Ermini v. Scott et al
Filing
98
OPINION AND ORDER granting 56 Defendant William Murphy's Motion for Summary Judgment; granting in part and denying in part 57 Defendant Mike Scott's Motion for Summary Judgment; granting 59 Defendants Robert Hamer, Richard Lisenbee, and Charlene Palmese's Motion for Summary Judgment. Signed by Judge John E. Steele on 4/5/2017. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA I. ERMINI,
Patricia I. Mapes,
f/k/a
Plaintiff,
v.
Case No: 2:15-cv-701-FtM-99CM
MIKE SCOTT, in his official
capacity as Sheriff of Lee
County, Florida, CHARLENE
PALMESE,
individually,
RICHARD
LISENBEE,
individually, ROBERT HAMER,
individually, and WILLIAM
MURPHY, individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants William
Murphy, Mike Scott, Robert Hamer, Richard Lisenbee, and Charlene
Palmese’s Motions for Summary Judgment (Docs. ##56, 56, 59) filed
on January 19 and 20, 2017.
Plaintiff filed responses (Docs. #63 1,
64, 65) on February 6, 2017.
For the reasons set forth below,
Defendants William Murphy, Robert Hamer, Richard Lisenbee, and
Charlene Palmese’s motions are granted and Defendant Mike Scott’s
motion is granted in part and denied in part.
1
#67.
Plaintiff filed an amended Exhibit 3 to Doc. #63.
See Doc.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. Am.’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co.
v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
- 2 -
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.
This is a federal civil rights suit arising out of an incident
that unfolded on the evening of March 23, 2012, culminating in the
shooting of plaintiff Patricia Ermini 2 (plaintiff or Mapes) by Lee
County Sheriff’s Deputy Robert Hamer (Deputy Hamer).
Plaintiff
filed a twelve-count Amended Complaint (Doc. #52) alleging federal
civil rights and state law claims.
The material undisputed facts
(along with some disputed facts) are as follows:
A. The Events of March 23, 2012
On March 23, 2012, at approximately 8:40 p.m., plaintiff’s
daughter, Robin LaCasse (LaCasse), called the Lee County Sheriff’s
Office from her home in Maine, requesting a welfare check for her
71-year old mother, plaintiff Patricia Mapes, who lived in Fort
Myers, Florida.
During that call, LaCasse told the operator that
she had recently spoken on the phone to her mother, who had been
going through a long and contentious divorce proceeding that had
left her financially ruined.
LaCasse stated that her mother
seemed distraught and suicidal, and LaCasse was concerned because
she had been unable to get back in touch with her mother.
2
LaCasse
At the time of the incident, plaintiff’s last name was
“Mapes.” Since the record identifies plaintiff as “Mapes,” the
Court will use this last name throughout this Opinion and Order.
- 3 -
informed the operator that her mother had a handgun in her house
and suspected that she had been consuming alcohol that evening,
even though Mapes had denied doing so to her daughter.
LaCasse
told the operator that Mapes liked wine and used to drink wine.
After giving the address of her mother’s home to the operator,
LaCasse was told by the operator that the Sheriff’s Office would
go check on Mapes and report what they found.
At approximately 8:45 p.m., Deputies Charlene Palmese, Robert
Hamer, and Richard Lisenbee were dispatched to plaintiff’s home.
The information they received prior to reaching the residence was
contained in the computer-aided dispatch (CAD) report.
Based on
the CAD report, the deputies knew plaintiff’s name; age; that she
was going through a divorce and was possibly suicidal; that her
daughter
was
concerned
for
her
well-being;
that
handgun; and that she was possibly intoxicated.
she
owned
a
None of the
deputies had had any prior contacts with Mapes or the residence
prior to that evening.
Deputy Lisenbee arrived first at about 8:53 p.m., parked his
marked sheriff’s vehicle nearby, and approached the house alone.
Deputy Lisenbee conducted a brief sweep of the exterior of the
house, noticing there was a car in the garage.
Deputy Lisenbee
then
and
began
banging
“Sheriff’s Office.”
loudly
on
the
front
door
announcing
After seeing no one inside and receiving no
response, Deputy Lisenbee found that the front door was closed but
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unlocked.
Deputy Lisenbee opened the door, stepped slightly
inside while shining his flashlight, announced “Sheriff’s Office,
Sheriff’s Office,” and asked if anyone was home.
Deputy Lisenbee
observed that no lights were on in the house, it was very dark,
and the house was in disarray.
on the floor of living room.
Lisenbee saw an empty wine bottle
After receiving no response to his
inquiry, Deputy Lisenbee backed out of the house.
Deputy Palmese arrived in a separate vehicle, and Deputy
Lisenbee informed her what was going on.
Deputies Lisenbee and
Palmese approached the now-open front door 3 and Deputy Lisenbee
yelled “Sheriff’s Office.”
There was no answer.
Deputy Palmese
had a bad feeling about the situation because it was so dark and
quiet.
The deputies decided to wait for additional backup.
At approximately 8:57 p.m., Deputy Hamer was the last of the
three dispatched officers to arrive at Mapes’ home.
Deputy Hamer
retrieved an AR15 rifle from the trunk of his patrol car, as he
would typically do when called to a scene that was known to have
a firearm.
3
There was some confusion in the record about the front door.
Deputies who arrived after Deputy Lisenbee were not aware that
Deputy Lisenbee had opened the front door, and thought that Deputy
Lisenbee had found the door “wide open” when he arrived.
It
appears this inaccurate information was relayed to dispatch and
other officers, since it is included throughout the record.
Deputy Lisenbee testified that the front door was unlocked but
closed when he arrived, and he opened it before the other officers
arrived.
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All three deputies testified that it was standard protocol to
enter a home when asked to conduct a welfare check, which is what
they did next.
As the deputies went through the front door, they
did not knock but announced themselves by stating “Sheriff’s
Office” once or twice, but received no response.
No lights were
on in the home and the deputies did not turn any on.
had
drawn
their
illuminating
weapons,
their
way.
which
The
had
high-powered
deputies
began
The deputies
flashlights
“clearing”
the
interior of the home, beginning with the living room.
The double doors to the master bedroom - which were wood so
the officers could not see through them – were both closed.
opened, the doors swung into the bedroom.
When
Deputy Lisenbee opened
the right door to the master bedroom 4, stood inside the doorway,
shined his flashlight inside, saw Mapes on the bed, and said
“Sheriff’s Office.
there?”
Are you ok.”
Mapes responded by saying “who’s
Deputy Lisenbee stated that he was with the Sheriff’s
Office, said he was there to make sure she was okay, and asked
“are you okay?”
Deputy Lisenbee testified that Mapes told him he
had better get out of her house or she was going to shoot him, and
to stop shining the flashlight on her.
Plaintiff recalled telling
the people she had a gun and to get out of her house, but does not
4
Whether Deputy Lisenbee knocked on the master bedroom door
before he opened it is disputed in the record.
- 6 -
remember telling them that she was going to shoot them.
Deputy
Lisenbee began to back out of the bedroom.
Deputy Hamer was outside the bedroom.
Hearing plaintiff’s
threat to shoot, Deputy Hamer raised his rifle into a position to
shoot at the master bedroom.
Deputy Lisenbee, now outside the
bedroom, saw a handgun emerge around the master bedroom door, which
was illuminated by flashlights, but did not see plaintiff’s body
emerge through the doorway.
Through the open side of the door
Deputy Hamer saw a gun coming around the corner, and then saw half
of plaintiff’s body, clothed only in underwear.
According to
Deputy Hamer, as plaintiff was walking towards the door she was in
a shooting-stance position with both hands on a handgun, finger on
the trigger, pointed directly at Deputy Hamer. 5
gonna shoot you.”
Mapes said “I’m
Deputy Hamer feared for his life, as well as
the lives of the other deputies, and fired seven rounds through
the door at plaintiff, never speaking before he shot. 6
Five of
the rounds struck Mapes.
Mapes testified that she woke up in a complete panic to
someone saying “she’s in here,” but had not heard the people knock
on the door or announce that they were law enforcement officers.
5
Deputy Palmese did not see plaintiff or the handgun, but
could hear Mapes saying that she was going to shoot them.
6
Deputy Lisenbee was the only one to speak to plaintiff prior
to the shooting.
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Mapes responded by saying “Get out of my house.
I have a gun.”
Plaintiff got out of bed and hid behind the door.
Mapes again
told the intruders to leave, and heard someone say he was with the
Sheriff’s Department.
Mapes said she had not called the Sheriff’s
Department, and again told the person to get out of her house.
Mapes also told the person to put the light out.
Mapes does not
remember retrieving her gun or pointing it at the deputies, and
never said “I’m going to shoot you.”
Mapes testified that she
would never have threatened to shoot because she was taught not to
do that in training to use the handgun.
Deputy Hamer testified he stopped firing because he saw Mapes
fall and saw the gun fall out of her hands.
Deputy Hamer kicked
the gun away, handcuffed Mapes, and continued to clear the area.
The handgun plaintiff had been holding, as well as a spent shell
casing from the gun, were recovered near where she had fallen after
being shot.
Deputy Hamer knew that he had fired first, and only
later discovered that plaintiff’s gun had discharged, with a bullet
lodging near the ceiling above where he had been standing.
While
the time frame is not entirely clear from the record, Mapes was
likely shot about two minutes after the deputies entered her home,
and within seconds after she told them to get out of the house.
Deputy Hamer provided emergency medical assistance to the
wounds on plaintiff’s leg.
Both the deputies and the emergency
medical personnel testified that plaintiff was very confused about
- 8 -
what had just occurred, repeatedly asked everyone there, “why did
you shoot me?,” “why were you trying to kill me?,” and wondered
why there were police in her home trying to kill her because she
had not called the police.
