Jean-Baptiste v. Jones

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 18-80740-CIV-ALTMAN/Brannon

RENETTE JEAN-BAPTISTE on behalf of

KEVENS JEAN-BAPTISTE,

Plaintiff,

v.

GERMAINE JONES and

CITY OF BOYNTON BEACH,

Defendants.

____________________________________/

ORDER

THIS MATTER comes before the Court on the Defendants’ Joint Motion for Summary

Judgment (the “Motion”) [ECF No. 104].1 On July 8, 2019, the Plaintiff filed both his Response

in Opposition (the “Response”) [ECF No. 108] and his Statement of Disputed Facts (the “Pl.’s

SOF”) [ECF No. 107]. The matter ripened on July 15, 2019, when the Defendants filed their Reply

(the “Reply”) [ECF No. 109].

THE FACTS

In 2014, Kevens Jean-Baptiste was a thirteen-year-old boy attending Congress Middle

School in Boynton Beach, Florida. See Pl.’s SOF Ex. 2 at 37–40. He stood less than five feet tall

and weighed just over seventy pounds. See Pl.’s SOF ¶ 55. On the morning of May 8, 2014, he

boarded the bus to school. See Defs.’ SOF ¶ 1. On that bus ride, some of the students began

throwing eggs towards the front of the bus. See id. ¶ 2. Most of these eggs landed around the driver

1 The Defendants also filed a Statement of Undisputed Facts (the “Defs.’ SOF”) [ECF No. 105].

of the bus, Jacquy Prime, and splattered against the windshield, blocking the driver’s view of the

road. See id. ¶¶ 2, 8, 16–18. In response to the ruckus, Mr. Prime pulled the bus over and called

the police. See id. ¶ 2.

The first officers to arrive were Cynthia Rivera and Jason Viscome. See id. ¶ 5. Next came

Officers Jermaine Jones and Fabrice Jeanniton. See id. When the officers asked the driver to

identify who had thrown the eggs, Mr. Prime pointed to two students: Damon Scruggs and the

Plaintiff. See id. ¶ 7. Officer Rivera recognized the Plaintiff from a past encounter. See id. ¶¶ 9,

22.

In consultation with Prime, the officers decided to remove the Plaintiff and Scruggs from

the bus. See id. ¶¶ 15, 21; Pl.’s SOF ¶ 21. Once this decision was made, Officer Rivera first

removed Scruggs from the bus without incident. See Defs’ SOF ¶ 24. The officers—Rivera and

Jones—then got back onto the bus and instructed the Plaintiff to come to the front. See id. ¶ 26. At

some point while he was still on the bus, the Plaintiff was handcuffed. See generally Videos; see

also Pl.’s SOF ¶ 21. Because the aisle of the bus was not wide enough for two people to stand side-

by-side within it, the Plaintiff “grazed” Officer Jones as he passed him. See Pl.’s SOF ¶ 32. The

Defendants refer to this contact as a “chest bump.” See Defs. SOF ¶ 32.2 Responding to this

“graze,” Officer Jones lifted the Plaintiff off the ground from behind by wrapping his right arm

around the Plaintiff’s shoulder area and pulling him up. See Defs.’ SOF ¶¶ 35–38. While the

Defendants refer to this maneuver as a “bear hug,” see generally Mot., the Plaintiff calls it a

“chokehold.” See generally Resp.3 Either way, Officer Jones removed the Plaintiff from the bus

2 “Yeah. He did touch him. Chest-butt [sic] means like his touch. Well, basically Officer Jones in

the stomach area.” Rivera Dep. [ECF No. 105-2] 55:22–24.

3 See also Jean-Baptiste Dep. [ECF No. 105-1] 34:1–6 (“I was small, I was a little kid, I was like

50, 60 pounds. He used his advantage. He grabbed me, turned me, squeezed me, lifting me up,

and sat him next to Scruggs on the grass beside the road. See Defs.’ SOF ¶¶ 39, 44; see also Notice

of Conventional Filing (the “Videos”) [ECF No. 77].4

With both Scruggs and the Plaintiff seated on the grass, Officer Jeanniton walked up to the

Plaintiff, grabbed him by the shoulders, and physically lifted him into a standing position. See

Defs.’ SOF ¶¶ 44–45; see also Videos. At this, the Plaintiff began cursing at the officers. See

