OMAR T. ALSTON v. MARK SWARBRICK, Deputy, Marion County Sheriff‘s Office, in official and individual capacities, DANIEL TRAMMEL, Deputy, Marion County Sheriff‘s Office, in official and individual capacities, SHERIFF OF MARION COUNTY, FLORIDA, et al.
No. 18-10791
United States Court of Appeals for the Eleventh Circuit
March 26, 2020
D.C. Docket No. 5:14-cv-00485-WTH-PRL
(March 26, 2020)
Before WILSON and GRANT, Circuit Judges, and MARTINEZ,* District Judge.
WILSON, Circuit Judge:
Omar Alston appeals the district court‘s grant of summary judgment in favor of Officer Mark Swarbrick, Officer Daniel Trammel, and the Marion County Sheriff in his
I. Background
Alston asserted the following facts at summary judgment. In June 2011, Officers Swarbrick and Trammel of the Marion County Sheriff‘s Department were called to investigate a domestic dispute. A minor in Alston‘s custody, Q.D.B., had gone to a neighbor‘s house to ask for a knife to kill Alston. After Q.D.B. was handcuffed and placed in Trammel‘s vehicle, Trammel stood with Q.D.B.‘s mother, Temekia Morris; Morris‘s other minor son, L.D.B.; and a crowd of onlookers as Swarbrick approached Alston and began aggressively questioning him about what happened. Alston acknowledged Swarbrick by saying “Good morning,” but ignored his questions. Swarbrick repeatedly asked Alston what happened, but Alston continued responding only, “Good morning.” Unwilling to talk to Swarbrick about what happened, Alston finally turned around and stated “[f***] you I don‘t have to answer anything” while walking away from Swarbrick. Swarbrick ran after Alston, slammed him into the street from behind, and arrested him for disorderly conduct under
While handcuffed with his hands behind his back in the patrol car, Alston retrieved his cell phone and called his aunt to tell her what was happening. Seeing Alston‘s movements inside the vehicle, Trammel approached Alston and took his cell phone. Swarbrick then forcefully removed Alston from the vehicle to search him, pulling down his pants and revealing his genitalia in the process. Swarbrick took an additional cell phone and a set of car keys from Alston and threw him back inside the vehicle. Morris then approached Swarbrick to request that he give her the keys and phones he obtained; Swarbrick made her beg for the items before returning them to her.
This led to a heated verbal exchange between Swarbrick, who was sitting in the driver‘s seat, and Alston, who was still in the backseat with his hands handcuffed behind him. Enraged, Swarbrick jumped out of the vehicle, reached inside, and tried to pull Alston out by jerking him by his arm. Alston repeatedly screamed in pain and yelled that his foot was stuck under the seat. Swarbrick continued jerking harder and then grabbed his pepper spray and sprayed Alston repeatedly in the face. Trammel came over and freed Alston‘s foot from the other side of the car, thus allowing Swarbrick to pull Alston out of the vehicle. Swarbrick continued to pepper spray Alston‘s face for three to five minutes while
Swarbrick‘s and Trammel‘s versions of the facts differed in several aspects from Alston‘s. First, their affidavits stated that Alston‘s behavior when Swarbrick first approached him incited Morris and L.D.B. to run over to Swarbrick, requiring Trammel to run over to provide security for Swarbrick. Second, neither of their versions of the facts included Alston‘s first removal from the car following a phone call to his aunt. In fact, they contested Alston ever making such a phone call. Third, the officers claimed that Alston moved his cuffed hands from behind his back to the front, and that Swarbrick removed Alston from the patrol car so he could reposition Alston‘s handcuffs because permitting Alston to keep his hands in front could pose a safety risk. Additionally, Swarbrick claimed that Alston was threatening to urinate on him during their verbal exchange in the car, and that after Alston moved his hands to the front, he started to unbuckle and pull down his pants to make good on the threat.
II. Qualified Immunity
We review a district court‘s rulings on a motion for summary judgment de novo. See Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004). “We view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Id. at 1226.
When determining whether a defendant is entitled to qualified immunity, we resolve any issues of material fact in favor of the plaintiff. Stephens v. DeGiovanni, 852 F.3d 1298, 1313 (11th Cir. 2017). Police officers acting in their discretionary authority are entitled to qualified immunity from suit unless a plaintiff can establish that (1) the officer violated a constitutional right, and (2) the right violated was clearly established. Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010).
