                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        FEB 27, 2012
                                         No. 11-10771
                                                                         JOHN LEY
                                   ________________________
                                                                          CLERK

                       D. C. Docket No. 5:09-cv-00026-LGW-JEG

MARTHA HOYT,
Individually, and as Administrator of the
Estate of James Christopher Allen,
JAMES ALLEN,

                                                                       Plaintiffs - Appellees,

                                            versus

BERNARD COOKS,
In his individual capacity,
RANDY T. HARKLEROAD,
In his individual capacity,

                                                                   Defendants - Appellants.
                                   ________________________

                       Appeal from the United States District Court
                          for the Southern District of Georgia
                            _________________________
                                  (February 27, 2012)

Before EDMONDSON and ANDERSON, Circuit Judges, and EDENFIELD,*
District Judge.
________________
       * Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
ANDERSON, Circuit Judge:

      In May 2007, Bacon County Deputy Bernard Cooks and Alma Police Officer

Randy Harkleroad repeatedly used their Tasers in an attempt to subdue and arrest a

struggling James Christopher Allen (“Allen”), who died shortly thereafter while

being transported to jail. In May 2009, Martha Hoyt and James Allen (“Plaintiffs”)

brought suit individually and on behalf of Allen’s estate. Plaintiffs sued Bacon

County, Georgia; Bacon County Sheriff Richard Foskey; the city of Alma, Georgia;

Alma Police Chief Tom Taggart; Cooks; and Harkleroad (collectively,

“Defendants”). The claims included excessive force, denial of medical care,

violations of the Americans with Disabilities Act, assault, battery, negligence, and

wrongful death.

      After discovery, the district court granted summary judgment to Defendants

on many of the claims. The only claims that survived summary judgment were

Plaintiffs’ excessive force, assault, and battery claims against Cooks and

Harkleroad; and negligence and wrongful death claims against Harkleroad. On the

excessive force action brought under 42 U.S.C. § 1983, the district court denied

qualified immunity to Cooks and Harkleroad. On the state law actions, the district

court denied official immunity under Georgia law. Cooks and Harkleroad have

filed an interlocutory appeal to this Court.

                                           2
                                          I. FACTS1

       At around 2:02 a.m. on May 9, 2007, Cooks was driving his patrol car in

Alma, Georgia, when he received word from dispatch that Allen had called 911

three times from his residence. Allen told the dispatcher that he was being sewn up

in a suit and that demons were trying to get him.

       At around 2:16 a.m., Cooks arrived at Allen’s residence, drove up the

driveway, and rolled down his car’s front driver-side window. While screaming

that demons were trying to get him, Allen ran out of the house towards the patrol

car and yelled that Cooks was a demon who needed to be killed. Allen then lunged

into Cooks’s patrol car through the open window and grabbed at Cooks’s shirt.

Cooks pushed Allen away and moved the patrol car forward to dislodge him.

       Cooks exited his patrol car and asked Allen what he was doing. Allen

repeated that demons were trying to get him and that Cooks was a demon. Cooks

unholstered his model X26 Taser. Allen began crawling towards Cooks, who

retreated to his patrol car and called for assistance at around 2:17 a.m. Allen

continued to crawl towards Cooks, who told Allen to lie down and be still. Allen

       1
                We state the facts based on our own review of the record in the light most
favorable to Plaintiffs. Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996). We gather most
of the facts from the summary that Cooks and Harkleroad gave to Georgia Bureau of
Investigation Special Agent J. Kirk Smith because this is the approach advocated by Plaintiffs
themselves and because we believe that Smith’s account contains the most plaintiff-friendly
version of the facts.

                                               3
obeyed and lay down.

       While waiting for backup to arrive, Cooks had his Taser drawn and made no

effort to arrest Allen, who would occasionally try to get up but would lie down

again when Cooks ordered him to do so. Harkleroad, who had been deputized to

assist Bacon County sheriffs, arrived as back-up at around 2:27 a.m. At that point,

Cooks holstered his Taser, which had not yet been activated, and told Harkleroad

that Allen needed to be handcuffed and taken to jail.

