Felicia Lambert v. Duncan Herrington

USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 1 of 22
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10452
Non-Argument Calendar
____________________
FELICIA LAMBERT,
TONY LAMBERT,
Plaintiffs-Appellees,
versus
DUNCAN HERRINGTON,
CITY OF SATSUMA, ALABAMA,
Defendants-Appellants.
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 2 of 22
2 Opinion of the Court 21-10452
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cv-00854-KD-B
____________________
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
Officer Duncan Herrington appeals the district court’s de-
nial of summary judgment in Felicia and Tony Lambert’s (the
“Lamberts”) action against him pursuant to 42 U.S.C. § 1983 for vi-
olation of their civil rights under the First, Fourth, and Fourteenth
Amendments as well as several state law causes of action. The dis-
trict court concluded that the factual disputes in this case precluded
the application of qualified immunity and two forms of state-law
civil immunity. For the reasons expressed herein, we agree and
thus affirm the district court’s denial of summary judgment.
I. FACTUAL AND PROCEDURAL HISTORY
On October 9, 2017, several children were playing at the
Lamberts’ home. Among the children were the Lamberts’ grand-
children, of whom they were temporary guardians, and their
grandchildren’s friends. The children were playing with airsoft
guns near the home, and some of the pellets from the airsoft guns
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 3 of 22
21-10452 Opinion of the Court 3
went into the house, damaging the house as well as the Lamberts’
television.
The children left three airsoft guns at the Lamberts’ house
after leaving the house. Because of the custody arrangement for
the grandchildren in place at the time, Mrs. Lambert did not see
the grandchildren in person for another two weeks. However,
Mrs. Lambert’s grandson texted her several times asking about
how his friend could get the airsoft guns back, and Mrs. Lambert
told her grandson that she would not return the airsoft guns until
she spoke with the friend’s parent. On October 24, 2017, Teresa
Strickland, the stepmother of the child who left his airsoft guns at
the Lambert home, called Mrs. Lambert seeking the return of the
airsoft guns. A verbal dispute then ensued.
After Mrs. Lambert and Ms. Strickland were not able to
agree about the timing and circumstances under which Mrs. Lam-
bert would return the guns, Officer Herrington became involved.
Hours after the phone call between Mrs. Lambert and Ms. Strick-
land, Officer Herrington arrived at the Lamberts’ home with Ms.
Strickland in the backseat, and both exited the police car. Officer
Herrington approached Mrs. Lambert and explained that he was
there because Ms. Strickland wanted to retrieve the missing guns.
Meanwhile, Ms. Strickland stayed near the police car. The parties
agree on little else about what happened next.
A. The Lamberts’ Factual Evidence
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 4 of 22
4 Opinion of the Court 21-10452
The Lamberts gave the following account in their deposi-
tions and affidavits. After Officer Herrington arrived, he told Mrs.
Lambert, “you’re going to go in the house and you’re going to get
these guns.” When Mrs. Lambert asked “what if I say I don’t have
them,” Officer Herrington grabbed her arm, placed handcuffs on
her, and told her that she was going to go to jail. While taking Mrs.
Lambert into custody, Officer Herrington “started taking his hand
and twisting [her] arm and digging in[,] . . . actually put[ting] his
fingernails into” her. Around the same time, Mr. Lambert came
outside, and Mrs. Lambert called to her husband saying, “Tony,
he’s hurting me. . . . make him stop.” According to Mrs. Lambert,
Mr. Lambert then pled with Officer Herrington to make the arrest
using minimal force. After handcuffing Mrs. Lambert, Officer Her-
rington dragged her over to the grass.
It was about that time the Mr. Lambert got involved. He
testified that he told Officer Herrington to call the officer’s super-
visor. He attests that he never walked toward Officer Herrington
when the officer was struggling with his wife. He testified that he
walked over to the police car where Ms. Strickland was standing
and told her to get off of his property. At that point, according to
Mr. Lambert, Officer Herrington came “charging at” Mr. Lambert,
swung him around, and told him to get out of Ms. Strickland’s face.
