Freeman et al v. City of Tampa, Florida et al
Filing
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ORDER: Defendants' Amended Motion to Dismiss 11 is granted in part and denied in part. The official capacity claim against Defendant Ronald E. Graham is dismissed with prejudice. Count 11 is dismissed without prejudice to Plaintiffs to amend this claim. Plaintiffs shall be mindful of their Rule 11 obligations and shall amend this claim only if they have sufficient facts of previous similar incidents that would have placed the City of Tampa on adequate notice of a need to train its officers. Defendants shall file their answer to the complaint within fourteen (14) days of this Order. Signed by Judge James S. Moody, Jr on 12/8/2015. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GEORGE FREEMAN and
FLORIDA CARRY, INC.,
Plaintiffs,
v.
CASE NO: 8:15-CV-2262-T-30EAJ
CITY OF TAMPA, FLORIDA,
a municipality, ROCCO CORBINO, an
individual, TRAVIS A. RICHARDS, an
individual, JOHN DOES, Three Unknown
Officers of the Tampa Police Department,
individually, RONALD E. GRAHAM, in
his official capacity, RONALD E. GRAHAM,
individually, ERIC WARD, Chief, in his
official capacity, ERIC WARD, Chief,
individually, ROBERT F. BUCKHORN,
in his official capacity, and ROBERT F.
BUCKHORN, individually,
Defendants.
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ORDER
THIS CAUSE comes before the Court upon Defendants’ Amended Motion to Dismiss
(Dkt. #11) and Plaintiffs’ Response in Opposition (Dkt. #12). The Court, upon review of the
motion, response, and being otherwise advised in the premises, concludes that the motion
should be granted in part and denied in part.1
1
Plaintiffs do not oppose dismissal of the official capacity claim against Defendant Ronald Graham.
This claim will be dismissed with prejudice. Defendants’ motion is also granted to the extent that
Count 11 is dismissed without prejudice. The motion is otherwise denied.
BACKGROUND
Plaintiffs George Freeman and Florida Carry, Inc. filed the instant action under
Florida Statute § 790.33, the firearms preemption statute, and 42 U.S.C. § 1983, against
various Defendants related to the events that occurred on June 13, 2015, when Freeman was
fishing at the Ballast Point Pier while openly carrying a firearm. Specifically, on or about
June 13, 2015, Freeman was fishing at the Ballast Point Pier in Tampa, Florida. The Pier is
located in Ballast Point Park, a public park. Freeman, who is left handed, was in possession
of an openly carried firearm in a vertical shoulder holster on his right side. Freeman, a
Florida Concealed Weapons Firearms License holder, was also in possession of a concealed
firearm on his belt.
While he was fishing, Defendants Rocco Corbino and Travis A. Richards, police
officers employed by the Tampa Police Department, approached Freeman from behind and,
without warning, suddenly grabbed Freeman and attempted to seize Freeman’s openly
carried firearm. One of the officers removed the firearm from Freeman’s shoulder holster
and asked Freeman if he had any other firearms in his possession. Freeman stated that he
was lawfully carrying a concealed firearm in addition to his openly carried firearm.
Defendant Officers then conducted a warrantless search of Freeman and seized his concealed
firearm. Defendant Officers also seized Freeman’s cell phone, wallet, keys, and conducted
a search of Freeman’s cell phone, including a search of Freeman’s contacts list and GPS data.
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Freeman attempted to inform Defendant Officers of his right to openly carry a firearm
while fishing as provided under Florida law (Section 790.25) but one of the Officers stated
to Freeman: “I don’t want to hear that shit.” (Dkt. 2 at ¶54). Defendant Officers, without
Freeman’s consent, then removed him from the pier where he was fishing and forced him to
go to their patrol car. At some point, Defendant Officers asked Freeman if he had any
additional firearms. Freeman acknowledged that he had an additional firearm in his vehicle.
Without his consent, Defendant Officers then seized this third firearm. Defendant Officers
conducted a serial number search of Freeman’s firearms through a database and kept a record
of the information.
During the course of the detention, Defendant Officers repeatedly threatened Freeman
with arrest. They informed Freeman that this was not the “Wild West.” (Dkt. 2 at ¶62).
They asked Freeman why he was carrying two guns and questioned him about who he was
associated with on the pier.
After being detained over seventy minutes, Defendant Officers told Freeman he would
not be arrested. Defendant Officers returned Freeman’s firearms to his vehicle in envelopes,
unloaded. Freeman was issued a Trespass Warning by the City of Tampa Police Department
prohibiting him from visiting Ballast Park Pier for the duration of the Trespass Warning. The
Trespass Warning stated that “[s]ubject was fishing at pier while carrying openly a handgun
in a side holster. Tampa Police received a complaint from [a] citizen who was fearful of
subject’s firearm.” (Dkt. 2 at ¶70). The Trespass Warning was effective for 180 days for
city parks or other public property.
