Albemarle Paper Company and Halifax Local No. 245, United Papermakers and Paperworkers, AFL-CIO v. Moody Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae 2

    _________________ No. __________________

In  T he

Supreme Court of tfye ®mteti States

GLAD IS CALLWOOD, AS ADMINISTRATRIX OF 
THE ESTATE OF KHARI NEVILLE ILLIDGE,

Petitioner,
v.

JAY JONES, et al,
Respondents.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Sh e r r ily n  A. Ifill  
Director-Counsel 

Ja n a i S. N elson  
Sa m u e l  Spital  
J in  H ee L ee
NAACP L eg al  D efe n se  & 

Ed u c a tio n a l  Fu n d , In c . 
40 Rector Street 
5th Floor
New York, NY 10006

D a n ie l  S. Ha r a w a * 
NAACP L e g a l  D e fen se  & 

Ed u c a tio n a l  Fu n d , Inc  
1444 I Street NW 
10th Floor
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Petitioner 
Gladis Callwood

May 18, 2018 *Counsel of Record
(Continued on inside cover)

mailto:dharawa@naacpldf.org


Sa m u e l  F ish e r  
S id n e y  M . Ja c k s o n  
W ig g in s , Ch il d s , Pa n t a z is , 

F is h e r , & G o l d f a r b , 
LLC

301 19th Street North 
Birmingham, AL 32503

J o h n  Pa u l  S c h n a p p e r - 
Ca ste r a s
S c h n a p p e r -Ca ste r a s

PLLC
1117 10th Street NW, #W7 
Washington, DC 20001



QUESTION PRESENTED
Tennessee v. Garner, 471 U.S. 1, 8 (1985), and 

Graham v. Connor, 490 U.S. 386, 395 (1989), held 
that in evaluating a Fourth Amendment excessive 
force claim, there must be a “governmental interest” 
in how an arrest is “carried out.” Garner and Graham 
clearly establish that police cannot use force that 
serves no purpose. And applying this established rule, 
most circuits have held that police officers are not 
entitled to summary judgment on excessive force 
claims if there is evidence that they used force for no 
legitimate reason.

Khari Illidge—who police believed was suffering 
a mental health crisis—was naked, unarmed, face­
down on the ground, with two officers on him. As the 
two officers were trying to handcuff Mr. Illidge, 
another tased him thirteen times. He died. One of the 
officers testified that by the time Mr. Illidge was on 
the ground, the additional tases served no purpose 
other than to “inflict pain” and “shut down [Mr. 
Illidge’s] nervous system.” Without acknowledging 
that testimony, the Eleventh Circuit held the officers 
were entitled to summary judgment on a claim of 
excessive force because their conduct did not violate 
clearly established law. The Fourth, Sixth, and 
Seventh Circuits reached the opposite conclusion 
when denying/reversing summary judgment under 
closely analogous facts.

The question presented is:
Were police officers entitled to summary 

judgment on a claim of excessive force when there was 
evidence in the record—which the Eleventh Circuit 
overlooked—establishing that the deadly tases police



11

administered against Mr. Illidge served no purpose 
other than to inflict pain?



I l l

PARTIES TO THE PROCEEDINGS
Petitioner Gladis Callwood, as Administratrix of 

the Estate of Khari Neville Illidge, was plaintiff- 
appellant in the court of appeals.

Respondents, who were defendant-appellees in 
the court of appeals, are

Jay Jones, Sheriff for Lee County, Alabama;
Charles H. Jenkins, Deputy Sherriff for Lee 

County, Alabama;
Steven M. Mills, Deputy Sherriff for Lee County, 

Alabama;
Ray Smith, Deputy Sherriff for Lee County, 

Alabama;
Joey Williams, Phenix City, Alabama, Police 

Officer;
David Butler, Phenix City, Alabama, Police 

Officer;
Shawn Sheely, Phenix City, Alabama, Police 

Officer;
Phenix City, Alabama, a municipal corporation.1

1 Before this Court, Ms. Callwood challenges the dismissal of her 
claims against Ray Smith, Steven Mills, and David Butler.



IV

CORPORATE DISCLOSURE STATEMENT
Counsel for Gladis Callwood, the NAACP Legal 

Defense and Educational Fund, Inc., is a non-profit 
organization that has not issued shares of stock or 
debt securities to the public and has no parent 
corporation, subsidiaries, or affiliates that have 
issued shares of stock or debt securities to the public.



V

TABLE OF CONTENTS

QUESTION PRESENTED............................................ i

PARTIES TO THE PROCEEDING............................iii

CORPORATE DISCLOSURE STATEMENT......... iv

TABLE OF AUTHORITIES..................................... viii

OPINIONS BELOW....................................................... 1

JURISDICTION..............................................................1

CONSTITUTIONAL PROVISION AND 
STATUTE INVOLVED..................................................2

INTRODUCTION..........................................   3

STATEMENT OF THE CASE......................................4

A. Police First Encounter Mr. Illidge..................5

B. Mr. Illidge’s Arrest and Death........................7

C. Proceedings Below......................................... 12

PAGE(S)

1. District Court Proceedings 12



VI

2. Eleventh Circuit Proceedings................14

REASONS FOR GRANTING THE PETITION 15

I. THE ELEVENTH CIRCUIT’S DECISION IS
INCONSISTENT WITH GARNER AND 
GRAHAM. ..............................................................17

A. Garner and Graham Cleary Establish that
It Is Unreasonable for Police to Use Force 
that Serves No Purpose..................................17

B. The Eleventh Circuit Failed to Heed the
Lessons of Garner and Graham.................... 19

II. THE ELEVENTH CIRCUIT’S DECISION
CONFLICTS WITH DECISIONS FROM THE 
FOURTH, SIXTH, AND SEVENTH 
CIRCUITS............................................................... 22

III. THE ELEVENTH CIRCUIT CLEARLY
MISAPPREHENDED THE SUMMARY 
JUDGMENT STANDARD....................................27

CONCLUSION..............................................................32

TABLE OF CONTENTS
(CONTINUED)

PAGE(S)



V ll

TABLE OF CONTENTS
(CONTINUED)

PAGE(S)

APPENDIX

Opinion and Judgment of the United States 
Court of Appeals for the Eleventh 
Circuit...........................................................App. la

Memorandum Opinion and Order of the United 
States District Court for the Middle District of 
Alabama..................................................... App. 19a



V l l l

TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970)................................................. 27

Amnesty America v. Town of West Hartford,
361 F.3d 113 (2d Cir. 2004).............................. ......19

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)................................. ................27

Asociacion de Periodistas de Puerto Pico v. Mueller, 
529 F.3d 52 (1st. Cir. 2008)....................................18

Brosseau v. Haugen,
543 U.S. 194 (2004)..........................4, 18, 19, 20, 30

Buck v. City of Albuquerque,
549 F.3d 1269 (10th Cir. 2008)........................ 18-19

Burden v. Carroll,
108 F. App’x 291 (6th Cir. 2004)............................18

Casey v. City of Fed. Heights,
509 F.3d 1278 (10th Cir. 2007)..............................19

City of San Francisco v. Sheehan,
135 S. Ct. 1765 (2015)..................................... 21-22

County of Los Angeles v. Mendez,
137 S. Ct. 1539 (2017)............................................. 18

PAGE(S)



IX

Cyrus v. Town of Mukwonago,
624 F.3d 856 (7th Cir. 2010)..................... 22, 25, 26

Cyrus v. Town of Mukwonago,
No. 07-C-1035, 2012 WL 3776924
(E.D. Wis. Aug. 29, 2012)................................. 25-26

Graham u. Connor,
490 U.S. 386 (1989)........................................passim

Headwaters Forest Def. v. County of Humboldt,
276 F.3d 1125 (9th Cir. 2002)................................ 18

Hickey v. Reeder,
12 F.3d 754 (8th Cir. 1993).................................... 9

Hope v. Pelzer,
536 U.S. 730 (2002)............... ................................. 22

Kisela v. Hughes,
138 S. Ct. 1148 (2018)...................................... 21, 30

Landis u. Baker,
297 F. App’x 453 (6th Cir. 2008)........  22, 24-25, 26

Mayard v. Hopwood,
105 F.3d 1226 (8th Cir. 1997)................................18

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



X

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

Meyers v. Baltimore County,
713 F.3d 723 (4th Cir. 2013)...............  22, 23-24, 26

Mullenix v. Luna,
136 S. Ct. 305 (2015)............................................... 21

Salazar-Limon v. City of Houston,
137 S. Ct. 1277 (2017)..................... 3, 15, 16, 30, 31

Saucier v. Katz,
533 U.S. 194 (2001)................................................. 27

Scott v. Harris,
550 U.S. 372 (2007)................................ 3, 15, 18, 22

Tennessee v. Garner,
471 U.S. 1 (1985).............................................passim

Tolan v. Cotton,
134 S. Ct. 1861 (2014)................................... ..passim

United States v. Place,
462 U.S. 696 (1983)................................................. 17

White v. Pauly,
137 S. Ct. 548 (2017) 22



XI

STATUTES & RULES:

28U.S.C.
§ 1254............................................................................1
§ 1331......................................................................... 13
§ 1343........................................................................ .13

42 U.S.C.
§ 1983................................................................... 2, 12

Fed. R. Civ. P. 56.......................................................... 27

Sup. Ct. R. 1 0 ..........................................................4, 16

CONSTITUTIONAL PROVISIONS:

U.S. Const, amend. IV ...............................2, 12, 15, 30

OTHER AUTHORITIES:

Aaron Sussman, Shocking the Conscience: What 
Police Tasers and Weapon Technology Reveal 
About Excessive Force Law,
59 UCLAL. REV. 1342 (2012).................................. 9

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

Axon, Taser® X26E™ ECD User Manual (2011) ....11



PETITION FOR WRIT OF CERTIORARI
Gladis Callwood, as Administratrix of the Estate 

of Khari Neville Illidge, respectfully petitions for writ 
of certiorari to review the judgment of the United 
States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW
The opinion of the United States Court of Appeals 

for the Eleventh Circuit affirming the judgment of the 
district court is reproduced at App. la-18a. The 
opinion of the United States District Court for the 
Middle District of Alabama granting summary 
judgment is reproduced at App. 19a-72a.

JURISDICTION
The court of appeals entered its judgment on 

February 20, 2018. This Court has jurisdiction under 
28U.S.C. 8 1254.



2

CONSTITUTIONAL PROVISION AND 
STATUTE INVOLVED

The Fourth Amendment to the United States
Constitution provides:

The right of the people to be secure in 
their persons, houses, papers, and 
effects, against unreasonable searches 
and seizures, shall not be violated, and 
no Warrants shall issue, but upon 
probable cause, supported by Oath or 
affirmation, and particularly describing 
the place to be searched, and the persons 
or things to be seized.

U.S. Const, amend. IV.
Title 42 U.S.C. § 1983 provides:

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. 8 1983.



3

INTRODUCTION
Police repeatedly tased unarmed Khari Illidge. 

He died. His death was needless. An officer involved 
in the incident testified that there was no reason for 
Deputy Ray Smith to tase Mr. Illidge—a young man 
believed to be suffering a mental health crisis— 
thirteen times while he was naked and unarmed, on 
the ground, with two officers over him. Indeed, the 
officer testified that the only reason for Deputy Smith 
to tase Mr. Illidge all those times was to inflict pain 
and shut down Mr. Illidge’s nervous system.

The Eleventh Circuit did not even mention this 
testimony when it held that the officers were entitled 
to summary judgment on a claim of excessive force 
because, in its view, the officers did not violate clearly 
established law and were therefore entitled to 
qualified immunity. This ruling was contrary to this 
Court’s cases, which clearly establish that when 
police use force during arrest, it must serve some 
legitimate law enforcement purpose. See, e.g., 
Tennessee v. Garner, 471 U.S. 1, 8 (1985); Graham v. 
Connor, 490 U.S. 386, 395 (1989); Scott v. Harris, 550 
U.S. 372, 383 (2007). Force is clearly “unreasonable” 
under the Fourth Amendment when it has no reason.

The Eleven Circuit failed to apply the “governing 
legal rule” that police cannot use unreasonable force 
when effecting an arrest. Salazar-Limon v. City of 
Houston, 137 S. Ct. 1277, 1278 (2017) (Alito, J., joined 
by Thomas, J., concurring in denial of cert.). As a 
result, its decision is inconsistent with the decisions 
of most circuits, which have dutifully followed Garner 
and Graham and denied summary judgment when 
faced with evidence that police used unreasonable 
force. More to the point, the Eleventh Circuit’s



4

decision directly conflicts with decisions from the 
Fourth, Sixth, and Seventh Circuits, which denied or 
reversed summary judgment under closely analogous 
facts.

Furthermore, by ignoring evidence that the tases 
were gratuitous, the Eleventh Circuit flouted the 
fundamental rule that all evidence must be viewed in 
the non-movant’s favor at summary judgment. This 
Court has summarily reversed a court of appeals for 
doing the same thing. See Tolan u. Cotton, 134 S. Ct. 
1861, 1866 (2014) (per curiam) (reversing because the 
court of appeals “failed to view the evidence at 
summary judgment in the light most favorable to 
Tolan with respect to the central facts of this case”).

Certiorari is warranted. See Sup. Ct. R. 10(a) & 
(c). And this Court should reverse the judgment of the 
Eleventh Circuit. See Brosseau v. Haugen, 543 U.S. 
194, 198 n.3 (2004) (this Court uses its “summary 
reversal procedure . . .  to correct a clear 
misapprehension of the qualified immunity 
standard”).

STATEMENT OF THE CASE
The summary judgment record concerning the 

events that resulted in Mr. Illidge’s death stems 
largely from the testimony of the respondent officers. 
Despite having dashboard cameras in their cars, the 
officers recorded only their initial interaction with 
Mr. Illidge, not the later encounter that resulted in 
his death. The officers also submitted the affidavit of 
a bystander, but it was stricken from the record after 
the affiant testified that it contained materially false 
information that attorneys for the officers included in 
the affidavit and police department agents promised, 
but failed, to correct before submitting it to the court.



5

Even so, this is the rare case in which, relying on 
evidence gleaned almost entirely from the officers’ 
vantage point, material facts strongly support Ms. 
Callwood’s excessive force claim. In fact, evidence 
before the court showed that although a taser’s sole 
purpose is to bring a suspect to the ground, officers 
continued to tase Mr. Illidge thirteen additional times 
not to “benefit” or “help” the officers restrain him, but 
for no purpose other than to cause Mr. Illidge pain.

A. Police First Encounter Mr. Illidge.
The evidence presented at summary judgment 

showed that, on March 24, 2013, Lee County Deputy 
Sheriffs Steven Mills and Ray Smith were separately 
on patrol when they “received dispatch calls about a 
report of a naked, black man running down” the road. 
App. 22a. Deputy Mills received a second dispatch— 
that the man “had been in or at someone’s home,” but 
Deputy Mills stated that he “didn’t have any details 
on that.” Id. at 22a-23a (quotation marks omitted).

Deputy Mills found the man first; that man was 
Khari Illidge. Id. at 23a. Mr. Illidge was a 25-year-old 
Black man who stood 5’ 2” tall and weighed 201 
pounds. See ECF No. 144-2 at 3 (Autopsy Report).2 He 
was visibly unarmed. ECF 144-13 at 117-18 (Dep. of 
Steven Mills).3 Deputy Mills called out to Mr. Illidge, 
but Mr. Illidge walked in the opposite direction, 
“zombie-like,” “appear [ing] not to recognize that Mills 
was a deputy sheriff.” ECF No. 81-1 at 3 (Aff. of 
Steven Mills); App. 3a (brackets omitted). No one else 
was around. See ECF No. 85 (dashboard footage).

2 “ECF’ citations are to the record as reflected on the district 
court’s public docket.
8 Deputy Mills’s dashboard camera recorded his initial 
interaction with Mr. Illidge. See App. 23a.



6

Deputy Mills “radioed for backup, telling dispatch 
that [Mr.] Illidge was mentally ill and possibly under 
the influence.” App. 3a.4

Deputy Mills again called out for Mr. Illidge to 
stop, when, according to Deputy Mills, Mr. Illidge 
turned around and began walking in his direction. Id. 
Mr. Illidge did not threaten Deputy Mills. ECF No. 
144-13 at 134. Instead, he said “excuse me, out of the 
way,” as he tried to walk past the deputy. App. 23a. 
Deputy Mills felt that Mr. Illidge entered his “zone of 
safety,” so he shot Mr. Illidge with his taser. Id. Mr. 
Illidge kept walking, so Deputy Mills tased him again, 
this time poking Mr. Illidge in his side with the taser 
in “stun mode.” Id. at 24a.5 This brought Mr. Illidge 
to the ground. Id.

Deputy Mills tried to pin Mr. Illidge, but Mr. 
“Illidge overpowered him and was able to lift up off 
the ground with Mills on him.” Id. Deputy Mills, who 
was 5’ 9” and weighed 230 pounds, see ECF No. 144- 
13 at 30-31, claimed Mr. Illidge “slung him at least 10 
feet.” App. 24a.6 Mr. Illidge then walked away toward 
a house down the road. See id. Deputy Mills again 
radioed for assistance. Id.

4 Mr. Illidge had a blood content consistent with having had two
beers and marijuana. EFC No. 81-37 at 17 (Report of Stacy Hall).
6 “Tasers can be used in two modes, one is dart or prong mode in 
which a barbed point makes contact with the skin and the other 
is drive or dry stun mode in which the electrified tips of the taser 
are touched to the skin directly.” App. 24a n.3 (citation omitted). 
6 Respondents introduced no evidence about whether such a feat 
of strength was physically possible. They did repeatedly allege 
Mr. Illidge was in an LSD-fueled state, even though Mr. Illidge’s 
autopsy found there was no LSD or hard drugs of any sort in his 
system. EFC No. 81-37 at 18.



7

Deputy Smith, who had been in law enforcement 
for close to twenty years and was a certified “Taser 
instructor,” next arrived on the scene. Id. at 3a; ECF 
No. 81-2 at 2 (Aff. of Ray Smith). Deputies Smith and 
Mills followed Mr. Illidge as he climbed a fence and 
walked to the back of a house that belonged to Gloria 
Warr. App. 3a. Once Deputy Smith saw Mr. Illidge, 
he too believed that Mr. Illidge was mentally ill and 
thought he may have been suffering from “excited 
delirium.” Id. at 4a. The deputies watched Mr. Illidge 
walk up to Ms. Warr’s backdoor and try to open it, but 
it was locked. Id. They then flanked Mr. Illidge and 
told him to “stop right there.” Id. at 25a.

B. Mr. Illidge’s Arrest and Death.
By then, Phenix City Police Officer David Butler 

arrived on scene to provide additional back up. Id. at 
3a-4a. In a near-contemporaneous report,7 Officer 
Butler described what happened next.

After the deputies told Mr. Illidge to “stop right 
there,” Mr. Illidge “started walking away.” ECF No. 
134-4 at 46 (Dep. of David Butler). Mr. Illidge then 
“made a rapid movement towards Deputy Smith,” 
who “deployed his taser,” striking Mr. Illidge in the 
chest. Id. at 46-47. Mr. Illidge fell, landing face- 
forward on the ground with his arms under his body. 
App. 4a; ECF No. 134-2 at 68 (Dep. of Ray Smith). By 
bringing Mr. Illidge to the ground, Officer Butler said 
the taser “did its job.” ECF No. 134-4 at 47. Deputy 
Smith confirmed that “when [he] deployed the taser 
and [Mr. Illidge] dropped, that it had been an effective 
deployment.” ECF No. 134-2 at 63.

7 Officer Butler was interviewed the day after the incident for an 
internal investigation. He adopted this report as part of his 
sworn deposition. ECF No. 134-4 at 69-70.



8

Officer Butler’s testimony that the taser “did its 
job” by bringing Mr. Illidge to the ground was 
consistent with law enforcement training and taser 
guidelines. Retired police officer Michael Leonesio, a 
“use of force and police practices subject matter 
expert,” submitted an affidavit explaining that a taser 
“is designed to be a temporary control device.” ECF 
No. 144-24 at 1, 8 (Decl. of Michael Leonesio). The 
goal of tasing a suspect is to create “a window of 
opportunity” to take a suspect to the ground so police 
can “physically” restrain the suspect and take him 
“into custody.” Id.; see also ECF No. 144-29 (Taser® 
Handheld CEW Warnings). Officer Leonesio made 
clear that a taser is not to be used as a “compliance” 
or “restraining” device. ECF No. at 144-24 at 8.

