On November 18, 2019, the Eleventh Circuit Court of Appeals decided Hines v. Jefferson[i], in which the court examined whether a deputy, who was working as a school resource officer (SRO), violated the Fourth Amendment regarding excessive force and malicious prosecution and the Fourteenth Amendment regarding excessive corporal punishment. The relevant facts of Hines, taken directly from the case, are as follows:
On August 29, 2016, K.S. was standing in the common area of the school before classes started when another student, D.B., tapped her on the shoulder and asked if she wanted to fight. K.S. responded that she did not want to fight and wanted to go to class. D.B. then punched K.S. in the face. K.S. then hit D.B. in the face, and D.B. pulled K.S.’s hair. K.S. grabbed D.B. around the upper part of her body, and the two girls fell to the floor where they continued punching each other. A crowd of students began to form in the common area to watch the fight. School officials attempted to break up the fight. At this point, K.S. and Deputy Jefferson’s versions of the events diverge.
On the one hand, K.S. maintains that someone pulled D.B. off of her and that someone else, who was wearing khaki pants, grabbed K.S.’s legs trying to hold her, but she did not know the identity of either person. Another person then approached K.S. At the time, K.S. did not know who this person was either, but she observed that the person was wearing brown pants that were part of a uniform she had seen people wearing around the school. K.S. later identified the person as Deputy Jefferson. Deputy Jefferson then told K.S. that she was under arrest and put her in a “choke hold,” meaning that Deputy Jefferson, according to K.S., “scooped [her] up and was holding [her] by [her] neck pretty much.” Deputy Jefferson put her forearms around K.S.’s neck and then carried her from the common area to her office, holding her by the neck with her feet dangling above the ground. The whole time Deputy Jefferson was “directly behind” K.S. K.S. says that on the way to the office she was trying to get down by “moving [her] whole body” and “[s]quirming, wiggling, twisting, [and] turning” to get away. It took about two minutes to travel from the common area to the office. K.S. asserts that as she struggled, she told Deputy Jefferson that she could not breathe, and that Deputy Jefferson said that she was resisting arrest. Sometime on the way to the office, K.S. saw Deputy Jefferson’s name on her uniform and was thereby able to identify her. When they arrived at Deputy Jefferson’s office, Deputy Jefferson let her go.
On the other hand, according to Deputy Jefferson, Coach Edgar Gousse was the person who initially held K.S. on the ground by her arms until Deputy Jefferson arrived. Deputy Jefferson stated that she approached K.S. wearing her Newton County Sheriff’s Office uniform of brown pants and a tan shirt marked with deputy insignia and patches. She then leaned in front of K.S. so that K.S. could see who she was. She also told Coach Gousse that he could let go of K.S., which Coach Gousse did. Deputy Jefferson alleges that K.S. refused to comply with her instructions to stand up and go to the office, and that K.S. scratched her right arm and tried to grab Deputy Jefferson “by the neck of [her] shirt.” Deputy Jefferson maintains that she never picked K.S. up by the neck, noting that she was not strong enough or tall enough to do so; instead, she says that she stood behind K.S. and held K.S.’s upper arms and chest area, embracing her upper body, which was necessary because K.S. refused to walk independently and continued to fight. Deputy Jefferson states that K.S.’s feet were not dangling and that they both walked to the office with their feet on the ground, while K.S. grabbed at Deputy Jefferson’s arms trying to “get free” of her embrace. When they got to the office, Deputy Jefferson released K.S. and K.S. sat in a chair. At no point did Deputy Jefferson ever handcuff K.S.
When she got home, K.S. complained that her neck was hurting, and her mother took her to see Dr. Richmond. K.S. testified that she had pain when moving her neck from side to side and that there was bruising and swelling on her neck. Dr. Richmond noted no external bruises or abnormal breathing on K.S.’s medical records. An x-ray of K.S.’s neck was normal. Dr. Richmond gave K.S. a foam neck collar to wear for a couple of weeks and told her that she could take ibuprofen for pain.
The District Attorney for Newton County then issued a delinquency petition against K.S. for obstruction of an officer and disorderly conduct. The district attorney ultimately dismissed the petition, explaining that “[w]hile there was sufficient probable cause for a Petition to be filed against [K.S.], the State is unable to prove its case beyond a reasonable doubt.”[ii]
Hines filed suit on behalf her daughter, K.S., and alleged that the Deputy Jefferson, the SRO, violated the Fourth Amendment by using excessive force against K.S. and by engaging in the malicious prosecution of K.S. for obstruction and disorderly conduct under Georgia law. She also alleged that Deputy Jefferson violated the Fourteenth Amendment for excessive corporal punishment against K.S. The district court granted summary judgment regarding the suit against the school district and summary judgment in favor of the deputy, therefore dismissing the case. Hines appealed the grant of summary judgment for the deputy but dropped the suit against the school district.
