Isaiah Montanez v. The City of Orlando, et al

Filing

Opinion issued by court as to Appellant Isaiah Montanez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15211
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-00622-ACC-TBS
ISAIAH MONTANEZ,
Plaintiff-Appellant,
versus
THE CITY OF ORLANDO,
JAMES PARKER,
K9 JOKER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 2, 2017)
Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Isaiah Montanez appeals from the district court’s grant of summary
judgment to City of Orlando police officer James Parker, his K9 partner Joker, and
the City of Orlando on Montanez’s 42 U.S.C. § 1983 claim alleging violations of
the Fourth Amendment arising out of his detention and arrest. Montanez argues
that the district court erred in granting summary judgment because Parker lacked
sufficient grounds to stop or arrest him and used excessive force to effectuate the
arrest. Because we conclude, viewing the evidence in the light most favorable to
Montanez, that Parker did not violate Montanez’s constitutional rights by detaining
and placing him under arrest and did not use excessive force to make the arrest, we
affirm the district court’s grant of summary judgment based on qualified immunity.
I. FACTS
After gathering with family to celebrate Easter, Montanez and his cousin,
Joshua Mejia, rode their bicycles back home on the Cady Way Trail in Orlando,
Florida. Although it was evening and the sun had set, neither bicycle had a light
affixed to it, and Montanez’s lacked working brakes. Montanez and Mejia were
hurrying because the Cady Way Trail is known for robberies and other criminal
activity. Parker and another police officer, Michael Turner, were nearby searching
for an attempted robbery suspect.
At this point, the parties’ narratives begin to diverge partially. Montanez
testified by deposition that it was too dark to see that the officers were police and
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that he did not hear Parker identify himself as a police officer or give an order to
stop. Parker suddenly “yoked” Montanez, forcibly knocking him off of his bicycle
onto the ground, then Joker began to bite Montanez. In his deposition, Mejia
testified that immediately before the attack Turner had control of Joker. As a result
of being knocked from the bicycle and bitten by Joker, Montanez suffered various
injuries, including scrapes, scarring, puncture wounds, a gash, and numbness in his
arm, as well as anxiety and depression.
Parker offered a different account of the encounter. In his affidavits, he
testified that he saw two bicyclists riding toward the officers but could not see
them clearly in the darkness. Parker was wearing his Police K-9 uniform, which
said “Police K-9” on large patches on his chest and back. He shined a flashlight so
that the riders could see that he and Turner were officers, identified themselves as
“Police K-9,” and ordered the riders to stop. Mejia stopped his bicycle, but
Montanez kept riding. To Parker, Montanez appeared to be attempting to flee by
maneuvering his bicycle around the two officers. Parker was holding Joker’s leash
in one hand as Montanez approached; as Montanez rode by, Parker reached out
and forcibly pulled him off of the bicycle. To prevent Joker from biting Montanez,
Parker grabbed the dog’s harness and lifted him off the ground. But Parker fell on
top of Montanez, whom Joker then bit, apparently perceiving his handler to be
under attack. Parker immediately commanded Joker to release his bite, and the
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dog complied. Parker arrested Montanez for resisting an officer without violence
under Fla. Stat. § 843.02. The State later dropped the charges. Montanez sued
Parker, Joker, and the City of Orlando under 42 U.S.C. § 1983, alleging false
arrest, unreasonable seizure, and excessive force under the Fourth Amendment, as
well as deprivation of liberty without due process under the Fifth Amendment. He
also brought various state law tort claims against all three defendants. The district
court granted summary judgment to Parker, Joker, and the City of Orlando on
Montanez’s § 1983 claims and declined to exercise supplemental jurisdiction over
his state law claims. Montanez timely appealed.
II.

STANDARD OF REVIEW

“Summary judgment is appropriate ‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Travelers Prop. Cas. Co. of Am. v. Moore, 763 F.3d 1265, 1268
(11th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). “We review the district court’s
grant of summary judgment de novo, construing the evidence and all reasonable
inferences therefrom in favor of the nonmoving party.” Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).
III.

