Opinion · Court of Appeals for the Eleventh Circuit
Roseann Michelle Gill v. Grady Judd
941 F.3d 504
- Type
- Opinion
- Court
- Court of Appeals for the Eleventh Circuit
- Jurisdiction
- Federal
- Date
- 2019-10-21
- Topic
- litigation
explaining that a party “may not switch theo- ries and transform [its] position on appeal” | recognizing a district court may consider exhibits to a complaint when ruling on a motion to dismiss | explaining that when a document contra- dicts the complaint’s allegations “about what the document is or says,” the document governs (internal quotation marks omitted) | explaining that a motion for a new trial is not limited to arguments advanced in a pre-verdict motion | noting that because “the plaintiff is the master of the complaint,” we will consider “all documents that are attached to the complaint or incorporated into it by reference” (cleaned up) | holding that nearly identical allegations were conclusory | discussing rule that exhibits attached or referenced by complaint may be considered when ruling on a motion to dismiss | stating, in Fourth Amendment context, “[a] choice in which the answer is dictated by coercion is no choice at all” | instructing courts to “compare each relevant allegation in the complaint with its counterpart in the [exhibit] and decide if [the allegation] is specific enough to prevent that statement in the [exhibit] from being considered” | “[W]hen exhibits attached to a complaint contradict the general and conclusory allegations of the pleading, the exhibits govern.” | “[W]hen exhibits attached to a complaint contradict the general and conclusory allegations of the pleading, the exhibits govern.” | “[W]hen exhibits attached to a complaint contradict the general and conclusory allegations of the pleading, the exhibits govern.” | “[W]hen exhibits attached to a complaint contradict the general and conclusory allegations of the pleading, the exhibits govern.” | alteration added; citing Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) | “A factfinder must . . . determine whether in fact there was consent . . . .” | dis- regarding “allegations about what the document is or says [that] contradict the document itself ” | “[W]hen exhibits attached to a complaint contradict the general and conclusory alle- gations of the pleading, the exhibits govern.” (citation and internal quotation marks omitted) | “The Civil Rules provide that an attachment to a complaint generally becomes ‘part of the pleading for all purposes,’ including for ruling on a motion to dismiss.” | “The Civil Rules provide that an attachment to a complaint generally becomes ‘part of the pleading for all purposes’ . . . .” (quoting Fed. R. Civ. P. 10(c)) | “In deciding whether a complaint states a claim upon which relief may be granted, we normally consider all documents that are attached to the complaint or incorporated into it by reference.” | “In deciding whether a complaint states a claim upon which relief may be granted, we normally consider all documents that are attached to the complaint or incorporated into it by reference.” | “In deciding whether a complaint states a claim upon which relief may be granted, we normally consider all documents that are attached to the complaint or incorporated into it by reference.” | “In deciding whether a complaint states a claim upon which relief may be granted, we normally consider all documents that are attached to the complaint or incorporated into it by reference.” | “The Civil Rules provide that an attachment to a complaint generally becomes “part of the pleading for all purposes,” Fed. R. Civ. P. 10(c), including for ruling on a motion to dismiss.” | “The Civil Rules provide that an attachment to a complaint generally becomes “part of the pleading for all purposes,” Fed. R. Civ. P. 10(c), including for ruling on a motion to dismiss.” | “The Civil Rules provide that an attachment to a complaint generally becomes ‘part of the pleading for all purposes,’ Fed. R. Civ. P. 10(c), including for ruling on a motion to dismiss.” | “[W]hen exhibits attached to a complaint ‘contradict the general and conclusory allegations of the pleading, the exhibits govern.’ ” (quoting Griffin Indus., Inc. v
Citator
- Cited by
- 38 opinions
Case: 17-14525 Date Filed: 10/21/2019 Page: 1 of 48
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14525
________________________
D.C. Docket No. 8:15-cv-00840-MSS-TBM
ROSEANN MICHELLE GILL,
as Parent and Next Friend of K.C.R., a minor,
Plaintiff-Appellant,
versus
GRADY JUDD,
individually and in his official capacity as the Sheriff of Polk County,
JONATHAN MCKINNEY,
individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 21, 2019)
Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.
ED CARNES, Chief Judge:
Case: 17-14525 Date Filed: 10/21/2019 Page: 2 of 48
The death of a child is tragic, doubly so if it is suicide. And still more so if
the child was driven to take her life by the bullying of other children. The first two
levels of tragedy are undisputed in this case: a twelve-year-old girl, we’ll call R.S.,
deliberately ended her young life. Members of the Polk County, Florida Sheriff’s
Department thought that R.S. took her life because she had been harassed and
bullied by some of her sixth-grade classmates. Following an investigation, a
deputy arrested one of those classmates, whom we will call K.C.R. She had once
been R.S.’s best friend, but she found herself charged with having committed the
crime of aggravated stalking, a felony, which includes harassing a child under
sixteen years of age. The warrantless arrest took place inside K.C.R’s home.
The presumption of innocence proved apt in K.C.R’s case. The aggravated
stalking charge against her was eventually dismissed, but not before the sheriff
released K.C.R.’s name and photograph to the media and repeatedly and publicly
blamed her for the death of R.S. As one might imagine, that had a devastating
effect on K.C.R. She filed a lawsuit under 28 U.S.C. § 1983
, naming as defendants
the sheriff and a deputy who had entered her home and arrested her.1
The district court dismissed most of K.C.R.’s claims, including the claim
that the deputy lacked probable cause to arrest her. The court granted summary
1
Because K.C.R. as a minor had to sue through a parent or legal guardian, her mother
brought the lawsuit for her. For ease of reference, we’ll refer to the plaintiff as K.C.R. instead of
as K.C.R.’s mother or some other variation.
2
Case: 17-14525 Date Filed: 10/21/2019 Page: 3 of 48
judgment against K.C.R. on one of her two remaining claims. K.C.R.’s last
surviving claim, which went to the jury, was that deputies entered her house
without a warrant (undisputed) and without consent (disputed) and thereby violated
her Fourth Amendment rights. The sole question for the jury was whether the
arresting deputy had consent to enter K.C.R.’s house. The jury found that he did.
This is K.C.R.’s appeal challenging the dismissal of her claim that there was
no probable cause for the arrest and challenging the judgment entered on the jury’s
verdict that the deputy had consent to enter her home to make the arrest.
I. PROCEDURAL HISTORY
K.C.R. filed this lawsuit in federal district court in April 2015. She claimed
that the sheriff’s deputy who arrested her, Jonathan McKinney, violated her Fourth
Amendment right to be free from unreasonable searches and seizures both because
he did not have probable cause to arrest her and because he did not have consent to
enter her home. She also claimed that Sheriff Grady Judd and his office had an
unconstitutional policy of encouraging the kind of warrantless home arrests she
had experienced. There were also various state-law claims, but none of them is
relevant to this appeal.
The district court dismissed some of K.C.R.’s claims under Federal Rule of
Civil Procedure 12(b)(6), including her Fourth Amendment claim that McKinney
lacked probable cause to arrest her. The court also granted summary judgment to
3
Case: 17-14525 Date Filed: 10/21/2019 Page: 4 of 48
the sheriff on K.C.R.’s unlawful policy claim. That left for trial only her Fourth
Amendment claim that Deputy McKinney did not have consent to enter K.C.R.’s
house and arrest her without a warrant. It was tried to a jury. Because the district
court had already determined that McKinney had probable cause to make the
arrest, the jury had only one question to answer: “Did the Defendant Jonathan
McKinney enter Plaintiff’s house without consent in violation of Plaintiff’s civil
rights?” The jury answered: “No.”
K.C.R. contends that the district court committed three reversible errors.
First, she contends that it erred by dismissing her claim that McKinney did not
have probable cause to arrest her. Second, she challenges the sufficiency of the
evidence for the jury to find that McKinney had consent to enter her house and also
contends that the district court erred by denying her motions for judgment as a
matter of law and for a new trial based on insufficient evidence. And third, she
contends that the district court abused its discretion when it denied her motions for
a new trial and for a mistrial based on the answers that the judge had given to some
questions the jury asked during deliberations. We will address those contentions in
that order.
II. THE DISMISSAL ISSUES
We review de novo the district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) of K.C.R.’s claim that McKinney did not have probable cause
4
Case: 17-14525 Date Filed: 10/21/2019 Page: 5 of 48
to arrest her. See Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265
(11th Cir. 2012). The question we must answer is whether K.C.R.’s operative complaint –– the amended one, which we will simply refer to as “the complaint” – – alleged sufficient facts to state a plausible claim that McKinney lacked probable cause for the arrest. See Bell Atl. Corp. v. Twombly,550 U.S. 544, 570
(2007). While we accept the factual allegations in the complaint as true, construing them in the light most favorable to the plaintiff, the allegations must state a claim for relief that is plausible, not merely possible. See Butler,685 F.3d at 1265
. Under this standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,556 U.S. 662, 678
(2009).
