Bostick v. Sheriff of Orange County, Florida Sheriffs Office et al
Filing
50
ORDER granting in part and denying in part 38 Motion for summary judgment. Signed by Judge Roy B. Dalton, Jr. on 3/7/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TYRONE BOSTICK,
Plaintiff,
v.
Case No. 6:15-cv-1533-Orl-37GJK
DEPUTY LATASHA MCGUIRE;
DEPUTY JOHN DOE 1; and
DEPUTY JOHN DOE 2,
Defendants.
ORDER
This matter is before the Court on the following:
(1)
Defendant Deputy Latasha McGuire’s Motion for Partial Summary
Judgment and Memorandum of Law in Support Thereof (Doc. 38), filed
November 3, 2016;
(2)
Plaintiff’s Response to Defendant Latasha McGuire’s Motion for Partial
Summary Judgment (Doc. 45), filed November 16, 2016;
(3)
Defendant Deputy Latasha McGuire’s, Reply to Plaintiff’s Response to
Defendant’s Motion for Partial Summary Judgment (Doc. 46), filed
November 30, 2016.
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I.
INTRODUCTION 1
This action arose late in the evening on August 22, 2011, when three on-duty
deputy sheriffs (“Deputies”) employed by the Orange County Sheriff’s Office
(“OCSO”)—Latasha McGuire (“McGuire”), Brian Hummell (“Hummell”), and Ryan
Donovan (“Donovan”) — spotted Plaintiff Tyrone Bostick (“Plaintiff”) walking alone
near a closed business in Orlando, Florida. (See Doc. 39-1, ¶¶ 4, 8.) Without triggering
lights or sirens in the unmarked Dodge Intrepid (“Vehicle”) she was driving, McGuire
pulled behind Plaintiff in order to initiate a “consensual” encounter. (See id. ¶¶ 8, 9;
Doc. 45-3, pp. 1–2.) Before the Deputies had completely exited the Vehicle, Plaintiff—who
had at that point done nothing that might support a reasonable articulable suspicion of
criminal activity—fled in fear. (See Doc. 43-1, pp. 122–23, 127–29, 134–35.) The Deputies
gave chase, and the chase ended when Plaintiff was knocked to the ground, handcuffed,
beat, searched, and taken into custody with injuries to his hands, knees, and head. (See id.
78–79, 81, 131–32, 138–40, 144–50; see also Doc. 41-1, p. 15; Doc. 45-3, p. 2; Doc. 45-4, ¶ 9.)
Four years after this incident, on August 21, 2015, Plaintiff filed a complaint in
state court against McGuire, Sheriff Jerry L. Demings (“Demings”), and two unnamed
Defendants (“Doe Defendants”). (Doc. 2.) Less than thirty days later, Demings and
McGuire removed the action to this Court (Doc. 1) and filed motions to dismiss the claims
facts recited here and in more detail below are not the actual facts of the case. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). Rather, they reflect the Plaintiff’s “best
case”—which is what the Court must consider at this stage of the proceedings. See
Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005); see also Walker v. City of Riviera
Beach, 212 F. App’x 835, 837 (11th Cir. 2006).
1The
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against them (Docs. 6, 7). Plaintiff then filed an Amended Complaint, which contained
state law and federal civil rights claims against McGuire and the Doe Defendants but did
not name Demings as a Defendant. (Doc. 13.) McGuire again moved to dismiss (Doc. 16
(“MTD”)), and Plaintiff requested leave to file a second amended complaint to name
Hummell and Donovan in place of the Doe Defendants (Doc. 28 (“MTA”)). The Court
granted the MTD in part and dismissed Count Twenty-One (Doc. 30), and it denied the
MTA as futile because the statute of limitations had passed on Plaintiff’s claims against
Hummell and Donovan (Docs. 32, 33).
McGuire now moves for summary judgment on the six claims asserted against her:
(1) invasion of privacy, intentional infliction of emotional distress (“IIED”), and false
imprisonment under state law; and (2) unlawful search, seizure, and use of excessive
force in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution.
(Doc. 38 (“SJ Motion”).) Plaintiff responded in opposition to the SJ Motion (Doc. 45
(“Response”)), McGuire replied (Doc. 46 (“Reply”)), and the matter is now ripe for
adjudication.
II.
LEGAL STANDARDS
A party is entitled to summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); e.g. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Penley v. Eslinger,
605 F.3d 843, 848–49 (11th Cir. 2010). In resolving motions for summary judgment, courts
must not make credibility assessments or weigh conflicting evidence. See Hairston v.
