Case: 19-11475 Date Filed: 11/07/2019 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11475 Non-Argument Calendar ________________________
D.C. Docket No. 2:18-cv-00022-LGW-BWC
JOE T. YOUNG,
Plaintiff-Appellee,
versus
DAVID BRADY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(November 7, 2019)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
David Brady, a game warden with the Georgia Department of Natural Case: 19-11475 Date Filed: 11/07/2019 Page: 2 of 18
Resources (“DNR”), appeals the district court’s denial of his motion for summary
judgment on qualified immunity grounds. He argues that the district court erred
because he did not violate a Fourth Amendment right of the plaintiff, Joe Young,
and even if he did, such a right was not clearly established.
The relevant facts are as follows. On August 27, 2017, Young parked his
truck in a gravel parking lot underneath the bridge at Sidney Lanier Park and was
resting inside of it. He had his windows up and a green- and grey-colored sleeping
bag in the bed of his truck. Officer Brady parked his truck near Young’s and
approached, asking Young if he was “okay” and asking him to roll his window
down. At this point, Young waved his arms at Brady, indicated that he didn’t want
to speak with him, and drove off at a slow speed. Brady walked back to his car
and radioed in that Young was “pulling off” from him. Young drove, at most,
several hundred feet away to another nearby parking lot in the Park. Brady pulled
up behind him less than thirty seconds later.
After getting out of his truck, Brady approached Young, who was agitated,
and confirmed that he was stopping him. Brady asked Young to get out of the
vehicle and Young inquired as to why. After about a minute of back and forth,
Young got out of the truck and Brady handcuffed him. He reached into Young’s
pocket, pulled out his wallet, and ran Young’s driver’s license. After uncovering
no outstanding warrants or other issues, Brady uncuffed Young and allowed him to
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leave.
Young filed suit against Brady in state court and represented himself pro se,
alleging that while he was handcuffed, surgical sutures from a recent surgery were
pulled out, causing him personal injury. Brady properly removed the case to the
Southern District of Georgia. Young subsequently filed a motion for summary
judgment, asserting that Brady had no “probable cause” to stop him, Brady acted
unreasonably, and there was no genuine issue of material fact. Young filed a
second motion for summary judgment, which largely reiterated and reincorporated
the same arguments set forth in his first motion. Brady filed a cross-motion for
summary judgment arguing, inter alia, that Young’s claim was barred by the
doctrine of qualified immunity. He argued that he had reasonable suspicion to stop
Young because Young had a large bag in the bed of his truck, which appeared to
be the type used by illegal palmetto berry harvesters in southern Georgia during
that time of year; it was the middle of palmetto berry harvesting season; Young
drove away from him; and Young exhibited “highly agitated and uncooperative
behavior.” In response to Brady’s cross-motion for summary judgment—as well
as the evidence that Brady submitted in support of his motion—Young filed a
motion in limine to exclude all of Brady’s evidence relating to palmetto berry
harvesting.
The district court held a hearing on both parties’ motions. During the
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hearing, the court inquired as to what circumstances would make Brady suspect
that Young was engaging in illegal palmetto berry harvesting. Brady’s counsel
responded that Brady was suspicious of Young’s sleeping bag, which he
apparently suspected was a bag used to harvest palmetto berries. He also pointed
out that, although no berry harvesting occurred in Sidney Lanier Park, harvesting
generally occurred in southern Georgia during that time of the year. This, he
argued, combined with Young’s departure, created the requisite arguable
reasonable suspicion for Brady to stop Young. Young responded that Brady had
never mentioned palmetto berries in any of his legal filings up until that point, and
that Brady’s counsel had violated the Federal Rules of Civil Procedure by failing to
disclose any evidence relating to palmetto berries until discovery had closed.
Following the hearing, Brady filed a supplement to his cross-motion for summary
judgment, largely incorporating the arguments he made at the hearing.
The district court denied both motions for summary judgment, finding that
Brady was not entitled to qualified immunity. It concluded that the “observance of
an unfurled, flattened sleeping bag in the bed of a parked truck in a public park in
the middle of the day is not a particularized and objective basis establishing
reasonable suspicion of criminal activity—no matter what berry-picking season it
is.” It further concluded that Young driving away from Brady when Brady
approached him was not enough to establish reasonable suspicion. Brady timely
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appealed to us. 1
On summary judgment, a district court’s denial of qualified immunity is an
immediately appealable collateral order if it solely concerns the pure legal decision
of “(1) whether the implicated federal constitutional right was clearly established
and (2) whether the alleged acts violated that law.” Koch v. Rugg, 221 F.3d 1283,
1294 (11th Cir. 2000) (emphasis omitted).
