No. 23-
`
`In the
`Supreme Court of the United States
`
`SHAWN T. SWINDELL,
`
`v.
`
`KENNETH BAILEY,
`
`Petitioner,
`
`Respondent.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the
`United StateS COUrt Of aPPealS fOr the eleventh CirCUit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`thomas W. Poulton, esquIre
`DeBevoIse & Poulton, P.a.
`Lakeview Office Park, Suite 1010
`1035 S. Semoran Boulevard
`Winter Park, Florida 32792
`(407) 673-5000
`poulton@debevoisepoulton.com
`
`Attorneys for Petitioner
` Shawn T. Swindell
`
`116821
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`In the
`Supreme Court of the United States
`
`SHAWN T. SWINDELL,
`
`v.
`
`KENNETH BAILEY,
`
`Petitioner,
`
`Respondent.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the
`United StateS COUrt Of aPPealS fOr the eleventh CirCUit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`thomas W. Poulton, esquIre
`DeBevoIse & Poulton, P.a.
`Lakeview Office Park, Suite 1010
`1035 S. Semoran Boulevard
`Winter Park, Florida 32792
`(407) 673-5000
`poulton@debevoisepoulton.com
`
`Attorneys for Petitioner
` Shawn T. Swindell
`
`116821
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`This §1983 qualified immunity case involves the legality
`of entry into a residence by Petitioner Swindell, a Florida
`Sheriff’s Deputy, to arrest Respondent Bailey. Bailey
`committed a misdemeanor in Swindell’s presence, on the
`porch to the home, and Swindell immediately followed Bailey
`into the home to arrest him. The district court granted
`Swindell summary judgment on Bailey’s §1983 claim of
`unlawful arrest, but in Bailey v. Swindell, 940 F.3d 1295
`(11th Cir. 2019) (“Bailey I”), the Eleventh Circuit reversed
`and held that the entry might have been unconstitutional
`under Payton v. New York, 445 U.S. 573 (1980), if the arrest
`was initiated while Bailey was inside the home.
`
`A jury subsequently rendered a general verdict
`for Bailey but determined that the arrest was initiated
`outside the home. The district court thus granted
`judgment to Swindell based on qualified immunity, citing
`United States v. Santana, 427 U.S. 38 (1976) and Lange
`v. California, 594 U.S. ___, 141 S.Ct. 2011 (2021).
`
`In Bailey v. Swindell, 89 F.4th 1324 (11th Cir. 2024)
`(“Bailey II”), however, the Eleventh Circuit rejected
`the conclusion that Bailey was outside the home when
`the arrest was initiated and determined that Swindell’s
`entry into the home to complete the arrest of Bailey was
`a violation of clearly established law under Payton. Id.,
`pp. 1330-31. Against this backdrop, the instant matter
`presents the following questions for the Court’s review:
`
`1. Was it clearly established in 2014 that a
`law enforcement officer violates the Fourth
`Amendment when he witnesses a person commit
`
`
`
`ii
`
`a misdemeanor offense in public view and
`immediately pursues the fleeing misdemeanant
`into a home to arrest that person, but without
`exigency apart from the pursuit?
`
`2. Where a jury has determined that a misdemeanor
`arrest was supported by probable cause and was
`initiated outside of a residence, is the deputy
`effectuating the arrest entitled to qualified
`immunity under the Fourth Amendment where
`he instantaneously follows the arrestee into a
`home to complete the arrest?
`
`3. Where a circuit court of appeals denies qualified
`immunity to a deputy sheriff for entry into a
`home to make an arrest based on the specific
`question of where the arrest was initiated – inside
`or outside – and a jury subsequently determines
`that the arrest was initiated outside, may the
`circuit court of appeals reject that finding of fact
`and substitute its own finding that the arrest was
`initiated inside the home so as to once again deny
`the deputy qualified immunity?
`
`
`
`iii
`
`RELATED PROCEEDINGS
`
`Bailey v. Swindell, 11th Circuit Case No. 18-13572,
`940 F.3d 1295 (11th Cir. 2019). Opinion dated October 16,
`2019, reversing grant of summary judgment. (App., pp.
`108-123).
`
`Bailey v. Swindell, District Court Case No. 3:15cv390,
`Final Judgment for Bailey dated June 7, 2021. (App., pp.
`42-43).
