Tamara Brand v. Kevin Casal

Case: 16-10256 Date Filed: 12/19/2017 Page: 1 of 30

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-10256
________________________

D.C. Docket No. 1:13-cv-00322-AT

TAMARA BRAND,
THEO BRAND,

Plaintiffs-Appellees,

versus

KEVIN CASAL,
TERESA PARDINAS,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(December 19, 2017)

Before MARTIN, JILL PRYOR, and MELLOY, ∗ Circuit Judges.

∗
Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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MARTIN, Circuit Judge:

Shortly before midnight on February 7, 2011, Gwinnett County Sheriff

Deputies Kevin Casal and Teresa Pardinas went to the Snellville, Georgia home of

Tamara Brand and Theotis Brand to execute an arrest warrant for their son,

Wesley. By the time this encounter ended, Mrs. Brand and Deputy Casal had been

in a physical altercation, and Deputy Pardinas had tased Mrs. Brand. The Brands

sued Deputy Casal and Deputy Pardinas (“defendants”) under 42 U.S.C. § 1983,

alleging violations of the Fourth Amendment of the U.S. Constitution. The Brands

also made claims under Georgia’s Constitution that paralleled their federal claims.

The deputies moved for summary judgment. They say the federal claims against

them are barred by qualified immunity and the Georgia claims are barred by

official immunity. The District Court granted the deputies immunity as to some

claims, but not as to others. This is their appeal. After careful consideration, and

with the benefit of oral argument, we affirm the ruling of the District Court in part,

reverse in part, and remand for further proceedings.

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I. BACKGROUND

A. THE FACTS 1

1. Facts Leading to the Initial Encounter

In November 2010, a Magistrate Judge in Gwinnett County, Georgia issued

an arrest warrant for Wesley Brand for felony theft by taking of a motor vehicle.

Four months later, Deputy Sheriff Kevin Casal was assigned to serve that warrant.

The warrant described Wesley as a 27-year-old white male, 2 and listed his address

as “unknown.” Deputy Casal investigated and found an address for Wesley on a

Gwinnett County jail booking sheet dated about three weeks before the warrant

issued for him. The booking sheet listed Wesley’s address as 4179 Valley Brook

Road, Snellville, Georgia.

Then on February 7, 2011, shortly after 11:00 p.m., Deputy Casal and his

partner, Deputy Teresa Pardinas, arrived at 4179 Valley Brook Road to serve the

warrant. Deputy Pardinas immediately went around to the back of the house while

Deputy Casal stayed at the front. There was a car parked in the driveway, and

1
Some of the facts recounted here are disputed by the parties. In deciding claims of
qualified immunity, we accept the plaintiffs’ version of the facts. See Lee v. Ferraro, 284 F.3d
1188, 1190, 1194 (11th Cir. 2002). This account is therefore told in the light most favorable to
the plaintiffs.
2
Around the time of the incident, Wesley had begun to identify as a woman. He has
since changed his name and now lives as a woman. Nevertheless, because almost all the
evidence surrounding this event refers to Wesley as a man, we do as well.

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Deputy Casal asked the dispatcher to run the license plate. It returned to Theotis

Brand.

Deputy Casal walked up to the front porch of the house where a woman,

Jayne Velazco, was smoking a cigarette. 3 He asked Ms. Velazco if Wesley Brand

was there. Ms. Velazco responded that she “would get his mother and father.”

She went inside and shut the door. Ms. Velazco went upstairs to get the Brands,

who were in their bedroom where Mrs. Brand was nursing their 7-month-old baby.

The Brands then came downstairs to speak with the officer, Mr. Brand now

holding the infant. Ms. Velazco followed the Brands downstairs and sat on the

stairs in the foyer as Mrs. Brand opened the door to Deputy Casal.

2. Initial Encounter at the Brands’ Front Door

As soon as Mrs. Brand opened the front door, Deputy Casal put his foot

inside the doorway so the door could not close. He told Mrs. Brand “he had a

warrant for Wesley Brand, a 27-year-old white male.” Mrs. Brand was “totally

confused” by this because that description didn’t match her son. Wesley was 17

(not 27); is mixed race (not white); and had begun to live as a woman (not male).

So, to clarify things, Mrs. Brand asked if he wanted “Wesley Brand” or “a 27-year-

old white male.” Deputy Casal repeated that he wanted “Wesley Brand, [a] 27-

3
Ms. Velazco is related to the Brands and lived with them.

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year-old white male.” He then asked if Wesley was home. Mrs. Brand said she

didn’t know and called out for Wesley.

Hearing this, Wesley came up from the basement and stepped outside onto

the front porch where Deputy Casal was standing. Now Deputy Casal was

confused too, because Wesley looked different from the booking photo in the

warrant. Unlike in the photo, Wesley now “appeared as a female, with auburn

dyed hair, a lacy black blouse, ‘skinny jeans’ and white stiletto ‘cowgirl boots.’”

Deputy Casal said to Mrs. Brand, “Ma’am, I need to come inside.”

Mrs. Brand refused to let Deputy Casal come into the house. She told him

he couldn’t come in because he didn’t have a search warrant and because Wesley

was already outside waiting for Deputy Casal to arrest him. But Deputy Casal

insisted the arrest warrant gave him the authority to enter the house. Wesley then

went back inside. Deputy Casal continued asking Mrs. Brand to let him in, but she

refused and stood blocking the doorway.

