Alexandre v. Josue et al
Filing
134
ORDER granting in part and denying in part Defendant Officers Ruben Rojas, Magdiel Perez, Josue Herrera, and the City of Miami's Motion for Summary Judgment [ECF No. 84] and Defendant, Javier Ortiz's Motion for Summary Judgment [ECF No. 86]. Signed by Judge Darrin P. Gayles (hs01)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-23064-CIV-GAYLES/OTAZO-REYES
FRANCOIS ALEXANDRE,
Plaintiff,
v.
CITY OF MIAMI, et al.,
Defendants.
/
ORDER
THIS CAUSE comes before the Court upon Defendants, Officers Ruben Rojas, Magdiel
Perez, Josue Herrera, and the City of Miami’s Motion for Summary Judgment [ECF No. 84] and
Defendant Javier Ortiz’s Motion for Summary Judgment [ECF No. 86]. The Court has carefully
reviewed the Motions, the record, argument of counsel, and the applicable law. For the reasons
set forth below, the Motions are granted in part.
BACKGROUND1
On June 21, 2013, the Miami Heat won the National Basketball Association
Championship in game seven at American Airlines Arena. As in many cities after a home-team
win, Heat fans celebrated in the streets of downtown Miami. Plaintiff Francois Alexandre
(“Plaintiff”) lived in the area and was outside celebrating with approximately thirty (30) other
fans on the street in front of his apartment building. Plaintiff had consumed some alcohol but
disputes that he was intoxicated.
Sometime after 1:30 in the morning, officers from the City of Miami Police Department
were clearing the street near Plaintiff’s apartment by forming a line while holding up their
1
camera.
The record includes video footage of the incident from Plaintiff’s cell phone and a building security
bicycles (the “bike line”). As the bike line moved forward, the officers issued a dispersal order,
directing the crowd to move to the sidewalk and leave the area. Plaintiff, while filming on his
cell phone, shouted “we ain’t going home tonight,” “we are tax-payers,” and “don’t take this
bullshit from them.” Despite his vocal protests, Plaintiff proceeded to comply with the officers’
order and moved to the sidewalk. Once on the sidewalk, Plaintiff stated “we are on the sidewalk.
Get the fuck out of here and do your business.”
An unidentified woman then either fell or was pushed to the ground in front of the bike
line. Plaintiff stopped to lean over the woman and then lifted his phone to continue recording the
police. Seconds later, Defendant Lieutenant Javier Ortiz (“Ortiz”) grabbed Plaintiff around the
neck and pulled him into the alcove of Plaintiff’s apartment building.2 Several other officers,
including Defendant Officers Josue Herrera (“Herrera”), Magdiel Perez (“Perez”), Ruben Rojas
(“Rojas”), and Christopher Vital (“Vital”), immediately converged on top of Plaintiff and helped
Ortiz throw him to the ground. At no time before Ortiz grabbed Plaintiff can Ortiz be heard
telling Plaintiff that he was under arrest or asking Plaintiff to put his hands behind his back.
Once the officers were piled on Plaintiff, it is difficult to view from the video what was
happening and the parties give conflicting accounts. Plaintiff contends that, once he was on the
ground, his arms were pinned underneath his body. Defendants contend that Plaintiff was
actively resisting arrest by keeping his arms underneath his body. Defendants admit that Vital
punched Plaintiff two times and that Herrera used an open hand to strike Plaintiff to encourage a
reach response from Plaintiff.3 While Plaintiff asserts that he was punched, kicked, and thrown
2
For this portion of the incident, the Court has the benefit of the security-camera footage, providing an aerial
view with no sound, and Plaintiff’s cell phone video footage, which no longer provides a good visual of the events
(as Plaintiff has been thrown to the ground), but does provide an audio recording of both Plaintiff and the officers’
voices.
3
Vital has not been served and, pursuant to representations by the Defendants at the hearing, is no longer
with the City of Miami Police Department.
