Paige Laine Khyel Taylor v. Sheriff, Pinellas County FL

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10538
Non-Argument Calendar
____________________
PAIGE LAINE KHYEL TAYLOR,
Plaintiff-Appellee,
versus
SHERIFF, PINELLAS COUNTY FL,
in his official capacity,
Defendant-Appellant.
____________________
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2 Opinion of the Court 23-10538
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-00687-CEH-MRM
____________________
Before JILL PRYOR , A BUDU , and A NDERSON , Circuit Judges.
PER CURIAM:
This case arose from events that followed a traffic stop by
Deputy Wagner of a vehicle in which Paige Taylor occupied the
passenger seat. Tayler was arrested at the scene and charged with
battery on an officer and resisting an officer during the arrest. After
both charges against Taylor were dropped, Taylor brought suit, al-
leging a § 1983 excessive force claim against Deputy Wagner, a §
1983 false arrest claim against Wagner, and also alleging a state law
false arrest claim against Wagner as well as a state law battery claim
against Wagner. Taylor also alleged a state law claim that Sheriff
Gualtieri (“the Sheriff”) is vicariously liable for Wagner’s false ar-
rest of Taylor, as well as a state law claim that the Sheriff is vicari-
ously liable for Wagner’s battery (excessive force) against Taylor.
This appeal requires discussion only of Taylor’s state law claims.
However, the sole issue on appeal is whether the district court
erred in denying the Sheriff’s motion for summary judgment based
on sovereign immunity with respect to Taylor’s claim for false ar-
rest based on battery on an officer.
The district court recognized that Wagner had arrested Tay-
lor on two grounds: his perception that she had pushed him (i.e.
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23-10538 Opinion of the Court 3
battery on an officer), and for her alleged resistance while he was
arresting her (i.e. resisting an officer). After development of the
summary judgment record, the district court addressed the state
law claims and granted, in part, and denied in part, the Sheriff’s
motion for summary judgment based on Florida state law sover-
eign immunity. The district court denied the Sheriff’s summary
judgment motion with respect to Taylor’s claim for false arrest
based on battery on a law enforcement officer, holding that a rea-
sonable jury could believe Deputy Wagner’s testimony that he per-
ceived that Taylor pushed him when she grabbed the license that
Wagner was returning to her, thus creating a genuine issue of fact
for the jury as to whether Wagner could have reasonably perceived
that Taylor had committed a battery on an officer and creating ar-
guable probable cause to arrest her.1 However, the district court
granted the Sheriff’s motion for summary judgment as to Taylor’s
claim that the Sheriff was vicariously liable for Wagner’s excessive
force (i.e. battery) against Taylor, thus holding that the Sheriff was
entitled to sovereign immunity because the videos demonstrated
conclusively that Wagner had acted in bad faith in using excessive
force. Similarly, with respect to Taylor’s claim that the Sheriff was
vicariously liable for Wagner’s false arrest based on resisting an of-
ficer, the district court granted summary judgment in favor of the
1 The district court’s denial of the Sheriff’s motion for summary judgment with
respect to Taylor’s claim for false arrest based on battery on an officer consti-
tuted a denial of the Sheriff’s sovereign immunity defense. Thus, the Sheriff
is entitled to immediate review of this denial, and we have appellate jurisdic-
tion. Butler v. Gualtieri, 41 F.4th 1329, 1335 (11th Cir. 2022).
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4 Opinion of the Court 23-10538
Sheriff because the videos demonstrated conclusively that Taylor
offered no resistance to arrest. Thus, the Sheriff enjoyed sovereign
immunity and was not vicariously liable for Wagner’s bad faith ar-
rest of Taylor on the basis of Taylor’s non-existent resistance to ar-
rest.
I. DISCUSSION
A. Florida Law of Sovereign Immunity
To understand this appeal, it is necessary to understand Flor-
ida’s law with respect to vicarious liability of a state agency (like
the Sheriff here) for the tortious actions of an officer or employee
(like Deputy Wagner here), and to understand, on the other hand,
the dimensions of the state agency’s sovereign immunity. The
Florida statute provides: “[T]he state, for itself and for its agencies
or subdivisions, hereby waives sovereign immunity for liability for
torts, but only to the extent specified in this act.” Fla. Stat. §
768.28(1). Subsection (9)(a) of Fla. Stat. § 768.28 sets out when an
officer of the state (like Wagner here) would be immune from per-
sonal liability, and when not immune (i.e. personally liable); and
when the state itself or its subdivisions (the Sheriff here) would be
immune from liability for an officer’s or employee’s tort (like Wag-
ner’s here), and when not immune (i.e. vicariously liable):
An officer, employee, or agent of the state or of any
of its subdivisions may not be held personally liable in
tort or named as a party defendant in any action for
any injury or damage suffered as a result of any act,
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23-10538 Opinion of the Court 5
event, or omission of action in the scope of her or his
employment or function, unless such officer, em-
ployee, or agent acted in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property. How-
ever, such officer, employee, or agent shall be consid-
ered an adverse witness in a tort action for any injury
or damage suffered as a result of any act, event, or
omission of action in the scope of her or his employ-
ment or function. The exclusive remedy for injury or
damage suffered as a result of an act, event, or omis-
sion of an officer, employee, or agent of the state or
any of its subdivisions or constitutional officers is by
action against the governmental entity, or the head of
such entity in her or his official capacity, or the con-
stitutional officer of which the officer, employee, or
agent is an employee, unless such act or omission was
committed in bad faith or with malicious purpose or
in a manner exhibiting wanton and willful disregard
of human rights, safety, or property. The state or its
subdivisions are not liable in tort for the acts or omis-
sions of an officer, employee, or agent committed
while acting outside the course and scope of her or
his employment or committed in bad faith or with
malicious purpose or in a manner exhibiting wanton
and willful disregard of human rights, safety, or prop-
erty.
