Marki Isom v. Paul Bulso, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14074
____________________
MARKI ISOM,
Plaintiff-Appellee Cross Appellant,
versus
PAUL BULSO,
in his official capacity and also individually,
RICK WELLS,
in his official capacity as
Sheriff of Manatee County, Florida,
Defendants-Cross Appellees,
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 1 of 23

-- 1 of 23 --

2 Opinion of the Court 20-14074
JOSEPH PALMERI,
in his official capacity and also individually,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-02035-MSS-SPF
____________________
Before W ILLIAM PRYOR , Chief Judge, G RANT, and ANDERSON, Cir-
cuit Judges.
PER C URIAM :
This case concerns an appeal and cross-appeal from a dis-
trict court’s decision regarding federal and state qualified immuni-
ty. Plaintiff Isom brought, among other claims, a 42 U.S.C. § 1983
claim for malicious prosecution under the Fourth Amendment1
1 When we use the term “malicious prosecution,” we do so “as only ‘a
shorthand way of describing’ certain claims of unlawful seizure under the
Fourth Amendment.”
Williams v. Aguirre, 965 F.3d 1147, 1157 (11th Cir.
2020) (quoting
Whiting v. Taylor, 85 F.3d 581, 584 (11th Cir. 1996)). “Sec-
tion 1983 is ‘a method for vindicating federal rights elsewhere conferred.’”
Williams, 965 F.3d at 1157 (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 2 of 23

-- 2 of 23 --

20-14074 Opinion of the Court 3
and a state law malicious prosecution claim against Palmeri, Bul-
so, and the Manatee County Sheriff’s Office. The district court
granted summary judgment to Defendants on all claims except
the § 1983 claim for malicious prosecution under the Fourth
Amendment and the state law malicious prosecution claim
against Palmeri. Palmeri appealed the district court’s interlocuto-
ry order denying him summary judgment. Isom cross-appealed
the grants of summary judgment to Bulso and the Sheriff’s Office.
After careful review and with the benefit of oral argument, we
dismiss the appeal and cross-appeal for lack of jurisdiction.
I. BACKGROUND
Marki Isom’s claims against Palmeri, Bulso, and the Mana-
tee County Sheriff’s Office stem from Isom’s arrest following a
traffic stop that occurred on April 1, 2014. Shortly before two in
the morning, Deputy Joseph Palmeri was on the 5700 block of
11th Street East Bradenton, Florida, a block Palmeri believed was
a “hot spot” for illegal drug activity. The sound of dogs barking
behind 5724 11th Street East led Palmeri to believe there was foot
traffic and possible drug activity in the area. Palmeri drove to
10th Street East in order to monitor traffic coming from 57th Av-
enue Terrace East, a dead end directly behind 5724 11th Street
(1979)). When we refer herein to a § 1983 claim for malicious prosecution
under the Fourth Amendment, we mean a claim for a “seizure pursuant to
legal process that violated the Fourth Amendment.”
Laskar v. Hurd, 972
F.3d 1278, 1284 (11th Cir. 2020).
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 3 of 23

-- 3 of 23 --

4 Opinion of the Court 20-14074
East. Palmeri backed into a driveway on 10th Street East and
turned off his headlights.
Shortly thereafter, a pickup truck with a broken headlight
pulled out of the dead end. Palmeri then radioed Deputy Gabriel
Bogart, who was also patrolling the area, to tell him he was
“about to pull over a car.” When Palmeri activated his lights to
attempt to pull the truck over, the truck did not stop. The truck
eventually pulled into the front yard of a house two blocks east of
10th Street East. The driver exited the truck and began to walk
away. After exiting his patrol car, Palmeri positioned himself in
front of the driver and told him to get back in the truck. The
driver responded, “You trippin’,” and began walking back to the
truck. As Palmeri approached from behind, the driver spun
around, struck Palmeri’s hand, and ran away.
Palmeri pursued on foot as the driver ran north on 12th
Street East and then headed west. Over the radio, Palmeri de-
scribed the driver as a six-foot-three black male with gold teeth.
Bogart later stated that he saw “a black male wearing dark col-
ored clothing” when he arrived at the scene. Bogart joined the
chase, but the chase ended when the driver jumped over a stock-
ade fence in a backyard.
After the chase ended, Palmeri and Bogart radioed for assis-
tance to set up a perimeter and called in the K-9 unit. The K-9
unit tracked the driver’s scent, leading the officers to 5724 11th
Street East—the address Palmeri was monitoring before the traf-
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 4 of 23

-- 4 of 23 --

20-14074 Opinion of the Court 5
fic stop. The officers knocked on the door of 5724 11th Street
East, but there was no answer. The pursuit ended.
Before the truck, which had been abandoned in the yard,
was towed, Palmeri and Bogart conducted an inventory search.
During the search, Bogart found a plastic grocery bag on the
floorboard between the passenger and driver’s seats. The bag
contained: (1) a loaded handgun, (2) several plastic bags “contain-
ing powder cocaine,” (3) two “prescription pill bottles . . . contain-
ing a large quantity of crack cocaine,” (4) three bags containing
marijuana, and (5) a “clear sandwich bag” containing 20 pills of
Xanax.
After the search, Palmeri ran the truck’s tags and deter-
mined that Hazel Isom was the owner of the vehicle. Hazel Isom
is Marki Isom’s mother. Palmeri was then informed by an uni-
dentified deputy that the Sheriff’s Office had “received an intel
bulletin regarding a Marki Isom.” This unidentified deputy sug-
gested Marki Isom might be the driver who fled. Palmeri re-
viewed the intel bulletin and identified Isom as the man he had
chased thirty minutes earlier. The bulletin contained three color
photographs of Isom, described him as six foot four and 220
pounds, and stated that he “currently resid[es] at 5723 11th Street
East” and “CARRIES AN AK-47 RIFLE AT ALL TIMES (around
his neck).” Palmeri claims to have confirmed his identification by
looking up Isom’s driver license photograph in the Florida
DHSMV database. Palmeri claims that he was “100 percent posi-
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 5 of 23

-- 5 of 23 --

6 Opinion of the Court 20-14074
tive” Isom was the driver of the truck. Later that day of April 1,
Palmeri filed his report of the incident.
During the evening of April 1, Detective Paul Bulso was in-
formed that Palmeri had conducted the traffic stop. In his investi-
gation, Bulso reviewed Palmeri’s incident report and spoke with
Palmeri about “the events surrounding the . . . traffic stop.”
Based on this investigation, Bulso prepared and submitted affida-
vits in support of arrest warrants charging Isom with (i) trafficking
in cocaine in violation of Fla. Stat. § 893.135(1)(b), (ii) possession
of marijuana with the intent to sell in violation of Fla. Stat.
§ 893.13(1)(a)(2), (iii) possession of a firearm by a convicted felon
in violation of Fla. Stat. § 790.23(1)(a), (iv) battery of a law en-
forcement officer in violation of Fla. Stat. § 784.07(2)(b), (v) pos-
session of a controlled substance in violation of Fla. Stat.
§ 893.13(6)(a), (vi) possession of drug paraphernalia in violation of
Fla. Stat. § 893.147(1)(a), and (vii) driving while license suspended
with knowledge in violation of Fla. Stat. § 322.34(2)(c).
Bulso’s affidavits described the traffic stop and explained
that Palmeri identified Isom based on the intel bulletin and Isom’s
driver license. The affidavits falsely stated that the K-9 track led
Palmeri and Bogart to 5723 11th Street East—the house listed as
Isom’s address on the intel bulletin. As noted above, the K-9 track
actually led to 5724 11th Street East. Bulso stated in his deposi-
tion that Palmeri told him that the K-9 unit “ended up” at Isom’s
house. Palmeri denied speaking with Bulso about the arrest in his
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 6 of 23

-- 6 of 23 --

20-14074 Opinion of the Court 7
deposition, and Palmeri’s incident report correctly stated that the
K-9 track led to 5724 11th Street East.
The warrants were issued on May 14, 2014. Five days later,
Isom was arrested. Isom was released on bond after spending ap-
proximately eight hours in jail. Sometime after Isom’s release on
state charges but before he was arrested on federal charges, Palm-
eri encountered Isom. Isom says the encounter took place out-
side his aunt’s house on 10th Street. Palmeri claims it took place
near the dead end where he first observed the vehicle on the night
of the traffic stop. Palmeri claims to have been patrolling the area
and was surprised to see Isom out of jail. Palmeri asked Isom
how he got out of jail. Isom responded that he was going to sue
Palmeri for falsifying an affidavit against him. Palmeri then left.
In his deposition, Palmeri claimed it is his job to talk to the public
and that was why he made contact with Isom on that occasion.
After the state warrants were issued, Bulso spoke with
Derek Pollock, a DEA Task Force Agent, about the incident. On
June 3, 2014, Pollock applied for and received a federal arrest war-
rant that charged Isom with (i) possession with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), (ii) possession of a firearm by a convicted felon in viola-
tion of 18 U.S.C. § 922(g)(1), and (iii) possession of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A).
The affidavit in support of the federal arrest warrant de-
scribed the traffic stop and noted that Palmeri “was able to identi-
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 7 of 23

-- 7 of 23 --

8 Opinion of the Court 20-14074
fy the driver of the [truck] as ISOM by photograph.” Pollock’s af-
fidavit, in contrast to the state affidavit prepared by Bulso, correct-
ly stated that the K-9 track led to 5724 11th Street East and dis-
closed that Isom was “known to reside” at 5723 11th Street East.
Isom was arrested one day after the federal arrest warrant was is-
sued.
After the federal arrest, but also in early June, Pollock told
Bulso that Palmeri was “back[ing] off” his identification of Isom as
the driver of the truck. Around the same time, Bulso spoke with
Palmeri about the possibility that Dennis Simmons—Isom’s
brother—might have been the driver. Bulso testified that Sim-
mons and Isom are “similar in stature.” On June 25, Pollock
learned that DNA testing of the handgun and ammunition found
in the truck excluded Isom as a contributor.
About one week after the DNA results, the Magistrate
Judge granted the United States’ motion to dismiss the federal
charges, and Isom was released. The state charges were nolle
prossed shortly thereafter.
On May 15, 2018, Isom sued Bulso, Palmeri and the Mana-
tee County Sheriff’s Office in Florida state court. The case was
removed to federal court on August 16, 2018. After a motion to
dismiss, Isom filed a second amended complaint that alleged: (1)
state law false arrest and malicious prosecution claims against
Bulso and Palmeri in their individual capacities, (2) a state law
negligent supervision and retention claim against Sheriff Wells,
(3) a § 1983 claim against Sheriff Wells in his official capacity, (4)
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 8 of 23

-- 8 of 23 --

20-14074 Opinion of the Court 9
§ 1983 claims for false arrest and false imprisonment under the
Fourth Amendment2 against Bulso and Palmeri in their individual
capacities and against Sheriff Wells in his official capacity, and (5)
§ 1983 claims for malicious prosecution under the Fourth
Amendment against Bulso and Palmeri in their individual capaci-
ties.
Defendants moved for summary judgment on all claims.
The district court granted summary judgment to Sheriff Wells on
all claims. The district court also granted summary judgment to
Bulso on all claims. While the district court granted summary
judgment to Palmeri on most of the claims against him, the dis-
trict court denied summary judgment to Palmeri on the § 1983
malicious prosecution claim and the state law malicious prosecu-
tion claim. The district court found that Palmeri was not entitled
to federal qualified immunity on the § 1983 claim because a rea-
sonable jury could find that Palmeri knowingly misidentified
Isom. The district court found that Palmeri was not entitled to
summary judgment on the merits of the state law malicious pros-
ecution claim for the same reason. Palmeri appealed the denial of
summary judgment. Isom cross-appealed the grant of summary
judgment to Bulso and Wells.
2 The terms “false arrest and false imprisonment” are also shorthand for de-
scribing “certain claims of unlawful seizure under the Fourth Amendment.”
Williams, 965 F.3d at 1157. “A claim of false arrest or imprisonment under
the Fourth Amendment concerns seizures without legal process.”
Id. at 1158
(citing
Wallace v. Kato, 549 U.S. 384, 388–89 (2007)).
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 9 of 23

-- 9 of 23 --

10 Opinion of the Court 20-14074
II. JURISDICTION
We must first determine whether we have jurisdiction be-
fore we may address the merits.
Hall v. Flournoy, 975 F.3d 1269,
1274 (11th Cir. 2020) (citing
Ex parte McCardle, 74 U.S. 506, 514
(1869)). Because Palmeri seeks to appeal an interlocutory order
denying him federal qualified immunity and only challenges the
sufficiency of the evidence, we lack jurisdiction to hear his appeal
at this stage of the litigation.
See Hall, 975 F.3d at 1274. We focus
first on our jurisdiction of Palmeri’s appeal of the district court’s
denial of his claim of qualified immunity from Isom’s § 1983 claim
for malicious prosecution under the Fourth Amendment, but our
rationale also applies to Palmeri’s claim of state law immunity
from Isom’s state law malicious prosecution claim.
“Federal courts are courts of limited jurisdiction.”
Kokko-
nen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
We “possess only that power authorized by Constitution and
statute.”
Id. The Constitution provides that the “judicial Power
of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time or-
dain and establish.” U.S. Const. art. III, § 1. Congress has provid-
ed that the “courts of appeals . . . shall have jurisdiction of appeals
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 10 of 23

-- 10 of 23 --

20-14074 Opinion of the Court 11
from all final decisions of the district courts of the United States.”
28 U.S.C. § 1291.3
The Supreme Court has long given 28 U.S.C. § 1291 a
“practical rather than a technical construction.”
Cohen v. Benefi-
cial Indus. Loan Corp., 337 U.S. 541, 546 (1949). This means that
a decision can be final within the meaning of § 1291 without being
“the last order possible to be made in a case.”
Gillespie v. U.S.
Steel Corp., 379 U.S. 148, 152 (1964). One such example are or-
ders that fall within the collateral order doctrine.
See Mitchell v.
Forsyth, 472 U.S. 511, 524–25 (1985) (citing
Cohen, 337 U.S. at
546). The collateral order doctrine provides that there is jurisdic-
tion over an appeal if the order 1) “conclusively determine[s] the
disputed question, [2)] resolve[s] an important issue completely
separate from the merits of the action, and [3)] [is] effectively un-
reviewable on appeal from a final judgment.”
Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981) (quoting
Coopers
& Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
Qualified immunity affords protection to government offi-
cials “against ‘the costs of trial [and] the burdens of broad-
reaching discovery,’ as long as their conduct does not ‘violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’”
Hall, 975 F.3d at 1274–
3 Congress has also provided a statutory grant of jurisdiction over a limited
number of interlocutory decisions. 28 U.S.C. § 1292. Those limited excep-
tions are not at issue here.
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 11 of 23

-- 11 of 23 --

12 Opinion of the Court 20-14074
75 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982)).
For qualified immunity to apply, a government official “first must
show that she was acting within the scope of her discretionary au-
thority.”
Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019) (cit-
ing
Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)). Once
that is established, the plaintiff must meet the following two re-
quirements: 1) the officer “violated a federal statutory or constitu-
tional right,”
Paez, 915 F.3d at 1284, and 2) “the violation contra-
vened ‘clearly established statutory or constitutional rights of
which a reasonable person would have known’” at the time of the
officer’s conduct,
Hall, 975 F.3d at 1275 (quoting
Castle v. Appala-
chian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011)). The first
requirement “may be a mixed question of law and fact” while the
second is “purely a question of law.”
Hall, 975 F.3d at 1275.
The Supreme Court has held that “a district court’s denial
of a claim of qualified immunity, to the extent that it turns on an
issue of law, is an appealable ‘final decision’ within the meaning of
28 U.S.C. § 1291.”
Mitchell, 472 U.S. at 530. The Supreme Court
later clarified the importance of the requirement that the appeal
“turn[] on an issue of law.”
Id. The Court held that “a portion of
a district court’s summary judgment order that, though entered in
a ‘qualified immunity’ case, determines only a question of ‘evi-
dence sufficiency’ . . . is not appealable.”
Johnson v. Jones, 515
U.S. 304, 313 (1995). There, the Supreme Court held that those
types of evidence sufficiency issues do not meet the second prong
of the collateral order doctrine because that question is not sepa-
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 12 of 23

-- 12 of 23 --

20-14074 Opinion of the Court 13
rate from the merits of the plaintiff’s underlying claim.
Id. at 314.
The Court held that “a defendant, entitled to invoke a qualified
immunity defense, may not appeal a district court’s summary
judgment order insofar as that order determines whether or not
the pretrial record sets forth a ‘genuine’ issue of fact for trial.”
Id.
at 319–20. Our jurisdiction is not foreclosed just because “there
are controverted issues of material fact.”
Behrens v. Pelletier, 516
U.S. 299, 312–13 (1996). But “jurisdictional issues arise when the
only question before an appellate court is one of pure fact.”
Hall,
975 F.3d at 1276.
We recently held that we lacked jurisdiction over an appeal
from an interlocutory order when the officer “only ask[ed] us to
review the factual sufficiency of the district court’s decision classi-
fying the dispute at issue—whether the marijuana found in Hall’s
accessory building was planted—as genuine.”
Id. at 1277. In
Hall,
the officer “concede[d] that the planting of evidence, if true,
would violate clearly established law.”
Id. And, we continued,
“[o]ur precedents are, of course, also unequivocal that a law en-
forcement officer who plants evidence violates clearly established
law.”
Id. (citing
Jones v. Cannon, 174 F.3d 1271, 1289 (11th Cir.
1999)). Because of that, “all we [we]re left with [wa]s the factual
review of what happened—was Hall’s version of events right, or
was Flournoy’s?”
Hall, 975 F.3d at 1277. Because we were asked
only to determine whether “there was a genuine dispute of mate-
rial fact over whether the marijuana was planted,” we lacked ju-
risdiction over that appeal.
Id. at 1279.
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 13 of 23

-- 13 of 23 --

14 Opinion of the Court 20-14074
Hall controls our decision here, and we similarly lack juris-
diction. The district court found that a reasonable jury could find
that Palmeri knowingly misidentified Isom as the suspect. On ap-
peal, Palmeri argues that the evidence does not support the dis-
trict court’s finding. Palmeri challenges whether the summary
judgment record supports the district court’s conclusion that a
reasonable jury could find that the identification was suspicious or
that the identification may have been impermissibly suggestive.
In an attempt to undermine the significance of his omission from
his written incident report of the fact of the suspect’s gold teeth,
Palmeri argues that he did not know Isom at the time and did not
know he did not have gold teeth; and he argues that the photo-
graphs for his identification did not show Isom’s teeth. Thus, he
argues that his omission of the gold teeth was not an attempt to
bolster his identification, contrary to the district court’s sugges-
tion. Similarly, Palmeri also argues that the evidence shows that
he saw the suspect’s face, a claim the district court found disput-
ed. Palmeri also makes arguments which attempt to explain and
undermine the significance of his misleading indication to Bulso
that the K-9 unit led the officers to Isom’s residence. Ultimately,
Palmeri argues that “[t]he record evidence here supports at best
nothing more than a case of possible mistaken identity by Deputy
Palmeri which would not support a constitutional violation.”
Palmeri’s brief at 29. But these arguments all merely challenge
the sufficiency of the evidence. Palmeri, then, is simply arguing
that, although the district court held that a reasonable jury could
find that he knowingly misidentified Isom, he, in fact, only mis-
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 14 of 23

-- 14 of 23 --

20-14074 Opinion of the Court 15
takenly misidentified him. But “we do not have jurisdiction to
entertain such appeals when the defendant’s argument is merely,
‘I didn’t do it.’”
Bryant v. Jones, 575 F.3d 1281, 1294 n.19 (11th
Cir. 2009).
While Palmeri dresses up his argument as if he were chal-
lenging a legal question, Palmeri only really challenges the suffi-
ciency of Isom’s evidence. Specifically, Palmeri argues that the
“legal question for this Court to determine is whether the law was
sufficiently clearly established so as to provide fair warning to
Deputy Palmeri that as of April 1, 2014 it was a violation of con-
stitutional law for him to utilize the identification procedure that
he did here.” Palmeri’s brief at 22. But Palmeri’s restatement of
the question belies the idea that he is challenging an issue of law.
Palmeri’s restatement puts the relevant question as follows:
“whether it was a violation of constitutional law for Palmeri to
identify Plaintiff Isom only from a Sheriff’s office Intelligence Bul-
letin photograph as well as a DHSMV database photograph after
seeing the man’s face who fled from him during an attempted
traffic stop long enough to note that he was 6’3” black male with
gold teeth.”
Id. However, as indicated above in the preceding
paragraph, all of Palmeri’s arguments that his identification pro-
cedure was constitutional are evidence sufficiency arguments.
Moreover, another significant problem with Palmeri’s “le-
gal question” is that the district court did not hold that the identi-
fication procedure was constitutionally infirm. The district court
held—based on numerous factual circumstances—that a reasona-
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 15 of 23

-- 15 of 23 --

16 Opinion of the Court 20-14074
ble jury could find that Palmeri knowingly misidentified Isom;
and the district court held that knowingly misidentifying a suspect
violates clearly established law. Palmeri fails to challenge the dis-
trict court’s holding that such conduct does violate clearly estab-
lished law. Instead, Palmeri asks us to reevaluate the evidence,
agree with his reading of the facts, and then find that his was a
mistaken—not an intentional—misidentification. He then argues
that a mistaken identification does not violate clearly established
law. Therefore, although Palmeri mimics the arguments of a le-
gal challenge, the substance of his argument is a mere challenge
to the sufficiency of the evidence.
As noted, Palmeri does not challenge the district court’s
holding that an intentional misidentification would violate clearly
established law. Nor could he. To be clearly established, the law
must be set forth in precedent by the United States Supreme
Court, Eleventh Circuit, or Florida Supreme Court.
See Vinyard
v. Wilson, 311 F.3d 1340, 1351 n.22 (11th Cir. 2002). We have
previously held that “the Constitution prohibits a police officer
from knowingly making false statements in an arrest affidavit
about the probable cause for an arrest.”
Cannon, 174 F.3d at
1285. And we have held that this extends to any officer “who
provided information material to the probable cause determina-
tion.”
United States v. Kirk, 781 F.2d 1498, 1503 n.5 (11th Cir.
1986) (quoting
United States v. Leon, 468 U.S. 897, 923 n.24
(1984)). The district court held that a reasonable jury could find
that Palmeri knowingly misidentified Isom—i.e., made a knowing
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 16 of 23

-- 16 of 23 --

20-14074 Opinion of the Court 17
false statement to establish probable cause for an arrest. Since
that conduct violates clearly established law, and Palmeri fails to
argue otherwise, Palmeri’s argument that he is entitled to quali-
fied immunity challenges only the sufficiency of the evidence un-
derlying the district court’s conclusion. We have no jurisdiction
to review an appeal of an interlocutory order raising solely that
question.
The one difference between this case and
Hall is that Palm-
eri does not expressly concede that knowingly misidentifying
Isom would violate clearly established law. But, as discussed
above, although Palmeri does not expressly concede that know-
ingly misidentifying Isom violates clearly established law, the dis-
trict court so held and Palmeri does not challenge that decision.
Moreover, just as we found in
Hall that our precedents were “un-
equivocal that a law enforcement officer who plants evidence vio-
lates clearly established law,” 975 F.3d at 1277, the same is true
here for knowingly misidentifying a suspect. Although Palmeri
tries to couch his arguments in the language of challenging
whether his conduct violated clearly established law, the sub-
stance of his argument is merely that the evidence does not sup-
port a finding that he intentionally or recklessly misidentified
Isom. Thus, at this stage of the proceedings, we lack jurisdiction
over Palmeri’s appeal of the district court’s denial of qualified
immunity on Isom’s § 1983 claim for malicious prosecution under
the Fourth Amendment.
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 17 of 23

-- 17 of 23 --

18 Opinion of the Court 20-14074
Palmeri also appeals the district court’s denial of his de-
fense of Florida state law immunity from the state law malicious
prosecution claim. Although the district court held that Palmeri’s
summary judgment brief did not fairly raise state law immunity
and thus declined to entertain the issue, that issue would not be
immediately appealable in any event for the same reasons Palm-
eri’s challenge to qualified immunity on the § 1983 claim is not.
We, thus, lack jurisdiction over Palmeri’s appeal of his state law
immunity claim as well.
Finally, we dismiss the cross-appeal for lack of jurisdiction
also. Because we lack jurisdiction over an interlocutory appeal
from a grant of summary judgment that does not dispose of all
claims of all parties,
Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th
Cir. 1996), the cross-appeal must be “inextricably intertwined”
with an appealable order for us to exercise jurisdiction under the
doctrine of pendent appellate jurisdiction,
Jones v. Fransen, 857
F.3d 843, 850 (11th Cir. 2017). “Matters may be sufficiently inter-
twined where they ‘implicate[] the same facts and the same law.”
Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir. 2016) (quoting
Jackson v. Humphrey, 776 F.3d 1232, 1239 (11th Cir. 2015)). But,
because we lack jurisdiction over Palmeri’s appeal, there is no ap-
pealable order with which the issues in the cross-appeal can be
“inextricably intertwined.” And even if there were, neither issue
in the cross-appeal—the appeal against Bulso or Sheriff Wells—is
inextricably intertwined with Palmeri’s appeal. The claim against
Bulso requires the evaluation of what information Bulso knew
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 18 of 23

-- 18 of 23 --

20-14074 Opinion of the Court 19
when he applied for the warrant, facts that are not relevant for
Palmeri’s appeal.
See Paez, 915 F.3d at 1291 (finding that “[i]ssues
are not ‘inextricably intertwined’ with the question on appeal
when ‘the appealable issue can be resolved without reaching the
merits of the nonappealable issues’” (quoting
In re MDL-1824 Tri-
State Water Rts. Litig., 644 F.3d 1160, 1179 (11th Cir. 2011))).
And the claim against Sheriff Wells “raises the wholly separate is-
sue of whether [the office] had a policy, custom, or practice,” an
issue that need not be considered in resolving Palmeri’s appeal.
Fransen, 857 F.3d at 850. We, therefore, dismiss the cross-appeal
for lack of jurisdiction.
III. CONCLUSION
For the foregoing reasons, we dismiss the appeal and cross-
appeal for lack of jurisdiction.
DISMISSED.
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 19 of 23

-- 19 of 23 --

USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 20 of 23

-- 20 of 23 --

20-14074 WILLIAM PRYOR , C.J., Concurring 1
WILLIAM PRYOR , Chief Judge, concurring:
I agree that we lack jurisdiction over the appeal and cross-
appeal but write separately to express concern about one aspect of
the order denying qualified immunity to Joseph Palmeri. As part
of its determination that “a reasonable jury could find that the cir-
cumstances of [Palmeri’s] alleged identification [of Isom] were
highly suspicious,” the district court faulted Palmeri for “not
mak[ing] the alleged identification until after he learned that the
truck belonged to Isom’s mother.” This timing, the district court
concluded, “may have improperly predisposed [Palmeri] to identi-
fy Isom as the suspect.” In support of this conclusion, the district
court cited
Swanson v. Scott, 334 F. Supp. 3d 1203, 1217 (M.D.
Fla. 2018), for the proposition that “in [a] [s]ection 1983 malicious
prosecution action,” a court may “consider[] . . . whether [the] of-
ficer’s identification procedure was ‘impermissibly suggestive.’”
But the district court was mistaken. The impermissibly suggestive
nature of an identification is not an element of a Fourth Amend-
ment claim and, to the extent that it is relevant, the timing hurts,
not helps, Isom’s case.
The “impermissibly suggestive” test has no basis in our
Fourth Amendment jurisprudence.
Swanson derived the test
from a “two-step analysis” our Court has adopted for “assessing
the constitutionality of a trial court’s decision to admit an out-of-
court identification.”
See id. at 216–17 (citing
United States v. Di-
az, 248 F.3d 1065, 1102 (11th Cir. 2001)). But the impermissibly
suggestive nature of an out-of-court identification implicates “a
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 21 of 23

-- 21 of 23 --

2 WILLIAM PRYOR , C.J., Concurring 20-14074
defendant’s right to due process” under the
Fifth and
Fourteenth
Amendments.
See Neil v. Biggers, 409 U.S. 188, 198 (1972). We
have never held that the “impermissibly suggestive” test has a
role to play in determining whether an officer’s identification of a
suspect violated the
Fourth Amendment. And the Supreme Court
has warned against importing rules derived from the Fifth
Amendment into our Fourth Amendment jurisprudence.
See,
e.g.,
United States v. Knights, 989 F.3d 1281, 1299–1300 (11th Cir.
2021) (Rosenbaum, J., concurring in the judgment) (recounting
how “the Supreme Court has . . . dismissed this and other courts’
suggestions to adopt a Fourth Amendment version of the
Miran-
da rule . . . [used] in the Fifth Amendment context”).
The district court reasoned that evidence of an impermissi-
bly suggestive identification “could lead a reasonable jury to con-
clude that Palmeri was never able to identify Isom, and that
Palmeri’s alleged identification was knowingly false,” but the op-
posite is true. To recover against Palmeri, Isom must prove that
Palmeri “intentionally or recklessly made misstatements or omis-
sions necessary to support the warrant.”
Williams v. Aguirre, 965
F.3d 1147, 1165 (11th Cir. 2020). Yet, an unduly suggestive identi-
fication procedure raises due process concerns because it can
cause a witness
unintentionally to misidentify a suspect.
See Man-
son v. Brathwaite, 432 U.S. 98, 111–12 (1977) (explaining that the
“driving force” behind the rule against impermissibly suggestive
identification methods is that “[t]he witness’[s] recollection . . .
can be distorted easily by the circumstances”). So, if the district
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 22 of 23

-- 22 of 23 --

20-14074 WILLIAM PRYOR , C.J., Concurring 3
court is correct that learning that the truck belonged to Isom’s
mother had an impermissibly suggestive effect on Palmeri, a rea-
sonable jury could conclude that unintentional error—as opposed
to intentional or reckless conduct by Palmeri—was the cause of
the misidentification.
USCA11 Case: 20-14074 Date Filed: 03/08/2022 Page: 23 of 23

-- 23 of 23 --