FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 7, 2010

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12965

________________________

D. C. Docket No. 07-01013-CV-5-VEH

JOI BROWN,

SHAUN SONIA,

Plaintiffs-Appellants,

versus

CITY OF HUNTSVILLE, ALABAMA,

GERALD L. NORRIS,

J. ANDERSON,

JIMMY ANDERSON,

Defendants-Appellees,

CHRIS HINES,

Defendant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(June 7, 2010)
Before HULL, WILSON and FARRIS, Circuit Judges.

*

HULL, Circuit Judge:

In this 42 U.S.C. § 1983 action, Plaintiffs-Appellants Joi Brown and Shaun

Sonia bring federal and state claims for false arrest and excessive force. Plaintiffs

appeal the district court’s grant of summary judgment to the Defendants-Appellees

– the City of Huntsville, Alabama (the “City”), and two police officers – on the

basis of qualified immunity and state-law immunity. After review and oral

argument, we affirm in part and reverse in part.

I. FACTUAL BACKGROUND

At this juncture, we outline the Plaintiffs’ version of the events.

1

A. Brown’s Arrest

On June 2, 2005, at around 8:30 p.m., Plaintiff Shaun Sonia arrived in his

SUV at a Wal-Mart in Huntsville, Alabama. Several other passengers were in the

SUV, including Travis Jones. Plaintiff Sonia parked near the entrance of the

Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by *

designation.

We review a grant of summary judgment de novo, drawing all reasonable inferences in 1

favor of the non-moving party. Anderson v. Cagle’s, Inc., 488 F.3d 945, 951 (11th Cir. 2007). 

Summary judgment is appropriate when “there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

2
Wal-Mart. Sonia and his passengers went into the Wal-Mart and remained inside

the Wal-Mart for forty to fifty minutes.

Around 9:30 p.m., Plaintiff Brown arrived at the Wal-Mart to meet Travis

Jones. Brown was driving a car actually owned by Jones. Brown admits she was

playing “loud” music in the car as she arrived. Brown stopped her car behind

2

Plaintiff Sonia’s SUV, rolled her driver’s side window halfway down, and spoke to

Sonia and Jones, who were standing next to Brown’s car. Brown testified that she

was playing the music loud enough for it to be heard outside the car, but not loud

enough to prevent conversation from the driver’s side window to individuals

outside the vehicle.

Brown testified that her music was “loud” and that she rolled her window halfway down 2

after she parked in the Wal-Mart parking lot:

Q: Not what your volume is, but what’s the volume of

your music?

[Brown]: Yeah, that’s what I’m saying, we’re talking

to where, like, we understand what each other is

talking about, so I don’t know, like, what the

volume would be to anyone else.

Q: To use your word, I believe you described it as your

music was loud in the car; would that be accurate?

[Brown]: Yes.

Q: Okay.

[Brown]: Yes.

Q: Your music was loud?

[Brown]: Yes.

Q: And your window is rolled down?

[Brown]: It’s halfway down, just my window.

Q: The driver’s side window?

[Brown]: Yes correct.

3
Around this time, members of the Madison-Morgan County Strategic

Counterdrug Team (the “STAC Team”), including Defendants Sergeant Norris and

Investigator Anderson, were conducting a drug bust resulting from an undercover

drug buy in the Wal-Mart parking lot. The STAC Team was approximately 5-6

parking spots away from Brown’s vehicle and could hear music coming from her

car.

After speaking for a minute or two with Plaintiff Sonia and Travis Jones,

Plaintiff Brown was told by a law enforcement officer to turn her music down. It

is not clear which officer ordered Brown to turn down her music or how many

times he made the request (witness accounts varied from one to three). Brown

3

turned the music off completely. Defendant Norris approached Brown in her

4

vehicle and informed her she could go to jail for playing music too loud. Brown

replied, “I know that you can give me a ticket for this.”

According to Plaintiff Brown, Norris then began yelling and acting

Brown originally stated that she was told to turn her music down only once. Brown later

3

stated that it was “possible,” but not her recollection, that someone (she was not entirely sure

who) could have told her to turn her music down more than once. (“Q: Do you think it’s

possible, though, that he could have told you before that, that may have been the second or third

time he told you, is that possible? [Brown]: (Shaking Head). Q: Not possible? [Brown]:

(Shaking Head). Q: No? [Brown]: I don’t think so, but it could be possible, but I personally

don’t think, no. Q: If it was done, you didn’t hear it? [Brown]: Correct.”).

Defendant Sergeant Norris stated that he could not recall if or when Brown turned the 4

music in her car off or down.

4
“unprofessional[ly]” towards Brown. Brown “panicked” and started an audio

recording of Norris’s actions with her mobile phone. Brown informed Norris that

she was recording him, stating, “[S]ir, I’m not recording your face, I’m recording

the way you’re talking to me, I’m a female, you don’t have to talk to me like that.”

Defendant Norris gave Plaintiff Brown clear instructions at least twice to

step out of the vehicle, stating she was under arrest and should “get the fuck out the

car.” Brown initially had some trouble unlocking her car’s doors because in a

panic she turned off the car’s engine while the car’s automatic transmission was in

“drive” with the doors locked, and she was unable to unlock the door while the car

was turned off and still in drive. Brown testified:

Q: How many times did [Sergeant Norris] tell you to

get out of the car?

[Brown]: He told me to get the F out the vehicle twice,

to my knowledge, and he said it like that, get the fuck

out, get the fuck out, you know, back to back. And, I’m,

like, you know, okay, and I tried, but the door – his –

Travis’ car, when you put it [in] drive, it automatically

locks the doors, and once it’s still in drive, you can’t

mash that button to unlock it. It won’t unlock.

Q: He tells you to get out of the car?

[Brown]: Uh-huh (Nodding head).

Q: Do you immediately get out?

[Brown]: I can’t.

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Q: Do you immediately get out of the car?

[Brown]: I can’t.

At some point during the time in which Plaintiff Brown was attempting to

get out of the car, Defendant Norris reached into the car window to retrieve

Brown’s mobile phone, including reaching between Brown’s legs, where she had

placed the phone. At around the same time, Travis Jones tried to help Brown get

out of his vehicle. Norris told Jones that, “if he c[ame] any further, he w[ould]

arrest him.” Plaintiff Brown asked Plaintiff Sonia to “use [his] phone and record”

Defendant Norris’s actions.