2
to the ground, he does not know which officers inflicted the various blows. Plaintiff’s injuries
included a fractured orbital bone, lacerations and contusions. It is unclear whether Plaintiff’s
injuries were caused by the force used to throw him to the ground or the officers’ punches and/or
kicks to Plaintiff’s body. While on the ground, Plaintiff told the officers, “I’m not resisting. I’m
not resisting.” In response, one or more officers told Plaintiff to “shut the fuck up.” Within
minutes, the officers handcuffed Plaintiff and led him to a patrol car. While walking to the car,
one of the officers mocked Plaintiff saying, “you have lipstick on you sir, you have lipstick on
you sir, now you need heels, now you need heels.”
On September 26, 2017, Plaintiff filed his Amended Complaint against Defendants City
of Miami (the “City”) and Herrera, Ortiz, Rojas, Perez, Vital, and four unidentified City of
Miami police officers (collectively, the “Individual Defendants”).
Plaintiff alleges (1) § 1983
unlawful arrest against the Individual Defendants; (2) § 1983 excessive force against the
Individual Defendants; (3) violation of the right to peaceably assemble against the Individual
Defendants; (4) § 1983 false arrest and excessive force against the City; (5) false arrest under
Florida law against the Individual Defendants; and (6) battery under Florida law against the
Individual Defendants. See [ECF No. 66]. On December 15, 2017, Defendants Rojas,4 Perez,
Herrera, and the City filed a Motion for Summary Judgment [ECF No. 84]. Ortiz filed a separate
Motion for Summary Judgment [ECF No. 86] on December 15, 2017.
ANALYSIS
Standard of Review
Summary judgment, pursuant to Federal Rule of Civil Procedure 56(a), “is appropriate only
if ‘the movant shows that there is no genuine issue as to any material fact and the movant is
4
On January 30, 2018, the Court dismissed Officer Rojas from this action pursuant to Plaintiff’s Motion for
Voluntarily Dismissal [ECF No. 103].
3
entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per
curiam) (quoting Fed. R. Civ. P. 56(a)). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). An issue
is “genuine” when a reasonable trier of fact, viewing all of the record evidence, could rationally
find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver, 746
F.3d 1288, 1298 (11th Cir. 2014). And a 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,
1259–60 (11th Cir. 2004). “Where the material facts are undisputed and all that remains are
questions of law, summary judgment may be granted.” Eternal Word Television Network, Inc. v.
Sec’y of U.S. Dep’t of Health & Human Servs., 818 F.3d 1122, 1138 (11th Cir. 2016). The Court
must construe the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor. SEC v. Monterosso, 756 F.3d 1326, 1333 (11th Cir.
2014). However, to prevail on a motion for summary judgment, “the nonmoving party must offer
more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a
showing sufficient to permit the jury to reasonably find on its behalf.” Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).
I.
False Arrest Claims Against the Individual Defendants
Plaintiff contends that he was arrested without probable cause in violation of the Fourth
Amendment. “[A] warrantless arrest lacking probable cause violates the Constitution.” Gates v.
Khokhar, 884 F.3d 1290, 1297 (11th Cir. 2018). However, “‘the existence of probable cause at
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the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.’” Id.
(quoting Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010)).
To ascertain whether the Individual Defendants had probable cause to arrest Plaintiff, the
Court must “examine the events leading up to the arrest, and then decide whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable
cause.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Maryland v. Pringle,
540 U.S. 366, 371 (2003)). Probable cause “is not a high bar,” requiring “only a probability or
substantial chance of criminal activity, not an actual showing of such activity.” Id. (first quoting
Kaley v. United States, 134 S.Ct. 1090, 1103 (2014), then quoting Illinois v. Gates, 462 U.S. 213,
243–44 n.13 (1983)).
Even without actual probable cause, a police officer is entitled to qualified immunity “if
he had only ‘arguable’ probable cause to arrest the plaintiff.” Khokhar, 884 F.3d at 1298.
“Arguable probable cause exists where reasonable officers in the same circumstances and
possessing the same knowledge as the [defendant] could have believed that probable cause
existed to arrest.” Id. (quoting Redd v. City of Enterprise, 140 F.3d 1378, 1383–84 (11th Cir.
1998)) (emphasis added in Khokhar).
