telling him to sit on the stretcher.
Baker first headed toward the open driver’s door of the
vehicle. Officer Nunez put his arm out to block Baker. Officer
Nunez told Baker (1) to let the paramedics check him out first and
(2) Officer Nunez would “call [Baker’s] phone afterwards.”
Baker again headed toward the open driver’s door of his
vehicle to get in the vehicle. Officer Nunez again grabbed Baker’s
arm, telling him “no.” Baker pulled his arm away and said he was
trying to “get in [his] motherfucking car” and told Officer Nunez
to “move.”
Officer Nunez tried to stop Baker from getting back in his
vehicle, grabbing his arm. But Baker, becoming more agitated,
broke free again and told Officer Nunez to “chill” and “get the fuck
off [him].” Baker moved toward Officer Nunez, stating that Officer
Nunez would “be in jail somewhere for fucking with [him].”
At this time, Officer Nunez backed away, drew his taser, and
pointed it at Baker (but Officer Nunez did not fire it). Officer
Nunez told Baker to “chill” and to “step back.” Officer Nunez held
his left hand out toward Baker, who pushed it away. Officer Nunez
reported on his radio that “the suspect was being combative.”
Next, Baker (1) turned away from Officer Nunez, (2) walked
again toward the open driver’s door, (3) pushed past one
paramedic who tried to stop him, and (4) sat down sideways in the
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 8 of 27
8 Opinion of the Court 22-10732
driver’s seat with his feet still on the road. Officer Nunez put his
taser back in the holster, grabbed Baker’s left arm, and attempted
to remove Baker from the vehicle by pulling on Baker’s left arm.
Baker called Officer Nunez a “bitch” and resisted being removed
from the vehicle. As Baker came out of the vehicle, he reached for
Officer Nunez and moved toward him. 1
Officer Nunez then stepped back, drew his taser again, and
fired the taser, hitting Baker in the stomach. Officer Nunez’s body
camera footage shows that from approximately 12:06:36 to
12:06:48, Baker (1) fought the taser’s charge, (2) moved back
toward the driver’s seat of his vehicle, (3) pulled off his sweatshirt,
and (4) told Officer Nunez to “chill out.”
Officer Nunez removed his taser’s cartridge, loaded a new
one, and again pointed the taser at Baker. When Officer Nunez
threatened to deploy the taser again, Baker said, “Damn, that shit
hurt my boy.”
After firing his taser the one time, Officer Nunez told Baker
at least sixteen times to turn around. Baker repeatedly did not turn
around, continued to resist Officer Nunez’s commands, and once
again tried to get in his vehicle.
1 The defendants characterize this action as a shove.It may have been a shove,
but Officer Nunez’s body camera footage does not clearly depict that. As
explained more thoroughly below, see infra Section III.C, we construe all
ambiguities in the footage in favor of Baker at the motion-to-dismiss stage.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 9 of 27
22-10732 Opinion of the Court 9
More than two minutes after Officer Nunez had tased Baker,
Officer Hose arrived on the scene. When Officer Hose approached
Baker, Baker said, “Hey, Mr. Officer. Can y’all get this man? He
just shot me in my stomach.”
Officer Hose engaged Baker (who was still resisting Officer
Nunez) and, with help from a third officer, subdued Baker and
placed him in handcuffs.
At several points, Baker asked the officers to call his mother.
Eventually, Baker’s mother came to the scene. After extended
discussion and the writing of reports, the officers allowed Baker to
leave the scene with his mother.
C. Procedural History
In March 2021, Baker filed his pro se § 1983 complaint. Baker
sued (1) Officer Nunez for excessive force in violation of the Fourth
and Fourteenth Amendments, (2) Officer Hose for failure to
intervene in Officer Nunez’s allegedly unconstitutional use of
force, and (3) the City for municipal liability because the officers’
acts were the result of the City’s unconstitutional policy.
