Aaron Coleman v. John Riccardo ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14091
____________________
AARON COLEMAN,
Plaintiff-Appellee,
versus
HILLSBOROUGH COUNTY,
official capacity, et al.,
Defendants,
JOHN RICCARDO,
in their individual capacities,
JAMES VALENTINO,
in their individual capacities,
WILLIAM FAIR,
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2 Opinion of the Court 20-14091
in their individual capacities,
STEPHEN ALEXANDER GADY,
in their individual capacities,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-01678-MSS-AAS
____________________
Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
An anonymous complaint to the Hillsborough County Ani-
mal Services Department resulted in a search warrant for Aaron
Coleman’s house. That search led to Coleman’s arrest and trial on
charges of aggravated animal cruelty, battery on an officer, and re-
sisting arrest. After a jury acquitted Coleman, he sued the officers
who arrested him. This appeal presents the narrow question of
whether those officers are immune from suit under Florida law.
The answer is that they are.
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I. BACKGROUND AND PROCEDURAL HISTORY
This case began in February 2014 when Coleman noticed
that his dog’s front paw was missing a nail. 1 Jennifer Williams lived
with Coleman, and she took the dog, who was named JJ, to a vet-
erinarian. The veterinarian initially suspected that JJ had an infec-
tion but eventually diagnosed him with bone cancer. After con-
sulting several veterinarians, Coleman put JJ on “a palliative care
program” and planned to “keep JJ comfortable until his quality of
life had diminished to the point where euthanasia was appropri-
ate.”
While JJ was on that palliative care program, the Hills-
borough County Animal Services Department received an anony-
mous complaint that JJ was not receiving medical treatment. The
complaint included photos of JJ’s injured paw and alleged that his
injury had been caused by a gunshot. Animal Services sent out one
of its investigators, Paris Dunkley, to follow up.
When investigator Dunkley arrived at Coleman’s home on
July 8, 2014, she spoke with Williams. Dunkley described the ani-
mal cruelty complaint to Williams who explained that the open
sore was “a cancerous tumor that ruptured,” not a gunshot wound.
1 The “facts” at the summary judgment stage are what a reasonable jury could
find from the evidence viewed in the light most favorable to Coleman, who
was the non-moving party opposing summary judgment; they “are not neces-
sarily the true, historical facts.” See Cantu v. City of Dothan, 974 F.3d 1217,
1222 (11th Cir. 2020).
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Dunkley issued Williams an “Official Notice” that gave her a week
to take JJ back to a veterinarian for further care.
After Dunkley issued that notice and returned to her work
van, Coleman came home. He and Dunkley spoke while she was
sitting inside her van. It was raining, and when Dunkley ended the
conversation, she rolled up her window, trapping the tip of Cole-
man’s umbrella. Coleman tapped on the driver’s side window of
the van for several minutes, prompting Dunkley to call the police.
Two officers arrived in response to her call. After she dis-
cussed the situation with those officers, Dunkley shortened the
amount of time she had given Coleman and Williams to take JJ to
the veterinarian from a week to one day. She and the officers left.
Two days later, on July 10, 2014, Dunkley obtained a search
warrant for Coleman’s residence, saying in her supporting affidavit
that she believed “animals” were being kept there “without veteri-
narian care” and “in a cruel and inhumane manner.” No one was
home later that day when approximately 15 Tampa Police Depart-
ment officers accompanied Dunkley to execute the search warrant.
Dunkley called Williams and explained that she was there with po-
lice officers to search the house, and Williams came home to let the
officers in. Coleman’s daughter called him and told him what was
happening.
Coleman’s relationship with the Tampa police was already
strained when the officers served the search warrant. One Tampa
police officer described Coleman as an activist, and Coleman
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testified that he plans to become a lawyer so that he can defend
those “who have been entrapped” in what he calls “the criminal
business system.” He believes that the officers concocted the
search warrant as part of a plan to kill or capture him.
