Keith Avery v. Demarcus Davis, et al

Filing

Opinion issued by court as to Appellants Birmingham, City of and Demarcus Davis. Decision: Other. Opinion type: Non-Published. Opinion method: Per Curiam. Reverse, Affirm, Dismiss and Remand. 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[DO NOT PUBLISH]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. 16-16937
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-02301-LSC

KEITH AVERY,
Plaintiff-Appellee,
versus

DEMARCUS DAVIS,
BPD,
BIRMINGHAM, CITY OF, THE,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 6, 2017)
Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.

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PER CURIAM:
Keith Avery claims that Demarcus Davis, an officer with the Birmingham
Police Department, punched him in the face without warning or provocation.
Rejecting Davis’ assertion of qualified immunity and state law immunities, the
district court denied his motion for summary judgment. This is Davis’ appeal.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
“We relate the facts — as we must at this stage of the litigation — in the
light most favorable to [Avery].” Goodman v. Kimbrough, 718 F.3d 1325, 1329
(11th Cir. 2013). Avery attended a party at a Birmingham YMCA that became
violent. After the police came and shut down the party, Avery and two of his
friends went across the street to a Walmart parking lot to wait for someone to pick
them up. Meanwhile, other partygoers — not including Avery or his two friends
— went inside the Walmart and started knocking over shelves and stealing
merchandise, and Walmart asked the police to help clear the store. Davis was one
of the officers who responded to that request.
After helping clear the store, Davis returned to his police car in the Walmart
parking lot, which had its flashing blue lights illuminated. While there, Davis saw
a group of unknown young men approach Avery’s group and attack one of Avery’s
friends. Moments later gunshots rang out from an unknown location, and Avery’s
group and the assailants scattered. In the chaos that followed, Avery happened to

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be running behind one of the assailants. Although he was simply trying to escape
the gunfire, Avery admits that it could have appeared to Davis that he was chasing
the assailant to continue the fight.
Avery and the assailant ran in Davis’ direction. As they approached, Davis,
wearing his police uniform, attempted to get between them. Avery was in the
midst of an adrenaline rush and did not notice Davis’ presence until Davis leveled
him with a punch to the jaw. The punch briefly knocked Avery out. When Avery
regained consciousness, he attempted to stand up but Davis took him back to the
ground, put his knee on Avery’s back, and handcuffed Avery. Avery was arrested
for committing an “affray,” which is a criminal misdemeanor for fighting in public.
Avery later needed surgery to repair his jaw. 1
Avery filed a complaint, asserting claims under 42 U.S.C. § 1983 for
violations of his federal constitutional rights and asserting numerous state law
claims. The district court denied Davis’ motion for summary judgment,
concluding that qualified immunity did not shield him from the § 1983 claims and
state law immunities did not shield him from the state law claims. 2

1

Davis disputes this version of events, but, as mentioned, at this stage we are required to
“review[ ] the facts in the light most favorable to [Avery] and resolve all factual disputes in [his]
favor.” Gas Kwick, Inc. v. United Pac. Ins. Co., 58 F.3d 1536, 1538 (11th Cir. 1995).
2

Avery also asserted a § 1983 claim and state law claims against the City of
Birmingham. The district court granted the City’s motion for summary judgment, and the claims
against the City are not part of this appeal.

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II. APPELLATE JURISDICTION
Before we reach the merits, we must ensure that we have jurisdiction to hear
this appeal. Winfrey v. Sch. Bd., 59 F.3d 155, 157 (11th Cir. 1995). There is no
doubt that we have jurisdiction to consider an interlocutory appeal from a district
court order denying qualified immunity. Id. at 158. We also have jurisdiction to
entertain an interlocutory appeal from “an order denying state official . . .
immunity . . . if state law defines the immunity at issue to provide immunity from
suit rather than just a defense to liability.” Parker v. Am. Traffic Sols., Inc., 835
F.3d 1363, 1367 (11th Cir. 2016).
In challenging the district court’s denial of summary judgment on the state
law claims, Davis asserts two types of state law official immunity. The first,
“state-agent immunity,” is immunity from suit under Alabama law. See Ex parte
Wood, 852 So. 2d 705, 709 (Ala. 2002). By contrast, Alabama courts discuss the
second type, immunity under section 13A-3-27 of the Alabama Code, as a defense
to liability. See Walker v. City of Huntsville, 62 So. 3d 474, 494 (Ala. 2010)
(describing section 13A-3-27 immunity as the principle that “[a] police officer . . .
may be held liable only if more force is used than is necessary to effectuate the
arrest”); Franklin v. City of Huntsville, 670 So. 2d 848, 852 (Ala. 1995) (same);
Campbell v. Sims, 686 So. 2d 1227, 1329 (Ala. Civ. App. 1996) (same). They