At the outset, it is important to understand “summary judgment” and “qualified immunity.” Summary judgment is appropriate when, viewing the facts as alleged by the plaintiff, there is no genuine issue of material fact, and the defendant (here the deputy) is entitled to judgment as a matter of law. Simply put, a defendant will be granted summary judgment when, viewing the facts as the plaintiff alleged, there is no dispute between the parties on material facts, and based on a proper application of existing law that controls the claims in the suit, the defendant acted lawfully.
On the other hand, qualified immunity
[S]hields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008).[iii]
The court of appeals noted how qualified immunity is applied in a lawsuit. The court stated
For qualified immunity to apply, a “public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013) (quoting Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012)). Once a public official proves that he was acting within the scope of his discretionary authority, “the burden shifts to the plaintiff to satisfy the following two-pronged inquiry: (1) whether the facts that a plaintiff has shown make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” Id. Our inquiry “can begin with either prong; neither is antecedent to the other.” Morris v. Town of Lexington, 748 F.3d 1316, 1322 (11th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).[iv]
Simply put, the deputy must prove that she was acting under her discretionary authority. This occurs when a deputy is able to choose from a variety of options or actions, such as whether to use force and what type of force to use, and whether to make an arrest or prosecute, and what charges are appropriate. In this case, the deputy was acting under her discretionary authority. As such, the burden shifted to the plaintiff, Hines, to satisfy a two-part test. First, the plaintiff must establish sufficient facts to show that the deputy did in fact violate one of her constitutional rights. Second, the plaintiff must establish that the right the deputy violated was clearly established at the time of the violation, such that a reasonable deputy in the same situation would have known the conduct was unlawful. The court of appeals also noted that they may analyze the two-part test in order or they can conduct the analysis by starting with the second prong. This is done because it can be more time efficient since, even if there is a violation of the plaintiff’s rights, if the law is not clearly established as required by the second prong of the test, the deputy would still be entitled to qualified immunity.
The court also discussed what a plaintiff must show to establish that the law was “clearly established” under the second prong of the qualified immunity test. This can be accomplished in two ways. First, the plaintiff can show that there is a materially similar case from the Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state in which the incident occurred, that would put another reasonable officer in the same situation on notice that his or her conduct was unlawful. The second way a plaintiff can show the law was “clearly established” occurs when, even though there is not materially similar case law to put the officer on notice, the unlawfulness of the conduct is apparent with “obvious clarity.” Under the “obvious clarity” method,
[A] plaintiff must show that the official’s conduct ‘was so far beyond the hazy border between excessive and acceptable force that [the official] had to know he was violating the Constitution even without caselaw on point.'” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997))[v]
With summary judgment and qualified immunity explained the court set out to examine the issues.
Issue One: Whether the deputy is entitled to summary judgment or qualified immunity for excessive force?
Use of force claims are analyzed under the Fourth Amendment. The court stated
Claims that law enforcement officers used excessive force in the course of an arrest or other seizure of an individual are evaluated under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 395 (1989). Objective reasonableness must be judged “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. And “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97.[vi]
Additionally, the court of appeals noted the plaintiff in this case was attempting to show that Deputy Jefferson’s use of force should be one in which the “obvious clarity” method would show that the law was clearly established regarding the excessive nature of the deputy’s use of force against K.S. However, regarding “obvious clarity,” the court stated
[u]nder this test, the law is clearly established, and qualified immunity can be overcome, only if the standards set forth in Graham and our own case law ‘inevitably lead every reasonable officer in [the defendant’s] position to conclude the force was unlawful. Lee, 284 F.3d at 1199 (quoting Priester, 208 F.3d at 926).[vii]
The force alleged by the plaintiff in this case was that the deputy picked her up by the neck and carried her to the office in that manner. The court stated that in light of the fact that she had just been in a fight and was undisputedly “squirming, wiggling, twisting and turning,” to attempt to get away from the deputy,
[I]t cannot be said that Deputy Jefferson’s use of force was so grossly disproportionate to the situation that every reasonable officer in Deputy Jefferson’s position would inevitably conclude that the use of force was unlawful.[viii]
The court also noted that K.S.’s medical records show that she received no injury from the use of force in this incident, other than her complaint of pain.
As such, the court held that the deputy is entitled to qualified immunity regarding excessive force.
Issue Two: Whether the deputy is entitled to qualified immunity regarding the malicious prosecution claim?
