holding that “[d]isorderly conduct is not a serious offense”
How later courts described this case
- holding that “[d]isorderly conduct is not a serious offense”
Written by the judges who cited it.
The opinion
Case: 16-16166 Date Filed: 01/04/2018 Page: 1 of 20
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________________________
No. 16-16166
______________________________
D.C. Docket No. 5:14-cv-00364-MTT
DEEANN HORN,
Plaintiff - Appellee
versus
WILLIAM BARRON,
Officer of former Macon Police Department,
Defendant - Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Georgia
______________________________
(January 4, 2018)
Before MARCUS and NEWSOM, Circuit Judges, and BUCKLEW, * District Judge.
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
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PER CURIAM:
In this civil rights case, Defendant William Barron (“Officer Barron”), a
police officer in the City of Macon, Georgia, appeals from the district court’s denial
of his motion for summary judgment on the basis of qualified immunity. Plaintiff,
DeeAnn Horn (“Horn”), claims that Officer Barron violated her rights under the
Fourth Amendment when he arrested her for disorderly conduct at a Luke Bryan
concert in the Central City Park in Macon. The district court found that genuine
issues of material fact barred summary judgment because the evidence conflicted on
whether Horn resisted arrest and, therefore, whether the amount of force used in the
arrest was necessary. Officer Barron then appealed to this Court. Given the facts of
this case and the law from this Circuit on this issue in cases with materially similar
facts, we conclude that Officer Barron is entitled to qualified immunity on Horn’s
excessive force claim. Accordingly, we reverse and remand for further proceedings
consistent with this opinion.
I.
A.
On October 13, 2012, Horn attended a Luke Bryan concert with her
ex-husband Kevin Horn, her 12-year-old daughter and 18-year old daughter. The
concert promoters hired approximately 30 uniformed police officers to assist with
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security and to enforce the law at the concert that night. Officer Barron was hired by
the concert promoters, along with fellow Macon Police Officers Jason Bray
(“Officer Bray”) and Deborah Taylor (“Officer Taylor”). According to Officer Bray,
the concert “was chaotic” with “anywhere between 15,000 to 20,000 people at this
event.”
Horn and her family arrived at the park around 2:00 p.m. and tailgated until
approximately 7:00 p.m., when the gates opened to the concert. She claims that she
drank only two beers during that time. After the gates opened, Horn and her family
made their way as close to the stage as they could get. By the time Horn and her
family made their way to the stage, a large crowd had already amassed together,
standing shoulder-to-shoulder. Once the opening act started, three young women
(ages 18 or 19) tried to push past Horn and her family in order to move closer to the
stage. One of the women pushed Horn into the person in front of her, and Horn
shoved the woman back. Horn and that woman then exchanged “heated words,”
including “bitch” and possibly “the F-word,” for one to two minutes. There were
young children present. Shortly thereafter, two security officers approached Horn
and told her to go with them, but Horn refused to leave. She told them that she had
done nothing wrong and that the one young woman, who was nowhere to be found at
this point, was the one who had pushed her.
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These two security officers then informed Officers Bray and Taylor that Horn
had shoved another woman and that Horn was refusing to leave with them.
Officers Bray and Taylor then approached Horn and she refused to leave with them
as well. They testified in their depositions that she stated, “I didn’t do any fucking
thing. This is bullshit” and then twice said “this is fucking bullshit. I’m not going
anywhere.” Officer Bray described Horn as being “uncooperative” and “very
belligerent,” and Officer Taylor described Horn as “loud and belligerent” and
“acting a fool.” Officer Bray testified that while Horn was using profanity, there
were several young kids and several adults around, and that “maybe” three kids were
under the age of fourteen. Officer Taylor testified that “probably two or three”
children under the age of 12 were around. Kevin Horn testified in his deposition that
there were men, women, and children of all ages around.
While Officer Bray escorted Horn out of the concert, Officer Taylor, who
walked behind them, said Horn consistently pulled her arm away from Officer Bray.
Horn denied that she resisted and testified in her deposition that Officer Bray
“dragged her through the crowd.” According to Horn, when they reached the gate,
Officers Bray and Taylor “slung [her] out.” Horn stayed at the exit to learn why she
was being ejected. Officer Barron, who was not involved in escorting Horn out of
the concert, was already near the gate and stayed to watch Horn because he “wasn’t
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sure if [Officer Bray] was . . . finished with her.” Officer Bray testified in his
deposition that he intended to write Horn a citation for disorderly conduct because
she “used profane language in front of kids under fourteen years of age,” but before
he was able to do so, he had to attend to another concert-goer who had poured a beer
down his shirt as he was removing Horn from the concert.