`
`Bailey v. Swindell, District Court Case No. 3:15cv390,
`Order dated December 4, 2021, granting Judgment as a
`Matter of Law and vacating June 7, 2021, Final Judgment.
`(App., pp. 22-40).
`
`Bailey v. Swindell, District Court Case No. 3:15cv390,
`Final Judgment for Swindell dated December 23, 2021.
`(App., p. 41).
`
`Bailey v. Swindell, 11th Circuit Case No.21-14454,
`89 F.4th 1324 (11th Cir. 2024). Opinion dated January 8,
`2024, reversing grant of Judgment as a Matter of Law.
`(App., pp. 1-21).
`
`Bailey v. Swindell, 11th Circuit Case No.21-14454.
`Order denying petition for rehearing or rehearing en banc
`entered on March 6, 2024. (App., p. 44).
`
`
`
`iv
`
`PARTIES TO THE PROCEEDING
`
`The Petitioner, Defendant below, is Shawn T. Swindell.
`The Respondent, Plaintiff below, is Kenneth Bailey.
`
`No party is a nongovernmental corporation and so no
`corporate disclosure statement is applicable under S.Ct.
`Rule 14.
`
`
`
`v
`
`QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i
`
`RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iii
`
`PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iv
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . .v
`
`TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . vii
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .x
`
`OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`RELE VA N T CONST I T U T IONA L A N D
` STATUTORY PROVISIONS. . . . . . . . . . . . . . . . . . . .2
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .3
`
`REASONS FOR GRANTING OF THE PETITION. . .13
`
`A. The Court should grant the petition and hold
`that, because Bailey was outside the home
`when he committed a misdemeanor offense
`in Swindell’s immediate presence, the case
`is controlled by Santana and Swindell’s
`entry into the home to arrest Bailey did
`not violate the Constitution, even absent
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`vi
`
`a secondary exigency beyond pursuit into
`the home. At a minimum, under Lange,
`the Court should grant the petition and
`hold that it was not clearly established that
`Swindell could not immediately pursue
`Bailey into the home to complete the arrest
`such that Swindell is entitled to qualified
`immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`
`
`B. The Court should grant the petition and hold
`that the Eleventh Circuit erred in its tortured
`reconstruction of the facts to conclude that
`Swindell was not entitled to qualified
`immunity. The district court’s interpretation
`of the jury’s verdict was in accord with
`the evidence at trial and reasonably
`resolved any inconsistency between the
`interrogatory answers and the verdict for
`Bailey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
`
`
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
`
`Table of Contents
`
`Page
`
`
`
`vii
`
`APPENDIX A — OPINION OF THE UNITED
`STATES COURT OF A PPEA LS FOR
`THE ELEV ENTH CIRCUIT, FILED
` JANUARY 8, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a
`
`APPENDIX B — ORDER OF THE UNITED
`STATES DISTRICT COURT, NORTHERN
`DISTRICT OF FLORIDA, PENSACOLA
` DIVISION, FILED DECEMBER 4, 2021 . . . . . . .22a
`
`APPENDIX C — JUDGMENT OF THE UNITED
`STATES DISTRICT COURT, NORTHERN
`DISTRICT OF FLORIDA, PENSACOLA
` DIVISION, FILED DECEMBER 23, 2021 . . . . . .41a
`
`APPENDIX D — FINAL JUDGMENT OF
`THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF
`FLORIDA, PENSACOLA DIVISION, FILED
` JUNE 7, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42a
`
`APPENDIX E — DENIAL OF REHEARING
`OF THE UNITED STATES COURT OF
`APPEALS FOR THE ELEVENTH CIRCUIT,
