On June 26, 2022, the Eleventh Circuit Court of Appeals decided Pinto v. Collier Cnty.[i], which serves as an excellent review of the law related to false arrest and excessive force. The relevant facts of Pinto are as follows:
Pinto and a group of twenty to twenty-five friends and family members were out celebrating Pinto’s thirtieth birthday in Naples, Florida. At one point in the evening, they went to Mercato—an outdoor shopping center with several restaurants, bars, and clubs. At some point after midnight, the group sought to enter the Cavo Lounge, one of the bars in Mercato. Seeing a line and roped-off entrance, Pinto approached the manager, Jason Buro, and asked whether Cavo had room for “about 20 people.” Buro told Pinto that the bar was full and that the group could not enter. But Pinto saw his sister and several members of his group enter Cavo from a different entrance. Trying to get his sister’s attention amid the loud atmosphere to let her know that the group planned to walk down to a different bar, Pinto began waiving his right hand in her direction, at which point Buro “smacked down” Pinto’s hand. Pinto then told Buro, “What the fuck was that about? What did you do that for?” and, according to Pinto, Buro told him that he “was waiving too close to him and . . . was getting too close to [Buro’s] face” and to “[g]et the ‘F’ out of here.” Pinto responded by apologizing and explaining that he was trying to get his sister’s attention.
That night, Deputy Kinney was on special-detail duty at Mercato and was standing about 10 feet away from Pinto and Buro. Several other sheriff’s deputies were also present on the scene. Kinney observed the altercation between Buro and Pinto, and, according to Pinto, approached and pushed Pinto on his shoulder “or back area” as he was turning to leave the entrance to Cavo. As a result of the push, Pinto stumbled “probably two feet, two and a half” feet but did not fall. Pinto explained that, to maintain balance, he extended his right arm and his hand made contact with Kinney’s chest. Pinto said he “knew [he] wasn’t touching regular clothes,” and when Pinto turned around, he realized that Kinney was law enforcement because he was wearing a uniform marked “sheriff.”
Kinney immediately grabbed Pinto’s left arm and placed it behind his back, but Pinto kept his right hand in the air, allegedly because he was confused as to why he was being arrested. Another deputy grabbed Pinto’s right arm and handcuffed him. The officers held Pinto’s arms and, according to Pinto, his “arm was just kind of pushed up a little bit too far, further than [Pinto] could put [his] shoulders.”
After he was handcuffed, Pinto was escorted by Kinney and another deputy to a parking garage where a patrol car was waiting. Following behind were several members of Pinto’s party.
The officers positioned Pinto standing against the side of the patrol car, where he was searched. Cell phone footage shows the individuals who were with Pinto yelling at police officers and repeatedly approaching the police vehicle. At one point in the video recording, Pinto—standing against the car—yells “I am not resisting. I am not resisting at all,” and turns his head to Kinney and asks, “What the fuck are you doing?” The video then shows Kinney using his hand to push and temporarily hold Pinto’s face back. Several officers then placed Pinto in the vehicle, and he was driven to the Naples jail and booked for, among other things, battery on a law enforcement officer. He was released on bond the next day, and the state attorney ultimately dismissed all charges.[ii]
Pinto filed suit and alleged that Deputy Kinney violated his rights under the Fourth Amendment and Florida law. Specifically, he argued that Deputy Kinney violated his Fourth Amendment rights and state law by committing false arrest and false imprisonment, violated state law by committing malicious prosecution, violated the Fourth Amendment by committing excessive force, and violated state law by committing battery. The defendant’s deputies filed motions for summary judgment based on qualified immunity. The district court granted the deputies motions and dismissed the suit. Pinto appealed to the Eleventh Circuit Court of Appeals. [Note: This article will not discuss the state law claims.]
The Eleventh Circuit first discussed qualified immunity regarding the Fourth Amendment claims. Since the deputies were acting under their discretionary authority, specifically, making an arrest and using force, the burden is upon Pinto to establish (1) that the deputies violated his rights under the Fourth Amendment, and (2) that the law was “clearly established” such that a reasonable deputy in the same situation would have known he was violating the Fourth Amendment.