While Horn was being escorted out of the concert, two of the young women
who were involved in the physical altercation with Horn approached Officer Barron
and told him they had been assaulted. One said she had been grabbed around the
throat and choked. The other had a bloody nose and contusions in her eye area. The
women explained that this altercation came about “because they were breaking in
line, getting closer to the stage [] than the suspect was, and that made [the assailant]
mad.” The women identified Horn as the assailant. Horn’s daughters heard the
young women identify Horn as the one who had hit them. Officer Barron only knew
about Horn’s alleged physical altercation because these two women told him about
it. He did not witness the event, nor did he speak with Officers Bray and Taylor
about why they were escorting Horn from the concert.
Horn testified in her deposition that while she was at the park’s exit gate, she
was “pissed off” that no one ever asked her what happened or explained why she had
been removed from the concert. Officer Barron testified in his deposition that Horn,
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who was 10 feet away from him, “was telling [him] to ‘fuck off’ and ‘fuck you’ and
‘I didn’t do a fucking thing’” and pointing her finger to him. He also testified that he
“didn’t know if [Horn] was going to attack [him] when she started throwing the
profanities out at [him]” and “walk[ing] toward [him].” Horn admits that while she
cannot remember every word she said, she did use profanity and said “don’t y’all
want to know what f’ing happened; why am I the one that can’t stay in the concert;
there’s two sides to the story; where’s the girl; don’t y’all want to know what my
side of the story is; don’t y’all want to know what happened.” She stated that she was
“25, 30” feet away from Officer Barron at this time. Kevin Horn testified in his
deposition that Horn said, “why the fuck do I got to be thrown out?” and “why do we
got to fucking leave?” Officer Taylor was also in the area, but she testified in her
deposition that she did not recall hearing Horn use any profanity while she was
yelling from the gate.
Officer Barron decided to arrest Horn for disorderly conduct and, thus,
approached her and took hold of her left arm. Officer Barron did not announce to
Horn that she was under arrest or that he was going to handcuff her. As Officer
Barron was attempting to arrest Horn, she pulled her arm away from him. Officer
Barron then used a soft hands, straight arm bar takedown technique in order to gain
control of Horn, by which he took hold of her left arm, put his right arm over it, and
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brought her to the ground using gravity and his own weight. Horn claims that a bone
in her arm snapped when she hit the ground.
Once Horn was on the ground, Officer Barron put his knees in her back to
handcuff her, but before he could do so, Kevin Horn grabbed him from behind. At
that point, Officer Barron released Horn’s left arm because Kevin Horn was choking
him. Officers Bray and Taylor quickly managed to subdue Kevin Horn, and then
Officer Barron handcuffed Horn in front of her body because she said her arm was
dislocated. Horn was subjected to no further exercise of force during her detention.
Officer Bray wrote a disorderly conduct citation for Horn, and then he and Officer
Taylor escorted her to jail. Later that night, Officer Barron wrote another disorderly
conduct citation for Horn. At booking, Horn never requested medical care, but after
being released, she went to the emergency room and underwent a CT scan that
revealed she had a broken left humerus, for which she then underwent surgery.
During his Internal Affairs interview regarding the incident, Officer Barron
stated that as a result of Horn cussing and pointing at him, he “went and placed . . .
[Horn] into custody for disorderly conduct [and] grabbed her left arm.” He later
testified in his deposition that he was initially unable to place her in handcuffs
because “[s]he jerked away and started walking away from [him],” and she got 14–
15 feet away from him before he was able to grab her arm again and take her to the
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ground. Officer Taylor told Internal Affairs that she saw Horn “actively resisting”
Officer Barron and testified in her deposition that she saw Horn “intentionally
br[eak] out of his hold so she could walk in the opposite direction.” Horn’s older
daughter stated in her Internal Affairs interview that Horn “snatched back or moved
back from him” when Officer Barron “put his hands on” Horn, and her 12-year-old
daughter said Horn “hit back” after Officer Barron “put his hands on” her and “kind
of pushed her.” Horn disputes her daughters’ accounts of the events. She stated to
Internal Affairs that she would have complied with Officer Barron had he told her
she was under arrest, but then later testified in her deposition that she did not resist
and was “totally compliant.”
B.
On October 10, 2014, Horn filed the underlying lawsuit in the district court.
