Phyllis May v. City of Nahunta, Georgia, et al

Filing

Rehearing Opinion issued by court. Decision: Affirmed in part, Reversed in part, and Remanded. Opinion type: Published. Opinion method: Signed.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11749
________________________
D.C. Docket No. 5:13-cv-00045-LGW-RSB
PHYLLIS J. MAY
Plaintiff - Appellant

versus
CITY OF NAHUNTA, GEORGIA,
DARREN CREWS,
Former Chief of Police of the City of Nahunta
Police Department, in his individual capacity,
TOMMY L. ALLEN,
in his individual capacity,

Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 19, 2017)
ON PETITION FOR REHEARING

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Before JORDAN and ANDERSON, Circuit Judges, and DALTON, * District
Judge.
DALTON, District Judge:
Defendants-Appellees’ Petition for Panel Rehearing filed December 6, 2016,
is GRANTED IN PART and DENIED IN PART. The Court VACATES and
WITHDRAWS the previous opinion in this case, published on November 15,
2016, at 841 F.3d 1173 (11th Cir. 2016). The Court substitutes the following
opinion.

The instant appeal calls on us to determine whether an otherwise authorized
mental-health seizure was converted into an unconstitutional one by virtue of the
seizing law enforcement officer’s conduct. In particular, Appellant Phyllis J. May
(“May”) challenges the district court’s grant of summary judgment in favor of
Appellee Tommy L. Allen (“Officer Allen”) on the basis of qualified immunity. 1
After a thorough review of the record and the parties’ briefs, and with the benefit
of oral argument, we affirm in part, reverse in part, and remand this matter to the
district court for proceedings consistent with this Opinion.

*

The Honorable Roy B. Dalton, Jr., United States District Judge for the Middle District
of Florida, sitting by designation.
1
Appellant does not challenge the district court’s grant of summary judgment in favor of
the remaining Appellees.
2

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I2
The events preceding the underlying action took place on August 3, 2011.
After a taxing few days taking care of her Alzheimer-stricken mother, May fell
into a deep sleep. At the time, May was the sole caregiver for her mother, who—in
addition to Alzheimer’s disease—suffers from Sundowner’s Syndrome, a condition
that causes her to stay awake for days at a time. (R34-6, pp. 5–6.) Before laying
down, May called her brother, Ronnie Jacobs (“Jacobs”) to relieve her. (Id. at 7, 8,
10.) May told Jacobs that her “body [was] going down” and she could “take it no
longer.” (Id. at 10.)
Some two or three hours later, Jacobs had still not arrived, despite living in a
trailer adjacent to May’s residence. (See R34-7, p. 32.) By that time, May’s mother
had grown concerned at the length of time May had been laying down and went to
Jacob’s trailer to retrieve him. (Id.) Back at the residence, Jacobs was unable to
rouse May and called 911. (See id. at 32–33, 40.) In response, four emergency
medical technicians (“EMTs”)—three males and one female—arrived at the house,
followed by May’s sister, Wanda Smith (“Smith”). (R34-6, pp. 11, 20–21; R41-2,
¶¶ 3–4.) After checking May’s vital signs, the EMTs placed an ammonia capsule

