Butler v. City of Fort Lauderdale
Filing
73
ORDER granting 52 Defendant's Motion for Summary Judgment; denying as moot 67 Plaintiff's Motion in Limine. Signed by Judge James I. Cohn on 8/31/2015. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-60003-CIV-COHN/SELTZER
EDWARD BUTLER,
Plaintiff,
v.
CITY OF FORT LAUDERDALE
and SCOTT HAGEMANN,
Defendants.
____________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant Scott Hagemann’s Motion for
Final Summary Judgment [DE 52] (“Motion”). The Court has carefully reviewed the
Motion and all related filings and is otherwise fully advised in the premises.1
I.
Background
A.
Material Facts2
On the night of December 27, 2009, Andrea Plath and her boyfriend, Matthew
Marulis, were robbed in Fort Lauderdale by two men, one with a gun. Defendant Scott
1
Also pending is Plaintiff’s Motion in Limine to Exclude Police Report, Affidavit
of Officer Hagemann and Daubert Motion to Exclude Officer Hagemann’s Opinion
Testimony [DE 67]. Because the Court concludes that Defendant is entitled to
summary judgment on Plaintiff’s remaining claims, this evidentiary Motion will be
denied as moot.
2
The facts herein are based on the parties’ statements of material facts and the
documentary evidence attached to those statements. In several instances, Plaintiff’s
Response to Defendant’s Statement of Undisputed Material Facts [DE 56] fails to
address facts that Defendant alleges or to contest the asserted facts, and cites no
specific evidence refuting them. See S.D. Fla. L.R. 56.1(a)(2). All material facts recited
by Defendant, supported by the record, and not properly controverted by Plaintiff are
deemed admitted. See S.D. Fla. L.R. 56.1(b).
Hagemann, a sworn law-enforcement officer employed by Defendant City of Fort
Lauderdale (the “City”), was on road patrol when dispatchers informed him that the
robbery had just occurred and that the suspects had fled in a blue minivan. In response
to the dispatch call, Hagemann began driving toward the area of the crime and
observed a blue minivan traveling in the opposite direction. Hagemann made a U-turn
and followed the minivan, which eventually stopped behind two cars in the left turn lane
at a red light.
Hagemann attempted to initiate a traffic stop of the minivan by activating his
fully marked vehicle’s emergency lights. Using the loud speaker from his vehicle, he
ordered the driver of the minivan to open the door. The suspects in the minivan then
drove around the left side of the two cars in front of them, proceeded northbound in the
southbound lanes, and passed through a red light before turning.
At that point, Fort Lauderdale Police Department (“FLPD”) marked vehicles
pursued the minivan with their emergency lights and sirens activated. Officers
witnessed four suspects bail out of the minivan. After Hagemann joined the pursuit,
driving on a route parallel to the other officers, he was advised that the suspects had
bailed out of the minivan. Seconds later, Hagemann saw a black male who was thin,
about six feet tall, and wearing dark clothing, run across the street. Hagemann
immediately exited his vehicle and ordered the suspect to stop running, but the suspect
continued running through residential yards and jumped over fences until Hagemann
lost sight of him.
Hagemann informed K-9 officers of the area where he last saw the suspect. He
then returned to his vehicle and drove to another location to hold down and monitor a
2
perimeter point as K-9 officers searched the area for the fleeing suspect. While there,
Hagemann observed a black male fitting the description of the suspect who had run
from him earlier, walking across a nearby street.
Hagemann instructed the black male—later identified as Plaintiff Edward
Butler—to stop, telling him that he matched the description of the suspect who had fled.
Butler denied being the person Hagemann was looking for, became visibly angry and
defensive, and appeared nervous—pacing back and forth in front of Hagemann.
Hagemann asked Butler where he was coming from and where he was going to. Butler
responded that he was coming from his friend’s house and was going home. Although
Butler pointed toward his house, he could not tell Hagemann his home address. Butler
admits purposefully not telling Hagemann his address because
he give me a hard time. I was — I was hardheaded. He
give me a hard time. I give him a hard time. I told you, I
stayed right there. I told him where I’m coming from, but I
feel like he was harassing me.
***
I was trying to be rebellious. I wasn’t trying to be that — I
was trying to give him a little hard time, like he was giving
me a little hard time.
***
So I had to be a little hardheaded with him since he wanted
to be a little rebellious against me. That is how my mind was
operating at that time.
Based on Hagemann’s experience as a law-enforcement officer, he was
suspicious of Butler because he fit the description of the fleeing suspect; he was
nervous, angry, and defensive; and, despite his representation that he lived nearby,
he was unable to give Hagemann his home address. As a result of this suspicion,
3
Hagemann told Butler to sit on the sidewalk. Through his shoulder radio, Hagemann
requested Officer Scott Kingslien, who was with victim Andrea Plath, to bring Plath to
Butler’s location for a “show-up.”
