Tamara Brand v. Kevin Casal

877 F.3d 1253
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 19, 2017
Docket16-10256
StatusPublished
Cited by6 cases

This text of 877 F.3d 1253 (Tamara Brand v. Kevin Casal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tamara Brand v. Kevin Casal, 877 F.3d 1253 (11th Cir. 2017).

Opinion

MARTIN, Circuit Judge:

Shortly before midnight on February 7, 2011, Gwinnett County Sheriff Deputies Kevin Casal and Teresa Pardinas went .to the Snellville, Georgia home of Tamara Brand and Theotis Brand to execute an arrest warrant for their son, Wesley. By the time this encounter ended, Mrs. Brand and peputy Casal had been in a physical alternation, and Deputy Pardinas had tasecj Mrs. Brand. The Brands sued Deputy Casal and Deputy Pardinas (“defendants”) under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment of the U.S. Constitution. The Brands also made claims under Georgia’s Constitution that paralleled their federal claims. The deputies moved for summary judgment. They sajy the federal claims against them are barred by qualified immunity and the Georgia claims are barred by official immunity. The District Court granted the deputies immunity as to some claims, but not as to others. This is their appeal. After careful consideration, and with the benefit of oral argument, we affirm the ruling of the District Court in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

A. THE FACTS 1

1. Facts Leading to the Initial Encounter

In November 2010, a Magistrate Judge in Gwinnett County, Georgia issued an arrest warrant for Wesley Brand for felony theft by taking of a motor vehicle. Four months later, Deputy Sheriff Kevin Casal was assigned to serve that warrant. The warrant described Wesley as a 27-year-old white male, 2 and listed his address as “unknown.” Deputy Casal investigated and found an address for Wesley on a Gwinnett County jail booking sheet dated about three weeks before the warrant issued for him. The booking sheet listed Wesley’s address as 4179 Valley Brook Road, Snell-ville, Georgia.

Then on February 7, 2011, shortly after 11:00 p.m., Deputy Casal and his partner, Deputy Teresa Pardinas, arrived at 4179 Valley Brook Road to serve the warrant. Deputy Pardinas immediately went around to the back of the house while Deputy Casal stayed at the front. There was a car parked in the driveway, and Deputy Casal asked the dispatcher to run the license plate. It returned to Theotis Brand.

Deputy Casal walked up to the front porch of the house where a woman, Jayne Velazco, was smoking a cigarette. 3 He asked Ms. Velazco if Wesley Brand was there. Ms. Velazco responded that she “would get his mother and father.” She went inside and shut the door. Ms. Velazco went upstairs to get the Brands, who were in their bedroom where Mrs. Brand was nursing their 7-month-old baby. The Brands then came downstairs to speak with the officer, Mr. Brand now holding the infant. Ms. Velazco followed the Brands downstairs and sat on the stairs in the foyer as Mrs. Brand opened the door to Deputy Casal.

2, Initial Encounter at the Brands’ Front Door

As soon as Mrs. Brand opened the front door, Deputy Casal put his foot inside the doorway so the door could not close. He told Mrs. Brand “he had a warrant for Wesley Brand, a 27-year-old white male.” Mrs. Brand was “totally confused” by this because that description didn’t match her son. Wesley was 17 (not 27); is mixed race (not white); and had begun to live as a woman (not male). So, to clarify things, Mrs. Brand asked if he wanted “Wesley Brand” or “a 27-year-old white male.” Deputy Casal repeated that he wanted “Wesley Brand, [a] 27-year-old white male.” He then asked if Wesley was home. Mrs. Brand said she didn’t know and called out for Wesley.

Hearing this, Wesley came up from the basement and stepped outside onto the front porch where Deputy Casal was standing. Now Deputy Casal was confused too, because Wesley looked different from the booking photo in the warrant. Unlike in the photo, Wesley now “appeared as a female, with auburn dyed hair, a lacy black blouse, ‘skinny jeans’ and white stiletto ‘cowgirl boots.’ ” Deputy Casal said to Mrs. Brand, “Ma’am, I need to come inside.”

Mrs. Brand refused to let Deputy Casal come into the house. She told him he couldn’t come in because he didn’t have a search warrant and because Wesley was already outside waiting for Deputy Casal to arrest him. But Deputy Casal insisted the arrest warrant gave him the authority to enter the house. Wesley then went back inside. Deputy Casal continued asking Mrs. Brand to let him in, but she refused and stood blocking the doorway.

Deputy Casal responded by grabbing Mrs. Brand by the shirt, trying to pull her out of the doorway. She resisted and held onto the door frame. During the tussle, Mrs. Brand’s shirt ripped and Deputy Ca-sal was knocked off balance. The front part of Mrs. Brand’s shirt ripped off, leaving her stomach, chest, and parts of her back exposed. According to Mrs. Brand, “not only could individuals see through [her] bra, but because of the tear, individuals could see [her] breasts.”

3. Deputy Pardinas Joins In and Tases Mrs. Brand

At some point during these events, Deputy Pardinas radioed Deputy Casal, but he did not respond. Because he wasn’t responding, she thought something must be wrong, so she walked around to the front of the house. Both Mrs. Brand and Wesley were in the foyer when Deputy Pardinas walked in through the front door. Mr. Brand was there as well, still holding the baby, and Ms, Velazco remained sitting on the stairs. Deputy Pardinas explained they had an arrest warrant, then turned to Wesley and confirmed that he was Wesley Brand, the subject of the warrant. Mrs. Brand was by now “extremely upset, agitated,” and. again told the officers to “get out of my house.”

Mrs. Brand then turned to Ms. Velazco and asked for a phone so she could call 911. Ms, Velazco. handed Mrs. Brand the home phone. Deputy Pardinas ordered Mrs. Brand to “drop the phone,” but she did not. Instead she announced she was dialing 911. Mrs. Brand began dialing when suddenly and without warning, Deputy Pardinas tased her. The tase caused Mrs. Brand to fall to the floor in “[h]orri-ble, excruciating” pain.

Deputy Pardinas ordered Mrs. Brand to lie flat on her stomach. Deputy Pardinas began “punching [her] back,” striking Mrs. Brhnd about three times in an attempt to get her to lie on her stomach. Mrs. Brand said she couldn’t lie'flat because she was pregnant. She kept one of her legs “elbowed out” to protect her stomach. Deputy Pardinas kicked Mrs. Brand’s leg several times to get her into a fully prone position.

■ 4, The Protective Sweep and Other Developments '

Soon after Mrs. Brand was tased, other officers who had been called to the scene began to arrive and file into the Brands’ home. There were eight or nine officers in total. Deputy Casal was the “primary officer” that night and “directed [the officers] to certain places” in the Brands’ home to conduct a “security sweep.” Deputy Casal “pointed” them “to go to different areas of the house and search the house.” According to Mr.

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Bluebook (online)
877 F.3d 1253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tamara-brand-v-kevin-casal-ca11-2017.