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Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993). Rather, courts must: (1) view the
record evidence in the light most favorable to the non-moving party; and (2) draw all
reasonable inferences in favor of the non-moving party. See White v. Pauly, 137 S. Ct. 548,
550 (2017); see also supra n.1. If a reasonable fact finder could draw more than one
inference from the facts and that inference creates an issue of material fact, a court must
not grant summary judgment. 2 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
III.
THE FACTS VIEWED IN THE LIGHT MOST FAVORABLE TO PLAINTIFF
On August 22, 2011, Plaintiff was visiting his parents in a West Orange County
neighborhood where he had lived for most of his life. (See Doc. 43-1, pp. 6, 11, 127–28.)
Plaintiff claimed it was not a “high crime” area. (See id.) Plaintiff did not have a car, so a
friend had dropped Plaintiff off at his mother’s home around 10:30 p.m. (See id. at 11–12,
14.) After visiting his mother and sister for approximately two hours, Plaintiff set off to
walk by himself to his father’s home, which was about a mile and a half away. (See id. at
15–17, 20.) Plaintiff—a 5’8” and 165 pound black male—was wearing “blue jeans, a black
shirt with gray and silver writing,” and black athletic shoes. (See id. at 21.) He was not
carrying a bag of any kind. (See id.)
While Plaintiff was walking through his family’s neighborhood—which the
Deputies contend is a high crime area—the Deputies were conducting “proactive” patrol
while dressed in their “official OCSO issued uniform[s] consisting of: an OCSO badge,
2 An issue of fact is “material” if, under the applicable substantive law, it might affect the
outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004).
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. Id. at 1260.
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gold embroidered law enforcement shield on each shoulder sleeve,” a ballistic vest, and
a “utility belt that contained OCSO issued gun, gun holder, ammunition, baton,
flashlight, handcuffs, Taser and OC spray.” 3 (See Doc. 39-1, ¶¶ 4, 6, 7; Doc. 39-2, ¶¶ 4, 6,
7; Doc. 41-1, p. 6; Doc. 42-1, p. 12; see also Doc. 40-1, p. 9 (testifying that the Deputies were
conducting “directed patrol in some of the higher crime areas of Sector 3,” Pine Hills).)
Although it was not her usual practice, McGuire was driving Donovan and Hummell in
an unmarked “pool car”—the Vehicle—which was checked out from the substation. (See
Doc. 41-1, pp. 6–7; see also Doc. 39-1, ¶ 5; Doc. 39-2, ¶ 5; Doc. 40-1, pp. 11–12.)
While Plaintiff was walking near a store that was out of business in a poorly-lit
area on Ivey Lane, he noticed the Vehicle drive past him, make a U-turn, and drive back
toward him, at which point Plaintiff also noticed that the windshield of the Vehicle was
tinted and he could not see in. (See Doc. 43-1, pp. 121–22, 126.) The Vehicle then made
another quick turn to pull close behind Plaintiff. 4 (See id. at 122–27.) Before the Vehicle
even came to a stop, Plaintiff saw the backdoors open and black gloved hands begin to
emerge on both sides. (See id.)
Because Plaintiff was alone, it was late at night, he could not see into the
windshield of the Vehicle, and no police lights had flashed, Plaintiff became frightened.
3 Plaintiff denies that he recognized that the Deputies were law enforcement until he was
taken to jail; rather, he thought that the Deputies were dressed all in black—not in police
uniforms. (See Doc. 43-1, pp. 105–06, 168.)
4 The Deputies agree that McGuire pulled the Vehicle very close behind Plaintiff, and
they explain that McGuire did so in an attempt to engage Plaintiff in a consensual
encounter. (See Doc. 39-1, ¶ 9; Doc. 39-2, ¶ 9; Doc. 40-1, pp. 13–14; Doc. 41-1, p. 9;
Doc. 42-1, p. 6; Doc. 45-3, p. 1; Doc. 45-4, ¶ 5.)
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(See Doc. 43-1, pp. 123, 127–29.) Thinking “the worst”, he immediately “started to run”
toward a lighted area before the Deputies fully emerged from the Vehicle. 5 (See id.)
According to Plaintiff:
I decided to go straight across [the street] which is corner to
corner. And this right here, was the only place where they had
lights. But, before I can even get across the corner, both of the
police officers, at the time, was up on me to a point where
when I finally got to the—to the edge of the corner, I felt hands
on me.
(See id. at 130.) Plaintiff further testified that, while in full stride, he was pushed from
behind and fell onto the sidewalk 6:
When I got pushed, I rolled a little bit. I slid first and then
rolled a little bit. While I’m down—face down, I feel one of
them with one arm and the other one with the other arm,
pulling me up by the back end of my shirt and with the free
arm, they was [sic] beating me. So by the time I get down to
the ditch, I looked back and realized that I’m three to four
houses down from the corner.
