J. Pearl Bussey-Morice v. Patrick Kennedy

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-10537

Non-Argument Calendar

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D.C. Docket No. 6:11-cv-00970-CEM-GJK

J. PEARL BUSSEY-MORICE, as Personal

Representative of the Estate of Preston Bussey, III,

Plaintiff-Appellant,

versus

PATRICK KENNEDY,

TIMOTHY HERBERNER,

IVETTE GOMEZ,

DON WILLIAMS,

ROBERT OWENS, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(August 8, 2016)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

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PER CURIAM:

This case arises out of the tragic death of Preston Bussey, III. Bussey died

following officers’ attempts to restrain him pursuant to a Baker Act order.

Bussey’s personal representative, Plaintiff-Appellant J. Pearl Bussey-

Morice, brought this case, asserting that Defendants-Appellees Officers Patrick

Kennedy, Timothy Herbener, Timothy Hewatt, Ivette Gomez, Don Williams,

Robert Owens, and Matthew Leverich violated Bussey’s clearly established

constitutional rights and that the City of Rockledge committed a battery upon

Bussey resulting in wrongful death when Defendant Officers attempted to restrain

Bussey. While the loss of Bussey’s life is deeply regrettable, on this record, we

cannot find that Defendant Officers violated Bussey’s clearly established rights.

We therefore affirm the district court’s grant of summary judgment to these

Defendants on qualified-immunity grounds.

As for Bussey-Morice’s battery claim, we conclude that, in responding to the

City’s motion for summary judgment, she waived the argument she makes before

us and instead asserted the contrary position. Because Bussey-Morice may not

raise a new argument for the first time on appeal, and because the district court did

not err in dismissing Bussey-Morice’s battery claim in view of what Bussey-

Morice contended below, we affirm the district court’s entry of summary judgment

on Bussey-Morice’s battery claim as well.

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I. Factual Background

We have previously discussed many of the underlying facts of this case in

our prior opinion arising out of this incident. See Bussey-Morice v. Gomez, 587 F.

App'x 621 (11th Cir. 2014) [“Bussey I”]. But because Bussey I was not directly

concerned with Officer Kennedy’s conduct, our opinion did not include all of the

facts relevant to Kennedy’s role. For this reason, we add to our prior recitation

those facts concerning Kennedy and the other officers’ reactions to his conduct.

Upon Kennedy’s arrival at the scene, Bussey was handcuffed, lying on his

stomach, and continuing to struggle against multiple officers attempting to restrain

him. Bussey was “kicking violently” and preventing officers from gaining control

over his body. Kennedy joined the other officers by grabbing Bussey’s feet and

moving up Bussey’s body in order to gain control of his upper torso and head.

While Kennedy used his hand to control Bussey’s head, Bussey began turning his

head to spit. In response, Kennedy “tried to use a pressure point technique” in an

attempt to elicit Bussey’s compliance. Kennedy then used his knee to apply

additional pressure to Bussey’s head in order “to keep him from biting somebody .

. . .” Soon after that, Kennedy acquired a pillowcase from hospital staff and used it

to cover Bussey’s head. According to Kennedy, he checked numerous times to

make sure the pillowcase was not restricting Bussey’s ability to breathe. Once

Bussey was injected with a sedative and anti-psychosis medication, Bussey’s

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resistance began to diminish, and the officers were able to move him onto a gurney

and strap him in. At some point, after Bussey was strapped into the gurney, he

stopped breathing and passed away.

II. Procedural History

Bussey-Morice brought suit on behalf of Bussey’s estate, suing the City of

Rockledge as well as the officers involved in the incident. Bussey-Morice’s claims

included a Fourth Amendment excessive-force claim against the officers and state-

law claims against the City of Rockledge.

After discovery, the district court granted summary judgment in favor of the

City of Rockledge and all of the officers, except Officer Gomez and Sergeant

Hewatt. We reversed the district court’s decision denying summary judgment in

favor of Gomez and Hewatt. Now, Bussey-Morice appeals three other findings

made by the district court: first, that Officer Kennedy deserved qualified immunity

despite the nature of the physical force he used against Bussey; second, that

Officers Herberner, Williams, Owens, Gomez, Hewatt, and Leverich deserved

qualified immunity despite their failure to intervene between Kennedy and Bussey;

and third, that the City of Rockledge deserved sovereign immunity from Bussey-

Morice’s battery and wrongful-death claim.

III. Standard of Review

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We review de novo the district court’s award of qualified immunity on a

motion for summary judgment. Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir.

1998). We similarly review de novo the district court’s award of sovereign

immunity on a motion for summary judgment. Seminole Tribe v. Florida, 11 F.3d

1016, 1021 (11th Cir. 1994); Plancher v. UCF Ath. Ass'n, 175 So. 3d 724, 725 n.3

(Fla. 2015).