DISCUSSION

Title 42 U.S.C. § 1983 creates a cause of action against “[e]very person who,
under color of any statute . . . of any State . . . subjects, or causes to be subjected,
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any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws.” 42 U.S.C. § 1983. However, the doctrine of qualified immunity “offers
complete protection for government officials sued in their individual capacities if
their conduct ‘does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “The purpose of this immunity is to allow government officials to carry
out their discretionary duties without the fear of personal liability or harassing
litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
The first stage of qualified immunity analysis requires a government official
to demonstrate that he was acting within the scope of his discretionary authority
when the allegedly unlawful act occurred. Id. “If the defendant was not acting
within his discretionary authority, he is ineligible for the benefit of qualified
immunity.” Id. Here, there is no dispute that Parker was engaged in a
discretionary function when he stopped and arrested Montanez.
Once “the defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Id. This requires determining both (1) “whether the facts that a
plaintiff has . . . shown . . . make out a violation of a constitutional right” and (2)
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“whether the right at issue was ‘clearly established’ at the time of defendant’s
alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
“To determine whether a right was clearly established, we look to binding
decisions of the Supreme Court of the United States, this Court, and the highest
court of the relevant state (here, Florida).” Valderrama v. Rousseau, 780 F.3d
1108, 1112 (11th Cir. 2015). The relevant inquiry is whether, in light of these
decisions, “it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Id. (internal quotation marks omitted). “While
officials must have fair warning that their acts are unconstitutional, there need not
be a case ‘on all fours,’ with materially identical facts, before we will allow suits
against them,” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th
Cir. 2004), for “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.
730, 741 (2002).
A. Claims Arising out of the Stop and Arrest
1. The Stop
Montanez contends that his Fourth Amendment rights were violated when
Parker stopped him. Consistent with the Fourth Amendment, “law enforcement
officers may seize a suspect for a brief, investigatory [] stop where (1) the officers
have a reasonable suspicion that the suspect was involved in, or is about to be
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involved in, criminal activity, and (2) the stop ‘was reasonably related in scope to
the circumstances which justified the interference in the first place.’” United
States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (quoting Terry v. Ohio, 392
U.S. 1, 20 (1968)). An officer may be entitled to qualified immunity even if there
was no actual reasonable suspicion for a stop so long as there was arguable
reasonable suspicion. See Whittier v. Kobayashi, 581 F.3d 1304, 1308-09 (11th
Cir. 2009).
“While ‘reasonable suspicion’ is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective
justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
The Supreme Court has held that “[t]emporary detention of individuals during the
stop of an automobile by the police, even if only for a brief period and for a limited
purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.”
Whren v. United States, 517 U.S. 806, 809-10 (1996). “An automobile stop is thus
subject to the constitutional imperative that it not be ‘unreasonable’ under the
circumstances. As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that a traffic violation
has occurred.” Id. at 10. This is true even in the context of a violation of a “civil
traffic regulation.” Id.
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At the time of the stop, a reasonable officer in Parker’s position would have
had more than arguable suspicion that Montanez had violated a Florida civil traffic
law, which requires that “[e]very bicycle in use between sunset and sunrise shall be
equipped with a lamp on the front.” Fla. Stat. § 316.2065(7); id. § 316.2065(19)
(characterizing violations of the statute as noncriminal traffic infractions). The
undisputed evidence shows that Montanez’s bicycle lacked a light and that Parker
encountered Montanez and Mejia after the sun had set, when it was dark out.
Although Montanez was riding a bicycle rather than traveling in an automobile, we
conclude, consistent with Whren, that Parker was authorized to detain him because
