Dowling v. City of Fort Lauderdale, Florida

Filing 38

ORDER granting 23 Plaintiff's Motion for Summary Judgment; denying 29 Defendants' Motion for Summary Judgment. Jury trial to determine Plaintiff's damages is set for February 4, 2013, at 9:00 AM. Calendar call is set for January 31, 2013, at 9:00 AM. Signed by Judge James I. Cohn on 1/4/2013. (ams)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-60774-CIV-COHN/SELTZER
JEFFREY DOWLING,
Plaintiff,
v.
CITY OF FORT LAUDERDALE, FLORIDA,
and MIKE FREELEY,
Defendants.
____________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Plaintiff Jeffrey Dowling’s Motion for
Summary Judgment [DE 23] (“Plaintiff’s Motion”) and Defendants City of Fort
Lauderdale, Florida and Mike Freeley’s Motion for Summary Judgment [DE 29]
(“Defendants’ Cross-Motion”). The Court has considered the motions, the parties’
responses and replies, the record in this case, and is otherwise fully advised in the
premises.
I. BACKGROUND
On January 6, 2009, an unidentified agent of the Drug Enforcement Agency
(“DEA”) contacted Detective Edgar Cruz of the Fort Lauderdale Police Department
(“FLPD”) to request that FLPD stop a certain Chrysler Pacifica van that DEA suspected
of carrying a kilogram of cocaine. DEA had placed a tracking device on the Pacifica,
and the agent gave Cruz the tracking information. See Plaintiff’s Statement of
Undisputed Material Facts [DE 4] (“PSUMF”) ¶¶ 2, 6; Pl.’s Ex. 5, Fuller Dep. [DE 24-5]