In considering whether the district court properly dismissed the claim
asserting a lack of probable cause, we do not look to any of the evidence submitted
in connection with the summary judgment motion or introduced at trial. That
evidence all came later and the dismissal of a claim under Rule 12(b)(6) is to be
judged for correctness at the time the dismissal took place.
A. Consideration Of The Affidavit Attached To The Complaint
In deciding whether a complaint states a claim upon which relief may be
granted, we normally consider all documents that are attached to the complaint or
incorporated into it by reference. The Civil Rules provide that an attachment to a
5
Case: 17-14525 Date Filed: 10/21/2019 Page: 6 of 48
complaint generally becomes “part of the pleading for all purposes,” Fed. R. Civ.
P. 10(c), including for ruling on a motion to dismiss. See Hoefling v. City of
Miami, 811 F.3d 1271, 1277
(11th Cir. 2016) (stating that a “court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss . . . .”); Saunders v. Duke,766 F.3d 1262, 1270
(11th Cir. 2014) (“[D]ocuments attached to a complaint or incorporated in the complaint by reference can generally be considered by a federal court in ruling on a motion to dismiss under Rule 12(b)(6).”); Griffin Indus., Inc. v. Irvin,496 F.3d 1189, 1199
(11th Cir. 2007)
(“We are required to accept the facts as set forth in the plaintiff’s complaint as true,
and our consideration is limited to those facts contained in the pleadings and
attached exhibits.”).
The rule that attached exhibits are to be considered part of the complaint
when ruling on its sufficiency usually benefits the plaintiff, but not always. As our
predecessor court warned nearly 80 years ago, a “litigant may be defeated by his
own evidence, the pleader by his own exhibits” when “he has pleaded too much
and has refuted his own allegations by setting forth the evidence relied on to
sustain them.” Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813
(5th Cir.
1940) (emphasis added).2 In the Parkerson case, for example, the Court explained:
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
6
Case: 17-14525 Date Filed: 10/21/2019 Page: 7 of 48
“This complaint is plagued not by what it lacks, but by what it contains. All of the
paths to relief which the pleading suggests are blocked by the allegations and the
attached documents themselves, without more.” Gen. Guar. Ins. Co. v. Parkerson,
369 F.2d 821, 825
(5th Cir. 1966) (emphasis added). That is what happened in the
Parkerson case, and it is what has happened here.
Under the Florida Rules of Criminal Procedure, when a warrantless arrest is
made and the defendant is held in custody, a non-adversarial probable cause
determination must be made by a judge within 48 hours after the arrest. See Fla.
R. Crim. P. 3.133(a)(1). The rules provide that the determination “may be based
on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony
under oath properly recorded.” Fla. R. Crim. P. 3.133(a)(3). In actual practice the
48-hour judicial determination of probable cause is almost always made based on
an affidavit or sworn complaint, which is sometimes called an “A-form” or “arrest
form.” It is usually filled out by the arresting officer after the warrantless arrest,
which apparently is what happened in this case. The arresting officer need not be
present when the judge decides whether the affidavit or complaint establishes
probable cause to believe that the person arrested had committed a crime. Cf. Fla.
R. Crim. P. 3.133(a)(3).
On the same day he arrested K.C.R., Deputy McKinney filled out a Rule
3.133(a)(3) complaint or affidavit. The parties call it “the arrest affidavit,” and so
7
Case: 17-14525 Date Filed: 10/21/2019 Page: 8 of 48
will we. As the rules contemplate, McKinney set out in the arrest affidavit what he
had learned and had been told that caused him to conclude there was probable
cause to arrest K.C.R. for the crime of aggravated stalking. The affidavit included
short summaries of interviews McKinney had with four students who had attended
the same middle school as K.C.R. and R.S. Three of them told McKinney that
K.C.R. had bullied R.S., while the fourth said that K.C.R. and R.S. had once been
best friends but that K.C.R. ended their relationship. From this and other facts
McKinney concluded that R.S. had been “repeatedly and maliciously harassed by
[K.C.R.],” and that “the malicious harassment of [R.S.], perpetrated by [K.C.R.],
was a contributing factor in [R.S.’s] decision to commit suicide.” All of that is in
the arrest affidavit.
K.C.R. was not required to attach the arrest affidavit as an exhibit to her
complaint, but she did. She also referred to it, or quoted from it, a dozen times in
the complaint. In that manner K.C.R. incorporated the affidavit into her complaint.
She could do so because she is the plaintiff, and “[t]he plaintiff is the master of the
complaint.” See United States v. Jones, 125 F.3d 1418, 1428
(11th Cir. 1997).
But why would she do it?
The obvious reason K.C.R incorporated McKinney’s affidavit into the
complaint is to have a target at which to aim her arguments that he lacked probable
cause, or even arguable probable cause, to arrest her for aggravated stalking. She
8
Case: 17-14525 Date Filed: 10/21/2019 Page: 9 of 48
was saying in effect: “Here’s his story, what he relied on when he made the arrest,
and it isn’t good enough.” See, e.g., Pl.’s Mem. in Opp’n to Defs.’ Mot. to
Dismiss Am. Compl. at 4 (“The primary argument made by all Defendants is that
the arrest affidavit executed by Defendant McKinney establishes probable cause
thereby barring Plaintiff’s claims. Defendants are wrong.”); id. at 5 (“At most, the
facts in the arrest affidavit allude to a common middle-school-age rift. No facts in
the affidavit give rise to probable cause, or arguable probable cause, that Plaintiff
maliciously harassed or cyberstalked the victim.”); id. at 6 (“[T]he facts in the
arrest affidavit in and of themselves are not sufficient to support a probable cause
violation of [the Florida aggravated stalking statute]”); id. at 6 n.1 (“Notably, the
affidavit fails to describe how the Defendants made the logical connection between
any of Plaintiff’s actions and the victim’s emotional state/death.”).
The district court accepted K.C.R.’s invitation to decide her arrest claim
based on the facts set out in McKinney’s arrest affidavit. But after considering
those facts, the court concluded that there was probable cause for the arrest.
Having lost with that strategy in the district court, K.C.R. is now trying a
different one in this Court. Instead of continuing to posit that the arrest affidavit
shows what McKinney knew and didn’t know when he arrested her, K.C.R. argues
to us that the affidavit does not show that the facts set out in it were known to
McKinney at the time of the arrest. She says that “[t]he affidavit does not shed
9
Case: 17-14525 Date Filed: 10/21/2019 Page: 10 of 48
light on when the details therein were made known to McKinney,” and it “is not
enough to show arguable probable cause or probable cause existed when
McKinney effected the arrest.” Appellant’s Br. 45 n.29. Instead, the facts
constituting probable cause or arguable probable cause must have been known to
McKinney when he made the arrest. Anything he learned in the interval between
the arrest and the creation of the affidavit doesn’t count, and K.C.R. insists that
there has been no showing that the facts in the arrest affidavit were known to
McKinney at the time of the arrest instead of later.
We reject K.C.R.’s new theory because it comes too late. It was never
raised in the district court, not even a little bit. Instead, in that court K.C.R. argued
that the facts set out in the arrest affidavit, even if true, did not show probable
cause or arguable probable cause. Period. She never argued that the facts alleged
in the arrest affidavit were not known to McKinney at the time of the arrest. Not
once. She may not switch theories and transform her position on appeal. See
United States v. Stein, 889 F.3d 1200, 1202
(11th Cir. 2018) (“If we were to regularly address questions . . . that district[] court[s] never had a chance to examine, we would not only waste our resources, but also deviate from the essential nature, purpose, and competence of an appellate court.”) (alterations in original) (quoting Access Now, Inc. v. Sw. Airlines Co.,385 F.3d 1324, 1331
(11th Cir. 2004)); Reaves v. Sec’y, Fla. Dep’t of Corr.,872 F.3d 1137, 1149
(11th
10
Case: 17-14525 Date Filed: 10/21/2019 Page: 11 of 48
Cir. 2017) (“To prevail on a particular theory of liability, a party must present that
argument to the district court. Our adversarial system requires it; district courts
cannot concoct or resurrect arguments neither made nor advanced by the parties.”)
