Marie Butler v. Bob Gualtieri

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12136

____________________

MARIE BUTLER,

Plaintiff-Appellee,

versus

BOB GUALTIERI,

as Sheriff of Pinellas County, in his official capacity,

Defendant-Appellant,

AMY GEE,

in her individual capacity, et al.,

Defendants.

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2 Opinion of the Court 21-12136

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:19-cv-02771-TPB-TGW

____________________

Before NEWSOM and MARCUS, Circuit Judges, and MIDDLEBROOKS,*

District Judge.

MARCUS, Circuit Judge:

On January 8, 2019, Marie Butler (“Butler”) was having a bad

night. After she consumed too much rum and started screaming at

her husband outside her house, her neighbors called the police.

The next thing she knew, she was arrested and transported to the

county jail. But the worst was still to come. While Butler stood,

intoxicated and handcuffed, at the booking counter, former deputy

sheriff Amy Gee (“Gee”) pushed Butler onto a concrete floor. The

impact broke Butler’s left arm, and she found herself sitting in the

hospital as her difficult day finally came to a close.

In response to a complaint from Butler’s husband, the Pinel-

las County Sheriff’s Office (“PCSO”) investigated the incident and

terminated Gee’s employment. A few months later, Butler sued

PCSO Sheriff Bob Gualtieri (“Gualtieri”), among others, in the

* Honorable Donald M. Middlebrooks, United States District Judge, for the

Southern District of Florida, sitting by designation.

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21-12136 Opinion of the Court 3

Middle District of Florida, alleging several state and federal consti-

tutional claims. The parties now agree that Gee behaved inappro-

priately on the night of January 8, but disagree over whether Gee’s

behavior was so egregious that Gualtieri could not be held liable

for it. Put differently, this interlocutory appeal centers entirely on

whether Gualtieri is, as a matter of law, entitled to sovereign im-

munity with respect to Butler’s state law battery claim. At this

stage in the proceedings, we conclude that there is a genuine dis-

pute of material fact as to whether Florida’s sovereign immunity

statute protects Sheriff Gualtieri. We affirm.

I.

A.

The entire case stems from an altercation that lasted less

than a minute. Taking the evidence in the light most favorable to

the non-moving party (as we must), these are the essential facts.

On January 8, 2019, PCSO Deputy Sheriff Matthew Schultheis

(“Schultheis”) arrested Butler in Largo, Florida for “disorderly in-

toxication,” a second-degree misdemeanor. Schultheis transported

Butler to the Pinellas County Jail and brought her inside in hand-

cuffs. At around 9:40 p.m., former Deputy Sheriff Gee took hold

of Butler’s right arm and led her to the jail’s booking area; Schul-

theis followed closely behind.

Schultheis was standing about one foot behind Butler and

Gee when Deputy Sheriff Rodney Mitchell (“Mitchell”) walked

over to the booking counter and began the booking process.

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4 Opinion of the Court 21-12136

Butler, still handcuffed, was standing to the left side of Gee. In a

video recording of the booking area, Butler appeared quiet and un-

responsive, ignoring a question that Gee asked her. Suddenly, But-

ler shifted to the left, away from Gee, and Gee immediately pulled

Butler back to the right. In the video, Gee can be heard saying,

“Don’t pull away from me, okay?” A second later, Butler moved

her body farther to the left, while also stepping away from Gee

with her left foot.

Gee responded instantly, grabbing hold of Butler, placing

her right foot behind Butler’s legs, and knocking Butler down to

the concrete floor. In the video of the incident, Gee’s hand ap-

peared to be close to Butler’s neck while Gee was placing her foot

behind Butler’s legs, but it is unclear whether Gee’s hand actually

touched Butler’s neck. It is also unclear whether Gee’s hand re-

mained in that position while Butler was falling, as Gee’s body

blocked the view of Butler’s upper body. Butler fell on her left side,

and as Gee rolled Butler onto her stomach, Gee exclaimed, “Are

you fucking kidding me?” After she fell, Butler began crying and

yelling, but her precise statements are unintelligible.

