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Stryker v. City of Homewood

United States District Court, N.D. Alabama, Southern Division

January 9, 2019

MOSES STRYKER, Plaintiff
v.
CITY OF HOMEWOOD, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE, UNITED STATES DISTRICT JUDGE

         Plaintiff Moses Stryker brings this action under 42 U.S.C. § 1983, against the City of Homewood, Alabama ("the City"), and police officers Jason Davis, Frederick Blake, and Brian Waid, in their individual capacities.[2] Mr. Stryker alleges that Officers Davis, Blake, and Waid used excessive and unnecessary force while arresting him in the early morning hours of May 23, 2014. In Count I of his second amended complaint, [3] Mr. Stryker asserts an excessive force claim against the individual defendants under 42 U.S.C. § 1983. In Count II, he asserts a Section 1983 claim against the City for failure to train and supervise. Mr. Stryker asserts state law claims against only the individual defendants for assault and battery (Count III), negligence (Count IV), and wantonness (Count V).

         The matter is now before the Court on a motion for summary judgment filed by the City (Doc. 87), and a separate motion for summary judgment filed collectively by Officers Davis, Blake, and Waid. (Doc. 88). The motions have been fully briefed by all parties to the case.[4] The individual defendants argue that they are entitled to qualified immunity as to Mr. Stryker's Section 1983 claim. As to the state law claims, they argue that they are entitled to peace officer immunity under Ala. Code § 6-5-338(a). The City argues that because Mr. Stryker cannot survive summary judgment on his Section 1983 claim against the individual defendants, his Section 1983 claim against the City necessarily fails. For the reasons set forth below, the Court finds that the City's and the defendants' motions for summary judgment are due to be GRANTED with respect to Mr. Stryker's Section 1983 claims in Counts I and II. The Court declines to exercise supplemental jurisdiction over Mr. Stryker's state law claims in Counts III, IV, and V, and these claims are due to be DISMISSED WITHOUT PREJUDICE

         I. Summary Judgment Standard

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite "to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3).

         When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). "[A]tthe summary judgment stage[, ] the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "'Genuine disputes [of material fact] are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.'" Evans v. Books-A-Million, 762 F.3d 1288, 1294 (11th Cir. 2014) (quotingMize v. Jefferson City Bd. of Educ, 93 F.3d 739, 742 (11th Cir. 1996)). "A litigant's self-serving statements based on personal knowledge or observation can defeat summary judgment." United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018); see Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) ("To be sure, Feliciano's sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage."). Even if the Court doubts the veracity of the evidence, the Court cannot make credibility determinations of the evidence. Feliciano, 707 F.3d at 1252 (citing Anderson, 477 U.S. at 255). However, conclusory statements in a declaration cannot by themselves create a genuine issue of material fact. See Stein, 881 F.3d at 857 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

         In sum, the standard for granting summary judgment mirrors the standard for a directed verdict. Anderson, 477 U.S. at 250 (citing Brady v. Southern R. Co., 320 U.S. 476, 479-480 (1943)). The district court may grant summary judgment when, "under governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party .... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted).

         II. Statement of Facts

         Plaintiff Moses Stryker is a 58 year-old male who, in 1989, immigrated to the United States from Liberia, West Africa. (Doc. 69, p. 1, ¶ 1; Doc. 91-1, pp. 369-71, 482). Mr. Stryker is a naturalized citizen and permanent resident of the United States. (Doc. 69, p. 1, ¶ 1). Prior to coming to America, Mr. Stryker worked for eleven years as a police officer for the Liberian National Police, specifically, within the criminal investigation division. (Doc. 91-2, pp. 6-8). In 2003, Mr. Stryker began driving for Swift Transportation as a truck owner and operator. (Doc. 91-1, p. 379).