The court first noted that malicious prosecution claims are governed under the Fourth Amendment. The court stated
To establish malicious prosecution under § 1983, “the plaintiff must prove a violation of [her] Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution.” Id. The elements of the common law tort of malicious prosecution include: “(1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.” Id. at 882.[ix]
The court noted that “probable cause” defeats a malicious prosecution claim because it would prevent the plaintiff from satisfying the second element of the claim, as stated above. The court stated
[T]he existence of probable cause defeats a § 1983 malicious prosecution claim.” Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). Probable cause is defined as “facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” Id. at 1257 (quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). “To receive qualified immunity,” however, “an officer need not have actual probable cause, but only ‘arguable’ probable cause,” which exists where “reasonable officers in the same circumstances and possessing the same knowledge as the Defendant could have believed that probable cause existed to arrest Plaintiff.” Id. (first quoting Brown v. City of Huntsville, 608 F.3d 724, 735 (11th Cir. 2010); then quoting Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)).[x] (emphasis added)
Thus, in order to receive qualified immunity, the deputy does not need “actual probable cause.” Rather, the deputy only needs “arguable probable cause” in order to receive qualified immunity on this claim.
The court then examined the two offenses for which K.S. was charged under Georgia law. The first offense was “obstruction of a law enforcement officer.” The plaintiff argued the deputy lacked probable cause for two reasons. The first reason was that K.S. was justified in resisting an unlawful arrest. The court noted that it was undisputed that K.S. had just been in a fight and then physically resisted the deputy’s attempt to remove her from the fight and take her to the office. As such, a reasonable deputy in this situation could have believed there was probable cause, which means there was, at a minimum, “arguable probable cause,” which entitles the deputy to qualified immunity.
The second reason K.S. argued that there was no probable cause for the obstruction charge was that she did not know that the deputy was a law enforcement officer at the time she resisted. The court noted that the deputy was in full uniform. Further, the court noted that inquiry for arguable probable cause does not focus on the arrestee’s knowledge; rather, it focuses on what a reasonable officer would have believed in that situation. As such, this argument fails.
The other offense for which the deputy charged K.S. was “disorderly conduct” under Georgia law. This offense occurs when a person “acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear…”[xi] K.S. argued that she was merely defending herself from an attack from another student, and as such, the deputy lacked probable cause to arrest her. However, the court noted that it is undisputed that K.S. was fighting with another student and that provided at least arguable probable cause to believe she committed disorderly conduct.
Therefore, the deputy was entitled to qualified immunity on this claim.
Issue Three: Whether the deputy is entitled to qualified immunity for the excessive corporal punishment claim?
The court noted that excessive corporal punishment claims are governed by the Fourteenth Amendment. The court stated
The Supreme Court has recognized that “corporal punishment in public schools implicates a constitutionally protected liberty interest” under the Fourteenth Amendment. Ingraham v. Wright, 430 U.S. 651, 672 (1977). This Court has further explained that “excessive corporal punishment, at least where not administered in conformity with a valid policy authorizing corporal punishment . . . may be actionable under the Due Process Clause when it is tantamount to arbitrary, egregious, and conscience-shocking behavior.” T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., 610 F.3d 588, 598 (11th Cir. 2010) (quoting Neal ex rel. Neal v. Fulton Cty. Bd. of Ed., 229 F.3d 1069, 1075 (11th Cir. 2000)).[xii]
The court also noted that the first step in such a claim is to determine whether the deputy’s conduct constituted “corporal punishment.” The court then stated
In making this determination, “[t]he key inquiry is not what form the use of force takes but whether the use of force is ‘related to [the student’s] misconduct at school and . . . for the purpose of discipline.‘” T.W., 610 F.3d at 598-99 (quoting Neal, 229 F.3d at 1073).[xiii] (emphasis added)
The court considered the facts of Neal (cited above) in which a coach saw a student strike another student with a weight lock. The coach then picked up the lock and struck the student in the eye with the lock, while he stated, “if you hit him with it, I’ll hit you with it.” The student was blinded in that eye from the injury.
The court then compared the deputy’s intent in K.S.’s case to the coach’s intent in Neal. In Neal, the coach’s statement indicates that he struck the student with the weight to punish him for striking the other student. Whereas, in K.S.’s incident, the deputy was merely intending to break up the fight and remove K.S. to the office. This was evidenced by the fact that she released her hold of K.S. upon arriving at the office. The court noted that there was no evidence in the record to create a reasonable inference that the deputy’s use of force was a form of corporal punishment.
As such, the deputy is entitled to summary judgment on this claim.
Therefore, the court of appeals affirmed the judgment of the district court.
[i] No. 18-14211 (11th Cir. Decided November 18, 2019 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 7
[iv] Id. (emphasis added)
[v] Id. at 9 (emphasis added)
[vi] Id. at 7 (emphasis added)
[vii] Id. at 10 (emphasis added)
[viii] Id. at 11
[ix] Id. at 11-12 (emphasis added)
[x] Id. at 12
[xi] see OCGA 16-11-39(a)(1)
[xii] Hines at 15-16
[xiii] Id. at 16