Immediately thereafter -- “within 3 seconds” of Butler’s fall

-- three other deputies moved toward the scene and “were standing

around Gee.” Gee pulled Butler up to a standing position by lifting

her left arm, while another officer lifted Butler by her right arm.

Butler, however, had injured her left arm when she fell on the con-

crete floor. Later that night, police officers took her to the hospital,

where she was diagnosed with a fractured left humerus.

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After Butler’s husband filed a complaint with the Sheriff’s

Office, the PCSO Administrative Investigation Division’s Profes-

sional Standards Bureau began investigating Gee’s takedown of

Butler. The inquiry involved “interview[ing] 20 witnesses, includ-

ing Plaintiff and Gee, and review[ing] video; reports; photographs;

PCSO’s General Orders; Gee’s training records and employee eval-

uations; and medical documentation.” The PCSO ultimately con-

cluded that Gee had violated a PCSO policy that required individ-

uals who were in custody to “be kept secured and treated hu-

manely and [ ] not be subjected to physical abuse.” Gee was termi-

nated on April 5, 2019.

Prior to her termination, in an interview with the PCSO’s

Professional Standards Bureau, Gee testified that she thought But-

ler did not want to cooperate in the intake process and had “force-

ful[ly]” pulled away from her, and in response, Gee had “redi-

rect[ed]” Butler to the floor. However, Gee explained that, at the

time of the takedown, she was not worried that Butler would hurt

her. Gee also admitted that (1) “she did not have control over

Plaintiff during the takedown”; (2) “the likelihood Plaintiff would

be hurt when Gee tripped and pushed her backward to the con-

crete was good”; and (3) “her use of force was not reasonable under

the totality of the circumstances.” Both Butler and Gualtieri agree

that “Gee’s use of force was unnecessary; unreasonable; excessive;

without just cause; intentional; and without provocation.”

During the interview, Gee insisted that she was not upset,

frustrated, or agitated at the time of the takedown. She explained

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6 Opinion of the Court 21-12136

that she said, “are you fucking kidding me?” during the takedown

because she was “disappointed” that Butler had escalated a simple

intake process. Gee claimed she was “upset with [her]self” after

learning about Butler’s broken arm, because she had not intended

to “inflict[] pain on someone in that nature.”

The PCSO’s Professional Standards Bureau also interviewed

several other police officers. Schultheis, who was standing right

behind Butler at the booking counter, explained that it is “uncom-

mon” for an officer to use force on an arrestee who was brought in

because of a domestic disturbance, but he thought Gee had per-

formed “a relative [sic] normal takedown.” Schultheis also testified

that he did not recall whether Butler had resisted Gee’s hold while

standing at the intake counter. However, Deputy Sheriff Mitchell,

who was standing at the booking counter, said that Butler was

“pulling away” from Gee at the intake counter and Gee had in-

structed her to stop pulling away. He opined, however, that Gee’s

takedown of Butler might not have been “necessary.” He also tes-

tified that the incident with Butler was Gee’s “first use of force” and

“[s]he was kind of nervous about it.”

Multiple officers testified that they generally saw two indi-

viduals fall to the ground in the intake room, but their views of that

room were blocked. They also offered statements about Gee’s

character: Several officers stated that generally she had a calm de-

meanor, this was her first use of force, and she appeared “shocked”

after the takedown.

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21-12136 Opinion of the Court 7

The Sheriff, Bob Gualtieri, was the furthest removed from

the incident. There is no indication that he personally knew Gee

or was present at the Pinellas County Jail on January 8, 2019, but,

without having been qualified as an expert, he later watched the

video of the takedown and offered various opinions about it. Based

on the video, Gualtieri opined that Butler did not resist Gee at the

intake counter, but was simply “an intoxicated person who was sit-

ting there off balance, swaying.” He added that it was “wrong” and

“malicious” for Gee to “take somebody who’s handcuffed behind

their back and slam them to the ground.” Gualtieri also offered his

view that “it’s clear that [Gee] intentionally grabbed [Butler] by the

neck and slammed her to the ground.”

B.

Butler’s Second Amended Complaint, filed in federal district

court on August 20, 2020, featured state law battery (Count I) and

negligence (Count II) claims against Sheriff Gualtieri in his official

capacity, along with excessive use of force claims in violation of the

Fourth and Fourteenth Amendments against Gee in her individual

capacity, pursuant to 42 U.S.C. § 1983 (Counts III-IV), and a § 1983

claim of excessive force against the Sheriff in his official capacity

(Count V).