(quoting Fils v. City of Aventura, 647 F.3d 1272, 1284
(11th Cir. 2011)); Smith v. Sec’y, Dep’t of Corr.,572 F.3d 1327, 1352
(11th Cir. 2009) (“Because the issue or argument was not properly presented to the district court, we will not decide it.”); Skinner v. City of Miami,62 F.3d 344, 348
(11th Cir. 1995) (“[A]s a general rule,
an appellate court will not consider a legal issue or theory raised for the first time
on appeal . . . .”). 3
B. The Affidavit Versus The Allegations In The Complaint Itself
K.C.R. also argues that we should not credit McKinney’s affidavit because
she alleged in her complaint that the affidavit contains misleading, incomplete, and
inaccurate information, and we must accept that it does because that’s what her
complaint says. Not exactly.
When it comes to accepting as accurate an exhibit attached to a complaint,
we follow the same general pleading standards that apply under Federal Rule of
Civil Procedure 8. “[M]ere conclusory statements[] do not suffice.” Iqbal, 556
3
For what it’s worth, there does not appear to be much factual room for K.C.R.’s new
theory anyway. The complaint states that K.C.R. was arrested “[o]n or about October 14, 2013.”
The arrest affidavit shows that is the same date McKinney signed the arrest affidavit before a
notary public. K.C.R. did not allege in the complaint that the date on the affidavit is false. So
the facts that McKinney put into the affidavit were known to him on the same day as the arrest.
11
Case: 17-14525 Date Filed: 10/21/2019 Page: 12 of 48
U.S. at 678. So when exhibits attached to a complaint “contradict the general and
conclusory allegations of the pleading, the exhibits govern.” Griffin Indus., Inc.,
496 F.3d at 1206
(citing Associated Builders, Inc. v. Ala. Power Co.,505 F.2d 97, 100
(5th Cir. 1974) (“Conclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by a document appended to the complaint. If the appended document . . . reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.”)). “The classic example is when a plaintiff attaches a document to his complaint but his allegations about what the document is or says contradict the document itself.” Hoefling,811 F.3d at 1277
(citing Simmons,113 F.2d at 813
).
In Simmons, “the classic example,” the plaintiff alleged in his complaint that
he and the defendant had entered into a contract, and he attached to the complaint
several letters that he asserted either formed the contract or at least showed that an
implied contract had been formed. See 113 F.2d at 812–13. Because those letters
did neither of those things, we affirmed the dismissal of the plaintiff’s claims. Id. at 813
. We explained that the plaintiff could have survived a motion to dismiss if he had simply pleaded a short and plain statement alleging facts that a contract existed.Id.
But once he attached the letters to his complaint and alleged that they
were the contract or at least showed that an implied contract existed, “it became the
duty of the court . . . to construe th[e] letter[s] and determine [their] legal effect.”
12
Case: 17-14525 Date Filed: 10/21/2019 Page: 13 of 48
Id.
When the court did so, it appropriately found that the “letters not only did not show an express contract, but refuted the inference of an implied one.” Id.; cf. Crenshaw v. Lister,556 F.3d 1283, 1292
(11th Cir. 2009) (accepting as true on
summary judgment police officers’ reports that plaintiff had attached to his
complaint because the reports “refute[d] [the plaintiff’s] conclusory and
speculative allegation [in his complaint] about what the officers saw”). The rule is
specific over speculative, concrete over conclusory.
When a complaint contains specific, well-pleaded allegations that either do
not appear in the attached exhibit or that contradict conclusory statements in the
exhibit, we credit the allegations in the complaint. For example, in Saunders v.
Duke, 766 F.3d 1262
(11th Cir. 2014), a plaintiff sued three police officers for excessive force and alleged that one of them had slammed the plaintiff’s face onto the pavement when he was arrested.Id.
at 1265–66. The plaintiff also alleged that the officers “failed to properly and correctly document the excessive force inflicted on him and the injuries he suffered” in their reports.Id. at 1270
. The plaintiff went into great detail in his complaint about the force that was used against him and the injuries he received, while the officers’ reports did not mention any use of force at all. See Fifth Amended Complaint at 8–14, 18–23, Saunders v. Duke, No. 6:10-cv-120-CEM-GJK,2012 WL 12870345
(M.D. Fla. Jan. 4, 2012), Doc. 50.
13
Case: 17-14525 Date Filed: 10/21/2019 Page: 14 of 48
As a result, we did not credit the police reports even though the plaintiff had
attached them to his complaint. See Saunders, 766 F.3d at 1270
.
Here, the complaint contains some specific allegations about the statements
in McKinney’s affidavit and some conclusory ones. In his affidavit McKinney
wrote down information that he had “gathered during []his investigation through
interviews of [R.S.’s] fellow students.” The complaint does not allege that
McKinney made up the entire investigation, or that he never interviewed the
students, as recounted in the affidavit, or that the students McKinney interviewed
didn’t tell him what he reported they did.
The complaint does allege that McKinney “maliciously, deliberately, and
with a reckless disregard for the truth interviewed four minors and coerced,
deliberately misconstrued, or falsified statements and used conclusory summaries,”
but that allegation in the complaint is too general and conclusory for us to know
which specific statements in the affidavit allegedly are false or were coerced. We
cannot throw out the entire arrest affidavit because K.C.R. made it part of her
pleading. See Fed. R. Civ. P. 10(c). What we must do is compare each relevant
allegation in the complaint with its counterpart in the arrest affidavit and decide if
is specific enough to prevent that statement in the affidavit from being considered.
Some of the allegations in the complaint are specific enough to do that. For
example, it specifically says that K.C.R. “never confessed to bullying the victim.”
14
Case: 17-14525 Date Filed: 10/21/2019 Page: 15 of 48
That is enough for us to disregard all of the statements about bullying that
McKinney’s affidavit says came from K.C.R.’s confession. The complaint also
specifically alleges that “McKinney maliciously, deliberately, and with a reckless
disregard for the truth, falsely swore under oath that it was determined that
malicious harassment was a contributing factor in the victim’s decision to commit
suicide.” That is specific enough for us to disregard McKinney’s personal
conclusion that K.C.R.’s harassment contributed to R.S.’s death. (And, in any
event, subjective views or conclusions of a defendant officer are irrelevant to the
determination of probable cause. See Rankin v. Evans, 133 F.3d 1425
, 1433–34
(11th Cir. 1998)).
Other allegations in the complaint refer to particular statements in the arrest
affidavit but are too general or conclusory for us to credit. For example, in the
affidavit McKinney stated that one of the students had said that K.C.R. had started
a fight with R.S. The complaint alleges that “the description of the fight was
deliberately false and misleading,” but it does not say what part of the description
was false and misleading and in what way.
Other statements in the complaint that we do not credit include K.C.R.’s
assertions that “[t]he Affidavit executed by Defendant McKinney does not
establish probable cause” and “there are material misstatements and omissions in
the Affidavit.” The first statement is a legal conclusion. See Iqbal, 556 U.S. at 15
Case: 17-14525 Date Filed: 10/21/2019 Page: 16 of 48
678 (“[T]he tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.”). The second statement is a
general one so broad that it provides us no help in determining which statements in
the affidavit are material misstatements or what has been omitted.
C. The Factual Allegations Left Standing In
The Complaint And The Arrest Affidavit
Reading the affidavit against the complaint and the complaint against the
affidavit, here are the allegations we are left with for purposes of the motion to
dismiss. K.C.R.’s twelve-year-old classmate, R.S., ended her young life by
jumping off a silo at an abandoned cement plant in Lakeland, Florida on
September 9, 2013. Deputy Sheriff McKinney of the Polk County Sheriff’s Office
headed up the investigation into R.S.’s death. On October 14, 2013, without a
warrant, he arrested K.C.R. for felony aggravated stalking of a minor under 16
years of age. See Fla. Stat. § 784.048
(5) (“A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a child under 16 years of age commits the offense of aggravated stalking, a felony of the third degree . . . .”);id.
§ 7804.048(6) (“A law enforcement officer may arrest, without a warrant, any
person that he or she has probable cause to believe has violated this section.”). The
minor K.C.R. was charged with stalking was R.S.
16
Case: 17-14525 Date Filed: 10/21/2019 Page: 17 of 48
After he arrested K.C.R., McKinney filled out an arrest affidavit that laid out
the facts he asserted had given him probable cause to make the arrest. In that
affidavit McKinney stated he had interviewed four of K.C.R.’s classmates. He
learned from them that K.C.R. and R.S. had attended the same middle school and
that they had been best friends at the beginning of the school year. According to
two of the students, another student convinced or coerced K.C.R. to end that
friendship. Three students also told McKinney that they had seen K.C.R. bullying
R.S. by calling her names and intimidating her. One of them described that
bullying as happening “constantly” during the second part of the school year;
another said that K.C.R. had bullied R.S. on several occasions. And one student
McKinney interviewed also stated that K.C.R. had started a fight with R.S. on
February 4, 2013, and that the school had documented the fight. In her complaint
K.C.R. does not dispute that this is what the students told McKinney, though she
does allege that she actually did not bully R.S.