Deputy Casal responded by grabbing Mrs. Brand by the shirt, trying to pull

her out of the doorway. She resisted and held onto the door frame. During the

tussle, Mrs. Brand’s shirt ripped and Deputy Casal was knocked off balance. The

front part of Mrs. Brand’s shirt ripped off, leaving her stomach, chest, and parts of

her back exposed. According to Mrs. Brand, “not only could individuals see

through [her] bra, but because of the tear, individuals could see [her] breasts.”

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3. Deputy Pardinas Joins In and Tases Mrs. Brand

At some point during these events, Deputy Pardinas radioed Deputy Casal,

but he did not respond. Because he wasn’t responding, she thought something

must be wrong, so she walked around to the front of the house. Both Mrs. Brand

and Wesley were in the foyer when Deputy Pardinas walked in through the front

door. Mr. Brand was there as well, still holding the baby, and Ms. Velazco

remained sitting on the stairs. Deputy Pardinas explained they had an arrest

warrant, then turned to Wesley and confirmed that he was Wesley Brand, the

subject of the warrant. Mrs. Brand was by now “extremely upset, agitated,” and

again told the officers to “get out of my house.”

Mrs. Brand then turned to Ms. Velazco and asked for a phone so she could

call 911. Ms. Velazco handed Mrs. Brand the home phone. Deputy Pardinas

ordered Mrs. Brand to “drop the phone,” but she did not. Instead she announced

she was dialing 911. Mrs. Brand began dialing when suddenly and without

warning, Deputy Pardinas tased her. The tase caused Mrs. Brand to fall to the

floor in “[h]orrible, excruciating” pain.

Deputy Pardinas ordered Mrs. Brand to lie flat on her stomach. Deputy

Pardinas began “punching [her] back,” striking Mrs. Brand about three times in an

attempt to get her to lie on her stomach. Mrs. Brand said she couldn’t lie flat

because she was pregnant. She kept one of her legs “elbowed out” to protect her

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stomach. Deputy Pardinas kicked Mrs. Brand’s leg several times to get her into a

fully prone position.

4. The Protective Sweep and Other Developments

Soon after Mrs. Brand was tased, other officers who had been called to the

scene began to arrive and file into the Brands’ home. There were eight or nine

officers in total. Deputy Casal was the “primary officer” that night and “directed

[the officers] to certain places” in the Brands’ home to conduct a “security sweep.”

Deputy Casal “pointed” them “to go to different areas of the house and search the

house.” According to Mr. Brand, the officers went through “pretty much

everything” in “[a]ll the rooms in the house,” even “going through drawers.”

Deputy Casal and Deputy Pardinas personally searched only areas of the home that

were adjacent to the foyer.

According to Mrs. Brand, after Deputy Pardinas removed the taser probes

from her body, Deputy Pardinas “took no steps to rearrange” Mrs. Brand’s shirt,

which had been “ripped open” by Deputy Casal. As a result, Mrs. Brand’s “entire

left breast” and “entire stomach” were exposed. Mrs. Brand repeatedly asked the

defendants for a shirt, and Mr. Brand even asked if he could give his wife his own

shirt off his back. The defendants refused. The other group of officers also

refused Mrs. Brand’s requests that they cover her. The officers laughed at her and

told her to “[s]hut the fuck up.” As a result, Mrs. Brand was left exposed for the

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entire time the eight or nine officers were in the Brands’ home, which was

approximately one hour. She remained exposed while the defendants took her and

Wesley to jail for booking.

Mrs. Brand was charged with two Georgia criminal offenses. She was

charged with obstructing a law enforcement officer (for allegedly swinging her

arms at Deputy Casal when he tried to enter her home), and with cruelty to

children in the third degree (for allegedly performing a “violent act” in front of her

infant child). She stood trial on these charges, and the jury acquitted her of all.

B. PROCEDURAL HISTORY

In January 2013, the Brands filed the civil complaint against Deputy Casal

and Deputy Pardinas that is the subject of this appeal. As set out above, they

alleged violations of the Fourth Amendment and the parallel provision of the

Georgia Constitution. See Ga. Const. Art. I, § I, Para. XIII. The deputies moved

for summary judgment on the basis of qualified immunity (under federal law) and

official immunity (under state law). The District Court denied them summary

judgment on the Brands’ claims for (1) unlawful entry; (2) excessive force; (3)

unlawful protective sweep; and (4) bodily privacy. This is the deputies’ timely

appeal of those rulings.

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II. GOVERNING LAW

We review de novo a district court’s ruling on summary judgment, including

the district court’s decision to grant or deny qualified immunity. Lee, 284 F.3d at

1190. The defense of qualified immunity “completely protects government

officials performing discretionary functions from suit in their individual capacities

unless their conduct violates ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” 4 Gonzalez v. Reno, 325 F.3d

1228, 1233 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct.

2508, 2515 (2002)).