2

The following facts are taken from the evidence submitted by the parties. Where the
evidence conflicts, the facts are construed in the light most favorable to May, the non-moving
party. See Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006).
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under her nose. (R34-7, pp. 37–38.) The harsh smell woke her up. (R34-6, pp. 11,
13.)
The EMTs asked May a series of questions about her health. (Id. at 14–15.)
May told them that she had been diagnosed with caregiver breakdown and Pick’s
disease, which she described as cerebral atrophy, or shrinking of the brain,
accompanied by symptoms of headaches and seizures. (Id. at 14.) After May
declined to go to the hospital, the EMTs determined that she did not require any
further medical treatment. (Id. at 15; R41, ¶ 8.) May then executed a form refusing
medical treatment and transport to the hospital, which Smith witnessed. (R41-1,
¶ 11.)
In the interim, Officer Allen received a call from 911 requesting his
assistance at May’s residence. (R39, p. 18.) Upon his arrival, an EMT advised him
that May had “been a little combative to herself” and was upset. (Id. at 21.)
Another EMT purportedly told Officer Allen that May had been clasping her fists
and “scruffing and hitting herself in the head.” (Id. at 25.) Consequently, Officer
Allen entered May’s bedroom to investigate. (See id. at 24–26.) There, he observed
that her hair was “all over her head in disarray.” (Id. at 49.) Based on the EMTs’
statements, coupled with his own observations, Officer Allen made the decision to
seize May in her bedroom and transport her to the hospital for a psychological
evaluation.
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In conducting the mental-health seizure, Officer Allen asked the EMTs to
leave the room and locked the door behind them. (R34-6, pp. 16–17.) Officer Allen
then told May that she was going to the hospital and instructed her to take off her
nightgown and put on more suitable clothing. (Id. at 17, 18; R39, p. 28.) May
began to cry. (R34-6, p. 18.) Despite her urging, Officer Allen refused to leave the
room while she changed. (Id. at 72.) Instead, Officer Allen began handing May her
clothes and touched her shoulder roughly in an effort to pull off her nightgown.
(Id. at 18–19.) After she had put on her shorts, Officer Allen instructed her to take
them off and first put on her undergarments. (Id. at 20.) When May refused,
Officer Allen replied, “Yes, you will,” and patted his gun. (Id.) Officer Allen
remained in the locked room alone with May for fifteen to twenty minutes, all the
while ignoring Smith’s requests from the other side that he open the door.3 (R34-7,
p. 44; R34-6, pp. 20–21.)
After the two emerged from the room, Officer Allen announced that he was
taking May to the hospital to talk with “someone in crisis.” (R34-6, p. 45; R39,
p. 24.) Outside the house, May told Jacobs that she did not want to go to the
hospital. (R34-6, pp. 72–73.) Nonetheless, Officer Allen placed May in the back of
3

Officer Allen largely disputes May’s version of events. For example, though he admits
that he and May were alone in her room with the door closed, he denies that he locked the door
and contends that he only remained in the room with her for five or six minutes. (R39, pp. 26,
31–32, 35–36). He also denies that May disrobed in front of him or that she was naked. (Id.
at 31–32.) However, Officer Allen did concede that May inadvertently exposed her left breast in
his presence as she was putting on her t-shirt. (Id. at 29, 37–38.)
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his police car and took her to Satilla Regional Medical Center in Waycross,
Georgia. (Id. at 24; see also R39, p. 44.)
Once they arrived at the hospital, Officer Allen escorted May to the
emergency room. (R34-6, pp. 24–25.) Inside, Officer Allen requested a hospital
room for May and asked the staff about her prior diagnoses. (Id. at 25.) After
hospital staff informed him that May suffered from Pick’s disease and caregiver
breakdown, Officer Allen left the hospital. (Id. at 25–26.)
May spent no more than two hours at the hospital before she was dismissed.
(R34-7, p. 52.) During this time, she spoke with a nurse from psychiatry and had
some blood work performed. (R34-6, p. 48.) According to May, another nurse told
her that there was nothing wrong with her. (Id. at 26.)
Pursuant to 42 U.S.C. § 1983, May subsequently brought suit in the United
States District Court for the Southern District of Georgia against Officer Allen, the
City of Nahunta, Georgia, and then-City Chief of Police Darren Crews (“Officer
Crews”).4 (R1.) May alleged: (1) that Officers Allen and Crews unlawfully seized
her in violation of the Fourth and Fourteenth Amendments (R1, ¶¶ 49–57); (2) that
Officer Allen falsely imprisoned her in violation of the Due Process Clause of the
Fourteenth Amendment (see id. ¶¶ 58–66); and (3) municipal liability against the
City for the actions and inactions of Officers Allen and Crews (id. ¶¶ 32–34, 36–
4

