Kenneth Bailey v. Shawn T. Swindell

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14454

____________________

KENNETH BAILEY,

Plaintiff-Appellant,

versus

SHAWN T. SWINDELL,

In his individual capacity,

Defendant-Appellee,

MICHAEL RAMIREZ, et al.,

Defendants.

____________________

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2 Opinion of the Court 21-14454

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 3:15-cv-00390-MCR-HTC

____________________

Before LAGOA and BRASHER, Circuit Judges, and BOULEE,* District

Judge.

LAGOA, Circuit Judge:

This Section 1983 case is before us for a second time. See

Bailey v. Swindell, 940 F.3d 1295 (11th Cir. 2019) (“Bailey I”). After

being arrested at his parents’ home, Kenneth Bailey filed suit

against the arresting officer, alleging that Deputy Shawn Swindell

violated his civil rights when Swindell tackled him through the

door of the house and then arrested him. In Bailey I, the district

court granted summary judgment in favor of Swindell on qualified

immunity grounds. We reversed the district court and held that

when the evidence was viewed in the light most favorable to Bai-

ley, the non-moving party, Swindell violated clearly established

law when he entered Bailey’s parents’ home to arrest him without

a warrant or exigent circumstances. See id. at 1298. And we con-

cluded that Swindell was not entitled to qualified immunity for his

violation of Bailey’s Fourth Amendment rights. Id. at 1303–04.

* Honorable J. P. Boulee, United States District Judge for the Northern District

of Georgia, sitting by designation.

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Following remand, the case went to trial. 1 The jury re-

turned a verdict for Bailey and awarded Bailey $625,000 for his in-

juries. In a post-trial motion, Swindell moved for judgment as a

matter of law under Federal Rule of Civil Procedure 50(b). The

district court granted Swindell’s motion for judgment as a matter

of law and set aside the jury’s verdict.

Bailey appeals the district court’s order granting judgment

as a matter of law for Swindell on his false arrest claim under 42

U.S.C. § 1983. On appeal, Bailey argues that: (1) the district court

erred by granting Swindell qualified immunity after the jury found

that the hot pursuit exigency did not apply to his warrantless arrest,

and (2) the district court erred in considering exigent circumstances

when it was not one of the grounds for Swindell’s earlier motion

for judgment as a matter of law under Federal Rule of Civil Proce-

dure 50(a).

After careful review, and with the benefit of oral argument,

we reverse the district court’s grant of judgment as a matter of law

1 To be clear, this was the second trial in this case. Before Bailey I, the district

court granted summary judgment in favor of Swindell as to Bailey’s false arrest

claim. The case then went to trial only on the issue of excessive force, which

had not been resolved on summary judgment. Following trial, Bailey ap-

pealed the earlier grant of summary judgment on the false arrest claim but not

the verdict on the excessive force claim. After we issued Bailey I and re-

manded the case to the district court, the parties proceeded to a second trial

on questions of probable cause and exigent circumstances to justify warrant-

less entry into Bailey’s home.

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for Swindell on Bailey’s unlawful arrest claim and reinstate the

jury’s verdict in favor of Bailey.

I. FACTUAL AND PROCEDURAL BACKGROUND2

In September 2014, Bailey and his wife, Sherri Rolinger,

were going through a divorce. On the night of September 11, 2014,

Deputy Shawn Swindell received a call from Deputy Andrew Mag-

dalany, who had responded to a call at Bailey’s former marital

home following a verbal altercation between Rolinger and Bailey.

Magdalany relayed Rolinger’s complaints that Bailey was harassing

her, including coming to the home unannounced, turning photo-

graphs face down, leaving cigarette butts, and even installing cam-

eras in the home without Rolinger’s knowledge. Magdalany also

explained that Rolinger stated that Bailey was not “acting right”

and “had snapped.” At the time of the call, Magdalany had not yet

determined whether Bailey had committed any crime. Swindell

headed to Bailey’s parents’ residence, where he was living at the

time, to investigate.

Bailey voluntarily came out of his parents’ home onto the

front porch to talk with Swindell. Although Bailey repeatedly

asked Swindell why he was there, Swindell never explained what

he was investigating, but rather insisted that they go to his patrol

car to talk. At some point, Bailey said “Okay, if you’re not going

2 Because this case arises on the appeal of the district court’s judgment as a

matter of law for Swindell, we take and construe the facts in the light most

favorable to Bailey. See Bishop v. City of Birmingham Police Dep’t, 361 F.3d 607,

609 (11th Cir. 2004).