After Deputy Smith tased Mr. Illidge to the 
ground, Officer Butler and Deputy Mills “got on top” 
of him and tried to secure his arms. ECF No. 134-4 at 
47-48. Mr. Illidge was “t[h]rashing” on the ground. 
ECF No. 144-36 at 13 (Audio Tr. of Ray Smith). 
Officer Butler was wrestling to get “control” of Mr. 
Illidge’s right arm while Deputy Mills was wrestling 
to get ahold of his left to handcuff him. ECF No. 134- 
4 at 48.

The officers characterized Mr. Illidge’s 
“thrashing” on the ground as him resisting arrest. See 
App. 4a. Ms. Callwood, however, noted that a 
reasonable juror could infer that Mr. Illidge’s 
“thrashing” did not mean he was resisting arrest. See, 
e.g., Pl.’s Mem. Br. in Opp’n to Summ. J. at 70; 
Appellant’s Reply Br. at 4-5. A reasonable juror could 
have instead found that Mr. Illidge’s movement was 
the physiological result of being repeatedly tased, or 
that his thrashing was a sign of mental illness. As 
noted, Deputy Mills testified that Mr. Illidge did not



9

appear to recognize that he was a police officer; if true, 
Mr. Illidge would not have even understood that he 
was being arrested. Further, a reasonable juror could 
have simply found the officers’ accounts not credible 
given that some of the officers submitted a fabricated 
affidavit from a bystander to try to bolster their 
version of events.8 In sum, that Mr. Illidge was 
resisting arrest was not a fact beyond triable dispute.

Then, while Officer Butler and Deputy Mills were 
trying to handcuff Mr. Illidge, Deputy Smith tased 
Mr. Illidge thirteen more times in the highest voltage 
mode, sending an electrical current coursing through 
Mr. Illidge’s body for 37 seconds. See App. 25a; EOF 
No. 144-9 at 26-27 (Taser Log). Each additional tase 
would have “inflictjed] a painful and frightening 
blow,” Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 
1993), and felt like Deputy Smith “reached into [Mr. 
Illidge’s] body to rip [his] muscles apart with a fork.”9

8 An attorney for the Lee County officers prepared a Declaration 
for bystander Gloria Warr that purported to memorialize what 
she saw. See ECF No. 116-1 at 2-3 (Aff. of James Randall 
McNeil). It included several alleged observations favorable to the 
officers, including that Ms. Warr saw: Mr. Illidge approach the 
officers with clenched fists before he was tased; Mr. Illidge strike 
and kick the officers; and Deputy Smith use the taser only once. 
See ECF No. 77-12 (Decl. of Gloria Warr); see also App. 31a-32a. 
But during Ms. Warr’s deposition, “she testified that [these] 
several passages in the Declaration were false and that she 
signed the Declaration only because she had been told that those 
passages would be removed before the Declaration was filed.” 
App. 31a. The district court therefore struck the Declaration 
from the record. Id. at 32a.
9 Aaron Sussman, Shocking the Conscience: What Police Tasers 
and Weapon Technology Reveal About Excessive Force Law, 59 
UCLA L. Rev. 1342, 1353 (2012) (quotation marks omitted) 
(recounting people’s experiences with being tased).



10

Officer Butler testified that these additional tases 
were “not consistent” with “law enforcement 
training.” App. 25a. He also said that the repeated 
tasing “didn't help” the officers handcuff Mr. Illidge or 
“benefit [them] any.” ECF No. 134-4 at 81. Indeed, 
taser guidelines warn against recurrent tasings 
because of the risk of serious injury and death. See 
ECF No. 144-4 at 7-8 (Aff. of Michael Brave, Taser 
International, Inc.). And Lee County taser training 
materials specifically warn against repeatedly tasing 
“persons in a health crisis.” ECF No. 144-11 at 2 (Lee 
County Training Materials).

Given Officer Butler’s testimony that the thirteen 
additional tases were contrary to law enforcement 
training and did not “benefit” or “help” the police, Ms. 
Callwood’s counsel asked Officer Butler why Deputy 
Smith (a 20-year veteran officer and certified Taser 
instructor) would tase Mr. Illidge so many times. 
Officer Butler had this to say:

Counsel: And after [Deputy Smith] created a 
window of opportunity [by tasing Mr. 
Illidge the first time], [Mr. Illidge] fell 
down and you guys got on top of him to 
try to restrain him. The window of 
opportunity had been created and you 
took advantage of it; isn’t that right?

Butler: Yes, sir.
Counsel: Okay. And so, if the window of 

opportunity has been created by the 
Taser use, and [Mr. Illidge is] on the 
ground, and you’re on top of him trying 
to apply the secondary restraints, and 
there was a good connection with the 
Taser prongs, then the only real[ ] effect



1 1

[for the additional tases] would be to 
inflict pain, wouldn’t it; isn’t that right?

Butler: Yes, sir.
Counsel: Yes. I mean, it had no other real 

purpose or effect, did it?
Butler: It would have shut down his nervous

system, but that’s five seconds.
Counsel: Right. But that’s not necessary, is it?
Butler: No.

ECF No. 134-4 at 110-11.
Officer Butler’s testimony that the continued 

tasing would have “shut down” Mr. Illidge’s “nervous 
system,” is consistent with the Taser Manual’s 
recognition that the taser would “affect the sensory 
and motor functions of the nervous system.” Taser® 
X26E™ ECD User Manual at 5.10 The taser sends 
“electrical impulses to cause stimulation of the 
sensory and motor nerves.” Id. at 6. This would have 
“incapacitated]” Mr. Illidge, causing him to have 
“involuntary strong muscle contractions.” Id. Because 
tasing does not immobilize a person, but instead 
causes involuntary and sporadic movements, as 
Officer Butler explained, tasing someone who is on 
the ground would not help, and in fact would hinder, 
officers’ attempts at handcuffing.

After the many tases, nineteen in all, the officers 
handcuffed Mr. Illidge and put him in a “hogtie”11

10 See Axon, Taser® X26E™ ECD User Manual (2011), 
https://help.axon.com/hc/article_attachments/115008437288/x2 
6-user-manual.pdf (last visited May 16, 2018).
11 “The hogtie position is one where the hands and feet are 
strapped relatively closely together behind the back, rendering

https://help.axon.com/hc/article_attachments/115008437288/x2


12

because he was still “thrashing” and “uttering stuff 
that w[as] unintelligible.” See App. 4a-5a; ECF No. 
134-2 at 66. Three more officers had arrived by then. 
App. 5a. One of the officers, Joey Williams, who 
weighed 385 pounds, knelt on Mr. Illidge’s back to 
stop him from moving. Id.

Then, Mr. Illidge “suddenly went limp.” Id. “[T]he 
officers turned [Mr. Illidge] over and saw a white, 
frothy substance and blood coming from his mouth.” 
Id. They called the paramedics, who arrived to find 
Mr. Illidge laying “supine” in Ms. Warr’s backyard. 
ECF No. 144-31 at 5 (Patient Care Report). He was 
still “handcuffed [with his] feet shackled.” Id. There 
was a factual dispute about whether the officers were 
providing meaningful life-saving treatment to Mr. 
Illidge when the paramedics arrived. See App. 7a-8a.

The paramedics drove Mr. Illidge to the hospital, 
where he was pronounced dead. App. 5a. The cause of 
death was fatal arrhythmia—a known risk of 
repeated tases. See ECF No. 144-30 at 2 (Death 
Certificate); ECF No. 144-28.12

C. Proceedings Below
1. District Court Proceedings

Ms. Callwood sued under 42 U.S.C. § 1983 in the 
United States District Court for the Middle District of 
Alabama, alleging that the officers violated Mr. 
Illidge’s Fourth Amendment right to be free from 
excessive force. See ECF No. 2 (Am. Compl.); App. 5a-

the subject immobile.” App. 5a n.3 (brackets, quotation marks, 
and citation omitted).
12 Douglas P. Zipes, M.D., Sudden Cardiac Arrest and Death 
Following Application o f Shocks from a Taser, 125 CARDIAC 2417 
(2012).



13

6a.13 Jurisdiction was proper under 28 U.S.C. §§ 1331, 
1343. Ms. Callwood argued “that the use of the Taser 
by Ray Smith while [Mr.] Illidge was being placed in 
handcuffs was so excessive that it constituted 
unreasonable use of force in violation of clearly- 
established law.” App. 49a.

The district court rejected this argument and 
granted summary judgment in the officers’ favor. The 
court acknowledged that there was “evidence in this 
case that a Taser [was] not designed to be used as 
many times as Smith used” it. Id. at 53a. Even so, it 
concluded that “[u]nder Eleventh Circuit precedent, 
the repeated use of a Taser after an initial reasonable 
use is unconstitutional [only] if it occurs after a 
suspect is fully-secured and has ceased resisting 
arrest.” Id. Here, because officers had characterized 
Mr. Illidge’s “thrashing” while on the ground as 
evidence he was “resisting,” and because Mr. Illidge 
was not yet handcuffed, the court found that “the facts 
of this case [did] not fall within that existing case 
law.” Id.

The court did not address Ms. Callwood’s 
argument that a reasonable juror could find that Mr. 
Illidge was not in fact “resisting” arrest when Deputy 
Smith repeatedly tased him while he was on the 
ground. The district court dismissed outright the 
evidence showing that Deputy Smith’s repeatedly 
tasing Mr. Illidge while he was on the ground did not

13 Ms. Callwood also brought related state law claims and failure 
to train and supervise claims against Phenix City, the Phenix 
City Police Chief, and the Lee County Sheriff. See ECF No. 2; 
App. 6a & n.4. She moved for leave to add claims of deliberate 
indifference, but the district court denied the motion and the 
Eleventh Circuit affirmed that ruling. App. 7a-10a.



14

help the police restrain Mr. Illidge and served only to 
hurt him. The court thought such evidence about law 
enforcement “training” irrelevant to the qualified 
immunity inquiry. See id. at 50a.

2. Eleventh Circuit Proceedings
The Eleventh Circuit affirmed the district court’s 

decision, finding summary judgment warranted on 
qualified immunity grounds because the officers did 
not violate clearly established law. See App. 13a-15a. 
Much like the district court, the Eleventh Circuit 
reasoned that the “dividing point between excessive 
and non-excessive force . . . turns on whether the 
suspect is completely restrained or otherwise 
resisting arrest.” Id. at 14a. Then, adopting the 
officers’ version and characterization of events—i.e., 
that Mr. Illidge’s “thrashing” meant he was “resisting 
arrest”—the court held that Deputy “Smith’s use of 
force was [not] so utterly disproportionate that any 
reasonable officer would have recognized that his 
actions were unlawful.” Id. (quotation marks 
omitted).

The Eleventh Circuit did not discuss the principle 
established by Garner and Graham that force used 
during arrest must further a legitimate governmental 
interest. Indeed, the court of appeals did not mention 
Garner or Graham at all. Nor did the Eleventh Circuit 
consider the evidence showing that Deputy Smith’s 
repeatedly tasing Mr. Illidge after he had been 
brought to the ground served no legitimate purpose 
even if Mr. Illidge was not “completely restrained,” 
including Officer Butler’s testimony that the purpose 
of tasing a suspect is to bring him to the ground, and 
there was no reason for Deputy Smith to continually



15

tase Mr. Illidge after he was already on the ground 
other than to hurt him.

REASONS FOR GRANTING THE PETITION
The Fourth Amendment protects against 

“unreasonable searches and seizures.” U.S. Const, 
amend. IV. It is axiomatic, therefore, that when police 
effect an arrest—a seizure—it must be reasonable. 
This reasonableness requirement applies not only to 
whether an arrest is justified, but also to “how it is 
carried out.” Garner, 471 U.S. at 8. When assessing 
an excessive force claim, this Court has instructed the 
lower courts to balance the level of force used during 
arrest against the governmental interests that 
purportedly justified the force. Id.; see also Graham, 
490 U.S. at 396; Scott, 550 U.S. at 383. When no 
governmental interest justifies a particular use of 
force, no balancing is necessary; the force is by 
definition “excessive” or “unreasonable.”

The Eleventh Circuit failed to apply this clearly 
established “governing legal rule.” Salazar-Limon, 
137 S. Ct. at 1278 (Alito, J., joined by Thomas, J., 
concurring in denial of cert.). In so doing, the 
Eleventh Circuit splintered from most circuits, which 
have faithfully applied this Court’s precedents by 
denying summary judgment when faced with 
evidence that police used forced unreasonably.

The Eleventh Circuit also “failed to view the 
evidence at summary judgment in the light most 
favorable to [Ms. Callwood] with respect to the central 
facts of th[is] case.” Tolan, 134 S. Ct. at 1866. Here, 
an officer who was on the scene testified that the 
thirteen tases Deputy Smith administered against 
Mr. Illidge while he was naked, unarmed, and on the 
ground with two officers on him, served no purpose



16

other than to inflict pain and shut down his nervous 
system. There was also evidence that tasers should be 
used only to bring a suspect to the ground, and that 
once a suspect is down, police should use hands-on 
restraint because tasers are not “compliance” or 
“restraint” devices.

The Eleventh Circuit had to consider this vital 
evidence when deciding whether the officers were 
entitled to summary judgment. See id. (“Our 
qualified-immunity cases illustrate the importance of 
drawing inferences in favor of the nonmovant, even 
when, as here, a court decides only the clearly- 
established prong of the standard.”). If it had, the 
Eleventh Circuit would have also had to reverse the 
district court’s grant of summary judgment. Indeed, 
the Eleventh Circuit’s decision conflicts with the 
decisions from the Fourth, Sixth, and Seventh 
Circuits, which denied/reversed summary judgment 
under very similar facts.

Certiorari is warranted for three reasons. First, 
the Eleventh Circuit did not recognize or apply the 
“governing legal rule,” Salazar-Limon, 137 S. Ct. at 
1278 (Alito, J., joined by Thomas, J., concurring in 
denial of cert.), set forth by this Court—that police 
violate clearly established law when they use force 
that serves no legitimate purpose. See Sup. Ct. R. 
10(c). Second, the Eleventh Circuit’s decision conflicts 
with the decisions of three circuits. See Sup. Ct. R. 
10(a). And third, the Eleventh Circuit impermissibly 
disregarded at summary judgment evidence both 
favorable and central to Ms. Callwood’s excessive 
force claim.



17

I. THE ELEVENTH CIRCUIT’S DECISION IS
INCONSISTENT WITH GARNER AND
GRAHAM.

A. Garner and Graham Cleary Establish 
that It Is Unreasonable for Police to Use 
Force that Serves No Purpose.

In Garner, this Court instructed that when 
deciding whether police use of force was 
unconstitutionally excessive, courts must “balance 
the nature and quality of the intrusion on the 
individual’s Fourth Amendment interests against the 
importance of the governmental interests alleged to 
justify the intrusion.” 471 U.S. at 8 (quoting United 
States v. Place, 462 U.S. 696, 703 (1983)) (quotation 
marks omitted). The Garner Court also explained that 
“[bjecause one of the factors is the extent of the 
intrusion, it is plain that reasonableness depends on 
not only when a seizure is made, but also how it is 
carried out.” Id.

Graham reiterated that deciding whether police 
force is “reasonable” under the Fourth Amendment 
requires a “careful balancing” of the “nature and 
quality of the intrusion . . . against the countervailing 
governmental interests at stake.” 490 U.S. at 396 
(quotation marks omitted). The Court said that this 
inquiry must be judged from the perspective of a 
“reasonable officer on the scene, rather than with the 
20/20 vision of hindsight.” Id. And the Court listed 
factors to consider when deciding whether force was 
excessive, “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 [the 
suspect] is actively resisting arrest or attempting to 
evade arrest by flight.” Id.



18

Since Garner and Graham, the Court has 
reaffirmed that an excessive force analysis must 
begin by balancing the level of force used by police 
against the governmental interest that supposedly 
justified the force. See, e.g., County of Los Angeles u. 
Mendez, 137 S. Ct. 1539, 1546 (2017); Tolan, 134 S. 
Ct. at 1865; Scott, 550 U.S. at 383.

And while there can sometimes be a “hazy border 
between excessive and acceptable force,” the “obvious” 
lesson from this Court’s cases is this: when police use 
force to effect an arrest, the force must be justified by 
some legitimate governmental interest. Brosseau, 543 
U.S. at 199 (explaining that while the “general tests 
set out in Graham and Garner” are usually 
insufficient to “clearly establish” when force is 
excessive, in the “obvious case, these standards can 
‘clearly establish’ the answer, even without a body of 
relevant case law”). When no legitimate 
“governmental interest” for the force exists, there is 
nothing to balance against the “intrusion on the 
individual’s Fourth Amendment interests.” Garner, 
471 U.S. at 8. In those circumstances, Garner and 
Graham clearly establish such force is “unreasonable” 
or “excessive” in violation of the Fourth Amendment.

Following Garner and Graham, most courts of 
appeals have explicitly held that police violate clearly 
established Fourth Amendment law when they use 
force that serves no legitimate governmental purpose 
or use force solely to inflict pain.14 As the Tenth

14 See, e.g., Asociacion de Periodistas de Puerto Rico v. Mueller, 
529 F.3d 52, 61 (1st. Cir. 2008); Burden v. Carroll, 108 F. App’x 
291, 293-94 (6th Cir. 2004) (unpublished); Mayard v. Hopwood, 
105 F.3d 1226, 1228 (8th Cir. 1997); Headwaters Forest Def. v. 
County of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002); Buck



19

Circuit plainly stated the rule: “an officer’s violation 
of the Graham reasonableness test is a violation of 
clearly established law if there are no substantial 
grounds for a reasonable officer to conclude that there 
was a legitimate justification for acting as she did.” 
Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 
(10th Cir. 2007) (quotation marks omitted).

B. The Eleventh Circuit Failed to Heed the 
Lessons of Garner and Graham.

The Eleventh Circuit did not need a “body of 
relevant case law,” Brousseau, 543 U.S. at 199, to 
recognize that there is a triable dispute as to whether 
Deputy Smith violated clearly established law by 
tasing Mr. Illidge thirteen times while Mr. Illidge was 
unarmed, on the ground, and being handcuffed. This 
case does not require the Court to judge Deputy 
Smith’s actions “with the 20/20 vision of hindsight.” 
Graham, 490 U.S. at 396. Officer Butler—“a 
reasonable officer on the scene,” id.—testified that the 
tases did not “benefit” or “help” the police effectuate 
Mr. Illidge’s arrest, and that the onfy reason to tase 
Mr. Illidge after he had been brought to the ground 
was to inflict pain and shut down his nervous system. 
And Officer Butler’s testimony was corroborated by 
objective training standards, tasing manuals, and 
expert testimony. This evidence was particularly 
significant because Deputy Smith was a certified 
taser instructor; he would have been aware of this

v. City of Albuquerque, 549 F.3d 1269, 1290-91 (10th Cir. 2008) 
(all denying qualified immunity on claims of excessive force 
when presented with evidence that police used unnecessary 
force). Cf. Amnesty America v. Town of West Hartford, 361 F.3d 
113, 124 (2d Cir. 2004) (Sotomayor, J.) (reversing summary 
judgment when there was evidence of unnecessary force).



20

information. This evidence should have been more 
than enough to survive summary judgment.

Even without Officer Butler’s remarkably frank 
testimony that there was no legitimate governmental 
interest supporting the thirteen tases inflicted upon 
Mr. Illidge, a straightforward application of the three 
Graham factors shows that summary judgment 
should have been denied. See id. at 396-97. First, the 
crimes Mr. Illidge was suspected of before police 
confronted him were nonviolent: public nudity, 
trespassing, and perhaps burglary. Second, the threat 
posed by Mr. Illidge when Deputy Smith tased him 
thirteen times was minimal: he was unarmed, face 
down on the ground, with two officers on top of him. 
Third, even if Mr. Illidge were “thrashing” on the 
ground as Deputy Mills and Officer Butler attempted 
to handcuff him, by the time Deputy Smith tased him 
thirteen times, Mr. Illidge had been effectively 
restrained by the two officers holding on to him. On 
the other side of the balance, Deputy Smith, as a 
certified taser instructor, see EOF No. 144-7 (taser 
certifications), knew the danger of tasing someone 
several times in short succession, especially someone 
suffering a mental health crisis. See EOF No. 144-11 
(Lee County Training Materials). And he knew or 
should have known that tasing someone repeatedly 
after they have been brought to the ground serves no 
benefit. Under these circumstances, a factfinder could 
conclude that a reasonable officer would have known 
that tasing Mr. Illidge was excessive and that Deputy 
Smith was on “fair notice that [his] conduct was 
unlawful.” Brosseau, 543 U.S. at 198.

