James P. Crocker v. Deputy Sheriff Steven Eric Beatty

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14682
________________________
D.C. Docket No. 2:16-cv-14162-RLR
JAMES P. CROCKER,
Plaintiff - Appellant,
versus
DEPUTY SHERIFF STEVEN ERIC BEATTY,
Martin County Sheriff’s Office, in his individual capacity,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 20, 2021)
Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.
NEWSOM, Circuit Judge:
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When Deputy Sheriff Steven Beatty arrived at the scene of a fatal car crash
on I-95 in south Florida, he saw James Crocker standing in the median taking
photos of the accident with his phone. Beatty seized Crocker’s phone and told him
to drive away. When Crocker refused to leave without his phone, Beatty arrested
him and left him in a hot patrol car for about 30 minutes. Crocker sued, alleging
that Beatty violated his rights under the First, Fourth, and Fourteenth Amendments
and Florida law. The district court granted Beatty summary judgment on all of
Crocker’s claims save one, on which Crocker later prevailed at trial. Crocker now
appeals the district court’s order.
We affirm. In particular, we hold (1) that Crocker’s First Amendment claim
is barred by qualified immunity, (2) that his false-arrest claims fail because Beatty
had probable cause to arrest him, and (3) that his excessive-force claim fails on the
merits and, in any event, is barred by qualified immunity.
I
A
Facts first. 1 James Crocker was driving north on I-95 through Florida when
he saw an overturned vehicle in the median. Crocker pulled over to the shoulder
and got out of his car to see if he could help. Ten to fifteen other people did the
1
Because we are reviewing the district court’s order granting Beatty summary judgment, we take
the facts in the light most favorable to Crocker. Skop v. City of Atlanta, 485 F.3d 1130, 1136
(11th Cir. 2007). As appropriate, we will note where Beatty’s account diverges from Crocker’s.
2
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same. As law-enforcement and emergency personnel began to arrive, Crocker and
the other onlookers moved away. Crocker then stood 40–50 feet from the accident
scene and about 125 feet from his own vehicle. Crocker and other bystanders took
pictures of the scene with their phones.
Martin County Deputy Sheriff Steven Beatty approached Crocker and
confiscated his phone—Crocker says “without warning or explanation.” When
Crocker asked whether it was illegal to photograph the accident scene, Beatty
replied: “[N]o, but now your phone is evidence of the State.” Beatty instructed
Crocker to drive to a nearby weigh station to wait. Crocker didn’t leave; instead,
he offered to delete the pictures from his phone. Beatty again told Crocker to go to
the weigh station and that someone from the Florida Highway Patrol would follow
up with him about his phone. Crocker again refused, telling Beatty: “I’ve been a
law-abiding citizen of this town for 20 something years, [and] I deserve to be
treated with dignity and respect.”
At that point, Beatty informed Crocker that he was under arrest for resisting
an officer. Crocker then offered to leave—but, he said, not without his phone.
Beatty handcuffed Crocker and escorted him toward his patrol car. Along the way,
Crocker told Beatty: “[S]ir, I’ve been personal friends with [Sheriff] Will Snyder
over 25 years, I employ over a hundred people in this town, [and] I’ve never
broken the law.” Beatty responded: “I don’t care who you know or how many
3
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people you employ, you’re going to jail.” After placing Crocker in the patrol car,
Beatty turned off the air conditioning.2 Outside, it was about 84° Fahrenheit, 3 and
inside the patrol car, Crocker became hot and uncomfortable. He sweated
profusely, experienced some trouble breathing, and felt anxious. Beatty left
Crocker for a short while, and when he returned to the car Crocker begged for air
and said he was “about to die.” Beatty responded, “[I]t’s not meant to be
comfortable sir,” and left Crocker where he was.
Sometime later, a Florida Highway Patrol trooper came by, opened the car’s
door, and asked Crocker for his driver’s license. Crocker pleaded with her for
help, too. Shortly thereafter, Crocker says, the trooper spoke to Beatty, who
returned to the car and turned the AC back on.
In total, Crocker was left in the hot patrol car for somewhere between 22 and
30 minutes, after which Beatty drove him to the local jail. County officials
eventually released Crocker, returned his phone to him, and dropped the “resisting
2
Beatty denies turning the AC off or down.
3
The district court took judicial notice of this fact. Although “the taking of judicial notice of
facts is, as a matter of evidence law, a highly limited process,” we’ve observed that “scientific
facts” are among “the kinds of things about which courts ordinarily take judicial notice.” Shahar
v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997) (en banc). The temperature outside on a given
day qualifies.
4
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an officer” charge. Crocker didn’t seek any medical attention in the aftermath of
his arrest. 4
B
Crocker sued Beatty and Martin County Sheriff William Snyder under 42
U.S.C. § 1983. As relevant here, Crocker alleged violations of his rights under the
First, Fourth, and Fourteenth Amendments on the grounds that Beatty (1)
prevented him from taking photographs of government officials, (2) seized his
phone and falsely arrested him, and (3) used excessive force during the arrest.
Crocker separately challenged his arrest under Florida law.
The district court granted Snyder’s motion for summary judgment in its
entirety and granted Beatty’s motion on qualified-immunity grounds with respect
to all of Crocker’s claims except the one alleging that his phone was seized in
violation of the Fourth Amendment. Crocker filed a motion for reconsideration,
which the court denied.
4
Although Crocker submitted an expert report stating that he suffered severe contusions as a
result of being handcuffed by Beatty, the district court excluded that report because (1) it came
four years after Crocker’s arrest, (2) it contradicted Crocker’s own testimony that he suffered no
visible injuries from being handcuffed, (3) it ignored other significant contributing factors to
Crocker’s condition, like his pre-existing carpal-tunnel syndrome, and (4) the doctor who
authored the report purporting to link Crocker’s wrist problems to his arrest didn’t know that
Crocker had been arrested (and handcuffed) again only weeks after this incident. Crocker
doesn’t challenge the exclusion of this expert report on appeal.
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Beatty filed an interlocutory appeal of the district court’s order denying him
qualified immunity on the phone-seizure claim, but this Court affirmed. Crocker v.
Beatty, 886 F.3d 1132, 1138 (11th Cir. 2018). Crocker prevailed on that claim at
trial, and the jury awarded him $1,000 in damages.
Crocker then appealed the district court’s summary judgment order granting
Beatty qualified immunity on the First Amendment, false-arrest, and excessive-
force claims, which became final when judgment was entered following the jury
verdict. This is Crocker’s appeal.
II
Before us, Crocker presents three issues. He contends that the district court
shouldn’t have granted summary judgment to Beatty on (1) his First Amendment
claim, (2) his Fourth Amendment and state-law false-arrest claims, or (3) his
Fourteenth Amendment excessive-force claim. Because the district court rejected
each claim on qualified-immunity grounds, we will begin with an overview of how
qualified immunity works.5
A
Qualified immunity “shields officials from civil liability so long as their
conduct ‘does not violate clearly established statutory or constitutional rights of
5
This Court “review[s] a district court’s grant or denial of a motion for summary judgment de
novo.” Harris v. Bd. of Educ. of the City of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997) (per
6
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which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11
(2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). When qualified
immunity applies, it is “an immunity from suit rather than a mere defense to
liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The doctrine shields “all
but the plainly incompetent or those who knowingly violate the law.” Gates v.
Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011)).
“To receive qualified immunity, the officer must first show that he acted
within his discretionary authority.” Lewis v. City of W. Palm Beach, 561 F.3d
1288, 1291 (11th Cir. 2009). It’s undisputed here that Beatty was acting within his
discretionary authority, so it falls to Crocker to “show that qualified immunity
should not apply.” Id. To do so, Crocker must allege facts establishing both (1)
that Beatty violated a constitutional right and (2) that the relevant right was
“clearly established” at the time of the alleged misconduct. Jacoby v. Baldwin
Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016). We can affirm a grant of qualified
immunity by addressing either prong or both. Pearson, 555 U.S. at 236.
curiam) (quotation marks omitted). Whether a public official is entitled to qualified immunity is
“a purely legal question, subject to de novo review.” Id. “Summary judgment is appropriate
where ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.’” Skop, 485 F.3d at 1136 (quoting Fed. R. Civ. P. 56(c)). We view
the facts “in the light most favorable to the non-moving party.” Id. (quotation marks omitted).
“We may affirm the judgment below on any ground supported by the record, regardless of
whether it was relied on by the district court.” Statton v. Fla. Fed. Jud. Nominating Comm’n,
959 F.3d 1061, 1065 (11th Cir. 2020).
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On the second prong, only decisions of the United States Supreme Court,
this Court, or the highest court in a state can “clearly establish” the law. Gates,
884 F.3d at 1296. Because only clearly established law gives an officer “fair
notice that her conduct was unlawful,” Brosseau v. Haugen, 543 U.S. 194, 198
(2004), the Supreme Court has held that the contours of the constitutional right at
issue “must be sufficiently clear [so] that a reasonable official would understand
that what he is doing violates that right,” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(quotation marks omitted).
Under this Court’s precedent, a right can be clearly established in one of
three ways. Crocker must point to either (1) “case law with
indistinguishable facts,” (2) “a broad statement of principle within the
Constitution, statute, or case law,” or (3) “conduct so egregious that a
constitutional right was clearly violated, even in the total absence of case law.”
Lewis, 561 F.3d at 1291–92. Although we have recognized that options two and
three can suffice, the Supreme Court has warned us not to “define clearly
established law at a high level of generality.” Plumhoff v. Rickard, 572 U.S. 765,
779 (2014) (quotation marks omitted). For that reason, the second and third paths
are rarely-trod ones. See Gaines v. Wardynski, 871 F.3d 1203, 1209 (11th Cir.
2017) (collecting cases). And when a plaintiff relies on a “general rule[]” to show
that the law is clearly established, it must “appl[y] with obvious clarity to the
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circumstances.” Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007) (quotation
marks omitted; emphasis added); see also Youmans v. Gagnon, 626 F.3d 557, 563
(11th Cir. 2010) (“[I]f a plaintiff relies on a general rule, it must be obvious that
the general rule applies to the specific situation in question.”).
With that background, we turn to Crocker’s claims.
B
1
We begin with Crocker’s First Amendment claim. The district court held
that Beatty was entitled to qualified immunity because the law underlying
Crocker’s First Amendment claim wasn’t clearly established. We agree.
Crocker’s contrary argument appears to be of the Path-2 variety—i.e., a
contention that a “broad statement of [First Amendment] principle” in our caselaw
clearly established his right to photograph the accident scene. For that proposition,
he first points to our three-paragraph opinion in Smith v. City of Cumming, 212
F.3d 1332 (11th Cir. 2000). There, we said that “[t]he First Amendment protects
the right to gather information about what public officials do on public property,
and specifically, a right to record matters of public interest.” 212 F.3d at 1333. In
particular, we held that the plaintiffs there “had a First Amendment right, subject to
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reasonable time, manner and place restrictions, to photograph or videotape police
conduct.” Id. So far, so good—that’s certainly a “broad statement.”
But in our view, it is decidedly not “obvious” that Smith’s “general rule
applies to the specific situation in question” here. Youmans, 626 F.3d 557 at 563.
To borrow the district court’s phrasing, Crocker was “spectating on the median of
a major highway at the rapidly evolving scene of a fatal crash.” In that “specific
situation,” we don’t think it would be obvious to every reasonable officer that
Smith gave Crocker the right to take pictures of the accident’s aftermath. Smith’s
declaration of a right to record police conduct came without much explanation; as
the Third Circuit has pointed out, our opinion “provided few details regarding the
facts of the case, making it difficult to determine the context of the First
Amendment right it recognized.” Kelly v. Borough of Carlisle, 622 F.3d 248, 260
(3d Cir. 2010). What’s more, Smith went on to hold that “[a]lthough the [plaintiffs
there] ha[d] a right to videotape police activities, they ha[d] not shown that the
Defendants’ actions violated that right.” 212 F.3d at 1333. The dearth of detail
about the contours of the right announced in Smith undermines any claim that it
provides officers “fair warning” under other circumstances.6 And that’s especially
6
None of the other cases that Crocker cites help his cause. Childs v. Dekalb County, 286 F.
