Janet Turner O'Kelley, et al v. Sgt. Travis Palmer Curran, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10600
____________________
JANET TURNER O’KELLEY,
Individually and as Personal Representative
of the Estate of John Harley Turner,
JOHN ALLEN TURNER,
Plaintiffs-Appellants,
versus
SGT. TRAVIS PALMER CURRAN,
a.k.a. Travis Lee Palmer,
DEP. FRANK GARY HOLLOWAY,
DEP. KEELIE KERGER,
DEP. BILL HIGDON,
DEP. TODD MUSGRAVE,
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Defendants-Appellees,
OFC. JONATHAN SALCEDO, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:17-cv-00215-RWS
____________________
Before R OSENBAUM and L AGOA , Circuit Judges, and WETHERELL ,∗
District Judge.
PER CURIAM:
This case makes its second appearance before us. Plaintiffs-
Appellants Janet Turner O’Kelley (“Janet”) and her ex-husband,
John Turner, appeal the district court’s entry of summary
judgment against them in their 42 U.S.C. § 1983 action relating to
an alleged warrantless seizure of their son John Harley Turner
∗ Honorable T. Kent Wetherell, II, United States District Judge, for the
Northern District of Florida, sitting by designation.
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(“Harley”).1 Defendants-Appellees Sergeant Travis Palmer Curran,
Deputies Bill Higdon, Keelie Kerger, Frank Holloway, and Todd
Musgrave, and various other officers2 responded to a 911 call
reporting that a drunk individual had threatened to shoot hunters
for trespassing on land situated in Pickens County, Georgia. When
the deputies arrived, they took up positions outside the fence line
of Janet’s property, on which various buildings were located,
including Janet’s son Harley’s home. Harley walked out of his
home with a handgun, and a thirty-minute standoff between the
deputies and Harley ensued. Eventually, two deputies crossed the
fence line to deploy beanbag shotgun rounds at Harley in an
attempt to disarm him. When the beanbags struck Harley, he shot
at police with his handgun. In response, various officers shot back
at Harley, striking him and tragically causing his death.
Harley’s parents brought a wrongful-death suit, claiming
unlawful seizure and excessive force, among other things. The
lawsuit set forth both federal and state-law claims. The district
court dismissed the case, and Harley’s parents appealed. The first
time this case came before us, a panel of this Court reversed in part
1 We refer to Harley by his middle name because that is how the district court
and parties refer to him. We refer to the O’Kelleys (Janet and her husband
Stan) by their first names to avoid confusion.
2 Although other law-enforcement officers responded to the call and were
initially named as defendants, we affirmed the dismissal of the claims against
the other officers in the prior appeal.
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and remanded the case for further proceedings.
See O’Kelley v.
Craig, 781 F. App’x 888 (11th Cir. 2019) (“
O’Kelley I”).
On remand, and following discovery, the deputies moved
for summary judgment, again relying on the defenses of qualified
immunity on the federal claims and Georgia law official immunity
on the state claims. On the fuller record, the district court granted
summary judgment in favor of the deputies on both the federal and
state-law claims.
Harley’s parents now appeal the district court’s grant of
summary judgment in favor of the deputies. The appeal, though,
involves only the issue of whether the deputies violated Harley’s
Fourth Amendment rights when they crossed the fence line and
seized him. It does not concern the federal excessive-force claim
Harley’s parents initially alleged because they do not contest the
use of beanbags against Harley, and they concede that once Harley
shot at Sergeant Curran, the other deputies were justified in
shooting back at him. Harley’s parents contend that the district
court improperly determined that the deputies were justified in
crossing over onto the O’Kelley property to subdue their son. This
appeal also involves the issue of whether the deputies were entitled
to official immunity on the state-law claim.
The primary question we must address in this case is
whether exigent circumstances existed when the officers entered
the O’Kelley property to detain Harley. We conclude that a
material question of fact on this point requires us to vacate the
grant of qualified immunity and remand the case for trial. But we
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agree with the dismissal of the state-law claim and therefore affirm
the district court’s entry of judgment in favor of the deputies on it.
I.
On October 24, 2015, at around 8:30 p.m., Kevin Moss called
911 and reported that he and a group of individuals had been
hunting when a person on the neighboring property yelled through
the woods, accusing them of trespassing and threatening to shoot
them. Moss believed the person was drunk and told the 911
operator, “This son of a bitch is crazy.” He later specified that the
man threatened to “shoot us, shoot our dogs, he was going to cut
us up for Halloween.” According to Moss, the man then became
involved in a heated verbal argument with an older gentleman who
Moss thought might have been his father or grandfather.
When Deputies Higdon, Kerger, and Holloway responded
to the call, they met the hunters—two men with two kids—near
the property. The hunters reiterated the threats that the man in
the woods had made—that he was yelling at them, “threatening to
shoot them and cut off their arms and legs and feed them to dogs.”
But they indicated they could not see whether the person was
armed since it was dark outside.
