JAMES P. CROCKER v. DEPUTY SHERIFF STEVEN ERIC BEATTY, Martin County Sheriff‘s Office, in his individual capacity
No. 18-14682
United States Court of Appeals for the Eleventh Circuit
April 20, 2021
D.C. Docket No. 2:16-cv-14162-RLR
[PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
(April 20, 2021)
Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.
When Deputy Sheriff Steven Beatty arrived at the scene of a fatal car crash on I-95 in south Florida, he saw James Crocker standing in the median taking photos of the accident with his phone. Beatty seized Crocker‘s phone and told him to drive away. When Crocker refused to leave without his phone, Beatty arrested him and left him in a hot patrol car for about 30 minutes. Crocker sued, alleging that Beatty violated his rights under the First, Fourth, and Fourteenth Amendments and Florida law. The district court granted Beatty summary judgment on all of Crocker‘s claims save one, on which Crocker later prevailed at trial. Crocker now appeals the district court‘s order.
We affirm. In particular, we hold (1) that Crocker‘s First Amendment claim is barred by qualified immunity, (2) that his false-arrest claims fail because Beatty had probable cause to arrest him, and (3) that his excessive-force claim fails on the merits and, in any event, is barred by qualified immunity.
I
A
Facts first.1 James Crocker was driving north on I-95 through Florida when he saw an overturned vehicle in the median. Crocker pulled over to the shoulder and got out of his car to see if he could help. Ten to fifteen other people did the
same. As law-enforcement and emergency personnel began to arrive, Crocker and the other onlookers moved away. Crocker then
Martin County Deputy Sheriff Steven Beatty approached Crocker and confiscated his phone—Crocker says “without warning or explanation.” When Crocker asked whether it was illegal to photograph the accident scene, Beatty replied: “[N]o, but now your phone is evidence of the State.” Beatty instructed Crocker to drive to a nearby weigh station to wait. Crocker didn‘t leave; instead, he offered to delete the pictures from his phone. Beatty again told Crocker to go to the weigh station and that someone from the Florida Highway Patrol would follow up with him about his phone. Crocker again refused, telling Beatty: “I‘ve been a law-abiding citizen of this town for 20 something years, [and] I deserve to be treated with dignity and respect.”
At that point, Beatty informed Crocker that he was under arrest for resisting an officer. Crocker then offered to leave—but, he said, not without his phone. Beatty handcuffed Crocker and escorted him toward his patrol car. Along the way, Crocker told Beatty: “[S]ir, I‘ve been personal friends with [Sheriff] Will Snyder over 25 years, I employ over a hundred people in this town, [and] I‘ve never broken the law.” Beatty responded: “I don‘t care who you know or how many
people you employ, you‘re going to jail.” After placing Crocker in the patrol car, Beatty turned off the air conditioning.2 Outside, it was about 84° Fahrenheit,3 and inside the patrol car, Crocker became hot and uncomfortable. He sweated profusely, experienced some trouble breathing, and felt anxious. Beatty left Crocker for a short while, and when he returned to the car Crocker begged for air and said he was “about to die.” Beatty responded, “[I]t‘s not meant to be comfortable sir,” and left Crocker where he was.
Sometime later, a Florida Highway Patrol trooper came by, opened the car‘s door, and asked Crocker for his driver‘s license. Crocker pleaded with her for help, too. Shortly thereafter, Crocker says, the trooper spoke to Beatty, who returned to the car and turned the AC back on.
In total, Crocker was left in the hot patrol car for somewhere between 22 and 30 minutes, after which Beatty drove him to the local jail. County officials eventually released Crocker, returned his phone to him, and dropped the “resisting
an officer” charge. Crocker didn‘t seek any medical attention in the aftermath of his arrest.4
B
Crocker sued Beatty and Martin County Sheriff William Snyder under
The district court granted Snyder‘s motion for summary judgment in its entirety and granted Beatty‘s motion on qualified-immunity grounds with respect to all of Crocker‘s claims except the one alleging that his phone was seized in violation of the Fourth Amendment. Crocker filed a motion for reconsideration, which the court denied.
Beatty filed an interlocutory appeal of the district court‘s order denying him qualified immunity on the phone-seizure claim, but this Court affirmed. Crocker v. Beatty, 886 F.3d 1132, 1138 (11th Cir. 2018). Crocker prevailed on that claim at trial, and the jury awarded him $1,000 in damages.
Crocker then appealed the district court‘s summary judgment order granting Beatty qualified immunity on the First Amendment, false-arrest, and excessive-force claims, which became final when judgment was entered following the jury verdict. This is Crocker‘s appeal.
II
Before us, Crocker presents three issues. He contends that the district court shouldn‘t have granted summary judgment to Beatty on (1) his First Amendment claim, (2) his Fourth Amendment and state-law false-arrest claims, or (3) his Fourteenth Amendment excessive-force claim. Because the district court rejected each claim on qualified-immunity grounds, we will begin with an overview of how qualified immunity works.5
A
Qualified immunity “shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.‘” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). When qualified immunity applies, it is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The doctrine shields “all but the plainly incompetent or those who knowingly violate the law.” Gates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
“To receive qualified immunity, the officer must first show that he acted within his discretionary authority.” Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). It‘s undisputed here that Beatty was acting within his discretionary authority, so it falls to Crocker to
curiam) (quotation marks omitted). Whether a public official is entitled to qualified immunity is “a purely legal question, subject to de novo review.” Id. “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.‘” Skop, 485 F.3d at 1136 (quoting
On the second prong, only decisions of the United States Supreme Court, this Court, or the highest court in a state can “clearly establish” the law. Gates, 884 F.3d at 1296. Because only clearly established law gives an officer “fair notice that her conduct was unlawful,” Brosseau v. Haugen, 543 U.S. 194, 198 (2004), the Supreme Court has held that the contours of the constitutional right at issue “must be sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right,” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation marks omitted).