Fla. Stat. § 768.28(9)(a). In other words, an officer (like Wagner
here) is immune from personal liability for his torts if he is acting
within the scope of his employment, unless he acted in bad faith or
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6 Opinion of the Court 23-10538
with malicious purpose or with wanton and willful disregard of hu-
man rights, safety, or property; and in such circumstances, the em-
ploying agency (the Sheriff here) “alone remain[s] vicariously liable
up to the limits provided by statute.” McGhee v. Volusia Cnty., 679
So. 2d 729, 733 (Fla. 1996). On the other hand, if an officer (like
Wagner here) committed the tort while acting outside the scope of
his employment or if he acted in bad faith or with malicious pur-
pose or with wanton and willful disregard of human rights, safety,
or property, then the officer (Wagner here) is personally liable, but
the employing agency (the Sheriff here) enjoys sovereign immun-
ity. Id. In other words, “[i]n any given situation either the agency
can be held liable under Florida law, or the employee, but not
both.” Id. As relevant to this appeal, the Florida statute provides
that Sheriff Gualtieri shall not be vicariously liable for the tortious
acts of Deputy Wagner (i.e. shall enjoy sovereign immunity) if
Wagner was acting outside the course and scope of his employ-
ment or if he committed the tort in bad faith or with malicious pur-
pose or with wanton and willful disregard of human rights, safety,
or property. There is no dispute here that Wagner was acting
within the scope of his employment. Thus, the issue on appeal—
stated above as being whether the district court erred in denying
the Sheriff’s motion for summary judgment based on sovereign im-
munity with respect to Taylor’s claim for false arrest based on bat-
tery on an officer—resolves into the issue of whether the summary
judgment evidence is such that a reasonable jury would be re-
quired, as a matter of law, to find that Wagner, in arresting Taylor
on the basis of battery on an officer, acted in bad faith or with
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23-10538 Opinion of the Court 7
malicious purpose or with wanton and willful disregard of human
rights, safety, or property.
In addressing the issue on appeal, the Sheriff argues that the
district court improperly credited Wagner’s testimony that he per-
ceived that Taylor pushed him when the videos showed that Tay-
lor did not push or shove Wagner. He also argues that the district
court erred in making inconsistent findings. Finally, he argues that
the district court failed to recognize that the videos and Wagner’s
post-arrest statements (i.e. continuing to insist that Taylor had
pushed him) demonstrated that Wagner’s claim that Taylor
pushed him was false, was a coverup, and was evidence of bad faith
in arresting Taylor for battery on an officer. We address each ar-
gument in turn.
B. Improper Crediting of Wagner’s Testimony
Sheriff Gualtieri argues that the district court erred when it
found that Taylor did not shove Wagner but nonetheless denied
summary judgment on the battery on an officer part of the false
arrest claim because Wagner testified that he perceived that Taylor
pushed or shoved him. Gualtieri argues that Wagner’s version of
the facts should not be credited because he is not party to the mo-
tion for summary judgment; rather, the version put forth by Taylor
that she never pushed him should be credited because she is the
non-moving party, or the videos, which clearly show she did not
push him, should control.
Florida courts have indicated that the determination of bad
faith, with malice, or in a manner exhibiting wanton and willful
disregard of the victim’s rights, safety, and property involves a sub-
jective inquiry into the officer’s state of mind. Butler v. Gualtieri, 41
F.4th 1329, 1336-37 (11th Cir. 2022). In that case, this court (in
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8 Opinion of the Court 23-10538
another case in which Sheriff Gualtieri was a party), discussed the
Florida courts’ interpretation of the meaning of “bad faith,” “with
malicious purpose,” and “wanton and willful disregard of human
rights [or] safety.” The term “bad faith” has been equated with the
actual malice standard. Id. at 1336. The term “malicious purpose”
has been interpreted as meaning that the conduct was committed
with “ill will, hatred, spite, [or] an evil intent.” Id. The term “wan-
ton and willful” has been interpreted as much more reprehensible
and unacceptable than mere intentional conduct. Id. And “wan-
ton” has been defined as acting with a conscious and intentional
indifference to consequences with knowledge that damage is likely
to be done, while “willful” is defined as acting intentionally, know-
ingly, and purposefully. Id. at 1336-37. Thus it is clear that the
officer’s subjective intent is key in determining the availability of
sovereign immunity.