         The story begins in the early morning hours of May 23, 2014, on Highway 280 in Birmingham, Alabama. Mr. Stryker and Musie Ibedingl, a truck driver whom Mr. Stryker was training for his employer, Swift Transportation, were traveling on Highway 280 around midnight when they allegedly side-swiped a sedan driven by Tammy Barnette. (Doc. 91-2, p. 10; Doc. 101-1, p. 5). Mr. Stryker and Mr. Ibedingl were unaware of having hit Ms. Barnette (Doc. 91-1, pp. 444, 467), and they continued to drive toward their delivery destination at the Walmart Supercenter on Lakeshore Drive in Homewood, Alabama. (Doc. 91-2, pp. 11, 23; Doc. 101-1, p. 8). Once at Walmart, shortly before 2:00 a.m, Mr. Ibedingl struggled to maneuver the truck, an eighteen wheeler, in the manner necessary to park at the loading dock. (Doc. 91-1, p. 385; Doc. 91-2, pp. 10-11). Mr. Stryker traded places with Mr. Ibedingl and assumed the driver's position. (Doc. 91-2, p. 11). Moments later, Ms. Barnette appeared in her vehicle-having followed the truck for approximately ten miles from Highway 280 to the Walmart shopping center-and parked her car in front of Mr. Stryker's truck in an apparent attempt to prevent Mr. Stryker from leaving the scene. (Doc. 91-2, pp. 11-12; Doc. 101-1, p. 6). Ms. Barnette indicated to Mr. Stryker that she would not move her car until the police arrived. (Doc. 91-2, p. 11). Ms. Barnette's boyfriend, Merle Bailey, was also present at the Walmart shopping center in a separate vehicle which was parked near Ms. Barnette. (Doc. 101-1, pp. 7-8). Mr. Stryker and Mr. Bailey had a brief verbal exchange. (Doc. 101-1, p. 8). Mr. Stryker testified that Mr. Bailey smelled of alcohol and that he wanted to avoid further contact with him until police arrived (which he did by retreating to his truck). (Doc. 91-1, p. 392, 448-50; Doc. 91-2, pp. 13-14).

         A short time later, at approximately 2:00 a.m, Homewood police officer Jason Davis arrived on the scene. (Doc. 91-2, p. 14). Officer Davis's blue lights were on; however, he turned off the video recorder before exiting his vehicle. (Doc. 91-3, p. 28). Officer Davis instructed the parties to move their vehicles in order to clear the roadway. (Doc. 91-3, p. 31). He told Ms. Barnette to pull her car into one area of the lot and he instructed Mr. Stryker to move his truck to a side alleyway some distance away (approximately 50 feet from Ms. Barnette's vehicle). (Doc. 91-3, pp. 31-32; Doc. 101-9, p. 9). Mr. Stryker complied but pleaded with Officer Davis to leave his truck in a well-lighted space. (Doc. 91-2, p. 22). According to Mr. Stryker, Officer Davis became irritated and stated "if I didn't shut up he would lock my ass up."[5] (Doc. 91-2, pp. 20-21).

         After moving the truck, Mr. Stryker, Mr. Ibedingl and Officer Davis walked around the truck to inspect it for damage. (Doc. 91-1, pp. 399-400; Doc. 91-2, p. 23). Officer Davis stated that he did not see any damage to the truck. (Doc. 91-1, p. 400; Doc. 91-2, p. 23). Officer Davis also indicated to Mr. Stryker that the accident occurred outside of his jurisdiction, and he would have to call authorities from the proper jurisdiction to come and investigate.[6] (Doc. 91-1, p. 400). Officer Davis testified that Mr. Stryker became agitated at this point and began speaking loudly in another language or in a thick accent which Officer Davis could not understand. (Doc. 91-3, pp. 32-33).

         After walking around the truck, Mr. Stryker and Mr. Ibedingl returned to the truck. (Doc. 91-1, p. 400). Mr. Stryker then remembered that his company policy requires him to take photographs of any damage in the event of an accident, and so he retrieved his company camera from the cab of his truck and began walking toward Ms. Barnette's vehicle. (Doc. 91-1, pp. 400-401). However, Officer Davis stopped him and asked what he had in his hand. (Doc. 91-1, pp. 400-401). Mr. Stryker explained that it was a camera, and that his company policy required him to photograph any damage resulting from an accident. (Doc. 91-2, p. 31; Doc. 91-1, pp. 402-04). Officer Davis told Mr. Styker that he could not take any photos, and that he should put the camera away. (Doc. 91-2, p. 31; Doc. 91-3, pp. 35-36).