` FILED MARCH 6, 2024 . . . . . . . . . . . . . . . . . . . . . .44a
`
`APPENDIX F — RELEVANT STATUTORY
` AND CONSTITUTIONAL PROVISIONS. . . . . . .45a
`
`TABLE OF APPENDICES
`
`Page
`
`
`
`viii
`
`APPENDIX G — PETITION FOR PANEL
`O R E N B A N C R E H E A R I N G , B Y
`APPELLEE SHAWN T. SWINDELL, FILED
` JANUARY 29, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . .47a
`
`APPENDIX H — RENEWED MOTION FOR
`JUDGMENT OF THE UNITED STATES
`DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF FLORIDA PENSACOLA
` DIVISION, FILED JULY 6, 2021 . . . . . . . . . . . . . .69a
`
`APPENDIX I — OPINION OF THE UNITED
`STATES COURT OF A PPEA LS FOR
`THE ELEV ENTH CIRCUIT, DATED
` OCTOBER 16, 2019 . . . . . . . . . . . . . . . . . . . . . . . . .108a
`
`APPENDIX J — JURY TRIAL — DAY 2 IN
`THE UNITED STATES DISTRICT COURT,
`NORTHERN DISTRICT OF FLORIDA,
` PENSACOLA DIVISION, JUNE 2, 2021 . . . . . .124a
`
`APPENDIX K — JURY TRIAL — DAY 1
`AND DAY 3 IN THE UNITED STATES
`DISTRICT COURT, NORTHERN DISTRICT
`OF FLORIDA, PENSACOLA DIVISION,
` JUNE 1, 2021 AND JUNE 3, 2021 . . . . . . . . . . . .193a
`
`Table of Appendices
`
`Page
`
`
`
`ix
`
`APPENDIX L — TRANSCRIPT OF THE
`UNITED STATES DISTRICT COURT,
`NORTHERN DISTRICT OF FLORIDA,
`P E N S A C O L A D I V I S I O N , D A T E D
` JUNE 3, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290a
`
`APPENDIX M — JURY TRIAL — DAY 3 IN
`THE UNITED STATES DISTRICT COURT,
`NORTHERN DISTRICT OF FLORIDA,
` PENSACOLA DIVISION, JUNE 3, 2021 . . . . . 300a
`
`Table of Appendices
`
`Page
`
`
`
`x
`
`CASES
`
`Aczel v. Labonia,
`
`584 F.3d 52 (2d Cir.2009). . . . . . . . . . . . . . . . . . . . . . .32
`
`Arnold v. Panhandle & S.F.R. Co.,
`
`353 U.S. 360 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . .29
`
`Bailey v. Swindell,
`
`89 F.4th 1324 (11th Cir. 2024) . . . . . . . . . . 3, 12, 13, 14,
`21, 22, 25, 28, 31
`
`Bailey v. Swindell,
`
`940 F.3d 1295 (11th Cir. 2019). . . . .3, 4, 5, 6, 13, 27, 30
`
`Brigham City, Utah v. Stuart,
`
`547 U.S. 398 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . .21
`
`Cogar v. Kalna,
` Case No. 2:21-CV-6, 2022 WL 949902
`
`(N.D. W.Va. March 29, 2022). . . . . . . . . . . . . . . . . . . .17
`
`Commonwealth v. Jewett,
`
`31 N.E.3d 1079 (2015) . . . . . . . . . . . . . . . . . . . . . . . . .23
`
`Cottrell v. Caldwell,
`
`85 F.3d 1480 (11th Cir. 1996). . . . . . . . . . . . . . . . . . . .29
`
`Gallick v. Baltimore & O.R. Co.,
`
`372 U.S. 108 (1963) . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`xi
`
`Graham v. Connor,
`
`490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`Heard v. Municipality of Bossier City,
`
`215 F.3d 1079 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . .32
`
`Jewell v. Holzer Hosp. Found., Inc.,
`
`899 F.2d 1507 (6th Cir.1990) . . . . . . . . . . . . . . . . . . . .29
`
`Johnson v. Breeden,
`
`280 F.3d 1308 (11th Cir. 2002). . . . . . . . . . . . . . . .29, 31
`
`Kentucky v. King,
`
`563 U.S. 452, 131 S.Ct. 1849,
`
`179 L.Ed.2d 865 (2011). . . . . . . . . . . . . . . . . . . . . . 19-20
`
`Kinglsey v. Hendrickson,
`
`576 U.S. 389 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`Kirby v. Sheriff of Jacksonville, Fla.,
` Case No. 22-11109, 2023 WL 2624376
`
`(11th Cir. March 24, 2023). . . . . . . . . . . . . . . . . . . . . .29
`
`Lange v. California,
`
`594 U.S. ___, 141 S.Ct. 2011 (2021) . . . . 11, 14, 15, 16,
`17, 18, 20, 22, 23, 24,
`25, 26, 28, 31, 33, 34
`
`McVey v. Phillips Petroleum Co.,
`
`288 F.2d 53 (5th Cir. 1961). . . . . . . . . . . . . . . . . . . . . .29
`
`Cited Authorities
`
`Page
`
`
`
`xii
`