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have never held that it provides immunity from suit. See, e.g., Walker, 62 So. 3d
at 494.
As a result, we have jurisdiction to consider the § 1983 qualified immunity
issue and to consider the state-agent immunity issue. See Parker, 835 F.3d at 1367.
But we do not have jurisdiction to consider the section 13A-3-27 immunity issue,
so we dismiss that portion of Davis’ appeal. See id. at 1367–68.
III. THE MERITS
A. Qualified Immunity
Davis contends that the district court’s qualified immunity determination
was erroneous. “We review de novo a district court’s denial of summary judgment
based on qualified immunity, applying the same legal standards that governed the
district court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir.
2013). “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.” Brown v. City of Huntsville, 608 F.3d 724, 733 (11th Cir. 2010)
(quotation marks omitted).

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The qualified immunity inquiry comprises two questions.3 Id. at 734. One
is whether the defendant’s conduct violated the plaintiff’s constitutional rights. Id.
The other is whether at the time of the incident the constitutional right that was
allegedly violated was “clearly established” by a decision of the Supreme Court,
this Court, or the highest court of the state in which the conduct occurred. See
Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012); Brown, 608 F.3d at 734.
“Both elements of this test must be present for an official to lose qualified
immunity, and this two-pronged analysis may be done in whatever order is deemed
most appropriate for the case.” Brown, 608 F.3d at 734.
1. False Arrest
Avery argues that Davis arrested him without probable cause, in violation of
the Fourth Amendment. “Probable cause exists where the facts within the
collective knowledge of law enforcement officials, derived from reasonably
trustworthy information, are sufficient to cause a person of reasonable caution to
believe that a criminal offense has been or is being committed.” Id. But to be
entitled to qualified immunity, an arresting officer need only have “arguable”
probable cause, which exists where “reasonable officers in the same circumstances

3

“Prior to applying the two-part test, the initial inquiry in a qualified immunity case is
whether the public official proves that he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.” Brown, 608 F.3d at 734 n.14 (quotation
marks omitted). There is no question that Davis was acting within the scope of his discretionary
authority at the time of the events at issue here.

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and possessing the same knowledge as the [defendant] could have believed that
probable cause existed to arrest [p]laintiff,” whether or not there was actually
probable cause to do so. Id. at 734–35.
Determining whether an officer had arguable probable cause to arrest
someone requires us to look to “the elements of the alleged crime and the operative
fact pattern.” Id. at 735. Avery was arrested for committing an affray. The
Birmingham City Code section that defines “affray” provides that:
It shall be unlawful for two (2) or more persons to engage in any fight
or use any blows or violence towards each other in any public place to
the disturbance of others.
Birmingham, Ala., Code § 11-6-9(a).
According to Avery’s own account, before he was arrested there was a fight
in the Walmart parking lot and gunshots were fired. He was closely following
someone who had been on the other side of the fight, and he admitted that it could
have looked to Davis like he was trying to continue the fight. In light of those
facts, reasonable officers in Davis’ position could have believed that probable
cause existed to arrest Avery for an affray. See Brown, 608 F.3d at 734–75. As a
result, Davis is entitled to qualified immunity as to Avery’s § 1983 false arrest
claim.

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2. Excessive Force
Avery also argues that Davis violated his Fourth Amendment rights by using
excessive force in effecting the arrest. “The Fourth Amendment’s guarantee
against unreasonable searches and seizures includes the right to be free from the
use of excessive force in the course of an arrest.” Saunders v. Duke, 766 F.3d
1262, 1266–67 (11th Cir. 2014). To decide whether a use of force was excessive,
courts determine whether it was “objectively reasonable,” as judged “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. at 1267. But even if an officer’s use of force was excessive, he
is shielded by qualified immunity “if an objectively reasonable officer in the same
situation could have believed the use of force was not excessive.” Brown, 608
F.3d at 738; see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010)
(explaining that an officer is entitled to qualified immunity unless application of
the objective excessive force standard “would inevitably lead every reasonable
officer in [his] position to conclude the force was unlawful”).
Avery argues a reasonable officer could not have believed that punching him
was not excessive because our decision in Brown, which was issued two years
before the events at issue here, clearly established that “gratuitous use of force
when a criminal suspect is not resisting arrest constitutes excessive force.” 608
F.3d at 738. But “broad general proposition[s]” like that one are not enough to

