H.M. v. Nicholas Castoro

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10762

____________________

H.M.,

individually and as Guardian for H.S.

an Unemancipated Minor,

Plaintiff-Appellant,

versus

DEPUTY SHERIFF NICHOLAS VINCENT CASTORO,

in his individual capacity,

MARTIN COUNTY SHERIFF,

Defendants-Appellees.

____________________

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Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:21-cv-14319-AMC

____________________

Before WILLIAM PRYOR, Chief Judge, and LUCK and ED CARNES, Cir-

cuit Judges.

PER CURIAM:

H.S. (and his mother) appeal the district court’s summary

judgment for Deputy Nicholas Castoro on their 42 U.S.C. sec-

tion 1983 claim that Deputy Castoro violated H.S.’s Fourth

Amendment rights by using excessive force during an investigatory

stop. The district court granted summary judgment for Deputy

Castoro because, after weighing the Graham v. Connor, 490 U.S. 386

(1989), factors, it concluded that the force he used was not excessive

and, even if it was, Deputy Castoro was entitled to qualified im-

munity because any Fourth Amendment violation was not clearly

established. After careful review, and with the benefit of oral argu-

ment, we agree with the district court that Deputy Castoro was

entitled to qualified immunity, and affirm.

FACTUAL BACKGROUND

On January 4, 2019, H.S., a 120-pound thirteen-year-old boy,

and R.S., his twelve-year-old friend, were walking through a

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1

residential neighborhood in Jensen Beach, Florida. As the boys

were walking, H.S. and R.S. picked up a ball from a ditch across the

street from a home and started to play with it. At the same time, a

mother and her children were outside of the home. The mother

told the boys that the ball was hers and they needed to return it.

Instead, H.S. cursed at the mother, gave her the middle finger, let

the ball go, and left. The mother called the police, reported the

incident, and provided a description of the boys.

Deputy Castoro of the Martin County Sheriff’s Office, a 250-

pound man, responded to the dispatch call. The dispatcher told the

deputy that two boys entered the mother’s yard, took her children’s

toy, and, when the mother told them to return it, the boys either

threw or kicked the toy back and then cursed at her.

While driving in the neighborhood, Deputy Castoro saw

H.S. and R.S.—who matched the description given by dispatch—

walking on the road. Deputy Castoro pulled up to the boys in his

marked patrol car and got out. He was wearing his uniform. H.S.

recognized Deputy Castoro as a law enforcement officer but he did

not try to flee. Instead, the three of them—Deputy Castoro, H.S.,

and R.S.—talked while standing on the side of the road near a

grassy area about six to ten feet apart from each other.

1

As we must in this summary judgment appeal, we give the facts in the light

most favorable to H.S. See Owens v. Off. of Student Achievement, 52 F.4th 1327,

1333 (11th Cir. 2022).

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Deputy Castoro explained why he was there and asked for

the boys’ names. R.S. gave his name to Deputy Castoro but H.S.

did not. Deputy Castoro asked several more times for H.S.’s name

but H.S. refused, again and again, to identify himself. As Deputy

Castoro and H.S. were going back and forth, H.S. put his hands into

his hoodie pocket. (H.S. was wearing a pullover-style hoodie with

a single large pocket.)

To Deputy Castoro, it looked like H.S. “ball[ed his hand] into

a fist as if he were grabbing something.” Deputy Castoro, based

on his law enforcement training, knew that “any sort of weapon[]

can be kept in pockets” and “anybody can be a threat.” And he

believed that “where [he] can’t see . . . [a subject’s] hands,” it creates

“a potentially dangerous situation” because of “the access to what

can be in those pockets.” So Deputy Castoro ordered H.S. to re-

move his hands from his pocket.

Ignoring the order, H.S. refused to take his hands out of his

pocket. Several more times, Deputy Castoro ordered H.S. to re-

move his hands from his pocket. H.S. kept refusing. With each

refusal, Deputy Castoro grew more and more angry, and his face

turned red.