(Doc. 43-1, p. 139; see also id. at 81–82, 131–32, 134.) Plaintiff denies that he heard anyone
direct him to stop or shout police, but he claims that he did hear two male voices from
the Vehicle yell racial epithets and threats to his life just as he started to flee. (See id. at
The Deputies contend that McGuire brought the Vehicle to a complete stop and they
had exited the Vehicle and were just standing by the Vehicle when Plaintiff looked at
them and then took flight. (See Doc. 39-1, ¶ 10 (“After exiting the [Vehicle, Plaintiff] looked
in our direction and then ran toward us . . . . Once he ran past us, I started running after
him in a foot pursuit.”); see also Doc. 40-1, pp. 14–15; Doc. 42-1, p. 7.)
6 All three Deputies testified that immediately upon crossing the street, Plaintiff fell on
his own in a drainage ditch. (See Doc. 39-1, ¶ 10; Doc. 39-2, ¶ 10; Doc. 40-1, p. 17 (“Once
he got to the other side he tripped and fell in a . . . drainage ditch.”); Doc. 41-1, pp. 11–12;
Doc. 42-1, p. 9; Doc. 45-1, p. 2; Doc. 45-3, pp. 1–2 (“While running through the ditch on
the west side of Ivey Lane at Lenox Blvd, [Plaintiff] tripped and fell towards the concrete
sidewalk.”)
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123–24, 128, 134–36.)
McGuire testified that while Plaintiff was running across the street, she verbally
identified the Deputies as police and ordered Plaintiff to stop running when she saw him
commit a pedestrian violation. (See Doc. 41-1, pp. 10–11.) No one else remembers
McGuire yelling such statements (see Doc. 40-1, p. 16; Doc. 42-1, pp. 8–9), and both
Hummell and Donovan testified that they did not identify themselves as police or order
Plaintiff to stop. (See Doc. 40-1, p. 16; Doc. 42-1, pp. 8–9.) McGuire also testified that all
three Deputies chased after Plaintiff, and—while Donovan and Hummell restrained
him—she is the one who placed handcuffs on Plaintiff and searched him. (See Doc. 41-1,
pp. 11, 12, 15.) Donovan and Hummell similarly testified that McGuire was present and
involved in the restraint and handcuffing of Plaintiff. (See Doc. 40-1, p. 18; Doc. 42-1, p. 9.)
Unlike the Deputies, Plaintiff did not know where McGuire was when he was
restrained and handcuffed because she did not “make herself known at all.” (See
Doc. 43-1, pp. 137, 166–67.) According to Plaintiff, his head was down and he did not
“have a chance to look around” while the male Deputies beat him with closed fists and a
black baton on the head and body both before and after McGuire put him in handcuffs.
(See Doc. 43-1, pp. 108–10, 118–19, 138-39, 142–49, 169.) Plaintiff testified that he did not
defend himself by striking back at the Deputies (see id. at 168–69), but he was “crying”
and screamed for help (see id. at 141, 148). Plaintiff further testified that the beating did
not stop until “two other officers showed up” in a marked car with lights and sirens. (See
id. at 108–09, 118–19, 150–51.)
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At McGuire’s request, the fire department responded to examine injuries on
Plaintiff’s hands, 7 but Plaintiff refused treatment and transport to the hospital. (See
Doc. 45-3, p. 2; see also Doc. 43-1, p. 84.) Plaintiff instead was transported to jail where
McGuire wrote an Incident Report (“Report”) which included a description of Plaintiff’s
arrest that made no mention of Donovan or Hummell:
Upon stopping my unmarked car, I exited the vehicle. . . . As
I went around the rear of my vehicle, [Plaintiff] could see that
I was law enforcement. . . .
[Plaintiff] suddenly ran, taking headlong flight . . . past my
car, running away from me. Upon reaching Ivey Ln, [Plaintiff]
crossed the street diagonally . . . thereby committing a
pedestrian violation. I yelled for [Plaintiff] to stop running
and talk to me at this time . . . . [Plaintiff] did not comply,
continuing to run eastbound away from me . . . .
[Plaintiff] then ran into the grass, approximately 20 feet from
Ivey Lane, where there is a drainage ditch. [Plaintiff] fell
forward after tripping on the drainage ditch, causing
lacerations to his hands. I was able to reach [Plaintiff] and
secure him after he fell. . . .
I subsequently arrested [Plaintiff] for resisting an officer
without violence.
(Doc. 45-1, p. 2; see also Doc. 41-1, pp. 13–15.)