I. False Arrest and False Imprisonment
The court of appeals then set out to examine Pinto’s Fourth Amendment claims for false arrest and false imprisonment. The best defense to such a claim is probable cause. If the deputies had probable cause to believe that Pinto committed an offense, then Pinto would not be able to establish the first prong of the qualified immunity test because there would be no constitutional violation. Also noteworthy, even if the court found the officers did not have actual probable cause, if they had “arguable probable cause,” they would still be entitled to qualified immunity. Arguable probable cause simply means that another reasonable officer in the same situation could have believed there was probable cause to arrest Pinto.
The court then discussed probable cause and stated
A law enforcement officer has probable cause to arrest a suspect when “a reasonable officer could conclude . . . that there was a substantial chance of criminal activity.” District of Columbia v. Wesby, 138 S. Ct. 577, 588, 199 L. Ed. 2d 453 (2018); see also Washington v. Howard, 25 F.4th 891, 902 (11th Cir. 2022). In determining whether an officer had probable cause for an arrest, we look to the events preceding the arrest “from the standpoint of an objectively reasonable police officer.” Wesby, 138 S. Ct. at 586 (quotation omitted). Probable cause requires only “a probability” or “substantial chance of criminal activity, not an actual showing of such activity.” Id. (quotation omitted). It “is not a high bar.” Id. (quotation omitted).[iii]
Next, court examined the Florida statute for which Pinto was arrested. That statute states that “a person commits battery on a law enforcement officer if he
(1) intentionally touched or struck the victim or intentionally caused bodily harm to the victim; (2) the victim was a law enforcement officer; (3) the defendant knew that the victim was a law enforcement officer; and (4) the law enforcement officer was engaged in the lawful performance of his or her duties when the battery was committed.”[iv]
The court also examined court precedent regarding how the law has been interpreted and noted that
[T]he touching element of this offense can be satisfied “by any physical contact, no matter how slight,” United States v. Vail-Bailon, 868 F.3d 1293, 1298 (11th Cir. 2017) (quotation omitted), including “only nominal contact” such as “tapping a law enforcement officer on the shoulder without consent,” State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007).[v]
The court then examined the objective facts of the case, specifically that Pinto’s hand made physical contact with Deputy Kinney’s chest, and Kinney was wearing a uniform with the word “sheriff” displayed on the front of the uniform. These facts, viewed from the perspective of a reasonable officer, establish that probable cause to arrest Pinto for battery on a law enforcement officer under Florida law.[vi]
Pinto argued that he did not intentionally touch Deputy Kinney and did not know that Kinney was a deputy. However, the court stated
[T]he existence of probable cause turns on neither Pinto’s actual intent nor his subjective impression of the nature of his contact with Kinney. We instead analyze the events preceding an arrest from the perspective of an “objectively reasonable police officer.”[vii]
Additionally, the court stated that since “sheriff” was printed on the front of Deputy Kinney’s uniform, an “objectively reasonable officer” could believe there was “a substantial chance” that Pinto saw that he was a deputy before he touched him.
As such, the court of appeals held that Deputy Kinney was entitled to qualified immunity on the Fourth Amendment false arrest and false imprisonment claims because the existence of probable cause meant that deputy did not violate the Fourth Amendment, and, as such, Pinto did not satisfy the first prong of the qualified immunity analysis.
II. Excessive Force
The court of appeals also examined the Fourth Amendment excessive force claim against Deputy Kinney. Pinto argued that the deputy used excessive force when (1) he initially pushed him, (2) he pushed his arms up at an awkward angle while handcuffing him, and (3) he pushed his face toward the police car after being handcuffed.
A. The initial push
First, the court noted that Pinto first raised the argument that Deputy Kinney violated the Fourth Amendment by initially pushing Pinto on appeal. The court stated that since he did not initially raise this issue prior to appeal, it is not valid on appeal. However, the court still discussed the principals involved, if the issue had been properly preserved for appeal.