Without engaging in any analysis of the Graham 
factors, the Eleventh Circuit held that because Mr. 
Illidge was not “fully restrained” while he was naked



21

and on the ground with two other officers over him, it 
was not clearly unreasonable for Deputy Smith to tase 
Mr. Illidge thirteen times. App. 14a-15a. This is a 
novel and incredibly broad rule that effectively 
immunizes officers from claims of excessive force—no 
matter how extreme the force used—so long as an 
arrestee is not yet handcuffed. This rule has no basis 
in this Court's precedent.

This Court has never endorsed the “dividing 
point” adopted by the Eleventh Circuit, which would 
allow police to use extreme force such as Deputy 
Smith used here so long as a suspect is not yet 
handcuffed, and no other circuit has adopted this 
“dividing point” either. This Court has not even 
suggested that police can use serious force that serves 
no purpose just because a suspect has not yet been 
“fully restrained,” especially when he has not 
committed a violent crime, is unarmed and effectively 
restrained, and thus is not a serious risk to the public 
or police. Indeed, in every case in which this Court has 
held police were entitled to summary judgment on a 
claim of excessive force, that force has been justified 
by some governmental interest in protecting the 
officers or the public.15

16 See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per 
curiam) (officer entitled to qualified immunity where he shot a 
woman holding a knife because “he believed she was a threat to 
[a person nearby]”); Mullenix v. Luna, 136 S. Ct. 305, 307, 312 
(2015) (per curiam) (officer entitled to qualified immunity where 
he shot a fleeing motorist during a high-speed chase given the 
“immediacy of the risk” and the perception of “grave danger”); 
City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1771 (2015) 
(officers entitled to qualified immunity where they shot a woman 
after she threatened to kill her social worker and had a knife 
because the officers were in a situation that “required their 
immediate attention” and were “faced with a violent woman”



22

At bottom, this Court’s cases clearly established 
that it was unconstitutional for Deputy Smith to 
continually tase Mr. Illidge for no purpose other than 
to hurt him even if he were not yet handcuffed, 
because causing pain is not a legitimate 
governmental interest and the force was not justified 
by the facts. Only the “plainly incompetent” officer 
would think it reasonable to use force in this way. 
White v. Pauly, 137 S. Ct. 548, 551 (2017). Garner and 
Graham “apply with obvious clarity to the specific 
conduct in question.” Hope v. Pelzer, 536 U.S. 730, 741 
(2002). Accepting as true the evidence and inferences 
in Ms. Callwood’s favor, this Court’s cases clearly 
established the illegality of Deputy Smith’s conduct. 
Summary judgment should have been denied.
II. THE ELEVENTH CIRCUIT’S DECISION 

CONFLICTS WITH DECISIONS FROM THE 
FOURTH, SIXTH, AND SEVENTH 
CIRCUITS.

The Fourth, Sixth, and Seventh Circuits have 
denied police officers summary judgment or reversed 
grants of summary judgment when faced with similar 
facts. See Meyers v. Baltimore County, 713 F.3d 723 
(4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 
F.3d 856 (7th Cir. 2010); Landis v. Baker, 297 F. App’x 
453 (6t,h Cir. 2008) (unpublished). And those courts 
did so even though the suspects in those cases were 
not “fully restrained” at the time of the repeated 
tasing, making clear that they would reject the “fully 
restrained” “dividing point” adopted by the Eleventh

(quotation marks and brackets omitted)); Scott, 550 U.S. at 386 
(officer entitled to qualified immunity where he rammed a 
fleeing car from behind because the car chase “posed a 
substantial and immediate risk of physical injury to others”).



23

Circuit here when it granted the officers’ qualified 
immunity. The Fourth, Sixth, and Seventh Circuits’ 
holdings make sense and are consistent with Garner 
and Graham—a taser is designed to drop a suspect; 
once that is done, further tasing serves no legitimate 
purpose and is clearly unreasonable under the Fourth 
Amendment.

In Meyers, the Fourth Circuit held that “the use 
of any unnecessary, gratuitous, and disproportionate 
force, whether arising from a gun, a baton, a taser, or 
other weapon, precludes an officer from receiving 
qualified immunity if the subject is unarmed and 
secured.” 713 F.3d at 734 (quotation marks omitted). 
There, police responded to a call of a fight between 
Meyers and his brother. Id. at 727. After Meyers 
grabbed a baseball bat and refused to comply with 
police commands, an officer tased him so he would 
“fall to the ground.” Id. at 727-28. Once on the ground, 
three officers sat on Meyers’ back and tried to 
handcuff him; Meyers was “stiffening up and keeping 
his body rigid and keeping his hands underneath his 
body.” Id. at 728-29 (brackets omitted). This prompted 
an officer to tase Meyers seven more times. Id. at 728. 
Meyers died from cardiac arrest. Id. at 729.

The Fourth Circuit ruled that the officers were 
not entitled to summary judgment on qualified 
immunity grounds. It reasoned that the justification 
for additional tasing “had been eliminated after 
[Meyers] relinquished the baseball bat and fell to the 
floor.” Id. at 733. At that point, because “several 
officers sat on [his] back,” Meyers could not “actively” 
resist “and “did not pose a continuing threat to the 
officers’ safety”—he was “effectively secured.” Id. at 
733, 735. Under these circumstances, the court 
concluded that the additional tases were “clearly



24

unnecessary, gratuitous, and disproportionate.” Id. at 
735 (quotation marks omitted). Summary judgment 
was therefore inappropriate because a reasonable 
officer “would have understood that his delivery of 
some, if not all, of the seven additional taser shocks 
violated [Meyers’] Fourth Amendment right to be free 
from the use of excessive and unreasonable force.” Id.

In Landis, the Sixth Circuit held that reasonable 
officers should know “that the gratuitous or excessive 
use of a taser [ ] violate [s] a clearly established 
constitutional right.” 297 F. App’x at 463. In that case, 
police received a report that a man abandoned a 
bulldozer in the middle of a highway. Id. at 455. The 
police found Keiser running away from the scene. Id. 
Two officers gave chase and tackled Keiser to the 
ground, but Keiser managed to escape. Id. More 
officers arrived and surrounded Keiser. Id. at 456. 
When Keiser would not respond to the officers’ orders, 
an officer tased him; Keiser was eventually brought 
to the ground. Id. at 457. Officers moved in and tried 
to grab Keiser’s arms and knelt on his back. Id. When 
Keiser would not give the officers his arm to be 
handcuffed, an officer tased Keiser five more times. 
Id.

The Sixth Circuit held that these tases violated 
Keiser’s clearly established Fourth Amendment 
rights, thus the officers were not entitled to summary 
judgment on qualified immunity grounds. Id. at 463. 
The court reasoned that the “officers should have 
known that the use of a taser . . .  in rapid succession 
on a suspect who is surrounded by officers, in a prone 
position [and] who has only one arm beneath him . . . 
would be a violation of a constitutional right.” Id. at 
464. Said the court, “The right to be free from 
excessive force is a clearly established right.” Id. at



25

462 (quotation marks omitted). The police violated 
this right when they “shocked Reiser with a taser 
more times than was necessary [ ] in an unreasonably 
dangerous manner.” Id. at 462

The Seventh Circuit in Cyrus reversed a grant of 
summary judgment where there was similar evidence 
of gratuitous tasing. There, police found Cyrus after 
responding to a trespassing call. Cyrus, 624 F.3d at 
858. When Cyrus tried to walk away, an officer tased 
him, causing Cyrus to fall. Id. When Cyrus tried to 
stand back up, the officer tased him again. Id. Cyrus 
“ended up lying face down.” Id. By then, a second 
officer had arrived, and the two officers tried to 
handcuff Cyrus but couldn’t, because “Cyrus’s hands 
were tucked underneath his stomach and he did not 
comply with the officers’ commands to produce them 
for handcuffing.” Id. The officer tased Cyrus four to 
ten more times. Cyrus died as a result. Id.

In reversing the district court’s grant of summary 
judgment, the Seventh Circuit explained that “ [fjorce 
is reasonable only when exercised in proportion to the 
threat posed, and as the threat changes so too should 
the degree of force,” especially because force “becomes 
increasingly severe the more often it is used.” Id. at 
863 (citation omitted). The court ruled that “a jury 
might reasonably conclude that the circumstances of 
the encounter here reduced the need for force as the 
situation progressed”; the officer “knew that Cyrus 
was unarmed and there was little risk Cyrus could 
access a weapon while face down . . . with his hands 
underneath him and having already been shocked 
twice with the Taser.” Id. On remand, the district 
court denied the officer qualified immunity because “a 
jury could reasonably interpret the disputed facts as 
indicating that at some time during the continuum of



26

the event[s] . , . [the officer] clearly violated Cyrus’ 
established Fourth Amendment right to be free from 
the use of excessive force during his arrest.” Cyrus v. 
Town of Mukwonago, No. 07-C-1035, 2012 WL 
3776924, at *8 (E.D. Wis. Aug. 29, 2012).

In Meyers, Landis, and Cyrus, the courts correctly 
considered the purpose of a taser—bringing a suspect 
to the ground so that the police can effect an arrest— 
and found that repeated tasing after this critical point 
precludes summary judgment on a claim of excessive 
force because it serves no legitimate purpose. This is 
consistent with Garner and Graham’s clear 
pronouncement that police can only use force that 
furthers a legitimate governmental interest. As 
Officer Butler testified in this case, repeatedly tasing 
a suspect on the ground who is in the process of being 
handcuffed serves only to cause pain.

And the facts of Meyers, Landis, and Cyrus are 
closely analogous to those here. As in those cases, Mr. 
Illidge was unarmed and had been brought to the 
ground after being tased. As in those cases, several 
officers got on top of Mr. Illidge and sought to 
handcuff him. As in those cases, the officers were 
struggling to handcuff Mr. Illidge. So, like in those 
cases, an officer tased Mr. Illidge repeatedly. If 
anything, the use of force was even more clearly 
excessive here. The suspects in Meyers, Landis, and 
Cyrus were tased seven, five, and at most ten times 
after being brought to the ground. Mr. Illidge was 
tased thirteen additional times.

The Eleventh Circuit broke from Meyers, Landis, 
and Cyrus, however, by reading its precedent to 
establish a rule allowing police to repeatedly tase a 
person who is unarmed, on the ground, and physically



27

restrained by officers, so long as he is not yet fully 
secured. But as explained, this rule finds no support 
in any of this Court’s cases, and is clearly contrary to 
the rule that the Fourth, Sixth, and Seventh Circuits 
adopted when re versing/denying summary judgment 
under strikingly similar facts.
III. THE ELEVENTH CIRCUIT CLEARLY

MISAPPREHENDED THE SUMMARY
JUDGMENT STANDARD.
Federal Rule of Civil Procedure 56 provides that 

courts can grant summary judgment only if 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). This Court has explained that a 
“judge’s function” at summary judgment is not “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., A ll 
U.S. 242, 249 (1986). It has also made clear that 
courts must view the evidence ‘“in the light most 
favorable to the opposing party’”—here, Ms. Callwood 
(and Mr. Illidge). Tolan, 134 S. C-t. at 1866 (quoting 
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)) 
(quotation marks omitted).

The same standard applies when deciding 
whether officers are entitled to qualified immunity. 
As the Court stressed in Tolan, “[o]ur qualified- 
immunity cases illustrate the importance of drawing 
inferences in favor of the nonmovant, even when, as 
here, a court decides only the clearly-established 
prong of the standard.” 134 S. Ct. at 1866. This Court 
has therefore instructed courts to define the “clearly 
established” prong based on the “specific context of 
the case.” Saucier u. Katz, 533 U.S. 194, 201 (2001).



28

And it has cautioned courts to “take care not to define 
a case’s ‘context’ in a manner that imports genuinely 
disputed factual propositions.” Tolan, 134 S. Ct. at 
1866. In other words, courts should deny summary 
judgment on qualified immunity grounds if deciding 
whether police violated clearly established law 
requires the court to resolve a disputed material fact 
in the officer’s favor. See id.

Applying these principles in Tolan, this Court 
summarily reversed a Fifth Circuit decision granting 
qualified immunity to an officer on a claim of 
excessive force. The Court did so because the “Fifth 
Circuit failed to view the evidence at summary 
judgment in the light most favorable to Tolan with 
respect to the central facts of thjat] case.” Id. After 
reviewing the record, the Court came to “the 
inescapable conclusion that the court below credited 
the evidence of the party seeking summary judgment 
and failed to properly acknowledge key evidence 
offered by the party opposing that motion.” Id. at 
1867-68. It reversed “because the opinion below 
reflect[ed] a clear misapprehension of summary 
judgment standards in light of [the Court’s] 
precedents.” Id. at 1868.

The Eleventh Circuit “clearly misapprehended]” 
the summary judgment standard here. Id. As in 
Tolan, “ [i]n holding that [Deputy Smithj’s actions did 
not violate clearly established law, the [Eleventh 
Circuit] failed to view the evidence at summary 
judgment in the light most favorable to [Ms. 
Callwood] with respect to the central facts of this 
case.” Id. at 1866. The Eleventh Circuit both resolved 
disputes of material fact against Ms. Callwood and 
disregarded evidence that supported sending her 
excessive force claim to trial.



29

First, the Eleventh Circuit adopted the officers’ 
characterization of Mr. Illidge’s “thrashing” on the 
ground as conclusive evidence that he was “resisting” 
arrest. Yet a reasonable juror could have drawn a 
different inference as to the meaning of Mr. Illidge’s 
thrashing, or even found the officers’ account not fully 
credible in light of their presenting a false affidavit 
from a bystander. See supra at 8-9 & n.8. In resolving 
the officers’ summary judgment motion, the courts 
below had to draw such reasonable inferences in Ms. 
Callwood’s favor. See Tolan, 134 S. Ct. at 1866.

Second, the Eleventh Circuit did not consider any 
of the evidence about taser use, including that tasers 
are properly used only to bring a suspect to the 
ground, and at that point, other means of physical 
restraint should be used because tasering is not a 
compliance technique. See supra at 10-11. This 
evidence was relevant to whether Deputy Smith 
repeatedly tased Mr. Illidge to further a legitimate 
“governmental interest.” Garner, 475 U.S. at 8.

Third, and perhaps most important, the Eleventh 
Circuit completely ignored Officer Butler’s testimony 
that the taser already “did its job” when Mr. Illidge 
was brought to the ground, and Deputy Smith’s 
repeatedly tasing Mr. Illidge after that point did not 
“benefit” or “help” the police restrain Mr. Illidge, but 
rather served only to cause him pain and shut down 
his nervous system. See supra at 10-11. This 
testimony bore directly on whether it was “objectively 
reasonable” for Deputy Smith to tase Mr. Illidge all 
those times while he was unarmed on the ground. 
Graham, 490 U.S. at 397.

Simply, “the court below credited the evidence of 
the party seeking summary judgment and failed



30

properly to acknowledge key evidence offered by the 
party opposing that motion.” Tolan 137 S. Ct. at 1867- 
68. As a result, the Eleventh Circuit’s decision finding 
that the officers were entitled to summary judgment 
is fundamentally flawed. This Court should reverse. 
See Brosseau, 543 U.S. at 198 n.3.

k k k

In recent years, this Court has repeatedly 
intervened when lower courts denied officers qualified 
immunity in excessive force cases. See Salazar- 
Limon, 137 S. Ct. at 1282 (Sotomayor, J., joined by 
Ginsburg, J., dissenting from denial of cert.) 
(collecting cases). This has prompted some members 
of this Court to express concern about the perils and 
public perception of a “shoot first and think later” 
approach to law enforcement. Kisela, 138 S. Ct. at 
1162 (Sotomayor, J., joined by Ginsburg, J., 
dissenting). It has also spurred other Justices to 
assure the public that the “Court applies uniform 
standards” to police misconduct cases and that it 
“may grant review if the lower court conspicuously 
failed to apply a governing legal rule.” Salazar- 
Limon, 137 S. Ct. at 1278 (Alito, J., joined by Thomas, 
J., concurring in denial of cert.).

This is such a case. The Eleventh Circuit failed to 
apply the basic rule that police cannot use force 
purposelessly and that any force used during arrest 
must further a legitimate governmental purpose. Not 
only has this Court held this, see Garner, 471 U.S. at 
8; Graham, 490 U.S. at 396, in requiring any seizure 
to be reasonable, the Fourth Amendment declares it. 
See U.S. Const, amend. IV.

But beyond the Eleventh Circuit's failing to apply 
this “governing legal rule,” it also failed to view the



31

evidence in Ms. Callwood’s favor. This violated basic 
summary judgment tenets and makes this case ripe 
for summary reversal. Tolan, 134 S. Ct. at 1866-68.

In the end, in most of the country, had Deputy 
Smith tased Mr. Illidge thirteen times while he was 
on the ground, unarmed, and being handcuffed by two 
officers, summary judgment would have been denied. 
That is because in most of the country, it is clearly 
established that police violate the Fourth 
Amendment when they use serious force for no 
reason. This is true whether the instrument of force 
is a gun, fist, baton, pepper spray, or taser. But 
because the Eleventh Circuit failed to acknowledge 
evidence “central” to this case, id. at 1866, it 
“conspicuously failed to apply [this] governing legal 
rule.” Salazar-Limon, 137 S. Ct. at 1278 (Alito, J., 
joined by Thomas, J., concurring in denial of cert).

Certiorari is warranted. So is reversal.



32

CONCLUSION
The petition for writ of certiorari should be 

granted and the Eleventh Circuit’s judgment should 
be reversed.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
Jin Hee Lee
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006

Samuel Fisher 
Sidney M. Jackson 
Wiggins, Childs, 

Pantazis, Fisher, & 
Goldfarb, LLC 

301 19th Street North 
Birmingham, AL 32503

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

John Paul Schnapper- 
Casteras
Schnapper-Casteras

PLLC
1117 10th St. NW, #W7 
Washington, DC 20001

Counsel for Petitioner 
Gladis Callwood

May 18, 2018
* Counsel of Record

mailto:dharawa@naacpldf.org


APPENDIX



la

APPENDIX A

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 16-17454

D.C. Docket No. 2:15-cv-00182-WHA-WC

GLADIS CALLWOOD, Administratix of the 
Estate of Khari Neville Illidge,

Plaintiff-Appellant,
versus

JAY JONES, CHARLES H. JENKINS, JR., 
individually and in his official capacity as 

Lee County Deputy Sheriff, STEVEN M. MILLS, 
individually and in his official capacity as 
Lee County Deputy Sheriff, RAY SMITH, 
individually and in his official capacity as 

Lee County Deputy Sheriff, PHENIX CITY, 
ALABAMA, a municipal corporation, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Alabama

(February 20, 2018)



2a

Before ED CARNES, Chief Judge, BLACK, Circuit 
Judge, and MAY,* District Judge.

ED CARNES, Chief Judge:

Khari Illidge died during an encounter with six 
law enforcement officers. His mother and 
administratix of his estate, Gladis Callwood, filed this 
suit under 42 U.S.C. § 1983 and related states laws, 
alleging that each of the officers violated Illidge’s 
Fourth Amendment right to be free from excessive 
force by either applying excessive force themselves or 
failing to intervene in another officer’s use of excessive 
force. The district court ruled that the officers are 
protected by qualified immunity and granted summary 
judgment in their favor. This is Callwood’s appeal.

I. FACTS AND PROCEDURAL HISTORY 

A. Police Officers Encounter Illidge

On the night Illidge died, Lee County Sheriff 
Deputies Steven Mills and Ray Smith received a radio 
dispatch reporting that a naked man was running 
down Lee County Road 314.* 1 The deputies, who were 
in separate cars and on separate patrols at the time, 
began to search for him. An hour later dispatch 
radioed both deputies a second time, reporting that the

Honorable Leigh Martin May, United States District 
Judge for the Northern District of Georgia, sitting by designation.

1 Because the officers moved for summary judgment, we 
recite the facts in the light most favorable to Callwood. See 
Johnson v. Bd. of Regents of Univ, Of Ga., 263 F.3d. 1234,1242-43 
(11th Cir. 2001).