there was more than arguable suspicion—indeed, probable cause—to believe that
Montanez had violated a civil traffic law. For this reason, we affirm the district
court’s grant of summary judgment to Parker on Montanez’s § 1983 claim arising
out of the initial stop.
2. The Arrest
Montanez argues that even if the stop was lawful, the district court erred in
granting summary judgment on his § 1983 claim that Parker violated his
constitutional rights by unlawfully arresting him. “[A]n arrest made without
probable cause is a violation of an arrestee’s clearly established Fourth
Amendment rights.” Valderrama, 780 F.3d at 1113. “[H]owever, a police officer
may be entitled to qualified immunity even if there was no actual probable cause
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for an arrest,” so long as “there was arguable probable cause for the arrest.” Id.
Arguable probable cause 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.” Scarbrough v. Myles, 245 F.3d
1299, 1302 (11th Cir. 2001) (internal quotation marks omitted). The existence of
arguable probable cause is determined using an objective standard. Lee, 284 F.3d
at 1195.
Viewing the evidence in the light most favorable to Montanez, Parker had
arguable probable cause to arrest Montanez for resisting an officer without
violence. Under Florida law, a person violates the law if he “resist[s] . . . any
officer . . . in the lawful execution of any legal duty.” Fla. Stat. § 843.02. At the
time of the incident, Parker was searching for an attempted robbery suspect in a
high-crime area. When Parker saw two bicyclists approaching the officers in the
dark, he commanded them to stop. Mejia stopped, but Montanez kept moving.
Although we must construe the evidence in Montanez’s favor and credit his
testimony that he did not hear the command to stop, the question here is whether
Parker reasonably believed that Montanez heard it. The fact that Mejia complied
with Parker’s order to stop made it reasonable for Parker to conclude that
Montanez had deliberately refused to obey his command. Even drawing the other
reasonable inference that Montanez asks us to draw, that his failure to heed
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Parker’s order was innocent and a result of his bicycle lacking brakes, there is no
evidence that Parker knew or reasonably could have known about the brakes.
Under these circumstances, Parker had arguable probable cause to arrest Montanez
for resisting an officer without violence. The district court thus did not err in
granting summary judgment to Parker on Montanez’s § 1983 claim alleging a
Fourth Amendment violation based on the arrest.
B. Excessive Force Claim
Montanez argues that the district court erred in granting summary judgment
on his claim that Parker used excessive force during the arrest. Montanez asserts
that Parker used excessive force in two distinct ways: (1) when Parker pulled him
off the bicycle and (2) when Joker attacked him. We conclude that Montanez
failed to establish the use of excessive force in either respect.
“[T]he right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it.”
Lee, 284 F.3d at 1197 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Nonetheless, “[t]he Fourth Amendment’s freedom from unreasonable searches and
seizures encompasses the plain right to be free from the use of excessive force in
the course of an arrest.” Id.
In assessing whether an officer used excessive force, we “must ask whether
a reasonable officer would believe that this level of force is necessary in the
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situation at hand.” Id. (internal quotation marks omitted). Put another way, “the
force used by a police officer in carrying out an arrest must be reasonably
proportionate to the need for that force.” Id. at 1198. To determine whether the
use of force was reasonably proportionate, we “must examine (1) the need for the
application of force, (2) the relationship between the need and amount of force
used, and (3) the extent of the injury inflicted.” Id. And to evaluate the need for
force, we consider “the severity of the crime, the danger to the officer, and the risk
of flight.” Id.
Determining whether an exercise of force was reasonable cannot be reduced
to a mechanical exercise, but “requires careful attention to the facts and
circumstances of each particular case.” Graham, 490 U.S. at 396. Accordingly,
“[t]he ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Saunders v. Duke, 766 F.3d 1262, 1267 (11th Cir. 2014) (internal
quotation marks omitted). “The 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.” Oliver v.
Fiorino, 586 F.3d 898, 905-06 (11th Cir. 2009) (internal quotation marks omitted).

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1.