The court discussed the legal principle involved regarding the push as “an unreasonable seizure,” specifically excessive force. The court stated
A person is seized under the Fourth Amendment when an officer, “by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (quotations and internal citation omitted). A Fourth Amendment seizure requires an objective manifestation of “an intent to restrain.” Torres v. Madrid, 141 S.Ct. 989, 998, 209 L. Ed. 2d 190 (2021). Critically, “force intentionally applied for some other purpose” is not a seizure. Id.[viii]
In Pinto’s case, although the initial push was “intentionally applied,” it was not done to “restrain Pinto or terminate his movements but for some other purpose, i.e., to separate him from the manager to prevent an escalation of the altercation between the two men.”[ix] Therefore, the initial push was not a seizure under the Fourth Amendment.
B. Pushing arms up awkwardly during handcuffing
The court then noted the legal principles related to the remaining excessive force claims. The court stated
The key inquiry then is whether the officer’s use of force was “objectively reasonable” under the circumstances. Id. at 388, 397. We judge “[t]he ‘reasonableness’ of a particular use of force from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. The proper application of this test requires “careful attention to the facts and circumstances,” including factors such as “the severity of the crime at issue, 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.[x]
The court also noted that officers must make split second decisions in tense, rapidly evolving circumstances, and that “not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”[xi] Further, the court stated
We have long recognized that “the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.” Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). After all, “the right to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof, and the typical arrest involves some force and injury.” Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir. 2019) (quotation omitted).[xii]
The court then noted that Pinto claimed that Deputy Pinto lifted his arms awkwardly as he handcuffed him. The court examined precedent where similar conduct was held not to violate the Fourth Amendment. Specifically, in a case where an officer “grabbed a plaintiff’s arm, twisted it around the plaintiff’s back, jerked it up high to the shoulder, and then handcuffed the plaintiff” as the plaintiff “fell to his knees” and screamed “in pain,” the Eleventh Circuit held that the officer did not violate the Fourth Amendment, as the court noted that “painful handcuffing, without more, is not excessive force in cases where the resulting injuries are minimal.”[xiii] Additionally, the court noted that they previously held that “de minimus force when police slammed the suspect against the wall, kicked his legs apart and required him to raise his arms” as officers arrested him, did not violate the Fourth Amendment.[xiv]
As such, Deputy Kinney did not violate the Fourth Amendment when he handcuffed Pinto by awkwardly raising his arms.
C. Pushing Pinto’s face toward the police car
The court then examined the allegation that Deputy Kinney pushed Pinto’s face toward the police car as Pinto yelled at him that he was not resisting. The court held that this was de minimus force and explained
[W]e conclude that such force was de minimis and did not violate the Fourth Amendment. The cell phone video recording shows that after Pinto yelled “I am not resisting” repeatedly, he turned his head to the officers, got close to their faces, and said “what the fuck are you doing,” at which point Kinney used his hand to push and temporarily hold Pinto’s face back in the direction of the patrol car. We have held in similar situations that this type of force was de minimis or otherwise did not violate the Fourth Amendment. See, e.g., Nolin, 207 F.3d at 1255 (holding that an officer grabbing the suspect and shoving him a few feet against vehicle, pushing his knee into the suspect’s back and the suspect’s head against van was de minimis force)[xv]
Thus, the court held that this did not violate the Fourth Amendment.
Therefore, Deputy Kinney was entitled to summary judgment as Pinto failed to meet the first prong of the qualified immunity analysis.
[i] No. 21-13064 (11th Cir. Decided June 26, 2022 Unpublished)
[ii] Id. at 2-4
[iii] Id. at 8-9 (emphasis added)
[iv] Id. at 9
[vii] Id. at 10 (emphasis added)
[viii] Id. at fn. 7 (emphasis added)
[x] Id. at 13 (emphasis added)
[xii] Id. at 14
[xv] Id. at 15 (emphasis added)