               Case: 18-10791      Date Filed: 03/26/2020   Page: 1 of 16



                                                                            [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 18-10791
                             ________________________

                     D.C. Docket No. 5:14-cv-00485-WTH-PRL



OMAR T. ALSTON,

                                                                  Plaintiff-Appellant,

                                         versus

MARK SWARBRICK,
Deputy, Marion County Sheriff's Office,
in official and individual capacities,
DANIEL TRAMMEL,
Deputy, Marion County Sheriff's Office,
in official and individual capacities,
SHERIFF OF MARION COUNTY, FLORIDA,

                                                               Defendants-Appellees,

FNU DIXON,
Captain, Marion County Sheriff's Office,
in official and individual capacities, et al.,

                                                                            Defendants.
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                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                       (March 26, 2020)

Before WILSON and GRANT, Circuit Judges, and MARTINEZ,∗ District Judge.

WILSON, Circuit Judge:

       Omar Alston appeals the district court’s grant of summary judgment in favor

of Officer Mark Swarbrick, Officer Daniel Trammel, and the Marion County

Sheriff in his 42 U.S.C. § 1983 action. In his complaint, Alston asserted that

Swarbrick falsely arrested him and used excessive force; Trammel failed to

intervene; and the Sheriff had a custom or policy of excessive force or failed to

adequately train, supervise, and discipline Swarbrick and Trammel. On appeal,

Alston contests the district court’s grant of summary judgment on each of his

claims. After reviewing the record, and with the benefit of oral argument, we

reverse the district court’s grant of summary judgment to Officer Swarbrick on

Alston’s false arrest claim and Alston’s excessive force claim regarding an alleged

three-to-five minute period of pepper spraying, and remand those claims for further

proceedings. We affirm the district court’s grant of summary judgment to Officer


∗  Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida,
sitting by designation.



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Swarbrick as to any other allegations of excessive force, and likewise affirm the

claims against the Sheriff and Officer Trammel.

                                   I. Background

      Alston asserted the following facts at summary judgment. In June 2011,

Officers Swarbrick and Trammel of the Marion County Sheriff’s Department were

called to investigate a domestic dispute. A minor in Alston’s custody, Q.D.B., had

gone to a neighbor’s house to ask for a knife to kill Alston. After Q.D.B. was

handcuffed and placed in Trammel’s vehicle, Trammel stood with Q.D.B.’s

mother, Temekia Morris; Morris’s other minor son, L.D.B.; and a crowd of

onlookers as Swarbrick approached Alston and began aggressively questioning

him about what happened. Alston acknowledged Swarbrick by saying “Good

morning,” but ignored his questions. Swarbrick repeatedly asked Alston what

happened, but Alston continued responding only, “Good morning.” Unwilling to

talk to Swarbrick about what happened, Alston finally turned around and stated

“[f***] you I don’t have to answer anything” while walking away from Swarbrick.

Swarbrick ran after Alston, slammed him into the street from behind, and arrested

him for disorderly conduct under Florida Statute § 877.03. Swarbrick handcuffed




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Alston behind his back and threw him in the back of his patrol car while Trammel

stood back and watched with Morris, L.D.B., and the other onlookers.

      While handcuffed with his hands behind his back in the patrol car, Alston

retrieved his cell phone and called his aunt to tell her what was happening. Seeing

Alston’s movements inside the vehicle, Trammel approached Alston and took his

cell phone. Swarbrick then forcefully removed Alston from the vehicle to search

him, pulling down his pants and revealing his genitalia in the process. Swarbrick

took an additional cell phone and a set of car keys from Alston and threw him back

inside the vehicle. Morris then approached Swarbrick to request that he give her

the keys and phones he obtained; Swarbrick made her beg for the items before

returning them to her.

      This led to a heated verbal exchange between Swarbrick, who was sitting in

the driver’s seat, and Alston, who was still in the backseat with his hands

handcuffed behind him. Enraged, Swarbrick jumped out of the vehicle, reached

inside, and tried to pull Alston out by jerking him by his arm. Alston repeatedly

screamed in pain and yelled that his foot was stuck under the seat. Swarbrick

continued jerking harder and then grabbed his pepper spray and sprayed Alston

repeatedly in the face. Trammel came over and freed Alston’s foot from the other

side of the car, thus allowing Swarbrick to pull Alston out of the vehicle.

Swarbrick continued to pepper spray Alston’s face for three to five minutes while



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Alston laid on the ground, screaming and yelling, with his hands still restrained.

Swarbrick then pulled Alston off the ground and “re-arrested” him for resisting an

officer without violence under Florida Statute § 843.02. 1 The charges were later

dropped.