To determine whether an officer has actual probable cause or arguable probable cause,
the Court looks at “the elements of the alleged crime and the operative fact pattern.” Id. (quoting
Brown, 608 F.3d at 735). Plaintiff was arrested and charged with incitement to riot, Florida
Statute § 870.01, and resisting an officer without violence, Florida Statute § 843.02.5 The “riot”
statute provides that “all persons guilty of a riot, or of inciting or encouraging a riot, shall be
5
Defendants also contend in their Motions that there was probable cause to arrest Plaintiff for violating
Florida Statute § 316.130(3), a traffic regulation that prohibits pedestrians from walking upon paved roadways
where sidewalks are provided. Because the Court finds the Individual Defendants had probable cause to arrest
under § 843.02 and arguable probable cause to arrest under both § 843.02 and § 870.01, it declines to address
whether a non-criminal traffic infraction can provide a basis for arrest.
5
guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.” Fla. Stat. § 870.01. The statute does not define riot, but the Florida Supreme Court, in
holding that the statute was not void for vagueness, relied on the common law definition of riot.
State v. Beasley, 317 So. 2d 750, 752 (1975). “The term ‘riot’ at common law is defined as a
tumultuous disturbance of the peace by three or more persons, assembled and acting with a
common intent, either in executing a lawful private enterprise in a violent and turbulent manner,
to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent
manner.” Id.
The Court finds it questionable whether the Individual Defendants had probable cause to
arrest Plaintiff for inciting a “riot.” The video footage does not show events that would cause an
objectively reasonable police officer to believe there was a substantial chance that Plaintiff was
inciting the crowd to engage in a tumultuous disturbance of the peace in a violent and turbulent
manner. However, because the bar is so low, the Court is compelled to find arguable probable
cause for the arrest. A reasonable officer certainly could have believed, upon hearing Plaintiff
shout “we ain’t going home tonight” and “don’t take this bullshit from them,” that Plaintiff was
encouraging the crowd to act in a violent and turbulent manner. The Individual Defendants,
therefore, have qualified immunity as to Plaintiff’s constitutional false arrest claim.
The Court also finds that the Individual Defendants had actual probable cause to arrest
Plaintiff for resisting the execution of the dispersal order. The elements of the crime of resisting
an officer without violence under § 843.02 are (1) the officer was lawfully executing a legal duty
and (2) the defendant acted in such a way as to obstruct or resist the execution of the officer’s
duty. See B.M v. State, 212 So. 3d 526, 528 (Fla. 2d DCA 2017). The video footage of the
events leading up to Plaintiff’s arrest shows Plaintiff, at one point, complying with the officers’
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directive to move to the sidewalk, albeit under protest. However, after the woman falls to the
ground, Plaintiff stops to film. A reasonable officer in the same circumstance possessing the
same knowledge could certainly believe that there was a substantial probability that Plaintiff was
resisting the dispersal order. See Gates, 462 U.S. at 243 n.13 (noting that “innocent behavior
frequently will provide the basis for a showing of probable cause”). Accordingly, because the
Individual Defendants had actual probable cause to arrest Plaintiff for resisting an officer without
violence, they are entitled to summary judgment on both the constitutional false arrest claim
(Count One) and the Florida false arrest claim (Count Five). See Mas v. Metropolitan Dade
County, 775 So. 2d 1010, 1010 (Fla. 3d DCA 2001) (holding that probable cause is a complete
bar to an action for false arrest under Florida law).
II.
First Amendment Claim
In Count Three, Plaintiff contends that the Individual Defendants, in arresting him,
violated his First Amendment right to peaceably assemble. However, “when an officer has
arguable probable cause to arrest, he is entitled to qualified immunity both from Fourth
Amendment claims for false arrest and from First Amendment claims stemming from the arrest.”
Khokhar, 884 F.3d at 1298. Accordingly, the Individual Defendants are entitled to summary
judgment on Count Three.
III.
Claims Against the City
In Count Four, Plaintiff seeks to hold the City liable for false arrest and excessive force
claims. A municipality’s liability under § 1983 may not be based on the doctrine of respondeat
superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The municipality is “liable under
section 1983 only for acts for which [the municipality] is actually responsible,” Marsh v. Butler
County, 268 F.3d 1014, 1027 (11th Cir. 2001) (en banc), abrogated on other grounds by Bell Atl.