McGuire explained that she arrested Plaintiff for the misdemeanor offense of
resisting an officer without violence in violation of Florida Statutes, § 843.02 (“ROWV”)
(See Doc. 40-1, p. 18 (“Once he was secured, we saw that he had some lacerations and
contusions on his hand so we called for the fire department”); Doc. 41-1, p. 11 (testifying
that the Deputies “called for the fire department” because Plaintiff “had abrasions on his
hands”); Doc. 42-1, p. 8 (testifying that the fire department arrived and “evaluated”
Plaintiff’s injuries”); Doc. 45-3, p. 2.)
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“[b]ecause he failed to stop when I told him to do so after identifying ourselves as law
enforcement.” (See Doc. 41-1, p. 12; see also Doc. 45-1; Doc. 45-3, p. 2.) She said she did not
mention Donovan or Hummell in the Report because “it was a small, insignificant
misdemeanor crime . . . and [t]hey didn’t do anything that warranted documentation for
which I wasn’t present for, and I’m the one who made the arrest.” (See Doc. 41-1, p. 13;
see also Doc. 42-1, p. 11 (explaining that “McGuire was the one . . . that engaged in the
consensual encounter” and “witnessed” the pedestrian violation, “so she was the
arresting officer”); Doc 43-1, pp. 102, 115–16 (describing McGuire as the “lead officer”).)
Plaintiff testified that he spent one day in jail after his arrest. (See id. at 11.) Plaintiff
had to borrow $500 from a friend to post bail, he had to appear in court one time, and he
had to meet his appointed public defender in the public defender’s office. (See id. at 23–
27.) Ultimately, the State Attorney terminated the criminal action against Plaintiff by
entering a nolle prosequi. (See Doc. 45-2; see also Doc. 43-1, p. 26.) Since these events,
Plaintiff claims that he has had trouble finding work, attending school, and going about
his business without anxiety and fear. (See e.g. Doc. 41-1, pp. 27–31, 83, 96.)
IV.
PLAINTIFF’S STATE LAW CLAIMS
Plaintiff asserts three state law claims against McGuire for invasion of
privacy/intrusion on seclusion (“Count One”), intentional infliction of emotional
distress (“Count Eleven”), and false imprisonment (“Count Six”). (See Doc. 13, ¶¶ 34–38,
61–71, 112–20.) In her SJ Motion, McGuire argues that: (1) Count One fails because
Plaintiff had no reasonable expectation of privacy while he walked on a public street (see
Doc. 38, pp. 7–8); (2) Count Eleven is wholly unsubstantiated (see id. at 12–13); and
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(3) Count Six fails because McGuire had probable cause to arrest Plaintiff (see id. at 8–11).
As explained below, the Court agrees with McGuire concerning Counts One and Eleven
but rejects her arguments concerning Count Six.
A.
Count One
Florida law is clear that the tort of intrusion upon seclusion protects persons
located in a “place” where the person has a reasonable expectation of privacy. See Spilfogel
v. Fox Broad. Co., 433 F. App’x 724, 726 (11th Cir. 2011); Allstate Ins. Co. v. Ginsberg,
863 So. 2d 156, 160–62 (Fla. 2003). A public street is not such a “place.” See Spilfogel,
433 F. App’x at 726 (affirming dismissal because the complained of intrusion occurred on
a public street). Here, the events complained of by Plaintiff indisputably occurred on a
public street; thus, Count One fails as a matter of law, and summary judgment is due to
be entered in favor of McGuire. 8
B.
Count Eleven
Under Florida law, recovery for the tort of intentional infliction of emotional
distress (“IIED”) requires proof of the following elements: “(1) the defendant’s conduct
was intentional or reckless; (2) the conduct was outrageous, beyond all bounds of
decency, and odious and utterly intolerable in a civilized community; (3) the conduct
caused emotional distress; and (4) the distress was severe.” See Moore v. Pederson,
806 F.3d 1036, 1053 (11th Cir. 2015). McGuire argues that the Court should enter
summary judgment in her favor because insufficient record evidence exists to raise a
In any event, Plaintiff effectively abandoned Count One by failing to even reference it
in his Response to the SJ Motion. (See Doc. 45.)
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question of material fact concerning the severe distress element. (See Doc. 38, pp. 12–13.)