Five minutes later, Kingslien arrived with Plath; both remained in the police car.
Hagemann ordered Butler to stand up, which he was hesitant to do. Hagemann then
asked Butler to look up several times, which he was also hesitant to do. Kingslien
advised Hagemann that Plath had positively and unequivocally identified Butler as the
subject with the gun who had robbed her. In a sworn statement, Plath confirmed that
she was “100%” sure Butler was the person with the gun.
Based on the victim’s positive identification of Butler as the armed assailant,
Butler fitting the description of the fleeing suspect, and Butler’s suspicious behavior,
Hagemann handcuffed Butler, placed him under arrest, and took him into custody.
After his arrest, Butler was taken to the FLPD detective’s bureau to be interviewed.
Butler was later charged with robbery with a firearm and resisting an officer
without violence. He spent over three years in jail as a pretrial detainee. In February
2013, Butler took a polygraph test, which indicated that he was not involved in the
armed robbery. Soon thereafter, the State nolle prosequied all charges against Butler.
B.
Procedural History
On January 2, 2014, Butler filed this action against the City and Hagemann.
See DE 1 (Compl.). Relying on 42 U.S.C. § 1983 and Florida law, Butler pleaded a
state-law claim against the City for false arrest (Count 1), a federal claim against
Hagemann for unlawful arrest (Count 2), a state malicious-prosecution claim against
Hagemann (Count 3), a federal excessive-force claim against Hagemann (Count 4),
and a federal malicious-prosecution claim against Hagemann (Count 5). See id.
4
The City and Hagemann filed motions seeking dismissal of all five claims. See DE 15;
DE 29. In two separate Orders, the Court dismissed with prejudice Counts 1, 2, and 4.
See DE 37; DE 42. The Court allowed Counts 3 and 5—the state and federal claims
alleging malicious prosecution—to proceed. See DE 37. Hagemann answered those
claims, denying liability and asserting several affirmative defenses, including that he is
entitled to qualified immunity. See DE 43.
Hagemann now seeks summary judgment on the malicious-prosecution claims,
arguing that probable cause existed for Butler’s arrest and that qualified immunity
protects Hagemann from liability on the federal claim. See DE 52. Butler has filed a
Response opposing the Motion, and Hagemann has submitted a Reply. See DE 57;
DE 65. The parties have also filed factual statements, supporting evidence, and
supplemental authority. See DE 51; DE 56; DE 66; DE 70.
II.
Discussion
A.
Summary Judgment Standards
Summary judgment may be granted 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.” Fed. R. Civ. P. 56(a). The moving party “always 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 satisfy
this burden, the movant must demonstrate that “there is an absence of evidence to
support the nonmoving party’s case.” Id. at 325.
If the movant makes this initial showing, the burden of production shifts, and the
nonmoving party “must do more than simply show that there is some metaphysical
5
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The nonmovant “may not rest upon the mere allegations or
denials in its pleadings” but instead must present “specific facts showing that there is a
genuine issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990).
“If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), 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).
Essentially, so long as the nonmoving party has had an ample opportunity to
conduct discovery, it must come forward with affirmative evidence to support its claim.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). “A mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be enough
of a showing that the jury could reasonably find for that party.” Walker, 911 F.2d at
1577. If the evidence advanced by the nonmovant “is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted).
A court’s function at the summary-judgment stage is not to “weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. In so doing, the court must view the facts in the light most
favorable to the nonmovant and draw all reasonable inferences in that party’s favor.
See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The court also must discern
which issues are material: “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.
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Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson,
477 U.S. at 248.
B.
Analysis of Defendant’s Motion
Butler contends, based on federal and state law, that Hagemann maliciously
prosecuted him for the armed robbery. The Eleventh Circuit “has identified malicious
prosecution as a violation of the Fourth Amendment and a viable constitutional tort
cognizable under § 1983.” Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). To
establish a federal malicious-prosecution claim, a plaintiff must prove (1) the elements
of the common-law tort of malicious prosecution and (2) a violation of his Fourth
Amendment right to be free from unreasonable seizures. See Grider v. City of Auburn,
618 F.3d 1240, 1256 (11th Cir. 2010). Under Florida law, a malicious-prosecution
plaintiff must show that “(1) an original criminal or civil judicial proceeding against the
present plaintiff was commenced or continued; (2) the present defendant was the legal
cause of the original proceeding against the present plaintiff as the defendant in the
original proceeding; (3) the termination of the original proceeding constituted a bona
fide termination of that proceeding in favor of the present plaintiff; (4) there was an
absence of probable cause for the original proceeding; (5) there was malice on the part
of the present defendant; and (6) the plaintiff suffered damage as a result of the original
proceeding.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).