Brown also told Norris that, “if you’ll let me out of the vehicle – if you’ll let

me turn the car on, put it in park, I will get out of the vehicle.” According to

Brown, Norris then “paused for a minute.” Brown eventually turned on the car’s

electrical system, put the car in park, and opened the door. In her testimony,

5

Brown maintains that she did not restart the car’s engine, but merely turned the key

to “on” to power up the car’s electronics.

Defendant Norris stated that during the time in which Brown was still in the vehicle, it 5

appeared to him that she was locking the car door as he tried to open it and was shifting the car

into drive. It also appeared to Defendant Norris that Brown was trying to drive off. Norris could

not recall, however, if the vehicle actually moved. Defendant Anderson, who observed these

events from a close distance, testified that he did not see anything to indicate that Brown was

attempting to flee. Anderson testified: “Q. Did you see anything to you that indicated that Ms.

Brown was attempting to flee? [Anderson]. No, sir, I can’t say that I did.”

6
Plaintiff Brown put her foot and arm outside the car door, trying to get out of

the vehicle. Defendant Norris then “slam[med] the door back” and yelled,

6

“[S]he’s trying to run, she’s trying to run[.]” Brown screamed, “[N]o, I’m not, no,

I’m not.”

Defendant Norris then sprayed Plaintiff Brown with pepper spray in her

mouth, eyes, and face. It is unclear how long Norris used pepper spray; accounts

range from a half second to three seconds. Brown testified that Norris sprayed her

with pepper spray as he was pushing her back in to the car and yelling that she was

trying to run. Norris threw Brown out of the vehicle while holding her arm and

7

Brown testified: 6

Q. [] Was there a point in time when [Norris] took out his pepperspray and sprayed you?

[Brown]. Yes, sir.

Q. When did that happen? Where were you, and where was he?

[Brown]. He was outside the vehicle, but it was after I had turned

the car on, put it in park, and my foot was out the door and my arm

was out the door. I was getting out of the vehicle, and that’s when

he started to scream, she’s trying to run, and he shut the door on

my leg, and I scooted it – you know, I moved it back, and he

maced me at the same time.

. . . .

I was maced after the car was in park and after I opened the door.

[Norris] shut the door back.

Defendant Norris described a version of events generally at odds with Brown’s version. 7

Norris testified that he told Brown at least three times to turn her music down and, after the last

time, told her that he would arrest her if she did not turn the music down. Norris could not recall

if Brown ever lowered the volume of her music or turned it off completely. Norris originally

decided to arrest Brown for violation of a noise ordinance. Upon being informed that she was

under arrest, Brown stated, “No, I'm not under arrest,” and said she would leave. Norris saw

7
hair and slammed her onto the ground. Defendant Anderson, who was nearby

during Norris’s exchange with Brown, assisted Norris in removing Brown from the

car by grabbing one of Brown’s arms, pulling her out of the car, and placing her

face-down on the ground. Norris and Anderson handcuffed Brown’s hands behind

her back while she was on the ground.

Plaintiff Brown’s phone was broken during this scuffle. Sonia and Brown

both testified that Norris broke Brown’s phone. Defendant Anderson testified that

Brown held the phone in her hands under her body as she was placed face-down on

the ground. Defendant Norris grabbed at the phone as he was trying to place

handcuffs on Brown, and the phone snapped into two pieces. Sonia testified that

he saw Norris take Brown’s broken phone, put it in a bag with Sonia’s phone, and

place the bag on top of a car. According to Brown, an audio recording of her

exchanges with Norris was saved to her cell phone. Brown was later told by

someone in the police department that her phone was being held in evidence. The

phone, including its recordings, was not returned to her.

Brown sustained burns to her face from the pepper spray and scrapes to her

Brown lock her car doors, place the car into drive, and make preparations to drive away. Norris

stated that Brown refused to get out of the car. Norris then told Plaintiff Brown that he would

use pepper spray on her if she did not comply. Norris sprayed pepper spray at Brown’s

eyebrows. Norris also testified that he did not attempt to take Brown’s mobile phone and did not

know she was recording him.

8
knee and elbows. Brown did not seek medical treatment for her injuries.

Defendant Norris arrested Plaintiff Brown for disorderly conduct and

resisting arrest and transported her to jail. Brown was found guilty in the District

Court of Madison County, Alabama of resisting arrest but not guilty of disorderly

conduct. Brown appealed her conviction to the Circuit Court of Madison County.

On November 29, 2006, while on appeal, state prosecutors nolle prossed Brown’s

resisting arrest charge.

B. Sonia’s Arrest

Plaintiff Sonia also was arrested and claims his arrest violated his

constitutional rights. Sonia walked out of Wal-Mart around 9:10 p.m. and noticed

the STAC team conducting an undercover drug bust. Police Investigator Hudson,

the agent in charge of the undercover drug buy, believed that the arrested drug

suspects’ supplier would be nearby. Sonia was standing near Brown’s car when

Defendant Norris told Brown to get out of the car.

Brown instructed Plaintiff Sonia to record what Defendant Norris was doing

to her. Sonia complied by recording three 10-second video clips on his mobile

phone. Investigator Hudson approached Sonia and requested the phone. Sonia

told Hudson that he could not have his phone. Hudson then told Sonia he was

under arrest and handcuffed him. Sonia asked why he was under arrest, and

9
Hudson replied that Sonia had yelled in the parking lot, which Sonia denies.

8

Hudson took Sonia’s phone during the arrest.

Sonia does not dispute that Investigator Hudson was the one who told Sonia

he was under arrest and that Hudson handcuffed Sonia. Travis Jones testified that,

prior to Sonia’s arrest, he saw Norris point at Sonia and say, “Arrest him, too.”

Sonia heard Norris state that both Sonia and Brown were “going to jail[.]” Sonia

also testified, however, that he did not have any information suggesting that Norris

knew at the time of the arrest that Sonia was being arrested.