After H.S. repeatedly refused to remove his hands from his

pocket, Deputy Castoro lunged forward and grabbed H.S.’s wrists.

Deputy Castoro tried to pull H.S.’s hands out of his pocket and

move them behind his back to place H.S. in handcuffs, but H.S. re-

sisted. H.S. first resisted because he didn’t know he was being ar-

rested, but then he continued to resist because he “felt like [he]

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shouldn’t be getting arrested.” As the two “scuffled” over H.S.’s

hands, Deputy Castoro “tried to bring [H.S.] over toward[] the

grass to . . . try and soften or prevent any injuries from happening

to him.”

While still trying to get H.S.’s hands out of his pocket, Dep-

uty Castoro grabbed H.S. by the lower waist, lifted him into the air,

and slammed him onto the ground in a way that resembled “a

wrestling move.” H.S.’s body landed on the grass, but his head

struck the paved road. After H.S. hit the ground, a pocketknife fell

out of his hoodie.

As a result of the struggle, H.S. suffered a black eye, a brain

bleed, and fractures to his skull, sinus bone, shoulder, collar bone,

and ribs, as well as permanent injuries.

PROCEDURAL HISTORY

H.S. (and his mother) sued Deputy Castoro under sec-

tion 1983 for violating his Fourth Amendment right to be free from

excessive force during the investigatory stop. For two reasons, the

district court granted Deputy Castoro’s motion for summary judg-

ment. First, after going through the Graham factors, the district

court concluded that Deputy Castoro did not use excessive force

during the stop. Second, the district court explained that Deputy

Castoro was entitled to qualified immunity because, even if he did

use excessive force, any Fourth Amendment violation was not

clearly established.

H.S. appeals the summary judgment for Deputy Castoro.

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STANDARD OF REVIEW

We review de novo the district court’s grant of summary

judgment. Owens, 52 F.4th at 1333. Summary judgment is appro-

priate where there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a).

DISCUSSION

Qualified immunity protects law enforcement officers per-

forming discretionary functions from suit in their individual capac-

ities unless their conduct violates “clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of qualified im-

munity is to allow officers “to carry out their discretionary duties

without the fear of personal liability or harassing litigation, pro-

tecting from suit all but the plainly incompetent or one who is

knowingly violating the federal law.” Crenshaw v. Lister, 556 F.3d

1283, 1289 (11th Cir. 2009) (quoting Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002)).

To be entitled to qualified immunity, an officer “must first

prove that he was acting within the scope of his discretionary au-

thority when the allegedly wrongful act[] occurred.” Wood v. Kesler,

323 F.3d 872, 877 (11th Cir. 2003) (quoting Lee, 284 F.3d at 1194).

“Once [he] establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that qualified

immunity is not appropriate.” Id. Here, the parties agree that

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Deputy Castoro was acting within the scope of his discretionary

authority during the stop of H.S. So, H.S. bore the burden to show

that qualified immunity was not appropriate. See id.

H.S. must do this by satisfying both parts of the two-part test

for qualified immunity. Id. The first part asks “whether the facts,

taken in the light most favorable to the party asserting the injury,

show the officer’s conduct violated a federal right.” Tolan v. Cotton,

572 U.S. 650, 655–56 (2014) (quotation omitted) (cleaned up). For

excessive-force cases, the constitutional right at issue is the plain-

tiff’s Fourth Amendment right to be free from unreasonable sei-

zures. Id. at 656. Excessive-force cases “require[] a balancing of ‘the

nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the governmental

interests alleged to justify the intrusion.’” Id. (quoting Tennessee v.

Garner, 471 U.S. 1, 8 (1985) (cleaned up).

The second part of the qualified-immunity test asks whether

the violation was “clearly established” at the time of the challenged

conduct. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). “The

rule’s contours must be so well defined that it is ‘clear to a reason-

able officer that his conduct was unlawful in the situation he con-

fronted.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

While an officer’s specific conduct need not have been previously

held unlawful to be clearly established, “existing precedent must

place the lawfulness of [his conduct] ‘beyond debate.’” Id. at 64

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In other

words, “[t]he salient question is whether the state of the law at the

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time of an incident provided fair warning to the [officer] that [his]

alleged conduct was unconstitutional.” Tolan, 572 U.S. at 656 (quot-

ing Hope, 536 U.S. at 741 (cleaned up)).

