Hutto v. Fernandina Beach Police Department et al
Filing
82
ORDER granting 54 Defendant City of Fernandina Beach's Motion for summary judgment; granting 55 Defendant Evatt's Motion for summary judgment; granting 56 Defendant Benton's Motion for summary judgment; granting 57 Defendan t Douglass's Motion for summary judgment; granting 58 Defendant Hepler's Motion for summary judgment; denying 61 Plaintiff's Motion to Compel response to non-party subpoena; denying as moot 63 Plaintiff's Motion to extend time; granting 64 Plaintiff's request for judicial notice; directing the Clerk to enter judgment in favor of Defendants, terminate any pending motions, and close the case. Signed by Judge Brian J. Davis on 3/7/2019. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DENNIS T. HUTTO,
Plaintiff,
v.
Case No. 3:17-cv-461-J-39MCR
FERNANDINA BEACH POLICE
DEPARTMENT, et al.,
Defendants.
________________________________
ORDER
I. Status
Plaintiff Dennis Hutto is proceeding in this action on a pro
se
Amended
exhibits
Civil
(Docs.
Rights
19-1
unconstitutional
Complaint
through
arrest,
(Doc.
19-19).1
search
and
19;
Complaint)
Plaintiff
with
“alleges
an
and
the
seizure,
unconstitutional denial of [his] right to due process.” Complaint
at 1. His claims stem from his arrest and the seizure of his truck
on December 23, 2014, in connection with a reported hit-and-run
accident. Id. at 3-4. After the dismissal of Defendant Chief James
Hurley
(Doc.
47),
the
remaining
Defendants
are
the
City
of
Fernandina Beach (the City) and four officers of the Fernandina
Beach Police Department (FBPD): Sgt. Hepler, Detective William B.
The Court will refer to the Complaint exhibits as “Compl. Ex.”
followed by the corresponding letter, “A” through “R,” (e.g.,
“Compl. Ex. A”) and the page number.
1
Evatt,
Officer
M.
Douglass,
and
Officer
Richie
Benton
(collectively, “the Officers”).
Before
the
Court
are
three
motions
filed
by
Plaintiff:
Plaintiff’s Motion to Compel Response to Non-Party Subpoena (Doc.
61; Motion to Compel), Plaintiff’s Motion for Extension of Time
(Doc. 63; Extension Motion), and Plaintiff’s Request for Judicial
Notice
(Doc.
64;
Judicial
Notice
Motion)
(collectively,
“Plaintiff’s Motions”). Also before the Court are Defendants’
motions for summary judgment (collectively, “Defense Motions”).
II. Plaintiff’s Motions
In his Motion to Compel, Plaintiff seeks an order compelling
Sherry Daniel of Daniel Bail Bonds to respond to a subpoena (Doc.
61-2; Subpoena). See Motion to Compel at 1. Plaintiff states the
“subpoena was served in ‘good faith.’” See id. at 2. However,
Plaintiff has not shown proof of service as required under Rule
45(b). For instance, Plaintiff does not show the “date and manner
of service,” and he does not provide evidence that a person “who
is at least 18 years old and not a party” delivered the subpoena
to the recipient. See Fed. R. Civ. P. 45(b)(1), (4). In fact, the
“Proof of Service” portion of the Subpoena is blank. See Subpoena
at 3.
Accordingly, Plaintiff’s Motion to Compel is due to be
denied.
In his Extension Motion, Plaintiff asks for an extension of
time before the Court rules on the Defense Motions to afford him
2
an opportunity to supplement the Nassau County criminal docket in
case number 2014-CF-890 (“Nassau County Case”).2 See Extension
Motion at 1-2. A review of the Nassau County docket shows the
transcripts have been added.3 Thus, Plaintiff’s Extension Motion
is due to be denied as moot.
Finally, in his Judicial Notice Motion, Plaintiff asks the
Court to take judicial notice of transcripts of proceedings in the
Nassau County Case. See Judicial Notice Motion at 1-2. Defendants
do
not
object
transcripts
to
filed
the
in
Court
the
taking
Nassau
judicial
County
notice
Case.
of
the
Accordingly,
Plaintiff’s Judicial Notice Motion is due to be granted, and the
Court takes judicial notice of the following transcripts filed in
the Nassau County Case: (1) the deposition transcript of Defendant
Benton (Doc. 64-1; Benton Depo.); (2) the transcript of a hearing
on a motion to suppress, held on April 21, 2016 (Doc. 64-2;
Suppression Hr’g Tr.); (3) the transcript of a hearing on a motion
to dismiss, held on August 18, 2016 (Doc. 64-3; Dismissal Hr’g
To demonstrate the Officers violated his constitutional rights,
Plaintiff relies in part on transcripts of proceedings in the
criminal case against him. See Extension Motion at 1-2.
2
See
Nassau
County
Case
docket,
available
at
https://www.civitekflorida.com/ocrs/app/caseinformation.xhtml?qu
ery=pEDPP2uzq_TzhhXpXrg-gK6ME1KX2-nsNh89Phpq8Y&from=caseSearchTab(last visited March 4, 2019).
3
3
Tr.); and (4) the deposition transcript of a witness, Brandi Nelms
(Doc. 64-4; Nelms Depo.).
III. Defense Motions
Defendants have filed separate motions for summary judgment:
(1) the City’s Motion for Summary Judgment (Doc. 54; City Motion);
(2) Evatt’s Motion for Summary Judgment (Doc. 55; Evatt Motion);
(3) Benton’s Motion for Summary Judgment (Doc. 56; Benton Motion);
(4) Douglass’ Motion for Summary Judgment (Doc. 57; Douglass
Motion); and (5) Hepler’s Motion for Summary Judgment (Doc. 58;
Hepler Motion).
The Court previously advised Plaintiff of the provisions of
Rule 56, Federal Rules of Civil Procedure (Rule(s)) and notified
him that the granting of a motion to dismiss or a motion for
summary judgment would represent a final adjudication of this case,
which may foreclose subsequent litigation on the matter. See
Summary Judgment Notice (Doc. 59). Plaintiff responded to each of
the Defense Motions as follows: (1) Response in Opposition to the
City Motion (Doc. 65; Response to City Motion); (2) Response in
Opposition to the Evatt Motion (Doc. 66; Response to Evatt Motion);
(3) Response in Opposition to the Benton Motion (Doc. 67; Response
to Benton Motion); (4) Response in Opposition to the Douglass
Motion (Doc. 68; Response to Douglass Motion); and (5) Response in
Opposition to the Hepler Motion (Doc. 69; Response to Hepler
4
Motion)
(collectively,
“Responses”).4
With
leave
of
Court,
Defendants filed replies to Plaintiff’s Responses (Docs. 74, 75).
The Defense Motions are ripe for this Court’s review.
IV. Summary Judgment Standard
Under Rule 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Rule 56(a). The record to be considered on a motion for
summary
judgment
may
include
“depositions,
documents,
electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials.”
Rule 56(c)(1)(A).
An issue is genuine when the evidence is such
that a reasonable jury could return a verdict in favor of the
nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co.,
9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence
in support of the non-moving party’s position is insufficient to
defeat a motion for summary judgment.” Kesinger ex rel. Estate of
Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004)
Defendants and Plaintiff support their filings with exhibits.
For sake of clarity, the Court will introduce the exhibits and
document numbers when relevant to the Court’s discussion and
analysis. Page numbers reflect the pagination assigned by the
Court’s CM/ECF docketing system, which are found at the top of
each page.
4
5
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)).
The party seeking summary judgment bears the initial burden
of demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined at
trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). “When a moving party has discharged its burden, the
non-moving party must then go beyond the pleadings, and by its
own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Jeffery v. Sarasota White
Sox,
Inc.,
64
F.3d
590,
593–94
(11th
Cir.
1995)
(internal
citations and quotation marks omitted).
Substantive law determines the materiality of facts, and
“[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248. In determining
whether summary judgment is appropriate, a court “must view all
evidence and make all reasonable inferences in favor of the party
opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918,
921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v. Banca
Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
V. Facts
Plaintiff alleges Defendants Hepler, Douglass, and Benton
6
arrested him and seized his blue Ford F150 on December 23, 2014,
following the report of a hit-and-run accident in Fernandina Beach.