       Cooks repeatedly ordered Allen, who was still lying on the ground, to place

his hands behind his back. However, Allen would place just his one hand behind

his back while keeping the other hand outstretched. Harkleroad got on his knees

and tried to grab Allen’s arms, but Allen continued to resist and would not allow

both arms to be put behind his back.

       Due to the difficulty in trying to handcuff Allen, Cooks unholstered his

Taser, shot a set of flying probes into Allen’s lower back, and discharged the

device.2 The officers again ordered Allen to put both arms behind his back, but he

still kept his arms outstretched, refusing to let the officers handcuff him.3 Cooks

       2
              Cooks’s and Harkleroad’s summaries disagree on the precise order in which they
stunned Allen. We use the version that is most favorable to Plaintiffs.
       3
                Plaintiffs’ expert Melvin Tucker believes that Allen was experiencing “excited
delirium,” a drug-induced condition in which a person tends to exhibit “1. imperviousness to
pain; 2. great strength; 3. hyperthermia; 4. profuse sweating; 5. bizarre behavior; 6. aggression; 7.

                                                  4
then used the Taser against Allen’s leg in “dry stun mode,”4 where the device was

pressed directly against Allen’s skin to produce a burning sensation. Both officers

were on their knees during their attempts to handcuff Allen, but he continued to

roll around on the ground and refused to let the officers grab his arms and handcuff

them. After several dry stuns, the officers were able to get handcuffs on one of

Allen’s hands but were unable to handcuff both hands.

       Allen continued to struggle and to ignore the officers’ commands. Unable to

get Allen to comply, Cooks again used his Taser in dry stun mode on Allen’s leg.

As Cooks tried to complete the handcuffing, Harkleroad unholstered his model

M26 Taser and applied several additional dry stuns to Allen. During the entire

sequence, the officers repeatedly ordered Allen to put his arms behind his back and

tried to complete the arrest. Cooks and Harkleroad decided that their stuns were

not having the desired effect, and the officers ceased using the Tasers. Cooks was



hyperactivity; 8. hallucinations; and 9. confusion and disorientation.” Dkt. 39 at 7-8.
       4
                “Dry stun mode” is also known as “drive stun mode.” Plaintiffs’ expert described
the difference between the probes and dry stun:
        The [Taser] was classified as an electro-muscular disruptor when used to fire
        small probes attached to the weapon with thin wires because, in that mode, it
        overrides the central nervous system and makes muscle control impossible. The
        TASER can also be used as a pain compliance weapon in what is called the “drive
        stun” mode. In the “drive stun” mode, the weapon is pressed against a person’s
        body and the trigger is pulled resulting in pain (a burning sensation) but the “drive
        stun” mode does not disrupt muscle control.
Dkt. 39 at 6-7.

                                                 5
then able to get Allen’s other hand handcuffed by physical force.

      Allen asked why he was handcuffed, to which Cooks responded that Allen

was under arrest for felony obstruction. Allen stated that he did not want to go to

jail. He refused to walk, so Cooks and Harkleroad carried him to Cooks’s car. The

officers searched Allen and found no weapons or drugs. Allen was placed in the

back seat of Cooks’s patrol car, and Cooks secured Allen’s residence.

      With Harkleroad following in his own patrol car, Cooks and Allen departed

the scene en route to the Bacon County Sheriff’s Office at around 2:41 a.m. During

the trip, Allen asked how much longer until they arrived, to which Cooks replied

that it would be a few more minutes. Upon arrival at the Sheriff’s Office, Allen did

not respond when Cooks tried to rouse him. Harkleroad retrieved ammonia

capsules from a nearby EMT, but these also had no effect. Cooks pulled Allen

from the car and found no pulse. CPR was performed, and Allen was then placed

in an ambulance and taken to Bacon County Hospital, but he was pronounced dead

upon arrival. The cause of death was listed as “cocaine-induced excited delirium in

a background of coronary atherosclerotic disease.”