Mr. Lambert admitted to grabbing Officer Herrington’s police vest
with both hands in order to break his fall. Officer Herrington then
performed a leg sweep, causing Mr. Lambert to fall down. Officer
Herrington then placed his knee on Mr. Lambert’s chest and
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 5 of 22
21-10452 Opinion of the Court 5
administered a choke hold using his thumb and index finger. Dur-
ing the encounter, Mrs. Lambert screamed “let him up, please get
off him.” According to Mrs. Lambert’s affidavit, the only times she
raised her voice or used profanity were “after Officer Herrington
had attacked both [her] and [her] husband and [when she] told Te-
resa Strickland to get the fuck off [of her] property.”
After placing Mr. Lambert in handcuffs, Officer Herrington
said to Mr. Lambert, “how does it feel to get your ass whooped,”
and stated that he was under arrest for disorderly conduct. As a
result of the encounter, Mr. Lambert had neck, shoulder and elbow
injuries.
The grandchildren came outside shortly after Officer Her-
rington got off of Mr. Lambert. The Lamberts’ son also came out
of the house and told the grandchildren to go back inside. Officer
Herrington noted that the neighbors could see what was happen-
ing and asked Mrs. Lambert to move further up the driveway un-
der the carport, and she complied.
When Officer Herrington approached Mrs. Lambert about
the airsoft guns that Ms. Strickland’s son left, Mrs. Lambert ex-
plained that her home and television were damaged and that she
wanted to file a report. Officer Herrington explained that it was
too late because the incident happened weeks before.
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 6 of 22
6 Opinion of the Court 21-10452
After Mr. Lambert’s arrest, the Lamberts then decided to
turn the airsoft guns over to the police officers on scene. Still in
handcuffs, they went inside the house to retrieve the guns. 1
Eventually Officer Herrington transported Mr. Lambert to
the local jail. Mrs. Lambert went to the jail separately to bail out
her husband. After arriving at the jail, Mrs. Lambert told Officer
Herrington that he never should have arrested her husband. At
that point, Officer Herrington told her to sit down and that she was
under arrest. After Mrs. Lambert complained about the force used
when Officer Herrington detained her while they were at her
house, Officer Parsons used a phone to take pictures of Mrs. Lam-
bert’s bruises as well as her damaged shirt. Mrs. Lambert com-
plained of bruises on her arm, neck spasms, pain shooting down
her arm, and swelling on her neck. Mrs. Lambert subsequently
called her mother to ask her to come post bond so that Mrs. Lam-
bert could be released from jail. During that conversation, Mrs.
Lambert told her mother not to say anything at the jail because the
officers might arrest the mother if the officers perceived disrespect.
Mrs. Lambert’s mother posted Mrs. Lambert’s bond without inci-
dent and then drove Mrs. Lambert to an urgent care center.
Mrs. Lambert later spoke with Lieutenant Richard Dix to
complain about Officer Herrington’s use of force and the damage
the airsoft guns did to the television at the Lamberts’ home. As to
1 Officer Marquis Parsons,
who was also on scene, testified that he went inside
with the Lamberts’ son and ultimately retrieved the airsoft guns.
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 7 of 22
21-10452 Opinion of the Court 7
the television, Lieutenant Dix said that he would have to do an in-
vestigation prior to making a report because some of the children
blamed the damage on Mrs. Lambert’s granddaughter. Mrs. Lam-
bert testified that the granddaughter at one point admitted to caus-
ing the damage but later recanted, saying that other children had
coerced her into making the confession. As to the complaint
against Officer Herrington, Mrs. Lambert submitted a citizen com-
plaint form, and Lieutenant Dix informed Mrs. Lambert that she
would also need to submit photographic evidence.
B. Officer Herrington’s Factual Evidence
Officer Herrington gave the following account of the events
in his deposition. After arriving at the house, Officer Herrington
approached Mrs. Lambert and told her that he was there because
Ms. Strickland’s stepson left his airsoft gun at the Lambert house
and Ms. Strickland wanted to retrieve it. Mrs. Lambert then said
that she would not turn over the airsoft gun until someone paid for
her broken television. Mrs. Lambert further explained that her
granddaughter shot the television. Officer Herrington then ex-
plained that because Mrs. Lambert had custody of the granddaugh-
ter at the time, there was no need to take a report because she was
responsible for the granddaughter’s actions. Mrs. Lambert later
changed her story and said that she did not have the airsoft guns.