She asserted federal claims pursuant to 42 U.S.C. § 1983 for failure to train and
supervise against the Macon Police Department and Macon-Bibb County. She
asserted federal claims for unlawful arrest in violation of the Fourth Amendment,
retaliation in violation of the First Amendment, and retaliation and excessive force
in violation of the Fourth Amendment against Officers Bray, Taylor, and Officer
Barron. She asserted state law claims for negligent hiring, training, supervision, and
retention against the Macon Police Department and Macon-Bibb County. She
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asserted state law claims for false arrest, false imprisonment, assault, and battery
against Officers Bray, Taylor, and Barron. The district court granted Defendants’
motion for final summary judgment as to all of the claims except for the Fourth
Amendment excessive force claim against Officer Barron. Officer Barron asserted
qualified immunity as a defense, a defense that the district court rejected based on
the existence of genuine issues of material fact.
II.
Although the district court must view the evidence in the light most favorable
to the non-moving party, summary judgment may be entered in favor of the movant
“if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual
dispute is not genuine unless, based on the evidence presented, “a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Therefore, a
plaintiff must put forth sufficient evidence to “persuade the court that a reasonable
fact finder could rule in the plaintiff=s favor.” Raney v. Vinson Guard Serv., Inc., 120
F.3d 1192, 1198 (11th Cir. 1997). We review de novo a district court’s disposition of
a summary judgment motion based on qualified immunity, applying the same legal
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standards as the district court. Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir.
2015) (citations omitted).
Officer Barron argues that the district court erroneously found that Horn put
forth sufficient evidence to create a material issue of fact about whether she resisted
arrest and, therefore, whether the use of force was unreasonable and in violation of
clearly established law. We agree. It is well-established that qualified immunity
protects government officials unless they violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)
(citations omitted). We have ruled that “only in exceptional cases will government
actors have no shield against claims made against them in their individual
capacities.” Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th
Cir. 1998) (quoting Lassiter v. Ala. A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)
(en banc)). 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. Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97 L.
Ed. 2d 523 (1987). Supreme Court precedent provides that “[t]he protection of
qualified immunity applies regardless of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and
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fact.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d
565 (2009) (internal quotation marks and citation omitted). Whether a defendant is
entitled to qualified immunity is a question of law; in other words, whether the law at
the time of the incident was clearly established so that a reasonable person should
have known that he was violating it. See Courson v. McMillian, 939 F.2d 1479,
1487–88 (11th Cir. 1991).
To receive qualified immunity, the public official must first show that he was
acting within the scope of his discretionary authority at the time the allegedly
wrongful acts occurred. See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(citation omitted). It is undisputed in this case that Officer Barron was acting within
the scope of his discretionary authority while providing security and keeping the
peace at a public venue. The burden therefore shifts to Horn to show that qualified
immunity should not apply. See Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir.
2012).
In order to find that Officer Barron is susceptible to suit, we must answer two
questions in the affirmative. One, “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer[s’] conduct violated a
constitutional right?” Saucier v. Katz, 533 U.S. 194, 201,121 S. Ct. 2151, 2156, 150
L. Ed. 2d 272 (2001), modified, Pearson, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d
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565 (holding that courts need not address Saucier’s two prongs in sequential order).
And two, was that right “clearly established”? Saucier, 533 U.S. at 201, 121 S. Ct. at
2156.
The inquiry “must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Ferraro, 284 F.3d at 1194 (quoting Saucier, 533
U.S. at 201, 121 S. Ct. at 2156. In Saucier, the Supreme Court noted that “[i]f no
constitutional right would have been violated were the allegations established, there
is no necessity for further inquiries concerning qualified immunity.” 533 U.S. at
201, 121 S. Ct. at 2156. However, if a constitutional right would have been violated
under the plaintiff’s version of the facts, the court must then determine whether the
right was clearly established. See id.
A plaintiff “can demonstrate that the contours of the right were clearly
established in several ways.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012).
First, a plaintiff can show that “a materially similar case has already been decided.”
Id. (internal quotations marks and citations omitted). Second, a plaintiff can point to
a “broader, clearly established principle [that] should control the novel facts [of the]
situation.” Id. (alteration in original) (internal quotation marks and citation omitted).
“Finally, the conduct involved in the case may so obviously violate[] th[e]
constitution that prior case law is unnecessary.” Id. (alterations in original) (citation
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omitted). “Exact factual identity with a previously decided case is not required, but
the unlawfulness of the conduct must be apparent from pre-existing law.” Coffin v.
Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (citations omitted).