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clearly establish the law; instead, the “question is whether the violative nature of
particular conduct [was] clearly established.” Mullenix v. Luna, 577 U.S. __, 136
S. Ct. 305, 308 (2015).
Our Brown decision and other “gratuitous use of force” cases could not have
established for every reasonable officer that Davis’ particular conduct was
unconstitutional because those cases all involved a distinct factual context — a
suspect who was complying with the officer’s orders. See Brown, 608 F.3d at 739
(noting that the plaintiff “had submitted to [the defendant’s] authority, was getting
out of the car to be arrested, and posed no threat” when the defendant pepper
sprayed her and then “slam[med] her to the pavement”); Hadley v. Gutierrez, 526
F.3d 1324, 1330 (11th Cir. 2008) (denying qualified immunity to an officer who
punched the plaintiff while the plaintiff “was handcuffed and not struggling or
resisting”); Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (“[A] reasonable
officer could not possibly have believed that he . . . had the lawful authority to take
[the plaintiff] to the back of her car and slam her head against the trunk after she
was arrested, handcuffed, and completely secured, and after any danger to the
arresting officer as well as any risk of flight had passed.”). In contrast to those
cases, Avery was not compliant as he ran through the parking lot. Brown and the
other cited cases have no relevance to the situation that confronted Davis. See
Mullenix, 136 S. Ct. at 308 (“[S]pecificity is especially important in the Fourth

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Amendment context, where the Court has recognized that [i]t is sometimes
difficult for an officer to determine how the relevant legal doctrine, here excessive
force, will apply to the factual situation the officer confronts.”) (quotation marks
omitted). 4
Viewing the evidence in the light most favorable to Avery, Davis saw a
brawl break out between two groups of young men. He saw one of them, Avery,
chasing someone from the other group, apparently in an effort to continue the
brawl. Davis saw Avery continuing to run full speed in his direction despite the
fact that his police car’s blue lights were illuminated, and despite the fact that he
was wearing a police uniform. “An objectively reasonable officer” in Davis’
situation, confronted with that set of facts, “could have believed the use of force
was not excessive.” See Brown, 608 F.3d at 738. As a result, the district court
erred in denying Davis qualified immunity as to the excessive force claim. 5
4

Davis’ actions after arresting Avery, such as bringing Avery back to the ground and
holding Avery down with his knee, were justified because Avery admits that he was attempting
to stand up while being arrested. Those actions were not excessive force. See, e.g., Zivojinovich
v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008) (holding that “using an uncomfortable hold” on
“an uncooperative and potentially belligerent suspect is not unreasonable”). To the extent that
Avery argues otherwise, his argument is meritless.
5

The district court’s order stated that “a jury could find that every reasonable officer in
Officer Davis’s position would conclude that the force was unlawful” and therefore excessive.
Doc. 23 at 9. That reasoning conflates the excessive force and qualified immunity issues and
seems to assume that the jury is to decide the qualified immunity issue. The law is clear that
whether a defendant is entitled to qualified immunity is a question of law for the court, not a
matter for the jury. See, e.g., Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008) (“Whether
qualified immunity shields an official from suit is a question of law.”); Johnson v. Breeden, 280
F.3d 1308, 1318 (11th Cir. 2002) (“When the case goes to trial, the jury itself decides the issues
of historical fact that are determinative of the qualified immunity defense, but the jury does not
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B. State-Agent Immunity
In addition, Davis contends that the district court should have dismissed
Avery’s state law claims because he is entitled to state-agent immunity under
Alabama law. We “review de novo the denial of official immunity.” Bailey v.
Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). State-agent immunity provides that
officers are immune from civil suits for acts “arising from the enforcement of the
criminal laws of [Alabama], including . . . arresting or attempting to arrest
persons.” Morton v. Kirkwood, 707 F.3d 1276, 1285 (11th Cir. 2013) (quoting Ex
parte Butts, 775 So. 2d 173, 178 (Ala. 2000)). Davis was in the course of arresting
Avery when he punched him, so ordinarily that immunity would apply. However,
“a police officer loses [state-agent] immunity when he ‘acts willfully, maliciously,
fraudulently, in bad faith, beyond his . . . authority, or under a mistaken
interpretation of the law.’” Id. (quoting Butts, 775 So. 2d at 178).
As we have explained, the excessive force qualified immunity inquiry is an
objective inquiry based on what a reasonable officer “could have believed.”
Brown, 608 F.3d at 738. By contrast, determining whether an officer’s use of
force was willful for state-agent immunity purposes is a subjective inquiry that