      Cooks said that he had stunned Allen once with the probes and two times in

dry stun mode, although his Taser data download showed that the device had been

activated twelve times. Harkleroad said that he had stunned Allen three times in

                                          6
dry stun mode, but his Taser’s data download showed that it had been activated six

times. The record shows that an “activation” of the Taser does not mean that the

Taser actually touched or stunned Allen. In any event, the more significant fact is

that Allen was tased only once in the prong mode, and that all subsequent tasings

were in the dry stun mode.5

       Cooks stated that Allen had drug problems for the last twelve or thirteen

years. Cooks had been called to Allen’s residence eight or nine times in the past,

usually in the early morning hours when Allen would call 911 and say that he was

seeing demons or was being assaulted. During past encounters, Allen had been

verbally aggressive towards Cooks but had never been physically aggressive.

                                II. QUALIFIED IMMUNITY

       Plaintiffs claim that Cooks and Harkleroad violated the Fourth and

Fourteenth Amendments by using excessive force in their attempt to arrest Allen.

Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). Cooks and Harkleroad argue

that they are entitled to qualified immunity.

       We have jurisdiction over this interlocutory appeal because the case

“presents the ‘core qualified immunity’ analysis of whether the facts, viewed in the


       5
               As discussed below, the record in this case reveals a stark contrast between the
prong mode (which overrides the central nervous system and disrupts muscle control) and the
much less serious dry stun mode (which results merely in pain, a burning sensation).

                                                 7
light most favorable to Plaintiffs, establish that [Cooks and Harkleroad] violated

[Allen’s] constitutional rights.” Grider v. City of Auburn, 618 F.3d 1240, 1253

n.18 (11th Cir. 2010). We review de novo a district court’s resolution of qualified

immunity on summary judgment, taking all facts in the light most favorable to the

non-movants. Lee, 284 F.3d at 1190.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities as long as their conduct violates no clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Id. at 1193-94 (quotations omitted). Qualified immunity is intended

to “allow government officials to carry out their discretionary duties without the

fear of personal liability or harassing litigation, protecting from suit all but the

plainly incompetent or one who is knowingly violating the federal law.” Id. at

1194 (quotations and citations omitted).

      Cooks and Harkleroad must first establish that they were performing

discretionary acts, which is undisputed here. Id. The court must then grant

qualified immunity unless the facts taken in the light most favorable to Plaintiffs

show (1) that there was a violation of the Constitution and (2) that the illegality of

Cooks’s and Harkleroad’s actions was clearly established at the time of the

incident. Id.

                                            8
      The Supreme Court has stated that we have discretion in deciding which of

those two prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.

Ct. 808, 818 (2009). Because we find that the illegality of Cooks’s and

Harkleroad’s behavior was not clearly established at the time, we need not decide

whether there was a constitutional violation. Id.

      The inquiry into whether a right is clearly established “must be undertaken in

light of the specific context of the case, not as a broad general proposition.” Coffin

v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). The right must be “sufficiently

clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987).

“We have said many times that if case law, in factual terms, has not staked out a

bright line, qualified immunity almost always protects the defendant.” Priester v.

City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (quotations omitted). In

determining whether a right is clearly established, we look to the precedent of the

Supreme Court of the United States, of this Court, and of the relevant state’s

highest court. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).

      In this case, there is no precedent that has staked out a bright line. Plaintiffs

produce two cases, but both are inapposite. Plaintiffs’ first case is Draper v.

Reynolds, 369 F.3d 1270 (11th Cir. 2004), where an officer used a single probe-

                                           9
style Taser stun on a truck driver who was “hostile, belligerent, and

uncooperative.” Id. at 1278. However, Draper did not establish that any particular

behavior would violate the Constitution. Indeed, it found that the officer’s actions

were constitutional. Id. Also, Draper is distinguishable, primarily because the

officers in that case were able to handcuff the suspect after just one use of the

Taser, whereas Cooks and Harkleroad were unable to fully handcuff Allen even

after repeated stuns. Id. at 1273-74. Accordingly, Draper did not give Cooks and

Harkleroad fair warning that their behavior would constitute excessive force. See

Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002).