In deciding whether an officer is entitled to qualified immunity, we conduct

a two-part inquiry. First, we ask whether the defendant’s “conduct violated a

constitutional right.” Id. at 1234 (quotation omitted). We make this decision

based on “the plaintiff’s version of the facts.” Lee, 284 F.3d at 1194. Second, we

ask whether the violation was “clearly established” at the time of the alleged

misconduct.5 Gonzalez, 325 F.3d at 1234 (quotation omitted). A right is clearly

established if it would have been “clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121

S. Ct. 2151, 2156 (2001). The “salient question” is whether the state of the law at
4
The Brands do not dispute that the deputies acted within their discretionary authority.
5
We can begin with either prong of the qualified immunity analysis. See Pearson v.
Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009).

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the time of the alleged misconduct gave the defendants “fair warning” that their

actions were unconstitutional. Hope, 536 U.S. at 741, 122 S. Ct. at 2516.

“Georgia has an analogue to qualified immunity called ‘official immunity.’”

Smith v. LePage, 834 F.3d 1285, 1297 (11th Cir. 2016). Under Georgia law,

public officials are entitled to “official immunity” for their discretionary acts

unless the plaintiff can show that the officer “act[ed] with actual malice or an

intent to injure.” Cameron v. Lang, 549 S.E.2d 341, 344–45 (Ga. 2001).

“‘[A]ctual malice’ requires a deliberate intention to do wrong,” Merrow v.

Hawkins, 467 S.E.2d 336, 337 (Ga. 1996), in other words, “a deliberate intention

to do an unlawful act.” Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999).

III. DISCUSSION

A. UNLAWFUL ENTRY CLAIM

The Brands allege that Deputy Casal and Deputy Pardinas violated the

Fourth Amendment when they entered the Brands’ home with an arrest warrant for

Wesley, but no search warrant for the home. In considering qualified immunity for

this claim, the District Court performed a separate analysis for the two deputies,

and reached different results. The court found Deputy Pardinas was entitled to

qualified immunity but Deputy Casal was not. Deputy Casal says this was error,

and we have concluded he is right. Deputy Casal, like Deputy Pardinas, is entitled

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to qualified immunity for entering the Brands’ home on the basis of the arrest

warrant.

Even with no search warrant, an arrest warrant authorizes an officer to enter

a person’s home when a two-part test is met. See Payton v. New York, 445 U.S.

573, 603, 100 S. Ct. 1371, 1388 (1980). The officer must have “a reasonable belief

[1] that the location to be searched is the suspect’s dwelling, and [2] that the

suspect is within the residence at the time of entry.” United States v. Magluta, 44

F.3d 1530, 1533, 1535 (11th Cir. 1995) (describing the “two-part inquiry”

established in Payton). Applying the Payton test to these facts, we conclude that

Deputy Casal’s entry was justified and therefore there was no constitutional

violation.

Deputy Casal had a reasonable belief that Wesley Brand lived at 4179

Valley Brook Road. To begin, the booking sheet from four months earlier listed

4179 Valley Brook Road as Wesley’s address, and this supports a reasonable belief

that Wesley lived there. See United States v. Bervaldi, 226 F.3d 1256, 1265–67

(11th Cir. 2000) (applying Payton and finding officer’s reliance on six-month-old

address reasonable because “[r]esidency in a house . . . generally is not transitory

or ephemeral, but instead endures for some length of time”). Deputy Casal also

relied on his short encounter with Ms. Velazco on the Brands’ front porch. When

Deputy Casal asked Ms. Velazco if Wesley was there, she said she “would get his

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mother and father.” A reasonable officer could infer from Ms. Velazco’s response

that Wesley lived at this location with his parents and that Ms. Velazco thought the

officer should speak with Wesley’s parents first.

For the District Court, the reasonableness of Deputy Casal’s belief that

Wesley lived at 4179 Valley Brook Road was undermined by the fact that the car

parked in the driveway belonged to Theotis Brand, as opposed to Wesley Brand.

According to the District Court, because the car “was registered to a different

Brand,” it was not reasonable to believe that Wesley lived there. We conclude to

the contrary. Deputy Casal went to 4179 Valley Brook Road in the first place

because it was the address Wesley gave for his jail booking sheet. Then, when

Deputy Casal got to the address, he saw a car parked in the driveway and learned it

was registered to someone with the same last name. It was reasonable to infer

from this that Wesley lived with Theotis (the owner of the car)—especially after

Ms. Velazco indicated that Wesley’s parents lived there. Thus, we conclude

Deputy Casal reasonably believed 4179 Valley Brook Road was Wesley’s

dwelling. See Magluta, 44 F.3d at 1535.

For the second prong of the Payton test, the facts also support a reasonable

belief that Wesley was in the house at the time Deputy Casal entered. Deputy

Casal came to the Brands’ home after 11:00 p.m. in early February. Under this

Court’s precedent, “officers may presume that a person is at home at certain times

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of the day—a presumption which can be rebutted by contrary evidence regarding

the suspect’s known schedule.” Id. at 1535. In Bervaldi, we applied this

presumption when officers approached the suspect’s house at 6:00 a.m. See 226

F.3d at 1267; see also United States v. Beck, 729 F.2d 1329, 1331–32 (11th Cir.