Plaintiff had a total of five wound
areas and was transported to the hospital and detained under
constant supervision by Sheriff’s deputies due to suspicion that
she had committed a criminal offense.
B. The Subsequent Investigation, Search, and Arrest
William Murphy, Jr. (Det. Murphy) was the lead detective on
the case and conducted a criminal investigation regarding the
circumstances of that night.
completed
a
search
warrant
On March 24, 2012, Det. Murphy
Affidavit
based
on
his
initial
investigation, and submitted a search warrant application to a
state court judge.
(Doc. #56-1, Ex. J.)
In his Affidavit, Det.
Murphy relied on information provided to him in the preliminary
stages
of
the
investigation
at
the
interviews and his own observations.
scene,
including
witness
Among other things, Det.
Murphy stated in the Affidavit that Mapes had been the first to
fire her handgun at Deputies Lisenbee and Hamer, to which Deputy
Hamer returned fire.
The Affidavit asserts that Det. Murphy had
probable cause to believe that Mapes had committed the offense of
attempted murder of a law enforcement officer, Fla. Stat. § 782.04,
and sought a search warrant to enter and search the house for
evidence of that offense.
(Doc. #56-1, Ex. J.)
- 9 -
Based upon the
Affidavit and the Application, a search warrant was issued and
served on Mapes’ home on March 24, 2012.
(Doc. #64-4, p. 19-20.)
Although plaintiff had been detained at the hospital since
her transport, Det. Murphy formalized plaintiff’s arrest on March
29, 2012, by preparing and serving an Arrest/Notice to Appear Form
for Aggravated Assault on a Law Enforcement Officer in violation
of Fla. Stat. § 754.07.
(Doc. #64-5, pp. 24-25.)
Det. Murphy
also took Mapes’ statement on March 29, 2012 at the hospital.
Mapes, still handcuffed to the bed, said that she was sound asleep
when she was woken up in her home, but acknowledged that she then
heard the officers say they were with the Sheriff’s Office.
Mapes
did not believe that they were the police because she had not
called the police to come to her house and did not know why they
would have broken into her home.
Mapes stated that because they
did not want to leave, she shot her gun.
The State Attorney’s Office ultimately filed a no information
due to insufficient evidence and the charges against Mapes were
dropped on June 5, 2012.
III.
Plaintiff’s
Amended
Complaint
(Doc.
#52)
asserts
the
following remaining claims 7: (1) a 42 U.S.C. § 1983 claim against
7
All
Hamer, and
All claims
Sheriff of
claims asserted against Deputies Lisenbee, Palmese,
Detective Murphy are in their individual capacities.
against Mike Scott are in his official capacity as
Lee County, Florida.
- 10 -
Deputies Lisenbee, Hamer, and Palmese for violation of Fourth
Amendment rights (Count I); (2) a 42 U.S.C. § 1983 claim against
Deputy Hamer for the use of excessive force (Count II); (3) a 42
U.S.C. § 1983 claim against Det. Murphy for false arrest (Count
III); (4) a 42 U.S.C. § 1983 claim against Det. Murphy for
falsifying a search warrant affidavit (Count IV); (5) a state law
negligence claim against Deputies Palmese, Lisenbee, and Hamer
(Count V); (6) a state law claim against Deputy Hamer for Battery
(Count VI); (7) a state law gross negligence claim against Deputies
Palmese, Lisenbee, and Hamer (Count VII); (8) a state law claim
for negligent infliction of emotional distress against Deputies
Lisenbee and Hamer (Count VIII); (9) a state law claim against
Det. Murphy for malicious prosecution (Count IX); (10) a state law
claim against Det. Murphy for intentional infliction of emotional
distress (Count X); (11) a state law claim against Mike Scott in
his official capacity as Lee County Sheriff for negligence for
failure to property train and supervise (Count XI); and (12) a
state law claim against Sheriff Mike Scott in his official capacity
for
negligence
(Count
XII).
(Doc.
#52.)
The
Count
XIII
defamation claim against Sheriff Scott was previously dismissed
(Doc. #45.)
IV. The Four 42 U.S.C. § 1983 Claims
“Section
1983
creates
a
private
cause
of
action
for
deprivations of federal rights by persons acting under color of
- 11 -
state law.”
Laster v. City of Tampa Police Dept., 575 F. App’x
869, 872 (11th Cir. 2014) (citing 42 U.S.C. § 1983).
Deputies
Lisenbee, Hamer, and Palmese, and Det. Murphy, move for summary
judgment as to the § 1983 claims in Counts I, II, III, and IV
primarily on the basis of qualified immunity.
At the summary
judgment stage the facts are viewed in the light most favorable to
plaintiff, but “the Court considers only the facts that were
knowable to the defendant officers.”
White v. Pauly, 137 S. Ct.
548, 550 (2017), citing Kingsley v. Hendrickson, 135 S. Ct. 2466,
2474 (2015)).
A. Qualified Immunity Principles
Qualified immunity is an affirmative defense which protects
government officials sued in their individual capacities from
liability
when:
discretionary
(1)
they
authority,
act
and
within
(2)
their
the
scope
conduct
of
their
“violates
no
clearly established statutory or constitutional rights of which a
reasonable person would have known.”
1350,
1354
(11th
Cir.
2007)
Jordan v. Mosley, 487 F.3d
(citations
and
quotation
marks
omitted).
The first step of qualified immunity analysis requires a
government official to demonstrate that he was acting within the
scope of his discretionary authority when the allegedly unlawful
act occurred.
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
- 12 -
2002).
If the defendant was not acting within his discretionary
authority, he is ineligible for qualified immunity.
Id.
If the government official establishes the first step, the
burden shifts to plaintiff to show that qualified immunity is
inappropriate.
Jacoby v. Baldwin County, 835 F.3d 1338, 1344
(11th Cir. 2016).
To show qualified immunity is inappropriate, a
plaintiff must establish that: (1) the facts, when taken in the
light most favorable to the party asserting the injury, show the
officer’s conduct violated a federal right, and (2) the federal
right in question was clearly established at the time of the
violation.
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); Jacoby,
835 F.3d at 1344.
The Court may consider these two prongs in
either order, and the official is entitled to qualified immunity
if the plaintiff fails to establish either one.
Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
(1)
Acting Within Scope of Discretionary Authority
“[A] government official can prove he acted within the scope
of his discretionary authority by showing objective circumstances
which would compel the conclusion that his actions were undertaken
pursuant to the performance of his duties and within the scope of
his authority.”
1988).
The
Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.
Eleventh
Circuit
has
“interpreted
the
term
‘discretionary authority’ to include all actions of a governmental
official that (1) ‘were undertaken pursuant to the performance of
- 13 -
his duties,’ and (2) were ‘within the scope of his authority.’”
Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (quoting Rich,
841 F.2d at 1564).
See also Roberts v. Spielman, 643 F.3d 899,
903 (11th Cir. 2011).
“The inquiry is not whether it was within
the defendant’s authority to commit the allegedly illegal act.
Framed that way, the inquiry is no more than an ‘untenable’
tautology.”
Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282
(11th Cir. 1998).
Rather, the inquiry is “whether the act
complained of, if done for a proper purpose, would be within, or
reasonably
related
to,
discretionary duties.
the
outer
perimeter
of
an
official’s
The scope of immunity should be determined
by the relation of the [injury] complained of to the duties
entrusted to the officer.”
(2)
Id. (quotation marks omitted).
Violation of Federal Right Which Is Clearly Established
“A government official sued under § 1983 is entitled to
qualified immunity unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”
(2014) (citation omitted).
determining
favorable
(1)
to
the
whether
party
Carroll v. Carman, 135 S. Ct. 348, 350
The Court employs a two-part inquiry,
the
facts,
asserting
taken
the
in
injury,
the
light
show
that
most
the
officer’s conduct violated a federal right; and (2) whether the
right in question was clearly established at the time of the
violation.
Tolan, 134 S. Ct. at 1865.
- 14 -
If no federal right is
violated, the claim is over.
If the officer did violate a federal
right, the issue becomes whether that right was clearly established
at the time of the officer’s conduct.
“A right is clearly established only if its contours are
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.
existing
precedent
constitutional
government
must
question
officials
have
beyond
breathing
placed
In other words,
the
statutory
debate.
This
doctrine
room
make
reasonable
to
or
gives
but
mistaken judgments, and protects all but the plainly incompetent
or those who knowingly violate the law.”
Carroll, 135 S. Ct. at
350 (internal citations and punctuation omitted).
The Court
undertakes this inquiry “in light of the specific context of the
case, not as a broad general proposition.”
543 U.S. 194, 198 (2004).
point”
before
established,
the
“but
Brosseau v. Haugen,
There need not be a case directly “on
Court
existing
may
conclude
precedent
the
must
law
have
statutory or constitutional question beyond debate.”
Sims, 134 S. Ct. 3, 5 (2013) (citation omitted).
v. Luna, 136 S. Ct. 305, 308 (2015).
is
clearly
placed
the
Stanton v.
See also Mullenix
The “clearly established”
analysis must identify a Supreme Court case where an officer acting
under similar circumstances was held to have violated the federal
right.
White, 137 S. Ct. at 551
B. Count I – 42 U.S.C. § 1983 Fourth Amendment Violation
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Count I asserts a claim under 42 U.S.C. § 1983 against
Deputies Lisenbee, Hamer, and Palmese for violation of the Fourth
Amendment based upon their actions on the night of March 23, 2012,
at plaintiff’s house.
Plaintiff “concedes the initial entry into
her home by the Deputies was reasonable under the Fourth Amendment
because they reasonably believed Ermini was in need of emergency
assistance based on her daughter’s call.”