Defendants Norris and Anderson both deny involvement in the decision to

arrest Plaintiff Sonia. Norris contends he was focused on arresting Brown and was

unaware of what was said between Sonia and Investigator Hudson. Defendant

9

Anderson testified that he was unaware of what happened between Sonia and

Sonia testified: “[Investigator Hudson] states to me, well, you yelled in Wal-Mart 8

parking lot. I asked him are you serious, and then he basically grabbed my hands and turned me

around and put a cuff on. And he couldn’t get my other arm around so he got another cuff I

believe and put it on.” With the exception of Hudson, the other witnesses who saw this incident

corroborate Sonia’s assertion that he did not yell. Defendant Anderson stated he could not

remember “Mr. Sonia yelling anything at Sgt. Norris . . . or at anybody else.” Non-defendant

Lieutenant Jimmy Winn indicated that “during the time [he] was looking at [Investigator Hudson

and Sonia],” he never heard any yelling.

Sergeant Norris testified that he “did not see Mr. Sonia once [he] started dealing with 9

Ms. Brown,” and while he “recall[ed] seeing Investigator Hudson, and . . . Mr. Sonia,” did not

know where they were.

10
Investigator Hudson. Neither Defendants Norris nor Anderson were supervisors

10

at the time of Sonia’s arrest. The record evidence does not reflect that Norris or

Anderson had authority to direct the actions of Investigator Hudson, who made the

arrest of Sonia.

Plaintiff Sonia claims Norris, Anderson, or Hudson deleted video evidence

from his cell phone after it was taken during the arrest. Neither Defendants Norris

nor Anderson took Sonia’s cell phone from him at the scene; however, Sonia

claims he witnessed Defendant Norris eventually obtain possession of his cell

phone. When Investigator Hudson returned Sonia’s cell phone to him the next day,

two of the three video clips that Sonia had recorded of Brown’s arrest were gone.

Sonia testified, “I don’t know who deleted it but I know when I got the phone back

I only had one video.” Investigator Hudson denies deleting, or even knowing of,

any video clips.

Plaintiff Sonia was arrested and transported to jail. Investigator Hudson was

the only officer who physically arrested and handcuffed Sonia at the Walmart

parking lot. Once at the jail, however, Defendant Norris was the only officer

Anderson swore in an affidavit that he “did not arrest Sonia, participate in Sonia’s 10

arrest, or have any involvement in the decision to arrest Sonia.” Anderson “did not observe

Sonia’s arrest,” “was not even aware that Sonia was being arrested because at the time of his

arrest [he] was assisting Sergeant Gerry Norris with the arrest of plaintiff Joi Brown,” and was

“not the officer who developed probable cause to arrest Sonia.”

11
present during Sonia’s booking, and he completed the paperwork. Norris “initially

[] wrote harassment” as the charge against Sonia but changed the charge to

“disorderly conduct.” Both Investigator Hudson and Norris are listed as arresting

officers on the Alabama Uniform Arrest Report (the “Report”) relating to Sonia’s

arrest. Investigator Hudson signed the criminal complaint against Sonia and was

listed as the complainant on the warrant for Sonia’s arrest.

The disorderly conduct charge against Sonia was nolle prossed two months

after Sonia’s arrest.

C. District Court Proceedings

On May 31, 2007, Plaintiffs Brown and Sonia filed this § 1983 action

against Defendants Norris and Anderson, individually, and against the City.

Plaintiffs did not sue Investigator Hudson.

11

Plaintiffs’ current amended complaint alleges four counts: (1) Brown’s and

Sonia’s § 1983 claims for false arrest against Norris and Anderson; (2) Brown’s

12

and Sonia’s state-law claims for false arrest/false imprisonment against Norris,

Anderson, and the City; (3) Brown’s § 1983 claims for excessive force against

Plaintiffs initially sued City police officer Chris Hines, alleging he was the officer who 11

arrested Sonia. Hines later was dismissed, and Plaintiffs do not appeal that dismissal.

Title 42, section 1983 provides individuals with a federal remedy for the deprivation of 12

rights, privileges, or immunities protected by the Constitution or the laws of the United States

that are committed under color of state law. Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir.

1990).

12
Norris and Anderson; and (4) Brown’s state-law claim for assault and

battery/excessive force against Norris, Anderson, and the City.

13

Defendants moved for summary judgment on the basis of qualified

immunity for Plaintiffs’ § 1983 claims and state-law immunity for Plaintiffs’ statelaw claims. On May 14, 2009, the district court granted the Defendants’ summary

judgment motions. Brown v. City of Huntsville, No. 07-1013, slip. op. (N.D. Ala.

May 14, 2009). Plaintiffs timely appealed.

II. DISCUSSION

We first outline the qualified immunity defense to § 1983 claims, then

address each Plaintiff’s § 1983 claims, and close by considering the Defendants’

immunity from the state-law claims.

A. Qualified Immunity

“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, 102 S. Ct. 2727, 2738 (1982)). A law

Plaintiffs Brown and Sonia conceded to the district court that summary judgment was 13

appropriate to the City on their § 1983 claims for false arrest and excessive force. Plaintiffs did

not appeal the district court’s grant of summary judgment to the City on their § 1983 claims, so

that issue is not before us now. The only remaining claims against the City are state-law claims.

13
enforcement officer is entitled to qualified immunity if “an objectively reasonable

officer in the same situation could have believed that the force used was not

excessive.” Id. Qualified immunity from suit is intended to “allow government

officials to carry out their discretionary duties without the fear of personal liability

or harassing litigation, protecting from suit all but the plainly incompetent or one

who is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002) (internal quotation marks and citations omitted).

Courts utilize a two-part framework to evaluate qualified immunity claims.

14

One inquiry in a qualified immunity analysis is whether the plaintiff’s allegations,

if true, establish a constitutional violation. Hope v. Pelzer, 536 U.S. 730, 736, 122

S. Ct. 2508, 2513 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.

2151, 2156 (2001)). If the facts, construed as they must be in this summary

judgment appeal in the light most favorable to the plaintiff, show that a

constitutional right has been violated, another inquiry is whether the right violated

was “clearly established.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. Both

elements of this test must be present for an official to lose qualified immunity, and

Prior to applying the two-part test, the initial inquiry in a qualified immunity case is 14

whether the public official proves “that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Lee, 284 F.3d at 1194 (internal quotation

marks omitted). The parties in this case do not contest that Norris and Anderson were acting

within the scope of their discretionary authority as law enforcement officers at the time of

Brown’s and Sonia’s arrests, so we proceed to consider whether qualified immunity is available

as a defense.