May’s claims against Officer Crews appear to be based on vicarious liability for Officer
Allen’s conduct.
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39, 42–46). May also asserted state law claims against Officer Allen for assault and
battery, invasion of privacy, and false imprisonment. (Id. ¶¶ 67–89.)
Defendants later moved for summary judgment on grounds of qualified
immunity and official immunity. (See R45, pp. 19–20, 38.) Based on its finding
that Officer Allen had probable cause to seize May, the district court granted
Officer Allen qualified immunity with respect to May’s federal claims. (Id. at 24–
25) Additionally, the district court concluded that no clearly established law would
have put Officer Allen on notice that his actions were unlawful. (Id. at 25, 31–32.)
As to May’s state law claims, the district court held that Officer Allen was entitled
to official immunity because May had not met her burden of demonstrating that he
acted with actual malice. (Id. at 40–41.) The district court also granted summary
judgment in favor of Officer Crews and the City. This appeal followed.
II
We review a district court’s grant of summary judgment based on the
defense of qualified immunity de novo. Holmes v. Kucynda, 321 F.3d 1069, 1077
(11th Cir. 2003). “Summary judgment is appropriate only when the evidence
before the court demonstrates that ‘there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(c)).

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III
“Qualified immunity protects government actors performing discretionary
functions from being sued in their individual capacities.” Holmes, 321 F.3d at
1077. In evaluating a government actor’s entitlement to qualified immunity, the
Supreme Court has developed an objective-reasonableness test wherein “the
official’s actions must be evaluated against ‘clearly established law,’ consisting of
statutory or constitutional rights that a reasonable person should have known.”
Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991).
In particular, once we determine that a defendant was acting within his
discretionary authority at the time of the challenged conduct, we engage in a
two-prong analysis to evaluate whether he is entitled to qualified immunity. See
Roberts v. Spielman, 643 F.3d 899, 904 (11th Cir. 2011). First, we consider
whether the facts—viewed in the light most favorable to the plaintiff—establish
that a constitutional right has been violated. Id. Second, we determine whether that
right was clearly established at the time of alleged conduct. Id. “Both elements of
this test must be satisfied for an official to lose qualified immunity, and this
two-prong inquiry may be done in whatever order is deemed appropriate for the
case.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir. 2010).

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A
The parties do not dispute that Officer Allen was acting within the scope of
his discretionary authority at the time of the alleged events. Therefore, with respect
to May’s unlawful seizure claim, the first issue we must decide is whether Officer
Allen is entitled to qualified immunity for his initial decision to seize and then
transport May to the hospital. 5
“The Fourth Amendment protects people from unreasonable searches and
seizures.” Roberts, 643 F.3d at 905. “For Fourth Amendment purposes, a seizure
occurs when an officer, ‘by means of physical force or show of authority, has in
some way restrained the liberty of a citizen.’” Id. (quoting Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968)). “An encounter between a police officer and a citizen
becomes a seizure when ‘a reasonable person would not feel free to terminate the
encounter.’” Id. (quoting United States v. Jordan, 635 F.3d 1181, 1186 (11th
Cir. 2011)). In the context of a mental-health seizure, “[w]hen an officer stops an
individual to ascertain that person’s mental state (rather than to investigate
suspected criminal activity), the Fourth Amendment requires the officer to have
probable cause to believe the person is dangerous either to himself or to others.”
Id.

