Case: 18-12368 Date Filed: 10/10/2019 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12368 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-23064-DPG
FRANCOIS ALEXANDRE,
Plaintiff-Appellee,
versus
JAVIER ORTIZ, JOSUE HERRERA, MAGDIEL PEREZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida _________________________
(October 10, 2019)
Before JORDAN, BRANCH and BLACK, Circuit Judges.
PER CURIAM: Case: 18-12368 Date Filed: 10/10/2019 Page: 2 of 17
Appellants Lieutenant Javier Ortiz, and Officers Josue Herrera and Magdiel
Perez of the City of Miami Police Department appeal the district court’s denial of
their motions for summary judgment on the basis of qualified immunity. Francois
Alexandre claims the Appellants violated his Fourth Amendment rights by using
excessive force during his arrest. The district court found that, viewing the facts in
the light most favorable to Alexandre, the Appellants’ use of force was excessive
under both federal and state law, and the law was clearly established that their
actions were unconstitutional, or alternatively, their conduct was such that it was
plainly objectively unreasonable—an “obvious clarity” case. Given the facts of
this case and the law from this Circuit in cases with materially similar facts, we
conclude that Ortiz is entitled to qualified immunity on Alexandre’s excessive
force claims, but that Herrera and Perez are not. Accordingly, we reverse and
remand with respect to Ortiz, and affirm with respect to Herrera and Perez.
I. BACKGROUND
A. Factual Background
In this case we have both Alexandre’s version of the facts and video footage
of the incident from Alexandre’s cell phone and a building security camera. The
following facts are based on Alexandre’s version of the events except when the
video contradicts his version. See Pourmoghani-Esfahani v. Gee, 625 F.3d 1313,
1315 (11th Cir. 2010).
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On June 20, 2013, the Miami Heat won the N.B.A. championship at home in
the American Airlines Arena. Many people spilled into the streets of downtown
Miami to celebrate the championship. Alexandre lived in downtown Miami at the
Vizcayne Towers apartment complex on N.E. 2nd Street and celebrated with other
Heat fans on the street in front of his apartment building.
Sometime after 1:30 in the morning of June 21, 2013, officers from the City
of Miami Police Department were clearing the street1 near Alexandre’s apartment
by forming a line while holding up their bicycles (the “bike line”). As the bike line
moved forward, the officers issued a dispersal order, directing the crowd to move
to the sidewalk and leave the area. Alexandre, while filming on his cell phone,
shouted “we ain’t going home tonight,” “we are taxpayers,” and “don’t take this
bullshit from them.” Alexandre complied with the officers’ order to move to the
sidewalk, and once there yelled “we are on the sidewalk. Get the fuck out of here
and do your business.”
An unidentified woman was shoved to the ground in front of the bike line.
Alexandre stopped to lean over the woman and then lifted his phone to continue
recording the police. Seconds later, without any warning, Ortiz grabbed Alexandre
in a headlock around the neck and pulled him into the alcove of Alexandre’s
1 The police had received a report that a crowd of civilians attempted to overturn vehicles in the vicinity of N.E. 2nd Street and Biscayne Boulevard. Ortiz is the only officer that reported seeing anyone trying to overturn a car in the area. 3 Case: 18-12368 Date Filed: 10/10/2019 Page: 4 of 17
apartment building. Several other officers, including Herrera and Perez,2 then
converged to help Ortiz take Alexandre down. Video footage shows that once
Ortiz took Alexandre down with the assistance of the other officers, Ortiz then
stood up with his back to Alexandre to separate the crowd from the arrest going on
behind him. At some point Ortiz gets back on the pile, but he is always in view of
the camera and only near the lower part of Alexandre’s body.
As to the officers other than Ortiz, once they were piled on top of Alexandre,
it is difficult to view from the video what was happening at the top part of
Alexandre’s body, and the parties give conflicting accounts. Alexandre testified
that he was not struggling to keep the officers from handcuffing him when he was
on the ground, and he did not recall whether his hands were underneath his body.
The video shows that once he is on the ground Alexandre is not kicking or flailing
with the lower half of his body, and the audio supports that he told the officers,
“I’m not resisting. I’m not resisting.”3 Appellants contend that Alexandre was
actively resisting arrest by keeping his arms underneath his body. While on the
ground, officers repeatedly told Alexandre to “stop resisting,” and Alexandre
responded, “I’m not resisting. I’m not resisting.” In response, one or more of the
2 Officers Ruben Rojas and Christopher Vital also converged on top of plaintiff. Vital was never served with Alexandre’s complaint and is no longer with the City of Miami Police Department. Rojas was dismissed from this action on January 30, 2018, pursuant to Alexandre’s Motion for Voluntary Dismissal. 3 Once Alexandre is on the ground, his cell phone video contains only audio, but the building security camera provides video. 4 Case: 18-12368 Date Filed: 10/10/2019 Page: 5 of 17
officers told Alexandre to “shut the fuck up.” Appellants admit that Vital punched
Alexandre two times and that Herrera used an open hand to strike Alexandre
several times. While Alexandre asserts he was punched, kicked, and thrown to the
ground, he does not know which officers inflicted the various blows. Within
minutes, the officers handcuffed Alexandre and led him to a patrol car.
Alexandre was charged with inciting a riot and resisting arrest without
violence, but all charges were later dismissed. Alexandre’s injuries included a
fractured orbital bone in the left side of his face, and abrasions to his face, eyes,
and lips. He saw doctors for his injuries, including doctors at Bascom Palmer Eye
Institute for his orbital bone injury. It is unclear whether Alexandre’s injuries were
caused by the force used to throw him to the ground or the officers’ punches and/or
kicks to Alexandre’s body.
B. Procedural Background
On September 14, 2017, Alexandre filed an Amended Complaint against the
City of Miami, and Ortiz, Herrera, Perez, Ruben Rojas, Christopher Vital, and four
unidentified City of Miami police officers. Alexandre alleged (1) § 1983 unlawful
arrest against the individual defendants; (2) § 1983 excessive force against the
individual defendants; (3) violation of the right to peaceably assemble against the
individual defendants; (4) § 1983 false arrest and excessive force against the City;
(5) false arrest under Florida law against the individual defendants; and (6) battery
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under Florida law against the individual defendants. The district court granted
summary judgment in favor of the City and individual defendants on counts one,
three, four, and five. Thus, the only remaining claims are count two—§ 1983
excessive force against Ortiz, Herrera, and Perez—and count six—battery under
Florida law against Ortiz, Herrera, and Perez. Ortiz, Herrera, and Perez appeal the
denial of qualified immunity on these claims.
II. DISCUSSION
A. Qualified immunity
We review de novo a district court’s disposition of a summary judgment
motion based on qualified immunity, applying the same legal standards as the
district court. Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015). To
receive qualified immunity, the public official must first show that he was acting
within the scope of his discretionary authority at the time the allegedly wrongful
acts occurred. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). It is
undisputed that Appellants were acting within the scope of their discretionary
authority. The burden then shifts to Alexandre to show that qualified immunity
should not apply. See Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012).
In order to find that Appellants are susceptible to suit, we must answer two
questions in the affirmative. These questions may be answered in either order.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). One, “[t]aken in the light most
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favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201
(2001). And two, was that right “clearly established”? Id.
It is well-established that qualified immunity protects government officials
unless they violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). We have stated that “only in exceptional cases will government actors
have no shield against claims made against them in their individual capacities.”
Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998)
(quoting Lassiter v. Ala. A & M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en
banc)).
Three initial matters must be discussed before we begin our analysis. First,
we reject Alexandre’s argument that we lack jurisdiction over the appeal because
only factual determinations are on appeal. Ortiz’s appeal is a question of law, as
he does not appeal the district court’s factual determinations; rather he argues that
the facts viewed in the light most favorable to Alexandre do not support an
excessive force claim against him under Supreme Court and Eleventh Circuit law,
and that he is thus entitled to qualified and state law immunity. See Courson v.