Complaint at 4.5 Defendant Benton, in his affidavit,6 avers he
reported to the scene of the accident, a Publix supermarket parking
lot. See Benton Affidavit ¶ 3. Defendant Benton interviewed a
Publix employee, Cody Evans, who reported the accident. Mr. Evans
reported he observed a “green F150 truck” hit two cars while
attempting to pull out of a parking space. Id. ¶ 4. Mr. Evans also
told Defendant Benton he had been “struck” by the truck and
sustained minor injuries. See Benton Depo. at 7; Suppression Hr’g
Tr. at 22. While observing the truck driver’s attempts to pull out
of the parking space, Mr. Evans took a photo7 of the rear of the
truck, which he provided to Defendant Benton. See Benton Affidavit
¶ 5. The photo captured the rear license plate, see Truck Photo at
1, and Defendant Benton relayed the license plate number “to
dispatch.” Benton Affidavit ¶ 5.
Based on the license plate number, FBPD officers identified
the truck’s owner as Plaintiff. Defendants Hepler and Douglass
See Stallworth v. Tyson, 578 F. App’x 948, 950 (11th Cir. 2014)
(citations omitted) (“The factual assertions that [Plaintiff] made
in his amended complaint should have been given the same weight as
an affidavit, because [Plaintiff] verified his complaint with an
unsworn written declaration, made under penalty of perjury, and
his complaint meets Rule 56's requirements for affidavits and sworn
declarations.”).
5
6
See (Docs. 54-7, 56-1, 57-2, 58-2; Benton Affidavit).
7
See (Docs. 54-4, 56-2, 57-3, 58-3; Truck Photo).
7
aver
in
their
affidavits8
that
they
traveled
separately
to
Plaintiff’s residence to investigate. See Hepler Affidavit ¶ 4;
Douglass
Affidavit
¶
4.
Upon
their
arrival
to
Plaintiff’s
residence, both Defendants Hepler and Douglass touched the hood of
the truck, and they “noted it to be warm,” which they concluded
suggested the truck had been driven recently. See Hepler Affidavit
¶ 5; Douglass Affidavit ¶ 7. Defendants Hepler and Douglass
explained to Plaintiff the basis for the investigation and asked
Plaintiff to step outside the residence, which Plaintiff did. See
Hepler Affidavit ¶ 7; Douglass Affidavit ¶ 5.
In his affidavit9 and in his testimony at the Dismissal
Hearing, Plaintiff acknowledges he informed the officers the truck
parked in his driveway belonged to him. See Plaintiff Affidavit at
3; Dismissal Hr’g Tr. at 7. However, he stresses, his truck is
blue, not green. Plaintiff Affidavit at 1-2. Plaintiff and his
neighbor, Brandi Nelms, informed Defendants Hepler and Douglass
Plaintiff’s truck had not left the driveway all day and Plaintiff
could not have driven the truck because he did not have the keys.
Id. at 3.
At her deposition, Ms. Nelms testified under oath she lived
in the trailer directly next to Plaintiff’s, and she claimed to
have been home all day on December 23, 2014, watching movies. See
See (Docs. 54-5, 56-3, 57-4, 58-1; Hepler Affidavit, Docs. 546, 56-4, 57-1, 58-4; Douglass Affidavit).
8
9
(Docs. 65-2, 66-2, 67-2, 68-2, 69-2; Plaintiff Affidavit).
8
Nelms Depo. at 6, 7, 14. She recalled seeing officers arrive and
said
one
of
them
questioned
her
about
the
truck.
Ms.
Nelms
testified the officer asked her if she saw the truck leave the
yard that day, and she responded, “no, sir, I haven’t. And—well,
you know, anything’s possible but I know that I never saw it not
in the driveway, I never seen it leave, I never heard it crank up,
and I could always hear it crank in the house because it’s right
there.” Id. at 14. She further testified she knew Plaintiff did
not have the keys to his truck in his possession on the day he was
arrested. Id. at 21.10 Ms. Nelms described the color of the truck
as blue with some gray. Id.
While still at Publix, Defendant Benton learned the owner of
the truck had been located. He then drove Mr. Evans to Plaintiff’s
residence, and Mr. Evans positively identified Plaintiff as the
driver of the truck involved in the hit-and-run accident. See
Benton Affidavit ¶¶ 3, 6; Hepler Affidavit ¶ 7; Douglass Affidavit
¶ 6. In his deposition in the Nassau County Case, Defendant Benton
testified
that
when
he
arrived
at
Plaintiff’s
residence,
he
recognized the truck, with “that same tag number” shown in the
picture “backed into the driveway.” Benton Depo. at 12.
According to the arrest and booking report, Plaintiff was
Ms. Nelms did not testify to informing Defendants Helper and
Douglass, on the day of the arrest, she knew Plaintiff did not
have the keys. However, as the non-moving party, Plaintiff is
entitled to have all reasonable inferences and factual disputes
construed in his favor. See Haves, 52 F.3d at 921. Defendant Hepler
acknowledges Plaintiff denied having possession of the keys. See
Hepler Affidavit ¶ 6.
10
9
arrested after Mr. Evans positively identified him, and his truck
was seized because “a search of [his] driver’s license status
revealed that [it was] suspended and he [was] considered a Habitual
Traffic Violator.” See Compl. Ex. A at 3. The impound report notes
minor physical damage to the truck, including scuff marks and a
dent in the front fender on the driver’s side, and indicates the
truck’s color is “green.” Id. at 4. Plaintiff was charged with
misdemeanor and felony hit-and-run, driving on a suspended license
as a habitual traffic offender, and reckless driving. Id. at 2.
The charges against Plaintiff were dismissed on October 27, 2016.
See Complaint at 7. However, Plaintiff’s truck was never returned
to him. Id. at 8.
After Plaintiff’s arrest, on January 6, 2015, he received a
letter from Defendant Evatt informing him the FBPD initiated
forfeiture
proceedings
Contraband
Forfeiture
against
Act
his
(FCFA),
truck
Florida
under
the
Florida
Statutes
section
932.703(2)(a). Id. at 4. Plaintiff sent numerous letters to both
Defendant Evatt and the Nassau County courts to pursue his rights
under the FCFA. Id. at 5. Plaintiff discovered in February 2015
that no forfeiture case had been opened involving his truck, and
on March 6, 2015, Defendant Evatt hand-delivered to Plaintiff an
undated letter “informing [Plaintiff] that FBPD was no longer
seeking to seize his truck and that . . . his truck had been
released to a towing company back on January 22, 2015.” Id. at 5,
6. Plaintiff testified at a dismissal hearing in the Nassau County
10
Case that he was unable to locate his truck after its release to
the towing company. See Dismissal Hr’g Tr. at 19. Defendant Evatt
similarly has no knowledge of “what happened to the truck after it
left the custody of the FBPD.” See Evatt Affidavit ¶ 14.
VI. Plaintiff’s Claims for Relief
Plaintiff asserts Defendants’ actions resulted in the loss of
“his truck, two homes, with all their contents, and his quality of
life.” Complaint at 8. As relief, Plaintiff seeks the cost of
litigation, declaratory relief, and compensatory damages. Id. at
10-11.
Plaintiff’s claims against Defendants Hepler, Douglass, and
Benton
(“the
Investigating
Officers”)
are
based
on
their
involvement in the investigation of the hit-and-run accident.
Plaintiff states the Investigating Officers unlawfully and without
probable cause arrested him in violation of the Fourth Amendment.
Id. at 8. Further, he claims the Investigating Officers violated
his due process rights under the Sixth and Fourteenth Amendments
by “willfully suppressing and omitting the exculpatory testimony
of [a witness].” Id. Plaintiff asserts Defendant Evatt, as the
property officer for FBPD, violated his “Sixth and Fourteenth
Amendment rights to access to favorable evidence and due process”
when Defendant Evatt disposed of his truck. Id. at 9.
Finally, Plaintiff asserts the City violated his rights under
the Fourth and Fourteenth Amendments for two reasons. First,
Plaintiff alleges he was arrested under the authority of a mutual
11
aid agreement (MAA) between the FBPD and Nassau County Sheriff’s
Office (NCSO), which he contends the police departments did “not
have legislative authority to enter into.” Id. He also suggests
his arrest under the MAA was “contrary to Florida law” because the
FBPD officers, who arrested him outside their jurisdiction, did
not
“request[]
assistance
from
NCSO.”
Id.
at
7,
9.
Second,
Plaintiff asserts the FBPD has a “policy . . . to seize personal
property under the guise of [the FCFA] and sell the seized property
back to it’s [sic] owner.” Id. at 7.11
VII. Defense Arguments
The Officers assert they are entitled to qualified immunity
because they were acting within their discretionary authority as
officers
of
the
constitutional
FBPD,
and
violation.
