Bashir v. Rockdale County, Ga.

• Decision Date: 14 April 2006
• Docket Number: No. 05-12020.,05-12020.
• Citation: 445 F.3d 1323
• Parties: Saleem BASHIR, Plaintiff-Appellant, v. ROCKDALE COUNTY, GEORGIA, a Political Subdivision of the State of Georgia, Jeff Wigington, Individually and in his Official Capacity as Sheriff of Rockdale County, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1323

445 F.3d 1323

Saleem BASHIR, Plaintiff-Appellant, v. ROCKDALE COUNTY, GEORGIA, a Political Subdivision of the State of Georgia, Jeff Wigington, Individually and in his Official Capacity as Sheriff of Rockdale County, et al., Defendants-Appellees.

No. 05-12020.

United States Court of Appeals, Eleventh Circuit.

April 14, 2006.

Robert Cape Buck, Schlueter, Buck & Childers, Brett Arthur Schroyer, Childers, Buck & Schlueter, LLP, Atlanta, GA, for Bashir.

Gary Kevin Morris, Terry E. Willimas & Assoc., Lawrenceville, GA, for Defendants-Appellees.

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

Before BLACK, HULL and FARRIS^*, Circuit Judges.

BLACK, Circuit Judge:

Appellant Saleem Bashir initiated this action pursuant to 42 U.S.C. § 1983 and Georgia law against Rockdale County, Georgia, and members of the Rockdale County Sheriff's Department, alleging Sheriff Deputy Edell Davis and several unnamed Rockdale County Deputies violated the Fourth Amendment and Georgia law when they entered his home without a warrant and arrested him. The district court granted summary judgment in favor of the defendants, concluding, inter alia, the deputies had probable cause to make the arrest, did not employ excessive force, and were entitled to immunity from suit. Bashir appeals from the grant of summary judgment. After oral argument and review of the record, we conclude Deputy Davis and the unnamed deputies are not entitled to qualified immunity for the warrantless arrest of Bashir in his home and reverse the judgment in that respect. We affirm the judgment on Bashir's excessive force and state law tort claims.

I. BACKGROUND

We view the facts in the light most favorable to Bashir, drawing all reasonable inferences in his favor. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002). The series of events culminating in Bashir's arrest began October 3, 2001, at around 11:30 p.m., when Rockdale County Sheriff Deputy Daniel Ricks responded to a call from Bashir's neighbor stating her juvenile son had run away. The neighbor spoke with Deputy Ricks about the incident and pointed to the Bashir's home, indicating her son might have gone there. Following the lead, Ricks pulled his police cruiser to the curb in front of the Bashir residence and saw two men seated on the trunk of a car parked in the carport at the end of the driveway. Deputy Ricks approached the two men, who were Bashir's two teenage sons, Akinsheye and Jabari, and began questioning them. Akinsheye and Jabari felt Deputy Ricks became abusive in his questioning. Akinsheye, the older of the two youths, told Jabari that he did not have to answer Ricks' questions and told Ricks he should talk with their mother.¹ At various times during the exchange, Akinsheye went in and out of the house through a doorway in the carport to awaken his sleeping mother. Saleem Bashir was not yet home from work.

Deputy Ricks called for assistance, and Deputy Rene Shirley responded. Moments after Deputy Shirley arrived, Akinsheye exited the house and returned to the carport. He told the deputies his mother was coming out to talk to them and instructed Jabari to come inside the house. Deputy Shirley told Akinsheye not to move and then grabbed him.² Deputy Shirley and Akinsheye began to struggle in the carport. Jabari saw the struggle and jumped off the trunk of the car where he was seated, prompting Deputy Ricks to grab him, throw him into the grass in the front yard, and spray him in the face with O.C. ("pepper") spray.

As the two officers wrestled with the youths, Brenda Bashir, their mother, emerged from the doorway into the carport and saw Deputy Shirley struggling with Akinsheye. She screamed and grabbed Akinsheye's arm. Deputy Shirley sprayed Akinsheye with pepper spray, and the struggle moved into the residence through the doorway. Deputy Shirley pinned Akinsheye on the living room couch, while Mrs. Bashir continued to pull on Akinsheye's arm. Shirley handcuffed Akinsheye, escorted him outside, and placed him in his police car. He then assisted Deputy Ricks in arresting Jabari. Once this was accomplished, the deputies turned to Mrs. Bashir, who was standing in the driveway, and told her she was also under arrest. Mrs. Bashir then ran back inside, and the deputies, joined by Deputy Edell Davis, chased her into the house and arrested her.

