Feliciano v. City of Miami Beach, 12–11397.

• Citation: 707 F.3d 1244
• Decision Date: 05 February 2013
• Docket Number: No. 12–11397.,12–11397.
• Parties: Janet FELICIANO, Plaintiff–Appellee, Edgardo Gonzaga, Plaintiff, v. CITY OF MIAMI BEACH, a municipal entity, Defendant, Lt. Robert Acosta, Miami Beach Police Lt., in his individual capacity, Det. Andrew Dohler, Miami Beach Police Det., in his individual capacity, Det. Douglas Dozier, Miami Beach Police Det., in his individual capacity, Sgt. James Nash, Miami Beach Police Sgt., in his individual capacity, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

707 F.3d 1244

Janet FELICIANO, Plaintiff–Appellee,

Edgardo Gonzaga, Plaintiff,

v.CITY OF MIAMI BEACH, a municipal entity, Defendant,Lt. Robert Acosta, Miami Beach Police Lt., in his individual capacity, Det. Andrew Dohler, Miami Beach Police Det., in his individual capacity, Det. Douglas Dozier, Miami Beach Police Det., in his individual capacity, Sgt. James Nash, Miami Beach Police Sgt., in his individual capacity, Defendants–Appellants.

No. 12–11397.

United States Court of Appeals,

Eleventh Circuit.

Feb. 5, 2013.

Jennifer Lucas Keesler, Keesler Law, Cape Coral, FL, Robert William Ross, Jr., Ross Law Firm, Lake Worth, FL, Mara Shlackman, Law Offices of Mara Shlackman, PL, Ft. Lauderdale, FL, for Plaintiff–Appellee.

Joshua Michael Entin, Entin & Della Fera, PA, Fort Lauderdale, FL, Robert L. Switkes, Rosen, Switkes & Entin, PL, Miami Beach, FL, for Defendants–Appellants.

Robert F. Rosenwald, Office of the City Atty., Miami Beach, FL, for the City of Miami Beach, Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES and COX, Circuit Judges, and RESTANI,^* Judge.

CARNES, Circuit Judge:

At early common law parties and others with an interest in the outcome of litigation were deemed incompetent to testify and barred from the witness stand on the ground that their interest made them unworthy of belief. 2 John H. Wigmore, Evidence in Trials at Common Law §§ 575–77 (Chadbourn Rev. 1979). The idea was similar to the one that H.L. Mencken expressed in another context when he remarked, “It is hard to believe that a man is telling the truth when you know that you would lie if you were in his place.” H.L. Mencken, A Little Book in C Major 22 (John Lane Co. 1916). Parties with an interest, it was presumed, would lie.

That presumption and the rule of exclusion it supported were worn down by criticism over time. See, e.g., 5 Jeremy Bentham, Rationale of Judicial Evidence 81 (Fred B. Rothman & Co. 1995) (1827) (describing the rule as “blind and brainless”). As Logan Bleckley, one of Georgia's greatest judges, explained more than a century ago:

Interest and truth may go together. Is there, in the world, an honest man who does not know that he can tell the truth against his interest? ... Where there is impossible doubt as to the effect of villainy upon veracity, the jury ought to be left to decide it. As coming from the average of society, they know best what to think on such a question. Interest is a great rascal; but is not an absolute reprobate. Its doom is not perdition at all events. It has a chance of salvation. It is not obliged to commit perjury.

Davis v. Central R.R., 60 Ga. 329, 333 (1878) (Bleckley, J.). Early in the last century the Supreme Court could say that “what was once regarded as a sufficient ground for excluding the testimony of [an interested witness] altogether has come to be uniformly and more sensibly regarded as affecting the credit of the witness only.” Funk v. United States, 290 U.S. 371, 380, 54 S.Ct. 212, 215, 78 L.Ed. 369 (1933). On claims subject to trial by jury, issues about whether to credit the testimony of a witness, interested or not, are for the jury. See Moughon v. State, 57 Ga. 102, 106 (Ga.1876) (Bleckley, J.) (“What shall come to the jury as evidence, is for the court. What it is worth when it arrives, is for the jury. They can discern its true value with spare assistance from the bench.”).

Federal Rule of Civil Procedure 56 and countless decisions applying it express the modern rule that a case should be put to the jury if there is any genuine issue of material fact, including one created solely by the testimony of a party. See, e.g.,Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1160 (11th Cir.2012); Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1247 (11th Cir.2004); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir.2000). Occasionally there is pushback against this rule, sometimes expressed in orders granting summary judgment despite what is described as the non-movant's “unsubstantiated” or “uncorroborated” or non-objective testimony. At other times we have seen summary judgment based on disapproval of a party's testimony as “conclusory” when it is not. There appears to have been some of that in this case, although the district court did reach the right result anyway.