McKinney stated in his affidavit that based on the interviews he conducted
he concluded that K.C.R. had “participated in and initiated a pattern of conduct
between December 2012 and February 2013 with the purpose of maliciously
harassing [R.S.].” It is undisputed that K.C.R. did not have contact with R.S. after
February 2013 (about seven months before R.S.’s death) and that there was no
evidence of text messages or postings on social media by K.C.R. about R.S.
17
Case: 17-14525 Date Filed: 10/21/2019 Page: 18 of 48
D. The Probable Cause Analysis
K.C.R. contends that the allegations in her amended complaint and the
factual recitations in McKinney’s affidavit, when viewed together, fail to establish
probable cause that she violated Florida’s aggravated stalking law. Probable cause
“exists where the facts and circumstances within the officers’ knowledge and of
which they had reasonably trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that an offense has been or is
being committed.” Marx v. Gumbinner, 905 F.2d 1503, 1506
(11th Cir. 1990) (quotation marks and alterations omitted). “Because probable cause deals with probabilities and depends on the totality of the circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” District of Columbia v. Wesby,138 S. Ct. 577, 586
(2018) (quotation marks omitted). It “requires more than mere suspicion, but does not require convincing proof.” Bailey v. Bd. of Cty. Comm’rs,956 F.2d 1112, 1120
(11th Cir. 1992); see Wesby,138 S. Ct. at 586
(“It requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”) (quotation marks omitted). All in all, it’s “not a high bar.” Wesby,138 S. Ct. at 586
.
McKinney arrested K.C.R. for an alleged violation of Florida Statutes
§ 784.048(5). Again, that statute provides: “A person who willfully, maliciously,
and repeatedly follows, harasses, or cyberstalks a child under 16 years of age
18
Case: 17-14525 Date Filed: 10/21/2019 Page: 19 of 48
commits the offence of aggravated stalking, a felony of the third degree . . . .” Fla. Stat. § 784.048
(5). “Harass” is then defined as “engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.”Id.
§ 748.048(1)(a). Given this
definition, K.C.R.’s harassment of her classmate need not have contributed to her
death for K.C.R. to have violated the law. Instead, the statute requires only that the
harassment cause “substantial emotional distress.” Id.
Based on McKinney’s investigation a reasonable person in his position
would have concluded that K.C.R. willfully, maliciously, and repeatedly harassed
her former friend and classmate. Students told McKinney that after K.C.R. had
ended her friendship with R.S., she had bullied R.S. by calling her names and
intimidating her. One student mentioned having seen K.C.R. bully R.S. on several
occasions; another told him that K.C.R. was “constantly” bullying R.S. during the
second part of the previous school year. And one of the students told McKinney
that K.C.R. had started a fight with R.S., which the school had documented.
From this, a reasonable person would conclude that K.C.R. harassed R.S. and
caused her substantial emotional distress in violation of the Florida statute.
K.C.R. does allege in her complaint that McKinney “falsely swore under
oath that it was determined that malicious harassment was a contributing factor in
the victim’s decision to commit suicide.” But it matters not whether McKinney
19
Case: 17-14525 Date Filed: 10/21/2019 Page: 20 of 48
himself (or anyone else at the Polk County Sheriff’s Office) subjectively believed
that K.C.R. had caused R.S.’s death. She was not arrested on a charge of causing
R.S.’s death.
It does not even matter whether McKinney personally believed that K.C.R.
had stalked R.S. Subjective beliefs “play no role in ordinary, probable-cause
Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813
(1996); see Rankin,133 F.3d at 1434
(“No subjective belief requirement exists under either [Florida] or federal law.”). Probable cause is an objective standard. See Rankin,133 F.3d at 1433
. The issue is not whether McKinney’s subjective belief was reasonable, but whether “a reasonable man would have believed probable cause existed had he known all of the facts known by the officer.”Id.
(quotation
marks and alterations omitted). Reasonable officers would have believed that
probable cause existed to arrest K.C.R., even though the charge was eventually
dismissed. While causing “substantial emotional distress” is an element of
aggravated stalking, causing or contributing to the victim’s death is not. Nor is the
death of the victim.
III. THE TRIAL ISSUES
We now turn to K.C.R.’s contentions of error involving the district court’s
rulings at trial. She challenges the court’s refusal to grant her a new trial or to
otherwise override the jury’s verdict that McKinney had consent to enter her
20
Case: 17-14525 Date Filed: 10/21/2019 Page: 21 of 48
house. She stresses that none of the deputies, including McKinney, disputed that
without consent they had entered into a screened-in porch that was in front of her
house. 4 These are trial-related issues and we draw from the evidence presented at
trial to tell this part of the story, making all reasonable inferences in favor of
McKinney as the prevailing party. See Hubbard v. Bank Atlantic Bancorp., Inc.,
688 F.3d 713, 724
(11th Cir. 2012).
A. Facts Related To The Consent To Enter Issue
In the early afternoon of October 14, 2013, McKinney called K.C.R.’s
mother and asked her to bring her daughter down to the sheriff’s department for
questioning. He did not tell her that he planned to arrest her daughter, though that
was his plan. K.C.R.’s mother refused the request. Later that afternoon McKinney
and three other sheriff’s deputies — Sergeant Deborah Hamilton, Detective
Christopher Lynn, and Lieutenant Jamie Rudd — headed to K.C.R.’s house to
make the arrest. McKinney testified at trial that he had time after his phone call
with K.C.R.’s mother to obtain a warrant but that he and the other members of his
team chose not to apply for one. Instead, he said their plan was to go to the house
and ask permission to enter, and if that didn’t work they would post a deputy at the
front door while they went and obtained a warrant.
4
At trial that area was at different times called a “screened-in room,” a “screened-in
enclosure,” and a “screened porch.” For consistency we will call the area a “porch” or a
“screened-in porch” unless we are quoting the record.
21
Case: 17-14525 Date Filed: 10/21/2019 Page: 22 of 48
The deputies arrived at the house in unmarked vehicles. They wore plain
clothes, and bulletproof vests with “SHERIFF” emblazoned across the front, and
their weapons were holstered. McKinney, followed by Lynn and Hamilton (Rudd
would join later), approached the house, opened the door to a screened-in porch in
front of the house, and walked through that area and up the three steps to the front
door. Then McKinney knocked and announced in a loud voice: “Polk County
Sheriff’s Department.” K.C.R.’s father answered the door. McKinney told him
they were there to arrest K.C.R.
According to McKinney’s and Hamilton’s trial testimony, K.C.R.’s father
told the deputies that he needed to put up his dog. He then shut the door. Rudd
joined the other deputies while they were waiting for K.C.R.’s father to return. A
few minutes later he opened the door and the deputies entered the house.
To determine whether McKinney had K.C.R.’s father’s consent to cross that
threshold, the jury heard from McKinney, Lynn, Rudd, Hamilton, and K.C.R.’s
father. Because the jury’s factual determination of this issue is the central issue on
appeal, we will quote some of that testimony at length. First, from McKinney and
Hamilton:
McKinney:
Q. Okay. And you knocked and announced?
A. Yes, sir, that’s correct.
Q. Then what happened?
22
Case: 17-14525 Date Filed: 10/21/2019 Page: 23 of 48
A. Then [K.C.R.’s father] opened the door. I told [him] I was there
to arrest [K.C.R.]. [K.C.R.’s father] asked if I could hang on for
a minute while he put the dog up, he closed the door, he went
back into the house for a few moments and then he came back to
the door and opened the door.
Q. Okay. So he opened the door twice?
A. That’s correct.
Q. Okay. The first time he opened the door, you said you’re here to
arrest [K.C.R.]?
A. That’s correct. . . .
Q. And what happened next?
A. [K.C.R.’s father] opened the door wide and stepped back and I
walked into the residence.
Q. Okay. Did he make any gesture?
A. Not that I remember. . . .
Q. So how did he move back?
A. He opened the door and he stepped back.
Q. Okay. Did he say anything to you at that point?
A. No, sir.
Q. When he came b[ac]k to the door the second time, did he say
anything when he opened it?