Defs.’ SOF ¶¶ 46–47; Pl.’s SOF ¶ 28. Now standing and handcuffed, the Plaintiff, while talking

with Officer Jeanniton, leaned his four-foot-eleven, seventy-pound frame forward and made some

light contact with Officer Jeanniton’s torso. See id. ¶ 53; see also Videos. Officer Jones, who saw

this contact, then walked over to the Plaintiff and performed what the Defendants now refer to as

a “leg sweep.” See id. ¶ 55. Essentially, Officer Jones kicked the Plaintiff violently in the back of

the legs, causing him to fall backwards.5 See id. ¶ 57; see generally Videos. After the “leg sweep,”

Officer Jeanniton took the Plaintiff to school. See Defs.’ SOF ¶ 60. The Plaintiff complained of

lower back pain following the incident, see id. ¶ 70, and has been treated for back pain since, see

Pl.’s SOF ¶ 63.

THE LAW

Summary judgment is appropriate where there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); FED. R. CIV. P. 56(a). In determining whether to grant summary judgment, the

Court must consider “particular parts of materials in the record, including depositions, documents,

down the aisle, choking me and putting me down in the bus. He basically roughed me, he lifted me

up by my neck . . . .” (emphasis added)).

4 As used in this Order, the term “Videos” refers to seven cell-phone video clips the Plaintiff has

filed conventionally. Because the Videos, for the most part, depict the same incident, the Court

sees no need to identify them individually.

5 Officer Jones says that he did not intend for the Plaintiff to fall. See id.

electronically stored information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other materials.” FED. R. CIV.

P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). An issue of fact is “material” if

it might affect the outcome of the case under the governing law. Id. at 248. A dispute about a

material fact is “genuine” if the evidence could lead a reasonable jury to find for the non-moving

party. Id.

At summary judgment, the moving party has the burden of proving the absence of a genuine

issue of material fact, and all factual inferences are drawn in favor of the non-moving party. See

e.g., Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). Once the moving party satisfies

its initial burden, the burden shifts to the non-moving party to come forward with evidence that a

genuine issue of material fact precludes summary judgment. See Bailey v. Allgas, Inc., 284 F.3d

1237, 1243 (11th Cir. 2002); FED. R. CIV. P. 56(e). “If reasonable minds could differ on the

inferences arising from undisputed facts, then a court should deny summary judgment.” Miranda

v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992). Notably, assessments

of credibility—no less than the weighing of evidence—are jury questions not susceptible of

disposition at summary judgment. Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir.

2012). The Court must analyze the record as a whole—and not just the evidence the parties have

singled out for consideration. See Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1570 (11th

Cir. 1987). If there are any genuine issues of material fact, the Court must deny summary judgment

and proceed to trial. Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-CV-22481, 2013 WL

5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991

(5th Cir. 1981)).

ANALYSIS

The Plaintiff levies two claims against the Defendants. See Complaint [ECF No. 1-4] at 4–

7. In Count I, he alleges a state-law battery against the City of Boynton Beach. See id. at 5–7. In

Count II, he charges Officer Jones with excessive force, in violation of 28 U.S.C. § 1983. See id.

at 4–5. The Defendants move for summary judgment on both counts. See generally Mot. For ease

of analysis, the Court will address the Motion as to each count in reverse order.

I. Excessive Force against Officer Jones

The Defendants argue that Officer Jones’ actions were constitutional for three reasons. See

generally Mot. First, they say that Officer Jones’ use of a “bear hug” was proportionately tailored

to the danger the Plaintiff presented. See id. at 9–11. Second, they suggest that the amount of force

Officer Jones deployed in executing the “leg sweep” was, all things considered, “reasonable.” See

id. at 11–12. Third, they contend that the Plaintiff’s injuries were (and are) de minimis. See id. at

12–15. And, even if the Court were inclined to find that Officer Jones acted unconstitutionally, the

Defendants insist that he would nevertheless be entitled to qualified immunity because his actions

did not violate any “clearly established” law. See id. at 4–9.

a. Excessive Force

“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.” Lee v. Ferraro,

284 F.3d 1188, 1197 (11th Cir. 2002). To determine whether the force the officers used was

excessive, a court must determine “whether the officers’ actions are objectively reasonable in light

of the facts and circumstances confronting them, without regard to their underlying intent or

