London R. Bouvier v. Officer Starr Smith, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11410
Non-Argument Calendar
____________________
LONDON R. BOUVIER,
Plaintiff-Appellee,
versus
CITY OF COVINGTON, GEORGIA, et al.,
Defendants,
OFFICER STARR SMITH,
#211 in her Official capacity & Personal capacity,
OFFICER BRANDON WILKERSON,
#205 in his Personal & Official capacities,
OFFICER SCOTT FAIRBURN,
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2 Opinion of the Court 23-11410
#228 in his Personal & Official capacities,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-04597-VMC
____________________
Before WILLIAM PRYOR , Chief Judge, and NEWSOM and ANDERSON,
Circuit Judges.
PER CURIAM:
Sergeant Starr Smith and Officers Brandon Wilkerson and
Scott Fairburn appeal the denial of their motion for judgment on
the pleadings against London Bouvier’s complaint of unlawful sei-
zure and excessive force in violation of the Fourth Amendment.
42 U.S.C. § 1983. After our review of the relevant video recordings,
we reverse the denial of qualified immunity and remand with in-
structions to dismiss the complaint against the officers.
The facts are not reasonably in dispute because the encoun-
ter between Bouvier and the officers was recorded on two
body-worn cameras, and neither party disputes the authenticity of
the videos on appeal. We accept Bouvier’s allegations as true, but
where the video clearly contradicts her allegations, we view the
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23-11410 Opinion of the Court 3
facts “in the light depicted by the videotape.” Scott v. Harris,
550 U.S. 372, 380–81 (2007).
On August 18, 2018, the officers responded to a 9-1-1 call
from Lance Taylor, a contract security guard for Piedmont Hospi-
tal Newton, regarding a disturbance in the labor-and-delivery unit.
Smith was the first to arrive. Taylor told Smith that the hospital
staff “were trying to give this girl an epidural” but that another girl,
later identified as Bouvier, “was refusing to leave the room after
she was asked numerous times by the staff. We asked her. She
wouldn’t leave.” Taylor said that the staff “finally just got the pro-
cedure done anyway,” but the doctor said that he wanted “her to
follow the rules.” Taylor also told Smith, “[I]f she’s gonna act like
that all day, . . . if she’s gonna be interfering with the staff and all
that, she’s probably gonna end up having to go.” He explained it
was up to the hospital representative to decide whether to remove
Bouvier.
Inside the hospital room, Smith asked the representative,
“Do you want her to stay or no?” The representative whispered,
“No,” and then hesitated, “I don’t know. . . . If they were able to do
the procedure, then—then I’m cool. Um, but if this continues, then
yes, she’s going to have to . . . because she’s putting the patient at
risk.” Smith relayed that the doctor was able to administer the epi-
dural and said, “[I]f you want her out, she’ll be out. I don’t want
her giving y’all a hard time all day long.”
Wilkerson and Fairburn arrived and stood outside the room
while Smith waited to speak to one of the nurses. As the nurse was
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leaving the room, she widened her eyes at the hospital representa-
tive and inhaled. When the hospital representative asked if the
nurse wanted Bouvier removed, the nurse raised her eyebrows,
made a face, and said that she only had ten minutes left on her shift
so Bouvier could “f**k off for all I care.” The representative told
Smith, “She’s okay for now.”
Smith walked into the room and said to Bouvier, “Ma’am.
Ma’am. Come here for me.” After Bouvier ignored her, Smith said,
“[Y]ou’re giving a problem. So instead of removing you—listen, lis-
ten—instead of removing you, I just need to speak with you.” Bou-
vier asked “[a]bout what?” and Smith stated, “About the whole
thing. So, so you can stay here with [your friend], put the cup down
and come talk to me.” Bouvier’s friend told Bouvier to talk to
Smith and asked Smith to promise that Bouvier could come back.
Smith said, “Yes, if she cooperates with me,” and again told Bou-
vier to come talk to her.