We can choose which part of the qualified-immunity test to

decide first—the constitutional-violation part or the clearly-estab-

lished part. Id. at 656. Here, we start and end with the clearly-

established part.

There are three ways a plaintiff can show that a violation of

his constitutional rights was clearly established. First, he can “show

that a materially similar case has already been decided.” Corbitt v.

Vickers, 929 F.3d 1304, 1312 (11th Cir. 2019) (quotation omitted).

Second, he can show that “a broader, clearly established principle

should control the novel facts” of his case. Id. (quotation omitted).

And third, he can show the officer’s conduct was “so egregious that

a constitutional right was clearly violated, even in the total absence

of case law.” Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1292 (11th

Cir. 2009). “Notwithstanding the availability of these three inde-

pendent showings,” we have emphasized “on several occasions that

if case law, in factual terms, has not staked out a bright line, quali-

fied immunity almost always protects the [officer.]” Corbitt, 929

F.3d at 1312 (quotation omitted).

H.S. does not argue that we have already decided a materi-

ally similar case. He relies, instead, on the other two ways to show

a clearly established violation—a broad, clearly established princi-

ple and “egregious” conduct. But neither work here.

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Deputy Castoro’s conduct did not violate a broad, clearly established

principle of law.

We start with H.S.’s argument that broad principles clearly

established a Fourth Amendment violation. For a broad principle

to clearly establish a violation of a constitutional right, the principle

must be established with “obvious clarity by the case law so that

every objectively reasonable [officer] facing the circumstances

would know” that his conduct violated federal law. Loftus v. Clark-

Moore, 690 F.3d 1200, 1204–05 (11th Cir. 2012) (quotation omitted).

“[G]eneral statements of the law are not inherently incapable of

giving fair and clear warning to officers.” Kisela v. Hughes, 584 U.S.

100, 105 (2018) (quotation omitted). But an officer’s “awareness of

the existence of an abstract right . . . does not equate to knowledge

that his conduct infringes the right.” Corbitt, 929 F.3d at 1312 (em-

phasis omitted) (quotation omitted). Specificity is especially im-

portant in the excessive-force context as “it is sometimes difficult

for an officer to determine how the relevant legal doctrine . . . will

apply to the factual situation the officer confronts.” Kisela, 584 U.S.

at 104 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). Therefore,

officers are entitled to qualified immunity unless the broad princi-

ple “squarely governs” the specific facts of the case. Id. (quoting

Mullenix, 577 U.S. at 13).

H.S. offers three statements from our case law that he con-

tends establish with “obvious clarity” that Deputy Castoro violated

H.S.’s Fourth Amendment rights. First, H.S. points to our state-

ment from Richmond v. Badia, 47 F.4th 1172 (11th Cir. 2022), that

“less force is appropriate when the crime at issue is a misdemeanor,

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and the suspect does not pose a threat or attempt to flee.” Id. at

1183 (emphasis added).

But the statement from Richmond does not “squarely gov-

ern[]” the facts of this case. See Kisela, 584 U.S. at 104. For one

thing, by the time Deputy Castoro performed the wrestling move

on H.S., the deputy had probable cause to believe that H.S. was

committing a felony—not a misdemeanor. Leading up to the wres-

tling move, H.S. physically resisted Deputy Castoro’s attempt to

take H.S.’s hands out of his hoodie pocket because H.S. felt like he

should not be arrested. Under Florida law, that’s resisting an officer

with violence—a felony. See FLA. STAT. § 843.01(1) (listing resisting

an officer with violence as a third-degree felony when a person

knowingly and willfully resists any officer “by offering or doing vi-

olence” to that officer); see also State v. Green, 400 So. 2d 1322, 1323

(Fla. Dist. Ct. App. 1981) (finding a prima facie case for resisting

with violence when a defendant “wiggled and struggled” against

officers attempting to handcuff him).