Summary judgment should be granted when “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). When reviewing summary judgments, we consider the record

and draw all reasonable inferences in favor of the non-moving party—here,

Bussey-Morice. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (per

curiam) (citation omitted); Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012)

(citation omitted).

IV. Discussion

A. Qualified Immunity

As we noted in Bussey I, the qualified-immunity defense aims at striking a

balance between “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. California

(2009). Qualified immunity protects government officials engaged in discretionary

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duties from being sued unless they violate “clearly established federal statutory or

constitutional rights of which a reasonable person would have known.” Keating v.

City of Miami, 598 F.3d 753, 762 (11th Cir. 2013).

The purpose of qualified immunity “is to allow government officials to carry

out their discretionary duties without the fear of personal liability or harassing

litigation.” Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003). Qualified

immunity protects from litigation “all but the plainly incompetent or one who is

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002). As a result, qualified immunity “liberates government agents from the

need to constantly err on the side of caution by protecting them both from liability

and the other burdens of litigation . . . .” Holmes v. Kucynda, 321 F.3d 1069, 1077

(11th Cir. 2003) (internal quotation marks omitted). But qualified immunity does

not protect an official who “knew or reasonably should have known that the action

he took within his sphere of official responsibility would violate the constitutional

rights of the [plaintiff].” Id. (quoting Harlow, 457 U.S. at 815, 102 S. Ct. at 2736)

(internal quotation marks & alteration omitted).

Under the qualified-immunity doctrine, a public official must first show that

he was acting within the scope of his or her discretionary authority at the time of

the challenged conduct. Maddox v. Stephens, 727 F.3d 1109, 1120 (11th Cir.

2013). Here, Kennedy and the rest of the officers undisputedly established this

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fact, as they were acting within the scope of their discretionary authority as police

officers for the City of Rockledge when they encountered Bussey.

The burden then shifts to Bussey-Morice to demonstrate that qualified

immunity is not appropriate. See id. In order to do this, Bussey-Morice must show

that, when viewed in the light most favorable to her, the facts demonstrate that

Kennedy and the other officers violated Bussey’s constitutional right and that that

right was “clearly established . . . in light of the specific context of the case, not as

a broad general proposition[,]” at the time of the incident. Saucier v. Katz, 533

U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). We may decide

these issues in either order, but, to survive a qualified-immunity defense, Bussey-

Morice must satisfy both showings. Maddox, 727 F.3d at 1120-21 (citation

omitted).

Here, we find that the alleged illegality of Kennedy’s actions and the other

officers’ inactions were not clearly established at the time of the incident. So we

do not decide whether a constitutional violation took place. Id.

As we have explained, the touchstone of qualified immunity is notice.

Holmes, 321 F.3d at 1078. The violation of a constitutional right is clearly

established if every reasonable official would understand that his conduct violates

that right. See Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009).

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Our circuit uses two methods to determine whether a reasonable official

would understand that his conduct violates a constitutional right. Fils v. City of

Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011). In the first, “[w]e have held that

decisions of the United States Supreme Court, the United States Court of Appeals

for the Eleventh Circuit, and the highest court of the pertinent state (here, the

Supreme Court of Florida) can clearly establish the law.” McClish v. Nugent, 483

F.3d 1231, 1237 (11th Cir. 2007) (citation omitted). Under this method, “[e]xact

factual identity with a previously decided case is not required, but the unlawfulness

of the conduct must be apparent from the pre-existing law.” See Coffin v.

Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (citations omitted).

The second method involves evaluating the officer’s conduct and deciding

whether 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 law of fact-specific case law’” on

point. Fils, 647 F.3d at 1291 (alteration in original) (citation omitted). Under this

method, despite an absence of case law holding the specific conduct unlawful, a

“general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question.” Coffin, 642 F.3d at 1014-15;

see

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The obvious-clarity method recognizes that although concrete facts are

typically necessary to provide an officer with notice of “the hazy border between

excessive and acceptable force,” when an officer’s conduct is “so outrageous that it

clearly goes ‘so far beyond’ these borders, qualified immunity will not protect him

even in the absence of case law.” Fils, 647 F.3d at 1291-92 (citing Reese v.

Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008) (quoting Priester v. City of Riviera

Beach, Fla., 208 F.3d 919, 926-27 (11th Cir. 2000)). This standard, which offers a

narrow exception to the general rule that only case law and specific factual

scenarios can clearly establish a constitutional violation, Priester, 208 F.3d at 927,

is a difficult one to meet. See Hoyt, 672 F.3d at 977 (“[I]f case law, in factual

terms, has not staked out a bright line, qualified immunity almost always protects

the defendant.”) (quoting Priester, 208 F.3d at 926).

