Callwood v. Jones Reply in Support of Petition for Writ of Certiorari

    No. 17-1569

In The

Supreme Court of tf)e fHmteti i§>tatr£

GLADIS CALLWOOD, AS ADMINISTRATRIX OF 
THE ESTATE OF KHARI NEVILLE ILLIDGE,

v.
Petitioner,

JAY JONES, et al,
Respondents.

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

for the Eleventh Circuit

REPLY IN SUPPORT OF 
PETITION FOR WRIT OF CERTIORARI

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

July 11, 2018
____________ (Continued on

Daniel S. Harawa* 
NAACP Legal Defense & 

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

Counsel for Petitioner 
Gladis Callwood

* Counsel of Record 
inside cover)

mailto:dharawa@naacpldf.org


Samuel Fisher 
Sidney M. Jackson 
Wiggins, Childs, Pantazis, 

Fisher, & Goldfarb, 
LLC

301 19th Street North 
Birmingham, AL 32503

John Paul Schnapper- 
Casteras

Schnapper-Casteras
PLLC

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



TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES.......................     ii

I. THE ELEVENTH CIRCUIT DID NOT APPLY
THE RULE ESTABLISHED BY GARNER 
AND GRAHAM...............   2

II. THE ELEVENTH CIRCUIT DID NOT APPLY 
THE SUMMARY JUDGMENT STANDARD......3

III. RESPONDENTS CANNOT DISTINGUISH
THIS CASE FROM CASES FROM THE 
FOURTH, SIXTH, AND SEVENTH 
CIRCUITS............................................................... 11

CONCLUSION 13



TABLE OF AUTHORITIES

PAGE(S)

CASES

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986).................................................... 7

Brosseau u. Haugen,
543 U.S. 194 (2004).................................................... 8

City of San Francisco v. Sheehan,
135 S. Ct. 1765 (2015)............................................... 6

Cyrus v. Town of Marengo,
338 F.3d 856 (7th Cir. 2010).................................. 11

Graham v. Connor,
490 U.S. 386 (1989)............................................... 1, 6

Hunter v. Bryant,
502 U.S. 224 (1991)...............................................  8-9

Kisela v. Hughes,
138 S. Ct. 1148 (2018)................................................6

Landis u. Baker,
297 F. App’x 453 (6th Cir. 2008)..................... 11, 12

Meyers v. Baltimore County,
713 F.3d 723 (4th Cir. 2013)..............................7, 11

Salazar-Limon v. City of Houston,
137 S. Ct. 1277 (2017)............................................... 2



Ill

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES

Scott v. Harris,
550 U.S. 372 (2007)................................................. 11

Tennessee v. Garner,
471 U.S. 1 (1985)................................... ............... 1, 7

Tolan v. Cotton,
134 S. Ct. 1861 (2014)................................. ............. 5

STATUTES & RULES:

Fed. R. Civ. P. 11..................................... ....................10

Sup. Ct. R. 1 0 ...........................................................3, 12

CONSTITUTIONAL PROVISIONS:

U.S. Const, amend. IV 2



REPLY FOR PETITIONER
The petition explains that this Court should grant 

certiorari for three reasons. First, the Eleventh 
Circuit failed to apply the governing legal rule 
established by Tennessee v. Garner, 471 U.S. 1 (1985), 
and Graham v. Connor, 490 U.S. 386 (1989)—that 
when police use serious force during arrest, that force 
must serve a legitimate governmental purpose. 
Second, the Eleventh Circuit failed to apply the 
governing summary judgment standard by not 
considering the evidence that showed there was no 
legitimate reason for Deputy Smith to tase unarmed 
Khari Illidge thirteen times while he was on the 
ground being handcuffed. Third, the Eleventh 
Circuit’s decision conflicts with decisions from the 
Fourth, Sixth, and Seventh Circuits, which held that 
summary judgment was improper when confronted 
with similar evidence of gratuitous tasing.

Respondents agree that Garner and Graham set 
the standard for excessive force cases, yet do not 
(because they cannot) argue that the Eleventh Circuit 
applied the standard established by those cases. 
Respondents also do not defend (because they cannot) 
the Eleventh Circuit’s failure to consider all the 
evidence at summary judgment. And Respondents do 
not seriously dispute the existence of a circuit split; 
they only seek to distinguish this case from the three 
other circuits by picking and choosing facts that favor 
their position rather than viewing the evidence in the 
light most favorable to Ms. Callwood.

