           Case: 14-11872   Date Filed: 01/27/2015   Page: 1 of 17


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-11872
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:12-cv-00182-WS-CAS

JOSEPH BENJAMIN WILLIS,

                                                            Plaintiff–Appellant,

versus

MIKE MOCK, in his official capacity,
CITY OF APALACHICOLA, a municipal corporation,
RANDALL COOK, in his individual capacity,
LAWRENCE BRANNON, in his individual capacity,
STEVE JAMES, in his individual capacity, and
CHET TURNER, in his individual capacity,



                                                        Defendants–Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (January 27, 2015)
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Before ROSENBAUM, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      On April 13, 2008, Joseph Benjamin Willis left Tallahassee, Florida on his
motorcycle bound for Florida’s Gulf Coast. As he headed south on U.S. Highway

319 near the Walmart Supercenter in Crawfordville, Florida, a Wakulla County
deputy sheriff traveling north clocked him at 80 mph—25 mph over the posted
limit. The deputy immediately turned around and set off in pursuit.
      Thus began a high-speed chase that would ultimately involve at least six
law-enforcement officers from four jurisdictions across two counties. Over the
next 50 or so miles, Willis (1) rode hard in an effort to elude the officers, reaching
speeds in excess of 110 mph, (2) veered onto the right shoulder to pass, (3)
swerved into oncoming traffic across the double yellow line to pass, (4) forced
oncoming traffic to take evasive action to avoid a head-on collision, (5) evaded
two roadblocks set up by Franklin County deputies, and (6) attempted to barrel
through a third roadblock set up by Apalachicola officers before crashing and
suffering serious injuries.
      Willis sued the Defendants 1 under 42 U.S.C. § 1983, alleging that their
conduct during this high-speed chase constituted excessive force under the Fourth



      1
          There are two groups of defendants:

      •     Franklin County Defendants: Sheriff Mike Mock (who was elected to replace Lloyd
            “Skip” Shiver during the pendency of this litigation), in his official capacity, and
            Deputies Lawrence Brannon and Randall Cook, in their individual capacities; and



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and Fourteenth Amendments. Finding no evidence of a constitutional violation,
the district court granted summary judgment to the Defendants.

      The gist of Willis’s appeal is that the district court wrongly concluded that
summary judgment was appropriate because it failed to credit his evidence and
draw reasonable inferences therefrom in his favor. After carefully reviewing the
record and the parties’ briefs, we affirm.

                                             I.

      We review the district court’s grant of summary judgment de novo. Myers
v. Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013).
      Like the district court, we “must consider the facts and the justifiable

inferences in the light most favorable to the nonmoving party,” which here is
Willis. West v. Davis, 767 F.3d 1063, 1066 (11th Cir. 2014). “Summary judgment
may be granted only if there is no genuine dispute of any material fact and the

movant is entitled to judgment as a matter of law.” Id. “An issue of fact is
‘material’ if, under the applicable substantive law, it might affect the outcome of
the case. An issue of fact is ‘genuine’ if the record taken as a whole could lead a

rational trier of fact to find for the nonmoving party.” Harrison v. Culliver, 746
F.3d 1288, 1298 (11th Cir. 2014) (quoting Hickson Corp. v. N. Crossarm Co., 357




      •   Apalachicola Defendants: the City of Apalachicola, a municipal corporation, and
          Captain Steve James and Sergeant Chet Turner, in their individual capacities.



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F.3d 1256, 1259–60 (11th Cir. 2004) (internal citations omitted)) (internal
quotation marks omitted).

       Additionally, Willis’s evidence must be credited unless contradicted by the
record. See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007)
(“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”).

                                               II.

                                               A.

       Willis testified that he saw the Wakulla County deputy driving north on U.S.
319 near the Crawfordville Walmart. He admits that he was speeding when he
passed her and that “without thinking, [he] just tried to put a few cars in between

[him] and where [he] had seen the cop.” Doc. 41-1 at 7–8.2 But he denies that he
saw her behind him despite the flashing blue lights and blaring siren. He also
denies that he heard her lay on the vehicle’s air horn to try to get his attention.

Indeed, he testified that he did not see another marked patrol car until the




       2
         Willis was later charged with, and pleaded guilty to, reckless driving, fleeing from a
police officer, possession of drug paraphernalia, and possession of cannabis.




