Curtis Baker v. City of Madison, Alabama

USCA11 Case: 22-10732    Document: 48-1      Date Filed: 05/03/2023    Page: 1 of 27




                                                              [PUBLISH]
                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 22-10732
                           ____________________

        CURTIS BAKER,
                                                       Plaintiff-Appellant,
        versus
        CITY OF MADISON, ALABAMA,
        DANIEL NUNEZ,
        DION HOSE,
                                                   Defendants-Appellees.


                           ____________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                     D.C. Docket No. 5:21-cv-00382-LCB
                           ____________________
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        2                      Opinion of the Court                 22-10732


        Before JILL PRYOR, GRANT, and HULL, Circuit Judges.
        HULL, Circuit Judge:
               In this 

42 U.S.C. § 1983

 action, plaintiff Curtis Baker alleged
        (1) Officer Daniel Nunez used excessive force when Officer Nunez
        tased him at the scene of an automobile wreck, (2) Officer Dion
        Hose failed to intervene to prevent Officer Nunez’s excessive force,
        and (3) the City of Madison, Alabama admitted the officers’ actions
        were the result of its municipal policy.
               Relying on body camera footage, defendants Officer Nunez,
        Officer Hose, and the City moved to dismiss. The district court
        considered the body camera footage and granted their motions to
        dismiss.
               On appeal, Baker argues the district court erred by
        (1) considering the officers’ body camera footage when ruling on
        the defendants’ motions to dismiss without converting them into
        summary judgment motions, (2) granting qualified immunity to
        Officer Nunez, (3) dismissing Baker’s failure-to-intervene claim
        against Officer Hose, and (4) dismissing his municipal liability claim
        against the City.
               After careful review of the record and the briefs, and with
        the benefit of oral argument, we conclude that the district court
        properly considered the body camera footage, correctly ruled that
        Officer Nunez did not violate a constitutional right and thus Officer
        Hose had no duty to intervene, and accurately determined that
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        22-10732               Opinion of the Court                       3

        Baker’s claim against the City failed as a matter of law. Therefore,
        we affirm the dismissal of Baker’s complaint.
                             I.     BACKGROUND
        A.    Allegations in the Complaint
              In his pro se complaint, Baker alleged the following. Baker
        has epilepsy and sometimes has seizures.            Consequently,
        emergency medical personnel in the City know him and know
        about his condition.
               On March 16, 2019, Baker and his friend were in a car
        together when they got in a “minor accident.” Paramedics arrived
        on the scene after the accident happened. By the time paramedics
        arrived, Baker was having a seizure.
               Officers Nunez and Hose arrived shortly thereafter. Baker
        was still having a seizure. Paramedics and Baker’s friend told the
        police “over and over again” that Baker had suffered a seizure and
        that he was still in the throes of that seizure. Officers Nunez and
        Hose “told Baker to get on a gurney and go to the hospital.” Baker
        declined and asked to speak to his mother.
               Baker’s friend advised Officers Nunez and Hose that Baker’s
        seizure would likely pass in a few moments and Baker could not
        fully understand the police. Paramedics also told Officers Nunez
        and Hose that Baker could not fully understand the police.
        Nonetheless, Officer Nunez tased Baker “multiple times” while
        attempting “to make Baker get on the gurney to go to the hospital.”
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        4                      Opinion of the Court                 22-10732

                Baker alleged that he (1) was not combative with the police,
        (2) simply did not get on the gurney, (3) was not in danger from
        traffic, and (4) was not endangering anyone.
               Later, Baker asked the City to investigate and reprimand the
        officers. In response, Baker received a letter from the City, advising
        him that the officers’ actions were consistent with municipal
        policy.
        B.    Body Camera Footage
              As the district court emphasized, the body camera footage
        from Officers Nunez and Hose tells a different story. Importantly,
        the footage contains both audio and video, is clear and easy to
        follow, and shows all the relevant conduct. Here is what the
        footage shows.
               Around noon, Officer Nunez arrived on the scene after
        Baker, while driving, had rear-ended the vehicle in front of him. As
        Officer Nunez approached Baker’s vehicle, (1) a person who had
        been in Baker’s car was on the phone with an unidentified person
        and said he “d[id]n’t know if [Baker] had a seizure or what, but he
        crossed the lane of traffic and rear-ended somebody”; (2) a
        paramedic was attending to Baker, who was still in the driver’s seat
        of his vehicle; and (3) other paramedics were bringing a stretcher
        over to the driver’s side of Baker’s vehicle.
              Officer Nunez walked to the back of Baker’s vehicle and
        wrote down the license plate number.
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        22-10732              Opinion of the Court                       5