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (citations omitted) (cleaned up). This

inquiry “requires a careful balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental interests at stake.” Lee, 284

F.3d at 1197 (quoting Graham, 490 U.S. at 396) (cleaned up). In assessing “objective

reasonableness,” the Court looks to “the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

Each of these Graham factors weighs against Officer Jones here. First, the crime at issue

was not, strictly speaking, severe. After all, while throwing eggs on a school bus does, in a very

technical sense, constitute an “assault,” see Defs.’ SOF ¶ 67, the incident to which Officer Jones

responded was plainly non-violent. And nothing the Plaintiff did after the officers arrived changed

this reality. After all, neither his verbal disobedience towards Officer Rivera nor his “grazing” of

Officer Jones in the center aisle, see Pl.’s SOF ¶ 32, constituted “severe” acts of criminality.

Second, the Plaintiff posed no immediate threat to the officers’ safety—not at the time of

the “bear hug” and certainly not in the moments before the “leg sweep.” The Plaintiff, again, was

a thirteen-year-old who stood just four feet, eleven inches tall and weighed seventy pounds. See

Pl.’s SOF ¶ 55. He had no weapon, and, at the time of the “bear hug,” he was inarguably confined,

without egress, to the center aisle of a school bus. At the time of the “leg sweep,” moreover, he

had already been detained and handcuffed. There is, in short, at the very least a genuine issue of

material fact as to whether a reasonable officer at the scene would have been justified in fearing

for his or her own safety. See Graham, 490 U.S. at 396. As the Eleventh Circuit has made clear,

an individual can be a “nuisance but not a threat.” Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th

Cir. 2002) (finding that officer violated plaintiff’s constitutional rights when he used pepper spray

against plaintiff who was under arrest for crime of minor severity, who was handcuffed, and who

posed no threat to the officers).

Third, the Plaintiff never attempted either to resist arrest or to evade arrest by flight in any

meaningful way. To the contrary, the undisputed evidence establishes only that (1) the Plaintiff

was verbally abusing the officers and that (2) the Plaintiff made some very light contact with two

of the officers. See Defs.’ SOF ¶¶ 12–14, 22, 23, 27–31, 52–54; see also Videos. While the parties

do dispute whether the Plaintiff, just before the “bear hug,” “resisted” arrest by refusing to follow

commands, compare Defs.’ SOF ¶ 29 with Pl.’s SOF ¶ 29, at summary judgment, this dispute must

be resolved in the Plaintiff’s favor, see Whelan, 2013 WL 5583970 at *2. In any event, even if the

Plaintiff had “resisted arrest” before the “bear hug,” his verbal resistance would not have justified

the subsequent “leg-sweep.” See Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008)

(finding that, under some circumstances, a plaintiff may be subjected to excessive force “after he

stopped resisting”). And the unmistakable video evidence shows that the Plaintiff was not resisting

arrest when Officer Jones walked up to him from behind and, while he was handcuffed, kicked

him violently to the ground. See generally Videos.

Officer Jones also argues that he is entitled to summary judgment because the Plaintiff’s

injuries were de minimis. See Mot. at 12–15. But that is not the law. Instead, as the Eleventh Circuit

has explained, excessive force claims turn, not on the extent of a plaintiff’s injuries, but on the

amount of force the defendant applied. See Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir.

2014). “To conclude . . . that the absence of some arbitrary quantity of injury requires automatic

dismissal of an excessive force claim improperly bypasses [the] core [judicial] inquiry, which is

the nature of the force.” Id. (citations omitted) (cleaned up); see also Lee, 284 F.3d at 1200 (finding

that “objectively unreasonable force does not become reasonable simply because the fortuity of

the circumstances protected the plaintiff from suffering more severe physical harm. Slamming the

head of a handcuffed, subdued arrestee against the trunk of a car is objectively unreasonable and

clearly unlawful”).

For this reason, the Eleventh Circuit has instructed district courts to assess the “extent of

the injury inflicted” as one of three non-exhaustive factors, which include: “(1) the need for the

application of force, (2) the relationship between the need and amount of force used, and (3) the

extent of the injury inflicted.” Stephens v. DeGiovanni, 852 F.3d 1298, 1324 (11th Cir. 2017) (the

“Lee factors”) (citation omitted). None of these Lee factors supports Officer Jones’ position here.

