Qualified Immunity May Be Asserted at Trial When Pleaded; Garner Clearly Establishes Deadly-Force Limits for Taser Deployment on Dangerous Terrain

I. Introduction

In Keith Edwards v. Officer J. Grubbs, the Eleventh Circuit reviewed consolidated appeals arising from a July 10, 2018 use-of-force incident in Atlanta, Georgia. Officer Jon Grubbs, attempting to stop 65-year-old Jerry Blasingame (an unarmed homeless man suspected at most of misdemeanor panhandling), fired a taser in dart mode into Blasingame’s back as he ran near the top of a steep embankment. Blasingame fell down the slope and struck a concrete utility-box platform, suffering traumatic brain injury and quadriplegia.

Blasingame’s guardian (later the personal representative of his estate), Keith Edwards, sued Officer Grubbs and the City of Atlanta under 42 U.S.C. § 1983 for Fourth Amendment excessive force. A jury returned a $100 million verdict ($60 million against the City; $40 million against Grubbs including $20 million punitive). Post-trial, the district court (i) granted the City judgment as a matter of law on municipal liability, and (ii) reduced punitive damages against Grubbs to $1 million. Both sides appealed.

The Eleventh Circuit’s substituted opinion (replacing Edwards v. Grubbs, 169 F.4th 1261 (11th Cir. 2026)) addresses several recurring flashpoints in civil-rights litigation: (1) when qualified immunity may be raised; (2) when taser deployment becomes “deadly force” for Fourth Amendment analysis; (3) the causal and notice demands of Monell municipal liability when the asserted policy failure concerns body-worn cameras; and (4) constitutional constraints on punitive damages under BMW of North America, Inc. v. Gore.

II. Summary of the Opinion

  • Qualified immunity (procedure): The court rejected Edwards’ argument that Officer Grubbs forfeited qualified immunity by not raising it until trial. Because it was pleaded as an affirmative defense, qualified immunity may be raised for the first time at trial.
  • Qualified immunity (merits): Viewing evidence favorably to the verdict, the jury could find a Fourth Amendment violation. The court treated taser use on steep, hazardous terrain as deadly force and held the right clearly established in July 2018 through Tennessee v. Garner as applied in the court’s reasoning in Bradley v. Benton.
  • Municipal liability: The City was entitled to judgment as a matter of law. Evidence that body-worn cameras were used only 33% of the time and discipline was infrequent did not establish deliberate indifference or causation linking non-enforcement of the camera policy to excessive force.
  • Punitive damages: The reduction of punitive damages from $20 million to $1 million was affirmed. Applying the BMW guideposts, $20 million exceeded due process bounds on this record. The court emphasized party presentation—declining to pick an intermediate figure when neither side meaningfully briefed alternatives.
  • Rule 60(b) medical-expense issue: Affirmed on abandonment grounds because Edwards did not brief the district court’s alternative reasons (late pleading and sovereign immunity) for denying relief under O.C.G.A. § 42-5-2.
  • Attorney’s fees: No abuse of discretion in denying fees without prejudice and deferring until completion of the appeal.

III. Analysis

A. Precedents Cited

1. Qualified immunity as an affirmative defense and timing of assertion

The court begins with the premise that qualified immunity is not jurisdictional and thus need not be raised sua sponte. It cited:

  • Anderson v. Creighton, 483 U.S. 635 (1987): qualified immunity should be resolved at the “earliest possible stage,” but this is an admonition of efficiency, not a jurisdictional mandate.
  • Nevada v. Hicks, 533 U.S. 353 (2001): supports the non-jurisdictional character of the defense.
  • Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003) and Skrtich v. Thornton, 280 F.3d 1295 (11th Cir. 2002) (citing Moore v. Morgan, 922 F.2d 1553 (11th Cir.1991)): qualified immunity is an affirmative defense that must be pleaded or it can be waived.
  • Patel v. Hamilton Med. Ctr., Inc., 967 F.3d 1190 (11th Cir. 2020) (quoting Wood v. Milyard, 566 U.S. 463 (2012)): affirmative defenses can be forfeited, but forfeiture is context-dependent.
  • Kontrick v. Ryan, 540 U.S. 443 (2004) (quoting United States v. Olano, 507 U.S. 725 (1993)): clarifies “forfeiture” vs. “waiver.”

To explain how qualified immunity operates once a case reaches trial, the court relied on:

  • Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389 (2015): the jury decides disputed historical facts; the court applies qualified-immunity law to those facts post-verdict.
  • Simmons v. Bradshaw, 879 F.3d 1157 (11th Cir. 2018): special interrogatories may be used to crystallize factual findings relevant to qualified immunity.

