Brian White v. Andrew Mesa, et al

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 18-13879
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D.C. Docket No. 1:17-cv-23940-UU

BRIAN WHITE,

Plaintiff-Appellee,

versus

ANDREW MESA,
an employee of the City of Miami Police Department, in his
capacity as an individual,
JOSE PENA,
an employee of the City of Miami Police Department, in his
capacity as an individual,

Defendants-Appellants,

JOHN DOE,
an employee of the City of Miami Police Department, et al.,

Defendants.

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Appeal from the United States District Court
for the Southern District of Florida
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(June 2, 2020)
Before WILSON, MARCUS, and BUSH,
∗
Circuit Judge.
PER CURIAM:
In this interlocutory appeal, the appellants, Officers Andrew Mesa and Jose
Pena, challenge the district court’s denial of their motion for summary judgment
based on qualified immunity. Because we find that the appellants’ challenge rests
on factual disputes, we dismiss this appeal for want of appellate jurisdiction.
BACKGROUND
Before reaching the jurisdictional question, we must start with the facts. We
have resolved all issues of material fact in favor of the appellee, Brian White, since
we must “determine the legal question of whether the defendant[s] [are] entitled to
qualified immunity under that version of the facts.” See Bashir v. Rockdale Cty.,
445 F.3d 1323, 1327 (11th Cir. 2006).
This case arises from a high-speed car chase. In July 2015, a male called
911, reporting “a crime . . . going into effect at the Citibank.” He told the operator

∗

Honorable John K. Bush, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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that he was “following behind a car . . . that’s got the perpetrators.”
1
The caller
said that they had just stolen $4,000. He also said that there was a single
perpetrator who was “white” and “driving in a Mercedes CL 300.”
The 911 operator asked if the caller knew whether the perpetrator was
armed; the caller said he “could not see if he was armed. He did not . . . pull a
weapon out and I didn’t see a weapon on him.” Several minutes into the call, after
the 911 operator confirmed that police were on their way, the operator asked how
the perpetrator was able to steal the money. The caller eventually explained that
the perpetrator “stole the money from [his] son” through a “fraud” that took place
on two prior occasions and about which there was a case already pending.
2

Meanwhile, City of Miami police officers spotted a car matching the caller’s
description. The officers engaged their lights and sirens; a high-speed chase
ensued. They eventually caught up to the car at a dead-end street. The car
stopped. The driver immediately opened his door and laid on the ground, face
down and with his heads above his head.
While the driver was handcuffed and taken into custody, White—who was
in the passenger seat—stayed in the car with his hands up, staying still. White

1
At different points in the call, the caller refers to both a single perpetrator (“he” and “him”) and
multiple perpetrators (“they” and “them”). The parties dispute whether the appellants reasonably
expected to encounter more than one person in the car.

2
It is unclear when, if at all, the officers learned this fact. In their briefs, the appellants refer to
dispatching information they received, but neither party provides evidence about what the police
officers were told.
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claims that officers told him to stay in the car. Pena was the first officer to
approach the car, but multiple officers soon joined him. Mesa pulled White out of
the car by his arms and threw him to the ground. According to White, the cadre of
officers then proceeded to kick, choke, and punch him. Mesa (at minimum)
punched him five times and “knee[d]” him. Pena (at minimum) punched White
seven or eight times. White also claims that the officers lifted him from the ground
and slammed him back down again. After the assault, the officers handcuffed
White and took him into custody. White came away from the encounter with
substantial facial injuries.
Surveillance video captured both the driver’s and White’s arrests. The entire
incident, from when the car stopped to when White was handcuffed, took
approximately 97 seconds. Unfortunately, the surveillance camera was a
considerable distance away from the events that took place, making it difficult to
decipher specific actions.
White sued Mesa and Pena in the Southern District of Florida. In addition to
a 42 U.S.C. § 1983 claim, White sued for battery under Florida law. The
defendants sought summary judgment. They argued that they were entitled to
qualified immunity because neither officer used excessive force under the
circumstances. And, for similar reasons, they argued that their actions did not rise
to bad faith or maliciousness and therefore did not fall outside of the protection
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afforded to them under Florida law. The district court denied summary judgment,
holding that the defendants failed to show that there were no genuine issues of
material fact.
DISCUSSION
I.
“[A] defendant, entitled to invoke a qualified immunity defense, may not
appeal a district court’s summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”
Johnson v. Jones, 515 U.S. 304, 319–20 (1995). We have thus reminded parties
that our jurisdiction in such cases “depends on the type of issue involved.” Koch v.
Rugg, 221 F.3d 1283, 1295 (11th Cir. 2000). Where there are “legal issues
underlying the qualified immunity determination,” we have jurisdiction over the
appeal. Id. at 1295–96 (internal quotation mark omitted).
However, we may not exercise jurisdiction when the “issue presented in the
qualified immunity context challenges only sufficiency of the evidence relative to a
predicate factual element of the underlying constitutional tort.” Id. at 1296.
(internal quotation mark omitted). We lack jurisdiction in that circumstance
because it “involve[s] the determination of ‘facts a party may, or may not, be able
to prove at trial’” and therefore cannot be an “immediately appealable final
decision[].” Id. (quoting Johnson, 515 U.S. at 313).
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Here, after properly resolving the disputed facts in White’s favor, the district
court carefully explained how the disputed facts and evidence could lead a jury to
reasonably conclude that the officers violated White’s Fourth Amendment rights.
But the appellants argue that the record supports qualified immunity under the
circumstances they faced and that there are thus no disputed issues of material fact.
Specifically, they claim that after White was removed from the car, he struggled
with officers and even got up from the ground and took several steps to evade the
officers around him. Given that they supposedly suspected both White and the
driver of armed robbery, the appellants contend that they used only necessary force
to subdue White. The defendants also argue that White’s claim—that he did not
get up off the ground but rather was picked up from the ground—is undermined by
video evidence.
These are not legal challenges; they are challenges to the district court’s
determination of which facts were adequately supported by the evidence. See id.;
cf. Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 (11th Cir. 1998)
(holding that when “the appeal is based on an assertion that, even on the plaintiff’s
version of the facts, the defendants are entitled to qualified immunity as a matter of
law, we have jurisdiction to review the denial of summary judgment
interlocutorily”). Since the appellants’ arguments depend on a determination of
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facts that they may, or may not, be able to prove at trial, we lack jurisdiction. See
Koch, 221 F.3d at 1296.
Still, the appellants insist that our precedent entitles them to challenge the
district court’s factual determinations because the surveillance video obviously
contradicts those factual determinations. See Shaw v. City of Selma, 884 F.3d
1093, 1098 (11th Cir. 2018) (“But in cases where a video in evidence ‘obviously
contradicts the nonmovant’s version of the facts, we accept the video’s depiction
instead of the nonmovant’s account,’ and ‘view the facts in the light depicted by
the videotape.’” (alterations adopted) (citation omitted)). We need not consider
this argument, because the surveillance video here does not obviously contradict
White’s version of the facts.
3