      The only other case Plaintiffs cite to support the argument that the illegality

of Cooks’s and Harkleroad’s actions was clearly established is Oliver v. Fiorino,

586 F.3d 898 (11th Cir. 2009). However, Oliver was issued in October 2009, and

thus it cannot have put Cooks and Harkleroad on notice that their behavior in May

2007 could constitute excessive force. Hope, 536 U.S. at 741, 122 S. Ct. at 2516

(noting that the proper inquiry is “whether the state of the law [on the date of the

incident] gave respondents fair warning that their alleged treatment of [the suspect]

was unconstitutional”). Accordingly, Plaintiffs have produced no caselaw that put

Cooks and Harkleroad on notice that their actions would violate a clearly

established right.

                                          10
       However, Plaintiffs are correct in arguing that a right can be clearly

established even in the absence of caselaw. Priester, 208 F.3d at 926. For there to

be such “obvious clarity” that an officer’s conduct would violate a clearly

established right even in the absence of caselaw, the conduct must have been “so

far beyond the hazy border between excessive and acceptable force that [the

officer] had to know he was violating the Constitution.” Smith v. Mattox, 127 F.3d

1416, 1419 (11th Cir. 1997). This would require that every reasonable officer in

Cooks and Harkleroad’s position would inevitably conclude that the force was

unlawful. Priester, 208 F.3d at 926-27. Oliver was such a case, and Plaintiffs

argue that it is very similar to the facts of this appeal.6

       When determining whether force was excessive and unreasonable, we look

to several factors, including the severity of the crime at issue, whether the suspect

posed an immediate threat, and whether the suspect actively resisted arrest. See

Oliver, 586 F.3d at 905-07. This is done “from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 905.

       6
                Although the Oliver opinion was issued after the incident here, it is relevant
because it held that the conduct of the officers there rose to the level of a constitutional violation
as a matter of obvious clarity. Thus, if the conduct of Cooks and Harkleroad were identical to, or
substantially similar to, the actions condemned in Oliver, then what was a matter of obvious
clarity two years later in Oliver might indicate that such similar actions would also violate clearly
established rights even two years earlier. However, as noted below, the conduct of Cooks and
Harkleroad was neither identical to nor substantially similar to that of the officers in Oliver. See
infra.

                                                  11
      A. Severity of Crime Committed

      In Oliver, Anthony Oliver “was not accused of or suspected of any crime, let

alone a violent one.” Id. at 908. Here, however, Allen had just recently committed

assault and battery on a police officer by lunging through the patrol car window

and grabbing the officer’s shirt while threatening to kill him. Clark v. State, 714

S.E.2d 736, 737 (Ga. Ct. App. 2011) (“Under OCGA § 16-5-20(a), a person

commits the offense of simple assault when he either (1) attempts to commit a

violent injury to the person of another; or (2) commits an act which places another

in reasonable apprehension of immediately receiving a violent injury.”) (quotations

and alterations omitted); Williams v. State, 651 S.E.2d 347, 349 (Ga. Ct. App.

2007) (“In Georgia, a person commits simple battery when he intentionally makes

physical contact of an insulting or provoking nature with the person of another.”)

(quotations and alterations omitted). Besides being an assault and battery on a law

enforcement officer, Allen’s behavior also amounted to obstruction. Long v. State,

583 S.E.2d 158, 159 (Ga. Ct. App. 2003) (“A person commits the offense of

obstruction of a law enforcement officer when he knowingly and willfully obstructs

or hinders any law enforcement officer in the lawful discharge of his official

duties.”) (quotations omitted). Against the background of whether every

reasonable officer would have inevitably concluded that the force was unlawful,

                                          12
this factor weighs in favor of Cooks and Harkleroad. Priester, 208 F.3d at 926-27;

Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (“Generally, more force

is appropriate for a more serious offense and less force is appropriate for a less

serious one.”) (quotations omitted).

