from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:13-cv-00322-AT
MARTIN, JILL PRYOR, and MELLOY, [*] Circuit Judges.
MARTIN, Circuit Judge:
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.
Facts Leading to the Initial Encounter
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,  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.
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.
Casal walked up to the front porch of the house where a
woman, Jayne Velazco, was smoking a cigarette. 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.
Initial Encounter at the Brands' Front Door
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
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
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
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
Deputy Pardinas Joins In and Tases Mrs. Brand
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."
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,
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.
The Protective Sweep and Other Developments
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.
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 her and Wesley to
jail for booking.
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.
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
II. GOVERNING LAW
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.'" 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)).
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.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 the time of ...