           Case: 13-15796    Date Filed: 09/17/2014   Page: 1 of 14


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      _________________________

                             No. 13-15796
                      _________________________

                D.C. Docket No. 3:13-cv-00008-MCR-EMT


RONALD JAY,
as guardians of their son,
ELEANOR KYLE MONELL,
as guardians of their son,
DANIEL JACOB MONELL,

                                                            Plaintiffs-Appellees,

                                    versus


JOSHUA KEN HENDERSHOTT,
Deputy #374,

                                                           Defendant-Appellant.


                      __________________________

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

                             (September 17, 2014)
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Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

       Defendant Joshua Hendershott appeals the district court’s denial of his

motion to dismiss on qualified-immunity grounds. At issue before us is whether,

based upon the facts alleged in the complaint, Hendershott’s use of a police canine

to effectuate an arrest of Daniel Jacob Monell constituted excessive force under

clearly established law. Because we conclude that Monell and his parents have not

alleged the violation of a right that was clearly established at the time of the arrest,

we reverse the district court’s order.

                                              I.

       On January 8, 2009, at approximately 10:30 p.m., an off-duty Panama City

police officer spotted Plaintiff Daniel Jacob Monell stopped in his vehicle in the

middle of the Blue Angel Parkway in Escambia County, Florida. 1 The officer

approached Monell and attempted to communicate with him to see if Monell

required any assistance. When Monell failed to respond to the officer’s inquiries,

the officer notified the Escambia County Sheriff’s Office that a vehicle was parked

on the highway and that the driver was uncommunicative.




       1
         These facts are drawn from the Second Amended Complaint and are deemed to be true
for purposes of this appeal. See Grossman v. Nationsbank, N.A., 225 F.3d 1229, 1231 (11th Cir.
2000) (per curiam).
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      Shortly thereafter, Defendant Joshua Hendershott and another officer

responded to the scene. Upon their arrival, Monell started his car and began to

drive away slowly. The officers followed Monell and activated their emergency

lights and sirens to have him pull over. Monell ignored the officers’ commands to

stop his vehicle and continued to drive away at approximately 15 to 20 miles per

hour, well below the posted speed limit. Monell did not drive erratically and

committed no other violations other than failing to pull over.

      Hendershott and the other officer with him notified dispatch that they were

in pursuit of a driver who was operating his vehicle in an impaired manner.

Following this, at least ten to fifteen officers responded to the area, including some

in a police helicopter.   The officers then “engaged in high-speed driving from

intersection to intersection blocking each intersection as Monell drove by.” After

running Monell’s vehicle-registration information, the officers discovered that

Monell was driving towards his residence.

      As Monell approached his residence, Hendershott began to “agitate and

stimulate” his police canine to prepare the dog to subdue Monell. Monell, who

remained unresponsive to the officers’ directives, opened his garage door from

within his vehicle, got out of the car, and walked towards the garage. Although he

displayed no outward hostility or violent behavior towards any of the officers,

Monell completely ignored the officers’ presence and again failed to heed their

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warnings to stop. As Monell walked towards the open garage and away from

police, Hendershott directed the canine to apprehend Monell, who sustained

“serious injuries” as a result. 2

                                                 II.

       Monell’s parents and legal guardians, Ronald Jay and Eleanor Kyle Monell,

filed a civil-rights suit on Monell’s behalf stemming from Monell’s arrest,

claiming, among other things, that the deployment of the police canine constituted

excessive force in violation of Monell’s Fourth Amendment rights.                     Hendershott

moved to dismiss the Second Amended Complaint on the basis of qualified

immunity. The district court denied Hendershott’s motion, concluding that the use

of the canine was objectively unreasonable and disproportionate to the need for

force and that clearly established law at the time of the incident would have

informed a reasonable officer that such force was excessive. Because we disagree

that the law on this issue was clearly established, we reverse the district court’s

denial of qualified immunity.

                                                III.