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Removal From the Bicycle

Viewing the evidence in the light most favorable to Montanez, we
nonetheless conclude that Parker’s use of force to stop Montanez from riding away
on his bicycle was reasonable. We begin our analysis with the first Lee factor, the
need for the application of force. Lee, 284 F.3d at 1198. Here, Parker reasonably
could have believed that Montanez was resisting, obstructing, or opposing an
officer in violation of Fla. Stat. § 843.02. This conduct is akin to resisting arrest,
an offense of sufficient severity that Graham says it weighs in favor of finding
some use of force to be reasonable. See Graham, 490 U.S. at 396. Riding in the
dark with no lights, Montanez did not heed Parker’s command to stop, and
according to Parker’s undisputed testimony, appeared to be attempting to
maneuver his bicycle away from the officers as if to flee.
A reasonable officer in Parker’s position thus also could have believed that
there was a risk of flight. Id. This risk of flight further supports the need for
application of force. Lee, 284 F.3d at 1197-98.
Analyzing the second Lee factor, we conclude that Parker used no more
force than necessary to stop Montanez. Id. at 1198. Given the undisputed facts
that Montanez failed to stop and instead continued riding his bicycle, Parker had
little time to determine what level of force to apply to stop a person on a bicycle
who, it appeared, had apparently intentionally disregarded an order to stop and
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looked to be attempting to flee. Under these circumstances, we cannot say that
Parker’s decision to forcibly remove Montanez from the bicycle in order to stop
him was unreasonable.
The third Lee factor, the extent of Montanez’s injuries, also supports the
conclusion that the amount of force used was not unreasonable. Lee, 284 F.3d at
1198. Montanez sustained injuries to the skin on his elbows and knees that led to
scarring. Since the incident, he also experienced occasional numbness in his right
arm, as well as anxiety and depression. We do not trivialize these injuries;
however, they are consistent with forcible removal from a bicycle, and, under the
circumstances, do not rise to a level of severity that would suggest that Parker’s
use of force in stopping Montanez was unreasonable.1
In sum, Graham and Lee require that in determining whether a use of force
is reasonable, we look to the particular circumstances of each case. Here, Parker
reasonably could have believed that Montanez was resisting, obstructing, or
opposing an officer and attempting to flee. He responded by pulling Montanez off
of his bicycle, which caused Montanez to suffer relatively minor injuries. Given
the need for the use of force, including the severity of resisting an officer and the

1

Montanez claims that the district court erroneously applied a “shock the conscience”
standard to determine whether the injuries that he sustained were severe enough, as a matter of
law, to give rise to liability. But regardless of the test it applied, we agree with the district
court’s conclusion that Montanez’s injuries were insufficient to establish that the use of force
was unreasonable under the circumstances.
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risk of flight; the proportionality of the force used to the exigencies of the situation
as Parker perceived it to be; and the nature of Montanez’s injuries, we hold that
under the circumstances of this case, Parker’s use of force in removing Montanez
from the bicycle was not excessive. The district court properly granted summary
judgment to Parker on Montanez’s excessive force claim based on removal from
the bicycle.
2.