3a

same man had entered a house on Lee County Road 
308.

Deputy Mills found Illidge walking down the street 
naked and covered in scratches. He approached Illidge 
and tried to speak with him. But Illidge “appeared not 
to recognize that [Mills] was a deputy sheriff and 
continued to walk with a purpose, past [him], down the 
road.” Illidge then crossed the road, cutting in front of 
oncoming traffic, and began walking toward a house 
that was just off the road. Mills radioed for backup, 
telling dispatch that Illidge was mentally ill and 
possibly under the influence. He then followed Illidge, 
asking Illidge to stop and speak to him.

Illidge ignored his requests and continued forward 
until he suddenly turned and began walking back 
toward Mills. Mills warned Illidge that if he did not 
stop, Mills would tase him. Illidge continued forward, 
and Mills fired his taser. Illidge did not drop to the 
ground after being tased, but instead began walking 
away toward the porch of a nearby home.

Mills used the taser a second time, touching 
Illidge’s side with it, and Illidge fell to the ground. 
Mills then attempted to pin Illidge, but Illidge 
“exhibited superhuman strength” and overpowered 
him. Mills used his taser three more times, but it 
appeared to have no effect. He states that he was 
“fighting for [his] life” when Illidge threw him at least 
ten feet and then ran away.

“After catching [his] breath,” Deputy Mills radioed 
dispatch the code for “need[s] assistance.” Deputy 
Smith arrived at the scene, joined Mills, and the two 
followed Illidge to the residence of William and Gloria 
Warr, where Phenix City Police Officer David Butler



4a

joined them. The deputies repeatedly called for Illidge 
to stop, but he ignored them. Smith testified that he 
believed Illidge may have suffered from excited 
delirium.2

Illidge tried to open the rear door of the Warrs’ 
house, but it was locked. He then turned back toward 
the officers, and Deputy Smith discharged his taser, 
striking Illidge in the chest. Illidge fell to the ground 
on his stomach, and Deputy Mills and Officer Butler 
tried to handcuff him. Both officers testified that he 
began to “resist violently.” As the two men wrestled 
with Illidge, Smith tased him thirteen more times. 
Despite being tased fourteen times by Smith alone, 
Illidge continued to resist the officers.

Deputy Smith placed the taser on the ground and 
helped Mills and Butler pull Illidge’s arms close 
enough together to handcuff him. Smith then placed 
his metal baton between the handcuffs and Illidge’s 
spine for leverage. Although he was handcuffed, Illidge 
continued to struggle. Gloria Warr, who witnessed 
parts of the encounter from inside her home, stated 
“[Illidge] was trying to move, and [the officers] were 
trying to get him to stop.” Warr also testified that she 
heard the officers telling Illidge, “Man, please calm 
down. Calm down.”

2 “Excited delirium “ is a condition where the sufferer is in 
a “state of agitation, excitability, [and] paranoia.” Mann v, Taser 
Int’l, Inc., 588 F.3d 1291, 1299 n.4 (11th Cir. 2009). Symptoms 
include “imperviousness to pain, great strength, bizarre behavior, 
aggression, and hallucinations.” Hoyt v. Cooks, 672 F.3d 972, 979 
n.7 (11th Cir. 2012).



5a

At that point, Lee County Sheriff Deputy Charles 
Jenkins and Phenix City Police Officers Joey Williams 
and Shawn Sheely arrived. Williams, who weighed 385 
pounds at the time, replaced Smith and placed one 
knee between Illidge’s shoulder blades and the other in 
the middle of Illidge’s back with the balls of his feet on 
the ground. Sheely replaced Butler and held the upper 
portion of Illidge’s legs while Jenkins held the lower 
portion. Because Illidge continued to struggle and kick, 
the other officer placed Illidge in leg irons and flex 
cuffs, in effect “hogtying” him.3 Even with those 
restraints in place, Illidge continued to struggle until 
he suddenly went limp.

When Illidge became unresponsive, the officers 
turned him over and saw a white, frothy substance and 
blood coming from his mouth. Not long after that, 
paramedics arrived and transported Illidge to the 
hospital where he was pronounced dead.

B. Callwood Sues the Officers

In her second amended complaint, Callwood 
alleged multiple § 1983 claims, contending that the 
officers deprived Illidge of his constitutional right to be

8 “[T]he hogtie position is one where the hands and feet are 
strapped relatively closely together behind the back, rendering 
the subject immobile.” Lewis v. City of W. Palm Beach, 561 F.3d, 
1288, 1290 n.2 (11th Cir. 2009).



6a

free from the use of excessive force.4 She also asserted 
related state laws claims. After discovery, the officers 
filed motions for summary judgment, contending that 
they were entitled to qualified immunity.

Before responding to their motions, Callwood 
moved for leave to add a claim for deliberate 
indifference to medical needs based on evidence that 
allegedly came to light after the officers’ summary 
judgment motions were filed. The district court denied 
Callwood’s motion because she failed to show good 
cause for extending the scheduling order deadline to 
amend the pleadings.

Callwood then filed her corrected opposition to the 
officers’ motion for summary judgment. The district 
court concluded that the officers were entitled to 
qualified immunity and granted summary judgment in 
their favor. Having dismissed Callwood’s federal 
claims, the court declined to exercise jurisdiction over 
her related state law claims. This is Callwood’s appeal.

II. DISCUSSION

We review for abuse of discretion the district 
court’s denial of a motion for leave to amend the 
pleadings. Maynard v. Bd. of Regents of Div. ofUnivs. 
of Fla. Dept, of Educ. ex rel. Univ. of S. Fla., 342 F.3d 
1281, 1286 (11th Cir. 2003).

4 Callwood also brought claims for failure to train and 
supervise against Phenix City, Phenix City Police Chief Raymond 
Smith, and Lee County Sheriff Jay Jones. Because Callwood does 
not challenge the district court’s resolution of those claims, they 
are deemed abandoned. AT&T Broadband v. Tech Commc’ns, Inc., 
381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (“Issues not raised on 
appeal are considered abandoned.”)



7a

We review de novo the grant of summary judgment 
on the basis of qualified immunity. Oliver v. Fiorino, 
586 F.3d 898, 901 (11th Cir. 2009). “Summary 
judgment is appropriate where there is no genuine 
issue as to any material fact and the moving party is 
entitled to a judgment as a matter of law.” Johnson, 
263 F.3d at 1242 (quotation marks omitted). The 
moving party bears the burden of showing the absence 
of a genuine issue of material fact. Celotex Corp. v. 
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553
(1986). Once the moving party has met its burden, the 
nonmoving party “must do more than simply show 
that there is some metaphysical doubt as the material 
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio 
Corn,. 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). 
The nonmoving party must “come forward with specific 
facts showing that there is a genuine issue for trial.” 
Id. at 587, 106 S. Ct. at 1356 (quotation marks 
omitted).

A. Callwood Failed to Show Good Cause 
to Modify the Scheduling Order

Callwood contends that the district court erred by 
denying her motion for leave to amend to add a claim 
for deliberate indifference to medical needs. She 
alleges that after the deadline to amend the pleadings 
had passed, she discovered evidence that shows the 
officers failed to properly treat Illidge. That evidence 
was: (1) deposition testimony by Misty White, the first 
paramedic at the scene, that Illidge was handcuffed 
and shackled when she arrived, making effective CPR 
impossible, and (2) deposition testimony by Gloria 
Warr that, contrary to statements in her declaration, 
Warr did not witness the officers perform CPR on



8a

Illidge because she quit watching the encounter before 
Illidge became unresponsive.5 The district court 
denied Callwood’s motion because she failed to show 
good cause to modify the pretrial scheduling order. 
That ruling was not an abuse of discretion.

Federal Rule of Civil Procedure 16(b) states that 
the pretrial scheduling order “must limit the time to 
join other parties, amend the pleadings, complete 
discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A) 
(emphases added). The scheduling order in this case 
set the deadline for amending the pleadings as October 
9, 2015 — 10 months before Callwood moved for leave 
to amend. Under Rule 16(b) a party may modify a 
scheduling order “only for good cause and with the 
judge’s consent.” M. 16(b)(4); see also Sosa v. Airprint 
Sys., Inc., 133 F3d. 1417, 1418 (11th Cir. 1998) (“This 
good cause standard precludes modification unless the 
schedule cannot be met despite the diligence of the 
party seeking the extension.”) (quotation marks

5 Callwood also contends that Dr. William Warr, Gloria 
Warr’s husband, is a medical doctor, who was present on the night 
Illidge died, offered his services when Illidge became 
unresponsive, and was refused by the officers. Because she did not 
present that theory on argument in the district court, we will not 
consider it. See Fils v, City of Aventura, 647 F.3d 1272,1284 (11th 
Cir. 2011) (“To prevail on a particular theory of liabilty, a party 
must present that argument to the district court.”); Smithy. Sec’y, 
Dep’t of Corr., 572 F.3d 1327, 1352 (11th Cir. 2009) (Where “[t]he 
district court did not consider that argument because it was not 
fairly presented . . . we will not decide it.”); Tannenbaum v. 
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam) 
(“[I]ssues not raised below are normally deemed waived.”); 
Skinner v. City of Miami, 62 F.3d 344, 348 (11th Cir. 1995) (“[A]s 
a general rule, an appellate court will not consider a legal issue or 
theory raised for the first time on appeal.”)



9a

omitted). As the district court ruled, Call wood cannot 
meet that standard because she had the information to 
support her additional claim before the October 
deadline. See Sosa , 133 F.3d at 1419 (concluding that 
a plaintiff failed to show good cause because “the 
information supporting the proposed amendment to 
the complaint was available to [her] even before she 
filed suit”).6

Before filing the lawsuit that led to this appeal, 
Callwood reviewed the Alabama Bureau of 
Investigation file. That file contained the Care 
Ambulance Patient Care Report, which included 
statements by Paramedic White and Kyle Butler, the 
second paramedic at the scene, that Illidge was 
handcuffed and shackled when they arrived. In light of 
the paramedics’ report, White’s deposition testimony 
to the same effect did not present new information 
sufficient to show good cause. See id. The paramedics’ 
report also states that the officers were performing 
CPR when the paramedics arrived, showing that 
Callwood had evidence, independent of Warr’s 
incorrect affidavit testimony, that the officers 
performed CPR. Because Callwood had “the 
information supporting the proposed amendment to 
the complaint . . . before she filed suit,” she has not 
demonstrated good cause to modify the scheduling

6 The parties focus on Federal Rule of Civil Procedure 
15(a). But when a plaintiff, like Callwood, files a “motion to 
amend . . . after the scheduling order’s deadline, she must first 
demonstrate good cause under rule 16(b) before we will consider 
whether amendment is proper under Rule 15(a).” Sosa 133 F.3d 
at 1419.



10a

order deadline, and the district court did not abuse its 
discretion by denying her motion to amend.' See id.

B. The Officers Are Entitled to Qualified Immunity

Callwood next contends that the officers are not 
entitled to qualified immunity.7 8 “Qualified immunity 
offers complete protection for government officials sued 
in their individual capacities if their conduct does not 
violate clearly established statutory or constitutional 
rights of which a reasonable person would have 
known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th 
Cir. 2002) (quotation marks omitted).

7 In her motion to amend Callwood also asserted that after 
scheduling order deadline had passed, she found evidence that 
when the officers encountered Illidge they though he suffered 
from excited delirium. Callwood did not argue that to us as a 
ground for modifying the scheduling order, so it is deemed 
abandoned. See AT&T Broadband. 381 F.3d at 1320 n.14.

8 In challenging the summary judgment in favor of the 
officers, Callwood asserts that the district court failed to consider 
discrepancies in the testimony of Gloria Warr and Norman and 
Leigh Ann Woodham, which raises a genuine issue of fact about 
the officers’ credibility. But Callwood moved the court to strike 
from the record the allegedly false or inconsistent testimony in 
Warr’s declaration and in the Woodhams’ affidavits. The district 
court granted that motion and for that reason did not consider 
any discrepancies in those documents in its summary judgment 
ruling. Because Callwood ‘s motion to strike kept the court from 
considering the inconsistent statements, she may not now argue 
that it erred by not considering them. Cf. United States v. Harris, 
443 F.3d 822, 823-24 (11th Cir. 2006) (“The doctrine of invited 
error is implicated when a party induces or invites the district 
court into making an error. Where a party invites error, the Court 
is precluded from reviewing that error on appeal.”) (quotation 
marks and citations omitted).



11a

Our qualified immunity analysis proceeds in two 
steps. First, the government official must “establish 
that he was acting within the scope of his discretionary 
authority when the allegedly wrongful act occurred. 
Oliver, 586 F.3 at 905 (quotation marks omitted). 
Callwood does not dispute that point, so the burden 
shifts to her to show that qualified immunity is 
inappropriate. Id  Qualified immunity is inappropriate 
if Callwood establishes that the officers violated a 
constitutional right and that the right was “clearly 
established” at the time of the incident.” Id. We have 
the discretion to “decide these two issues in either 
order,” Wate v. Kubler, 839 F.3d 1012, 1018-19 (11th 
Cir. 2016), meaning “discussion of a constitutional 
violation may become unnecessary for qualified 
immunity purposes when the right was not clearly 
established,” Lewis, 561 F.3d at 1291.

Callwood argues that each officer violated Illidge’s 
Fourth Amendment right to be free from excessive 
force by either using excessive force himself or failing 
to intervene in a fellow officer’s use of excessive force. 
She asserts those claims in relation to three distinct 
instances of force: (1) when Deputy Mills tased Illidge,



12a

(2) when Deputy Smith tased Illidge, and (3) when the 
officers used restraints and their body weight 
collectively to secure Illidge.9

W e. begin by analyzing whether those actions 
violated clearly established law. To be clearly 
established, the right must be “sufficiently clear that 
every reasonable official would have understood that 
what he is doing violates that right.” Mikko v. City of 
Atlanta, 857 F.3d 1136, 1146 (11th Cir. 2017) 
(quotation marks omitted). “The salient question is 
whether the state of the law at the time of an incident 
provided ‘fair warning’ to the defendants that their 
alleged conduct was unconstitutional.” Salvato v. 
Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (quotation 
marks omitted and alterations adopted). That 
standard does not require “ [e]xact factual identity with 
a previously decided case[,] . . . but the unlawfulness 
of the conduct must be apparent from pre-existing 
law.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 
2011) (en banc). When analyzing previous cases, we 
look to binding decisions of the Supreme Court, this 
Court, and the highest court of the pertinent state. 
Wate, 839 F.3d at 1018.

9 Callwood discusses those three instances together in her 
briefs, suggesting that the officers’ actions throughout the night 
collectively rise to the level of “excessive force.” We could find no 
decisions analyzing the qualified immunity defense in that way. 
And some of our decisions address the issue more narrowly, 
analyzing each taser strike by an individual officer as its own 
instance of “force.” See, e.g., Oliver, 586 F.3d at 906 (holding that 
the officer’s “initial, single Taser shock to calm the suspect may 
have been justified,” but the seven shocks after that were 
excessive).



13a

1. Deputies Mills and Smith Did Not Violate Clearly 
Established Law When They Tased Illidge

Callwood argues that Deputies Mills and Smith, 
the first two officers on the scene, violated Illidge’s 
clearly established right when they tased him. In 
support of her arguments, she relies heavily on our 
own opinion in Oliver, which held that officers were 
not entitled to qualified immunity when they tased a 
suspect seven times while he lay clenched up on the 
hot asphalt pavement. 586 F.3d at 903. We concluded 
that despite the lack of fact-specific, on point 
precedent, “any reasonable officer would have 
recognized that his actions were unlawful” because 
“the force employed was so utterly disproportionate to 
the level of force reasonably necessary.” IcL at 908. The 
repeated use of the taser in that case was clearly 
unlawful because the suspect:

was not accused of or suspected of any crime 
. . . .  was not threatened with arrest or 
apprehension at any time prior to (or after) 
the use of force [,] . . . .  posed no immediate 
threat of danger to officers [,] . . . .  did not act 
belligerently[,] . . . .  was largely compliant 
and cooperative [,] . . . .  did not pose any grave 
danger to others [,] . . . .  [and] was not actively 
resisting arrest nor attempting to evade 
arrest by flight.

Id. at 906-907.
This case does not present the “obvious clarity” 

type of situation that was present in Oliver. 
Throughout the night, Illidge acted erratically, ignored 
commands to stop, and tried to enter homes. Deputy



14a

Mills used the taser initially because Illidge ignored 
his command and kept coming toward Mills, and he 
continued to use the taser because Illidge resisted so 
violently that Mills was convinced he was “fighting for 
[his] life.” When Deputy Smith tased him, Illidge was 
fighting three officers’ attempts to restrain him. In 
those circumstances, neither Mills’ nor Smith’s use of 
force was so “utterly disproportionate” that “any 
reasonable officer would have recognized that his 
actions were unlawful.” Id. at 908.

Callwood also argues that Oliver clearly 
established that “repeatedly shocking Illidge[,] who 
exhibited . . . symptoms of ‘Excited Delirium[,]’ . . . 
after he had fallen to the ground was unlawful.” 
Although the point at which a suspect falls to the 
ground is relevant to the analysis because it may 
suggest he is no longer resisting, see id  at 901 (suspect 
was “lying on the hot pavement, immobilized and 
clenched up”), it is not the dividing point between 
excessive and non-excessive force. Instead that point 
usually turns on whether the suspect is completely 
restrained or otherwise resisting arrest. See Mobley v. 
Palm Beach Cty. Sheriff Dep’t, 783 F.3d 1347, 1356 
(11th Cir. 2015) (“[F]orce applied while the suspect has 
not given up and stopped resisting and may still pose 
a danger to the arresting officers, even when that force 
is severe, is not necessarily excessive.”); see also Hoyt, 
672 F.3d at 978-80 (refusing to extend Oliver’s holding 
when officers tased the suspect after he fell to the 
ground because he “continued to pose a danger” and 
“never ceased his vigorous resistance to the attempts 
to handcuff him”); Mann, 588 F.ed at 1306 (concluding 
that the “use of a [t]aser[ ] was appropriate” when the



15a

suspect’s behavior was violent, aggressive and 
prolonged”).

When Deputies Mills and Smith tased. Illidge, he 
was unrestrained and aggressively resisting the 
officers’ attempts to stop and secure him. Given those 
facts and our holdings in Mobley, Hoyt, and Mann, the 
use of a taser by the two deputies did not violate 
clearly established law.10 Both officers are entitled to 
qualified immunity.

In addition to arguing that Deputy Smith’s taser 
use was itself a constitutional violation, Callwood 
argues that the other officers violated Illidge’s 
constitutional right by not intervening in Smith’s use 
of force.11 An officer’s duty to intervene is triggered 
when he sees a fellow officer use excessive force. See 
Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996) 
(finding the officer had no duty to intervene because he 
“observed no use of excessive force”). Because the law 
does not clearly establish that Smith used excessive 
force, the other officers had no duty to intervene. See 
Barton v. Norrod. 106 F.3d 1289, 1299 (6th Cir. 1997) 
(concluding that an observing officer was entitled to 
qualified immunity because “there was no clearly 
established right being violated for which [he] had a 
duty to intervene and protect”).

10 Because we conclude that neither Mills nor Smith violated 
clearly established law, we do not decide whether they violated 
Illidge’s constitutional right. See Lewis, 561 F.3d at 1291.

11 Deputy Mills’ use of a taser occurred when no other officer 
was present, so there could be no duty to intervene at that time.



16a

2. The Officers Did Not Violate Clearly Established

Law When They Restrained Illidge

Callwood next argues that all of the officers used 
excessive force when they hogtied and “applied] their 
body weight” to Illidge.12 The officers assert that they

held Illidge down and called for additional restraints 
after he was handcuffed because Illidge continued to 
kick and resist. Callwood responds that a jury could 
reasonably infer that Illidge continued to move not 
because he was resisting but because he was 
struggling to breathe. Tragically, that may be so, but 
for qualified immunity purposes we must take the 
facts as a reasonable officer on the scene could have 
viewed them. See Vinyard, 311 F.3d at 1347. 
Throughout the incident, Illidge resisted all of the 
officers’ attempts to subdue him and ignored their 
repeated requests to calm down. A reasonable officer 
could have believed that Illidge continued to resist 
arrest and that he posed a danger to the officers and 
himself by resisting. For that reason, we cannot say 
that the officers’ use of force was so “utterly 
disproportionate” that “any reasonable officer would 
have recognized that his actions were unlawful.” 
Oliver, 586 F.3d at 908.