Only one of Butler’s claims -- the state law battery claim

against the Sheriff in his official capacity -- is at issue in this inter-

locutory appeal. The district court denied the Sheriff summary

judgment on this claim, concluding that there is “a genuine issue

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8 Opinion of the Court 21-12136

of material fact” as to whether Florida’s sovereign immunity law

protects Gualtieri.

This interlocutory appeal followed.

II.

A.

We are required to “review de novo our appellate jurisdic-

tion,” Thomas v. Phoebe Putney Health Sys., Inc., 972 F.3d 1195,

1200 (11th Cir. 2020), because “[w]e have a duty to assure ourselves

of our jurisdiction at all times in the appellate process,” id. (quoting

Overlook Gardens Props., LLC v. ORIX USA, L.P., 927 F.3d 1194,

1198 (11th Cir. 2019)) (quotation marks omitted).

Additionally, we review the denial of summary judgment de

novo, “applying the same legal standard the district court used.”

McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994). Summary

judgment is warranted only when, “after construing the evidence

in the light most favorable to the non-moving party, we find that

no genuine issue of material fact exists and the moving party is en-

titled to judgment as a matter of law.” Sorrels v. NCL (Bahamas)

Ltd., 796 F.3d 1275, 1286 (11th Cir. 2015) (quoting Alvarez v. Royal

Atl. Devs., Inc., 610 F.3d 1253, 1263–64 (11th Cir. 2010)) (quotation

marks omitted). At summary judgment, the key issue is “whether

the evidence presents a sufficient disagreement to require submis-

sion to a jury or whether it is so one-sided that one party must

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21-12136 Opinion of the Court 9

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251–52 (1986).

“Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge,” so they are not appropriate deter-

minations to make at the summary judgment stage. Anderson, 477

U.S. 255. Rather, “[t]he evidence of the non-movant is to be be-

lieved, and all justifiable inferences are to be drawn in his favor.”

Id. Summary judgment may be inappropriate even where the par-

ties agree on the basic facts, but disagree about the inferences that

should be drawn from these facts. Lighting Fixture & Elec. Supply

Co. v. Cont’l Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969). 1

B.

As a preliminary matter, we are satisfied we have jurisdic-

tion to consider this interlocutory appeal. Our conclusion is based

on the Florida Supreme Court’s most recent pronouncement that

Florida’s sovereign immunity law provides qualifying government

officials with immunity from both suit and liability. See Florida

Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020).

It is well established that generally we have jurisdiction over

only final decisions issued by district courts. See 28 U.S.C. § 1291.

1 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)

(explaining that decisions issued by the Fifth Circuit prior to September 30,

1981 “shall be binding as precedent in the Eleventh Circuit”).

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10 Opinion of the Court 21-12136

However, the collateral order doctrine is an exception through

which we may consider an interlocutory order that “(1) conclu-

sively determines an important issue that is both (2) completely

separate from the merits of the case and (3) effectively unreviewa-

ble on appeal from a final judgment.” Parker v. Am. Traffic Sols.,

Inc., 835 F.3d 1363, 1367 (11th Cir. 2016).

We’ve applied the collateral order doctrine to rulings on

qualified immunity, which is a doctrine -- similar to sovereign im-

munity -- that can protect government officials who are sued in

their individual capacities. Id. at 1365, 1367. As we have explained,

because qualified immunity is designed to protect certain govern-

ment officials from both liability and suit, if the denial of qualified

immunity could not be reviewed on an interlocutory basis, the pro-

tection provided by qualified immunity would be “irretrievably

lost[.]” Id. at 1367 (quoting Mitchell v. Forsyth, 472 U.S. 511, 525–

27 (1985)). Thus, we regularly review rulings on qualified immun-

ity at the interlocutory appeal stage.