To satisfy the severe distress element, Plaintiff must point to evidence that the
distress inflicted on him was “so severe that no reasonable man could be expected to
endure it.” See Frias v. Demings, 823 F. Supp. 2d 1279, 1288–89 (M.D. Fla. 2011) (quoting
Restatement (Second) of Torts § 46, cmt. j (1965)). The only evidence identified by
Plaintiff—his own testimony that he’s “paranoid when [he’s] around police and stuff
[and he] don’t [sic] go outside much”—does not meet this high standard. (See Doc. 45,
p. 7 (citing Doc. 43-1, p. 83); see also Doc. 43-1, pp. 73–74 (testifying that Plaintiff had not
received mental health counseling).) Thus, summary judgment is due to be entered in
favor of McGuire on Count Eleven. 9
C.
Count Six
Under Florida law, false imprisonment is the unlawful, unwarranted, and
unreasonable “restraint of a person against his will.” See Kanner v. First Nat’l Bank of S.
Miami, 287 So. 2d 715, 717 (Fla. 3d DCA 1974); see also Harris v. Solvonic, 386 So. 2d 19, 20
(Fla. 3d DCA 1980) (noting that law enforcement officers may be held liable for the tort
of false arrest when they arrest a person without authority to do so). Proof that an arrest
was supported by probable cause “is a complete bar to an action for false arrest and false
See Pederson, 806 F.3d at 1053–54 (affirming summary judgment in favor of defendant
on IIED claim where plaintiff failed to point to evidence that he suffered “severe”
emotional distress as a result of arrest); Frias, 823 F. Supp. 2d at 1289 (granting summary
judgment because the embarrassment of a false arrest is insufficiently severe emotional
distress to sustain an IIED claim); see also Rubio v. Lopez, 445 F. App’x 170, 175
(11th Cir. 2011) (finding testimony of psychiatrist concerning possible posttraumatic
stress disorder was insufficient to defeat motion for summary judgment on IIED claim).
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imprisonment.” See Bolanos v. Metro. Dade Cnty., 677 So. 2d 1005, 1005 (Fla. 3d DCA 1996).
“The key time to be considered with respect to an arrest is the moment of arrest at the
scene, as to whether there was then and there . . . reasonable cause for arrest.” Spicy v.
City of Miami, 280 So. 2d 419, 422 (Fla. 1973).
McGuire contends that she is entitled to summary judgment on Count Six because
she “lawfully arrested” Plaintiff for violating Florida Statute, § 843.02. 10 (See Doc. 38,
pp. 9–11.) According to McGuire, the lawfulness of Plaintiff’s arrest is established by the
following facts: (1) McGuire observed Plaintiff “at night in a known high-crime area”;
(2) Plaintiff “fled from uniformed deputies when approached” even though he “was
aware” that they were pursuing him; and (3) “Plaintiff ignored [McGuire’s] commands
to stop running.” (See Doc. 38, pp. 8, 11 (arguing that Plaintiff’s flight gave the Deputies
“legal cause to order Plaintiff to stop and his continued headlong flight in disregard of
their order justified his arrest” for RWOV).)
The Court rejects McGuire’s argument because it relies on disputed facts viewed
in the light most favorable to McGuire—not Plaintiff. Indeed, under Plaintiff’s best case,
reasonable jurors could find that: (1) Plaintiff did not flee from the Deputies—he fled in
fear from unseen persons emerging from a Dodge Intrepid with darkly tinted windows
that inexplicably pulled up close behind him while he was innocently walking to his
father’s house; and (2) the Deputies neither identified themselves nor ordered Plaintiff to
Section 843.02 provides in pertinent part that those who “resist, obstruct, or oppose
any officer . . . in the lawful execution of any legal duty . . . shall be guilty of a
misdemeanor of the first degree.”
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stop before chasing him down, pushing him to the ground, and placing him in handcuffs.
(See Doc. 43-1, pp. 122–24; see also Doc. 40-1, pp. 15–16; Doc. 42-1, pp. 8–9.) Because no
reasonable officer could find that McGuire had probable cause to arrest Plaintiff under
these facts—which reflect Plaintiff’s “best case”— McGuire’s request for summary
judgment in her favor on Count Six is due to be denied.
V.
PLAINTIFF’S FEDERAL CLAIMS
Plaintiff asserts three claims against McGuire in accordance with 42 U.S.C. §§ 1983
and 1988 for unlawful arrest (“Count Fifteen”), unlawful search (“Count Twelve”), and
use of excessive force (“Count Twenty”), in violation of the Fourth and Fourteenth
Amendments to the U.S. Constitution. (See Doc. 13, ¶¶ 121–28, 145–55, 196–207.) McGuire
argues that summary judgment should be entered in her favor on each of these claims
because the record evidence establishes as a matter of law that: (1) McGuire did not
violate any constitutional right of Plaintiff; and (2) the doctrine of qualified immunity
(“QI Doctrine”) shields McGuire from suit. (See Doc. 38, pp. 14–23.) Again, the Court
rejects McGuire’s arguments because they rely on facts that are contrary to the record
evidence of Plaintiff’s “best case.”