(“Fuller Dep.”), 4:4-5:9. Detective Cruz then gave this information to two other FLPD
officers, Sergeant Gerald Fuller and Detective Mike Freeley. See Fuller Dep., 6:2-3;
Pl.’s Ex. 3, Freeley Dep. [DE 24-3] (“Freeley Dep.”), 4:3-12. Sergeant Fuller was able
to track the Pacifica to Deerfield Beach, Florida. See Fuller Dep., 4:4-5:9. He relayed
the information to FLPD Officer Shannon Dameron, who stopped the Pacifica in the
parking lot of a Kwik Stop convenience store in Deerfield Beach. See PSUMF ¶ 6; Pl.’s
Ex. 4, Dameron Dep. [DE 24-4] (“Dameron Dep.”), 4:14. While sitting in the Kwik Stop
parking lot, Dameron observed a car pull in next to the Pacifica. See PSUMF ¶ 10;
Dameron Dep., 7:3-11. Mary Daniels and Plaintiff Jeffrey Dowling stepped out of the
car and walked toward the entrance of the convenience store. See PSUMF ¶ 11.
Dameron claims that he saw Daniels and Dowling briefly speak to the driver of the
Pacifica, and that he thinks he heard Daniels ask the driver about his mother.
See Dameron Dep., 14:13-20. Dowling denies that he or Daniels spoke with the driver.
See Pl.’s Ex. 2, Dowling Aff. [DE 24-2] (“Dowling Aff.”) ¶ 11. Dowling and Daniels then
entered the store to purchase lottery tickets. See PSUMF ¶ 16.
Freeley arrived at the Kwik Stop shortly after Dameron, Dowling and Daniels.
See Fuller Dep., 10:4-18; Dameron Dep., 4:15-25. When Freeley arrived, Dameron
informed him that he had stopped the Pacifica and that Dowling and Daniels had
spoken with the driver. Dameron also told Freeley that “Dowling was possibly involved”
with the driver. See Dameron Dep., 9:19-24; Freeley Dep., 6:2-21. Freeley then
entered the store and ordered Dowling to put his hands behind his back. See Freeley
Dep., 6:22-25; Dowling Aff. ¶ 17. Dowling cooperated, and Freeley handcuffed him and
escorted him from the store. See Freeley Dep., 6:22-25. Freeley then frisked him, but
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did not find any weapons or contraband. See PSUMF ¶ 25. At the time that Dowling
was frisked, there were at least six FLPD officers at the scene. See id. ¶ 27. Dowling
was detained in handcuffs for approximately twenty minutes, and was then released
without arrest. See id. ¶¶ 30, 32. The driver of the Pacifica was not ultimately
handcuffed or arrested. See id. ¶ 28.
On April 30, 2012, Dowling filed suit against the City of Fort Lauderdale, Florida,
(“Fort Lauderdale”), as well as several FLPD officers. See Compl. [DE 1]. However, in
his Third Amended Complaint, Dowling has dismissed all defendants except Fort
Lauderdale and Mike Freeley. See Third Am. Compl. [DE 27]. Dowling brings a statelaw false arrest claim, as to Fort Lauderdale, (Count 1), as well as a 42 U.S.C. § 1983
claim for unreasonable search or seizure, as to Freeley (Count 2). In the instant
motions, Plaintiff and Defendants each seek summary judgment.
II. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a), the Court may grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
movant “bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). To discharge this burden, the movant must show that “there is an absence
of evidence to support the non-moving party’s case.” Id. at 325. After the movant has
met its burden, the burden of production shifts to the non-moving party, who “must do
more than simply show that there is some metaphysical doubt as to the material facts.”
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If a party
fails to properly support an assertion of fact or fails to properly address another party’s
assertion of fact [the Court may] grant summary judgment if the motion and supporting
materials — including the facts considered undisputed — show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e)(3).
At the summary judgment stage, the Court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
making this determination, the Court must decide which issues are material, 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. Factual disputes that are irrelevant
or unnecessary will not be counted.” Id. at 248.
III. ANALYSIS
Both of Dowling’s claims hinge on the lawfulness of his detention. In order to
prevail on a false arrest claim, a plaintiff must show that he was unlawfully restrained