7
Corp. v. Twombly, 550 U.S. 544 (2007), i.e., only when the municipality’s “official policy”
causes a constitutional violation, Monell, 436 U.S. at 694. Thus, to establish liability for a
§ 1983 claim against a municipality, the plaintiff must “identify a municipal ‘policy’ or
‘custom’ that caused [his] injury.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)
(quoting Bd. Of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997)). Plaintiff therefore, has two
methods through which he could establish the City’s liability: “identify either (1) an officially
promulgated [City] policy or (2) an un-official custom or practice of the [City] shown through
the repeated acts of a final policy maker for the [City].” Grech v. Clayton County, 335 F.3d
1326, 1329 (11th Cir. 2003) (en banc). Plaintiff fails to identify a City policy, custom, or
practice that resulted in either his arrest or the use of force against him. Accordingly, the City is
entitled to summary judgment on Count Four.
IV.
Excessive Force Claims Against the Individual Defendants
Plaintiff contends that the Individual Defendants violated his Fourth Amendment rights
by using excessive force during his arrest. The Individual Defendants contend that their use of
force was not excessive and that, even if it were, they are entitled to qualified immunity.
“Qualified immunity shields government officials from liability for civil damages for
torts committed while performing discretionary duties unless their conduct violates a clearly
established statutory or constitutional right.” Stephens v. DeGiovanni, 852 F.3d 1298, 1314
(11th Cir. 2017) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008)). The
Individual Defendants bear the burden of establishing that the allegedly unconstitutional conduct
occurred while they were acting within the scope of their discretionary authority, an undisputed
issue in this case. The burden thus shifts to Plaintiff “to show that qualified immunity is not
appropriate.” Id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).
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To ascertain whether a defendant is protected by qualified immunity, the Court engages
in a two-part inquiry. First, do “the facts, taken in the light most favorable to the party asserting
the injury . . . show the officer’s conduct violated a federal right”? Id. (quoting Tolan v. Cotton,
134 S. Ct. 1861, 1865 (2014)). Second, was “the right in question . . . ‘clearly established’ at the
time of the violation.” Id. (quoting Tolan, 134 S. Ct. at 1865).
A.
Constitutional Violation – Excessive Use of Force
Under the Fourth Amendment, an officer’s use of force is excessive if it was “objectively
[un]reasonable in light of the facts and circumstances confronting” the officer. Graham v.
Connor, 490 U.S. 386, 397 (1989). “The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the use of
20/20 hindsight.” Id. at 396.
In determining whether an officer’s use of force was within the bounds of the Fourth
Amendment, the Court analyzes several factors, including “(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3)
whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id.
Courts “also consider ‘the extent of the injury inflicted’ and whether the use of force was
proportionate to its need at the time.” Scott v. Battle, 688 F. App’x 674, 677 (11th Cir. 2017)
(quoting Hadley, 526 F.3d at 1329).
The Court finds that, viewing the record in the light most favorable to the Plaintiff, the
Individual Defendants’ use of force was excessive. First, Plaintiff’s alleged crime was not
severe. As detailed above, Plaintiff was essentially ignoring a dispersal order – a misdemeanor.
He was not accused of a violent crime and was not acting in a violent manner. See Stephens, 852
F.3d at 1322 (finding that a misdemeanor did not “rise[] to the level of criminal conduct that
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should have required the use of force”). Second, there is no indication in the record that Plaintiff
was an immediate threat to the safety of the officers or others. Plaintiff, while perhaps verbally
obnoxious, had no weapon and was not threatening anyone. See Brand v. Casal, 877 F.3d 1253,
1264 (11th Cir. 2017) vacated as moot, No. 16-10256 (11th Cir. May 1, 2018)6 (finding that
even though the plaintiff was “upset [and] agitated,” there was no evidence that she posed a
threat to officers or others). Third, there is a genuine issue of fact as to whether Plaintiff was
resisting arrest at all. Despite the Individual Defendants’ self-serving statements, the video
depicts Plaintiff being thrown to the ground and covered by several officers. He can be heard
stating “I’m not resisting.” Indeed, it does not appear that Ortiz even told Plaintiff he was under
arrest. Based on these factors, there was no reasonable need for the Individual Defendants to
throw Plaintiff to the ground and to strike, kick, or smother him. See id. (finding use of force
excessive, in part, because plaintiff “had not even been told she was under arrest at the time she
was tased”); Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (“[R]esisting arrest
without force does not connote a level of dangerousness that would justify a greater use of
force.”); Stephens, 852 F.3d at 1323–24 (holding that officers’ use of force was excessive where
the plaintiff was compliant with police commands and never attempted to flee the scene).