       B. Threat Posed

       In Oliver, the decedent “did not act belligerently or aggressively” towards

officers, by-standers, or himself. Oliver, 586 F.3d at 908. Here, however, only a

brief period of time had passed since Allen’s very aggressive actions towards

Cooks. Allen’s acts were contemporaneous with repeated threats to kill Cooks,

whom Allen believed to be a demon. Also weighing against Allen is the fact that

Cooks waited for back-up to arrive so he could have assistance in making the

arrest. Further, Allen continued to pose a danger during the time when only one of

his hands was handcuffed; without both hands shackled, the single handcuff could

be used as a weapon.

       This combination of an assault, battery, very unusual behavior, and threats to

kill Cooks7 would weigh against a conclusion that Cooks’s and Harkleroad’s

behavior was “so far beyond the hazy border between excessive and acceptable


       7
                As noted supra at footnote 3, Plaintiffs’ expert believes that Allen was likely in a
state of “excited delirium,” the symptoms of which include imperviousness to pain, great
strength, bizarre behavior, aggression, and hallucinations.

                                                  13
force” that they had to know they were “violating the Constitution even without

caselaw on point.” Mattox, 127 F.3d at 1419.

      C. Level of Resistance

      In Oliver, the decedent “complied with most of the officers’ directions.”

Oliver, 586 F.3d at 908. Nonetheless, an officer continued to use probe-style stuns

on the decedent “while he was writhing in pain on the hot pavement and after he

had gone limp and immobilized.” Id.

      Here, however, Allen resisted during the entire time that Cooks and

Harkleroad tried to handcuff him. He spread his arms apart to prevent being

handcuffed, and he rolled around to keep his arms from being pulled behind his

back. Even after repeatedly using their Tasers, Cooks and Harkleroad had

considerable difficulty in effecting the arrest. Again, this factor weighs in favor of

finding that the force was not so excessive as to rise to the level of obvious clarity.

      D. Balance of Interests

      Lastly, we consider “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests” against “the countervailing

governmental interests at stake.” Id. at 905. In Oliver, after one probe-style stun,

Oliver was brought to the ground, and after several more stuns, he was lying on the

hot asphalt, screaming in pain. Id. at 903. The officer reloaded another cartridge

                                           14
and stunned him again. Id. Even though Oliver was completely immobilized, he

was subjected to yet another stun. Id. The officers on scene made no attempt to

arrest or subdue him between stuns. Id. at 908.

       The conduct of Cooks and Harkleroad is nothing like the conduct of the

officers in Oliver. There, the officers repeatedly tased Oliver in the probe mode.

Id. at 901 (at least eight times); id. at 903 (in the probe mode). By contrast, Cooks

and Harkleroad tased Allen only once in the probe mode.8 All subsequent

applications were in the dry stun mode, a much less serious application which

(according to Plaintiffs’ own expert witness) does not override the central nervous

system and does not disrupt muscle control. Rather the dry stun mode results only

in pain, a burning sensation. Furthermore, in Oliver, the first stun “brought Oliver

to the ground.” Id. at 903. Although Oliver “never got back up, . . . never hit,

kicked, punched or threatened the officer,” id., the officer tased Oliver twice more

(in the prong mode) after which Oliver was “lying on the scorching hot asphalt

screaming in pain that it was ‘too hot.’” Id. When Oliver “tried to sit up, he

flopped down like a ‘wet cloth’ because he had no control over his body.” Id.



       8
               This first use of the Taser, the only use in the probe mode, was clearly a
reasonable use of force under the instant circumstances, which provide at least as much support
for the Taser use as the circumstances which we held reasonable in Draper, 369 F.3d at 1272-73,
1278.