         Mr. Stryker contends that Officer Davis told him to place the camera in his pocket, but that as a former police officer himself, he was fearful to do that knowing that an officer could mistake reaching into a pocket as reaching for a weapon. (Doc. 91-1, pp. 414-15; Doc. 91-2, p. 30). Nonetheless, Mr. Stryker attempted to place the camera in his pocket, at which point Officer Davis drew his weapon (Doc. 91-1, p. 414; Doc. 91-3, p.35). Mr. Stryker asked Officer Davis "are you going to kill me?" (Doc. 91-1, p. 415; Doc. 91-2, p. 31). Once Officer Davis realized that Mr. Stryker had a camera (and not a weapon), he re-holstered his firearm, and suggested to Mr. Stryker that he return to his truck. (Doc. 91-1, pp. 36, 146-48, 415; Doc. 91-3, pp. 35-36). Mr. Stryker testified that at this point Officer Davis shoved him. (Doc. 91-1, p. 405; Doc. 91-2, p. 33). Officer Davis claims that he merely redirected Mr. Stryker by placing his hand on Mr. Stryker's shoulder, at which time Mr. Stryker attempted to elbow him but missed. (Doc. 91-1, p. 39-40, 41; Doc. 91-3, p. 36; Doc. 91-2, p. 35). Officer Davis testified that in response to Mr. Stryker swinging his elbow, he (Officer Davis) employed a maneuver known as an "arm bar takedown," but that Mr. Stryker spun around and evaded him and began walking back to his truck. (Doc. 91-1, p. 46; Doc. 91-3, p. 37). Mr. Stryker denies attempting to elbow Officer Davis. (Doc. 91-1, p. 482).

         As Mr. Stryker walked away, Officer Davis tased Mr. Stryker in the back. (Doc. 91-2, p. 37). Officer Davis testified that he did this in response to Mr. Stryker trying to elbow him and evading the arm-bar takedown. (Doc. 91-3, p. 37). After getting tased, Mr. Stryker began crawling toward the truck. (Doc. 91-2, pp. 37-38). Mr. Stryker testified that after Officer Davis tased him, he realized that he was under arrest. (Doc. 91-2, p. 46). However, he also believed that Officer Davis was trying to kill him, so he sought to return to his truck for safety. (Doc. 91-2, pp. 38-39). Meanwhile, Officer Davis requested 9-1-1 backup through his chest microphone. (See Doc. 91-5) (9-1-1 audio recording conventionally filed with Clerk of Court). Officer Davis then tased Mr. Stryker a second time. (Doc. 91-3, p. 39). Mr. Stryker continued his efforts to climb into the truck. (Doc. 91-1, p. 412). Mr. Stryker testified: "The officer walked away so I started dragging myself to get into the truck to get away from him." (Doc. 91-1, p. 412). Officer Davis pursued him up the stairs, struck him in the neck region, and tugged on his legs to pull him down. (Doc. 91-1, pp. 412-13). However, Mr. Stryker clutched the safety bar in the driver's side of the cabin and refused to let go. (Doc. 91-1, p. 417).

         Mr. Stryker then climbed into the cab of the truck, rolled up the window, and locked the driver's side door. (Doc. 91-1, pp. 418-19; Doc. 91-3, p. 39). Mr. Stryker yelled at Mr. Ibedingl, who was standing nearby, to get into the passenger side of the truck, which he did. (Doc. 91-1, p. 418). Officer Davis then used his police baton to break the driver's side window, causing glass to shatter in Mr. Stryker's face. (Doc. 91-1, pp. 420-21; Doc. 91-3, pp. 39-40). Mr. Stryker began sliding to the passenger side of the cabin and Mr. Ibendingl exited the truck. (Doc. 91-1, p. 426). Officer Davis entered the passenger side and attempted a second time to remove Mr. Stryker from the truck. (Doc. 91-1, p. 426; Doc. 91-3, pp. 41- 42). Mr. Stryker clutched the safety bar in the passenger side of the truck. (Doc. 91-2, p. 44). At some point during the struggle, Officer Davis sprayed chemical spray in Mr. Stryker's face and struck him with his fist several times in the carotid artery and wrist and hand area (in an effort to force him to loosen his grip). (Doc. 91-3, p. 42). Officer Davis testified that he "hammer-fisted"[7] Mr. Stryker and denies hitting Mr. Stryker with his baton. (Doc. 91-3, p. 42). Mr. Stryker alleges that Officer Davis hit him in the head and neck with an object or a "blunt instrument." (Doc. 69, p. 7, ¶ 39; Doc. 91-1, p. 412). Officer Davis testified that he punched Mr. Stryker in the back a number of times in an effort to bring him out of the truck. (Doc. 91-1, p. 225).

         Officers Blake and Waid, each of whom were on duty at the time, appeared on the scene in separate vehicles. (See Doc. 91-1, pp. 200-04; Doc. 91-1, pp. 245-46). Both heard the distress call from Officer Davis requesting back-up. (See Doc. 91-1, pp. 201-03; Doc. 91-1, p. 245-46). Officer Blake appeared first and observed a struggle between Officer Davis and Mr. Stryker as Mr. Styker held onto the safety bar in the passenger side of the truck and Officer Davis attempted to remove him. (Doc. 91-1, pp. 209-10). Officer Blake ordered Mr. Stryker to "let go" and then tugged on Mr. Stryker's belt and punched him in the kidney area. (Doc. 91-1, pp. 212-15, 217-18; Doc. 91-10, p. 44). Mr. Stryker eventually released the safety bar and Officer Blake forced him to the ground. (Doc. 91-10, pp. 47-48). Once on the ground, Officer Blake put both of his knees on Mr. Stryker's back. (Doc. 91-10, pp. 49, 53). Officer Blake told Mr. Stryker "stop resisting" and "give us your hands." (Doc. 91-10, pp. 54, 56, 68).