Under this Court‘s precedent, a right can be clearly established in one of three ways. Crocker must point to either (1) “case law with indistinguishable facts,” (2) “a broad statement of principle within the Constitution, statute, or case law,” or (3) “conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.” Lewis, 561 F.3d at 1291-92. Although we have recognized that options two and three can suffice, the Supreme Court has warned us not to “define clearly established law at a high level of generality.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (quotation marks omitted). For that reason, the second and third paths are rarely-trod ones. See Gaines v. Wardynski, 871 F.3d 1203, 1209 (11th Cir. 2017) (collecting cases). And when a plaintiff relies on a “general rule[]” to show that the law is clearly established, it must “appl[y] with obvious clarity to the
circumstances.” Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007) (quotation marks omitted; emphasis added); see also Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010) (“[I]f a plaintiff relies on a general rule, it must be obvious that the general rule applies to the specific situation in question.“).
With that background, we turn to Crocker‘s claims.
B
1
We begin with Crocker‘s First Amendment claim. The district court held that Beatty was entitled to qualified immunity because the law underlying Crocker‘s First Amendment claim wasn‘t clearly established. We agree.
Crocker‘s contrary argument appears to be of the Path-2 variety—i.e., a contention that a “broad statement of [First Amendment] principle” in our caselaw clearly established his right to photograph the accident scene. For that proposition, he first points to our three-paragraph opinion in Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000). There, we said that “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Id. at 1333. In particular, we held that the plaintiffs there “had a First Amendment right, subject to
reasonable time, manner and place restrictions, to photograph or videotape police conduct.” Id. So far, so good—that‘s certainly a “broad statement.”
But in our view, it is decidedly not “obvious” that Smith‘s “general rule applies to the specific situation in question”
so here, given the chaos of a fatal car crash and a citizen who (as we will explain shortly) might well have been photographing the incident from an unlawful vantage point.
The dissent concludes otherwise on the ground that “the broad pronouncement in Smith underscores the right‘s general applicability.” Dissenting Op. at 53. And so, as the dissent reads Smith, the “right to record police activity” may be “limited only by ‘reasonable time, manner and place restrictions.‘” Dissenting Op. at 53-4 (quoting Smith, 212 F.3d at 1333). Because the dissent finds no such restrictions in the record here, it would “hold that Mr. Crocker‘s First Amendment right to record the fatal car crash was clearly established” by Smith. Dissenting Op. at 56.
A couple of responses. First, there is the Supreme Court‘s oft-repeated instruction “not to define clearly established law at a high level of generality.” Ashcroft, 563 U.S. at 742. With that negative injunction comes a positive command to ask “whether the violative nature of particular conduct is clearly established.” Mullenix, 577 at 12 (quotation marks omitted). And we must answer
that question “in light of the specific context of the case, not as a broad general proposition.” Brosseau, 543 U.S. at 198 (quotation marks omitted). Given that guidance, it seems to us that Smith‘s lack of explanation remains more vice than virtue for the purpose of clearly establishing the law here.
Second, we think that one of the few contextual clues Smith did leave behind counsels against reading it to have
To be clear, though, the question isn‘t whether Smith might imply to us some kind of public-forum predicate; rather, we must ask whether every reasonable police officer in Beatty‘s position would have known that Crocker had a right to record the accident‘s aftermath, subject only to reasonable time, place, and manner restrictions. See Ashcroft, 563 U.S. at 741; Gates, 884 F.3d at 1303 (“[T]he test asks whether already existing law was so clear that, given the specific facts facing this particular officer, one must conclude that every reasonable official would have understood that what he is doing violates the Constitutional right at issue.” (quotation marks omitted)). We don‘t think so. Subject to exceptions not relevant here, Florida law prohibits individuals from parking on the side of a “limited access facility” like I-95,
see
For the foregoing reasons, we hold that Smith‘s rule didn‘t apply with “obvious clarity to the circumstances,” Long, 508 F.3d at 584, and, therefore, that Beatty is entitled to qualified immunity on Crocker‘s First Amendment claim.
2
We turn next to Crocker‘s two false-arrest claims, the first of which arises under the Fourth Amendment, and the second of which rests on Florida law.
a
On Crocker‘s Fourth Amendment claim, Beatty is entitled to qualified immunity because he didn‘t violate Crocker‘s constitutional rights.9
The Fourth Amendment protects individuals “against unreasonable searches and seizures.”
A few probable-cause basics: An officer has probable cause when “the facts and circumstances within the officer‘s knowledge, of which he or she has reasonably
As to Crocker‘s Fourth Amendment claim, the district court held that Beatty was shielded by qualified immunity because he had probable cause to arrest Crocker for violating
to conduct a warrantless arrest for any violation of
Because Crocker‘s car was parked on the shoulder of I-95, a “limited access facility,” the district court held that Beatty had probable cause to arrest him. And although Crocker might initially have been covered by the Good Samaritan exception, the court held that he no longer qualified by the time he encountered Beatty, at which point he was standing 40-50 feet away from the crash scene and merely observing it.
