Walter Gomez v. USA , 601 F. App'x 841 ( 2015 )

Case: 14-10031 Date Filed: 02/11/2015 Page: 1 of 23
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10031
________________________
D.C. Docket No. 1:13-cv-21126-KMM
WALTER GOMEZ,
a Florida Resident,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
OFFICER JOHN DOE,
in his individual and official capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 11, 2015)
Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN, * District
Judge.
*
Honorable Barbara J. Rothstein, United States District Judge for the Western District of
Washington, sitting by designation.
Case: 14-10031 Date Filed: 02/11/2015 Page: 2 of 23
HULL, Circuit Judge:
Plaintiff-appellant Walter Gomez appeals the district court’s dismissal of his
civil rights complaint against defendants-appellees Officer John Doe and the
United States, filed pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act
(FTCA). The district court dismissed, pursuant to Federal Rule of Civil Procedure
12(b)(6), Gomez’s false arrest and excessive force claims against Officer Doe, and
Gomez’s false arrest and battery claims against the United States. 1 After a careful
review of the record and the briefs, and with the benefit of oral argument, we
affirm.
I. BACKGROUND 2
On April 27, 2010, approximately four United States Immigration and
Customs Enforcement officers arrived at plaintiff Gomez’s residence in
Homestead, Florida. The officers were executing an arrest warrant for Rene
Rodriguez, Gomez’s father. Gomez, who was then 17 years old, and his mother
1
Gomez also alleged, and the district court dismissed, a claim against the United States
for intentional infliction of emotional distress. We do not address this claim because Gomez
failed to raise any argument about it in his initial brief. See Little v. T-Mobile USA, Inc., 691
F.3d 1302, 1306 (11th Cir. 2012) (arguments not raised in appellant’s initial brief are
abandoned).
2
Because Gomez’s complaint was dismissed pursuant to a Rule 12(b)(6) motion for
failure to state a claim, we recite the facts “accepting the complaint’s allegations as true and
construing them in the light most favorable to the plaintiff.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1335 (11th Cir. 2012).
2
Case: 14-10031 Date Filed: 02/11/2015 Page: 3 of 23
moved outside and stood on the front porch of the residence when the officers
arrived. The officers asked if Gomez was a United States citizen and requested
identification. Gomez responded that he was a citizen and produced his driver’s
license. The plaintiff and his mother stayed outside on their porch.
At this time, two women from the Everglades Housing Group then arrived
by car at the scene. It was agreed that they would take Gomez away from the
scene and to their office.
As Gomez and the women moved toward the car in order to leave the
premises, Officer Doe 3 and another officer confronted Gomez’s mother. Officer
Doe yelled at Gomez’s mother, using obscenities towards her. Gomez told Officer
Doe he did not need to yell at his mother.
Gomez then had his back to Officer Doe. Officer Doe approached Gomez
from behind and positioned himself so that when Gomez turned, Gomez
unintentionally bumped into Officer Doe. When Gomez turned and bumped into
him, Officer Doe screamed, “you touched me”; “he has to be arrested”; and
“resisting! resisting!” Officer Doe then grabbed Gomez by the neck, choked him,
and slammed him against the passenger side of the vehicle. After slamming
Gomez into the car, Officer Doe demanded to know Gomez’s immigration status,
and Gomez informed him that another officer had already checked his status.
3
Gomez does not know the officer’s identity but refers to the unknown officer as Officer
“Doe.”
3
Case: 14-10031 Date Filed: 02/11/2015 Page: 4 of 23
Doe then handcuffed Gomez and asked if he had any sharp objects on him,
and Gomez said he only had his keys. Officer Doe stated that Gomez would be
“raped by black men” when “[Gomez] was in the jail.” Doe then searched
Gomez’s pockets and confiscated Gomez’s keys. Gomez was subsequently
released.