(Doc. #63, p. 11.)
Plaintiff asserts, however, that the deputies violated her Fourth
Amendment rights when they remained in her home without a warrant
after they found she was in no grave emergency or imminent danger
of injury and she asked them to leave.
(Id.)
Defendants assert that they are entitled, at a minimum, to
summary judgment based upon qualified immunity (Doc. #59, pp. 1618.)
The Court agrees with defendants.
(1)
Performing a Discretionary Function
The facts viewed in the light most favorable to plaintiff
establish that the actions of all three defendants were undertaken
pursuant to the performance of their official duties and were
within the scope of their authority as deputy sheriffs.
In
Florida, deputy sheriffs have the same powers as the sheriff, Fla.
Stat. § 30.07, and among other things are “conservators of the
peace.”
Fla.
Stat.
§
30.15(1)(e).
Florida,
as
many
jurisdictions, “expect [police officers] to take those steps that
are necessary to ensure the safety and welfare of the citizenry at
- 16 -
large.”
Ortiz v. State, 24 So. 3d 596, 600 (Fla. 5th DCA 2009)
(citation omitted).
While working their assigned shift, each
deputy was dispatched to the location based upon information
received
from
plaintiff’s
daughter
establishing
concern about plaintiff and potentially others.
a
basis
for
Pursuant to their
normal job duties, the deputies conducted a welfare check after
arriving at the residence.
The deputies were acting well within
their discretionary authority even after plaintiff asked them to
leave.
Roberts, 643 F.3d at 904.
Accordingly,
the
deputies
were
acting
within
their
discretionary authority when they conducted a welfare check and
did not exceed the scope of this discretionary authority.
Thus,
the burden shifts to plaintiff to show that a clearly established
constitutional right was violated.
(2)
Violation of a Clearly Established Constitutional Right
As noted earlier, plaintiff must show that the conduct of the
officer violated a federal right and that the federal right was
clearly established at the time.
In determining either prong, the
Court may not resolve genuine factual disputes in favor of the
party seeking summary judgment.
(a)
Tolan, 134 S. Ct. at 1866.
Violation of Fourth Amendment?
The general Fourth Amendment principles concerning entry into
houses are well established.
firm
line
at
the
entrance
“[T]he Fourth Amendment has drawn a
to
the
- 17 -
house.
Absent
exigent
circumstances,
that
threshold
without a warrant.”
may
not
reasonably
be
crossed
Payton v. New York, 445 U.S. 573, 590 (1980).
While there is a presumption that crossing the threshold without
a warrant is unconstitutional, Groh v. Ramirez, 540 U.S. 551, 559
(2004), the Supreme Court has recognized a number of exigent
circumstances which qualify as “reasonable exceptions” to the
warrant requirement.
Kentucky v. King, 563 U.S. 452, 459-60
(2011).
“One exigency obviating the requirement of a warrant is the
need to assist persons who are seriously injured or threatened
with such injury.”
(2006).
Brigham City v. Stuart, 547 U.S. 398, 403–04
Law enforcement officers may enter a home without a
warrant to render emergency assistance to an injured occupant or
to protect an occupant from imminent injury when they have an
objectively reasonable basis for such a belief.
Id. at 403.
This
exception does not depend on the officers’ subjective intent or
the seriousness of any crime they are investigating when the
emergency arises.
It requires only an objectively reasonable
basis for believing that a person within the house is in need of
immediate aid.
Michigan v. Fisher, 558 U.S. 45, 47 (2009).
“The
need to protect or preserve life or avoid serious injury is
justification
for
what
exigency or emergency.’”
would
be
otherwise
illegal
absent
an
Brigham City, 547 U.S. at 403 (quoting
Mincey v. Arizona, 437 U.S. 385, 392 (1978)).
- 18 -
The Court must consider the totality of the circumstance when
determining “whether a law enforcement officer faced an emergency
that justified acting without a warrant.”
133 S. Ct. 1552, 1559 (2013).
Missouri v. McNeely,
There is “no doubt” that officers
do not violate the Fourth Amendment by opening a door and entering
a home when faced with these types of emergency circumstances.
City & County of San Francisco v. Sheehan, 136 S. Ct. 1765, 177475 (2015).
See also Georgia v. Randolph, 547 U.S. 103, 118 (2006)
(“it would be silly to suggest that the police would commit a tort
by entering [a residence] ... to determine whether violence ... is
about to (or soon will) occur.”); Ryburn v. Huff, 565 U.S. 469
(2012).
The only disputed issue in this case is whether the Fourth
Amendment was violated when the deputies did not immediately leave
the premises once they determined Mapes was alive and uninjured
and she told them to leave.
Mapes argues that no reasonable
officer
there
could
have
concluded
was
an
urgent,
on-going
emergency, and that a reasonable officer would have known a warrant
was required to stay.
(Doc. #63, p. 11.)
It is certainly true that an officer’s “warrantless search
must be strictly circumscribed by the exigencies which justify its
initiation. . . .”
Mincey, 437 U.S. at 393.
Unnecessarily
extending the duration of the police presence after a lawful entry
may indeed turn what was reasonable at its inception into an
- 19 -
unreasonable intrusion.
this case.
That, however, was not the situation in
The Court concludes that under the facts of this case,
viewed in the light most favorable to plaintiff, there was no
violation of the Fourth Amendment by any of the three deputies.
The deputies were lawfully present at a location they had a
right to be – in the house conducting a welfare check at the
request of a relative.
Prior to their arrival, the deputies knew
that the occupant was a 71-year old women who was going through a
traumatic divorce, may have been drinking, and had a gun in the
house.
The officers knew that the occupant’s daughter had called
the Sheriff’s Office because of her concern for the occupant’s
welfare.
Upon
arriving,
the
first
deputy
found
no
sign
of
activity, a vehicle in the garage, a dark house, a door which was
closed but unlocked, and an empty wine bottle in the living room.
There was no response to several loud statements by one of the
deputies.
When the deputies entered the house, their additional
announcements went without a response.
When the bedroom door was
partially opened, a deputy saw an occupant laying on the bed.
The
occupant initially did not respond when the officer announced their
presence.
While the occupant’s response is disputed, plaintiff
admits she did say she had a gun and told the people to get out of
the house.
near
the
Plaintiff then got out of bed and approached the door
deputies,
approached.
yelling
for
the
people
to
leave
as
she
Deputy Lisenbee, the only officer who entered the
- 20 -
bedroom, had backed out of the bedroom within seconds, and then
the shooting started.
The Court concludes that even when viewed in the light most
favorable to plaintiff, staying in the house for literally a few
seconds after being told to leave did not violate plaintiff’s
Fourth Amendment right.
The officers clearly had not completed
the purpose of their security check, and the concerns expressed by
the daughter had not been shown to have dissipated.
If anything,
the deputies had simply confirmed the daughter’s concerns:
An
empty wine bottle was in the living room, plaintiff was in a dark
house relatively early in the evening, and she said she had a gun.
Even when all of the testimony about the actual gun in plaintiff’s
possession and her discharge of that gun is not considered, the
officers clearly had a reasonable basis to stay in the house as
they
did.
None
of
the
deputies
violated
plaintiff’s
Fourth
Amendment rights, so summary judgment as to the Count I, § 1983
claim, is granted in their favor.
(b)
Violation of Clearly Established Right?
Even if the Court is wrong, and the deputies violated the
Fourth Amendment by staying in the house after seeing plaintiff
and being instructed to leave, the Fourth Amendment right in this
context was not clearly established by the Supreme Court.
is
no
evidence
that
the
Constitution or federal law.
deputies
knowingly
violated
There
the
Therefore, the question is whether,
- 21 -
in light of precedent existing at the time, the officers were
“plainly incompetent” in staying in the house after plaintiff
instructed them to leave.
Stanton, 134 S. Ct. at 4-5.
The answer
is clearly that the deputies were not incompetent.
No decision of the Supreme Court has found a Fourth Amendment
violation on facts even roughly comparable to those present in
this case.
E.g., Brigham City, 547 U.S. 398; Michigan v. Fisher,
558 U.S. 45 (2009); Carroll, 135 S. Ct. 348; City & County of San
Francisco, 135 S. Ct. 1765.
Indeed, the Eleventh Circuit has
found
Fourth
no
violation
circumstances.
of
the
Roberts,
643
F.3d
Amendment
at
906
under
similar
(concluding
that
plaintiff had “cited no binding precedent that clearly established
that
probable
cause
and
exigent
circumstances
immediately
evaporate once an officer performing a welfare check for a possibly
suicidal person sees that the person is merely alive”).
Even if
the deputies were mistaken in believing their actions in staying
were justified after being instructed to leave, they were not
“plainly incompetent” in acting under such a belief.
Therefore,
if plaintiff’s Fourth Amendment rights were violated, all three
deputies are entitled to qualified immunity as to Count I.
C.
Count II – 42 U.S.C. § 1983 Excessive Use of Force
In Count II plaintiff claims that, given the circumstances of
this case, Deputy Hamer violated her Fourth Amendment right to be
free from excessive force when he shot her.
- 22 -
See Graham v. Connor,
490 U.S. 386, 394–95 (1989) (holding that the Fourth Amendment’s
freedom from unreasonable searches and seizures includes the right
to be free from excessive force).
Plaintiff correctly asserts
that her excessive force claim is discrete from the prior Fourth
Amendment claim, and is not dependent on the outcome of that claim.
Defendant Hamer seeks summary judgment on Count II based upon
qualified immunity.
Plaintiff responds that there are material
issues of disputed facts which preclude summary judgment in favor
of Deputy Hamer.
The qualified immunity principles summarized
supra Section IV.A apply equally to this claim.
