Smola v. Chronister

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

JOSHUA SMOLA,

Plaintiff,

v. CASE NO. 8:22-cv-2383-SDM-JSS

CHAD CHRONISTER and

JACK THOMPSON,

Defendants.

___________________________________/

ORDER

Alleging that during an arrest a Hillsborough County Sheriff’s deputy, Jack

Thompson, kicked Joshua Smola in the back while Smola was kneeling on the

ground with his hands raised, Smola asserts against Thompson, in his individual ca-

pacity, a Section 1983 claim and asserts against Hillsborough County Sheriff Chad

Chronister, in his official capacity, a battery claim under Florida tort law.1 Thomp-

son and Chronister move (Docs. 28 and 29) for summary judgment. Smola responds

(Doc. 32) to each motion, and Thompson and Chronister reply (Doc. 34).

BACKGROUND

In a stolen car and with a passenger who was wanted for a separate theft,

Smola drove to an unspecified location where his passenger intended to sell drugs.

1 This is the second action in which Smola sued Thompson based on the kick. In 2019,

Smola sued Thompson and the Hillsborough County Sheriff’s office and requested, among other

things, $2,000,000.00 and the dismissal of all Smola’s criminal charges. Smola v. Thompson, 8:19-cv-

1789-VMC-TGW (M.D. Fla.). A 2020 order dismisses the action because of Smola’s failure to pros-

ecute the action.

Because something “just seemed off,” Smola and his passenger aborted the drug

deal. Believing that he “picked up a tail,” Smola decided to drive to the house of

some friends. Smola was correct about the “tail.” Intending to arrest Smola’s pas-

senger, several Hillsborough County Sheriff’s deputies in unmarked cars followed

Smola.

When he arrived at his friends’ house, Smola backed the car into his friends’

yard, and both Smola and his passenger exited the vehicle.2 Despite his status as a

felon, Smola carried a gun between the small of his back and the waistline of his

pants and carried in his pockets a knife, twenty-one grams of methamphetamine,

more than a gram of heroin, and two Alprazolam pills. Several unmarked cars

stopped in front of the house, and several deputies wearing vests labeled “SHERIFF”

exited the cars and entered the yard to arrest Smola’s passenger. Seeing the cars ar-

rive in front of the house, Smola walked toward the rear of the car. Entering the

yard from the side opposite Smola and the car, Thompson began loudly command-

ing Smola to “put your hands up” and walked quickly across the yard toward both

Smola and the rear of the car. Rather than raise his hands, Smola, who saw the dep-

uties approaching, stepped behind the car. Smola pulled his gun from behind his

back and, bending down, tossed the gun under the car and near the right-rear tire.

2 A home-security camera recorded the events. In accord with Scott v. Harris, 550 U.S. 372,

381 (2007), the evidence and allegations about the events that occurred in the yard are “viewed . . .

in the light depicted by the video[].” The other facts and evidence are construed favorably to Smola.

Smola claims that the car obscured the deputies’ view of Smola’s tossing the gun un-

der the car.

Although the parties agree that Smola had a gun and that he pulled the gun

from behind his back, the parties dispute whether any of the deputies saw the gun be-

fore Smola threw the gun under the car. Smola contends that no deputy saw the gun

until the deputies placed both Smola and his passenger in handcuffs. Thompson

contends he could see Smola remove a gun from behind his back as Smola ducked

behind the car. The video shows that while he moved behind the car Smola removed

the gun from behind his back and that while behind the car Smola bent down and

tossed the gun under the car. However, the video cannot establish whether Thomp-

son or any other deputy could see the gun as Smola removed the gun from behind his

back and tossed the gun under the car (both actions are visible on the surveillance

video). The video is inconclusive as to what the deputies saw, and the allegations are

construed most favorably to Smola.

Seeing Smola step behind the car, Thompson hurried to the rear of the car. By

the time Thompson arrived at the rear of the car, Smola had tossed the gun under the

car and had begun to back away from the car and the deputies. Thompson shouted

at Smola to “get on the ground.” While backing away, Smola raised his hands.