A. I don’t remember if he did or not.
Q. Did you ever touch the door?
A. I did not.
Q. How wide did he open it?
A. All the way open.
Q. And where was he then standing?
A. Beside the door.
Q. Did you ever touch him?
A. I did not.
Q. Make any move toward him whatsoever?
A. No, sir. . . .
Q. Did anyone ever touch a weapon while there?
A. Absolutely not.
Q. Anybody make any threatening statements?
A. No.
23
Case: 17-14525 Date Filed: 10/21/2019 Page: 24 of 48
Hamilton:
A. Detective McKinney told [K.C.R.’s father] that we were there
to arrest [K.C.R.].
Q. Okay. And did [K.C.R.’s father] reply?
A. Yes.
Q. What did he say? . . .
[A.] He said, just a moment, I need to put a dog away inside the
house. . . .
Q. Okay. And then what did [he] do?
A. He closed the door and went to put the dog away.
Q. And what did y’all do, you and Detective McKinney and
Detective Lynn do at that point?
A. We waited outside for him to come back.
Q. And what happened next?
A. He came back, he opened up the door to the house and we went
in.
Q. How did he open up the door?
A. He just opened it up and stood back.
Q. Okay. Was there plenty of room for you all to go in?
A. Yes.
Q. How did you proceed in at that point, in what manner?
A. We just walked in, walked inside, into the living room.
Lynn and Rudd both testified that they could not hear any of the
conversation between K.C.R.’s father and McKinney and that they followed the
other deputies into the house on the assumption that K.C.R.’s father had welcomed
them in.
K.C.R.’s father’s testimony differed. He said that he only heard the knock
on the door, not the identifying announcement, and that he did not know who was
there until he opened the door. Once he did that, he told the jury, “[the deputies]
said, ‘we’re here to arrest [K.C.R.]’ and walked right in.” When asked whether the
24
Case: 17-14525 Date Filed: 10/21/2019 Page: 25 of 48
deputies asked for consent to come in, or whether he “g[a]ve any indication that
[he] agreed with them to come in,” he answered: “No.” But he did tell the jury
that none of the deputies bumped him or pushed him on their way in, even though
he had kept his hand on the door as they entered the house. As he stated on cross-
examination:
Q. Okay. So you opened the door. How did you open it? How wide
did you open it?
A. I -- I opened it like this, I stood there and then they just kind of
went in and I backed up.
Q. Okay. No one ever struck you --
A No.
Q. -- or bumped you or pushed you or anything?
A. No.
Q. Is it a single door?
A. Yes, sir.
Q. You, not unlike me, are a pretty big man, would you agree?
A. Yeah. I was a little bit lighter then though.
Q. Okay. Deputy McKinney is a fairly big man too?
A. Yes.
Q. Okay. He was able to come through the doorway without
bumping you or pushing you or doing anything?
A. Yeah. It was very close though.
Q. Is that because you stood back?
A. It was because, yeah, basically I stood back. I mean, they had
guns on them and stuff. I wasn’t going to get in front of them.
Q. And you were holding onto the door at the time?
A. Yes, sir, I still had it in my hand.
Q. And opened it wide?
A. I opened it semi-wide.
Q. So there was room for you to stand there and them to all come
in?
A. Yeah, after the first one came in, I just -- what am I going to do?
25
Case: 17-14525 Date Filed: 10/21/2019 Page: 26 of 48
Once the deputies entered the home, they found K.C.R. in her pajamas. Her
mother pleaded with the officers: “Please don’t take my baby, please don’t take
my baby!” The deputies let K.C.R. change into normal clothes, and then
McKinney arrested her, walked her outside, and handcuffed her before putting her
in the car and taking her to the Juvenile Assessment Center. She was held there for
about six hours and released. All charges against her were eventually dismissed.
After the jurors heard all of this evidence, they retired to deliberate on a
single question: “Did the Defendant Jonathan McKinney enter Plaintiff’s house
without consent in violation of Plaintiff’s civil rights?” During their deliberations,
the jurors sent the judge a question based on something one of the sheriff’s
deputies had said in his testimony. K.C.R.’s attorney had asked Deputy Rudd
whether McKinney was already in the house when Rudd arrived, and Rudd
answered that the other officers “were not in the house” but in “a screened-in room
that was in the front of the home.” The attorney didn’t ask any follow-up
questions about that, but the district court judge did.
In response to questions from the judge, Rudd explained that the screened-in
porch was in front of the house and that the deputies had to enter that porch to get
to the front door. The judge wondered: “If you’re a law enforcement officer, what
door do you knock on to gain entry into this residence?” Rudd responded that he
wasn’t sure what door the deputies had actually knocked on, but he “would have in
26
Case: 17-14525 Date Filed: 10/21/2019 Page: 27 of 48
that scenario probably knocked on the screen door.” The judge then attempted to
clarify what the sheriff’s department policy was for that kind of situation. In a
rather confusing exchange, Rudd answered that “we would probably knock on the
front door as well as the screened-in door at some point,” and that “there would be
an opportunity that you would have to knock on that front door [of the screened-in
porch] to gain the attention of the homeowners themselves.” Then he reiterated:
“Whether [the other deputies] knocked on that screen door or not, I don’t know.”
None of the lawyers asked any questions about the screened-in porch, and,
except for one very short exchange with another deputy during her testimony, the
issue didn’t come up again until the second day of jury deliberations. It was at that
point the jury sent the judge a note asking: “By law, is the screened-in front porch
considered a part of the house?” The parties debated how the judge should answer
that question. The district court, over K.C.R.’s objection, answered it this way:
“For purposes of this case, no.” K.C.R. moved for a mistrial, which the district
court denied. The jury then rendered a verdict for McKinney, finding that he had
consent to enter K.C.R.’s home. The court denied K.C.R.’s motion for judgment
as a matter of law and her motion for a new trial.
27
Case: 17-14525 Date Filed: 10/21/2019 Page: 28 of 48
B. Issues Related To Consent
K.C.R. contends that the district court should have granted her a new trial or
judgment as a matter of law because there was insufficient evidence for the jury to
find that McKinney had consent to enter her home.
1. Motion for New Trial
Rule 59 of the Federal Rules of Civil Procedure allows a district court to
order a new trial based on insufficient evidence, but “only if the verdict is against
the clear weight of the evidence or will result in a miscarriage of justice.”
Chmielewski v. City of St. Pete Beach, 890 F.3d 942, 948
(11th Cir. 2018) (quotation marks omitted). “Because it is critical that a judge does not merely substitute his judgment for that of the jury, new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great — not merely the greater — weight of the evidence.” Lipphardt v. Durango Steakhouse of Brandon, Inc.,267 F.3d 1183, 1186
(11th Cir. 2001) (quotation marks omitted). We review the denial of a motion for a new trial only for an abuse of discretion, and “[d]eference is particularly appropriate where,” as here, “a new trial is denied and the jury’s verdict is left undisturbed.” Walter Int’l Prods., Inc. v. Salinas,650 F.3d 1402, 1407
(11th Cir. 2011) (quotation marks omitted).
The Fourth Amendment provides that “[t]he right of the people to be secure
in their . . . houses . . . against unreasonable searches and seizures, shall not be
28
Case: 17-14525 Date Filed: 10/21/2019 Page: 29 of 48
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.” U.S. Const. Amend. IV. Because “the physical entry of
the home is the chief evil against which the wording of the Fourth Amendment is
directed,” it is “a basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively unreasonable.” Payton
v. New York, 445 U.S. 573
, 585–86 (1980) (quotation marks omitted). That also means that law enforcement officers are prohibited “from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.”Id. at 576
. But if a warrantless search is authorized by voluntary consent, the search is “wholly valid.” Schneckloth v. Bustamonte,412 U.S. 218, 222
(1973).
Because McKinney did not have a warrant to enter K.C.R.’s home, the sole
question for the jury was whether he had consent to enter the house. Whether
“consent to a search was in fact ‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact to be determined from the totality
of all the circumstances.” Id. at 227
. While we have explained that this determination is “not susceptible to neat talismanic definitions,” United States v. Blake,888 F.2d 795, 798
(11th Cir. 1989), we have identified some factors that are relevant for the factfinder to consider, see United States v. Chemaly,741 F.2d 29
Case: 17-14525 Date Filed: 10/21/2019 Page: 30 of 48 1346, 1352 (11th Cir. 1984). Those factors include: (1) the voluntariness of the person’s custodial status, (2) “the presence of coercive police procedure,” (3) the extent of the person’s cooperation with law enforcement, (4) whether the person knew that he could refuse consent, and (5) the person’s “education and intelligence.”Id.
(quotation marks omitted); see also Schneckloth,412 U.S. at 249
(explaining that “while the subject’s knowledge of a right to refuse is a factor to be
taken into account,” it is not a “prerequisite to establishing a voluntary consent”).
K.C.R.’s argument hinges on the second factor: coercive procedures,
conduct, or words. “Where there is coercion there cannot be consent.” Bumper v.
