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Glasscox v. City of Argo

United States Court of Appeals, Eleventh Circuit

September 12, 2018

BOB GLASSCOX, Plaintiff - Appellee,
v.
CITY OF ARGO, DAVID RAMSAY MOSES, In His Individual Capacity, Defendants - Appellants.

          Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:15-cv-01487-KOB

          Before ROSENBAUM, JILL PRYOR and RIPPLE, [*] Circuit Judges.

          JILL PRYOR, CIRCUIT JUDGE.

         Bob 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 officer's orders.

         This 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.

         I. FACTUAL BACKGROUND[1]

         Mr. 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 camera.[2]

         Officer Moses began following Mr. Glasscox, who was "doing about 80" in a 70 mile-per-hour zone. Doc. 31-1 at 10.[3] 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.[4] 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.

         Officer 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.[5] 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, "[6] 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.

         Officer 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.

         Less 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.

         While 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.

         After 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."[7] 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.

         At the 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 criminal charges.

         Mr. 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 violation.

         II. STANDARD OF REVIEW

         Our 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).

         In 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.").

         In 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)).

         III. DISCUSSION

         A 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 ...


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