For another thing, unlike the statement in Richmond, Deputy

Castoro reasonably believed that H.S. did pose a threat. Deputy

Castoro saw H.S. reach into his pocket after H.S. refused to identify

himself, and it appeared to Deputy Castoro as if H.S. was grabbing

something. H.S. refused Deputy Castoro’s verbal commands to

take H.S.’s hands out of his pocket and physically resisted Deputy

Castoro’s attempt to remove H.S.’s hands from his pocket. See

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009) (finding

a plaintiff posed a threat when “[s]he actively resisted the deputies’

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efforts at effectuating a lawful arrest and refused to comply with

their requests”). Deputy Castoro recognized from his law enforce-

ment training that a subject’s hands in his pockets may create “a

potentially dangerous situation” because of “the access to what can

be in those pockets.”

But even if the facts of our case did fit Richmond, the state-

ment that “less force is appropriate” would not put every objectively

reasonable officer on notice that a wrestling move to subdue a po-

tentially armed, actively resisting plaintiff violated the Fourth

Amendment. See Loftus, 690 F.3d at 1204–05. The statement from

Richmond is not specific enough to give a reasonable officer a “fair

and clear warning” on how much force is “less” as opposed to ex-

cessive. See Kisela, 584 U.S. at 104–05 (quoting White v. Pauly, 580

U.S. 73, 79 (2017)). Without “obvious clarity” on how much force

is too much, the Richmond statement cannot clearly establish a

broad principle of law.

Second, H.S. relies on the statement from Fils v. City of Aven-

tura, 647 F.3d 1272 (11th Cir. 2011), that “resisting arrest without

force does not connote a level of dangerousness that would justify

a greater use of force.” Id. at 1288. But the Fils statement has the

same problem as the Richmond statement. By the time Deputy Cas-

toro used the wrestling move on H.S.—the challenged conduct—

he had probable cause to believe that H.S. was resisting arrest with

force. See FLA. STAT. § 843.01(1). Deputy Castoro used this move

only after H.S. physically resisted Deputy Castoro’s attempt to re-

strain him and to secure any potential dangerous weapons. So,

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even if Fils could be a broad, clearly established principle of law, it

does not “squarely govern[]” the facts here. See Kisela, 584 U.S. at

104.

Third, H.S. cites Howard v. Hudson, 613 F. App’x 866 (11th

Cir. 2015), for the principle that a plaintiff may be justified in strug-

gling against the use of force when he was not first told he was

under arrest. Id. at 868–69. But Howard is an unpublished, non-

binding case, which cannot clearly establish a violation of law so as

to put every reasonable officer on notice. See Crocker v. Beatty, 995

F.3d 1232, 1241 n.6 (11th Cir. 2021) (“[U]npublished cases do not

serve as binding precedent and cannot be relied upon to define

clearly established law.” (quotation omitted) (cleaned up)). And

even if it could, Howard did not say that a plaintiff is allowed to

resist unless he is told by a law enforcement officer that he is under

arrest. That is not the law in our Circuit. In Draper v. Reynolds, for

example, we held that a law enforcement officer may use a taser to

subdue an uncooperative and hostile plaintiff without any prior

verbal arrest command. See 369 F.3d 1270, 1278 (11th Cir. 2004)

(“Because [the plaintiff] repeatedly refused to comply with [the of-

ficer’s] verbal commands, starting with a verbal arrest command

was not required in these particular factual circumstances.”).

In short, the case law H.S. offers does not “squarely gov-

ern[]” the factual circumstance that Deputy Castoro faced and

could not have established with obvious clarity that his conduct

was unconstitutional. See Kisela, 584 U.S. at 104.

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Deputy Castoro’s conduct was not so egregious that it clearly violated a

constitutional right without case law.