This case warrants the Court’s consideration.



2

I. THE ELEVENTH CIRCUIT DID NOT APPLY
THE RULE ESTABLISHED BY GARNER 
AND GRAHAM.
Garner and Graham clearly establish that when 

police use serious force during arrest, that force must 
further a legitimate governmental purpose. This rule 
flows directly from the Fourth Amendment’s 
prohibition against “unreasonable . . . seizures.” U.S. 
Const, amend. IV. Respondents do not dispute that 
this rule has been clearly established for over three 
decades. Indeed, Respondents embrace this standard 
by arguing that Deputy Smith’s repeatedly tasing Mr. 
Illidge served “numerous legitimate governmental 
interests.” Resp’ts’ Opp’n to Cert, at 17.

Yet the Eleventh Circuit failed to apply this 
“governing legal rule.” Salazar-Limon v. City of 
Houston, 137 S. Ct. 1277, 1288 (2017) (Alito, J., joined 
by Thomas, J., concurring). Rather than citing Garner 
or Graham, the Eleventh Circuit cited its own 
precedent and held that because Mr. Illidge was not 
“fully restrained” when Deputy Smith tased him 
thirteen times, the tasing did not violate clearly 
established law. The bright-line “diving point” that 
the Eleventh Circuit has established, see App. 63a— 
allowing police to use substantial force so long as a 
person is not “fully restrained”-—finds no support in 
the Court’s cases, and Respondents do not point to 
any other circuit that has adopted a similar rule.

The outlier rule the Eleventh Circuit has created 
and that it then applied here, is dangerous. Following 
this rule, police could use nearly unbridled force 
against a suspect so long as he is not yet fully



3

handcuffed, even if: (1) he is effectively restrained; (2) 
the force does not assist with handcuffing, and (3) an 
officer involved in the arrest concedes that the force 
did not “help” the police further restrain the suspect— 
all the case here. But this Court’s cases have always 
required police use of force to serve some purpose. By 
not requiring the same here, the Eleventh Circuit 
“decided an important federal question in a way that 
conflicts with the relevant decisions of this Court.” 
Sup. Ct. R. 10(c).
II. THE ELEVENTH CIRCUIT DID NOT APPLY

THE SUMMARY JUDGMENT STANDARD.
The summary judgment record included a wealth 

of evidence supporting the conclusion that the 
thirteen tases1 police administered against Mr. Illidge 
while he was naked, unarmed, on the ground, and 
being handcuffed by two officers, served no legitimate 
purpose. This evidence includes

(1) Taser guidelines showing that tasing does 
not immobilize a person, which would help 
with handcuffing, but instead produces

1 Respondents claim that Deputy Smith’s “last four discharges of 
the Taser could not have had any effect on Illidge” because the 
taser prongs “failed to make a connection with Illidge.” Resp’ts’ 
Opp’n at 20. Respondents fail to explain why such purported 
misfires make Deputy Smith’s conduct more reasonable, and, in 
any event, they misread the record. Their own expert opined that 
three of the last four tases made a “good connection with the 
subject,” and that the last tase made a “probable partial 
connection with the subject.” ECF No. 81-39 at 28-30 (Rep. of 
Bryan Chiles). The record therefore shows that Deputy Smith 
tased Mr. Illidge thirteen times after bringing Mr. Illidge to the 
ground and that altogether, Deputy Smith’s taser logs “recorded 
a total of 37.2 seconds of delivered charge.” Id. at 31.



4

strong involuntary spasms, which would 
hinder handcuffing. See Pet. at 11.

(2) Expert testimony explaining that a taser is 
used to bring a person to the ground so that 
hands-on restraint can be used, and that 
further tasing after a person is on the 
ground is ineffectual because tasing is not a 
“restraint” technique. See id. at 8.