               While Officer Nunez remained at the back of Baker’s
        vehicle, the paramedics were able to get Baker out of his vehicle.
        Over the next minute, a paramedic repeatedly asked—at least
        thirteen times—for Baker to sit down on the stretcher. Baker
        remained standing outside his vehicle and would not sit down on
        the stretcher.
               That paramedic also asked Baker to produce his driver’s
        license. Baker did not respond to this request, prompting the
        paramedic to explain to Baker that if he could not respond to
        questions, he would have to be taken to the hospital.
              Officer Nunez approached and said, “Hey, Curtis man.
        Have a seat, man.” When Baker tried to push past a paramedic
        who was blocking the driver’s side door of Baker’s vehicle, Officer
        Nunez moved the stretcher aside to get closer to Baker. Officer
        Nunez told Baker to “relax” and explained that the paramedics
        were trying to help Baker.
               For the next two minutes, Officer Nunez asked Baker to sit
        on the stretcher at least ten times, and the paramedics asked Baker
        to do the same at least nine more times. Baker continued to stand
        outside his vehicle and did not sit down on the stretcher that was
        next to the vehicle.
               During this interaction, both Officer Nunez and a paramedic
        asked Baker to produce his driver’s license. Baker put his hands in
        his pockets, but instead of a driver’s license, Baker pulled out a
        lighter and tried to smoke a broken cigarette butt. Officer Nunez
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        6                      Opinion of the Court               22-10732

        told Baker he could smoke a cigarette after he had a seat on the
        stretcher.
               While Baker fiddled with the broken cigarette, Officer
        Nunez asked one of the paramedics if Baker was going to the
        hospital. The paramedic told Officer Nunez that there was
        “something definitely wrong with [Baker],” and the paramedic
        wondered if Baker was (1) under the influence, (2) a diabetic, or
        (3) having a seizure. The paramedic added that he “highly
        doubt[ed]” it was a seizure. The paramedic also stated that they
        would check his blood sugar now.
               Because Baker had ignored repeated requests to sit on the
        stretcher, the paramedics then asked Baker to lean against a
        concrete barrier on the road or his vehicle. Baker got closer to his
        vehicle but did not lean against it. Baker asked, “what’s the
        problem?” Officer Nunez responded that Baker had just been in an
        accident, and the paramedics were trying to make sure Baker was
        okay.
              One of the paramedics prepared the device to check Baker’s
        blood sugar and then said to Baker, “let me borrow your finger for
        just a second.” Baker immediately turned away from that
        paramedic.
               Officer Nunez grabbed Baker’s arm and turned Baker back
        around to face him. Baker replied, “get off me, man.” Baker then
        said, “where my phone at” and dug through his pockets with both
        hands, looking for his phone.
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        22-10732               Opinion of the Court                       7

               Over the next two minutes, Baker tried to get back into his
        vehicle, despite just having had the rear-end automobile accident
        and despite the paramedics telling him to sit on the stretcher.
               Baker first headed toward the open driver’s door of the
        vehicle. Officer Nunez put his arm out to block Baker. Officer
        Nunez told Baker (1) to let the paramedics check him out first and
        (2) Officer Nunez would “call [Baker’s] phone afterwards.”
               Baker again headed toward the open driver’s door of his
        vehicle to get in the vehicle. Officer Nunez again grabbed Baker’s
        arm, telling him “no.” Baker pulled his arm away and said he was
        trying to “get in [his] motherfucking car” and told Officer Nunez
        to “move.”
               Officer Nunez tried to stop Baker from getting back in his
        vehicle, grabbing his arm. But Baker, becoming more agitated,
        broke free again and told Officer Nunez to “chill” and “get the fuck
        off [him].” Baker moved toward Officer Nunez, stating that Officer
        Nunez would “be in jail somewhere for fucking with [him].”
                At this time, Officer Nunez backed away, drew his taser, and
        pointed it at Baker (but Officer Nunez did not fire it). Officer
        Nunez told Baker to “chill” and to “step back.” Officer Nunez held
        his left hand out toward Baker, who pushed it away. Officer Nunez
        reported on his radio that “the suspect was being combative.”
              Next, Baker (1) turned away from Officer Nunez, (2) walked
        again toward the open driver’s door, (3) pushed past one
        paramedic who tried to stop him, and (4) sat down sideways in the
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        8                          Opinion of the Court                    22-10732

        driver’s seat with his feet still on the road. Officer Nunez put his
        taser back in the holster, grabbed Baker’s left arm, and attempted
        to remove Baker from the vehicle by pulling on Baker’s left arm.
        Baker called Officer Nunez a “bitch” and resisted being removed
        from the vehicle. As Baker came out of the vehicle, he reached for
        Officer Nunez and moved toward him. 1
                Officer Nunez then stepped back, drew his taser again, and
        fired the taser, hitting Baker in the stomach. Officer Nunez’s body
        camera footage shows that from approximately 12:06:36 to
        12:06:48, Baker (1) fought the taser’s charge, (2) moved back
        toward the driver’s seat of his vehicle, (3) pulled off his sweatshirt,
        and (4) told Officer Nunez to “chill out.”
               Officer Nunez removed his taser’s cartridge, loaded a new
        one, and again pointed the taser at Baker. When Officer Nunez
        threatened to deploy the taser again, Baker said, “Damn, that shit
        hurt my boy.”
                After firing his taser the one time, Officer Nunez told Baker
        at least sixteen times to turn around. Baker repeatedly did not turn
        around, continued to resist Officer Nunez’s commands, and once
        again tried to get in his vehicle.