(1)
Performing A Discretionary Function
For the same reasons as set forth above, supra Sec. IV.B(1),
the Court finds that the actions of Deputy Hamer were undertaken
pursuant to the performance of his official duties and were within
the scope of his authority as a deputy sheriff.
The burden
therefore shifts to plaintiff to establish a violation of a federal
right which was clearly established at the time of the conduct.
(2)
Violation of a Clearly Established Constitutional Right
(a)
“When
a
Violation of Fourth Amendment?
plaintiff
alleges
excessive
force
during
an
investigation or arrest, the federal right at issue is the Fourth
Amendment right against unreasonable seizures.”
Tolan, 134 S. Ct.
at 1865–66, (citing Graham, 490 U.S. at 394).
“The inquiry into
whether this right was violated requires a balancing of ‘the nature
- 23 -
and quality of the intrusion on the individual’s Fourth Amendment
interests against the importance of the governmental interests
alleged to justify the intrusion.’”
Tolan, 134 S. Ct. at 1865-66
(citing Tennessee v. Garner, 471 U.S. 1, 8 (1985)); Graham, 490
U.S. at 396.
As the Eleventh Circuit has recently stated:
Official action constitutes excessive force
when it is objectively unreasonable.
To
measure
the
objective
reasonableness
of
official action, we weigh the quantum of force
employed against the severity of the crime at
issue; whether the suspect poses an immediate
threat to the safety of the officers or
others; and whether the suspect actively
resisted arrest or attempted to evade arrest
by flight. But we do not apply these factors
mechanically.
Whether an officer’s actions
are objectively reasonable is a function of
the facts and circumstances confronting them,
without regard to their underlying intent or
motivation.
Dukes v. Deaton, --- F.3d ----, 2017 WL 370854, at *4 (11th Cir.
Jan. 26, 2017) (citations and internal punctuation omitted).
The
Court views the circumstances from the perspective “of a reasonable
officer
on
the
scene,
rather
than
with
the
20/20
vision
of
hindsight” and allows for the fact that officers are often required
to make “split-second judgments — in circumstances that are tense,
uncertain, and rapidly evolving — about the amount of force that
is necessary in a particular situation.”
Plumhoff v. Rickard, 134
S. Ct. 2012, 2020 (2014) (quoting Graham, 490 U.S. at 396–97).
The facts, however, are viewed in the light most favorable to
plaintiff.
Tolan, 134 S. Ct. at 1866.
- 24 -
It is undisputed that Mapes told the officers she had a gun,
told the deputies to leave the house, and had gotten out of bed
and advanced towards the bedroom door where the deputies were
standing.
Although Mapes agrees she was standing near the doorway
to the bedroom, she does not recall having a gun in her hand, and
denies pointing the gun at the deputies or threatening to shoot.
The facts, viewed in the light most favorable to Mapes 8, supports
a reasonable belief that Mapes posed a threat of serious physical
harm.
It was reasonable for Deputy Hamer to believe that a gun
was available to plaintiff for ready use.
before approaching the door.
That’s what Mapes said
Furthermore, the uncontroverted
physical evidence from the scene establishes that plaintiff’s gun
was found next to her hand upon falling after she was shot, along
with a spent shell casing beside it.
required
to
wait
and
hope
for
the
Deputy Hamer “was not
best.”
Gutierrez, 624 F.3d 816, 821 (11th Cir. 2010).
Jean-Baptiste
v.
“[T]he law does
not require officers in a tense and dangerous situation to wait
until the moment a suspect uses a deadly weapon to act to stop the
suspect.”
Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007).
Drawing all inferences in favor of plaintiff, the Court finds that
Deputy Hamer acted in an objectively reasonable manner under the
8
The Court gives Mapes the benefit of the doubt that she did
not have a gun in her hand. A person does not create a disputed
issue of fact by simply saying she cannot remember the incident.
- 25 -
circumstances,
his
response
was
not
disproportionate
to
the
circumstances, and he did not violate plaintiff’s Fourth Amendment
right to be free from the excessive use of force.
(b)
Violation of Clearly Established Right?
Even if shooting plaintiff was a violation of the Fourth
Amendment, Deputy Hamer is entitled to qualified immunity unless
plaintiff establishes that Deputy Hamer violated a constitutional
right that was “clearly established” at the time of the conduct.
Plumhoff, 134 S. Ct. at 2023.
Official conduct violates clearly
established law if the “contours of [a] right [are] sufficiently
clear that every reasonable official would [have understood] that
what he is doing violates that right.”
U.S. 731, 741 (2011).
Ashcroft v. Al-Kidd, 563
Because Fourth Amendment qualified-immunity
determinations turn on the reasonableness of an officer’s acts in
a certain set of facts, the determination of whether a legal right
was already clearly established “must be undertaken in light of
the
specific
context
proposition.”
of
the
case,
not
as
a
broad
general
Mullenix, 136 S. Ct. at 308 (citations omitted).
The contours of the right are not sufficiently set forth by the
generalities of Graham.
The Supreme Court has held that an officer
who shot and killed an armed occupant of a house without giving a
verbal
warning
Amendment right.
did
not
violate
clearly
White, 137 S. Ct. 546.
established
Fourth
The Fourth Amendment
right was not clearly established in the specific context of this
- 26 -
case.
Therefore, even if plaintiff’s Fourth Amendment right was
violated, Deputy Hamer is entitled to qualified immunity.
D. Count III– 42 U.S.C. § 1983 False Arrest
Count III asserts a claim under 42 U.S.C. § 1983 alleging
that Det. Murphy violated plaintiff’s Fourth Amendment rights by
arresting and detaining her without probable cause that she had
committed the state law offense of aggravated assault on a law
enforcement officer.
Det. Murphy seeks summary judgment on Count III because there
was probable cause to arrest or detain plaintiff.
Alternatively,
Det. Murphy asserts that at the very least he is entitled to
qualified immunity because there was arguable probable cause to
arrest and detain plaintiff.
Plaintiff responds that the record
is undisputed that she did not know the persons in her house that
evening were law enforcement officers, thus negating probable
cause, and she was justified in using deadly force to protect
herself from what she believed to be intruders into her home.
(1)
Fourth Amendment Principles
An arrest qualifies as a “seizure” of a person under the
Fourth Amendment.
Al-Kidd, 563 U.S. at 735; California v. Hodari
D., 499 U.S. 621, 624 (1991).
So does the detention of a person.
Manuel v. City of Joliet, --- S. Ct. ---, 2017 WL 1050976 (Mar.
21, 2017).
The reasonableness of an arrest and detention under
the Fourth Amendment “turns on the presence or absence of probable
- 27 -
cause” for the arrest/detention.
Case v. Eslinger, 555 F.3d 1317,
1326–27 (11th Cir. 2009) (citing Skop v. City of Atlanta, 485 F.3d
1130, 1137 (11th Cir. 2007)).
“Probable cause to arrest exists
when the facts and circumstances within an officer’s knowledge are
sufficient to warrant a reasonable belief that the suspect had
committed or was committing a crime.”
Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1251 (11th Cir. 2013) (citation omitted).
“Whether
probable
cause
exists
depends
upon
the
reasonable
conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.”
Devenpeck v. Alford, 543 U.S.
146, 152 (2004).
An arrest or detention without probable cause violates the
Fourth Amendment, Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th
Cir. 1997), and a cause of action for damages may be asserted under
§ 1983.
Brown v. City of Huntsville, 608 F.3d 724, 734 n.15 (11th
Cir. 2010).
Plaintiff has the burden of establishing the absence
of probable cause to succeed on a § 1983 claim.
133 F.3d 1425, 1436 (11th Cir. 1998).
show
that
no
reasonably
objective
Rankin v. Evans,
To do so, plaintiff must
police
officer
would
have
perceived there to be probable cause based upon the totality of
the circumstances.
Cir. 2011).
Coffin v. Brandau, 642 F.3d 999, 1006 (11th
The existence of probable cause “constitutes an
absolute bar” to a § 1983 claim for false arrest.
F.3d at 1435.
- 28 -
Rankin, 133
An
officer
must
conduct
a
constitutionally
investigation before making an arrest or detention.
sufficient
Kingsland v.
City of Miami, 382 F.3d 1220, 1228–30 (11th Cir. 2004); Rankin,
133
F.3d
at
1435–36.
While
officers
may
not
ignore
known
exculpatory information in deciding whether to arrest, they need
not explore every proffered claim of innocence or take every
conceivable step to eliminate the possibility of convicting an
innocent person.
at 1435.
Kingsland, 382 F.3d at 1229; Rankin, 133 F.3d
An officer may normally rely on a victim’s criminal
complaint to support probable cause.
Rankin, 133 F. 3d at 1441.
In deciding whether probable cause exists, an officer is “not
required to sift through conflicting evidence or resolve issues of
credibility, so long as the totality of the circumstances present
a
sufficient
committed.
basis
for
believing
that
an
offense
has
been
Nor does probable cause require certainty on the part
of the police.”
Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.
2002) (citations omitted).
The fact that the arrestee was never prosecuted, or the
charges were dropped, or the arrestee was acquitted of any offense
stemming from the arrest, does not impact the existence of probable
cause.
Knight v. Jacobson, 300 F.3d 1272, 1275 (11th Cir. 2002);
Lee v. Ferraro, 284 F.3d 1188, 1195-96 (11th Cir. 2002); Marx v.
Gumbinner, 905 F.2d 1503, 1507 (11th Cir. 1990).
- 29 -
(2)
Qualified Immunity For Arrest/Detention Without Probable
Cause
An officer who makes an arrest or detention without actual
probable cause is nonetheless entitled to qualified immunity in a
§ 1983 action if there was “arguable probable cause” for the
arrest.