Baker’s complaint referenced a “video recording” of the
incident several times, stating that “[u]pon information and belief,
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 10 of 27
10 Opinion of the Court 22-10732
it is averred that the video recording is a display of what
happened.” 2
The defendants each moved to dismiss under Federal Rule
of Civil Procedure 12(b)(6). In addition, Officer Hose filed the
video footage from the body cameras of Officers Nunez and Hose.
Baker, now represented by counsel, responded to the motions to
dismiss.
On February 2, 2022, the district court held a telephonic
hearing on the motions to dismiss. During the hearing, Baker’s
counsel argued that the defendants’ motions to dismiss did not
really raise an “Iqbal or Twombly issue” because they relied on the
body camera footage, which was “outside the record.” Baker’s
counsel argued that under the circumstances, the district court
should allow Baker “very limited discovery” so he could “put[] that
video evidence in context.”
On February 8, 2022, the district court granted the
defendants’ motions to dismiss for failure to state a claim and
dismissed Baker’s claims with prejudice. In doing so, the district
court considered the body camera footage, which it concluded told
2 The pro se complaint also alleged that the defendants refused to provide
Baker with the video. However, later when Officer Hose filed the footage
with the district court, he provided notice that he would serve the footage on
Baker via United States Postal Service Priority Mail. According to the tracking
information, Baker received the thumb drive containing the footage at 2:06
p.m. on April 20, 2021. On appeal, Baker does not dispute that he received the
footage from the defendants.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 11 of 27
22-10732 Opinion of the Court 11
“a different story” from the allegations in Baker’s complaint.
Relying on McDowell v. Gonzalez, 820 F. App’x 989 (11th Cir.
2020) (unpublished), the district court concluded it was proper to
consider the body camera footage because it met the requirements
of the incorporation-by-reference doctrine.
The district court dismissed Baker’s failure-to-intervene
claim against Officer Hose because the footage showed Officer
Hose did not arrive on the scene until two minutes after Officer
Nunez tased Baker.
The district court dismissed the municipal liability claim
against the City because Baker had not responded to the City’s
argument that the claim failed to satisfy the pleading standards of
Federal Rule of Civil Procedure 8(a) and thus Baker had abandoned
the claim. Alternatively, the district court concluded Baker, who
“alleged only a single instance of officer conduct to support his
claim,” had failed to plausibly plead either an actionable policy or
custom or prior ratification by the City’s policymakers.
The district court dismissed Baker’s excessive force claim
against Officer Nunez, concluding that Officer Nunez was entitled
to qualified immunity. To begin with, the district court
determined that Baker had not shown Officer Nunez’s use of force
violated a clearly established right. Alternatively, the district court
concluded that the body camera footage established that Officer
Nunez’s use of force was reasonable given the circumstances he
faced, including Baker’s “aggressive and non-compliant behavior”
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 12 of 27
12 Opinion of the Court 22-10732
and active resistance to Officer Nunez’s “efforts to prevent him
from getting in his car.”
Baker timely appealed.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim. McGroarty v. Swearingen, 977 F.3d 1302, 1306
(11th Cir. 2020). We also review de novo a district court’s decision
to grant the defense of qualified immunity on a motion to dismiss.
Davis v. Carter, 555 F.3d 979, 981 (11th Cir. 2009).
We “may affirm on any basis in the record, regardless of
whether the [d]istrict [c]ourt actually relied upon that basis in
dismissing the plaintiff’s claim.” Henley v. Payne, 945 F.3d 1320,
1333 (11th Cir. 2019).
III. CONSIDERATION OF BODY CAMERA FOOTAGE AT
THE MOTION-TO-DISMISS STAGE
On appeal, Baker argues as a threshold matter that the
district court improperly considered the officers’ body camera
footage without first converting the defendants’ motions to dismiss
into summary judgment motions and permitting Baker to conduct
limited discovery. We address that threshold issue first.