We use the same analytical approach when considering

whether to review on an interlocutory basis rulings involving Flor-

ida’s sovereign immunity statute, which must be interpreted pur-

suant to state law. See CSX Transp., Inc. v. Kissimmee Util. Auth.,

153 F.3d 1283, 1286 (11th Cir. 1998) (“[W]e are bound by [the ap-

plicable] state court’s determination of the substantive limits of the

state’s sovereign immunity protection.”). So, in Parker v. Ameri-

can Traffic Solutions, Inc., we explained that “an order denying

state official or sovereign immunity is immediately appealable if

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21-12136 Opinion of the Court 11

state law defines the immunity at issue to provide immunity from

suit rather than just a defense to liability.” Parker, 835 F.3d at 1367

(emphases added). Because our prior opinions have interpreted

Florida’s sovereign immunity law as providing a defense to liability

only, we have consistently barred interlocutory appeals from the

denial of sovereign immunity. See, e.g., id.; CSX, 153 F.3d at 1286.

However, Florida’s legal landscape on sovereign immunity

was clarified in 2020 when the Florida Supreme Court decided Flor-

ida Highway Patrol v. Jackson. See 288 So. 3d at 1185. There, Flor-

ida’s high court conclusively established the scope and meaning of

its sovereign immunity statute:

In Florida, sovereign immunity is both an immunity

from liability and an immunity from suit. . . . No-

where [ ] did this Court explicitly characterize sover-

eign immunity as only an immunity from liability.

Id. (emphasis removed) (citations omitted).

In this diversity case arising under Florida law, we are Erie-

bound2 by the Florida Supreme Court’s reading of its sovereign

immunity law. According to binding case law, Florida’s sovereign

immunity statute affords protection, in an appropriate case, from

both liability and suit. We are now obliged to consider the denial

2 See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

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of sovereign immunity on an interlocutory basis, and we have ju-

risdiction to address Sheriff Gualtieri’s appeal. 3

C.

Turning to the merits of Gualtieri’s appeal, the district court

concluded that there is a genuine dispute of material fact concern-

ing whether Florida’s sovereign immunity statute protects the

Sheriff from suit on the state law battery claim. We agree.

Florida’s sovereign immunity law provides:

The state or its subdivisions are not liable in tort for

the acts or omissions of an officer, employee, or agent

committed while acting outside the course and scope

of her or his employment or [1] committed in bad

faith or [2] with malicious purpose or [3] in a manner

exhibiting wanton and willful disregard of human

rights, safety, or property.

FLA. STAT. § 768.28(9)(a). Inasmuch as Sheriff Gualtieri can escape

liability if Gee’s actions were sufficiently egregious, at this stage in

the proceedings, the parties adopt what appear to be

3 We also GRANT Gualtieri’s motion to strike Butler’s supplement to her mo-

tion to dismiss. In that supplemental filing, Butler reiterates her claim that we

lack jurisdiction over this interlocutory appeal, and she attaches a recent Elev-

enth Circuit decision that is not relevant to her jurisdictional argument. We

decline to consider Butler’s supplemental filing, because it does not comply

with the Federal Rules of Appellate Procedure. See Fed. R. App. P. 27(a)(2)(C)

(providing that “[a] separate brief supporting or responding to a motion must

not be filed”). But, in any event, we are bound by the Florida Supreme Court’s

interpretation of its statute.

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counterintuitive positions. Gee’s victim Butler now minimizes

Gee’s aggression, while Gee’s former boss, Sheriff Gualtieri, em-

phasizes the extreme nature of her conduct.

We are, of course, also Erie-bound by Florida’s substantive

law on sovereign immunity. Several of Florida’s cases are instruc-

tive on the scope of the three exceptions found in the state’s sover-

eign immunity statute -- i.e., conduct taken “in bad faith,” “with

malicious purpose,” or “in a manner exhibiting wanton and willful

disregard of human rights, safety, or property.” Recently, in Peter-

son v. Pollack, a Florida appellate court acknowledged that “the

Florida Statutes do not define the phrases ‘in bad faith’ or ‘with ma-

licious purpose’ or ‘in a manner exhibiting wanton and willful dis-

regard of human rights [or] safety,’ as those phrases are used in sec-

tion 768.28(9)(a).” 290 So. 3d 102, 109 (Fla. 4th DCA 2020). How-

ever, Florida’s Fourth District Court of Appeal found meaning in

these terms by looking elsewhere. First, the court observed, the

term “‘bad faith’ . . . has been ‘equated with the actual malice stand-

ard.’” Id. (quoting Parker v. State of Fla. Bd. of Regents ex rel. Fla.