Brown, 608 F.3d at 734; Ferraro, 284 F.3d at 1195; Coffin,
642 F.3d at 1006.
“Arguable probable cause exists if, under all
of the facts and circumstances, an officer reasonably could — not
necessarily would — have believed that probable cause was present.”
Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004).
See also Fish v. Brown, 838 F.3d 1153, 1167 (11th Cir. 2016).
(3)
Application of Principles To This Case
Plaintiff was arrested and detained as of March 29, 2012,
when Det. Murphy served the arrest warrant while plaintiff was in
the hospital.
Plaintiff was arrested for two counts of aggravated
assault on a law enforcement officer.
“The crime of aggravated assault on a law enforcement officer
encompasses the following elements of assault: an intentional,
unlawful threat by word or act to do violence to the person of
another, coupled with an apparent ability to do so, and doing some
act which creates a well-founded fear in such other person that
such violence is imminent.
In addition, the assault must be made
with a deadly weapon on a law enforcement officer engaged in the
lawful performance of his duties.
- 30 -
§§ 784.07(2)(c), 784.011(1),
784.021(1)(a), Fla. Stat.”
(Fla. 2d DCA 2005).
Sullivan v. State, 898 So. 2d 105, 108
As set forth below, the Court finds that when
Det. Murphy arrested Mapes and caused her detention for this
offense, he had probable cause to do so.
(a)
Probable Cause to Arrest/Detain
Det. Murphy testified that the totality of the circumstances
led him to believe that as of March 29, 2012, plaintiff had
committed the offense of aggravated assault on a law enforcement
officer, as stated in the Probable Cause Statement (Doc. #64-5, p.
25) and Affidavit for Search Warrant (Doc. #56-1, Ex. J.)
This
was based upon interviews with the deputies involved with the
shooting, who stated that upon entering plaintiff’s front door and
her
bedroom
they
announced
their
presence
loudly,
and
that
plaintiff threatened to shoot them after becoming aware of the
deputies’ presence. 9
Deputies Hamer and Lisenbee told Det. Murphy
that plaintiff pointed a gun around the bedroom door, ready to
shoot, causing Deputy Hamer to fear for both his life as well as
those of the other deputies.
These accounts were consistent with
the physical evidence at the scene, which included a bullet hole
near the ceiling behind the deputies, as well as the handgun that
9
The Probable Cause Statement states that upon learning that
they were law enforcement, Mapes stated, “I don’t care who you
are, I’ll shoot you.” (Doc. #64-5, p. 25.) This information was
from Deputy Lisenbee’s sworn statement to Det. Murphy given on
March 26, 2012. (Doc. #56-1 at 127.)
- 31 -
belonged to Mapes lying on the floor near her hand with a spent
shell casing accompanying it.
Plaintiff argues that Det. Murphy did not have probable cause
because she told Det. Murphy during the March 29, 2012 interview
that she heard the deputies identify themselves as law enforcement
but that she did not believe them.
Further, plaintiff argues
there is no evidence to dispute her position that she did not know
they were law enforcement officers, and therefore under Florida
law she was allowed to stand her ground and use deadly force.
Neither of these arguments, even if factually correct, undermine
the existence of probable cause.
An officer is not required to credit a suspect’s statement.
The evidence known to Det. Murphy provided ample probable cause to
support the arrest, and multiple officers contradicted her version
of the events.
A victim had told Det. Murphy that Mapes pointed
a firearm at officers and threatened to shoot.
The version of the
events told by the officers was supported by the physical evidence
found at the scene.
The totality of the circumstances provided a
sufficient basis for Det. Murphy to believe that an aggravated
assault had been committed by Mapes, and therefore Det. Murphy had
probable cause to arrest and detain Mapes.
Florida’s so-called Stand Your Ground laws do not negate the
existence of probable cause.
The Florida Stand Your Ground law,
codified in Florida Statutes §§ 776.012 and 776.013, substantially
- 32 -
altered the law governing justifiable use of force by abrogating
the common law duty to retreat before resorting to deadly force in
self-defense.
At the same time, § 776.032 grants immunity to
those who lawfully use force in self-defense, subject to certain
exceptions.
If the State charges a person with a criminal offense
for using force, that person can assert Stand Your Ground immunity
by
filing
a
pretrial
motion
to
dismiss
the
indictment
or
information under Florida Rule of Criminal Procedure 3.190(b).
The proponent is entitled to an evidentiary hearing at which he or
she must prove the facts giving rise to the claimed immunity by a
preponderance of the evidence.
See Dennis v. State, 51 So. 3d
456, 464 (Fla. 2010); Bretherick v. State, 170 So. 3d 766, 775
(Fla. 2015); State v. Floyd, 186 So. 3d 1013, 1019–21 (Fla. 2016).
As noted earlier, it is well established that the ultimate
disposition of the case after the arrest or detention does not
undermine the existence of probable cause.
Knight, 300 F.3d at
1275; Ferraro, 284 F.3d at 1195-96; Gumbinner, 905 F.2d at 1507.
Because there was probable cause to arrest and detain plaintiff,
the
availability
of
the
Stand
Your
Ground
defense
does
not
undermine probable cause or preclude summary judgment.
(b)
Arguable Probable Cause
Even if there was not probable cause, there was certainly
arguable
probable
cause.
An
officer
- 33 -
could
reasonably
have
believed that probable cause was present to arrest and detain Mapes
for aggravated assault on a law enforcement officer.
E. Count IV – 42 U.S.C. § 1983 False Search Warrant Affidavit
Count IV asserts a claim under 42 U.S.C. § 1983 alleging that
Det.
Murphy
violated
plaintiff’s
Fourth
Amendment
rights
by
falsifying an Affidavit used to obtain a search warrant for her
residence.
(Doc. #56-1, Ex. J.)
Plaintiff alleges that Det.
Murphy intentionally falsified the Affidavit by stating that the
investigation had revealed that plaintiff raised her gun and fired
a round and a deputy returned fire, and that Mapes had been making
suicide threats, when these facts were untrue.
Plaintiff also
alleges that Det. Murphy omitted material facts from the Affidavit,
including that all seven rounds Deputy Hamer fired went through
the bedroom door, and that less than two minutes elapsed between
the officers’ entry into the house and the shooting.
Plaintiff
asserts
from
that
if
this
false
information
is
removed
the
Affidavit there is no probable cause or even arguable probable
cause to search the residence.
Plaintiff further asserts that if
the omitted information is deemed included in the Affidavit, there
is neither probable cause nor arguable probable cause of a crime.
(Doc. #64, pp. 15-16.)
Det.
Murphy
seeks
summary
judgment
because
the
alleged
falsehoods were not made recklessly or intentionally, and even
after removing any alleged falsehoods and adding any omissions,
- 34 -
probable cause (or at least arguable probable cause) existed to
support issuance of the search warrant.
Plaintiff disagrees with
these propositions.
“The Warrant Clause of the Fourth Amendment requires that
warrant applications contain sufficient information to establish
probable cause.”
Cir. 2003).
Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th
“Probable cause to support a search warrant exists
when the totality of the circumstances allows the conclusion that
there is a fair probability that contraband or evidence of a crime
will be found in a particular place.”
United States v. Kapordelis,
569 F.3d 1291, 1310 (11th Cir. 2009).
See also United States v.
Martin, 297 F.3d 1308, 1314 (11th Cir. 2002).
Not
surprisingly,
Constitution
prohibits
the
an
Supreme
officer
Court
from
has
held
making
that
perjurious
the
or
recklessly false statements or omissions in the information put
forth to establish that probable cause.
Franks v. Delaware, 438
U.S. 154, 156, 165–71 (1978); Malley v. Briggs, 475 U.S. 335
(1986).
While this “does not dictate that the statements be
objectively accurate, it does require that they “be ‘truthful’ in
the
sense
that
the
information
put
forth
appropriately accepted by the affiant as true.”
at 1083 (quoting Franks, 438 U.S. at 165).
is
believed
or
Holmes, 321 F.3d
The Franks rule is
limited to cases of perjurious or recklessly false statements or
omissions, and does not apply to negligent misrepresentations or
- 35 -
omissions.
Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994).
Thus, at all relevant times, the law was clearly established that
the Constitution prohibits a police officer from submitting an
application for a search warrant which contains such material false
information or material omissions.
Holmes, 321 F.3d at 1083;
Kapordelis, 569 F.3d at 1309 (citation omitted).
If probable
cause still exists once the misrepresentations are taken out of
the warrant and the omissions are inserted, there is no Franks
violation.
United States v. Capers, 708 F.3d 1286, 1296 (11th
Cir. 2013); United States v. Lebowitz, 676 F.3d 1000, 1010–11 (11th
Cir. 2012).
Thus, qualified immunity will not shield Det. Murphy from
liability for such false statements or omissions if they were
necessary to the probable cause.
Malley, 475 U.S. at 344–45;
Whiting v. Traylor, 85 F.3d 581, 585 n. 5 (11th Cir. 1996); Kelly
v. Curtis, 21 F.3d 1544 (11th Cir. 1994); Jones v. Cannon, 174
F.3d 1271, 1285 (11th Cir. 1999).
Further, an officer is not
entitled to qualified immunity when “the facts omitted ... were
... so clearly material that every reasonable law officer would
have known that their omission would lead to a search in violation
of federal law.”
Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th
Cir. 1997) (quoting Haygood v. Johnson, 70 F.3d 92, 95 (11th Cir.
1995)).
However, Det. Murphy is entitled to qualified immunity
if the search warrant was supported by arguable probable cause
- 36 -
with
the
added
Abercrombie,
or
F.
151
omitted
App’x
material
892,
893
considered.
(11th
Cir.
Brown
2005)
v.
(citing
Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)).