Most importantly, on the specific “late assertion” question, the panel cited out-of-circuit authority for the proposition that qualified immunity can be raised at trial if properly pleaded:

  • Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989)
  • Spann v. Rainey, 987 F.2d 1110 (5th Cir. 1993)
  • White v. Bibb Cnty., 28 F. Supp. 2d 1374 (M.D. Ga. 1998)

This is a consequential procedural clarification: in the Eleventh Circuit, pleading qualified immunity preserves the ability to assert it later—even at trial—though doing so risks practical disadvantages (e.g., lack of special interrogatories, credibility determinations locked into a general verdict, and a steep standard of review after a jury verdict).

2. Fourth Amendment excessive force and when a taser is treated as “deadly force”

The court anchored the governing standard in:

  • Graham v. Connor, 490 U.S. 386 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985): objective reasonableness; deadly-force constraints.
  • Wade v. Daniels, 36 F.4th 1318 (11th Cir. 2022) (citing Mobley v. Palm Beach Cnty. Sheriff Dep't, 783 F.3d 1347 (11th Cir. 2015)): six-factor framework for force reasonableness.
  • Bradley v. Benton, 10 F.4th 1232 (11th Cir. 2021): crucially extends deadly-force analysis to taser use when the target is at elevated height; and holds Garner can clearly establish unlawfulness in such circumstances.

For the proposition that tasers can pose catastrophic risk by incapacitating the body, the court cited:

  • Bryan v. McPherson, 630 F.3d 805 (9th Cir. 2010) (physiology of incapacitation)
  • Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) (taser overrides central nervous system)
  • Jones v. Treubig, 963 F.3d 214 (2d Cir. 2020) (taser at height treated akin to deadly force)

The court also used its own precedents to reinforce that deadly force is disproportionate against an unarmed, non-dangerous fleeing suspect:

  • Salvato v. Miley, 790 F.3d 1286 (11th Cir. 2015)
  • Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003)
  • Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002)

3. “Clearly established” law framing

The opinion’s “clearly established” discussion is shaped by:

  • District of Columbia v. Wesby, 583 U.S. 48 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731 (2011)): “every reasonable official” standard.
  • Gilmore v. Ga. Dep't of Corr., 144 F.4th 1246 (11th Cir. 2025) (en banc) and Hope v. Pelzer, 536 U.S. 730 (2002): three routes—factually indistinguishable precedent, broad principle, or “obvious clarity.”
  • Mullinex v. Luna, 577 U.S. 7 (2015): caution against high-level generality.
  • Brosseau v. Haugen, 543 U.S. 194 (2004): warns against overreading Garner at too general a level; the panel distinguishes by relying on analogous facts rather than abstract propositions.

Notably, the court concluded that Garner itself supplied clearly established notice once the taser use was treated as deadly force under the hazardous-terrain facts; it therefore did not rely on the “obvious clarity” route (even though Bradley had discussed it).

4. Municipal liability under § 1983

The municipal-liability analysis sits squarely in the Monell line:

  • Monell v. Department of Social Services, 436 U.S. 658 (1978) (no respondeat superior; policy/custom required)
  • Cannon v. Taylor, 782 F.2d 947 (11th Cir. 1986) (custom as settled practice with force of law)
  • City of Canton v. Harris, 489 U.S. 378 (1989) (failure to train must be a deliberate choice)
  • Gold v. City of Miami, 151 F.3d 1346 (11th Cir 1998) (need for notice and deliberate indifference)
  • Connick v. Thompson, 563 U.S. 51 (2011) (pattern ordinarily required for failure-to-train)
  • Vineyard v. Cnty. of Murray, 990 F.2d 1207 (11th Cir. 1993) (single incident only with “sufficient independent proof” of policy/custom causation), quoting Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir. 1985) (en banc)
  • Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397 (1997) (moving force requirement)
  • Marsh v. Butler Cnty., 268 F.3d 1014 (11th Cir. 2001) (en banc) and Turquitt v. Jefferson Cnty., 137 F.3d 1285 (11th Cir. 1998) (government liable only for its own acts)

The court’s application is restrictive: noncompliance with body-camera policy, without proof that it predictably produced unrecorded excessive-force incidents (pattern) or that the City made a conscious choice to tolerate camera deactivation as a tool to facilitate abuse (causal mechanism), is insufficient.