Next, we address the “so egregious” way of showing a

clearly established violation of a constitutional right in the absence

of case law. For this “narrow exception,” a plaintiff must show that

the officer’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 [officer], notwithstanding the lack of

case[ ]law.” See Priester v. City of Riviera Beach, 208 F.3d 919, 926

(11th Cir. 2000). In other words, an officer’s conduct must have

been “far beyond the hazy border between excessive and acceptable

force.” Id. at 926 (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th

Cir. 1997)). This “narrow exception” is met only where “every rea-

sonable officer would conclude that the excessive force used was

plainly unlawful.” Lewis, 561 F.3d at 1292. That is simply not the

case here.

In the rare cases where we’ve found that the use of force was

so egregious as to put every reasonable officer on notice that it vi-

olated the Fourth Amendment, there were two common elements:

the plaintiff was not resisting and he was subdued when the chal-

lenged force was used. See Durruthy v. Pastor, 351 F.3d 1080, 1094

(11th Cir. 2003) (distinguishing Lee v. Ferraro and Priester because the

plaintiff was not restrained at the time force was applied); Reese v.

Herbert, 527 F.3d 1253, 1274 (2008) (finding that “a severe beating of

a restrained, non-resisting” plaintiff “falls within the core of what the

Fourth Amendment prohibits.” (quotation omitted) (emphasis

added)). For example, in Lee, we explained that an officer’s conduct

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met the “narrow exception” because he yanked the plaintiff out of

her car, slammed her against the driver’s side door, cuffed her, and

then slammed her head onto the trunk of her car and spread her

legs with his foot, despite the fact that the plaintiff did not resist the

officer “at any time during this incident.” 284 F.3d at 1191, 1198–

99. And in Priester, we concluded that the officer’s conduct was so

egregious so as to put every reasonable officer on notice that it vi-

olated the Fourth Amendment because he ordered a police dog to

attack the plaintiff for at least two minutes, despite the fact that the

plaintiff was lying on the ground and complying with the officer’s

commands. 208 F.3d at 927.

Unlike in these “egregious” and “obvious” cases, neither

common element was present here. H.S. was resisting when Dep-

uty Castoro used the wrestling move to free H.S.’s hands from his

hoodie pocket. And H.S. was not subdued. He refused to give his

name and he refused to remove his hands from his pocket because

he believed Deputy Castoro was trying to arrest him.

Indeed, in similar cases where the plaintiff was resisting and

was not subdued when the officer used force, we have found the

officer’s conduct was not so egregious that it violated the Fourth

Amendment. Merricks v. Adkisson, 785 F.3d 553 (11th Cir. 2015), is

a good example. There, the officer jerked a plaintiff out of her

car—by yanking on her arm twice, with enough force that it tore

her rotator cuff—when she resisted a search by refusing to let go of

her car keys. Id. at 557, 564–65. We concluded the conduct was

not so egregious so as to put every reasonable officer on notice

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because significant force was applied only after the plaintiff refused

to let the officer search her car and as she was actively struggling

to keep him from searching her car. Id. at 564 (finding that plaintiff

did not meet “this narrow exception”—“a difficult exception to

meet”—when the officer had probable cause to search plaintiff’s

vehicle and “[n]ot only did she refuse to let him search it, she strug-

gled with him to keep him from searching it by stopping him from

taking her keys to turn off her car”).

Here, too, Deputy Castoro lifted H.S. off the ground only

after H.S. repeatedly refused verbal commands to give his name or

to take his hands out of his pocket, and as he was actively resisting

Deputy Castoro’s attempt to remove H.S.’s hands from his hoodie

pocket. As in Merricks, Deputy Castoro’s significant force to sub-

due H.S. was not “far beyond the hazy border between excessive

and acceptable force . . . and every reasonable officer in [his] situa-

tion would [not] know that the force used was unlawful.” See Mer-

ricks, 785 F.3d at 564–65 (quoting Priester, 208 F.3d at 926).

CONCLUSION

In the end, H.S. has not shown that Deputy Castoro’s con-

duct violated a clearly established right. For that reason, we agree

with the district court that the deputy was entitled to qualified im-

munity.

AFFIRMED.