Thompson neared, and Smola slowly kneeled on the ground. Thompson moved to

Smola’s side and kicked Smola across his lower back. Smola went to the ground.

While Thompson stood over Smola, another deputy handcuffed Smola. Less than

twenty seconds elapsed between the deputies’ arriving and the deputies’ handcuffing

Smola. After securing Smola and his passenger, the deputies searched Smola, the

passenger, and the car. The deputies found the drugs and the knife in Smola’s pocket

and found the gun on the ground under the rear of the car.

While Thompson apprehended Smola, another deputy, Julie Seale, arrested

Smola’s passenger. When the deputies entered the yard, the passenger stood next to

the passenger side of the car. Seale entered the yard and loudly commanded the pas-

senger to “lay on his stomach and put his hands out.” (Doc. 29-5 at 20) Seale re-

ports that, when she arrested the passenger, Seale was within twenty feet of Smola

who according to Seale likely heard Seale’s commands to the passenger. Smola de-

nies hearing any command from Seale.

According to Smola, he felt no immediate pain after the kick and after he was

handcuffed. The deputies photographed Smola’s back, but the photo reveals no visi-

ble injury. (Doc. 29-7 at 25) While handcuffed in the backseat of one of the deputy’s

cars, Smola reportedly began experiencing back pain. An x-ray revealed that Smola

had a broken rib and a laceration on his spleen. Smola received no treatment other

than “pain management” and rest, and Smola incurred no medical bills. Smola re-

ports a lingering numbness in two fingers, but no medical provider attributes the

numbness to the kick. (Doc. 29-1 at 112–14)

ANALYSIS

Smola asserts two claims, each based on Thompson’s kick. Smola asserts

against Thompson a claim under 42 U.S.C. § 1983 and alleges that Thompson’s kick

constitutes “excessive force” that violates the Fourth Amendment. Smola asserts

against Chronister a claim for battery under Florida tort law and alleges that Thomp-

son’s kick was “unreasonable and excessive under the circumstances.” Smola alleges

that Thompson “committed the [kick] . . . while acting within the course and scope

of his employment . . . .” Because he alleges that Thompson acted within the scope

of his employment, Smola, in accord with Section 768.28(9)(a), Florida Statutes, as-

serts the battery claim against Chronister, Thompson’s employer.

I. Excessive force claim against Thompson

Thompson enjoys qualified immunity from Smola’s claim under Section 1983

unless Smola establishes both (1) that Thompson violated a federal statutory or consti-

tutional right and (2) that the violated right “was ‘clearly established at the time.’”

D.C. v. Wesby, 583 U.S. 48, 62–63 (2018). Although a law-enforcement officer may

exercise “some degree of physical coercion or threat” to arrest a suspect, the Fourth

Amendment prohibits an arresting officer’s using “excessive force,” that is, “unrea-

sonable” force. Graham v. Connor, 490 U.S. 386, 394–96 (1989); Reese v. Herbert, 527

F.3d 1253, 1272 (11th Cir. 2008) (“[T]he typical arrest involves some force and in-

jury.”); Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).

The force used by an arresting officer is evaluated “from the perspective of a

reasonable officer on the scene,” and the evaluation must recognize that officers “are

often forced to make split-second judgments — in circumstances that are tense, un-

certain, and rapidly evolving — about the amount of force that is necessary in a par-

ticular situation.” Jackson v. Sauls, 206 F.3d 1156, 1170 (11th Cir. 2000) (quoting

Graham, 490 U.S. at 396–97). An arresting officer’s force is not “excessive” if the

force is “‘objectively reasonable’ in light of the facts and circumstances confronting”

the officer. Graham, 490 U.S. at 397. Informing the “reasonableness” of the arrest-

ing officer’s force are factors such as the severity of the crime, the threat posed by the

suspect, the suspect’s resisting arrest or otherwise attempting to flee, the need for the

force, the balance between the need for force and the amount of force used, and the

extent of the injury inflicted. Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347,

1353 (11th Cir. 2015); Graham, 490 U.S. at 396.