12 Callwood asserts that the officers “dogpile[d]” on top of 
Illidge, but she points to no evidence that the six of them were 
holding or on top of Illidge at the same time. The record shows 
that, at most, three officers held him down at any given time. And 
although Williams weighed 385 pounds at the time, the evidence 
shows that he remained on the balls of his feet throughout the 
encounter and never placed his full body weight on Illidge.



17a

Nor does our binding precedent clearly establish 
that physically restraining Illidge in those 
circumstances was unlawful. Callwood cites our 
conclusion in Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 
2002), arguing that it clearly establishes the general 
principle that any use of force after a suspect is 
completely secured and the danger to the arresting 
officer has passed constitutes excessive force.

Although the point at which a suspect is 
handcuffed will also often be the point at which he no 
longer poses a danger, that is not always the case. See 
Lewis, 561 F.3d at 1292. In Lewis we held that officers
did not violate clearly established law when they 
physically restrained and hogtied a suspect because he 
repeatedly ignored their requests to calm down and 
continued to resist even after being placed in handcuffs 
and leg restraints. Id. The suspect was “an agitated 
and uncooperative man with only a tenuous grasp on 
reality.” Id  (quotation marks omitted). And he 
“remained a safety risk to himself and others” because 
he continued to kick and struggle and refused to 
remain calm. Id.; see also Garrett v. Athens-Clarke 
County, 378 F.3d 1274, 1280 (11th Cir. 2004) (holding 
that officers were entitled to qualified immunity when 
they held a suspect to the ground, sprayed him with 
pepper spray, and hogtied him because the suspect 
“consistently put his life and the lives of others in 
danger” and showed “that he ha[d] every intention of 
fighting and forcibly escaping arrest if possible”).

Like the suspect in Lewis, Illidge resisted the 
officers’ attempts to stop him, ignored their commands 
to calm down, and appeared to suffer from excited 
delirium, suggesting that he also had “only a tenuous



18a

grasp on reality.” See Lewis, 561 F.3d at 1292. 
Multiple officers testified that Illidge exhibited 
“superhuman” strength and that he struggled and 
kicked even after he was restrained. Given those facts 
and our holding in Lewis, the officers’ actions did not 
violate clearly established law, and as a result, they 
are entitled to qualified immunity.13 And because the 
officers did not violate clearly established law, none of 
the officers had a duty to intervene in the other 
officers’ use of restraints. See Riley, 94 F.3d at 635; 
Barton 106 F.3d at 1299.

AFFIRMED.14

13 Because we conclude that the officers did not violate 
clearly established law, we do not decide whether they violated 
Illidge’s constitutional right to be free from excessive force. See 
Lewis, 561 F3d. At 1291.

14 The district court did not abuse its discretion by declining 
to exercise supplemental jurisdiction over the remaining state law 
claims. See Raney v. Allstate Ins. Co., 370 F3d. 1086, 1088-89 
(11th Cir. 2004).



19a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

Civil Action No. 2:15CV182-WHA 
(wo)

GLADIS CALLWOOD, as Administratix of the 
Estate of KHARI NEVILLE ILLIDGE,

Plaintiff,
v.

PHENIX CITY, ALABAMA, a municipal corporation; 
JAY JONES, individually;

CHARLES W. JENKINS, JR, individually; 
STEVEN M. MILLS, individually;

RAY SMITH, individually;
JOEY WILLIAMS, individually;
DAVID BUTLER, individually;
SHAWN SHEELY, individually; 

and RAYMOND J. SMITH, individually,
Defendants.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This case is before the court on a Motion for 
Summary Judgment filed by Defendants David Butler, 
Phenix City, Shawn Sheely, Raymond J. Smith, and 
Joey Williams (Doc. #76); a Motion for Summary 
Judgment filed by Charles W. Jenkins Jr., Jay Jones, 
Steven M. Mills, and Ray Smith (Doc. #79); a Motion



20a

to Strike Paragraphs 3, 4, and 5 of the Declaration of 
Gloria Warr filed by Gladis Callwood (“Callwood”) 
(Doc. #111); a Motion to Amend/Correct filed by 
Callwood (Doc. #112); a Motion to Strike filed by 
Callwood (Doc. #114); and a Motion to Strike filed by 
the Defendants (Doc. #132).

For the reasons to be discussed, the Motions to 
Strike are due to be GRANTED or DENIED, the 
Motion to Amend/Correct Motion is due to be 
GRANTED, and the Motions for Summary Judgment 
are due to be GRANTED as to the federal claims and 
the court will decline to exercise supplemental 
jurisdiction over the state law claims.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if there is no 
genuine issue as to any material fact and . . . the 
moving party is entitled to a judgment as a matter of 
law." CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986).

The party asking for summary judgment “always 
bears the initial responsibility of informing the district 
court of the basis for its motion,” relying on 
submissions “which it believes demonstrate the 
absence of a genuine issue of material fact.” Id. at 323. 
Once the moving party has met its burden, the 
nonmoving party must “go beyond the pleadings” and 
show that there is a genuine issue for trial. Id. at 324.

Both the party “asserting that a fact cannot be,” 
and a party asserting that a fact is genuinely disputed, 
must support their assertions by “citing to particular 
parts of materials in the record,” or by “showing that 
the materials cited do not establish the absence or 
presence of a genuine dispute, or that an adverse party



21a

cannot produce admissible evidence to support the 
fact.” Fed. R. Civ. P. 56 (c)(l)(A),(B). Acceptable 
materials under Rule 56(c)(1)(A) include “depositions, 
documents, electronically stored information, affidavits 
or declarations, stipulations (including those made for 
purposes of the motion only), admissions, interrogatory 
answers, or other materials.”

To avoid summary judgment, the nonmoving party 
"must do more than show that there is some 
metaphysical doubt as to the material facts." 
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 
U.S. 574, 586 (1986). On the other hand, the evidence 
of the nonmovant must be believed and all justifiable 
inferences must be drawn in its favor. See Anderson v. 
Liberty Lobby, 477 U.S. 242, 255 (1986).

After the nonmoving party has responded to the 
motion for summary judgment, 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).

III. FACTS

The facts before the court, construed in a light 
most favorable to the Plaintiff, are as follows:

The Plaintiff, Callwood, is the Administratrix of 
the Estate of Khari Illidge (“Illidge”). The case arises 
out of the tragic death of Illidge in Lee County, 
Alabama arising out of his arrest by the Defendant law 
enforcement officers. Claims have been brought in 
this case against Lee County Defendants including the 
Lee County Sheriff Jay Jones and Lee County Sheriff 
Deputies Steven M. Mills, Ray Smith, and Charles



22a

Jenkins, Jr. Claims have also been brought against 
Phenix City Defendants including the City of Phenix 
City, Police Chief of the City of Phenix City Raymond 
Smith, and police officers David Butler, Joey Williams, 
Shawn Sheely.

On March 24, 2013, Illidge was with his friend 
Nicholas Woodham when he began acting strangely. 
Illidge ran into Woodham’s yard, took off all of his 
clothes, and began walking down the road. Illidge 
arrived at Woodham’s parents’ home, and then walked 
across the road. Leigh Ann Woodham arrived home, 
learned of the situation, and called 911 to report it. 
There is some question as to whether at that point, or 
at a later point, someone suggested to Mr. and Mrs. 
Woodham that Illidge had taken LSD.

At around 6:45 p.m., Defendants Lee County, 
Alabama Deputy Sheriff Steven Mills (“Mills”) and 
Deputy Sheriff Ray Smith (“Ray Smith”),1 who were on 
patrol in separate vehicles, received dispatch calls 
about a report of a naked, black man running down 
Lee County Road 314. They began to look for the 
person.

Mills stated in an affidavit that he then received a 
second dispatch call that a naked, black man had been 
in or at someone’s home. (Doc. #81-1 at f  3; Doc. #134-1 
at p.81:16-22). Ray Smith similarly stated in an 
affidavit that he received a second dispatch call at 7:45 
p.m. regarding a naked, black man entering a house on 
Lee County Road 308 and heard Mills over the radio 
responding to that call. (Doc. #81-2 at If4). Callwood

1 The court will refer to Lee County Sheriff Deputy as “Ray 
Smith” and Phenix City Police Chief as “Raymond Smith.”



23a

states that these facts are disputed, stating that there 
is evidence that Mills did not have knowledge of or 
details regarding Illidge entering a residence. The 
evidence Callwood cites to is Mills’ statement “ (tjhey 
said he’d been at a residence, but I didn’t have any 
details on that.” (Doc. 144-33 at p. 21:11-15).2 Evidence 
that Mills did not know the details of Illidge entering 
the residence, however, does not refute that he 
received the dispatch that Illidge had been at 
someone’s home.

Mills’ initial encounter with the naked person, 
whom he later learned was Illidge, was captured on 
the dashboard camera video of Mills’ patrol vehicle 
where a naked man is seen walking away from Mills 
(Doc. #85, Exhibit TT). During this time. Mills radioed 
dispatch that Illidge is 10-96 (mentally ill) and 
possibly 10-77 (under the influence). Some of the 
encounter is visible, and there is audio. The video 
reveals that it was dark outside at that time. Mills can 
be heard calling to Illidge and Illidge walked away 
from Mills. Mills exited his vehicle to follow Illidge and 
Illidge said “excuse me, out of the way” as he was 
walking toward Mills.

Mills stated in his affidavit that at that point, 
which is out of the view of the camera, Illidge began 
walking toward Mills and entered his zone of safety. 
(Doc. #81-1). Mills said that he would taser Illidge, but 
Illidge continued walking. Mills shot Illidge with his 
X26 Taser. Mills stated in his affidavit that Illidge was

2 The court has referred to cited deposition testimony by 
the court’s CM/ECF document number, but the internal page and 
line numbers from the depositions.



24a

between three and five feet of him at that time. Mills 
states that Illidge did not drop to the ground after 
being tased and began walking away. (Doc. #81-1). 
Illidge then turned toward the porch of the home at 
1920 Pierce Road. Mills touched Illidge’s side with the 
Taser in drive stun mode.3 Illidge then fell to the 
ground and Mills attempted to pin him.

Mills stated in his affidavit that Illidge 
overpowered him and was able to lift up off the ground 
with Mills on him. (Doc. #81-1 at f  9). Mills struck him 
with the Taser several times. Mills also states that 
Illidge grabbed him and slung him at least 10 feet. 
(Doc. #81-1 at 19).

The Defendants present the download logs from 
Mills’ Taser and state that Mills discharged the Taser 
five times. Mills radioed dispatch and asked for 
assistance.

Mills spotted Illidge heading toward another 
resident at 1866 Pierce Road. Mills saw Illidge climb 
a barbed wire fence. Ray Smith arrived on the scene 
and the two followed Illidge, yelling for Illidge to stop. 
Ray Smith believed that Illidge may have been 
suffering from Excited Delirium. (Doc. #81-2).

Illidge went to the rear of the home at 1866 Pierce 
Road, the home of Dr. Charles and Gloria Warr with

3 Tasers can be used in two modes, one is dart or prong 
mode in which a barbed point makes contact with the skin and 
the other is drive or dry stun mode in which the electrified tips of 
the Taser are touched to the skin directly. Hoyt v. Cooks, 672 F.3d 
972, 980 (11th Cir. 2012); (Doc. #106-1). A Taser is set to cycle for 
five seconds. The cycle can be ended sooner than five seconds. 
(Doc. #106-1).



25a

Mills and Ray Smith following him. Phenix City Police 
Officer David Butler (“Butler”) also arrived at the 
home of the Warrs. The deputies told Illidge to get on 
the ground, but he did not comply. (Doc. #81-5 at f4). 
Ray Smith stated in an affidavit that Illidge turned 
toward them in a hostile manner, (Doc. #81-2 at |̂7), 
and Butler characterized it in his affidavit as a “rapid 
and aggressive move.” (Doc. #81-5 at |̂4). In an 
interview with the Alabama Bureau of Investigation 
(“ABI”), Butler stated that Mills and Ray Smith 
instructed Illidge to stop and get down on the ground, 
but he walked to the house instead, shook the door 
knob, they instructed him to stop right there, he began 
walking away, and then made a rapid movement 
toward Ray Smith. (Doc. #134-4 at p.46).

Ray Smith applied a Taser to Illidge and Illidge 
fell to the ground on his stomach. Mills and Butler 
applied their weight to Illidge in an attempt to place 
handcuffs on him. Smith used his Taser several 
additional times but Illidge continued to move. In 
total, Ray Smith used the Taser fourteen times. The 
use of the Taser fourteen times is not consistent with 
its use as presented in law enforcement training.

Callwood relies on Butler’s deposition testimony 
in support of her timeline for the use of the Taser. In 
the portion cited by Callwood, which was transcribed 
from an oral statement given by Butler to ABI 
Investigator Arrington and played during Butler’s 
deposition and acknowledged by Butler as being 
truthful, Butler states as follows:



26a

18 INVESTIGATOR ARRINGTON: Okay.
19 So, Corporal Mills was able to get a cuff on
20 at one point?
21 OFFICER BUTLER: Yes, sir.
22 INVESTIGATOR ARRINGTON: Okay.
23 And Corporal Mills has got the left hand,
1 you've got the right hand, where is Deputy
2 Smith at?
3 OFFICER BUTLER: Deputy Smith
4 was still standing behind the individual.
5 INVESTIGATOR ARRINGTON: Okay.
6 Was Deputy Smith still controlling the 

TASER,
7 so to say?
8 OFFICER BUTLER: Yes. At that
9 point.
10 INVESTIGATOR ARRINGTON: Okay.
11 So if you don't know, tell me you don't know.
12 Was Deputy Smith controlling the TASER if 

the
13 individual needed more -  If he needed to use
14 the TASER more, was Deputy Smith doing 

that,
15 exerting --
16 OFFICER BUTLER: If he needed
17 it, but I'm not sure how the whole TASER
18 works.

(Doc. #106-15 at p.51:18-52-18).

The testimony continued as follows:

19 INVESTIGATOR ARRINGTON: Okay.
20 Okay. But you know that Deputy Smith is
21 holding the TASER, you and Corporal Mills

are



27a

22 on each side of his body trying to get an arm?
23 OFFICER BUTLER: Correct.
1 INVESTIGATOR ARRINGTON: Okay.
2 You say Corporal Smith got one arm and you
3 eventually got another arm?
4 OFFICER BUTLER: Yes.
5 INVESTIGATOR ARRINGTON: Okay.
6 And that's approximately -- As far as, I mean
7 how long -  five minutes for the first arm
8 wrestle. How long would you say for the
9 second arm?
10 OFFICER BUTLER: Two or three
11 minutes.
12 INVESTIGATOR ARRINGTON: Okay.
13 So a total of seven minutes?
14 OFFICER BUTLER: Yes.
15 INVESTIGATOR ARRINGTON: So,
16 you're getting to the point where you were --
17 your almost physically spent, you're getting
18 tired?
19 OFFICER BUTLER: Yes, sir.
20 INVESTIGATOR ARRINGTON:
21 Corporal Mills is getting tired?
22 OFFICER BUTLER: Yes, sir.
23 INVESTIGATOR ARRINGTON: Okay.
1 What happens next? Do the individuals show
2 up?
3 OFFICER BUTLER: At that point,
4 we were able to get him into custody with his
5 right arm. And Corporal -  Deputy Smith used
6 a metal PR 24 and placed it in between his
7 handcuff, the subject's handcuff and his
8 spine.
9 INVESTIGATOR ARRINGTON: Okay.



28a

10 And that was for leverage?
11 OFFICER BUTLER: Yes, sir.
12 INVESTIGATOR ARRINGTON: Okay.
13 In your opinion, was that strictly for
14 leverage?
15 OFFICER BUTLER: Yes.
16 INVESTIGATOR ARRINGTON: Was
17 there any use of force done with that PR 24 or
18 ASP, as you call it?
19 THE WITNESS: No, sir.
20 INVESTIGATOR ARRINGTON: So, it
21 was all for leverage?
22 OFFICER BUTLER: Yes.
23 INVESTIGATOR ARRINGTON: That
1 your opinion, that's normal; right?
2 OFFICER BUTLER: Yes.
3 INVESTIGATOR ARRINGTON: Okay.
4 So, at that point, Officer Sheely -  Did
5 anyone else from Phenix City show up?
6 OFFICER BUTLER: Darryl
7 Williams.
8 INVESTIGATOR ARRINGTON: Okay.
9 Sergeant Darryl Williams?
10 OFFICER BUTLER: Yes.
11 INVESTIGATOR ARRINGTON: Was he
12 there at that time?
13 OFFICER BUTLER: Yes.
14 INVESTIGATOR ARRINGTON: Okay.
15 What was he doing when --
16 OFFICER BUTLER: He replaced
17 Deputy Smith.

(Doc. 106-15 at p.52:19-61:17).



29a

Ray Smith states in his deposition that they 
initially were unsuccessful in getting the handcuffs on 
Illidge and that Ray Smith had “re-energized the taser 
as he was coming up.” (Doc. #134-2 at p.69:15-22). In 
his affidavit, Ray Smith explains that he used the 
Taser several times while Butler and Mills were 
attempting to handcuff Illidge, and then he put down 
the Taser and assisted Mills and Butler as they pulled 
Illidge’s arms close enough together to handcuff 
Illidge. (Doc. #81-2 at t8).

After the handcuffs were secured, Illidge continued 
to struggle, and got up and moved the officers.

Gloria Warr witnessed some of the interaction of 
the Defendants and Illidge. At around 9:00 p.m., 
Gloria Warr heard the sound of someone trying to open 
the back patio door and saw Illidge at the door. The 
Defendants rely on an affidavit version of her 
recollection, portions of which have been challenged 
and, as will be discussed below, the court has not 
considered. In her deposition, Gloria Warr stated that 
after she first saw Illidge at the back door, she went to 
retrieve her gun, and the next time she saw him, there 
were two or three officers “trying to subdue him at that 
time.” (Doc. #11-3 at p.50:10-18). Gloria Warr stated 
that Illidge was trying to go up the stairs and the 
officers were going with him. (Id. at p.51:1-6). Gloria 
Warr never saw Illidge being tased. (Id. at p.51.17- 
52:5). Gloria Warr stated that she heard the police 
officers tell Illidge numerous times to calm down, and 
that it was going to be all right. (Doc. #111-3 at 
p.61:16-23).

While the officers characterize Illidge as carrying 
the officers 20 feet, Callwood points to Gloria Warr s



30a

testimony on this point, which this court accepts for 
purposes of the Motion for Summary Judgment, that 
it was like Illidge was still trying to move, the officers 
were trying to stop him, and Illidge was “just moving, 
going up the steps.” (Doc. #106-23 at p.52:14-17).

Phenix City Police Officers Shawn Sheely 
(“Sheely”) and Joey Williams (“Williams”) arrived on 
the scene. Illidge was kicking, so Sheely was asked to 
find leg restraints, and left to do so. Charles Jenkins, 
Jr. (“Jenkins”) arrived with leg shackles and three flex 
cuffs and the officers affixed the leg irons. Three sets 
of linked flex cuffs were attached from the leg irons on 
Illidge to the handcuffs. (Doc. #81-3).

Williams placed a knee between Illidge’s shoulder 
blades and another in the middle of Illidge’s back, with 
his feet on the ground. Williams weighed 385 pounds 
at the time. Sheely was also restraining Illidge’s legs.

Illidge suddenly became unresponsive. Twenty- 
three minutes had elapsed since the Taser was last 
used.

Illidge was turned on his side and Jenkins 
observed a white, frothy substance and blood coming 
from Illidge’s nose and mouth.

Illidge was transported to a hospital by ambulance 
where he was pronounced dead.

An autopsy was performed on Illidge by a forensic 
pathologist and no LSD was discovered in Illidge’s 
system post-mortem.

Defendants Jay Jones and Raymond J. Smith were 
not present at the scene, but claims were brought



31a

against them in their individual capacities on a theory 
of failure to train.4

IV. DISCUSSION

Before the court can address the claims brought, 
and the grounds for summary judgment asserted as to 
those claims, there are evidentiary issues which have 
been raised in various motions to strike which must be 
addressed.