14
this two-pronged analysis may be done in whatever order is deemed most

appropriate for the case. Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 821

(2009).

B. Brown’s § 1983 False Arrest Claims

Plaintiff Brown argues Norris’s arrest of her was not supported with

arguable probable cause. The district court disagreed and granted qualified

immunity to Norris for Brown’s arrest. We affirm.

An arrest without a warrant and lacking probable cause violates the

Constitution and can underpin a § 1983 claim, but the existence of probable cause

at the time of arrest is an absolute bar to a subsequent constitutional challenge to

the arrest. Case v. Eslinger, 555 F.3d 1317, 1326-27 (11th Cir. 2009); Kingsland

15

v. City of Miami, 382 F.3d 1220, 1226, 1232 (11th Cir. 2004); Ortega v. Christian,

85 F.3d 1521, 1525 (11th Cir. 1996). 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. Madiwale v.

The Fourth Amendment, which is applicable to the States through the Fourteenth 15

Amendment, guarantees the right against unreasonable searches and seizures. Von Stein, 904

F.2d at 578; U.S. Const. amend. IV. An arrest without probable cause violates the Fourth

Amendment. Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). This cause of action

may be asserted through § 1983 as a claim for damages. Von Stein, 904 F.2d at 578.

15
Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997).

To receive qualified immunity, an officer need not have actual probable

cause, but only “arguable” probable cause. Holmes v. Kucynda, 321 F.3d 1069,

1079 (11th Cir. 2003); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).

Arguable probable cause exists where “reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have

believed that probable cause existed to arrest Plaintiff.” Kingsland, 382 F.3d at

1232 (quotation marks omitted); accord Redd v. City of Enterprise, 140 F.3d 1378,

1382 (11th Cir. 1998); Gold v. City of Miami, 121 F.3d 1442, 1445-46 (11th Cir.

1997) (disorderly conduct under Florida law); Von Stein v. Brescher, 904 F.2d

572, 579 (11th Cir. 1990). “Indeed, it is inevitable that law enforcement officials

will in some cases reasonably but mistakenly conclude that probable cause is

present, and in such cases those officials should not be held personally liable.” Von

Stein, 904 F.2d at 579 (quotation marks and ellipses omitted); see also Hunter v.

Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991) (“Even law enforcement

officials who reasonably but mistakenly conclude that probable cause is present are

entitled to immunity.” (quotation marks omitted)); Montoute, 114 F.3d at 184

(“Thus, the qualified immunity standard is broad enough to cover some ‘mistaken

judgment []’ . . . .”). The standard is an objective one and does not include an

16
inquiry in to the officer’s subjective intent or beliefs. Rushing v. Parker, 599 F.3d

1263, 1266 (11th Cir. 2010).

Whether an officer possesses probable cause or arguable probable cause

depends on the elements of the alleged crime and the operative fact pattern. Skop

v. City of Atlanta, 485 F.3d 1130, 1137-38 (11th Cir. 2007); Crosby v. Monroe

County, 394 F.3d 1328, 1333 (11th Cir. 2004). Showing arguable probable cause

does not, however, require proving every element of a crime. Scarbrough v.

Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001). If the arresting officer had

arguable probable cause to arrest for any offense, qualified immunity will apply.

Skop, 485 F.3d at 1138. Accordingly, we consider whether Defendant Sergeant

Norris had arguable probable cause to arrest Plaintiff Brown for disorderly

conduct.

16

Alabama law defines disorderly conduct as:

(a) A person commits the crime of disorderly conduct if,

with intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof, he:

. . .

(2) Makes unreasonable noise . . . .

We consider only the disorderly conduct charge because Sergeant Norris is entitled to 16

qualified immunity if he had arguable probable cause to arrest either for disorderly conduct or

for resisting arrest. We also note that the resisting arrest charge against Plaintiff Brown arose

from her conduct during the arrest for disorderly conduct, so the resisting arrest charge depends

in part on the validity of Plaintiff Brown’s arrest for disorderly conduct.

17
Ala. Code § 13A-11-7 (1975). Disorderly conduct is a Class C misdemeanor. Id.

17

§ 13A-11-7(b). Where the disorderly conduct charge is premised upon subsection

(a)(2)’s “unreasonable noise” proscription, we must consider whether the noise

made was unreasonable under the circumstances. Swann v. City of Huntsville, 455

So.2d 944, 950 (Ala. Crim. App. 1984); see also Ala. Code § 13A-11-7 cmt. ¶ 9

(“Unreasonable was chosen rather than loud as loud noises are sometimes

appropriate.”). The requisite intent may be inferred from the conduct of the

18

defendant. See Ala. Code § 13A-11-7 cmt. ¶ 3.

Defendant Norris had at least arguable probable cause to arrest Brown for

disorderly conduct. The facts, even when viewed in the light most favorable to

Brown, are that Brown arrived in the Wal-Mart parking lot in a vehicle playing

At oral argument, Defendants’ counsel confirmed that a disorderly conduct charge

17

requires a physical arrest – i.e., Sergeant Norris could not merely have issued Plaintiff Brown a

citation or ticket for disorderly conduct.

The intent element in § 13A-11-7(a)(2) saves the prohibition on “unreasonable noise” 18

from being an unconstitutional restriction on First Amendment free-speech rights. Sterling v.

State, 701 So.2d 71, 74 (Ala. Crim. App. 1997). Plaintiffs do not challenge the validity of §

13A-11-7(a)(2) on constitutional grounds. Rather, they claim the district court erred because,

“Brown’s conduct during Norris’ arresting of her was part of her legitimate resistance to the

unlawful arrest, was protected First Amended speech, cannot supply probable cause for the prior

decision to arrest, and was an attempt to communicate with the screaming Norris that is not a

violation of the disorderly conduct statute.” Contrary to Plaintiffs’ claims, the district court

based its arguable probable cause conclusion on the loud noise from Brown’s music, which is

not even arguably protected First Amendment speech. See Brown v. City of Huntsville, No. 07-

1013, slip. op. at 27 (N.D. Ala. May 14, 2009) (“Here, at a minimum, Defendants Norris and

Anderson had arguable probable cause to arrest Brown for disorderly conduct as Brown admits

that she was playing music that was loud and that the driver’s side window was rolled down

half-way . . . [and] there is no dispute that Defendants Norris and Anderson personally heard the

music that Brown was playing . . . .”).