Plaintiff
See
fails
Douglass
to
Motion
demonstrate
at
5-6;
a
Hepler
Motion at 3, 5-6; Benton Motion at 3, 5-6; Evatt Motion at 3, 56.
While
Defendant
Benton
denies
having
participated
in
Plaintiff’s arrest or the seizure of his truck, the Investigating
Officers contend they had probable cause for both the arrest and
the seizure. See Douglass Motion at 9-11; Hepler Motion at 9-11;
Benton Motion at 9-11.
In the first paragraph of his Complaint, where he describes the
nature of the case, Plaintiff states Defendants’ conduct also
violated his rights under the Florida Constitution. See Complaint
at 1. However, Plaintiff does not state such a claim against any
Defendant. See id. at 8-9. And, in his responses, Plaintiff
clarifies he alleges claims under the Fourth, Sixth, and Fourteenth
Amendments of the United States Constitution. See Responses at 1.
Thus, the Court will limit its ruling accordingly.
11
12
The City seeks judgment in its favor because Plaintiff “has
failed to meet the requirement that a § 1983 Plaintiff show the
existence of an illegal municipal policy before recovering against
a municipality.” City Motion at 3. Moreover, the City asserts
Plaintiff
fails
to
demonstrate
the
Officers
violated
his
constitutional rights when they arrested him and seized his truck.
Id. at 12. Importantly, the City concedes “that both Plaintiff and
his
truck
were
‘seized’
within
the
meaning
of
the
Fourth
Amendment.” Id. at 13.
VIII. Claims Against the Officers: Qualified Immunity
An officer sued in his individual capacity “is entitled to
qualified
immunity
for
his
discretionary
actions
unless
he
violated ‘clearly established statutory or constitutional rights
of
which
a
reasonable
person
would
have
known.’”
Black
v.
Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Case v.
Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). The defendant
bears the initial burden to demonstrate he was acting in his
discretionary authority at the relevant times. Dukes v. Deaton,
852 F.3d 1035, 1041-42 (11th Cir.), cert. denied, 138 S. Ct. 72
(2017). Plaintiff contends the Officers have not satisfied their
burden to demonstrate they were acting in their discretionary
authority,
defendants’
stating
“there
conduct,”
is
which
nothing
he
characterizes
material evidence. See Responses at 9.
13
discretionary
as
about
the
suppressing
The
evidence
discretionary
demonstrates
functions
during
the
Officers
the
events
were
in
engaged
question.
in
Each
individual Defendant avers in his affidavit he was employed by the
FBPD and acting in the scope of that role at all relevant times.
See Evatt Affidavit (multiple paragraphs); Hepler Affidavit ¶¶ 2,
3; Douglass Affidavit ¶¶ 2, 3; Benton Affidavit ¶¶ 2, 3. Plaintiff
provides no evidence to rebut the Officers’ assertions that they
were acting within their discretionary authority at the relevant
times. In fact, in support of his allegations, Plaintiff relies
upon the arrest and booking report, which Defendants Hepler and
Douglass signed and in which Defendant Benton is mentioned as the
responding officer. See Compl. Ex. A at 3. And, with respect to
his claims against Defendant Evatt, Plaintiff relies in part upon
a letter Defendant Evatt sent to him, as “Officer/Detective” with
the FBPD. See Compl. Ex. B at 2. Thus, the Officers have carried
their burden to demonstrate they were acting in their discretionary
authority at all relevant times.
Once a court is satisfied the defendant was acting within his
discretionary authority, the burden shifts to the plaintiff to
demonstrate the defendant is not entitled to qualified immunity.
Coley v. Smith, 441 F. App’x 627, 628 (11th Cir. 2011) (citing
Bryant v. Jones, 575 F.3d 1281, 1294 (11th Cir. 2009)). To overcome
the qualified-immunity defense, a plaintiff bears the burden to
demonstrate two elements: the defendant’s conduct caused plaintiff
to
suffer
a
constitutional
violation,
14
and
the
constitutional
violation
was
“clearly
established.”
Id.
See
also
Davila
v.
Gladden, 777 F.3d 1198, 1210-11 (11th Cir. 2015). Courts may
exercise discretion to “conduct the qualified immunity analysis”
in either order. Id. at 1211. Exercising its discretion, the Court
finds the qualified immunity analysis begins and ends with the
first element because Plaintiff has not demonstrated the Officers’
actions or inactions resulted in a constitutional violation under
either the Fourth, Sixth, or Fourteenth Amendments.
A. Fourth Amendment
Plaintiff asserts the Investigating Officers lacked probable
cause to arrest him. See Complaint at 8. Plaintiff argues the
Investigating Officers lacked probable cause because they knew he
did not have the keys, Ms. Nelms told them she did not see the
truck leave, there was a factual discrepancy in the color of the
truck as reported by Mr. Evans (green) and the actual color of the
truck (blue), the truck had only minor physical damage, the hood
of the truck was warm from sitting in the sun, and the eyewitness
identification was “highly suggestive.” See Responses at 7-9;
Plaintiff Affidavit at 3.
The parties agree Defendant Benton did not participate in
Plaintiff’s arrest. Defendant Benton’s involvement was limited to
investigating
the
accident
at
Publix,
driving
Mr.
Evans
to
Plaintiff’s residence to identify Plaintiff, and returning Mr.
Evans to Publix. See Benton Affidavit ¶¶ 4, 6, 8. Plaintiff does
not dispute Defendant Benton did not participate in his arrest
15
other than to conduct the eyewitness investigation. See Response
to Benton Motion at 2-3. To the extent Defendant Benton did not
participate in Plaintiff’s arrest, he cannot be said to have
violated Plaintiff’s Fourth Amendment rights. However, because
Plaintiff
sues
Defendant
Benton
for
his
involvement
in
the
investigation that resulted in his arrest and seizure of his truck,
see Complaint at 8, the analysis that follows will apply to him as
well, as one of the Investigating Officers.
Under
the
Fourth
Amendment,
a
warrantless
arrest
is
unreasonable unless the arresting officer had probable cause. See
Gates v. Khokhar, 884 F.3d 1290, 1297 (11th Cir. 2018), cert.
denied, No. 18-511, 2019 WL 113142 (U.S. Jan. 7, 2019). An officer
has probable cause to effectuate an arrest if the “facts within
the collective knowledge of law enforcement officials, derived
from reasonably trustworthy information, are sufficient to cause
a person of reasonable caution to believe that a criminal offense
has been or is being committed.” Id. at 1298 (quoting Brown v.
City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010)).
Establishing probable cause “is not a high bar.” Paez v.
Mulvey, --- F.3d ---, No. 16-16863, 2019 WL 489048, at *6 (11th
Cir. Feb. 8, 2019) (quoting D.C. v. Wesby, 138 S.Ct. 577, 586
(2018)).
To determine whether an officer had probable cause
for an arrest, “[courts] examine the events leading up
to the arrest, and then decide ‘whether these historical
facts, viewed from the standpoint of an objectively
16
reasonable police officer, amount to’ probable cause.”
Because probable cause “deals with probabilities and
depends on the totality of the circumstances,” it is “a
fluid concept” that is “not readily, or even usefully,
reduced to a neat set of legal rules[.]” It “requires
only a probability or substantial chance of criminal
activity, not an actual showing of such activity.”
Wesby, 138 S. Ct. at 586 (internal citations omitted). Moreover,
“[a]lthough probable cause requires more than suspicion, it does
not require convincing
proof, and need not reach the [same]
standard of conclusiveness and probability as the facts necessary
to support a conviction.” Wood v. Kesler, 323 F.3d 872, 878 (11th
Cir. 2003) (citing Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.
2002) (internal quotation marks and citations omitted) (alteration
in original)), cert. denied, 540 U.S. 879 (2003).
An arrest supported by probable cause is an “absolute bar to
a subsequent constitutional challenge to the arrest,” Gates, 884
F.3d at 1297, regardless of whether a conviction follows, see
Knight v. Jacobson, 300 F.3d 1272, 1275 (11th Cir. 2002) (citing
Baker v. McCollan, 443 U.S. 137, 145 (1979)). See also Marx v.
Gumbinner, 905 F.2d 1503, 1507 (11th Cir. 1990) (“That a defendant
is subsequently acquitted or charges are dropped against the
defendant is of no consequence in determining the validity of the
arrest itself.”).
