The U.S. Court of Appeals for the Eleventh Circuit kept alive some constitutional violation claims against two Gwinnett County deputies stemming from a fracas involving the mother of a man named in an arrest warrant but agreed with the trial court that others were barred by immunity.
Among its findings, the appellate panel ruled that one of the deputies used excessive force when she used her Taser on the mother when she refused to end her 911 call and that the officers’ refusal to allow her to cover herself after ripping her shirt was “degrading and humiliating” and violated her “right to bodily privacy.”
The opinion did, however, say the court agreed with the deputies that two other counts should have been dismissed.
“I’m very happy with the decision, because my two main claims [for excessive force and bodily privacy] survived,” said Goldberg and Cuvillier partner Ralph Goldberg, who represents plaintiffs Tamara and Theo Brand.
Sheriff’s deputies Kevin Casal and Teresa Pardinas are represented by Gwinnett County Attorney William Linkous III and Jason Waymire and Terry Williams of Buford’s Williams, Morris & Waymire, none of whom responded to request for comment Thursday.
The multicount complaint filed against Casal and Pardinas stem from serving an arrest warrant in February 2011.
As detailed in the opinion and other filings, the deputies went to a house in Snellville seeking Wesley Brand, who was wanted for motor vehicle theft.
Pardinas went around back while Casal asked a woman smoking on the front porch whether Brand was there. She said she’d get his parents, and the Brands came down to speak to the deputy, with Theo Brand holding a baby.
When Tamara Brand opened the door, Casal put his foot in it and said he had a warrant for Wesley Brand, a 27-year-old white male. Tamara was “totally confused,” the order said, because Wesley was 17 years old, of mixed race and identified as a woman.
She called for Wesley, who came out to the front porch.
“Now Deputy Casal was confused too,” the order said, because, unlike his booking photo, “Wesley now ‘appeared as a female, with auburn dyed hair, a lacy black blouse, ‘skinny jeans’ and white stiletto ‘cowgirl boots.’”
Casal asked to enter the house, but Tamara Brand said he needed a search warrant and that there was no need to enter, since Wesley was on the porch.
Wesley went back inside, and Casal continued to demand entrance. Rebuffed, he grabbed Tamara Brand’s blouse and pulled her, ripping her shirt and exposing her bra, stomach and back.
“According to Ms. Brand, ‘not only could individuals see through [her] bra, but because of the tear, individuals could see her breasts,” the opinion said.
Around this time, Pardinas joined the others in the foyer and said they had an arrest warrant for Wesley Brand.
Tamara Brand demanded that the deputies leave and began to call 911, ignoring Pardinas’ demands to drop the phone.
Goldberg said Tamara Brand had turned to go upstairs when Pardinas fired her Taser into Brand’s back, knocking her to the floor. Pardinas then ordered her to lie flat, but she said she couldn’t because she was pregnant. Pardinas then allegedly began “punching” her in the back and kicking her legs.
Several other officers arrived, and Casal ordered them to conduct a “security sweep” of the house.
According to the Brands, after Pardinas removed the Taser probes from her body, she and her husband asked if she could have another shirt, but deputies refused.
She was allegedly left exposed for about an hour at her house, as well as when she and Wesley Brand were booked into jail.
Tamara Brand was charged with obstructing an officer and third-degree cruelty to children for allegedly performing a “violent act” in front of her infant child. A jury acquitted her of all charges.
The Brands sued the deputies in Georgia’s Northern District in 2013 for federal and state constitution violations, including excessive force, bodily privacy, unlawful entry and unlawful protective sweep, and a loss of consortium claim for Theo Brand.
The deputies moved for summary judgment, claiming qualified immunity under federal law and official immunity under state law.
In 2015, District Court Judge Amy Totenberg granted some of the deputies’ motions but denied summary judgment on the unlawful entry, excessive force, unlawful protective sweep, bodily privacy and loss of consortium claims.
The deputies appealed, and on Dec. 19 the appeals court published an opinion affirming in part and denying in part.
The opinion was authored by Senior Judge Michael Melloy of the U.S. Court of Appeals for the Eighth Circuit, sitting by designation, with the concurrence of Judges Beverly Martin and Jill Pryor.
The appeals court ruled that both deputies were entitled to immunity because they had a reasonable belief that Wesley Brand was in the house.
But the appeals panel found Pardinas was not entitled to immunity on the excessive force claims, ruling Tamara Brand posed no immediate threat and was “neither actively resisting nor attempting to escape” when she was shot with a Taser.
“By all accounts, she had not even been told she was under arrest,” Melloy wrote.
The appeals court also said Casal was protected by immunity on the claims relating to the “sweep” he ordered, ruling there was no evidence he ordered the other officers to conduct a detailed search that included drawers in other areas of the house.
But the appeals court affirmed Totenberg’s ruling upholding the bodily privacy claim.
Assuming the Brands’ version to be true, Melloy wrote, “because the defendants did not let Mrs. Brand cover herself, at least one of her breasts was exposed to all the officers who came into the Brands’ home that night and to anyone else who came may have seen Mrs. Brand as she was taken from her home to the jail for booking.”
Subjecting the woman “to the indignity of exposing herself to countless strangers for an extended period of time—for no law enforcement purpose—violated [her] constitutional protections.”