(3) The critical testimony of Officer Butler, 
who, consistent with taser guidelines and 
the expert evidence, explained that Deputy 
Smith’s tasing Mr. Illidge did not “help” the 
police handcuff Mr. Illidge or “benefit 
[them] any.” See id. at 10. And that given 
this, the only reason for the repeated tasing 
would be to “shutdown [Mr. Illidge’s] 
nervous system” and cause him “pain.” See 
id. at 10-11.2

The Eleventh Circuit did not consider any of this 
evidence when deciding whether Respondents were 
entitled to summary judgment, even though it went 
the heart of whether Respondents violated clearly 
established law. By overlooking this evidence, the

2 Contrary to Respondents’ assertion, there is nothing 
“interestingO” about Ms. Callwood relying on Officer Butler’s 
candid testimony while “maintaining this lawsuit against [him].” 
Resp’ts’ Opp’n at 20-21 n.15. Ms. Callwood has maintained this 
suit against Officer Butler because Officer Butler and Deputy 
Mills did not intervene when Deputy Smith was repeatedly 
tasing Mr. Illidge, as the law required. The district court did not 
reach this issue because it erroneously found that Deputy 
Smith’s actions did not violate clearly established law. See App. 
at 36a.



5

Eleventh Circuit failed to apply this Court’s 
governing precedent, which makes clear that, at 
summary judgment, all evidence must be viewed, and 
all inferences drawn, in favor of the nonmoving party, 
“even when, as here, a court decides only the clearly- 
established prong of the [qualified immunity] 
standard.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 
(2014) (per curiam). 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.

Respondents do not defend the Eleventh Circuit’s 
failure to consider this evidence. Indeed, they too 
ignore the taser guidelines and expert testimony Ms. 
Callwood presented at summary judgment, both of 
which create a triable issue over whether any 
legitimate governmental interest supported Deputy 
Smith’s tasing Mr. Illidge thirteen times while he was 
on the ground being handcuffed.

Respondents fleetingly address Officer Butler’s 
testimony that there was no reason for Deputy Smith 
to continually tase Mr. Illidge other than to hurt him, 
but their arguments only confirm that this case 
cannot be resolved at summary judgment. First, 
Respondents suggest the Court should discount the 
testimony because Officer Butler was responding to 
“counsel’s leading questions.” Resp’ts’ Opp’n at 21. 
This baseless evidentiary objection does not change 
the substance of Officer Butler’s answers. And the 
time for any objection to the weight of Officer Butler’s 
testimony is at trial.

Respondents next claim Officer Butler’s 
testimony is “subjective” and thus has “no bearing on



6

a court’s qualified immunity analysis.” Id. at 22. 
Officer Butler’s testimony was not “subjective.” 
Rather, his testimony reflects a “reasonable officer on 
the scenef’s],” Graham, 490 U.S. at 396, 
understanding of the need for continued tasing based 
on the objective facts and circumstances. This Court 
often considers officers’ explanations of events when 
determining whether there was a reasonable need to 
use force. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 
1153 (2018) (per curiam) (considering that “ [Officer] 
Kisela says he shot Hughes because . . .  he believed 
she was a threat to” a third party when deciding 
whether he was entitled to qualified immunity); City 
of San Francisco v. Sheehan, 135 S. Ct. 1765, 1778 n.l 
(2015) (considering Officer Reynolds’ testimony “that 
the officers had not been ‘able to do a complete 
assessment of the entire room’” when deciding 
whether he was entitled to qualified immunity). The 
Eleventh Circuit had to consider Officer Butler’s 
testimony alongside that of the other officers when 
deciding whether Respondents were entitled to 
summary judgment on qualified immunity grounds.

Then, after suggesting that the Court should 
disregard Officer Butler’s testimony, Respondents try 
to use that same testimony to support their argument 
that Deputy Smith acted reasonably. See Resp’ts’ 
Opp’n at 21-22. Respondents claim Officer Butler’s 
statements that the tasing would have “shut down 
[Mr.] Illidge’s nervous system,” and that Mr. Illidge 
“was still actively resisting” when Deputy Smith 
tased him, legitimizes his taser use. Id. at 21. But 
right after saying this, Officer Butler testified that 
the tasing still did not “help” or “benefit” the police, 
and he agreed there was no “need” for the tasing after



7

he and Deputy Mills were “on top of [Mr. Illidge]” 
“applying] the other restraints.” ECF No. 134-4 at 81 
(Dep. of David Butler). The clear import of Officer 
Butler’s testimony was that Deputy Smith’s repeated 
tasing did not help police restrain Mr. Illidge. And, in 
any event, competing inferences about the import of 
that testimony is an issue for trial.