In Mobley, 783 F.3d at 1350–51, the suspect struck a police officer with a truck

and led officers on a chase that ended when the suspect waded into a retention pond.

When the suspect emerged from the pond, the waiting officers threw him to the

ground and repeatedly struck, kicked, and tased him until he placed his hands behind

his back. Mobley affirms a summary judgment for the arresting officers and states

that “force applied while the suspect has not given up and stopped resisting and may

still pose a danger to the arresting officers, even when that force is severe, is not nec-

essarily excessive.” Mobley suggests that the “point at which a suspect is handcuffed

and ‘pose[s] no risk of danger to the officer’ often is the pivotal point for excessive-

force claims.”3

3 Although an arresting officer’s using force after a suspect is handcuffed often militates in

favor of a conclusion that the officer used “excessive force,” force applied after handcuffing might

remain “reasonable” if the handcuffed suspect continues to struggle or resist. Charles v. Johnson, 18

F.4th 686, 691–93, 704 (11th Cir. 2021) (affirming summary judgment for an officer who tased a

handcuffed suspect and noting that the suspect “actively resisted” despite the handcuffs). In contrast,

if a non-handcuffed suspect complies with the arresting officer’s commands and presents no danger

to the arresting officer or others, the officer might apply “unreasonable” or “excessive” force despite

the suspect’s remaining free from handcuffs. Stephens v. DeGiovanni, 852 F.3d 1298 (11th Cir. 2017)

(denying summary judgment for an officer who repeatedly struck an unarmed and compliant suspect

even though the suspect remained free from handcuffs.

Partial or momentary compliance does not compel the conclusion that force is

excessive, especially if the arresting officer perceives the suspect as dangerous. In

Prevatt v. City of Gainesville, 657 Fed. Appx. 905 (11th Cir. 2016), several people called

911 and reported that a man with a gun was walking near an elementary school.

Two officers found the man, Prevatt, and ordered him to drop his gun. Prevatt

tossed his gun (an air rifle designed to shoot BBs) on the ground. The officers no-

ticed also that Prevatt carried two knives and ordered Prevatt to drop the knives.

Prevatt tossed the knives on the ground. The officers ordered Prevatt to raise his

hands in the air and to drop to the ground. Instead of complying with the order,

Prevatt turned and moved several steps away from the officers, who began to run to-

ward Prevatt. When the officers neared, Prevatt raised his hands, but “almost simul-

taneously” the officers tackled Prevatt, who fell face-first onto the sidewalk and sus-

tained “serious injuries.” Approximately eleven seconds elapsed from the time the

officers exited their vehicle to the time the officers tackled Prevatt. Although Prevatt

complied with some orders, although Prevatt raised his hands immediately before the

officers tackled Prevatt, and although Prevatt claimed that he intended to comply

with the order to drop to the ground, the officers reasonably perceived Prevatt’s mov-

ing away as non-compliance. Consequently, the force was “constitutionally reasona-

ble” and violated no “clearly established” law.4 Prevatt, 657 Fed. Appx. at 908–09.

4 Because Prevatt is an unpublished decision, Prevatt is not binding. However, Prevatt and

other unpublished decisions are persuasive authority, and Prevatt presents similar facts.

If, however, a suspect presents no danger to the arresting officer — and espe-

cially if a suspect is handcuffed or completely compliant — even a single strike might

constitute excessive force. In Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008), a

suspect, who was under the influence of cocaine, entered a supermarket and began

yelling and knocking items from the shelves. Two officers arrived at the supermarket

and ordered the suspect to freeze. The suspect immediately complied, and the offic-

ers handcuffed the suspect. While the officers led the suspect from the store, the sus-

pect began “asking for Jehovah’s protection.” Although the suspect was handcuffed

and was not resisting arrest, one of the officers punched the suspect in the stomach.

The punch constituted excessive force because the suspect “neither resisted arrest nor

posed a danger to [the officer] sufficient to warrant” the punch. Hadley, 526 F.3d

at 1330, 1334.