App’x 687 (11th Cir. 2008), and Bowens v. Superintendent of Miami South Beach Police
Department, 557 F. App’x 857 (11th Cir. 2014), don’t do the trick because “[u]npublished cases
. . . do not serve as binding precedent and cannot be relied upon to define clearly established
law.” J W by & through Tammy Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1260 n.1
10
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so here, given the chaos of a fatal car crash and a citizen who (as we will explain
shortly) might well have been photographing the incident from an unlawful
vantage point.
The dissent concludes otherwise on the ground that “the broad
pronouncement in Smith underscores the right’s general applicability.” Dissenting
Op. at 53. And so, as the dissent reads Smith, the “right to record police activity”
may be “limited only by ‘reasonable time, manner and place restrictions.’”
Dissenting Op. at 53–4 (quoting Smith, 212 F.3d at 1333). Because the dissent
finds no such restrictions in the record here, it would “hold that Mr. Crocker’s First
Amendment right to record the fatal car crash was clearly established” by Smith.
Dissenting Op. at 56.
A couple of responses. First, there is the Supreme Court’s oft-repeated
instruction “not to define clearly established law at a high level of generality.”
Ashcroft, 563 U.S. at 742. With that negative injunction comes a positive
command to ask “whether the violative nature of particular conduct is clearly
established.” Mullenix, 577 at 12 (quotation marks omitted). And we must answer
(11th Cir. 2018) (citation omitted). (Bowens is doubly deficient; not only is it unpublished, but it
was also decided in 2014, two years after the events underlying this case. See Brosseau, 543
U.S. at 200 n.4 (decisions that postdate alleged misconduct can’t clearly establish the law).) The
various district court decisions that Crocker cites fare no better, as they likewise can’t clearly
establish the law. See D’Aguanno v. Gallagher, 50 F.3d 877, 880 n.5 (11th Cir. 1995); see also
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal district court judge is
not binding precedent in either a different judicial district, the same judicial district, or even upon
the same judge in a different case.” (quotation marks and citation omitted)).
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that question “in light of the specific context of the case, not as a broad general
proposition.” Brosseau, 543 U.S. at 198 (quotation marks omitted). Given that
guidance, it seems to us that Smith’s lack of explanation remains more vice than
virtue for the purpose of clearly establishing the law here.
Second, we think that one of the few contextual clues Smith did leave behind
counsels against reading it to have clearly established the law for the purposes of
this case. Specifically, Smith’s reference to “reasonable time, manner and place
restrictions” (which the dissent echoes) calls to mind either “a traditional public
forum—parks, streets, sidewalks, and the like”—or a “designated public forum”—
i.e., a place made a public forum by government action. Minnesota Voters All. v.
Mansky, 138 S. Ct. 1876, 1885 (2018) (explaining that time, place, and manner
restrictions may govern speech in those public forums). Smith’s allusion to these
restrictions indicates that the plaintiffs there attempted to film police activity while
in a public forum of some sort—Smith would seem to be a First Amendment
anomaly otherwise. Needless to say, I-95’s median isn’t a public forum of any
stripe. It’s not clear to us, then, that Smith’s (and the dissent’s) time-place-and-
manner gloss even applies here. 7
7
The dissent notes that time, place, and manner restrictions can be imposed in places other than
public forums. Dissenting Op. at 54 n.2. That’s true. But what makes Smith’s reference to those
restrictions telling is that the Court there said that only those restrictions could be imposed on the
right that it announced. See Smith, 212 F.3d at 1333. We know that in nonpublic forums, “the
government has much more flexibility to craft rules limiting speech.” Minnesota Voters All. v.
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To be clear, though, the question isn’t whether Smith might imply to us some
kind of public-forum predicate; rather, we must ask whether every reasonable
police officer in Beatty’s position would have known that Crocker had a right to
record the accident’s aftermath, subject only to reasonable time, place, and manner
restrictions. See Ashcroft, 563 U.S. at 741; Gates, 884 F.3d at 1303 (“[T]he test
asks whether already existing law was so clear that, given the specific facts facing
this particular officer, one must conclude that every reasonable official would have
understood that what he is doing violates the Constitutional right at issue.”
(quotation marks omitted)). We don’t think so. Subject to exceptions not relevant
here, Florida law prohibits individuals from parking on the side of a “limited
access facility” like I-95, Fla. Stat. § 316.1945(1)(a)(11), or walking on the same,
Mansky, 138 S. Ct. 1876, 1885 (2018); see also id. at 1885–86 (noting that “the government may
impose some content-based restrictions on speech in nonpublic forums, including restrictions
that exclude political advocates and forms of political advocacy”). So, given that Smith said that
the only possible restrictions on the right that it recognized were time, place, and manner
restrictions, one can reasonably infer that the Court there recognized a right to record police
conduct in public forums.
The dissent also suggests that all this public-forums talk is beside the point because Smith
held that there’s a First Amendment “right to gather information about what public officials do
on public property.” 212 F.3d at 1333 (emphasis added). Accordingly, on the dissent’s view,
Smith grants citizens the right to film police “in public,” full-stop. Dissenting Op. at 54 n.2. We
don’t think it’s quite that simple. First, not all “public property” is “in public,” per se, and
second, even public property that is decidedly in public doesn’t, by virtue of that fact alone,
become a free-speech-friendly zone. See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983)
(“Publicly owned or operated property does not become a ‘public forum’ simply because
members of the public are permitted to come and go at will.”); Hodge v. Talkin, 799 F.3d 1145,
1160 (D.C. Cir. 2015) (“[T]he Supreme Court plaza’s status as a nonpublic forum is unaffected
by the public’s unrestricted access to the plaza at virtually any time.”). Those background
principles, we think, counsel against reading Smith too aggressively, or, more relevantly,
expecting every reasonable officer to do so.
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see id. § 316.130(18). When Beatty seized his phone, Crocker was arguably in
violation of both prohibitions. The dissent’s Smith-based argument implies that, in
addition to banning individuals from parking or walking on interstates, Florida
must also craft separate time, place, and manner restrictions governing the speech
of people who break those laws. That seems odd to us—and at the very least not
obviously correct. The Supreme Court has long held that “[t]he State, no less than
a private owner of property, has power to preserve the property under its control
for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U.S. 828, 836
(1976) (quotation marks omitted). And more to the point, we don’t think that it
would have been obviously right to every reasonable officer in Beatty’s position.
See Ashcroft, 563 U.S. at 741; Gates, 884 F.3d at 1303.8
8
One more thing: By its terms, Smith applies only to what the Court there called the right to
“photograph or videotape police conduct.” 212 F.3d at 1333. The dissent claims that “it is
usually easy enough to know whether a plaintiff was recording police activity” and that here,
Crocker “was photographing police conduct.” Dissenting Op. at 54. To the extent that the
general proposition builds on the case-specific point, we’re dubious. In his affidavit, Crocker
said that he stood in the median “taking photographs and recording video . . . of the crashed
vehicle, the first responders and the jaws of life.” Asked in his deposition, “What were you
taking pictures of?” Crocker replied, “The overall scene, overturned vehicle, firemen.” And
when asked if he had “a specific reason” for taking pictures of the accident scene, Crocker said:
“I really didn’t have a clear and present agenda. I do remember seeing beer bottles laying there
and I do remember photographing the beer bottles.” On the district court’s account, Crocker had
just started “photographing the overall scene, which included empty beer bottles, the overturned
vehicle, and firemen” when, less than 30 seconds later, he encountered Beatty. Even if, for
purposes of our review, we were to grant that Crocker’s references to “first responders” and
“firemen” included police officers, we don’t think it’s always as easy as the dissent suggests for
an officer acting in the heat of the moment to determine whether an onlooker is in fact
“photograph[ing] or videotap[ing] police conduct” within the meaning of Smith.
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For the foregoing reasons, we hold that Smith’s rule didn’t apply with
“obvious clarity to the circumstances,” Long, 508 F.3d at 584, and, therefore, that
Beatty is entitled to qualified immunity on Crocker’s First Amendment claim.
2
We turn next to Crocker’s two false-arrest claims, the first of which arises
under the Fourth Amendment, and the second of which rests on Florida law.
a
On Crocker’s Fourth Amendment claim, Beatty is entitled to qualified
immunity because he didn’t violate Crocker’s constitutional rights.9
The Fourth Amendment protects individuals “against unreasonable searches
and seizures.” U.S. Const. amend. IV. An arrest constitutes a “seizure” within the
meaning of the Fourth Amendment, and this Court “assess[es] the reasonableness
of an arrest by the presence of probable cause for the arrest.” Carter v. Butts Cnty.,
821 F.3d 1310, 1319 (11th Cir. 2016). The existence of probable cause bars a
Fourth Amendment false-arrest claim. Marx v. Gumbinner, 905 F.2d 1503, 1505–
06 (11th Cir. 1990).
9
Although we often proceed straight to the clearly-established question to avoid making an
unnecessary pronouncement of constitutional law, here we exercise our discretion to reach the
constitutional question in order to conserve judicial resources. See Pearson, 555 U.S. at 236. As
we explain in text, the existence of probable cause dooms both of Crocker’s false-arrest claims,
and accordingly, we think it sensible to “avoid avoidance.” Camreta, 563 U.S. at 706.
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A few probable-cause basics: An officer has probable cause when “the facts
and circumstances within the officer’s knowledge, of which he or she has
reasonably trustworthy information, would cause a prudent person to believe,
under the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense.” Williamson v. Mills, 65 F.3d 155, 158 (11th Cir.
1995) (quotation marks omitted). Moreover, “[t]he validity of an arrest does not
turn on the offense announced by the officer at the time of the arrest.” Bailey v.
Bd. of Cnty. Comm’rs of Alachua Cnty., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992).
Finally, an officer’s subjective intent doesn’t matter for “ordinary, probable-cause
Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996).
As to Crocker’s Fourth Amendment claim, the district court held that Beatty
was shielded by qualified immunity because he had probable cause to arrest
Crocker for violating Florida Statute § 316.1945(1)(a)(11). That provision
prohibits (in relevant part) stopping, standing, or parking a vehicle “[o]n the
roadway or shoulder of a limited access facility.”10 There’s a carveout for Good
Samaritans, such that the prohibition doesn’t apply to “a person stopping a vehicle
to render aid to an injured person or assistance to a disabled vehicle in obedience to
the directions of a law enforcement officer.” Id. Florida law authorizes an officer
10
A limited-access facility is a “street or highway especially designed for through traffic and
over, from, or to which owners or occupants of abutting land or other persons have no right or
easement, or only a limited right or easement.” 2010 Fla. Stat. § 316.003(19).
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to conduct a warrantless arrest for any violation of § 316 committed in his
presence. Id. § 901.15(5).
Because Crocker’s car was parked on the shoulder of I-95, a “limited access
facility,” the district court held that Beatty had probable cause to arrest him. And
although Crocker might initially have been covered by the Good Samaritan
exception, the court held that he no longer qualified by the time he encountered
Beatty, at which point he was standing 40–50 feet away from the crash scene and
merely observing it.
We agree with the district court that Officer Beatty had probable cause to
arrest Crocker. Even under Crocker’s own version of the arrest, “the facts and
circumstances within [Beatty’s] knowledge” could have “cause[d] a prudent person
to believe,” Williamson, 65 F.3d at 158, that Crocker was violating
§ 316.1945(1)(a)(11). No one disputes that Crocker pulled over and parked on the
shoulder of a limited-access facility or that the arrest took place about 125 feet
from Crocker’s car. And the district court took judicial notice of the fact—which
we have no reason to doubt—that this particular stretch of I-95 is “relatively flat,”
and then concluded, in the light of that fact, that it would be unreasonable to infer
that Beatty was oblivious to Crocker’s car’s existence.