apply the law relating to qualified immunity to those historical facts it finds; that is the court’s
duty.”); Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992) (“The law is now clear . . . that
the defense of qualified immunity should be decided by the court, and should not be submitted
for decision by the jury.”); Ansley v. Heinrich, 925 F.2d 1339, 1341 (11th Cir. 1991) (“[T]he
availability of a qualified immunity defense is a question of law for the court to determine.”).

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requires assessing the officer’s state of mind at the moment of the use of force.
See Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (“[W]anton or willful misconduct
is characterized as such by the state of mind with which the act or omission is done
or omitted.”). Alabama courts have explained that for a defendant’s actions to rise
to the level of willfulness, “[t]here must be a knowledge of the danger together
with a design or purpose to inflict injury”; that is, “it must be shown that [the act]
was intentionally and designedly done.” Sutherland v. Roth, 407 So. 2d 139, 140
(Ala. Civ. App. 1981); see also Graham v. State, 210 So. 3d 1148, 1156 (Ala.
Crim. App. 2016) (“‘Willful’ has been defined as ‘[p]roceeding from a conscious
motion of the will.’”) (quoting Phelps v. State, 439 So. 2d 727, 733 (Ala. Crim.
App. 1983)).
The facts are disputed, but based on the record, a reasonable jury could find
that Davis stepped into Avery’s path as he was running and punched him in the
face without any warning. It could also find that before striking Avery, Davis did
not attempt to avoid using force, for example by telling Avery that he was under
arrest, and that he did not attempt to use some lesser amount of force. If the jury
makes those factual findings, Davis’ use of excessive force was “willful[ ]” under
Alabama law because he “intentionally and designedly” inflicted injury on Avery.
See Sutherland, 407 So. 2d at 140. That a reasonable jury could find facts that
support a conclusion that Davis acted with a “willful[ ]” subjective intent

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precludes, at this stage, Alabama state-agent immunity from Avery’s state law
claims of excessive force. At the same time, that determination has no effect on
our federal qualified immunity analysis because qualified immunity is determined
objectively and “[t]he subjective intent of government actor defendants plays no
part” in the analysis. Koch v. Rugg, 221 F.3d 1283, 1295 (11th Cir. 2000). For
those reasons, Davis is entitled to qualified immunity from the federal claims, but
he is not entitled to state-agent immunity from the state law excessive force claims
at this time. See Morton, 707 F.3d at 1285.6
IV. CONCLUSION
We REVERSE the part of the district court’s judgment denying Davis
qualified immunity with respect to Avery’s § 1983 claims. We AFFIRM the part
of the judgment denying Davis state-agent immunity with respect to Avery’s state
law claims. We DISMISS the appeal with respect to the section 13A-3-27
immunity issue. And we REMAND the case to the district court for further
proceedings consistent with this opinion.

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The district court did not discuss whether state-agent immunity shielded Davis from
Avery’s claim of state law false arrest. That is understandable because Avery did not clearly
argue that state-agent immunity did not apply to that claim. The only arguments that could be
construed as related to his state law false arrest claim were vague references to “probable cause”
and “arguable probable cause” under the heading “State Law Claims.” To the extent that Avery
still intends to pursue his state law false arrest claim, it is precluded by state-agent immunity.
Alabama courts “appl[y] the same ‘arguable probable cause’ standard utilized in this Court’s
federal qualified immunity cases” to “determin[e] whether a city police officer receives stateagent immunity” in a claim of false arrest. See Brown, 608 F.3d at 741. And as we have already
discussed, there was arguable probable cause for Davis to arrest Avery.

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