Even if a suspect is initially non-compliant and even if a suspect is not hand-

cuffed, an arresting officer’s force might constitute “excessive force” if the suspect is

compliant when the officer uses force and if the force used is unnecessary to effect

the arrest. In Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), an officer who was a

member of a drug task force entered the front yard of the suspect’s mother. The sus-

pect, who was sitting at a picnic table in the front yard, threateningly raised a base-

ball bat. The officer drew his gun and told the suspect to drop the bat. At first, the

suspect declined to drop the bat. But after the officer threatened to shoot, the suspect

dropped the bat and ran into the street. The suspect decided to return to his mother’s

house, but the suspect again met the officer. The suspect pretended to run, but the

suspect “docilely submitted to arrest” after the officer told the suspect to “get down.”

The officer placed a knee on the suspect’s lower back and pulled his arm behind his

back. “[W]ith a grunt and a blow,” the officer broke the suspect’s arm. Because the

suspect offered no resistance and because the officer’s breaking the suspect’s arm

constituted excessive force, Smith affirmed the denial of summary judgment for the

officer. 127 F.3d at 1420.

These decisions establish a guide to determine the “reasonableness” of an ar-

resting officer’s force. Force — even severe force — is “reasonable” to arrest some-

one who is actively resisting or who poses a danger to an officer. For example, each

suspect in Mobley and Prevatt fled, ignored commands, or otherwise actively resisted

arrest, and each suspect’s non-compliance with an order created the distinct impres-

sion of danger to the arresting officer. In contrast, force is “unreasonable” (1) if the

force is used on a completely compliant person, especially a person who presents no

danger to the arresting officer or who is handcuffed, or (2) if the force is unnecessary

to control a suspect or is unreasonably disproportionate to any non-compliance. For

example, the suspect in Hadley complied immediately with the officers’ instructions

and posed no danger to the officers. Although the suspect in Smith initially fled, the

officer used no force until the suspect submitted to arrest and laid on the ground.

Also, in Smith, the force that the officer used was not needed to arrest the suspect and

was disproportionate to the resistance at the time the officer used force.

In this action, the video offered by the parties depicts a tense twenty seconds

in which deputies rushed to secure both a suspect for whom the deputies had an

arrest warrant and an unknown associate (Smola), who stepped behind a car as the

deputies entered the yard. Smola states that he heard no commands other than “get

down” and that when he heard “get down” Smola immediately dropped to his knees.

(Doc. 29-1 at 73–75) But Smola acknowledges that while approaching Smola the

deputies were yelling at him. (Doc. 29-1 at 73) Thompson and other deputies at the

arrest state that when the deputies first entered the yard Thompson began shouting

commands, including “put your hands up,” and that Smola refused to comply.

(Doc. 29-2 at 31–32; Doc. 29-4 at 6–7; Doc. 29-5 at 12) The video includes no sound

but shows Smola move behind the car and bend down and away from the deputies’

line of sight. After stepping behind the vehicle and tossing the gun beneath the car,

Smola backs away from the deputies and kneels only after Thompson and another

deputy approach with their guns aimed at Smola. Smola’s stepping behind the car

creates an impression of his retreating from the deputies (or otherwise moving to

conceal something from the deputies), and Smola’s retreat shows that he failed to im-

mediately comply with the deputies’ command.

Smola argues that “even if Smola’s concealment of the firearm could be de-

scribed as momentarily non-compliant,” Smola was complying when Thompson

kicked Smola. But less than ten seconds elapsed between Smola’s tossing the gun

under the car and Thompson’s kicking Smola, and less than three seconds elapsed

between Smola’s kneeling on the ground and Thompson’s kicking Smola. Like in

Prevatt, Smola’s partial compliance immediately preceding Thompson’s use of force

does not compel the conclusion that Thompson’s kick was “excessive” and

“unreasonable.” Rather, Thompson used a kick to induce Smola to lie prone on the

ground, a position from which Smola could not grab a weapon and from which the

deputies could handcuff Smola.