       Swarbrick’s and Trammel’s versions of the facts differed in several aspects

from Alston’s. First, their affidavits stated that Alston’s behavior when Swarbrick

first approached him incited Morris and L.D.B. to run over to Swarbrick, requiring

Trammel to run over to provide security for Swarbrick. Second, neither of their

versions of the facts included Alston’s first removal from the car following a phone

call to his aunt. In fact, they contested Alston ever making such a phone call.

Third, the officers claimed that Alston moved his cuffed hands from behind his

back to the front, and that Swarbrick removed Alston from the patrol car so he

could reposition Alston’s handcuffs because permitting Alston to keep his hands in

front could pose a safety risk. Additionally, Swarbrick claimed that Alston was

threatening to urinate on him during their verbal exchange in the car, and that after

Alston moved his hands to the front, he started to unbuckle and pull down his pants

to make good on the threat.



1
  We briefly clear up one confusing factual issue: Alston was under arrest from the time he was
tackled and handcuffed by Officer Swarbrick. The parties’ disputes regarding Swarbrick’s
treatment of Alston after he was arrested go to the reasonableness of the force used to manage
the detainee under the relevant circumstances; removing him from the car did not amount to a
“second arrest.”


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      The district court granted summary judgment in favor of Swarbrick,

Trammel, and the Sheriff on all of Alston’s claims. It concluded that Swarbrick

was entitled to qualified immunity on the false arrest claims and did not use

excessive force. As to Trammel, the court held that he had no reason to intervene

because Alston did not use excessive force. Finally, the court concluded that the

Sheriff was not liable because neither Swarbrick nor Trammel had committed a

constitutional violation. Alston brought this appeal.

                                II. Qualified Immunity

      We review a district court’s rulings on a motion for summary judgment de

novo. See Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004). “We

view the evidence and all factual inferences therefrom in the light most favorable

to the non-moving party, and resolve all reasonable doubts about the facts in favor

of the non-movant.” Id. at 1226.

      When determining whether a defendant is entitled to qualified immunity, we

resolve any issues of material fact in favor of the plaintiff. Stephens v.

DeGiovanni, 852 F.3d 1298, 1313 (11th Cir. 2017). Police officers acting in their

discretionary authority are entitled to qualified immunity from suit unless a

plaintiff can establish that (1) the officer violated a constitutional right, and (2) the

right violated was clearly established. Grider v. City of Auburn, 618 F.3d 1240,

1254 (11th Cir. 2010).



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      “[I]t is well established that a warrantless arrest without probable cause

violates the Fourth Amendment and forms a basis for a section 1983 claim.”

Carter v. Butts Cty., 821 F.3d 1310, 1319 (11th Cir. 2016) (internal quotation mark

omitted) (alteration accepted). For probable cause to arrest to exist, an arrest must

be objectively reasonable based on the totality of the circumstances. Kingsland,

382 F.3d at 1226. This standard is met “when law enforcement officials have facts

and circumstances within their knowledge sufficient to warrant a reasonable belief

that the suspect had committed or was committing a crime.” Skop v. City of

Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). But arresting an individual without

probable cause will not remove the shield of qualified immunity so long as the

officer had “arguable probable cause” for the arrest. Id. Arguable probable cause

exists if “reasonable officers in the same circumstances and possessing the same

knowledge as the [d]efendants could have believed that probable cause existed to

arrest the plaintiff.” Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006)

(internal quotation mark omitted).

                               A. Disorderly Conduct

      Alston argues that Swarbrick lacked probable cause to arrest him for

disorderly conduct, and was therefore not entitled to qualified immunity, because

his words did not incite onlookers to breach the peace. He claims that the district




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court improperly drew factual inferences in favor of the officers when it found

otherwise.

      Florida Statute § 877.03 defines disorderly conduct as acts “of a nature to

corrupt the public morals, or outrage the sense of public decency, or affect the

peace and quiet of persons who may witness them.” Probable cause under

§ 877.03 cannot be based on “mere words.” Davis, 451 F.3d at 766; see State v.

Saunders, 339 So. 2d 641, 643–44 (Fla. 1976) (limiting the application of § 877.03

so that it would only apply to “fighting words” or “words like shouts of ‘fire’ in a

crowded theatre” to avoid First Amendment concerns); cf. Smith v. State, 967 So.

2d 937, 939–40 (Fla. 2d DCA 2007) (holding that defendant directing loud and

vulgar language towards police officer outside of a relatively busy bank did not

support a conviction for disorderly conduct); Barry v. State, 934 So. 2d 656, 658–

59 (Fla. 2d DCA 2006) (collecting cases; holding that defendant screaming

obscenities at police officer while pointing and shaking a finger in her face did not

support a conviction for disorderly conduct despite crowd of observers).