18
admittedly “loud” music, stopped her car in the parking lot, rolled down the

driver’s side window to some extent, and spoke out of the window to Jones while

the music still was playing. Brown’s music was loud enough that Sergeant Norris

and Investigator Anderson, who were at the time several parking spots away from

her vehicle, heard the music. Lieutenant Winn, Investigator Hudson, and

Investigator Leftwich also heard loud music. The playing of loud music is a

willful act. Sergeant Norris testified that he had to tell Brown three times to turn

her music down. Brown admits she was told once and that her music was loud and

that it was possible she was told a second or third time, but she did not hear it.

Brown at least once had to ask Travis Jones to repeat what was said to her by a law

enforcement officer outside her car, providing some context for how loud her

music must have been.

In short, we look only to whether a reasonable officer, knowing what

Sergeant Norris knew at the time, objectively could have believed probable cause

existed. We conclude Brown’s actions in playing loud music, stopping her car, and

rolling her window down could have indicated to an objectively reasonable officer

at the scene that Brown was making unreasonable noise with intent to create public

annoyance, even if those circumstances were insufficient to prove an actual

violation of § 13A-11-7. See, e.g., Hutchins v. City of Alexander City, 822 So.2d

19
459, 462 (Ala. Crim. App. 2000) (finding prima facie case of disorderly conduct

where defendant made unreasonable noise in public area of police station). The

district court consequently did not err in determining Sergeant Norris was entitled

to qualified immunity on Plaintiff Brown’s § 1983 claim for false arrest.

Plaintiff Brown’s false arrest claim against Defendant Anderson also fails.

Norris, not Anderson, made the decision to arrest Brown. Brown does not identify

any conduct of Defendant Anderson that would support a false arrest claim against

him. In any event, there was arguable probable cause for Brown’s arrest. While

Anderson also assisted Norris in removing Brown from the vehicle, we consider

that conduct in our discussion of Brown’s excessive force claim. Qualified

immunity applies to Defendant Anderson for Brown’s false arrest claim.

C. Sonia’s § 1983 False Arrest Claims

It is undisputed that Investigator Hudson, whom Sonia did not sue, was the

officer who witnessed Sonia’s behavior and actually arrested and handcuffed Sonia

and signed the criminal complaint against Sonia. The district court did not err in

granting qualified immunity to Defendants Norris and Anderson because they did

not participate in Sonia’s arrest and were not Hudson’s supervisors.

19

The district court pointed out that Plaintiffs’ complaint does not allege conduct against 19

Anderson suggesting any involvement in Sonia’s arrest. There is a question as to whether Sonia

even has alleged a § 1983 false arrest claim against Anderson, but the parties have briefed the

case as if Sonia does allege a § 1983 false arrest claim against Anderson, so we consider that

20
To establish § 1983 liability, a plaintiff must show “proof of an affirmative

causal connection” between a government actor’s acts or omissions and the alleged

constitutional violation, which “may be established by proving that the official was

personally involved in the acts that resulted in the constitutional deprivation.”

Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Merely being present

with the arresting officers at the scene is not enough, unless the plaintiff can show

that the defendant officer was part of the chain of command authorizing the arrest

action.

Here, the facts do not show personal participation by Defendants Norris or

Anderson in Sonia’s arrest. Viewed in the light most-favorable to Plaintiff Sonia,

while Defendant Norris was arresting Plaintiff Brown, he said “arrest [Sonia],

too.” However, Norris was not Hudson’s supervisor or even in Hudson’s chain

20

of command. Hudson had his own authority to arrest and actually utilized it at the

scene. While Hudson was arresting Sonia, Norris was busy arresting Brown and

testified that he was not aware Hudson was arresting Sonia. There was no active

personal participation by Norris in Sonia’s arrest, much less an opportunity to

claim here. We determine that the evidence does not establish a constitutional violation by

Anderson as to Sonia’s arrest. Further, in analyzing whether Defendants Norris and Anderson

can be liable for Sonia’s false arrest claim, we assume for the purposes of this opinion that nonparty Investigator Hudson violated Sonia’s Fourth Amendment rights by arresting him without

arguable probable cause.

Norris denies he said this, but Travis Jones testified that he heard Norris say it. 20

21
intervene in Hudson’s arrest at the scene. At most, Plaintiffs have shown that

Norris arguably wanted Hudson to arrest Sonia. But an officer’s subjective intent

is irrelevant in a qualified immunity analysis. Because Norris did not arrest Sonia

and had no supervisory control over the officer who did, qualified immunity is

appropriate.

Accordingly, the district court did not err in granting qualified immunity to

Defendants Norris and Anderson on Sonia’s § 1983 claims for false arrest.

D. Brown’s § 1983 Excessive Force Claim

Plaintiff Brown claims Defendants Norris and Anderson used excessive

force during her arrest.

“The 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.” Lee, 284 F.3d at 1197 (citing Graham v. Connor, 490 U.S.

386, 394-95, 109 S. Ct. 1865, 1871 (1989)). “‘Fourth Amendment jurisprudence

has long recognized that the 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, 490 U.S. at

396, 109 S. Ct. at 1871-72). But while some force is permitted in effecting an

arrest, whether the force is reasonable depends on “a careful balancing of the

22
nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.” Vinyard, 311 F.3d at

1347 (quotation marks omitted).

21

A law enforcement officer receives qualified immunity for use of force

during an arrest if an objectively reasonable officer in the same situation could

have believed the use of force was not excessive. Id.; Graham, 490 U.S. at 396-97,

109 S. Ct. at 1872; Lee, 284 F.3d at 1197. “Use of force must be judged on a

case-by-case basis ‘from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.’” Post v. City of Fort Lauderdale, 7 F.3d

1552, 1559 (11th Cir. 1993) (quoting Graham, 490 U.S. at 396, 109 S. Ct. at 1872),

modified, 14 F.3d 583 (11th Cir. 1994). We judge use of force solely on an

objective basis, and we do not consider an officer’s subjective belief. Hadley v.

Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).