        1 The defendants characterize this action as a shove.It may have been a shove,
        but Officer Nunez’s body camera footage does not clearly depict that. As
        explained more thoroughly below, see infra Section III.C, we construe all
        ambiguities in the footage in favor of Baker at the motion-to-dismiss stage.
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        22-10732               Opinion of the Court                         9

               More than two minutes after Officer Nunez had tased Baker,
        Officer Hose arrived on the scene. When Officer Hose approached
        Baker, Baker said, “Hey, Mr. Officer. Can y’all get this man? He
        just shot me in my stomach.”
              Officer Hose engaged Baker (who was still resisting Officer
        Nunez) and, with help from a third officer, subdued Baker and
        placed him in handcuffs.
               At several points, Baker asked the officers to call his mother.
        Eventually, Baker’s mother came to the scene. After extended
        discussion and the writing of reports, the officers allowed Baker to
        leave the scene with his mother.
        C.    Procedural History
               In March 2021, Baker filed his pro se § 1983 complaint. Baker
        sued (1) Officer Nunez for excessive force in violation of the Fourth
        and Fourteenth Amendments, (2) Officer Hose for failure to
        intervene in Officer Nunez’s allegedly unconstitutional use of
        force, and (3) the City for municipal liability because the officers’
        acts were the result of the City’s unconstitutional policy.
              Baker’s complaint referenced a “video recording” of the
        incident several times, stating that “[u]pon information and belief,
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        10                        Opinion of the Court                      22-10732

        it is averred that the video recording is a display of what
        happened.” 2
               The defendants each moved to dismiss under Federal Rule
        of Civil Procedure 12(b)(6). In addition, Officer Hose filed the
        video footage from the body cameras of Officers Nunez and Hose.
        Baker, now represented by counsel, responded to the motions to
        dismiss.
                On February 2, 2022, the district court held a telephonic
        hearing on the motions to dismiss. During the hearing, Baker’s
        counsel argued that the defendants’ motions to dismiss did not
        really raise an “Iqbal or Twombly issue” because they relied on the
        body camera footage, which was “outside the record.” Baker’s
        counsel argued that under the circumstances, the district court
        should allow Baker “very limited discovery” so he could “put[] that
        video evidence in context.”
               On February 8, 2022, the district court granted the
        defendants’ motions to dismiss for failure to state a claim and
        dismissed Baker’s claims with prejudice. In doing so, the district
        court considered the body camera footage, which it concluded told


        2 The pro se complaint also alleged that the defendants refused to provide
        Baker with the video. However, later when Officer Hose filed the footage
        with the district court, he provided notice that he would serve the footage on
        Baker via United States Postal Service Priority Mail. According to the tracking
        information, Baker received the thumb drive containing the footage at 2:06
        p.m. on April 20, 2021. On appeal, Baker does not dispute that he received the
        footage from the defendants.
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        22-10732                Opinion of the Court                        11

        “a different story” from the allegations in Baker’s complaint.
        Relying on McDowell v. Gonzalez, 

820 F. App’x 989

 (11th Cir.
        2020) (unpublished), the district court concluded it was proper to
        consider the body camera footage because it met the requirements
        of the incorporation-by-reference doctrine.
              The district court dismissed Baker’s failure-to-intervene
        claim against Officer Hose because the footage showed Officer
        Hose did not arrive on the scene until two minutes after Officer
        Nunez tased Baker.
               The district court dismissed the municipal liability claim
        against the City because Baker had not responded to the City’s
        argument that the claim failed to satisfy the pleading standards of
        Federal Rule of Civil Procedure 8(a) and thus Baker had abandoned
        the claim. Alternatively, the district court concluded Baker, who
        “alleged only a single instance of officer conduct to support his
        claim,” had failed to plausibly plead either an actionable policy or
        custom or prior ratification by the City’s policymakers.
               The district court dismissed Baker’s excessive force claim
        against Officer Nunez, concluding that Officer Nunez was entitled
        to qualified immunity. To begin with, the district court
        determined that Baker had not shown Officer Nunez’s use of force
        violated a clearly established right. Alternatively, the district court
        concluded that the body camera footage established that Officer
        Nunez’s use of force was reasonable given the circumstances he
        faced, including Baker’s “aggressive and non-compliant behavior”
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        12                     Opinion of the Court                22-10732

        and active resistance to Officer Nunez’s “efforts to prevent him
        from getting in his car.”
                Baker timely appealed.
                         II.   STANDARD OF REVIEW
               We review de novo the district court’s grant of a motion to
        dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure
        to state a claim. McGroarty v. Swearingen, 