1. Kennedy’s conduct did not violate a clearly established right.

Even viewing the facts in the light most favorable to Bussey-Morice, we

conclude that, under either method, it was not clearly established at the time of the

incident that Kennedy’s conduct, and thus, the other officers’ failure to intervene,

violated Bussey's right to be free from excessive force.

First, we agree with the district court that no decision from the United States

Supreme Court, this Court, or the Florida Supreme Court has clearly established

that use of pressure-point techniques, use of an officer’s knee to hold an

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individual’s head in place, or placing a pillowcase over an individual’s head,

constitutes excessive force under circumstances sufficiently similar to this case.

While Bussey-Morice cites a number of cases in support of her argument to the

contrary, none of these cases contain the necessary factual proximity that is

required to satisfy the analogue test for whether a right is clearly established.

Bussey-Morice relies heavily on Skrtich v. Thornton, 280 F.3d 1295 (11th

Cir. 2002), as support for her claim that Kennedy’s conduct constitutes an

established constitutional violation. In Skrtich, we concluded that the police

conduct at issue was unlawful because it consisted of violent force (kicking and

punching) used for the sole purpose of inflicting pain as punishment for past

disobedience. But Skrtich is distinguishable in important respects.

In Skrtich, the officers first disabled Skrtich with electric shock. Id. at 1299.

Skrtich fell to the ground and offered no physical resistance. Id. Yet the officers

kicked him repeatedly in the back, ribs, and side, and one officer punched him. Id.

at 1299-1300. When Skrtich fell, three times the officers lifted him onto his knees

and continued beating him. Id. at 1300. One officer watched and did nothing to

stop the beating. Id. In contrast, though the officers in Bussey’s case attempted to

restrain Bussey by tasing him, the tasing had no effect. Bussey continued to resist

violently. Unlike the officers in Skrtich, who allegedly beat Skrtich to punish him

and not to restrain him in accordance with the law, Officer Kennedy placed his

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knee on Bussey’s head and pulled a pillowcase over Bussey to gain control of

Bussey in a dangerous situation, when Bussey was spitting and physically resisting

efforts to restrain him. 1 While Bussey-Morice argues that Kennedy’s actions were

“[w]ithout cause or reason,” we find that no reasonable reading of the record

supports this conclusion. By all accounts, each of Kennedy’s actions were aimed at

the goal of bringing Bussey under control in a dangerous situation, not punishing

him.

Nor do any of the other cases on which Bussey-Morice relies regarding the

established unlawfulness of Kennedy’s conduct bear enough factual similarity for

us to find for Bussey-Morice under the first test. Consequently, Bussey-Morice

had to demonstrate that this case presents one of those rare circumstances in which,

as a matter of obvious clarity, Kennedy’s conduct violated the Fourth Amendment.

We find that she cannot.

Prevailing under this second test requires Bussey-Morice to show “that

every reasonable officer in [Kennedy’s] position would inevitably conclude that

1

In her opening brief, Bussey-Morice tells a somewhat different story. Specifically,

Bussey-Morice characterizes Kennedy as having “smash[ed]” Bussey’s head into the ground

with the entirety of his bodyweight and having “suffocate[ed]” Bussey with the pillowcase. But

this characterization is simply unsupported by the record. While we draw all reasonable

inferences in favor of Bussey-Morice, these inferences are not reasonable in light of the record.

And Bussey-Morice has pointed to no witness testimony or other evidence that supports the

conclusions that Kennedy smashed Bussey’s head into the hospital floor or Kennedy suffocated

Bussey with the pillowcase. Notably, no medical expert in this case, including Bussey-Morice’s

own expert, found any indication of head trauma or suffocation.

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the force was unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th

Cir. 1993). But Bussey-Morice has failed to establish this.

Bussey-Morice asserts that Kennedy’s actions were so “unwarranted,

unnecessary, excessive, and gratuitous” that the unlawfulness of his conduct must

have been “readily apparent” to him. Based on the complaint in this action,

Bussey-Morice appears to rest her conclusion on the assumption that Kennedy

acted in “bad faith,” “with malicious purpose,” or “in a manner exhibiting wanton

and willful disregard of human right, safety, or property.” Bussey-Morice points to

no evidence of record to support the notion that Kennedy’s actions were malicious

and obviously in violation of the Fourth Amendment.

Kennedy’s force increased gradually and in proportion to the degree of

resistance exercised by Bussey. Bussey had been resisting restraint from the

moment Kennedy arrived at the hospital. After Kennedy unsuccessfully attempted

to secure Bussey’s legs, Kennedy tried to restrain Bussey’s head with his hand. As

Bussey began to spit, Kennedy employed the pressure-point technique— a method

he learned during police training. Because the pressure-point technique was

unsuccessful, Kennedy pressed his knee into Bussey’s head—another method he

learned during police training. Finally, because Bussey continued to spit, Kennedy

used the pillowcase to cover Bussey’s head—yet another method he was taught in

training.