5. Punitive damages and due process

The punitive damages analysis draws from:

  • BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) (three guideposts)
  • State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (single-digit ratio guidance; substantial-compensatory caveat)
  • Smith v. Wade, 461 U.S. 30 (1983) (reckless indifference standard for punitive damages in § 1983 context)
  • Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320 (11th Cir. 1999) (Rule 50—not Rule 59—framework for constitutionally reduced awards; standard of review of guideposts; “maximum the Constitution permits”)
  • Cote v. Philip Morris USA, Inc., 985 F.3d 840 (11th Cir. 2021), Action Marine, Inc. v. Cont'l Carbon Inc., 481 F.3d 1302 (11th Cir. 2007), Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196 (11th Cir. 2020), and Williams v. First Advantage LNS Screening Sols., Inc., 947 F.3d 735 (11th Cir. 2020)

It also relied on party-presentation principles:

  • United States v. Sineneng-Smith, 590 U.S. 371 (2020) (quoting Greenlaw v. United States, 554 U.S. 237 (2008))
  • Clark v. Sweeney, 607 U.S. 7 (2025) (quoting Lomax v. Ortiz-Marquez, 590 U.S. 595 (2020))

B. Legal Reasoning

1. Qualified immunity was not forfeited by late assertion

The panel draws a critical line: while qualified immunity should ideally be raised early, it remains an affirmative defense that—if pleaded—can be pressed later, including at trial. The court treated the failure to file a pretrial qualified-immunity motion as neither jurisdictional default nor intentional relinquishment.

Practically, the opinion underscores a tradeoff: raising qualified immunity only at trial deprives the defendant of the pretrial “immunity from suit” benefit and complicates the factual record for the immunity analysis (here, no special interrogatories; a general excessive-force verdict). Even so, the court holds that pleading preserves the defense.

2. Fourth Amendment violation: taser as deadly force on a steep embankment

On the constitutional merits, the court’s reasoning has two key moves:

  1. Characterization of the force: Although “use of a taser is not per se deadly force,” the court treated this taser use as deadly force because tasing a person in a vulnerable, elevated, or hazardous position can create a substantial risk of death or serious bodily harm—especially where incapacitation foreseeably precipitates an uncontrolled fall into concrete hazards.
  2. Garner proportionality logic: Once the force is treated as deadly, the Garner rule becomes dispositive: deadly force may not be used to stop an unarmed, non-dangerous suspect fleeing on foot absent probable cause of serious-harm threat or a violent crime involving serious harm, and where feasible some warning should be given.

Applying the Wade v. Daniels factors, the panel emphasized: the suspected offense was minor; Blasingame was unarmed and did not place the officer in imminent fear; he did not run into traffic; no warning was given; injuries were catastrophic. While flight created some need for force, the panel found the chosen force disproportionate under deadly-force framing.

3. Clearly established law: Garner supplies notice once taser use is treated as deadly force

The court’s “clearly established” holding is conceptually important: it treats Garner as a “materially similar precedent” not because tasers and firearms are identical, but because the relevant constitutional category is “deadly force” and the factual analogue is “deadly force used to stop an unarmed, non-violent fleeing suspect.”

The panel acknowledged the Supreme Court’s caution against reading Garner too generally (Brosseau v. Haugen) and framed its reliance as fact-analogy: gun versus taser is “a distinction without a difference” if the taser deployment under these conditions is deadly force.

Judge Newsom’s dissent presses the obvious vulnerability: Bradley v. Benton post-dates the incident and involved an eight-foot wall, not a 30–40 degree slope—raising the question whether the “deadly force” characterization (and thus the Garner analogy) was sufficiently clear to “every reasonable official” in July 2018. The majority responds by focusing on functional risk (steep decline, concrete hazard, inability to brace), not geometric form (wall vs. hill).

4. Monell failure: body-camera noncompliance without causation, pattern, or “independent proof”

Edwards’ municipal-liability theory was “novel”: that the City’s failure to enforce body-worn camera rules created an environment that predictably enabled excessive force. The court rejected it for want of the essential Monell element: a policy/custom that was the “moving force” behind the constitutional injury.

Two features of the reasoning are likely to matter most in later cases:

  • Causation is not presumed from general deterrence logic. Even if body cameras generally deter excessive force, the plaintiff must connect this municipality’s non-enforcement to a known risk of unrecorded excessive-force events—typically via a pattern of similar violations or other “independent proof” showing policy-to-violation causation.
  • Deliberate indifference requires notice of the specific constitutional risk. Evidence of low recording compliance (33% of dispatch calls) and infrequent discipline proved, at most, lax policy compliance. It did not prove City awareness that camera noncompliance was facilitating excessive force, especially where use-of-force videos were “less than 1%” of uploaded videos and the record did not tie missing recordings to force incidents.

5. Punitive damages: constitutional maximums, comparative penalties, and party presentation

Affirming remittitur to $1 million, the court emphasized:

  • Reprehensibility: severe physical harm and reckless indifference, but isolated incident and no intentional malice or cover-up (the officer called for EMS and notified a supervisor).
  • Ratio: with the City’s $60 million vacated, the relevant ratio was 1:1 ($20M compensatory / $20M punitive)—not automatically unconstitutional, but not self-justifying given the size of the compensatory award.
  • Comparable penalties: Georgia’s $250,000 punitive cap in tort actions (O.C.G.A. § 51-12-5.1(g)) and the $250,000 maximum federal fine for 18 U.S.C. § 242 (18 U.S.C. § 3571(b)(3)) weighed strongly against a $20M punitive award as a notice matter.