A. General Principles
Generally, when considering a motion to dismiss, the
district court must limit its consideration to the pleadings and any
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 13 of 27
22-10732 Opinion of the Court 13
exhibits attached to it. Grossman v. Nationsbank, N.A., 225 F.3d
1228, 1231 (11th Cir. 2000). If the parties present, and the court
considers, evidence outside the pleadings, the motion to dismiss
generally must be converted into a motion for summary judgment.
Fed. R. Civ. P. 12(d); Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.
1984).
There are two exceptions to this conversion rule: (1) the
incorporation-by-reference doctrine and (2) judicial notice.
Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322,
127 S. Ct. 2499, 2509 (2007) (“[C]ourts must consider the complaint
in its entirety, as well as other sources courts ordinarily examine
when ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.”). Both
exceptions permit district courts to consider materials outside a
complaint at the motion-to-dismiss stage. Because only the
incorporation-by-reference doctrine is at issue here, we need not
address judicial notice.
Under the incorporation-by-reference doctrine, a court may
consider evidence attached to a motion to dismiss without
converting the motion into one for summary judgment if (1) “the
plaintiff refers to certain documents in the complaint,” (2) those
documents are “central to the plaintiff’s claim,” and (3) the
documents’ contents are undisputed. Horsley v. Feldt, 304 F.3d
1125, 1134 (11th Cir. 2002); Brooks v. Blue Cross & Blue Shield of
Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Evidence is
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 14 of 27
14 Opinion of the Court 22-10732
“undisputed” in this context if its authenticity is unchallenged.
Horsley, 304 F.3d at 1134.
Traditionally, we have applied the incorporation-by-
reference doctrine to various types of documentary evidence. See,
e.g., Hi-Tech Pharm., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189
(11th Cir. 2018) (marketing label); Maxcess, Inc. v. Lucent Techs.,
Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (purchase agreement);
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225–26 (11th Cir. 2002)
(book); Horsley, 304 F.3d at 1134–35 (news article). The question
in this case is whether the incorporation-by-reference doctrine also
applies to the body camera footage.
B. Application of the Incorporation-by-Reference Doctrine
Here, the requirements of the incorporation-by-reference
doctrine are easily satisfied. First, Baker referenced the body
camera footage in his complaint several times. At one point, the
complaint even alleged that “[u]pon information and belief, it is
averred that the video recording is a display of what happened.”
Further, the body camera footage was filed concurrently with
Officer Hose’s motion to dismiss. See Day v. Taylor, 400 F.3d 1272,
1276 (11th Cir. 2005) (explaining that “a document need not be
physically attached”).
Second, the body camera footage depicts the events that are
central to Baker’s claims. The footage shows all the relevant
conduct and is particularly clear here because (1) the incident took
place in broad daylight, so the area depicted in the footage is
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 15 of 27
22-10732 Opinion of the Court 15
well-lit, (2) the footage presents both visual and audio depictions of
the events that transpired, and (3) for the most part, the viewer has
a good angle of the events with no visual obstructions.
Third, the body camera footage is undisputed because Baker
does not challenge the authenticity of the footage. See Horsley,
304 F.3d at 1134. There are no allegations or indications that the
footage has been altered in any way, nor any contention that what
the footage depicts differs from what actually happened.
Because the requirements of the incorporation-by-reference
doctrine are met, the district court properly considered the body
camera footage from Officers Hose and Nunez when ruling on the
motions to dismiss.