Horn does not dispute that Officer Barron had probable cause to arrest her for
disorderly conduct. Rather, she argues that the amount of force used by Officer
Barron to effectuate her arrest, when viewed in the light most favorable to her, was
illegally disproportionate under the circumstances and, therefore, violated her
Fourth Amendment rights. We have held that “[t]he 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.” Ferraro, 284 F.3d at 1197
(citing Graham v. Connor, 490 U.S. 386, 394–95, 109 S. Ct. 1865, 1871, 104 L. Ed.
2d 443 (1989)). The question for us to consider is whether the officer’s conduct is
“objectively reasonable in light of the facts confronting the officer.” Mobley v. Palm
Beach Cty. Sheriff Dep’t, 783 F.3d 1347, 1353 (11th Cir. 2015) (citation omitted).
We begin by observing that “[w]hen an officer lawfully arrests an individual for the
commission of a crime, no matter how minor the offense, the officer is entitled under
controlling Supreme Court precedent to effectuate a full custodial arrest.” Ferarro,
284 F.3d at 1196 (internal quotation marks and citation omitted).
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Because the “objective reasonableness” standard applied to an officer’s
conduct is not capable of precise definition or mechanical application, factors to be
considered “includ[e] the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether [s]he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396,
109 S. Ct. at 1872. Courts should also consider “the need for the application of force,
. . . the relationship between the need and amount of force used, and . . . the extent of
the injury inflicted.” Mobley, 783 F.3d at 1353 (omissions in original) (quoting
Ferraro, 284 F.3d at 1198). “The ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 396 S. Ct. at 1872 (citation
omitted). Courts must keep in mind that “[o]fficers facing disturbances ‘are often
forced to make split-second judgments—in circumstances that are tense, uncertain,
and rapidly-evolving.’” Kingsley v. Hendrickson, ___ U.S. ___, ___, 135 S. Ct.
2466, 2474, 192 L. Ed. 2d 416 (2015) (quoting Graham, 490 U.S. at 397, 109 S. Ct.
1865).
The use of gratuitous force when a suspect is not resisting arrest violates the
Fourth Amendment. See Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).
However, “the application of de minimis force, without more, will not support an
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excessive force claim” and “will not defeat an officer’s qualified immunity.” Nolin
v. Isbell, 207 F.3d 1253, 1257–58 (11th Cir. 2000).
In denying summary judgment on qualified immunity, the district court
concluded that this case presents two contradictory versions of what happened,
Horn’s version being that Officer Barron’s use of force on her was gratuitous insofar
as she merely pulled her arm away from him as a reflex to his touch and was not
resisting him, and Officer Barron’s version being that Horn resisted his efforts to
seize her by jerking or snatching her arm out of his hold. Citing Hall v. Bennett, 447
F. App’x 921, 924 (11th Cir. 2011), for the proposition that “two competing
contradictory stories of what happened” creates a question of fact, the district court
concluded that a question of fact existed as to whether the force Officer Barron used
in arresting Horn was reasonable because, according to Horn, she was “totally
compliant.”
The district court determined that under Horn’s version of events, the majority
of the “objective reasonableness” factors weighed in her favor. With respect to the
severity of her crime, it is undisputed that Officer Barron arrested Horn for a
non-serious offense, disorderly conduct. Fils v. City of Aventura, 647 F.3d 1272,
1288 (11th Cir. 2011) (holding that “[d]isorderly conduct is not a serious offense”).
Although Horn gave a statement to Internal Affairs that she would have complied
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with Officer Barron had he told her she was under arrest, seemingly conceding that
she resisted Officer Barron, she later testified in her deposition that she was “totally
compliant,” denied that she ever resisted Officer Barron, and disputed her daughters’
versions of the events. Thus, according to Horn, she was not actively resisting arrest
or attempting to flee, and there was no need for force beyond that which is ordinarily
necessary to effectuate the arrest of a compliant individual. The district court then
found that if the facts are credited to Horn, a reasonable jury could find that Horn’s
crime was not severe, that she was not resisting arrest or attempting to flee and
simply pulled her arm towards herself in response to Officer Barron’s touch, that the
amount of force from the takedown was disproportionate to the need for such force,
and that the use of force caused severe injury. We disagree.
Even assuming that Horn was totally compliant with Officer Barron, he was
allowed to use some force in effecting her arrest. And, even if the force applied by
Officer Barron in effecting Horn’s arrest—a soft hands, straight arm bar takedown
technique, by which he gained control of her by taking hold of her left arm, putting
his right arm over her left arm, and using gravity and his own weight to bring her to
the ground—was unnecessary, it was not unlawful. Horn was not restrained at the
time the force was applied by Officer Barron. For that reason, the cases on which the
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district court relied for its denial of summary judgment on qualified immunity are
distinguishable from Horn’s case.