5

We will address whether Officer Allen is entitled to qualified immunity with respect to
the manner of such seizure in Part C of this Opinion.
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There is no question that May was seized during the alleged incident.
According to May’s version of the facts, Officer Allen restrained her freedom by
confining her to the bedroom and transporting her to the hospital for a
psychological evaluation against her will. Thus, we must determine whether such
seizure was unreasonable under the Fourth Amendment.
In doing so, “our inquiry is a dual one.” Terry, 392 U.S. at 19–20. First, we
consider “whether the officer’s action was justified at its inception.” Id. at 20. We
then consider whether the seizure “was reasonably related in scope to the
circumstances which justified the interference in the first place.” Id.
Here, we conclude that, at its inception, Officer Allen’s action in seizing
May for a psychological evaluation was justified. “[T]o be entitled to qualified
immunity from a Fourth Amendment claim, an officer need not have actual
probable cause, but only ‘arguable probable cause’”—that is, “the facts and
circumstances must be such that the officer reasonably could have believed that
probable cause existed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).
Based on the evidence, we hold that Officer Allen had arguable probable cause to
seize May for a psychological evaluation.
The facts at hand are similar to those present in Roberts v. Spielman,
643 F.3d 899 (11th Cir. 2011), which was decided about seven weeks before the
events at issue here. In Roberts, an officer reported to the plaintiff’s home in
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response to a 911 call concerning a possible suicide attempt. Id. at 902. Upon his
arrival, the officer spoke with the plaintiff’s former sister-in-law, who informed
him that: (1) she had been trying to make contact with the plaintiff for an hour; and
(2) the plaintiff had a history of suicide attempts and was on medication for bipolar
disorder. Id. After knocking repeatedly to no avail, the officer opened the back
door a few inches and identified himself. Id. Roberts became verbally abusive
toward the officer and made an ambiguous threat, thereby prompting the officer to
escort her out of the house. Id. at 902–03. The officer then explained to Roberts
that he had been called to perform a welfare check at her home. Id. at 903. Because
Roberts did not threaten her life in his presence, the officer declined to take her
into custody for an evaluation and subsequently left. See id.
Based on the foregoing events, the plaintiff brought suit under
42 U.S.C. § 1983, alleging that the officer violated her Fourth Amendment right to
be free from unreasonable searches and seizures. Id. at 901. The officer moved for
summary judgment on the basis of qualified immunity. The district court
ultimately held that the officer was not entitled to qualified immunity because he
was acting outside the scope of his discretionary authority. Id.
On appeal, we reversed the district court’s denial of qualified immunity and
held that the officer’s conduct did not violate the Fourth Amendment. Id. at 906.
Crucial to our analysis were the following facts: (1) that the officer had been
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dispatched in response to a 911 call; (2) the statements made to the officer by the
plaintiff’s sister-in-law; and (3) that there was nothing in the record to suggest that
the officer should have doubted the information given to him by the plaintiff’s
relative. Id. Based on these facts, as well as Roberts’ behavior following the
officer’s arrival, we held that the officer could have reasonably believed that
Roberts posed a danger to herself, thereby justifying his decision to seize her to
investigate the relative’s concerns. Id.
As in Roberts, on the day of the incident, Officer Allen reported to May’s
home in response to a 911 call requesting police assistance. After he arrived, two
EMTs respectively told him that May had been: (1) “a little combative to herself”
and was upset (R.39, p. 21); and (2) clasping her fists and “vigorously . . . scruffing
and hitting herself in the head” (id. at 25). Officer Allen’s own observations
corroborated these statements, as he testified that May’s hair was “all over her
head in disarray.” (Id. at 49.) In light of the EMTs’ statements and his respective