A. Disorderly Conduct
Alston argues that Swarbrick lacked probable cause to arrest him for disorderly conduct, and was therefore not entitled to qualified immunity, because his words did not incite onlookers to breach the peace. He claims that the district
Here, the district court improperly accepted the officers’ version of the facts and drew inferences in their favor. The officers attested that Alston‘s obscenities incited Morris and L.D.B. to run toward Swarbrick, which in turn caused Trammel to run over to provide security to Swarbrick. However, in his affidavit and Third Amended Complaint, Alston states that Trammel, Morris, and L.D.B. stood back
The court also erred by concluding that Alston‘s version of events, if true, would establish probable cause for his arrest. According to Alston, Swarbrick arrested him based merely on him refusing to answer questions and spouting obscenities while walking away. But by 2011, it was clearly established that words alone cannot support probable cause for disorderly conduct—including profanity regarding police officers. See, e.g., Davis, 451 F.3d at 766; Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir. 1997). Under those facts, no reasonable officer in Swarbrick‘s position could have believed there was probable cause to arrest Alston under the Florida disorderly conduct statute. Therefore, the district court improperly concluded that Swarbrick was entitled to qualified immunity on that basis.
B. Resisting an Officer Without Violence
Officer Swarbrick also argues that he had probable cause to arrest Alston for resisting an officer without violence, claiming that Alston impeded his lawful investigation of the incident involving Q.D.B. A conviction for resisting an officer without violence under
We conclude that, under Alston‘s version of the facts, Swarbrick did not possess arguable probable cause for arresting Alston under the resisting without violence statute. At the time of the arrest it was clearly established that, as with the disorderly conduct statute, “mere words” would not suffice to provide probable cause for resisting without violence. See Davis, 451 F.3d at 766. And under Alston‘s version of the facts, he did not physically obstruct Swarbrick‘s path or otherwise prevent him from conducting his investigation as to Q.D.B. See Id. at 765. Alston merely declined to cooperate or provide useful information. His failure to answer Officer Swarbrick‘s questions—and even his profanity-laced response—were not even arguably sufficient to support probable cause under
Alston then argues that because Swarbrick lacked arguable probable cause to arrest him in the first place, any amount of force was excessive under the Fourth Amendment. He also argues that the district court based its determination that Swarbrick used a reasonable amount of force on its erroneous finding that Alston repositioned his handcuffs.
“The Fourth Amendment‘s freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002). “[E]ven de minimis force will violate the Fourth Amendment if the officer is not entitled to arrest or detain the suspect.” Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008). However, under “this Circuit‘s law[,] a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim.” Bashir v. Rockdale County, 445 F.3d 1323, 1331 (11th Cir. 2006) (citation omitted). We therefore disagree with Alston that he may support an excessive force claim on the theory that any force is excessive if the underlying arrest was illegitimate.
Even after that rule is applied, however, the entirety of Alston‘s excessive force claim is not subsumed into his false arrest claim. In particular, Officer Swarbrick‘s alleged three to five minutes of pepper spraying may qualify as a
We note at the outset that the district court made an improper credibility determination when it concluded that Alston could not have made his alleged phone call without moving his hands from behind his back to in front of his body. Its reliance on United States v. Calderon was misplaced because that case said that testimony is incredible as a matter of law only if the stated facts “could not have occurred under the laws of nature.” See 127 F.3d 1314, 1325 (11th Cir. 1997). That is not the case here, as it is not inconceivable that Alston could have made a phone call with his hands behind his back, and a jury could reasonably conclude
But Alston‘s allegations go further. Alston alleges a three-to-five minute period during which Officer Swarbrick continuously used pepper spray on his face while he lay on the ground helplessly. Under this Circuit‘s caselaw, such a prolonged use of pepper spray on a non-resisting and handcuffed detainee would violate the detainee‘s clearly established Fourth Amendment rights. See Vinyard v.
IV. Failure to Intervene
Alston challenges the district court‘s grant of summary judgment on his claim that Trammel failed to intervene when Swarbrick pulled him from the patrol car and used excessive force. “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 liable for failing to intervene, so long as he “was in a position to intervene yet failed to do so.” Hadley v. Gutierrez, 526 F.3d 1324, 1330-31 (11th Cir. 2008) (alteration accepted).
In his summary judgment affidavit, Alston claimed that Trammel stood off with Alston‘s family and the other onlookers while Swarbrick used excessive force against him. However, he also claimed that, at some point while Swarbrick was jerking him out of the patrol car, Trammel opened the driver‘s side back passenger door and freed his foot that was stuck. And, in his Third Amended Complaint, he
V. Sheriff‘s Liability
Alston‘s final argument is that the district court improperly granted summary judgment on his claim against the Sheriff because the officers were liable for several constitutional violations and he showed that the Sheriff failed to train the officers and created a policy or custom of excessive force.
For a supervisor to be liable under
Accordingly, we reverse and remand to the district court on Alston‘s claims of false arrest and excessive force as to the alleged period of pepper spraying, and otherwise affirm the district court.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.