                                               15
Nevertheless, the officer noticed that one of the Taser wires had become

disconnected from the Taser prong, and the officer “loaded a second cartridge into

her Taser and began tasing Oliver again” three or four more times, and then a final

time after he was “totally immobilized, leaving him clenched up and lying on his

back.” Id. at 903, 908. By contrast, Allen never ceased his vigorous resistance to

the attempts to handcuff him. Cooks testified that the tasing seemed to have no

effect and that Allen never said that the tasing hurt. And the officers here did not

tase Allen, even in the dry stun mode, after Allen ceased resistance, and certainly

not after Allen had lost control of his body (like a “wet cloth”) or was “totally

immobilized.” Finally, the officers in this case, unlike the officers in Oliver,

repeatedly attempted to handcuff Allen between the tasing attempts, but were

unable to do so because of Allen’s continued resistance.

        Thus, the facts in Oliver are so different from the instant facts that the

obvious clarity holding in Oliver falls short of indicating obvious clarity in this

case.

        The government interests at stake here are strong. Cooks and Harkleroad

could not wait indefinitely for Allen to stop resisting or for his strange behavior to

subside. Allen could not be safely transported until he was restrained. We cannot

conclude that clearly established law prevented Cooks and Harkleroad from using

                                            16
their Tasers in the manner used here. Other alternatives, e.g. brute physical force,

also presented dangers both to Allen and the officers.

      Given all of these factors, Cooks’s and Harkleroad’s conduct does not rise to

the level of “obvious clarity,” which would require all reasonable officers to

inevitably conclude that the force used was unlawful. Id.; Priester, 208 F.3d at

926-27. Accordingly, Cooks and Harkleroad are entitled to qualified immunity on

the excessive force claim.

                             III. STATE LAW CLAIMS

      Plaintiffs also argue that Cooks and Harkleroad are liable for assault and

battery, and that Harkleroad is liable for negligence and wrongful death. On these

state law claims, the district court found that Cooks and Harkleroad were not

entitled to official immunity under Georgia law. We review de novo a district

court’s summary judgment denial of official immunity. See Cummings v. DeKalb

Cnty., 24 F.3d 1349, 1352 (11th Cir. 1994); Griesel v. Hamlin, 963 F.2d 338, 341

(11th Cir. 1992).

      A. Assault and Battery

      Under the Constitution of Georgia, Cooks and Harkleroad will have official

immunity for their discretionary acts unless they acted with “actual malice.”

Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996). There is no dispute that their

                                         17
actions were discretionary. “Actual malice” requires “a deliberate intention to do

wrong, and does not include implied malice, i.e., the reckless disregard for the

rights or safety of others. A ‘deliberate intention to do wrong’ such as to constitute

the actual malice necessary to overcome official immunity must be the intent to

cause the harm suffered by [the suspect].” Murphy v. Bajjani, 647 S.E.2d 54, 60

(Ga. 2007) (quotations and citations omitted).

       In this case, no reasonable jury could find that Cooks and Harkleroad used

their Tasers with the deliberate intent to do wrong. As discussed above, the Tasers

were employed during a struggle to arrest Allen, who refused to let his arms be

brought together and handcuffed.

       B. Negligence and Wrongful Death

       Harkleroad argues that he cannot be held liable under Georgia law for any

negligence-based claim resulting from the performance of discretionary acts.9

Plaintiffs concur with Harkleroad on that position–as do we. See Campbell v.

Goode, 695 S.E.2d 44, 45 (Ga. Ct. App. 2010).

                                    IV. CONCLUSION

       For the foregoing reasons the judgment of the district court is reversed, and


       9
                A wrongful death claim is premised upon negligence, so we address it together
with Plaintiffs’ common law negligence claim. See Allrid v. Emory Univ., 303 S.E.2d 486, 488
(Ga. Ct. App. 1983).

                                              18
the case is remanded with instructions that judgment be entered for Cooks and

Harkleroad.

      REVERSED and REMANDED.




                                        19