When an officer asserts a qualified-immunity defense, the
“arguable probable cause” standard, not the higher standard of
probable cause, governs the analysis. Knight, 300 F.3d at 1274. An
17
officer had arguable probable cause, and is thus entitled to
qualified
immunity,
when
a
reasonable
officer
“in
the
same
circumstances and possessing the same knowledge as the Defendant
could have believed that probable cause existed to arrest.” Carter
v. Butts Cty., Ga., 821 F.3d 1310, 1320 (11th Cir. 2016) (emphasis
added). In assessing whether an officer had arguable probable cause
to arrest, courts “apply [an] objective reasonableness standard to
the facts as they relate to the elements of the alleged crime for
which the plaintiff was arrested.” Id.
Plaintiff
was
charged
with
the
following
offenses
under
Florida Statutes: (1) hit-and-run (misdemeanor); (2) driving while
license suspended or revoked (DWLSR) (habitual offender); (3)
reckless driving (misdemeanor); and (4) hit-and-run (felony). See
Compl. Ex. A at 2. Each offense requires the accused to have been
driving a vehicle under certain circumstances. The misdemeanor
hit-and-run statutory provision provides the following:
The driver of any vehicle involved in a crash resulting
only in damage to a vehicle or other property which is
driven or attended by any person shall immediately stop
such vehicle at the scene of such crash or as close
thereto as possible, and shall forthwith return to, and
in every event shall remain at, the scene of the crash
until he or she has fulfilled the requirements of s.
316.062. A person who violates this subsection commits
a misdemeanor of the second degree, punishable as
provided in s. 775.082 or s. 775.083.
Fla.
Stat.
§
316.061(1).
The
felony
provision requires injury to a person:
18
hit-and-run
statutory
The driver of a vehicle involved in a crash occurring on
public or private property which results in injury to a
person
other
than
serious
bodily
injury
shall
immediately stop the vehicle at the scene of the crash,
or as close thereto as possible, and shall remain at the
scene of the crash until he or she has fulfilled the
requirements of s. 316.062. A person who willfully
violates this paragraph commits a felony of the third
degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
Fla. Stat. § 316.027(2)(a). The DWLSR (habitual offender) statute
provides the following:
Any person whose driver license has been revoked
pursuant to s. 322.264 (habitual offender) and who
drives any motor vehicle upon the highways of this state
while such license is revoked is guilty of a felony of
the third degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
Fla. Stat. § 322.34(5). Finally, the reckless driving statute
provides, “[a]ny person who drives any vehicle in willful or wanton
disregard for the safety of persons or property is guilty of
reckless driving.” Fla. Stat. § 316.192(1)(a) Causing damage to
property or a person is a misdemeanor of the first degree. Id. §
316.192(3).
Under the totality of the circumstances, the facts within the
collective knowledge of the Investigating Officers gave them at
least arguable probable cause, if not actual probable cause, to
arrest Plaintiff for his suspected involvement in a hit-and-run
accident, for reckless driving, or for DWLSR. Mr. Evans, the
eyewitness and victim, reported a hit-and-run accident, described
the vehicle as a “green F150 truck,” and provided a picture of the
19
truck to Defendant Benton. See Benton Affidavit ¶¶ 4, 5. The
Investigating Officers, finding a Ford F150 truck with the license
plate number matching the one in the photo, had no reason to
question whether the truck in Plaintiff’s driveway was the one Mr.
Evans
saw
involved
in
an
accident.
Further,
Plaintiff
told
Defendants Hepler and Douglass the truck parked outside his house,
with the license plate matching the one in the picture, belonged
to him. See Plaintiff Affidavit at 1-2. See also Compl. Ex. A at
4. Given the weight reasonably attributable to these facts, whether
the truck was blue or green was not material to a probable cause
analysis at that point; the Investigating Officers located the
truck shown in the picture, and Plaintiff confirmed the truck
belonged to him.12
Defendants Hepler and Douglass also reasonably concluded the
truck
had
recently
been
driven
and
had
been
involved
in
an
accident, because the hood was warm to the touch and the truck had
some minor physical damage (scuff marks and a dent). See Hepler
Affidavit ¶ 5; Compl. Ex. A at 4. Plaintiff himself acknowledges
the truck had “various scuffs and scratches.” See Dismissal Hr’g
Tr. at 18. Not only did the Investigating Officers quickly locate
The picture of the truck clearly depicts the rear license plate
and the model/make. See Truck Photo at 1. Upon review of the
picture, the color of the truck could fairly be described as some
shade of blue or green, depending on the light and other factors.
Id. Plaintiff himself even described the truck as a “2000
green/teal Ford F150 truck” in pleadings he filed in the Nassau
County Case. See Compl. Ex. L at 3. See also Compl. Ex. F at 2
(describing the truck as “green”).
12
20
the truck in the picture, along with its self-proclaimed owner,
but shortly after the accident, Mr. Evans visually identified
Plaintiff as the driver involved in the hit-and-run accident.13 See
Hepler Affidavit ¶ 7; Douglass Affidavit ¶ 6; Benton Affidavit ¶
6.
The facts within the common knowledge of the Investigating
Officers
also
demonstrated
the
accident
resulted
in
physical
injuries to a person and damage to property, as required to charge
a driver with felony and misdemeanor hit-and-run and reckless
driving. See Fla. Stat. §§ 316.027(2)(a); 316.061(1); 316.192(3).
The police report notes, “Mr. Evans complained of back pain and
believed his back had been injured due to the crash.” Compl. Ex.
A at 3. See also Suppression Hr’g Tr. at 15 (Defendant Benton
testifying Mr. Evans complained of back pain). Moreover, Defendant
Benton testified he estimated about $1,500 worth of damage to one
of the cars Plaintiff allegedly hit, while the other car had “very
minor damage.” Benton Depo. at 13, 14. See also Suppression Hr’g
Tr. at 14-15.
Plaintiff argues the damage to his truck was too minor to
have caused significant damage to at least one other vehicle. See
Responses at 8. Whether scuff marks and a dent were the result of
Plaintiff does not assert anyone else was home when he was
arrested. However, Ms. Nelms states in her deposition that
Plaintiff’s mom was present when Plaintiff was being questioned by
the officers. See Nelms Depo. at 18. Ms. Nelms also said she saw
Plaintiff’s roommate at the house earlier that day, but she did
not mention whether the roommate was there when Plaintiff was
arrested. See id. at 10.
13
21
the hit-and-run or were inconsistent with the type of impacts Mr.
Evans reported goes to Plaintiff’s guilt or innocence, not to
whether the Investigating Officers had arguable probable cause to
arrest him at the time. The same can be said about the reason for
the truck’s hood being warm. While the truck’s hood could have
been warm because it was a sunny day in Florida, Defendants
Hepler’s and Douglass’s conclusions were reasonable in the context
of all other facts and circumstances.14 Importantly, a finding of
probable cause “requires only a probability or substantial chance
of criminal activity, not an actual showing of such activity.”
Wesby, 138 S. Ct. 586. See also Von Stein v. Brescher, 904 F.2d
572,
578
n.9
(11th
Cir.
1990)
(“‘Probable
cause’
defines
a
radically different standard than ‘beyond a reasonable doubt,’ and
while an arrest must stand on more than suspicion, the arresting
officer need not have in hand evidence sufficient to obtain a
conviction.”).
That the Investigating Officers did not find keys, even
assuming they searched for them, and were told by a neighbor she
did not see the truck leave all day, does not discount that a
reasonable
officer,
faced
with
the
same
set
of
facts
and
circumstances, “could have believed probable cause existed” to
Defendants Hepler’s and Douglass’s conclusions as to why the
hood was warm are even more reasonable considering the temperature.
The Farmer’s Almanac records the maximum temperature in Fernandina
Beach
on
December
23,
2014,
as
70.2
degrees.
See
https://www.farmersalmanac.com/weather-history/search-results/
(last visited March 1, 2019).
14
22
arrest Plaintiff. Gates, 884 F.3d at 1301 (emphasis added). The
undeniable fact the Investigating Officers faced on December 23,
2014, was that the truck sitting in Plaintiff’s driveway, which
Plaintiff
admitted
photographed
at
to
Publix
owning,
only
was
a
the
short
same
time
truck
before.
Mr.
Evans
Given
the
circumstances, Defendants Hepler and Douglass reasonably could
have concluded Plaintiff either did not know what he had done with
the keys15 or was lying to protect himself.
Similarly, given the facts, Defendants Hepler and Douglass
reasonably
could
have
concluded
Ms.