Evidentiary Issues

The Plaintiff, Callwood, seeks to strike various 
paragraphs of the declaration of Gloria Warr and the 
affidavits of Norman Woodham and Leigh Ann 
Woodham. These individuals are third-party 
witnesses. As earlier noted, Gloria Warr is a 
homeowner who witnessed some of the interaction 
between Illidge and the Defendant officers. The 
Woodhams are parents of a friend of Illidge from 
whose home Illidge departed at the start of the events 
in question.

Callwood argues that Gloria Warr’s Declaration 
was not prepared by her, and during her deposition, 
she testified that several passages in the Declaration 
were false and that she signed the Declaration only 
because she had been told that those passages would 
be removed before the Declaration was filed.

Specifically, Callwood points to paragraphs 3, 4, 
and 5 of Gloria Warr’s Declaration which state that 
Illidge gestured and approached the officers and

4 Raymond J. Smith in his individual capacity has been 
dismissed as a Defendant in this case. (Doc. #123).



32a

resisted their restraint and the officers attempted to 
perform CPR when Illidge stopped struggling. 
Callwood states that Gloria Warr testified in her 
deposition that she saw Illidge at the backdoor of her 
sunroom, but never saw him gesture with clinched 
fists, or approach the officers or struggle, and never 
saw them begin CPR.

With regard to the Declarations of the Woodhams, 
Callwood argues that their affidavits contain a false 
statement in paragraph four because they state that at 
the time Illidge left their home, their son Nicholas told 
them that Illidge had consumed a hallucinogenic drug, 
but their depositions confirm that no one told Mrs. 
Woodham that Illidge had taken anything and Mr. 
Woodham stated that Nicholas told him he did not 
know if Illidge had taken something.

The Defendants essentially concede that the 
Declaration and Affidavits conflict with other 
testimony on the points identified and that the facts 
must be construed in a light most favorable to the non­
movant. (Doc. #124 at p.8; Doc. #116 at p.7). For 
purposes of the Motion for Summary Judgment, 
therefore, the court will not consider the portions of 
the Declaration and Affidavit statements of Warr and 
the Woodhams contradicted by other evidence, and the 
Motions to Strike are due to be GRANTED.

The Defendants also jointly move to strike 
Exhibits 1, 4, 24, 27 and 28 to the Plaintiffs 
Memorandum Brief in Opposition to Summary 
Judgment. The identified exhibits are two articles and 
declarations or affidavits. The Defendants contend 
that the court ought not consider these materials



33a

because they have not been produced to the 
Defendants.

Callwood argues that Exhibit 1 is an authoritative 
treatise and does not have to be produced as Callwood 
does not intend to offer it as an exhibit at trial. Exhibit 
28 is an article which Callwood contends is offered in 
rebuttal to one of the Defendants’ arguments and this 
article was cited by Callwood’s expert, Dr. Gowitt, in 
his Rule 26 Report disclosed to the Defendants. As to 
the affidavit of Callwood’s experts Michael Leonesio 
(Doc. #106-24) and Gerald T. Gowitt (Doc. #106-27), 
Callwood responds that she complied with the deadline 
to designate these experts, and that these 
supplemental affidavits comport with the disclosure 
requirement of Rule 26. Callwood states that as to the 
Affidavit of Michael Brave, Exhibit 4, (Doc. #106-4) she 
was not required to disclose the affidavit because she 
does not intend to offer it at trial.

Based upon the submissions of the parties, it does 
not appear to the court that the exhibits are due to be 
excluded for violation of Rule 26. Even if Callwood did 
not meet her obligations under Rule 26, there has not 
been a sufficient showing of harm to exclude them 
under Rule 37 (c)(1) of the Fed. R. of Civil Procedure. 
Therefore, the Motion to Strike is due to be DENIED.

Callwood’s Federal Claims

Callwood argues that the law enforcement officials 
involved in the events at issue used excessive and 
unreasonable force in violation of Illidge’s Fourth 
Amendment rights. From a review of the evidence 
presented, it appears that Callwood’s claims are 
brought in the context of three different points in the



34a

encounter between Illidge and law enforcement 
officials: the first is the beginning of the events in 
question when Mills was alone with Illidge and used a 
Taser; the second is Ray Smith’s use of a Taser, which 
gives rise to claims against both Ray Smith for using 
the Taser and against other officers for not stopping 
Ray Smith’s use of the Taser; and the third is the use 
of restraints combined with the body weight of various 
officers to secure Illidge. Claims brought against 
Sheriff Jay Jones in his individual capacity and the 
City of Phenix City also arise from these actions. The 
court will, therefore, analyze the claims against all of 
the Defendants involved in each of the three 
challenged points of encounter between Illidge and the 
Defendants. Because all of the individual Defendants 
have asserted the defense of qualified immunity, the 
court will analyze the claims against the individual 
Defendants within the framework of qualified 
immunity analysis.

A. Qualified Immunity Analysis

Qualified immunity is a protection designed to 
allow government officials to avoid the expense and 
disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 
1345 (11th Cir.1991). As a preliminary matter, the 
court must determine whether the public official was 
acting within the scope of his discretionary authority 
at the time the allegedly wrongful acts occurred. See 
Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988). 
Once it is established that a defendant was acting 
within his discretionary authority, the court must 
determine whether "[tjaken in a light most favorable 
to the party asserting the injury, do the facts alleged 
show the officer's conduct violated a constitutional



35a

right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). "[I]f 
a constitutional right would have been violated under 
the plaintiffs version of the facts," the court must then 
determine "whether the right was clearly established." 
Wood v. Kesler 323 F.3d 872, 878 (11th Cir. 2003).

Requiring that a constitutional right be clearly 
established means that liability only attaches if "[t]he 
contours of the right [violated are] sufficiently clear 
that a reasonable official would understand that what 
he is doing violates that right." United States v. 
Lanier, 520 U.S. 259, 270 (1997). In other words, a 
defendant is entitled to "fair warning" that his conduct 
deprived his victim of a constitutional right. Hope v. 
Pelzer, 536 U.S. 730, 741 (2002).

In Vinyard v. Wilson, 311 F.3d 1340, 1350—53 
(11th Cir. 2002), the Eleventh Circuit articulated three 
ways in which individual state defendants can receive 
“fair notice” that their conduct violates clearly 
established law. First, the words of a federal statute or 
constitutional provision may be specific enough “to 
establish clearly the law applicable to particular 
conduct and circumstances and to overcome qualified 
immunity, even in the total absence of case law.” Id. at 
1350 (emphasis in original). The Eleventh Circuit 
considers a case falling into this category an “obvious 
clarity case” Id. at 1350.

Second, if the conduct at issue is not so egregious 
as to violate the Constitution or a federal statue on its 
face, the court must turn its attention to case law that 
espouses “broad statements of principle . . . that are 
not tied to particularized facts.” Id. at 1351. In these 
types of cases, courts will declare “X Conduct” 
unconstitutional regardless of the specific factual



36a

situation. Id. “ [P]ut differently, the precise facts 
surrounding ‘X Conduct’ are immaterial to the 
violation,” thus these decisions can “clearly establish 
law applicable in the future to different sets of detailed 
facts.” Id.

Third, courts must look to cases that tie a 
particular type of conduct to the specific facts of the 
case. Id. With these cases, courts must examine case 
law stating that “Y Conduct” is unconstitutional in “Z 
circumstances.” Id. If the circumstances facing the 
official are “materially similar” to those of the fact- 
specific case, this precedent can clearly establish the 
applicable law and qualified immunity will not be 
warranted. Id. at 1352.

In this circuit, the law can be “clearly established” 
for qualified immunity purposes only by decisions of 
the U.S. Supreme Court, Eleventh Circuit Court of 
Appeals, or the highest court of the state where the 
case arose. Thomas ex rel. Thomas v. Roberts, 323 F.3d 
950, 953 (11th Cir. 2003).

Once a determination is made that the official was 
acting within the scope of his discretionary authority 
when the allegedly wrongful acts occurred, a court can 
exercise its discretion to determine which prong of the 
inquiry to address first. Oliver v. Fiorino, 586 F.3d 
898, 905 (11th Cir. 2009).

There is apparently no dispute that the individual 
officers were acting within their discretionary 
authority in this case. Therefore, the court turns to 
the issue of whether there is sufficient evidence to 
create a question of fact as to whether the officers 
violated clearly established law.



37a

B. Claim Arising from Initial Use of Taser by 
Lee County Sheriff Deputy Steven M. Mills5

The Fourth Amendment’s freedom. from 
unreasonable seizures encompasses the right to be free 
from excessive force during the course of criminal 
apprehension. Graham v. Connor, 490 U.S. 386 (1989); 
Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009). 
Excessive force is measured by an objective 
reasonableness standard which balances the nature 
and quality of the intrusion on Fourth Amendment 
interests against the government interest at stake. 
Oliver, 586 F.2d at 905. Reasonableness is measured 
from the perspective of a reasonable officer on the 
scene, rather than with the 20/20 vision of hindsight, 
and takes into account the severity of the crime, 
whether the suspect poses an immediate threat to the 
safety of the officers or others, and whether the 
suspect actively resisted arrest or attempted to evade 
arrest by flight. Id. Other factors to consider may 
include the need for application of force, the 
relationship between the need and the amount of force 
used, and the extent of the injury inflicted. Lee v. 
Ferraro, 284 F.3d 1188, 1198 & n.7 (11th Cir. 2002).

It is undisputed that Mills used a Taser on Illidge 
while he was alone with Illidge at 1920 Pierce Road. 
Mills argues that Illidge had engaged in criminal 
activity, as evidenced by the second dispatch call,

6 Callwood brings claims against Mills for unlawful use of 
force and failure to intervene. The unlawful use of force claim 
based on Mills’ use of a Taser will be addressed at this point in the 
discussion, and the failure to intervene claim will be discussed in 
connection with the discussion of the claims based on the use of 
a Taser by Defendant Ray Smith.



38a

Illidge did not respond to Mills’ commands, Mills told 
Illidge he would use the Taser and used it when Illidge 
entered into his zone of safety. He explains that he 
then used the Taser multiple times because the initial 
use of the Taser did not cause Illidge to fall, but 
instead he kept walking and then turned toward the 
porch of the house. (Doc. #81-1 at *j|6). Mills used the 
Taser in drive stun mode and Illidge fell to the ground. 
(Doc. #81-1 at Tf6). Mills stated in his affidavit that 
Illidge overpowered him and was able to lift up off the 
ground with Mills on him, so he struck Illidge with the 
Taser additional times. Mills also states that Illidge 
grabbed him and slung him at least 10 feet. (Doc. #81- 
1 at Tf9).

Callwood addresses Mills’ evidence and states that 
some of the facts Mills relies on are disputed. 
Regarding the statement in Mills’ affidavit that Illidge 
entered Mills’ zone of safety, Callwood merely states in 
her brief that no evidence other than Mills’ testimony 
supports the statement. While the court is required to 
accept the non-movant’s evidence, and draw all 
reasonable inferences in favor of the non-movant, 
where Mills has offered affidavit testimony that is not 
refuted by other evidence, Callwood merely pointing 
out that there is no other evidence on that point is not 
sufficient to call that evidence into question. See 
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). 
Callwood also cites to Mills’ deposition testimony for 
the proposition that Mills did not recall being struck 
by Illidge’s hands, but that does not contradict his 
other deposition testimony that Illidge moved him “as 
if he was not there” and “threw me around, but not 
punched me.” (Doc. #106-13 at p.168:3-13).



39a

Callwood argues that Illidge was non-violent, 
exhibiting symptoms of a medical condition of Excited 
Delirium, and that the multiple uses of the Taser by 
Mills were unconstitutionally excessive. While 
Callwood places significance on the fact that Illidge 
was showing signs of Excited Delirium, this court is 
persuaded by the reasoning of opinions from other 
circuits, albeit unpublished, that because there are no 
Supreme Court decisions which require officers to 
refrain from force when dealing with an impaired 
individual, force used under those circumstances can 
be appropriate. See Waters u. Coleman, 632 F. App’x 
431, 437 (10th Cir. 2015); Batiste v. Theriot, 458 F. 
App'x 351, 355 (5th Cir. 2012) (stating “Plaintiffs claim 
that the officers should have recognized that Pierre 
was in a state of ‘excited delirium.’ But such 
recognition would not make their use of the Taser any 
less reasonable under the test for excessive force.”). 
The court, therefore, turns to the application of case 
law to the unrefuted facts regarding Mills’ use of a 
Taser against Illidge.

Callwood cites the court to Lee, 284 F.3d at 1198. 
Lee is not a case involving the use of a Taser, but is a 
case which stands for the proposition that force used 
after effecting an arrest where the person arrested was 
“fully secured” and poses “no threat at all to the officer 
or anyone else and no risk of flight” is excessive force. 
Id. at 1198. Cases analyzing the use of force in the 
form of a Taser have applied this principle. See Oliver, 
586 F.3d at 905.

Callwood has argued that Oliver applies in this 
case because, even if Mills’ initial use of the Taser was



40a

reasonable, Mills' use which continued past the initial 
use constituted an unconstitutional use of force.

In Oliver, an officer talked to a person who flagged 
her down in a road median and told her that people 
were shooting at him. The suspect struggled to free 
himself from a second officer, and the first officer used 
her Taser. The first use of the Taser dropped the 
suspect to the ground. The officer then proceeded to 
use her Taser multiple additional times even though 
the defendant was not accused of any crime, was not 
threatened with arrest, “posed no immediate threat of 
danger to officers,” “did not behave belligerently,” was 
largely compliant, and “did not pose a grave danger to 
others.” 586 F.3d at 906. The court reasoned that when 
the defendant was tasered once by the officer after he 
struggled to resist another officer, the force may have 
been justified to calm him, but the repeated tasering 
“into and beyond his complete physical capitulation 
was grossly disproportionate to any threat posed and 
unreasonable under the circumstances.” Id. at 907.

An Eleventh Circuit case subsequently applying 
Oliver held that an officer committed a constitutional 
violation where she failed to intervene when another 
officer repeatedly discharged his Taser into a suspect 
who had been handcuffed. Salvato v. Miley, 790 F.3d 
1286, 1290 (11th Cir. 2015); see also Patrick v. City of 
Birmingham, No. 2:09-CV-1825-VEH, 2012 WL 
3775865, at *12 (N.D. Ala. Aug. 29, 2012) (stating that 
in that case “similar to Oliver, that the Officer 
Defendants' firing the Taser on Mr. Patrick multiple 
times (eighteen shots over a period of less than eleven 
minutes), given his non-threatening behavior and at 
best only passive efforts at resistance, coupled with the



41a

known risks associated with using a TASER when a 
person shows signs of excited delirium or sudden death 
syndrome (which Mr. Patrick was undisputably 
exhibiting)” was a constitutional violation).

The Eleventh Circuit decided another case of use 
of force through a Taser after the parties’ briefing in
this case. See Wate v. Kubler,___ F.3d___ , 2016 WL
5929633 (11th Cir. Oct. 12, 2016). In Wate, an officer 
confronted a suspect in a body of water whom he 
thought he had probable cause to arrest for battery. A 
struggle ensued, and the officer placed one handcuff on 
the suspect, and as they continued to struggle, the 
officer began hitting the suspect and dragged him out 
of the water. The suspect then lay on the beach but the 
officer could not get the other handcuff on him because 
the suspect was resisting arrest. The officer got on top 
of the suspect and hit him. Others assisted the officer 
in placing the handcuff on the other arm by holding his 
legs, and the suspect continued to resist. The handcuff 
was placed in an usual manner, and fluid came out of 
the suspect’s mouth as he struggled to breathe. The 
officer sat on the suspect as he continued to resist, 
used pepper spray, and hit him in the face. A second 
officer arrived and the first officer continued to hit the 
suspect while the second officer put his foot on him. A 
witness stated that the suspect was immobilized. The 
suspect continued to resist, the second officer gave him 
a warning and then deployed his Taser. The officer 
used his Taser a total of five times over a two-minute 
period. The suspect stopped breathing and later died. 
The court considered claims of excessive force against 
the second officer, the officer using the Taser. The 
court explained that the eyewitness’ accounts varied, 
but that several witnesses stated that the suspect had



42a

stopped resisting during the two minutes in which the 
Taser was used. The court held that “while the first or 
maybe even the second Taser deployment may have 
been warranted,” by the third tasing, the suspect was 
“handcuffed, immobile, and still,” and there was a 
constitutional violation. 2016 WL 5929633, at *6.

By contrast, in Draper v. Reynolds, 369 F.3d 1270, 
1278 (11th Cir. 2004), a single use of a Taser was held 
to not be an unconstitutional use of force where the 
person stopped in a traffic stop was hostile, belligerent, 
and uncooperative, and the Taser was used before 
handcuffs were applied.

In an unpublished decision, relied on by the 
Defendants, the Eleventh Circuit concluded that there 
was no constitutional violation where a plaintiff 
secured in handcuffs was tased by an officer. Buckley 
v. Haddock, 292 Fed. App'x 791 (2008). In Buckley, a 
lone officer stopped the plaintiff for a traffic violation 
at night. The plaintiff refused to sign the citation, and 
allowed himself to be handcuffed, but then dropped to 
the ground and refused the officer’s commands to get 
up and to the patrol car. The officer warned him that 
the Taser would be used, and used the Taser three 
times. The court found it significant in concluding that 
there was no constitutional violation that the plaintiff 
was not bound at the feet so still had the ability to run 
and kick, was moving on the ground beside a busy 
road, and would not move to the patrol car. Id. at 795.

Similarly, in Mann u. Taser Internat’l, Inc., 588 
F.3d 1291, 1306 (2009), a suspect violently resisted 
arrest even after being placed in leg shackles so that 
she was “a danger to herself and others” and the use of 
the Taser was held to be “appropriate given the



43a

countervailing government interest of safety and 
compliance.”

It appears from these cases that use of a Taser is 
unreasonable where a Taser is used after the suspect 
was handcuffed, see, e.g., Wate, 2016 WL 5929633, at 
*6, and Salvato, 790 F.3d at 1295; limp and 
immobilized, Oliver, 586 F.3d at 908; or the suspect is 
not “argumentative, aggressive, or mobile” Boynton, 
650 F. App’x at 661, but is reasonable if the person is 
belligerent and uncooperative and not in handcuffs, 
Draper, 369 F.3d at 1278; not “fully secured,” even if 
handcuffed, Buckley, 292 F. App’x at 795; or even if 
shackled with leg irons, Mann, 588 F.2d at 1300.

The evidence in this case is that Mills had been 
dispatched to look for a naked man, whom he later 
learned was Illidge, after two calls were made to 911 
about Illidge running down the road and being found 
at a residence. When Mills found Illidge walking down 
the road, he exhibited signs of Excited Delirium and he 
did not comply with Mills’ directions, but first walked 
away from him, and eventually entered Mills’ zone of 
safety.

After the initial use of the Taser, while Mills was 
still alone with Illidge in the dark, Illidge did not drop 
to the ground, but continued walking toward a home, 
and once the Taser was used again, even though 
Illidge did drop to the ground, he actively resisted 
arrest and eventually threw Mills to the side. There is 
no evidence that at any point during this encounter 
Illidge was Tased while handcuffed, immobile and 
still, or otherwise fully-secured.



44a

Mills’ actions, therefore, are distinct from those in 
Oliver, and the cases discussed. Unlike the detained 
person in Oliver, Illidge was suspected of at least the 
crime of trespass, he had been threatened with 
apprehension, was not compliant at the time of the 
initial use of the Taser, and had entered Mills’ zone of 
safety, making the initial, single use of the Taser a 
reasonable use of force. See Draper, 369 F.3d at 1278. 
After the initial use, Illidge moved toward a home, did 
not comply with Mills’ directions, and during the use 
of the Taser actively and effectively resisted arrest. 
Considering these facts established by the evidence in 
light of all of the relevant analytical factors as applied 
by the Eleventh Circuit in the cases discussed, and 
particularly considering that Illidge was never fully- 
secured, handcuffed, or compliant, the court concludes 
that the four additional uses of a Taser by Mills were 
not constitutionally excessive.