977 F.3d 1302, 1306

        (11th Cir. 2020). We also review de novo a district court’s decision
        to grant the defense of qualified immunity on a motion to dismiss.
        Davis v. Carter, 

555 F.3d 979, 981

 (11th Cir. 2009).
               We “may affirm on any basis in the record, regardless of
        whether the [d]istrict [c]ourt actually relied upon that basis in
        dismissing the plaintiff’s claim.” Henley v. Payne, 

945 F.3d 1320, 1333

 (11th Cir. 2019).
         III.   CONSIDERATION OF BODY CAMERA FOOTAGE AT
                    THE MOTION-TO-DISMISS STAGE
                On appeal, Baker argues as a threshold matter that the
        district court improperly considered the officers’ body camera
        footage without first converting the defendants’ motions to dismiss
        into summary judgment motions and permitting Baker to conduct
        limited discovery. We address that threshold issue first.
        A.      General Principles
                Generally, when considering a motion to dismiss, the
        district court must limit its consideration to the pleadings and any
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        22-10732              Opinion of the Court                      13

        exhibits attached to it. Grossman v. Nationsbank, N.A., 

225 F.3d 1228, 1231

 (11th Cir. 2000). If the parties present, and the court
        considers, evidence outside the pleadings, the motion to dismiss
        generally must be converted into a motion for summary judgment.
        Fed. R. Civ. P. 12(d); Finn v. Gunter, 

722 F.2d 711, 713

 (11th Cir.
        1984).
                There are two exceptions to this conversion rule: (1) the
        incorporation-by-reference doctrine and (2) judicial notice.
        Tellabs, Inc. v. Makor Issues & Rts., Ltd., 

551 U.S. 308, 322

,
        

127 S. Ct. 2499, 2509

 (2007) (“[C]ourts must consider the complaint
        in its entirety, as well as other sources courts ordinarily examine
        when ruling on Rule 12(b)(6) motions to dismiss, in particular,
        documents incorporated into the complaint by reference, and
        matters of which a court may take judicial notice.”). Both
        exceptions permit district courts to consider materials outside a
        complaint at the motion-to-dismiss stage. Because only the
        incorporation-by-reference doctrine is at issue here, we need not
        address judicial notice.
               Under the incorporation-by-reference doctrine, a court may
        consider evidence attached to a motion to dismiss without
        converting the motion into one for summary judgment if (1) “the
        plaintiff refers to certain documents in the complaint,” (2) those
        documents are “central to the plaintiff’s claim,” and (3) the
        documents’ contents are undisputed. Horsley v. Feldt, 

304 F.3d 1125, 1134

 (11th Cir. 2002); Brooks v. Blue Cross & Blue Shield of
        Fla., Inc., 

116 F.3d 1364, 1369

 (11th Cir. 1997). Evidence is
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        14                     Opinion of the Court                22-10732

        “undisputed” in this context if its authenticity is unchallenged.
        Horsley, 

304 F.3d at 1134

.
                Traditionally, we have applied the incorporation-by-
        reference doctrine to various types of documentary evidence. See,
        e.g., Hi-Tech Pharm., Inc. v. HBS Int’l Corp., 

910 F.3d 1186, 1189

        (11th Cir. 2018) (marketing label); Maxcess, Inc. v. Lucent Techs.,
        Inc., 

433 F.3d 1337

, 1340 n.3 (11th Cir. 2005) (purchase agreement);
        Hoffman-Pugh v. Ramsey, 

312 F.3d 1222

, 1225–26 (11th Cir. 2002)
        (book); Horsley, 304 F.3d at 1134–35 (news article). The question
        in this case is whether the incorporation-by-reference doctrine also
        applies to the body camera footage.
        B.    Application of the Incorporation-by-Reference Doctrine
               Here, the requirements of the incorporation-by-reference
        doctrine are easily satisfied. First, Baker referenced the body
        camera footage in his complaint several times. At one point, the
        complaint even alleged that “[u]pon information and belief, it is
        averred that the video recording is a display of what happened.”
        Further, the body camera footage was filed concurrently with
        Officer Hose’s motion to dismiss. See Day v. Taylor, 

400 F.3d 1272

,
        1276 (11th Cir. 2005) (explaining that “a document need not be
        physically attached”).
               Second, the body camera footage depicts the events that are
        central to Baker’s claims. The footage shows all the relevant
        conduct and is particularly clear here because (1) the incident took
        place in broad daylight, so the area depicted in the footage is
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        22-10732                  Opinion of the Court                             15

        well-lit, (2) the footage presents both visual and audio depictions of
        the events that transpired, and (3) for the most part, the viewer has
        a good angle of the events with no visual obstructions.
               Third, the body camera footage is undisputed because Baker
        does not challenge the authenticity of the footage. See Horsley,
        