North Carolina, 391 U.S. 543, 550
(1968); see Florida v. Bostick,501 U.S. 429, 438
(1991) (“‘Consent’ that is the product of official intimidation or harassment is
not consent at all.”). K.C.R. argues that she is due a new trial because McKinney
failed to meet his burden of showing that he had voluntary consent to enter the
house, and that he failed to do so because the evidence showed that K.C.R.’s father
was coerced into letting the sheriff’s deputies into his home. Before exploring that
fact-bound question, we address who has the burden of proving what.
a. The Parties’ Burdens at Trial
Often when we are tasked with reviewing a determination of consent, it is
because a defendant has challenged the validity of her conviction or is seeking to
suppress certain evidence based on an unlawful search. See, e.g., Blake, 888 F.2d 30
Case: 17-14525 Date Filed: 10/21/2019 Page: 31 of 48 at 797–98 (considering whether evidence should be suppressed on the ground that a search exceeded the scope of the defendants’ consent); United States v. Edmondson,791 F.2d 1512, 1515
(11th Cir. 1986) (finding that the defendant’s warrantless arrest in his home was illegal because his “consent” was based on a show of official authority by police officers). We have explained that because “[a] warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest is presumed to be unreasonable,” Edmondson,791 F.2d at 1514
, the burden is on the government to rebut that presumption and prove that the consent was voluntary, Chemaly,741 F.2d at 1352
; see also United States v. Matlock,415 U.S. 164, 177
(1974) (stating that in the case before it the government “sustained its burden of proving by the preponderance of the evidence that [a third-party’s] voluntary consent to search . . . was legally sufficient” to overcome the defendant’s motion to suppress); Coolidge v. New Hampshire,403 U.S. 443, 455
(1971)
(“[T]he burden is on those seeking the exemption to show the need for it.”). That’s
all true in criminal cases.
It’s not in civil cases. “[I]n a § 1983 action, the plaintiff bears the burden of
persuasion on every element.” Cuesta v. Sch. Bd. of Miami-Dade Cty., 285 F.3d 962, 970
(11th Cir. 2002). That burden is on the plaintiff even where the government would be bear it in criminal case. Seeid.
(stating that it was the
plaintiff’s “burden to show that the County lacked reasonable suspicion to search
31
Case: 17-14525 Date Filed: 10/21/2019 Page: 32 of 48
her” and holding that her claims failed as a matter of law because she “failed to
produce any evidence indicating that the [jail] personnel lacked reasonable
suspicion that she was concealing weapons or contraband”); Rankin, 133 F.3d at 1436
(“[P]laintiffs had the burden of demonstrating the absence of probable cause in order to succeed in their § 1983 claim.”); Evans v. Hightower,117 F.3d 1318, 1320
(11th Cir. 1997) (“In order to establish a Fourth Amendment violation, [the plaintiff] must demonstrate that a seizure occurred and that it was unreasonable.”). “There is no question, therefore, that [K.C.R.] ultimately b[ore] the burden of persuasion in this case.” Am. Fed’n of State, Cty. & Mun. Emps. Council 79 v. Scott,717 F.3d 851, 880
(11th Cir. 2013).
Once a plaintiff shows that an arrest occurred in her home and that it was
conducted without a warrant, it is the burden of production that shifts to the
government to present evidence justifying the arrest. See Fed. R. Evid. 301 (“The
party against whom a presumption is directed has the burden of producing
evidence to rebut the presumption.”).
Thus, for example, when a plaintiff asserts that the police
conducted an unconstitutional warrantless search, and the government
claims that its search was legal under an exception to the warrant
requirement, . . . the plaintiff meets its initial burden by demonstrating
the absence of a search warrant. At that point, it is the government that
bears the burden of coming forward with evidence that an exception to
the warrant requirement applied.
Am. Fed’n, 717 F.3d at 881–82.
32
Case: 17-14525 Date Filed: 10/21/2019 Page: 33 of 48
That shift of the burden of production, however, “does not shift the burden
of persuasion, which remains on the party who had it originally.” Fed. R. Evid.
301. So here, once K.C.R. showed that there was a warrantless arrest that was
presumptively unreasonable (which she did), and once McKinney came forward
with some evidence that the consent exception applied (which he did), it became
K.C.R’s burden once more “to show either that [her father] never consented or that
the consent was invalid because it was given under duress or coercion.” Valance
v. Wisel, 110 F.3d 1269, 1279
(7th Cir. 1997). In other words, it was her burden,
not McKinney’s, to persuade the jury on the one question before it.5
b. Evidence That McKinney Had Consent to Enter
K.C.R. contends that the jury’s verdict against her is against the great weight
of the evidence. Her argument goes like this. First: Because there was no
evidence that her father verbally consented to McKinney’s entry, the “sole basis”
for consent “rest[ed] on the premise that after being informed that McKinney was
there to arrest KCR, [her father] allegedly closed the door to go ‘put the dog up’
and then returned to the door, opened it[,] and stepped back.” Appellant’s Br. 22–
23 (footnotes omitted). Second: That premise for showing consent ignores what
5
Although Valance and American Federation involved warrantless searches instead of
warrantless arrests, the same burden-shifting framework applies here. Warrantless arrests in the
home, like warrantless searches, are presumptively unreasonable. See Edmondson, 791 F.2d at 1514
.
33
Case: 17-14525 Date Filed: 10/21/2019 Page: 34 of 48
else had happened that day. McKinney had called just hours before to ask
K.C.R.’s mother to bring her down to the station for questioning, but she had
refused to do that. K.C.R. says that when armed deputies wearing bullet-proof
vests appeared at her home thereafter, McKinney’s announcement that he was
“there to arrest [K.C.R.]” became a “command” to let the deputies into the house.
Id.
at 24 & n.15, 27–28. Therefore, she reasons: “[T]he only reasonable
interpretation of the testimony at trial was that [K.C.R.’s father] acquiesced to the
show of authority demanding [that he] produce his daughter for arrest.” Id. at 24.
Of course, “[t]he fact that a person answers a knock at the door doesn’t mean
he agrees to let the person who knocked enter.” McClish v. Nugent, 483 F.3d 1231, 1247
(11th Cir. 2007) (quotation marks omitted). Consent is not always to be inferred from the absence of an objection, although it is a factor to consider. See United States v. Gonzalez,71 F.3d 819
, 829–30 (11th Cir. 1996) (“[W]e believe, as a matter of law, it cannot be said that failure to object to a search equals consent to the search.”) (quotation marks and alterations omitted), abrogated on other grounds by Arizona v. Gant,556 U.S. 332
(2009). A factfinder must “analyz[e] all the circumstances” of an individual’s action to determine whether in fact there was consent and “whether in fact it was voluntary or coerced.” Schneckloth,412 U.S. at 233
; seeid. at 228
(“[T]he Fourth and Fourteenth
34
Case: 17-14525 Date Filed: 10/21/2019 Page: 35 of 48
Amendments require that a consent not be coerced, by explicit or implicated
means, by implied threat or covert force.”).
K.C.R. is right that one way consent is coerced is if it’s granted “only in
submission to a claim of lawful authority.” Id. at 233
. For example, “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search,” leaving no way to consent to it. Bumper,391 U.S. at 549
. A choice in which the answer is dictated by coercion is no choice at all. “For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” Schneckloth,412 U.S. at 228
; see Moore v. Pederson,806 F.3d 1036, 1046
(11th Cir. 2015) (holding there was no consent to enter house where officer told plaintiff he was going to arrest him and plaintiff, who was inside the doorway of his house, simply put his arms behind his back); United States v. Tovar-Rico,61 F.3d 1529
,
1535–36 (11th Cir. 1995) (holding there was no consent where five police officers
knocked on defendant’s door, announced their identity, and asked for permission to
enter — and then rushed into the home with guns drawn as soon as defendant
opened the door); Edmondson, 791 F.2d at 1514–15 (no consent to search home
where officers with guns drawn knocked on door, announced “FBI. Open the
door,” and defendant opened the door and put his hands on his head).
35
Case: 17-14525 Date Filed: 10/21/2019 Page: 36 of 48
And courts must not “misinterpret acquiescence to an officer’s demands as
consent.” United States v. Berry, 670 F.2d 583, 596
(5th Cir. Unit B 1982) (en banc). We have “noted our hesitancy to find implied consent (i.e., consent by silence) in the Fourth Amendment context.” Gonzalez,71 F.3d at 823, 830
(no consent where marshal followed defendant’s mother into her house when she told them she was going inside for a drink of water); see Bates v. Harvey,518 F.3d 1233, 1244
(11th Cir. 2008) (no consent based on housemate’s “failure to object to the officers’ search”); Bashir v. Rockdale County,445 F.3d 1323
, 1328–29 (11th
Cir. 2006) (no consent where officer followed plaintiff inside his house uninvited).