1984) (per curiam) (finding it “reasonable to believe that one would be at home at

7:30 a.m. and be sound asleep”). If “early morning raids” afford a presumption

that the suspect is home, Magluta, 44 F.3d at 1538 n.17, we think it also reasonable

for the officers to presume here that a person will be in their home at 11:00 p.m.,

especially on a cold February night. This record contains no evidence regarding

Wesley’s “known schedule” that would rebut this presumption. Id. at 1535. We

thus conclude Deputy Casal was reasonable in his belief that Wesley was in the

house at the time Deputy Casal went in.

Because Deputy Casal’s entry based on the arrest warrant was permitted

under Payton, it did not violate the Fourth Amendment. See Payton, 445 U.S. at

603, 100 S. Ct. at 1388. Deputy Casal is therefore entitled to qualified immunity

on the Brands’ unlawful entry claim and we reverse the District Court’s decision to

the contrary. 6

6
Because Deputy Casal’s entry did not violate the Fourth Amendment, the parallel state-
law claim also fails. See Wells v. State, 348 S.E.2d 681, 683 (Ga. Ct. App. 1986) (“[T]he
protection against unreasonable searches provided in the Georgia Constitution is the same as that
provided by the United States Constitution.”). Since the state-law claim for Deputy Casal’s entry
must be dismissed on the merits, we do not address the defense of official immunity.

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B. EXCESSIVE FORCE CLAIM

The Brands also allege that Deputy Pardinas used excessive force in

violation of the Fourth Amendment when she tased Mrs. Brand. The District Court

denied Deputy Pardinas qualified immunity on this claim. We affirm that decision.

1. Constitutional Violation

An officer’s use of force is excessive under the Fourth Amendment if the use

of force was “objectively [un]reasonable in light of the facts and circumstances

confronting” the officer. Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865,

1872 (1989) (quotation omitted). The use of force is reasonable only if it was

“necessary in the situation at hand.” Lee, 284 F.3d at 1197 (quotation omitted).

We evaluate whether force was constitutionally necessary by examining several

factors, including: “[1] the severity of the crime at issue, [2] whether the suspect

poses an immediate threat to the safety of the officers or others, and [3] whether

[the suspect] is actively resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396, 109 S. Ct. at 1872; see also Vinyard v. Wilson, 311 F.3d

1340, 1347 (11th Cir. 2002) (“To balance the necessity of the use of force used

against the arrestee’s constitutional rights, a court must evaluate [the Graham]

factors.”).

All the Graham factors point to the conclusion that Deputy Pardinas used

excessive force when she tased Mrs. Brand. The first factor calls on us to consider

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the severity of the crime that caused the encounter to begin with. Graham, 490

U.S. at 396, 109 S. Ct. at 1872. As far as Deputy Pardinas knew, Mrs. Brand was

not suspected of any crime when the deputy deployed her taser. Mrs. Brand was

not the subject of the arrest warrant. And although Mrs. Brand was eventually

arrested by Deputy Casal for obstruction and cruelty to children in the third degree,

these alleged offenses were based on conduct that occurred before Deputy Pardinas

joined Deputy Casal at the front of the house. Deputy Pardinas did not see, and did

not know about, the altercation between Mrs. Brand and Deputy Casal that led to

the charges against Mrs. Brand.7 Those charges do not therefore support the

reasonableness of Deputy Pardinas’s use of force. See Rodriguez v. Farrell, 280

F.3d 1341, 1352–53 (11th Cir. 2002) (“We do not use hindsight to judge the acts of

police officers; we look at what they knew . . . at the time of the act.”).

Second, Mrs. Brand did not pose any “immediate threat to the safety of the

officers or others” when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109

S. Ct. at 1872. It is true Mrs. Brand was “extremely upset [and] agitated” that the

officers would not get out of her house. But, under the Brands’ version of

7
Deputy Pardinas said she could see Deputy Casal “struggling” and “being pushed” in
the doorway of the house as she came around to the front. But Mr. Brand’s testimony disputes
this. He said that because the front porch is elevated at a steep angle from the ground, Deputy
Pardinas could not possibly have seen the struggle at the front door. Again, “we are required to
resolve all issues of material fact in favor of the plaintiff” and “approach the facts from the
plaintiff’s perspective,” Lee, 284 F.3d at 1190, so we must assume for purposes of this appeal
that Deputy Pardinas could not see the altercation.

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events—which we accept at this stage—Mrs. Brand was never violent or

aggressive toward the officers. For example, Ms. Velazco reports that Mrs. Brand

never even yelled. Indeed, Ms. Velazco testified that “[t]he only aggressive acts

came from the officers.” Mrs. Brand was simply standing in her foyer, asking the

officers to leave, holding a phone, and attempting to dial 911. The defendants

point to the fact that Mrs. Brand disobeyed Deputy Pardinas’s order to “drop the

phone.” But there was nothing dangerous about Mrs. Brand holding a phone in the

first place, especially where she made clear she was using it only to dial 911. Her

refusal to comply with the order to drop the phone did not pose any threat to the

safety of the officers, and certainly was not a threat that would necessitate the use

of a taser with no warning to Mrs. Brand. Cf. Fils v. City of Aventura, 647 F.3d

1272, 1288 (11th Cir. 2011) (“[R]esisting arrest without force does not connote a

level of dangerousness that would justify a greater use of force.”).