Based on these statements, the deputies proceeded to the
neighboring O’Kelley property. There, they were met by Stan
O’Kelley (Janet’s husband and Harley’s stepfather), who came out
of the house with his hands in the air. He told the officers that he
owned the property, that the 911 call was about his stepson, and
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that Harley was armed. Stan further explained which structures he
and his wife and Harley lived in, specifically noting that Harley
lived in a building behind his and Janet’s own house. He also told
the deputies that Harley was “out of his ever-loving mind” and that
he had two guns—a “.45 and an SKS.”3
While they spoke to Stan, deputies noticed Harley
approaching the other side of a closed gate in the lower driveway
of the property. They saw that Harley was shirtless, had a spotlight
in his left hand, and a handgun in his right hand. Harley was
wearing a makeshift bandolier with the holster across his chest.
The deputies did not see the SKS anywhere. When the deputies
saw that Harley was holding a handgun, they raised their own
guns, pointed them at Harley, and ordered him to put his hands up,
drop the gun, and get on the ground. They said that they were
police officers and wanted to talk.
Harley responded by telling the deputies they were
trespassing. The deputies repeatedly yelled at Harley to put the
gun down. When Harley did not, one officer told the others to
“Get cover.”
According to the deputies, Harley began beaming his
spotlight on each of them and waving the gun around by pointing
it wherever the light was shining. Harley made “sweeping passes”
3 An SKS is a semi-automatic rifle.
See
https://www.sportsmans.com/shooting-gear-gun-supplies/rifles/norinco-
sks-type-56-blued-semi-automatic-rifle-762x39mm-used/p/1542592.
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with the gun and the spotlight, aiming the spotlight and
temporarily blinding the deputies as he did so. All the while,
Harley asked nonsensical questions and repeatedly accused the
police of trespassing and stealing his property from him. Harley
also told the deputies to leave, walked away from them, cursed at
them, and encouraged them at various times to “shoot [him] in the
back” and “open fire.”
At some point, Harley holstered his gun across his chest.
While this was going on, Stan repeatedly interjected, yelling at
Harley, even though the deputies asked him to stand back or go
inside. Stan’s actions forced the deputies to move him from the
area more than once, until the deputies finally convinced Stan to
wait at the neighbor’s house for the remainder of the encounter.
Based on Harley’s behavior and refusal to surrender his gun, the
deputies took cover behind trees and bushes on the sides of the
driveway and they called for backup. Deputy Holloway specifically
requested that back-up bring less-than-lethal weapons support.
After several minutes of back and forth with the deputies,
Harley turned and headed from the lower driveway to the upper
driveway of the property, where Deputies Higdon and Kerger
followed without crossing the fence line. Deputy Holloway
remained at the lower driveway for the duration of the encounter.
At the upper driveway, Harley began pacing back and forth
in the yard behind the fence, coming in and out of the deputies’
sight. His gun was holstered at this point. When Harley
approached the fence line, he again repeatedly aimed his spotlight
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into the deputies’ eyes, making it difficult for them to see. But
Harley never directly threatened the deputies, either verbally or
with his handgun, and there is no evidence that Harley’s gun ever
left his holster at the upper driveway.
Meanwhile, Harley’s mother Janet arrived at the property
and attempted to speak with Harley. But the deputies escorted her
further down the driveway to her truck, telling her to stay back “in
case he starts shooting.” After this, Harley disappeared behind the
house.
Additional law-enforcement officers arrived on the scene,
including Georgia State Patrol Officers, who took up sniper
positions with their rifles, and Appellees Sergeant Curran and
Deputy Musgrave, who joined the other deputies.
Sergeant Curran was certified in the use of bean-bag
rounds—a less-than-lethal option for apprehending suspects.
When he arrived, Sergeant Curran saw Harley at the fence with a
gun in a “bandolier type thing” on his bare chest and a spotlight,
and Stan standing on the porch. Various deputies instructed
Harley to talk to them and repeatedly directed him to put his
firearm down. But Harley was unwilling to do so and continuously
accused the deputies of trespassing and stealing. He also repeatedly
told law enforcement that he was tired and wanted to go to bed.
Given the circumstances and Harley’s refusal to comply
with their demands to give up his gun, the deputies formed a plan
to use non-lethal force on Harley. Sergeant Curran believed the
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deployment of the less-than-lethal beanbags would not be effective
from where he was situated, so he would have to get closer and
cross the fence line. He told deputies Higdon and Kerger that he
was going to look for a good place to deploy the beanbags.
Towards that end, Sergeant Curran and Deputy Higdon went past
a privet hedge on the side of the O’Kelleys’ house and jumped over
the fence, taking positions in a narrow alleyway between the house
and the fence. The two deputies moved from the alleyway around
the back of the house and into the O’Kelleys’ backyard but
retreated to the alleyway when their movement activated a
floodlight.
Sergeant Curran instructed the other deputies to draw
Harley to the fence so he could shoot Harley in the right shoulder
with a beanbag. He thought this would knock Harley down or
back him up and stun his right arm—which was the hand he had
held the gun with earlier in the encounter. The intent was to
prevent Harley from drawing his gun from his holster while
Sergeant Curran disarmed him. Deputy Higdon was to provide
cover for Sergeant Curran as this occurred.
While Sergeant Curran and Deputy Higdon got into
position, Deputy Kerger believed she might be able to talk Harley
into putting his gun down. She had gotten permission from
Sergeant Curran to engage Harley in this way before Sergeant
Curran crossed the fence line. Harley was in the driveway at the
time, so Deputy Kerger tried to draw him to the fence line—an area
where the officers could see him (due to lighting) and where
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Sergeant Curran could get a good shot at him with the non-lethal
beanbags.
