from the United States District Court for the Northern
District of Alabama D.C. Docket No. 2:15-cv-01487-KOB
ROSENBAUM, JILL PRYOR and RIPPLE, [*] Circuit Judges.
PRYOR, CIRCUIT JUDGE.
Glasscox was driving his pickup truck down the interstate in
Alabama when he experienced an episode of diabetic shock.
Physically unable to control his truck, Mr. Glasscox began
driving erratically at high speeds. Concerned motorists
reported Mr. Glasscox's driving to law enforcement, and
David Moses from Argo City Police responded and gave chase.
After Mr. Glasscox's truck came to a stop in the median,
Officer Moses approached the truck and, while yelling at Mr.
Glasscox to get out, tased him four times in rapid
succession. The incident was captured on Officer Moses's
body camera, which recorded Mr. Glasscox's
attempts-between taser shocks-to comply with the
appeal arises out of a civil lawsuit Mr. Glasscox filed
against Officer Moses and the City of Argo, alleging claims
under 42 U.S.C. § 1983 for excessive use of force. The
district court converted Officer Moses's and the
City's motions to dismiss into motions for summary
judgment and, viewing the facts in the light most favorable
to Mr. Glasscox, denied the motions based on its ruling that
his clearly established constitutional rights were violated.
We agree with the district court that at this stage of the
case Officer Moses is not entitled to qualified immunity. And
because Mr. Glasscox has, for purposes of summary judgment,
established a constitutional violation, the district court
also properly denied the City's motion. We affirm.
Glasscox, who lives with Type 1 diabetes, suffered a severe
hypoglycemic episode while driving his pickup truck on
Interstate 59 South near the City of Argo, Alabama. His
condition caused him to begin driving erratically. After
other drivers on the interstate reported his erratic driving,
the Argo City Police dispatched Officer Moses to the scene.
What followed was captured on Officer Moses's body
Moses began following Mr. Glasscox, who was "doing about
80" in a 70 mile-per-hour zone. Doc. 31-1 at
Officer Moses activated his emergency lights and siren, yet
Mr. Glasscox's truck began to accelerate, weaving from
the fast lane onto the median of the divided highway and
narrowly missing some roadside signs and a
guardrail. Officer Moses followed Mr. Glasscox for
approximately five miles. Eventually, the truck came to a
stop, halting in the interstate's median near the
northbound fast lane.
Moses got out of his car and ran to the driver's side of
Mr. Glasscox's truck. At that point, he was standing very
close to the fast lane of the northbound interstate where
cars were speeding by. He had two weapons drawn: his firearm and
his taser. Pointing his weapons into the glass of the
driver's side window, Officer Moses exclaimed,
"Let's see your fucking hands!" Doc. 19-1, Ex.
A at 2:50-2:51. Mr. Glasscox raised his hands, which were
empty. Officer Moses opened the driver's side door and
shouted, "Get out of the car!" Id. at
2:54-2:55. Mr. Glasscox, whose seatbelt was still buckled and
hands were still raised, said, "I'm sorry,
man." Id. at 2:56-2:57. He then said something
that is difficult to decipher, but the parties agree it was
either "God damn, man," or "God darn,
man." Officer Moses again shouted, "Get out of the
car!" Id. at 3:00-3:01. At this point in the
video recording, only one of Mr. Glasscox's hands is
visible; he appears to be reaching toward his seatbelt.
Officer Moses yelled, "Put your seatbelt off now,"
and Mr. Glasscox quickly unbuckled his seatbelt. Id.
at 3:01-3:05. Officer Moses quickly commanded, "Get
out," and Mr. Glasscox began to say, "I'm going
to get out if you'd shut up." Id. at
3:06-3:10. Officer Moses, talking over Mr. Glasscox, warned,
"Don't you reach, " and immediately deployed his
taser. Id. at 3:07. The taser shock came before Mr.
Glasscox could finish his sentence, approximately four
seconds after he unbuckled his seatbelt and two seconds after
Officer Moses issued his latest order to get out of the
truck. The taser wires latched into Mr. Glasscox's chest
and remained engaged for five seconds while Mr. Glasscox
screamed, shook, and writhed in pain with his arms and hands
curling toward his chest. Officer Moses holstered his firearm
as the taser was being deployed.
Moses admitted that after this first use of the taser, he
could see both of Mr. Glasscox's hands, which the video
shows were empty. Less than a second after the end of the
first shock, while Mr. Glasscox's hands remained curled
toward his chest and he continued to howl and writhe in pain,
Officer Moses yelled, "Get out, now!" Id.
at 3:15-3:16. Still howling, Mr. Glasscox attempted to pull
one of the taser wires from his chest. Immediately-three to
four seconds after the first taser shock-Officer Moses
deployed his taser a second time, again for five seconds.
During these five seconds, while Mr. Glasscox was shaking,
screaming, and writhing in pain, Officer Moses yelled,
"Stop it! Get out of the car!" Id. at
3:19-3:20. Again, Mr. Glasscox's arms and hands can be
seen curling toward his chest from shock of the taser.
than a second after the second shock ended, Officer Moses
yelled, "I'll give it to you again! Get out of the
car!" Id. at 3:23-3:25. Mr. Glasscox pleaded,
"I'll get out if you just leave me alone!"
Id. at 3:25-3:27. Within one second, Officer Moses
moved closer and grabbed Mr. Glasscox's wrist with his
free hand, demanded that Mr. Glasscox "get out,"
and tased Mr. Glasscox a third time, again for five seconds.
