877 F.3d 1253 (11th Cir. 2017), 16-10256, Brand v. Casal

Docket Nº:16-10256
Citation:877 F.3d 1253, 27 Fla.L.Weekly Fed. C 467
Opinion Judge:MARTIN, Circuit Judge.
Party Name:Tamara BRAND, Theo Brand, Plaintiffs-Appellees, v. Kevin CASAL, Teresa Pardinas, Defendants-Appellants.
Attorney:Ralph Goldberg, Goldberg & Cuvillier, PC, Tucker, GA, for Plaintiffs-Appellees. Jason C. Waymire, Terry Eugene Williams, Williams Morris & Waymire, LLC, Buford, GA, Michael Van Stephens, II, Gwinnett County Law Department, Lawrenceville, GA, for Defendants-Appellants.
Judge Panel:Before MARTIN, JILL PRYOR, and MELLOY, Circuit Judges.
Case Date:December 19, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Plaintiffs filed suit against Deputy Casal and Pardinas under 42 U.S.C. 1983, alleging violations of the Fourth Amendment of the U.S. Constitution, as well as claims under Georgia's Constitution. The Eleventh Circuit affirmed the district court's denial of summary judgment on the federal claims for excessive force against Pardinas and bodily privacy against both defendants; affirmed the denial of ... (see full summary)


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877 F.3d 1253 (11th Cir. 2017)

27 Fla.L.Weekly Fed. C 467

Tamara BRAND, Theo Brand, Plaintiffs-Appellees,


Kevin CASAL, Teresa Pardinas, Defendants-Appellants.

No. 16-10256

United States Court of Appeals, Eleventh Circuit

December 19, 2017

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Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:13-cv-00322-AT.

Ralph Goldberg, Goldberg & Cuvillier, PC, Tucker, GA, for Plaintiffs-Appellees.

Jason C. Waymire, Terry Eugene Williams, Williams Morris & Waymire, LLC, Buford, GA, Michael Van Stephens, II, Gwinnett County Law Department, Lawrenceville, GA, for Defendants-Appellants.

Before MARTIN, JILL PRYOR, and MELLOY,[*] Circuit Judges.


MARTIN, Circuit Judge.

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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.



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

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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-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."

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,"

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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 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 entire time the eight or nine officers were in the Brands' home, which was approximately one hour. She remained exposed while the defendants took...

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