Deputy Kerger stepped into the open driveway, raised her
hands, and approached the fence to see if she could speak with
Harley. Deputy Kerger told Harley that she did not have her gun
and asked him to put his own gun down on the ground. Harley
approached the fence with his gun holstered. He was still carrying
his spotlight in one hand and he had a jug of water, which he had
retrieved from his house, in the other. Despite commands to do
so, Harley continued to refuse to place his holstered gun on the
ground. Again, Harley repeatedly told the deputies that he wanted
to end the encounter and that he was tired and wanted to go to
bed.
As Harley moved closer to the fence towards Deputy
Kerger, he abruptly turned to his right, moved, and saw Sergeant
Curran. Harley’s hands were down at his side. Harley lifted his
arm and shined his spotlight into Sergeant Curran’s eyes,
temporarily blinding him. At this point, Sergeant Curran fired
three beanbag rounds at Harley, striking him, but not knocking
him down as intended. Harley drew his gun and fired at Sergeant
Curran two times, hitting him in the elbow. In response, several
officers shot back at Harley, killing him.
Thereafter, Harley’s parents filed suit. The deputies moved
to dismiss, and the district court granted the motion. On appeal,
we vacated the dismissal order, in part. The parties returned to the
district court, where they engaged in discovery. Then the deputies
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moved for summary judgment, arguing that they were entitled to
qualified immunity on the federal claim and official immunity on
the state-law claim. Appellants filed a cross-motion for summary
judgment contending that the deputies unlawfully entered the
curtilage of the property without a warrant. The district court
agreed with the deputies and entered judgment in their favor.
Harley’s parents now appeal.
II.
We review de novo a grant of summary judgment based on
qualified immunity and state-agent immunity.
Hill v. Cundiff, 797
F.3d 948, 967 (11th Cir. 2015). “When considering a motion for
summary judgment, including one asserting qualified immunity,
‘courts must construe the facts and draw all inferences in the light
most favorable to the nonmoving party and when conflicts arise
between the facts evidenced by the parties, [they must] credit the
nonmoving party’s version.’”
Feliciano v. City of Miami Beach,
707 F.3d 1244, 1252 (11th Cir. 2013) (quoting
Davis v. Williams, 451
F.3d 759, 763 (11th Cir. 2006)). Summary judgment is appropriate
only when the evidence shows that no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter
of law.
McCullough v. Antolini, 559 F.3d 1201, 1204 (11th Cir.
2009) (quotation marks omitted).
III.
At the outset, we note that, at the time the district court
granted summary judgment, only Sergeant Curran, Deputy
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Higdon, and Deputy Kerger were implicated by the remaining
claims. It is undisputed that Deputies Holloway and Musgrave
were not directly involved in either the plan to cross the O’Kelleys’
fence line or the plan to deploy less-than-lethal beanbags against
Harley. Thus, irrespective of the parties’ other arguments, the trial
court’s grant of summary judgment is due to be affirmed to the
extent that it eliminated Deputies Holloway and Musgrave from
the case.
IV.
The federal claim here requires us to consider whether the
deputies should have attempted to obtain a warrant while Harley
behaved as he did or whether deputies were justified in jumping
the fence and attempting to disarm Harley because they thought
he presented an imminent threat to himself or others. This is a
close case, but we conclude that a reasonable jury could find that,
when the deputies entered the O’Kelley property to seize Harley,4
they were not faced with exigent circumstances that justified their
entry onto the O’Kelleys’ curtilage. We therefore vacate the
district court’s entry of summary judgment for the deputies on
qualified-immunity grounds on the § 1983 claim.
We divide our discussion into five substantive sections.
Section A discusses the governing principles of qualified immunity.
4 It is undisputed that shooting Harley with the beanbag rounds was a
“seizure” for Fourth Amendment purposes.
See Vaughan v. Cox, 343 F.3d
1323, 1328-29 (11th Cir. 2003).
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In Section B, we review Fourth Amendment law. In Section C, we
consider whether the property the deputies entered qualified as
“curtilage” for Fourth Amendment purposes. In Section D, we
apply the law to determine whether the deputies were entitled to
qualified immunity. And in Section E, we discuss whether any
Fourth Amendment right that was violated here was clearly
established.
A.
Qualified immunity protects police officers from being sued
in their individual capacities for discretionary actions performed in
the course of their duties.
Pearson v. Callahan, 555 U.S. 223, 231
(2009). This protection shields them from suit as long as their
conduct does not violate a clearly established constitutional right
of which a reasonable person would have known.
Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This immunity balances the
need for official accountability with the need to permit officials to
engage in their discretionary duties without fear of personal
liability or harassing litigation.
Pearson, 555 U.S. at 231;
Durruthy
v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003).
Officers who assert entitlement to qualified immunity must
first establish that they were acting within the scope of their
discretionary authority.
See Vinyard v. Wilson, 311 F.3d 1340, 1346
(11th Cir. 2002). No dispute exists here that the deputies were
acting within the scope of their discretionary authority when they
crossed over the fence line and engaged Harley.
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Because the parties agree that the deputies were acting
within the scope of their discretionary authority, the burden shifts
to the plaintiffs to establish that qualified immunity is
inappropriate.