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In light of the fact that so many of Kennedy’s actions were both measured to

the degree of resistance exhibited and authorized as acceptable methods of police

practice, we cannot find, that as a matter of obvious clarity, Kennedy violated

Bussey’s Fourth Amendment rights.

2. The other officers’ failure to intervene did not violate Bussey’s clearly

established constitutional right

In the absence of excessive force, no duty to intervene exists. Crenshaw v.

Lister, 556 F.3d 1283, 1294 (11th Circ. 2009). Similarly, when an officer’s force

does not violate a clearly established right, other officers’ failure to intervene does

not violate a clearly established right. Because Kennedy’s conduct did not violate

one of Bussey’s clearly established rights, we must find that the other officers’

failure to intervene likewise did not violate one of Bussey’s clearly established

rights.

B. Sovereign Immunity

The district court granted the City of Rockledge’s motion for summary

judgment on sovereign immunity grounds. The district court reasoned that because

(1) Florida law protects cities with sovereign immunity when suits against their

employees allege “bad faith” or “malicious” conduct, and (2) because Bussey-

Morice alleged “malicious” conduct against the City of Rockledge police officers,

the City was entitled to sovereign immunity. For the reasons below, we agree.

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Florida Statute § 768.28(9)(a) provides Florida municipalities sovereign

immunity from liability arising out of instances where one of its’ “officer[s],

employee[s], or agent[s] acted in bad faith or with malicious purpose or in a

manner exhibiting wanton and willful disregard of human rights, safety, or

property.” Fla. Stat. § 768.28(9)(a); Keck v. Eminisor, 104 So. 3d 359, 366 (Fla.

2012).

It is undisputed that in multiple parts of Bussey-Morice’s complaint, she

charges the Rockledge police officers with “evil motive or intent and/or reckless or

callous indifference” with respect to Bussey’s life. Recognizing § 768.28(9)(a)’s

protection, the City of Rockledge raised this statute’s sovereign-immunity defense

in its Second Motion for Summary Judgment. In response to the City’s motion,

Bussey-Morice made no attempt to argue that § 768.28(9)(a) was inapplicable to

her wrongful-death claim against the City.

We note that Bussey-Morice’s complaint offers support for her argument

that her claim against the City of Rockledge was intended as an alternative and

inconsistent claim containing no allegation of “evil motive” or callous

indifference” with respect to the City’s officers. But Bussey-Morice did not make

this argument in her response to the City’s motion for summary judgment. In fact,

Bussey-Morice did just the opposite. She specifically described the officers as

having acted “maliciously”—a category of conduct that when alleged,

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automatically implicates sovereign immunity under § 768.28(9)(a). Fletcher v.

City of Miami, 567 F. Supp. 2d 1389, 1394 (S.D. Fla. 2008) (citing Willis v. Dade

Cty. Sch. Bd., 411 So. 2d 245, 246 (Fla. Dist. Ct. App. 1982)).

Bussey-Morice had a responsibility to raise her alternative-and-inconsistent-

claims argument in her response to the City’s motion for summary judgment. See

Johnson v. Bd. of Regents, 263 F.3d 1234, 1264 (11th Cir. 2001). That she did not

do. As a result, we do not consider the argument for the first time on appeal. As

we have explained, a party “cannot readily complain about the entry of a summary

judgment order that did not consider an argument they chose not to develop for the

district court at the time of the summary judgment motions.” Id.; see also Case v.

Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (citations omitted).

Even if it is true that Bussey-Morice raised her alternative and inconsistent

defense in her complaint, this court has expressly concluded that “a party may not

rely on his pleadings to avoid judgment against him.” Resolution Tr. Corp. v.

Dunmar Corp., 43 F.3d 587, 590 (11th Cir. 1995). See Case, 555 F.3d 1317, 1329.

See Hutton v. Strickland, 919 F.2d 1531, 1533 (11th Cir. 1990).

Because Bussey-Morice failed to properly raise her alternative-and-

inconsistent-claims theory below, she may not raise it now, for the first time on

appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1335 (11th Cir.

2004)—especially since she argued a position entirely inconsistent with the one

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she now advocates: that the officers acted bad faith, malicious purpose, or wanton

and willful disregard with respect to her battery claim. We therefore must

AFFIRM 2 the District Court’s order.

V. Conclusion

For the reasons we have discussed, we affirm the district court’s granting of

summary judgment to Defendant Officers on the basis of qualified immunity, as

well as the district court’s entry of summary judgment for the City of Rockledge

on the basis of sovereign immunity.

AFFIRMED.

2

Although we affirm the district court’s decision with regard to qualified immunity and

sovereign immunity, we do not find Bussey-Morice’s appeal to be frivolous or sanctions to

otherwise be appropriate. We therefore DENY Defendants’ motion for sanctions.

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