As noted above, the probable cause required to support a
search warrant relates to the fair probability that contraband or
evidence
of
a
crime
will
be
found
in
a
particular
Kapordelis, 569 F.3d at 1310; Martin, 297 F.3d at 1314.
place.
A search
warrant affidavit need not establish probable cause to believe any
particular person committed the crime.
(1)
Who Fired First
Plaintiff
argues
that
the
following
statement
in
Affidavit is false: “Mapes raised the gun and fired a round.
deputy returned fire . . . .”
(Doc. #64, p. 14.)
the
A
While it is now
clear that the statement is false because Mapes did not fire first,
there is no evidence that it was intentionally or recklessly false,
and its deletion from the Affidavit does not negate the existence
of probable cause.
Det. Murphy testified that to the best of his recollection,
the source of the information contained in the Affidavit as to who
shot first after the deputies had identified themselves as law
enforcement officers was a conversation he had with Lieutenant
Ryan Bell, as well as Detective Matthew Sands 10, on the evening of
10
Detective Sands testified that he spoke to Deputies
Lisenbee, Palmese, and Hamer following the incident on the evening
- 37 -
the shooting.
Det. Murphy also had information from his personal
observations at the scene, including the location of plaintiff’s
handgun and the empty shell casing, and the bullet hole behind the
deputies near the ceiling.
Lieutenant Bell had arrived shortly
after the incident and spoke to Deputies Lisenbee, Hamer, and
Palmese.
Lieutenant Bell testified that it was possible he told
Det. Murphy that Mapes shot first, but that he did not recall
speaking with Det. Murphy at all about this case and does not know
where Det. Murphy would have gotten the information that Mapes
shot first.
There is no evidence that the statement Mapes fired first was
known to be false by Det. Murphy when made in the Affidavit, or
that it was a reckless misrepresentation.
While it is now conceded
that the sequence of the shooting was not correct, the physical
evidence and the information provided to Det. Murphy supported
such a statement.
(2)
Plaintiff Was Suicidal
Plaintiff also briefly argues that the following statement in
the Affidavit is false: “[Mapes] had been making suicidal threats.”
Yet LaCasse had informed the operator that her mother was suicidal,
and this information was contained in the CAD report which Det.
Murphy testified he relied upon for information to include in the
of March 23, 2012.
- 38 -
Affidavit.
(Doc. #56-1, Ex. C; Doc. #64-3, p. 60-64.)
Thus,
the statement that plaintiff had been “making suicidal threats”
was not a false or reckless misrepresentation of the facts known
to Det. Murphy at the time.
(3)
Shots Fired Through Door; Duration of Events
Plaintiff asserts that the Affidavit omits the fact that
Deputy Hamer fired all seven shots through the bedroom door and
that less than two minutes elapsed between the officers’ entry
into the house and the shooting.
If the fact that Deputy Hamer
had fired seven rounds through the bedroom door and the short
duration of the event are deemed included in the Affidavit, the
existence of probable cause in not affected.
The search warrant
Affidavit established a reasonable basis to believe there would be
evidence of a crime at the house, no matter how quickly the events
unfolded and how many shots were fired through the door.
The
issue for the search warrant Affidavit wasn’t the guilt of Mapes,
but the existence of probable cause to find evidence of a crime in
the house.
The
Affidavit
contained
probable
cause
to
search
the
residence even after the allegedly false statements are omitted
and the omissions are included.
established.
Therefore no cause of action is
At the very least, there was at least arguable
probable cause in the Affidavit, entitling Det. Murphy to qualified
- 39 -
immunity.
Accordingly, Det. Murphy is entitled to judgment as
to Count IV.
V. Florida State Law Claims Against Deputies
The Court next addresses the state law claims against the
various defendant deputies and Det. Murphy.
A. Count V – State Law Negligence
Count Five asserts a state law claim for negligence against
Deputies Palmese, Lisenbee, and Hamer.
In her Response to the
motion for summary judgment, plaintiff states that this is “a
poorly drafted count sounding in common law negligence against the
Deputies and Plaintiff concedes the claim is already properly
stated against Sheriff Scott.”
(Doc. #63, p. 18.)
Accordingly,
summary judgment is granted as to Count V in favor of all three
defendants.
B. Count VI – Battery
Count VI asserts a state law claim for battery against Deputy
Hamer for using excessive force by shooting Mapes during the home
welfare check.
Deputy Hamer contends that he is entitled to
summary judgment on this claim because his use of force was
reasonable in light of plaintiff’s verbal threats to shoot and her
pointing a firearm at the deputies.
Plaintiff responds that
because there are differing accounts of the events prior to the
shooting, the issue of reasonableness is for the jury to decide.
- 40 -
Pursuant to Florida law, police officers are entitled to a
presumption of good faith in regard to the use of force applied
during a lawful arrest, and officers are only liable for damage
where the force used is “clearly excessive.”
Davis v. Williams,
451 F.3d 759, 768 (11th Cir. 2006) (quoting City of Miami v.
Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996)).
“If excessive
force is used in an arrest, the ordinarily protected use of force
by a police officer is transformed into a battery.”
So. 2d at 47.
Sanders, 672
“A battery claim for excessive force is analyzed
by focusing upon whether the amount of force used was reasonable
under the circumstances.
Law enforcement officers are provided a
complete defense to an excessive use of force claim where an
officer ‘reasonably believes [the force] to be necessary to defend
himself or another from bodily harm while making the arrest.’”
Sanders, 672 So. 2d at 47 (quoting § 776.05(1), Fla. Stat.).
Here, the Court has found that the amount of force used by
Deputy Hamer was not excessive under the Fourth Amendment (supra,
Sec. IV.B(2)).
There is no factual dispute that Deputy Hamer
believed shooting was necessary, but the issue is whether the
amount of force used was reasonable under the circumstances.
Even
when the facts are viewed in light of plaintiff’s version of facts,
it was not clearly excessive.
Viewed in the light most favorable
to plaintiff, Deputy Hamer shot plaintiff when he knew that Mapes
had a gun, told the deputies to leave the house, and had gotten
- 41 -
out of bed and advanced towards the bedroom door where the deputies
were standing.
Thus, Deputy Hamer is entitled to summary judgment
on Count VI.
C. Count VII -
Gross Negligence
Count VII alleges a state law claim of gross negligence
against Deputies Palmese, Lisenbee, and Hamer for their activities
during the welfare check.
In her Response to the motion for
summary judgment plaintiff stated that “[t]he evidence has not
disclosed the actions of Defendants fell outside the scope of their
employment” as to this Count.
(Doc. #63, p. 20.)
Therefore,
summary judgment is entered in favor of the three deputies on Count
VII.
D. Count VIII – Negligent Infliction of Emotional Distress
Count VIII alleges a state law claim of negligent infliction
of emotional distress against Deputies Lisenbee and Hamer for their
conduct during the welfare check.
In her Response to the motion
for summary judgment plaintiff stated that the “[e]vidence has not
revealed the requisite level of bad faith required to sustain this
claim.”
(Doc. #63, p. 20.)
Therefore, summary judgment is
entered in favor of the two deputies on Count VIII.
E. Count IX – Malicious Prosecution
In Count IX, plaintiff asserts a state law claim for malicious
prosecution against Det. Murphy for arresting her on March 29,
2012 without probable cause and charging her with two counts of
- 42 -
aggravated assault on a law enforcement officer.
Det. Murphy
seeks summary judgment because a criminal prosecution was never
initiated and plaintiff’s arrest was supported by probable cause.
Plaintiff responds that being arrested was sufficient to start the
criminal proceedings and that there was no probable cause for the
arrest.
To
prevail
on
a
Florida
malicious
prosecution
claim,
plaintiff must establish the following elements:
(1) an original criminal or civil judicial
proceeding against the present plaintiff was
commenced or continued; (2) the present
defendant was the legal cause of the original
proceeding against the present plaintiff as
the defendant in the original proceeding; (3)
the termination of the original proceeding
constituted a bona fide termination of that
proceeding in favor of the present plaintiff;
(4) there was an absence of probable cause for
the original proceeding; (5) there was malice
on the part of the present defendant; and (6)
the plaintiff suffered damage as a result of
the original proceeding.
Debrincat v. Fischer, --- So. 3d ----, 2017 WL 526508, at *2 (Fla.
Feb. 9, 2017) (quoting Alamo Rent–A–Car, Inc. v. Mancusi, 632 So.
2d 1352, 1355 (Fla. 1994)).
1234.
See also Kingsland, 382 F. 3d at
“The absence of any one of these elements will defeat a
malicious prosecution action.”
Kalt v. Dollar Rent-A-Car, 422 So.
2d 1031, 1032 (Fla 3d DCA 1982).
The existence of probable cause
will defeat a claim for malicious prosecution because lack of
probable cause is a necessary element of the claim.
- 43 -
Alamo Rent–
A–Car, 632 So. 2d at 1355; Durkin v. Davis, 814 So. 2d 1246, 1248
(Fla.
2d
DCA
2002)
(requiring
plaintiff
asserting
malicious
prosecution claim to establish “an absence of probable cause for
the original proceeding”).
Under Florida law, the commencement of criminal judicial
proceeding
requirement
prosecution.
is
satisfied
by
either
an
arrest
or
Valladares v. Bank of Am. Corp., 197 So. 3d 1, 8
(Fla. 2016) (“Valladares lacked a cause of action under a malicious
prosecution theory because he was never arrested, nor was he
prosecuted.”); Levine v. Hunt, 932 So. 2d 1292, 1293 (Fla. 2d DCA
2006)(“an arrest without further prosecution can constitute a
basis for malicious prosecution” so that “the State Attorney’s
subsequent declination to prosecute did not affect, as a matter of
law, the presence of the first element.”); De Rosa v. Rambosk, 732
F. Supp. 2d 1285, 1302 (M.D. Fla. 2010).
Defendant’s argument
that a malicious prosecution cause of action requires more than
just an arrest is therefore rejected.