Nelms’s
statements
were
unreliable or untruthful, especially considering her statements
appeared to be contradicted by photographic evidence. See Paez,
2019 WL 489048, at *6 (“[A]rresting officers, in deciding whether
probable cause exists, are not required to sift through conflicting
evidence or resolve issues of credibility, so long as the totality
of the circumstances present a sufficient basis for believing that
an offense has been committed.”) (quoting Dahl v. Holley, 312 F.3d
1228, 1234 (11th Cir. 2002)). Plaintiff himself avers Defendants
Hepler and Douglass told him, when they arrested him, they did not
believe Ms. Nelms. See Plaintiff Affidavit at 3. Even more, in her
Defendant Hepler testified Plaintiff claimed to have been
drinking. There is no evidence to suggest Plaintiff had been
drinking on the day of his arrest. However, Defendant Hepler’s
belief that Plaintiff had been drinking conceivably could have led
Defendant Hepler to discount Plaintiff’s statements about his
inability to drive the truck as less than reliable.
15
23
deposition, Ms. Nelms testified she informed Defendants Hepler and
Douglass she did not see the truck leave or hear it start, but she
also said “anything’s possible” and told them she had been watching
movies. See Nelms Depo. at 14. It is within the realm of human
experience to conclude that a person watching a movie may not have
an awareness of things happening outside.
In analyzing whether officers had arguable probable cause,
the Supreme Court cautions against requiring officers, in the midst
of a criminal investigation, to accept without question innocent
explanations for suspicious actions or facts. See Wesby, 138 S.
Ct. at 587, 588 (holding the officers reasonably
could
have
concluded the innocent explanation partygoers provided for being
in an uninhabited house was untrue, based on all surrounding
circumstances, including the partygoers’ suspicious behavior).
Under the circumstances, it was reasonable for the officers to
conclude Plaintiff’s and Ms. Nelms’s statements were untruthful or
unreliable.
Choosing to discount Plaintiff’s and Ms. Nelms’s statements
that appeared obviously contradicted by physical evidence (the
photo), is far different from ignoring objective, indisputable
proof a suspect had not committed a crime. Cf. Carter v. Butts
Cty., Ga., 821 F.3d 1310, 1321 (11th Cir. 2016) (holding an officer
lacked even arguable probable cause to arrest the plaintiffs for
trespass because the officer knew the house had been foreclosed
24
on,
and
the
officer
ignored
documentation
that
unequivocally
demonstrated the plaintiffs had authority to be on the property).
Plaintiff’s suggestion that a discrepancy in the color of the
truck, the absence of keys, and the basis for the officers’
conclusions as to why the hood was warm and the truck was damaged
would require the Court to engage “in an excessively technical
dissection of the factors supporting probable cause.” Wesby, 138
S. Ct at 588. “The totality-of-the-circumstances test precludes
this
sort
of
divide-and-conquer
analysis.”
Id.
(internal
quotations omitted). The question now is not whether Plaintiff was
guilty or innocent but whether the Investigating Officers had
arguable probable cause to believe Plaintiff had committed a crime,
considering
all
the
facts
and
circumstances.
The
evidence
demonstrates they did. To the extent the Investigating Officers
were incorrect, “[e]ven law enforcement officials who reasonably
but mistakenly conclude that probable cause is present are entitled
to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal
quotation marks omitted). See also Wood, 323 F.3d at 878.
Plaintiff further contends his arrest was unlawful under both
the Fourth Amendment and Florida law. See Response to Hepler Motion
at 8-9. First, he asserts Mr. Evans’s identification of him was
25
highly suggestive because it was conducted as a “show-up”16 rather
than
a
traditional
“line-up.”
A
show-up
while
“inherently
suggestive,” is not unconstitutional per se. See United States v.
Winfrey, 403 F. App’x 432, 435 (11th Cir. 2010); see also Johnson
v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987). In analyzing whether
a
show-up
is
“nonetheless
reliable”
even
if
unnecessarily
suggestive, courts consider the length of time between the incident
and the identification, and the witness’s opportunity to view the
suspect, degree of attention, level of certainty, and accuracy of
the prior physical description of the suspect. Johnson, 817 F.2d
at
729;
Winfrey,
403
F.
App’x
at
435.
A
show-up
is
not
unnecessarily suggestive unless police officers “aggravate the
suggestiveness of the confrontation.” Johnson, 817 F.2d at 729;
Winfrey, 403 F. App’x at 435.
Officers do not aggravate the suggestiveness of a show-up
simply because it is conducted while the suspect is in the presence
of law enforcement officers or even detained. See Johnson, 817
F.2d at 729; Winfrey, 403 F. App’x at 435. In Johnson, the Court
held a witness’s identification reliable even though the witness
identified the suspects after they had already been apprehended
and were sitting in the back of a police car. 817 F.2d at 729. The
A “show-up” is defined as, “[s]howing suspects singly to persons
for the purposes of identification.” United States v. Winfrey, 403
F. App’x 432, 435 (11th Cir. 2010).
16
26
identification was reliable because the witness identified the
suspects minutes after the crime, observed the suspects in the
daylight,
thoroughly
described
them
to
the
police,
and
was
confident in his identification at the time. Id. See also Winfrey,
403 F. App’x at 436 (finding no evidence the officers aggravated
the
identification
even
though
the
witness
observed
officers
escort the suspect out of a patrol car where the witness testified
he was positive the suspect was the man who robbed him, the
identification occurred twenty minutes after the robbery, and the
witness was attentive during the commission of the crime); United
States v. Walker, 201 F. App’x 737, 739, 741 (11th Cir. 2006)
(holding a show-up was not unnecessarily suggestive where a robbery
victim,
shortly
after
the
robbery
occurred,
identified
the
suspects who were handcuffed behind their backs, with the cuffs
not visible, surrounded by officers, and standing in front of a
marked patrol car).
Here,
the
relevant
factors
demonstrate
Mr.
Evans’s
identification of Plaintiff was reliable even though Plaintiff was
handcuffed and standing near two police officers. Defendant Benton
testified Mr. Evans did not hesitate or express uncertainty when
he identified Plaintiff, suggesting Mr. Evans was confident in his
identification.
See
Suppression
Hr’g
Tr.
at
20.
And,
the
identification took place shortly after the incident occurred;
Defendant Benton testified “roughly 15 minutes” elapsed between
27
the time of the incident to the time he brought Mr. Evans to
Plaintiff’s residence. Id. at 18. Moreover, Mr. Evans, as the
victim of the hit-and-run, had an opportunity to observe the events
as they occurred. Mr. Evans described to Defendant Benton the
following description of the accident:
Mr. Evans advised that a Ford pickup truck . . . was
backing out of a parking space. As he backed out and
attempted to drive off, it struck the vehicle that was
in front of it, backed up again, attempted to go around
that vehicle and was unable to do so. . . . [T]he vehicle
then backed up again striking Mr. Evans, and Mr. Evans
advised that he was aware that the vehicle was also going
to strike another pedestrian in a wheelchair, so at that
time he started banging on the tailgate. The vehicle
then left the scene.
Id. at 14. See also Benton Affidavit ¶ 4. After the truck hit Mr.
Evans, he took a picture of the truck using his cell phone. See
Suppression Hr’g Tr. at 15. Mr. Evans described the driver of the
truck as “an older white male, . . . [who] was tall, . . . had
gray hair and a mustache.” Id.17 Mr. Evans’s detailed description
of Plaintiff’s driving, coupled with the fact that he was hit by
the truck and had time to take a picture, suggests he was attentive
The record evidence includes no physical description of
Plaintiff. However, Plaintiff does not dispute the description
provided by Mr. Evans is consistent with his appearance at the
time. There is a discrepancy in the record as to whether Mr. Evans
described the driver as “an older white male” or provided more
detail, such as the color of his hair and that he had a mustache.
See Suppression Hr’g Tr. at 25, 32. Considering the relevant
factors in their totality, the discrepancy in the physical
description is not enough to conclude the show-up was unnecessarily
suggestive.
17
28
at the time of the incident. Considering the above, the relevant
factors demonstrate the show-up was not unreliable. Moreover,
there
is
no
evidence
to
suggest
the
Investigating
Officers
“aggravated the suggestiveness” of the identification. Indeed,
Defendant Benton testified he did not “do or say anything to try
and suggest to Mr. Evans who the suspect was.” Id. at 20
Plaintiff argues he was arrested under the authority of an
illegal policy (the MAA), and the Investigating Officers violated
the terms of the MAA. Even if these allegations are true, Plaintiff
has not demonstrated a violation of federal law. Federal law, not
state law, determines the validity of an arrest when a plaintiff
challenges the arrest under the Fourth Amendment. Knight, 300 F.3d
at 1276. A plaintiff’s assertion that his arrest was made in
violation of state law does not result in a Fourth Amendment
violation to sustain a claim under § 1983. Id. (“There is no
federal right not to be arrested in violation of state law.”).