observations, Officer Allen could reasonably have believed that May posed a
danger to herself.
Officer Allen’s decision to transport May to the hospital warrants the same
conclusion. Notably absent from the record is any evidence that May’s mother,
sister, or brother protested Officer Allen’s announcement that he was taking her to
the hospital. Moreover, in view of the chilling effect that a contrary ruling may
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have in this context, we are reluctant to second guess an officer’s decision on these
facts to transport a person to the hospital to evaluate possible mental-health
concerns.
B
We similarly conclude that Officer Allen is entitled to qualified immunity on
May’s § 1983 false imprisonment claim.
“A § 1983 claim of false imprisonment requires a showing of common law
imprisonment and a due process violation under the Fourteenth Amendment.”
Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). “The elements of
common law false imprisonment are an intent to confine, an act resulting in
confinement, and the victim’s awareness of confinement.” Id. A plaintiff must also
prove that the defendant acted with deliberate indifference in violating the
plaintiff’s right to be free from continued detention after the defendant knew or
should have known that the detainee was entitled to release. Id.
At oral argument, May confirmed that her false imprisonment claim, like her
unlawful seizure claim, was based on her detention by Officer Allen in her
bedroom through the time that she was taken to the hospital. In light of our finding
that Officer Allen had arguable probable cause to seize May and transport her to
the hospital, we find that May has not shown that Officer Allen acted with
deliberate indifference by knowingly or recklessly violating her right to be free
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from continued detention after she was entitled to release. Thus, we affirm the
district court’s grant of summary judgment in favor of Officer Allen on May’s
§ 1983 false imprisonment claim.
C
Having determined that Officer Allen is entitled to qualified immunity on
the issue of whether the seizure was justified at its inception, we now address
whether the manner of the seizure was unreasonable. Because we determine that
questions of fact exist with respect to whether the seizure was conducted in an
extraordinary manner, unusually harmful to May’s privacy interests, Whren v.
United States, 517 U.S. 806, 818 (1996), we conclude that the district court erred
in granting Officer Allen qualified immunity for his conduct during the seizure.
1
Under the Fourth Amendment, an individual is entitled to be free from
unreasonable government intrusion wherever he harbors a reasonable expectation
of privacy. Terry, 392 U.S. at 9. The legality—and, thus, reasonableness—of an
officer’s conduct is often judged “by balancing its intrusion on the individual’s
Fourth Amendment interests against its promotion of legitimate, governmental
interests.” Bouye v. Marshall, 102 F. Supp. 2d 1357, 1362–63 (N.D. Ga. 2000)
(citing Graham v. Connor, 490 U.S. 386, 397 (1989)), aff’d sub nom., Bouye v.
Gwinnett Cty., 265 F.3d 1063 (11th Cir. 2001).
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However, where adequate justification for the initiation of the seizure has
been found, courts limit their application of the balancing analysis to “searches or
seizures conducted in an extraordinary manner”—that is, searches and seizures
conducted in a manner “unusually harmful to an individual’s privacy or even
physical interests.” Whren, 517 U.S. at 818. Inter alia, these “extraordinary
manner” cases may involve seizure by means of a deadly weapon. Id.
“Whether a search or seizure is ‘extraordinary’ turns, above all else, on the
manner in which it is executed.” Atwater v. City of Lago Vista, 532 U.S. 318, 322
(2001). Given that “[t]he Fourth Amendment proceeds as much by limitations
upon the scope of governmental action as by imposing preconditions upon its
initiation,” the manner in which a seizure is conducted is “as vital a part of the
inquiry as whether [it was] warranted at all.” Terry, 392 U.S. at 28–29. At bottom,
a government actor must employ reasonable means.6 See Evans v. Stephens,
407 F.3d 1272, 1281 (11th Cir. 2005).
Thus, an initially constitutional seizure can become unconstitutional where it
is executed in an extraordinary manner, thereby subjecting the officer’s conduct to