State Univ., 724 So. 2d 163, 167 (Fla. 1st DCA 1998)). Second, the

term “‘malicious purpose’ . . . has been interpreted as meaning the

conduct was committed with ‘ill will, hatred, spite, [or] an evil in-

tent.’” Id. (quoting Eiras v. Florida, 239 F. Supp. 3d 1331, 1343

(M.D. Fla. 2017)). The court explained the third exception this

way:

The phrase “wanton and willful disregard of human

rights [or] safety,” . . . has been interpreted as

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14 Opinion of the Court 21-12136

“conduct much more reprehensible and unacceptable

than mere intentional conduct,” Richardson v. City of

Pompano Beach, 511 So. 2d 1121, 1123 (Fla. 4th DCA

1987), and “conduct that is worse than gross negli-

gence,” Sierra v. Associated Marine Insts., Inc., 850

So. 2d 582, 593 (Fla. 2d DCA 2003) (citation and inter-

nal quotation marks omitted).

Id.

Furthermore, under Florida’s standard jury instructions,

“wanton” behavior is defined as acting “with a conscious and in-

tentional indifference to consequences and with the knowledge

that damage is likely to be done to persons or property,” and “will-

ful” conduct is defined as acting “intentionally, knowingly and pur-

posely.” Id. at 110 (citation omitted). Florida’s Fifth District Court

of Appeal cited with approval this definition of willful and wanton

conduct:

Willful and wanton conduct is generally something

more than ordinary negligence but less than deliber-

ate conduct. Most definitions of willful or wanton

conduct require that it appear that the defendant had

knowledge of existing conditions, was conscious

from such knowledge that injury would likely or

probably result from his conduct, and with reckless

indifference to the consequences consciously and in-

tentionally does some wrongful act or omits to dis-

charge some duty which produces the injurious re-

sult.

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21-12136 Opinion of the Court 15

Lemay v. Kondrk, 923 So. 2d 1188, 1192 (Fla. 5th DCA 2006) (cita-

tion and quotation marks omitted).

In exploring further the contours of these exceptions to sov-

ereign immunity, we look to several Florida cases that have given

them meaning. In McGhee v. Volusia County, for example, the

Florida Supreme Court found that there was a dispute of fact con-

cerning the application of sovereign immunity when a police of-

ficer “lunged at [an arrestee], grabbed him by the throat, and began

kicking [him] with force.” 679 So. 2d 729, 730 (Fla. 1996). Although

the court concluded that his conduct was not beyond the scope of

his employment, the court determined that there was still a critical

factual question for the jury -- whether the officer’s conduct

evinced bad faith, malicious purpose, or wanton or willful disre-

gard for the arrestee. Id. at 733 & n.7.

Serious factual disputes have often prevented Florida’s

courts from applying sovereign immunity at the summary judg-

ment stage. Thus, for example, in Thompson v. Douds, Florida’s

Second District Court of Appeal reserved a determination of sov-

ereign immunity for the jury. There, officers were not arresting a

lawbreaking citizen, but rather seeking to help a diabetic man who

needed medical attention. 852 So. 2d 299, 302 (Fla. 2d DCA 2003).

When the ill man began to wander away from the officers and dis-

obeyed their orders before an ambulance had arrived, one officer

chased him and pulled him down to the street, and three other of-

ficers laid on top of him, even after they had managed to secure

him with handcuffs. Id. at 302–03. They let go of the man only

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16 Opinion of the Court 21-12136

after they felt his body go “limp”; ultimately, he was left in a coma-

like state. Id. at 303. The court held that, based on the amount of

force used by the officers in this situation, “there is a genuine issue

of material fact as to whether the individual officers’ actions consti-

tuted a wanton and willful disregard of human rights,” and there-

fore concluded that the officers were not entitled to sovereign im-

munity at the summary judgment stage. Id. at 309.

