BAILEY

v.

SWINDELL

Defendant. /

ORDER1

Defendant Shawn T. Swindell’s Renewed Motion for Judgment as a Matter of Law, or Alternatively, Motion for Remittitur, is now before the Court. See ECF No. 283. Having considered the law, the record, and the parties’ arguments, the Court rules as follows. This is an action for deprivation of civil rights. As relevant to the instant motion, Plaintiff Kenneth Bailey alleged that Defendant Shawn T. Swindell, a deputy employed by the Santa Rosa County Sheriff’s Office, detained him without reasonable suspicion, arrested him without probable cause, and entered his home to initiate the arrest without a warrant or exigent circumstances justifying the

Court granted summary judgment to Deputy Swindell on the false arrest/unlawful entry claims on the basis of qualified immunity, and the Eleventh Circuit reversed and vacated that judgment. See Bailey v. Swindell, 940 F. 3d 1295, 1303-04 (11th

Cir. 2019). More specifically, the Eleventh Circuit held that Deputy Swindell was not entitled to qualified immunity at the summary judgment stage because the record at that time—viewed in the light most favorable to Bailey—showed that the deputy initiated Bailey’s arrest while he was “completely inside his parents’ home,” see id.

at 1301, without a warrant or exigent circumstances justifying a warrantless entry, which “violated clearly established Fourth Amendment . . . protection[s] against unreasonable seizures,” see id. at 1303-04. With qualified immunity removed from the case (for summary judgment purposes, at least), Bailey’s false arrest/unlawful entry claims were reinstated for a trial on the merits. A four-day jury trial was held on June 1-4, 2021. At the close of Bailey’s case-in-chief, Deputy Swindell moved for judgment as a matter of law on the basis

49(a), special verdict interrogatories were given to the jury on each issue of fact to be resolved in connection with its verdict. See Verdict Form, ECF No. 273. The jury returned a verdict in favor of Bailey, specifically finding as follows: (1) Deputy

Swindell had reasonable suspicion to detain Bailey for a law enforcement investigation; (2) Deputy Swindell had probable cause to arrest Bailey for knowingly resisting, obstructing, or opposing a law enforcement officer who was engaged in the lawful execution of a legal duty; (3) the arrest was initiated outside of Bailey’s parents’ home; (4) no exigent circumstances justified Deputy Swindell’s warrantless entry into the home to complete the arrest; (5) Deputy Swindell’s conduct caused Bailey’s injuries; and (6) Bailey should be awarded $625,000 in compensatory damages. See id. Deputy Swindell has now filed a renewed motion for judgment as a matter of law on grounds that the jury’s verdict compels a finding that he is entitled to qualified immunity. The doctrine of qualified immunity shields government officials performing discretionary functions from personal liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Recognition of qualified immunity “reflects an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Simmons v. Bradshaw, 879 F. 3d 1157, 1162 (11th Cir. 2018).

To that end, the doctrine gives officials room to make reasonable but mistaken judgments about open legal questions. See Malley v. Briggs, 475 U.S. 335, 343 (1986). When properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Id. at 341.

The availability of the qualified immunity defense is a legal question to be decided by the court and cannot be submitted to a jury. Simmons, 879 F. 3d at 1163; Cottrell v. Caldwell, 85 F. 3d 1480, 1488 (11th Cir. 1996). Where, as here, qualified immunity was denied at summary judgment based on a determination that its availability turned on a genuine issue of material fact, the defense “remains intact,” the case proceeds to trial, and a jury decides the historical facts bearing on qualified immunity. See Simmons, 879 F. 3d at 1164. However, the jury does not apply the law of qualified immunity to the historical facts it finds. See id. at 1166. Rather, on a defendant’s timely motion for judgment as a matter of law under Rule 50, the court uses the jury’s factual findings to render its legal determination on the issue of qualified immunity. See id. at 1164-65. “In other words, the question of what circumstances existed at the time of the encounter is a question of fact for the jury— but the question of whether the officer’s perceptions and attendant actions were objectively reasonable under those circumstances[, in light of clearly established law,] is a question of law for the court.” See id. at 1164. For qualified immunity to apply, a government official first must establish he was acting within his discretionary authority when the allegedly unlawful acts occurred. Lee v. Ferraro, 284 F. 3d 1188, 1194 (11th Cir. 2002). Once this showing is made, the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity. Id. To overcome qualified immunity, the plaintiff must establish that: (1) the official’s conduct violated a statutory or constitutional right; and (2) the right at issue was clearly established at the time of the violation such that every reasonable official would have understood his conduct was unlawful in the circumstances he confronted. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). A right is clearly established where existing precedent “placed the statutory or constitutional question beyond debate and thus g[ave] the official fair warning that his conduct violated the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011);