First, there was no “need for the application of force,” either at the time of the “bear hug”

or just before the “leg sweep.” Starting with the “bear hug,” while the Plaintiff may have been

mouthing off at Officer Jones as he was walking down the aisle, see Defs.’ SOF ¶ 27, there is no

dispute that he was, in fact, walking off the bus—just as the officers had commanded him to do.

See Defs.’ SOF ¶ 32. And, while verbal sparring, when coupled with physical non-compliance,

may justify a physical response from an officer, there is a genuine dispute of material fact as to

whether Officer Jones needed to “bear hug” a 70-pound child with a big mouth.6 The “leg sweep”

was even less necessary. Again, when Officer Jones effectuated that maneuver, the undisputed

evidence shows that the Plaintiff had been removed from the bus and placed on the grass adjacent

to the street—with his hands cuffed behind him. See generally Videos. If there was some need to

stop the Plaintiff from “bumping” into the officers again, see Defs.’ SOF ¶¶ 52–54, that need could

6 Of course, the Defendants argue that, in addition to being verbally abusive, the Plaintiff

physically “chest bumped” Officer Jones in the bus aisle. See Defs.’ SOF ¶ 32. The Plaintiff

disputes this characterization. See Pl.’s SOF ¶ 32. Again, at summary judgment, the Court must

resolve this dispute in the Plaintiff’s favor. See, e.g., Allen, 121 F.3d at 646.

have been addressed just as effectively—and with no additional force—by simply sitting the

Plaintiff back on the grass.

Second, there is a genuine issue of material fact with respect to the amount of force Officer

Jones used. Indeed, since neither situation required the use of any force, a rational jury could find

that the amount of force Officer Jones deployed in both instances was (almost) necessarily

excessive. But, even if either situation did call for some force, the Court cannot say definitively

that the amount of force Officer Jones used was commensurate with that need. Starting with the

“bear hug,” the parties dispute whether Officer Jones placed his arms around the Plaintiff’s neck

or whether he simply grabbed him by the shoulders. Compare Defs.’ SOF ¶ 35 (“bear hug”) with

Pl.’s SOF ¶ 35 (“choke hold”). The video evidence, though inconclusive, does not contradict the

Plaintiff’s telling. See generally Videos. And, notably, Officer Jones conceded in his deposition

that, at one point, he did place his hands “above the shoulders.” Jones Dep. [ECF No. 107-2]

143:18–23. In any case, at summary judgment, the Court must view the evidence in the light most

favorable to the Plaintiff. See, e.g., Allen, 121 F.3d at 646. The “leg sweep,” again, is even more

straightforward. There is a genuine issue of material fact as to whether the amount of force Officer

Jones deployed in executing that “leg sweep” was excessive. See generally Videos.

Third, while it is true that, as the Defendants point out, the Plaintiff did not suffer life-

threatening injuries, their assertion that he suffered only de minimis injuries is incorrect. The

undisputed evidence establishes that the Plaintiff made multiple trips to the school nurse, that he

visited a doctor on several occasions, and that he received various treatments for his back pain.

See Defs.’ SOF ¶¶ 63, 73, 76; Pl.’s SOF ¶¶ 63, 69, 71, 73, 76. And, in any event, the first two

factors can supersede the third—particularly where, as here, the crime at issue was relatively minor

and the officer used grossly disproportionate force after the suspect was detained. See Lee, 284

F.3d at 1200; see also Saunders v. Duke, 766 F.3d at 1270.

In sum, these three Lee factors, taken together with the three Graham factors, support the

Plaintiff’s view that there is a genuine dispute of material fact with respect to whether Officer

Jones used excessive force to subdue him.

This conclusion is bolstered by other, similar cases from this Circuit. In Brown v. Haddock,

No. 5:10-cv-130, 2011 WL 1655580 (N.D. Fla. May 2, 2011), for instance, two officers responded

to a fistfight between minor cousins. See id. at *1. The plaintiff—the mother of one of the

cousins—approached the officers (apparently to inquire about the fight). See id. When the officers

did not answer her questions to her satisfaction, the plaintiff and one of the officers “chest-

bumped,” after which the officer ordered her to leave the scene. See id. When she refused, that

officer told her she was under arrest. See id. At that point, she stopped arguing with the officer and

offered up her hands for cuffing. See id. As she did so, however, the officer kicked her in the back

of the legs—the very same “leg-sweep” at issue here—and thus knocked her to the ground. See id.