C. Evaluating the Contents of Body Camera Footage
Before proceeding to the merits of Baker’s claims, we
address Baker’s other objection to the consideration of the footage
at the motion-to-dismiss stage. Baker argues that the footage is
subjective and open to interpretation. 3
We agree that, at times, videos do not paint the entire
picture and may contain ambiguities that are subject to
3 Significantly, this argument does not pertain to whether the district court
properly incorporated by reference the body camera footage into the
complaint because with the incorporation-by-reference doctrine,
“undisputed” means that the authenticity is not challenged, Horsley, 304 F.3d
at 1134, not that the incorporated evidence is free from any disagreement over
the meaning of its content.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 16 of 27
16 Opinion of the Court 22-10732
interpretation. There can be many reasons for that. Perhaps the
video was shot from a bad angle, and thus the viewer cannot see
all of the events as they unfold. Or perhaps the video contains a
visual representation of what happened but does not contain
crucial audio. When that is true, courts must construe all
ambiguities in the video footage in favor of the plaintiff, as they
must, at this stage, construe all ambiguities in the written pleadings
in the plaintiff’s favor. See Speaker v. U.S. Dep’t of Health & Hum.
Servs., 623 F.3d 1371, 1379 (11th Cir. 2010).
But where a video is clear and obviously contradicts the
plaintiff’s alleged facts, we accept the video’s depiction instead of
the complaint’s account, see Pourmoghani-Esfahani v. Gee, 625
F.3d 1313, 1315 (11th Cir. 2021), and view the facts in the light
depicted by the video, see Scott v. Harris, 550 U.S. 372, 381,
127 S. Ct. 1769, 1776 (2007). After all, courts are not required to
rely on “visible fiction.” Scott, 550 U.S. at 380–81, 127 S. Ct. at 1776.
In sum, while reviewing the district court’s ruling on the
defendants’ motions to dismiss, we have credited, as we must,
Baker’s factual allegations where no obviously contradictory video
evidence is available. But the footage plainly contradicts Baker’s
alleged version of events, leading us to view most of the facts as
depicted by the video. Cf. Pourmoghani-Esfahani, 625 F.3d at 1315
(explaining that a video may not “obviously contradict[]” a
plaintiff’s version of the facts because the video “fails to convey
spoken words or tone” or “fails to provide an unobstructed view of
the events”). That said, we turn to qualified immunity generally
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 17 of 27
22-10732 Opinion of the Court 17
and then specifically to whether Officer Nunez violated Baker’s
constitutional rights.
IV. QUALIFIED IMMUNITY
Under the doctrine of qualified immunity, “government
officials performing discretionary functions generally are shielded
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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).
Qualified 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).
When a government official raises the “defense of qualified
immunity, we first consider whether the defendant government
official has proved that he was acting within the scope of his
discretionary authority when the alleged wrongful act occurred.”
Gonzalez v. Lee Cnty. Hous. Auth., 161 F.3d 1290, 1294–95 (11th
Cir. 1998) (alteration and quotation marks omitted). “Once the
defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified
immunity is not appropriate.” Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002).
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 18 of 27
18 Opinion of the Court 22-10732
“To overcome a qualified immunity defense, the plaintiff
must make two showings.” Christmas v. Harris Cnty., 51 F.4th
1348, 1354 (11th Cir. 2022) (quotation marks omitted). “First, the
plaintiff must establish that the defendant violated a constitutional
right.” Id. (emphasis and quotation marks omitted). “Second, the
plaintiff must show that the violation was clearly established.” Id.(emphasis and quotation marks omitted). “Both elements must be
satisfied for an official to lose qualified immunity.” Grider v. City
of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010). We may analyze
these two elements in whatever order is most appropriate for the
case. Pearson, 555 U.S. at 236, 129 S. Ct. at 818.
V. OFFICER NUNEZ’S USE OF FORCE
Baker claims Officer Nunez used excessive force against him
when Officer Nunez tased him in violation of the Fourth
Amendment. Because no one disputes that Officer Nunez was
acting within the scope of his discretionary authority when he tased
Baker, we first outline the applicable Fourth Amendment
principles and then address whether Baker’s complaint and the
incorporated body camera footage established a constitutional
violation.
A. Fourth Amendment Principles
The Fourth Amendment provides a “right of the people to
be secure in their persons . . . against unreasonable . . . seizures.”