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Carrabelle Bridge—about 35 miles away. 3 Whatever the reason, Willis did not
stop in Wakulla County.

       The Wakulla County Sheriff’s Office contacted the Franklin County
Sheriff’s Office and asked them to be on the lookout for a motorcycle that had
refused to stop. The dispatcher described the motorcycle as silver with some red
on it, and the rider as wearing a red helmet. She also said that “he’s run from us
before, and you.” Doc. 46-1 at counter 352-02.4

                                               B.

       Charles Richards, a police officer in Carrabelle, responded to this request.
He pulled his patrol car off U.S. Highway 98 near the entrance of a Franklin
County golf course. A few minutes later, a motorcycle, headed west toward
downtown Carrabelle, passed at 62 mph. While the bike and rider did not perfectly
match the description, he still pulled out to initiate a routine traffic stop. He then
activated his dashboard camera along with his lights and siren. But Willis didn’t
stop. 5 And when he passed the vehicle in front of him, Officer Richards radioed
that he was in pursuit of a fleeing motorcycle.



       3
        Shortly after the deputy began to give chase, two more Wakulla County deputies saw a
motorcycle traveling at high speed on U.S. 319 in the area. Willis denies seeing them as well.
       4
           Willis, however, rode a red motorcycle and wore a black helmet; additionally, this was
his first time riding this route. Given these discrepancies, he posits that another biker may have
been riding recklessly in Wakulla County when he was.
       5
        Willis admits that Officer Richards was in pursuit of him. But he denies that he ever
saw or heard him. He surmises that this was because he had earphones in to listen to music and



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        Despite having neither seen the flashing lights nor heard the blaring siren,
Willis raced away from Officer Richards. Indeed, the video shows that he covered

the 4.8 miles between the intersections of Z-Horse Charters and South East Avenue
B in just 3 minutes and 3 seconds—at a blur-inducing average speed of 94.43 mph.
And while he slowed through downtown, he continued passing vehicles. To do so,
he swerved across the double yellow line, thereby forcing oncoming traffic to take
evasive action to avoid a collision. 6
        After slaloming through downtown, Willis climbed the Carrabelle Bridge at
about 65 mph. Upon summiting this very high bridge, he saw a patrol vehicle
blocking oncoming traffic. But traffic in his lane continued to move, so he didn’t
stop.
        This roadblock had been set up by Lawrence Brannon, a Franklin County
deputy sheriff. He had been in frequent radio contact with Officer Richards as he
chased Willis through Carrabelle. After Willis and Officer Richards passed, he

joined the chase.




his motorcycle was very loud. Here, we credit his testimony without deciding whether the video
renders this account too fantastic to believe.
        6
          Willis says that he did not force any vehicles off the road; he infers that they exited the
roadway in response to Officer Richards’s emergency lights—the same lights that he never saw.
         This inference, however, is unreasonable, and we reject it. Regardless of the reason—
whether to avoid a collision or to comply with state law—the other vehicles were driven from the
roadway by Willis’s reckless riding and unlawful failure to stop. Even if he did not know that
officers were pursuing him, the fact remains that his driving put the public in danger of loss of
life or property.




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      Willis cleared the bridge and continued riding recklessly. He opened the
throttle, increasing his speed. He passed vehicles in no-passing zones. He passed

vehicles using the right shoulder. And he eventually disappeared from the
pursuing officers’ sight.

                                          C.

      Randall “Duane” Cook, a Franklin County deputy, had been monitoring the
Willis pursuit by radio. Not long after Deputy Brannon joined the chase, he
radioed Deputy Cook and said, “He ain’t gonna stop, Duane. If you want to, try to
shoot his tire out.” Doc. 46-1 at counter 352-18. To stop Willis, Deputy Cook set
up a roadblock in the Yellow Hill area of Franklin County. Just west of a bend, he

parked his patrol car with its lights flashing in the middle of the road.
      As for what happened next, Willis and Deputy Cook offer radically different
accounts. For purposes of our review, however, we accept Willis’s version.