against his will, and that the restraint was unreasonable under the circumstances.
See Spears v. Albertson’s, Inc., 848 So. 2d 1176, 1178 (Fla. 1st DCA 2003); Harris v.
Lewis State Bank, 436 So. 2d 338, 341 (Fla. 1st DCA 1983). To succeed in a § 1983
action, a plaintiff must establish that the defendants, acting under color of law, deprived
him of a right guaranteed by statute or the Constitution. Gilbert v. Sears, Roebuck and
Company, 899 F.Supp. 597, 599 (M.D. Fla. 1995). In this case, it is undisputed that
Freeley, as an FLPD officer, acted under color of law. Therefore, the primary issue with
regard to both claims is whether the detention violated Dowling’s Fourth Amendment
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rights.
Dowling argues that the detention was unlawful because 1) Freeley did not have
reasonable suspicion justifying an investigative stop; 2) Freeley had no reason to
believe Dowling was armed, and so the pat-down was unauthorized; and 3) Freeley’s
use of handcuffs was improper under the circumstances. Defendants respond that
Freeley had at least arguable reasonable suspicion to detain Dowling, and that Freeley
is therefore entitled to qualified immunity.
A. Freeley did not have arguable reasonable suspicion
to detain Dowling.
Dowling asserts that the detention amounted to an arrest without probable
cause, or, in the alternative, that it was an investigatory stop without reasonable
suspicion. Defendants concede that it was an investigatory stop, but argue that Freeley
had reasonable suspicion to detain Dowling. Under Terry v. Ohio, 392 U.S. 1 (1964), a
police officer may briefly detain an individual, short of an arrest, when the officer has
reasonable suspicion that the individual has committed or is committing a crime.
“Although the ‘reasonable suspicion’ standard is less demanding than probable cause,
it must be more than an ‘inchoate and unparticularized suspicion or hunch.’” United
States v. Simmons, 172 F.3d, 775, 779 (11th Cir. 1999) (quoting United States v.
Sokolow, 490 U.S. 1, 7 (1989)). For the search to comply with the Fourth Amendment,
the officer “must be able to point to specific and articulable facts” that justify the
detention. Terry, 392 U.S., at 21.
In this case, Freeley has asserted the defense of qualified immunity, and
therefore “the issue is not whether reasonable suspicion existed in fact, but whether the
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officer had ‘arguable’ reasonable suspicion to support an investigatory stop.” Jackson
v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). Arguable reasonable suspicion exists if
a reasonable officer in the same circumstances and possessing the same information
could have believed that reasonable suspicion existed. Lee v. Ferraro, 284 F.3d 1188,
1195 (11th Cir. 2002); see also Jackson, 206 F.3d at 1165 (holding that an officer who
“reasonably but mistakenly [concludes] that reasonable suspicion is present is still
entitled to qualified immunity.”). In determining the presence of arguable reasonable
suspicion, the Court “must examine the totality of the circumstances to determine
whether an officer had a ‘particularized and objective’ basis to support his suspicion.”
Whittier v. Kobayashi, 581 F.3d 1304 (11th Cir. 2009) (citing Brent v. Ashley, 247 F.3d
1294 (11th Cir. 2001)).
In the context of a drug transaction, relevant factors include the nature of the
exchange, the appearance and behavior of the subject, the officer’s narcotics
experience, a subject’s flight from the officer, and the reputation of the location for
drive-up transactions. See Grant v. State, 718 So. 2d. 238, 239 (Fla. 2d DCA 1998);
Burnette v. State, 658 So. 2d 1170, 1171 (Fla. 2d DCA 1995); Illinois v. Wardlow, 528
U.S. 119, 124 (2000). In determining reasonable suspicion, Florida courts have put
particular emphasis on whether the police observed a hand-to-hand transaction
between the subject and a known drug dealer. See Burnette, 658 So. 2d at 1171 (citing
Messer v. State, 609 So. 2d 164 (Fla. 2d DCA 1992), and State v. Clark, 605 So. 2d
595 (Fla. 2d DCA 1992)). While none of these factors are dispositive, there must be at
least some objectively suspicious behavior to give rise to arguable reasonable