304 F.3d at 1134

. There are no allegations or indications that the
        footage has been altered in any way, nor any contention that what
        the footage depicts differs from what actually happened.
               Because the requirements of the incorporation-by-reference
        doctrine are met, the district court properly considered the body
        camera footage from Officers Hose and Nunez when ruling on the
        motions to dismiss.
        C.     Evaluating the Contents of Body Camera Footage
               Before proceeding to the merits of Baker’s claims, we
        address Baker’s other objection to the consideration of the footage
        at the motion-to-dismiss stage. Baker argues that the footage is
        subjective and open to interpretation. 3
               We agree that, at times, videos do not paint the entire
        picture and may contain ambiguities that are subject to


        3 Significantly, this argument does not pertain to whether the district court
        properly incorporated by reference the body camera footage into the
        complaint because with the incorporation-by-reference doctrine,
        “undisputed” means that the authenticity is not challenged, Horsley, 

304 F.3d at 1134

, not that the incorporated evidence is free from any disagreement over
        the meaning of its content.
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        16                      Opinion of the Court                   22-10732

        interpretation. There can be many reasons for that. Perhaps the
        video was shot from a bad angle, and thus the viewer cannot see
        all of the events as they unfold. Or perhaps the video contains a
        visual representation of what happened but does not contain
        crucial audio. When that is true, courts must construe all
        ambiguities in the video footage in favor of the plaintiff, as they
        must, at this stage, construe all ambiguities in the written pleadings
        in the plaintiff’s favor. See Speaker v. U.S. Dep’t of Health & Hum.
        Servs., 

623 F.3d 1371, 1379

 (11th Cir. 2010).
               But where a video is clear and obviously contradicts the
        plaintiff’s alleged facts, we accept the video’s depiction instead of
        the complaint’s account, see Pourmoghani-Esfahani v. Gee, 

625 F.3d 1313

, 1315 (11th Cir. 2021), and view the facts in the light
        depicted by the video, see Scott v. Harris, 

550 U.S. 372, 381

,
        

127 S. Ct. 1769, 1776

 (2007). After all, courts are not required to
        rely on “visible fiction.” Scott, 550 U.S. at 380–81, 127 S. Ct. at 1776.
               In sum, while reviewing the district court’s ruling on the
        defendants’ motions to dismiss, we have credited, as we must,
        Baker’s factual allegations where no obviously contradictory video
        evidence is available. But the footage plainly contradicts Baker’s
        alleged version of events, leading us to view most of the facts as
        depicted by the video. Cf. Pourmoghani-Esfahani, 625 F.3d at 1315
        (explaining that a video may not “obviously contradict[]” a
        plaintiff’s version of the facts because the video “fails to convey
        spoken words or tone” or “fails to provide an unobstructed view of
        the events”). That said, we turn to qualified immunity generally
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        22-10732               Opinion of the Court                      17

        and then specifically to whether Officer Nunez violated Baker’s
        constitutional rights.
                         IV.    QUALIFIED IMMUNITY
                Under the doctrine of qualified immunity, “government
        officials performing discretionary functions generally are shielded
        from liability for civil damages insofar as their conduct does not
        violate clearly established statutory or constitutional rights of
        which a reasonable person would have known.” Harlow v.
        Fitzgerald, 

457 U.S. 800, 818

, 

102 S. Ct. 2727, 2738

 (1982).
               Qualified immunity balances two important public interests:
        “the need to hold public officials accountable when they exercise
        power irresponsibly and the need to shield officials from
        harassment, distraction, and liability when they perform their
        duties reasonably.” Pearson v. Callahan, 

555 U.S. 223, 231

, 

129 S. Ct. 808, 815

 (2009).
                When a government official raises the “defense of qualified
        immunity, we first consider whether the defendant government
        official has proved that he was acting within the scope of his
        discretionary authority when the alleged wrongful act occurred.”
        Gonzalez v. Lee Cnty. Hous. Auth., 

161 F.3d 1290

, 1294–95 (11th
        Cir. 1998) (alteration and quotation marks omitted). “Once the
        defendant establishes that he was acting within his discretionary
        authority, the burden shifts to the plaintiff to show that qualified
        immunity is not appropriate.” Lee v. Ferraro, 

284 F.3d 1188, 1194

        (11th Cir. 2002).
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        18                     Opinion of the Court                 22-10732

                “To overcome a qualified immunity defense, the plaintiff
        must make two showings.” Christmas v. Harris Cnty., 

51 F.4th 1348, 1354

 (11th Cir. 2022) (quotation marks omitted). “First, the
        plaintiff must establish that the defendant violated a constitutional
        right.” 