A.
The Legal Standards
1.
The Fourth Amendment
Enforceable against the States through the Fourteenth Amendment, the Fourth
Amendment protects the “right of the people to be secure in their person, houses, papers,
and effects, against unreasonable searches and seizures.” See U.S. Const. amend. IV; see
also Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (noting the Fourth Amendment
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requirement that all searches and seizures are “objectively reasonable based on the
totality of the circumstances”). Consensual encounters between police officers and
persons are not prohibited under the Fourth Amendment; however, the Fourth
Amendment does prohibit law enforcement officers from subjecting any person to: (1) an
investigatory stop absent “reasonable suspicion” to suspect the particular person stopped
of criminal activity (see Navarette v. Cal., 134 S. Ct. 1683, 1687 (2014); Terry v. Ohio, 392 U.S.
1, 1 (1968)); and (2) a full custodial arrest unless such arrest is justified by a warrant or
“probable cause” to believe the arrested person committed or was about to commit a
criminal act (see Dunaway v. N.Y., 442 U.S. 200, 208–09 (1979)). 11
Absent a warrant or probable cause to arrest, the Fourth Amendment also
prohibits law enforcement officers from searching and using physical force against a
person. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004). 12 Further, even if a seizure is
justified by a warrant or probable cause, it still may be objectively unreasonable under
the Fourth Amendment if an individual is subjected to “excessive force.” See Graham v.
Connor, 490 U.S. 386, 394–95 (1989); Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).
Although “precise definitions” are impossible, the U.S. Supreme Court has explained
that the probable cause standard requires “reasonable ground[s]” for a belief in the guilt
of the particular person to be seized. See Maryland v. Pringle, 540 U.S. 366, 370–71 (2003).
Under the totality of the circumstances test, probable exists if—viewed from the
standpoint of an objectively reasonable police officer—the facts and circumstances within
the acting officer’s knowledge “and of which [she] had reasonably trustworthy
information” warrant the belief that the person to be seized committed or was
committing a criminal offense. See Brinegar v. United States, 338 U.S. 160, 175–76 (1949).
12 Here, McGuire contends that she “had the authority to search Plaintiff’s person
incident to arrest.” (Doc. 38, p. 16 (citing Weeks v. United States, 232 U.S. 838 (1914) and
Chimel v. Cal., 395 U.S. 752, 762–63 (1969)).
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Arrests and investigatory stops necessarily involve “some degree of physical coercion;”
thus, to determine that a particular use of force is objectively unreasonable, courts must
“carefully balance” the “governmental interests at stake” against “‘the nature and quality
of the intrusion on the individual’s Fourth Amendment interests.’” See Graham, 490 U.S.
at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Again, courts must apply an
objective totality of the circumstances test when assessing uses of force. See id. at 396–97.
2.
42 U.S.C. § 1983
Individuals may seek redress for violations of their Fourth Amendment rights by
asserting claims under 42 U.S.C. § 1983. See Baker v. McCollan, 443 U.S. 137, 144 n.4 (1979)
(describing § 1983 as a “method for vindicating federal rights elsewhere conferred”). To
prevail on such a claim against a police officer sued in her individual capacity, a plaintiff
must establish that the officer deprived him of his Fourth Amendment rights while acting
under “color of state law.” See 42 U.S.C. § 1983.
3.
The QI Doctrine
The QI Doctrine shields public officials from liability under § 1983 so long as:
(1) the official was acting within the course and scope of her employment (“Threshold
Issue”); and (2) the official did not violate a “clearly established” constitutional right of
which a “reasonable person would have known” (“Constitutional Issue”). See Pauly,
137 S. Ct. at 551. Properly applied, the QI Doctrine protects from suit all but “the plainly
incompetent” or those who knowingly violate federal law. See id.; see also Mullenix v. Luna,
136 S. Ct. 305, 308 (2015).
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In unlawful search and seizure actions, only arguable probable cause need exist for
the QI Doctrine to apply. See Valderrama v. Rousseau, 780 F.3d 1108, 1113 (11th Cir. 2015)
(noting that officers may be entitled to qualified immunity “even if there was no actual
probable cause”). The “arguable” probable cause standard is satisfied if “an objectively
reasonable officer in the same circumstances and possessing the same knowledge” as the
arresting officer could believe that probable cause or reasonable suspicion justified the
seizure of a person. See Williams v. Sirmons, 307 F. App’x 354, 358 (11th Cir. 2009). No
“neat set of legal rules” applies to these inquiries. See United States v. Sokolow, 490 U.S. 1,
8 (1989). Rather, courts must apply “common-sense” and objectively assess the “totality
of the circumstances” known to the officers at the time of the arrest and must not consider
their subjective state of mind. See id.