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.” Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). We
“resolve all issues of material fact in favor of the plaintiff and “then answer the
legal question of whether the defendant is entitled to qualified immunity under that
version of the facts.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002)
(quoting Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th Cir. 1998))
(alterations omitted). Further, because we construe pro se pleadings liberally, for
the purposes of our review here, “we state the facts as alleged in [plaintiff’s]
liberally-construed complaint, viewed in the light most favorable to him.” Dixon
v. Hodges, 887 F.3d 1235, 1237 (11th Cir. 2018). We do not limit our
consideration of the evidence to undisputed facts based on local rules when the
1 After this, the district court denied Young’s motion in limine without prejudice because the case was on appeal, and left open the possibility that Young could refile the motion if we affirmed the denial of Brady’s motion for summary judgment. 5 Case: 19-11475 Date Filed: 11/07/2019 Page: 6 of 18
district court has not done so. Atwater v. Nat’l Football League Players Ass’n, 626
F.3d. 1170, 1175 n.5 (11th Cir. 2010).
Qualified immunity protects a defendant from liability for a § 1983 claim
arising from discretionary acts, “as long as the discretionary acts do not violate
clearly established federal statutory or constitutional rights of which a reasonable
person would have known.” Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir.
2000). Once an official demonstrates that he was performing a discretionary
function, the plaintiff has the burden to prove that the defendant is not entitled to
summary judgment on qualified immunity grounds. Holloman v. Harland, 370
F.3d 1252, 1264 (11th Cir. 2004).
To show that a defendant is not entitled to summary judgment on qualified
immunity grounds, the plaintiff must show that a reasonable jury could find both
that the defendant violated a constitutional right and that the constitutional right
was clearly established. Id. at 1267. We have held that
[a] right may be clearly established for qualified immunity purposes in one of three ways: (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 violated, even in the total absence of case law.
Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1291–92 (11th Cir. 2009)
(citations omitted). “Exact factual identity with a previously decided case is not
required,” but rather, the key inquiry is whether the law provided the official with 6 Case: 19-11475 Date Filed: 11/07/2019 Page: 7 of 18
“fair warning” that his conduct violated the constitution. Coffin v. Brandau, 642
F.3d 999, 1013 (11th Cir. 2011) (quotation marks omitted). This inquiry “must be
undertaken in light of the specific context of the case, not as a broad general
proposition.” Id. (quotation marks omitted). However, if there is no caselaw
directly on point, general statements of the law and the reasoning of prior cases
may provide fair warning of unlawful conduct if they “clearly apply” to the novel
factual situation at issue. Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th
Cir. 2005).
When an official asserts qualified immunity for an alleged Fourth
Amendment violation, the question is not whether the official had actual
reasonable suspicion, but whether the official had “arguable” reasonable suspicion.
Jackson, 206 F.3d at 1166. In other words, we consider whether an official had
reasonable suspicion as “an objective question viewed from the standpoint of a
reasonable official at the scene” and based on the totality of the circumstances.
Hicks v. Moore, 422 F.3d 1246, 1252 (11th Cir. 2005) (quotation and internal
marks omitted). Whether an official has arguable reasonable suspicion is a
question of law also reviewed de novo. See Evans v. Stephens, 407 F.3d 1272,
1280 (11th Cir. 2005) (en banc). We consider the totality of the circumstances “in
light of the officer’s own experience” and determine “whether the officer can point
to specific and articulable facts which, taken together with rational inferences from
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those facts” support an “objectively reasonable suspicion that [the defendant] had
engaged . . . in a crime.” United States v. Caraballo, 595 F.3d 1214, 1222 (11th
Cir. 2010) (quotation marks omitted, alteration in original).
Under the Fourth Amendment, an official can address questions to a person
at any time, and that person is free “to ignore his interrogator and walk away.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (quotation marks omitted).
However, an official may conduct a brief, investigatory stop, otherwise known as a
“Terry stop,” if he has a reasonable suspicion of criminal activity. See Jackson,
206 F.3d at 1165. Though reasonable suspicion is a less demanding standard than
probable cause, the Fourth Amendment nonetheless requires a minimum level of
objective justification for an official to make a Terry stop. Id. This objective
justification must exist at the onset of the stop. Hiibel v. Sixth Judicial Dist. Ct. of
Nev., 542 U.S. 177, 188 (2004). Objective justification does not exist based on a
mere refusal to cooperate with the official. Florida v. Bostick, 501 U.S. 429, 437
(1991); Florida v. Royer, 460 U.S. 491, 498 (1983) (stating that a person
approached by the police may decline to listen to the questions and go on his way
without furnishing the necessary objective grounds for reasonable suspicion).