Thompson’s inducing Smola to lie prone appears “objectively reasonable” un-

der the circumstances. While kneeling with his hands free, Smola could have

quickly reached his pocket or fled, but while prone Smola could not easily reach his

pocket or flee. Thompson’s kick is a “reasonable” means to induce Smola to lie

prone and to mitigate any threat presented by Smola while the deputies located any

weapon or illicit paraphernalia that Smola might have concealed while not in the

deputies’ field of view. Consistent with Graham, 490 U.S. at 396–97, this order de-

clines to second-guess from the “peace of a judge’s chambers” Thompson’s “split-

second” decision to use force in a “tense, uncertain, and rapidly evolving” situation.

Although the deputies entered the yard without the intent to arrest Smola and alt-

hough Smola sustained an injury, the balance of the factors identified in Mobley and

Graham militate decisively in favor of the conclusion that Thompson’s use of force

was “objectively reasonable” in the circumstances of Smola’s arrest.

In any event, the law is not “clearly established” that a deputy’s using a single

kick in circumstances in which the arresting deputy perceives a danger constitutes a

“constitutionally excessive” use of force. See Baker v. Clements, 760 Fed. Appx. 954,

958 (11th Cir. 2019) (citing Wesby, 583 U.S. at 62–64). Rather, Prevatt — a factually

similar decision involving a tense, rapid encounter with a suspect whom the arresting

officer perceived as non-compliant — affirms summary judgment for two officers

who tackled, and caused serious injury to, a suspect who immediately before the

tackle had begun to comply.

Smola cites several decisions denying qualified immunity to an arresting of-

ficer who used force that violated a “clearly established” right, but the decisions cited

by Smola, decisions similar to Hadley and Smith, support the conclusion that force is

“excessive” if the force is “gratuitous” and if the officer uses the force on “a suspect

who is under control, not resisting, and obeying commands.” Richmond v. Badia, 47

F.4th 1172, 1184 (11th Cir. 2022) (quoting Saunders v. Duke, 766 F.3d 1262, 1265

(11th Cir. 2014)); Ingram v. Kubik, 30 F.4th 1241, 1252 (11th Cir. 2022); Stryker v. City

of Homewood, 978 F.3d 769, 775 (11th Cir. 2020); Patel v. City of Madison, Alabama,

959 F.3d 1330, 1343 (11th Cir. 2020). Hadley, Smith, and the other decisions cited by

Smola are readily distinguishable from this action. Until Thompson approached,

Smola was slow to comply either with the initial command to raise his hands or with

the later command to drop to the ground, and when Thompson kicked him, Smola

was not “under control.” Smola was still upright and with his hands in the air rather

than prone and on his face with his hands behind his back (and with Smola’s gun still

not found and secured). Again, like in Prevatt, Smola’s partially complying by kneel-

ing and raising his hands seconds before the kick does not necessarily compel the

conclusion that the kick is “excessive.” Smola went to the ground with his hands be-

hind his back only after the kick, and Smola’s gun was located and secured only after

the kick.

Thompson’s kick, evaluated from “the perspective of a reasonable officer on

the scene,” neither constitutes “excessive force” under the Fourth Amendment nor

violates a “clearly established” right. Thompson enjoys qualified immunity from lia-

bility on Smola’s claim under Section 1983.

II. Battery claim against Chronister

A. Immunity

Chronister contends that he enjoys immunity from Smola’s battery claim and

that Smola must assert the claim against Thompson. A plaintiff asserting a Florida

tort claim cannot sue an “officer, employee, or agent of the state . . . unless [the] of-

ficer, employee, or agent acted in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or property.” Sec-

tion 768.28(9)(a), Florida Statutes, explains:

The exclusive remedy for injury or damage suffered as a result of

an act, event, or omission of an officer, employee, or agent of the

state or any of its subdivisions or constitutional officers is by ac-

tion against the governmental entity, or the head of such entity

in her or his official capacity, or the constitutional officer of

which the officer, employee, or agent is an employee, unless such

act or omission was committed in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard

of human rights, safety, or property.