`Miller v. Pugliese,
` Case No. 20-10660. 2023 WL 6202373
`
`(D. Mass. September 22, 2023). . . . . . . . . . . . . . . . . .18
`
`Montero v. Nandlal,
`
`682 Fed.Appx. 711 (11th Cir. 2017). . . . . . . . . . . . . . .32
`
`Morris v. Pennsylvania R. Co.,
`
`187 F.2d 837 (2d Cir. 1951) . . . . . . . . . . . . . . . . . . . . .29
`
`Mullenix v. Luna,
`
`577 U.S. 7 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Payton v. New York,
`
`445 U.S. 573 (1980). . . . . . . . . . . . . . .5, 6, 13, 14, 27, 30
`
`Pearson v. Callahan,
`
`555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Stanton v. Sims,
`
`571 U.S. 3 (2013) . . . . . . . . . . . . . . . . . . . . . . . .11, 18, 25
`
`State v. Ricci,
`
`144 N.H. 241, 739 A.2d 404 (1999) . . . . . . . . . . . . . . .23
`
`United States v. Gori,
`
`230 F.3d 44 (2nd Cir. 2000) . . . . . . . . . . . . . . . . . . . . .20
`
`United States v. Santana,
`
`427 U.S. 38 (1976) . . . . . . . . . . . . . . . 5, 6, 14, 15, 16, 18,
`20, 21, 22, 23, 27, 31, 33
`
`Cited Authorities
`
`Page
`
`
`
`xiii
`
`Welsh v. Wisconsin,
`
`466 U.S. 740 (2011) . . . . . . . . . . . . . . . . . . . . . . . . .10, 21
`
`Wilson v. Layne,
`
`526 U.S. 603 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Woods v. Barnies,
` Case No. 2:21-cv-00364, 2023 WL 6390662
`
`(D.Me. October 2, 2023). . . . . . . . . . . . . . . . . . . . . . . .17
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. amend. IV . . . . . . . . . . . . . . 2, 5, 6, 11, 16, 18,
`20, 22, 24, 26, 33
`
`STATUTES, RULES AND REGULATIONS
`
`28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 28
`
`Federal Rule of Civil Procedure 49. . . . . . . . . . . . . . .9, 32
`
`Federal Rule of Civil Procedure 49(b)(3) . . . . . . . . .29-30
`
`Federal Rule of Civil Procedure 49(b)(3)(A) . . . . . . . . .31
`
`Federal Rule of Civil Procedure 50. . . . . . . . . . . .9, 31, 32
`
`Federal Rule of Civil Procedure 58 . . . . . . . . . . . . . . . .30
`
`Cited Authorities
`
`Page
`
`
`
`xiv
`
`Federal Rule of Civil Procedure 59(e) . . . . . . . . . . . . . . .9
`
`Federal Rule of Civil Procedure 60. . . . . . . . . . . . . . . . . .9
`
`Fla. Stat. § 775.082 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
`
`Fla. Stat. § 843.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`Fla. Stat. § 854.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
`
`S. Ct. Rule 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`PETITION FOR WRIT OF CERTIORARI
`
`OPINIONS BELOW
`
`The Opinion of the United States Court of Appeals for
`the Eleventh Circuit at issue here, reversing the district
`court’s grant of Judgment as a Matter of Law to Petitioner
`Swindell, is located at 89 F.4th 1324 (11th Cir. 2024). A
`copy of the Opinion is included in this petition as Appendix
`A and is found at pages 1 through 21 of the Appendix.1
`
`JURISDICTION
`
`The Opinion of the United States Court of Appeals
`for the Eleventh Circuit Court was entered on January
`8, 2024. (App., p. 1). Petitioner Swindell timely moved for
`panel or en banc rehearing on January 29, 2024. (App.,
`pp. 47-68) The circuit court denied Swindell’s motion for
`panel or en banc rehearing on March 6, 2024. A copy of
`the circuit court’s March 6, 2024, order denying panel
`or en banc rehearing is included in the appendix to this
`petition, at App., p. 44. The petition for rehearing is also
`included, at App., pp. 47-68.
`
`Pursuant to S.Ct. Rule 13.3, this Court has jurisdiction
`over this Petition for Writ of Certiorari as it is filed within
`90 days of the circuit court’s March 6, 2024, Order denying
`panel or en banc rehearing.