Id.

 (emphasis and quotation marks omitted). “Second, the
        plaintiff must show that the violation was clearly established.” 

Id.

        (emphasis and quotation marks omitted). “Both elements must be
        satisfied for an official to lose qualified immunity.” Grider v. City
        of Auburn, 

618 F.3d 1240, 1254

 (11th Cir. 2010). We may analyze
        these two elements in whatever order is most appropriate for the
        case. Pearson, 

555 U.S. at 236

, 

129 S. Ct. at 818

.
                   V.     OFFICER NUNEZ’S USE OF FORCE
               Baker claims Officer Nunez used excessive force against him
        when Officer Nunez tased him in violation of the Fourth
        Amendment. Because no one disputes that Officer Nunez was
        acting within the scope of his discretionary authority when he tased
        Baker, we first outline the applicable Fourth Amendment
        principles and then address whether Baker’s complaint and the
        incorporated body camera footage established a constitutional
        violation.
        A.     Fourth Amendment Principles
              The Fourth Amendment provides a “right of the people to
        be secure in their persons . . . against unreasonable . . . seizures.”
        U.S. Const. amend. IV. The Fourth Amendment’s freedom from
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        22-10732               Opinion of the Court                      19

        unreasonable seizures includes the right to be free from excessive
        force. Oliver v. Fiorino, 

586 F.3d 898, 905

 (11th Cir. 2009).
               In excessive force cases, the first qualified immunity
        inquiry—i.e., whether a plaintiff’s constitutional rights were
        violated—is governed by the Fourth Amendment’s objective
        reasonableness standard. Hadley v. Gutierrez, 

526 F.3d 1324, 1329

        (11th Cir. 2008). “Under that standard, we judge the officer’s use
        of force ‘on a case-by-case basis from the perspective of a
        reasonable officer on the scene, rather than with the 20/20 vision
        of hindsight.’” Johnson v. City of Miami Beach, 

18 F.4th 1267, 1272

        (11th Cir. 2021) (quoting Brown v. City of Huntsville, 

608 F.3d 724, 738

 (11th Cir. 2010)).
               To determine whether the force was objectively reasonable,
        courts examine the totality of the circumstances, “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.” Graham v. Connor, 

490 U.S. 386, 396

,
        

109 S. Ct. 1865, 1872

 (1989). Other considerations are the need for
        the application of force, the relationship between the need and the
        amount of force used, the extent of the injury inflicted,
        and whether the force was applied in good faith or maliciously and
        sadistically. Hadley, 

526 F.3d at 1329

.
               “The calculus of reasonableness must embody allowance for
        the fact that police officers are often forced to make split-second
        judgments—in circumstances that are tense, uncertain, and rapidly
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        20                     Opinion of the Court                 22-10732

        evolving—about the amount of force that is necessary in a
        particular situation.” Graham, 490 U.S. at 396–97, 

109 S. Ct. at 1872

.
               Ultimately, “[a]n officer’s use of force is excessive under the
        Fourth Amendment if the use of force was objectively
        unreasonable in light of the facts and circumstances confronting
        the officer.” Fils v. City of Aventura, 

647 F.3d 1272, 1287

 (11th Cir.
        2011) (alteration adopted) (quotation marks omitted).
        B.    No Constitutional Violation by Officer Nunez
               The body camera footage shows that as Officer Nunez was
        investigating the automobile accident (1) Baker repeatedly ignored
        instructions from Officer Nunez and the paramedics to sit down on
        the stretcher, (2) Baker failed to provide Officer Nunez with his
        driver’s license when requested, instead attempting to smoke a
        broken cigarette, (3) Baker ignored an instruction from one of the
        paramedics to lean against a concrete barrier on the road or against
        his vehicle, (4) Baker cursed at Officer Nunez, (5) Baker broke free
        from Officer Nunez’s grip, and (6) Baker got back into the driver’s
        seat of his vehicle despite Officer Nunez’s commands not to do so.
               The circumstances confronting Officer Nunez thus included
        that Baker had just rear-ended someone, was not following the
        paramedics’ or Officer Nunez’s commands, and instead attempted
        three times to go back to his vehicle, even successfully reentering
        it once. Under these circumstances, a reasonable officer on the
        scene would perceive that Baker, at best, was not safe to drive his
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        22-10732                       Opinion of the Court                          21

        vehicle, or, at worst, might try to flee using his vehicle (which itself
        could be used as a deadly weapon), thereby endangering Officer
        Nunez, the paramedics, and nearby motorists because of Baker’s
        apparent state of disorientation.
               The body camera footage further shows that Officer Nunez
        tried to remove Baker from the car verbally and physically. But
        when faced with Baker’s physical resistance, Officer Nunez used
        his taser (a nondeadly use of force) once in dart-mode to try to
        obtain Baker’s compliance. 4
               “Although being struck by a taser gun is an unpleasant
        experience, the amount of force [Officer Nunez] used—a single use
        of the taser gun causing a one-time shocking—was reasonably
        proportionate to the need for force and did not inflict any serious
        injury.” See Draper v. Reynolds, 