In other words, Chronister, the sheriff, is liable for any tort, negligent or intentional,

by a deputy unless the deputy’s tort is “committed outside the course and scope of

[the deputy’s] employment or unless the [deputy] was acting in bad faith or with a

malicious purpose or in a manner exhibiting wanton and willful disregard of human

rights, safety, or property.” Richardson v. City of Pompano Beach, 511 So. 2d 1121,

1123 (Fla. 4th DCA 1987).

Alleging that Thompson was acting within the scope of his employment when

Thompson kicked Smola, Smola asserts the Florida battery claim against Chronister,

not Thompson. Chronister contends that, if Smola’s allegations are true, Thompson

had “no legal or justifiable reason” for the kick and that the kick “was unreasonable

and excessive under the circumstances.” Chronister concludes that Smola cannot as-

sert the battery claim against Chronister because “a reasonable trier of fact could find

[that Thompson’s use of force] was in bad faith, with malicious purpose, or in a man-

ner exhibiting wanton and willful disregard of human rights, or safety.” (Doc. 28

at 20)

But an allegation that a use of force was “unreasonable” is not equivalent to

an allegation that a use of force was “committed in bad faith,” committed with “ma-

licious purpose,” or committed in “a manner exhibiting wanton and willful disregard

of human rights, safety, or property.” Gualtieri v. Bogle, 343 So. 3d 1267, 1274 (Fla.

2d DCA 2022). A deputy can improperly exercise the deputy’s authority without

acting “in bad faith or with malicious purpose or in a manner exhibiting wanton and

willful disregard of human rights, safety, or property.” McGhee v. Volusia County, 679

So. 2d 729, 731–32 (Fla. 1996). A deputy “clearly ha[s] the lawful authority to re-

strain arrestees, detain them, or even respond with force in appropriate situations.”

McGhee, 679 So. 2d at 733. Indeed, Smola admittedly declines to allege that Thomp-

son “acted in bad faith, with malice, or in willful or wanton disregard of Smola’s

human rights[.]” (Doc. 32 at 21) And Smola expressly asserts his claim against

Chronister, not Thompson.5 See McGhee, 679 So. 2d at 733 (“In any given situation

either the agency can be held liable under Florida law, or the employee, but not

both.”); Richardson, 511 So. 2d at 1124.

B. Florida Battery Standard

A person commits battery if the person intentionally “inflict[s] [] a harmful or

offensive contact upon another.” Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. 5th

DCA 1997). But “a presumption of good faith attaches to an officer’s use of force in

making a lawful arrest[,] and an officer is liable for damages only where the force

used is clearly excessive.” City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d

DCA 1996). A battery claim against an arresting officer is analyzed by determining

“whether the amount of force used was reasonable under the circumstances.” Sand-

ers, 672 So. 2d at 47. Under Section 776.05, Florida Statutes, an officer may use

“any force . . . [w]hich [the officer] reasonably believes to be necessary to defend [the

officer] or another from bodily harm while making the arrest[.]”

The parties contend that the standard for what force is “clearly excessive” un-

der Florida battery law is “virtually identical” to the “excessive force” standard used

5 If Smola asserted the battery claim against Thompson instead of Chronister, the question of

whether a deputy acted “in bad faith or with malicious purpose or in a manner exhibiting wanton

and willful disregard of human rights, safety, or property” requires a “fact-specific” evaluation and

consequently is often better resolved at trial. Butler v. Gualtieri, 41 F.4th 1329, 1337 (11th Cir. 2022)

(citing Peterson v. Pollack, 290 So. 3d 102 (Fla. 4th DCA 2020) and citing Thompson v. Douds, 852 So.

2d 299 (Fla. 2d DCA 2003)). An allegation that a deputy used excessive force to arrest a suspect

“[a]t a mimum . . . present[s] a factual question as to whether [the deputy] acted in bad faith, with

malicious purpose, or in a willful and wanton manner that should be decided as the case moves for-

ward.” Gualtieri, 343 So. 3d at 1274.

to evaluate a Fourth Amendment claim, such as Smola’s Section 1983 claim. But

the parties identify no binding decision holding that the standards are equivalent.