This case is not like those. The jury heard evidence that the deputies made
no show of authority to coerce K.C.R.’s father into consenting to their entry. All
of the deputies testified that they did not have their guns drawn. All of them
testified that they didn’t use or threaten to use any kind of force. And there is no
evidence that any of them claimed to have a warrant. That distinguishes the
present case from those in which we have held that the law enforcement officers’
claim of authority coerced the occupant into letting them in. Cf. Moore, 806 F.3d at 1046
; Tovar-Rico, 61 F.3d at 1535–36; Edmondson, 791 F.2d at 1514–15.
This case is more like United States v. Ramirez-Chilel, 289 F.3d 744
(11th Cir. 2002), and Holmes v. Kucynda,321 F.3d 1069
(11th Cir. 2003). In Ramirez-
Chilel, four police officers approached the defendant’s residence shortly before
36
Case: 17-14525 Date Filed: 10/21/2019 Page: 37 of 48
midnight, knocked on the door and identified themselves, and then asked for
permission to search the house for evidence of counterfeit documents. 289 F.3d at
746–47. According to the testimony of one of the officers, the defendant “yielded
the right-of-way” to allow them in. Id. at 747 (brackets omitted). The officers
found evidence of a counterfeiting operation, and the defendant moved to suppress
those fruits of the search based on lack of consent. Id. at 747–48. We affirmed the
district court’s denial of the motion to suppress, explaining that there is “a
distinction between the failure to object when officers follow someone into their
home and the act of ‘yielding the right-of-way’ to officers at the person’s front
door.” Id. at 752. We added: “Although the officers did not receive any explicit
verbal consent from [the defendant] to enter, the officers did receive some sort of
implied consent to enter from [his] body language . . . .” Id.
Similarly, the law enforcement officers in Holmes responded to a domestic
disturbance and knocked on the suspect’s apartment door. 321 F.3d at 1073–74. A
man answered the door and the officers asked if they could enter the apartment. Id.
at 1074. According to the officers’ testimony, “although [the man] did not respond
verbally, he opened the door and took a step backwards, indicating acquiescence.”
Id. We concluded that was sufficient evidence of consent to reject the argument of
the man’s girlfriend in her § 1983 suit that the warrantless entry had violated her
constitutional rights. Id. at 1078–79.
37
Case: 17-14525 Date Filed: 10/21/2019 Page: 38 of 48
Ramirez-Chilel and Holmes show that consent need not be verbal to be
valid. Non-verbal cues can signal consent. And here, the evidence at trial showed
that the combination of both verbal and non-verbal cues was sufficient for a jury to
find that K.C.R.’s father consented to the officers entering his home.
For instance, McKinney testified that when K.C.R.’s father answered the
door, McKinney told him he was there to arrest K.C.R. K.C.R’s father responded
by asking if McKinney “could hang on for a minute while he put the dog up,” and
then he returned a few minutes later and “opened the door wide and stepped back.”
It was only at that point that McKinney entered the house. Hamilton told the jury a
similar story, stating that when K.C.R.’s father “opened [the door] up and stood
back,” there was plenty of room for the deputies to go in. Given the totality of the
circumstances, a jury could reasonably find that K.C.R.’s father consented to the
deputies’ entry.
K.C.R. seeks to distinguish Ramirez-Chilel and Holmes by pointing out that
in those cases the officers had explicitly asked to enter the home, which made it
clear that the occupants were allowing the officers in when they opened the door
and stood back. Cf. Holmes, 321
F.3d at 1078–79; Ramirez-Chilel, 289 F.3d at
746–47. By contrast, she says, McKinney and the other deputies did not ask to
enter the home and simply “commanded” entry by announcing that they were there
to arrest K.C.R.
38
Case: 17-14525 Date Filed: 10/21/2019 Page: 39 of 48
We are not convinced that this distinction makes a difference. While K.C.R.
argues that McKinney’s announcement was a coercive show of authority, the jury
was free to conclude that it was instead an informative statement to explain to
K.C.R.’s father why the deputies were there. And it was also free to conclude
that, by opening the door and stepping back, K.C.R.’s father was giving the
deputies his consent to enter his home.
It is not our task to answer the question of consent in the first instance. That
task fell to the jury. Lipphart, 267 F.3d at 1186
(“[I]t is critical that a judge does not merely substitute his judgment for that of the jury . . . .”). Our only task is to determine whether the district court abused its discretion when it concluded that the jury’s verdict was not against the great weight of the evidence and did not result in a miscarriage of justice. See id.; Walter Int’l Prods.,650 F.3d at 1407
. It
did not.
2. Motion for Judgment as a Matter of Law
Turning now to the district court’s denial of K.C.R.’s Rule 50 motion for
judgment as a matter of law on the consent to enter issue, our review is de novo.
Skye v. Maersk Line, Ltd. Corp., 751 F.3d 1262, 1265
(11th Cir. 2014). But “[s]uch a motion is to be granted only if the evidence is so overwhelmingly in favor of the moving party that a reasonable jury could not arrive at a contrary verdict.” Chmielewski,890 F.3d at 948
(quotation marks omitted). For the same
39
Case: 17-14525 Date Filed: 10/21/2019 Page: 40 of 48
reasons we just explained, a reasonable jury could conclude that K.C.R.’s father
consented to McKinney’s entry into the house. See Fed. R. Civ. P. 50(a)(1);
Chmielewski, 890 F.3d at 948
. 6
C. The Screened-In Porch
That leaves K.C.R.’s final contention, which is that the district court made
two errors involving the screened-in porch that entitle her to a new trial or to
judgment as a matter of law. First, she argues that the jury’s verdict went against
the great weight of the evidence because there was insufficient evidence for the
jury to conclude that McKinney had permission to enter the screened-in porch,
regardless of whether he later had permission to enter the house proper. And
second, she argues that the court prejudiced her right to a fair trial by answering
the jury’s question about that porch (“By law, is the screened-in front porch
considered part of the house?”) with what she describes as a factual determination
(“For purposes of this case, no.”).
6
K.C.R. also challenges the grant of summary judgment against her on her official
capacity claim against Sheriff Judd alleging that his office had a policy sanctioning warrantless
arrests in homes. “If a person has suffered no constitutional injury at the hands of the individual
police officer, the fact that the departmental regulations might have authorized [a constitutionally
suspect act] is quite beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986).
Because K.C.R.’s claim against McKinney fails, her policy claim against the sheriff in his
official capacity necessarily fails.
40
Case: 17-14525 Date Filed: 10/21/2019 Page: 41 of 48
We review only for an abuse of discretion the denial of K.C.R.’s motions for
a new trial and a mistrial. See United States v. Osmakac, 868 F.3d 937, 957
(11th
Cir. 2017).
1. Motion for New Trial Based on Insufficient Evidence
According to K.C.R., McKinney violated her constitutional rights by
opening the door to the screened-in porch and walking through it to knock on the
front door of the house. The way she sees it, that porch is considered curtilage,
which means that McKinney needed a warrant or an exception to the warrant
requirement to enter it. And, she argues, the district court should have granted her
a new trial because “there was not even a scintilla of evidence which rebutted the
presumption that McKinney’s conduct violated the Fourth Amendment.”
There’s a simple reason K.C.R. can’t find a “scintilla of evidence” in the
record about whether the screened-in porch constituted part of the house and
whether McKinney could walk through it. She didn’t raise the issue. It’s not in
her complaint, it’s not in any of her pre-trial motions, and it’s not in her proposed
jury instructions.7 And as the district court found in denying her motion for a new
7
There is no mention of the “screened-in” porch or of the word “curtilage” in the
amended complaint or in any of the pre-trial motions. In her response to McKinney’s motion for
summary judgment, K.C.R. did not mention that McKinney and the other officers had to go
through the screened-in porch to get to the front door. Instead, she started her story about the
warrantless entry with the deputies already at the front door: “The deputies knocked hard on the
door to KCR’s home at nighttime.” Her description of the case in the parties’ Joint Pretrial
Statement also left out any mention of the screened-in porch.
41
Case: 17-14525 Date Filed: 10/21/2019 Page: 42 of 48
trial, K.C.R. didn’t raise the issue in any way at any point anywhere in the case
before the jury returned its verdict.
The first mention of the screened-in porch was during Lieutenant Rudd’s
testimony. K.C.R. asked Rudd whether McKinney was already in the house when
he arrived on the scene, and Rudd answered that the other deputies “were not in the
house,” but instead were in “a screened-in room that was in the front of the home.”
