Thomas McCroden v. Joel Bressett, et al

Filing

Opinion issued by court as to Appellants Joel V. Bressett and Dennis D. Painter. 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.

Case: 16-10863

Date Filed: 09/01/2016

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10863
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-01139-GKS-KRS

THOMAS MCCRODEN,
Plaintiff - Appellee,
versus

JOEL V. BRESSETT,
DENNIS D. PAINTER,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 1, 2016)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 16-10863

Date Filed: 09/01/2016

Page: 2 of 4

Defendants-Appellants Joel Bressett and Dennis Painter (the Officers)
appeal the district court’s denial of their joint motion for summary judgment on the
basis of qualified immunity under federal law and individual statutory immunity
under section 768.28(9) of the Florida Statutes. This case involves the Officers’
use of an “arm-bar takedown” maneuver on Plaintiff-Appellee Thomas McCroden,
resulting in the dislocation and fracture of his left hip.
We have jurisdiction to review the core qualified and statutory immunity
issues presented by this interlocutory appeal. See Plumhoff v. Rickard, 572 U.S.
___, ___, 134 S. Ct. 2012, 2018–20 (2014); Griesel v. Hamlin, 963 F.2d 338, 341
(11th Cir. 1992) (per curiam); see also Keck v. Eminisor, 104 So. 3d 359, 366 (Fla.
2012) (per curiam).
The issue on appeal is whether the evidence, taken in the light most
favorable to McCroden, presents genuine issues of fact as to whether the force the
Officers employed was unconstitutionally excessive and whether it was committed
in bad faith or with malicious purpose or in a wanton and willful manner—as
McCroden contends—or reasonable under the circumstances and in good faith, as
the Officers contend. The district court concluded there were genuine issues of
fact that precluded an entry of summary judgment on either the federal or state law
claims.

2

Case: 16-10863

Date Filed: 09/01/2016

Page: 3 of 4

We have discretion at the interlocutory review stage—though not for the
purpose of any later appeal—to accept the district court’s findings of fact. See
Cottrell v. Caldwell, 85 F.3d 1480, 1486 & n.3 (11th Cir. 1996) (“In exercising our
interlocutory review jurisdiction in qualified immunity cases, we are not required
to make our own determination of the facts for summary judgment purposes; we
have discretion to accept the district court’s findings, if they are adequate.”). We
exercise that discretion here and accept as true the district court’s determination
that sufficient evidence exists to permit a jury to find that the arm-bar takedown
was an objectively unreasonable use of force in relation to McCroden’s nonaggressive, compliant behavior. We also accept the district court’s finding that the
Officers may have acted in bad faith, with malicious purpose, or in a wanton and
willful manner when they tackled McCroden, given the extent of the force applied
and McCroden’s resultant injuries.
Under those assumed facts, summary judgment was properly denied because
it is clearly established law in this circuit that “a police officer violates the Fourth
Amendment, and is denied qualified immunity, if he or she uses gratuitous and
excessive force against a suspect who is under control, not resisting, and obeying
commands.” Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014).
Additionally, the district court properly denied summary judgment on the state law
battery claim because, under Florida law, an officer is not entitled to statutory
3

Case: 16-10863

Date Filed: 09/01/2016

Page: 4 of 4

immunity if he “acted in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property.” Fla.
Stat. § 768.28(9)(a). Accordingly, the district court properly denied the Officers
qualified and statutory immunity at the summary judgment stage.
AFFIRMED.

4