We agree with the district court that Officer Beatty had probable cause to arrest Crocker. Even under Crocker‘s own version of the arrest, “the facts and circumstances within [Beatty‘s] knowledge” could have “cause[d] a prudent person to believe,” Williamson, 65 F.3d at 158, that Crocker was violating
Crocker insists, however, that there‘s no evidence that Beatty knew that Crocker had driven to the scene and that Beatty therefore couldn‘t formulate
probable cause to arrest him for the parking offense. But Crocker‘s own testimony, which we accept as true, defeats his argument. Crocker testified that during their brief encounter before the arrest, Beatty “told [him] to leave and drive to the northbound weigh station and wait there“—to which Crocker responded that he‘d be more than happy to cooperate. Crocker also testified that “[Beatty] told me to get in my car and drive to the northbound . . . weigh station.” That testimony—both Beatty‘s commands and Crocker‘s responses—would have made little sense if Crocker was a mere pedestrian.
b
On, then, to the state-law false-arrest claim. Probable cause bars a claim for false arrest under Florida law just as it does under federal law. Manners v. Cannella, 891 F.3d 959, 975 (11th Cir. 2018); see also Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (recognizing that “probable cause constitutes an
absolute bar to both state and § 1983 claims alleging false arrest” and that “the standard for determining whether probable cause exists is the same under Florida and federal law“). Because we hold that Beatty had probable cause to arrest, Crocker‘s Florida false-arrest claim—like his Fourth Amendment claim—fails.
Crocker counters that even if his arrest didn‘t violate the Fourth Amendment, it violated state law because the governing Florida statute requires the offense at issue to occur “in the presence of the officer“—and here, Crocker contends, the offense didn‘t occur in Beatty‘s presence. See
No matter how strictly we construe it, though, the presence-of-the-officer requirement was met here. Again, the relevant rule of Florida law is that “no person shall . . . [s]top, stand, or park a vehicle” on the “shoulder of a limited access facility.”
3
Finally, to Crocker‘s argument that Beatty used excessive force in violation of the Fourteenth Amendment by detaining him in a hot patrol car.11 “We begin from the premises that exposure to uncomfortable heat is part and parcel of life in the South and, accordingly, that not every ‘hot car’ case will give rise to a cognizable constitutional claim.” Patel v. Lanier Cnty., 969 F.3d 1173, 1178 (11th Cir. 2020). This one doesn‘t. Explaining why takes some doing.
First, we‘ll survey the excessive-force landscape. Second, we‘ll situate Crocker‘s claim within it. And finally, we‘ll explain why the district court‘s grant of summary judgment was right even though its analysis was wrong. Because we review a court‘s judgment rather than its explanation for that judgment, Jennings v. Stephens, 574 U.S. 271, 277 (2015), we will affirm.
a
Let‘s start with what‘s clear: There is no “generic ‘right’ to be free from excessive force.” Graham v. Connor, 490 U.S. 386, 393 (1989). That‘s because
conferred“). For purposes of claims under
The Fourth Amendment, already introduced, secures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”
With that background in mind, we turn to Crocker‘s claim.
b
The Supreme Court has long taught that “[i]n addressing an excessive force claim brought under
Not entirely clear. Crocker‘s filings before the district court could be read as raising either a Fourth Amendment claim, a Fourteenth Amendment claim, or perhaps both.12 But Crocker‘s counsel later clarified that his hot-car excessive-force claim relied solely on the Fourteenth Amendment. And in his opening brief to
But as you might suspect from Crocker‘s shape-shifting arguments, the Fourteenth Amendment doesn‘t offer a perfect fit for the facts here. As we said in Piazza, the Fourteenth Amendment has been interpreted to protect “pretrial detainees” from excessive force. See 923 F.3d at 952. And it‘s not obvious that Crocker was a pretrial detainee. The Supreme Court long ago described a pretrial detainee as a person who had received “a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.‘” Bell v. Wolfish, 441 U.S. 520, 536 (1979) (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)) (alterations in original). Because Crocker never made it to the probable-cause-determination stage, calling him a “pretrial detainee” is hard to square with Bell. Accordingly, it‘s not clear that the Fourteenth Amendment provides the appropriate framework for Crocker‘s excessive-force claim.
Bell‘s suggestion notwithstanding, we‘ve acknowledged that “the line is not always clear as to when an arrest ends and pretrial detainment begins.” Garrett v. Athens-Clarke Cnty., 378 F.3d 1274, 1279 n.11 (11th Cir. 2004). As a result, the line—for excessive-force purposes—between an arrestee and a pretrial detainee isn‘t always clear, either. See Hicks v. Moore, 422 F.3d 1246, 1254 n.7 (11th Cir. 2005) (“The precise point at which a seizure ends (for purposes of Fourth Amendment coverage) and at which pretrial detention begins (governed until a conviction by the Fourteenth Amendment) is not settled in this Circuit.“). And the definitional problem creates a follow-on analytical issue: For someone who could plausibly be characterized as either an arrestee or a pretrial detainee, it‘s hard to say whether the Fourth or Fourteenth Amendment should govern the analysis.13
The day may well come when we need to clarify the distinction.