McMillian, 939 F.2d 1479, 1486-88 (11th Cir. 1991) (stating whether a defendant
is entitled to qualified immunity is a question of law; in other words, whether the
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law at the time of the incident was clearly established so that a reasonable person
should have known that he was violating it). While Herrera and Perez do attempt
to argue their case under their own version of the facts, they also appeal the district
court’s failure to look at their actions individually and present the legal question of
their entitlement to qualified immunity. Second, our analysis is informed by the
fact Alexandre conceded at the summary judgment hearing that he is not bringing a
failure to intervene claim against any of the Appellants. And third, we review the
actions of Ortiz separately from those of Herrera and Perez. While in his
complaint, Alexandre treated Appellants as a single group (as did the district court
in denying summary judgment), the video shows that Ortiz’s actions in
Alexandre’s arrest were different than those of Herrera and Perez. We begin our
analysis with Ortiz.
1. Ortiz
Ortiz asserts the district court erred in denying him qualified immunity as a
matter of law. Specifically, he contends that his conduct is clearly shown in the
video, and that his conduct does not rise to the level of a constitutional violation.
He asserts his conduct amounts to an ordinary takedown measure, and that there is
no guiding case from this Court or the Supreme Court that would put him on notice
that an ordinary takedown measure would rise to the level of excessive force by
virtue of an unforeseeable serious injury.
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Although the Fourth Amendment guarantees the right to be free from the use
of excessive force during the course of an arrest, “not every push or shove, even if
it may later seem unnecessary in the peace of a judge’s chambers, violates the
Fourth Amendment.” Saucier, 533 U.S. at 209 (quotations omitted). “[T]he right
to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). “In order to determine whether the amount of
force used by a police officer was proper, a court must ask whether a reasonable
officer would believe this level of force is necessary in the situation at hand.” Lee,
284 F.3d at 1197 (quotations omitted). “[T]he ‘reasonableness’ inquiry in an
excessive force case is an objective one: the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.”
Graham, 490 U.S. at 397. “In applying the Graham objective-reasonableness
standard, our circuit has identified three factors to evaluate for determining if the
force used by an officer in making an arrest was objectively reasonable: (1) the
need for the application of force, (2) the relationship between the need and amount
of force used, and (3) the extent of the injury inflicted.” Stephens v. DeGiovanni,
852 F.3d 1298, 1324 (11th Cir. 2017) (quotations omitted).
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As to the need for force, while the police were trying to clear the street,
Alexandre yelled “we ain’t going home tonight,” “we are taxpayers,” and “don’t
take this bullshit from them.” Once he was on the sidewalk, he told the officers to
“[g]et the fuck out of here and do your business.” A reasonable officer in Ortiz’s
position could think Alexandre posed a threat to other officers and the crowd, and
police officers are often called upon to make split-second judgments “in
circumstances that are tense, uncertain, and rapidly evolving,” Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2474 (2015) (quotations omitted). Therefore, Ortiz
was entitled to use some degree of force in taking Alexandre down to effectuate
the arrest. See Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (“This
circuit has made clear that some use of force by a police officer when making a
custodial arrest is necessary and altogether lawful, regardless of the severity of the
alleged offense.”). After Alexandre is taken down to the ground, the video shows
that Ortiz is not involved in the pile of officers on top of Alexandre. Instead, he
had his back to the other officers and Alexandre. 4 When he returns to the pile, he
is in view of the camera at the lower half of Alexandre’s body, and the video does
not show him hitting or kicking Alexandre.
4 We once again emphasize that Alexandre is not bringing a failure to intervene claim against Ortiz. 10 Case: 18-12368 Date Filed: 10/10/2019 Page: 11 of 17
As to the amount of force, the force used here by Ortiz was no more severe
than the force we have described as de minimis and lawful in other materially
similar cases. In Nolin v. Isbell, we concluded that an officer used de minimis
force that was not actionable when he grabbed the plaintiff from behind by the
shoulder and wrist, threw him against a van three of four feet away, kneed him in
the back and pushed his head into the side of the van, searched his groin area in an
uncomfortable manner, and handcuffed him. 207 F.3d 1253, 1255, 1258-59 (11th
Cir. 2000). In Durruthy, the plaintiff brought a claim of excessive force against a
police officer who “force[d] [the plaintiff] down to the ground and plac[ed] him in
handcuffs.” 351 F.3d at 1094. We reversed the denial of qualified immunity
because we concluded the officer used only de minimis force to arrest the plaintiff.