Some non-binding decisions from district courts in the Eleventh Circuit hold that, be-

cause “the right under the Florida Constitution to be free from unreasonable searches

and seizures is construed in lockstep with the Fourth Amendment to the U.S. Consti-

tution, the ‘excessive force’ analysis for a battery claim is identical to the ‘excessive

force’ analysis under the Fourth Amendment.” Noel v. Arias, 460 F. Supp. 3d 1318,

1331 (S.D. Fla. 2020) (quoting Cordoves v. Miami-Dade Cnty., 92 F. Supp. 3d 1221,

1238 (S.D. Fla. 2015)); Baxter v. Hendren, 2023 WL 3990215 (M.D. Fla. 2023), appeal

pending, No. 23-11902 (11th Cir.).

These decisions cite no controlling decision from any Florida state court and

instead rely on Sullivan v. City of Pembroke Pines, 161 Fed. Appx. 906 (11th Cir. 2006),

an unpublished and non-binding decision. In Sullivan, an officer arrested a woman

by grabbing her arm and forcing her to the ground. The woman asserted against the

arresting officer a Section 1983 claim and asserted against the city a battery claim un-

der Florida tort law. Sullivan determined that the officer enjoyed qualified immunity

from the Section 1983 claim because the woman failed to establish that the officer

used “excessive force.” Evaluating the battery claim, Sullivan held that Florida’s

“clearly excessive” standard for a battery claim against an arresting officer is “simi-

lar” to the “excessive force” standard used to evaluate a Section 1983 claim. Be-

cause of the “similar standard,” Sullivan determined that the force used by the officer

“was not clearly excessive . . . under Florida law.”

Sullivan and the decisions that rely on Sullivan are not persuasive.6 Sullivan

lacks any discussion — and cites no decision — explaining why the use of a “similar

standard” in Florida tort law and in federal constitutional law compels the same re-

sult when evaluating a claim under each. A tort claim and a constitutional claim are

evaluated under different law. A federal court evaluating a state-law claim must ap-

ply the substantive law of the state in which that court is located. Hanna v. Plumer,

380 U.S. 460, 465 (1965) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)); Palm

Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1259 (11th Cir.

2015). Accordingly, Florida tort law governs a battery claim “heard on the basis of

supplemental jurisdiction.” Jones v. United Space All., L.L.C., 494 F.3d 1306, 1309

(11th Cir. 2007). In contrast, a court evaluating a federal constitutional claim applies

federal law interpreted by the Supreme Court.7 Although Article I, Section 12, of the

Florida Constitution directs that the right under the Florida Constitution protecting

each person from unreasonable searches and seizures is “construed in conformity

with the [Fourth] Amendment to the United States Constitution, as interpreted by

the United States Supreme Court[,]” a claim for battery under state tort law is dis-

tinct from either a federal or state constitutional claim for an unreasonable seizure,

6 McNamara v. Government Employees Insurance Company, 30 F.4th 1055, 1061 (11th Cir. 2022),

explains that unpublished decisions by the Eleventh Circuit are not binding and that a district court

should determine whether an unpublished decision is persuasive before relying on the unpublished

decision.

7 District courts within the Eleventh Circuit are bound both by decisions of the Supreme

Court and by published decisions of the Eleventh Circuit. Fishman & Tobin, Inc. v. Tropical Shipping &

Const. Co., 240 F.3d 956, 965 n.14 (11th Cir. 2001); Motorcity of Jacksonville, Ltd. v. Se. Bank N.A., 120

F.3d 1140, 1143 (11th Cir. 1997).

and the standard for a battery claim is not necessarily identical to the standard for a

constitutional excessive force claim. See Gomez v. Lozano, 839 F. Supp. 2d 1309, 1323

(S.D. Fla. 2012) (explaining that the parties wrongly assumed that the same exces-

sive force standard applied to both a claim for battery under Florida law and a Sec-

tion 1983 claim). A Section 1983 claim, such as Smola’s claim against Thompson, is

“a species of tort liability.” Heck v. Humphrey, 512 U.S. 477, 483 (1994). But species

within the same genus often bear striking differences.