Gates v. Khokhar, 884 F. 3d 1290, 1296 (11th Cir. 2018). Fair warning is most commonly provided by “materially similar precedent” from the Supreme Court or, for cases in this district, the Eleventh Circuit or the Supreme Court of Florida. See

Gates, 884 F. 3d at 1296; McClish v. Nugent, 483 F. 3d 1231, 1237 (11th Cir. 2007). “However, a judicial precedent with identical facts is not essential for the law to be clearly established.” Gates, 884 F. 3d at 1296. “Authoritative judicial decisions may establish broad principles of law that are clearly applicable to the conduct at issue.” Id. “And occasionally, albeit not very often, it may be obvious from explicit statutory or constitutional statements that the conduct is unconstitutional.” Id. at

1297. “In all of these circumstances, qualified immunity will be denied only if the preexisting law by case law or otherwise makes it obvious that the defendant’s acts violated the plaintiff’s rights in the specific set of circumstances at issue.” Id. In this case, there is no dispute that Deputy Swindell was acting within his discretionary authority when he arrested Bailey. Therefore, the burden lies with Bailey to show that Deputy Swindell’s actions violated a constitutional right and that the right was clearly established at the time. Based on the jury’s answers to the special interrogatories, which are binding, see Simmons, 879 F. 3d at 1164, the first criterion is met. The jury found Deputy Swindell violated Bailey’s constitutional right to be free from an unreasonable seizure by arresting him—for a misdemeanor offense under Florida law—with probable cause, but without a warrant or exigent circumstances, inside his parents’ home.³ See Verdict Form, ECF No. 274. Significantly, however, the jury determined that the arrest was initiated outside of

Bailey) retreated into the home in an attempt to depart the encounter—did not constitute exigent circumstances allowing him to follow Bailey into the home to complete the warrantless arrest. In other words, was it clearly established that exigent circumstances did not exist? Based on applicable precedent, the answer is no. “When it comes to warrantless arrests, the Supreme Court has drawn a firm line at the entrance to the house.” Bailey, 940 F. 3d at 1300 (quoting Payton v. New York, 445 U.S. 573, 590 (1980)). Law enforcement officers may constitutionally arrest a person in a public place—outside a home, for example—without a warrant if they have probable cause to believe the person has committed a crime. See id. at

1300-01. However, warrantless arrests inside a suspect’s home, even if supported by probable cause, are presumptively unreasonable under the Fourth Amendment, subject only to a few “jealously and carefully drawn” exceptions. See McClish, 483

F. 3d at 1240 (quoting Georgia v. Randolph, 547 U.S. 103, 109 (2006)). One exception applies where “the exigencies of [a] situation make the needs of law enforcement so compelling that a warrantless [entry] is objectively reasonable.” Smith v. LePage, 834 F. 3d 1285, 1292 (11th Cir. 2016); see also McClish, 483 F. 3d at 1240 (“[E]xigent circumstances [are] situations in which the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.”). Courts have recognized “hot pursuit” of a fleeing suspect as one such exigent circumstance, among others, that may justify an officer’s warrantless entry into a home.⁴ See Smith, 834 F. 3d at 1292-93. To date, however, there has been little clarity on the contours of the hot pursuit doctrine in the context of fleeing misdemeanants. Briefly, the Supreme Court has identified two factors to consider in determining whether hot pursuit creates an exigency justifying warrantless entry into a home: (1) the gravity of the underlying offense and (2) whether there was “immediate or continuous pursuit of the [suspect] from the scene of the crime.” Welsh v. Wisconsin, 466 U.S. 740, 753 (1984). Only the first factor is ultimately at issue in this case, given the jury’s factual finding that Deputy Swindell initiated a lawful misdemeanor arrest while Bailey was standing completely outside his parents’ home. See Verdict Form, ECF No. 274 at 2-3. When Bailey responded by retreating into his parents’ home in an attempt to depart the encounter, Deputy