II.
We turn next to the appellants’ challenge to the district court’s denial of
summary judgment on the Florida state law claim. “[W]hile state law governs the
applicability of immunity to state law claims, federal law determines the
appealability of the district court’s order denying summary judgment.” Sheth v.
Webster, 145 F.3d 1231, 1236 (11th Cir. 1998) (per curiam) (internal quotation
mark omitted); see also Griesel v. Hamlin, 963 F.2d 338, 340 (11th Cir. 1992) (per

3
We express no opinion as to whether Shaw would allow a party, who claims video evidence
obviously contradicts the district court’s factual determinations, to challenge those factual
determinations on interlocutory appeal.
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curiam) (stating a substantially similar rule from a Second Circuit case and
adopting that case’s subsequent analysis).
“[A]n order denying state official or sovereign immunity is immediately
appealable if state law defines the immunity at issue to provide immunity from suit
rather than just a defense to liability.” Parker v. Am. Traffic Sols., Inc., 835 F.3d
1363, 1367 (11th Cir. 2016); see also Griesel, 963 F.2d at 341 (holding that,
“[b]ecause sovereign immunity under Georgia law is an immunity from suit,” we
had jurisdiction to review a “district court’s order denying summary judgment
based on sovereign immunity under Georgia law”). Under Florida law,
[n]o officer, employee, or agent of the state or of any of its subdivisions
shall be held personally liable in tort or named as a party defendant in
any action for any injury or damage suffered as a result of any act,
event, or omission of action in the scope of her or his employment or
function, unless such officer, employee, or agent acted in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.

Fla. Stat. § 768.28(9)(a) (emphasis added). This statute plainly provides immunity
from suit. See Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (per curiam)
(“[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is
erroneously named as a party defendant and is required to stand trial, that
individual has effectively lost the right bestowed by statute to be protected from
even being named as a defendant.”); cf. Griesel, 963 F.2d at 340 (concluding “that
sovereign immunity under Georgia law is an immunity from suit” based on this
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language: “a suit cannot be maintained against the State without its consent”).
Therefore, we presumably would have jurisdiction over this claim. Griesel, 963
F.2d at 341.
Except we run into the same problem that robbed us of jurisdiction over the
federal claim: the appellants merely seek to challenge the district court’s factual
conclusions. So, for the same reasons we dismiss the federal claim, we must also
dismiss the state law claim.
4
See supra Section I. The district court carefully
considered the factual disputes in this case and determined that those disputes
precluded the granting of qualified immunity and summary judgment. Rather than
challenging the district’s court application of the law to the facts, the appellants
only challenge the district court’s identification of genuinely disputed issues of
material fact.
* * *
For those reasons, we lack jurisdiction to consider this interlocutory appeal,
and its dismissal is warranted. We remand the case for further proceedings in the
district court.
DISMISSED.

4
We also note that, even under Florida law, the appeal of the state law claim would be
dismissed. See Keck, 104 So. 3d at 366 (holding that interlocutory review of orders denying
immunity under § 768.28(9)(a) would be permitted “where the issue turns on a question of law”).
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