During the course of the exchange, “every now and then [Mrs.
Lambert] would turn around and yell at Miss Strickland.” Specifi-
cally, she said things like Ms. Strickland should pay better attention
to her child. Eventually, Officer Herrington told Mrs. Lambert that
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 8 of 22
8 Opinion of the Court 21-10452
she needed to turn over the property or she would go to jail, to
which Mrs. Lambert replied, “[w]ell, then, take me to jail.” Officer
Herrington detained her, placing her in handcuffs.
While she was not under arrest at that point, Officer Her-
rington testified that he could have arrested her for theft of stolen
property and disorderly conduct because of her failure to return
the property and her yelling to the point that some of the neighbors
came to the front of their house. The two struggled when Officer
Herrington was handcuffing Mrs. Lambert, and Mr. Lambert got
involved, placing his hand on Officer Herrington’s shoulder. Of-
ficer Herrington then commanded Mr. Lambert to place his hands
behind his back, and Mr. Lambert resisted being placed in hand-
cuffs. Officer Herrington was able to take Mr. Lambert to the
ground by using a maneuver that involved placing the officer’s foot
behind Mr. Lambert’s foot. After Officer Herrington placed his
forearm near Mr. Lambert’s chin, Mr. Lambert rolled over and
complied. Officer Herrington testified that he charged Mr. Lam-
bert with disorderly conduct, a misdemeanor, rather than second
degree assault, a felony, because of Mr. Lambert’s age and lack of
prior criminal history.
Eventually, the Lamberts’ son retrieved the airsoft guns
from the house and turned them over to a second officer on scene.
Officer Herrington told Mrs. Lambert that an arrest warrant for
disturbing the peace would be signed later, but because the Lam-
berts had custody of their grandchildren at the time, Officer
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 9 of 22
21-10452 Opinion of the Court 9
Herrington did not wish to arrest both of them at that time. 2 Of-
ficer Herrington transported Mr. Lambert to the local jail, and
eventually Mrs. Lambert arrived to post his bond. After what Of-
ficer Herrington calls belligerent behavior at the jail, he arrested
her for disorderly conduct “[m]ainly for the way she was acting at
her residence.”
C. Criminal and Civil Case Procedural History
The Lamberts both appeared in court on their disorderly
conduct charges. After six months of good behavior, the charges
were dismissed.
The Lamberts filed the instant suit against the City of
Satsuma, Alabama, as well as Officer Herrington in his official and
individual capacities. In the operative complaint, Mrs. Lambert al-
leged a First Amendment violation for retaliatory arrest, Fourth
Amendment violations for false arrest and excessive force, as well
as state law claims for false arrest, false imprisonment, assault and
battery, all against Officer Herrington in his individual and official
capacities. She further alleged respondeat superior liability against
the City for assault and battery, false arrest and false imprisonment.
2 According to a neighbor’s affidavit, both Mr. and Mrs. Lambert were loudly
yelling and using profanity such that she could hear the yelling from across the
street, and that neighbor saw another neighbor come from the back of his
house “to see what was going on.” Similarly, the other officer on scene, Mar-
quis Parsons, testified in his deposition that Mrs. Lambert was “unruly, loud,
[and] using obscene language.”
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 10 of 22
10 Opinion of the Court 21-10452
Mr. Lambert alleged Fourth Amendment false arrest and excessive
force claims as well as state law false imprisonment, false arrest,
and assault and battery claims against Officer Herrington in his in-
dividual and official capacities. Further, he alleged assault and bat-
tery, false arrest, false imprisonment claims against the City under
a respondeat superior theory of liability.
The district court granted summary judgment to the City as
well as to Officer Herrington in his official capacity, but it denied
Officer Herrington’s motion for summary judgment as to the
claims against him in his individual capacity, finding that he was
not entitled to qualified immunity. This timely appeal followed.
II. STANDARD OF REVIEW
We review de novo a district court’s denial of summary
judgment. Taylor v. Hughes, 920 F.3d 729, 732 (11th Cir. 2019).
“Summary judgment is appropriate if the evidence before the court
demonstrates that ‘there is no genuine dispute of material fact and
that the moving party is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
III. ANALYSIS
On appeal, Officer Herrington argues that the district court
erred in not granting his motion for summary judgment on the ba-
sis of qualified immunity and two related state-law immunity doc-
trines. “Qualified immunity offers complete protection for govern-
ment officials sued in their individual capacities if their conduct
‘does not violate clearly established statutory or constitutional
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 11 of 22
21-10452 Opinion of the Court 11
rights of which a reasonable person would have known.’” Brown
v. City of Huntsville, 608 F.3d 724, 733 (11th Cir. 2010) (quoting
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). There-
fore, qualified immunity is appropriate only when a government
actor is exercising a discretionary function and has not violated a
clearly established statutory or constitutional right. Id. Similarly,
Alabama state-law immunity applies only when a government ac-
tor is exercising a discretionary function and is inappropriate when
he has violated someone’s constitutional rights. Taylor, 920 F.3d
at 734.
Whether Officer Herrington’s conduct violated clearly es-
tablished law turns on whether he had at least arguable probable
cause to detain or arrest the Lamberts. Officer Herrington points
to the record evidence that he had such probable cause. We rec-
ognize that facts, as construed in the light most favorable to the
nonmovants at the summary judgment stage of the proceedings,
see Brown, 608 F.3d at 724, may not be the actual facts of the case.
Nonetheless, we approach the facts from the plaintiffs’ perspectives
“because the issues appealed here concern not which facts the par-
ties might be able to prove, but, rather, whether or not certain
given facts showed a violation of clearly established law.” Edwards
v. Shanley, 666 F.3d 1289, 1292 (11th Cir. 2012) (quoting Crenshaw
v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009)).
Therefore, we do not weigh the evidence on each side to
determine whether Officer Herrington had arguable probable
cause. Rather, we examine the evidence in the light most favorable
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 12 of 22
12 Opinion of the Court 21-10452
to the Lamberts. As a result, we conclude that there is a material
factual dispute as to whether Officer Herrington had probable
cause—or even arguable probable cause—to arrest the Lamberts
such that no amount of force was justified in arresting them. Be-
cause of these factual disputes, neither qualified immunity nor the
related state-law immunity doctrines are an appropriate basis for
summary judgment in this case. Thus, as explained in detail below,
we affirm the district court’s denial of summary judgment as to the
claims against Officer Herrington in his individual capacity.
A. Federal Claims Concerning Mrs. Lambert’s Arrest
Officer Herrington argues that he had at least arguable prob-
able cause to arrest Mrs. Lambert for disorderly conduct based on
her behavior at her home. He notes that Mrs. Lambert admitted
yelling at Ms. Strickland to “get the fuck off [Mrs. Lambert’s] prop-
erty.” He also contends that Mrs. Lambert was loud enough to
draw both her husband and neighbors outside of their homes.
“There is no question that an arrest without probable cause
to believe a crime has been committed violates the Fourth Amend-
ment.” Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997).
“Probable cause exists if ‘the facts and the circumstances within the
collective knowledge of the law enforcement officials, of which
they had reasonably trustworthy information, are sufficient to
cause a person of reasonable caution to believe that an offense has
been or is being committed.’” Id. (quoting United States v.
Jimenez, 780 F.2d 975, 978 (11th Cir. 1986)). “To receive qualified
immunity, an officer need not have actual probable cause, but only
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 13 of 22
21-10452 Opinion of the Court 13
‘arguable’ probable cause.” Brown, 608 F.3d at 734. Arguable
probable cause exists where reasonable officers in the same circum-
stances and possessing the same knowledge as the defendant could
have believed that probable cause existed to arrest the plaintiff. Id.And probable cause should generally defeat a retaliatory arrest
claim. Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).
To determine whether Officer Herrington had probable
cause to arrest Mrs. Lambert for disorderly conduct, we must ex-
amine the statutory text. In relevant part, the Alabama statute de-
fining disorderly conduct provides as follows:
(a) A person commits the crime of disorderly conduct
if, with intent to cause public inconvenience, annoy-
ance or alarm, or recklessly creating a risk thereof, he
or she does any of the following:
(1) Engages in fighting or in violent tumultuous or
threatening behavior. [or]
(2) Makes unreasonable noise.
Ala. Code § 13A-11-7.