      Here, the district court improperly accepted the officers’ version of the facts

and drew inferences in their favor. The officers attested that Alston’s obscenities

incited Morris and L.D.B. to run toward Swarbrick, which in turn caused Trammel

to run over to provide security to Swarbrick. However, in his affidavit and Third

Amended Complaint, Alston states that Trammel, Morris, and L.D.B. stood back



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with other onlookers during the arrest and did not intervene. Therefore, a genuine

dispute of material fact exists as to when, or if, Morris and L.D.B. ran over to

Swarbrick and Alston, and whether Alston’s comments amounted to disorderly

conduct.

         The court also erred by concluding that Alston’s version of events, if true,

would establish probable cause for his arrest. According to Alston, Swarbrick

arrested him based merely on him refusing to answer questions and spouting

obscenities while walking away. But by 2011, it was clearly established that words

alone cannot support probable cause for disorderly conduct—including profanity

regarding police officers. See, e.g., Davis, 451 F.3d at 766; Gold v. City of Miami,

121 F.3d 1442, 1446 (11th Cir. 1997). Under those facts, no reasonable officer in

Swarbrick’s position could have believed there was probable cause to arrest Alston

under the Florida disorderly conduct statute. Therefore, the district court

improperly concluded that Swarbrick was entitled to qualified immunity on that

basis.

                        B. Resisting an Officer Without Violence

         Officer Swarbrick also argues that he had probable cause to arrest Alston for

resisting an officer without violence, claiming that Alston impeded his lawful

investigation of the incident involving Q.D.B. A conviction for resisting an officer

without violence under Florida Statute § 843.02 requires that “(1) the officer was



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engaged in the lawful execution of a legal duty; and, (2) the actions of the

defendant obstructed, resisted or opposed the officer in the performance of that

legal duty.” V.L. v. State, 790 So. 2d 1140, 1142 (Fla. 5th DCA 2001). “An

essential element of the offense of resisting a law enforcement officer without

violence is that the arrest must be lawful.” Id. at 1143.

      We conclude that, under Alston’s version of the facts, Swarbrick did not

possess arguable probable cause for arresting Alston under the resisting without

violence statute. At the time of the arrest it was clearly established that, as with the

disorderly conduct statute, “mere words” would not suffice to provide probable

cause for resisting without violence. See Davis, 451 F.3d at 766. And under

Alston’s version of the facts, he did not physically obstruct Swarbrick’s path or

otherwise prevent him from conducting his investigation as to Q.D.B. See id. at

765. Alston merely declined to cooperate or provide useful information. His

failure to answer Officer Swarbrick’s questions—and even his profanity-laced

response—were not even arguably sufficient to support probable cause under

§ 843.02. See id. Because Officer Swarbrick lacked arguable probable cause to

arrest Alston under this (or any other) statute, Alston’s false arrest claim must

proceed.




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                                 III. Excessive Force

      Alston then argues that because Swarbrick lacked arguable probable cause to

arrest him in the first place, any amount of force was excessive under the Fourth

Amendment. He also argues that the district court based its determination that

Swarbrick used a reasonable amount of force on its erroneous finding that Alston

repositioned his handcuffs.

       “The Fourth Amendment’s freedom from unreasonable searches and

seizures encompasses the plain right to be free from the use of excessive force in

the course of an arrest.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002).

“[E]ven de minimis force will violate the Fourth Amendment if the officer is not

entitled to arrest or detain the suspect.” Reese v. Herbert, 527 F.3d 1253, 1272

(11th Cir. 2008). However, under “this Circuit’s law[,] a claim that any force in an

illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and

is not a discrete excessive force claim.” Bashir v. Rockdale County, 445 F.3d

1323, 1331 (11th Cir. 2006) (citation omitted). We therefore disagree with Alston

that he may support an excessive force claim on the theory that any force is

excessive if the underlying arrest was illegitimate.

      Even after that rule is applied, however, the entirety of Alston’s excessive

force claim is not subsumed into his false arrest claim. In particular, Officer

Swarbrick’s alleged three to five minutes of pepper spraying may qualify as a



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sufficient “discrete constitutional violation relating to the manner in which an

arrest was carried out” that “is independent of whether law enforcement had the

power to arrest.” Id. at 1332. To determine whether Officer Swarbrick is entitled

to qualified immunity as to that use of force, we ask whether an “objectively

reasonable officer in the same situation could have believed the use of force was

not excessive.” Brown v. City of Huntsville, 608 F.3d 724, 738 (11th Cir. 2010).

In reviewing the use of force, a court must consider “[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 he is actively resisting arrest or attempting to

evade arrest by flight.” Id.

      We note at the outset that the district court made an improper credibility

determination when it concluded that Alston could not have made his alleged

phone call without moving his hands from behind his back to in front of his body.