Penley ex. rel. Estate of Penley v. Eslinger, 605 F.3d
843, 849 (11th Cir. 2010) (citing
Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002)). First, the plaintiffs must establish that the officers’
conduct violated a constitutionally protected right. Second, the
plaintiffs must show that the right was clearly established at the
time of the misconduct.
Pearson, 555 U.S. at 232;
Grider v. City of
Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010). The plaintiffs must
make both showings to avoid qualified immunity.
Qualified immunity is an objective test, asking “whether a
reasonable official could have believed his or her actions were
lawful in light of clearly established law and the information
possessed by the official at the time the conduct occurred.”
Stewart
v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir. 1990).
Accordingly, the facts of the case, and the reasonable inferences
that can be drawn therefrom, are crucial to determining an officer’s
entitlement to qualified immunity. At summary judgment, a court
must resolve any dispute in the facts material to the alleged Fourth
Amendment violation in favor of the non-movant (Harley’s
parents), such that “the court has the plaintiff’s best case before it.”
Wate v. Kubler, 839 F.3d 1012, 1019 (11th Cir. 2016) (quoting
Penley, 605 F.3d at 848). Then, “[o]nce we have determined the
relevant set of facts and drawn all inferences in favor of the
nonmoving party to the extent supportable by the record, the
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reasonableness of the officer's actions is a pure question of law.”
Id. (cleaned up).
B.
The Fourth Amendment to the United States Constitution
provides that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures shall not be violated.” U.S. Const. amend. IV. The
Supreme Court has interpreted this text to generally require law-
enforcement officers to secure a search warrant before entering or
searching within a home.
Brigham City, Utah v. Stuart, 547 U.S.
398, 403 (2006). That is so because, at the Fourth Amendment’s
very core is the right of an individual “to retreat into his [or her]
own home and there be free from unreasonable governmental
intrusion.”
Florida v. Jardines, 569 U.S. 1, 6 (2013) (citation and
internal quotation marks omitted). The same protection extends
to “the area immediately surrounding and associated with the
home”—what courts refer to as the “curtilage”—which is regarded
“as part of the home itself for Fourth Amendment
purposes.”
Id. (citation and internal quotation marks omitted).
Warrantless searches and seizures inside a home or its
curtilage are presumptively unreasonable.
United States v.
Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (per curiam);
Brigham
City, 547 U.S. at 403;
Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323,
1327 (11th Cir. 2006). Still, the warrant requirement is not absolute
and is subject to certain exceptions. One exception occurs when
the “exigencies of the situation” obviate the need to obtain a
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warrant.
Brigham City, 547 U.S. at 403-04;
Mincey v. Arizona, 437
U.S. 385, 393-94 (1978). In the absence of consent or exigent
circumstances plus probable cause, a warrantless entry into a home
(or its curtilage) by police violates a person’s Fourth Amendment
rights.
Bashir, 445 F.3d at 1328;
see also United States v. Holloway,
290 F.3d 1331, 1337 (11th Cir. 2002).
The exigent-circumstances exception recognizes that a
“warrantless entry by criminal law enforcement officials may be
legal when there is a compelling need for official action and no time
to secure a warrant.”
Bashir, 445 F.3d at 1328 (citations omitted);
Feliciano, 707 F.3d at 1251 (“Exigent circumstances . . . arise when
the inevitable delay incident to obtaining a warrant must give way
to an urgent need for immediate action.”) (quotation marks
omitted).
We have found exigent circumstances to exist in various
situations, but the “most urgent” of these exigencies is the need to
protect or preserve life.
United States v. Timmann, 741 F.3d 1170,
1178 (11th Cir. 2013). Indeed, we have said that “[i]t is difficult to
imagine a scenario in which immediate police action is more
justified than when a human life hangs in the balance.”
Holloway,
290 F.3d at 1337.
Typically, for the exigent-circumstances exception to apply,
the government must show both exigency and probable cause.
Id.
But the probable-cause element may be satisfied where officers
reasonably believe a person is in danger.
Id. at 1338. Courts have
found exigency to exist when “the indicia of an urgent, ongoing
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emergency, in which officers have received emergency reports of
an ongoing disturbance, arrived to find a chaotic scene, and
observed violent behavior, or at least evidence of violent behavior”
are present.
Timmann, 741 F.3d at 1179 (collecting cases).
We look to the “totality of the circumstances” to determine
whether officers were justified in acting without first obtaining a
warrant.
Missouri v. McNeely, 569 U.S. 141, 145 (2013). Put
another way, we “evaluate each case of alleged exigency based on
its own facts and circumstances.”
Id. at 150 (citation and quotation
marks omitted). As the Supreme Court has explained, “[w]hether
a ‘now or never situation’ actually exists—whether an officer has
‘no time to secure a warrant’—depends upon the facts on the
ground.”
Lange v. California, 141 S. Ct. 2011, 2018 (2021). Police
do not “need ironclad proof of a likely serious, life-threatening
injury to invoke” the exigent-circumstances exception, but the
circumstances must be such that a reasonable officer “could have
objectively believed that an immediate search was necessary to
safeguard potential victims.”
United States v. Evans, 958 F.3d 1102,
1106 (11th Cir. 2020) (quoting
Michigan v. Fisher, 558 U.S. 45, 49
(2009)).
We engage in a two-part analysis to determine whether
exigent circumstances existed.