Respondents also try to downplay Officer Butler’s 
testimony by saying that he was merely opining “the 
Taser failed to have an effect on Iliidge’s active 
resistance to being secured in handcuffs.” Resp’ts’ 
Opp’n at 22. But that is precisely the point. Because 
the tasing did not help the officers handcuff Mr. 
Illidge, it did not serve a legitimate “governmental 
interest.” Garner, 471 U.S. at 8. A reasonable officer 
in Deputy Smith’s position would therefore “have 
understood that his delivery of some if not all, of the 
0 additional taser shocks violated [Mr. Illidge’s] 
Fourth Amendment right to be free from the use of 
excessive and unreasonable force.” Meyers v. 
Baltimore County, 713 F.3d 723, 735 (4th Cir. 2013). 
Furthermore, to the extent there is room to interpret 
Officer Butler’s testimony, it must be interpreted in 
Ms. Callwood’s favor at this juncture. See Anderson u. 
Liberty Lobby, Inc., A ll U.S. 242, 255 (1986).

The Eleventh Circuit was not free to ignore at 
summary judgment Officer Butler’s testimony or any 
of the other evidence that favored Ms. Callwood. This 
is especially true given that the evidence bore directly 
on whether Deputy Smith violated clearly established 
law by continually tasing Mr. Illidge after he had been 
brought to the ground and was being handcuffed by 
two officers. Because the Eleventh Circuit flouted



8

well-established summary judgment standards, this 
Court should grant certiorari and further use its 
“summary reversal procedure.” Brosseau v. Haugen, 
543 U.S. 194, 198 n.3 (2004).

Unable to defend either the Eleventh Circuit’s 
failure to apply Garner and Graham or its failure to 
consider all the evidence at summary judgment, 
Respondents recast the facts to try to both diminish 
the cert-worthiness of this case and distinguish it 
from the Fourth, Sixth, and Seventh Circuit cases, 
which found summary judgment unwarranted under 
similar facts. However, their factual exposition is 
legally irrelevant or not viewed in the light most 
favorable to Ms. Callwood.

Respondents devote substantial space to 
describing what supposedly happened before police 
encountered Mr. Illidge. For example, they insist that 
Mr. Illidge had taken LSD. See, e.g., Resp’ts’ Opp’n at 
2. But this is belied by the record. An autopsy found 
no LSD in Mr. Illidge’s system, see ECF No. 81-37 at 
17, and Nicholas Woodham (who Respondents use as 
the basis for this claim), told his mother that he did 
not know whether Mr. Illidge had taken any drugs.3 
See App. 13a. Moreover, what happened before police 
encountered Mr. Illidge is mostly irrelevant given 
that a qualified immunity analysis considers only “the 
facts and circumstances within [the officers’]

3 Nicholas Woodham’s account of what happened is also dubious. 
He provided an affidavit to Respondents, but evaded process 
when Ms. Callwood tried to subpoena him. When he eventually 
was subpoenaed, he did not show for his deposition. See 
Appellant’s Reply Br. at 3.



9

knowledge.” Hunter v. Bryant, 502 U.S. 224, 228 
(1991) (quotation marks omitted).

Thus, to determine whether Deputy Smith was 
entitled to qualified immunity for tasing Mr. Illidge 
thirteen times while on the ground being handcuffed, 
the relevant question is what was happening at the 
time of the tasing. As to this, Respondents pick and 
choose facts to say Mr. Illidge was “violently” resisting 
arrest (a narrative developed during this litigation). 
See Resp’ts’ Opp’n at 9-10. They even say Mr. Illidge 
got “up from the ground and moved with the officers 
on top of him.” Id. at 10.

Respondents’ version of events is not the version 
most favorable to Ms. Callwood. The version of events 
most favorable to Ms. Callwood comes from the 
accounts that Deputy Smith and Officer Butler 
provided to internal investigators the day after the 
incident. These accounts are also likely to be the most 
accurate given their contemporaneousness and the 
fact that they were not given during litigation.

Officer Butler told investigators that Mr. Illidge 
“was laying on his stomach” and that he and Deputy 
Mills were on top of him “wrestl[ing]” “trying to secure 
his [arms].” 134-4 Tr. at 47-48, 53. Deputy Smith was 
“standing behind” them “controlling the Taser.” Id. at 
51-52. He said nothing about “violent” resistance or 
Mr. Illidge getting up and walking with him and 
Deputy Mills on his back. Deputy Smith similarly did 
not tell investigators that Mr. Illidge was resisting 
“violently” or that Mr. Illidge got back up after Deputy 
Smith tased him to the ground. Instead, Deputy 
Smith also said Mr. Illidge was “face down” with 
Deputy Mills and Officer Butler “on his back,” that



10

Mr. Illidge was “thrashing” while they were trying “to 
get him handcuffed,” so he “hit the arc switch on [his] 
Taser.” ECF No. 144-36 at 4 (Audio Tr. of Ray Smith).