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suspicion. Compare Redding v. Chestnut, Case No. 5:06-CV-321, 2008 WL 4831741,
at *4 (M.D. Ga. Nov. 3, 2008) (finding that an anonymous tip, along with suspect’s flight
from the officer, was sufficient for a finding of arguable reasonable suspicion), with
Brent 247 F.3d at 1303-05 (holding that arrival from a source location for drugs, in
addition to nervous behavior, is insufficiently particularized behavior to support arguable
reasonable suspicion).
Here, the totality of the circumstances do not give rise to an arguable reasonable
suspicion that Dowling was involved in criminal activity. There was no hand-to-hand
exchange between Dowling and the driver. Dowling did not engage in evasive behavior
or attempt to flee. The only fact that Defendants point to in justifying Dowling’s
detention was that he briefly spoke with a drug suspect — about completely innocent
topics — while that suspect was parked in front of a marked police vehicle. See Def.’s
Concise Statement of Material Facts in Opp’n [DE 31] (“Def.’s Concise Statement”) ¶¶
30, 33, 34; Freeley Dep., 4:24-5:11. In his deposition, Freeley explained his actions as
follows:
Q: Why did you handcuff him?
A: Because I was unsure of, you know, it was supposed to be a kilo of
cocaine deal and generally drug traffickers have secondary vehicles with
weapons or counter-surveillance vehicles. So until I could ascertain
exactly what and who he was, he was in handcuffs.
Freeley Dep., 7:15-21. Defendants note that “it takes two to complete a deal.” Def.’s
Concise Statement ¶ 25. However, Defendants are unable to show that Freeley had
reason to believe that Dowling was party to such a deal. Freeley had been told that
Dowling briefly spoke with a drug suspect while that suspect was stopped by a police
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vehicle. See Freeley Dep., 4:24-5:11; Daniels Dep. [DE 24-1] ¶ 4. These facts simply
do not create an arguable reasonable suspicion of wrongdoing. Accordingly, the Court
finds that the investigatory stop violated Dowling’s clearly established Fourth
Amendment rights. Therefore, Freeley is not entitled to qualified immunity.
B. Freeley lacked probable cause to frisk Dowling.
Dowling further asserts that, even if there was reasonable suspicion for the stop,
Freeley did not have probable cause to frisk him. The Court agrees. Florida Statutes
§ 901.151(5) provides that when an officer temporarily detains an individual, and the
officer has probable cause to believe the individual is armed, the officer may frisk the
individual to the extent necessary to disclose any weapons. Fla. Stat. § 901.151(5).
Florida courts have interpreted “probable cause” to mean “a reasonable belief on the
part of the officer that a person temporarily detained is armed with a dangerous
weapon.” State v. Webb, 398 So. 2d 820, 825 (Fla. 1981); see also Reynolds v. State,
592 So. 2d. 1082, 1084 (Fla. 1992) (holding that an officer may frisk individuals
reasonably suspected to be armed and dangerous). The purpose of the pat-down is to
allow the officer to locate any weapons on the suspect that could be used to harm the
officer or third parties. See Terry, 392 U.S. at 29. In this case, as described above,
there was no indication — other than Freeley’s general knowledge about drug deals —
that Dowling was armed. Regardless, Freeley not only frisked Dowling, but also
removed Dowling’s wallet and keys from his pockets, and examined his driver’s license.
See PSUMF ¶¶ 23, 25, 26. Because Freeley had no reasonable belief that Dowling
was armed and dangerous, this search was unreasonable and contrary to the Fourth
Amendment.
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C. Freeley’s use of handcuffs was improper.
Dowling contends that Freeley had no authority to detain him in handcuffs for
twenty minutes, particularly after determining that Dowling was unarmed. Defendants
respond that the relatively brief use of handcuffs was justified by Freeley’s suspicion
that Dowling was involved in a drug transaction. Police officers may use handcuffs in
the context of a Terry stop “where it is reasonably necessary to protect the officers'
safety or to thwart a suspect's attempt to flee.” Reynolds, 592 So. 2d, at 1084-85.
However, absent other threatening circumstances, the handcuffs should be removed
once the pat-down reveals that the suspect is unarmed. Id. at 1085. Here, there is no
suggestion, other than Freeley’s hunch, that Dowling was a danger to the officers’
safety or was trying to flee. Indeed, Freeley admits that “[Dowling] was completely
cooperative” throughout the encounter. Freeley Dep., 7:24-25. During that time, there
were at least six officers on the scene, each of whom was armed. See PSUMF ¶ 27.
Nonetheless, even after Dowling was frisked and found unarmed, he remained
handcuffed for approximately twenty minutes. See PSUMF ¶¶ 25, 30. There is no
reasonable interpretation of these facts that would lead to the conclusion that Dowling
was a flight risk, or that he posed a danger to officer safety. Accordingly, the Court
concludes that Dowling’s detention in handcuffs was an unreasonable restraint under
the circumstances.
D. Fort Lauderdale is liable for the false arrest committed by Freeley.
Florida Statutes § 768.28(1) provides that municipalities may be held liable in tort
for the negligent or wrongful acts of their employees. See Fla. Stat. § 768.28(1). More
specifically, Florida courts have held that a city may be held liable for the intentional
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torts committed by its officers during detention and arrest. See Richardson v. City of
Pompano Beach, 511 So. 2d 1121, 1123 (Fla. 4th DCA 1987); see also Rance v. Jenn,
Case No. 06-61002-CIV-MARRA/JOHNSON, 2008 U.S. Dist. LEXIS 99369, at *27-28
(S. D. Fla. Dec. 9, 2008) (summarizing several Florida cases in accord with
Richardson). Accordingly, because Freeley, as an FLPD officer, unlawfully restrained
Dowling against his will, Fort Lauderdale is liable for false arrest and Plaintiff’s Motion
will be granted.
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED as follows:
1.

Plaintiff Jeffrey Dowling’s Motion for Summary Judgment [DE 23] is
GRANTED;

2.

Defendants City of Fort Lauderdale, Florida and Mike Freeley’s Motion for
Summary Judgment [DE 29] is DENIED; and

3.

A jury trial to determine Plaintiff’s damages is set for Monday, February 4,
2013, and calendar call is set for Thursday, January 31, 2013. Both
settings are for 9:00 A.M.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 4th day of January, 2013.

Copies provided to:
Counsel of record via CM/ECF

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