Joker’s Bite

We conclude that Parker did not use excessive force when Joker bit
Montanez. The parties offered conflicting accounts of who had control over Joker
right before the dog bit Montanez. Mejia testified in his deposition that Turner had
control of Joker at that moment. However, Parker testified in his deposition that he
was holding Joker. Montanez’s own deposition testimony does not identify who
was holding Joker at the time of the attack, and is consistent with either officer
having had control. Montanez asserts that the district court erred in not accepting
as true Parker’s account, which Montanez claims is more favorable to him.
Although Montanez undoubtedly is entitled to have all reasonable inferences
from the underlying facts drawn in his favor, it makes no difference here because
any way we view the facts, Montanez failed to show that intentional conduct by
Parker caused Joker’s bite. Montanez cannot prevail under either Mejia’s or
Parker’s account of the facts. Crediting Mejia’s testimony that Turner had control
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of Joker at the crucial moment, there is no basis for holding Parker liable. 2 At the
same time, crediting Parker’s narrative, there is no evidence that Parker
commanded or even willfully allowed Joker to bite Montanez. Instead, the
undisputed evidence shows that Joker began to bite when Parker fell on top of
Montanez after pulling him off the bicycle. Further, no evidence contradicts
Parker’s testimony that he tried to restrain Joker before he fell. To hold Parker
liable, Montanez must identify an intentional action that Parker took or something
that he should have done but intentionally did not do to protect Montanez. See
Brower v. Cty. Of Inyo, 489 U.S. 593, 596-97 (1989) (“Violation of the Fourth
Amendment requires an intentional acquisition of physical control.”); Vaughan v.
Cox, 343 F.3d 1323, 1328 (11th Cir. 2003) (holding that an excessive force claim
requires intentional conduct). Montanez has failed to do so under either Mejia’s or
Parker’s versions of the facts.
It is possible, however, to construct a third version of the facts in which
Parker had control of Joker at the time of the attack and intentionally released the
dog on Montanez. In pertinent part, Montanez described the attack as follows:
Well, I was riding my bike, and someone just comes out and
clotheslines me off my bike. Just like a really hard hit, and I am just
riding my bike. You know, minding my – and just, boom, knocks me
off my bike, clotheslines me, I hit the ground, and as I am on the
2

Montanez did not name Turner as a defendant. Although he asserts that Parker could be
liable for allowing an untrained officer to control Joker, he provides no facts to support this
theory of liability, making it entirely conclusory and unable to withstand summary judgment.
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ground, the cop’s knee is on my back. Like, I figured out it was a cop
after, like, I’m attacked because I looked and there’s the dog there,
and I fall on the floor – I am already on the ground and he has his
knee on my back, suppressed, and then the dog comes and starts biting
my arm, when I am already on the ground. Like, I had my hands
behind my back.
In this account, Parker does not appear to have stumbled, fallen on top of
Montanez, and lost control of Joker.

Rather, drawing all reasonable

inferences in Montanez’s favor, including that Parker was handling Joker, a
trier of fact could reasonably conclude that Joker bit Montanez only after
Parker had intentionally pinned Montanez to the ground.
But this account is inconsistent with the position Montanez took in
response to Parker’s motion for summary judgment—that Parker was not
handling Joker at the time of the incident. An appellant cannot change
positions on appeal to obtain reversal. See Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (refusing to consider a theory
raised by the plaintiff for the first time on appeal); see also Felton v. Fayette
Sch. Dist., 875 F.2d 191, 192 (8th Cir. 1989) (prohibiting appellant from
disputing a fact conceded in his statement of facts). Accordingly, we decline
to credit this account. We thus affirm the district court’s grant of summary
judgment to Parker on Montanez’s excessive-force dog bite claim. 3
3

The district court did not err in granting summary judgment to the City of Orlando. To
establish the City’s liability under 42 U.S.C. § 1983, Montanez had to show that the city’s
“official policy” caused a constitutional violation. See Monell v. N.Y. City Dep’t of Soc. Servs.,
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IV.

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CONCLUSION

For all of the foregoing reasons, the district court’s grant of summary
judgment is affirmed.
AFFIRMED.

436 U.S. 658, 694 (1978). Because we conclude that no violation of Montanez’s constitutional
rights occurred, we need not consider whether the City had an official policy.
The district court also granted summary judgment to Joker. On appeal, Montantez has
abandoned any argument that Joker was not entitled to summary judgment. See Stansell v.
Revolutionary Armed Forces of Colom., 771 F.3d 713, 744 (11th Cir. 2014) (holding that a party
waives an argument by failing to raise it on appeal). In any event, Joker cannot be liable, both
because no constitutional violation occurred and because a dog is not a “person” within the
meaning of § 1983. See 42 U.S.C. § 1983.
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