In fact, despite giving many accounts over several 
years, Respondents themselves have never claimed 
that Mr. Illidge got “up from the ground” after Deputy 
Smith’s taser took him down. Respondents therefore 
use Gloria Warr’s deposition testimony to support this 
assertion. This a particularly bold gambit given that: 
(1) this assertion is contradicted by Respondents’ own 
recollections; (2) Respondents submitted an affidavit 
from Ms. Warr that contained materially false 
information, see Pet. at 9 & n.8; and (3) Ms. Warr 
expressly testified that she did not witness the tasing, 
ECF No. 134-10 at 51 (Dep. of Gloria Warr).4

In short, this is the version of events that the 
courts below had to consider at summary judgment: 
Mr. Illidge was on the ground with Officer Butler and 
Deputy Mills on his back wrestling to put him in

4 Respondents attempt to downplay the fact that they submitted 
a falsified affidavit from Ms. Warr below. First, they blame Ms. 
Callwood for not discovering the “inconsistent testimony.” 
Resp’ts’ Opp’n at 22. But it was Respondents’ burden to correct 
any false information they presented to the courts. See Fed. R. 
Civ. P. 11. Indeed, their own representatives said they would 
correct the false information before submitting Ms. Warr’s 
affidavit to the court, and then did not. See App. 31a; see also 
Pet. at 9 n.8. Respondents then suggest that the Court cannot 
consider the falsified affidavit because it was stricken from the 
record. Resp’ts’ Opp’n at 22-23. Respondents miss the point. It is 
not the substance of the affidavit that the Court should consider. 
Rather, the fact Respondents knowingly submitted an affidavit 
with false information is relevant to Respondents’ credibility and 
thus relevant to whether summary judgment should have been 
granted.



11

handcuffs when Deputy Smith tased him thirteen 
times. See Scott v. Harris, 550 U.S. 372, 378 (2007) 
(“In qualified immunity cases, [courts must] usually 
adopt 0 . . . the plaintiffs version of the facts.” 
(Quotation marks and citations omitted)).
III. RESPONDENTS CANNOT DISTINGUISH 

THIS CASE FROM CASES FROM THE
FOURTH, SIXTH, AND SEVENTH 
CIRCUITS.
When considering the version of events most 

favorable to Ms. Callwood, this case is no different 
than Meyers, 713 F.3d 723, Cyrus v. Town of Marengo, 
338 F.3d 856 (7th Cir. 2010), and Landis v. Baker, 297 
F. App’x 453 (6th Cir. 2008) (unpublished). In all 
three cases, the courts of appeals held summary 
judgment was improper when there was evidence that 
police repeatedly tased a suspect after he had been 
brought to the ground and was being handcuffed. 
These cases are consistent with this Court’s rule that 
any force that police use during arrest must serve 
some purpose. The law of the Eleventh Circuit, which 
turns on whether a suspect is “fully restrained,” is 
not.

Respondents have no persuasive answer to the 
conflict between the Eleventh Circuit and three other 
circuits on this issue. They mainly claim that Meyers 
and Cyrus are distinguishable because there was 
“conflicting evidence regarding the extent to which 
the individual’s [sic] resisted.” Resp’ts’ Opp’n at 26. 
But, as already explained, the evidence is conflicting 
here too. They say Landis is distinguishable because 
in that case, an officer hit Landis with a baton and 
Landis fell into a swamp. Id. at 27. But these factual



12

differences do not affect the court’s holding that police 
violated clearly established law when they repeatedly 
tased Landis after he had been brought to the ground 
and was being handcuffed. Landis, 297 F. App’x at 
462.

The Court should grant certiorari because the 
Eleventh Circuit’s decision conflicts with decisions of 
the Fourth, Sixth, and Seventh Circuits. See Sup. Ct. 
R. 10(a).



13

CONCLUSION
The Court should grant certiorari and reverse the 

judgment of the Eleventh Circuit.

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

July 11, 2018

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 Street NW, 
#W7
Washington, DC 20001

Counsel for Petitioner 
Gladis Callwood

* Counsel of Record

mailto:dharawa@naacpldf.org


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