Kenneth Bailey v. Shawn T. Swindell

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14454
____________________
KENNETH BAILEY,
Plaintiff-Appellant,
versus
SHAWN T. SWINDELL,
In his individual capacity,
Defendant-Appellee,
MICHAEL RAMIREZ, et al.,
Defendants.
____________________
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Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:15-cv-00390-MCR-HTC
____________________
Before L AGOA and BRASHER , Circuit Judges, and B OULEE ,* District
Judge.
L AGOA , Circuit Judge:
This section 1983 case is before us for a second time. See
Bailey v. Swindell, 940 F.3d 1295 (11th Cir. 2019) (“Bailey I”). After
being arrested at his parents’ home, Kenneth Bailey filed suit
against the arresting officer, alleging that Deputy Shawn Swindell
violated his civil rights when Swindell tackled him through the
door of the house and then arrested him. In Bailey I, the district
court granted summary judgment in favor of Swindell on qualified
immunity grounds. We reversed the district court and held that
when the evidence was viewed in the light most favorable to Bai-
ley, the non-moving party, Swindell violated clearly established
law when he entered Bailey’s parents’ home to arrest him without
a warrant or exigent circumstances. See id. at 1298. And we con-
cluded that Swindell was not entitled to qualified immunity for his
violation of Bailey’s Fourth Amendment rights. Id. at 1303–04.
* Honorable J. P. Boulee, United States District Judge for the Northern District
of Georgia, sitting by designation.
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Following remand, the case went to trial.1 The jury re-
turned a verdict for Bailey and awarded Bailey $625,000 for his in-
juries. In a post-trial motion, Swindell moved for judgment as a
matter of law under Federal Rule of Civil Procedure 50(b). The
district court granted Swindell’s motion for judgment as a matter
of law and set aside the jury’s verdict.
Bailey appeals the district court’s order granting judgment
as a matter of law for Swindell on his false arrest claim under 42
U.S.C. § 1983. On appeal, Bailey argues that: (1) the district court
erred by granting Swindell qualified immunity after the jury found
that the hot pursuit exigency did not apply to his warrantless arrest,
and (2) the district court erred in considering exigent circumstances
when it was not one of the grounds for Swindell’s earlier motion
for judgment as a matter of law under Federal Rule of Civil Proce-
dure 50(a).
After careful review, and with the benefit of oral argument,
we reverse the district court’s grant of judgment as a matter of law
1 To be clear, this was the second trial in this case. Before
Bailey I, the district
court granted summary judgment in favor of Swindell as to Bailey’s false arrest
claim. The case then went to trial only on the issue of excessive force, which
had not been resolved on summary judgment. Following trial, Bailey ap-
pealed the earlier grant of summary judgment on the false arrest claim but not
the verdict on the excessive force claim. After we issued
Bailey I and re-
manded the case to the district court, the parties proceeded to a second trial
on questions of probable cause and exigent circumstances to justify warrant-
less entry into Bailey’s home.
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for Swindell on Bailey’s unlawful arrest claim and reinstate the
jury’s verdict in favor of Bailey.
I. FACTUAL AND PROCEDURAL BACKGROUND2
In September 2014, Bailey and his wife, Sherri Rolinger,
were going through a divorce. On the night of September 11, 2014,
Deputy Shawn Swindell received a call from Deputy Andrew Mag-
dalany, who had responded to a call at Bailey’s former marital
home following a verbal altercation between Rolinger and Bailey.
Magdalany relayed Rolinger’s complaints that Bailey was harassing
her, including coming to the home unannounced, turning photo-
graphs face down, leaving cigarette butts, and even installing cam-
eras in the home without Rolinger’s knowledge. Magdalany also
explained that Rolinger stated that Bailey was not “acting right”
and “had snapped.” At the time of the call, Magdalany had not yet
determined whether Bailey had committed any crime. Swindell
headed to Bailey’s parents’ residence, where he was living at the
time, to investigate.
Bailey voluntarily came out of his parents’ home onto the
front porch to talk with Swindell. Although Bailey repeatedly
asked Swindell why he was there, Swindell never explained what
he was investigating, but rather insisted that they go to his patrol
car to talk. At some point, Bailey said “Okay, if you’re not going
2 Because this case arises on the appeal of the district court’s judgment as a
matter of law for Swindell, we take and construe the facts in the light most
favorable to Bailey. See Bishop v. City of Birmingham Police Dep’t, 361 F.3d 607,
609 (11th Cir. 2004).