Id. at 3:29-3:30. In total, about six seconds passed
between the second and third deployments. As Officer Moses
tased Mr. Glasscox for the third time, Mr. Glasscox yelled,
"I will!" Id. at 3:29-3:30.
the taser was still active, with Mr. Glasscox still shaking
uncontrollably and writhing from the shock, Officer Moses
held onto Mr. Glasscox's wrist and again yelled,
"Get out of the car!" Id. at 3:32-3:33. As
soon as the shock ended and he could speak, Mr. Glasscox
cried again, "I will!" Id. at 3:35. Less
than two seconds later, before Mr. Glasscox had a chance to
get out of the truck, Officer Moses deployed his taser a
fourth time, first aiming the taser near Mr. Glasscox's
chest and then bringing the weapon to the side of Mr.
Glasscox's thigh for direct contact. As he brought the
taser to Mr. Glasscox's thigh, Officer Moses yelled,
"Stop it!" Id. at 3:38. When Officer Moses
touched the active taser to Mr. Glasscox's thigh, Mr.
Glasscox brought his hand to the taser. Officer Moses, still
holding the taser to Mr. Glasscox's thigh, shouted,
"Get out of the car!" Id. at 3:41-3:42.
Mr. Glasscox let go of the taser and again cried, "I
will!" Id. at 3:42. Officer Moses released the
taser, and as he did, he said, "Stop fighting! Get
out!" Id. at 3:43, 3:46. Mr. Glasscox yelled,
"Okay!" id. at 3:47, and with Officer
Moses still holding his wrist, swung his legs out of the
truck and stood up on the side of the road. While holding the
taser, with at least one of its wires still attached to Mr.
Glasscox's shirt, Officer Moses handcuffed Mr. Glasscox
and walked him to the back of the truck on the driver's
side, still mere feet from the northbound fast lane. All the
while, cars were speeding by.
about a minute behind the truck, Officer Moses walked Mr.
Glasscox to the patrol car, located on the other side of the
median near the southbound fast lane. By this point, police
backup had arrived. Officer Moses told the backup officer
that Mr. Glasscox was "bleeding all over the place"
and had taken "five rides." Id. at 6:11-6:17.
Officer Moses unhooked the taser wires from Mr.
Glasscox's shirt and asked him, "What is wrong with
you, sir?" Id. at 7:59-8:00. Mr. Glasscox
responded that he is a diabetic and his blood sugar was low.
According to the emergency medical services report and Mr.
Glasscox's treating physician, his blood sugar level was
indeed low, and his erratic driving resulted from a severe
hypoglycemic episode. Mr. Glasscox suffered physical
injuries, including bleeding from the taser probes, and
psychological injuries, including possible Post-Traumatic
Stress Disorder, from his encounter with Officer Moses.
scene, Officer Moses told Mr. Glasscox that if in fact he was
suffering from diabetic shock, law enforcement would not
press charges. Nonetheless, Mr. Glasscox was charged with
reckless driving, eluding a police officer, and resisting
arrest. A municipal court found him guilty in 2015, and he
appealed to the county's circuit court for a de
novo determination of guilt before a jury. As far as we
can tell, Mr. Glasscox is still awaiting a jury trial on the
Glasscox sued Officer Moses and the City under 42 U.S.C.
§ 1983 for excessive use of force in violation of the
Fourth Amendment. The defendants moved to dismiss; the
district court, with notice, converted their motions to
motions for summary judgment. In his motion, Officer Moses
asserted that he was entitled to qualified immunity. In its
motion, the City argued that it was not liable for Mr.
Glasscox's injuries because Officer Moses did not violate
Mr. Glasscox's constitutional rights. After Mr. Glasscox
responded with evidentiary submissions, the district court
denied the motions. As relevant to this appeal, the district
court, viewing the evidence in the light most favorable to
Mr. Glasscox, concluded that Officer Moses violated his
clearly established right to be free from the excessive use
of force. Officer Moses now appeals the denial of qualified
immunity. The City also appeals and can prevail only if we
determine as a matter of law that there was no constitutional
STANDARD OF REVIEW
review of a district court's entry of summary judgment is
de novo, and we view the facts in the light most
favorable to the nonmoving party. Gray ex rel. Alexander
v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006). We must
draw all reasonable inferences in favor of the party opposing
summary judgment. Whatley v. CNA Ins. Cos., 189 F.3d
1310, 1313 (11th Cir. 1999). "Even where the parties
agree on the facts, if reasonable minds might differ on the
inferences arising from undisputed facts, then the court
should deny summary judgment." Manners v.
Cannella, 891 F.3d 959, 967 (11th Cir. 2018) (internal
quotation marks omitted).
contrast, summary judgment should be granted when the record
evidence shows that there is no genuine dispute concerning
any material fact and the movant is entitled to judgment as a
matter of law. Feliciano v. City of Miami Beach, 707
F.3d 1244, 1247 (11th Cir. 2013) (citing Fed.R.Civ.P. 56(a)).
Conclusory allegations and speculation are insufficient to
create a genuine issue of material fact. See Cordoba v.
Dillard's Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)
("Speculation does not create a genuine issue
of fact; instead, it creates a false issue, the demolition of
which is a primary goal of summary judgment.").
every case, "'[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by
the record [as with a video recording of the incident], so
that no reasonable jury could believe it, a court should not
adopt that version of the facts.'" Manners,
891 F.3d at 967 (alteration adopted) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)).
government official asserting a qualified immunity defense
bears the initial burden of showing "he was acting
within his discretionary authority." Skop v. City of
Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). After the
official makes this showing-and here it is undisputed-the
burden shifts to the plaintiff to show that "(1) the
defendant violated a constitutional right, and (2) this right
was clearly established at the time of ...