“To balance the necessity of the use of force . . . against the arrestee’s

constitutional rights, a court must evaluate several factors, including ‘[1] the

severity of the crime at issue, [2] whether the suspect poses an immediate threat to

However, “even de minimis force will violate the Fourth Amendment if the officer is 21

not entitled to arrest or detain the suspect.” Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir.

2008) (quotation marks omitted). We already concluded above that arguable probable cause

existed to arrest Brown, so our question now is whether Norris and Anderson used too much

force in effecting that arrest.

23
the safety of the officers or others, and [3] whether he is actively resisting arrest or

attempting to evade arrest by flight.’” Vinyard, 311 F.3d at 1347 (quoting Graham,

490 U.S. at 396, 109 S. Ct. at 1872). “Our cases hold that gratuitous use of force

when a criminal suspect is not resisting arrest constitutes excessive force.” Hadley,

526 F.3d at 1330.

On several occasions, this Court has evaluated the use of pepper spray

during an arrest. In Vinyard v. Wilson, we reversed a grant of qualified immunity

to an officer who used pepper spray on an arrestee. The plaintiff was under arrest

for disorderly conduct and detained in the back of a police car, with her hands

cuffed behind her back and with a glass or plastic partition separating the officer

from the arrestee. Vinyard, 311 F.3d at 1349, 1355. To stop the arrestee from

returning the officer’s exchanges of obscenities and insults during a four-mile ride

to the jail, the officer stopped his car, grabbed the arrestee’s arm and hair, and

sprayed her in the face with two or three bursts of pepper spray. Id. at 1343. This

Court held that this use of force clearly exceeded the Fourth Amendment’s

excessiveness threshold. Id. at 1348, 1355 (“Courts have consistently concluded

that using pepper spray is excessive force in cases where the crime is a minor

infraction, the arrestee surrenders, is secured, and is not acting violently, and there

is no threat to the officers or anyone else.”). We based our holding on all Graham

24
factors weighing in favor of the plaintiff arrestee: (1) her crime of disorderly

conduct was minor; (2) under her version of the facts, she was secured and was not

posing a safety threat to the officer, herself, or others; and (3) she did not resist

arrest or attempt to flee. Id. at 1347-48.

We later applied Vinyard’s holdings in Reese v. Herbert, 527 F.3d 1253,

1273-74 (11th Cir. 2008), denying qualified immunity to officers who used pepper

spray in the face of an arrestee who “was lying face down on the ground, was not

suspected of having committed a serious crime, did not pose an immediate threat of

harm to anyone, and was not actively resisting or evading arrest . . . .” Id.

In contrast, this Court has noted that the use of pepper spray is not excessive

force in situations where the arrestee poses a threat to law enforcement officers or

others, uses force against officers, physically resists arrest, or attempts to flee, in

which cases pepper spray is a permissible way to “disable a suspect without

causing permanent physical injury.” Vinyard, 311 F.3d at 1348 (quotation marks

omitted). “Indeed, pepper spray is a very reasonable alternative to escalating a

physical struggle with an arrestee.” Id. For example, in Garrett v. Athens-Clarke

County, 378 F.3d 1274, 1280-81 (11th Cir. 2004), we held that use of pepper spray

was not excessive force where the arrestee led police on a high-speed vehicle

chase, physically resisted arrest, attempted to flee, attempted to harm law

25
enforcement officers, and attempted to take an officer’s pistol. Id. at 1276-77. In

McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003), we

determined that the use of pepper spray on a suspected violent felon was a

reasonable response to the scene confronting the officer – a victim on the floor

with a bleeding head wound and her likely assailant standing near her and armed

with a walking stick. Id. at 1244-45. “Given that pepper spray ordinarily causes

22

only temporary discomfort, it may be reasonably employed against potentially

violent suspects, especially those suspects who have already assaulted another

person and remain armed.” Id. at 1245.

Given the facts in the light most favorable to Brown, the district court

improperly granted summary judgment to Defendant Norris on Brown’s excessive

force claim. Under Brown’s version, Norris’s actions in effecting the arrest

constitute excessive force. Each Graham factor supports Brown. First, Brown was

not arrested for a serious crime. Second, Brown did not pose a threat to anyone’s

safety. Third, under Brown’s account of the facts, she was cooperative, was not

resisting arrest, and was not attempting to flee. She complied with Defendant

Norris’s requests and attempted to get out of the vehicle but was delayed by the

This Court also concluded that there is no constitutional requirement that a law 22

enforcement officer first give the suspected violent felon a verbal warning and opportunity to

submit before using pepper spray. McCormick, 333 F.3d at 1245.

26
door locks, which she clearly communicated to Norris. Brown then had actually

opened the door and was getting out when Norris pushed her back in the car and

sprayed her. Norris’s subjective beliefs are not relevant. What we consider instead

is what an objectively reasonable officer in Norris’s situation would have believed,

taking as true Brown’s testimony. Given that Brown had submitted to Norris’s

authority, was getting out of the car to be arrested, and posed no threat, Norris’s

conduct in pushing her back into the car, gratuitously using pepper spray, and then

slamming her to the pavement, was excessive force that violated Brown’s

constitutional rights.

23

Furthermore, an objectively reasonable police officer would have known it

was unlawful to use pepper spray and other force against an arrestee who was

suspected only of a minor offense (playing music too loud), was not threatening

the officer or the public, was not attempting to flee, and who had communicated

her willingness to be arrested. Although the law permits some use of force in any

arrest for even minor offenses, the law was clearly established in 2005 that

Defendant Norris’s combined gratuitous use of pepper spray and other force

against Brown in this minor offense context violated the Constitution. See, e.g.,

Although we primarily discuss Norris’s use of pepper spray, we reiterate that Brown’s 23

excessive force claim concerns the entirety of the force used by Norris in effecting the arrest,

including the force used to throw her out of the car face-down, slam her on the pavement, and

handcuff her.

27
Vinyard, 311 F.3d at 1347-49; Lee, 284 F.3d at 1198-1200.

24

The district court accordingly erred in granting qualified immunity to

Defendant Norris on Brown’s excessive force claim.

As to Defendant Anderson, however, there is some question over whether

Plaintiff Brown even sued Anderson for excessive force. We need not resolve that

issue. There is no evidence that Anderson used any pepper spray. Anderson at

most assisted Norris in pulling Brown out of the car, which in this case is a

permissible use of force in effecting an arrest. A law enforcement officer’s right to

arrest necessarily carries with it the ability to use some force in making the arrest.