       2
          Monell was subsequently arrested and prosecuted in state court for a felony but was
found not guilty by reason of insanity. Monell, who has a long history of emotional and
psychiatric problems, was declared incompetent by the Escambia County Circuit Court on May
18, 2012. His parents, Appellee-Plaintiffs here, were appointed his legal guardians. Monell was
living with his parents at the time of the incident. Plaintiffs do not allege that Hendershott or any
of the arresting officers had actual knowledge of Monell’s history of mental illness.
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      The Court reviews de novo a district court’s denial of a motion to dismiss on

the basis of qualified immunity. Flores v. Satz, 137 F.3d 1275, 1277 (11th Cir.

1998) (per curiam). “A motion to dismiss a complaint on qualified immunity

grounds will be granted if the ‘complaint fails to allege the violation of a clearly

established constitutional right.’” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199

(11th Cir. 2007) (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th

Cir. 2002)). In ruling on a motion to dismiss, the Court accepts the non-conclusory

factual allegations in the complaint as true and construes them in the light most

favorable to the plaintiff. Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs.

for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).

                                         IV.

      “Qualified immunity offers complete protection for individual public

officials performing discretionary functions insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th

Cir. 2012) (quoting Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (per

curiam)) (internal quotation marks omitted). To obtain qualified immunity, a

defendant must establish that he was acting within the scope of his discretionary

authority when the alleged violation occurred. Oliver v. Fiorino, 586 F.3d 898,

905 (11th Cir. 2009).

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      Here, it is undisputed that Hendershott was acting within his discretionary

authority when Monell was arrested, so the burden shifts to Plaintiffs to show that

Hendershott committed a violation of Monell’s constitutional right and that the

right was “clearly established” at the time of the incident. See Randall v. Scott,

610 F.3d 701, 715 (11th Cir. 2010). In applying this two-part inquiry, we have

discretion to address either prong first. See Pearson v. Callahan, 555 U.S. 223,

236, 129 S. Ct. 808, 818 (2009). Here, because we conclude that Plaintiffs’ Fourth

Amendment claim is one “in which it is plain that a constitutional right [was] not

clearly established,” id. at 237, 129 S. Ct. at 818, we address only the second

prong of the qualified-immunity analysis and do not reach the issue of whether the

complaint sufficiently alleges a constitutional violation.

      To determine whether a right was clearly established at the time of the

alleged violation, the Court must consider “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (internal quotation marks

omitted). This Circuit uses two methods to evaluate whether a reasonable officer

would know that his conduct is unconstitutional.

      The first method “looks at the relevant case law at the time of the violation;

the right is clearly established if ‘a concrete factual context [exists] so as to make it

obvious to a reasonable government actor that his actions violate federal law.’”

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Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011) (alterations in

original) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1333 (11th Cir. 2008)).

While the facts need not be identical, “the unlawfulness of the conduct must be

apparent from pre-existing law.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir.

2011); see also Gennusa v. Canova, 748 F.3d 1103, 1113 (11th Cir. 2014) (“We do

not always require a case directly on point before concluding that the law is clearly

established, but existing precedent must have placed the statutory or constitutional

question beyond debate.” (internal quotation marks omitted)). In the context of

excessive-force claims, we have previously noted that “generally no bright line

exists for identifying when force is excessive.” Priester v. City of Riviera Beach,

208 F.3d 919, 926 (11th Cir. 2000).           Therefore, “unless a controlling and

materially similar case declares the official’s conduct unconstitutional, a defendant

is usually entitled to qualified immunity.” Id.

      The second method “looks not at case law, but at the officer’s conduct, and

inquires whether that conduct ‘lies so obviously at the very core of what the Fourth

Amendment prohibits that the unlawfulness of the conduct was readily apparent to

[the officer], notwithstanding the lack of fact-specific case law.’” Fils, 647 F.3d at

1291 (alterations in original) (quoting Vinyard, 311 F.3d at 1355). Referred to as

“obvious clarity,” this method creates a narrow exception to the general rule

requiring particularized case law to determine whether a right is clearly

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established. Id. To fall within this exception, the officer’s conduct must have been

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

official] had to know he was violating the Constitution even without caselaw on

point.” Priester, 208 F.3d at 926 (alteration in original) (quoting Smith v. Mattox,

127 F.3d 1416, 1419 (11th Cir. 1997) (per curiam)) (internal quotation marks

omitted). Under this test, the Court must determine whether application of the

excessive-force standard “would inevitably lead every reasonable officer in [the

defendant’s] position to conclude that the force was unlawful.”          Id. (internal

quotation marks omitted).