Moreover, it is undisputed the Officers believed the MAA was
in effect and valid on the day they arrested Plaintiff outside the
city limits of Fernandina Beach. See McDaniel v. Sheriff of Palm
Bch. Cty., Fla., 491 F. App’x 981, 984 (11th Cir. 2012) (affirming
summary judgment in favor of officers who arrested plaintiff under
a mutual aid agreement plaintiff argued was invalid because the
record indisputably showed the officers believed they were acting
under a valid mutual aid agreement and they had probable cause).
29
Defendant Benton testified he believed the MAA authorized the FBPD
officers to travel outside their jurisdiction to arrest Plaintiff
under the circumstances:
Q:
At the time of this incident, was there a [MAA] in
effect between the Sheriff’s Office and Fernandina Beach
that allowed you to leave the city limits to continue
your investigation?
A:
There was, yes.
Q:
Did
hearing?
A:
you
review
that
[MAA]
in
advance
of
this
I did.
Q:
Based on your knowledge of the agreement, are
Fernandina Beach officers allowed to travel outside of
the city to continue an ongoing investigation?
A:
Yes, they are.
Q:
Are they allowed to effect arrests outside of the
city limits?
A:
Yes, they are.
Suppression Hr’g Tr. at 19. Plaintiff provides no evidence to
contradict that the Investigating Officers believed the MAA was
valid. The undisputed evidence shows the Investigating Officers
acted under authority they believed they had.
Finally, Plaintiff argues his warrantless arrest violated the
Fourth Amendment because he was arrested at his home, which he
says was not a public place. Plaintiff’s argument is not supported
by the law. See Responses at 8. While a warrantless arrest inside
someone’s home is presumptively unreasonable, the same is not true
30
for an arrest that occurs just outside the person’s home, or even
in the doorway. Knight, 300 F.3d at 1277 (citing Payton v. N.Y.,
445 U.S. 573, 590 (1980)). Plaintiff himself states quite clearly
he was arrested after he stepped outside of his home, which he did
willingly. See Plaintiff Affidavit at 1. Although Plaintiff states
Defendant
Hepler
“ordered”
Amendment
jurisprudence
him
“does
to
not
step
outside,
prevent
a
id.,
law
Fourth
enforcement
officer from telling a suspect to step outside his home and then
arresting him without a warrant.” Knight, 300 F.3d at 1277 (citing
cases).
For the above reasons, the Court finds the Investigating
Officers had at least arguable probable cause to arrest Plaintiff
on December 23, 2014. The Investigating Officers have carried their
burden to demonstrate they were acting within their discretionary
authority when they arrested Plaintiff, and Plaintiff has failed
to carry his burden to show the Investigating Officers violated a
constitutional
right.
Thus,
the
Investigating
Officers
are
entitled to qualified immunity with respect to the arrest.
To the extent Plaintiff also disputes probable cause to seize
his truck, the uncontroverted evidence is that the Investigating
Officers, while conducting their lawful investigation, discovered
Plaintiff was a “habitual traffic offender,” requiring the impound
of his truck. See Hepler Affidavit ¶ 8; Douglass Affidavit ¶ 8.
Defendant Hepler testified at the Dismissal Hearing that the
31
Officers “ran” the license plate and discovered “the tag itself
had a notation from the State of Florida to seize and impound the
vehicle.” See Dismissal Hr’g Tr. at 33. The impound report states
the reason for the removal of the truck as, “state put hold on
vehicle.” Compl. Ex. A at 4. The Investigating Officers, therefore,
had at least arguable probable cause to seize the truck. See
McKnight v. State, 972 So. 2d 247, 253 (Fla. 1st DCA 2007)
(recognizing officers properly arrested a suspect and seized his
vehicle because, upon checking the status of the suspect’s license,
the officers discovered he was a habitual traffic offender). Even
assuming the Investigating Officers wrongfully ordered the truck’s
seizure under Florida law, their conduct amounts to negligence
under state law and not a Fourth Amendment violation. See Knight,
300 F.3d at 1277.
The
Investigating
Officers
did
not
violate
Plaintiff’s
constitutional rights as a matter of law when they arrested him
for his suspected involvement in misdemeanor or felony hit-andrun,
DWLSR,
and
reckless
driving,
and
seized
his
truck.
Accordingly, they are entitled to qualified immunity with respect
to Plaintiff’s Fourth Amendment claims for unlawful arrest.
B. Due Process
Plaintiff asserts claims against the Officers under the Sixth
and Fourteenth Amendments for “willfully suppressing and omitting
exculpatory” evidence—Ms. Nelms’s testimony and his truck. See
32
Complaint
at
8-9.
As
a
preliminary
matter,
the
Court
notes
Plaintiff’s claims related to the suppression or destruction of
exculpatory evidence are properly analyzed under the protections
of the Fourteenth Amendment due process clause, not under the Sixth
Amendment right to “compulsory process.” The Sixth Amendment right
to compulsory process is a trial right. See, e.g., United States
v. Garmany, 762 F.2d 929, 933–34 (11th Cir. 1985) (“To effectively
implement this constitutional guarantee [to compulsory process],
the accused has the right to subpoena witnesses on his or her own
behalf to testify at a trial”). See also Penn. v. Ritchie, 480
U.S. 39, 56 (1987) (examining the contours of the Sixth Amendment
right to compulsory process and noting that the Supreme Court has
“never squarely held that the Compulsory Process Clause guarantees
the right to . . . require the government to produce exculpatory
evidence”). Plaintiff was not tried on the claims for which he was
arrested. See Complaint at 7.
Accordingly, his due process claims
are to be analyzed under the Fourteenth Amendment.
Plaintiff’s
exculpatory
claims
evidence
of
a
destruction
implicate
the
or
suppression
protections
of
Brady
of
v.
Maryland, 373 U.S. 83, 87 (1963). In Brady, the Supreme Court held
the
prosecution’s
material
evidence
suppression
results
of
in
favorable,
a
due
or
process
exculpatory,
violation,
“irrespective of the good faith or bad faith of the prosecution.”
Id. While a Brady objection typically arises in the criminal
context, with relief constituting a new trial, the Eleventh Circuit
33
has recognized that “[section] 1983 provides a cause of action for
a violation of the due process right to a fair trial that is
protected by Brady.” Porter v. White, 483 F.3d 1294, 1304 (11th
Cir. 2007) (citing McMillian v. Johnson, 88 F.3d 1554, 1569 (11th
Cir. 1996)).
However, when the loss of liberty is attributable to a state
actor’s negligent conduct, the due process clause provides no
protection. Id. (citing Daniels v. Williams, 474 U.S. 327, 328
(1986)). Accordingly, the Brady no-fault standard does not apply
in the context of a § 1983 civil rights action for damages against
an
officer
who
allegedly
withholds
(or
destroys)
exculpatory
evidence. See id. at 1306. Instead, a plaintiff suing for damages
under § 1983 for a Brady-type violation must demonstrate more than
mere negligence on the part of the officer. Id. at 1308. Moreover,
the plaintiff must demonstrate the failure to turn over Brady
material to the prosecution “causes [him] to be convicted at a
trial.” Id.
In Porter, the Eleventh Circuit held the plaintiff failed to
demonstrate a genuine issue of material fact on his due process
claim because the evidence demonstrated the defendant, at most,
only negligently failed to turn over to the prosecutor at least
one police report that was favorable to the plaintiff. Id. at 1311.
In so holding, the Court articulated the following rule:
34
On the authority of Daniels18 and Cannon,19 we hold
that mere negligence or inadvertence on the part of a
law enforcement official in failing to turn over Brady
material to the prosecution, which in turn causes a
defendant to be convicted at a trial that does not meet
the fairness requirements imposed by the Due Process
Clause, does not amount to a “deprivation” in the
constitutional sense. Thus, a negligent act or omission
cannot provide a basis for liability in a § 1983 action
seeking compensation for loss of liberty occasioned by
a Brady violation.
Id. at 1308.
Plaintiff here fails to demonstrate a due process violation
against the Officers. Notably, the evidence Plaintiff claims to
have been “suppressed” from him was not. Plaintiff acknowledges he
saw
Defendants
Hepler
and
Douglass
interview
Ms.
Nelms,
and
Defendants Hepler and Douglass allegedly told Plaintiff what Ms.