For example, an arresting officer might enjoy qualified immunity from a Sec-

tion 1983 claim but not from a claim under state tort law. See Pearson v. Callahan, 555

U.S. 223, 231 (2009). Thompson enjoys qualified immunity from liability on

Smola’s Section 1983 claim. Whether an arresting officer enjoys qualified immunity

“is generally a question of law for the court rather than a question of fact for a jury.”

Thompson v. Douds, 852 So. 2d 299, 304 (Fla. 2d DCA 2003). But Smola asserts his

battery claim under Florida law and against Chronister, not Thompson. Because he

is sued in his official capacity, Chronister enjoys no qualified immunity. Heggs v.

Grant, 73 F.3d 317, 319 n.5 (11th Cir. 1996). Further, “[f]ederal qualified immunity

does not apply to state-law claims,” such as Smola’s battery claim under Florida law.

Tuttle v. Sepolio, 68 F.4th 969, 976 (5th Cir. 2023); Riebsame v. Prince, 267 F. Supp. 2d

1225, 1231 (M.D. Fla. 2003), aff’d, 91 Fed. Appx. 656 (11th Cir. 2004). Unlike the

application of qualified immunity, which is generally a question of law, whether an

officer’s use of force was “reasonably necessary” under Florida law “is an issue of

fact for the jury to determine.” Ansley v. Heinrich, 925 F.2d 1339, 1343 (11th

Cir. 1991) (citing City of Winter Haven v. Allen, 541 So. 2d 128, 136 (Fla. 2d

D.C.A. 1989)); Gomez, 839 F. Supp. 2d at 1323 (citing Dixon v. State, 132 So. 684,

688 (Fla. 1931)).

Because of the differences between a federal constitutional claim and a Florida

tort claim, the use of a “similar standard” in each might not compel the same result.

But the standard used to resolve a question of Florida tort law is better decided by a

Florida court, not a federal court. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296

(11th Cir. 2018) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726

(1966)), counsels that “[w]hen [each] federal claim[] [is] dismissed before trial, a dis-

trict court should typically dismiss [any] pendant state claim[] as well.” Dismissal of

Smola’s battery claim is warranted. A Florida court is better situated to determine

whether a constitutional claim and a Florida battery claim share the same standard

and whether a determination that force is not “clearly excessive” under a constitu-

tional claim compels the determination that force is not “clearly excessive” under a

Florida battery claim against an arresting officer. Silas v. Sheriff of Broward Cnty., Fla.,

55 F.4th 863 (11th Cir. 2022) (“[C]oncerns of federalism — namely, of federal courts

of limited jurisdiction weighing in on state law — counsel in favor of dismissing

state-law claims after the federal claims are dismissed.).

CONCLUSION

For these reasons and others stated by Thompson, Thompson’s motion

(Doc. 29) for summary judgment is GRANTED, and Chronister’s motion (Doc. 28)

for summary judgment is DENIED. That is, summary judgment is granted as to

Smola’s Section 1983 claim against Thompson but denied as to Smola’s Florida bat-

tery claim against Chronister. The clerk must enter a judgment for Jack Thompson

and against Joshua Smola as to Count II. Because Smola’s only remaining claim is a

battery claim under Florida law, the Florida battery claim is DISMISSED WITH-

OUT PREJUDICE in accord with 28 U.S.C. § 1367. This order declines supple-

mental jurisdiction over the remaining battery claim under Florida law, but the claim

is dismissed without prejudice to Smola’s right to assert the claim in a Florida court.

Each pending motion is DENIED AS MOOT. The clerk must terminate each pend-

ing motion and must close the case.

ORDERED in Tampa, Florida, on March 8, 2024.

STEVEND.MERRYDAY __

UNITED STATES DISTRICT JUDGE

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