CA11: Officer’s second gunshot at a dog not clearly established as excessive force; QI granted, ptf not even a target

Excessive force qualified immunity case: A second gunshot at a dog wasn’t clearly established to be excessive force, and plaintiff wasn’t even a target. Therefore, the officer gets qualified immunity. Corbitt v. Vickers, 2019 U.S. App. LEXIS 20447 (11th Cir. July 10, 2019)*:

In light of these basic principles, we conclude that the district court erred in relying on the general proposition that it is clearly established that the use of excessive force is unconstitutional. The unique facts of this case bear this out. Not only was SDC not the intended target of the arrest operation, he also was not the intended target of Vickers’s gunshot. Both of these facts take this case outside “a run-of-the-mill Fourth Amendment violation.” White, ___ U.S. at ___, 137 S. Ct. at 552. In other words, we are not dealing with “an obvious case,” and no principles emerge from our decisions that speak with “obvious clarity” to the unique and unfortunate circumstances that befell SDC. Indeed, we are unable to identify any settled Fourth Amendment principle making it obviously clear that volitional conduct which is not intended to harm an already-seized person gives rise to a Fourth Amendment violation.

Narrower principles do emerge from our excessive force cases. See, e.g., Vinyard, 311 F.3d at 1348 (finding use of pepper spray on mildly intoxicated and profane misdemeanant constituted “force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham”); Oliver, 586 F.3d at 907-08 (denying qualified immunity where repeated use of Taser on non-threatening subject was “grossly disproportionate to any threat posed” and “any reasonable officer would have recognized that his actions were unlawful”). However, unlike the present facts these cases—along with those cited by our dissenting colleague in support of an almost identical proposition—all involve conduct that was intentional as to the injured plaintiff.

Unlike any prior cases that could clearly establish the law for this case, at the time Vickers fired at the dog, SDC was not the intended target of an arrest or investigatory stop. Nor was he the intended target of Vickers’s shot; rather, he was accidentally hit when Vickers fired at the dog. The Supreme Court’s decision in Brower indicates that a Fourth Amendment violation depends upon intentional action on the part of the officer. …