Outside the room, Smith asked Bouvier if she had identifica-
tion on her, and Bouvier said she did but asked, “For what?” Smith
explained that Bouvier could make this as simple or as hard as she
wanted to, and Bouvier responded, “You guys are doing too
much.” Bouvier then told her friend’s boyfriend, Mr. Young,
“They’re kicking me out of the hospital.” Smith said, “No I’m not.
If you’ll listen to me, I want your ID, and I want you to cooperate.
And then you can stay.” Bouvier said, “For what? I didn’t get
stopped by an officer.” The other officers explained, “We’re here
for you,” and, “We’re here for a reason. The law says you have to
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23-11410 Opinion of the Court 5
give us your ID.” During this exchange, Smith explained to Young
that his girlfriend wanted Bouvier to stay, but Bouvier was not co-
operating with staff or the officers. After Bouvier complained about
the hospital’s service and told the officers that they were “starting
problems,” she tried to walk past Smith to re-enter the room, but
Smith extended her arm across the doorway. Bouvier said that
Smith had committed a battery and began shouting, “My boy-
friend’s mother is an officer,” and “Don’t make me make those
calls.”
Because of the shouting, a nurse closed the door to the
room. At that point, Smith announced to Bouvier and the other
officers, “There are other people here. We’re fixin’ to get out of the
hospital.” Bouvier said she was making a phone call to an officer
she knew and grabbed onto the railing on the wall behind her with
both hands. Smith grabbed Bouvier’s arm and said three times, “It
is time for you to leave,” while moving her away from the door. A
few seconds later, Bouvier, who was arguing with Fairburn and
Wilkerson, pulled her arm away from Smith. Smith announced
that Bouvier was under arrest and instructed twice, “Give us your
hands now.” Bouvier instead pulled her hands up to her chest so
that Smith could not handcuff her.
Bouvier alleges that she was wrestled to the floor. Because
the video is unclear about whether she dropped or was forced to
the floor, we accept Bouvier’s allegation. In either event, after Bou-
vier was face down on the floor, Smith shouted six times, “Give us
your hands,” but Bouvier screamed and refused to unlock her
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6 Opinion of the Court 23-11410
arms. One officer used a pressure-point technique to keep Bouvier
on the floor, but Smith and the other officer still were unable to get
both of Bouvier’s hands behind her back to be handcuffed. After
the officers announced “Taser” eight times, one of the officers de-
ployed his Taser in a five-second burst, a two-second burst, and a
three-second burst, over the course of 17 seconds. An officer ex-
plained to Young that they were tasing her “[be]cause she won’t
comply.”
After Bouvier put her hands behind her back and was hand-
cuffed, the officers pulled Bouvier to her feet and walked her out
of the labor-and-delivery unit while she continued yelling at and
struggling with them because she wanted to go back for her cell
phone. Smith told Bouvier three times that she was “still not obey-
ing orders.” Bouvier was charged with misdemeanor disorderly
conduct, O.C.G.A. § 16-11-39(a), and misdemeanor obstruction, id.
§ 16-10-24(a).
Bouvier complained that the officers violated her Fourth
Amendment rights by unlawfully seizing her and using excessive
force. 42 U.S.C. § 1983. The officers submitted the video from
Smith’s body-worn camera and moved for judgment on the plead-
ings based on qualified immunity. The officers argued that, when
they arrived at the hospital, they had probable cause to detain or
arrest Bouvier for criminal trespass based on the 9-1-1 call plus Tay-
lor’s statement that she had refused the staff’s instructions to leave
a patient’s room during a sterile medical procedure. The officers
argued that, instead of arresting Bouvier upon arrival, they
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23-11410 Opinion of the Court 7
investigated whether she would be willing to follow the hospital’s
rules going forward so that she could stay. The officers argued that
when Bouvier refused to give them her identification, became loud
and belligerent, and refused to walk away from the room with
them, they had probable cause to arrest her for hindering their in-
vestigation. The officers also argued that they used reasonable
force to arrest Bouvier. In response, Bouvier submitted video foot-
age from one of the male officers’ body-worn cameras.