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to tell me why you’re here, I’m going to turn around and go in-
side.” Bailey crossed the threshold of the door and went inside the
house. At trial, Bailey and his family testified that Swindell then
ran toward Bailey and tackled him through the doorway of the
house while exclaiming, “I am going to tase you.” At trial, Swindell
testified to a different version of events, stating that he put his arm
on Bailey’s shoulder and told him he was not free to leave because
he could be arrested on charges of domestic violence, all before
Bailey entered the house. Swindell also testified that Bailey struck
Swindell with his arm while they were still on the front porch.
Once inside the house, Swindell and Bailey ended up on the
floor. After a physical conflict, more deputies arrived on scene, ar-
rested Bailey, and took him to the Santa Rosa County jail. As a
result of the arrest, Bailey suffered injuries, including herniated
disks in his neck.
The second trial focused on the moments before Bailey’s ar-
rest. On the third day of trial, the jury was instructed on the law of
exigent circumstances. The district court explained that “[e]xigent
circumstances justify a law enforcement officer’s warrantless entry
into a home without an occupant’s consent where either the arrest
was set in motion in an area that is open to public view, which in-
cludes a front porch, and the person flees into a home, and the of-
ficer immediately follows the fleeing suspect into the home from
the scene of the crime.” At the conclusion of the trial, the jury was
given a verdict form that combined general questions and special
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interrogatories.3 Because the verdict form included a question on
where the arrest was “initiated,” Swindell’s counsel requested a
definition for “initiate” from the district court. The district court
denied the request, reasoning that there is no legal definition of the
word and that the word “initiate” is a “commonly understood
term.”
Before deliberations, the district court instructed the jury
that they “are the judges of the facts in this case.” The first question
on the verdict form asked, “Did Deputy Shawn T. Swindell have
reasonable suspicion to detain Mr. Kenneth Bailey for a law en-
forcement investigation?” The jury answered yes. The verdict
form next asked, “Did Deputy Swindell have probable cause to ar-
rest Mr. Bailey?” The jury answered yes, which prompted them to
indicate which of the following supported their finding of probable
cause: (1) “Willfully, maliciously, and repeatedly following, harass-
ing, or cyberstalking another person;” (2) “Knowingly resisting, ob-
structing, or opposing a law enforcement officer who was engaged
in the lawful execution of a legal duty;” (3) “Knowingly and will-
fully resisting, obstructing, or opposing a law enforcement officer
who was engaged in the lawful execution of a legal duty by offering
to violence or doing violence to the officer;” and/or (4) “Battery on
a law enforcement officer.” Given the choice to select multiple op-
tions, the jury checked only the second: “Knowingly resisting,
3 See Appendix.
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21-14454 Opinion of the Court 7
obstructing, or opposing a law enforcement officer who was en-
gaged in the lawful execution of a legal duty.”
The next question asked, “Where was the arrest initiated?”
with choices: (1) “Outside the home” or (2) “Inside the home.” The
jury chose “Outside the home.” The verdict form next asked, “If
you determined that the arrest was initiated outside the home, did
exigent circumstances justify Deputy Swindell’s warrantless entry
into the home?” The jury answered no. Because the jury found
that exigent circumstances did not justify the warrantless entry into
the home, they were prompted to skip the next question identify-
ing which of the following exigent circumstances justified the en-
try: (1) “Hot pursuit of a fleeing suspect into the home;” (2) “Urgent
need to enter the home to prevent the imminent destruction of ev-
idence;” (3) “Specific and articulable facts supported a belief that
the suspect was armed and immediate entry into the home was
necessary for safety.”
Because the jury found that no exigent circumstances justi-
fied Swindell’s warrantless entry into the home, they proceeded to
answer the next question: “Did Deputy Shawn T. Swindell’s con-
duct cause Kenneth Bailey’s injuries?” and “Do you find that Ken-
neth Bailey should be awarded compensatory damages?” The jury
answered that Swindell did cause the injuries and that Bailey
should be awarded damages in the form of $625,000.00. There
were no objections to the jury’s verdict.
After the clerk read the verdict, Swindell asked for a ruling
on a previously raised motion for judgment as a matter of law. The
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district court denied it as moot but advised that the parties could
file post-trial motions. A judgment in accordance with the jury’s
verdict was entered on June 7, 2021.