About six months before they executed the search warrant
at Coleman’s house on July 10, 2014, Tampa police had arrested his
son. James Valentino, one of the defendant officers in this case,
suffered a broken ankle while chasing Coleman’s son on that occa-
sion. The charges against Coleman’s son were later dismissed
In 2014, the year that they had arrested the younger Cole-
man, and the year they executed the search warrant at Coleman’s
house in July, Tampa police officers had showed up at his house on
16 days between February and May. Most of those visits were
coded as either “Juvenile Home Detention Check,” “Juvenile Cur-
few Check,” or “Juvenile Curfew Law (Under 16yo).”
There is no evidence that any of the officers involved in this
case were among the ones who made any of those previous house
calls in 2014. Coleman testified that he had not had “any type of
contact or encounter” with any of the defendant officers until they
came to search his house on July 10, 2014. He had seen Valentino’s
name on his son’s arrest paperwork before then but had never met
or spoken to the officer. Valentino testified that he did not know
Coleman before the day of the search and related events, and there
is no evidence that Valentino knew about Coleman and the police
chase that resulted in the officer’s broken ankle.
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Coleman arrived home while the search of his home was in
progress on July 10. Valentino was there assisting with the search.
He had never before served a search warrant for animal cruelty,
and his shift was almost over when he decided to help the other
officers conduct the search. He testified that his squad often serves
search warrants and that he has assisted with search warrants “in
the double digits” of times during his three years with the squad.
As he approached his home, Coleman stopped at the gated
fence surrounding his house and spoke to Valentino, who told him
that the officers were involved in “an active investigation.” Cole-
man, who is hearing impaired and was not wearing his hearing aid,
told Valentino that he did not “hear very well” and asked him: “Did
you say this was an active investigation?” Instead of answering,
Valentino asked Coleman his name and whether he lived at the
house, and Coleman confirmed that he did.
Valentino also asked Coleman if he was “refusing to leave
the yard,” and when Coleman said that he was not, Valentino asked
him to step outside of the gate. Coleman agreed, but before he
could comply, Officers Stephen Gady, John Riccardo, and Valen-
tino placed him under arrest.
During the arrest, Valentino grabbed Coleman’s left arm
and Gady used the “hammerlock escort position” to secure Cole-
man’s right arm. The officers handcuffed Coleman and escorted
him to a police cruiser where Riccardo “pushed and pressed [Cole-
man] against [the] police car.” Valentino and Gady flanked Cole-
man, and Gady asked Coleman if he “had anything that might cut,
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20-14091 Opinion of the Court 7
poke, [or] stick him.” Coleman answered that he didn’t know, but
added that he had just returned from community college where he
had used pencils to take a math test.
Gady kicked one of Coleman’s feet “at least two times” to
spread Coleman’s legs, and Valentino placed his foot against Cole-
man’s other foot. While the two officers secured Coleman’s feet
“like you would chock a wheel,” Gady searched Coleman. The
officers then put him in the back of their car, where he remained
for “nearly two hours.”
While Coleman was in the police car, Officer William Fair
arrived at the scene to transport Coleman to the police station. He
took over supervision of Coleman and removed him from the first
police car, searched him again, and put him in a different police car.
Even after Coleman was handcuffed in the back of the second po-
lice car, Fair searched him “multiple times.” Fair testified that he
will search arrestees more than once if they are “moving around or
[if] it look[s] like they might [be] concealing something,” and that
Coleman was “moving around a lot” in the back of the patrol car.
The parties stipulated that Fair caused Coleman “temporary
testicular pain” while searching him. Fair testified that he per-
formed “a thorough search” of Coleman. When conducting “a
thorough search,” Fair puts his “hand up in the genital area” be-
cause people sometimes hide “handcuff keys, weapons, other con-
traband, [and] drugs” in their underwear. Fair testified that he
doesn’t “recall ever” squeezing Coleman’s or anyone’s genitals dur-
ing a search, and that his search of Coleman “was no different than
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8 Opinion of the Court 20-14091
any other search that [he’d] done, which does not include grabbing
the genitals.”