`
`1. The individual documents reproduced in the Appendix are
`subdivided into entries A, B, C, etc., but citation to the Appendix
`in this Petition will be to “App.” followed by the page number from
`the full appendix.
`
`
`
`2
`
`The statute conferring jurisdiction is 28 U.S.C.
`§1254(1).
`
`RELEVANT CONSTITUTIONAL
`AND STATUTORY PROVISIONS
`
`42 U.S.C. §1983 provides in relevant part that:
`
`“Every person who, under color of any statute,
`ordinance, regulation, custom, or usage, of any
`State or Territory or the District of Columbia,
`subjects, or causes to be subjected, any citizen
`of the United States or other person within the
`jurisdiction thereof to the deprivation of any
`rights, privileges, or immunities secured by
`the Constitution and laws, shall be liable to the
`party injured in an action at law, suit in equity,
`or other proper proceeding for redress. . . . ”
`
`U.S. Const. amend. IV provides that:
`
`“The right of the people to be secure in their
`persons, houses, papers, and effects, against
`unreasonable searches and seizures, shall not
`be violated, and no Warrants shall issue, but
`upon probable cause, supported by Oath or
`affirmation, and particularly describing the
`place to be searched, and the persons or things
`to be seized.”
`
`
`
`3
`
`STATEMENT OF THE CASE
`
`Petitioner Shawn T. Swindell was one of a number
`of law enforcement officers responding on September
`11, 2014, to a report of a domestic altercation between
`Respondent Kenneth Bailey and his estranged wife,
`Sherri Rollinger. Rollinger told the initially responding
`deputy that Bailey “was not acting right,” that the two had
`just had an argument, and that Bailey had “snapped.” She
`believed that Bailey was at his parents’ residence. Bailey
`II, 89 F.4th at 1326-27.2
`
`Swindell was directed to Bailey’s parents’ home
`to assist in investigating Rollinger’s complaint by
`interviewing Bailey. Swindell went to the front door and
`asked for Bailey. Bailey came outside, onto the front porch.
`On the front porch alongside Bailey were his mother,
`Evelyn, and his brother, Jeremy. Swindell was just off
`the porch, maintaining a distance of 6 to 7 feet away from
`Bailey. Both Evelyn and Jeremy repeatedly interjected
`themselves into the conversation between Swindell and
`Bailey. Swindell asked Bailey to come to his car, out on
`the street, or to step aside to speak to him alone. Bailey
`refused. Id. (see also Trial testimony of Swindell, App.,
`pp. 197-98, 203-04, 236-40).
`
`2. Citation in this Petition to Bailey I and II will be to the
`federal reporter citation, though they are also included in the
`Appendix.
`
`
`
`4
`
`This is the front porch where events occurred:
`
`Deputy Swindell then asked Jeremy and Evelyn to
`go inside so that Swindell could finish his conversation
`with Bailey on the porch. They refused. Bailey I, 940 F.3d
`at 1299. Bailey acknowledged at trial that Swindell told
`him that Swindell was there to perform an investigation.
`(Bailey trial testimony, App., pp. 208-09). The parties
`differed at trial on what happened next.
`
`According to Swindell, Bailey abruptly turned to go
`inside the home. Swindell placed his hand on Bailey’s
`shoulder and told him he was not free to leave. Bailey
`turned back around and struck Swindell’s arm, taking
`a fighting stance, backing up towards the residence.
`Swindell attempted a take-down maneuver and the two
`men fell into the residence. (Swindell trial testimony,
`App., pp. 240-41).
`
`Bailey testified that he announced he was going back
`inside the house and turned and walked inside. According
`
`
`
`5
`
`to Bailey, Swindell did not order him to stop. Instead,
`according to Bailey, Swindell stated that he was going to
`tase Bailey. According to Bailey, he was now inside the
`door to the home and Swindell “in an instant” followed him
`from the porch into the living room of the home, tackling
`him and causing injury. (App., pp. 129-30).3
`
`Bailey sued Swindell in his individual capacity under
`42 U.S.C. §1983 for false arrest and excessive force in
`violation of the Fourth Amendment. Bailey I, 940 F.3d at
`1299. Prior to the first trial, Swindell asserted qualified
`immunity as to both the false arrest and excessive force
`claims. The district court granted summary judgment to
`Swindell on the false arrest claim but denied summary
`judgment on the excessive force claim. The case proceeded
`to trial, with the jury returning a verdict completely in
`favor of Swindell on the excessive force claim. Id., n. 3.