The opinion’s procedural coda is unusually instructive: the panel openly questioned whether $1M was truly the constitutional maximum but declined to explore intermediate figures because Edwards demanded reinstatement of $20M and Grubbs did not brief alternative ceilings—invoking United States v. Sineneng-Smith and Clark v. Sweeney.

C. Impact

1. Litigation practice: qualified immunity can be raised at trial if pleaded

The most concrete “new rule” is procedural: a defendant who pleads qualified immunity does not forfeit it by failing to file a pretrial motion and may raise it for the first time at trial. Expect this to be cited by defendants who, for strategic or inadvertent reasons, did not pursue early immunity adjudication.

At the same time, the opinion implicitly warns defendants: delaying immunity invites a plaintiff-favorable standard of review after a jury verdict (evidence viewed in the light most favorable to the verdict) and risks a general verdict that obscures the factual predicates for immunity (especially when no special interrogatories are requested).

2. Use-of-force doctrine: tasers may be treated as deadly force in terrain/fall-risk contexts

Substantively, the decision strengthens a hazardous-terrain theory: taser deployment can be “deadly force” when used against a person whose incapacitation is likely to cause a severe fall or collision. The court extends the functional logic of Bradley v. Benton from “elevated height” to a steep embankment with concrete hazards below.

This framing may influence training, policy, and expert testimony: the constitutional analysis may turn less on the weapon category (“less-lethal”) and more on foreseeable environmental consequences (slope, drop, obstacles, traffic, ability to brace).

3. Municipal liability: body-camera failures are not automatically constitutional moving forces

For plaintiffs, the opinion is a caution against relying solely on general propositions that cameras deter misconduct. Without evidence connecting non-enforcement to a known risk of unrecorded excessive-force incidents—e.g., prior similar incidents, ignored complaints, internal findings tying camera deactivation to force events—the “moving force” element remains difficult to meet.

4. Punitive damages: comparative-penalty guidepost remains a powerful constraint in officer cases

The court’s reliance on statutory comparators (state punitive caps and federal criminal fines) signals that—even where compensatory damages are substantial and injuries catastrophic—punitive awards against individual officers may face steep constitutional headwinds if far out of line with legislative penalty judgments.

IV. Complex Concepts Simplified

  • Qualified immunity: A protection for government officials performing discretionary functions unless they violate clearly established law. It is an affirmative defense that must be pleaded; if pleaded, this opinion holds it may be asserted at trial.
  • Rule 50 judgment as a matter of law (JMOL): A mechanism allowing a court to set aside a jury verdict when the evidence is legally insufficient to support it. Here, it framed both qualified immunity post-verdict and municipal liability.
  • “Deadly force” in Fourth Amendment terms: Force an officer knows creates a substantial risk of death or serious bodily harm. The court treated taser use as deadly force because incapacitation on steep hazardous terrain foreseeably causes catastrophic injury.
  • Monell liability: A city is liable under § 1983 only when its policy/custom causes the constitutional injury (the “moving force”), not merely because it employs the officer.
  • Deliberate indifference: A stringent mental-state requirement for failure-to-train/supervise claims; typically requires notice through a pattern of similar violations, unless there is strong “independent proof” tying policy to violation.
  • Remittitur and the BMW guideposts: Courts reduce punitive damages that exceed due process bounds using reprehensibility, ratio, and comparable penalties as guideposts.
  • Party presentation: Appellate courts generally decide issues the parties actually brief; they do not redesign arguments or select unbriefed compromise outcomes.

V. Conclusion

The Eleventh Circuit’s decision does three especially consequential things. First, it clarifies that a defendant who properly pleads qualified immunity may still raise it at trial, even if no pretrial immunity motion was filed. Second, it reinforces and extends the principle that taser use can constitute deadly force when environmental conditions make incapacitation foreseeably catastrophic—bringing the case within Tennessee v. Garner’s clearly established deadly-force limits. Third, it narrows a growing class of “body-camera policy” Monell theories by insisting on concrete causation and notice—rejecting generalized deterrence logic without evidence of patterned constitutional violations or “independent proof” that policy failures were the moving force.

Even as it affirms liability against the officer, the court simultaneously constrains punitive exposure through a rigorous BMW/State Farm analysis and a notable invocation of party presentation, illustrating how constitutional tort litigation is shaped as much by procedural framing and remedial doctrine as by the underlying Fourth Amendment merits.