6

The question of reasonableness may sometimes turn on whether less intrusive means
were practically available to accomplish the objective of the seizure, as in the context of an
unduly intrusive search or an extended detention. See, e.g., Gray ex rel. Alexander v. Bostic,
458 F.3d 1295, 1306 (11th Cir. 2006) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)). For
example, a lawful seizure “can become unlawful if it is prolonged beyond the time reasonably
required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005); see also
Muehler v. Mena, 544 U.S. 93, 100 (2005) (stating that the duration of a detention can also affect
the balance of interests).
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a balancing analysis. While usually evaluated in the context of excessive force, that
is not the only way that an otherwise authorized seizure might be conducted in
such an extraordinary manner so as to constitute a constitutional violation.
Applying the foregoing analysis here, the question we must answer is whether—
considering the totality of the circumstances—an objectively reasonable officer
would have known that May’s right to personal security was unreasonably violated
by Officer Allen’s actions following the initial seizure. See Terry, 392 U.S. at 9.
Officer Allen arrived at May’s home to assist EMTs in responding to a 911
call. Based on the EMTs’ statements to Officer Allen, the government interest was
the promotion of safety, the elimination of self-harm, and the investigation of
mental-health concerns. Balancing the government interest against May’s interest
in bodily sanctity and personal security, we conclude that Officer Allen’s actions
exceeded the scope of the underlying justification and that he failed to use
reasonable means to rectify the situation. Thus, while Officer Allen had at least
arguable probable cause to seize and transport May to the hospital for evaluation,
the manner in which he chose to do so was unreasonable, thereby violating May’s
Fourth Amendment rights.
In concluding that Officer Allen’s actions were objectively reasonable under
the circumstances, the district court evidently placed little emphasis on the
allegedly egregious manner in which the seizure was performed. Though admitting
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that Officer Allen’s conduct may have been “indelicate,” the district court focused
almost solely on whether Officer Allen had probable cause to seize May in the first
place. (R 45, p. 41.) Such was error.
Specifically, on May’s version of the facts, Officer Allen detained May in a
locked room for twenty minutes and forced her to disrobe. Officer Allen’s
purported rationale was to: (1) get May to change out of her nightgown and put on
more appropriate clothing for transport to the hospital; and (2) ensure that May did
not harm herself in the interim. Notwithstanding these objectives, it was clearly
inappropriate for a male officer to lock himself in a room with a woman in a state
of undress under the circumstances, particularly after she asked him to leave. The
unreasonableness of such conduct is further underscored by his failure to summon
the female EMT or any of May’s female relatives present at the residence. 7 As
intimated at oral argument, one could certainly conclude that it was unreasonable
for Officer Allen not to ask the female EMT to remain with May while she
disrobed. Even more troubling is the testimony that Officer Allen attempted to pull
May’s nightgown from her shoulder and used the threat of deadly force to compel
her to remove her shorts, in order to first put on undergarments, by patting his gun
after she initially refused. Based on the totality of these facts, one could conclude

7

According to the deposition testimony of Officer Crews, the City did not have any
female police officers at the time. (R38, p. 35.)
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that the manner in which Officer Allen conducted the seizure violated May’s
Fourth Amendment right. Moreover, not only could Officer Allen’s patent
disregard for May’s personal dignity be deemed unreasonable, but so could the
prolonged duration of the seizure. Thus, we conclude that factual questions remain
with respect to whether Officer Allen’s conduct violated May’s constitutional right
to personal security.
2
Our final inquiry concerns whether, under the circumstances, May’s right to
be free from a seizure in which she was compelled—by threat of deadly force—to
disrobe in front of a male police officer, with whom she remained alone in a locked
room for twenty minutes, was clearly established on August 3, 2011. We conclude
that it was.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Vinyard, 311 F.3d at 1350. “Our circuit
uses two methods to determine whether a reasonable officer would know that his
conduct is unconstitutional.” Fils v. City of Aventura, 647 F.3d 1272, 1291
(11th Cir. 2011). “The first method looks at the relevant case law at the time of the
violation; the right is clearly established if ‘a concrete factual context exists so as
to make it obvious to a reasonable government actor that his actions violate federal
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law.’” Id. at 1291 (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1333
(11th Cir. 2008)).
“The second method looks not at case law, but at the officer’s conduct, and
inquires whether that conduct ‘lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily apparent to
the officer, notwithstanding the lack of fact-specific case law.” Id. (quoting
Vinyard, 311 F.3d at 1355). “In such circumstances, the violation is obvious.”
Evans, 407 F.3d at 1282.
Applying the obvious clarity test to May’s version of the facts, we hold that
an objectively reasonable officer would have known to refrain from engaging in
degrading and humiliating methods when preparing to transport a person of the
opposite gender for a psychological evaluation. Given our prior holding that
searches performed in an “abusive fashion” may violate the Constitution, Evans,
407 F.3d at 1281, an objectively reasonable officer would have known that, under
the circumstances, it was unreasonable to use the threat of deadly force to compel a
female civilian to disrobe in that manner. Indeed, if established, Officer Allen’s
conduct is representative of the type of unnecessarily invasive and demeaning
intrusion that is undoubtedly within the sphere of what the Fourth Amendment
prohibits.