Id. In Croom v. Balkwill, the plaintiff brought a claim of excessive force against a
deputy sheriff who forced the plaintiff to the ground from a squatting position and
held her there with a foot (or knee) in the back for up to ten minutes. 645 F.3d
1240, 1252 (11th Cir. 2011). We affirmed the district court’s grant of summary
judgment in favor of the defendant on the basis that the force used against the
plaintiff, even if unnecessary, was de minimis. Id. at 1253. And, in Myers v.
Bowman, the plaintiff brought a claim of excessive force against a deputy sheriff
who “grabbed [the plaintiff] by the arm, forced him to the ground, placed him in
handcuffs” and “held [him] to the ground for less than one minute before he helped
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[him] to his feet.” 713 F.3d 1319, 1328 (11th Cir. 2013). We affirmed the district
court’s grant of summary judgment in favor of the defendant because the force
used against the plaintiff was de minimis. Id.
Nor does the fact that Alexandre suffered an injury defeat qualified
immunity for Ortiz. Although unfortunate, assuming Alexandre’s injury occurred
while Ortiz and the other officers took down Alexandre during the normal course
of an arrest, Ortiz was not put on notice that those actions were potentially
unlawful. We consider the circumstances surrounding the arrest and do not rely
solely on an ex post assessment of the resulting injury. See Lee, 284 F.3d at 1200
(stating “reasonable force does not become excessive force when the force
aggravates (however severely) a preexisting condition . . . unknown to the officer
at the time” (quotations omitted)); Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th
Cir. 2002) (holding that, despite the gravity of this injury, the force used by the
officer did not rise to the level of a constitutional violation because he had used an
otherwise “common non-excessive handcuffing technique,” and had no knowledge
of the plaintiff's preexisting condition).
On these facts, the district court’s denial of Ortiz’s motion for summary
judgment on the basis of qualified immunity is erroneous. While the use of
gratuitous force when a suspect is not resisting arrest violates the Fourth
Amendment, Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008), “the
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application of de minimis force, without more, will not support” an excessive force
claim and “will not defeat an officer’s qualified immunity,” Nolin, 207 F.3d at
1257. Even assuming that Alexandre was not resisting, Ortiz was allowed to use
some force in effectuating Alexandre’s arrest. See Graham, 490 U.S. at 396;
Durruthy, 351 F.3d at 1094. Ortiz is therefore entitled to qualified immunity.
2. Herrera and Perez
Herrera and Perez argue they are entitled to qualified immunity because “the
uncontroverted evidence shows that neither officer used excessive force that could
have contributed to Appellee’s injuries.” The problem with their argument is that
they are using their own version of the facts to reach this conclusion, not viewing
the facts in the light most favorable to Alexandre. Their entire argument is
premised on their version of the facts—that Alexandre “refused to put his arms
behind his back to be handcuffed despite repeated request to stop resisting.”
However, Alexandre asserts that he was not resisting. The video and audio do not
contradict his claims—Alexandre can be heard on the audio saying “I’m not
resisting,” and the video shows that he was not flailing or kicking his legs while
the pile of officers was on top of him. Herrera and Perez make no argument that,
under Alexandre’s version of the facts, in which he is not resisting arrest, they
could punch and hit him to effectuate an arrest without being in violation of the
Fourth Amendment. Nor could they. Our caselaw is clearly established that the
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use of gratuitous force on a non-resisting arrestee would violate the Fourth
Amendment. Hadley, 526 F.3d at 1330.