Lee, 284 F.3d at 1197-98. For even minor offenses, permissible force includes

physical restraint, use of handcuffs, and pushing into walls. See Nolin v. Isbell,

207 F.3d 1253, 1257 (11th Cir. 2000) (“[T]his Circuit has established the principle

that the application of de minimis force, without more, will not support a claim for

excessive force in violation of the Fourth Amendment.”); Lee, 284 F.3d at 1200

(citing cases permitting use of handcuffs); Jones v. City of Dothan, 121 F.3d 1456,

1460 (11th Cir. 1997) (no constitutional violation to slam plaintiff against wall,

kick plaintiff’s legs apart, and require plaintiff to raise arms above his head); Gold,

The Court applied Vinyard’s holding in Reese v. Herbert, 527 F.3d at 1273-74, 24

concluding it was excessive force to use pepper spray on a non-threatening arrestee who was

face-down on the ground and suspected of only a minor offense. Being a 2008 case, however,

Reese cannot be used to establish the constitutional bounds of Defendant Norris’s 2005 conduct.

28
121 F.3d 1442 at 1446-47 (no constitutional violation for arresting plaintiff for

disorderly conduct and affixing handcuffs too tightly); Post, 7 F.3d at 1559-60 (not

excessive force to arrest plaintiff for building code violation by pushing him up

against wall and applying chokehold to unresisting plaintiff while affixing

handcuffs). Because Anderson was permitted to use some force in arresting

Brown, Brown has not shown Anderson’s conduct in forcibly removing Brown

from the car violated her constitutional rights.

25

E. Plaintiffs’ State-Law Claims

Plaintiffs Brown and Sonia argue the district court erred in granting the

Defendants immunity from Plaintiffs’ state-law claims. Brown and Sonia asserted

state-law claims for false arrest/false imprisonment against Defendants Norris,

Anderson, and the City. Brown also asserted a claim for assault and

battery/excessive force against these Defendants.

Under Alabama law, “[s]tate-agent immunity protects state employees, as

agents of the State, in the exercise of their judgment in executing their work

responsibilities.” Ex parte Hayles, 852 So.2d 117, 122 (Ala. 2002). In Ex parte

A non-arresting officer may be liable for another officer’s use of excessive force, but 25

only if “the non-intervening officer was in a position to intervene yet failed to do so.” Hadley,

526 F.3d at 1330-31. Because the relevant events happened so quickly, the record does not

reflect any point at which Anderson could have intervened to prevent Norris’s use of excessive

force, especially pepper spray, on Brown. Anderson accordingly is not liable for failure to

intervene in Norris’s use of force.

29
Cranman, 792 So.2d 392 (Ala. 2000), a plurality of the Alabama Supreme Court

restated and clarified the scope of Alabama’s state-agent immunity doctrine, which

bars suit against law enforcement officers effecting arrests, except to the extent the

officer acted willfully, maliciously, fraudulently, in bad faith, beyond his legal

authority, or under a mistaken interpretation of law, or if the Constitution or laws

of the United States or Alabama require otherwise. Id. at 405.

26

There is also statutory, discretionary-function immunity in Alabama.

Specifically, § 6-5-338 of the Alabama Code contains a provision immunizing law

enforcement officers from tort liability for conduct within the scope of their

discretionary law enforcement duties. Ala. Code § 6-5-338(a) (1994) (“Every

peace officer . . . shall have immunity from tort liability arising out of his or her

conduct in performance of any discretionary function within the line and scope of

his or her law enforcement duties.”). Cranman’s test for state-agent immunity

governs whether law enforcement officers are entitled to statutory, discretionaryfunction immunity under § 6-5-338(a). Ex parte City of Tuskegee, 932 So.2d 895,

904 (Ala. 2005) (“The restatement of State-agent immunity as set out in Cranman,

792 So.2d at 405, now governs the determination of whether a peace officer is

entitled to immunity under § 6-5-338(a).”). So for our purposes, the question of

The Alabama Supreme Court formally adopted the Cranman plurality’s state-agent 26

immunity test in Ex parte Butts, 775 So.2d 173, 177-78 (Ala. 2000).

30
whether City police officers Defendants Norris and Anderson receive immunity for

Plaintiffs’ state-law claims depends on application of Cranman’s state-agent

immunity test.

The Alabama Supreme Court established a burden-shifting framework for

application of the state-agent immunity test. A defendant initially bears the burden

of demonstrating that he was acting in a function that would entitle the agent to

immunity. Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006). “If the

State agent makes such a showing, the burden then shifts to the plaintiff to show

that the State agent acted willfully, maliciously, fraudulently, in bad faith, or

beyond his or her authority.” Id.

Turning to the claims against Defendants Norris and Anderson, there is no

dispute that both Norris and Anderson were acting within the scope of their

discretionary functions as law enforcement officers; Plaintiffs admitted as much in

their brief opposing summary judgment. (“Making an arrest is a discretionary

function.”). Plaintiffs thus bear the burden of showing that Defendants Norris and

Anderson acted willfully, maliciously, fraudulently, in bad faith, beyond their legal

authority, or under a mistaken interpretation of the law.

As to Plaintiff Brown’s false arrest/false imprisonment claim, we conclude

Brown has not met this burden. The Alabama Supreme Court has applied the

31
same “arguable probable cause” standard utilized in this Court’s federal qualified

immunity cases for determining whether a city police officer receives state-agent

immunity for his role in an arrest. Borders v. City of Huntsville, 875 So.2d 1168,

1180 (Ala. 2003) (“If . . . a jury question exists as to whether [the officer] acted

with arguable probable cause, [then] the summary judgment [to the officer] must

be reversed.”). As held above, Defendants Norris and Anderson receive qualified

immunity for their conduct in arresting Brown because the facts, construed in the

light most favorable to Brown, show that they had arguable probable cause to

arrest Brown. Defendants Norris and Anderson receive both state-agent and

statutory, discretionary-function immunity under § 6-5-338(a) from Brown’s false

arrest claim for the same reasons.