Gomez did not allege the length of time for which he was temporarily
detained. Gomez also does not allege the length of time for which he was choked
or handcuffed. And Gomez does not allege where Officer Doe placed him after
slamming him into the vehicle.
During this encounter, Gomez never physically or verbally resisted Officer
Doe.
Gomez subsequently filed a complaint against Officer Doe and the United
States alleging civil rights violations. Gomez later amended his complaint and
alleged two counts against Officer Doe—false arrest and excessive force—brought
pursuant to Bivens. Gomez’s amended complaint also alleged three counts against
the United States—false arrest, battery, and intentional infliction of emotional
distress—brought pursuant to the FTCA. The defendants moved to dismiss.
In a memorandum order dated December 2, 2013, the district court granted
the defendants’ motion to dismiss. In its order, the district court first addressed
Gomez’s false arrest claim against Officer Doe. The district court concluded,
4
Case: 14-10031 Date Filed: 02/11/2015 Page: 5 of 23
based on the facts alleged in Gomez’s complaint, that Gomez’s detention “did not
constitute a full custodial arrest.” The district court held that Gomez’s
constitutional rights were not violated by his temporary detention pending the
arrest of his father because “[t]he officers had an interest in preventing the flight of
other possible law breakers or unlawful immigrants on the premises as well as an
interest in protecting their own safety during the pendency of the arrest.” 4 The
district court also dismissed Gomez’s claim for false arrest against the United
States, pursuant the FTCA, concluding that the finding of qualified immunity in
favor of Officer Doe “precludes the analogous FTCA claim.”
Turning to Gomez’s excessive force and battery claims, the district court
concluded that “the brief choking and slamming of Gomez against a vehicle” was
de minimis force and that Officer Doe was therefore entitled to qualified immunity
as to the excessive force claim. The district court then reached the same finding as
to Gomez’s battery claim against the United States, which was governed by Florida
law, pursuant to the FTCA.
Gomez timely appealed.
4
The district court also stated that it would have arrived at the same conclusion through
“the application of the broader principles set out in Terry v. Ohio,” 392 U.S. 1, 88 S. Ct. 1868(1968).
5
Case: 14-10031 Date Filed: 02/11/2015 Page: 6 of 23
II. STANDARD OF REVIEW
We review de novo a district court’s grant of a Rule 12(b)(6) motion to
dismiss, accepting all factual allegations in the complaint as true and construing
them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach
Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).
Under Rule 12(b)(6), the plaintiff bears the “obligation to provide the
‘grounds’ of his ‘entitlement to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 1964–65 (2007) (brackets omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949 (2009). Indeed, “a complaint’s factual allegations must be enough to raise a
right to relief above the speculative level.” Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 955, 974 (11th Cir. 2008) (internal quotation marks and brackets
omitted).
We may affirm for any reason supported by the record, even if not relied
upon by the district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th
Cir. 2008).
III. GOMEZ’S CLAIMS AGAINST OFFICER DOE
We begin our analysis of Gomez’s appeal by reviewing our qualified
immunity jurisprudence, and we then turn to Gomez’s specific arguments.
6
Case: 14-10031 Date Filed: 02/11/2015 Page: 7 of 23
A. Qualified Immunity
“Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacities unless their conduct violates
‘clearly established statutory or constitutional rights of which a reasonable person
would have known.’” 5 Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)
(quoting Hope v. Pelzer, 536 U.S. 730, 742, 122 S. Ct. 2508, 2516 (2002)
(quotation marks omitted)).
Qualified immunity applies to a defendant who establishes that he was a
government official “acting within the scope of his discretionary authority when
the allegedly wrongful acts occurred.” Courson v. McMillian, 939 F.2d 1479,
1487 (11th Cir. 1991) (quotation marks omitted). “Once the defendant establishes
that he was acting within his discretionary authority, the burden shifts to the
plaintiff to show that qualified immunity is not appropriate.” Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002).