Even if Mills’ actions violated the constitution, 
however, the Eleventh Circuit has clarified that 
continued resistance to arrest removes a case from 
obvious clarity qualified immunity analysis. See Hoyt 
v. Cooks, 672 F.3d 972 (11th Cir. 2012). In Hoyt, the 
Eleventh Circuit distinguished Oliver in conducting a 
qualified immunity inquiry, reasoning that in Oliver 
the suspect was not accused of a crime, was not 
belligerent, and the officer used a probe-style Taser 
repeatedly even after the suspect had gone limp and 
was immobilized, whereas the facts in Hoyt were that 
the plaintiff had just committed assault and battery on 
a police officer, the suspect threatened the officer and 
had only one handcuff on and tried to prevent being 
handcuffed, and the officers even “after repeatedly 
using their TASERs” in dry stun mode, had difficulty



45a

in effecting the arrest. Id. at 979-80. The court held 
that the conduct at issue did not rise to the level of 
obvious clarity and that the officers were entitled to 
qualified immunity. Id.

As the Oliver court explained in denying qualified 
immunity in that case, there was a violation of clearly 
established law under the facts in Oliver because the 
need for force was exceedingly limited, and Tasering 
the suspect at least eight, and as many as eleven or 
twelve times, in over a two-minute span without 
attempting to arrest or otherwise subdue the plaintiff, 
was so disproportionate that no reasonable officer 
could have thought the amount of force was legal 
under the circumstances. Oliver, 586 F.3d at 908; see 
also Wate, 2016 WL 5929633, at *7 (under Oliver an 
officer is not entitled to qualified immunity if the 
officer repeatedly tased someone who is handcuffed 
and had ceased struggling and resisting).

The facts of Mills’ use of the Taser are so distinct 
from those in Oliver6 that, under Hoyt, even if Mills’ 
actions constituted a constitutional violation, the court 
cannot conclude that they were a violation of clearly 
established law, in light of Eleventh Circuit precedent, 
and concludes that Mills is entitled to qualified 
immunity. Summary judgment, therefore, is due to be 
GRANTED as to the excessive force claim against 
Mills.

6 Wate, Salvato and Patrick could not clearly establish the 
law at the time of Mills’ actions because Wate and Salvato were 
decided after the events in question, and Patrick is a district court 
decision. See Hoyt v. Cooks, 672 F.3d 972, 978 (11th Cir. 2012)



46a

C. Claims Arising Out of the Use of a TASER 
by Lee County Deputy Sheriff Ray Smith

1. Excessive Force Claim Against Ray Smith

Ray Smith is the second Lee County deputy who 
used a Taser during the arrest of Illidge.The evidence, 
as set out above, is that Ray Smith joined Mills in a 
pursuit of Illidge to the patio outside of the Warrs’ 
home. Some of the events in question were witnessed 
by Gloria Warr, but she did not witness the use of the 
Taser. Illidge tried to enter the home, was instructed 
by officers to get down on the ground and to stop, but 
instead Illidge moved rapidly toward the officers. Ray 
Smith used his Taser and struck Illidge with one probe 
in Illidge’s chest and one below his waist. (Doc. #81-2 
at 17). Midge fell to the ground on his stomach. Mills 
and Phenix City Police Officer David Butler (“Butler”) 
then attempted to secure Midge in handcuffs.

The Defendants cite Smith, Butler, and Mills’s 
Affidavits in which they state that Midge resisted 
while Butler and Mills attempted to put the handcuffs 
on. (Doc. #81-2 at f7 , 81-5 at 15, 81-1 at 112). Butler 
explained that after Midge hit the ground, he 
struggled and resisted and they instructed him to calm 
down, but he did not cooperate, and that they 
struggled with him for several minutes before Mills 
was able to get a handcuff on Midge’s left hand. (Doc. 
#81-5 at 1 6). It is undisputed that Ray Smith 
deployed the Taser several times while Mills and 
Butler were trying to handcuff Midge. Smith states 
that he put down the Taser to assist Mills and Butler 
in securing the handcuffs. Even after the handcuffs 
were applied, Midge continued to struggle.



47a

The Defendants have taken the position that Ray 
Smith discharged his Taser while handcuffs the 
officers attempted to apply both handcuffs and then 
Ray Smith put the Taser aside and helped Mills and 
Butler handcuff Illidge. (Doc. #80 at p.49).

Callwood contends that Ray Smith used the Taser 
on Illidge without justification. In so- arguing, she 
disputes in her brief evidence relied upon by the 
Defendants. One such dispute apparently is the 
circumstances under which Ray Smith first used the 
Taser. Callwood argues in her brief that Illidge turned 
from the Warrs’ house and walked toward Mills and 
Ray Smith because they commanded him to, citing 
Mills’ deposition at page 200:10-13.7 That testimony by 
Mills, however, is as follows: “Q. Okay. What was the 
next thing that you remember happening? A. As he 
was coming towards me, I remember Deputy Smith 
discharged or used his Taser.” (Doc. #134-1). This 
evidence, therefore, does not call into question the 
affidavit evidence and deposition testimony that 
Illidge was instructed to get down on the ground and 
to stop. There is no evidence from which a reasonable 
inference can be drawn that in moving toward the 
officers at that point, Illidge was complying with a 
command of the officers. Avenue CLO Fund, Ltd. v. 
Bank of America, N.A., 723 F.3d 1287, 1294 (11th 
Cir.2013) (“All reasonable inferences arising from the 
undisputed facts should be made in favor of the 
nonmovant, but an inference based on speculation and 
conjecture is not reasonable.”).

7 Callwood cites page 200 of Exhibit 13. Page 200 is located 
in her Corrected Evidentiary Submissions. (Doc. #144-13).



48a

At some points in her argument, Callwood states 
that there is evidence that Ray Smith continuously 
discharged the Taser while Illidge was being 
handcuffed, and while as many as six officers were 
applying restraints and body weight to him. (Doc. 
#112-1 at p.56, 87). It is unclear whether Callwood is 
contending that there is evidence that Illidge was 
tased while he was handcuffed and being held by six 
officers, or that there is evidence that he was being 
tased only before the handcuffs were applied. If 
Callwood is taking the former position, any evidence 
creating a dispute of fact on that issue is significant in 
light of the case law addressed above which places 
great significance on whether a person was fully- 
secured at the time force was used. See Wate v. Kubler, 
_  F.3d _, 2016 WL 5929633, at *4-5 (11th Cir. Oct. 12, 
2016). Therefore, the court will first address the 
evidence regarding the relevant sequence of events.

For evidence on the timing of the use of the Taser, 
Callwood cites to testimony by Butler. Butler’s 
testimony was fully set out above, but in summary, 
Butler was asked whether Ray Smith was controlling 
the Taser, to which he answered, “If he needed it, but 
I'm not sure how the whole Taser works.” Then he 
answered, “Correct,” when asked, “Okay. But you 
know that Deputy Smith is holding the Taser, you and 
Corporal Mills are on each side of his body trying to 
get an arm?” (Doc. #106-15 at p.51:22-52-18). Butler’s 
only reference to the Taser, therefore, does not support 
a reasonable inference that Ray Smith used the Taser 
after both of Illidge’s arms were secured in handcuffs, 
or that the Taser was being used after other officers 
arrived on the scene. Additionally, Ray Smith has 
provided affirmative affidavit evidence to the contrary,



49a

specifically, his statement in an affidavit that once he 
“put down the Taser to assist in handcuffing him, [he] 
did not tase him again.” (Doc. #81-2 at *j}8).

In apparent recognition that the unrefuted 
evidence only supports that the Taser was used before 
Illidge was fully handcuffed, but not after that, in the 
argument section of her brief regarding the claims 
against Ray Smith, Callwood argues that after the 
first use of the Taser by Ray Smith, because Illidge fell 
to the ground, Mills and Butler had the opportunity to 
handcuff Illidge, which they did. (Doc. #112-1 at 
p.103). She states that Illidge was tased. after he was 
“face down on the ground and being placed in 
handcuffs.” (Doc. #112-1 at p.103). Because the 
evidence supports the theory that the Taser was used 
while Illidge was in the process of being handcuffed, 
the court will turn now to Callwood’s argument that 
the use of the Taser by Ray Smith while Illidge was 
being placed in handcuffs was so excessive that it 
constituted unreasonable use of force in violation of 
clearly-established law.

As noted earlier, a court must examine “the fact 
pattern from the perspective of a reasonable officer on 
the scene with knowledge of the attendant 
circumstances and facts, and balancing] the risk of 
bodily harm to the suspect against the gravity of the 
threat the officer sought to eliminate.” McCullough u. 
Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). 
“Although some amount of force is generally needed to 
subdue a suspect, the amount used must be reasonably 
proportionate to the need for force.” Smith u. LePage, 
834 F.3d 1285, 1294 (11th Cir. 2016). “The calculus of 
reasonableness must embody allowance for the fact



50a

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.” Wate, 
2016 WL 5929633, at *4-5.

Callwood cites to Butler’s deposition for the 
proposition that after a Taser is used, officers use 
other methods of hands-on restraint. Callwood has 
provided evidence that after a suspect has fallen to the 
ground, the Taser has done its job, and once the 
officers have begun to apply restraints, the only use for 
a Taser would be to apply pain. The training provided 
by the Taser company, or by law enforcement, in the 
use of a Taser, however, does not set the constitutional 
standard. See Boynton v. City of Tallahassee, 650 F. 
App’x 654, 660 (11th Cir. 2016) (stating that a use of 
force policy regarding use of a Taser “does not guide 
our analysis— the Fourth Amendment does.”).

To support the argument that Smith’s conduct 
violated Fourth Amendment constitutional standards, 
Callwood primarily relies on Oliver, a case in which, as 
earlier noted, the officer tased the suspect multiple 
times and the court reasoned that while the first use 
of the Taser may have been reasonable, the additional 
eight to eleven or twelve uses of the Taser were not. 
586 F.3d at 908. Significant to the court’s reasoning in 
finding a constitutional violation, however, was that 
the plaintiff was not suspected of any crime, did not 
act belligerently or aggressively, complied with most of 
the officer’s directions, and made no effort to flee, and 
yet the officer used the Taser repeatedly “without 
attempting to arrest or otherwise subdue the plaintiff.” 
Id.



51a

Oliver, therefore, is distinct from the facts in this 
case in significant ways, such as that Illidge had 
previously used force to get away from Mills, had 
attempted to enter the Warrs’ home, did not comply 
with commands and moved rapidly toward the officers 
before the first use of the Taser, making that initial 
use a reasonable use of force, and then Illidge actively 
resisted the officers while they were attempting to 
handcuff him after the initial use of the Taser. While 
the Taser was being used, Illidge was not handcuffed, 
fully-secured, subdued, compliant, or immobile. As 
stated by the court in Wate, the Eleventh Circuit has 
held that

noncompliance or continued physical 
resistance to arrest justifies the use of force by 
a law enforcement officer. See Draper, 369 
F.3d at 1278 (holding that the use of Taser to 
effectuate an arrest did not constitute 
excessive force when the suspect repeatedly 
refused to comply with the officer's verbal 
commands). However, “gratuitous use of force 
when a criminal suspect is not resisting arrest 
constitutes excessive force.” Hadley, 526 F.3d 
at 1330; see also Lee, 284 F.3d at 1200 (holding 
that once an arrest has been fully secured and 
any potential danger or risk of flight vitiated, 
a police officer cannot employ severe and 
unnecessary force).

Wate, 2016 WL 5929633 at *5. Also as noted in Wate, 
even if this court expands the scope of clearly 
established law to consider all cases of use of force 
against persons who have been arrested, and does not 
limit the clearly-established inquiry to cases in which



52a

force was used in the form of a Taser, the general 
proposition of law expressed in Lee, 284 F.3d at 1198, 
is that “ [o]nce an arrestee has been fully secured, such 
force is wholly unnecessary to any legitimate law 
enforcement purpose.” See also Buckley, 292 F. App'x 
at 798 (“At best, Lee decides only that no officer can 
use force against an arrestee who is already 
handcuffed and who is resisting arrest in no way.”).

Because the unrefuted evidence in this case 
establishes that the Taser was not used after the 
handcuffs were applied, and that Illidge was actively 
resisting arrest at the time the Taser was used, “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.” Hoyt, 672 F.3d 
at 980.

In fact, this case is more analogous to Hoyt, where 
qualified immunity was granted, than to Oliver. In 
Hoyt, an officer responded to dispatch calls and found 
a man in distress, claiming that demons were trying to 
get him. The officer ordered the man to put his hands 
behind his back, but he did not comply and resisted the 
efforts of the officer and the officer’s back-up to apply 
handcuffs. The officer used his Taser once using the 
probes, and again in dry stun mode, but the man still 
refused to be handcuffed. The Taser was used several 
additional times and the second law enforcement 
representative used his Taser as well. The officers then 
stopped using the Tasers and handcuffed the man 
using physical force. The evidence showed that one 
Taser was activated twelve times and the other six, 
but only once in the prong mode. Hoyt, 672 F.3d at 
976. In reversing the district court and granting



53a

qualified immunity, the court reasoned the man had 
committed assault and battery on the officer by 
lunging at him and threatening to kill him, the suspect 
posed a danger when only one of his hands was 
handcuffed, the man resisted arrest the entire time, 
and the Taser was used in the less- serious dry stun 
mode. Id. at 979-80.

The court is aware that there is evidence in this 
case that a Taser is not designed to be used as many 
times as Smith used the TASER on Illidge. And, the 
evidence before the court is that Ray Smith deployed 
the Taser in prong mode, distinguishing that factor of 
analysis in Hoyt. The law of the circuit, however, is 
clear that resistance to arrest is a significant factor in 
the analysis and there is unrefuted evidence that 
Illidge was actively resisting arrest while the Taser 
was being used. It may be that at some point the law 
will become clearly-established that there is a 
threshold number of times a Taser can be deployed, or 
deployed in a certain mode, before excessive force will 
be found even though the suspect is not fully-secured 
and continues to resist arrest, but that case law does 
not yet exist in the precedent which can clearly- 
establish law in the Eleventh Circuit. See Thomas ex 
rel. Thomas v. Roberts, 323 F.3d 950, 953 (1.1th Cir. 
2003). Under Eleventh Circuit precedent, the repeated 
use of a Taser after an initial reasonable use is 
unconstitutional if it occurs after a suspect is fully- 
secured and has ceased resisting arrest. The facts of 
this case do not fall within that existing case law and, 
as stated in Hoyt, 672 F.3d at 978, also fall outside of 
the obvious clarity analysis of Oliver. Therefore, Ray 
Smith is entitled to qualified immunity, and summary 
judgment is due to be GRANTED on that basis.



54a

2. Claims for Failure to Intervene Brought 
Against Lee County Sheriff Deputies 
Charles Jenkins, Jr. and Mills and Phenix 
City Officers Williams, Sheely, and Butler

Callwood has brought a claim against individual 
officers on the basis that Defendants Jenkins, Mills, 
Williams, Sheely, and Butler were present when Ray 
Smith tased Illidge fourteen times and that they failed 
to intervene. Callwood cites the court to Velazquez v. 
City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007), 
in which an officer was held liable for failure to 
intervene in an excessive use of force. Callwood claims 
that Ray Smith used a Taser in the presence of Mills, 
Williams, Jenkins, Butler, and Sheely, relying on Ray 
Sm ith’s deposition testim ony. Ray Smith 
acknowledged in his deposition testimony that he used 
the Taser, but he does not state on that page of his 
testimony that any officer witnessed the use of the 
Taser. (Doc. #144-14 at p.72:11-18).

Jenkins states in his affidavit that a Taser was not 
used on Illidge in his presence. (Doc. #77-10). Jenkins 
states that he did not arrive on the scene until after 
Illidge was in handcuffs. Similarly, Sheely states in his 
affidavit that he did not witness any use of a Taser. 
Williams also arrived on the scene after the handcuffs 
had been applied. (Doc. #77-3).

Callwood does not point to any evidence to call into 
question the evidence that Jenkins Williams, and 
Sheely arrived on the scene after Illidge was 
handcuffed, and, as the evidence presented 
establishes, use of the Taser had ended. There is no 
evidence to refute the affirmative evidence that 
Jenkins, Sheely, and Williams did not witness the use



55a

of a Taser. To establish a constitutional violation 
based on a failure to intervene, a plaintiff must show 
that the police officer witnessed the excessive use of 
force and was in a position to intervene. Priester u. City 
of Riviera Beach, 208 F.3d 919, 927 (11th Cir.2000). 
Summary judgment is due to be GRANTED as to the 
claim against Jenkins, Williams, and Sheely for failure 
to intervene with the use of the Taser.

The inquiry is somewhat different with respect to 
Mills and Butler because they were attempting to 
secure handcuffs on Illidge while Ray Smith used the 
Taser. Mills states in an affidavit that he and Butler 
were able to put handcuffs on Illidge, but that did not 
stop Illidge from resisting, and that he did not know if 
Smith used his Taser during that struggle. (Doc. #81-1 
at 12). Butler has provided evidence that he only 
witnessed Ray Smith use the Taser once, and that if 
Ray Smith used the Taser more than once, he was 
unaware of that because Illidge continued to struggle. 
There is, however, also Butler’s testimony that he 
knew Ray Smith was holding the Taser which, when 
viewed in a light most favorable to the non-movant, 
might allow for the reasonable inference that Butler 
witnessed Ray Smith’s continued use of the Taser.

In the Eleventh Circuit, a police officer has an 
obligation to intervene to prevent or stop the use of 
excessive force when he witnesses it and is a position 
to intervene. Priester, 208 F.3d at 927. Viewing all 
evidence in the light most favorable to the non­
movant, there may be sufficient evidence to show that 
Butler at least was aware of the use of the Taser. The 
court must conclude, however, that both Mills and 
Butler are entitled to qualified immunity because it is



56a

not clearly established that the failure to intervene in 
Ray Smith’s use of the Taser was a constitutional 
violation under the circumstances.

That a police officer had a duty to intervene when 
he witnesses the use of excessive force and had the 
ability to intervene is clearly established. Id. The 
Eleventh Circuit explained in Priester that because the 
excessive force in that case was obvious and was such 
that every reasonable officer would have known that 
it was clearly in violation of the plaintiffs 
constitutional rights and the officer had the time and 
ability to intervene, but did nothing, he was not 
entitled to qualified immunity. Id. In the instant case, 
for the reasons discussed above, this court cannot 
reach the conclusion under existing Eleventh Circuit 
precedent that Ray Smith’s actions violated clearly- 
established law. Therefore, the court similarly must 
conclude that because under the circumstances of this 
case, the use of the Taser did not violate clearly- 
established law, the failure to stop the use of the Taser 
also did not violate clearly-established law. See Jones 
v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999) 
(stating no previous decision from the Supreme Court 
or this Circuit holding that an officer has a duty to 
intervene and is therefore liable under the 
circumstances presented); Rudolph ex rel. Williams v. 
Lowndes Cty. Bd. ofEduc., 242 F. Supp. 2d 1107, 1123 
(M.D. Ala. 2003) (finding that even assuming there 
was an excessive use of force, under these facts of the 
case, the officer charged with failing to intervene 
would not have had fair warning that his failure to 
intervene was a constitutional violation). Summary 
judgment is due to be GRANTED as to the claims



57a

based on a failure to intervene in Ray Smith’s use of a 
Taser.

C. Lee County Sheriff Jay Jones

The claim against Jay Jones is a claim against him 
in his individual capacity based on his failure to train 
Lee County Sheriff deputies.

Supervisors can be held personally liable when 
either (1) the supervisor personally participates in the 
alleged constitutional violation, or (2) there is a causal 
connection between the actions of the supervisor and 
the alleged constitutional violation. Mann v. TASER 
Int'l, Inc., 588 F.3d 1291, 1308 (11th Cir. 2009). The 
central tenet for both theories is a constitutional 
violation. Id.

To the extent, therefore, that Mills, Smith, or other 
officers did not violate the constitution in the use of, or 
lack of intervention in the use of a TASER in this case, 
the claim against Jones under a theory of supervisory 
liability fails. Id.

To the extent that there is a constitutional 
violation, the standard for the imposition of liability 
upon a supervisor defendant who was not present 
when the constitutional violation occurred is 
“extremely rigorous.” Braddy v. Florida Dept, of Labor 
and Employment Sec., 133 F.3d 797, 802 (11th 
Cir. 1998). The necessary “causal connection” “can be 
established when a history of widespread abuse puts 
the responsible supervisor on notice of the need to 
correct the alleged deprivation, and he fails to do so, or 
when the supervisor's improper custom or policy 
resulted in deliberate indifference to constitutional



58a

rights.” Gonzalez v. Reno, 325 F.3d 1228, 1234-35 
(11th Cir.2003) (internal quotations omitted).