Today, though, isn‘t that day. Whether framed in terms of the Fourth or Fourteenth Amendment, Crocker‘s claim fails.14
c
We will start with the Fourteenth Amendment analysis since that‘s the framework that Crocker has invoked before us. First, we‘ll articulate the governing standard—which the district court misapprehended and our dissenting colleague disputes—and then, having done so, we‘ll apply that standard to Crocker‘s case.
i
We recently laid out the proper Fourteenth Amendment excessive-force framework
Not anymore. In Kingsley v. Hendrickson, the Supreme Court held that for Fourteenth Amendment excessive-force claims “the relevant standard is objective not subjective.” 576 U.S. at 395. Underscoring the shift, the Court repeated itself: “[T]he appropriate standard for a pretrial detainee‘s excessive force claim is solely an objective one.” Id. at 397 (emphasis added); see also Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 70 (1st Cir. 2016) (“[T]he Supreme Court has held that the appropriate standard for a pretrial detainee‘s Fourteenth Amendment excessive force claim is simply objective reasonableness.“). So, as we said in Patel, our Fourteenth Amendment excessive-force analysis now tracks the Fourth Amendment‘s “objective-reasonableness” standard rather than the Eighth Amendment‘s “malicious-and-sadistic standard.” 969 F.3d at 1181-82; see also Piazza, 923 F.3d at 952 (reading Kingsley to require an objective-reasonableness inquiry akin to Fourth Amendment excessive-force analysis). Here, the district court erroneously applied the old malicious-and-sadistic standard and, on that basis, granted summary judgment on Crocker‘s excessive-force claim.
Before applying Kingsley‘s “objective not subjective” standard to the facts of Crocker‘s case, we must say a few words in response to our dissenting colleague‘s reading of that decision. On the dissent‘s view, both before and after Kingsley, a viable excessive-force claim can be based even on “objectively reasonable force” provided that the officer-defendant acted with a sufficiently sinister state of mind—what the dissent calls “an express intent to punish.” Dissenting Op. at 59. That, the dissent says, is because under Bell v. Wolfish, 441 U.S. 520 (1979), “pretrial detainees can establish a violation of their Fourteenth Amendment rights by showing that an official inflicted force with an express intent to punish.” Dissenting Op. at 62. And, the dissent maintains, Kingsley shouldn‘t be read to have done “away with this method of proving Fourteenth Amendment violations for excessive force claims when it said nothing about having done so.” Id. at 63. On that theory, both before and after Kingsley, “proof of express intent to punish is alone sufficient” to support an excessive-force claim. Id.
Several responses. First, while Kingsley certainly discusses Bell‘s subjective standard for punishment, we don‘t draw from that discussion the dissent‘s two-track treatment of excessive-force claims. Consider, for instance, how the Kingsley Court framed the case: “The question before us is whether, to prove an excessive force claim, a pretrial detainee must show that the officers were subjectively aware that their use of force was unreasonable, or only that the officers’ use of that force was objectively unreasonable.” 576 U.S. at 391-92 (second emphasis added). As the Court‘s phrasing indicates, proof of objectively unreasonable force has always been necessary to a pretrial detainee‘s excessive-force claim. See Piazza, 923 F.3d at 952 (“Historically, both prisoners and pretrial detainees needed to show not only that a jail official deliberately used excessive force, but also that the official did so maliciously or sadistically for the
Second, we don‘t think that the dissent‘s assertion that, as a general matter, unconstitutional “punishment” can be proven based on “an express intent to punish,” Dissenting Op. at 62, demonstrates, more particularly, that proof of objectively unreasonable force is unnecessary to an excessive-force claim. Here, we think it important to distinguish between and among punishment and its specific instantiations. We agree, of course, that the Constitution prohibits any “punishment” of pretrial detainees, see Kingsley, 576 U.S. at 400, including the “use of excessive force that amounts to punishment,” Graham, 490 U.S. at 395 n.10. But not all punishment involves excessive force. Indeed, neither Bell nor McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996)—the two cases on which the dissent principally relies—mention “excessive force” at all. Rather, both involved what we‘ve called “conditions-of-confinement” claims. See, e.g., Patel, 969 F.3d at 1182 n.6. And although the genus “punishment” contains several species, including both excessive-force and conditions-of-confinement claims, the standard by which one might discern the one won‘t necessarily reveal the other. We don‘t think, then, that an express intent to punish alone, coupled with an objectively reasonable use of force, can sustain an excessive-force claim.15
Third, it would be passing strange if, as the dissent seems to suggest, the excessiveness of an officer‘s use of force ultimately had nothing to do with the excessiveness of that force but, instead, hinged entirely on proof of an “express intent to punish.” Dissenting Op. at 63. Imagine, for instance, that an officer gently and carefully places a suspect in the back of a brand new and comfy, and temperate—police cruiser, and as he‘s doing so he growls, “I pray you hate every second of this, you lowlife scum—it‘s the punishment you deserve.” It‘s unfathomable to us that the suspect could make out a viable excessive-force claim on those facts. But that‘s precisely the upshot of the dissent‘s twin positions (1) that an excessive-force claim can be based even on “objectively reasonable force” and (2) that “proof of express intent to punish is alone sufficient” to support such a claim. Id. at 59, 63. That just can‘t be the law.