K.C.R. continued her questioning without asking any more questions about the
screened-in porch. After K.C.R. was done, the court asked Rudd some questions,
including whether the deputies knocked or should have knocked on the screen door
before they entered the porch and proceeded to the main door of the house. Rudd
responded that he “believe[d] that there would be an opportunity that you would
have to knock on that front door [of the screened-in porch] to gain the attention of
the homeowners,” but he wasn’t sure whether the other deputies had done that.
The next time the issue surfaced was during the testimony of Hamilton.
During her cross-examination of Hamilton, K.C.R. asked whether Hamilton had
opened the screen door. Hamilton said that McKinney had opened it. K.C.R. then
asked whether McKinney had authorization to go “into their porch, screened porch
area.” McKinney objected to the question on relevance grounds, the district court
sustained the objection without any argument from K.C.R., and K.C.R. moved on
to a different line of questioning.
42
Case: 17-14525 Date Filed: 10/21/2019 Page: 43 of 48
The issue did not come up again until the jury sent its note asking whether
“[b]y law” the screened-in porch was considered part of the house. (More about
that later.) But even after the jury asked that, it was not until K.C.R.’s post-verdict
motions for a new trial and judgment as a matter of law that she argued the
screened-in porch was relevant to the case. Of course, that was too late for her
Rule 50 motion. Federal Rule of Civil Procedure 50(b) talks of “renewing” an
earlier Rule 50(a) motion for judgment as a matter of law, meaning that “a district
court can grant a Rule 50(b) motion only on grounds advanced in the pre-verdict
Rule 50(a) motion.” McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1260
(11th Cir. 2016) (quotation marks and alterations omitted). Because
K.C.R. did not make her curtilage argument in her pre-verdict motion, she could
not make it in her post-verdict motion.
K.C.R. does not take issue with that. Instead she points out that her motion
for a new trial, unlike her motion for judgment as a matter of law, did not require a
pre-verdict counterpart. True enough. See Urti v. Transp. Commercial Corp., 479 F.2d 766, 769
(5th Cir. 1973) (“We have previously held that motions [for judgment as a matter of law] are not prerequisites to a motion for a new trial.”). But that does not mean a plaintiff can proceed on one theory of the case throughout the trial and then be entitled to a do-over under a different theory. See Del Rio Distrib. Inc. v. Adolph Coors Co.,589 F.2d 176
, 178–79 (5th Cir. 1979). As the
43
Case: 17-14525 Date Filed: 10/21/2019 Page: 44 of 48
party alleging that her constitutional rights were violated, it was K.C.R.’s burden to
“demonstrate that a seizure occurred and that it was unreasonable.” Evans, 117 F.3d at 1320
(emphasis added).
K.C.R. objects to that characterization, relying on Federal Rule of Civil
Procedure 15(b)(2) for cover. It provides: “When an issue not raised by the
pleadings is tried by the parties’ express or implied consent, it must be treated in
all respects as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2). K.C.R. says
that’s what happened here because the deputies’ testimony about the screened-in
porch “must have been sufficient to raise the issue by implication since the jury
itself took note of the evidence enough to ask the District Court questions about its
relevance during deliberations.”
But here again, a look at the record shows that K.C.R. rejected whatever
lifeline the jury’s question might have thrown her way (and we don’t think it was a
stout line to begin with). Upon receiving the jury’s note, the court told the
attorneys that it was going to inform the jury that the screened-in porch was not
part of the house. K.C.R.’s attorney objected — but only because he did not
consider the issue to be relevant to the claim. Here’s the exchange:
THE COURT: All right. There’s been no allegation in the case or
argument in the course of the trial that opening of the screen door was
in any way a violation of the plaintiff’s rights, so I’m going to tell the
jury “no” as relates to the question about is the screen door part of the
house, because even if it is, there’s been no argument, and there is
specific case law to establish whether a porch is or isn’t subject to
44
Case: 17-14525 Date Filed: 10/21/2019 Page: 45 of 48
Fourth Amendment protection, but it requires some evidence as to the
content of the porch, the use of the porch, the appearance of the porch,
none of which has been introduced into evidence in this case. So if it
was your intention to raise something about the porch, then it has failed
for lack of evidence.
[K.C.R.’s attorney]: Let me -- for the record, Your Honor, we asked
them questions, it was a screened-in porch, and they went through a
screen door, and, you know, for the record, we didn’t allege in the
Complaint the front door, we alleged they didn’t have consent to enter
the premises or the house, period, whether it was screen door, back door
or side door. . . .
I’d also request that [the jurors] be brought in and asked if they did any
research last night, if anybody got on the computer, because you gave
them explicit jury instructions on what the single issue of this case is,
and we’re getting questions unrelated to what the jury instructions
are. . . .
I just think it’s irrelevant to their determination here ultimately, but -- I
think you’re telling them something that, you know, hasn’t been briefed
and, you know, I’m pretty sure a screened porch with a door on it is --
in an enclosed area is part of the house.
THE COURT: And you are pretty sure to be wrong about that unless
there’s certain clear indicia that this is part of the living space of the
house, and there’s been no evidence of it, so for purposes --
[K.C.R.’s attorney]: I understand that, Your Honor, so you can’t say
yes or no, it’s just irrelevant to the issue of this case. . . . [T]he issue
relating to consent to enter and go into the home to arrest is unrelated
to the screen door, unrelated to the front door really, either they could
come in or they couldn’t come in, and they did, and so it’s just not
something for them to consider, not that it’s no.
THE COURT: So what do you want me to say?
[K.C.R.’s attorney]: That it’s not relevant to the issues in this case and
follow the jury instructions.
45
Case: 17-14525 Date Filed: 10/21/2019 Page: 46 of 48
(Emphasis added.)
In short, through her attorney K.C.R. told the court that the question of
whether the screened-in porch was part of the house was “irrelevant” — that the
answer to the question had no bearing on the jury’s determination of whether
McKinney had consent to enter the house. K.C.R. cannot now argue that it was
reversible error for the court to take her attorney at his word. See United States v.
Carpenter, 803 F.3d 1224, 1236
(11th Cir. 2015) (“It is by now a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.”) (quotation marks omitted); United States v. Dennis,786 F.2d 1029, 1042
(11th Cir. 1986) (“To preserve an issue at trial for
later consideration by an appellate court, one must raise an objection that is
sufficient to apprise the trial court and the opposing party of the particular grounds
upon which appellate relief will later be sought. A general objection or an
objection on other grounds will not suffice.”). The district court did not abuse its
discretion by denying K.C.R.’s motion for a new trial based on her belated
curtilage argument, which was not presented to the jury.
2. Motion for a New Trial Based on the District Court’s
Response to the Jury’s Question
K.C.R. also argues that she is entitled to a new trial because of the district
court’s response to the jury’s question about the screened-in porch. We will
reverse a district court’s supplemental instructions only “when we are left with a
46
Case: 17-14525 Date Filed: 10/21/2019 Page: 47 of 48
substantial and ineradicable doubt as to whether the jury was properly guided in its
deliberations.” United States v. Grigsby, 111 F.3d 806, 814
(11th Cir. 1997) (quotation marks omitted); see United States v. Lopez,590 F.3d 1238
, 1247–48
(11th Cir. 2009) (“While the district court has considerable discretion regarding the
extent and character of supplemental jury instructions, it does not have discretion
to misstate the law or confuse the jury.”).
When the jury asked whether, “[b]y law[,] is the screened-in front porch
considered a part of the house?” the judge answered: “For purposes of this case,
no.” K.C.R. says that answer was not only legally wrong but also instructed the
jury how to answer the fact question of whether McKinney had consent to enter the
house. Appellant’s Br. 41. According to her, the court’s response “indicated to the
Jury that McKinney’s actions in approaching the door were lawful, and suggested
that any consent he thereafter obtained would likewise be lawful.” Id. at 43.
We disagree. K.C.R.’s attorney objected to the exact wording of the answer.
But the alternative answer he proposed conveyed the same sentiment as the one the
court gave. When the court asked, “So what do you want me to say” to the jury
about whether the porch was part of the house, the attorney stated: “That it’s not
relevant to the issues in this case and follow the jury instructions.” That is
essentially what the court told the jury. And K.C.R.’s attorney had made the porch
irrelevant, by leaving it out of the case and by insisting that it was irrelevant to the
47
Case: 17-14525 Date Filed: 10/21/2019 Page: 48 of 48
only issue before the jury. K.C.R. cannot now argue that the porch issue was not
only relevant but was so much so that we should reverse the district court’s
judgment.
AFFIRMED.
48