Additionally, while Herrera and Perez argue the district court should have
looked at each officer’s conduct separately, citing Alcocer v. Mills, 906 F.3d 944,
951 (11th Cir. 2018), they are incorrect. In Alcocer, a case where a plaintiff
alleged she was illegally detained without probable cause, each defendant’s actions
and knowledge could be analyzed separately. In the instant case, as detailed
above, Ortiz’s actions could be analyzed separately because of the video evidence.
However, under Alexandre’s version of the facts and the video evidence, it is
impossible to separate the actions of Herrera and Perez from the larger group. In
Skritch v. Thornton, we rejected “the argument that the force administered by each
defendant in this collective beating must be analyzed separately to determine
which of the defendants’ blows, if any, used excessive force.” 280 F.3d 1295,
1302 (11th Cir. 2002). Further, in Velazquez v. City of Hialeah, we rejected the
argument that because the plaintiff did not see who beat him, there would be no
evidence at trial from which a jury might assign liability for the beating. 484 F.3d
1340, 1342 (11th Cir. 2007). “Were this the law, all that police officers would
have to do to use excessive force on an arrestee without fear of consequence would
be to put a bag over the arrestee’s head and administer the beating in silence.” Id.
Even without a failure to intervene claim, a jury could find that both Herrera and
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Perez administered blows that resulted in Alexandre’s fractured orbital bone in the
left side of his face, and abrasions to his face, eyes, and lips. Thus, on this record,
the district court did not err in denying qualified immunity to Herrera and Perez.
B. Immunity under Florida Law
Section 768.28(9)(a), Florida Statutes states that:
No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
Fla. Stat. § 768.28(9)(a). The Florida Supreme Court has confirmed that
§ 768.28(9)(a) provides immunity from suit rather than simply liability, Keck v.
Eminisor, 104 So. 3d 359, 366 (Fla. 2012), and we have held that an order denying
official immunity from suit under state law is immediately appealable, Griesel v.
Hamlin, 963 F.2d 338, 341 (11th Cir. 1992). Thus, we have jurisdiction to review
the district court’s order denying immunity under § 768.28(9)(a) for the state law
claims.
As quoted above, § 768.28(9)(a) protects an officer from personal liability
for acts within the scope of his employment, unless the officer “acted in bad faith
or with malicious purpose or in a manner exhibiting wanton and willful disregard
of human rights, safety, or property.” In determining whether an officer is entitled
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to summary judgment as a result of the immunity provided by § 768.28(9)(a), the
relevant inquiry is “whether a reasonable trier of fact could possibly conclude that
the [officer’s] conduct was willful and wanton, or would otherwise fall within the
exceptions to the statute.” Furtado v. Yun Chung Law, 51 So. 3d 1269, 1277 (Fla.
4th DCA 2011) (quotations omitted); see also Thompson v. Douds, 852 So. 2d 299,
310 (Fla. 2d DCA 2003) (“Because the record shows that there are genuine issues
of material fact as to whether the officers acted with wanton and willful disregard
of [the arrestee’s] rights and safety, the trial court’s decision to grant summary
judgment on the basis of statutory immunity was improper.”).
Similar to our analysis of the qualified immunity issue, we conclude there is
not sufficient evidence to raise a question of fact as to whether Ortiz acted willfully
or with malice in conducting a takedown measure to effectuate Alexandre’s arrest.
There is also no evidence that Ortiz hit or struck Alexandre once the takedown
measure was complete. Ortiz is entitled to summary judgment on this issue.
Conversely, there is sufficient evidence to raise a question of fact as to
whether Herrera and Perez acted willfully or with malice in allegedly hitting and
striking Alexandre once he was on the ground and allegedly not resisting arrest.
Accordingly, Herrera and Perez are not entitled to summary judgment on the state
law claims based on immunity provided by § 768.28(9)(a).
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III. CONCLUSION
Accordingly, we reverse the decision of the district court with regard to
Ortiz and remand with instructions to grant his motion for summary judgment.
We affirm the decision of the district court as to Herrera and Perez.
AFFIRMED in part; REVERSED AND REMANDED in part.