Finally, and in any event, even if one could make an objectively-reasonable-but-nonetheless-excessive-force claim, Crocker didn‘t make one here. In his opening brief to us, Crocker maintained that “[i]n Kingsley, the Court held that the only issue to be decided in a use of force case was whether the ‘use of that force was objectively unreasonable.‘” Br. of Appellant at 35 (quoting Kingsley, 576 U.S. at 392 (emphasis added)). In
ii
On, then, to this case. Although the district court erroneously invoked the malicious-and-sadistic standard, rather than Kingsley‘s “objective not subjective” standard, it landed on the right answer. As an initial matter, there was (under the proper framework) no constitutional violation. Moreover, and in any event, even if there had been, the law wasn‘t so clearly established that Beatty should have known better. We begin with the constitutional question.16
Officer Beatty‘s alleged conduct wasn‘t objectively unreasonable. The Supreme Court has given us six factors to consider in making a Fourteenth Amendment excessive-force determination, and although the Court cautioned that these factors aren‘t exhaustive or exclusive, they‘re sufficient here. See Kingsley, 576 U.S. at 397. In the course of applying the factors to Crocker‘s case, we‘ll compare and contrast Patel in an effort to more clearly demonstrate the objective-reasonableness standard‘s real-world operation.
Here are the Kingsley factors:
Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: [1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiff‘s injury; [3] any effort made by the officer to temper or to limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting.
Patel, 969 F.3d at 1182 (quoting Kingsley, 576 U.S. at 397) (alterations adopted).
First, we consider the need for force and the amount of force used. In weighing the amount of force used, we consider the severity of the conditions that Crocker endured and how long he endured them. Patel, 969 F.3d at 1183. Crocker alleges that it was 84° outside and that he was in the patrol car without AC for half an hour. In Patel, the temperature was about the same—85°—but the duration of detention was much longer—two hours. 969 F.3d at 1179 & 1183. So, the amount of force used in Patel was far greater.
Second, we consider the extent of Crocker‘s injury. We‘ve acknowledged that “resulting injuries can be an indicator, however imperfect, of the severity of the force that caused them.” Patel, 969 F.3d at 1184. Here, Crocker‘s lack of injury suggests that the force used was pretty minimal.17 That‘s yet another point of contrast with Patel, in which the plaintiff‘s two-hour stint in a hot transport van left him “unconscious, hyperventilating, and with mucus and saliva running from his nose and mouth,” and a doctor diagnosed him with “heat exhaustion, heat syncope, and panic attack.” Id. at 1189. Not so here. Crocker endured some discomfort, to be sure, but he suffered no significant injury and sought no medical attention following his arrest.
Third, we consider any effort made by Beatty to temper or limit the force used. Id. at 1184. Beatty returned to the car twice, and although he was rude in his initial exchange with Crocker, on his second trip back he turned the AC back on. In Patel, the officer left the detainee in the hot van for nearly an hour when he could have let him wait in an air-conditioned jail. Id. And he left the detainee alone for a sizable chunk of the two hours that he was in his van. Id. We recognize that Beatty could have done more, but in limiting the time that Crocker was alone and in eventually turning the AC back on, he did a good deal more than the officer in Patel.
As for whether Crocker posed a “security problem” or a “threat,” or “actively resist[ed]“—factors four, five, and six—it seems to us that the answer on all accounts is basically no—his vociferous opposition to his arrest notwithstanding.
So, where does all that leave us? Considering all the Kingsley factors, it seems most important there was very little “force” used and essentially no harm done. In the Fourteenth Amendment context—and the Fourth as well, for that matter—“[t]here is, of course, a de minimis level of imposition with which the Constitution is not concerned.” Bell, 441 U.S. at 539 n.21 (quotation marks omitted); see also Graham, 490 U.S. at 396 (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers, violates the Fourth Amendment.” (quotation marks and citation omitted)); Vinyard v. Wilson, 311 F.3d 1340, 1349 n.13 (11th Cir. 2002) (collecting cases “where force and injury were held to be de minimis and not excessive“). That de minimis principle reflects the reality that “[n]ot everything that stinks violates the Constitution.” Hillcrest Property, LLP v. Pasco Cnty., 915 F.3d 1292, 1303 (11th Cir. 2019) (Newsom, J., concurring) (cleaned up). And it‘s hard to imagine how we could find a constitutional violation here without making a federal case of just about every “hot car”
If we harbored any doubts about that conclusion—and we don‘t—we‘d still affirm the grant of summary judgment because the law on this point is not at all clearly established. Until recently, we‘d never even “directly confronted a ‘hot car’ case . . . .” Patel, 969 F.3d at 1182. Our one-time paucity of hot-car caselaw makes it tough for Crocker to win. Not even Patel—whose constitutional claim was much stronger—could overcome qualified immunity. See id. at 1184-88; cf. Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (“Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.” (quotation marks omitted)). And frankly, we can‘t see how Crocker‘s claim could succeed where Patel‘s failed.
Crocker says that the clearly established law here comes from our decision in Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008). We considered and rejected the analogy between Danley and hot-car cases in Patel, 969 F.3d at 1186-87, and we do so again today. In Danley, a prisoner was pepper-sprayed in a poorly- ventilated cell, and although officials allowed him a brief shower, that proved ineffective—Danley ultimately spent 12 or 13 hours stuck “in pepper-spray vapor in a poorly ventilated cell.” Patel, 969 F.3d at 1187. The use of force in Danley was “altogether different” from the force used in Patel. Id. So too here.