The district court denied the motion and ruled that the of-
ficers were not entitled to qualified immunity. The district court
rejected the officers’ argument that they had probable cause to de-
tain Bouvier for criminal trespass. The district court ruled that the
officers lacked probable cause to arrest Bouvier for obstruction be-
cause, although refusing to comply with an officer’s command is
sufficient to sustain an obstruction charge in Georgia, it was a
“first-tier” encounter under Georgia law in which Bouvier was free
to walk away. See, e.g., State v. Walker, 764 S.E.2d 804, 805–06 (Ga.
2014). The district court ruled that tasing Bouvier was objectively
unreasonable because it was unclear whether she committed a
crime, posed an immediate threat, or was required to comply with
the officers’ commands. Regarding whether the officers violated a
clearly established right, the district court stated that the officers
were “mistaken when they contend that the only way to show a
violation of a clearly established right is by pointing to judicial de-
cisions” and cited our decision in Fils v. City of Aventura, 647 F.3d
1272 (11th Cir. 2011).
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We review de novo the denial of a motion for judgment on
the pleadings. Mergens v. Dreyfoos, 166 F.3d 1114, 1116 (11th Cir.
1999). A motion for judgment on the pleadings is governed by the
same standard as a motion to dismiss for failure to state a claim and
should be granted when there are no issues of material fact, and the
movant is entitled to judgment as a matter of law. Samara v. Taylor,
38 F.4th 141, 149, 152 (11th Cir. 2022).
Qualified immunity shields officials who are acting within
their discretionary authority from liability when their conduct does
not violate a constitutional right that was clearly established at the
time of the conduct. Williams v. Aguirre, 965 F.3d 1147, 1156 (11th
Cir. 2020). “We are required to grant qualified immunity to a de-
fendant official” who was acting within her discretionary authority
unless the plaintiff can prove “(1) that the facts, when construed in
the plaintiff’s favor, show that the official committed a constitu-
tional violation and, if so, (2) that the law, at the time of the offi-
cial’s act, clearly established the unconstitutionality of that con-
duct.” Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015).
The officers argue that they are entitled to qualified immun-
ity because they had probable cause to arrest Bouvier for obstruc-
tion based on her ongoing disruptive behavior and failure to com-
ply with orders to walk away from the patient’s room with them.
A warrantless arrest must be supported by probable cause to be-
lieve that the suspect committed a crime. See Huebner v. Bradshaw,
935 F.3d 1183, 1187 (11th Cir. 2019). “Probable cause exists when
the facts, considering the totality of the circumstances and viewed
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23-11410 Opinion of the Court 9
from the perspective of a reasonable officer, establish ‘a probability
or substantial chance of criminal activity.’” Washington v. Howard,
25 F.4th 891, 898–99 (11th Cir. 2022) (quoting District of Columbia v.
Wesby, 583 U.S. 48, 57 (2018)). To determine whether probable
cause exists, we ask “whether a reasonable officer could con-
clude . . . that there was a substantial chance of criminal activity.”
Id. (omission in original).
Georgia law defines obstruction as “knowingly and willfully
obstruct[ing] or hinder[ing] any law enforcement officer . . . in the
lawful discharge of his or her official duties . . . .” O.C.G.A.
§ 16-10-24(a) (2019). This offense “was made purposefully broad to
cover actions which might not be otherwise unlawful, but which
obstructed or hindered law enforcement officers in carrying out
their duties,” such as refusing to comply with an officer’s directive
or command, Harris v. State, 726 S.E.2d 455, 458 (Ga. Ct. App.
2012), or refusing to identify oneself after being lawfully obtained,
see Draper v. Reynolds, 369 F.3d 1270, 1276–77 n.10 (11th Cir. 2004);
Pinchon v. State, 516 S.E.2d 537, 538 (Ga. Ct. App. 1999).