Mrs. Lambert was arrested for violating subsection (a)(2),
making an unreasonable noise. But merely making a loud noise is
not sufficient to violate this statute. Swann v. City of Huntsville,
455 So. 2d 944, 950 (Ala. Crim. App. 1984). Rather, violating this
subsection requires making a noise that is unreasonable under the
circumstances. Id. Mrs. Lambert testified that the only time she
used profanity while Officer Herrington was present was when she
told Ms. Strickland to “get the fuck off [Mrs. Lambert’s] property.”
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 14 of 22
14 Opinion of the Court 21-10452
She also stated that she only yelled during that comment to Ms.
Strickland and when she was pleading with Officer Herrington to
use less force against her husband when taking him into custody.
By contrast, Officer Herrington points to witness statements that
the neighbors came outside because of the unreasonable noise and
commotion she was causing.
A jury may consider these contrary statements at trial, but
at the summary judgment stage, we must accept as true Mrs. Lam-
bert’s deposition testimony that the only loud noises she made that
day were telling Ms. Strickland, a person with whom she was hav-
ing a dispute and did not invite to her property, to leave the prop-
erty—albeit in a rude way—and pleading with Officer Herrington
to get off her husband when the officer placed his knee on Mr. Lam-
bert’s chest. See Edwards, 666 F.3d at 1292. Thus, given the stage
of the proceedings and viewing the facts and evidence in the light
most favorable to Mrs. Lambert, we cannot conclude that Officer
Herrington had even arguable probable cause to arrest Mrs. Lam-
bert for disorderly conduct.
Mrs. Lambert further contends that Officer Herrington did
not only arrest her without probable cause but also that he did so
in retaliation for comments that she made at the jail about the
amount of force he used against her and her husband’s remarks, as
well as her opinions about her husband’s arrest being unnecessary.
On appeal, Officer Herrington argues that the arrest was not retal-
iatory and was in fact based on her conduct at her house earlier that
day. He contends that he decided to not arrest Mrs. Lambert at her
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 15 of 22
21-10452 Opinion of the Court 15
house to allow her to supervise her grandchildren while Mr. Lam-
bert was in jail. (Circumstances had changed, Officer Herrington
argues, by the time Mrs. Lambert arrived at the jail because some-
one else was watching the grandchildren while Mrs. Lambert went
to the jail to post bail for her husband. Thus, Officer Herrington
contends that his arrest of Mrs. Lambert at the jail was not retalia-
tory, but instead based on her yelling and use of profanity while he
was at her house earlier that day.
As already explained, we cannot conclude, while accepting
all of Mrs. Lambert’s factual evidence as true, that Officer Herring-
ton had even arguable probable cause to arrest her for disorderly
conduct. In the absence of probable cause, we look to three ele-
ments to determine whether Officer Herrington violated Mrs.
Lambert’s clearly established right to not be arrested for exercising
her First Amendment speech right. To state a First Amendment
retaliation claim, a plaintiff generally must demonstrate: (1) she en-
gaged in constitutionally protected speech; (2) the defendant’s re-
taliatory conduct adversely affected that protected speech; and (3)
a causal connection exists between the defendant’s retaliatory con-
duct and the adverse effect on the plaintiff’s speech.” DeMartini v.
Town of Gulf Stream, 942 F.3d 1277, 1289 (11th Cir. 2019).
Mrs. Lambert contends that, “[b]ut for asking for infor-
mation about how to file a complaint against Herrington, she
would not have been arrested at the jail.” The record also contains
a declaration from an expert who reviewed video of Mrs. Lam-
bert’s interaction with Officer Herrington at the jail. The expert
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 16 of 22
16 Opinion of the Court 21-10452
attests that the video shows that Officer Herrington arrested Mrs.