         Officer Waid approached and observed Officers Davis and Blake in a struggle to remove Mr. Stryker from the vehicle. (Doc. 91-1, pp. 249-50). Officer Waid testified that after Officers Davis and Blake put Mr. Stryker on the ground, he (Mr. Stryker) was still resisting and fighting. (Doc. 91-1, p. 252). Officer Waid then "hammer fisted him three to five times in the jaw or the ear, maybe the side of the neck" in order to gain compliance. (Doc. 91-11, pp. 47-48).

         Mr. Stryker denies that he resisted the officers' attempts to handcuff him (Doc. 91-2, p. 48), and alleges that the officers continued to kick him and "choke him"[8] even after handcuffs were placed on him.[9] (Doc. 91-2, p. 49). Mr. Stryker recalls hearing Officer Blake command him to "stop resisting" and to "give us your hands." (Doc. 100, p. 17, ¶ 12). Once restrained, Mr. Stryker testified that Officers Davis, Blake and Waid dragged him across the parking lot. (Doc. 91-1, pp. 428-29, 434, 477-78). Mr. Stryker was then placed under arrest and put in a police car without further incident. (See Doc. 91-1, p. 435).

         Mr. Ibedingl was also placed in handcuffs but was released shortly thereafter. (Doc. 91-1, p. 352). Mr. Ibedingl was not arrested or charged with a crime. (Doc. 91-1, p. 353).

         After the dust settled, one of the officers transported Mr. Stryker directly from the Walmart shopping center to UAB hospital for treatment. (Doc. 91-1, p. 435-36). Mr. Stryker suffered a broken jaw which required surgery. (Doc. 69, p. 17, ¶ 81; Doc. 91-1, p. 479). Emergency room staff also removed glass from Mr. Stryker's face and eyes. (Doc. 69, p. 17, ¶ 80). Mr. Stryker's jaw was wired shut for approximately eight weeks in order to allow it to heal. (Doc. 69, p. 17, ¶ 81). Mr. Stryker also suffered back injuries requiring surgery and which prevent Mr. Stryker from returning to work as a truck driver. (Doc. 69, p. 17, ¶ 83).[10]

         The City brought a criminal action against Mr. Stryker, styled City of Homewood v. Stryker, CC-2015-3645 and CC-2015-3646, filed in the Circuit Court of Jefferson County, Alabama, on charges of disorderly conduct, resisting arrest, and refusal to comply with a lawful order. (Doc. 101-3; Doc. 101-5; Doc. 101-6; Doc. 101-8). Prior to the criminal trial, the City dismissed the charges against Mr. Stryker for assault and disorderly conduct. (See Doc. 101-7, pp. 2, 3). Following a jury trial, Mr. Stryker was acquitted on the charge of resisting arrest (Doc. 101-4, p. 2). Mr. Stryker was convicted on the charge of refusal to comply with a lawful order. (Doc. 91-7, p. 2; Doc. 91-8, p. 2). The trial order states in relevant part:

10/21/16 On this date the jury returned its verdict which read, 'We, the jury find the Defendant, Moses Jutomue Stryker, Guilty of Refuse to Comply with Lawful Order as charged in the complaint,' and was signed by the foreperson, Lisa Arrington. In accordance with the jury verdict the Court therefore Adjudges you Guilty.
It is the sentence of the Court that the Defendant, Moses Jutomue Stryker, is fined the sum of $500 plus court costs, which shall be paid in full by 9:00 A.M. on January 19, 2017.

(Doc. 91-8, p. 2) (bold supplied in original).