The “threshold inquiry” in determining whether qualified immunity is
appropriate is “whether plaintiff’s allegations, if true, establish a constitutional
violation.” Pelzer, 536 U.S. at 736, 122 S. Ct. at 2513. If the plaintiff’s
allegations, taken as true, fail to establish a constitutional violation, qualified
5
Our qualified immunity analysis is the same, regardless of whether the plaintiff files suit
under 42 U.S.C. § 1983 or, as here, pursuant to Bivens. See Wilson v. Layne, 526 U.S. 603, 609,
119 S. Ct. 1692, 1696 (1999).
7
Case: 14-10031 Date Filed: 02/11/2015 Page: 8 of 23
immunity attaches and the district court should dismiss the complaint. Chesser v.
Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).
Even if the plaintiff alleges facts that would establish a violation of a
constitutional right, qualified immunity will shield the defendant from suit unless
the right was “clearly established at the time of the alleged violation.” Holloman
ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). “The relevant,
dispositive inquiry in determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir.
2009) (quotation marks omitted).
“[W]e need not employ a rigid two-step procedure, but rather may exercise
our discretion to decide ‘which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular
case at hand.’” Gilmore v. Hodges, 738 F.3d 266, 273 (11th Cir. 2013) (quoting
Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009)).
B. Gomez’s False Arrest Claim against Officer Doe
On appeal, Gomez states that “[t]he discrete issue before this Court is
whether [Gomez’s] Fourth Amendment rights were violated when he was
unnecessarily detained in conjunction with the execution of the arrest warrant”
(emphasis added). Gomez argues exclusively that the rule established in Michigan
8
Case: 14-10031 Date Filed: 02/11/2015 Page: 9 of 23
v. Summers, 452 U.S. 692, 101 S. Ct. 2587 (1981)—allowing an officer to
temporarily detain an individual who is present at a residence during the execution
of a search warrant at the residence—does not apply to situations where police are
executing arrest warrants.
At no point in his briefs does Gomez contend that Officer Doe’s actions
constituted an arrest, rather than a temporary stop or temporary detention. Nor
does he argue that Officer Doe’s acts failed to meet the standard set out in
Summers. Id. at 702–03, 101 S. Ct. at 2594. Rather, Gomez merely argues that
because Summers involved a search warrant and this case involves an arrest
warrant, the reasoning of Summers should not apply. Thus, we consider only that
argument. See Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1306 (11th Cir. 2012)
(arguments not raised on appeal are abandoned).
1. Temporary Detention Claim under the Fourth Amendment
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons . . . against unreasonable searches and seizures, shall not be
violated . . . .” U.S. Const. amend. IV. This Court’s Fourth Amendment
jurisprudence long has identified three categories of encounters between citizens
and police: (1) “police-citizen communications involving no coercion or
detention”; (2) “brief seizures or investigative detentions”; and (3) “full-scale
arrests.” United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989).
9
Case: 14-10031 Date Filed: 02/11/2015 Page: 10 of 23
The first category of encounters, involving no coercion or detention, does
not implicate the Fourth Amendment. Id. The second category includes temporary
detentions, which are permissible where an officer has a “reasonable, articulable
suspicion that criminal activity is afoot,” Illinois v. Wardlow, 528 U.S. 119, 123,
120 S. Ct. 673, 675 (2000), or where an exception to general Fourth Amendment
principles exists, see, e.g., Summers, 452 U.S. at 705, 101 S. Ct. at 2595 (detention
of individuals present at a residence during the execution of a search warrant). The
third category consists of full arrests, which must be supported by probable cause
and includes arrests arising out of seizures that began as temporary detentions. See
United States v. Brignoni-Ponce, 422 U.S. 873, 881–82, 95 S. Ct. 2574, 2580
(1975) (noting that, after the conclusion of a temporary detention, “any further
detention or search must be based on consent or probable cause”). We are
presented here with the second category: a temporary detention.