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to tell me why you’re here, I’m going to turn around and go in-

side.” Bailey crossed the threshold of the door and went inside the

house. At trial, Bailey and his family testified that Swindell then

ran toward Bailey and tackled him through the doorway of the

house while exclaiming, “I am going to tase you.” At trial, Swindell

testified to a different version of events, stating that he put his arm

on Bailey’s shoulder and told him he was not free to leave because

he could be arrested on charges of domestic violence, all before

Bailey entered the house. Swindell also testified that Bailey struck

Swindell with his arm while they were still on the front porch.

Once inside the house, Swindell and Bailey ended up on the

floor. After a physical conflict, more deputies arrived on scene, ar-

rested Bailey, and took him to the Santa Rosa County jail. As a

result of the arrest, Bailey suffered injuries, including herniated

disks in his neck.

The second trial focused on the moments before Bailey’s ar-

rest. On the third day of trial, the jury was instructed on the law of

exigent circumstances. The district court explained that “[e]xigent

circumstances justify a law enforcement officer’s warrantless entry

into a home without an occupant’s consent where either the arrest

was set in motion in an area that is open to public view, which in-

cludes a front porch, and the person flees into a home, and the of-

ficer immediately follows the fleeing suspect into the home from

the scene of the crime.” At the conclusion of the trial, the jury was

given a verdict form that combined general questions and special

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interrogatories. 3 Because the verdict form included a question on

where the arrest was “initiated,” Swindell’s counsel requested a

definition for “initiate” from the district court. The district court

denied the request, reasoning that there is no legal definition of the

word and that the word “initiate” is a “commonly understood

term.”

Before deliberations, the district court instructed the jury

that they “are the judges of the facts in this case.” The first question

on the verdict form asked, “Did Deputy Shawn T. Swindell have

reasonable suspicion to detain Mr. Kenneth Bailey for a law en-

forcement investigation?” The jury answered yes. The verdict

form next asked, “Did Deputy Swindell have probable cause to ar-

rest Mr. Bailey?” The jury answered yes, which prompted them to

indicate which of the following supported their finding of probable

cause: (1) “Willfully, maliciously, and repeatedly following, harass-

ing, or cyberstalking another person;” (2) “Knowingly resisting, ob-

structing, or opposing a law enforcement officer who was engaged

in the lawful execution of a legal duty;” (3) “Knowingly and will-

fully resisting, obstructing, or opposing a law enforcement officer

who was engaged in the lawful execution of a legal duty by offering

to violence or doing violence to the officer;” and/or (4) “Battery on

a law enforcement officer.” Given the choice to select multiple op-

tions, the jury checked only the second: “Knowingly resisting,

3 See Appendix.

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obstructing, or opposing a law enforcement officer who was en-

gaged in the lawful execution of a legal duty.”

The next question asked, “Where was the arrest initiated?”

with choices: (1) “Outside the home” or (2) “Inside the home.” The

jury chose “Outside the home.” The verdict form next asked, “If

you determined that the arrest was initiated outside the home, did

exigent circumstances justify Deputy Swindell’s warrantless entry

into the home?” The jury answered no. Because the jury found

that exigent circumstances did not justify the warrantless entry into

the home, they were prompted to skip the next question identify-

ing which of the following exigent circumstances justified the en-

try: (1) “Hot pursuit of a fleeing suspect into the home;” (2) “Urgent

need to enter the home to prevent the imminent destruction of ev-

idence;” (3) “Specific and articulable facts supported a belief that

the suspect was armed and immediate entry into the home was

necessary for safety.”

Because the jury found that no exigent circumstances justi-

fied Swindell’s warrantless entry into the home, they proceeded to

answer the next question: “Did Deputy Shawn T. Swindell’s con-

duct cause Kenneth Bailey’s injuries?” and “Do you find that Ken-

neth Bailey should be awarded compensatory damages?” The jury

answered that Swindell did cause the injuries and that Bailey

should be awarded damages in the form of $625,000.00. There

were no objections to the jury’s verdict.

After the clerk read the verdict, Swindell asked for a ruling

on a previously raised motion for judgment as a matter of law. The

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district court denied it as moot but advised that the parties could

file post-trial motions. A judgment in accordance with the jury’s

verdict was entered on June 7, 2021.