Swindell “immediate[ly]” and “continuous[ly]” pursued him from the scene of the misdemeanor offense—a public place—into the home to complete the arrest. See Welsh, 466 U.S. at 753. There was no “extended hue and cry in and about the public streets,” but there was “some sort of a chase” from outside the home into it. See

United States v. Santana, 427 U.S. 38, 42-43 (1976). “The fact that the pursuit . . .

For many years, federal and state courts across the country have been “sharply divided” on the question of whether an officer with probable cause to arrest a suspect for a misdemeanor may constitutionally enter a home without a warrant in hot pursuit of that suspect. See Stanton v. Sims, 571 U.S.³, 6 (2013); see also Lange v. California, 141 S. Ct. 2011, 2017 (2021). Some courts adopted a categorical rule that pursuit of a fleeing misdemeanant always qualifies as an exigent circumstance, while others required a case-specific showing of exigency. See Lange, 141 S. Ct. at

2017 n.1 (collecting cases). Neither the Supreme Court nor the Eleventh Circuit had resolved the divide as of September 11, 2014. At most, the Supreme Court had stated that the hot pursuit exception should “rarely” be applied to “extremely minor” offenses, such as “noncriminal, traffic offenses.” See Welsh, 466 U.S. at 753; Illinois v. McArthur, 531 U.S. 326, 336 (2001) (observing that Welsh distinguished between jailable and nonjailable offenses, not felony and misdemeanor offenses). And as recently as 2018, albeit in an unpublished opinion, the Eleventh Circuit affirmed an officer’s hot pursuit of a fleeing misdemeanant into a third-party’s residence. See United States v. Concepcion, 748 F. App’x 904, 906 (11th Cir. 2018) (citing Stanton, 571 U.S. at 9).

It was not until earlier this year, on June 23, 2021, after the trial in this case, that the Supreme Court explicitly weighed in on the issue. In Lange v. California, the Court held that pursuit of a fleeing misdemeanant does not always—that is,

categorically—supply the exigency required for a warrantless home entry. See 141 S. Ct. at 2021. Rather, the Court explained that there must be a “case by case [assessment of] the exigencies arising from a misdemeanant[’s] flight” to determine whether the totality of the circumstances present a “law enforcement emergency” authorizing a warrantless entry. Id. at 2021-22. Notably for our purposes, the Court again observed, as it did in Stanton just eight years before, that courts at that time remained divided on whether the Fourth Amendment permits an officer to enter a home without a warrant in hot pursuit of a fleeing misdemeanant. Id. at 2017. In other words, the law of exigent circumstances based on hot pursuit of a misdemeanant was not clearly established as of June 2021. Moreover, given the

“case by case” standard articulated by the Supreme Court in Lange, the precise contours of the hot pursuit doctrine in the context of misdemeanors remain unsettled. In light of this legal landscape, the constitutionality of Deputy Swindell’s actions cannot be considered “beyond debate” as of September 11, 2014.5 See Stanton, 571 U.S. at 5 (“[B]efore concluding that the law is clearly established, . . . existing precedent must have placed the statutory or constitutional question beyond debate.”); Wilson, 526 U.S. at 618 (“If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”). Unsurprisingly, Bailey disagrees. He cites a series of cases that he argues put law enforcement officers, like Deputy Swindell, on fair and clear notice that “both probable cause and exigent circumstances are required to make an in-home warrantless arrest.” Pl. Brief, ECF No. 284 at 21. Although this is an accurate statement of constitutional law as far as it goes, it defines the test for “clearly established law” at far too high a level of generality for this qualified immunity

In Payton, the Supreme Court first established the constitutional principle that warrantless arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. However, the Court “explicitly refused” to consider whether the warrantless home entry in Payton might have been justified by exigent circumstances or to otherwise define “the sort of emergency or dangerous situation[s]” that might qualify as exigent for purposes of the warrant exception, because those issues were not before them.⁶ See Welsh, 466 U.S. at 742 (citing

Payton, 445 U.S. at 583).