Crocker insists, however, that there’s no evidence that Beatty knew that
Crocker had driven to the scene and that Beatty therefore couldn’t formulate
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probable cause to arrest him for the parking offense. But Crocker’s own
testimony, which we accept as true, defeats his argument. Crocker testified that
during their brief encounter before the arrest, Beatty “told [him] to leave and drive
to the northbound weigh station and wait there”—to which Crocker responded that
he’d be more than happy to cooperate. Crocker also testified that “[Beatty] told me
to get in my car and drive to the northbound . . . weigh station.” That testimony—
both Beatty’s commands and Crocker’s responses—would have made little sense if
Crocker was a mere pedestrian.
All of that is to say that the facts within Beatty’s knowledge could “cause a
prudent person to believe,” Williamson, 65 F.3d at 158, that Crocker’s car was
parked on a limited-access facility in violation of Florida law. And at the time of
the arrest, Crocker was just taking pictures with his phone—not rendering aid—
meaning that he no longer even arguably qualified for the statute’s Good Samaritan
exception. Because Beatty had probable cause to arrest Crocker, there was no
constitutional violation, and Beatty is entitled to qualified immunity.
b
On, then, to the state-law false-arrest claim. Probable cause bars a claim for
false arrest under Florida law just as it does under federal law. Manners v.
Cannella, 891 F.3d 959, 975 (11th Cir. 2018); see also Rankin v. Evans, 133 F.3d
1425, 1435 (11th Cir. 1998) (recognizing that “probable cause constitutes an
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absolute bar to both state and § 1983 claims alleging false arrest” and that “the
standard for determining whether probable cause exists is the same under Florida
and federal law”). Because we hold that Beatty had probable cause to arrest,
Crocker’s Florida false-arrest claim—like his Fourth Amendment claim—fails.
Crocker counters that even if his arrest didn’t violate the Fourth
Amendment, it violated state law because the governing Florida statute requires the
offense at issue to occur “in the presence of the officer”—and here, Crocker
contends, the offense didn’t occur in Beatty’s presence. See Fla. Stat. § 901.15(5).
For support, Crocker points out that Florida “courts have strictly construed the
‘presence of the officer’ language, requiring that the arresting officer actually see
or otherwise detect by his senses that the person has violated the ordinance.”
Horsley v. State, 734 So. 2d 525, 526 (Fla. Dist. Ct. App. 1999).
No matter how strictly we construe it, though, the presence-of-the-officer
requirement was met here. Again, the relevant rule of Florida law is that “no
person shall . . . [s]top, stand, or park a vehicle” on the “shoulder of a limited
access facility.” Fla. Stat. § 316.1945(1)(a)(11). From the premise—already
explained—that Beatty could see that Crocker had parked on the shoulder of I-95,
it follows that the offense was committed in Beatty’s presence. Because Beatty
had probable cause to arrest Crocker for an offense committed in his presence, the
district court was right to give him summary judgment on this claim too.
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3
Finally, to Crocker’s argument that Beatty used excessive force in violation
of the Fourteenth Amendment by detaining him in a hot patrol car. 11 “We begin
from the premises that exposure to uncomfortable heat is part and parcel of life in
the South and, accordingly, that not every ‘hot car’ case will give rise to a
cognizable constitutional claim.” Patel v. Lanier Cnty., 969 F.3d 1173, 1178 (11th
Cir. 2020). This one doesn’t. Explaining why takes some doing.
First, we’ll survey the excessive-force landscape. Second, we’ll situate
Crocker’s claim within it. And finally, we’ll explain why the district court’s grant
of summary judgment was right even though its analysis was wrong. Because we
review a court’s judgment rather than its explanation for that judgment, Jennings v.
Stephens, 574 U.S. 271, 277 (2015), we will affirm.
a
Let’s start with what’s clear: There is no “generic ‘right’ to be free from
excessive force.” Graham v. Connor, 490 U.S. 386, 393 (1989). That’s because
§ 1983 protects rights—it doesn’t create them. Id. at 393–94; see also Baker v.
McCollan, 443 U.S. 137, 145 n.3 (1979) (explaining that § 1983 “is not itself a
source of substantive rights, but a method for vindicating federal rights elsewhere
11
Although Crocker argued in the district court that Beatty also used excessive force in
tightening his handcuffs and squeezing a pressure point on his shoulder, he hasn’t pursued those
arguments on appeal.
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conferred”). For purposes of claims under § 1983, three constitutional provisions
protect a right to be free from excessive force: the Fourth, Eighth, and Fourteenth
Amendments. Piazza v. Jefferson Cnty., 923 F.3d 947, 952 (11th Cir. 2019).
The Fourth Amendment, already introduced, secures “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .” U.S. Const. amend. IV. The prohibition
against “unreasonable . . . seizures” encompasses a bar on the use of excessive
force in the course of an arrest. See Graham, 490 U.S. at 394; Piazza, 923 F.3d at
952. The Eighth Amendment forbids the infliction of “cruel and unusual
punishments,” U.S. Const. amend. VIII, and the Supreme Court has interpreted it
to prohibit the use of excessive force against convicted prisoners. See Hudson v.
McMillian, 503 U.S. 1, 9 (1992). The Fourteenth Amendment provides that a State
shall not “deprive any person of life, liberty, or property, without due process of
law,” U.S. Const. amend. XIV, and the Court has construed those terms to forbid
the use of excessive force, too. See Kingsley v. Hendrickson, 576 U.S. 389, 393
(2015). So, under the Supreme Court’s current framework, the Fourth
Amendment covers arrestees, the Eighth Amendment covers prisoners, and the
Fourteenth Amendment covers “those who exist in the in-between—pretrial
detainees.” Piazza, 923 F.3d at 952.
With that background in mind, we turn to Crocker’s claim.
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b
The Supreme Court has long taught that “[i]n addressing an excessive force
claim brought under § 1983, analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged application of force.”
Graham, 490 U.S. at 394; accord, e.g., Paez v. Mulvey, 915 F.3d 1276, 1285 (11th
Cir. 2019). So, exactly what kind of excessive-force claim has Crocker alleged?
Not entirely clear. Crocker’s filings before the district court could be read as
raising either a Fourth Amendment claim, a Fourteenth Amendment claim, or
perhaps both. 12 But Crocker’s counsel later clarified that his hot-car excessive-
force claim relied solely on the Fourteenth Amendment. And in his opening brief
to this Court, Crocker expressly cast his claim in Fourteenth Amendment terms.
But as you might suspect from Crocker’s shape-shifting arguments, the
Fourteenth Amendment doesn’t offer a perfect fit for the facts here. As we said in
Piazza, the Fourteenth Amendment has been interpreted to protect “pretrial
detainees” from excessive force. See 923 F.3d at 952. And it’s not obvious that
Crocker was a pretrial detainee. The Supreme Court long ago described a pretrial
12
In his complaint, Crocker’s excessive-force claims against Beatty weren’t expressly tethered to
any particular constitutional provision. He generally alleged that Beatty violated his Fourth,
Eighth, and Fourteenth Amendment rights, but he didn’t specify which amendments were tied to
particular excessive-force allegations. In response to the motion for summary judgment, Crocker
explicitly relied on the Fourth Amendment, and he cited Graham repeatedly for propositions
about the Fourth Amendment right to be free from excessive force. But he also alluded to the
Fourteenth Amendment. All of that is to say that the precise nature of Crocker’s excessive-force
claim is hard to nail down from his district-court pleadings.
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detainee as a person who had received “a ‘judicial determination of probable cause
as a prerequisite to [the] extended restraint of [his] liberty following arrest.’” Bell
v. Wolfish, 441 U.S. 520, 536 (1979) (quoting Gerstein v. Pugh, 420 U.S. 103, 114
(1975)) (alterations in original). Because Crocker never made it to the probable-
cause-determination stage, calling him a “pretrial detainee” is hard to square with
Bell. Accordingly, it’s not clear that the Fourteenth Amendment provides the
appropriate framework for Crocker’s excessive-force claim.
Bell’s suggestion notwithstanding, we’ve acknowledged that “the line is not
always clear as to when an arrest ends and pretrial detainment begins.” Garrett v.
Athens-Clarke Cnty., 378 F.3d 1274, 1279 n.11 (11th Cir. 2004). As a result, the
line—for excessive-force purposes—between an arrestee and a pretrial detainee
isn’t always clear, either. See Hicks v. Moore, 422 F.3d 1246, 1254 n.7 (11th Cir.
2005) (“The precise point at which a seizure ends (for purposes of Fourth
Amendment coverage) and at which pretrial detention begins (governed until a
conviction by the Fourteenth Amendment) is not settled in this Circuit.”). And the
definitional problem creates a follow-on analytical issue: For someone who could
plausibly be characterized as either an arrestee or a pretrial detainee, it’s hard to
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say whether the Fourth or Fourteenth Amendment should govern the analysis. 13
The day may well come when we need to clarify the distinction.
Today, though, isn’t that day. Whether framed in terms of the Fourth or
Fourteenth Amendment, Crocker’s claim fails. 14
c
We will start with the Fourteenth Amendment analysis since that’s the
framework that Crocker has invoked before us. First, we’ll articulate the
governing standard—which the district court misapprehended and our dissenting
colleague disputes—and then, having done so, we’ll apply that standard to
Crocker’s case.
i
We recently laid out the proper Fourteenth Amendment excessive-force
framework and applied it in a “hot car” case in Patel. There, we began by
13
Our sister circuits disagree about how best to analyze claims that arise in this “legal twilight
zone.” See Wilson v. Spain, 209 F.3d 713, 715 & n.2 (8th Cir. 2000) (discussing circuit split and
collecting cases).
14
The dissent says that the question whether the Fourth or Fourteenth Amendment should govern
our analysis is “a question the majority opinion injects into this case.” Dissenting Op. at 56. But
in his brief to us, Beatty argued—no doubt in response to Crocker’s own variable framing of the
issue—that “[r]egardless of whether the Fourth or Fourteenth Amendment standard were applied
to this case, the use of force did not violate the Constitution,” Br. of Appellee at 23, and as part
of his argument that “Kingsley does not clearly establish the rights of an arrestee before arriving
at a detention center,” he contended that the law “did not define when the Fourth Amendment
ceases to apply and the Fourteenth Amendment begins to apply,” id. at 25. We took all that to
mean that one of Beatty’s points was that Crocker’s claim might fall on the “wrong” side of an
(admittedly) ill-defined line between Fourth and Fourteenth Amendment claims, such that
Kingsley, as a Fourteenth Amendment case, didn’t help Crocker’s cause.
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explaining that claims of excessive force under the Fourteenth Amendment used to
be analyzed like excessive-force claims under the Eighth Amendment, such that
we had to undertake a subjective inquiry into whether an officer applied force
“maliciously and sadistically.” Patel, 969 F.3d at 1181 (quoting Fennell v.
Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)). If so, then there was excessive
force. If not, then there wasn’t.
Not anymore. In Kingsley v. Hendrickson, the Supreme Court held that for
Fourteenth Amendment excessive-force claims “the relevant standard is objective
not subjective.” 576 U.S. at 395. Underscoring the shift, the Court repeated itself:
“[T]he appropriate standard for a pretrial detainee’s excessive force claim is solely
an objective one.” Id. at 397 (emphasis added); see also Miranda-Rivera v.
Toledo-Davila, 813 F.3d 64, 70 (1st Cir. 2016) (“[T]he Supreme Court has held
that the appropriate standard for a pretrial detainee’s Fourteenth Amendment
excessive force claim is simply objective reasonableness.”). So, as we said in
Patel, our Fourteenth Amendment excessive-force analysis now tracks the Fourth
Amendment’s “objective-reasonableness” standard rather than the Eighth
Amendment’s “malicious-and-sadistic standard.” 969 F.3d at 1181–82; see also
Piazza, 923 F.3d at 952 (reading Kingsley to require an objective-reasonableness
inquiry akin to Fourth Amendment excessive-force analysis). Here, the district
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court erroneously applied the old malicious-and-sadistic standard and, on that
basis, granted summary judgment on Crocker’s excessive-force claim.