As we’ve mentioned, Coleman was charged with aggra-
vated cruelty to animals, battery on a law enforcement officer, and
resisting an officer without violence. 2 A jury acquitted him of all
charges.
After being acquitted, Coleman filed the lawsuit that led to
this appeal, naming as defendants Hillsborough County, the City
of Tampa, Dunkley, Fair, Gady, Riccardo, and Valentino. His com-
plaint alleged federal claims against Dunkley, the County, and the
City, but those claims are not at issue in this interlocutory appeal.3
The claims that are at issue are the state law tort claims that Cole-
man asserted against Fair, Gady, Riccardo, and Valentino in their
individual capacities.
In the district court the officers asserted entitlement to Flor-
ida sovereign immunity on Coleman’s state law claims: false arrest
and false imprisonment against Gady, Riccardo, and Valentino; and
2 Coleman was also charged with possession of a “reptile of concern” based on
Florida Fish and Wildlife’s seizure of an African python from his house, but
the State later dismissed that charge.
3 Coleman asserted several state tort claims against Dunkley. The district
court granted Dunkley summary judgment in part but denied her summary
judgment on Coleman’s federal malicious prosecution claim and state law
false imprisonment claim. Dunkley filed an appeal but later filed a motion to
voluntarily dismiss it, and because that motion was granted, she is no longer
a party to this appeal.
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battery against all four officers. The court denied the officers sum-
mary judgment on those claims, determining that there was a ques-
tion involving disputed facts about whether they had probable
cause to arrest Coleman, and ruling that if they didn’t have proba-
ble cause they were not entitled to the protection of Florida’s sov-
ereign immunity statute, Florida Statute § 768.28(9)(a). The offic-
ers contend that the district court erred in that ruling.
II. DISCUSSION
Coleman has moved to dismiss this appeal for lack of appel-
late jurisdiction because the district court’s order denying sum-
mary judgment on sovereign immunity grounds is not a final or-
der. “Generally, an order denying a motion for summary judg-
ment is not an appealable final order.” Schmelz v. Monroe Cnty.,
954 F.2d 1540, 1542 (11th Cir. 1992); see also 28 U.S.C. § 1291(providing that the federal courts of appeals “have jurisdiction of
appeals from all final decisions of the district courts of the United
States”) (emphasis added). But there is “a small class of interlocu-
tory orders, referred to as ‘collateral orders,’ . . . which are imme-
diately appealable without regard to the posture of the underlying
case.” Schmelz, 954 F.2d at 1542.
Under the collateral order doctrine, an order denying sum-
mary judgement based on state sovereign immunity is immedi-
ately appealable “if state law defines the immunity at issue to pro-
vide immunity from suit rather than just a defense to liability.” Par-
ker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1367 (11th Cir. 2016).
“In Florida, sovereign immunity is both an immunity from liability
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and an immunity from suit.” Fla. Hwy. Patrol v. Jackson, 288 So.
3d 1179, 1185 (Fla. 2020). As a result, an order denying state sover-
eign immunity under Fla. Stat. § 768.28(9)(a) is immediately ap-
pealable. See Parker, 835 F.3d at 1367; see also Keck v. Eminisor,
104 So. 3d 359, 366 (Fla. 2012) (explaining that under § 768.28(9)(a)
the denial of summary judgment based on individual immunity
must be immediately appealable because if it were not, “that statu-
tory protection [would] become[] essentially meaningless for the
individual defendant”). Because the district court’s order denied
the officers immunity under § 768.28(9)(a), it is immediately ap-
pealable.
Having jurisdiction to decide the officers’ appeal, we turn to
the remaining issue: whether the district court erred when it denied
officers Gady, Riccardo, Valentino, and Fair summary judgment on
Coleman’s state law claims against them. The officers contend that
they are entitled to summary judgment because, as a matter of law,
they are immune from suit under Fla. Stat. § 768.28(9)(a). We re-
view de novo state sovereign immunity issues, “viewing all of the
facts in the record in the light most favorable to the non-movant.”