Its reliance on United States v. Calderon was misplaced because that case said that

testimony is incredible as a matter of law only if the stated facts “could not have

occurred under the laws of nature.” See 127 F.3d 1314, 1325 (11th Cir. 1997).

That is not the case here, as it is not inconceivable that Alston could have made a

phone call with his hands behind his back, and a jury could reasonably conclude




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that he did.2 Accordingly, assuming that Alston’s hands were handcuffed behind

his back and he was restrained in the back of Swarbrick’s vehicle, he posed a

minimal threat to the officers—who allege only that he was threatening to urinate

on them. But we judge “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” See Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993). While Alston yelling that his foot

was stuck could have indicated to a reasonable officer that Alston was not actively

resisting removal from the vehicle, a reasonable officer may have believed—

following a heated verbal exchange—that Alston was intentionally resisting and

falsely claiming that his foot was stuck so as not to cooperate. Accordingly,

Officer Swarbrick is entitled to qualified immunity with regards to the initial force

used to remove Alston from the vehicle.

       But Alston’s allegations go further. Alston alleges a three-to-five minute

period during which Officer Swarbrick continuously used pepper spray on his face

while he lay on the ground helplessly. Under this Circuit’s caselaw, such a

prolonged use of pepper spray on a non-resisting and handcuffed detainee would

violate the detainee’s clearly established Fourth Amendment rights. See Vinyard v.




2
 In his affidavit, Alston states that he retrieved his cell phone while his hands were handcuffed
behind his back and called his aunt. Based on this record, it is not clear whether Alston claims to
have made the call by voice dialing and speakerphone, or by manually dialing the number.
Regardless, it is not inconceivable that he placed a call with his hands behind his back.


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Wilson, 311 F.3d 1340, 1349 (11th Cir. 2002). Of course, the finder of fact may

ultimately disbelieve Alston’s testimony and conclude that the alleged period of

prolonged pepper spraying did not occur. Nonetheless, viewing the facts in the

light most favorable to Alston, he has at least presented a genuine dispute of

material fact regarding Swarbrick’s use of force as to that period of pepper

spraying, and thus, granting summary judgment in favor of Swarbrick was

improper.

                               IV. Failure to Intervene

      Alston challenges the district court’s grant of summary judgment on his

claim that Trammel failed to intervene when Swarbrick pulled him from the patrol

car and used excessive force. “An officer who is present at the scene and who fails

to take reasonable steps to protect the victim of another officer’s use of excessive

force” can be liable for failing to intervene, so long as he “was in a position to

intervene yet failed to do so.” Hadley v. Gutierrez, 526 F.3d 1324, 1330–31 (11th

Cir. 2008) (alteration accepted).

      In his summary judgment affidavit, Alston claimed that Trammel stood off

with Alston’s family and the other onlookers while Swarbrick used excessive force

against him. However, he also claimed that, at some point while Swarbrick was

jerking him out of the patrol car, Trammel opened the driver’s side back passenger

door and freed his foot that was stuck. And, in his Third Amended Complaint, he



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stated that Trammel helped Morris restrain L.D.B., who was yelling at Swarbrick,

while Swarbrick pepper sprayed him. Alston did not allege what further steps

Trammel should have taken or that he had the opportunity to take further steps

while also restraining L.D.B. Thus, the record does not support that Trammel was

able to intervene but failed to do so, and therefore, he cannot be liable for failing to

intervene. We affirm the district court’s grant of summary judgment on this claim.

                                 V. Sheriff’s Liability

      Alston’s final argument is that the district court improperly granted

summary judgment on his claim against the Sheriff because the officers were liable

for several constitutional violations and he showed that the Sheriff failed to train

the officers and created a policy or custom of excessive force.

      For a supervisor to be liable under § 1983, he must be causally connected to

the constitutional issue by having an unlawful policy or custom. See Skop, 485

F.3d at 1145; Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1308 (11th Cir.

2006). A supervisor can also be liable under § 1983 if he is deliberately indifferent

to a lawful policy being repeatedly violated or a failure to train resulting in a

deprivation of people’s rights. See Keith v. DeKalb Cty., 749 F.3d 1034, 1052

(11th Cir. 2014); Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.

1986).




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      The district court properly granted summary judgment in favor of the

Sheriff. Alston provided practically no evidence to support his claims of a policy

or custom of excessive force, deliberate indifference to repeated violations, or a

failure to properly train. Indeed, the evidence presented was sufficient for a jury to

conclude that Swarbrick was up to date on his training. Therefore, no reasonable

jury could conclude that the Sheriff was causally connected to any potential

violation of Alston’s constitutional rights.

      Accordingly, we reverse and remand to the district court on Alston’s claims

of false arrest and excessive force as to the alleged period of pepper spraying, and

otherwise affirm the district court.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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