369 F.3d 1270, 1278

 (11th Cir.
        2004). Indeed, the body camera footage shows that Baker was not
        incapacitated by the taser: Baker fought the taser’s charge, moved
        toward the driver’s seat of his vehicle again, pulled off his
        sweatshirt, and told Officer Nunez to “chill out.” “The single use

        4   In dart-mode, the taser:
                  uses compressed nitrogen to propel a pair of “probes”—
                  aluminum darts tipped with stainless steel barbs connected to
                  the [taser] by insulated wires—toward the target at a rate of
                  over 160 feet per second. Upon striking a person, the [taser]
                  delivers a 1200 volt, low ampere electrical charge through the
                  wires and probes and into [the person’s] muscles.
        Bryan v. MacPherson, 

630 F.3d 805, 824

 (9th Cir. 2010) (footnote omitted).
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        22                     Opinion of the Court                 22-10732

        of the taser gun may well have prevented a physical struggle and
        serious harm to either” Baker or Officer Nunez. See id.; see also
        Smith v. LePage, 

834 F.3d 1285, 1294

 (11th Cir. 2016) (“[W]here a
        suspect appears hostile, belligerent, and uncooperative, use of a
        taser might be preferable to a physical struggle causing serious
        harm to the suspect or officer.” (quotation marks omitted)).
               Baker argues Helm v. Rainbow City, 

989 F.3d 1265

 (11th Cir.
        2021), controls the outcome here. We disagree. The Helm facts
        are easily and materially distinguishable from our facts. In Helm,
        a seventeen-year-old girl, who was suffering a grand mal seizure,
        was tased three times while four or five officers held her down. 989
        F.3d at 1269–70 & n.1. The girl was not resisting or combative, and
        the officers did not dispute that the teenage girl presented no threat
        to them and committed no crime. 

Id. at 1270, 1274

. Unlike the
        teenage girl in Helm, Baker was unrestrained, combative, and
        noncompliant with repeated police commands when he was tased.
               We believe the facts here are more like Draper v. Reynolds.
        In that case, a police officer pulled over the plaintiff, who was
        driving a tractor trailer truck, “because [the truck’s] tag light was
        not appropriately illuminated under Georgia law.” 

369 F.3d at 1272

. During the ensuing traffic stop, the plaintiff “acted in a
        confrontational and agitated manner, paced back and forth, and
        repeatedly yelled at [the officer].” 

Id.

 at 1276–77. When the
        plaintiff failed to comply with the officer’s fifth request to produce
        certain documents, the officer tased him. 

Id. at 1273

. We held that
        the use of the taser “was reasonably proportionate to the difficult,
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        22-10732                Opinion of the Court                          23

        tense[,] and uncertain situation that [the officer] faced in this traffic
        stop[] and did not constitute excessive force.” 

Id. at 1278

.
                In light of our holding in Draper, Officer Nunez’s use of the
        taser was justified because of (1) Baker’s repeated failure to comply
        with Officer Nunez’s commands, (2) Baker’s unsafe driving that
        had just caused an automobile accident, (3) Baker’s repeated efforts
        to get back in the vehicle, (4) Baker’s physical resistance to Officer
        Nunez’s attempts to remove him from the vehicle, and (5) the
        tense, uncertain, and rapidly evolving series of events. What
        started as a routine incident response escalated. Officer Nunez
        “was not required to wait and hope for the best” before making the
        split-second decision to tase Baker. Jean-Baptiste v. Gutierrez, 

627 F.3d 816, 821

 (11th Cir. 2010) (alteration adopted) (quotation marks
        omitted).
                Based on the totality of the circumstances, we conclude that
        Officer Nunez’s single use of a taser in dart-mode was objectively
        reasonable and did not constitute excessive force. See, e.g.,
        Zivojinovich v. Barner, 

525 F.3d 1059, 1073

 (11th Cir. 2008) (“[I]n
        a difficult, tense[,] and uncertain situation[,] the use of a taser gun
        to subdue a suspect who has repeatedly ignored police instructions
        and continues to act belligerently toward police is not excessive
        force.” (quotation marks omitted)).
               Because we conclude Officer Nunez did not violate a
        constitutional right, we need not reach the other qualified
        immunity question. Accordingly, we affirm the district court’s
        grant of qualified immunity to Officer Nunez.
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        24                      Opinion of the Court                  22-10732

                        VI.     FAILURE TO INTERVENE
                Baker sued Officer Hose for failure to intervene. “[A]n
        officer can be liable for failing to intervene when another officer
        uses excessive force.” Priester v. City of Riviera Beach, 