U.S. Const. amend. IV. The Fourth Amendment’s freedom from
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 19 of 27
22-10732 Opinion of the Court 19
unreasonable seizures includes the right to be free from excessive
force. Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009).
In excessive force cases, the first qualified immunity
inquiry—i.e., whether a plaintiff’s constitutional rights were
violated—is governed by the Fourth Amendment’s objective
reasonableness standard. Hadley v. Gutierrez, 526 F.3d 1324, 1329
(11th Cir. 2008). “Under that standard, we judge the officer’s use
of force ‘on a case-by-case basis from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.’” Johnson v. City of Miami Beach, 18 F.4th 1267, 1272
(11th Cir. 2021) (quoting Brown v. City of Huntsville, 608 F.3d 724,
738 (11th Cir. 2010)).
To determine whether the force was objectively reasonable,
courts examine the totality of the circumstances, “including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether [the suspect] is actively resisting arrest or attempting to
evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396,
109 S. Ct. 1865, 1872 (1989). Other considerations are the need for
the application of force, the relationship between the need and the
amount of force used, the extent of the injury inflicted,
and whether the force was applied in good faith or maliciously and
sadistically. Hadley, 526 F.3d at 1329.
“The calculus of reasonableness 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
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 20 of 27
20 Opinion of the Court 22-10732
evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396–97, 109 S. Ct. at
1872.
Ultimately, “[a]n officer’s use of force is excessive under the
Fourth Amendment if the use of force was objectively
unreasonable in light of the facts and circumstances confronting
the officer.” Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir.
2011) (alteration adopted) (quotation marks omitted).
B. No Constitutional Violation by Officer Nunez
The body camera footage shows that as Officer Nunez was
investigating the automobile accident (1) Baker repeatedly ignored
instructions from Officer Nunez and the paramedics to sit down on
the stretcher, (2) Baker failed to provide Officer Nunez with his
driver’s license when requested, instead attempting to smoke a
broken cigarette, (3) Baker ignored an instruction from one of the
paramedics to lean against a concrete barrier on the road or against
his vehicle, (4) Baker cursed at Officer Nunez, (5) Baker broke free
from Officer Nunez’s grip, and (6) Baker got back into the driver’s
seat of his vehicle despite Officer Nunez’s commands not to do so.
The circumstances confronting Officer Nunez thus included
that Baker had just rear-ended someone, was not following the
paramedics’ or Officer Nunez’s commands, and instead attempted
three times to go back to his vehicle, even successfully reentering
it once. Under these circumstances, a reasonable officer on the
scene would perceive that Baker, at best, was not safe to drive his
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 21 of 27
22-10732 Opinion of the Court 21
vehicle, or, at worst, might try to flee using his vehicle (which itself
could be used as a deadly weapon), thereby endangering Officer
Nunez, the paramedics, and nearby motorists because of Baker’s
apparent state of disorientation.
The body camera footage further shows that Officer Nunez
tried to remove Baker from the car verbally and physically. But
when faced with Baker’s physical resistance, Officer Nunez used
his taser (a nondeadly use of force) once in dart-mode to try to
obtain Baker’s compliance. 4
“Although being struck by a taser gun is an unpleasant
experience, the amount of force [Officer Nunez] used—a single use
of the taser gun causing a one-time shocking—was reasonably
proportionate to the need for force and did not inflict any serious
injury.” See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.
2004). Indeed, the body camera footage shows that Baker was not
incapacitated by the taser: Baker fought the taser’s charge, moved
toward the driver’s seat of his vehicle again, pulled off his
sweatshirt, and told Officer Nunez to “chill out.” “The single use
4 In dart-mode, the taser:
uses compressed nitrogen to propel a pair of “probes”—
aluminum darts tipped with stainless steel barbs connected to
the [taser] by insulated wires—toward the target at a rate of
over 160 feet per second. Upon striking a person, the [taser]
delivers a 1200 volt, low ampere electrical charge through the
wires and probes and into [the person’s] muscles.
Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010) (footnote omitted).
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 22 of 27
22 Opinion of the Court 22-10732
of the taser gun may well have prevented a physical struggle and
serious harm to either” Baker or Officer Nunez. See id.; see also
Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (“[W]here a
suspect appears hostile, belligerent, and uncooperative, use of a
taser might be preferable to a physical struggle causing serious
harm to the suspect or officer.” (quotation marks omitted)).
Baker argues Helm v. Rainbow City, 989 F.3d 1265 (11th Cir.
2021), controls the outcome here. We disagree. The Helm facts
are easily and materially distinguishable from our facts. In Helm,
a seventeen-year-old girl, who was suffering a grand mal seizure,
was tased three times while four or five officers held her down. 989
F.3d at 1269–70 & n.1. The girl was not resisting or combative, and
the officers did not dispute that the teenage girl presented no threat
to them and committed no crime. Id. at 1270, 1274. Unlike the
teenage girl in Helm, Baker was unrestrained, combative, and
noncompliant with repeated police commands when he was tased.
We believe the facts here are more like Draper v. Reynolds.
In that case, a police officer pulled over the plaintiff, who was
driving a tractor trailer truck, “because [the truck’s] tag light was
not appropriately illuminated under Georgia law.” 369 F.3d at
1272. During the ensuing traffic stop, the plaintiff “acted in a
confrontational and agitated manner, paced back and forth, and
repeatedly yelled at [the officer].” Id. at 1276–77. When the
plaintiff failed to comply with the officer’s fifth request to produce
certain documents, the officer tased him. Id. at 1273. We held that
the use of the taser “was reasonably proportionate to the difficult,
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 23 of 27
22-10732 Opinion of the Court 23
tense[,] and uncertain situation that [the officer] faced in this traffic
stop[] and did not constitute excessive force.” Id. at 1278.
In light of our holding in Draper, Officer Nunez’s use of the
taser was justified because of (1) Baker’s repeated failure to comply
with Officer Nunez’s commands, (2) Baker’s unsafe driving that
had just caused an automobile accident, (3) Baker’s repeated efforts
to get back in the vehicle, (4) Baker’s physical resistance to Officer
Nunez’s attempts to remove him from the vehicle, and (5) the
tense, uncertain, and rapidly evolving series of events. What
started as a routine incident response escalated. Officer Nunez
“was not required to wait and hope for the best” before making the
split-second decision to tase Baker. Jean-Baptiste v. Gutierrez, 627
F.3d 816, 821 (11th Cir. 2010) (alteration adopted) (quotation marks
omitted).
Based on the totality of the circumstances, we conclude that
Officer Nunez’s single use of a taser in dart-mode was objectively
reasonable and did not constitute excessive force. See, e.g.,
Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008) (“[I]n
a difficult, tense[,] and uncertain situation[,] the use of a taser gun
to subdue a suspect who has repeatedly ignored police instructions
and continues to act belligerently toward police is not excessive
force.” (quotation marks omitted)).
Because we conclude Officer Nunez did not violate a
constitutional right, we need not reach the other qualified
immunity question. Accordingly, we affirm the district court’s
grant of qualified immunity to Officer Nunez.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 24 of 27
24 Opinion of the Court 22-10732
VI. FAILURE TO INTERVENE
Baker sued Officer Hose for failure to intervene. “[A]n
officer can be liable for failing to intervene when another officer
uses excessive force.” Priester v. City of Riviera Beach, 208 F.3d
919, 924 (11th Cir. 2000). Specifically, “an officer who is present at
the scene and who fails to take reasonable steps to protect the
victim of another officer’s use of excessive force[] can be held liable
for his nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340,
1341 (11th Cir. 2007) (quotation marks omitted).