Failure to prove any one of these elements is “fatal to a claim of malicious prosecution.”
Id.
Hagemann argues that Butler cannot establish the fourth element of malicious
prosecution—namely, “an absence of probable cause” for his arrest. For probable
cause to exist under federal or Florida law, “an arrest must be objectively reasonable
7
based on the totality of the circumstances.” Lee v. Ferraro, 284 F.3d 1188, 1195
(11th Cir. 2002). “This standard is met when the facts and circumstances within the
officer’s knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.” Rankin v. Evans,
133 F.3d 1425, 1435 (11th Cir. 1998) (internal quotation marks omitted). “Although
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.” Lee, 284 F.3d at 1195 (alteration, citation & internal
quotation marks omitted).
When he arrested Butler, Hagemann possessed ample information to support
a reasonable belief that Butler had committed the armed robbery. Butler fit the
description of the suspect who had fled from Hagemann just after he learned that the
robbery suspects had bailed out of their minivan. Further, when Hagemann first spoke
to Butler, he became visibly angry and defensive, and he appeared nervous, pacing
back and forth in front of Hagemann. Butler also was unable to give his home address
to Hagemann. (Though Butler later admitted he withheld this information on purpose,
no evidence shows that Hagemann knew Butler was doing so.) When another officer
brought a victim of the robbery to Butler’s location, he was reluctant to stand up and to
raise his head. Once he did, the victim positively and unequivocally identified Butler as
the person with the gun who had robbed her. These facts demonstrate conclusively
that Hagemann had probable cause to arrest Butler for committing the robbery.
Butler maintains, however, that probable cause did not exist because police had
already arrested two other suspects who allegedly participated in the robbery. Based
8
on the victims’ statements that two men carried out the robbery, Butler claims that
Hagemann could not have reasonably believed that Butler was involved in the crime.
But this argument ignores that police were seeking four suspects who had bailed out of
the minivan fleeing from the crime scene. See DE 51-6 at 7. Even assuming that
Hagemann knew of the two other arrests, this does not change his reasonable belief
that Butler also participated the robbery.
Butler further emphasizes a nolle prosequi memorandum that an Assistant State
Attorney wrote for his file on February 6, 2013. See DE 56-1 at 2-8. The memorandum
cites, among several reasons not to pursue charges against Butler, “Officer Hagemann
changing his story [in January 2013] regarding the black male he chased on the night of
the incident in that he was no longer sure if the male he chased was in fact the
defendant.” Id. at 7; see id. at 6. Hagemann contends that the memorandum is
inadmissible hearsay, and the Court finds this argument well-taken. See Fed. R. Civ. P.
56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.”). In any event,
Hagemann’s testimony here is that Butler matched the description of the suspect he
chased, not that Hagemann was sure Butler was the suspect. This testimony, along
with the other evidence discussed above, establishes that probable cause existed at the
time Butler was arrested. See Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004)
(“Whether probable cause exists depends upon the reasonable conclusion to be drawn
from the facts known to the arresting officer at the time of the arrest.”).3
3
The Court has considered Butler’s other arguments opposing summary
judgment, but finds them to be without merit.
9
Because the record shows conclusively that Hagemann had probable cause to
arrest Butler for the armed robbery, Butler’s claims for malicious prosecution fail.4
Hagemann is therefore entitled to summary judgment.
III.
Conclusion
For the reasons discussed, it is hereby
ORDERED AND ADJUDGED as follows:
1.
Defendant Scott Hagemann’s Motion for Final Summary Judgment [DE 52] is
GRANTED;
2.
Plaintiff’s Motion in Limine to Exclude Police Report, Affidavit of Officer
Hagemann and Daubert Motion to Exclude Officer Hagemann’s Opinion
Testimony [DE 67] is DENIED AS MOOT; and
3.
The Court will enter a separate Final Judgment consistent with this Order.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 31st day of August, 2015.
Copies provided to:
Counsel of record via CM/ECF
4
Due to the Court’s conclusion that probable cause existed for Butler’s arrest,
the Court need not discuss Hagemann’s alternative argument that Butler’s federal claim
is foreclosed by qualified immunity. Still, the Court notes that qualified immunity applies
even if Hagemann had only “arguable” probable cause for Butler’s arrest. See Grider,
618 F.3d at 1257. Arguable probable cause exists when “reasonable officers in the
same circumstances and possessing the same knowledge as the Defendants could
have believed that probable cause existed to arrest Plaintiff.” Von Stein v. Brescher,
904 F.2d 572, 579 (11th Cir. 1990). For the same reasons Hagemann had actual
probable case to arrest Butler, he likewise possessed arguable probable cause.
10
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