Like Patel before him, Crocker also points to Danley‘s citation of Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 2002). Burchett was another hot-car case, and there, the Sixth Circuit held that confining an arrestee “for three hours in ninety-degree heat with no ventilation violated his Fourth Amendment right against unreasonable seizures.” 310 F.3d at 945. To the extent Crocker contends that Danley‘s citation of Burchett made Burchett part of our caselaw, we reject that incorporation-by-citation argument just as we did in Patel. See 969 F.3d at 1187 (“[A] mere citation to an out-of-circuit decision—even with approval, and even with an accompanying factual precis—cannot clearly establish the law for qualified-immunity purposes.“).
* * *
Because Crocker‘s Fourteenth Amendment claim fails on the merits—and because the law underlying that claim wasn‘t clearly established, in any event—we hold that the district court correctly granted summary judgment for Deputy Beatty.
d
One final point for the sake of symmetry: We‘d reach the same result if we analyzed this claim under the Fourth Amendment. We have already observed that “the Fourteenth Amendment standard has come to resemble the test that governs excessive-force claims brought by arrestees under the Fourth Amendment.” Piazza, 923 F.3d at 953. And we‘ve said as much about the hot-car context. See Patel, 969 F.3d at 1184 n.7 (“Although many of these ‘hot car’ cases arose under the Fourth Amendment, the same basic standard applies post-Kingsley (as we have explained) to excessive-force claims brought under the Fourteenth Amendment.“).
III
To sum up: Because (1) the law on Crocker‘s First Amendment claim wasn‘t clearly established, (2) Beatty had probable cause to arrest Crocker, and (3) Beatty didn‘t use excessive force in the course of arresting Crocker (and the law underlying Crocker‘s excessive-force claim wasn‘t clearly established, in any event), Beatty was entitled to qualified immunity. The district court properly granted summary judgment to him on that basis.
AFFIRMED.
NEWSOM, Circuit Judge, concurring:
The main opinion finds it unnecessary to decide whether someone in Crocker‘s position—i.e., one who has been arrested but has not yet been taken before a magistrate for a probable-cause determination—is (1) an arrestee whose excessive-force claim should be analyzed under the Fourth Amendment or instead (2) a pretrial detainee whose excessive-force claim should be analyzed under the Fourteenth Amendment. See Maj. Op. at 22-24. I write separately to suggest two things: first, that this Court hasn‘t (to my mind) committed itself to any particular position on that issue, which has generated a circuit split; and second, that if another panel confronts this question, it should draw the line between arrestees and pretrial detainees in accordance with Bell v. Wolfish, 441 U.S. 520 (1979), such that the probable-cause determination is the divider.
I
A
First, how and why have our sister circuits split? In short, they‘ve divided over the question of where to locate the constitutional prohibition on excessive force as applied to someone in Crocker‘s position. As the main opinion explains, ”
There are at least two fixed points. First, we‘ve been told in no uncertain terms that ”all claims that law enforcement officials have used excessive force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Graham, 490 U.S. at 395. Second, we know that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Id. at 395 n.10 (citing Bell, 441 U.S. at 535-39). What, though, to do about someone who might no longer be subject to seizure but isn‘t yet a post-probable-cause-determination pretrial detainee? What constitutional protection against excessive force do people in that situation have?
One answer—offered by exactly zero courts, as best I can tell—is “None.” The Seventh Circuit, sketching the argument before rejecting it, put it this way: “[M]aybe the Constitution is not a seamless web, and contains gaps that courts are not authorized to fill either by stretching the Fourth Amendment or by invoking the nebulous and historically much-abused concept of substantive due process.” Wilkins v. May, 872 F.2d 190, 195 (7th Cir. 1989).1 The argument‘s premise—basically, that the Constitution neither provides every good thing nor prohibits every bad thing—is true enough. Even so, courts—including the Seventh Circuit—have uniformly rejected the possibility that officers’ conduct between an arrest and a probable-cause determination takes place in a constitutional no man‘s land.2
Broadly speaking, courts have done so in two ways. The first involves reading the word “seizure[]” in the
Punishment Clause provides the constitutional basis for excessive-force claims, making “[a]ny protection that ‘substantive due process’ affords . . . at best redundant of that provided by the
The contrary approach relies on the
If we‘re counting noses, it seems fair to say that most circuits to have answered this question have lined up behind the
First, Cottrell itself. That case concerned “the death of Leroy Bush Wilson from positional asphyxia as he was being transported in the back of a police car after his arrest.” 85 F.3d at 1483. Our court addressed two claims arising “out ofthe same facts.” Id. at 1485. One was a “custodial mistreatment claim,” id. at 1489, and it was indeed based on a supposed substantive-due-process right, id. at 1485. The second was a
Subsequent decisions from within this circuit support that conclusion. First, we have (at least once) read Cottrell for what it could tell us about the
To sum up: Other circuits disagree about whether claims like Crocker‘s—brought by an individual who has been arrested but hasn‘t yet received a judicial determination of probable cause—arise under the Fourth or
B
If and when that happens, I‘d recommend that we (1) draw the line between arrestees and pretrial detainees in accord with Bell v. Wolfish, 441 U.S. 520 (1979), and thus (2) analyze the excessive-force claims of all pre-probable-cause-determination arrestees under the