The court denied the officer’s motion for summary judgment on both Fourth Amendment and

qualified immunity grounds. See id. at *6–7. As here, the Brown Plaintiff had both verbally sparred

with an officer and then, in the defendant’s telling, refused to comply with his commands. And—

again, as in this case—the Brown Plaintiff and the officer then “chest bumped.” Finally, as here,

the officer effectuated a “leg sweep” against a detained individual.

But the cases are also dissimilar in two salient ways—both of which redound to the

Plaintiff’s benefit. First, whereas the plaintiff in Brown was a full-grown adult, the Plaintiff here

is a middle school child—and a small child at that. Second, and more importantly, the Brown

Plaintiff had not yet been handcuffed when the officer swept at her leg. Here, by contrast, the

Plaintiff had been handcuffed and thus could not defend himself against the fall.

On balance, then, the Court finds unpersuasive the Defendants’ view that there exist no

genuine issues of material fact with respect to whether Officer Jones’ actions were excessive.

b. Qualified Immunity

“Qualified immunity protects government officials performing discretionary functions

‘from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’” Priester, 208

F.3d at 925 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In this way, the defense of

qualified immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). To qualify for the immunity, a government official must show

that the challenged actions were committed within the scope of his discretionary authority. See

Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). If he can do so, “the burden

shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194.

To overcome the qualified immunity defense, a plaintiff must show that the official

deprived him of a constitutional right that was “clearly established” at the time of the alleged

offense. See Saucier v. Katz, 533 U.S. 194, 201 (2001). This requirement “ensure[s] that before

they are subjected to suit, officers are on notice their conduct is unlawful.” id. at 206. For purposes

of qualified immunity in this District, only decisions of the United States Supreme Court, the

Eleventh Circuit Court of Appeals, and the Supreme Court of Florida constitute “clearly

established” law. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).

Under some circumstances, however, where “the official’s conduct lies so obviously at the

very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was

readily apparent to the official, notwithstanding the lack of caselaw,” the official is not entitled to

the defense of qualified immunity. Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997). This is

because “[t]he easiest cases don’t even arise.” United States v. Lanier, 520 U.S. 259, 271 (1997)

(citation omitted). “There has never been,” for instance, “a section 1983 case accusing welfare

officials of selling foster children into slavery; it does not follow that if such a case arose, the

officials would be immune from damages.” Id. (citation omitted). To meet this exception to the

“clearly established law” requirement—or, put another way, to show that the unconstitutionality

of the official’s conduct was “readily apparent”—a plaintiff must demonstrate that the official’s

conduct “was so far beyond the hazy border between excessive and acceptable force that [the

official] had to know he was violating the Constitution even without caselaw on point.” Mattox,

127 F.3d at 1419. But, as the Eleventh Circuit has made clear, this exception applies only where

“every reasonable officer in [the official’s] position [would] conclude the force was unlawful.”

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993), as amended, 14 F.3d 583

(11th Cir. 1994).

There is no dispute that Officer Jones was acting in his discretionary capacity. See

generally Resp. (failing to argue that Officer Jones was acting other than in his discretionary

capacity). To circumvent qualified immunity, then, the Plaintiff bears the burden of establishing

that Officer Jones violated his “clearly established” constitutional right to be free from the

excessive use of force. See Saucier, 533 U.S. at 201.

In the Plaintiff’s view, at the time in question, the law was clear that an officer cannot

deploy either a “chokehold” or a “leg sweep” to subdue a compliant civilian.

i. The “Chokehold”

But the Plaintiff has identified no case—and the Court has found none—for the proposition

that an officer violates a compliant individual’s constitutional rights whenever that officer employs

a momentary “chokehold.” See Resp. at 6–7. Instead, the Plaintiff cites two district court

decisions—Marshall v. West, 559 F. Supp. 2d 1224 (M.D. Ala. 2008), and Paul v. Bradshaw, No.

12-81381-CIV, 2013 WL 12084298 (S.D. Fla. Aug. 7, 2013)—which, it goes without saying,

cannot “clearly establish” law in this Circuit. See McClish, 483 F.3d at 1237.