Swindell filed a renewed motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(b), arguing that the
jury’s finding that Swindell initiated the arrest of Bailey outside the
home compelled entry of judgment in Swindell’s favor on qualified
immunity grounds. Because the jury found that the arrest was ini-
tiated outside the house, Swindell argued it was “inexplicabl[e]” for
the jury to also conclude that there were not exigent circum-
stances. Bailey opposed the motion, arguing that the jury had ex-
pressly rejected exigency. Given the jury’s finding that Swindell’s
actions violated a constitutional right, Bailey contended that the
only question remaining was whether that right was clearly estab-
lished.
On this question, the district court reasoned that it must de-
cide whether the law on the date of the incident gave Swindell clear
notice that his conduct was unconstitutional for purposes of quali-
fied immunity. And because “[t]he contours of the hot pursuit doc-
trine in the context of fleeing misdemeanants was an open legal
question at that time,” the district court determined that the law
was not clearly established and granted Swindell’s motion. The
district court vacated the jury’s judgment in favor of Bailey and en-
tered judgment as a matter of law in favor of Swindell. This appeal
followed.
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II. STANDARD OF REVIEW
We review a district court’s granting of a motion for judg-
ment as a matter of law de novo, considering only the evidence that
may properly be considered and the reasonable inferences drawn
from it in the light most favorable to the nonmoving party.
Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). Judg-
ment as a matter of law is appropriate when a court finds that “a
reasonable jury would not have a legally sufficient evidentiary basis
to find for [a] party on [an] issue.” Fed. R. Civ. P. 50(a)(1). “We will
not second-guess the jury or substitute our judgment for its judg-
ment if its verdict is supported by sufficient evidence.” EEOC v.
Exel, Inc., 884 F.3d 1326, 1329 (11th Cir. 2018) (quoting Lambert v.
Fulton County, 253 F.3d 588 594 (11th Cir. 2001)). “In determining
whether a government official is entitled to qualified immunity fol-
lowing a jury verdict, we view the evidence in the light most favor-
able to the party that prevailed at trial.” Oladeinde v. City of Birming-
ham, 230 F.3d 1275, 1290 (11th Cir. 2000) (citing Priester v. City of
Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000)). “In so doing,
we give deference to the jury’s ‘discernible resolution of disputed
factual issues.’” Id. (quoting Iacobucci v. Boulter, 193 F.3d 14, 23 (1st.
Cir. 1999)).
III. ANALYSIS
Although qualified immunity presents a question of law,
“resolution of this question can sometimes turn on issues of fact.”
Simmons v. Bradshaw, 879 F.3d 1157, 1163 (11th Cir. 2018). When it
is not evident from the allegations of the complaint alone that the
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10 Opinion of the Court 21-14454
defendants are entitled to qualified immunity, the case will proceed
to the summary judgment stage. Johnson v. Breeden, 280 F.3d 1308,
1317 (11th Cir. 2002). “Even at the summary judgment stage, not
all defendants entitled to the protection of the qualified immunity
defense will get it.” Id. As relevant here, “if the evidence at the
summary judgment stage, viewed in the light most favorable to the
plaintiff, shows there are facts that are inconsistent with qualified
immunity being granted, the case and the qualified immunity issue
along with it will proceed to trial.” Id. A defendant in those cir-
cumstances is, however, “not foreclosed from asserting a qualified
immunity defense at trial.” Vaughan v. Cox, 343 F.3d 1323, 1333
(11th Cir. 2003). At trial, the jury itself decides issues of fact that
are determinative of the qualified immunity defense but does not
apply the law of qualified immunity to those facts. Breeden, 280
F.3d at 1318.
In Bailey I, this Court, accepting Bailey’s version of events as
true, reversed the grant of summary judgment in favor of Swindell
because Swindell arrested Bailey without a warrant, consent, or ex-
igent circumstances. 940 F.3d at 1300. The case went to trial, where
the jury resolved the factual disputes surrounding Bailey’s arrest
and determined that the arrest was initiated outside the home but
that no exigent circumstances existed allowing for a warrantless en-
try into the home. It is these factual findings made expressly by the
jury that the district court should have used in reaching its conclu-
sions of law about qualified immunity. See Simmons, 879 F.3d at
1164 (“[T]he question of what circumstances existed at the time of
the encounter is a question of fact for the jury––but the question
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21-14454 Opinion of the Court 11
of whether the officer’s perceptions and attendant actions were ob-
jectively reasonable under those circumstances is a question of law
for the court.”).