Although we‘ve said that “the line is not always clear as to when an arrest ends and pretrial detainment begins,” Garrett, 378 F.3d at 1279 n.11, I think that line can be clearly drawn—in many cases, anyway—at the probable-cause hearing.4 The Supreme Court has told us that a pretrial detainee is a person who has had “a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.‘” Bell, 441 U.S. at 536 (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)) (alterations in original). It has also told us that “the
Several other circuits have taken that general approach. In Estate of Booker v. Gomez, for instance, the Tenth Circuit clearly distinguished an arrestee from a pretrial detainee in explaining which amendments control which excessive-force claims. See 745 F.3d 405, 419 (10th Cir. 2014). The court there concluded that “the
One might object to this general approach on the ground that it necessarily embodies a “continuing seizure” theory, about which we (and others) have expressed “doubts,” Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004), and “questions,” Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir. 1996). See also Reed v. City of Chicago, 77 F.3d 1049, 1052 & n.3 (7th Cir. 1996). Our reticence is well-founded; the Supreme Court has said, after all, that “[a] seizure isa single act, and not a continuous fact.” California v. Hodari D., 499 U.S. 621, 625 (1991) (quoting Thompson v. Whitman, 85 U.S. 457, 471 (1873)); see also Torres v. Madrid, No. 19-292, 2021 WL 1132514, at *9 (U.S. Mar. 25, 2021) (similar). And that view finds support in the original public meaning of the
Even so, it seems to me that what transpires between the initial act of a warrantless arrest and the subsequent probable-cause determination may be considered a “seizure” without doing violence to the
[W]hen an arrest is made without a warrant, the arrestee, generally within 48 hours, must be brought before a judicial officer, who then completes the arrest process by making the same determination that would have been made as part of the warrant application process. Thus, this appearance is an integral part of the process of taking the arrestee into custody and easily falls within the meaning of the term ‘seizure.’
137 S. Ct. at 928 (Alito, J., dissenting) (emphasis added) (citations omitted). That makes perfect sense to me.
And happily, that understanding of “seizure” supports drawing a nice, bright line between the Fourth and
* * *
Our duty to follow the Constitution and the Supreme Court‘s decisions requires us to reject an in-there-somewhere approach to excessive-force claims brought under
As set forth in the majority opinion, James Crocker witnessed a fatal car accident and stood in the median of I-95 photographing the scene. Deputy Steven Beatty approached him, seized his phone, arrested him, and locked him in the back of a hot patrol car for almost a half hour. Mr. Crocker sued Deputy Beatty, alleging, as relevant here, unlawful seizure of his phone in violation of the
I agree with the majority that Deputy Beatty had probable cause to arrest Mr. Crocker for violating
I.
I will begin with Mr. Crocker‘s
In Smith, our Court addressed a claim from plaintiffs who said they were prevented from videotaping police activity in violation of their
The majority acknowledges that Smith announced a “broad statement of First Amendment principle,” but it says this principle does not obviously apply to the facts here. Maj. Op. at 9-11 (quotation marks omitted) (alteration adopted). More to the point, the majority says Smith‘s rule does not obviously apply to Mr. Crocker who was “spectating on the median of a major highway at the rapidly evolving scene of a fatal crash.” Id. at 10 (quotation marks omitted). According to the majority, because Smith “provided few details regarding the facts of the case” it cannot provide officers “fair warning’ under other
I read Smith differently. It is true that Smith does not detail the specific facts presented there. See Smith, 212 F.3d at 1332-33. But for me, the lack of factual detail does not do away with the right Smith announced. To the contrary, the broad pronouncement in Smith underscores the right‘s general applicability. Smith says there is “a First Amendment right . . . to photograph or videotape police conduct.” Id. at 1333. This statement is unambiguous and not couched in specifics that limit its application. Instead, the right is limited only by “reasonable time, manner and place restrictions.” Id. And the contours of the right announced in Smith do not require such precise definition. Unlike findings about the use ofexcessive force, for example, it is usually easy enough to know whether a plaintiff was recording police activity. Indeed, a number of district courts within this Circuit have relied on Smith to determine, in distinct factual contexts, that the right to record police activity is clearly established.1 I thus read Smith to clearly establish a general rule that the
Smith‘s general rule applies here. Taking the facts in the light most favorable to Mr. Crocker, he was photographing police conduct. When Deputy
Beatty seized his phone, Mr. Crocker was photographing the scene of a fatal car accident and the emergency response, including police activity, surrounding it. This record reveals no “reasonable time, manner and place restrictions,” limiting Mr. Crocker‘s speech here. See Smith, 212 F.3d at 1333. Permissible time, place, and manner restrictions are content-neutral restrictions on
The right to record police activity is important not only as a form of expression, but also as a practical check on police power. Recordings of police misconduct have played a vital role in the national conversation about criminal justice for decades. I read today‘s opinion to parse this critical right too narrowly. I would hold that Mr. Crocker‘s
II.
Now for Mr. Crocker‘s
A.
Before turning to the proper analysis under the
Judge Newsom is right in pointing out that this Court has not committed itself to either outcome. See id. at 42-44. And this is not the context in which to decide this question. The parties have treated and argued this case as a
That is not to say that in a future case where the question is fully briefed and argued I would necessarily hold that the
B.