For their part, the Defendants rely on the Eleventh Circuit’s decision in Post v. City of Ft.

Lauderdale. See 7 F.3d at 1559–60. In that case, the plaintiff was standing next to a group of

individuals—among them, police officers—who were investigating the restaurant he managed.

See id. at 1556. When the plaintiff asked one of the officers to turn down the volume on his radio,

the officer told the plaintiff to be quiet. See id. When the plaintiff repeated his request, the officer

informed him that he was under arrest. See id. Hearing this, the plaintiff raised his arms—in an

attempt, he said, to offer his hands to be handcuffed—at which point the officer instructed him to

“stop resisting arrest, spun him around, placed him against a display case, applied a chokehold,

and handcuffed him.” Id. Notably, the officer did not persist in the “chokehold” for an excessive

amount of time. See id. The Eleventh Circuit concluded that the officer was “entitled to qualified

immunity because it was not clearly established that the amount of force he used outside the

restaurant was unlawful.” Id. at 1560.

Here, as in Post, the Plaintiff—by his telling—complied with a lawful command in a way

that (again, according to the Plaintiff) the officer misinterpreted as disobedience. Notably, neither

case involved any evidence that the “chokehold”—or, as the Defendants here refer to it, the “bear

hug”—was deployed for an excessive amount of time. And, in both cases, the officer employed

the “chokehold” only for the purpose of effectuating a lawful maneuver: handcuffing the plaintiff

(as in Post) or removing him from the bus (as here).

The Plaintiff has failed to cite even a single case—either from the Eleventh Circuit, the

Supreme Court of the United States, or the Supreme Court of Florida—for his position that a police

officer violates a person’s constitutional rights when, after reasonably misinterpreting an abusive

detainee’s compliance as disobedience, he employs a momentary “chokehold” to remove that

detainee from an escalating situation. “The touchstone of qualified immunity is notice . . . . [A]

reasonable official [must] understand that his conduct violates that right.” Moore v. Pederson, 806

F.3d 1036, 1046–47 (11th Cir. 2015) (citation omitted). In short, the purported “excessiveness”

the Plaintiff relies on has not been “clearly established.” Nor was that “excessiveness” in any way

“readily apparent” at the time Officer Jones employed the “chokehold” in this case. After all, “in

light of binding precedent such as Post, [the officer employing the chokehold] was not on notice

that he was acting unlawfully.” Marantes v. Miami-Dade Cty., 649 F. App’x 665, 670 (11th Cir.

2016). 7

Because Officer Jones is entitled to qualified immunity for the “chokehold,” the Court

GRANTS his motion for summary judgment on that claim.

ii. The “Leg Sweep”

By contrast, the Plaintiff does manage to identify a long litany of cases that, he says,

“clearly establish” the unconstitutionality of an officer’s use of a “leg sweep” against a handcuffed

detainee. See Resp. at 8 (citing Skelly v. Okaloosa Cty. Bd. of Comm’rs, 456 F. App’x 845 (11th

Cir. 2012); Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008); Galvez v. Bruce, 552 F.3d 1238

7 Indeed, the events described in the Plaintiff’s Complaint took place in 2014—two years before

Marantes. In other words, if the Marantes Defendants were not on notice in 2016 that their conduct

was unconstitutional, then neither could Officer Jones have been in 2014.

(11th Cir. 2008); Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002); Slicker v. Jackson, 215 F.3d

1225, 1233 (11th Cir. 2000)).

In Skelly, the officers walked a handcuffed and compliant detainee into the Okaloosa

County Detention Center. See 456 F. App’x at 846. As the detainee entered the building, “she was

immediately knocked down from behind without provocation and repeatedly shocked by a Taser

until she lost consciousness.” Id. Each officer deployed his taser between seven and ten times. See

id. at 847. The district court rejected the officers’ contention that they should be enshrouded in

qualified immunity and denied their motions for summary judgment, see id.—and the Eleventh

Circuit affirmed, id. at 849.8

In Hadley, the plaintiff—who was high on cocaine—entered a supermarket and began

shouting “Help me, help me.” See 526 F.3d at 1327. Officers arrived on the scene, drew their guns,

and ordered the plaintiff to freeze. See id. What happened next was apparently disputed. But, taking

the facts in the light most favorable to the plaintiff, the court concluded that the officer then “struck

[the plaintiff] in the stomach even though he was not struggling or resisting.” Id. at 1330. This

finding was complicated by the plea of guilty the plaintiff had entered to a charge, stemming from

this very same incident, of resisting arrest. See id. at 1331. According to the defendants, the

plaintiff’s related guilty plea foreclosed his argument in the civil action that he had not resisted.