McClish v. Nugent, another case cited by Bailey, also is factually distinguishable. There, an officer knocked on the door to a home and the suspect opened the door but remained “standing completely inside” the living room of his home. 483 F. 3d at 1236. The officer “reach[ed] through [the suspect’s] open doorway,” id. at 1241, “physically hauled [him] out of his home” onto the porch, id. at 1248, and arrested him. The Eleventh Circuit unambiguously held that a warrantless home entry and arrest under those circumstances violates the Fourth

Amendment because it was initiated while the suspect was “entirely within” his home, id., and there were no exigent circumstances—“no retreat; no hot pursuit; no concerns with spoilation of evidence[;] . . . and no hint of any threat to officer safety,” id. at 1245-46.7 But that is not what happened here, based on the jury’s binding factual determination that Bailey was outside the home—not inside the home, as in McClish—when his arrest was set in motion, and the undisputed evidence that Bailey did retreat into his home. Consequently, McClish cannot be read as “clearly establishing” the unconstitutionality of Deputy Swindell’s conduct.

Neither can Hamilton v. Williams,⁸:18-cv-885, 2019 WL 5653450 (M.D. Fla. Oct.¹, 2019), an unpublished and nonbinding district court decision entered five years after Bailey’s arrest, in which there was no “immediate or continuous pursuit” of the suspect from the crime scene because officers first approached the suspect’s home to arrest him 31 hours after the alleged underlying offense occurred, and they had spent the interim researching his criminal history and organizing the use of a K- 9 unit rather than obtaining a warrant for his misdemeanor arrest. Id. at *6. Yet again, not what happened here. In short, Bailey has not cited—and this Court has not found—a single authority in existence on September 11, 2014 that clearly established the unlawfulness of a warrantless home entry and arrest on the facts found by the jury here. Moreover, this Court’s legal determination that those facts provided an objectively reasonable basis for believing that exigent circumstances were present is

“Bailey’s arrest . . . [could not] qualify as a true hot pursuit” because it “wasn’t initiated in public”—“a crucial element” of the hot pursuit exception—and instead was first “set in motion inside a home.” Id. at 1302. However, as is often the case,

the facts as found by the jury at trial differed from those taken in the light most favorable to Bailey at the summary judgment stage.⁸ At the post-trial stage, the jury’s factual finding that Bailey’s arrest was initiated outside the home controls.9

Based on the foregoing, the Court finds there was no clearly established law on September 11, 2014 that would have given notice to Deputy Swindell that the situation he confronted that day—again, after initiating a warrantless but lawful misdemeanor arrest outside a home, the arrestee retreated into the home in an attempt to resist the lawful encounter—did not constitute exigent circumstances justifying a warrantless entry into the home to arrest Bailey. Stated differently, there were no “explicit statutory or constitutional statements” or “[a]uthoritative judicial decisions” establishing that a misdemeanor offense such as resisting an officer without violence was not sufficiently serious to satisfy the hot pursuit exception to the warrant requirement. See Gates, 884 F. 3d at 1296-97. The contours of the hot pursuit doctrine in the context of fleeing misdemeanants was an open legal question at that time, and arguably remains so today. Under those circumstances, it cannot reasonably be said that Deputy Swindell was “plainly incompetent” or that he “knowingly violat[ed] the law.” See Malley, 475 U.S. at 341. Consequently, Deputy

Swindell is entitled to qualified immunity with respect to Bailey’s false arrest/unlawful entry claims. Although a harsh result in light of the jury’s verdict, the undersigned nonetheless believes it is the correct result under binding constitutional jurisprudence. Accordingly, Deputy Swindell’s renewed motion for judgment as a matter of law on that basis, ECF No. 283, is GRANTED.¹⁰ The Clerk is directed to vacate the judgment entered on June⁷, 2021, ECF No. 276, and enter judgment as a matter of law in favor of Deputy Swindell, consistent with this Order.11 DONE AND ORDERED, on this 4th day of December, 2021.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE