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Eleventh Circuit rejects qualified immunity claim of defendant officers in civil rights case involving allegations of excessive force and invasion of bodily privacy

On December 19, 2017, in Brand v. Casal, No. 16-10256, the Eleventh Circuit Court of Appeals affirmed in part and reversed in part a trial court’s rulings on various summary judgment motions, premised on claims of qualified immunity, filed by the defendant police officers in a civil rights lawsuit alleging unlawful entry, excessive force, unlawful protective sweep and violation of bodily privacy.

The plaintiffs in the case are a husband and wife who are parents to a mixed-race son who was age 17 at the time of the incident in question and had begun to live and dress as a woman. According to their account of the events in question, two police officers came to the plaintiffs’ home at 11:00 p.m. with a motor vehicle theft arrest warrant for a person with the son’s name and address, but who was described in the warrant as a 27 year old white male. The plaintiffs then met one of the officers at the front door and the mother expressed confusion because her son was not 27 and was not a white male. However, she called out for the son and he came outside onto the porch. The officer was now confused, because the son, dressed and appearing as a woman, did not fit the description on the warrant.

When the officer told the mother that “I need to come inside,” she then allegedly refused, noting that he had no search warrant and her son was already outside waiting to be arrested. The officer then allegedly attempted to pull the mother out of the doorway, ripping her shirt partially off and exposing her breasts. The mother then attempted to call 911. The second police officer allegedly ordered her to stop and then tasered her when she persisted, and struck her several times when she did not lie on her stomach as commanded (the mother maintains that she told the officer she could not lie flat because she was pregnant). Other officers were then called in to conduct a protective sweep of the home which the plaintiffs allege involved a thorough search of the entire house, including cabinet drawers. The mother’s breasts were allegedly left exposed during the entire search, despite her requests that the officers cover her.

The Eleventh Circuit ruled that both officers were entitled to invoke qualified immunity with respect to the plaintiffs’ unlawful entry claim and that the officer who first encountered the family was entitled to invoke qualified immunity with respect to the protective sweep claim. However, the Court concluded that the officer who tasered the mother was not entitled to summary judgment on the claim for excessive force and neither officer was entitled to summary judgment regarding the bodily privacy claim.