When reviewing a district court’s decision on qualified im-
munity following a jury verdict, we give deference to the jury’s dis-
cernable resolution of disputed factual issues. Oladeinde, 230 F.3d
at 1290. Here, the jury was asked to determine whether exigent
circumstances existed to allow Swindell to enter the home without
violating Bailey’s constitutional rights. Particularly, the jury was
instructed that exigent circumstances exist where “the arrest was
set in motion in an area that is open to public view, which includes
a front porch, and the person flees into a home, and the officer im-
mediately follows the fleeing suspect into the home from the scene
of the crime.” The jury expressly found that exigent circumstances
did not justify Swindell’s warrantless entry into the home. Despite
the jury’s clear rejection of exigent circumstances, Swindell insists
such a conclusion is impossible because the arrest began outside
and ended inside--facts which, Swindell seems to believe, compel a
finding of “hot pursuit.” But the jury, as the trier of fact, expressly
found the opposite: that no exigent circumstances (hot pursuit or
otherwise) justified Swindell's warrantless entry into the home,
even though the arrest was initiated from outside.
The jury, which was not instructed on the meaning of “ini-
tiated,” simply believed the testimony from the Bailey family that
Swindell was outside the house, while Bailey was already inside,
when Swindell formed the intention to arrest Bailey and set it in
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motion. As commonly understood, the word initiate applies logi-
cally to this version of events.4 Although Bailey was inside the
house, Swindell was outside when he started or initiated his charge
toward Bailey. Far from inexplicable, the jury’s factual finding that
the arrest was initiated outside the home and that no exigent cir-
cumstances applied is consistent with the testimonies given at trial.
And as evidenced by the jury’s verdict form, the jury found
Bailey’s version of events more credible than Swindell’s testimony.
Despite Swindell’s testimony that Bailey struck Swindell outside
the house prior to his arrest, the jury explicitly rejected such a find-
ing when it concluded on the verdict form that neither “Battery on
a law enforcement officer” nor “Knowingly and willfully resisting
[a law enforcement officer] . . . by offering to violence or doing vi-
olence to the officer” supported probable cause. The jury chose to
believe Bailey’s testimony. We are not at liberty to second guess
their decision.
Swindell argues that the jury’s finding was legal, not factual,
because the jury did not answer whether hot pursuit existed, but
rather that exigency did not justify entry into the home. Swindell’s
argument is without merit. The district court instructed the jury
that exigent circumstances would apply and “justify a law enforce-
ment officer’s warrantless entry into a home without an occupant’s
consent” if the person “flees [from arrest] into a home, and the
4 “To begin, commence, enter upon; to introduce, set going, give rise to, orig-
inate, ‘start’ (a course of action, practice, etc.)” Initiate, Oxford English Diction-
ary (2d ed. 1989).
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officer immediately follows the fleeing suspect into the home.” At
trial, Bailey testified that he was not running away from the scene
and that Swindell had given no indication that he was under arrest
until Bailey was inside the home. By answering “no” to the exigent
circumstances question in the special interrogatories and by not
checking the box for “[h]ot pursuit of a fleeing suspect into the
home,” the jury found that this circumstance did not exist. Simply
put, the jury found that the arrest was initiated outside the house,
but that there was no hot pursuit. There is no confusion that the
jury answered a question of fact. Indeed, after the verdict, neither
side claimed that the jury’s findings were inconsistent, nor did they
seek to return the matter to the jury before it was discharged.
Given the jury’s binding factual findings, the correct ques-
tion for the district court to ask in deciding whether qualified im-
munity applied was whether it was clearly established that an of-
ficer violates the Constitution when he “initiates” an arrest outside
of a home and then enters the home without a warrant to com-
plete the arrest in the absence of exigent circumstances. And the
answer is yes.
“A right is clearly established when the state of the law gives
the defendants fair warning that their alleged conduct is unconsti-
tutional.” Patel v. Lanier County, 969 F.3d 1173, 1186 (11th Cir. 2020)
(cleaned up). The Supreme Court has “repeatedly told courts not
to define clearly established law at too high a level of generality.”
City of Tahlequah v. Bond, 595 U.S. 9, 11 (2021). The contours of the
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rule must be so well-defined that it is obvious to a reasonable officer
that his conduct was unconstitutional under the circumstances. Id.
Bailey’s right to be free from a warrantless arrest in his par-
ents’ home absent exigent circumstances was clearly established.
The Fourth Amendment provides that “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against un-
reasonable searches and seizures, shall not be violated.” As the text
suggests, “the ultimate touchstone of the Fourth Amendment is
‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
And the Constitution generally requires that officers obtain judicial
warrants before entering a home without permission. Groh v.
Ramirez, 540 U.S. 551, 559 (2004). There are, however, exceptions
to that warrant requirement. Brigham City, 547 U.S. at 403.