See Ornelas v. United States, 517
U.S. 690 (1996). At the first step, we identify the historical facts that
led to the trespass onto curtilage without a warrant.
See id. at
1661–62. And at the second step, we review de novo whether a
reasonable officer would believe these historical facts created
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exigent circumstances justifying entry without a warrant.
See id.
at 1661–62. Here, we do not get past the first step because the
evidence reveals a genuine issue of fact as to the urgency of the
situation at the time the deputies crossed onto the O’Kelleys’
property.
C.
Because Harley’s Fourth Amendment rights could be
violated here only if the deputies entered his home or its curtilage,
we address the curtilage issue first. The parties raise a number of
opposing arguments regarding whether the area of the O’Kelley
property where the deputies crossed constituted the curtilage of
Harley’s home. The district court did not reach this issue, but none
of the facts relevant to the curtilage issue are in dispute, and the
record is sufficiently developed for us to make the determination
in the first instance.
After consideration, we conclude that the area in question
constituted the curtilage of Harley’s home even though the
property was owned by Janet and Stan O’Kelly and the area upon
which the deputies stood when they crossed the fence line was just
outside the O’Kelleys’ home, not Harley’s.
The Supreme Court has established a test that includes four
factors to determine if a particular area of the property of a home
is curtilage: “[1] the proximity of the area claimed to be curtilage to
the home, [2] whether the area is included within an enclosure
surrounding the home, [3] the nature of the uses to which the area
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is put, and [4] the steps taken by the resident to protect the area
from observation by people passing by.”
United States v. Dunn,
480 U.S. 294, 301 (1987). Still, though, these factors are merely
“tools” to help courts determine the curtilage issue and are not
dispositive.
Id.
Here, on the first factor, the area where Sergeant Curran and
Deputy Higdon crossed onto the property was situated close to the
O’Kelley home, such that when they crossed the fence line, they
were in a narrow space between the O’Kelleys’ home and the
fence—a space immediately adjacent to the O’Kelleys’ kitchen.
The space in which the deputies maneuvered was approximately
two-feet wide, so they likely touched the house or came within
inches of it.
As to the second factor, the area traversed by the deputies
was included in the home’s enclosure, as the fence ran the length
of the property line, which included the O’Kelleys’ house and
Harley’s house.
On the third factor, the areas where Sergeant Curran and
Deputy Higdon walked to deploy the beanbags were used for
family purposes. Although the alleyway between the O’Kelley
house and the fence was too narrow to serve as a passageway, it
was used to store and protect items like sawhorses, ladders, and
trash cans, and it featured windows into the kitchen where the
O’Kelleys—including Harley—prepared their meals.
See Jardines,
569 U.S. at 6 (“The [Fourth Amendment] right to retreat [into one’s
home] would be significantly diminished if the police could enter a
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man’s property to observe his repose from just outside the front
window”).
Additionally, the deputies moved into the O’Kelley
backyard at one point, which contained a garden. The record
shows that Harley himself was an avid gardener, and “[g]ardening
is an activity often associated with the curtilage of a home.”
See
United States v. Cousins, 455 F.3d 1116, 1122-23 (10th Cir. 2006)
(citing
United States v. Breza, 308 F.3d 430, 436 (4th Cir. 2002));
accord United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997).
Finally, as to the fourth factor, the area was shielded from
public observation because it was screened by a triangular wood
line and the O’Kelley home. A privet hedge higher than a person’s
head was also present to shield the side where the neighbors’ trailer
was situated. All of the factors set forth in
Dunn are therefore met.
While Harley lived in a different structure than the
O’Kelleys, his house was located on the same property, close to
their home. Curtilage is not limited to one particular building.
Rather, it is instead “formed by the buildings constituting an
integral part of that group of structures making up the [] home, . .
. or the immediate domestic establishment of the home.”
United
States v. Berrong, 712 F.2d 1370, 1374 (11th Cir. 1983) (internal
quotation marks and citations omitted); s
ee also Fixel v.
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Wainwright, 492 F.2d 480, 483 (5th Cir. 1974)5 (finding that the
backyard of a four-unit apartment building was curtilage); and
United States v. Maxi, 886 F.3d 1318, 1327 (11th Cir. 2018) (in the
context of a duplex).
The record here shows that Harley’s home was part of the
same immediate domestic establishment as the O’Kelleys’ home,
as discussed in
Berrong. The two homes were enclosed by the
same wooded area on two sides and the same fence and hedge on
the side where the deputies crossed the property. Significantly,
Harley was not a stranger renting his home. Rather, he was a
member of the O’Kelley family, living at the same mailing address
as Janet and Stan. Indeed, Harley lacked a kitchen in his home, so
he frequently visited his mother and stepfather’s home and
prepared and ate his meals at the O’Kelleys’ house. In short, he
used the O’Kelleys’ home as if it were an extension of his own.
See
United States v. Noriega, 676 F.3d 1252, 1262 (11th Cir. 2012)
(explaining that the focus of the
Dunn factors is “whether an
individual reasonably may expect that the area in question should
be treated as the home itself.” (quoting
Dunn, 480 U.S. at 300)).
Based on these facts, the area of the O’Kelley property
where Sergeant Curran and Deputy Higdon crossed the fence line
to deploy the beanbags fell within the curtilage of Harley’s home.
5 The Eleventh Circuit has adopted as binding precedent all decisions issued
by the former Fifth Circuit prior to October 1, 1981.
See Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (
en banc).
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The area was close to where Harley lived, he used the O’Kelley
house for meals, and he had a reasonable expectation of privacy in
that area.
See Berrong, 712 F.2d at 1374. Because the area Sergeant
Curran and Deputy Higdon treaded upon was the curtilage of
Harley’s home, the deputies necessarily violated Harley’s Fourth
Amendment rights by crossing over onto the property without a
warrant unless they received consent to enter the property or
probable cause and exigent circumstances were present.
D.
We now turn to the question of whether exigent
circumstances justified the deputies’ breaching of Harley’s
curtilage. Though the deputies argue that they are entitled to
qualified immunity on the Fourth Amendment claim, they rely
somewhat on material facts that Harley’s parents dispute. Taking
the facts in the light most favorable to Harley’s parents, as we must,
we cannot find as a matter of law that an “urgent need for
immediate action” existed when the deputies crossed the fence
line. Rather, viewing the facts in Harley’s parents’ favor, we
conclude that a jury could find that an objectively reasonable police
officer faced with the same circumstances would not have believed
that exigent circumstances existed at the time Sergeant Curran and
Deputy Higdon crossed the fence line. We therefore leave it to a
jury to make the determination of exigency after hearing all the
evidence at trial.
The deputies direct us to various facts to persuade us that
exigency excused them from obtaining a warrant before seizing
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Harley. First, they note, law enforcement responded to a scene
where Harley had just threatened to kill the hunters. And when
one of the hunters—Kevin Moss—called 911, he informed the
dispatcher that the person who threatened him was “crazy” and
“drunk.” Moss also indicated that the perpetrator was later
engaged in a heated argument with his father or grandfather. Plus,
when deputies met with Stan, he told them that Harley was the
perpetrator and he was armed with two guns—a handgun and a
semi-automatic assault rifle. Stan also voiced his opinion that
Harley was “out of his ever-loving mind.”
Not only that, but the deputies also emphasize, when
deputies arrived at the O’Kelley property, they saw for themselves
that Harley drew his gun and pointed it at them.6 It was very dark,
and Harley appeared shirtless, agitated, and holding a spotlight. He
used the spotlight to blind the officers as he simultaneously waved
his gun. And when deputies repeatedly commanded Harley to put
his gun down, he refused and instead kept yelling and cursing at
the officers, sometimes incoherently. Indeed, Harley repeatedly
accused the deputies of stealing from him and poaching his deer.
Along with these unusual statements, Harley paced back and forth,
into and out of darkness.
6 There is a factual dispute as to whether Harley pointed his gun “at” the
officers or only in their general direction in the lower driveway, but that
dispute is immaterial. What matters is the undisputed fact that Harley’s gun
was holstered in the upper driveway—the point at which the deputies actually
crossed the fence line.
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Further, at various times, Harley told the deputies to “shoot
me in the back,” and at other times he told them to “open fire.”
And besides all this, the deputies continue, during the encounter,
other people were present—the O’Kelleys and two neighbors who
were on their porch. Stan reportedly interjected himself into the
situation at times.
Despite the deputies’ reliance on this narrative, we cannot
affirm the district court’s qualified-immunity ruling. To be sure,
most of these facts the deputies rely upon are not disputed. But
some are. Plus, some of the facts on which the deputies rely
occurred earlier in the encounter at the lower driveway. And by
the time Sergeant Curran and Deputy Higdon crossed the fence
line to the O’Kelley property, it is possible that any exigency
arguably created by the events at the lower driveway had
dissipated.7
7 Exceptions to the warrant requirement are “justified by and limited to the
exigent circumstances of the moment” and “cannot be put in the bank and
saved for use on a rainy day, long after any claimed exigency has passed.”
United States v. Valerio, 718 F.3d 1321, 1325 (11th Cir. 2013);
accord Roberts
v. Spielman, 643 F.3d 899, 905 (11th Cir. 2011) (“[An] officer’s warrantless
search must be strictly circumscribed by the exigencies which justify its
initiation” (cleaned up)). Accordingly, as the Sixth Circuit has succinctly
stated, “[t]ime is an essential factor when an
immediate threat forms the basis
for police claims of exigency . . . . [E]xigent circumstances terminate when the
factors creating the exigency are negated.”
Carlson v. Fewins, 801 F.3d 668,
674 (6th Cir. 2015) (cleaned up).
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For starters, by the time Sergeant Curran and Deputy
Higdon crossed on to the O’Kelleys’ curtilage, no civilians
remained in harm’s way. Although Harley had threatened to shoot
the hunters, when law enforcement arrived, the hunters were
already a safe distance away from the property. As for Stan’s
involvement, that likewise ended before the deputies crossed over
onto the curtilage of the O’Kelley property. And Janet and the
neighbors were also away from the area and not in direct danger.
Second, during the latter part of the encounter with law
enforcement in the upper driveway, Harley repeatedly told the
deputies that he was tired and just wanted to go to sleep. He did
not threaten the deputies verbally and simply wanted to end the
encounter without violence.
Third, although Harley held a gun in his hand during the
initial part of the encounter with the deputies on the lower
driveway, he had holstered his weapon when he reached the upper
driveway. And Harley’s gun remained holstered during the entire
latter part of the encounter leading up to the deputies’ crossing of
the fence line.