Unprovoked flight upon noticing the police, on the other hand, is different
from a mere refusal to cooperate and can be grounds for reasonable suspicion.
Illinois v. Wardlow, 528 U.S. 119, 125 (2000). “Obviously the speed of the
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suspect’s movements may be relevant in the totality of the circumstances,” but the
speed “does not itself change the analysis where it is evident from the
circumstances that he was attempting to flee upon sighting the police.” United
States v. Gordon, 231 F.3d 750, 757 (11th Cir. 2000). Though departure from the
scene does not necessarily indicate wrongdoing, “a reasonable suspicion of
criminal activity may be formed by observing exclusively legal activity,” and an
officer may conduct a Terry stop to resolve any ambiguity between criminal and
noncriminal behavior. Id. at 754; Wardlow, 528 U.S. at 124-25 (stating that
headlong flight suggests, but does not necessarily indicate, wrongdoing and that
Terry recognized an officer’s ability to detain individuals to resolve an ambiguity).
After a careful review of the facts—and after construing the facts in the light
most favorable to the plaintiff—we affirm the district court’s decision. While
arguable reasonable suspicion sets a low bar, we cannot say that Brady’s actions
here cleared it.
We begin by noting that Officer Brady was acting within his “discretionary
authority” at the point that Young was seized because he “was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004), and Young does not argue
otherwise. Accordingly, the burden then shifts to Young to prove that (1) Brady
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violated a constitutional right that (2) was clearly established at the time of the
alleged violation. Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009).
Regarding the first element, we conclude that Brady violated Young’s
constitutional rights—specifically, Young’s rights under the Fourth Amendment—
when he seized him. As a preliminary matter, Young was “seized” within the
context of the Fourth Amendment when Brady approached his car for the second
time, because a reasonable person would not have felt free to leave at that point.
Mendenhall, 446 U.S. at 554. Indeed, Officer Brady verbally confirmed to Young
at this point—and not before—that he was pulling Young over.
The import of this conclusion is that, at this point, Brady must have
reasonably believed that he had arguable reasonable suspicion to effectuate the
investigatory stop. Jackson, 206 F.3d at 1166. In other words, he must have
reasonably believed that “specific and articulable facts which, taken together with
rational inferences from those facts,” supported an “objectively reasonable
suspicion that [the plaintiff] had engaged . . . in a crime.” See Hiibel, 542 U.S. at
188; Caraballo, 595 F.3d at 1222.
Brady’s arguments that he had the requisite suspicion fit into three
categories: (1) he suspected Young was engaging in illegal palmetto berry
harvesting; (2) Young drove away from him when Brady first approached him; and
(3) Young was belligerent when he was pulled over. We can summarily dispose of
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the third argument. Brady was required to have arguable reasonable suspicion at
the time that Young was seized, not thereafter. Young’s agitated demeanor was
not apparent until after he was seized, and thus cannot be a basis for Brady’s
arguable reasonable suspicion. We next address the first two arguments in turn.
First, we are unpersuaded by Brady’s argument that his suspicions of illegal
palmetto berry harvesting justified his seizure of Young. His argument is
essentially that this suspicion was justified merely because Young was in the
general region of the state in which the illegal harvesting occurred, at around the
time it occurred, and he had a sleeping bag in the bed of his truck.
In support of this argument, Brady points to, inter alia, an affidavit from
Brian Clavier, the Chief of Law Enforcement for the Georgia Forestry
Commission. Clavier’s affidavit explains that illegal palmetto berry harvesting
primarily happens around Dixon State Forest, near Brunswick, Georgia, between
August and October of each year, with a large percentage of the harvest occurring
in August. Along with his affidavit, Clavier submitted the DNR Law Enforcement
Division’s Weekly Report for the week of August 13, the week before Young’s
seizure. The weekly report details a “bust” that took place on August 14, in which
rangers recovered 1,800 pounds of palmetto berries near Waycross, Georgia. The
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report includes a picture of the bust, which shows brown and clear bags,2 some of
which had emblems on them, stuffed with palmetto berries.