The relevant exception is for exigent circumstances. This ex-
ception applies when “‘the exigencies of the situation’ make the
needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.”
Mincey v. Arizona, 437 U.S. 385, 394 (1978) (quoting McDonald v.
United States, 335 U.S. 451, 456 (1948)); see also Payton v. New York,
445 U.S. 573, 590 (1980) (“[T]he Fourth Amendment has drawn a
firm line at the entrance to the house. Absent exigent circum-
stances, that threshold may not reasonably be crossed without a
warrant.”).
The Supreme Court has identified several exigencies that
may justify a warrantless search of a home. See Brigham City, 547
U.S. at 403. For example, an officer “may ‘enter a home without a
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21-14454 Opinion of the Court 15
warrant to render emergency assistance to an injured occupant[,]
to protect an occupant from imminent injury,’ or to ensure his own
safety.” Lange v. California, 141 S.Ct. 2011, 2017 (2021) (alteration
in original) (quoting Brigham City, 547 U.S. at 403). An officer may
also make a warrantless entry to “prevent the imminent destruc-
tion of evidence.” Brigham City, 547 U.S. at 403; see also United States
v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002) (noting that the ex-
igent circumstances doctrine extends to situations involving “dan-
ger of flight or escape, loss or destruction of evidence, risk of harm
to the public or the police, mobility of a vehicle, and hot pursuit”).
In those circumstances, the delay required to obtain a warrant
would bring about “some real immediate and serious conse-
quences” and so the absence of a warrant is excused. Welsh v. Wis-
consin, 466 U.S. 740, 751 (1984). But as this Court explained in the
case’s first appeal: “Unless a warrant is obtained or an exigency ex-
ists, ‘any physical invasion of the structure of the home, by even a
fraction of the inch, [is] too much.’” Bailey I, 940 F.3d at 1302 (al-
teration in the original) (quoting Kyllo v. United States, 533 U.S. 27,
37 (2001)). This rule is “not only firm but also bright.” Kyllo, 533
U.S. at 40.
On the question of whether the Constitution forbids war-
rantless arrests absent exigent circumstances, the law speaks clearly.
The line against such arrests “was drawn unambiguously in Payton,
traces its roots in more ancient sources, and has been reaffirmed
repeatedly since.” Bailey I, 940 F.3d at 1303; see also Kirk v. Louisiana,
536 U.S. 635, 636 (2002); Kyllo, 533 U.S. at 40; Welsh, 466 U.S. at 754;
Johnson v. United States, 333 U.S. 10, 15 (1948) (all reaffirming the
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16 Opinion of the Court 21-14454
unconstitutionality of warrantless in-home arrests absent exigent
circumstances). “As Payton makes plain, police officers need either
a warrant or probable cause plus exigent circumstances in order to
make a lawful entry into a home.” Kirk, 536 U.S. at 638. And “the
Supreme Court has re-inked Payton’s firm line on numerous subse-
quent occasions.” McClish v. Nugent, 483 F.3d 1231, 1242 (11th Cir.
2007). Because the law on this question is clearly established and
gave Swindell fair warning that his treatment of Bailey was uncon-
stitutional, Swindell was not entitled to qualified immunity and the
district court erred in holding otherwise.
IV. CONCLUSION
For these reasons, we reverse the district court’s grant of
judgment as a matter of law for Swindell and reinstate the jury’s
verdict for Bailey.5
REVERSED and REMANDED for reinstatement of jury
verdict.6
5 Because we reverse the district court’s judgment on these grounds, it is un-
necessary to address Bailey’s argument that the district court improperly heard
Swindell’s motion for judgment as a matter of law.
6 Swindell also argues for a remittitur for damages in a footnote. Because a
jury in Bailey I found that he did not use excessive force, Swindell argues that
even if we reverse, the only damages available are the damages flowing from
the unlawful entry alone, which would be de minimis nominal damages.
Swindell is mistaken. Section 1983 defendants “are, as in common law tort
suits, responsible for the natural and foreseeable consequences of their ac-
tions.” Jackson v. Sauls, 206 F.3d 1156, 1168 (11th Cir. 2000). Swindell might
not be liable for the excessive force claim, but he is liable for any and all rea-
sonably foreseeable damages caused by his unlawful entry. As the district
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Appendix
court instructed the jury before deliberations, “any force that Deputy Swindell
used to effectuate the unlawful arrest was a violation of the Fourth Amend-
ment.” Injuries resulting from a physical arrest are certainly foreseeable con-
sequences of an unlawful arrest in someone’s home.
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