Lambert shortly after she asked Officer Herrington why he hurt
her arms and neck earlier at her house. These inquiries qualify as
constitutionally protected speech. See City of Houston v. Hill, 482
U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant
amount of verbal criticism and challenge directed at police offic-
ers.”). Arresting someone for exercising the right to protected
speech adversely affects that protection. While Officer Herrington
contends that his arrest was based on Mrs. Lambert’s conduct at
her home, Mrs. Lambert has presented some evidence that she was
arrested because of her constitutionally protected comments at the
jail. Thus, an issue of material fact exists as to whether there was a
causal connection between Mrs. Lambert’s speech and her arrest,
and ultimately whether Officer Herrington violated Mrs. Lam-
bert’s clearly established right to be free from arrest in retaliation
for constitutionally protected speech. Qualified immunity is there-
fore inappropriate as to both Mrs. Lambert’s Fourth Amendment
arrest without probable cause claim and her First Amendment re-
taliatory arrest claim.
B. Federal Claims Concerning Mr. Lambert’s Arrest
We now turn to the claims concerning Mr. Lambert’s arrest.
Officer Herrington arrested Mr. Lambert under subsection (a)(1) of
the Alabama disorderly conduct statute, which bans “fighting or
. . . violent tumultuous or threatening behavior.” Ala. Code § 13A-
11-7(a)(1).
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 17 of 22
21-10452 Opinion of the Court 17
On appeal, Officer Herrington argues that, even viewing the
evidence in the light most favorable to Mr. Lambert, he had at least
arguable probable cause to make an arrest because Mr. Lambert
came towards him while he was taking Mrs. Lambert into custody
and later grabbed his vest and resisted being placed into handcuffs.
Mr. Lambert admits to grabbing Officer Herrington’s vest as he
was falling to the ground to help break his fall but denies fighting
or physically engaging with the officer. At this procedural stage,
we must accept Mr. Lambert’s sworn denial as true. We also can-
not conclude that merely holding on to someone in order to break
a fall creates arguable probable cause to arrest someone for
“fighting or . . . violent tumultuous or threatening behavior” under
section 13A-11-7(a)(1). Thus, there is a factual issue as to whether
Officer Herrington violated Mr. Lambert’s Fourth Amendment
right to be free from arrest without probable cause. Because of
this, qualified immunity for both Mr. Lambert’s false arrest and ex-
cessive force claims is inappropriate.
C. Excessive Force
The Lamberts also allege that Officer Herrington used ex-
cessive force when he took them into custody at their house, in
violation of their Fourth Amendment rights. On appeal, Officer
Herrington contends that he used only de minimis force to take
both Mr. and Mrs. Lambert into custody, which he contends was
reasonable.
The Fourth Amendment prohibits “unreasonable seizures
of the person—specifically, the freedom from excessive uses of
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 18 of 22
18 Opinion of the Court 21-10452
force.” Prosper v. Martin, 989 F.3d 1242, 1250 (11th Cir.), cert. de-
nied, 142 S. Ct. 435 (2021). The touchstone of an excessive force
claim is “reasonableness.” Id. (quoting Graham v. Connor, 490
U.S. 386, 394–95 (1989)). Thus, the ultimate question is whether
an officer’s conduct was “objectively reasonable” in light of the
facts and circumstances, including “the severity of the crime at is-
sue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. (quoting Graham, 490
U.S. at 396–97).
“In determining whether the constitutional right at issue
was ‘clearly established’ at the time the officer acted, we ask
whether the contours of the right were sufficiently clear that every
reasonable officer would have understood that what he was doing
violates that right.” A plaintiff may show that an officer’s force was
excessive and violated clearly established law through: “(1) case law
with indistinguishable facts clearly establishing the constitutional
right; (2) a broad statement of principle within the Constitution,
statute, or case law that clearly establishes a constitutional right; or
(3) conduct so egregious that a constitutional right was clearly vio-
lated, even in the total absence of case law.” Lewis v. City of West
Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009) (citations
omitted). De minimis force typically does not support a claim of
excessive force in violation of the Fourth Amendment. Nolin v.
Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). However, we have rec-
ognized that if an officer does not have probable cause to make an
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 19 of 22
21-10452 Opinion of the Court 19
arrest, any amount of force to achieve that arrest, even de minimis,
is excessive. See id. at 1258.
As we have already explained, given the Lamberts’ version
of events at the summary judgment stage, we must assume that
Officer Herrington did not have even arguable probable cause to
arrest the Lamberts. Therefore, even if Officer Herrington used
only de minimis force, he violated the Lamberts’ clearly established
right to be free from excessive force. We therefore cannot con-
clude that Officer Herrington is entitled to qualified immunity as
to the Lamberts’ excessive force claims against him.