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Freeman was a member of Florida Carry, Inc., an organization that exists for the
purpose of representing the rights of Florida firearms owners. As a result of Defendant
Officers’ actions, Florida Carry’s members have been adversely affected; they fear arrest and
prosecution if they engage in their right to openly carry a firearm while fishing in a Tampa
location.
Defendants now move to dismiss the complaint for failure to state a claim under Fed.
R. Civ. P. 12(b)(6).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim upon which relief can be granted. When reviewing a motion to
dismiss, a court must accept all factual allegations contained in the complaint as true, and
view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007).
However, unlike factual allegations, conclusions in a pleading “are not
entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). On the
contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed,
“conclusory allegations, unwarranted factual deductions or legal conclusions masquerading
as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
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DISCUSSION
I.
Claims under Florida Statute § 790.33 (Counts 1-6 and 12)
Defendants argue that Plaintiffs’ claims under section 790.33 fail to state a claim. The
Court disagrees. Section 790.33 states in relevant part:
(1) Preemption.—Except as expressly provided by the State Constitution or
general law, the Legislature hereby declares that it is occupying the whole
field of regulation of firearms and ammunition, including the purchase, sale,
transfer, taxation, manufacture, ownership, possession, storage, and
transportation thereof, to the exclusion of all existing and future county, city,
town, or municipal ordinances or any administrative regulations or rules
adopted by local or state government relating thereto. Any such existing
ordinances, rules, or regulations are hereby declared null and void.
(2) Policy and intent.—
(a) It is the intent of this section to provide uniform firearms laws in the state;
to declare all ordinances and regulations null and void which have been
enacted by any jurisdictions other than state and federal, which regulate
firearms, ammunition, or components thereof; to prohibit the enactment of any
future ordinances or regulations relating to firearms, ammunition, or
components thereof unless specifically authorized by this section or general
law; and to require local jurisdictions to enforce state firearms laws.
(b) It is further the intent of this section to deter and prevent the violation of
this section and the violation of rights protected under the constitution and
laws of this state related to firearms, ammunition, or components thereof, by
the abuse of official authority that occurs when enactments are passed in
violation of state law or under color of local or state authority.
(3) Prohibitions; penalties.—
(a) Any person, county, agency, municipality, district, or other entity that
violates the Legislature’s occupation of the whole field of regulation of
firearms and ammunition, as declared in subsection (1), by enacting or causing
to be enforced any local ordinance or administrative rule or regulation
impinging upon such exclusive occupation of the field shall be liable as set
forth herein.
...
(f) A person or an organization whose membership is adversely affected by
any ordinance, regulation, measure, directive, rule, enactment, order, or policy
promulgated or caused to be enforced in violation of this section may file suit
against any county, agency, municipality, district, or other entity in any court
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of this state having jurisdiction over any defendant to the suit for declaratory
and injunctive relief and for actual damages, as limited herein, caused by the
violation. A court shall award the prevailing plaintiff in any such suit:
1. Reasonable attorney’s fees and costs in accordance with the laws of this
state, including a contingency fee multiplier, as authorized by law; and
2. The actual damages incurred, but not more than $100,000.
The crux of Defendants’ argument is that Plaintiffs do not allege a specific ordinance,
administrative regulation, or rule that impinges on the legislature’s preemption. Defendants
point out that the City of Tampa ordinance that was in conflict with the legislature’s
preemption was repealed approximately nine months before the June 2015 incident with
Freeman.
As Plaintiffs state in their response, Defendants’ argument is without merit at this
stage. The allegations of the complaint are clear that Defendant Officers believed that
Freeman could not openly possess a firearm while fishing. The fact that the ordinance they
were operating under had previously been repealed is of no import. Freeman alleges that he
was in lawful possession of the firearms at the time they were seized. Defendant Officers’
seizure of those firearms was based on their mistaken beliefs that Freeman was violating a
City of Tampa rule, regulation, policy, or procedure. They detained Freeman for over
seventy minutes. During that time, they searched Freeman and Freeman’s car and ran the
serial numbers of Freeman’s firearms. They also issued a trespass warning that prohibited
Freeman from visiting Ballast Point Pier for a period of time. These facts are sufficient to
state a claim under section 790.33. Accordingly, Defendants’ motion to dismiss the section
790.33 claims is denied.
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II.
Section 1983 Claims (Counts 7-11)
A.
Qualified Immunity
Defendants first argue that Defendant Officers are entitled to qualified immunity.
Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage . . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Thus, to state a prima facie claim under section 1983, Plaintiffs must
establish that (1) Defendants’ conduct caused the constitutional violation, and (2) the
challenged conduct was committed “under color of state law.” See Focus on the Family v.
Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003).
With respect to qualified immunity, the Eleventh Circuit explains that:
When government officials act in a way that knowingly violates a
clearly established statutory or constitutional right of which a
reasonable person would have known, they are not immune from suit
and may be held liable for the damage their actions caused. Harlow v.
Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). But when these same officials make decisions that do not
knowingly violate such rights, they are not required to defend
themselves in a lawsuit seeking damages. Id. They are “immune” from
suit. Id. We call this defense “qualified immunity” because the official
is immune from a damage lawsuit, qualified upon his ability to show
that he did not knowingly violate the plaintiff’s clearly established
constitutional right. Id.
Ray v. Foltz, 370 F.3d 1079, 1081-82 (11th Cir. 2004). A plaintiff withstands a motion to
dismiss predicated on qualified immunity by alleging “sufficient facts to support a finding
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of a constitutional violation of a clearly established law.” Chandler v. Sec’y of Fla. Dep’t
of Transp., 695 F.3d 1194, 1198 (11th Cir. 2012) (citing Oliver v. Fiorino, 586 F.3d 898, 905
(11th Cir. 2009)); see also Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir. 1990) (“[T]he
defendant is entitled to dismissal when the plaintiff has failed to allege a violation of a
clearly established right.”) (emphasis in original).
Freeman alleges that Defendant Officers violated the Fourth Amendment because they
lacked reasonable suspicion to detain him and search him. Freeman also alleges that
Defendant Officers violated the Second Amendment to the extent that they interfered with
his constitutional right to keep and bear arms. Defendants quibble with the facts, arguing that
Defendant Officers had arguable reasonable suspicion to temporarily detain Freeman based
on Fla. Stat. § 790.053(1), which prohibits the open carrying of a weapon. Defendants argue
that Defendant Officers did not know that openly carrying a handgun while fishing was
exempted conduct so they did not “knowingly” violate the law. And that arguable reasonable
suspicion can be supported by a mistake of law. This argument may ring true at the summary
judgment stage. But the alleged facts, which this Court must accept as true at this stage, do
not state or even suggest that Defendant Officers were acting under a mistake of law. Thus,
qualified immunity cannot be determined at this time. Defendants’ motion to dismiss on this
issue is denied.
B.
Municipal Liability
Defendants next argue that Freeman’s section 1983 claim against the City of Tampa
for failing to train Defendant Officers regarding an individual’s right to openly carry firearms
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while fishing is subject to dismissal because Freeman does not allege any prior similar
pattern of incidents that would have placed the City of Tampa on notice of a need to train its
officers. The Court agrees that the allegations are insufficient to state a claim against the
City of Tampa.
To state a section 1983 claim against a municipality, Freeman must allege that the
execution of a government entity’s official custom or policy caused the constitutional injury.
Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 694 (1978). Freeman
must establish that (1) his constitutional rights were violated, (2) the municipality had a
custom or policy that constituted deliberate indifference to that right, and (3) the policy or
custom caused the constitutional violation. See McDowell v. Brown, 392 F.3d 1283, 1289
(11th Cir. 2004).
Plaintiffs request the Court to infer a custom or policy because Defendant Officers’
ignorance of the firearm exception suggests a failure to train on the City’s part. Plaintiffs
contend “[t]he fact that out of six officers, including one in a supervisory capacity, not one
objected to or realized that Freeman’s conduct was entirely lawful, shows that this was not
a case of a single officer being unaware of the law, but a pervasive issue where no officers
appear to have been trained to deal with the law abiding gun carrier.” (Dkt. 12 at p. 14 of
21). The Court cannot make this inference. As such, this claim is dismissed without
prejudice. Freeman may amend this claim only if he can allege sufficient facts of any prior
similar pattern of incidents that would have placed the City of Tampa on notice of a need to
train its officers regarding an individual’s right to openly possess a firearm while fishing.
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III.
Claims for Declaratory and Injunctive Relief (Counts 13-15)
Defendants argue in a conclusory fashion that Plaintiffs are not entitled to declaratory
and injunctive relief. At this stage, Plaintiffs have properly pleaded these claims. Section
790.33 allows a person or organization whose membership is adversely affected to enforce
a violation of section 790.33 against any municipality. Section 790.33(3)(f) specifically
includes “declaratory and injunctive relief” as appropriate remedies. These claims pass
muster at this stage, although, as Plaintiffs concede in their response, they are appropriate
claims against only the City of Tampa, not the individual Defendants.2
It is therefore ORDERED AND ADJUDGED that:
1.
Defendants’ Amended Motion to Dismiss (Dkt. #11) is granted in part and
denied in part.
2.
The official capacity claim against Defendant Ronald E. Graham is dismissed
with prejudice.
3.
Count 11 is dismissed without prejudice to Plaintiffs to amend this claim.
Plaintiffs shall be mindful of their Rule 11 obligations and shall amend this
claim only if they have sufficient facts of previous similar incidents that would
have placed the City of Tampa on adequate notice of a need to train its
officers.
2
Defendants’ remaining arguments in favor of dismissal amount to a denial of the allegations and are
inappropriate at the motion to dismiss stage.
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4.
Defendants shall file their answer to the complaint within fourteen (14) days
of this Order.
DONE and ORDERED in Tampa, Florida on December 8, 2015.
Copies furnished to:
Counsel/Parties of Record
S:\Even\2015\15-cv-2262 mtd 11.wpd
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