      Willis testified that after spotting the roadblock, he slowed (from around 70
mph to around 50 mph) and prepared to stop. As he got closer, he saw Deputy
Cook standing behind his patrol car pointing a shotgun at him. The deputy then

fired twice, sending two 12-gauge slugs in his direction. While neither he nor his
bike were struck, Willis feared for his life. So instead of stopping, he took off as
fast as he could (about 115 mph).
      Deputy Cook then returned to his patrol car and joined Officer Richards and
Deputy Brannon in their high-speed pursuit of Willis.




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                                          D.

      At the behest of Deputy Cook, Apalachicola police officers Steve James and
Chet Turner set up a roadblock at the base of the John Gorrie Memorial Bridge.
The roadblock consisted of two marked patrol SUVs parked nose-to-nose across
the highway. As positioned, there was a gap of less than three feet between the
vehicles and a gap of about five feet between each vehicle’s rear bumper and the

bridge’s guardrail.
      In Willis’s version of events, as he traversed the half-mile straightway
before the roadblock, Captain James and Sergeant Turner were positioned on the
far side of their vehicles. Each leaned on the hood of his vehicle, weapon in hand:
Captain James aimed his taser while Sergeant Turner targeted his service sidearm.
As he approached, the officers gave no hand signals, nor did they appear to give
any commands. Even so, he slowed to around 50 mph, sat up, and prepared to
stop. At that point, he saw that the officers had their weapons trained on him.
      Afraid that they were going to fire at him, Willis decided to try to shoot the
gap between the vehicles. He failed. Right before the gap, the prongs from
Captain James’s taser struck him. His muscles convulsed, and his bike clipped the
front of Sergeant Turner’s SUV. He then crashed, skidding up the roadway on the
bridge. When he finally came to a stop, he had suffered significant injuries for
which he was airlifted to the hospital.




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                                             III.

       In his complaint, Willis alleged that Captain James and Sergeant Turner
violated his Fourth Amendment rights and that the City of Apalachicola was
deliberately indifferent to this violation. He also alleged that Deputies Brannon
and Cook violated his Fourteenth Amendment rights and that Sheriff Mock was
deliberately indifferent to this violation. The district court concluded that no

constitutional violation occurred and thus granted summary judgment to the
Defendants on all counts. For the reasons below, we conclude that the district
court’s grant of summary judgment was not reversible error.

                                              A.

       Willis contends that the district court erred in granting summary judgment to
Captain James and Sergeant Turner on his Fourth Amendment excessive-force
claim. 7 We disagree.

                                              1.

       “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.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). To
prevail on a Fourth Amendment excessive-force claim, the plaintiff must show


       7
         In his complaint, Willis averred that Captain James and Sergeant Turner’s conduct also
violated his Fourteenth Amendment rights. On appeal, he admits that his § 1983 claim against
them is governed by the Fourth Amendment’s reasonableness standard because he was “seized”
within the meaning of the Fourth Amendment.




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both that a seizure occurred and the force used was unreasonable. See Troupe v.
Sarasota Cnty., Fla., 419 F.3d 1160, 1166 (11th Cir. 2005).

      A “seizure” for Fourth Amendment purposes occurs when “there is a
governmental termination of freedom of movement through means intentionally
applied.” Brower v. County of Inyo, 489 U.S. 593, 597, 109 S. Ct. 1378, 1381
(1989) (emphasis omitted). A person who crashes into a law-enforcement
roadblock and thus comes to a stop has been “seized” within the meaning of the
Fourth Amendment. See id. at 599, 109 S. Ct. at 1382 (“It was enough
here . . . that according to the allegations of the complaint, [the plaintiff] was meant
to be stopped by the physical obstacle of the roadblock—and that he was so
stopped.”).
       “The ‘reasonableness’ inquiry in an excessive force case is an objective
one: the question is whether the officer’s actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting him, without regard to his

underlying intent or motivation.” Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004) (emphasis added). As a result,
the question whether Captain James and Sergeant Turner acted unconstitutionally

must be answered from the perspective of a reasonable officer standing in their
shoes at that time. E.g., Lee, 284 F.3d at 1197.

      The “reasonableness” of a particular use of force must be judged from the
      perspective of a reasonable officer on the scene, rather than with the 20/20
      vision of hindsight. . . . 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
      changing—about the force that is necessary in a particular situation.

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Troupe, 419 F.3d at 1168 (quoting Menuel v. City of Atlanta, 25 F.3d 990, 996
(11th Cir. 1994)).