Green v. Graham, 906 F.3d 955, 959 (11th Cir. 2018) (quotation
marks omitted). Coleman’s the non-movant.
Florida law provides that:
An officer, employee, or agent of the state or of any
of its subdivisions may not 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,
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event, or omission of action in the scope of her or his
employment or function, unless such officer, em-
ployee, 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).
It is undisputed that the officers were acting within the scope
of their employment when they arrested Coleman. The sole ques-
tion is “whether a reasonable trier of fact could possibly conclude”
that the officers’ conduct “fall[s] within the exceptions” to immun-
ity defined in § 768.28(9)(a). Furtado v. Yun Chung Law, 51 So. 3d
1269, 1277 (Fla. 4th DCA 2011). Those exceptions to immunity ap-
ply when an officer acted: (1) “in bad faith,” (2) “with malicious
purpose,” or (3) “in a manner exhibiting wanton and willful disre-
gard of human rights [or] safety.” Id. at 1276–77; Fla. Stat.
§ 768.28(9)(a). “Florida Statutes do not define [those] phrases” as
they are used in § 768.28(9)(a). Peterson v. Pollack, 290 So. 3d 102,
109 (Fla. 4th DCA 2020). So “we must examine how courts have
interpreted those phrases under Florida law” before we can decide
whether the exceptions apply. Id.The first two exceptions, “in bad faith” and “with malicious
purpose,” are “synonymous with each other under Florida law.”
See id. at 111. Another way to put it is that Florida courts have
equated bad faith with “the actual malice standard.” Id. at 109
(quotation marks omitted); see also Parker v. Fla. Bd. of Regents ex
rel. Fla. State Univ., 724 So. 2d 163, 167 (Fla. 1st DCA 1998)
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(“Although the statute does not define bad faith, under section
768.28(9)(a), bad faith has been equated with the actual malice
standard.”) (alteration adopted and quotation marks omitted). The
“actual malice” and “malicious purpose” exceptions apply when
the conduct was committed with “ill will, hatred, spite, or an evil
intent.” See Peterson, 290 So. 3d at 109 (alteration adopted); Reed
v. State, 837 So. 2d 366, 369 (Fla. 2002) (defining actual malice as
“ill will, hatred, spite, an evil intent”) (quotation marks omitted);
Tomlinson v. State, 322 So. 3d 212, 214 (Fla. 3d DCA 2021)
(“[A]ctual malice means ill will, hatred, spite, an evil intent.”) (quo-
tation marks omitted). We will refer to these synonymous phrases
as the actual malice exception.
The third category of conduct that will strip officers of their
state sovereign immunity is “wanton and willful disregard of hu-
man rights or safety,” which is “conduct that is worse than gross
negligence.” Peterson, 290 So. 3d at 109 (alteration adopted).
Wanton means “with a conscious and intentional indifference to
consequences and with the knowledge that damage is likely to be
done to persons or property.” Id. at 110. Willful means “intention-
ally, knowingly and purposely.” Id. Together those terms describe
“conduct much more reprehensible and unacceptable than mere
intentional conduct.” Id. at 109. We will refer to this Florida sov-
ereign immunity carve-out as the wanton and willful disregard ex-
ception.
The district court in this case disposed of the officers’ Florida
sovereign immunity defense to Coleman’s claims in a footnote.
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Relying on language from Colonial Stores, Inc. v. Scarbrough, 355
So. 2d 1181, 1185 (Fla. 1977), the district court concluded that “[f]or
purposes of immunity under Section 768.28(9)(a), malice may be
inferred from the absence of probable cause.” It determined that
“factual disputes as to the existence of probable cause” established
a question of fact as to whether the officers acted with actual mal-
ice. That, the court concluded, “preclude[d] the entry of summary
judgment based on Section 768.28(9)(a).”