Arguable reasonable suspicion requires more than Brady points to. The
location of Sidney Lanier Park does not lend itself to arguable reasonable
suspicion. The Park is located nearly 60 miles and over an hour away from Dixon
State Forest, where the uncontroverted evidence shows that the overwhelming
majority of the harvesting takes place. The Park is located a similar distance away
from Waycross, the location of the only mentioned “bust” in the record. Indeed,
Brady concedes that no illegal harvesting takes place at Sidney Lanier Park itself.
[Doc. 50 at 6–9.]
Similarly, we find the date on which the seizure took place to be equally
unpersuasive. Though we noted in Caraballo, 595 F.3d at 1222, that the time of
year can be a factor in finding that reasonable suspicion of illegal harvesting
existed, we did not hold that the time of year, standing alone, conferred reasonable
suspicion where it otherwise did not exist.
But Brady’s main argument here concerns Young’s sleeping bag. He argues
that he believed that the sleeping bag was the kind of bag used by illegal berry
2 The copy of the Weekly Report in the record is in black-and-white, [Doc. 44-4], but because the Weekly Report is easily accessible online, Ga. Dep’t of Natural Res. Law Enforcement Div., Weekly Report: August 13 – 19, 2017, https://gadnrle.org/sites/default/files/le/pdf/LE- Reports/2017/August%2013th-August%2019th.pdf, we take judicial notice of the color of the bags based on the color pictures available online. See Fed. R. Evid. 201(b)(2). 12 Case: 19-11475 Date Filed: 11/07/2019 Page: 13 of 18
harvesters. We conclude that this argument doesn’t track with the events depicted
in the footage from his body camera. Both times that Brady approached the truck,
he obviously saw the sleeping bag lying on top of the truck bed—it was broad
daylight and Brady got within three or four feet of the bag. And though Brady’s
argument on appeal is that he needed to seize Young to further investigate the
sleeping bag for potential palmetto berry harvesting, [Blue Br. at 30], he got an
equally good, if not better, look at the sleeping bag minutes earlier when he first
approached Young’s truck. The footage shows Brady approaching Young’s truck
and getting close enough that he was able to put his hand on the driver-side
window. At that point, Brady was close enough to the bag that he undoubtedly
would have been able to determine it was a sleeping bag. Indeed, the footage
shows that there was a tarp covering the bed of the truck, and the sleeping bag was
lying on top of the tarp in plain view—it wasn’t rolled up, instead completely
unrolled and flat, lending itself to easy identification.
In any event, we doubt Brady’s depiction of the events in question. When
he seized Young—that is, when he approached Young’s truck for the second
time—he did not so much as touch the sleeping bag. And quite inconsistent with
Brady’s later testimony at the summary judgment stage, the sleeping bag did not
appear in the footage to be stuffed with palmetto berries; rather, it was lying
unrolled and flat. Moreover, at the scene, the footage shows that Brady gave as his
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reason for stopping Young that he was concerned Young was “okay”—a far cry
from the reason given for the first time at summary judgment, i.e., that he was
suspicious that Young was engaged in illegal palmetto berry harvesting.
Here, Brady’s legal argument is that it is irrelevant that his suspicions turned
out to be unfounded. Instead, he argues, “what matters is the objective
reasonableness of the suspicion that led to the investigative detention before he
could complete his investigation.” [Blue Br. at 29] But this argument cuts against
him. We determined earlier—and Brady doesn’t contest—that Brady seized
Young the second time that he approached Young’s truck. By that point, Brady
had already been quite close to Young’s truck—indeed, close enough to touch the
window—and was easily capable of determining that Young’s sleeping bag bore
no resemblance to palmetto berry harvesting bags. Therefore, by the time that
Brady seized Young, there were no “objective facts” on which arguable reasonable
suspicion could have been based, see United States v. Harris, 526 F.3d 1334, 1337
(11th Cir. 2008), and Brady could not have reasonably concluded otherwise.
Based on the totality of the circumstances, we conclude that Officer Brady
did not have arguable reasonable suspicion that Young was engaged in illegal
palmetto berry harvesting. Young’s location in a general region of the state during
the quarter of the year in which certain illegal activity takes place, coupled with an
unfurled sleeping bag in the back of his truck, did not provide Brady with specific
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and articulable facts that supported his suspicion. Holding that these factors
presented reasonable suspicion would simply cast too wide of a net. 3
We next move to Brady’s argument that he had reasonable suspicion
because Young drove away when Brady first approached him. As the district court
found, Young drove away from Brady at a slow speed. His brake lights were on as
he drove away, indicating that he wasn’t traveling very quickly, a point
emphasized by the video footage. After Brady exited the parking lot, Officer
Brady walked back to his truck without any sense of urgency, and calmly informed
his dispatcher, “Subject’s pulling away from me.”