The Court may also look to Plaintiff’s injuries in assessing whether force was excessive.
See Scott, 688 F. App’x at 677. Although an arrest generally involves some amount of force and
injury, “the amount of force used by an officer in seizing and arresting a suspect ‘must be
reasonably proportionate to the need for that force.’” Stephens, 852 F.3d at 1324 (quoting Lee,
284 F.3d at 1198). The Individual Defendants threw Plaintiff against a wall and to the ground
with a significant degree of force. They then piled on him and struck him, without giving
6
The Eleventh Circuit vacated the opinion issued on December 19, 2017, based on the parties’ settlement.
See Brand v. Casal, No. 16-10256 (11th Cir. May 1, 2018)
10
Plaintiff a warning that he was under arrest or an opportunity to put his hands behind his back.
The battery was severe enough to fracture Plaintiff’s orbital bone and to cause facial lacerations
and bruising. The Individual Defendants’ use of force, on a non-violent man for what amounts to
a misdemeanor, simply is not proportional to the need for that force. See id., 852 F.3d at 1327
(finding use of force unreasonable where plaintiff was not resisting arrest yet ended up with
severe injuries); Scott, 688 F. App’x at 677 (finding use of force–slamming the plaintiff to the
ground with enough force that it broke her shin bone–excessive where plaintiff was secured and
not resisting). Indeed, the Eleventh Circuit has held that “gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive force.” Stephens, 852 F.3d at 1327–28
(quoting Hadley, 526 F.3d at 1330)..
Accordingly, the Court finds that, based on the record before it and viewing the facts in
the light most favorable to Plaintiff, the Individual Defendants’ use of force in arresting Plaintiff
was excessive and therefore a violation of Plaintiff’s constitutional rights.
B.
Clearly Established Law
Having determined that the Individual Defendants violated Plaintiff’s constitutional right
to be free of excessive force, the Court must now determine whether the constitutional right was
“clearly established” at the time of the incident such that the officers are not entitled to qualified
immunity.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001) receded from by Pearson
v. Callahan, 555 U.S. 223, 236 (2009) (holding that while Saucier’s two-step sequence for
resolving qualified immunity claims is often appropriate, courts may “exercise their sound
discretion in deciding which of the two prongs should be addressed first in light of circumstances
11
in the particular case at hand”) The Eleventh Circuit employs two methods to determine if a
right is clearly established. Stephens, 852 F.3d at 1315. Under the first method, the Court looks
at “the relevant case law at the time of the violation; the right is clearly established if a concrete
factual context exists so as to make it obvious to a reasonable government actor that his actions
violate federal law.” Id. (quoting Fils, 647 F.3d at 1291). Under the second method, the Court
looks “not at case law, but at the officer’s conduct, and inquires whether that conduct lies so
obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the
conduct was readily apparent to the officer, notwithstanding the lack of fact-specific case law.”
Id. (quoting Fils, 647 F.3d at 1291). Actions that fall under this method—deemed obviousclarity cases—are the exception to the rule that a controlling and similar case must establish a
constitutional violation. Id.
1.
Relevant Case Law
At the time of Plaintiff’s arrest, there was law that clearly established that the amount of
force used by the Individual Defendants to arrest Plaintiff, an unarmed and non-resisting suspect,
was unlawful. In Fils, the Eleventh Circuit held that there was no qualified immunity for officers
who tased a man who was only suspected of a misdemeanor, did not present a threat to the
officers’ safety or the safety of others, and was not resisting arrest or attempting escape.