Still another Florida case -- Peterson -- further highlights the

fact-specific nature of these sovereign immunity determinations,

although this one arose on a motion to dismiss. There, the com-

plaint alleged that a sheriff’s deputy, who was stationed at a school,

behaved negligently by not taking preventative steps to forestall a

shooting that killed seventeen students and staff at Marjory Stone-

man Douglas High School in Parkland, Florida. 290 So. 3d at 104.

Florida’s Fourth District Court of Appeal denied a motion to dis-

miss the complaint on sovereign immunity grounds, concluding

that “a reasonable trier of fact could find that the deputy’s failure

to confront the shooter, and failure to take any other action to ful-

fill his alleged duty of protecting the students and teachers, while

choosing to remain outside in a protected location to ensure his

own safety,” might strip him of sovereign immunity. Id. at 110.

Measuring the facts as they have been adduced in this case

against Florida’s legal standards, we agree with the district court

that sovereign immunity cannot be resolved on summary judg-

ment. Plainly, there are material factual disputes about the precise

actions Butler and Gee took on the night of January 8, 2019, about

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21-12136 Opinion of the Court 17

Gee’s state of mind, and about the inferences that might reasonably

be drawn from them. As we see it, reasonable factfinders could

disagree over whether Gee’s conduct was wanton and willful, ma-

licious, or exhibitive of bad faith.

At the outset, we note that both parties rely on some evi-

dence that may be inadmissible. Federal Rule of Evidence 602 re-

quires that a lay witness’s testimony be based on “personal

knowledge” of the matter about which he or she is testifying. Fed.

R. Evid. 602. In their summary judgment briefing, both parties pre-

sent testimony from individuals who discussed the takedown after

watching the video, but who were not actually present in the book-

ing area when Gee pushed Butler to the ground. Thus, for exam-

ple, most of the officers who testified about this incident were sit-

ting in an adjacent room with only a partial view of the takedown.

Sheriff Gualtieri himself opined at length about the takedown

based only on his viewing of the video. At one point, he exclaimed,

“it’s clear that [Gee] intentionally grabbed [Butler] by the neck and

slammed her to the ground.” To the extent the Sheriff, or any of

the officers, have opined as an expert about takedowns, it remains

for the trial court to determine whether the witness is otherwise

competent and qualified to opine about police procedures. See

Fed. R. Evid. 702.

In any event, we need not step into the dispute concerning

the admissibility of any of this testimony, because the testimony of

the officers who were present in the booking area during and after

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18 Opinion of the Court 21-12136

the takedown reveals many genuine disputes of material fact --

each of which singlehandedly precludes summary judgment.

First, the nature and degree of Butler’s resistance is disputed.

Gee testified that Butler pulled away from her forcefully. But

Schultheis, who had first forgotten that Butler pulled away from

Gee, testified, after his recollection was refreshed by the video, that

Butler did not exhibit much resistance in the booking area. How-

ever, after re-watching the video and facing additional questions,

Schultheis changed his testimony, offering that Butler was “ac-

tive[ly]” resisting Gee. The video appears to show Butler pulling

away from Gee, but additional factfinding might clarify whether

Butler was genuinely trying to escape Gee’s grip, rather than

drunkenly swaying.

Second, it is unclear whether Gee’s takedown was executed

properly. Schultheis recalled witnessing “a relative [sic] normal

takedown.” However, Gee admitted that she used unreasonable

force during the takedown, and that Butler would likely have been

injured upon hitting the concrete floor. Moreover, the video

shows that Gee’s hand was located near Butler’s neck at the start

of the takedown, but it is unclear whether her hand remained in

that position or actually made contact with Butler’s neck. Corporal

Shawn Fox, who was in an adjacent room during the takedown,

offered the opinion that grabbing an individual’s neck is never an

“appropriate” maneuver.

In light of these disputed facts, additional evidence and fact-

finding concerning Butler’s resistance and Gee’s takedown would

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21-12136 Opinion of the Court 19

assist a jury in deciding whether Gee’s behavior was wanton and

willful, malicious, or exhibitive of bad faith. If a jury were to find

that Gee violently pushed down an arrestee who was not physically

resisting her, with little prior warning, this might support a conclu-

sion that Gualtieri is shielded from liability on Count I. On the

other hand, a jury might conclude that Gualtieri is liable on Count

I upon finding that Butler was forcibly resisting Gee, Gee clearly

warned Butler to stop pulling away, and Gee’s takedown was

roughly compliant with the PCSO’s protocol.