The
insofar as I do not read Kingsley to do away with
involved was clearly established at the time of the
I will now discuss my reading of Kingsley. Then I will set out why, under Kingsley, Mr. Crocker has alleged facts that establish Deputy Beatty violated his constitutional right. Finally I will address whether that right was clearly established at the time of Mr. Crocker‘s arrest.
1.
In Kingsley, the Supreme Court considered whether, in order to prove an excessive force claim, a pretrial detainee must show that the official subjectively intended to violate the detainee‘s rights. 576 U.S. at 391-92, 135 S. Ct. at 2470. The Court concluded that the answer to that question is no: “the defendant‘s state of mind is not a matter that a plaintiff is required to prove.” Id. at 395, 135 S. Ct. at 2472. Instead, it is sufficient to prove that an officer inflicted objectively unreasonable force. Id. According to the majority opinion, Kingsley‘s holding that pretrial detainees can prove excessive force simply by establishing that an official used objectively unreasonable force means that proof of objectively unreasonable force is the only way pretrial detainees can prove excessive force in violation of the
Importantly, Kingsley did not wholly abrogate the existing landscape of
Kingsley clarified that Bell‘s objective standard does not involve subjective considerations. The Court explained, for example, that its holding was consistent with cases postdating Bell because those cases did not suggest that “application of Bell‘s objective standard should involve subjective considerations.” Id. at 399, 135 S. Ct. at 2474 (emphasis added). But the Court never said it was doing away with Bell‘s subjective standard, under which pretrial detainees can establish a violation of their
Indeed, Kingsley says nothing about redefining what constitutes punishment in the excessive force context. The
Based on my reading of Kingsley, I would ask whether the evidence in this case demonstrates that Deputy Beatty locked Mr. Crocker in the back of a hot car for nearly half an hour with the goal of punishing him.6
2.
And I see sufficient evidence here to create a dispute of fact about whether Deputy Beatty locked Mr. Crocker in the hot car with an express intent to punish him. In a sworn affidavit, Mr. Crocker stated that Deputy Beatty intentionally turned off the air conditioning in the car before leaving Crocker inside with the windows rolled up. The heat caused Mr. Crocker to experience anxiety, difficulty breathing, and profuse sweating. When Deputy Beatty briefly returned to the car,
Notably, there is a complete lack of evidence that Deputy Beatty acted with the goal of furthering any “permissible governmental objective.” Piazza v. Jefferson County, 923 F.3d 947, 952 (11th Cir. 2019). Mr. Crocker was subdued and handcuffed in the back seat of a police cruiser. Nothing in the record suggests that Deputy Beatty had any reason to turn off the air conditioning in his car other than to cause Mr. Crocker to suffer. This and the fact that Deputy Beatty ignored Mr. Crocker‘s pleas for fresh air and told him he was “not meant to be comfortable” further reinforce Crocker‘s claim that Beatty‘s only objective was to inflict punishment. This punishment was plainly prohibited in Bell, 441 U.S. at 538, 99 S. Ct. at 1873-74, and remains prohibited after Kingsley, 576 U.S. at 397-98, 135 S. Ct. at 2473. On this record, I believe the District Court erred by failing to find a dispute of fact about whether Deputy Beatty kept Mr. Crocker in a hot car with the express intent of punishing him, in violation of his
3.
Finally I address whether, at the time of Mr. Crocker‘s arrest, it was clearly established that Deputy Beatty‘s conduct violated the
Since Mr. Crocker has established a genuine issue of material fact about whether Deputy Beatty acted with express intent to punish, Beatty is not entitled to qualified immunity. We have held that ”Bell‘s prohibition on any pretrial punishment, defined to include conditions imposed with an intent to punish,” should make it “obvious to all reasonable officials” that the
I respectfully dissent.
Notes
The dissent also suggests that all this public-forums talk is beside the point because Smith held that there‘s a First Amendment “right to gather information about what public officials do on public property.” 212 F.3d at 1333 (emphasis added). Accordingly, on the dissent‘s view, Smith grants citizens the right to film police “in public,” full-stop. Dissenting Op. at 54 n.2. We don‘t think it‘s quite that simple. First, not all “public property” is “in public,” per se, and second, even public property that is decidedly in public doesn‘t, by virtue of that fact alone, become a free-speech-friendly zone. See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983) (“Publicly owned or operated property does not become a ‘public forum’ simply because members of the public are permitted to come and go at will.“); Hodge v. Talkin, 799 F.3d 1145, 1160 (D.C. Cir. 2015) (“[T]he Supreme Court plaza‘s status as a nonpublic forum is unaffected by the public‘s unrestricted access to the plaza at virtually any time.“). Those background principles, we think, counsel against reading Smith too aggressively, or, more relevantly, expecting every reasonable officer to do so. In Torres v. Madrid, the Supreme Court held that “the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.” No. 19-292, 2021 WL 1132514, at *10 (U.S. Mar. 25, 2021). That rule, the majority emphasized, was a “narrow” one. Id. at *7. So, although the Court explained that “the application of force completes an arrest even if the arrestee eludes custody,” id., it‘s not immediately apparent (to me, at least) whether and to what extent Torres impacts the circuit-splitting questions that I‘ve discussed here. At the very least, the extensive back and forth between the Torres majority and dissent concerning the original meaning of “seizures” shows that those looking for answers to these questions would do well to attend closely to text, history, and tradition. Compare id. at *3-*10, with id. at *10-*20 (Gorsuch, J., dissenting).