The critical inquiry in this malicious prosecution action is
whether the arrest was supported by probable cause.
Probable
cause exists when the circumstances are sufficient to cause a
reasonably cautious person to believe that the person accused is
guilty of the offense charged.
928–29 (Fla. 1st DCA 2012).
Lewis v. Morgan, 79 So. 3d 926,
The fact that the arrestee was never
prosecuted, or the charges were dropped, or he was acquitted of
- 44 -
any offense stemming from the arrest, does not impact the existence
of probable cause.
Phelan v. City of Coral Gables, 415 So. 2d
1292, 1294 (Fla. 3d DCA 1982)(“The determinative factor as to the
existence
of
prosecution
probable
action
is
cause
whether
reasonable prospect of success.
as
an
the
element
suit
was
of
a
malicious
brought
without
Acquittal or dismissal of the
charges, as here, does not by itself establish improbability of
the suit.”)
The Florida Supreme Court has explained that “[i]n
an action for malicious prosecution, the question of probable cause
is a mixed question of law and fact.
When the facts relied on to
show probable cause are in dispute, their existence is a question
of fact for the determination of the jury; but their legal effect
when found or admitted to be true, is for the court to decide as
a question of law.”
Mem’l Hosp.-W. Volusia, Inc. v. News–Journal
Corp., 729 So.2d 373, 381 (Fla. 1999).
See also Kingsland, 382
F.3d at 1235.
Here, as discussed supra Sec. IV.D(3)(a), the totality of the
circumstances provided a sufficient basis for Det. Murphy to
believe that an aggravated assault on law enforcement had been
committed by Mapes, and therefore Det. Murphy had probable cause
to arrest and detain Mapes.
Therefore, Det. Murphy’s motion for
summary judgment as to Count IX is granted.
- 45 -
F. Count X – Intentional Infliction of Emotional Distress
In
Count
X,
plaintiff
asserts
a
state
law
claim
for
intentional infliction of emotional distress (IIED) against Det.
Murphy for obtaining the search warrant with false and omitted
information, and thereafter conducting an intrusive search of her
home; telling hospital staff that plaintiff should be Baker Acted
based upon her conduct during the welfare check; and arresting
plaintiff to cover up the deficient welfare check by the other
officers.
Plaintiff states that the gist of this claim is that
Det. Murphy’s conduct was intentional, extreme, and outrageous in
holding plaintiff responsible for the negligent conduct of the
deputies who entered her home.
Det.
Murphy
seeks
(Doc. #64, p. 19.)
summary
judgment
because
plaintiff’s
allegations fail to meet Florida’s high threshold standard to
impose liability.
conclude
that
Plaintiff responds that a reasonable jury could
Det.
Murphy’s
conduct
satisfies
the
Florida
evidentiary standard.
Florida courts have a very high standard when evaluating
whether conduct is sufficiently outrageous to establish an IIED
claim.
A plaintiff must show that the defendant’s intentional
conduct was “so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.”
Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla.
- 46 -
1985).
See also Gallogly v. Rodriguez, 970 So. 2d 470, 471 (Fla.
2d DCA 2007).
inflict
Even tortious or criminal intent, or intent to
emotional
distress,
McCarson, 467 So. 2d at 279.
objective
basis;
the
standing
is
not
enough.
The conduct must be evaluated on an
plaintiff’s
conduct does not control.
alone,
subjective
response
to
the
Whether the alleged conduct satisfies
this high standard is a legal question “for the court to decide as
a matter of law.”
Vance v. S. Bell Tel. & Tel. Co., 983 F.2d
1573, 1575 n.7 (11th Cir. 1993) (quoting Baker v. Fla. Nat’l Bank,
559 So. 2d 284, 287 (Fla. 4th DCA 1990)).
See also Liberty Mut.
Ins. Co. v. Steadman, 968 So. 2d 592, 595 (Fla. 2d DCA 2007);
McCarson, 467 So. 2d at 278-79.
Disputed facts, however, are
viewed in the light most favorable to the party not moving for
summary judgment.
In situations involving government authority,
courts recognize that “[t]he extreme and outrageous character of
the conduct may arise from an abuse by the actor of a position”
and
consequently
“give
greater
weight
to
the
fact
that
the
defendants had actual or apparent authority over [the plaintiff]
as police officers.”
Gallogly v. Rodriguez, 970 So. 2d 470, 472
(Fla. 2d DCA 2007).
Here, viewing the facts in favor of plaintiff, the Court finds
as
a
matter
of
law
that
Det.
Murphy’s
conduct
was
not
so
outrageous, atrocious, or utterly intolerable as to constitute
IIED.
Det. Murphy was not present for the welfare check, and his
- 47 -
conduct was limited to the post-event investigation.
false
information
is
redacted
and
the
omitted
Even if the
evidence
is
considered, there is still probable cause in the search warrant
Affidavit.
Plaintiff also claims that Det. Murphy used his apparent
authority as a law enforcement officer to falsely claim to hospital
staff that plaintiff should be “Baker Acted” 11 because she was
“waving a gun around” and was ultimately shot by law enforcement.
Plaintiff states that Det. Murphy made these claims to hospital
staff before he had interviewed any of the deputies at the scene.
In this regard, Det. Murphy testified that he does not recall
requesting that Mapes be Baker Acted, and plaintiff has pointed to
no evidence to support her claim that Det. Murphy told anyone at
the hospital that plaintiff should be Baker Acted.
Therefore, any
claim for emotional distress on this ground fails.
Finally, plaintiff’s argument that Det. Murphy arrested her
in order to cover up the deficient actions of the deputies is
unavailing.
As discussed supra, plaintiff’s arrest for aggravated
assault on a law enforcement officer was supported by probable
11
The Florida Mental Health Act of 1971 is commonly known as
the “Baker Act.”
Fla. Stat. § 394.451 et seq.
The Baker Act
allows the voluntary and involuntary institutionalization and
examination of an individual suffering from a mental illness and
who is considered a harm to self, a harm to others or is selfneglectful.
Id. at §§ 394.4625–467.
It is not clear from the
record whether plaintiff was every Baker Acted due to her actions
stemming from this incident.
- 48 -
cause, or at a minimum arguable probable cause.
Viewing the
evidence in the light most favorable to plaintiff, the Court finds
that a reasonable jury could not find that Det. Murphy’s conduct
in arresting plaintiff was legally impermissible or was otherwise
so extreme and indecent as to warrant tort damages under Florida
law.
Therefore, Det. Murphy is entitled to summary judgment as
to Count X.
VI. Claims against Sheriff Mike Scott in Official Capacity
The Court now addresses the two counts against Sheriff Scott
in his official capacity.
A. Count XI – Negligence
Supervise Deputies
for
Failure
to
Properly
Train
and
In Count XI, plaintiff asserts a Florida state law negligence
claim against Sheriff Mike Scott in his official capacity for
failure
to
properly
train
and
supervise
his
deputies
in
the
execution of welfare checks and other law enforcement duties in
which they were engaged.
Plaintiff’s Amended Complaint (Doc. #52)
alleges that Sheriff Scott had a duty to properly train and
supervise the deputies, and that he breached that duty by failing
to train and supervise them in the following areas:
a. When a welfare check exception to the warrant
requirement is no longer permissible under the Fourth
Amendment;
b. When consent to be inside a resident without a warrant
and without consent is no longer permissible under
the Fourth Amendment;
- 49 -
c. What steps must be taken before deadly force is
reasonable during a welfare check, including orders
and warnings;
d. When the use of excessive deadly force is necessary;
e. Constitutional limitations on the use of excessive
deadly force;
f. Use of deadly force as a last resort after warnings
have failed;
g. Requirements
Amendment.
of
probable
cause
under
the
Fourth
(Doc. #52, ¶ 179(a)-(g).) 12
Sheriff Scott argues he is entitled to sovereign immunity as
to this claim.
Plaintiff responds that she is challenging the
manner in which Sheriff Scott’s preexisting policies and programs
were
implemented,
which
is
precluding sovereign immunity.
an
operational-level
function,
The language in Count XI, however,
does not support plaintiff’s argument.
A claim against a Florida county sheriff in his official
capacity is considered a claim against the county he represents.
Cook v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1115 (11th Cir.
2005); Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405
12
While Count XI also contains a failure to supervise
component, it is clear that such a claim is barred as a matter of
Florida law. A negligent failure to supervise claim requires that
the conduct of the deputies have been committed outside the scope
of their employment. City of Boynton Beach v. Weiss, 120 So. 3d
606, 610 (Fla. 4th DCA 2013). All the evidence in this case
establishes that the conduct of the deputies was committed within
the scope of their employment as deputy sheriffs.
- 50 -
F.3d 1298, 1305 (11th Cir. 2005).
Under Florida law, counties are
political subdivisions entitled to sovereign immunity to the same
extent as the state.
Fla. Stat. § 768.28(2).
“Sovereign immunity
is the privilege of the sovereign not to be sued without its
consent.”
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S.
247, 253 (2011).
“In Florida, sovereign immunity is the rule,
rather than the exception.”
Pan–Am Tobacco Corp. v. Dep’t of
Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla. Const. art. X, §
13).
Florida
has
waived
its
immunity,
however,
“under
circumstances in which the state or agency or subdivision, if a
private person, would be liable to the claimant, in accordance
with the general laws of this state.”
Fla. Stat. § 768.28(1).
An exception to this waiver of sovereign immunity exists,
however,
if
the
challenged
acts
of
the
state
agent
were
“discretionary” governmental acts rather than merely “operational”
ones.
Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th
Cir. 2001) (citing Dep’t of Health & Rehab. Servs. v. Yamuni, 529
So. 2d 258, 260 (Fla. 1988)); Commercial Carrier Corp. v. Indian
River County, 371 So. 2d 1010, 1017-22 (Fla. 1979).
Florida’s
discretionary
sovereign
function
exception
to
the
waiver
of
immunity applies when “the governmental act in question involved
an exercise of executive or legislative power such that, for the
court to intervene by way of tort law, it inappropriately would
entangle itself in fundamental questions of policy and planning.”
- 51 -
Henderson v. Bowden, 737 So. 2d 532, 538 (Fla. 1999) (citation
omitted); Kaisner v. Kolb, 543 So. 2d 732, 736–37 (Fla. 1989).
Discretionary functions include functions such as “development and
planning of governmental goals and policies.”
1266.
Lewis, 260 F.3d at
“An ‘operational’ function, on the other hand, is one not
necessary to or inherent in policy or planning that merely reflects
a secondary decision as to how those policies or plans will be
implemented.”
Id. (citation omitted).
An act is discretionary where all of the following conditions
have been met: (1) the challenged act, omission, or decision
necessarily involves a basic governmental policy, program, or
objective;
(2)
the
questioned
act,
omission,
or
decision
is
essential to the realization or accomplishment of that policy,
program, or objective as opposed to one which would not change the
course or direction of the policy, program, or objective; (3) the
act, omission, or decision requires the exercise of basic policy
evaluation, judgment, and expertise on the part of the governmental
agency
involved;
possesses
the
and
(4)
requisite
the
governmental
constitutional,
agency
statutory,
involved
or
lawful
authority and duty to do or make the challenged act, omission, or
decision.
Lewis, 260 F.3d at 1264 (citing Kaisner, 543 So.2d at
736); Commercial Carrier, 371 So. 2d 1010.
Taking the allegations in a light most favorable to plaintiff,
Count XI challenges only the contents of the Sheriff’s training of
- 52 -
his officers, including what steps must be taken before deadly
force is reasonable, the constitutional limitations on deadly
force, and when entry into a home is justified to conduct a welfare
check. 13
(Doc. #52, ¶ 179(a)-(g).)
program are discretionary.
The contents of a training
Although plaintiff’s Response seems
to challenge deputy conduct (Doc. #65), that is not the allegations
plaintiff has made in Count XI of her Amended Complaint.
Here, as in Lewis v. City of St. Petersburg, the challenged
actions of Sheriff Scott regarding the creation or adoption of a
program or policy to conduct a welfare check, and his deputies’
training under such a program and policy, is clearly an exercise
of government discretion regarding fundamental questions of policy
and planning.
260 F.3d at 1266 (11th Cir. 2001).
See also Mercado
v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005).
because
Mapes
challenges
the
reasonableness
of
basic
Thus,
policy
decisions made by the Sheriff Scott, the discretionary function
exception to the waiver of sovereign immunity applies and her claim
is barred.
13
Count XI states, in part: “At all times material hereto,
Scott had a duty to properly train and supervise the deputies to
insure [sic] they performed community caretaker operations and law
enforcement duties in compliance with the Constitution of the
United States as well as the LCSO’s own policies and procedures to
ensure that a person’s Fourth Amendment rights were not violated.”
(Doc. #53, ¶ 178.)
- 53 -
B. Count XII – Negligence By Deputies and Det. Murphy Attributed
to Sheriff Scott
In Count XII, plaintiff asserts a Florida state law negligence
claim
against
Sheriff
Mike
Scott
in
his
official
capacity.
Plaintiff argues that Sheriff Scott, acting through his employees,
owed a special duty of care to her during the welfare check. (Doc.
#52, ¶ 183.)
The count further alleges that the Sheriff, through
his deputies, breached his duty of care to plaintiff when his
deputies failed to exercise reasonable care in conducting the
welfare check, including their failure to comply with her order to
leave her home after it was apparent she was not about to commit
suicide and was not in need of emergency assistance.
185.)
(Id., ¶
Furthermore, plaintiff alleges that Det. Murphy failed to
exercise reasonable care when he asked for a search warrant and
arrested Mapes without probable cause.
(Id.)
Sheriff Scott argues that he is entitled to sovereign immunity
because, although
decisions
regarding
typical
law
enforcement
activities are generally operational, the Florida Supreme Court
has created a clear exception for law enforcement actions in
emergency situations, citing City of Pinellas Park v. Brown, 604
So. 2d 1222, 1226-27 (Fla. 1992).
Sheriff Scott submits that the
situation faced by the deputies here involved the type of riskbalancing emergency situation that requires special deference to
their actions.
Plaintiff responds that performing a welfare
- 54 -
check
is
an
operational-level
function
that
involves
the
implementation of a pre-existing policy or program, for which
liability is not barred by sovereign immunity.
The Sheriff does not argue that his deputies did not owe
plaintiff a duty of care during the welfare check.
See Wallace,
3 So. 3d at 1045-56 (finding a common law duty of care if a “safety
check”
is
undertaken,
it
must
be
performed
non-negligently).
Rather, the Sheriff raises the separate question of whether, given
a duty of care, he is nonetheless protected by sovereign immunity.
The general rule is clearly “no,” but the Florida Supreme Court
has articulated an exception for certain emergency situations
under which the Sheriff seeks shelter.
The Florida Supreme Court has discussed a law enforcement
emergency rule in three cases, but has never applied it.
See
Kaisner v. Kolb, 543 So. 2d 732, 738 n.3 (Fla. 1989); City of
Pinellas Park 604 So. 2d 1222, 1227 (Fla. 1992); Rodriguez v.
Miami-Dade County, 117 So. 3d 400, 407 (Fla. 2013).
Beginning
with a footnote in Kaisner, the Florida Supreme Court stated:
We emphasize, however, that the facts of this
case present no countervailing interests, such
as the safety of others. The result we reach
today would not necessarily be the same had
the officers in this instance been confronted
with an emergency requiring swift action to
prevent harm to others, albeit at the risk of
harm to petitioners.
The way in which
government agents respond to a serious
emergency is entitled to great deference, and
may in fact reach a level of such urgency as
- 55 -
to be considered
operational.
543 So. 2d at 738 n.3.
discretionary
and
not
In City of Pinellas Park, the Florida
Supreme Court outlined what types of cases generally fall within
the Kaisner exception:
the serious emergency must be one thrust upon
the police by lawbreakers or other external
forces, that requires them to choose between
different risks posed to the public. In other
words, no matter what decision police officers
make, someone or some group will be put at
risk; and officers thus are left no option but
to choose between two different evils. It is
this choice between risks that is entitled to
the protection of sovereign immunity in
appropriate cases, because it involves what
essentially
is
a
discretionary
act
of
executive decision-making.
604 So. 2d 1222, 1227 (Fla. 1992) (emphasis added).
The Court
also stressed, however, that “this does not mean that state agents
can
escape
liability
substantially
if
contributed
they
to
themselves
the
emergency
have
through
created
or
their
own
negligent acts or failure to adhere to reasonable standards of
public safety.”
In
2013,
Id.
the
Florida
Supreme
Court
examined
the
police
emergency exception, recognizing its “extremely limited scope.”
Rodriguez v. Miami-Dade County, 117 So. 3d 400, 407 (Fla. 2013).
The court recognized that “this Court has never had the occasion
to determine under what circumstances, if any, the police emergency
exception would constitute a planning-level decision under the
- 56 -
[four-part] Commercial Carrier test so as to render the responsible
governmental
circumstances
entity
immune
surrounding
from
whether
liability,
the
as
responding
negligent under the totality of the circumstances.”
opposed
police
to
were
Id. at 408.
Because the circumstances of that case did not fall under the
emergency exception outlined in Pinellas Park and Kaisner, the
Court did not reach the viability of the doctrine.
Id.
Rather,
the Court found that disputed issues of fact remained regarding
whether the police created or substantially contributed to the
shooting through negligent acts, and whether they perceived that
they were facing a serious threat that required the use of deadly
force; therefore, the court affirmed the trial court’s denial of
summary judgment.
Id.
In applying the four questions outlined in Commercial Carrier
to Count XII, the Court finds that there are at least material
disputed facts as to whether the deputies’ activities in conducting
the welfare check were operational in nature; therefore, sovereign
immunity does not bar this claim.
The manner in which the officers
conducted the welfare check is not a policy-making or planning
decision that is protected from tort liability. Although the
initial warrantless entry was lawful, triable issues of fact exist
as to whether the deputies exercised reasonable care in carrying
out the welfare check, which increased the risk of harm to Mapes,
and
whether
Mapes’
actions
were
- 57 -
a
reasonably
foreseeable
consequence of the negligent acts or omissions of the deputies.
Foreseeability is typically a question for the finder of fact.
See Cook, 402 F.3d at 1120-21 (whether an intervening cause is
foreseeable or reasonably foreseeable if properly left to the trier
of fact for resolution).
On the other hand, there are not such material disputed issues
as to the investigation conducted by Det. Murphy.
His conduct was
supported by probable cause and as a matter of law does not support
any negligence claim against the Sheriff.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Defendant Murphy’s Motion for Summary Judgment (Doc.
#56) is GRANTED.
2.
Defendant Scott’s Motion for Summary Judgment (Doc. #57)
is GRANTED as to Count XI, GRANTED as to that portion of Count XII
involving the conduct of Detective William Murphy, and DENIED as
to the remainder of Count XII.
3.
Defendants Hamer, Lisenbee, and Palmese’s Motion for
Summary Judgment (Doc. #59) is GRANTED.
DONE and ORDERED at Fort Myers, Florida, this __5th__ day of
April, 2017.
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Copies:
Counsel of Record
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