Before applying Kingsley’s “objective not subjective” standard to the facts
of Crocker’s case, we must say a few words in response to our dissenting
colleague’s reading of that decision. On the dissent’s view, both before and after
Kingsley, a viable excessive-force claim can be based even on “objectively
reasonable force” provided that the officer-defendant acted with a sufficiently
sinister state of mind—what the dissent calls “an express intent to punish.”
Dissenting Op. at 59. That, the dissent says, is because under Bell v. Wolfish, 441
U.S. 520 (1979), “pretrial detainees can establish a violation of their Fourteenth
Amendment rights by showing that an official inflicted force with an express intent
to punish.” Dissenting Op. at 62. And, the dissent maintains, Kingsley shouldn’t
be read to have done “away with this method of proving Fourteenth Amendment
violations for excessive force claims when it said nothing about having done so.”
Id. at 63. On that theory, both before and after Kingsley, “proof of express intent
to punish is alone sufficient” to support an excessive-force claim. Id.
Several responses. First, while Kingsley certainly discusses Bell’s subjective
standard for punishment, we don’t draw from that discussion the dissent’s two-
track treatment of excessive-force claims. Consider, for instance, how the
Kingsley Court framed the case: “The question before us is whether, to prove an
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excessive force claim, a pretrial detainee must show that the officers were
subjectively aware that their use of force was unreasonable, or only that the
officers’ use of that force was objectively unreasonable.” 576 U.S. at 391–92
(second emphasis added). As the Court’s phrasing indicates, proof of objectively
unreasonable force has always been necessary to a pretrial detainee’s excessive-
force claim. See Piazza, 923 F.3d at 952 (“Historically, both prisoners and pretrial
detainees needed to show not only that a jail official deliberately used excessive
force, but also that the official did so maliciously or sadistically for the very
purpose of causing harm.” (quotation marks omitted; emphasis added)). Post-
Kingsley, such proof is sufficient. 576 U.S. at 398. But in becoming sufficient, it
didn’t cease to be necessary.
Second, we don’t think that the dissent’s assertion that, as a general matter,
unconstitutional “punishment” can be proven based on “an express intent to
punish,” Dissenting Op. at 62, demonstrates, more particularly, that proof of
objectively unreasonable force is unnecessary to an excessive-force claim. Here,
we think it important to distinguish between and among punishment and its
specific instantiations. We agree, of course, that the Constitution prohibits any
“punishment” of pretrial detainees, see Kingsley, 576 U.S. at 400, including the
“use of excessive force that amounts to punishment,” Graham, 490 U.S. at 395
n.10. But not all punishment involves excessive force. Indeed, neither Bell nor
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McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996)—the two cases on which the
dissent principally relies—mention “excessive force” at all. Rather, both involved
what we’ve called “conditions-of-confinement” claims. See, e.g., Patel, 969 F.3d
at 1182 n.6. And although the genus “punishment” contains several species,
including both excessive-force and conditions-of-confinement claims, the standard
by which one might discern the one won’t necessarily reveal the other. We don’t
think, then, that an express intent to punish alone, coupled with an objectively
reasonable use of force, can sustain an excessive-force claim.15
Third, it would be passing strange if, as the dissent seems to suggest, the
excessiveness of an officer’s use of force ultimately had nothing to do with the
excessiveness of that force but, instead, hinged entirely on proof of an “express
intent to punish.” Dissenting Op. at 63. Imagine, for instance, that an officer
gently and carefully places a suspect in the back of a brand new—and comfy, and
temperate—police cruiser, and as he’s doing so he growls, “I pray you hate every
second of this, you lowlife scum—it’s the punishment you deserve.” It’s
15
We recognize, of course, that Kingsley discusses cases involving a subjective intent to punish.
576 U.S. at 398–99. But for reasons explained in text, we haven’t—and don’t—read Kingsley to
preserve (or create) the possibility of an excessive-force violation, even in circumstances where
the use of force is objectively reasonable, on the ground that some sinister purpose is allegedly
afoot. As already explained, the Kingsley Court stressed that “the appropriate standard for a
pretrial detainee’s excessive force claim is solely an objective one.” Id. at 397 (emphasis added).
Cases involving the old malicious-or-sadistic standard can be useful as reference points, but
that’s because proving that force was both objectively unreasonable and malicious or sadistic
would “almost invariably be more difficult” than proving only the former—not because one
could stake a winning claim on proof of the latter alone. See Piazza, 923 F.3d at 953 n.7.
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unfathomable to us that the suspect could make out a viable excessive-force claim
on those facts. But that’s precisely the upshot of the dissent’s twin positions (1)
that an excessive-force claim can be based even on “objectively reasonable force”
and (2) that “proof of express intent to punish is alone sufficient” to support such a
claim. Id. at 59, 63. That just can’t be the law.
Finally, and in any event, even if one could make an objectively-reasonable-
but-nonetheless-excessive-force claim, Crocker didn’t make one here. In his
opening brief to us, Crocker maintained that “[i]n Kingsley, the Court held that the
only issue to be decided in a use of force case was whether the ‘use of that force
was objectively unreasonable.’” Br. of Appellant at 35 (quoting Kingsley, 576
U.S. at 392 (emphasis added)). In doing so, he relied on Fourth Amendment
excessive-force cases as “analogous,” pointing to Kingsley’s own reliance on
Graham—the canonical Fourth Amendment objective-reasonableness case. Id. at
37 n.8. He then asked for remand so that the district court could “apply the proper
Kingsley standard.” Id. at 40. None of that, it seems to us, would have alerted
Beatty that he needed to respond to an argument about a straight express-intent-to-
punish-based excessive-force claim. Accordingly, even if were to conclude that
Kingsley somehow preserved two separate excessive-force standards for pretrial
detainees—one objective, another subjective—we would apply only the objective
one here. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682–83 (11th
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Cir. 2014) (explaining that an appellant abandons issues not argued in his opening
brief).
ii
On, then, to this case. Although the district court erroneously invoked the
malicious-and-sadistic standard, rather than Kingsley’s “objective not subjective”
standard, it landed on the right answer. As an initial matter, there was (under the
proper framework) no constitutional violation. Moreover, and in any event, even if
there had been, the law wasn’t so clearly established that Beatty should have
known better. We begin with the constitutional question. 16
Officer Beatty’s alleged conduct wasn’t objectively unreasonable. The
Supreme Court has given us six factors to consider in making a Fourteenth
Amendment excessive-force determination, and although the Court cautioned that
these factors aren’t exhaustive or exclusive, they’re sufficient here. See Kingsley,
576 U.S. at 397. In the course of applying the factors to Crocker’s case, we’ll
compare and contrast Patel in an effort to more clearly demonstrate the objective-
reasonableness standard’s real-world operation.
16
The Supreme Court has said that “courts should think hard, and then think hard again” before
addressing the merits of an underlying constitutional claim as well as whether the law is clearly
established. Camreta, 563 U.S. at 707. Having done our due diligence, we conclude that
addressing the constitutional claim here will “clarify the legal standards governing public
officials.” Id. Paired with Patel, this case helps illustrate what kind of conduct does and doesn’t
cross a constitutional line in the context of hot-car cases.
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Here are the Kingsley factors:
Considerations such as the following may bear on the reasonableness
or unreasonableness of the force used: [1] the relationship between the
need for the use of force and the amount of force used; [2] the extent
of the plaintiff’s injury; [3] any effort made by the officer to temper or
to limit the amount of force; [4] the severity of the security problem at
issue; [5] the threat reasonably perceived by the officer; and [6]
whether the plaintiff was actively resisting.
Patel, 969 F.3d at 1182 (quoting Kingsley, 576 U.S. at 397) (alterations adopted).
First, we consider the need for force and the amount of force used. In
weighing the amount of force used, we consider the severity of the conditions that
Crocker endured and how long he endured them. Patel, 969 F.3d at 1183. Crocker
alleges that it was 84° outside and that he was in the patrol car without AC for half
an hour. In Patel, the temperature was about the same—85°—but the duration of
detention was much longer—two hours. 969 F.3d at 1179 & 1183. So, the amount
of force used in Patel was far greater.
What about the need? In Patel, we noted that about half of the detention
was “not just harsh but also unnecessary” because the detainee there could have
been held inside an immediately adjacent jail instead of the hot van. Id. at 1184.
Here, by contrast, there doesn’t appear to have been another feasible place for
Beatty to detain Crocker. And although Beatty could have cracked a window or
left the AC running, failing to do so isn’t nearly as troubling as the behavior in
Patel. Though the need for “force” was slight, the force used was slighter still.
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Second, we consider the extent of Crocker’s injury. We’ve acknowledged
that “resulting injuries can be an indicator, however imperfect, of the severity of
the force that caused them.” Patel, 969 F.3d at 1184. Here, Crocker’s lack of
injury suggests that the force used was pretty minimal. 17 That’s yet another point
of contrast with Patel, in which the plaintiff’s two-hour stint in a hot transport van
left him “unconscious, hyperventilating, and with mucus and saliva running from
his nose and mouth,” and a doctor diagnosed him with “heat exhaustion, heat
syncope, and panic attack.” Id. at 1189. Not so here. Crocker endured some
discomfort, to be sure, but he suffered no significant injury and sought no medical
attention following his arrest.
Third, we consider any effort made by Beatty to temper or limit the force
used. Id. at 1184. Beatty returned to the car twice, and although he was rude in his
initial exchange with Crocker, on his second trip back he turned the AC back on.
In Patel, the officer left the detainee in the hot van for nearly an hour when he
could have let him wait in an air-conditioned jail. Id. And he left the detainee
alone for a sizable chunk of the two hours that he was in his van. Id. We
recognize that Beatty could have done more, but in limiting the time that Crocker
17
To be clear, we’re not saying that a lack of significant injury always and everywhere means
that the force used was reasonable. Cf. Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002)
(“[O]bjectively unreasonable force does not become reasonable simply because the fortuity of
the circumstances protected the plaintiff from suffering more severe physical harm.”).
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was alone and in eventually turning the AC back on, he did a good deal more than
the officer in Patel.
As for whether Crocker posed a “security problem” or a “threat,” or
“actively resist[ed]”—factors four, five, and six—it seems to us that the answer on
all accounts is basically no—his vociferous opposition to his arrest
notwithstanding.
So, where does all that leave us? Considering all the Kingsley factors, it
seems most important there was very little “force” used and essentially no harm
done. In the Fourteenth Amendment context—and the Fourth as well, for that
matter—“[t]here is, of course, a de minimis level of imposition with which the
Constitution is not concerned.” Bell, 441 U.S. at 539 n.21 (quotation marks
omitted); see also Graham, 490 U.S. at 396 (“Not every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.” (quotation marks and citation omitted)); Vinyard v. Wilson, 311 F.3d
1340, 1349 n.13 (11th Cir. 2002) (collecting cases “where force and injury were
held to be de minimis and not excessive”). That de minimis principle reflects the
reality that “[n]ot everything that stinks violates the Constitution.” Hillcrest
Property, LLP v. Pasco Cnty., 915 F.3d 1292, 1303 (11th Cir. 2019) (Newsom, J.,
concurring) (cleaned up). And it’s hard to imagine how we could find a
constitutional violation here without making a federal case of just about every “hot
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car” incident in Alabama, Florida, and Georgia, which we (once again) decline to
do. See Patel, 969 F.3d at 1178; see also Peterson v. Baker, 504 F.3d 1331, 1336
(11th Cir. 2007) (“Section 1983 must not be used as a font of tort law to convert
state tort claims into federal causes of action.” (quotation marks omitted)).
Beatty’s alleged conduct might have stunk, but it wasn’t unconstitutional.
If we harbored any doubts about that conclusion—and we don’t—we’d still
affirm the grant of summary judgment because the law on this point is not at all
clearly established. Until recently, we’d never even “directly confronted a ‘hot
car’ case . . . .” Patel, 969 F.3d at 1182. Our one-time paucity of hot-car caselaw
makes it tough for Crocker to win. Not even Patel—whose constitutional claim
was much stronger—could overcome qualified immunity. See id. at 1184–88; cf.
Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (“Use of excessive force is an area
of the law in which the result depends very much on the facts of each case, and
thus police officers are entitled to qualified immunity unless existing precedent
squarely governs the specific facts at issue.” (quotation marks omitted)). And
frankly, we can’t see how Crocker’s claim could succeed where Patel’s failed.
Crocker says that the clearly established law here comes from our decision
in Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008). We considered and rejected
the analogy between Danley and hot-car cases in Patel, 969 F.3d at 1186–87, and
we do so again today. In Danley, a prisoner was pepper-sprayed in a poorly-
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ventilated cell, and although officials allowed him a brief shower, that proved
ineffective—Danley ultimately spent 12 or 13 hours stuck “in pepper-spray vapor
in a poorly ventilated cell.” Patel, 969 F.3d at 1187. The use of force in Danley
was “altogether different” from the force used in Patel. Id. So too here.
Like Patel before him, Crocker also points to Danley’s citation of Burchett v.
Kiefer, 310 F.3d 937 (6th Cir. 2002). Burchett was another hot-car case, and there,
the Sixth Circuit held that confining an arrestee “for three hours in ninety-degree
heat with no ventilation violated his Fourth Amendment right against unreasonable
seizures.” 310 F.3d at 945. To the extent Crocker contends that Danley’s citation
of Burchett made Burchett part of our caselaw, we reject that incorporation-by-
citation argument just as we did in Patel. See 969 F.3d at 1187 (“[A] mere citation
to an out-of-circuit decision—even with approval, and even with an accompanying
factual précis—cannot clearly establish the law for qualified-immunity
purposes.”).
* * *
Because Crocker’s Fourteenth Amendment claim fails on the merits—and
because the law underlying that claim wasn’t clearly established, in any event—we
hold that the district court correctly granted summary judgment for Deputy Beatty.
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d
One final point for the sake of symmetry: We’d reach the same result if we
analyzed this claim under the Fourth Amendment. We have already observed that
“the Fourteenth Amendment standard has come to resemble the test that governs
excessive-force claims brought by arrestees under the Fourth Amendment.”
Piazza, 923 F.3d at 953. And we’ve said as much about the hot-car context. See
Patel, 969 F.3d at 1184 n.7 (“Although many of these ‘hot car’ cases arose under
the Fourth Amendment, the same basic standard applies post-Kingsley (as we have
explained) to excessive-force claims brought under the Fourteenth Amendment.”).
We think that Officer Beatty’s conduct was objectively reasonable under either
standard. Here, as in the Fourteenth Amendment context, the de minimis principle
applies. See Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (“[T]he
application of de minimis force, without more, will not support a claim for
excessive force in violation of the Fourth Amendment.”). 18 As a result, this claim
falls short whether analyzed under the Fourth or Fourteenth Amendment.
18
We recognize, of course, 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) (quotation marks omitted). But for reasons already explained, that caveat
doesn’t apply here.
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III
To sum up: Because (1) the law on Crocker’s First Amendment claim
wasn’t clearly established, (2) Beatty had probable cause to arrest Crocker, and (3)
Beatty didn’t use excessive force in the course of arresting Crocker (and the law
underlying Crocker’s excessive-force claim wasn’t clearly established, in any
event), Beatty was entitled to qualified immunity. The district court properly
granted summary judgment to him on that basis.
AFFIRMED.
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NEWSOM, Circuit Judge, concurring:
The main opinion finds it unnecessary to decide whether someone in
Crocker’s position—i.e., one who has been arrested but has not yet been taken
before a magistrate for a probable-cause determination—is (1) an arrestee whose
excessive-force claim should be analyzed under the Fourth Amendment or instead
(2) a pretrial detainee whose excessive-force claim should be analyzed under the
Fourteenth Amendment. See Maj. Op. at 22–24. I write separately to suggest two
things: first, that this Court hasn’t (to my mind) committed itself to any particular
position on that issue, which has generated a circuit split; and second, that if
another panel confronts this question, it should draw the line between arrestees and
pretrial detainees in accordance with Bell v. Wolfish, 441 U.S. 520 (1979), such
that the probable-cause determination is the divider.
I
A
First, how and why have our sister circuits split? In short, they’ve divided
over the question of where to locate the constitutional prohibition on excessive
force as applied to someone in Crocker’s position. As the main opinion explains,
“§ 1983 protects rights—it doesn’t create them.” Maj. Op. at 20. That means that
a plaintiff bringing an excessive-force claim under § 1983 has to ground it in a
particular provision of the Constitution. See Graham v. Connor, 490 U.S. 386, 394
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(1989). For prisoners, that’s the Eighth Amendment; for free citizens, it’s the
Fourth Amendment; and for those “in between”—those who obviously qualify as
pretrial detainees—it’s the Fourteenth Amendment. See Piazza v. Jefferson Cnty.,
923 F.3d 947, 952 (11th Cir. 2019). But what about individuals—like Crocker
here—who bring excessive-force claims based on events that occur after the initial
act of arrest but before they’ve received a judicial determination of probable cause?
See, e.g., Calhoun v. Thomas, 360 F. Supp. 2d 1264, 1272 (M.D. Ala. 2005)
(discussing “this post-arrest, pre-custody time period”). Courts have disagreed
about whether the Fourth or Fourteenth Amendment governs in this legal limbo.
See, e.g., Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 70 (1st Cir. 2016)
(collecting cases).
There are at least two fixed points. First, we’ve been told in no uncertain
terms that “all claims that law enforcement officials have used excessive force . . .
in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.” Graham, 490
U.S. at 395. Second, we know that “the Due Process Clause protects a pretrial
detainee from the use of excessive force that amounts to punishment.” Id. at 395
n.10 (citing Bell, 441 U.S. at 535–39). What, though, to do about someone who
might no longer be subject to seizure but isn’t yet a post-probable-cause-
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determination pretrial detainee? What constitutional protection against excessive
force do people in that situation have?
One answer—offered by exactly zero courts, as best I can tell—is “None.”
The Seventh Circuit, sketching the argument before rejecting it, put it this way:
“[M]aybe the Constitution is not a seamless web, and contains gaps that courts are
not authorized to fill either by stretching the Fourth Amendment or by invoking the
nebulous and historically much-abused concept of substantive due process.”
Wilkins v. May, 872 F.2d 190, 195 (7th Cir. 1989). 1 The argument’s premise—
basically, that the Constitution neither provides every good thing nor prohibits
every bad thing—is true enough. Even so, courts—including the Seventh
Circuit—have uniformly rejected the possibility that officers’ conduct between an
arrest and a probable-cause determination takes place in a constitutional no man’s
land.2
1
Wilkins is an odd case to bring into the Fourth-versus-Fourteenth conversation because the
excessive-force allegations there were against FBI agents—brought via a Bivens action—and
although it spoke of “[t]he due process clause of the Fifth and Fourteenth Amendments,” it
seems clear enough that the court’s holding vis-à-vis the FBI agents necessarily concerned the
Fifth Amendment. 872 F.2d at 191–92, 195 (emphasis added). But courts have featured Wilkins
in this discussion, see, e.g., Aldini v. Johnson, 609 F.3d 858, 864 n.6 (6th Cir. 2010) (citing
Wilkins), and the explanation in Wilkins itself certainly implicates the Due Process Clauses of
both the Fifth and Fourteenth Amendments, see 872 F.2d at 195.
2
One reason courts have rejected this possibility, I imagine, is that the Supreme Court’s
decisions suggest, if anything, an overlap of protections rather than a gap between them. For
instance, in Graham, the Court didn’t answer “the question whether the Fourth Amendment
continues to provide individuals with protection against the deliberate use of excessive physical
force beyond the point at which arrest ends and pretrial detention begins.” 490 U.S. at 395 n.10.
And the Court noted that after conviction, the Eighth Amendment’s Cruel and Unusual
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Broadly speaking, courts have done so in two ways. The first involves
reading the word “seizure[]” in the Fourth Amendment to extend beyond the initial
moment of arrest. The Tenth Circuit, for instance, has recognized that some
seizures “may extend beyond arrest up until a probable cause determination.”
Estate of Booker v. Gomez, 745 F.3d 405, 420 (10th Cir. 2014). Other circuits
have done much the same. See, e.g., Aldini v. Johnson, 609 F.3d 858, 866 (6th Cir.
2010) (establishing “the line between Fourth and Fourteenth Amendment
protection at the probable-cause hearing” for those arrested without a warrant);
Pierce v. Multnomah Cnty., 76 F.3d 1032, 1043 (9th Cir. 1996) (holding “that the
Fourth Amendment sets the applicable constitutional limitations on the treatment
of an arrestee detained without a warrant up until the time such arrestee is released
or found to be legally in custody based upon probable cause for arrest”); Powell v.
Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989) (“We think the Fourth Amendment
standard probably should be applied at least to the period prior to the time when
the person arrested is arraigned or formally charged, and remains in the custody
(sole or joint) of the arresting officer.”).
Punishment Clause provides the constitutional basis for excessive-force claims, making “[a]ny
protection that ‘substantive due process’ affords . . . at best redundant of that provided by the
Eighth Amendment.” Id. (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)). Our own
decisions likewise suggest some degree of overlap. Compare J W by & through Tammy
Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259 (11th Cir. 2018) (stating that “the
Fourteenth Amendment guards against the use of excessive force against arrestees and pretrial
detainees”), with Piazza, 923 F.3d at 953 (explaining that the Fourth Amendment protects
arrestees from excessive force).
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The contrary approach relies on the Fourteenth Amendment’s Due Process
Clause and concepts of due process that are more (or less) “substantive.” In Orem
v. Rephann, for instance, the Fourth Circuit acknowledged that although “[t]he
point at which Fourth Amendment protections end and Fourteenth Amendment
protections begin is often murky,” an excessive-force claim based on events during
post-arrest transport “requires application of the Fourteenth Amendment.” 523
F.3d 442, 446 (4th Cir. 2008).
If we’re counting noses, it seems fair to say that most circuits to have
answered this question have lined up behind the Fourth Amendment. See
Miranda-Rivera, 813 F.3d at 70 (collecting cases). So what about us—where are
we? On the basis of our decision in Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.
1996), some have placed us in the minority camp, lumping us in with those courts
that rely on the Fourteenth Amendment to analyze excessive-force claims brought
by those whose arrest is complete but who haven’t yet been had a probable-cause
hearing. See, e.g., Wilson v. Spain, 209 F.3d 713, 716 n.2 (8th Cir. 2000).
Respectfully, I don’t think that either Cottrell or our subsequent interpretations of
it compel that reading.
First, Cottrell itself. That case concerned “the death of Leroy Bush Wilson
from positional asphyxia as he was being transported in the back of a police car
after his arrest.” 85 F.3d at 1483. Our court addressed two claims arising “out of
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the same facts.” Id. at 1485. One was a “custodial mistreatment claim,” id. at
1489, and it was indeed based on a supposed substantive-due-process right, id. at
1485. The second was a Fourth Amendment excessive-force claim. Id. Our
treatment of the first, custodial-mistreatment claim appears to be the one that other
courts have read to put us on the minority side of the circuit split. See, e.g.,
Miranda-Rivera, 813 F.3d at 70 (citing Cottrell, 85 F.3d at 1490). But it seems to
me that a custodial-mistreatment claim is different from an excessive-force claim,
even if both might arise out of the same facts. And the question as relevant to the
custodial-mistreatment claim in Cottrell wasn’t whether the Fourth or Fourteenth
Amendment might govern, but whether the Eighth or Fourteenth did. See 85 F.3d
at 1490. Because a decision doesn’t answer questions that aren’t asked, see
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004), I don’t think
Cottrell definitely resolved the Fourth-versus-Fourteenth issue for claims like
Crocker’s.