`
`Bailey appealed only the earlier summary judgment
`on the false arrest claim; he did not appeal the jury
`verdict in Swindell’s favor as to the excessive force claim.
`In Bailey I the Eleventh Circuit reversed the grant
`of summary judgment to Swindell on the false arrest
`claim, focusing on the difference between two key cases
`addressing the issue of the propriety of the entry—United
`States v. Santana, 427 U.S. 38 (1976), and Payton v. New
`York, 445 U.S. 573 (1980).4
`
`3. Bailey’s mother’s and brother’s trial testimony, as opposed
`to some of their out of court statements, generally supported
`Bailey’s version of events.
`
`4. It must be noted that Bailey’s operative complaint did not
`actually assert a claim for unconstitutional entry into the home by
`Swindell, but the Eleventh Circuit in Bailey I included the theory
`
`
`
`6
`
`In Payton, this Court held that “the Fourth
`Amendment ‘prohibits the police from making a
`warrantless and nonconsensual entry into a suspect’s
`home in order to’ arrest him.” (Bailey I, 940 F.3d at 1301,
`quoting Payton, 445 U.S. at 576). In Santana, however,
`this Court held that officers could pursue a suspect into
`a residence to complete an arrest supported by probable
`cause if it “began in a ‘public place.’” Bailey I, 940 F.3d
`at 1301, quoting Santana, 427 U.S. at 42).
`
`The Eleventh Circuit held in Bailey I that if one
`accepted Bailey’s version of events whereby he was
`completely inside the home when the arrest “began,”
`then Swindell’s entry into the home to complete the
`arrest, absent exigent circumstances, a warrant, or
`consent, would be a violation of clearly established Fourth
`Amendment rights under Payton. On the other hand, if the
`arrest was “initiated” while Bailey was outside the house,
`then Santana, not Payton, might apply and Swindell
`would not clearly have violated the Fourth Amendment
`in pursuing Bailey from the porch to inside the home to
`make the arrest. The case was remanded for trial on that
`specific issue.
`
`At the second trial, the parties testified as above.
`Bailey claimed that he and Swindell “in an instant”
`
`in analysis of the false arrest claim. In the second trial Swindell
`protested consideration of such a claim in the trial as it had not
`been pled and the district court remarked that the Eleventh
`Circuit had indeed “divined an unlawful entry claim” into the
`complaint, to the benefit of Bailey. (Not included in the appendix
`but found at trial transcript, Day 2, p. 288). Bailey ultimately
`obtained a verdict in his favor based on the appellate court having
`inferred this claim for him.
`
`
`
`7
`
`went from outside the home to inside the home. Swindell
`testified that he formed probable cause to arrest Bailey
`outside the home, based in part on Bailey turning to leave
`the detention on the porch, and that he reached out and
`placed his hand on Bailey’s shoulder to stop him, with
`Bailey knocking it away. Consistent with Bailey, Swindell
`testified that he “immediately” pursued Bailey into the
`residence to complete the arrest. (Swindell testimony,
`App., p. 260).
`
`Prior to submission of the case to the jury, the defense
`moved for judgment as a matter of law based on qualified
`immunity. The district court took the issue of qualified
`immunity for Swindell’s entry into the home under
`advisement. (App., pp. 290-99).
`
`The case was submitted to the jury in the form of
`qualified immunity fact-based interrogatories and general
`verdict questions as to liability and damages. The first
`question was whether Swindell had reasonable suspicion
`to detain Bailey for a law enforcement investigation, and
`the jury answered “yes.” The jury was next asked whether
`there was probable cause for the arrest and the jury again
`answered “yes.” (App., pp. 17-18).
`
`The jury was then given a list of possible offenses
`for which it found probable cause. The options were:
`(1) “Willfully, maliciously, and repeatedly following,
`harassing, or cyberstalking another person”; (2)
`“Knowingly resisting, obstructing, or opposing a law
`enforcement officer who was engaged in the lawful
`execution of a legal duty”; (3) “Knowingly and willfully
`resisting, obstructing, or opposing a law enforcement
`officer who was engaged in the lawful execution of a
`
`
`
`8
`
`legal duty by offering to violence or doing violence to the
`officer”; and/or (4) “Battery on a law enforcement officer.”