      The facts alleged in the Second Amended Complaint, even when viewed in

the light most favorable to Plaintiffs, are insufficient to make the required showing

under either method.

                                         A.

      First, we agree with the district court that no case from the Supreme Court,

the Eleventh Circuit, or the Florida Supreme Court is “on all fours” with the facts

alleged in this case. Nor have Plaintiffs identified—and we could not find—any

case materially similar to this one. In this Circuit, at one end of the spectrum, we

have previously held that the use of a police canine to subdue a suspect is

objectively reasonable where the suspect is wanted for the commission of a serious

crime, actively flees from police, resists arrest, and is reasonably believed to be

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armed and dangerous. See Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir.

2009) (per curiam). By contrast, at the other end, we have held that such force,

when employed against an individual who presents no safety risk and is fully

compliant with officers’ commands, is excessive under the Fourth Amendment.

See Priester, 208 F.3d at 927. Here, however, we are faced with an individual

who, though neither outwardly aggressive nor hostile, failed to comply with any

instructions from law enforcement, was still actively evading police when the

canine was released, and was approaching both an open garage with unknown

items inside and a house with people inside. As we have never before addressed

whether the deployment of a canine under these particular circumstances is

unconstitutional, our case law is insufficient to put officers on notice as to whether

the conduct alleged violates the Fourth Amendment.

      In denying Hendershott qualified immunity, the district court relied

primarily on our decision in Priester, concluding that clearly established law at the

time of Monell’s arrest would have informed a reasonable officer that the force

allegedly employed was unconstitutional. We do not agree that Priester, which

was decided on vastly different facts, compels this conclusion.

      In Priester, law-enforcement officers used a police canine to track and

apprehend a burglary suspect. 208 F.3d at 923. When the officers happened upon

the plaintiff, the plaintiff raised his hands in submission and, without resistance,

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complied with the officers’ commands to lie down on the ground. Id. While the

plaintiff was lying prostrate, cooperating with the officers, the officers gratuitously

ordered the dog to attack him and allowed the dog to bite him for at least two

minutes. Id. Under these circumstances—where the plaintiff submitted to police

authority, did not attempt to flee or resist arrest, and posed no apparent threat to

officer safety or to the safety of anyone else—we held that “no particularized

preexisting case law was necessary for it to be clearly established that [the

defendant] violated Plaintiff’s constitutional right to be free from the excessive use

of force.” Id. at 927.

      Although Priester was decided on obvious-clarity grounds, in denying the

officers qualified immunity, we considered the facts pursuant to the excessive-

force standard embodied in Graham v. O’Connor, 490 U.S. 386, 109 S. Ct. 1865

(1989). Priester, 208 F.3d at 924. Graham dictates that the reasonableness of the

force used by law enforcement during the course of an arrest must be measured by

the severity of the crime, the danger to the officer, and the risk of flight. See

Graham, 490 U.S. at 396, 109 S. Ct. at 1865; Lee v. Ferraro, 284 F.3d 1188, 1198

(11th Cir. 2002).

      Applying these factors in Priester, we noted that the plaintiff, who was

suspected of stealing a mere $20 worth of snacks from a golf shop, “submitted

immediately to the police” and complied with officers’ instructions to get down on

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the ground. Priester, 208 F.3d at 927. Moreover, the plaintiff “did not pose a

threat of bodily harm to the officers or to anyone else” and “was not attempting to

flee or to resist arrest.” Id.    Given these “straightforward circumstances,” we

concluded that “no reasonable officer could believe that this force was

permissible.” Id.