See id. The court disagreed, finding it “possible that [the plaintiff] was punched then resisted, or

even that he resisted first, but was punched after he stopped resisting.” Id. On these facts, the court

said, the officer was not entitled to qualified immunity. See id. at 1334. Again, the Eleventh Circuit

8 Notably, Skelly was decided under the Eighth Amendment’s more rigorous excessive force

standard. See id. at 847.

affirmed, holding that the “gratuitous use of force when a criminal suspect is not resisting arrest

constitutes excessive force.” Id. at 1330.

In Galvez, the defendant-officer approached the plaintiff—who had been charged with petit

theft—at his place of business. See 552 F.3d at 1240. When the plaintiff refused to return the stolen

goods, the officer attempted to grab his arm and handcuff him. See id. Although the plaintiff

apparently resisted, the officer ultimately handcuffed him. See id. And, after being handcuffed, the

plaintiff became compliant. See id. Nevertheless, the officer “forcefully dragged [the plaintiff] out

of the clinic, and with all his power and might began slamming the left side of [the plaintiff’s]

chest into the corner edge of the carport . . . . [The officer] slammed [the plaintiff’s] chest several

times while [he] cried out in pain and asked for help from passing motorists.” Id. The district court

granted the officer’s motion for qualified immunity and summary judgment, but the Eleventh

Circuit reversed. In doing so, the court explained that “qualified immunity is not available to

officers who subject arrestees to significant force after the arrest ha[s] been fully effected, the

arrestee completely secured, and all danger vitiated.” Id. at 1245 (citations omitted) (cleaned up).

In Lee, a petite female plaintiff was pulled over for a routine traffic stop by a much larger

male officer. See 284 F.3d at 1190–91. Unprovoked, the officer grabbed the plaintiff’s wrist, pulled

her out of the car, yanked her arm, and shoved it against her back. See id. at 1191. With the plaintiff

now fully outside the car, the officer shoved her against the car door, frisked her, and (finally) put

her in handcuffs. See id. The officer then led the plaintiff to the back of the car and slammed her

face against the trunk. See id. The plaintiff never resisted arrest. See id. Despite undisputed

evidence that the plaintiff had suffered no permanent injuries to her head, the Eleventh Circuit

found it “abundantly clear” that the officer had “used force that was plainly excessive, wholly

unnecessary, and, indeed, grossly disproportionate under Graham.” Id. at 1198. And, citing

Slicker, the court refused to grant the officer’s request for qualified immunity. See id. at 1199–

1200.

In Slicker, the plaintiff went to the police station to inquire about a pending complaint he

had filed. See 215 F.3d at 1227. On his way out of the station, he was handcuffed and arrested for

disorderly conduct, “at which time the officers slammed his head against the pavement and

knocked him unconscious.” Id. But, before falling into unconsciousness, the plaintiff remembered

being kicked in the back of the head—a memory corroborated by a witness to the arrest. See id. at

1227–29. The Eleventh Circuit rejected the officer’s request for qualified immunity. See id. at

1233.

Again, “[t]he touchstone of qualified immunity is notice . . . . [A] reasonable official [must]

understand that his conduct violates that right.” Moore, 806 F.3d at 1046–47 (citation omitted). In

light of these cases, any reasonable officer, placed in Officer Jones’ shoes, would have known that

kicking a handcuffed, seventy-pound detainee to the ground—a detainee who, just moments

earlier, had been seated compliantly on the curbside—was plainly excessive. This right—the right

of a handcuffed and compliant detainee to be free from the excessive and unnecessary use of a

violent “leg sweep”—was “clearly established” at least as early as the Eleventh Circuit’s decision

in Slicker (and, if not there, then certainly by that court’s subsequent decisions in Lee, Galvez, and

Hadley).

Indeed, even had these cases not “clearly established” the unconstitutionality of such a “leg

sweep,” the sweep went “so far beyond the hazy border between excessive and acceptable force

that [the officer] had to know he was violating the Constitution even without caselaw on point.”

Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997). Officer Jones’ conduct, in short, lies “so

obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of [his]

conduct [is] readily apparent to the official, notwithstanding the lack of caselaw.” Id.

To summarize, then: it is unconstitutional for a police officer to “leg sweep,” violently and

from behind, a handcuffed and compliant detainee who has been accused only of a minor crime.

And there is, at least, a genuine dispute of material fact regarding whether Officer Jones’ use of a

“leg sweep” against the Plaintiff violated that rule. As such, with respect to the “leg sweep,”

Officer Jones’ motion for summary judgment is DENIED.

II. Battery against the City of Boynton Beach

The Plaintiff also brings a state-law battery claim against the City of Boynton Beach. See

Compl. Count I. Under Florida Statutes § 768, the State of Florida and its subdivisions have waived

sovereign immunity for any intentional tort committed in the scope of an officer’s employment,

unless that officer acted in bad faith or with malicious purpose. See Fla. Stat. § 768.28(9)(a).

Florida Law recognizes the intentional tort of battery by a police officer. See generally City of

Miami v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996).

When excessive force is used during an arrest, “the ordinarily protected use of force by a

police officer is transformed into a battery.” Id. at 47 (citing Mazzilli v. Doud, 485 So.2d 477, 481

(Fla. 3d DCA)). “A battery claim for excessive force is analyzed by focusing upon whether the

amount of force used was reasonable under the circumstances.” Sanders, 672 So. 2d at 47 (citing

Dixon v. State, 101 Fla. 840 (Fla. 1931)). But police officers are “entitled to a presumption of good

faith in regard to the use of force applied during a lawful arrest, and officers are only liable for

damage where the force used is ‘clearly excessive.’” Davis v. Williams, 451 F.3d 759, 768 (11th

Cir. 2006).

The parties agree that this “clearly excessive” standard under Florida law is coextensive

with the Fourth Amendment’s “excessive force” analysis. See Mot. at 15 (“The analysis of the

existence of excessive force for a state law battery claim in Florida is identical to the analysis under

the Fourth Amendment.” (citations omitted)); Resp. at 13–18 (discussing federal § 1983 cases as

support for state-law battery claim). And the Eleventh Circuit seems to agree with this proposition.

See, e.g., Sullivan v. City of Pembroke Pines, 161 F. App’x 906, 911 (11th Cir. 2006) (dismissing

Florida battery claim on same grounds as federal § 1983 claim); accord Andrade v. Miami Dade

Cty., No. 09-23220-CIV, 2011 WL 4345665, at *7 (S.D. Fla. Sept. 16, 2011) (discussing federal

cases in evaluating a claim that an officer’s conduct was “clearly excessive” under Florida law).

The Court has already concluded that Officer Jones is not entitled to summary judgment

on the Plaintiff’s claim that the “chokehold”9 and the “leg sweep” constituted “excessive force”

under the Fourth Amendment. See supra Sec. I. For the same reasons, then, the City is likewise

not entitled to summary judgment on the Plaintiff’s state-law battery claim. See Sullivan, 161 F.

App’x at 911 (“[For] the same reasons we concluded that the force used by [the officer] clearly

excessive under the law of this Circuit, we also conclude that it was [] clearly excessive according

to the similar standard set forth under Florida law.”).

******

Accordingly, the Court hereby

ORDERS and ADJUDGES that the Defendants’ Motion for Summary Judgment [ECF

No. 104] is GRANTED in part and DENIED in part as follows:

9 To clarify: While the Court has found that Officer Jones’ use of the “chokehold” may well have

constituted “excessive force” under the Fourth Amendment, it nevertheless has concluded that

Officer Jones is entitled to qualified immunity for this “chokehold.”

1. The Defendants’ Motion is DENIED as to Count I — Battery against the City of

Boynton Beach.

2. The Defendants’ Motion is GRANTED in part and DENIED in part as to Count II

— Excessive Force against Officer Jones. The Motion is GRANTED as to Officer

Jones’ use of the “chokehold.” The Motion is DENIED as to Officer Jones’ use of the

“leg-sweep.”

DONE AND ORDERED in Fort Lauderdale, Florida, this 27th day of November 2019.

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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