         III. Procedural History

         Prior to the reassignment of this case to the undersigned, the City and Officers Blake and Waid filed a motion to dismiss. (See note 1, supra, and Docs. 40, 44). Officer Davis did not join in the motion. The Court, Hopkins, J., determined that the motion filed by Officers Blake and Waid was due to be granted with respect to all alleged conduct occurring prior to Mr. Stryker's removal from the truck. See Stryker v. City of Homewood et al., 2:16-CV-0832-VEH, 2017 WL 3191097, *11-19 (N.D. Ala. July 28, 2017) ("The officers' motion is GRANTED as to all of the Plaintiffs claims relating to his removal from the vehicle."). In light of Judge Hopkins's ruling, this Court, in ruling on the present motion for summary judgment, will not consider any alleged conduct concerning Officers Blake and Waid occurring prior to Mr. Stryker's removal from the truck. Consistent with the Court's ruling on the motion to dismiss, the Court will only consider the conduct of these officers as it relates to events occurring after Mr. Stryker was outside of the truck and on the ground. The Court's inquiry concerning Officer Davis's conduct is not limited in scope as Officer Davis was not a party to the motion to dismiss.

         IV. Discussion

         To recap the claims in this matter, as against Officers Davis, Blake, and Waid, Mr. Stryker asserts a Section 1983 excessive force claim as well as state law claims for assault and battery, negligence and wantonness. Against the City, Mr. Stryker asserts a single count under Section 1983 for failure to train and supervise. The Court will first address Mr. Stryker's Section 1983 claim against the individual defendants. In light of the Court's partial dismissal of the Section 1983 claim against Officers Blake and Waid, the Court analyzes the claim separately as it relates to Officer Davis, and will then turn to the "post-removal from the truck" conduct involving Officers Blake and Waid. The Court will then turn to Mr. Stryker's Section 1983 claim against the City, and will conclude with a discussion of Mr. Stryker's remaining state law claims.

         A. Section 1983 Excessive Force Claims

         Section 1983 creates a private right of action for constitutional violations committed by persons acting under "color of state law." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981); see generally Monroe v. Pape, 365 U.S. 167 (1961). The statute provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights; it instead provides a method for vindicating federal rights elsewhere conferred. Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). In cases alleging excessive force incident to an arrest, the source of federal rights arises under the Fourth Amendment's protections against unreasonable searches and seizures. Graham v. Connor, 490 U.S. 386, 394 (1989) ("Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons ... against unreasonable ... seizures" of the person"); Lee v. Ferraro, 284 F.3d 1188, 1197-98 (11th Cir. 2002) ("The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest").

         While Section 1983 creates a private right of action for constitutional violations by government officials, the doctrine of qualified immunity simultaneously operates to provide a shield from liability to government officials performing discretionary functions. See generally Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223 (2009) ("'Qualified immunity balances two important 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.'")). The purpose of qualified immunity is to ensure that government officials are not required to "err always on the side of caution because they fear being sued." Hunter v. Bryant, 502 U.S. 224, 229 (1991). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Stanton v. Sims, 571 U.S. 3, 6 (2013) (internal quotations and citations omitted).

         1. Qualified Immunity Standard

         To receive qualified immunity, the public official carries the initial burden of demonstrating that "he was acting within the scope of his discretionary authority when the alleged wrongful acts occurred." Courson v. McMillan, 939 F.2d 1479, 1487 (11th Cir. 1991). If the defendant is not acting within the scope of his discretionary authority, he may not enjoy the benefit of qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

         In the present case, no question exists as to whether Officers Davis, Blake and Waid were acting in a discretionary capacity while arresting Mr. Stryker. The burden therefore shifts to Mr. Stryker "to show that qualified immunity is not appropriate." Lee, 284 F.3d at 1194. The United States Supreme Court has set forth a two-part test for determining the appropriateness of a qualified irnmunity defense. See Saucier v. Katz, 533 U.S. 194 (2001), receded from by Pearson v. Callahan, 555 U.S. 223 (2009).[11] Under Saucier, a court must ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201. If a constitutional right would have been violated assuming the plaintiffs version of the facts as true, the court must then determine "whether the right was clearly established." Id.

         a. Constitutional Violation

         The Eleventh Circuit has identified the following considerations, conceptualized as the "Graham factors," for determining whether an excessive force claim amounts to a constitutional violation:

In order to determine whether the amount of force used by a police officer was proper, a court must ask "whether a reasonable officer would believe that this level of force is necessary in the situation at hand." [Willingham v. Loughnan, 261 F.3d 1178, 1186 (11th Cir. 2001).] The Supreme Court has held that "[d]etermining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. at 1871 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (internal quotations omitted)). Moreover, "Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id. at 396, 109 S.Ct. at 1871-72 (citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S.Ct. 1868, 1880-83, 20 L.Ed.2d 889 (1968)).
The Supreme Court has established that, in order to balance the necessity of using some force attendant to an arrest against the arrestee's constitutional rights, a court must evaluate a number of factors, "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 he is actively resisting arrest or attempting to evade arrest by flight." Id., 109 S.Ct. at 1872. . . . Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably ...

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