Third and finally, Mrs. Brand was neither actively resisting arrest nor

attempting to escape when Deputy Pardinas tased her. Graham, 490 U.S. at 396,

109 S. Ct. at 1872. By all accounts, she had not even been told she was under

arrest at the time she was tased.

Based on the Brands’ account of the facts, we are persuaded that Deputy

Pardinas “used force that was plainly excessive, wholly unnecessary, and, indeed,

grossly disproportionate under Graham.” Lee, 284 F.3d at 1198. We therefore

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conclude that Deputy Pardinas’s tasing of Mrs. Brand constituted excessive force

in violation of Mrs. Brand’s Fourth Amendment rights.

2. “Clearly Established” Law

Having concluded that Deputy Pardinas’s conduct violated a constitutional

right, the next question in our qualified immunity analysis is whether that

constitutional right was “clearly established” at the time. Gonzalez, 325 F.3d at

1234 (quotation omitted). We conclude that it was.

In Fils, this Court considered whether an officer was entitled to qualified

immunity for tasing a man who (1) was suspected of only a minor crime

(disorderly conduct); (2) “clearly did not present a threat to [the officer’s] safety,

or to the safety of anyone else”; and (3) “was not resisting arrest or attempting to

escape.” 647 F.3d at 1288–90. In affirming the denial of qualified immunity, we

held that our prior precedent in Priester v. City of Riviera Beach, Florida, 208 F.3d

919 (11th Cir. 2000), 8 and Vinyard, 311 F.3d 1340,9 “clearly establish that such

force is excessive where the suspect is non-violent and has not resisted arrest.”

Fils, 647 F.3d at 1292.

8
In Priester, the police officer set his attack dog on the plaintiff even though the plaintiff
had submitted to the officer’s commands and was lying flat on the ground. 208 F.3d at 927.
9
In Vinyard, the police officer pepper sprayed the eyes of a non-violent plaintiff who was
handcuffed safely in the back seat of the officer’s squad car and did not pose a threat to the
officer. 311 F.3d at 1347–48.

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Just like the officer in Fils, Deputy Pardinas tased Mrs. Brand even though

she was not violent or aggressive and was not resisting arrest. So in the same way

we did in Fils, we again recognize that our law was clearly established that the use

of a taser under such circumstances was excessive force.10 The District Court

therefore properly denied Deputy Pardinas qualified immunity on the Brands’

excessive force claim.

3. Parallel State-law Claim

We also affirm the District Court’s denial of official immunity to Deputy

Pardinas for the Brands’ state-law excessive force claim. As mentioned earlier, in

order to overcome official immunity, the plaintiff must show the officer “act[ed]

with actual malice or an intent to injure.” Cameron, 549 S.E.2d at 344–45. A

reasonable jury could find that Deputy Pardinas acted with actual malice or intent

to injure because she used extreme physical force against Mrs. Brand even though

the facts, when viewed most favorably to the plaintiffs, show Mrs. Brand posed no

threat whatsoever. See Kidd v. Coates, 518 S.E.2d 124, 125 (Ga. 1999) (“[I]f

[officers] shot [the suspect] intentionally and without justification, then they acted

10
For qualified immunity purposes, the law that clearly establishes a violation “must
be . . . in effect at the time of the alleged violation.” McClish v. Nugent, 483 F.3d 1231, 1237
(11th Cir. 2007). Although Fils was decided five months after the events of this case, Fils held
that the use of a taser against a non-violent person who has not resisted arrest was clearly
established under our circuit’s law at least as far back as 2003 (when the events of Fils
happened). See 647 F.3d at 1276. As a result, under Fils, Deputy Pardinas’s violation in 2011
was also clearly established.

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solely with the tortious actual intent to cause injury.” (quotation omitted)).

Because a genuine dispute of material fact exists about whether Deputy Pardinas

acted with actual malice or intent to injure, she is not entitled to official immunity.

Id.

C. CLAIM OF UNLAWFUL PROTECTIVE SWEEP

The Brands next claim the protective sweep conducted of their home after

Mrs. Brand was tased violated their Fourth Amendment rights. They seek to hold

Deputy Casal liable for this violation. The District Court denied Deputy Casal

qualified immunity on this claim. After careful review, we reverse the District

Court on this claim.

In Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990), the Supreme

Court held that officers are permitted, in the context of a valid arrest, to conduct a

“protective sweep” of a residence for the purpose of ensuring the officers’ safety.

Id. at 333–35, 110 S. Ct. at 1097–99. The “protective sweep” is justified if the

“officer possessed a reasonable belief based on specific and articulable facts . . .

that the area swept harbored an individual posing a danger to the officer or others.”

Id. at 327, 110 S. Ct. at 1095 (quotation and citation omitted and alteration

adopted); see also United States v. Tobin, 923 F.2d 1506, 1513 (11th Cir. 1991)

(en banc) (finding a protective sweep justified following a drug-related arrest

where multiple vehicles were present at a house and occupants had lied about the

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number of people present, thus “[giving] rise to a reasonable belief that someone

else could be hiding in the house”); United States v. Caraballo, 595 F.3d 1214,

1225 (11th Cir. 2010) (approving a post-arrest sweep based on “inconsistent”

answers from suspects who “appeared extremely nervous”).