208 F.3d 919, 924

 (11th Cir. 2000). Specifically, “an officer who is present at
        the scene and who fails to take reasonable steps to protect the
        victim of another officer’s use of excessive force[] can be held liable
        for his nonfeasance.” Velazquez v. City of Hialeah, 

484 F.3d 1340

,
        1341 (11th Cir. 2007) (quotation marks omitted).
               Baker’s failure-to-intervene claim fails for two reasons. First,
        because Officer Nunez’s use of the taser did not constitute
        excessive force, see supra Section V.B, Officer Hose had no
        obligation to intervene. See Crenshaw v. Lister, 

556 F.3d 1283, 1294

 (11th Cir. 2009) (explaining that there is “no attendant
        obligation to intervene” if the other officer’s force is not excessive).
               Second, even assuming Officer Nunez’s use of the taser was
        excessive, Officer Hose did not witness Officer Nunez’s use of the
        taser and thus did not have the ability to intervene to prevent that
        use of force. The body camera footage shows that Officer Hose
        arrived at the scene more than two minutes after Officer Nunez
        fired his taser. That alone is fatal to Baker’s claim. See Priester, 

208 F.3d at 924

 (explaining that liability for failure to intervene “only
        arises when the officer is in a position to intervene and fails to do
        so”).
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        22-10732                 Opinion of the Court                        25

              For these reasons, we affirm the district court’s dismissal of
        Baker’s failure-to-intervene claim against Officer Hose.
                          VII.    MUNICIPIAL LIABLITY
               Baker’s claim against the City is based on the City’s alleged
        determination that Officers Nunez and Hose acted “consistent
        with [m]unicipal policy.” The Supreme Court’s Monell decision
        authorizes lawsuits directly against municipalities where “the
        action that is alleged to be unconstitutional implements or executes
        a policy statement, ordinance, regulation, or decision officially
        adopted and promulgated by that body’s officers.” Monell v. Dep’t
        of Soc. Servs., 

436 U.S. 658, 690

, 

98 S. Ct. 2018

, 2035–36 (1978).
                A municipality may be held liable for the actions of its law
        enforcement officers only when the officers’ execution of official
        policy (or custom) is the moving force of a constitutional violation.
        

Id. at 694

, 98 S. Ct. at 2037–38. Thus, to establish municipal
        liability, a plaintiff must show that (1) his constitutional rights were
        violated, (2) the municipality had a policy (or custom) that
        constituted deliberate indifference to that constitutional right, and
        (3) the municipal policy (or custom) caused the violation.
        McDowell v. Brown, 

392 F.3d 1283

, 1289–90 (11th Cir. 2004).
                Here, because there was no underlying constitutional
        violation, Baker’s municipal liability claim against the City fails as
        a matter of law. See Knight ex rel. Kerr v. Miami-Dade Cnty.,
        

856 F.3d 795, 821

 (11th Cir. 2017) (“There can be no policy-based
        liability or supervisory liability when there is no underlying
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        26                         Opinion of the Court                      22-10732

        constitutional violation.”); see also City of Los Angeles v. Heller,
        

475 U.S. 796, 799

, 

106 S. Ct. 1571, 1573

 (1986) (“[None] of our cases
        authorize[] the award of damages against a municipal corporation
        based on the actions of one of its officers when in fact the jury has
        concluded that the officer inflicted no constitutional harm. If a
        person has suffered no constitutional injury at the hands of the
        individual police officer, the fact that the departmental regulations
        might have authorized the use of constitutionally excessive force is
        quite beside the point.” (emphasis omitted)).
             We therefore affirm the district court’s dismissal of the
        municipal liability claim on this basis. 5
                                  VIII. CONCLUSION
               We conclude that the district court properly considered the
        body camera footage from Officers Nunez and Hose when ruling
        on the defendants’ motions to dismiss. We affirm the district
        court’s grant of the defendants’ motions to dismiss.


        5 We also reject Baker’s argument that he  should have been allowed to amend
        his complaint before the district court dismissed it with prejudice. “A district
        court is not required to grant a plaintiff leave to amend his complaint sua
        sponte when the plaintiff, who is represented by counsel, never filed a motion
        to amend nor requested leave to amend before the district court.” Wagner v.
        Daewoo Heavy Indus. Am. Corp., 

314 F.3d 541, 542

 (11th Cir. 2002) (en banc).
        Although Baker filed his complaint pro se, Baker was represented by counsel
        (1) while he opposed the defendants’ motions to dismiss, (2) at the district
        court’s hearing on the motions to dismiss, and (3) when the dismissal
        occurred. Yet Baker’s counsel never sought to amend Baker’s complaint
        before the district court.
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        22-10732            Opinion of the Court                   27

              AFFIRMED.