2. Michigan v. Summers
In Summers, police preparing to execute a search warrant saw the defendant
walking out the front door of the target house and down the front steps. 452 U.S.
at 693, 101 S. Ct. at 2589. Police “requested his assistance in gaining entry,”
required him to re-enter the house, “and detained him while they searched the
premises.” Id. After finding narcotics in the house and identifying the defendant
10
Case: 14-10031 Date Filed: 02/11/2015 Page: 11 of 23
as an owner of the house, police arrested him, searched him, and discovered in his
coat pocket an envelope containing heroin. Id.The Michigan Supreme Court held that the initial detention violated the
defendant’s Fourth Amendment rights and that the evidence of heroin found in his
coat must be suppressed. Id. at 694, 101 S. Ct. at 2590. However, the United
States Supreme Court reversed, holding that “a warrant to search for contraband
founded on probable cause implicitly carries with it the limited authority to detain
the occupants of the premises while a proper search is conducted.” Id. at 705, 101
S. Ct. at 2595.
The Summers Court posited three law enforcement interests that justify
detaining an individual present during the execution of a search warrant: (1)
“preventing flight in the event that incriminating evidence is found”; (2)
“minimizing the risk of harm to the officers”; and (3) facilitating “the orderly
completion of the search,” as detainees’ “self-interest may induce them to open
locked doors or locked containers to avoid the use of force.” Id. at 702–03, 101 S.
Ct. at 2594. The Summers Court noted, “We do not view the fact that [Summers]
was leaving his house when the officers arrived to be of constitutional significance.
The seizure of [him] on the sidewalk outside was no more intrusive than the
detention of those residents of the house whom the police found inside.” Id. at 702
11
Case: 14-10031 Date Filed: 02/11/2015 Page: 12 of 23
n.16, 101 S. Ct. at 2594 n.16.6 The Supreme Court thus held that, during a house
search, “[t]he risk of harm to both the police and the occupants is minimized if the
officers routinely exercise unquestioned command of the situation.” Id. at 702–03,
101 S. Ct. at 2594.
Although Summers expressly reserved judgment on “whether the same
result would be justified if the search warrant merely authorized a search for
evidence” instead of contraband, id. at 705 at n.20, 101 S. Ct. at 2595 n.20, the
Supreme Court has subsequently indicated that the Summers exception is a broad,
categorical rule and applied it again where the search warrant was “for, among
other things, deadly weapons and evidence of gang membership,” Muehler v.
Mena, 544 U.S. 93, 95–96, 125 S. Ct. 1465, 1468 (2005). The plaintiff in Muehler
was asleep in the home, was awakened and moved to the garage, was asked
questions about her immigration status, and was detained even after it was clear
she posed no safety threat to the officers. Id. at 96–97, 125 S. Ct. at 1468–69. The
Supreme Court held that the plaintiff’s “detention was, under Summers, plainly
permissible.” Id. at 98, 125 S. Ct. at 1470. It added that (1) “[a]n officer’s
authority to detain incident to a search is categorical; it does not depend on the
quantum of proof justifying detention or the extent of the intrusion to be imposed
6
At the outset, the Supreme Court said the defendant was “descending the front steps”
when detained, Summers, 452 U.S. at 693, 101 S. Ct. at 2589, but in a footnote said the seizure
was “on the sidewalk outside” the defendant’s home, id. at 702 n.16, 101 S. Ct. at 2594 n.16.
12
Case: 14-10031 Date Filed: 02/11/2015 Page: 13 of 23
by the seizure,” and (2) the plaintiff’s “detention for the duration of the search was
reasonable under Summers because a warrant existed to search 1363 Patricia
Avenue and she was an occupant of that address at the time of the search.” Id. at
98, 125 S. Ct. at 1470 (quotation marks omitted).
Subsequently, in Bailey v. United States, the Supreme Court noted that the
categorical “rule in Summers extends farther than some earlier exceptions because
it does not require law enforcement to have particular suspicion that an individual
is involved in criminal activity or poses a specific danger to the officers.” 568 U.S.
___, ___, 133 S. Ct. 1031, 1037–38 (2013). The Supreme Court in Bailey held that
the Summers rule is, however, spatially constrained to the “immediate vicinity” of
the premises to be searched. Id. at ___, 133 S. Ct. at 1041. In Bailey, two
occupants of a home left the scene prior to the officers making their presence
known and commencing a search of the home pursuant to a search warrant. Id. at
___, 133 S. Ct. at 1036. The officers followed the occupants’ car, stopped and
detained them “about a mile” from the home, and brought them back for the
duration of the search. Id. The Supreme Court held that the occupants were too
far away to justify the detention: “Limiting the rule in Summers to the area in
which an occupant poses a real threat to the safe and efficient execution of a search
13
Case: 14-10031 Date Filed: 02/11/2015 Page: 14 of 23
warrant ensures that the scope of the detention incident to a search is confined to
its underlying justification.” Id. at 1042.7
Whether the categorical detention exception recognized by Summers in a
search warrant context applies with equal force to the execution of an arrest
warrant is an open question in this Circuit. Other circuits have indicated that the
Summers exception also applies in the context of the police executing arrest
warrants. See United States v. Enslin, 327 F.3d 788, 797 n.32 (9th Cir. 2003)
(concluding that, “[a]lthough Summers involved a search pursuant to a search
warrant rather than a consent search to execute an arrest warrant, much of the
analysis remains applicable” and applying Summers in the arrest warrant context)8;
Cherrington v. Skeeter, 344 F.3d 631, 638 (6th Cir. 2003) (stating in dictum that
“the police have the limited authority to briefly detain those on the scene, even
7
In Maryland v. Buie, the Supreme Court addressed the scope of searches incident to
executing an arrest warrant, but that case did not involve the detention of another person who
was not subject to an arrest warrant. 494 U.S. 325, 110 S. Ct. 1093 (1990). In Buie, the
Supreme Court held that the police officers executing an arrest warrant could legally search areas
in an arrestee’s home “immediately adjoining the place of arrest from which an attack could be
immediately launched.” Id. at 334, 110 S. Ct. at 1098. However, any larger protective sweep of
the premises requires “articulable facts which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Id.8
In Enslin, the police were executing an arrest warrant for a fugitive and entered a home
where Enslin resided. 327 F.3d at 791. The Court held that requiring Enslin, who was in bed, to
raise his hands from under the bed covers was a seizure but was a reasonable one for the officers’
safety incident to the attempt to execute an arrest warrant for another person. Id. at 797–98.
14
Case: 14-10031 Date Filed: 02/11/2015 Page: 15 of 23
wholly innocent bystanders, as they execute a search or arrest warrant” (emphasis
added)). 9
Before leaving Summers, we note that this Court has already cited and
applied Summers to some extent to analyze what a police officer may lawfully do
at the scene vis-à-vis detaining and controlling an innocent passenger during a
traffic stop of a vehicle or a bystander on the sidewalk watching a fight. See
Hudson v. Hall, 231 F.3d 1289, 1292 (11th Cir. 2000) (passenger during a traffic
stop); United States v. Clark, 337 F.3d 1282, 1283 (11th Cir. 2003) (bystander to a
fight). In those cases, this Court has noted that, “[a]s the Supreme Court has
recognized, a police officer performing his lawful duties may direct and control—
to some extent—the movements and location of persons nearby, even persons that
the officer may have no reason to suspect of wrongdoing.” Hudson, 231 F.3d at1297 (citing, inter alia, Summers, 452 U.S. at 702–03, 101 S. Ct. at 2594)10; see
9
See also Katzka v. Leong, 11 F. App’x 854, 855 (9th Cir. 2001) (unpublished) (holding
that, “[a]lthough Summers dealt with execution of a search warrant, rather than an arrest warrant,
its analysis applies equally” to justify the temporary detention of an individual who was present
inside a house where police executed an arrest warrant).