The district court erred in denying the officers qualified im-
munity from Bouvier’s claim of an unlawful seizure. To start, the
officers had reasonable suspicion to detain Bouvier outside the hos-
pital room based on the 9-1-1 call and the circumstances at the hos-
pital. See United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000)
(“[L]aw enforcement may detain a person briefly for an investiga-
tory stop if they have a reasonable, articulable suspicion based on
objective facts that the person has engaged in, or is about to engage
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10 Opinion of the Court 23-11410
in, criminal activity.”). When Smith entered the hospital room, she
knew Bouvier had caused a disturbance with the doctor and staff
by refusing to leave when instructed to do so, and the disturbance
had escalated to the point that the hospital security guard sought
the officers’ assistance. During her investigation, Smith spoke to
Taylor, the hospital representative, a nurse, and Bouvier. Taylor
and the hospital representative agreed that Bouvier could not stay
if she continued to cause issues, and the nurse was visibly affected
by Bouvier’s behavior. The representative’s statement that Bouvier
was “okay” was qualified by “for now” and reasonably suggested to
the officers that the staff was concerned that Bouvier would cause
another disturbance. So the officers had a reasonable, articulable
suspicion to detain Bouvier to investigate, and the district court
erred by applying the tier-approach for detentions under Georgia
law instead of the reasonableness standard of the Fourth Amend-
ment. See Virginia v. Moore, 553 U.S. 164, 168 (2008) (“We look to
the statutes and common law of the founding era to determine the
norms that the Fourth Amendment was meant to preserve.”).
Probable cause supported Bouvier’s arrest because a reason-
able officer could conclude that she was obstructing their lawful
investigation. After being detained, Bouvier tried to walk away
from the officers, refused their requests for identification, raised
her voice, and defied Smith’s instruction that the group walk away
from the patient’s room by grabbing onto the railing on the wall.
See Draper, 369 F.3d at 1276–77 (granting qualified immunity where
the defendant refused to produce requested documents and “acted
in a confrontational and agitated manner, paced back and forth,
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23-11410 Opinion of the Court 11
and repeatedly yelled at [the officer].”); Harris, 726 S.E.2d at 458.
Because the officers had probable cause to seize Bouvier, they are
entitled to dismissal of this claim.
We also agree with the officers that the district court erred
in denying qualified immunity because the officers’ use of force
was reasonable. Neither Bouvier nor the district court cited
caselaw establishing her right to be free from nondeadly force
while actively resisting a lawful arrest. The district court cited our
decision in Fils, but Fils supports the officers’ position. In Fils, we
held that the use of unprovoked force against a non-hostile, non-vi-
olent suspect who has not disobeyed instructions violates that sus-
pect’s rights under the Fourth Amendment. 647 F.3d at 1290. But
we explained that “where 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 the officer.” Id.
(quotation marks omitted). By contrast, in Oliver v. Fiorino we held
that tasing a compliant, nonthreatening individual eight times in
under two minutes, resulting in his death, violated the Fourth
Amendment. 586 F.3d 898, 906–08 (11th Cir. 2009). We explained
that, although the initial deployment of the Taser might have been
justified, repeatedly deploying the Taser and reloading it to con-
tinue tasing the individual, who was not suspected of a crime and
did not act belligerently, was unreasonable under the circum-
stances as a matter of obvious clarity, such that a reasonable officer
in the situation would have recognized that his actions were un-
lawful. Id. at 903–08.
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Although Bouvier posed no violent threat and was being ar-
rested for a misdemeanor, her physical resistance to being hand-
cuffed caused a physical struggle and pile-up in the hallway of a
maternity ward. Despite eight total commands from Smith to give
the officers her hands, Bouvier kept her hands pulled up to her
chest and her elbows locked to avoid being handcuffed. Smith and
another officer tried to pull her arms back but were unsuccessful.
In the light of Bouvier’s physical resistance and refusal to comply
with repeated verbal commands, the application of the Taser for
10 total seconds within a 17-second period to gain control of her
and restore order to the hospital unit was not “wholly dispropor-
tionate to the situation.” Reese v. Herbert, 527 F.3d 1253, 1274 (11th
Cir. 2008). And because this force was not excessive, it could not
have been clearly established or apparent to the officers that the
force was unlawful at the time of the incident. See Charles v. Johnson,
18 F.4th 686, 701 (11th Cir. 2021).
We REVERSE the denial of the officers’ motion for judg-
ment on the pleadings and REMAND with instructions to dismiss
Bouvier’s complaint against the officers based on qualified immun-
ity.
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