Callwood argues that Sheriff Jones can be held 
liable on a supervisory liability theory because he 
knew that the Lee County Sheriff Deputies utilized 
Tasers by striking individuals in the chest with the 
Taser and tased individuals multiple times, outside of 
the training guidelines from the Taser company, but 
he did not discipline his deputies for doing that, or 
failed to properly train them to use Tasers the 
recommended number of times. Callwood argues that 
if Lee County Defendants Mills, Ray Smith, and 
Jenkins had been properly trained in the warnings and 
guidelines of Tasers, or had been counseled on the 
proper use when another officer used it improperly, 
Illidge would not have had his constitutional rights 
violated. In support of her argument, Callwood 
provides the court with one hundred and twenty-four 
pages of Alabama Uniform Incident/Offense Reports, 
without citing to any particular part of any report.

Upon review of the voluminous exhibit, the court 
finds some references to use of a Taser striking the 
chest area of a person arrested, but also finds reports 
which do not mention any of the deficiencies outlined 
in Callwood’s brief. Significantly, there is no evidence 
before the court to establish that any of the reports 
concerned a misuse of a Taser which rose to the level 
of a constitutional violation.

Jones states in an affidavit there is a certification 
program in place that requires taking a specific 
number of classroom hours, a written exam, and a 
practical exam, and annual recertification. He argues 
that Callwood has failed to provide evidence of



59a

obvious, flagrant, and rampant deprivations that 
constitute widespread abuse sufficient to notify the 
supervising official, citing Keith u. DeKalb C’nty., Ga., 
749 F.3d 1034, 1048 (11th Cir. 2014). Jones also 
argues that he is entitled to qualified immunity under 
Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008).

The court agrees that Callwood has failed to 
establish a “history of widespread abuse.” Cottone v. 
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). 
Callwood’s evidence, even assuming it supports her 
characterization of documenting Taser use which does 
not comply with Taser company guidelines, does not 
establish widespread constitutional violations 
sufficient to establish supervisory liability. Even if 
Jones could be held liable for a constitutional violation 
based on this evidence, he is entitled to qualified 
immunity because there is no clearly- established law 
that violation of Taser-use guidelines is synonymous 
with a constitutional violation. Cf. Draper v. Reynolds, 
369 F.3d 1270, 1277 (11th Cir. 2004) (no constitutional 
violation where officer discharged a Taser gun at the 
suspect’s chest).

D. Claims Based on the Use of Restraints 
and Body Weight in Securing Illidge

Callwood also brings claims against officers 
involved in the application of their body weight while 
using physical restraints on Illidge. As the Defendants 
point out, the claim in Count III of the Amended 
Complaint is a claim for failure to intervene when 
multiple officers piled on top of Illidge, but the 
evidence does not support an allegation that multiple 
officers piled on top of Illidge. Since the time of her 
Amended Complaint, however, Callwood has refined



60a

her theory of excessive force, arguing that Butler, 
Jenkins, Williams, Ray Smith, and Sheely placed 
weight on Illidge’s back and legs, pinning him to the 
ground and impairing his ability to breathe, and that 
this use of force, combined with devices to restrain 
Illidge in a hog-tie position contributed to his death. 
Callwood also faults them for not providing water to 
Illidge. It is somewhat unclear, but Callwood appears 
to argue that all of the officers’ actions together were 
an unconstitutional use of force, and that each of the 
officers’ individual actions were a constitutional 
violation for failure to intervene in the others’ actions. 
Callwood particularly focuses on actions by Williams, 
pointing out that Williams weighed 385 pounds and 
arguing that he placed his full body weight on the 
upper and mid-back of Illidge while Illidge was 
handcuffed, shackled, and hog-tied, and other officers 
were also restraining him.

In support of these claims, Callwood argues that a 
gratuitous use of force when a criminal suspect is not 
resisting arrest constitutes excessive force, citing cases 
such as Lee, 284 F.3d at 1200.

The Defendants argue that Illidge had attempted 
to enter the Warrs’ residence and actively resisted 
arrest and attempted to evade arrest by flight so that 
the application of force was necessary.

The evidence Williams presents is his affidavit in 
which he states that when he arrived on the scene, he 
noticed a baton through handcuffs used for leverage to 
maintain control, and he had one knee near Illidge’s 
lower back and one near his shoulder and neck. (Doc. 
#77-13 at p.4). Williams also states that at no time



61a

was his full body weight on Illidge.8 He states that 
Illidge was still able to throw the officers and deputies 
off, and he kicked his legs wildly. (Id.). In his 
deposition, Williams states that while he had 
handcuffs and leg restraints on, Illidge was still 
struggling and they were trying to maintain control. 
(Doc. #134-5 at p.90-1). Williams testified in his 
deposition that he was not aware that flex cuffs had 
been applied, but agreed that if flex cuffs had been 
applied and he had been hobbled in that way, Illidge 
would not have been able to go anywhere. (Doc. #134- 
5 at p.93: 5-13). Williams testified that if he had been 
in the position, the only reason to continue to apply 
pressure would be to keep him from hurting himself by 
thrashing around. (Doc. #134-5 at p.93: 10-19). 
Williams also presents evidence that while Williams 
was controlling Illidge’s upper body, he was not 
subdued, but was sliding his knees up, trying to stand 
up.

Sheely states in his affidavit that when he came 
upon the scene and saw Williams, Butler, and Mills 
attempting to restrain Illidge and Williams asked 
Sheely whether he had any leg irons. Sheely left the 
scene and talked with a Lee County Deputy about 
getting some leg irons. When Sheely returned, he 
helped to hold Illidge’s legs. He states that Illidge was 
able to lift at least three officers off the ground with 
his body. (Doc. #77-14). He further states that after 
Illidge was placed in leg irons and stretch cuffs, he was 
relieved from restraining his legs. When asked why

8 Williams states that his feet were on the ground with his 
toes bent so that his entire body weight had not been placed on 
Illidge. (Doc. #134 at p. 88).



62a

Williams continued to place weight on Illidge, Sheely 
stated that one purpose for the restraint was to keep 
Illidge from injuring himself. (Doc. #106-18 at p.78:14- 
17). Butler also helped to restrain Illidge’s legs.

Jenkins states in his affidavit that when he 
arrived on the scene, Illidge was in handcuffs. Jenkins 
was asked to retrieve leg irons, and did so. (Doc. #77- 
10). Gloria Warr described the scene as “very 
professional,” stating that the officers were trying to 
keep Illidge from hurting himself, one officer was 
holding Illidge’s legs and they were moving, an officer 
was holding Illidge’s back down and they were saying, 
“Calm down, man.” (Doc. #117-4 at p. 96:2-6, 20-97:3). 
As noted earlier, the court has accepted Gloria Warr’s 
characterization of Illidge’s actions after the handcuffs 
were secured in which she stated that Illidge was still 
trying to move, the officers were trying to stop him, 
and he “was just moving, going up the steps.” (Doc. 
#106-23 at p. 52: 14-17).

There is an unpublished Tenth Circuit case which 
is similar to this case. See Waters v. Coleman, 632 F. 
App’x 431 (10th Cir. 2015). In Waters, a suspect had an 
altercation with zoo security and the police were 
called. An officer noticed that the suspect was 
exhibiting signs of excited delirium. The suspect was 
tackled and when he violently resisted, the officer 
punched him and used a Taser in drive stun mode. A 
second officer arrived and the first officer used the 
Taser a second time, and the second officer used his 
Taser twice. Other officers used leg restraints, and the 
suspect was also handcuffed. Two people had their 
knees on the suspect’s shoulders when another officer 
arrived and bent the suspect’s legs up and leaned on



6.3a

his legs and remained that way for several minutes. 
The suspect vomited. Then the sxispect stopped 
breathing and an officer began chest compressions. 
The court concluded that the first officer who used the 
Taser did not act unreasonably in the initial use of 
force, and that no clearly established law held that an 
officer must refrain from using force when dealing 
with an impaired individual. Id. at 439. The court 
similarly concluded that the second officer’s use of 
force, deploying a Taser while struggling with the 
suspect with other officers also was not unreasonable 
because it occurred before the suspect was detained. 
Id. at 439.

The court’s analysis was different, however, with 
regard to the officer who applied his body weight to the 
suspect’s legs. The court reasoned that if the officer’s 
complained-of force was applied in an effort to control 
him while he was struggling, the law would not have 
been clearly established and the officer would have 
been entitled to qualified immunity. Id. at 441. There 
was a finding in the district court, however, that the 
officer continued to restrain the suspect’s legs while 
the suspect was in a prone position for several minutes 
after he was handcuffed, and after the suspect had 
vomited and showed symptoms of excited delirium, 
and this finding was one over which the appellate 
court lacked jurisdiction. The court noted that the 
district court’s findings were analogous to the force 
considered potentially excessive in precedent where 
the officers subjected a detainee to force they knew 
was unnecessary to restrain him. Id. at 441-42.

Although this analysis might support the finding 
of a constitutional violation, individual liability for



64a

such a violation is foreclosed by a case which is 
binding on this court, Lewis v. City of West Palm 
Beach, Florida, 561 F.3d 1288 (11th Cir. 2009). In 
Lewis, an officer handcuffed a person, Donald Lewis, 
who appeared to be under the influence of a narcotic 
and two additional officers bound the person’s legs 
using a leg restraint. Throughout the process of being 
restrained, Lewis did not respond to “repeated 
requests to calm down.” Id. at 1290. Two additional 
officers arrived, and one officer suggested attaching 
the leg or ankle restraint to the handcuffs with a 
hobble cord. To do this, two officers kept their knees on 
his back, while another picked up his bound legs and 
pushed them forward. The hobble was tightened so 
that Lewis’s hands and feet were close together behind 
his back in a “hog-tie” position. The officers then 
realized that he had become unconscious. He was later 
pronounced dead. The district court granted summary 
judgment to the five officers on the basis of qualified 
immunity. Id.

On appeal, the representative of the decedent 
Lewis argued that because the officers restrained the 
decedent with the hobble after the need for any use of 
force had passed and tightened it to form a hog-tie, the 
officers' conduct rose to this level of egregiousness. The 
Eleventh Circuit disagreed, reasoning that “ [e]ven 
though most of the officers in this case testified that 
Lewis was not a danger to them and was merely 
resisting arrest, he was, as the district court described, 
‘an agitated and uncooperative man with only a 
tenuous grasp on reality.’ Because of his refusal to sit 
upright and his inability to remain calm, Lewis 
remained a safety risk to himself and to others.” Id. at 
1292. The court further explained that this was



65a

“precisely the type of situation where the decisions of 
the officers confronted with ‘circumstances that are 
tense, uncertain, and rapidly evolving’ should not be 
second-guessed.” Id. (citation omitted).

In affirming the grant of qualified immunity to the 
officers, the Eleventh Circuit distinguished Lee, 
stating that unlike in that case “Lewis did not remain 
compliantly restrained,” but instead “ [e] ven though he 
was not forcefully attacking the officers, Lewis 
continued to struggle.” Id. at 1292. The court 
concluded by reasoning that “ [t]he application of the 
hobble may not have been entirely necessary; however, 
the officers' attempts to restrain Lewis were not so 
violent and harsh to be considered an egregious 
violation of a constitutional right, and they are not an 
obstacle to the application of qualified immunity. 
Despite the unfortunate result that night, qualified 
immunity insulates the officers from liability for 
Lewis's death.” Id.; see also Garrett v. Athens-Clark 
County, Ga., 378 F.3d 1274 (11th Cir.2004) (holding 
that the use of fettering after a suspect had been 
subdued with pepper spray did not violate the Fourth 
Amendment rights of a decedent because after using 
the pepper spray, the “officers took advantage of a 
window of opportunity—of unknown duration—to 
restrain Irby in such a way that he could not harm 
another officer or himself should he decide to stop 
being compliant, a realistic possibility given his recent 
words and deeds.”).

In this case, of course, Callwood has challenged the 
application of Williams’, and other officers’, body 
weight after application of the flex cuff, handcuffs, and 
leg restraints, whereas in Lewis the Eleventh Circuit



66a

focused on the force of the “hog-tie” restraint. 
However, the district court’s opinion in Lewis makes 
clear that qualified immunity was granted even 
though “while the officers bound Lewis in the hobbling 
device, Officer Root and Officer Luke appeared to both 
have their knees on Lewis' back. Here again, because 
Lewis' hands were cuffed behind his back and his feet 
already tied together, there appears to have been no 
reason for Officer Root and Officer Luke to employ 
such a painful and potentially dangerous technique.” 
Lewis v. City of West Palm Beach, No. 06-81139-CIV, 
2008 WL 763250 (S.D. Fla. March 19, 2008).

The Eleventh Circuit decided Lewis in 2009. This 
court has not been pointed to any Eleventh Circuit 
cases decided after Lewis, but before the events at 
issue in this case, which would have clearly- 
established that the officers in the instant case 
violated Illidge’s constitutional rights in applying body 
weight and restraints under the circumstances 
presented.

Under the binding precedent of this circuit, the 
court concludes that qualified immunity is due all of 
the officers for participating in, and failing to 
intervene in, see Jones, 174 F.3d at 1286, the use of 
physical restraints and application of body weight 
during the arrest of Illidge. Summary judgment is, 
therefore, due to be GRANTED as to the claims based 
on the use of physical restraints and body weight to 
restrain Illidge.



67a

E. City of Phenix City/Chief Raymond Smith 
in his Official Capacity

The City of Phenix City and Chief Raymond Smith 
first argue that Raymond Smith is due to be dismissed 
as a defendant in his official capacity because claims 
against municipal officers and suits against 
municipalities are equivalent, citing Kentucky v. 
Graham, 473 U.S. 159, 166 (1991).9 These Defendants 
also argue that although they moved for summary 
judgment on a theory, as stated in the Amended 
Complaint, that there was a failure to train in the use 
of Tasers, Callwood has abandoned that claim and 
relies only on a theory that there was a failure to train 
in the duty to intervene.

Municipal liability under § 1983 attaches if there is 
a policy or custom which is the moving force behind 
the constitutional violation. Monell v New York City 
Dept, of Social Services, 436 U.S. 658 (1978). When the 
policy or custom alleged is a failure to train, a plaintiff 
must show that the “failure to train reflects a 
‘deliberate’ or conscious’ choice by a municipality.” 
City of Canton v. Harris, 489 U.S. 378, 390 (1989),

To determine whether a failure to train amounts 
to a deliberate or conscious choice by a municipality, 
courts are instructed to look at the “degree of fault” of 
a municipality’s failure to train and determine 
whether it “amounts to deliberate indifference to the 
rights of persons with whom the police come into 
contact.” City of Canton, 489 U.S. at 388 (emphasis

9 The Second Amended Complaint does not name Raymond 
J. Smith in his official capacity. (Doc. #40).



68a

added). With respect to police officer training, the 
deliberate indifference standard is appropriately a 
high threshold. Id. at 391; see also Connick v. 
Thompson, 563 U.S. 51, 70 (2011). Ordinarily, a 
plaintiff must allege a pattern of widespread 
constitutional violations that would put the 
municipality on notice of its inadequate training. See 
Connick, 563 U.S. at 62.

Callwood argues that Chief Raymond J. Smith has 
policymaking authority for the Phenix City Police 
Department and that the City, through Chief Smith, 
failed to implement any required training concerning 
mentally ill suspects, leading to a violation of Illidge’s 
constitutional rights, and that there was a failure to 
train on intervening when a constitutional violation 
was taking place in their presence.10 Callwood cites to 
Harrington v. City of Phenix City, No. 3:10cvl048, 
2012 WL 204168 (M.D. Ala. Jan. 24, 2012), arguing 
that that case placed the City of Phenix City on notice 
that it needed a policy regarding a duty to intervene in 
a constitutional violation.

Upon review of the Second Amended Complaint 
(Doc. #40), the court agrees with the Defendants that 
the theories of liability pled were for failure to train in 
the use of tasers and failure to intervene, and there 
was no allegation of a failure to train in dealing with 
mentally ill suspects. Therefore, the court will only 
address the claim for failure to train to intervene when

10 Callwood has not responded to evidence in support of 
summary judgment on a theory of failure to train in the use of 
Tasers, presumably because the Tasers in this case were used by 
Lee County Deputies and not Phenix City officers.



69a

a constitutional violation is taking place. See Gilmour 
v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th 
Cir. 2004) (“A plaintiff may not amend her complaint 
through argument in a brief opposing summary 
judgment.”).

Without notice of a need to train or supervise in a 
particular area, a municipality is not liable as a 
matter of law for any failure to train and supervise. 
Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 
1998). In Brooks v. Scheib, 813 F.2d 1191 (11th 
Cir. 1987), even though there had been ten citizen 
complaints, the court held that the city did not have 
any notice of past police misconduct because the 
plaintiff “never demonstrated that past complaints of 
police misconduct had any merit.” Id. at 1193.

The Harrington opinion pointed to by Callwood did 
not make a finding as to a policy or custom based on 
failure to train, and would only constitute one 
infraction if it did, not a widespread pattern of abuse. 
Summary judgment is, therefore, due to be GRANTED 
as to Raymond Smith in his official capacity, to the 
extent that such a claim has been brought, and the 
City of Phenix City.

State Law Claims

The Defendants have moved for summary 
judgment on the state law claims against them, 
primarily on the basis of state law immunity issues. 
Pursuant to 28 U.S.C. § 1367(c)(3), “ [t]he district 
courts may decline to exercise supplemental 
jurisdiction over a claim under subsection (a) if [...] the 
district court has dismissed all claims over which it 
has original jurisdiction.” See also Palmer v. Hosp.



70a

Auth. of Randolph Cnty., 22 F.3d 1559, 1568-69 (11th 
Cir.1994) (noting the section and discussing analysis 
to be used in exercising the court's discretion). Factors 
to be taken into account include “the values of judicial 
economy, convenience, fairness, and comity.” 
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 
(1988). Courts are strongly encouraged to dismiss state 
claims when the federal claims have been resolved 
prior to trial. See id.; Raney v. Allstate Ins. Co., 370
F.3d 1086, 1089 (11th Cir. 2004). In this case, 
considering that declining jurisdiction is favored where 
the federal claims are dismissed prior to trial, and 
other relevant factors, including that comity is 
implicated by the issues of state law immunity law to 
be resolved, the court declines to exercise 
supplemental jurisdiction over the state law claims.

CONCLUSION

The facts of this case present a tragic situation in 
which a man suffering from Excited Delirium lost his 
life in the course of being detained by law enforcement 
officials. For the reasons discussed, however, the court 
cannot conclude that the Defendant law enforcement 
officials of Phenix City and Lee County, Alabama, or 
the City of Phenix City can be held liable under federal 
law, because Eleventh Circuit case law on the 
reasonableness of the use of Tasers and on the 
reasonableness of the use of body weight and 
restraints in detaining suspects who resist arrest 
dictates that conclusion. Callwood is free to file suit on 
the state law claims in state court within 30 days, as 
provided in 28 U.S.C. §1367(d).



71a

Accordingly, it is hereby ORDERED as follows:

1. The Motion to Strike Paragraphs 3, 4, and 5 of 
the Declaration of Gloria Warr (Doc. #111) and 
the Motion to Strike Portions of Paragraphs of 
the Affidavit of the Woodhams (Doc. #114) are 
GRANTED.

2. The Motion to Amend/Correct. filed by Callwood 
(Doc. #112) is GRANTED.

3. The Motion to Strike filed by the Defendants 
(Doc. #132) is DENIED.

4. The Motion for Summary Judgment filed by 
Defendants David Butler, Phenix City, Shawn 
Sheely, Raymond J. Smith, and Joey Williams 
(Doc. #76) is GRANTED as to the Plaintiffs 
federal claims and judgment is due to be 
entered in favor of those Defendants and 
against the Plaintiff on the federal claims.

5. The Motion for Summary Judgment filed by 
Charles W. Jenkins Jr., Jay Jones, Steven M. 
Mills, and Ray Smith (Doc. #79) is GRANTED 
as to the Plaintiffs federal claims and judgment 
is due to be entered in favor of those Defendants 
and against the Plaintiff on the federal claims.

6. Pursuant to 28 U.S.C. § 1367(c)(3), the court 
declines to exercise supplemental jurisdiction 
over the state law claims.

Final Judgment will be entered in accordance with 
this Memorandum Opinion and Order.



72a

Done this 10th day of November, 2016..

/s/ W. Harold Albritton 
W. HAROLD ALBRITTON 
SENIOR UNITED STATES 
DISTRICT JUDGE