Swindell filed a renewed motion for judgment as a matter of

law under Federal Rule of Civil Procedure 50(b), arguing that the

jury’s finding that Swindell initiated the arrest of Bailey outside the

home compelled entry of judgment in Swindell’s favor on qualified

immunity grounds. Because the jury found that the arrest was ini-

tiated outside the house, Swindell argued it was “inexplicabl[e]” for

the jury to also conclude that there were not exigent circum-

stances. Bailey opposed the motion, arguing that the jury had ex-

pressly rejected exigency. Given the jury’s finding that Swindell’s

actions violated a constitutional right, Bailey contended that the

only question remaining was whether that right was clearly estab-

lished.

On this question, the district court reasoned that it must de-

cide whether the law on the date of the incident gave Swindell clear

notice that his conduct was unconstitutional for purposes of quali-

fied immunity. And because “[t]he contours of the hot pursuit doc-

trine in the context of fleeing misdemeanants was an open legal

question at that time,” the district court determined that the law

was not clearly established and granted Swindell’s motion. The

district court vacated the jury’s judgment in favor of Bailey and en-

tered judgment as a matter of law in favor of Swindell. This appeal

followed.

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II. STANDARD OF REVIEW

We review a district court’s granting of a motion for judg-

ment as a matter of law de novo, considering only the evidence that

may properly be considered and the reasonable inferences drawn

from it in the light most favorable to the nonmoving party.

Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). Judg-

ment as a matter of law is appropriate when a court finds that “a

reasonable jury would not have a legally sufficient evidentiary basis

to find for [a] party on [an] issue.” Fed. R. Civ. P. 50(a)(1). “We will

not second-guess the jury or substitute our judgment for its judg-

ment if its verdict is supported by sufficient evidence.” EEOC v.

Exel, Inc., 884 F.3d 1326, 1329 (11th Cir. 2018) (quoting Lambert v.

Fulton Cnty., 253 F.3d 588 594 (11th Cir. 2001)). “In determining

whether a government official is entitled to qualified immunity fol-

lowing a jury verdict, we view the evidence in the light most favor-

able to the party that prevailed at trial.” Oladeinde v. City of Birming-

ham, 230 F.3d 1275, 1290 (11th Cir. 2000) (citing Priester v. City of

Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000)). “In so doing,

we give deference to the jury’s ‘discernible resolution of disputed

factual issues.’” Id. (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st.

Cir. 1999)).

III. ANALYSIS

Although qualified immunity presents a question of law,

“resolution of this question can sometimes turn on issues of fact.”

Simmons v. Bradshaw, 879 F.3d 1157, 1163 (11th Cir. 2018). When it

is not evident from the allegations of the complaint alone that the

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defendants are entitled to qualified immunity, the case will proceed

to the summary judgment stage. Johnson v. Breeden, 280 F.3d 1308,

1317 (11th Cir. 2002). “Even at the summary judgment stage, not

all defendants entitled to the protection of the qualified immunity

defense will get it.” Id. As relevant here, “if the evidence at the

summary judgment stage, viewed in the light most favorable to the

plaintiff, shows there are facts that are inconsistent with qualified

immunity being granted, the case and the qualified immunity issue

along with it will proceed to trial.” Id. A defendant in those cir-

cumstances is, however, “not foreclosed from asserting a qualified

immunity defense at trial.” Vaughan v. Cox, 343 F.3d 1323, 1333

(11th Cir. 2003). At trial, the jury itself decides issues of fact that

are determinative of the qualified immunity defense but does not

apply the law of qualified immunity to those facts. Breeden, 280

F.3d at 1318.

In Bailey I, this Court, accepting Bailey’s version of events as

true, reversed the grant of summary judgment in favor of Swindell

because Swindell arrested Bailey without a warrant, consent, or ex-

igent circumstances. 940 F.3d at 1300. The case went to trial, where

the jury resolved the factual disputes surrounding Bailey’s arrest

and determined that the arrest was initiated outside the home but

that no exigent circumstances existed allowing for a warrantless en-

try into the home. It is these factual findings made expressly by the

jury that the district court should have used in reaching its conclu-

sions of law about qualified immunity. See Simmons, 879 F.3d at

1164 (“[T]he question of what circumstances existed at the time of

the encounter is a question of fact for the jury––but the question

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of whether the officer’s perceptions and attendant actions were ob-

jectively reasonable under those circumstances is a question of law

for the court.”).