Fourth, the fact that Sergeant Curran authorized Deputy
Kerger to approach Harley unarmed in an effort to draw him to the
fence line suggests that he did not view Harley as an imminent
threat to law enforcement.
Taking all these facts as true and in the light most favorable
to Harley’s parents, a reasonable jury could find that the once-tense
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situation had de-escalated to the point that no exigency existed at
the time Sergeant Curran and Deputy Higdon crossed over onto
the property to seize Harley. That is not to say that the deputies
should have left the O’Kelleys alone at the property with an
agitated Harley, but there is no evidence that the O’Kelleys would
have faced imminent harm if the deputies took the time to obtain
a warrant before crossing the fence line.8
It is undisputed that at no time did Harley threaten to shoot
the officers, himself, or anyone else during the thirty-minute
encounter with the deputies. And more importantly, Harley’s gun
remained holstered for the entire encounter at the upper
driveway.9
But Harley’s multiple remarks to the deputies to shoot him
raise a genuine issue of material fact. On the one hand, the deputies
argue that the eleven times Harley implored them to shoot him
constituted unstable, suicidal utterances—statements by someone
8 Sergeant Curran testified that, had they tried, it would have taken 45 minutes
to an hour to obtain a warrant. It is unclear if someone would have needed to
physically leave to obtain a warrant (Deputy Musgrave suggested that in “an
emergency” they could “[c]all detectives” and obtain a warrant “fairly
quickly”), but even if
someone had to leave, there were seven law-
enforcement officers on the scene at the time.
9 Other testimony confirms that, at the time the deputies crossed the fence
line to subdue Harley, his gun was holstered and both of his hands were
occupied—with a jug of water in one and a spotlight in the other.
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who wished to commit suicide by cop.10 And in
Smith v. LePage,
we noted that a “clear-cut” justification for entry into a home (or
its curtilage) without a warrant is an emergency involving a “need
to protect or preserve life.” 834 F.3d 1285, 1292-93 (11th Cir. 2016)
(citation and internal quotation marks omitted). There, we also
clarified that “[t]his can include the lives of people threatened by a
suspect, or the suspect’s life if he is suicidal.”
Id. at 1293 (citation
omitted).
Yet on the other hand, Harley’s parents point to the record
as a whole to contend Harley’s statements indicated that he was
simply frustrated and wanted to be left alone, and no reasonable
officer would have thought him to be suicidal.
If a jury determines that the deputies reasonably understood
Harley’s statements to reflect an intention to commit suicide by
cop, and it further concludes that the deputies reasonably viewed
those statements to reflect a state of mind that continued at about
the time Sergeant Curran and Deputy Higdon crossed onto the
curtilage, exigency was present. That is so because their actions
would be in furtherance of disarming an individual considered to
be a danger to himself. But on the other hand, if a jury finds that
10 “Suicide-by-cop” is a colloquial term for the act of intentionally provoking
police to kill oneself.
See N. Am. Co. for Life & Health Ins. v. Caldwell, 55
F.4th 867, 869 (11th Cir. 2022).
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no deputy reasonably could have understood Harley’s statements
to indicate that he was suicidal when Sergeant Curran and Deputy
Higdon crossed onto the curtilage, exigent circumstances did not
exist. A jury should decide this key issue.
See Caldwell, 55 F.4th at
871;
Hardigree v. Lofton, 992 F.3d 1216, 1229 (11th Cir. 2021)
(citing
McClish v. Nugent, 483 F.3d 1231, 1240-41 (11th Cir.
2007)).
In sum, assuming Harley’s parents’ version of the facts to be
true—one in which Harley did not act in a manner evincing suicidal
intentions, had holstered his gun for the entirety of the exchange
with law enforcement in the upper driveway, had repeatedly
expressed a desire to end the standoff and go to bed, and where
Sergeant Curran allowed Deputy Kerger to engage Harley without
her gun drawn—a reasonable officer would not believe that Harley
presented an immediate threat to himself or others requiring
urgent action to seize Harley.
See Hardigree, 992 F.3d at 1229. But
under the deputies’ version of the facts—where Harley was
reasonably perceived as an unstable individual who wished to
commit suicide by cop—a jury could conclude that a reasonable
officer would have believed that Harley presented an immediate
threat to himself or others and thus, exigent circumstances justified
entry onto the O’Kelleys’ property.
For all these reasons, we conclude that genuine issues of
material fact exist as to whether exigent circumstances justified the
deputies’ entry onto the O’Kelley property.
E.
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That brings us to the second part of the qualified-immunity
analysis: whether the alleged constitutional violation was clearly
established. Indeed, even if the deputies violated Harley’s Fourth
Amendment rights by entering the curtilage without justification,
they would still be entitled to qualified immunity unless the law
was clearly established that their actions violated Harley’s
constitutional rights.
As we explained when this matter was before us on the
initial appeal,
[B]inding precedent clearly established, at the time of
the encounter on October 24, 2015, that a seizure or
entry within the home [or on its curtilage] without a
warrant or exigent circumstances violates the Fourth
Amendment’s prohibition on unreasonable searches
and seizures. And the parameters of the exigent-
circumstances doctrine were well-established before
then, including, as relevant here, that circumstances
do not qualify as exigent unless “the police reasonably
believe an emergency exists which calls for an
immediate response to protect citizens from
imminent danger.