In Hadley, for example, the suspect had already been securely handcuffed
when the officers punched him in the stomach. 526 F.3d at 1327. In Slicker v.
Jackson, 215 F.3d 1225 (11th Cir. 2000), the officers slammed the suspect’s head
into the pavement and kicked him repeatedly after he was handcuffed and not
resisting. Id. In Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), an officer
deployed pepper spray against a suspect who was already restrained in the back of a
patrol car. Id. In Fils, the suspect raised his hands and took a step back from the
officer when he saw the officer was pointing a taser at him. 647 F.3d at 1277. Two
officers then tased him, and, after he was compliant and lying on the floor, one of
them then grinded a contact taser into his neck. Id. And, finally, in Popham v. City of
Kennesaw, 820 F.2d 1570 (11th Cir. 1987), the case that is the most factually similar
to Horn’s, the plaintiff was shoved to the floor by one officer when he pulled his arm
away, tackled by another officer, and then, after he was on the floor, not fighting
back, officers choked him, kneed him in the groin, yanked his legs, and bent back his
wrists. Id.
All of these cases present instances of gratuitous and sadistic force used
against compliant suspects. Here, however, Horn was not restrained and had,
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undisputedly, pulled her arm away from Officer Barron. The force that Officer
Barron used, therefore, was not gratuitous. For these reasons, none of the cases
relied upon by the district court would put Officer Barron on notice that he could not
use a soft hands, straight arm bar takedown technique to handcuff Horn when she
admits she pulled her arm away from him.
The force used here by Officer Barron was no more severe than the force
that we have described as de minimis and lawful in other materially similar cases.
For example, in Durruthy v. Pastor, 351 F.3d 1080 (11th Cir. 2003), the plaintiff
brought a claim of excessive force against a police officer who “force[d] [the
plaintiff] down to the ground and plac[ed] him in handcuffs.” Id. at 1094. We
reversed the denial of qualified immunity because we concluded that the officer
used only de minimis force to arrest the plaintiff. Id. In Croom v. Balkwill, 645
F.3d 1240 (11th Cir. 2011), the plaintiff brought a claim of excessive force against
a deputy sheriff who forced the plaintiff to the ground from a squatting position
and held her there with a foot (or knee) in the back for up to ten minutes. We
affirmed the district court’s grant of summary judgment in favor of the defendant
on the basis that the force used against the plaintiff, even if unnecessary, was de
minimis. Id. And, in Myers v. Bowman, 713 F.3d 1319 (11th Cir. 2013), the
plaintiff brought a claim of excessive force against a deputy sheriff who “grabbed
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[the plaintiff] by the arm, forced him to the ground, placed him in handcuffs” and
“held [him] to the ground for less than one minute before he helped [him] to his
feet.” Id. at 1328. We affirmed the district court’s grant of summary judgment in
favor of the defendant because the force used against the plaintiff was de minimis.
Id.
Here, Horn was admittedly “pissed off” and shouting obscenities about
being removed from the concert. Although Horn’s crime was not severe, a
reasonable officer in Officer Barron’s position could think she posed a threat to
himself, other officers, and other concert-goers. Although Horn was not disobeying
a lawful command when she admittedly pulled her arm away from Officer Barron,
a reasonable officer confronted with these facts would still be entitled to think that
she was resisting and posed a threat of resisting further, given her prior volatile and
aggressive behavior. Police officers are often called upon to make split-second
judgments “in circumstances that are tense, uncertain, and rapidly-evolving,” and
the typical arrest involves some force and injury. See Kingsley, ___ U.S. at ___, 135
S. Ct. at 2474 (2015) (quoting Graham, 490 U.S. at 397, 109 S. Ct. 1865). Therefore,
Officer Barron was entitled to use some degree of force to put her in the
handcuffing posture. Officer Barron used a minimal level of force—a soft hands,
straight arm bar takedown technique—to do so. He did not use a weapon, he did
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not hit, punch, or kick her, he did not have assistance from multiple officers, he did
not “throw” Horn to the ground with intentional, or gratuitous, unwarranted force,
nor did he use any force against her after she was on the ground. He did not use
any force intended to cause injury; rather, Horn’s injury was the unfortunate result
of Officer Barron’s reasonable use of force. In light of the foregoing, the district
court’s denial of Officer Barron’s motion for summary judgment on the basis of
qualified immunity is erroneous.
III. CONCLUSION
Accordingly, we reverse the decision of the district court and remand with
instructions to grant Defendant-Appellant William Barron’s motion for summary
judgment.
REVERSED AND REMANDED.
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