We believe that misunderstands the language the Florida
Supreme Court used in Colonial Stores, a decision that did not ad-
dress sovereign immunity. 355 So. 2d at 1183. Instead, that deci-
sion addressed malice as an element of a malicious prosecution
claim and held that “no presumption of probable cause arises from
the filing of an information with respect to the charge upon which
such action is based.” Id. at 1185. Colonial Stores does not support
the court’s denial of summary judgment to the officers in this case
because under Florida law the legal malice element in a malicious
prosecution claim, which that case involved, is not the same as the
actual malice exception to a sovereign immunity defense, which
this case involves. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.
2d 1352, 1357 (Fla. 1994) (“In an action for malicious prosecution it
is not necessary for a plaintiff to prove actual malice; legal malice is
sufficient and may be inferred from, among other things, a lack of
probable cause . . . .”).
Legal malice requires only “proof of an intentional act per-
formed without legal justification or excuse” and “does not require
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proof of evil intent or motive.” Reed, 837 So. 2d at 369. But actual
malice does require proof of “the subjective intent to do wrong.”
Peterson, 290 So. 3d at 109. The district court erred in this case
when it applied the legal malice standard — instead of the actual
malice standard — and determined that an arrest without probable
cause by itself establishes that the officers acted with malice for pur-
poses of § 768.28(9)(a). It doesn’t. See Colonial Stores, 355 So. 2d
at 1185 (“[M]alice is not legally synonymous with the absence of
probable cause.”). 4
Because it applied the wrong standard, the district court
didn’t do what is required, which is analyze if each officer’s actions
created a fact question about whether he was entitled to immunity
from each state law claim against him. See Fla. Stat. § 768.28(9)(a);
Prieto v. Malgor, 361 F.3d 1313, 1320 (11th Cir. 2004) (“Under Flor-
ida law, an officer may not be held personally liable . . . unless the
officer acted with bad faith or with malicious purpose.”).
We will go ahead and resolve the immunity issues now in-
stead of remanding the case for the district court to do so in the first
4 The district court is not alone in misunderstanding the holding of Colonial
Stores. See N.C. ex rel. Boston v. Alonso, No. 12-61646-CIV, 2013 WL
6564217, at *8–9 (S.D. Fla. Dec. 13, 2013) (noting that “malice may be inferred
from the absence of probable cause” for purposes of § 768.28(9)(a) immunity
from a state law false arrest claim) (quoting Colonial Stores, 355 So. 2d at
1185); Eubanks v. Freburger, No. 11-60714-CIV, 2012 WL 4936061, at *8 (S.D.
Fla. Oct. 17, 2012) (noting the same); Franco v. Caldwell, No. 10-60944-CIV,
2011 WL 2262481, at *6 (S.D. Fla. June 6, 2011) (noting the same).
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instance. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (explaining
that it is important to resolve issues of immunity from suit “at the
earliest possible stage in litigation”); Cottrell v. Caldwell, 85 F.3d
1480, 1487 (11th Cir. 1996) (addressing qualified immunity and ex-
plaining that where an immunity from suit is at issue, “it is imper-
ative that [defendants] receive the benefits of that defense prior to
trial”). Our review of any district court decision of the dispositive
issues would be de novo anyway.
A. False Arrest and False Imprisonment
As we mentioned before, Coleman asserted false arrest and
false imprisonment claims against Gady, Riccardo, and Valentino.
See supra at 9–10. We have held that “under Florida law false arrest
and false imprisonment are different labels for the same cause of
action.” Rankin v. Evans, 133 F.3d 1425, 1430 n.5 (11th Cir. 1998)
(quotation marks omitted). The immunity issues are the same for
both claims, and we will consider them together.
To survive summary judgment on his false arrest and false
imprisonment claims against the individual officers, Coleman must
present evidence that when they arrested him their conduct fell
within either the actual malice exception or the wanton and willful
disregard exception of § 768.28(9)(a).
Coleman argues that the officers acted with actual malice
when they arrested him because they lacked probable cause. But,
as we have already explained, the absence of probable cause alone
does not amount to actual malice. Alternatively, Coleman argues
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that the officers were motivated to arrest him without probable
cause by bad faith or malicious purpose arising from an “antagonis-
tic relationship between Coleman and Tampa police that spans two
decades.” In his deposition testimony, Coleman speculated that
the defendant officers had “some kind of plan to . . . kill [him] or
capture [him].” But he supports that speculation with little more
than speculation.