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Quite simply, the Fourth Amendment ensures a person’s right “to be secure
in their persons [and] houses” against unreasonable seizures. U.S. CONST.
amend. IV. As such, any objectively reasonable officer would have known that the
“degrading and forceful manner” in which Officer Allen conducted this seizure
was patently unreasonable. Evans, 407 F.3d at 1283; see also Hope,
536 U.S. at 745 (finding that the defendants violated clearly established law under
the obvious clarity test where the plaintiff “was treated in a way antithetical to
human dignity” by being “hitched to a post for an extended period of time in a
position that was painful, and under circumstances that were both degrading and
dangerous”). 8
In Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005), we found that strip
searches performed during a post-arrest criminal investigation were unreasonable
at both their inception and with regard to the manner in which they were
performed. Id. at 1278. In applying the obvious clarity test, we took issue with the
following circumstances: (1) that the plaintiffs were searched in an abnormal
place—a broom closet—“thus, capable of exciting more fear”; (2) that “[l]ittle
respect for privacy was observed”; (3) that the officers used unnecessary force; and
(4) that the officers used threatening language toward the plaintiffs. Id at 1281–82.

8

Even the testimony of Officer Crews supports May’s position, as Officer Crews implied
that Officer Allen should not have laid his hands on her. (See R38, pp. 37.)
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Given Officer Allen’s alleged disregard for May’s privacy, his use of
forcible language coupled with the threat of deadly force, the prolonged duration of
the seizure, and the inappropriateness inherent in the circumstances, we similarly
conclude that “the supposed facts of this case take the manner of [seizure] well
beyond the ‘hazy border’ that sometimes separates lawful conduct from unlawful
conduct.” Id. at 1283 (quoting Priester v. City of Riviera Beach, Fla., 208 F.3d
919, 926 (11th Cir. 2000)). Here, as in Evans, the violation was obvious. As such,
qualified immunity was inappropriate, and the district court erred by granting
summary judgment in favor of Officer Allen on that ground.
IV
At oral argument we posited the following hypothetical to the parties. An
officer initiates a traffic stop. Although the officer had probable cause for the
initial stop, during the course of the traffic stop, he requests that the driver disrobe.
When the driver refuses, the officer pats his gun, and the driver then complies.
Subsequently, the officer tells the driver to put her clothes back on and lets her go.
When asked whether the foregoing conduct would unreasonably violate the
driver’s privacy, counsel for the Appellees conceded that it would. We see no
reason to treat the present circumstances differently.
In sum, we hold that Officer Allen is protected by qualified immunity from
May’s challenge to his decision to seize and transport her to the hospital, but he is
21

Case: 15-11749

Date Filed: 01/19/2017

Page: 22 of 22

not entitled to qualified immunity from May’s claims challenging the manner of
such seizure.

Accordingly, we affirm the district court’s grant of qualified

immunity with respect to the initial seizure. However, we reverse and remand on
the question of whether Officer Allen’s conduct during the seizure was done in an
extraordinary manner unusually harmful to May’s privacy interests. 9
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

9

After review of the record, we find no reason to disturb the district court’s ruling on the
issue of official immunity for May’s state law claims.
22