I.

Police officers Robert Acosta, Andrew Dohler, Douglas Dozier, and James Nash appeal the district court's denial of their motion for partial summary judgment on Janet Feliciano's 42 U.S.C. § 1983 unlawful search claim. Feliciano's claim alleges that those four officers violated her Fourth Amendment rights when they conducted a warrantless entry into her home and searched it. The district court denied the defendant officers qualified immunity on the claim, reasoning that although their initial entry did not violate Feliciano's clearly established Fourth Amendment rights, they plainly exceeded constitutional bounds when they searched, among other things, her underwear drawer and kitchen pantry. The officers contend that the district court erred in denying them qualified immunity because the scope of their search did not violate Feliciano's clearly established constitutional rights.

We review de novo a district court's denial of summary judgment based on qualified immunity, applying the same legal standards that governed the district court. Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir.2012). Summary judgment is appropriate when the record evidence, including depositions, sworn declarations, and other materials, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). In conducting our review, “we are required to 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.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir.2007) (quotation marks omitted). Thus, “when conflicts arise between the facts evidenced by the parties, we [must] credit the nonmoving party's version.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir.2005) (en banc). Although the “facts,” as accepted for purposes of summary judgment, may not be the actual facts of the case, “our analysis ... must begin with a description of the facts in the light most favorable to the plaintiff” and our decision must accept those facts. Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006).

II.

Aside from the time, place, and persons involved in the incident giving rise to this case, the parties' accounts of the material events differ. At this stage of the proceedingswe are required to credit Feliciano's version if there is any evidence to support it, and it is that version we set out here.

In August 2006, the Miami Beach Police Department received a confidential tip from one of Feliciano's neighbors. According to that tip, a couple living at Feliciano's apartment were possibly drug dealers and had three small children in the household.¹ Responding to that tip, narcotics officers Acosta, Dohler, Dozier, and Nash went to Feliciano's apartment at around 9:00 p.m. on September 2, 2006, to investigate. Feliciano, who was five to eight weeks pregnant at the time, was inside the apartment with her domestic partner, Edgardo Gonzaga, and their three children, aged 7, 6, and 4. Feliciano's eldest son answered the officers' knock on the door by opening it a little. When Feliciano came to the doorway, the officers identified themselves, informed her that they had received an “anonymous” tip that drugs were being sold out of her apartment, and asked if they could come inside and search it. Feliciano disputed the accuracy of the tip and told the officers that they could not come inside without a search warrant. Officer Dohler replied that the officers didn't need a search warrant because Feliciano had a religious candle burning in her window, which presented a fire hazard justifying the removal of her children from the home. (The officers have not repeated that assertion since then.)

Around this time, Gonzaga came walking out of the back bedroom where he had been watching television. When the officers spotted him, they pushed their way through the door and rushed into the apartment. Acosta grabbed Feliciano's neck, forced her towards the living room couch, held her arms behind her back, and began repeatedly slamming her stomach into the wooden side arm of the couch. Although Feliciano begged Acosta to stop because she was asthmatic, pregnant, and didn't want any harm to come to her unborn child, Acosta ignored her pleas and continued to ram her stomach into the arm of the couch. Officer Nash, who was standing beside Acosta and Feliciano, did not intervene.

While Acosta was restraining Feliciano, Dohler and Dozier grabbed Gonzaga by the neck and, when Feliciano's eldest son ran near, one of the officers grabbed the child by the shoulder and threw him against the wall. Following a brief struggle, Dohler and Dozier handcuffed Gonzaga. Acosta then allowed Feliciano to sit on the couch and comfort her three children. Without the consent of either Feliciano or Gonzaga, Acosta, Dohler, and Dozier proceeded to search the residence, rifling through Feliciano's underwear drawer in her bedroom, the medicine cabinet in the bathroom, and the cabinets and pantry in the kitchen. One of the officers eventually emerged from the kitchen holding what he claimed was a half of a marijuana joint that he claimed to have discovered. Gonzaga remarked “that's not my weed,” but was soon escorted out of the apartment on misdemeanor charges of resisting arrest without violence, possession of cannabis, and possession of drug paraphernalia. After the officers left, Feliciano experienced stomach cramping and vaginal bleeding. She went to the emergency room the next day and learned...