Coleman points to the repeated visits to his house by other
Tampa police officers. Between February 2014 and May 2014 some
Tampa police officers went to his house at least 16 times. But there
is no evidence that any of the four defendant officers in this case
were among the officers who were at Coleman’s house on any of
those occasions. Coleman admitted in his testimony that until the
day of his arrest he had not had “any type of contact or encounter”
with any of the defendant officers.
Evidence that some other officers from the Tampa police
department made repeated visits to Coleman’s house is not, as he
asserts, enough to create a genuine issue that the defendant officers
were part of “some kind of plan” to kill or capture him. Speculation
is no substitute for evidence. See Glasscox v. City of Argo, 903 F.3d
1207, 1213 (11th Cir. 2018) (“Conclusory allegations and specula-
tion are insufficient to create a genuine issue of material fact.”).
Coleman argues that defendants Valentino and Gady ar-
rested him in retaliation for an ankle injury that Valentino suffered
while chasing and trying to arrest Coleman’s son six months before
the two officers were involved in the arrest of Coleman in this case.
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Gady testified that when he arrested Coleman, he didn’t know that
the person Valentino had been chasing a half year earlier was Cole-
man’s son, and he didn’t find that out “until shortly before” his dep-
osition. Valentino testified that he did not know Coleman before
the day he arrested him in this case. That testimony of Gady and
Valentino was not contradicted by Coleman or anyone else.
Coleman adds that Valentino had never before served a
search warrant for animal cruelty and that his shift was almost over
when he decided to help the officers conducting the search. That
is further evidence, Coleman argues, that Valentino was seeking
“revenge relating to the ankle injury” he had suffered six months
before. That is not more evidence of actual malice or willful or
wanton disregard of Coleman’s rights, but more speculation. See
Glasscox, 903 F.3d at 1213. Valentino testified, without contradic-
tion, that during his three years with his squad, they often served
search warrants, and the number of times that he had assisted with
serving warrants was “in the double digits.” That was in addition
to his uncontradicted testimony that he did not know Coleman un-
til the day of the search.
On these facts, no reasonable jury could find that any of the
officers acted with actual malice or with wanton and willful disre-
gard in arresting Coleman, even if they lacked probable cause to
arrest him.
In Coleman’s brief, his counsel says that: “The record con-
tains additional evidence, this brief is just that, a brief.” Apparently,
he would like for us to dig through the record in an effort to turn
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up facts that might make his case for him. But that is his job, not
ours. Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1373 (11th
Cir. 1997) (“[W]e are not obligated to cull the record ourselves in
search of facts not included in the statements of fact” in a brief.);
Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1481 n.12 (11th
Cir.1997) (“[I]t is not our place as an appellate court to second guess
the litigants before us and grant them relief . . . based on facts they
did not relate.”); cf. Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d
1057, 1061 (11th Cir. 2011) (“With a typically heavy caseload and
always limited resources, a district court cannot be expected to do
a petitioner’s work for him.”).
Gady, Valentino, and Riccardo are entitled to summary
judgment under § 768.28(9)(a) on Coleman’s false arrest and false
imprisonment claims.
B. Battery
Based on their alleged conduct during his arrest, Coleman
asserted battery claims against those three defendants and also
against defendant Fair. Because Coleman has presented no evi-
dence that the officers acted with actual malice or wanton and will-
ful disregard, they are entitled to summary judgment on those
claims based on Florida sovereign immunity. See Fla. Stat.
§ 768.28(9)(a).
For the most part, the evidence that Coleman points to as
support for his battery claims is the same evidence that failed to
support his false arrest and false imprisonment claims. And it fails
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to support his battery claims for the same reasons. But Coleman
also points to some battery-specific evidence that he argues shows
that the officers acted with actual malice or willful and wanton dis-
regard to his safety.