10
In Hudson, a police officer stopped a car after the driver turned onto a street without
using his turn signal. 231 F.3d at 1292. The officer asked the driver and the two passengers to
alight from the car. Id. All three complied. Id. The officer also asked all three for consent to
search their persons, but one of the passengers, plaintiff Meadows, initially refused to consent.
Id. The officer told Meadows, “If you don’t want to be searched, start walking.” Id. Meadows
consented. Id. The officer reached into Meadows’s pockets and looked into Meadows’s shorts.
Id.Meadows sued, contending his consent to the search was coerced and thus the search
violated his constitutional rights. See id. at 1297. Because no case held a similar command—to
15
Case: 14-10031 Date Filed: 02/11/2015 Page: 16 of 23
Clark, 337 F.3d at 1286–87 (11th Cir. 2003) (citing Summers and stating that “the
Supreme Court held that the ‘risk of harm’ to officers is ‘minimized’ when police
officers ‘exercise unquestioned command of the situation’”). 11
3. Gomez’s False Arrest Claim against Officer Doe
Given that we have already utilized Summers before to analyze what an
officer may lawfully do in non-search-warrant situations, we do so here too.
The temporary detention of plaintiff Gomez outside his residence occurred
while the police were executing an arrest warrant for his father at the residence.
Gomez thus was in the immediate vicinity of the execution of the arrest warrant.
Prior to being detained, Gomez engaged Officer Doe verbally, essentially directing
the officer not to yell at Gomez’s mother. In addition, Gomez admits that he
bumped into Officer Doe, albeit unintentionally. Given these particular
consent to search or start walking—was coercive, this Court concluded that the police officer
was entitled to qualified immunity on Meadow’s unlawful search claim. Id.11
In Clark, an officer patrolling an Atlanta neighborhood at night “observed two men
fighting or wrestling in the middle of the street” near an automobile that was “stopped on the
wrong side of the street” with its lights on, one door open, and the engine running. 337 F.3d at
1283. The officer observed a bystander, plaintiff Clark, “standing on the sidewalk watching the
fight” while “not engaged in any criminal activity.” Id. The officer ordered the two men to stop
fighting, and they did. Id. After discovering that Clark and the other two men had been in the
nearby automobile, the officer “ordered all three men to reenter the vehicle and told them to sit
where they had previously been sitting and to keep their hands where he could see them.” Id.This Court concluded that the officer “did not violate the Fourth Amendment in briefly
detaining Mr. Clark after learning that he was not a mere bystander but, instead and notably, had
been a passenger in the automobile and an associate of two persons being investigated for
criminal activities.” Id. at 1288. In reaching this conclusion, this Court observed that “this is not
a case where a law enforcement officer detained an individual who was in no way associated
with any criminal wrongdoing, but rather was simply an unrelated bystander to a traffic violation
or to an altercation between other persons.” Id.16
Case: 14-10031 Date Filed: 02/11/2015 Page: 17 of 23
circumstances, we conclude that Officer Doe lawfully and reasonably directed and
controlled the movement of Gomez in conjunction with the safe and efficient
execution of the arrest warrant. We need not reach the issue of whether to adopt
Summers’s broad, categorical rule for all arrest-warrant cases, but decide only that,
under the totality of the facts here, Officer Doe did not act unlawfully in detaining
Gomez.
Alternatively, even if Officer Doe violated Gomez’s Fourth Amendment
rights by temporarily detaining him in this case in the absence of reasonable
suspicion or probable cause, it would not have been “clear to a reasonable officer
that [Officer Doe’s] conduct was unlawful in the situation he confronted.” See
Kobayashi, 581 F.3d at 1308. Because Officer Doe did not violate a clearly-
established right, he was entitled to qualified immunity as to Gomez’s temporary-
detention claim. 12
C. Gomez’s Excessive Force Claim against Officer Doe
On appeal, Gomez contends that the district court erred by dismissing his
excessive force claim because “de minimis force is actionable where a defendant is
not legally entitled to seize the plaintiff.” Gomez’s principal claim is that Officer
12
Again, we note that Gomez abandoned any argument that he was arrested, or that, even
if Summers applies, this is the “unusual case” that “might lead to a different conclusion” due to
“special circumstances.” See Summers, 452 U.S. at 705 n.21, 101 S. Ct. at 2595 n.21.
17
Case: 14-10031 Date Filed: 02/11/2015 Page: 18 of 23
Doe was not entitled to detain him and thus any use of force whatsoever, even de
minimis, was actionable.
1. The Use of Force on Gomez
“The 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. The reasonableness of a
seizure “depends on not only when a seizure is made, but also how it is carried
out.” Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 1699 (1985). “The
question is whether the officer’s conduct is objectively reasonable in light of the
facts confronting the officer.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir.
2002). “Use of force must be judged on a case-by-case basis from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)
(quotation marks omitted), modified on other grounds, 14 F.3d 583 (11th Cir.
1994).
“[T]he right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it.”
Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989). All claims
“that law enforcement officers have used excessive force . . . in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
18
Case: 14-10031 Date Filed: 02/11/2015 Page: 19 of 23
under the Fourth Amendment and its ‘reasonableness’ standard.” Id. at 395, 109 S.
Ct. at 1871. The use of de minimis force ordinarily will not be actionable. See
Vinyard, 311 F.3d at 1348–49 n.13.
Nonetheless, Gomez is correct that, “even de minimis force will violate the
Fourth Amendment if the officer is not entitled to arrest or detain the suspect.”
Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008) (citation and quotation
marks omitted). However, because Officer Doe was entitled to detain Gomez, the
district court did not err in dismissing Gomez’s excessive force claim against
Officer Doe insofar as Gomez seeks to allege a Fourth Amendment excessive-force
violation based on an unlawful detention.
2. Gomez’s Other Excessive Force Argument
On appeal, it is not clear whether Gomez preserved an additional argument
that, assuming Officer Doe could detain him, his use of force was excessive during
a lawful detention. Even assuming that Gomez properly preserved this issue, this
argument lacks merit, too.
Although the use of force in a detention or an arrest must be judged on a
case-by-case basis, “the application of de minimis force, without more, will not
support a claim for excessive force in violation of the Fourth Amendment.” Nolin
v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). This Court has held that a variety
of physical force techniques used by police on unhandcuffed individuals
19
Case: 14-10031 Date Filed: 02/11/2015 Page: 20 of 23
constituted de minimis force that does not rise to excessive force that could violate
the Fourth Amendment. See Croom v. Balkwill, 645 F.3d 1240, 1245 (11th Cir.
2011) (plaintiff alleged that, during the execution of a search warrant at a residence
plaintiff was visiting, an officer pushed the unhandcuffed plaintiff from a squatting
position to the ground, placed a foot on the plaintiff’s back for up to ten minutes,
and “click[ed]” her gun during that time); Nolin, 207 F.3d at 1255 (during the
course of an arrest, an officer grabbed an unhandcuffed plaintiff from behind by
the shoulder and wrist, threw the plaintiff against a van, kneed the plaintiff in the
back, pushed the plaintiff’s head into the side of the van, searched the plaintiff’s
groin area, and then handcuffed him); Jones v. City of Dothan, Ala., 121 F.3d
1456, 1460 (11th Cir. 1997) (police officers looking for a suspect in a harassment
case seized a plaintiff, “slammed” the unhandcuffed plaintiff against a wall, kicked
the plaintiff’s legs apart, and caused the plaintiff pain by requiring him to raise his
arms above his head) 13; Post, 7 F.3d at 1559 (during the course of an arrest,
plaintiff alleged that an officer placed the unhandcuffed plaintiff in a choke hold
for about five seconds).