Any of these material disputes of fact justify the denial of

summary judgment. There are several other material facts in dis-

pute as well. For one, it is unclear whether Gee realized that Butler

was injured when she hit the floor. Gee later acknowledged that

“the likelihood [Butler] would be hurt when Gee tripped and

pushed her backward to the concrete was good.” Another officer

who was in the booking area after the takedown said that, although

Butler was “crying” after she fell, he had no memory of her com-

plaining of any injuries. The video similarly reflects that Butler was

crying and making various statements while she lay on the floor,

but those statements are not intelligible from the video. Answer-

ing this factual question would further assist a jury in evaluating

the appropriateness of Gee’s conduct. If indeed Gee had reason to

know that Butler’s left arm was injured, yet she pulled on that arm

anyway, a reasonable jury might conclude that her conduct

evinced wanton or malicious behavior.

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20 Opinion of the Court 21-12136

Last but not least, there is an important factual dispute con-

cerning Gee’s state of mind at the time of the takedown. On this

record, a jury might reasonably find that Gee behaved wantonly or

with bad faith or malice because she yelled, “are you fucking kid-

ding me?” after she pushed Butler onto the floor. However, a jury

could also credit Gee’s explanation that she made that statement

simply because she was disappointed that Butler was making the

intake process harder. Gee also testified that she was not frustrated

during her interaction with Butler, and got angry (with herself)

only afterwards because she had not intended to injure Butler. The

officers who were working on Gee’s shift also offered differing ac-

counts of Gee’s mental state on the evening in question. One of-

ficer, who was in an adjoining room when the takedown occurred,

testified that Gee was “extremely calm and professional” during the

takedown, and was not “angry” or “upset.” But others painted a

less tranquil picture, testifying that Gee was “upset” or “nervous”

right after the incident, and it was a “shock that Gee took someone

down,” given her usual tendency to avoid “physical confronta-

tions.”

Florida’s sovereign immunity statute protects government

officials when their subordinates act in bad faith, or with malicious

purpose, or a wanton and willful disregard of human rights or

safety. See FLA. STAT. § 768.28(9)(a). Whether Gualtieri should

prevail on the defense of sovereign immunity in Count I turns on

whether Gee acted with malice, “‘ill will, hatred, spite, [or] an evil

intent,” and whether she intentionally or at least recklessly injured

USCA11 Case: 21-12136 Date Filed: 07/25/2022 Page: 21 of 21

21-12136 Opinion of the Court 21

Butler. See Peterson, 290 So. 3d at 109–110. Because the standards

for applying sovereign immunity are so closely bound up with

Gee’s mental state, on this disputed record, summary judgment is

barred as a matter of law.

Gualtieri also makes much of Butler’s admission that Gee’s

conduct was “unnecessary, unreasonable, excessive, without just

cause, intentional, without provocation and gratuitous.” How-

ever, none of those descriptors is synonymous with wanton and

willful behavior, malice, or bad faith. If Florida’s courts have re-

fused to find wanton and willful conduct, as a matter of law, when

a police officer grabbed an arrestee by the throat and kicked him,

see McGhee, 679 So. 2d at 730, or when three officers sat on top of

an ill, diabetic man until he went “limp,” see Thompson, 852 So.

2d at 303, there is little reason to conclude, as a matter of law, that

Gee’s less violent takedown of a noncompliant arrestee exhibited

wanton and willful conduct that would justify the application of

sovereign immunity.

Based on the profoundly conflicting evidence amassed, it is

not clear whether Gee exhibited wanton and willful behavior, mal-

ice, or bad faith. It is neither the district court’s role nor ours to

wade into the remaining factual disputes and make determinations

regarding the witnesses’ credibility, let alone draw appropriate in-

ferences from the proffered facts. These determinations lie

squarely within the province of the jury. It was proper for the dis-

trict court to deny summary judgment on Count I.

We AFFIRM.