B.
The Threshold Issue
McGuire contends that the Threshold Issue is met because there is no “dispute”
that she “was acting within the course and scope of her duties as a deputy sheriff” when
she encountered Plaintiff on August 22, 2011. (See Doc. 38, p. 20.) Plaintiff counters that
the Threshold Issue is in dispute because McGuire’s “discretionary” duties would not
allow her to: (1) “approach an innocent bystander in an unmarked vehicle from behind”
after driving past him; (2) exit such vehicle and chase the innocent bystander without
identifying herself; and (3) allow fellow officers to “viciously beat” the bystander. (See
Doc. 45, p. 8.)
Plaintiff’s argument reflects an “untenable tautology,” that has been rejected by
the U.S. Court of Appeals for the Eleventh Circuit. See Holloman v. Harland, 370 F.3d 1252,
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1265–66 (11th Cir. 2004) (noting that the threshold qualified immunity issue cannot turn
on allegations of misconduct because violation of “someone’s constitutional rights is
never a legitimate job-related function or within the scope of a government official’s
authority or power”). To avoid this tautology, courts must “temporarily” put aside the
fact that the conduct at issue may have been unconstitutional and focus instead on
whether the “acts in question are of a type that fell within [the employee’s] job
responsibilities.” See id. Thus, McGuire need not disprove Plaintiff’s claims of
unconstitutional conduct—she need only establish that she was performing legitimate
job-related functions through means that were within her power to utilize. See id.
The facts are that McGuire has been employed by the OCSO as a deputy since 2008
(see Doc. 40-1, pp. 5–8), and on the evening of August 22, 2011: (1) she was working in
the uniform patrol department; (2) she was on patrol in “Sector 3 in Pine Hills” with two
other OCSO deputies (see id. at 8–11); and (3) as a deputy on patrol, McGuire had
authority to “attempt to effectuate arrests.” See Holloman, 370 F.3d at 1266–67; (see also
Doc. 41-1, p. 6). Thus, but for “the alleged constitutional infirmity”—which the Court
must disregard temporarily—it is clear that McGuire “was acting within the course and
scope of her duties as a deputy sheriff” when she encountered Plaintiff. See Holloman,
370 F.3d at 1267; Ferraro, 284 F.3d at 1194 (finding that an allegedly unlawful arrest by a
law enforcement officer fell within the “course and scope” of the officer’s employment).
C.
The Constitutional Issue
Because McGuire has established the Threshold Issue in her favor, Plaintiff can
defeat the SJ Motion only by establishing that McGuire’s actions violated Plaintiff’s
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constitutional rights,13 and that such rights were clearly established. See Hope v. Pelzer,
536 U.S. 730, 741 (2002). A constitutional right is “clearly established” if precedent places
the “constitutional question beyond debate.” See Mullenix, 136 S. Ct. at 308. Here,
pertinent precedent must pre-date August 22, 2011, and it must come from the
U.S. Supreme Court, the Eleventh Circuit, or the Florida Supreme Court. See id. at 309; see
also Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007). In an “obvious case,” general
statements of constitutional law may provide officers with “fair and clear warning.” See
Pauly, 137 S. Ct. at 552 (citing United States v. Lanier, 520 U.S. 259, 271 (1997).) But in most
cases, the pertinent precedent must be “particularized” to the facts of the case. See id.
(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Brosseau v. Haugen,
543 U.S. 194, 599–600 (2004) (emphasizing that the qualified immunity inquiry must
relate to specific facts—not general propositions).
1.
Counts Twelve & Fifteen
Here, McGuire admits that she “did not possess any information or knowledge to
support a reasonable articulable suspicion that Plaintiff [] was engaged in, or had recently
committed criminal activity” when she initiated the encounter with Plaintiff. (Doc. 45-4,
¶ 8.) Further, McGuire does not dispute that arguable probable cause existed to arrest
Plaintiff for ROWV only if Plaintiff took unprovoked flight in a high crime area and then
13 Here, the constitutional rights at issue are the Fourth Amendment rights to be free from
unreasonable arrests (Count Fifteen) and searches (Count Twelve) and use of excessive
force (Count Twenty). (See Doc. 13; see also Doc. 45, p. 8.) Such rights are enforceable under
the Fourth Amendment—not the more general Due Process Clause as Plaintiff asserts (see
Doc. 45, p. 8). See Albright v. Oliver, 510 U.S. 266, 273–74 (1994).