Here, Wagner’s perception of a push or shove, and his reac-
tion to it, are proper lines of inquiry because they inform Wagner’s
subjective intent. Bulter, 41 F.4th at 1339. Neither the videos nor
Taylor’s recitation of what actually happened answer the question
of what Wagner thought he felt. Therefore, the district court did
not err when it held that summary judgment should be denied on
the sovereign immunity question on this part of the false arrest
claim because a reasonable jury could believe Wagner’s testimony
that he perceived a push or shove.
C. Inconsistent Factual Findings
Next, Sheriff Gualtieri argues that the district court’s find-
ings are inconsistent when it held that he was entitled to sovereign
immunity with respect to Taylor’s battery claim and her false arrest
claim for resisting an officer with violence but not her false arrest
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23-10538 Opinion of the Court 9
claim based on battery of a law enforcement officer. Where it
found that sovereign immunity was appropriate, the court stated
that no reasonable jury could find that Wagner did not act in bad
faith, with malice, or in a manner exhibiting wanton and willful
disregard of Taylor’s rights, safety, and property. In other words,
the district court held that the summary judgment evidence (the
videos in particular) was such that a reasonable jury would be re-
quired, as a matter of law, to find that Wagner acted in bad faith,
with malice, or in a manner exhibiting wanton and willful disregard
of Taylor’s rights or safety. In its order rejecting Gualtieri’s motion
for reconsideration, the court rejected Wagner’s belief that Taylor
resisted his efforts to handcuff her and found that no jury could
believe him. However, with respect to Taylor’s claim based on
battery on an officer, the court stated that a reasonable jury could
believe that Wagner thought Taylor had pushed or shoved him.
Regarding the different treatments accorded to Wagner’s
subjective, but erroneous, beliefs that Taylor pushed him and that
she resisted his efforts to handcuff her, the district court explained
that the videos conclusively showed that Taylor did not resist Wag-
ner at any time during his use of force. Further, she voluntarily
cooperated once she was taken to the ground. Despite the videos
showing this, Wagner testified that he ordered Taylor “to the front
of the vehicle multiple times as she continued to try and forcibly
pull away from [his] grip” and that she “refused to comply with
multiple orders to get to the ground.” But the videos showed that
after she took her drivers’ license back from Wagner and began to
walk away, Wagner grabbed her from behind with both arms and
threw her forcefully into the back of the pickup truck. He then
held her arms behind her back, spun her around, and threw her
face first onto the parking lot pavement. With Taylor on the
ground, Wagner placed his knee on her back and smashed her face
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into the pavement multiple times, even after she gave her hands
for him to handcuff.
By contrast, the interaction that the district court found to
be one where Wagner may succeed in persuading a jury that he
thought—we now know erroneously--he had been pushed or
shoved was a short interaction, involving Taylor walking over to
Wagner, grabbing her drivers’ license, and turning quickly to walk
away. While we use a subjective measure to determine whether
an action was done in bad faith, with malice, or in a manner exhib-
iting wanton and willful disregard of the victim’s rights, safety, and
property, the district court could properly determine from the clear
and extended view on the video that there was no chance that
Wagner could persuade a jury that Taylor resisted arrest. How-
ever, given the brevity of the initial interaction, he might be able to
persuade a jury that he thought he had been pushed or shoved.
This is not inconsistent.2
D. Entitlement to Sovereign Immunity: The Videos and Wagner’s Post-
Arrest Statements
Finally, Sheriff Gualtieri argues that he is entitled to sover-
eign immunity based on the facts in this case. In particular, he
2 Although the Sheriff’s reply brief argues that the district court erroneously
split the false arrest claim, we conclude that that argument was not fairly
raised in the Sheriff’s initial brief on appeal. Although that initial brief men-
tioned that the district court split the false arrest claim without providing any
case law precedent, there was no argument or citation of authority to support
the Sheriff’s implication that this was somehow error. We cannot conclude
that the Sheriff fairly raised the argument in his initial brief on appeal. Timson
v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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23-10538 Opinion of the Court 11
argues that the videos clearly show that Taylor did not push or
shove Wagner. The Sheriff also points to Wagner’s post-arrest
statements about receiving a push that, he argues, demonstrate
Wagner’s bad faith or malice.
While Sheriff Gualtieri argues that Wagner’s post-arrest
statements that he received a push from Taylor evince an effort to
conceal his false arrest, they could also be interpreted as a steadfast
belief in the veracity of his statement. Indeed, his continued testi-
mony in light of the videos could indicate that he sincerely believed
he had been pushed or shoved. This is a question for the jury and
thus the district court did not err. And we cannot disagree with the
district court that the videos do not conclusively demonstrate that
a reasonable jury might not believe Wagner’s testimony that he felt
something on his chest and perceived that he had been touched in
a manner that he could have perceived as a battery. In other words,
the brief initial interaction on the video is not clear enough to elim-
inate that possibility that a reasonable jury might believe Wagner’s
testimony and believe that Wagner—in perceiving that he had
been touched in a manner that could be perceived as battery—
acted in the absence of bad faith, malicious purpose or wanton and
willful disregard for Taylor’s rights or safety.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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