                                         2.

      Here, the district court correctly concluded that Willis was seized for Fourth

Amendment purposes when he crashed into the roadblock set by Captain James
and Sergeant Turner. The district court thus erred by granting summary judgment
to them only if a reasonable jury could conclude that setting up the roadblock or
tasing Willis was unreasonable under the circumstances.
      Willis asserts that a reasonable jury could reach such a conclusion. In his
view, the jury could infer that the roadblock was set up to entice him to enter the

space between the vehicles so that Captain James could tase him, thus throwing
him off balance and causing him to crash in a way that was certain to result in
death or serious injury. As support, he points to Deputy Cook’s request that the

officers construct the roadblock at the base of Gorrie Bridge “so he ain’t got no
way to go around.” We are unpersuaded by this argument.
      For starters, Willis’s hypothesis that the officers set up the roadblock

intending to lure him into a trap is based on nothing more than rank speculation.
But speculation is not a substitute for evidence and cannot be used to stave off
summary judgment.
      Next, even if setting up the roadblock so that Willis had no way around or
tasing him constituted the use of deadly force, this alone does not render the
officers’ conduct constitutionally unreasonable. This is because even the



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intentional use of deadly force does not necessarily violate the Fourth Amendment.
See Scott, 550 U.S. at 383, 127 S. Ct. at 1778 (“Whether or not [the officer’s]

actions constituted application of ‘deadly force,’ all that matters is whether [his]
actions were reasonable.”); see also Beshers v. Harrison, 495 F.3d 1260, 1268
(11th Cir. 2007) (holding that “if [the officer] intentionally used deadly force to
seize [the plaintiff], the use of force was reasonable” under the circumstances).
      The use of deadly force can be constitutionally reasonable where a driver
“intentionally placed himself and the public in danger by unlawfully engaging in
the reckless, high-speed flight” from law enforcement. E.g., Scott, 550 U.S. at
384, 127 S. Ct. at 1778; Beshers, 495 F.3d at 1268. That is the case here. This is
true whether or not Willis knew that he was being chased by multiple officers from
multiple jurisdictions across multiple counties. The fact is Willis’s riding put
himself and the public at risk or loss of life or property. And because the Fourth
Amendment’s reasonableness inquiry is conducted from the officers’ perspective,

not Willis’s, see Troupe, 419 F.3d at 1168, it is irrelevant whether he decided to
barrel through the roadblock and continue his headlong flight because he
reasonably believed that the officers were going to fire their weapons at him.

      In sum, we conclude that Captain James and Sergeant Turner’s conduct did
not violate Willis’s Fourth Amendment rights and, therefore, the district court’s
grant of summary judgment as to them will be affirmed.




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                                            B.

       To establish municipality liability under § 1983, a plaintiff must show “a
direct causal link between a municipal policy or custom and the alleged
constitutional violation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct.
1197, 1203 (1989). But “an inquiry into a governmental entity’s custom or policy
is relevant only when a constitutional deprivation has occurred.” Rooney v.

Watson, 101 F.3d 1378, 1381 (11th Cir. 1996).
       Here, neither Captain James nor Sergeant Turner violated Willis’s
constitutional rights. So Willis’s claim against the City of Apalachicola fails. See
City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 1573 (1986)
(holding that neither the city nor its police commission had any § 1983 liability
where the jury found that a police officer had not violated the plaintiff’s
constitutional rights). Accordingly, we conclude that the district court did not err
in granting summary judgment to the city.

                                            C.

       Willis contends that the district court erred in granting summary judgment to
Deputies Brannon and Cook on his Fourteenth Amendment excessive-force claim. 8

Again, we disagree.



       8
         In his complaint, Willis averred that Deputies Brannon and Cook’s conduct also
violated his Fourth Amendment rights. On appeal, he admits that his § 1983 claim against them
is governed by the Fourteenth Amendment’s shocks-the-conscience standard because he was not
“seized” within the meaning of the Fourth Amendment.




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                                         1.