Saleem Bashir arrived home from work at least 20 minutes after his wife was arrested. As he approached the house, he saw several police cars and an ambulance parked out front. He walked up his driveway, identified himself, and asked Deputy Davis who was in charge. Davis directed him to Sergeant Reed. Sergeant Reed, who was not present for any of the arrests, told Bashir his sons had been arrested for fighting with another juvenile. Reed also informed Bashir his wife had been arrested, but said Bashir was not allowed to speak with her. Bashir did not understand why his family had been arrested and was not satisfied with Sergeant Reed's explanation.

As he spoke with Sergeant Reed, Bashir noticed his seven-year-old son, Taajwar, crying and walking around unattended in the carport. He called out to his son and then "stopped talking to the officer and just went over there and picked [Taajwar] up." As he explained, "I just went over there and picked him up and I never said anything to anybody anymore other than until I got in the house there." Bashir carried his son into the house through the carport door. He sat down at the kitchen table, placed his son on his lap, and began to comfort the crying child. Deputy Davis followed Bashir through the doorway and into the kitchen. Davis had no warrant and did not ask permission to enter the residence. When Bashir saw Davis standing in the kitchen, he asked him to explain what had happened. Davis's explanation was also unsatisfactory to Bashir, and while still seated at the kitchen table with his son on his lap, Bashir said: "[I]f y'all didn't do this thing right I am suing the hell out of everybody down here." Davis responded, "[Y]ou fixing to go to jail." Suddenly, several officers rushed into the kitchen through the carport door. Deputy Davis grabbed Bashir's arm as someone snatched Taajwar from his lap. Deputy Davis attempted to spray Bashir with pepper spray, but the canister did not discharge. Bashir was thrown to the floor and handcuffed.

Bashir spent October 4, 2001, in jail and was released the following day. He was charged with misdemeanor obstruction of an officer and disorderly conduct. See O.C.G.A. §§ 16-10-24(a), 16-11-39(a). Akinsheye and Jabari were also jailed for the night. Mrs. Bashir was released at the scene so she could watch Taajwar; Deputy Shirley returned the next day with a warrant and arrested her again. Jabari pled guilty to misdemeanor obstruction, and all other charges against the Bashirs were dropped.

The Bashirs filed suit in the Northern District of Georgia, alleging false arrest and excessive force in violation of the Fourth Amendment and various state torts.³ The district court granted summary judgment in favor of the deputies, concluding probable cause existed to support the arrests and the deputies were entitled to immunity from suit. Only Saleem Bashir has appealed. He contends the district court erred in granting summary judgment in favor of Deputy Davis and the unnamed deputies, arguing (1) his arrest inside his home was unlawful because the deputies did not have a warrant, exigent circumstances, or consent to enter, and the unlawfulness of their conduct was clearly established such that they are not entitled to qualified immunity; (2) the deputies used excessive force in making the arrest because any force used in an unlawful arrest is excessive; and (3) the facts and circumstances of his arrest are sufficient to create a triable issue with respect to whether the deputies acted with actual malice such that official immunity would not bar litigation of the state tort claims.

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment based on qualified immunity and apply the same legal standards as the district court. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). "We resolve all issues of material fact in favor of the plaintiff, and then determine the legal question of whether the defendant is entitled to qualified immunity under that version of the facts." Id.

III. DISCUSSION

A. Section 1983 Qualified Immunity

We have often stated that "[q]ualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known." Lee, 284 F.3d at 1193-94 (quotations omitted). This immunity "allow[s] government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation," id. at 1194, and protects "all but the plainly incompetent or one who is knowingly violating the federal law," Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

The Supreme Court has established a two-part test for evaluating a claim of qualified immunity.⁴ First, we must address the "threshold question" of whether the facts presented, taken in the light most favorable to Bashir, show the deputies' conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If Bashir is successful on this score, we must then determine whether the right was "clearly established" such that "a reasonable official would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (quotations omitted).

B. Warrantless Arrest

Bashir contends his Fourth Amendment rights were violated when Deputy Davis and the unnamed deputies unlawfully entered his house and arrested him. He...