647
F.3d at 1288–90. Similarly, in Priester v. City of Riviera Beach, the Eleventh Circuit held that
there was no qualified immunity for an officer who released a police dog on a burglary suspect
where the suspect posed no threat of bodily harm to the officers or others and had complied with
the officer’s request to lie down on the ground. 208 F.3d 919, 927 (11th Cir. 2000). In Lee, an
officer detained a suspect for the offense of improperly honking her horn while driving. 284
F.3d at 1190–91. The officer then pulled the suspect from her car, handcuffed her, and slammed
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her against the trunk of her car. There was a factual dispute as to whether the suspect was
resisting arrest. The Eleventh Circuit affirmed the district court’s denial of the officer’s motion
for summary judgment based on qualified immunity finding that the officer’s use of force “after
[the suspect] was arrested, handcuffed, and completely secured, and after any danger to the
arresting officer as well as any right of flight had passed” was unreasonable. Id. at 1199.
Based on Fils, Preister, and Lee, the Court finds that no objectively reasonable officer in
the position of the Defendant Officers could have thought that throwing Plaintiff to the ground,
piling on top of him, and hitting him such that he suffered a fractured orbital bone was a
constitutionally permissible use of force. Indeed, like the plaintiffs in the aforementioned cases,
Plaintiff (1) disputes that he was resisting arrest—a position supported in part by the video and
audio recordings, (2) was detained for a minor offense, and (3) was not threatening the safety of
the officers or others around him. As a result, the Individual Defendants are not entitled to
qualified immunity on Plaintiff’s excessive force claim.
2.
Obvious Clarity
The Court also finds that this action falls within the realm of the “obvious-clarity” cases.
“In an obvious-clarity case, where the officer’s conduct is plainly objectively unreasonable, a
court does not need prior case law to determine the force used by the officer was excessive and
unlawful, because it was disproportionate.” Stephens, 852 F.3d at 1318. In Stephens, the plaintiff
was arrested for driving without a valid driver’s license. In effectuating the plaintiff’s arrest, the
officer struck the plaintiff several times, threw the plaintiff’s head into the car-door jamb, and
injured the plaintiff’s hand. The Eleventh Circuit held that the officer’s disproportionate use of
force against the plaintiff was objectively unreasonable. Id. at 1328. Here, Plaintiff was outside
of his apartment building celebrating with other Heat fans. He was not holding a weapon. He
13
was not threatening anyone. He was arrested without warning and thrown to the ground by
several officers. He disputes that he was resisting arrest. Despite Plaintiff’s repeated statements
that he was “not resisting,” the officers told him to “shut the fuck up” and proceeded to strike
him. Plaintiff suffered significant injuries. Considering the evidence in the light most favorable
to Plaintiff, the Court finds that the Individual Defendants’ “gratuitous use of force” was
disproportionate and objectively unreasonable. Id.
(quoting Hadley, 526 F.3d at 1330).
Accordingly, Defendants’ motion for summary judgment as to the excessive force claim is
denied.
C.
State Law Battery Claim
Plaintiff also alleges a Florida state law battery claim against the Individual Defendants.
Under Florida law, “if excessive force is used in an arrest, the ordinarily protected use of force
by a police officer is transformed into a battery.” City of Miami v. Sanders, 672 So. 2d 46, 46
(Fla. 3rd DCA 1996). “A battery claim for excessive force is analyzed by focusing upon whether
the amount of force used was reasonable under the circumstances.” Id. The Court has already
determined that this action must proceed to trial on whether the Individual Defendants’ use of
force was excessive.
In addition, the Court cannot find, at this stage, that the Individual
Defendants are shielded by Florida Statute § 786.28(9)(a), which provides that an officer cannot
be held personally liable in tort if acting within the scope of his employment unless he acted “in
bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). The Court finds there are disputed
issues of fact as to whether the individual officers were acting in bad faith, with a malicious
purpose, or in wanton and willful disregard of Plaintiff’s rights, especially in light of the severity
of Plaintiff’s injuries under the circumstances and the subsequent mocking of those injuries by
14
one or more officers. Accordingly, Defendant’s motion for summary judgment is denied as to
Count Six.
CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that:
1. Defendant Officers Ruben Rojas, Magdiel Perez, Josue Herrera, and the City of
Miami’s Motion for Summary Judgment [ECF No. 84] and Defendant, Javier Ortiz’s
Motion for Summary Judgment [ECF No. 86] are GRANTED in part.
2. Summary Judgment is entered in favor of Defendants on Counts One, Three, Four
and Five. The case will proceed to trial on Counts Two and Six.
DONE AND ORDERED in Chambers at Miami, Florida, this 1st day of June, 2018.
________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
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