Subsequent decisions from within this circuit support that conclusion. First,
we have (at least once) read Cottrell for what it could tell us about the Fourth
Amendment excessive-force standard. In Garrett v. Athens-Clarke County, we
analyzed a Fourth Amendment excessive-force claim and explained Cottrell as
having “conclude[d] officers did not use excessive force, although [the] arrestee
died of positional asphyxia, where officers placed [the] arrestee in handcuffs and
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leg restraints after a 20-minute struggle and put him in a prone position in the back
of a police car.” 378 F.3d 1274, 1281 (11th Cir. 2004). See also Calhoun, 360 F.
Supp. 2d at 1272–73 (citing Cottrell for the proposition that we have “indirectly
countenanced the application of the Fourth Amendment to post-arrest, pre-
detention excessive-force claims”). As I read Garrett and the follow-on Calhoun,
they reveal, at the very least—and contrary to what other circuits have said—that
Cottrell didn’t commit us to the Fourteenth Amendment side of this split.
To sum up: Other circuits disagree about whether claims like Crocker’s—
brought by an individual who has been arrested but hasn’t yet received a judicial
determination of probable cause—arise under the Fourth or Fourteenth
Amendment.3 Our own precedent hasn’t settled the issue, either. If I’m right
about that, then a future panel might have to answer the questions this case only
caused us to ask.
3
Note that because the practical consequences of the split aren’t what they used to be pre-
Kingsley, the Supreme Court may have less reason to step in and resolve any conflict between
the circuits. Cf. Piazza, 923 F.3d at 952–53 (“[I]nasmuch as it entails an inquiry into the
objective reasonableness of the officers’ actions, the Fourteenth Amendment standard has come
to resemble the test that governs excessive-force claims brought by arrestees under the Fourth
Amendment.”); Miranda-Rivera, 813 F.3d at 70 (“Since Kingsley has extended the objective
reasonableness standard for use of force from the arrest stage through the probable cause
hearing, whether the Fourth or Fourteenth Amendment standard applies presents less of a
problem in cases like this one than before.”). For that matter, I suppose that insofar as the so-
what factor isn’t what it used to be, our en banc court may have less incentive to untangle any
knots in our precedent in this area.
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B
If and when that happens, I’d recommend that we (1) draw the line between
arrestees and pretrial detainees in accord with Bell v. Wolfish, 441 U.S. 520 (1979),
and thus (2) analyze the excessive-force claims of all pre-probable-cause-
determination arrestees under the Fourth Amendment.
Although we’ve said that “the line is not always clear as to when an arrest
ends and pretrial detainment begins,” Garrett, 378 F.3d at 1279 n.11, I think that
line can be clearly drawn—in many cases, anyway—at the probable-cause
hearing.4 The Supreme Court has told us that a pretrial detainee is a person who
has had “a ‘judicial determination of probable cause as a prerequisite to [the]
extended restraint of [his] liberty following arrest.’” Bell, 441 U.S. at 536 (quoting
Gerstein v. Pugh, 420 U.S. 103, 114 (1975)) (alterations in original). It has also
told us that “the Fourth Amendment requires a timely judicial determination of
probable cause as a prerequisite to detention.” Gerstein, 420 U.S. at 126. Taken
together, I understand Bell and Gerstein to mean that until a judge has weighed in
on whether probable cause exists to detain someone, he remains an arrestee and is
4
I can imagine that the analysis might (?) look different for someone who has already had a
judicial determination of probable cause—e.g., when he is arrested pursuant to a valid warrant.
Cf. Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992) (explaining that “claims of post-
arrest excessive force by arrestees . . . who are detained without a warrant, are governed by the
‘objective reasonableness’ standard of the Fourth Amendment . . . until they are brought before a
judicial officer for a determination of probable cause to arrest”).
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thus entitled to (but only to) Fourth-Amendment protection from excessive force.
Cf. Graham, 490 U.S. at 395 n.10 (reserving “the question whether the Fourth
Amendment continues to provide individuals with protection against the deliberate
use of excessive physical force beyond the point at which arrest ends and pretrial
detention begins” (emphasis added)).
Several other circuits have taken that general approach. In Estate of Booker
v. Gomez, for instance, the Tenth Circuit clearly distinguished an arrestee from a
pretrial detainee in explaining which amendments control which excessive-force
claims. See 745 F.3d 405, 419 (10th Cir. 2014). The court there concluded that
“the Fourth Amendment, not the Fourteenth, governs excessive force claims
arising from treatment of an arrestee detained without a warrant and prior to any
probable cause hearing.” Id. (quotation marks and alterations omitted).5 By
contrast, the court held, the Fourteenth Amendment governs an excessive-force
claim made by a pretrial detainee, which it defined to mean “one who has had a
‘judicial determination of probable cause as a prerequisite to [the] extended
restraint of [his] liberty following arrest.’” Id. (quoting Bell, 441 U.S. at 536)
(alterations in original). Other circuits follow a similar (albeit not identical)
5
Note that the Estate of Booker court also held that “the Fourteenth Amendment standard
governs excessive force claims arising from post-arrest and pre-conviction treatment if the
arrestee has been taken into custody pursuant to a warrant supported by probable cause.” 745
F.3d at 421.
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analysis. See, e.g., Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) (holding
that the detention of arrestee in hot patrol car for three hours with no ventilation
“violated his Fourth Amendment right against unreasonable seizures”); Fontana v.
Haskin, 262 F.3d 871, 879–80 (9th Cir. 2001) (holding that “[t]he trip to the police
station is a ‘continuing seizure’ during which the police are obliged to treat their
suspects in a reasonable manner” under the Fourth Amendment); Wilson, 209 F.3d
at 716 (observing that Fourth Amendment standards apply “not only to the act of
arrest, but also to use of force against an arrestee who was restrained in the back of
a police car”); cf. United States v. Johnstone, 107 F.3d 200, 206 (3d Cir. 1997)
(applying Fourth Amendment standards to conduct occurring after the arrestee had
been transported to the police station on the theory that “a ‘seizure’ can be a
process, a kind of continuum, and is not necessarily a discrete moment of initial
restraint”). See generally Catherine T. Struve, The Conditions of Pretrial
Detention, 161 U. Pa. L. Rev. 1009, 1063–64 (2013) (advocating this approach).
One might object to this general approach on the ground that it necessarily
embodies a “continuing seizure” theory, about which we (and others) have
expressed “doubts,” Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th Cir.
2004), and “questions,” Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir. 1996). See
also Reed v. City of Chicago, 77 F.3d 1049, 1052 & n.3 (7th Cir. 1996). Our
reticence is well-founded; the Supreme Court has said, after all, that “[a] seizure is
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a single act, and not a continuous fact.” California v. Hodari D., 499 U.S. 621,
625 (1991) (quoting Thompson v. Whitman, 85 U.S. 457, 471 (1873)); see also
Torres v. Madrid, No. 19-292, 2021 WL 1132514, at *9 (U.S. Mar. 25, 2021)
(similar). And that view finds support in the original public meaning of the Fourth
Amendment. See Manuel v. City of Joliet, 137 S. Ct. 911, 927 (2017) (Alito, J.,
dissenting) (“Dictionary definitions from around the time of the adoption of the
Fourth Amendment define the term ‘seizure’ as a single event—and not a
continuing condition.”). There’s good reason, then, to be suspicious of a flabby
conception of “seizure.”
Even so, it seems to me that what transpires between the initial act of a
warrantless arrest and the subsequent probable-cause determination may be
considered a “seizure” without doing violence to the Fourth Amendment—or, for
that matter, even requiring the “continuing” modifier.6 Consider Justice Alito’s
explanation in Manuel:
[W]hen an arrest is made without a warrant, the arrestee, generally
within 48 hours, must be brought before a judicial officer, who then
completes the arrest process by making the same determination that
would have been made as part of the warrant application process.
Thus, this appearance is an integral part of the process of taking the
arrestee into custody and easily falls within the meaning of the term
‘seizure.’
6
Tellingly, I think, in the same decision in which it again rejected the “continuing seizure”
theory, the Seventh Circuit took for granted “the fact that the ‘seizure’ of an arrestee ends after
the Gerstein hearing.” Reed, 77 F.3d at 1052 (emphasis added).
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137 S. Ct. at 928 (Alito, J., dissenting) (emphasis added) (citations omitted). That
makes perfect sense to me.
And happily, that understanding of “seizure” supports drawing a nice, bright
line between the Fourth and Fourteenth Amendments at the probable-cause
hearing. Cf. United States v. Johnson, 921 F.3d 991, 1004–06 (11th Cir. 2019) (en
banc) (Newsom, J., concurring) (stressing the importance of bright lines and “clear
rule[s]” in Fourth Amendment jurisprudence). That is, if that which constitutes an
“integral part of the process of taking the arrestee into custody” counts as part of
the “seizure,” then when a person in Crocker’s position makes an allegation of
excessive force, “the Fourth Amendment provides an explicit textual source of
constitutional protection.” Graham, 490 U.S. at 395. (And as that rationale
applies here, I can hardly think of something more “integral” to taking an arrestee
into custody than holding him in a squad car.) On that understanding of what
constitutes a seizure, the Fourth Amendment, and “not the more generalized notion
of ‘substantive due process,’ must be the guide for analyzing these claims.” Id. 7
7
In Torres v. Madrid, the Supreme Court held that “the application of physical force to the body
of a person with intent to restrain is a seizure even if the person does not submit and is not
subdued.” No. 19-292, 2021 WL 1132514, at *10 (U.S. Mar. 25, 2021). That rule, the majority
emphasized, was a “narrow” one. Id. at *7. So, although the Court explained that “the
application of force completes an arrest even if the arrestee eludes custody,” id., it’s not
immediately apparent (to me, at least) whether and to what extent Torres impacts the circuit-
splitting questions that I’ve discussed here. At the very least, the extensive back and forth
between the Torres majority and dissent concerning the original meaning of “seizures” shows
that those looking for answers to these questions would do well to attend closely to text, history,
and tradition. Compare id. at *3–*10, with id. at *10–*20 (Gorsuch, J., dissenting).
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* * *
Our duty to follow the Constitution and the Supreme Court’s decisions
requires us to reject an in-there-somewhere approach to excessive-force claims
brought under § 1983. We didn’t have to go to the roots of Crocker’s claim to
know that it could bear no fruit, but in another case, our court may need to dig
deeper. If so, I hope that panel will distinguish between arrestees and pretrial
detainees and clarify the analytical framework that applies to the excessive-force
claims of both.
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MARTIN, Circuit Judge, concurring in part and dissenting in part:
As set forth in the majority opinion, James Crocker witnessed a fatal car
accident and stood in the median of I-95 photographing the scene. Deputy Steven
Beatty approached him, seized his phone, arrested him, and locked him in the back
of a hot patrol car for almost a half hour. Mr. Crocker sued Deputy Beatty,
alleging, as relevant here, unlawful seizure of his phone in violation of the First
Amendment, false arrest in violation of the Fourth Amendment and state law, and
excessive force in violation of the Fourteenth Amendment. This appeal asks us to
decide whether the District Court properly entered summary judgment in favor of
Deputy Beatty on these claims.
I agree with the majority that Deputy Beatty had probable cause to arrest Mr.
Crocker for violating Florida Statute § 316.1945(1)(a)(11). As a result, Mr.
Crocker’s Fourth Amendment false arrest claim is barred by qualified immunity.