Coleman testified that while the officers were arresting him,
Gady kicked his right foot and secured his right arm and Valentino
placed his foot against Coleman’s left foot and secured his left arm.
In his brief to this Court, Coleman asserts that, even though he was
being “compliant,” Riccardo threw him against the patrol car “hard
enough to cause bruising to his ribs and sternum.” The record does
not support that assertion. The parties stipulated that “Riccardo,
from behind, pushed and pressed [Coleman] against [the] police car
because he thought [Coleman] was being uncooperative with be-
ing searched incident to [the] arrest,” but they did not stipulate that
Coleman suffered any injuries to his ribs or sternum, and Coleman
did not testify or submit any evidence that he did either.
The parties also stipulated that Coleman “experienced tem-
porary testicular pain” when Fair searched him. In his complaint
and in his initial brief to this Court, Coleman asserts that Fair
caused that pain by “forcefully squeez[ing] Coleman’s genitals.”
Fair testified that he performed “a thorough search [of Coleman],
which was no different than any other search that [he’d] done,
which does not include grabbing the genitals.” Coleman did not
contradict that in his own testimony or with any other evidence.
All he offered on the subject were allegations in his complaint and
assertions in his brief. That is not enough to thwart summary
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20 Opinion of the Court 20-14091
judgment. See Greenberg v. Comm’r, 10 F.4th 1136, 1167 (11th
Cir. 2021) (“[S]tatements by counsel in their briefs are not evi-
dence.”); accord United States v. Green, 981 F.3d 945, 956 (11th Cir.
2020); Sec. & Exch. Comm’n v. Quiros, 966 F.3d 1195, 1201 (11th
Cir. 2020).
Even assuming for present purposes that the officers’ physi-
cal contact with Coleman during the course of his arrest was a bat-
tery, there is no genuine issue of material fact that the defendant
officers acted “in bad faith or with malicious purpose or in a man-
ner exhibiting wanton and willful disregard of human rights, safety,
or property.” Fla. Stat. § 768.28(9)(a). The conduct that Coleman
has alleged is not “conduct that is worse than gross negligence” or
“more reprehensible and unacceptable than mere intentional con-
duct,” and it does not establish that the officers acted “with a con-
scious and intentional indifference to consequences and with the
knowledge that damage [was] likely to be done to persons or prop-
erty.” Peterson, 290 So. 3d at 109–11.
To show that the officers acted with malicious purpose or
with willful and wanton disregard of rights or property, Florida law
requires more than the evidence in this case supports. Cf. id. at 110
(holding that “a reasonable trier of fact could find that the [defend-
ant] deputy’s failure to confront [a school] shooter, and failure to
take any other action” to protect “the students and teachers, while
choosing to remain outside in a protected location to ensure his
own safety, constituted” wanton and willful disregard of human
rights or safety); Thompson v. Douds, 852 So. 2d 299, 309 (Fla. 2d
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20-14091 Opinion of the Court 21
DCA 2003) (holding that a genuine issue of material fact existed
about whether officers arriving in response to a call for backup
were entitled to sovereign immunity defense when they had used
“knee blasts” on a suspect without knowing why the original offic-
ers were struggling with him and then used their body weight to
hold down the already handcuffed and bound suspect until he
“went limp”).
Under § 768.28(9)(a) the four defendant officers in this ap-
peal are entitled to summary judgment on Coleman’s state law
claims against them.
III. CONCLUSION
Coleman’s motion to dismiss the officers’ appeal for lack of
jurisdiction is DENIED.
The district court’s judgment is REVERSED, and this case is
REMANDED with instructions for the district court to enter sum-
mary judgment, based on sovereign immunity under Fla. Stat.
§ 768.28(9)(a), in favor of Officers Valentino, Gady, and Riccardo
on Coleman’s claims of false arrest, false imprisonment, and bat-
tery and in favor of Officer Fair on Coleman’s claim of battery.
REVERSED AND REMANDED with instructions.