`The jury checked the response of “Knowingly resisting,
`obstructing, or opposing a law enforcement officer who
`was engaged in the lawful execution of a legal duty”; which
`under Florida law, §843.02, Fla. Stat., is a first-degree
`misdemeanor. (App., p. 18)
`
`The jury was then asked, “Where was the arrest
`initiated?” (emphasis in original). They were given two
`options, “inside the home” or “outside the home.” The jury
`chose “outside the home.” (App., p. 19).
`
`The jury was next asked whether there was exigency
`justifying warrantless entry into the home and the jury
`answered “no.” (App., p. 19). The jury had earlier been
`instructed that “[e]xigent circumstances justify a law
`enforcement officer’s warrantless entry into a home
`without an occupant’s consent where either the arrest
`was set in motion in an area that is open to public view,
`which includes a front porch, and the person flees into
`a home, and the officer immediately follows the fleeing
`suspect into the home from the scene of the crime; the
`officer has an urgent need to enter the home to prevent
`the imminent instruction of evidence, or the officer has
`specific and articulable facts to support the belief that
`the person is armed and immediate entry is necessary
`for safety.”5 (App., p. 315).
`
`The jury was given a list of possible exigencies,
`which were “hot pursuit of a fleeing suspect into a home,”
`
`5. The jury was instructed that exigency was an affirmative
`defense, with the burden of proof on Swindell to show by a
`preponderance the presence of exigency. (App. p. 315)
`
`
`
`9
`
`“urgent need to enter the home to prevent the imminent
`destruction of evidence,” and “specific and articulable
`facts supported by a belief that the suspect was armed
`and immediate entry into the home was necessary for
`safety.” As the jury had answered “no” to the question of
`exigency, the jury did not select from that list of exigent
`circumstances. (App., pp. 19-20).
`
`The jury was then asked whether Swindell’s conduct
`caused Bailey injuries, and the jury answered “yes.” The
`jury also answered “yes” to the question “Do you find
`that Kenneth Bailey should be awarded compensatory
`damages?” and the jury awarded Bailey damages of
`$625,000. (App., p. 20).6 Judgment was entered in favor
`of Bailey in that amount. (App., p. 42).
`
`Post-trial, Swindell timely renewed his motion for
`judgment as a matter of law or for remittitur under
`Federal Rules of Civil Procedure 49, 50, 59(e) and 60.
`(App., pp. 69-107). In ruling on the motion and interpreting
`all of the verdict form answers, and with the benefit of
`having sat through the trial, the district court noted that
`Swindell initiated the arrest of Bailey while Bailey was
`“completely outside his parents’ home.” (App., p. 30).
`There was no question but that the criminal offense, itself,
`occurred when Bailey was on the porch, in public view.
`
`As to qualified immunity, the district court
`distinguished between the question of whether Swindell’s
`
`6. Nearly all of Bailey’s damages related to his claim that
`Swindell used excessive force in arresting him, a claim Swindell
`prevailed on in the first jury trial, which Bailey did not appeal.
`Swindell maintains it was improper for the jury to even consider
`such damages. This issue is presently before the trial court and
`is not a part of this Petition.
`
`
`
`10
`
`entry into the home without exigency or a warrant was
`unconstitutional, versus the subsidiary but more salient
`question of whether entry was clearly established to be
`unconstitutional under these circumstances.
`
`Applying these principles here, the dispositive
`question for qualified immunity purposes
`is whether it was clearly established on
`September 11, 2014 that the specific situation
`confronting Deputy Swindell—that is, after
`the deputy initiated a warrantless but lawful
`misdemeanor arrest outside a home, the
`arrestee (here, Bailey) retreated into the home
`in an attempt to depart the encounter—did
`not constitute exigent circumstances allowing
`him to follow Bailey into the home to complete
`the warrantless arrest. In other words, was it
`clearly established that exigent circumstances
`did not exist? Based on applicable precedent,
`the answer is no.
`
`(Order granting judgment as a matter of law, App., pp.
`30-31).
`
`Because the jury found that a lawful arrest was
`initiated outside, the only issue remaining was whether it
`was clearly established that the gravity of the underlying
`offense—resisting arrest without violence, a first-degree
`misdemeanor—justified entry into the home. While there
`was no “hue and cry” through the streets, there was a
`pursuit of some kind, and the fact that it ended almost as
`soon as it began did not alter that fact. (App., p. 30, Order,
`citing Santana and citing Welsh v. Wisconsin, 466 U.S.