      Outside of the Fourth Amendment “search” or “seizure” context, the
Supreme Court has recognized that an excessive-force claim may be based on
substantive due process under the Fourteenth Amendment. See County of
Sacramento v. Lewis, 523 U.S. 833, 843–45, 118 S. Ct. 1708, 1715–16 (1998).
This protection, however, shields individuals from only arbitrary and oppressive

uses of force. Carr v. Tatangelo, 338 F.3d 1259, 1271 (11th Cir. 2003). Put
simply, “only the most egregious official conduct can be said to be ‘arbitrary in the
constitutional sense.’” Lewis, 523 U.S. at 846, 118 S. Ct. at 1716 (quoting Collins
v. Harker Heights, 503 U.S. 115, 129, 112 S. Ct. 1061, 1071 (1991)). For this
reason, the standard governing Fourteenth Amendment excessive-force claims is
“shocks the conscience.” Id., 118 S. Ct. at 1717. “The standard for showing
excessive force in violation of the Fourteenth Amendment, therefore, is higher than
that required to show excessive force in violation of the Fourth Amendment.”
Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009).
      The Supreme Court has indicated that “conduct intended to injure in some
way unjustifiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level.” Lewis, 523 at 849, 118 S. Ct. at
1718 (emphasis added); see also Carr, 338 F.3d at 1271. If the conduct was
“malicious[ ] and sadistic[ ]” and done “for the very purpose of causing harm,”
Cockwell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (quoting Whitley v.

Albers, 475 U.S. 312, 320–21, 106 S. Ct. 1078, 1085 (1986) (internal quotation




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mark omitted)), then it “necessarily shocks the conscience,” id. Otherwise, it does
not.

                                           2.

         We agree with the district court’s finding that Willis’s Fourteenth

Amendment excessive-force claim fails because he “presented no evidence to
suggest that the actions of [Deputies] Brannon and Cook were motivated by
anything other than the desire to stop [his] reckless driving, his high-speed flight
from police, and his concomitant endangerment of the motoring public.” Doc. 52
at 11.
         On appeal, Willis does not even address how Deputy Brannon allegedly

violated his constitutional rights; instead, he focuses on Deputy Cook’s actions.
According to Willis, Deputy Cook, while safely behind his patrol car, which was
parked in the middle of the road to create a roadblock, fired two shots at him as he

was slowing down and preparing to stop at the roadblock. Willis declares that this
conduct satisfies Lewis’s shock-the-conscience test because it was done to cause
him harm rather than to serve a legitimate law-enforcement purpose.

         But Willis’s declarations, no matter how adamant, are not a substitute for
evidence. More importantly, even if Deputy Cook fired his shotgun at him, the use
of deadly force does not necessarily satisfy the Fourth Amendment’s excessive-
force standard, see Scott, 550 U.S. at 383, 127 S. Ct. at 1778, much less the more
stringent standard under the Fourteenth Amendment, see Fennell, 559 F.3d at
1217.



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      Finally, Willis offers no evidence suggesting that Deputy Cook’s actions
were motivated by anything other than the law-enforcement purpose of ending

Willis’s dangerous, high-speed ride. See Vaughan, 343 F.3d at 1333.
      At bottom, even when Willis’s evidence is credited and reasonable
inferences therefrom are drawn in his favor, no reasonable jury could conclude that
Deputies Brannon and Cook violated his Fourteenth Amendment rights.
Accordingly, the district court’s grant of summary judgment as to them will be
affirmed.

                                         D.

      “[S]upervisors are liable under § 1983 ‘either when the supervisor
personally participates in the alleged constitutional violation or when there is a
causal connection between actions of the supervising official and the alleged
constitutional violation.’” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir.

2010) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)).
A supervisor, however, cannot be liable under § 1983 “unless the supervised
official committed an underlying violation of a constitutional right.” Myers, 713

F.3d at 1328.
      Here, Deputies Brannon and Cook did not violate Willis’s constitutional
rights. So Willis’s § 1983 claim against Sheriff Mock fails. See Case v. Eslinger,

555 F.3d 1317, 1328 (11th Cir. 2009) (affirming summary judgment granted to the
county sheriff on a § 1983 claim because the plaintiff failed to show that the




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supervised officer violated his constitutional rights). According, we conclude that
the district court did not err in granting summary judgment to Sheriff Mock.

                                       IV.

      Having carefully considered the record in this case, we conclude that there is

no merit to any of the arguments made by Willis. Accordingly, we affirm the
district court’s grant of summary judgment.
      AFFIRMED.




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