Baker’s failure-to-intervene claim fails for two reasons. First,
because Officer Nunez’s use of the taser did not constitute
excessive force, see supra Section V.B, Officer Hose had no
obligation to intervene. See Crenshaw v. Lister, 556 F.3d 1283,
1294 (11th Cir. 2009) (explaining that there is “no attendant
obligation to intervene” if the other officer’s force is not excessive).
Second, even assuming Officer Nunez’s use of the taser was
excessive, Officer Hose did not witness Officer Nunez’s use of the
taser and thus did not have the ability to intervene to prevent that
use of force. The body camera footage shows that Officer Hose
arrived at the scene more than two minutes after Officer Nunez
fired his taser. That alone is fatal to Baker’s claim. See Priester, 208
F.3d at 924 (explaining that liability for failure to intervene “only
arises when the officer is in a position to intervene and fails to do
so”).
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 25 of 27
22-10732 Opinion of the Court 25
For these reasons, we affirm the district court’s dismissal of
Baker’s failure-to-intervene claim against Officer Hose.
VII. MUNICIPIAL LIABLITY
Baker’s claim against the City is based on the City’s alleged
determination that Officers Nunez and Hose acted “consistent
with [m]unicipal policy.” The Supreme Court’s Monell decision
authorizes lawsuits directly against municipalities where “the
action that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035–36 (1978).
A municipality may be held liable for the actions of its law
enforcement officers only when the officers’ execution of official
policy (or custom) is the moving force of a constitutional violation.
Id. at 694, 98 S. Ct. at 2037–38. Thus, to establish municipal
liability, a plaintiff must show that (1) his constitutional rights were
violated, (2) the municipality had a policy (or custom) that
constituted deliberate indifference to that constitutional right, and
(3) the municipal policy (or custom) caused the violation.
McDowell v. Brown, 392 F.3d 1283, 1289–90 (11th Cir. 2004).
Here, because there was no underlying constitutional
violation, Baker’s municipal liability claim against the City fails as
a matter of law. See Knight ex rel. Kerr v. Miami-Dade Cnty.,
856 F.3d 795, 821 (11th Cir. 2017) (“There can be no policy-based
liability or supervisory liability when there is no underlying
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 26 of 27
26 Opinion of the Court 22-10732
constitutional violation.”); see also City of Los Angeles v. Heller,
475 U.S. 796, 799, 106 S. Ct. 1571, 1573 (1986) (“[None] of our cases
authorize[] the award of damages against a municipal corporation
based on the actions of one of its officers when in fact the jury has
concluded that the officer inflicted no constitutional harm. If a
person has suffered no constitutional injury at the hands of the
individual police officer, the fact that the departmental regulations
might have authorized the use of constitutionally excessive force is
quite beside the point.” (emphasis omitted)).
We therefore affirm the district court’s dismissal of the
municipal liability claim on this basis. 5
VIII. CONCLUSION
We conclude that the district court properly considered the
body camera footage from Officers Nunez and Hose when ruling
on the defendants’ motions to dismiss. We affirm the district
court’s grant of the defendants’ motions to dismiss.
5 We also reject Baker’s argument that he should have been allowed to amend
his complaint before the district court dismissed it with prejudice. “A district
court is not required to grant a plaintiff leave to amend his complaint sua
sponte when the plaintiff, who is represented by counsel, never filed a motion
to amend nor requested leave to amend before the district court.” Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).
Although Baker filed his complaint pro se, Baker was represented by counsel
(1) while he opposed the defendants’ motions to dismiss, (2) at the district
court’s hearing on the motions to dismiss, and (3) when the dismissal
occurred. Yet Baker’s counsel never sought to amend Baker’s complaint
before the district court.
USCA11 Case: 22-10732 Document: 48-1 Date Filed: 05/03/2023 Page: 27 of 27
22-10732 Opinion of the Court 27
AFFIRMED.