Also, since Deputy Beatty had probable cause to arrest Mr. Crocker, his state law
false arrest claim fails as well. But I part ways with the majority as to Mr.
Crocker’s First and Fourteenth Amendment claims. I do not think Deputy Beatty
can properly be granted qualified immunity on either of those claims, so I would
reverse the District Court’s grant of summary judgment on those issues. I
therefore respectfully dissent.
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I.
I will begin with Mr. Crocker’s First Amendment claim. Mr. Crocker argues
that Deputy Beatty violated his First Amendment rights when he seized Crocker’s
phone while he was photographing the accident scene. The District Court held that
Deputy Beatty was entitled to qualified immunity on this claim, and the majority
opinion affirms. Maj. Op. at 9–15. The majority says the law underlying Mr.
Crocker’s First Amendment claim was not clearly established at the time Deputy
Beatty seized his phone. Id. at 10–11. Specifically, the majority opinion says this
Court’s opinion in Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000),
does not obviously apply to the facts here. Maj. Op. at 10–15. But I think the
majority cabins Smith too narrowly. In my view, Smith clearly establishes that
Mr. Crocker had a right to photograph the accident scene and I would therefore
reverse the grant of qualified immunity to Deputy Beatty on this claim.
In Smith, our Court addressed a claim from plaintiffs who said they were
prevented from videotaping police activity in violation of their First Amendment
rights. 212 F.3d at 1332. We held that the Smiths “had a First Amendment right,
subject to reasonable time, manner and place restrictions, to photograph or
videotape police conduct.” Id. at 1333. And we explained that this is because
“[t]he First Amendment protects the right to gather information about what public
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officials do on public property, and specifically, a right to record matters of public
interest.” Id. (collecting cases).
The majority acknowledges that Smith announced a “broad statement of
First Amendment principle,” but it says this principle does not obviously apply to
the facts here. Maj. Op. at 9–11 (quotation marks omitted) (alteration adopted).
More to the point, the majority says Smith’s rule does not obviously apply to Mr.
Crocker who was “spectating on the median of a major highway at the rapidly
evolving scene of a fatal crash.” Id. at 10 (quotation marks omitted). According to
the majority, because Smith “provided few details regarding the facts of the case”
it cannot provide officers “‘fair warning’ under other circumstances” such as this
one. Id. at 10–11 (quotation marks omitted).
I read Smith differently. It is true that Smith does not detail the specific
facts presented there. See Smith, 212 F.3d at 1332–33. But for me, the lack of
factual detail does not do away with the right Smith announced. To the contrary,
the broad pronouncement in Smith underscores the right’s general applicability.
Smith says there is “a First Amendment right . . . to photograph or videotape police
conduct.” Id. at 1333. This statement is unambiguous and not couched in specifics
that limit its application. Instead, the right is limited only by “reasonable time,
manner and place restrictions.” Id. And the contours of the right announced in
Smith do not require such precise definition. Unlike findings about the use of
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excessive force, for example, it is usually easy enough to know whether a plaintiff
was recording police activity. Indeed, a number of district courts within this
Circuit have relied on Smith to determine, in distinct factual contexts, that the right
to record police activity is clearly established. 1 I thus read Smith to clearly
establish a general rule that the First Amendment protects a person’s right to record
police conduct—subject only to reasonable time, place, and manner restrictions.2
Smith’s general rule applies here. Taking the facts in the light most
favorable to Mr. Crocker, he was photographing police conduct. When Deputy
1
See, e.g., Bacon v. McKeithen, No. 5:14-cv-37-RS-CJK, 2014 WL 12479640, at *4–5 (N.D.
Fla. Aug. 28, 2014) (unpublished) (denying qualified immunity and concluding that Smith
clearly established the right to videotape a police officer without his consent at a routine traffic
stop); Abella v. Simon, 831 F. Supp. 2d 1316, 1329–30, 1352 (S.D. Fla. 2011) (denying qualified
immunity and concluding that Smith clearly established Mr. Abella’s First Amendment right to
photograph a police officer who had been trailing him), vacated in part on other grounds, 482 F.
App’x 522 (11th Cir. 2012) (per curiam) (unpublished); id. at 1352 n.27 (distinguishing Kelly v.
Borough of Carlisle, 622 F.3d 262 (3d Cir. 2010), as relying on cases from the Third Circuit, and
concluding that “in the Eleventh Circuit, Smith controls and the Court is compelled to find the
law is clearly established”); Dunn v. City of Fort Valley, 464 F. Supp. 3d 1347, 1355–56, 1366–
67 (M.D. Ga. 2020) (denying qualified immunity and citing Smith to conclude that Mr. Dunn
had a clearly established First Amendment right to take photographs and videos inside the Police
Department building and around the grounds); Johnson v. DeKalb County, 391 F. Supp. 3d
1224, 1234, 1250–51 & n.214 (N.D. Ga. 2019) (denying qualified immunity and citing Smith to
conclude that Ms. Johnson had a clearly established First Amendment right to film an arrest).
2
Contrary to the majority’s suggestion, Smith’s reference to time, place, and manner restrictions
does not confine the right it clearly established to public forums. See Maj. Op. at 12. Of course,
the government can implement time, place, and manner restrictions in nonpublic forums as well.
M.N.C. of Hinesville, Inc. v. U.S. Dep’t of Defense, 791 F.2d 1466, 1474 (11th Cir. 1986) (“As
in all other forums, the government may subject speech in nonpublic forums to reasonable
content-neutral, i.e., time, place, and manner, restrictions.”). But in any event, by its own terms
Smith’s right applies in public and the median is obviously in public. See Smith, 212 F.3d at
1333 (“The First Amendment protects the right to gather information about what public officials
do on public property[.]”).
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Beatty seized his phone, Mr. Crocker was photographing the scene of a fatal car
accident and the emergency response, including police activity, surrounding it.
This record reveals no “reasonable time, manner and place restrictions,” limiting
Mr. Crocker’s speech here. See Smith, 212 F.3d at 1333. Permissible time, place,
and manner restrictions are content-neutral restrictions on First Amendment
conduct that are supported by a substantial government interest and do not
unreasonably limit alternative avenues of communication. City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S. Ct. 925, 928 (1986). They are, by
their nature, rules, not discretionary enforcement decisions by individual police
officers. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.
Ct. 2395, 2401 (1992) (“A government regulation that allows arbitrary application
is inherently inconsistent with a valid time, place, and manner regulation because
such discretion has the potential for becoming a means of suppressing a particular
point of view.” (quotation marks omitted)). Again, this record suggests no such
rules were in place here. And indeed, accepting Mr. Crocker’s allegations as true,
even Deputy Beatty understood that Florida’s statutes regarding limited access
facilities did not bear on Crocker’s First Amendment activity. Mr. Crocker says
when he asked Deputy Beatty whether it was illegal to photograph the scene,
Beatty replied “no, but now your phone is evidence of the State.”
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The right to record police activity is important not only as a form of
expression, but also as a practical check on police power. Recordings of police
misconduct have played a vital role in the national conversation about criminal
justice for decades. I read today’s opinion to parse this critical right too narrowly.
I would hold that Mr. Crocker’s First Amendment right to record the fatal car crash
was clearly established and reverse the grant of qualified immunity to Deputy
Beatty.
II.
Now for Mr. Crocker’s Fourteenth Amendment claim. Mr. Crocker argues
that Deputy Beatty used excessive force in violation of the Fourteenth Amendment
when he detained Crocker in a hot patrol car for approximately half an hour. The
District Court held that Deputy Beatty was entitled to qualified immunity on this
claim, and the majority now affirms. Yet in my view, Mr. Crocker presented
sufficient evidence to create a dispute of fact about whether Deputy Beatty acted
with express intent to punish him. For this reason, summary judgment on this
claim is not warranted.
A.
Before turning to the proper analysis under the Fourteenth Amendment, I
will address a question the majority opinion injects into this case. That question is
which amendment—the Fourth or the Fourteenth—governs Mr. Crocker’s claim.
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See Maj. Op. at 22–24. Despite the majority’s discussion to the contrary, Mr.
Crocker made clear, both before the District Court and now on appeal, that he is
bringing his excessive force claim solely under the Fourteenth Amendment. And
while Deputy Beatty notes that the line between arrest and pretrial detention is not
clear, he makes no argument that the Fourth Amendment, rather than the
Fourteenth, should govern. Despite acknowledging that application of one
amendment over the other does not change the outcome of Mr. Crocker’s excessive
force claim under its interpretation, the majority opinion analyzes Crocker’s claim
under both the Fourth and Fourteenth Amendments. Id. at 24–36. In addition to
authoring the majority opinion, Judge Newsom also writes a separate concurrence
to say that, in his view, it is the Fourth Amendment that should apply in these post-
arrest, pre-custody situations. Conc. Op. at 45.
Judge Newsom is right in pointing out that this Court has not committed
itself to either outcome. See id. at 42–44. And this is not the context in which to
decide this question. The parties have treated and argued this case as a Fourteenth
Amendment case, and I would decide it as such. In the past, and in the absence of
an affirmative answer as to when arrest ends and pretrial detention begins, this
Court has deferred to the characterization given by the parties, where they agree.
See Hicks v. Moore, 422 F.3d 1246, 1253 n.7 (11th Cir. 2005) (“We underline that
Defendants never argue that the strip search or fingerprinting was separate from
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Plaintiff’s seizure; so we—will assume (for this case) Plaintiff was still being
seized and—analyze the claim under the Fourth Amendment”). I think this is the
best approach and would do the same in this case. I would therefore apply the
Fourteenth Amendment to Mr. Crocker’s excessive force claim.
That is not to say that in a future case where the question is fully briefed and
argued I would necessarily hold that the Fourteenth Amendment always governs
this situation. Here, however, we have no briefing on the question and both parties
have understood Mr. Crocker’s excessive force claim to travel under the
Fourteenth Amendment. I would therefore analyze whether Deputy Beatty used
excessive force against Mr. Crocker when he locked him in a hot patrol car and left
him there, as the parties did, under the Fourteenth Amendment alone.
B.
The Fourteenth Amendment analysis does not bestow qualified immunity on
Deputy Beatty for the excessive force claim. I agree with the majority that the
District Court’s analysis of this claim was wrong because the court failed to apply
the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct.
2466 (2015). See Maj. Op. at 25–26. I also agree that the force used here was not
objectively unreasonable.3 See id. at 30. But again, I part ways with the majority
3
I do not view the force used here to rise to the level of objectively unreasonable, but neither
would I characterize it—as the majority does—as de minimis. See Maj. Op. at 36.
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insofar as I do not read Kingsley to do away with Fourteenth Amendment liability
where an officer applies objectively reasonable force with an express intent to
punish. I say Mr. Crocker presented sufficient evidence to create a dispute of fact
about whether Deputy Beatty acted with express intent to punish him.4 And since
it was clearly established at the time of Mr. Crocker’s arrest that applying force
with the express intent to punish a pretrial detainee violated the Fourteenth
Amendment, Deputy Beatty is not entitled to qualified immunity on this claim.
See Jacoby v. Baldwin County, 835 F.3d 1338, 1344 (11th Cir. 2016) (“To
[overcome qualified immunity], the plaintiff must: (1) allege facts that establish
that the officer violated his constitutional rights; and (2) show that the right
4
Mr. Crocker explicitly says in his reply brief that Deputy Beatty violated his Fourteenth
Amendment rights by inflicting force with the express intent to punish him. See Reply Br. of
Appellant 10 (“As the Kingsley Court noted . . . ‘‘punishment’ can consist of action taken with
an ‘expressed intent to punish.’ When someone tells you after you beg for relief, ‘it’s not meant
to be comfortable, sir,’ that is punishment.” (citations omitted)). However, while issues not
raised in the initial brief generally are considered abandoned, “briefs should be read liberally to
ascertain the issues raised on appeal.” Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.
1994). Viewed liberally, Mr. Crocker’s briefing raises the issue of the District Court’s failure to
apply Kingsley when evaluating his Fourteenth Amendment excessive force claim. And Mr.