When reviewing a district court’s decision on qualified im-

munity following a jury verdict, we give deference to the jury’s dis-

cernable resolution of disputed factual issues. Oladeinde, 230 F.3d

at 1290. Here, the jury was asked to determine whether exigent

circumstances existed to allow Swindell to enter the home without

violating Bailey’s constitutional rights. Particularly, the jury was

instructed that exigent circumstances exist where “the arrest was

set in motion in an area that is open to public view, which includes

a front porch, and the person flees into a home, and the officer im-

mediately follows the fleeing suspect into the home from the scene

of the crime.” The jury expressly found that exigent circumstances

did not justify Swindell’s warrantless entry into the home. Despite

the jury’s clear rejection of exigent circumstances, Swindell insists

such a conclusion is impossible because the arrest began outside

and ended inside--facts which, Swindell seems to believe, compel a

finding of “hot pursuit.” But the jury, as the trier of fact, expressly

found the opposite: that no exigent circumstances (hot pursuit or

otherwise) justified Swindell's warrantless entry into the home,

even though the arrest was initiated from outside.

The jury, which was not instructed on the meaning of “ini-

tiated,” simply believed the testimony from the Bailey family that

Swindell was outside the house, while Bailey was already inside,

when Swindell formed the intention to arrest Bailey and set it in

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motion. As commonly understood, the word initiate applies logi-

cally to this version of events. 4 Although Bailey was inside the

house, Swindell was outside when he started or initiated his charge

toward Bailey. Far from inexplicable, the jury’s factual finding that

the arrest was initiated outside the home and that no exigent cir-

cumstances applied is consistent with the testimonies given at trial.

And as evidenced by the jury’s verdict form, the jury found

Bailey’s version of events more credible than Swindell’s testimony.

Despite Swindell’s testimony that Bailey struck Swindell outside

the house prior to his arrest, the jury explicitly rejected such a find-

ing when it concluded on the verdict form that neither “Battery on

a law enforcement officer” nor “Knowingly and willfully resisting

[a law enforcement officer]. . . by offering to violence or doing vio-

lence to the officer” supported probable cause. The jury chose to

believe Bailey’s testimony. We are not at liberty to second guess

their decision.

Swindell argues that the jury’s finding was legal, not factual,

because the jury did not answer whether hot pursuit existed, but

rather that exigency did not justify entry into the home. Swindell’s

argument is without merit. The district court instructed the jury

that exigent circumstances would apply and “justify a law enforce-

ment officer’s warrantless entry into a home without an occupant’s

consent” if the person “flees [from arrest] into a home, and the

4 “To begin, commence, enter upon; to introduce, set going, give rise to, orig-

inate, ‘start’ (a course of action, practice, etc.)” Initiate, Oxford English Diction-

ary (2d ed. 1989).

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officer immediately follows the fleeing suspect into the home.” At

trial, Bailey testified that he was not running away from the scene

and that Swindell had given no indication that he was under arrest

until Bailey was inside the home. By answering “no” to the exigent

circumstances question in the special interrogatories and by not

checking the box for “[h]ot pursuit of a fleeing suspect into the

home,” the jury found that this circumstance did not exist. Simply

put, the jury found that the arrest was initiated outside the house,

but that there was no hot pursuit. There is no confusion that the

jury answered a question of fact. Indeed, after the verdict, neither

side claimed that the jury’s findings were inconsistent, nor did they

seek to return the matter to the jury before it was discharged.

Given the jury’s binding factual findings, the correct ques-

tion for the district court to ask in deciding whether qualified im-

munity applied was whether it was clearly established that an of-

ficer violates the Constitution when he “initiates” an arrest outside

of a home and then enters the home without a warrant to com-

plete the arrest in the absence of exigent circumstances. And the

answer is yes.

“A right is clearly established when the state of the law gives

the defendants fair warning that their alleged conduct is unconsti-

tutional.” Patel v. Lanier Cnty., 969 F.3d 1173, 1186 (11th Cir. 2020)

(cleaned up). The Supreme Court has “repeatedly told courts not

to define clearly established law at too high a level of generality.”

City of Tahlequah v. Bond, 595 U.S. 9, 11 (2021). The contours of the

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rule must be so well-defined that it is obvious to a reasonable officer

that his conduct was unconstitutional under the circumstances. Id.

Bailey’s right to be free from a warrantless arrest in his par-

ents’ home absent exigent circumstances was clearly established.

The Fourth Amendment provides that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be violated.” As the text

suggests, “the ultimate touchstone of the Fourth Amendment is

‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

And the Constitution generally requires that officers obtain judicial

warrants before entering a home without permission. Groh v.

Ramirez, 540 U.S. 551, 559 (2004). There are, however, exceptions

to that warrant requirement. Brigham City, 547 U.S. at 403.