Ms. Velazco’s presence at the Brands’ home, as well as radio reports from

Deputy Pardinas identifying a man near the rear of the house,11 justifiably gave

Deputy Casal reason to believe there might be another person somewhere in the

house. There was also reason to believe that any other people in the house could

have presented a danger to the officers present. A violent encounter had just

transpired between Mrs. Brand and Deputy Pardinas—regardless of who was

responsible for that confrontation.12 In this environment of heightened tension, it

is not unreasonable for an officer to believe that others in the house might seek

further confrontation. The split-level layout of the home prevented Deputy Casal

from being able to see all the adjacent spaces where another person might be

hiding. See Buie, 494 U.S. at 333, 110 S. Ct. at 1098 (“An ambush in a confined

11
Deputy Pardinas had radioed Deputy Casal from the backyard reporting that she saw a
man at the rear of the house matching Wesley’s description. Because Wesley did not match the
description the deputies possessed before arriving at the house, it was reasonable for Deputy
Casal to suspect Deputy Pardinas had seen a different person out of view of the front entryway.
12
The Court must analyze the protective-sweep claim separately from the excessive-force
claim. See County of Los Angeles v. Mendez, 581 U.S. __, 137 S. Ct. 1539, 1547 (2017)
(rejecting an analysis in the Fourth Amendment context that would “instruct[] courts to look
back in time to see if there was a different Fourth Amendment violation that is somehow tied to
the [later Fourth Amendment violation]”).

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setting of unknown configuration is more to be feared than it is in open, more

familiar surroundings.”). For these reason, a brief protective sweep of the house

was justified.

This does not end the Fourth Amendment inquiry: we must still decide

whether the sweep exceeded the constitutionally allowable scope. A protective

sweep “may extend only to a cursory inspection of those spaces where a person

may be found,” and can extend “no more than necessary to protect the officer[s]

from harm.” Id. at 333, 335, 110 S. Ct. at 1098, 1099.

Deputy Casal personally searched only areas of the home that were adjacent

to the foyer. There are no allegations that this portion of the protective sweep was

in any way excessive. Therefore his actions did not violate the Fourth

Amendment.

The Brands do allege that other officers searched “pretty much everything”

in the home, including “going through drawers.” They seek to hold Deputy Casal

liable for the actions of those other officers. Searching through drawers plainly

goes beyond what is allowed for a protective sweep. See id. As a supervising

official, Deputy Casal can be held liable for that violation only if “there is a causal

connection between [his actions] . . . and the alleged constitutional deprivation.”

Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 802 (11th Cir. 1998)

(quotation omitted). “A causal connection can [] be established by facts which

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support an inference that the supervisor directed the subordinates to act unlawfully

or knew that the subordinates would act unlawfully and failed to stop them from

doing so.” Gonzalez, 325 F.3d at 1235. Because the initial protective sweep was

not unconstitutional, in order to impose liability on Deputy Casal the Brands would

need to establish a causal link between Deputy Casal and the unlawful portions of

the sweep.

The record establishes that Deputy Casal was the “primary officer” at the

Brands’ home and, and he “directed [officers] to certain places” in the home and

told them “[t]o search.” Specifically, when the other officers arrived at the Brands’

home, it was Deputy Casal who “pointed” them “to go to different areas of the

house and search the house.” Yet the record does not show that Deputy Casal

directed (or even knew of) the actions taken by the other officers in carrying out

the sweep. Thus there is no direct causal connection between Deputy Casal’s

actions and any officer’s decision to search through drawers or otherwise exceed

the proper scope of a protective sweep. Deputy Casal cannot therefore be liable for

the claim that the protective sweep exceeded its proper scope.13

13
Because Deputy Casal is not liable under the Fourth Amendment for an improper
protective sweep, the parallel state-law claim fails on the merits, and there is no need to address
the defense of official immunity. See Wells, 348 S.E.2d at 683.

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D. BODILY PRIVACY CLAIM

Finally, the Brands allege that Deputy Casal and Deputy Pardinas violated

Mrs. Brand’s Fourth Amendment rights by refusing to cover her exposed breasts

and by forcing her to continue to expose herself as she lay handcuffed in her foyer

and as she was taken to jail. The District Court denied the defendants qualified

immunity on this claim. We affirm that decision.

1. Constitutional Violation

A “seizure that is lawful at its inception can violate the Fourth Amendment

if its manner of execution unreasonably infringes interests protected by the

Constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005);

see also United States v. Place, 462 U.S. 696, 707–08, 103 S. Ct. 2637, 2645

(1983) (“[T]he manner in which the seizure was conducted is, of course, as vital a

part of the inquiry as whether it was warranted at all.” (quotation omitted and

alterations adopted)). The seizure of a person can be rendered unconstitutional

when officers unreasonably infringe on the person’s “right to bodily privacy.”