See O’Kelley I, 781 F. App’x at 898 (quoting
Holloway, 290 F.3d at
1337).
So if a jury finds that the deputies’ actions in crossing over
the fence line onto the O’Kelleys’ property to disarm Harley were
not warranted by exigent circumstances, clearly established law
supports the conclusion that Appellees violated Harley’s Fourth
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Amendment rights. And because Harley’s rights were clearly
established, the deputies are not entitled to qualified immunity on
the Fourth Amendment claim at this juncture. For these reasons,
we find that the district court erred in entering summary judgment
in favor of Sergeant Curran and Deputies Higdon and Kerger.
Ultimately, we conclude that genuine issues of material fact
exist as to whether the deputies were entitled to judgment as a
matter of law. We therefore remand this case to the district court
for a trial on the issue of whether exigent circumstances justified
the deputies’ entry onto the O’Kelley property without a warrant.
Put another way, a jury should determine whether reasonable
officers would construe the situation as involving exigent
circumstances—one involving an urgent need for immediate
action.
Feliciano, 707 F.3d at 1251.
V.
Finally, we turn to Harley’s parents’ state-law claim.
Harley’s parents set forth cursory arguments in their initial brief as
to why the district court’s decision with respect to the state-law
claim was erroneous. We are not persuaded.
First, the Federal Rules of Appellate Procedure require that
an appellant’s brief contain “a statement of the issues presented for
review.” Fed. R. App. P. 28(a)(5). We have held that any issues not
raised in the “Statement of Issues” are generally deemed to be
waived.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
680 (11th Cir. 2014). Harley’s parents did not present their official-
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immunity and state-law claim in their Statement of Issues—rather,
they presented only the curtilage and qualified-immunity issues.
Arguably, any issues relating to the state-law claim have been
waived.
But even if the issues were not waived, they fail on the
merits. On this record, no evidence exists that the deputies acted
with malice or an intent to injure Harley. And in Georgia,
“county law-enforcement officers . . . generally
enjoy official immunity from suits alleging personal liability in tort
for performance of official functions.”
Bailey v. Wheeler, 843 F.3d
473, 485 (11th Cir. 2016). As a result, state officials may not be held
liable for injuries caused through their performance of
discretionary functions unless they act “with actual malice or with
actual intent to cause injury.”
Id. (citing Ga. Const. art. I, § 2, para.
IX(d) and
Brown v. Penland Constr. Co, Inc., 281 Ga. 625, 641
S.E.2d 522, 523 (2007)).
“‘[A]ctual malice’ requires a deliberate intention to do
wrong.”
Id. (quoting
Merrow v. Hawkins, 266 Ga. 390, 467 S.E.2d
336, 337 (1996)). And “actual intent to cause injury” requires an
“actual intent to cause harm to the plaintiff, not merely an intent
to do the act purportedly resulting in the claimed injury.”
Kidd v.
Coates, 518 S.E.2d 124, 125 (1999) (quoting
Frame v. Boatmen's
Bank, 782 S.W.2d 117, 121 (Mo.App.1989)).
Here, nothing in the record supports the conclusion that the
deputies acted with actual malice or an intent to injure when they
crossed the property line to engage Harley with less-than-lethal
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force. The testimony of each of the deputies shows that, while they
intended to hit Harley with the beanbags, their objective in doing
so was to de-escalate the situation by disarming Harley. And
Sergeant Curran’s testimony reflects that he employed the
beanbags because he did not want to seriously injure Harley. Even
if the plan was ill-conceived or poorly executed, mere recklessness
is insufficient to overcome official immunity in Georgia.
Hanse v.
Phillips, 623 S.E.2d 746, 750 (Ga. Ct. App. 2005). Because nothing
in the record supports a finding that the entry onto the curtilage
was malicious or meant to injure Harley, the district court
correctly granted the deputies official immunity from the state-law
claim. We affirm the dismissal of the state-law claim.11
VI.
For the foregoing reasons, we reverse the district court’s
decision to deny on mootness grounds Harley’s parents’ motion
for summary judgment on the curtilage issue. We vacate the
11 Harley’s parents, citing our prior opinion, argue that the deputies are not
entitled to state-law official immunity because the use of the beanbag rounds
was not justified by self-defense. However, self-defense is not the standard for
official immunity in Georgia—actual malice or intent to injure is.
Bailey, 843
F.3d at 485. Although we noted in our prior opinion that the official immunity
analysis “
often comes down to whether the officer acted in self-defense,”
O’Kelley I, 781 F. App’x at 899 (emphasis added), “often” does not mean
“always,” and both this Court and the Georgia courts have granted official
immunity in use-of-force cases not involving self-defense.
See Peterson v.
Baker, 504 F.3d 1331, 1339-40 (11th Cir. 2007) (per curiam);
Tittle v. Corso,
569 S.E.2d 873, 877-78 (Ga. Ct. App. 2002).
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district court’s grant of summary judgment in favor of Sergeant
Curran and Deputies Higdon and Kerger on the Fourth
Amendment claim and remand that claim for trial. We affirm the
district court’s grant of official immunity on the state-law claim and
the grant of summary judgment in favor of Deputies Musgrave and
Holloway
AFFIRMED IN PART; REVERSED IN PART; VACATED
IN PART and REMANDED IN PART.
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