Nelms told them. See Plaintiff Affidavit at 3. And, Ms. Nelms’s
deposition eventually was taken. Moreover, no one withheld from
Plaintiff the nature and extent of damage to his truck. In fact,
he testified that he and Defendant Hepler walked around the truck
on the day of the arrest to assess the damage. See Dismissal Hr’g
Tr. at 17-18.
Daniels v. Williams, 474 U.S. 327, 335-36 (1986) (holding the
due process clause is not implicated by the “tort[-]law concept”
of negligence).
18
Davidson v. Cannon, 474 U.S. 344, 348 (1986) (“As we held in
Daniels, the protections of the Due Process Clause, whether
procedural or substantive, are just not triggered by lack of due
care.”).
19
35
With respect to the truck, while arguably helpful, it was not
materially
exculpatory
and,
thus,
does
not
qualify
as
Brady
evidence. Plaintiff could have presented the evidence of minor
damage to his truck without having had physical possession of it.
The impound report of Sky Towing noted minor damage to Plaintiff’s
truck on the day FBPD seized it: “various scuff marks [and] dent
in driver front fender.” Compl. Ex. A at 4. And, the photo of the
truck, taken on the day of the accident, shows no visible damage
to the rear. See Truck Photo at 1. In fact, the Nassau County trial
judge concluded the truck was not “materially exculpatory” but
only “potentially useful” because of the other evidence showing
the truck was involved in an accident, who the driver was, and the
extent of damage to the truck. See Dismissal Hr’g Tr. at 45-46.
Even if the evidence were materially exculpatory and indeed
suppressed from Plaintiff, Plaintiff was not convicted at trial.
Indeed, the charges against him were dismissed, as he plainly
acknowledges. See Complaint at 7. Thus, Plaintiff is unable to
establish
an
important
element
of
his
due
process
claim:
a
conviction. See Porter, 483 F.3d at 1308; see also Flores v. Satz,
137 F.3d 1275, 1278 (11th Cir. 1998) (holding defendants were
entitled
to
qualified
immunity
because
plaintiff
did
not
demonstrate a Brady-type due process violation where he “was never
convicted and, therefore, did not suffer the effects of an unfair
trial”).
36
Finally, even assuming Plaintiff could demonstrate materially
exculpatory evidence was withheld, resulting in an unfair trial,
he has offered no evidence of anything more than mere negligence
by Defendant Evatt with respect to the truck’s disposal. Defendant
Hepler testified at the Dismissal Hearing the truck was released
to a tow company in compliance with FBPD policy and not for the
purpose
evidence.
of
withholding
See Dismissal
or
destroying
Hr’g Tr.
potentially
favorable
at 28. Plaintiff offers no
evidence to suggest otherwise.
Rather,
Plaintiff
impermissibly
asks
the
Court
to
stack
inferences to conclude Defendant Evatt released the truck in bad
faith. For instance, Plaintiff argues Defendant Evatt did not
timely notify him of the manner and fact of the truck’s release.
At the Dismissal Hearing, Plaintiff testified he refused to sign
for receipt of a letter Defendant Evatt hand-delivered to him in
jail because the letter was undated, making “it appear that it was
being give[n] to [him] in February, but it was actually March.”
Id. at 17. He also provides the affidavit of an officer with the
NCSO,20 who confirms Defendant Evatt delivered to him an undated
letter in March. See Rowe Affidavit at 1.
The inferences and speculation required to conclude a handdelivered, undated letter demonstrates bad faith on Defendant
Evatt’s part is not enough to permit a reasonable jury to find
20
See (Docs. 65-3, 66-3, 67-3, 68-3, 69-3; Rowe Affidavit).
37
Defendant Evatt engaged in anything more than negligence with
respect to his obligation to timely notify Plaintiff of the truck’s
disposal. At most, the evidence shows Defendant Evatt, through
oversight, failed to notify Plaintiff of the release of the truck
on or near the date he released it to the tow company.
Plaintiff also suggests Defendant Evatt did not notify the
title company (TitleMax) that he released the truck to a tow
company,
contrary
to
Defendant
Evatt’s
representation.
See
Plaintiff’s Affidavit at 4. A review of a letter Plaintiff received
from TitleMax21 does not in fact contradict Defendant Evatt’s
representation. See Evatt Affidavit ¶ 13; TitleMax Letter at 2.
The TitleMax litigation paralegal informed Plaintiff “TitleMax did
not recover [the] [v]ehicle after it was seized.” TitleMax Letter
at 2 (emphasis added). The paralegal did not say TitleMax was not
informed of the release of the truck to the tow company. See id.
Plaintiff
appears
to
assert
a
property-deprivation
due
process claim against Defendant Evatt as well. See Complaint at 6,
9. The wrongful retention of personal property does not amount to
a due process violation “if a meaningful postdeprivation remedy
for the loss is available.” Lindsey v. Storey, 936 F.2d 554, 561
(11th Cir. 1991) (quoting Hudson v. Palmer, 468 U.S. 517, 533
(1984)). In Lindsey, the court affirmed the entry of summary
judgment
in
favor
of
the
defendant
who
admittedly
retained
plaintiff’s car after it was properly seized in connection with
21
See (Docs. 65-5, 66-5, 67-5, 68-5, 69-5; TitleMax Letter).
38
criminal activity. 936 F.2d at 557, 561. The plaintiff asserted a
due process violation under § 1983, arguing she was deprived of a
post-deprivation remedy because the defendant did not institute
forfeiture proceedings during the nine-month period her car had
been detained. Id. at 561.
The Court rejected the plaintiff’s argument, stating the
Supreme
Court
“made
clear
that
as
long
as
some
adequate
postdeprivation remedy is available, no due process violation has
occurred.” Id. (emphasis in original). Because the plaintiff could
have pursued a civil action for conversion under Georgia law, she
had access to an adequate post-deprivation remedy. Accordingly,
there was no due process violation “whether or not defendant …
ever initiated forfeiture proceedings on the automobile.” Id.
Like Georgia, Florida provides a statutory remedy for theft.
See Fla. Stat. § 772.11(1). See also Case v. Eslinger, 555 F.3d
1317, 1331 (11th Cir. 2009) (recognizing Florida’s civil cause of
action for conversion provides an adequate post-deprivation remedy
when law enforcement officers seize or retain personal property).
Because Florida law provides an adequate post-deprivation remedy
for the alleged wrongful retention of Plaintiff’s truck, his due
process property-deprivation claim against Defendant Evatt fails.
Plaintiff’s argument that Defendant Evatt chose not to pursue
forfeiture proceedings under the FCFA does not save his claim. The
Eleventh
Circuit
rejected
the
same
argument
advanced
by
the
plaintiff in Lindsey. Because the plaintiff in Lindsey could have
39
pursued a state claim for conversion, the fact that the defendant
officer failed to institute forfeiture proceedings was irrelevant.
936 F.2d at 561.
For the above reasons, Plaintiff has failed to demonstrate
the disposal of his truck or the alleged “suppression” of Ms.
Nelms’s statements supports a due process violation under § 1983.
Thus, the Officers are entitled to qualified immunity. Because the
Court finds Plaintiff has failed to carry his burden to demonstrate
a constitutional violation, the Court need not proceed to the next
step
of
the
qualified-immunity
analysis—determining
if
a
constitutional right was clearly established. Lumley v. City of
Dade City, Fla., 327 F.3d 1186, 1194 (11th Cir. 2003). “If no
constitutional right would have been violated were the allegations
established,
there
is
no
necessity
for
further
inquiries
concerning qualified immunity.” Case, 555 F.3d at 1327 (quoting
Saucier v. Katz, 533 U.S. 194 (2001)). Accordingly, the Officers’
motions are due to be granted.
IX. Claims Against the City
Plaintiff sues the City for two alleged unlawful policies.
First, Plaintiff claims the warrantless arrest of him at his home,
which is located outside the jurisdictional limits of the FBPD,
violated the MAA. See Complaint at 3-4, 9; City Response at 9-10;
Second, Plaintiff asserts “that it was common policy for FBPD … to
40
seize personal property under the guise of ‘the [FCFA],’ and sell
the seized property back to it’s [sic] owner.” Complaint at 7.