        Here, we are confronted with an entirely distinct factual scenario. Unlike

the plaintiff in Priester, Monell completely failed to obey the officers’ repeated

commands to stop and made no attempt to cede to the officers’ authority. Indeed,

he remained totally unresponsive throughout the entire encounter, which occurred

over an extended period and at different venues. And, although the complaint

alleges that Monell was neither hostile nor belligerent, he single-mindedly

continued to approach his open garage over officers’ numerous commands that he

stop.   In light of Monell’s lengthy period of noncompliance, his unwavering

resolve to enter the garage, and his unusual behavior, officers had no way of

knowing Monell’s purpose in going into the garage, whether weapons awaited him,

or whether Monell intended to enter the house and possibly take hostages. As a

result, the potential danger of the situation, particularly when viewed against

Monell’s unresponsiveness—two material circumstances that did not exist in

Priester—renders Priester uninstructive in this case.

                                          B.

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      Nor do the facts of this case fall within the scope of the obvious-clarity

exception. As noted above, in evaluating whether an officer’s use of force was

excessive and unreasonable, we consider the Graham factors. Graham, 490 U.S.

at 396, 109 S. Ct. at 1865; Lee, 284 F.3d at 1197–98. Even in the absence of case

law, a right can be clearly established—and qualified immunity overcome—if

application of these factors would inevitably lead every reasonable officer in the

defendant’s position to conclude that the force was unlawful. See Hoyt v. Cooks,

672 F.3d 972, 978 (11th Cir. 2012). In considering these factors, we emphasize

that the reasonableness of the force employed must be judged from the perspective

of a reasonable officer on the scene, “rather than with the 20/20 vision of

hindsight.” Crenshaw, 556 F.3d at 1291 (quoting Graham, 490 U.S. at 396, 109 S.

Ct. at 1872) (internal quotation marks omitted).         Notably, “[t]he 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 evolving—about the amount of force that is necessary in a particular

situation.” Graham, 490 U.S. at 396–97, 109 S. Ct. at 1872.

      Applying the Graham factors to the facts at hand, we conclude that

Hendershott’s use of the police canine to subdue Monell does not so plainly

traverse the “hazy border” between unconstitutional and permissible force as to

rise to the level of obvious clarity. While the officers’ initial pursuit of Monell was

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not precipitated by Monell’s commission of a serious offense, the facts alleged in

the complaint indicate that Monell was altogether uncooperative, and officers

reasonably could have believed that Monell posed a significant threat to officer

safety and to the safety of others.

      Plaintiffs appear to suggest that the absence of any overt aggression by

Monell, coupled with the fact that Monell suffers from mental illness, somehow

nullified this risk, but the facts do not lend themselves quite so easily to that

conclusion. The officers on the scene were faced with an individual who led police

on a lengthy pursuit, refused to pull over despite the arrival of multiple police cars

with lights flashing and sirens blaring, ignored officers’ numerous orders to halt,

and attempted to enter an open garage that could have contained weapons and a

residence that could have held potential hostages.        Particularly when viewed

against the background of Monell’s extended unresponsive and unusual conduct,

we cannot say that it should have been obvious to every reasonable officer that

Monell’s conduct and the potential danger of the situation did not call for the force

used. While we do not opine at this juncture as to whether Hendershott’s alleged

use of force was unconstitutional, we do not believe that the conduct at issue was

so “wholly unnecessary” or “grossly disproportionate” as to blatantly cross the line

of constitutionality in the absence of any case law on point. See Lee, 284 F.3d at




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1199.       As a result, as the complaint is currently pled, qualified immunity should

not have been denied to Hendershott.



                                                 V.

        Because Plaintiffs’ Second Amended Complaint fails to allege a clearly

established excessive-force violation, the district court’s denial of Hendershott’s

qualified-immunity defense is REVERSED. 3




        3
         Our opinion does not preclude Plaintiffs from seeking leave to amend their complaint,
should they desire to do so, or the district court from granting such relief, should it determine it
to be appropriate.
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