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failed to obey a lawful command to stop running. (See Doc. 38, pp. 18–19; Doc. 46, pp. 5,
6, 8 (discussing C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009).) According to McGuire, the
evidence establishes that she “engaged in a consensual encounter with Plaintiff, after
which [he] took headlong flight” and continued to run after McGuire “ordered him to
stop fleeing.” (See Doc. 46, p. 7.)
Contrary to McGuire’s characterization of the undisputed facts, the record
evidence of Plaintiff’s best case is that: (1) Plaintiff’s flight was not “unprovoked” because
the appearance and behavior of the Vehicle justified Plaintiff’s fear and flight, which
commenced before the Deputies fully emerged from the Vehicle; 14 (2) Plaintiff’s flight was
further justified by the threats and racial epithets he heard coming from the Vehicle;
(3) the Deputies did not identify themselves to Plaintiff or order him to stop after
initiating an encounter with him; and (4) with the assistance of Hummell and Donovan,
McGuire simply chased an innocent person down, handcuffed him, arrested him for
ROWV, and searched him without arguable cause of any kind. (See Doc. 45, pp. 9–15
(discussing Skop v. City of Atlanta, 485 F.3d 1130 (11th Cir. 2007) and Jackson v. Sauls,
206 F.3d 1156 (11th Cir. 2000)); see also supra Part. III.) Under these facts, McGuire is not
entitled to qualified immunity for Counts Twelve or Fifteen, and McGuire’s request for
summary judgment in her favor on such claims is due to be denied.
Based on this fact, it is immaterial whether or not the Deputies were wearing their
uniforms because no reasonable officer could have believed that Plaintiff actually saw the
uniforms before he took flight.
14
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2.
Count Twenty
As to Plaintiff’s claims that he was subjected to excessive force in violation of the
Fourth Amendment, McGuire concedes that “Plaintiff’s account of the extensive beating
creates a material issue of fact for the jury to determine.” (Doc. 38, p. 22.) Thus, she does
not request summary judgment to the extent Count Twenty is based on such beating. (See
id.) Rather, McGuire requests partial summary judgment only to the extent that Plaintiff
seeks to hold McGuire vicariously liable for the push that initially caused Plaintiff to fall
to the ground. (See id.) As to this claim, McGuire argues that she is entitled to summary
judgment because the record is “undisputed” that McGuire was not in a position to
intervene in the push because it “occurred too rapidly.” (See Doc. 38, pp. 21–23 (citing
Brown v. City of Huntsville, 608 F.3d 724, 740, n.40 (11th Cir. 2010) and Riley v. Newton,
94 F.3d 632, 635 (11th Cir. 1996)); see also Doc. 46, p. 10 (citing Ensley v. Sloper, 142 F.3d
1402, 1407–08).)
In his Response, Plaintiff relied on a clearly distinguishable case decided by the
Eleventh Circuit—Priester v. City of Riviera Beach, 208 F.3d 919, 927–928 (11th Cir. 2000)—
which involved an officer’s failure to intervene when his K-9 officer attacked an arrestee.
(See Doc. 45, pp. 15–16.) Plaintiff also failed to specify how McGuire could possibly have
prevented Hummell or Donovan from pushing Plaintiff to the ground so quickly after
the chase commenced. (See id.) Accordingly, the Court finds that McGuire is entitled to
partial summary judgment on Count Twenty. At trial, Count Twenty will be limited to
the question of whether McGuire may be held liable—on a failure to intervene theory—
for the force Plaintiff was subjected to by Hummell and Donovan after Plaintiff fell.
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IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Defendant Deputy Latasha McGuire’s Motion for Partial Summary
Judgment and Memorandum of Law in Support Thereof (Doc. 38) is GRANTED IN
PART AND DENIED IN PART. The Motion is GRANTED with respect to Counts One,
Twelve, and Twenty and is otherwise DENIED.
2.
Summary judgment is ENTERED in favor of Defendant Latasha McGuire
and against Plaintiff Tyrone Bostick on Counts One and Twelve of the Amended
Complaint (Doc. 13).
3.
Summary judgment is ENTERED in favor of Defendant Latasha McGuire
and against Plaintiff Tyrone Bostick as to Plaintiff’s claim under Count Twenty that
Defendant Latasha McGuire is liable for failing to intervene to prevent Plaintiff from
being pushed to the ground.
4.
This action will proceed to trial on Counts Six, Twelve, Fifteen, and part of
Count Twenty as explained in this Order.
DONE AND ORDERED in Orlando, Florida, this 7th day of March, 2017.
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Copies to:
Counsel of Record
Unrepresented Parties
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