D. State Law Claims
Officer Herrington further contends that he is entitled to
state-law immunity on the Lamberts’ false arrest, false imprison-
ment, and assault and battery claims. Alabama provides law en-
forcement officers with two forms of immunity relevant here, stat-
utory immunity and state-agent immunity (also known as discre-
tionary-function immunity).
Statutory immunity for law enforcement officers derives
from Ala. Code § 6-5-338(a), which provides as follows:
Every peace officer . . . whose duties prescribed
by law, or by the lawful terms of their employment
or appointment, include the enforcement of, or the
investigation and reporting of violations of, the crim-
inal laws of this state, and who is empowered by the
laws of this state to execute warrants, to arrest and to
take into custody persons who violate, or who are
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 20 of 22
20 Opinion of the Court 21-10452
lawfully charged by warrant, indictment, or other
lawful process, with violations of, the criminal laws of
this state, shall at all times be deemed to be officers of
this state, and as such shall have immunity from tort
liability arising out of his or her conduct in perfor-
mance of any discretionary function within the line
and scope of his or her law enforcement duties.
State-agent immunity under Alabama law provides immun-
ity from civil liability in a number of circumstances including when
a state agent is “[e]xercising judgment in the enforcement of the
criminal laws of the state, including, but not limited to, law-en-
forcement officers’ arresting or attempting to arrest persons.” Ex
parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), holding modified
by Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006).
State-agent immunity does not, however, apply under two
circumstances:
(1) when the Constitution or laws of the United
States, or the Constitution of [Alabama], or laws,
rules, or regulations of [Alabama] enacted or promul-
gated for the purpose of regulating the activities of a
governmental agency require otherwise; or
(2) when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority,
or under a mistaken interpretation of the law.
Id.To receive state-agent immunity, a government employee
must first demonstrate that he was performing a discretionary
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 21 of 22
21-10452 Opinion of the Court 21
function. See Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala.
2003). Then, the burden shifts to the plaintiff to show that the gov-
ernment employee’s actions render state-agent immunity inappro-
priate for one of the reasons outlined in Ex Parte Cranman. See id.The Alabama Supreme Court has said that Cranman ’s statement
of the factors used to determine whether an officer is entitled to
common law state-agent immunity also applies when analyzing
whether an officer is entitled to statutory immunity. Ex parte City
of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005); see also Brown, 608
F.3d at 741. Thus, we engage in a single analysis for both forms of
state law immunity.
The Alabama Supreme Court has recognized that making
arrests, as Officer Herrington did, generally constitutes a discre-
tionary function, Telfare v. City of Huntsville, 841 So. 2d 1222,
1228 (Ala. 2002), and the Lamberts do not argue on appeal that
their arrests were exceptions to that general principle. Officer Her-
rington therefore contends that absent evidence that he violated a
departmental policy or procedure, the Lamberts “must establish
that Officer Herrington acted willfully or maliciously so as to deny
him discretionary function immunity.” But Alabama state law im-
munity does not apply when a police officer has violated an indi-
vidual’s constitutional rights. Taylor, 920 F.3d at 734. And Ala-
bama’s probable cause and arguable probable cause standards are
essentially the same as their federal counterparts. Ex parte Harris,
216 So. 3d 1201, 1213 (Ala. 2016). As we have already explained,
viewing the facts and evidence in the light most favorable to the
USCA11 Case: 21-10452 Date Filed: 06/29/2022 Page: 22 of 22
22 Opinion of the Court 21-10452
Lamberts, Officer Herrington did not have even arguable probable
cause to arrest the Lamberts or use force to take them into custody.
Therefore, we cannot conclude that Officer Herrington is entitled
to state-agent or statutory immunity.
IV. CONCLUSION
Officer Herrington’s arguments ask us to invade the prov-
ince of the jury by crediting the evidence supporting his version of
events in order to clothe him with qualified immunity as well as
state statutory and common law immunity. But the procedural
posture of this case does not allow us to do so. We express no view
on whether Officer Herrington will ultimately prevail on the mer-
its at trial, but for the aforementioned reasons, we affirm the dis-
trict court’s denial of summary judgment.
AFFIRMED.