As to first alleged unlawful policy (the MAA), Plaintiff
alleges the following in his Complaint:
[T]he City of Fernandina Beach and the Nassau
County Sheriff’s Office do not have the
legislative authority to enter into an
agreement that confers upon FBPD officers,
jurisdictional police powers, coextensive
with those of the county deputies with NCSO …
[Plaintiff’s] arrest, made pursuant to the
[MAA] between NCSO and FBPD, without FBPD
requesting assistance from NCSO, is contrary
to Florida law … in violation of [his] Fourth
and Fourteenth Amendment right to protection
against unreasonable search and seizure and
his right to due process.
Id. at 9. Plaintiff further argues the intent of the MAA is to
deal with “disasters, emergencies, and other major law enforcement
problems,” which, he claims, the hit-and-run accident was not. Id.
The MAA (Doc. 54-2; MAA) provides the NCSO and FBPD are
permitted, by Florida Statutes and the agreement, to “receive and
extend mutual aid in the form of law enforcement services and
resources to adequately respond to . . . emergencies . . . and
continuing multi-jurisdictional routine law enforcement.” MAA at
1.
The
agreement
addresses
“routine
law
enforcement”
jurisdictional lines:
In the event an officer of FBPD who is
investigating a felony or a misdemeanor which
occurred within FBPD jurisdiction should
develop probable cause to arrest a suspect for
that [crime] when the suspect is located
outside the FBPD officer’s jurisdiction but
41
across
within Nassau County, the FBPD officer shall
be empowered with the same authority to arrest
said suspect as the FBPD officer would have
within the political subdivision in which he
or she is employed. An FBPD officer intending
to effect a probable cause arrest pursuant to
this paragraph should, whenever possible,
request the assistance of the NCSO or other
Law Enforcement Agency having jurisdiction
within the area in which the arrest is to take
place. Failure to request such assistance
shall not, however, affect the validity or
legality of any arrest made pursuant to this
paragraph.
Id. at 3-4. It is undisputed the Investigating Officers arrested
Plaintiff outside their jurisdiction for a crime that occurred
inside their jurisdiction, and the Officers did not request the
assistance of the NCSO.22 See Suppression Hr’g Tr. at 18-19, 27.
The applicable MAA provision here permits an officer of the
FBPD to arrest a suspect outside of his jurisdiction if the crime
“occurred within FBPD jurisdiction,” and the officer “develop[ed]
probable cause to arrest [the] suspect for that [crime] when the
suspect is located outside the FBPD officer’s jurisdiction.” MAA
at 8. By its terms, the MAA permitted FBPD officers to arrest
Defendant Benton conceded that, in arresting Plaintiff under the
authority of the MAA, he did not contact the NCSO. See Suppression
Hr’g Tr. at 27. The MAA provides, however, that failing to contact
the NCSO shall not affect the validity of the arrest. Moreover,
assuming Defendant Benton or the other Officers violated the terms
of the MAA, the City is not liable. See Monell v. N.Y. City Dep’t
of Soc. Servs., 436 U.S. 658, 691, 693-94 (1978). See also
Sevostiyanova v. Cobb Cty. Of Ga., 484 F. App’x 355, 360 (11th
Cir. 2012) (“[T]he fact that the plaintiff suffered a deprivation
of federal rights at the hands of a municipal employee is
insufficient to establish a municipality’s liability.”).
22
42
Plaintiff because the crime occurred within their jurisdiction and
they developed probable cause to arrest him when he was physically
located outside the FBPD jurisdiction.
Contrary
to
Plaintiff’s
assertion,
the
MAA
does
not
unlawfully give FBPD powers coextensive with the NCSO, nor does it
apply only in emergency law enforcement situations. The MAA itself
provides, “[i]t is understood by all parties that the purpose of
[the] agreement is not to extend the territorial jurisdiction[] of
FBPD unconditionally or without limits, but to expressly provide
for interagency combined operational assistance and voluntary
cooperation upon request.” Id. at 2-3. One example of “voluntary
cooperation” is the “investigation of any . . . violations of the
Florida
Uniform
Traffic
Control
Law
arising
from
within
the
jurisdiction of the FBPD,” in which case the FBPD is permitted to
take “appropriate action, including . . . arrest.” Id. at 1-2.
The MAA, thus, properly limits the circumstances under which
FBPD officers may cross jurisdictional lines and authorizes FBPD
officers to effectuate an arrest for a crime that occurs within
their jurisdiction and for which they have probable cause. The
Investigating Officers here acted within the authority granted by
the MAA.23 See Ball v. City of Coral Gables, 548 F. Supp. 2d 1364,
Even assuming the MAA, as written or as applied to Plaintiff,
is invalid, a violation of state law does not equate to a federal
action under § 1983. See Knight, 300 F.3d at 1276.
23
43
1372 (S.D. Fla.), aff'd, 301 F. App'x 865 (11th Cir. 2008) (finding
without merit Plaintiff’s argument that a mutual aid agreement
“exceed[ed] the authority of the enabling statute” because one
purpose of the agreement was to provide “assistance of a routine
law enforcement nature across jurisdictional lines”).
With respect to the second alleged City policy, Plaintiff
contends Defendant Hepler admitted under oath “it was the policy
of [FBPD] to seize property under the [FCFA] and then sell it back
to it’s [sic] owner.” See Complaint at 7; Response to City Motion
at 11. Importantly, the only evidence Plaintiff points to of an
alleged unlawful City policy is Defendant Hepler’s testimony at
the Dismissal Hearing:
Q:
Is it the policy of the [FBPD], if there is a lien
[on a seized vehicle], to return that vehicle to some
other person?
A:
It is. What typically happens is, if it has a lien
on the vehicle, it depends on how much the lien is,
whether the Department wants to assume that and pay it
and keep the vehicle. Sometimes we offer to sell the
vehicle back to the registered owner, or sometimes we
just – we’ll – we’ll just stop the seizure process and
– as we did in this case, and call a tow company to take
possession of the vehicle so they can store it, since it
was not going to be a police seizure, and we notify the
owner of the vehicle.
*
*
*
Q:
Is it your testimony today that the vehicle was
released in accordance with the [FBPD] policy?
A:
Yes, it was.
44
Dismissal Hr’g Tr. at 27-28 (emphasis added). Even if Defendant
Hepler’s testimony fairly can be interpreted as describing an
unlawful City policy, Plaintiff’s truck was not released by FBPD
in accordance with the challenged policy. See id.; Compl. Ex. I at
2-3; Evatt Affidavit ¶¶ 10, 12, 13. Thus, he was not affected by
the policy he alleges is unlawful. See, e.g., Cuesta v. Sch. Bd.
of Miami-Dade Cty., Fla., 285 F.3d 962, 966 (11th Cir. 2002)
(ruling that a plaintiff can establish governmental liability
under § 1983 only by demonstrating the official policy was the
“moving force” behind a constitutional violation).
Moreover, to the extent such a policy exists and was enforced
here, Plaintiff has presented no evidence as to the “settled”
nature of the alleged policy such that a jury could reasonably
conclude it was a “widespread practice.” See id. at 967 (“A
plaintiff can establish § 1983 liability by identifying that []he
has been deprived of constitutional rights by either an express
policy or a ‘widespread practice that . . . is so permanent and
well settled as to constitute a custom and usage with the force of
law.’”).
The City has carried its burden to demonstrate there are no
genuine issues of material fact with respect to Plaintiff’s claims
against it. There is no evidence upon which a reasonable jury could
find the City implemented, adopted, or ratified a policy or custom
45
that
resulted
in
the
violation
of
Plaintiff’s
constitutional
rights. Thus, the City Motion is due to be granted.
Accordingly, it is now
ORDERED:
1.
Plaintiff’s
Motion
to
Compel
Response
to
Non-Party
Subpoena (Doc. 61) is DENIED.
2.
Plaintiff’s Motion for Extension of Time (Doc. 63) is
DENIED as moot.
3.
Plaintiff’s Request for Judicial Notice (Doc. 64) is
GRANTED.
4.
Defendant City of Fernandina Beach’s Motion for Summary
Judgment (Doc. 54) is GRANTED.
5.
Defendant Evatt’s Motion for Summary Judgment (Doc. 55)
is GRANTED.
6.
Defendant Benton’s Motion for Summary Judgment (Doc. 56)
is GRANTED.
7.
Defendant Douglass’s Motion for Summary Judgment (Doc.
57) is GRANTED.
8.
Defendant Hepler’s Motion for Summary Judgment (Doc. 58)
is GRANTED.
9.
The Clerk is directed to enter judgment in favor of
Defendants, terminate any pending motions, and close the case.
46
DONE AND ORDERED at Jacksonville, Florida, this 7th day of
March, 2019.
Jax-6
c:
Dennis Hutto
Counsel of Record
47
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