Crocker discussed express intent to punish before the District Court. Doc. 156 at 15–16 (“The
placement of [Crocker] in the back of the patrol car while turning the air off demonstrates a
conscious decision by Beatty to punish [Crocker] . . . .”). However, even accepting the
majority’s concerns, see Maj. Op. at 29–30, “application of the waiver rule would be unduly
harsh,” Allstate, 27 F.3d at 1542 (considering issue not raised in initial brief where party
preserved it in the lower court, discussed the circumstances of the relevant ruling in its initial
brief, and argued the point in reply).
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involved was clearly established at the time of the putative misconduct.” (quotation
marks omitted) (alteration adopted)).
I will now discuss my reading of Kingsley. Then I will set out why, under
Kingsley, Mr. Crocker has alleged facts that establish Deputy Beatty violated his
constitutional right. Finally I will address whether that right was clearly
established at the time of Mr. Crocker’s arrest.
1.
In Kingsley, the Supreme Court considered whether, in order to prove an
excessive force claim, a pretrial detainee must show that the official subjectively
intended to violate the detainee’s rights. 576 U.S. at 391–92, 135 S. Ct. at 2470.
The Court concluded that the answer to that question is no: “the defendant’s state
of mind is not a matter that a plaintiff is required to prove.” Id. at 395, 135 S. Ct.
at 2472. Instead, it is sufficient to prove that an officer inflicted objectively
unreasonable force. Id. According to the majority opinion, Kinglsey’s holding
that pretrial detainees can prove excessive force simply by establishing that an
official used objectively unreasonable force means that proof of objectively
unreasonable force is the only way pretrial detainees can prove excessive force in
violation of the Fourteenth Amendment. Maj. Op. at 26–29. In the majority’s
view, Kingsley forecloses “the possibility of an excessive-force violation, even in
circumstances where the use of force is objectively reasonable, on the ground that
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some sinister purpose is allegedly afoot.” Id. at 28 n.15. But the majority misreads
Kingsley. Kingsley did nothing to disallow Fourteenth Amendment claims based
on express intent to punish, and those claims remain viable today.
Importantly, Kingsley did not wholly abrogate the existing landscape of
Fourteenth Amendment excessive force claims. The Supreme Court in Kingsley
merely clarified one of the standards under which pretrial detainees can show “the
use of excessive force that amounts to punishment.” 576 U.S. at 397, 135 S. Ct. at
2473. This is evident from the Court’s analysis. The Supreme Court understood
Kingsley’s holding that pretrial detainees are not required to prove subjective
intent to be “consistent with [its] precedent”—specifically, with Bell v. Wolfish,
441 U.S. 520, 99 S. Ct. 1861 (1979). Kingsley, 576 U.S. at 397, 135 S. Ct. at
2473. It explained that Bell set out two standards under which pretrial detainees
can establish unconstitutional punishment. Id. at 398, 135 S. Ct. at 2473. The first
Bell standard is subjective: “such ‘punishment’ can consist of actions taken with an
‘expressed intent to punish.’” Id. (quoting Bell, 441 U.S. at 538, 99 S. Ct. at 1873–
74). The second is objective: “in the absence of an expressed intent to punish, a
pretrial detainee can nevertheless prevail by showing that the actions are not
‘rationally related to a legitimate nonpunitive governmental purpose’ or that the
actions ‘appear excessive in relation to that purpose.’” Id. (quoting Bell, 441 U.S.
at 561, 99 S. Ct. at 1886).
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Kingsley clarified that Bell’s objective standard does not involve subjective
considerations. The Court explained, for example, that its holding was consistent
with cases postdating Bell because those cases did not suggest that “application of
Bell’s objective standard should involve subjective considerations.” Id. at 399,
135 S. Ct. at 2474 (emphasis added). But the Court never said it was doing away
with Bell’s subjective standard, under which pretrial detainees can establish a
violation of their Fourteenth Amendment rights by showing that an official
inflicted force with an express intent to punish. See id. at 397–402, 135 S. Ct. at2473–76. Much less did the Court say it was doing away with Bell’s subjective
standard solely for excessive force claims while leaving it in place for other claims
of punishment, as the majority opinion suggests. See Maj. Op. at 27–28. The
Supreme Court tells us that it “does not normally overturn, or so dramatically limit,
earlier authority sub silentio.” Shalala v. Ill. Council on Long Term Care, Inc., 529
U.S. 1, 18, 120 S. Ct. 1084, 1096 (2000); see also Johnson v. NPAS Sols., LLC,
975 F.3d 1244, 1260 n.12 (11th Cir. 2020) (recognizing this principle). Surely this
principle holds especially true where, as here, the Court expressly stated that its
holding is “consistent with” Bell. Kingsley, 576 U.S. at 397, 135 S. Ct. at 2473.
Indeed, Kingsley says nothing about redefining what constitutes punishment
in the excessive force context. The Fourteenth Amendment’s Due Process Clause
“prohibits a state from punishing a pretrial detainee at all until he is lawfully
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convicted of a crime.” McMillian v. Johnson, 88 F.3d 1554, 1564 (11th Cir.
1996). In other words, an official violates a pretrial detainee’s Fourteenth
Amendment rights if he subjects the detainee to punishment. In the context of the
Fourteenth Amendment, then, excessive force means “excessive force that amounts
to punishment.” Kingsley, 576 U.S. at 397, 135 S. Ct. at 2473 (quotation marks
omitted) (emphasis added). And one of the ways an action “amounts to
punishment” is if it was “taken with an expressed intent to punish.” Id. at 397–98,
135 S. Ct. at 2473 (quotation marks omitted). It has thus long been understood,
prior to Kingsley, that proof of express intent to punish is alone sufficient to
establish a Fourteenth Amendment violation.5 Kingsley—a decision that sought to
make it easier for pretrial detainees to vindicate their rights—cannot properly be
read to do away with this method of proving Fourteenth Amendment violations for
excessive force claims when it said nothing about having done so.
5
See, e.g., Blackmon v. Sutton, 734 F.3d 1237, 1241–43 (10th Cir. 2013) (Gorsuch, J.) (finding
Fourteenth Amendment excessive force violation where juvenile detention officials used restraint
chair with express purpose of punishing detainee); McMillian, 88 F.3d at 1564–65 (holding that
pretrial detainee stated Fourteenth Amendment claim where he presented evidence that officials
placed him on death row with express goal of punishment); Putman v. Gerloff, 639 F.2d 415,
419–20 (8th Cir. 1981) (explaining that, for a trial regarding a claim that chaining and
handcuffing pretrial detainees overnight violated the Fourteenth Amendment, “the jury could
find that the defendants’ conduct was punishment on the basis of direct evidence of intent to
punish”).
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Based on my reading of Kingsley, I would ask whether the evidence in this
case demonstrates that Deputy Beatty locked Mr. Crocker in the back of a hot car
for nearly half an hour with the goal of punishing him.6
2.
And I see sufficient evidence here to create a dispute of fact about whether
Deputy Beatty locked Mr. Crocker in the hot car with an express intent to punish
him. In a sworn affidavit, Mr. Crocker stated that Deputy Beatty intentionally
turned off the air conditioning in the car before leaving Crocker inside with the
windows rolled up. The heat caused Mr. Crocker to experience anxiety, difficulty
breathing, and profuse sweating. When Deputy Beatty briefly returned to the car,
Mr. Crocker “begged” him for relief and told him he was “about to die in here.”
Deputy Beatty responded that Mr. Crocker was not meant to be comfortable and
again left him in the car with the windows rolled up and no air conditioning.
Together, Deputy Beatty’s actions and statements create a dispute of fact as to
whether he subjected Mr. Crocker to extreme environmental conditions with the
sole purpose of punishing him.
6
The majority says this standard would permit Fourteenth Amendment liability where an official
expressly intends to punish yet uses no force at all. See Maj. Op. at 28–29. But, of course, the
application of de minimis force (or, as in the majority’s example, no force) cannot support a
claim for excessive force. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). As noted
earlier, see supra at 58 n.3, I do not view the force inflicted in this case to be de minimis.
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Notably, there is a complete lack of evidence that Deputy Beatty acted with
the goal of furthering any “permissible governmental objective.” Piazza v.
Jefferson County, 923 F.3d 947, 952 (11th Cir. 2019). Mr. Crocker was subdued
and handcuffed in the back seat of a police cruiser. Nothing in the record suggests
that Deputy Beatty had any reason to turn off the air conditioning in his car other
than to cause Mr. Crocker to suffer. This and the fact that Deputy Beatty ignored
Mr. Crocker’s pleas for fresh air and told him he was “not meant to be
comfortable” further reinforce Crocker’s claim that Beatty’s only objective was to
inflict punishment. This punishment was plainly prohibited in Bell, 441 U.S. at
538, 99 S. Ct. at 1873–74, and remains prohibited after Kingsley, 576 U.S. at 397–
98, 135 S. Ct. at 2473. On this record, I believe the District Court erred by failing
to find a dispute of fact about whether Deputy Beatty kept Mr. Crocker in a hot car
with the express intent of punishing him, in violation of his Fourteenth
Amendment rights.
3.
Finally I address whether, at the time of Mr. Crocker’s arrest, it was clearly
established that Deputy Beatty’s conduct violated the Fourteenth Amendment. The
majority gets it right here, as in Patel v. Lanier County, 969 F.3d 1173, 1184–88
(11th Cir. 2020), in saying that the mere act of detaining Mr. Crocker in the back
seat of a hot car for approximately 30 minutes was not clearly established as
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amounting to objectively unreasonable force. See Maj. Op. at 34–35. However,
Patel did not present the question of whether it was clearly established that
prolonged detention in a hot car for the express purpose of inflicting punishment
amounted to excessive force under Bell’s subjective test. “Where the official’s
state of mind is an essential element of the underlying violation,” as it is under
Bell, “the [official’s] state of mind must be considered in the qualified immunity
analysis or a plaintiff would almost never be able to prove that the official was not
entitled to qualified immunity.” Walker v. Schwalbe, 112 F.3d 1127, 1132 (11th
Cir. 1997). Here, Mr. Crocker presented evidence sufficient to raise a dispute of
fact as to whether Deputy Beatty locked him in the back of a hot patrol car with the
express intent of punishing him.
Since Mr. Crocker has established a genuine issue of material fact about
whether Deputy Beatty acted with express intent to punish, Beatty is not entitled to
qualified immunity. We have held that “Bell’s prohibition on any pretrial
punishment, defined to include conditions imposed with an intent to punish,”
should make it “obvious to all reasonable officials” that the Fourteenth
Amendment prohibits imposing detention conditions with the express goal of
punishment. McMillian, 88 F.3d at 1565. Based on this rationale, McMillian held
that it was clearly established that placing a pretrial detainee on death row for the
express purpose of punishing him violated the Fourteenth Amendment even though
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there was “no case with facts similar to McMillian’s allegations.” Id. The
imposition of restrictive conditions with the express goal of punishment was
sufficient to put the officers in McMillian on notice that their actions violated the
Fourteenth Amendment.
So too here. At the time of Mr. Crocker’s arrest, it was clear enough that
police officers may not intentionally expose pretrial detainees to extreme
environmental conditions for the sole purpose of causing suffering. This “broad
statement of principle” clearly established Mr. Crocker’s right to be free of
intentionally inflicted punishment. Lewis v. City of West Palm Beach, 561 F.3d
1288, 1291–92 (11th Cir. 2009). And it should have been “obvious” to Deputy
Beatty that the Constitution prohibited him from intentionally turning off his air
conditioning and leaving Mr. Crocker in the back of his hot patrol car with the sole
purpose of causing him to suffer. McMillian, 88 F.3d at 1565. I would therefore
hold that the District Court erred in granting summary judgment to Deputy Beatty
on this claim.
I respectfully dissent.
67