Fortner v. Thomas, 983 F.2d 1024, 1026 (11th Cir. 1993); see, e.g., May v. City of

Nahunta, 846 F.3d 1320, 1331 (11th Cir. 2017) (holding that “the manner in which

[the officer] conducted the seizure violated [the plaintiff’s] Fourth Amendment

right” where the officer “lock[ed] himself in a room with [the plaintiff] in a state of

undress”). As this Court has said, “people have a protected privacy interest in

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avoiding . . . exposure of their naked bodies.” Padgett v. Donald, 401 F.3d 1273,

1281 (11th Cir. 2005).

The Brands argue that the defendants violated this right to bodily privacy by

refusing to cover Mrs. Brand’s exposed breasts. Specifically, Mrs. Brand said

people “could [] see through [her] bra” and “could see both [her] breasts.” Ms.

Velazco testified that Mrs. Brand’s “breast was exposed,” and Wesley testified that

her “left breast was out, totally out.” Despite the Brands repeated requests that the

defendants allow Mrs. Brand to have a replacement shirt or something else to

cover herself, the defendants refused. Viewing this record in the light most

favorable to the plaintiffs, it shows that because the defendants did not let Mrs.

Brand cover herself, at least one of her breasts was exposed to all the officers who

came into the Brands’ home that night and to anyone else who may have seen Mrs.

Brand as she was taken from her home to the jail for booking. On these facts, we

hold that the defendants’ refusal to cover Mrs. Brand violated her Fourth

Amendment rights.

In Los Angeles Cty. v. Rettele, 550 U.S. 609, 127 S. Ct. 1989 (2007) (per

curiam), the Supreme Court set out the standard for deciding whether an officer

violates the Fourth Amendment when he forces a suspect to expose herself during

the course of an otherwise lawful search or seizure. In Rettele, officers entered the

plaintiffs’ home with a valid search warrant, ordered the plaintiffs—who were

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naked—out of bed, and did not allow them to “retrieve clothing or to cover

themselves with the sheets.” 550 U.S. at 611, 615, 127 S. Ct. at 1991, 1993. After

two minutes, the officers allowed the plaintiffs to dress. Id. The Court held that,

on those facts, the Fourth Amendment was not violated. Id. at 616, 127 S. Ct. at

1994. However, the Court explained that the officers’ conduct did not violate the

Fourth Amendment because:

[T]here is no allegation that the deputies prevented Sadler and Rettele
from dressing longer than necessary to protect their safety. Sadler
was unclothed for no more than two minutes, and Rettele for only
slightly more time than that. Sadler testified that once the police were
satisfied that no immediate threat was presented, “they wanted us to
get dressed and they were pressing us really fast to hurry up and get
some clothes on.”

Id. at 615, 127 S. Ct. at 1993 (emphasis added). The Supreme Court recognized

the plaintiffs’ Fourth Amendment interest in avoiding the “frustration,

embarrassment, and humiliation” of having officers enter their home while they

were “engaged in private activity” and then forcing them to stand nude. Id. at 615–

16, 127 S. Ct. at 1993. But on the record in Rettele, the Court concluded that the

officers were “act[ing] in a reasonable manner to protect themselves from harm,

[so] the Fourth Amendment is not violated.” Id. at 616, 127 S. Ct. at 1993–94.

Nevertheless, Rettele establishes that police officers violate the Fourth

Amendment when they force an arrestee to expose herself “longer than necessary

to protect their safety” or effectuate some other legitimate purpose. Id. at 615, 127

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S. Ct. at 1993. Deputy Casal and Deputy Pardinas refused to let Mrs. Brand or one

of her family members cover her exposed breast during the entire time they were in

the house—about one hour. Then they forced her to remain exposed while they

took her to the jail for booking. The defendants have pointed to no explanation

about why they couldn’t give Mrs. Brand a new shirt, or let Mr. Brand or Ms.

Velazco get her one as they asked to be allowed to do. Unlike Rettele, where the

involuntary nudity was constitutional because it was brief and lasted no longer than

necessary to protect the officers’ safety, Mrs. Brand’s involuntary exposure

continued for longer than necessary, with no good law-enforcement purpose. The

defendants’ infringement on Mrs. Brand’s bodily privacy therefore rendered their

seizure of Mrs. Brand unreasonable under the Fourth Amendment. See May, 846

F.3d at 1331 (concluding that officer’s “patent disregard for [the plaintiff’s]

personal dignity” over a “prolonged duration” was sufficient to violate the Fourth

Amendment because “it was clearly inappropriate for a male officer to lock

himself in a room with a woman in a state of undress under the circumstances,

particularly after she asked him to leave”); Shroff v. Spellman, 604 F.3d 1179,

1191 (10th Cir. 2010) (“Because [the officer] failed to present any justification for

requiring [the plaintiff] to expose her breasts in the presence of another person, we

conclude that [the officer] violated [the plaintiff’s] Fourth Amendment right to

personal privacy . . . .”); Mitchell v. Stewart, 608 F. App’x 730, 733–34 (11th Cir.

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2015) (concluding that, where officers “transported [plaintiffs] to jail with their

genitalia exposed,” a “reasonable jury could find [plaintiffs’] Fourth Amendment

rights were violated”).

2. “Clearly Established” Law

Having determined that the defendants’ conduct violated a constitutional

right, we must address whether that right was “clearly established” at the time of

the violation. Gonzalez, 325 F.3d at 1234. We conclude that it was.