We are mindful that the Supreme Court has held that a person approached by
law enforcement is entitled to “ignore his interrogator and walk away.”
Mendenhall, 446 U.S. at 554. Refusal to answer an officer’s questions does not,
without more, establish reasonable suspicion. Royer, 460 U.S. at 498. We have
previously held, however, that the speed at which a defendant flees, and whether
they engaged in “[f]light from law enforcement officials,” factor into the totality of
the circumstances. Gordon, 231 F.3d at 757; United States v. Willis, 759 F.2d
1486, 1497 (11th Cir. 1985).
Here, based on the totality of the circumstances, we cannot say that Young’s
3 In this vein, the Sixth Circuit held in United States v. See, 574 F.3d 309, 314 (6th Cir. 2009), that “context-based factors that would have pertained to anyone” in a given area at a given time “should not be given undue weight.” 15 Case: 19-11475 Date Filed: 11/07/2019 Page: 16 of 18
short travel from the parking lot under the bridge in Sidney Lanier Park to a nearby
parking lot created arguable reasonable suspicion. To that end, we disagree with
Brady’s characterization that Young “fled” from Brady; the bodycam footage
plainly shows that Brady drove off at a slow speed, parked a few hundred feet
away from his original destination, and immediately yielded to Officer Brady once
he realized that he was being stopped.4
After concluding that Brady violated Young’s constitutional rights, we reach
the second step of our qualified immunity analysis, where we question whether
these rights were clearly established at the time of the violation. Here, we again
note that we conduct this inquiry “in light of the specific context of the case, not as
a broad general proposition.” Coffin, 642 F.3d at 1013. It is not in serious dispute
that Young possessed the right to be free from an unreasonable search and seizure
under the Fourth Amendment. We also conclude that, in light of the specific
context of this case, his right in this instance was also clearly established.
Viewing the facts in the light most favorable to Young, Brady did not have
arguable reasonable suspicion to conduct a Terry stop. A reasonable official at the
scene would not have believed that illegal palmetto berry harvesting, or any other
4 We also note that “flight” is different from merely walking or driving away. The cases that we cited in Willis, 759 F.2d at 1497 n.4, are readily distinguishable from the conduct at issue here because they involved hasty, inherently suspicious activity, e.g., “hasty grabbing of bag and exiting after airport officials decided to search for weapons” and “making u-turn and driving away from border checkpoint.” 759 F.2d at 1497 n.4 (citing United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984); United States v. Macias, 546 F.2d 58 (5th Cir. 1977)). 16 Case: 19-11475 Date Filed: 11/07/2019 Page: 17 of 18
crime, was occurring based on Young sitting in his parked car in a public park with
a sleeping bag on his truck bed and then, after waving away the approaching
officer, driving away, slowly, to another parking lot not more than several hundred
feet away in the same park. Therefore, Brady violated Young’s Fourth
Amendment right to leave a police encounter and not be stopped without
reasonable suspicion. Furthermore, such a right was clearly established at the time
because, even though there is no caselaw directly on point with the facts of this
case, the general principle that a person can walk away from a mere police
encounter is established by the caselaw, clearly applies here, and would give fair
notice to Brady that Young waving him away and driving off was not enough to
establish reasonable suspicion. Fourth Amendment caselaw clearly distinguishes
between someone disinterestedly leaving a situation involving a police officer—as
happened here—and someone “fleeing” from law enforcement. Compare
Mendenhall, 446 U.S. at 553, with Willis, 759 F.2d at 1497.
Young has thus met his burden of showing that a reasonable jury could find
that Brady violated a clearly established Fourth Amendment right. Accordingly,
we conclude that the district court did not err in denying Brady’s motion to dismiss
on qualified immunity grounds. 5
5 In the course of Brady’s appeal, Young filed a Motion to Incorporate Motion In Limine. As discussed earlier, the district court denied Young’s motion in limine without prejudice and explicitly stated that it may reconsider his motion if we affirmed the district court’s decision. 17 Case: 19-11475 Date Filed: 11/07/2019 Page: 18 of 18
AFFIRMED.
Young did not appeal from this decision. In any event, because his motion is outside the scope of this interlocutory qualified immunity appeal, we deny it without discussion. 18