The relevant exception is for exigent circumstances. This ex-

ception applies when “‘the exigencies of the situation’ make the

needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amendment.”

Mincey v. Arizona, 437 U.S. 385, 394 (1978) (quoting McDonald v.

United States, 335 U.S. 451, 456 (1948)); see also Payton v. New York,

445 U.S. 573, 590 (1980) (“[T]he Fourth Amendment has drawn a

firm line at the entrance to the house. Absent exigent circum-

stances, that threshold may not reasonably be crossed without a

warrant.”).

The Supreme Court has identified several exigencies that

may justify a warrantless search of a home. See Brigham City, 547

U.S. at 403. For example, an officer “may ‘enter a home without a

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warrant to render emergency assistance to an injured occupant[,]

to protect an occupant from imminent injury,’ or to ensure his own

safety.” Lange v. California, 141 S.Ct. 2011, 2017 (2021) (alteration

in original) (quoting Brigham City, 547 U.S. at 403). An officer may

also make a warrantless entry to “prevent the imminent destruc-

tion of evidence.” Brigham City, 547 U.S. at 403; see also United States

v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002) (noting that the ex-

igent circumstances doctrine extends to situations involving “dan-

ger of flight or escape, loss or destruction of evidence, risk of harm

to the public or the police, mobility of a vehicle, and hot pursuit”).

In those circumstances, the delay required to obtain a warrant

would bring about “some real immediate and serious conse-

quences” and so the absence of a warrant is excused. Welsh v. Wis-

consin, 466 U.S. 740, 751 (1984). But as this Court explained in the

case’s first appeal: “Unless a warrant is obtained or an exigency ex-

ists, ‘any physical invasion of the structure of the home, by even a

fraction of the inch, [is] too much.’” Bailey I, 940 F.3d at 1302 (al-

teration in the original) (quoting Kyllo v. United States, 533 U.S. 27,

37 (2001)). This rule is “not only firm but also bright.” Kyllo, 533

U.S. at 40.

On the question of whether the Constitution forbids war-

rantless arrests absent exigent circumstances, the law speaks clearly.

The line against such arrests “was drawn unambiguously in Payton,

traces its roots in more ancient sources, and has been reaffirmed

repeatedly since.” Bailey I, 940 F.3d at 1303; see also Kirk v. Louisiana,

536 U.S. 635, 636 (2002); Kyllo, 533 U.S. at 40; Welsh, 466 U.S. at 754;

Johnson v. United States, 333 U.S. 10, 15 (1948) (all reaffirming the

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16 Opinion of the Court 21-14454

unconstitutionality of warrantless in-home arrests absent exigent

circumstances). “As Payton makes plain, police officers need either

a warrant or probable cause plus exigent circumstances in order to

make a lawful entry into a home.” Kirk, 536 U.S. at 638. And “the

Supreme Court has re-inked Payton’s firm line on numerous subse-

quent occasions.” McClish v. Nugent, 483 F.3d 1231, 1242 (11th Cir.

2007). Because the law on this question is clearly established and

gave Swindell fair warning that his treatment of Bailey was uncon-

stitutional, Swindell was not entitled to qualified immunity and the

district court erred in holding otherwise.

IV. CONCLUSION

For these reasons, we reverse the district court’s grant of

judgment as a matter of law for Swindell and reinstate the jury’s

verdict for Bailey.5

REVERSED and REMANDED for reinstatement of jury

verdict.6

5 Because we reverse the district court’s judgment on these grounds, it is un-

necessary to address Bailey’s argument that the district court improperly heard

Swindell’s motion for judgment as a matter of law.

6 Swindell also argues for a remittitur for damages in a footnote. Because a

jury in Bailey I found that he did not use excessive force, Swindell argues that

even if we reverse, the only damages available are the damages flowing from

the unlawful entry alone, which would be de minimis nominal damages.

Swindell is mistaken. Section 1983 defendants “are, as in common law tort

suits, responsible for the natural and foreseeable consequences of their ac-

tions.” Jackson v. Sauls, 206 F.3d 1156, 1168 (11th Cir. 2000). Swindell might

not be liable for the excessive force claim, but he is liable for any and all rea-

sonably foreseeable damages caused by his unlawful entry. As the district

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Appendix

court instructed the jury before deliberations, “any force that Deputy Swindell

used to effectuate the unlawful arrest was a violation of the Fourth Amend-

ment.” Injuries resulting from a physical arrest are certainly foreseeable con-

sequences of an unlawful arrest in someone’s home.

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