Rettele gave law enforcement officers fair warning that they cannot force an

arrestee to expose her intimate body parts “longer than necessary to protect their

safety.” 550 U.S. at 615, 127 S. Ct. at 1993. This is exactly what these deputies

did to Mrs. Brand. In light of Rettele’s statement that involuntary exposure

becomes unreasonable “once the police [are] satisfied that no immediate threat [is]

presented,” id., a reasonable officer in the defendants’ position would have known

that forcing Mrs. Brand to expose her breasts for over an hour, when it was entirely

unnecessary to protect the officers’ safety, violated the Fourth Amendment. 14

14
Although the Supreme Court found the officers’ actions in Rettele did not constitute a
Fourth Amendment violation, a case can clearly establish a constitutional violation without itself
presenting one, so long as the reasoning is sufficient to put officers on notice of what would
constitute a violation. See Hope, 536 U.S. at 743, 122 S. Ct. at 2517 (explaining that because the
case clearly “cautioned” officers about the circumstances in which “a constitutional violation
might have been present” and the “point of severity” at which a violation “would . . . have
occurred,” the case “gave fair warning to [the defendants] that their conduct crossed the line of
what is constitutionally permissible”).

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The defendants argue the violation was not clearly established because at the

time of the violation, all the relevant Fourth Amendment caselaw involved the

exposure of genitals (or genitals and breasts), but not breasts alone. So, they say,

only “genital exposure” implicated the right to bodily privacy. We reject this

distinction. Although Rettele and the other bodily-privacy cases addressed people

whose exposure included genitalia, the cases give no indication that the distinction

between a person’s genitals and a woman’s breasts is of constitutional significance.

See Doe v. Luzerne Cty., 660 F.3d 169, 176 (3d Cir. 2011) (“[W]e are not aware of

any court of appeals that has adopted [] a requirement that certain anatomical areas

of one’s body, such as genitalia, must have been exposed for that person to

maintain a privacy claim . . . .”). 15 Rather, the decisions explain that the protected

Fourth Amendment interest is in avoiding the “embarrassment” and “humiliation”

of having one’s intimate body parts exposed, whatever those intimate parts may be.

Rettele, 550 U.S. at 615–16, 127 S. Ct. at 1993–94; see also Fortner, 983 F.2d at

1030 (recognizing “a prisoner’s constitutional right to bodily privacy” and

explaining that “involuntary exposure of” a person’s genitals “may be especially

15
Although the Third Circuit “locate[s] this right [to bodily privacy] within the
Fourteenth Amendment,” it explained that “the contours of the right appear to be the same” as
the right to bodily privacy that other circuits have “locate[d] . . . in the Fourth Amendment.”
Doe, 660 F.3d at 176 n.5; see also Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 494 (6th
Cir. 2008) (explaining that “the same privacy right” that “some circuits have found . . . located in
the Due Process Clause” of the Fourteenth Amendment also “derives from the Fourth
Amendment”).

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demeaning and humiliating” (quotation omitted and emphasis added)); Doe, 660

F.3d at 176–77 (refusing “to draw bright lines based on anatomical parts or

regions”). As this Court said in Padgett, a person’s “right[] to bodily privacy may

be violated by allowing [] correctional officers to view them in states of nudity.”

401 F.3d at 1281 (emphasis added). This language clearly encompasses more than

just a person’s genitals. See also Boxer X v. Harris, 437 F.3d 1107, 1111 (11th

Cir. 2006) (explaining that the right to bodily privacy protects against “the harm of

compelled nudity”). Given these explanations and articulations of the right to

bodily privacy, no reasonable officer would have concluded that the constitutional

principle of Rettele turned on whether the couple in that case was forced to show

their genitals rather than only the woman’s breasts. See Hope, 536 U.S. at 742,

122 S. Ct. at 2517 (warning against the “danger of a rigid, overreliance on factual

similarity” when conducting the clearly-established inquiry). Forcing a woman to

expose either body part against her will is a “degrading and humiliating method[]”

of conducting a seizure, which the Fourth Amendment protects against. May, 846

F.3d at 1332.

“In a civilized society, one’s anatomy is draped with constitutional

protections.” United States v. Afanador, 567 F.2d 1325, 1331 (5th Cir. 1978).16 A

16
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.

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reasonable officer would have known that subjecting Mrs. Brand to the indignity of

exposing herself to countless strangers for an extended period of time—for no

legitimate law-enforcement purpose—violated those constitutional protections.

We conclude, therefore, that the defendants’ violation of Mrs. Brand’s right to

bodily privacy was clearly established. We affirm the District Court’s denial of

qualified immunity on the Brands’ bodily-privacy claim. 17

IV. CONCLUSION

We affirm the District Court’s denial of summary judgment on the Brands’

federal claims for excessive force (against Deputy Pardinas) and bodily privacy

(against both defendants). We also affirm the denial of summary judgment on the

state-law claim for excessive force (against Deputy Pardinas). We reverse the

denial of summary judgment on the Brands’ federal and state-law claims for

unlawful entry (against Deputy Casal) and unlawful protective sweep (against

Deputy Casal). We remand for proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

17
We do not address official immunity for the bodily-privacy claim because the Brands
did not allege that claim under state law.

30