`740, 753 (1984)).
`
`
`
`11
`
`Although the jury had not found exigency and had not
`found “hot pursuit,” even under Bailey’s own testimony
`Swindell had followed him from the porch into the home
`“in an instant.” The district concluded that the question
`of whether there had been a “hot pursuit” and whether
`it justified entry into the home to arrest Bailey was not
`“clearly established” to the point that Swindell should
`be denied qualified immunity on these facts. “To date,
`however, there has been little clarity on the contours
`of the hot pursuit doctrine in the context of fleeing
`misdemeanants.” (App., p. 30). The order pointed out
`that “for many years, federal and state courts across the
`country have been ‘sharply divided’ on the question of
`whether an officer with probable cause to arrest a suspect
`for a misdemeanor may constitutionally enter a home
`without a warrant in hot pursuit of that suspect.” (App.,
`p. 31, citing Stanton v. Sims, 571 U.S. 3, 6 (2013); Lange,
`141 S.Ct. at 2017).
`
`The court also noted that neither this Court nor the
`Eleventh Circuit had squarely decided the issue as of
`September 11, 2014, the date of the incident. (App., p.
`31). To the contrary, the district court observed that,
`after the trial, this Court had decided in Lange that the
`circumstances under which a law enforcement officer
`could follow a misdemeanant into a home to make an
`arrest were most assuredly unsettled even as of 2021.
`This Court stated in Lange that “[c]ourts are divided over
`whether the Fourth Amendment always permits an officer
`to enter a home without a warrant in pursuit of a fleeing
`misdemeanor suspect. Some courts have adopted such a
`categorical rule, while others have required a case-specific
`showing of exigency.” (footnote omitted). 141 S.Ct. at 2017.
`
`
`
`12
`
`The district court concluded that it would not have been
`clearly established to a reasonable deputy in Swindell’s
`shoes that he could not immediately enter the home so as
`to complete an arrest, which had been initiated outside the
`home, on the porch, just feet from the front door. Based
`on lack of clearly established law, the district court thus
`granted Swindell judgment as a matter of law based on
`qualified immunity. “In short, Bailey has not cited—and
`this Court has not found—a single authority in existence
`on September 11, 2014 that clearly established the
`unlawfulness of a warrantless home entry and arrest on
`the facts found by the jury here.” (App., p. 37). Judgment
`for Bailey was vacated and judgment was then entered in
`favor of Swindell. (App., p. 38).
`
`Bailey appealed yet again. In the opinion submitted for
`review to this Court, Bailey II, the Eleventh Circuit set
`aside the district court’s interpretation of the verdict form
`and the jury’s answer that the arrest was initiated outside
`the home, substituting its own conclusion that Bailey was
`completely inside the home when the arrest was initiated.
`Citing what it believed was an inconsistency as between 1)
`the jury’s finding that the arrest was initiated outside the
`home, with 2) the jury’s finding of lack of exigency and hot
`pursuit, plus the jury’s rejection of the crime of battery
`as supporting probable cause, the Eleventh Circuit held
`that the jury must have believed Bailey’s testimony and
`concluded that Bailey was entirely inside the home when
`the arrest was initiated. Bailey II, 89 F. 4th at 1330.
`
`In doing so, the Eleventh Circuit did not even consider
`that the jury’s finding of no exigency was based upon
`Bailey’s testimony that when he turned to enter the home
`he did not subjectively believe he was fleeing because
`he did not realize he was detained or was about to be
`
`
`
`13
`
`arrested. Having misconstrued the jury’s determination
`that the arrest was initiated outside the home as meaning
`that Bailey was actually inside the home when the
`arrest was initiated, the Eleventh Circuit concluded that
`Swindell’s entry was a violation of clearly established law
`under Payton. Bailey II, 89 F.4th at 1331.
`
`Critically for purposes of this petition, the Eleventh
`Circuit failed to acknowledge in Bailey I or II that
`Bailey’s offense of resisting Swindell’s investigation
`occurred on the front porch, in public view, when during
`questioning by Swindell Bailey abruptly turned to go
`inside. Indeed, the sole basis of the Eleventh Circuit’s
`reje
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