On the other hand, the application of gratuitous force on an already-
handcuffed and compliant detainee or arrestee constitutes excessive force in
13
The Jones Court did not use the phrase “de minimis force,” but we have since described
Jones as being part of the line of cases establishing the de minimis force doctrine. See Nolin,
207 F.3d at 1256; Vinyard, 311 F.3d at 1348–49 n.13.
20
Case: 14-10031 Date Filed: 02/11/2015 Page: 21 of 23
violation of the Fourth Amendment, even if there is no visible or compensable
injury. See Saunders v. Duke, 766 F.3d 1262, 1265, 1270 (11th Cir. 2014)
(denying qualified immunity where officers allegedly slammed an already-
handcuffed arrestee’s head against the pavement with extreme force and stating
also that “a plaintiff claiming excessive force under the Fourth Amendment can
seek nominal damages if he does not have compensable injuries”); Hadley v.
Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (concluding that an officer used
excessive force when he punched an individual in the stomach while the individual
was handcuffed and not struggling or resisting); Slicker v. Jackson, 215 F.3d 1225,
1231–32 (11th Cir. 2000) (holding that a plaintiff could seek nominal damages
based on pain and suffering where officers kicked and beat the handcuffed
plaintiff).
Here, the force used by Officer Doe was applied before Gomez was
handcuffed. Gomez’s allegations are thus most closely analogous to the line of
cases in which this Court has held that the amount of force used on unhandcuffed
individuals was de minimis and did not rise to excessive force that could violate
the Fourth Amendment. See Nolin, 207 F.3d at 1255; Jones, 121 F.3d at 1460;
Post, 7 F.3d at 1559. Accordingly, under our precedent, and even if Gomez
preserved this argument, we cannot say the district court erred in dismissing his
excessive force claim.
21
Case: 14-10031 Date Filed: 02/11/2015 Page: 22 of 23
IV. GOMEZ’S CLAIMS AGAINST THE UNITED STATES
A. Gomez’s False Arrest Claim against the United States
On appeal, Gomez makes no argument that, even if Officer Doe was entitled
to qualified immunity, the district court erred by dismissing his false arrest claim
against the United States. 14 Accordingly, Gomez has abandoned any remaining
argument regarding his false arrest claim against the United States. See T-Mobile
USA, Inc., 691 F.3d at 1306.
Because we conclude that Officer Doe was entitled to qualified immunity,
and because Gomez advances no argument as to why his false arrest claim against
the United States was nonetheless wrongly dismissed, we conclude that the district
court did not err in dismissing Gomez’s false arrest claim against the United States.
B. Gomez’s Battery Claim against the United States
Gomez contends on appeal that the district court erred by dismissing his
battery claim against the United States because Florida law governs the claim and,
under Florida law, the reasonableness of an officer’s application of force is a
question for the jury to decide.
The FTCA demands that federal courts apply the law of the situs state to
determine whether a tort claim has been stated. 28 U.S.C. § 1346(b)(1). Here,
because the events giving rise to this lawsuit occurred in Florida, we apply Florida
14
In fact, Gomez makes no argument in his briefs specifically regarding his false arrest
claim against the United States.
22
Case: 14-10031 Date Filed: 02/11/2015 Page: 23 of 23
law to Gomez’s battery claim against the United States, brought pursuant to the
FTCA. Under Florida law, “an officer is liable for damages only where the force
used is clearly excessive.” City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d
Dist. Ct. App. 1996).
In this case, we have already concluded that the amount of force used was de
minimis. Therefore, we likewise conclude that Gomez has failed to allege facts
that, if true, establish that the amount of force used was “clearly excessive,” as
required to establish a battery claim based on excessive force under Florida law.
Accordingly, Gomez has failed to state a claim upon which relief can be granted,
and the district court did not err in dismissing Gomez’s battery claim against the
United States.
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s dismissal of
Gomez’s claims against Officer Doe and the United States.
AFFIRMED.
23