Plaintiff Brown’s assault and battery/excessive force claim against

Defendants Norris and Anderson presents a closer question, but, similar to our

reasoning for denying Defendant Norris qualified immunity for his use of pepper

spray and other force against Brown, Defendant Norris also does not receive stateagent or statutory, discretionary-function immunity for that conduct. Construing

the facts in the light most favorable to Plaintiff Brown, Defendant Norris’s use of

pepper spray and other force against Plaintiff Brown was done intentionally,

gratuitously, and in violation of Plaintiff Brown’s clearly established constitutional

32
rights, supporting an inference that Norris acted willfully and in bad faith. In

contrast, Defendant Anderson’s use of force against Plaintiff Brown does not

constitute a constitutional violation, and neither does it show the required

willfulness, maliciousness, fraud, or bad faith necessary to deny Anderson stateagent and statutory, discretionary-function immunity.

As to Plaintiff Sonia’s false arrest/false imprisonment claim, Sonia has not

carried his burden to show facts supporting willful, malicious, or bad faith actions

by Defendants Norris and Anderson. Hudson, not Norris or Anderson, actually

arrested and handcuffed Sonia. At most, Norris allegedly said “arrest” Sonia, but

given that Norris had no authority over Hudson, that alone is insufficient to strip

away Norris’s state-agent and statutory, discretionary-function immunity.

Finally, the district court correctly granted summary judgment to the City

from both Plaintiffs’ state-law false arrest/false imprisonment claims and Brown’s

state-law assault and battery/excessive force claim. “[U]nder principles of

vicarious liability, where a municipal employee enjoys immunity, the municipality

likewise is immune as to claims based on the employee’s conduct.” City of Bayou

La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala. 2000). In cases such as this

where the “municipal employee” is a law enforcement officer, Alabama’s

statutory, discretionary-function immunity explicitly extends an officer’s immunity

33
to the employing municipality. Ala. Code § 6-5-338(b) (“This section is intended

to extend immunity only to peace officers and governmental units or agencies

authorized to appoint peace officers.”) (emphasis added); Ex parte City of

Gadsden, 781 So.2d 936, 940 (Ala. 2000) (concluding § 6-5-338(a) gave officer

discretionary-function immunity and “[t]he plain language of § 6-5-338(b) . . .

extends that discretionary-function immunity to the City”); Borders, 875 So.2d at

1183. Because we find that Norris and Anderson are entitled to statutory,

discretionary-function immunity for Brown’s and Sonia’s false arrest/false

imprisonment claims, § 6-5-338(b) extends that immunity to the City as well.

As to Brown’s assault and battery/excessive force claim, however, Norris is

not entitled to statutory, discretionary-function immunity, and thus § 6-5-338(b)

cannot immunize the City. The City instead relies on another statute providing that

Alabama cities are not vicariously liable for the torts of their agents, unless the

agent acted with “neglect, carelessness, or unskillfulness.” Ala. Code § 11-47-190

(“No city or town shall be liable for damages for injury done to or wrong suffered

by any person or corporation, unless such injury or wrong was done or suffered

through the neglect, carelessness, or unskillfulness of some agent, officer, or

employee of the municipality . . . .”); see Hardin v. Hayes, 52 F.3d 934, 939 n.9

(11th Cir. 1995) (“§ 11-47-190 imposes respondeat superior liability on

34
municipalities for employee negligence”). “Section 11-47-190 provides for an

action against a municipality for the ‘neglect, carelessness or unskillfulness’ of its

agents, not for their intentional torts.” Franklin v. City of Huntsville, 670 So.2d

848, 850 (Ala. 1995); see Ex parte City of Gadsden, 718 So.2d 716, 721 (Ala.

1998) (“Section 11-47-190 . . . absolves a city from liability for an intentional tort

committed by one of its agents . . . .”). In sum, under § 11-47-190, a city is liable

for negligent acts of its employees within the scope of their employment, but not

intentional torts of its employees.

Complicating matters is Borders, 875 So.2d at 1183, where the Alabama

Supreme Court held that where it was unclear whether the plaintiff’s claims for

“assault and battery, false imprisonment and false arrest,” actually asserted

“vicarious liability for an intentional tort against the City,” § 11-47-190 would not

immunize the City “where a plaintiff alleges a factual pattern that demonstrates

neglect, carelessness, or unskillfulness.” Id. (quotation marks omitted). In this

case, however, all of Brown’s evidence indicated that Norris’s use of pepper spray

and other force against her was intentional, as opposed to neglectful or careless.

The factual issues in this case are not over whether Norris’s acts were intentional,

but over what Brown did or did not do before Norris acted, the extent of force

Norris used, and whether Brown’s actions justified Norris’s use of force in

35
response. The district court accordingly did not err in granting immunity to the

27

City on Brown’s state-law assault and battery/excessive force claim against Norris.

III. CONCLUSION

In sum, we affirm in part and reverse in part the district court’s order, dated

May 14, 2009, granting qualified and state-law immunities to Defendants Norris

and Anderson and the City. We conclude: (1) Defendants Norris and Anderson are

entitled to qualified immunity from Plaintiffs Brown’s and Sonia’s federal false

arrest claims and state-agent and statutory, discretionary-function immunity from

Brown’s and Sonia’s state-law false arrest/false imprisonment claims; and (2)

Defendant Anderson is entitled to qualified immunity from Brown’s § 1983

excessive force claim and to state-agent and statutory, discretionary-function

immunity from Brown’s state-law claim for assault and battery/excessive force.

We reverse the district court’s summary judgment order granting to Norris (1)

qualified immunity from Brown’s § 1983 excessive force claim and (2) state-agent

and statutory, discretionary-function immunity from her state-law assault and

battery/excessive force claim. Finally, we affirm the district court’s grant of

While the Plaintiffs’ Amended Complaint alleges the conduct of Norris and Anderson 27

was “either negligent, wanton, malicious, willful, or in bad faith,” Am. Compl. ¶¶ 27, 38, at the

summary judgment stage the evidence showed Norris acted intentionally. No evidence showed

either Norris or Anderson acted negligently or carelessly. In Borders, the plaintiff disavowed

any claim of an intentional tort and instead contended “that his allegations are all based upon the

‘neglect, carelessness, or unskillfulness’ of [the defendant].” Borders, 875 So.2d at 1183.

36
immunity to the City from Plaintiffs’ state-law false arrest/false imprisonment and

assault and battery/excessive force claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

37