Albert DURRUTHY, Plaintiff-Appellee, v. Jennifer PASTOR, Officer, individually, Defendant-Appellant.
No. 02-17017
United States Court of Appeals, Eleventh Circuit.
Nov. 26, 2003.
351 F.3d 1080
Marc A. Wites, Wites & Kapetan, P.A., Deerfield Beach, FL, for Plaintiff-Appellee.
Mark R. Brown, Columbus, OH, for American Civil Liberties Union of Fla., Inc., Amicus Curiae.
Before HULL, MARCUS and STAHL*, Circuit Judges.
MARCUS, Circuit Judge:
In this civil rights case, Defendant Jennifer Pastor (“Pastor“), a police officer in the City of Miami, appeals from the district court‘s denial of her motion for summary judgment on the basis of qualified immunity. Plaintiff Albert Durruthy (“Durruthy“), a freelance cameraman, claims, inter alia, that Pastor violated his rights under the Fourth Amendment when she arrested him for being in the busy intersection of Flagler Street and N.W. 27th Avenue in Miami as the police were trying to keep the streets clear on a chaotic day after the federal government removed young Elian Gonzalez from his family in Miami in order to return him to his father, who lived in Cuba. After thorough review of this record, including a series of videotaped recordings of the incident at issue, we conclude that Pastor is entitled to qualified immunity on Durruthy‘s wrongful arrest and excessive force claims. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
We review de novo a district court‘s disposition of a summary judgment motion based on qualified immunity, applying the same legal standards as the district court. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). A motion for summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The relevant facts are straightforward. On April 22, 2000, United States government officials removed a young boy, Elian Gonzalez, from his uncle‘s house to facilitate the boy‘s return to his father in Cuba. The reaction in some parts of Miami was immediate and violent. Protestors took to the streets and, as the Plaintiff said, “[t]hat was the day of the riots in Miami.” Durruthy Dep. at 17. Some people threw trash bins into the streets and set them on fire. Others threw bottles, rocks, and broken glass. At the major intersection of N.W. 27th Avenue and Flagler Street (one of the intersection‘s roads has six lanes, the other four), the scene was chaotic dur-
By Durruthy‘s account, he knew that Miami police officers were trying to clear the street. He observed that throughout the day he was “shooting officers arresting protesters, clearing the street, and I was shoulder to shoulder with these officers. And officers would grab me and say please, once you get your shot, please go back from the street, from tear gas, from launching tear gas, from arresting protesters.” Durruthy Dep. at 78.
By 11:00 a.m. the intersection of Flagler Street and N.W. 27th Avenue was shut off to vehicular traffic, and police officers had cleared the demonstrators from the street. At that time, the police arrested a cameraman, Bruce Bernstein (“Bernstein“), and escorted him through the middle of the cleared street. Durruthy, a freelance cameraman who was on assignment to film the protests, ran into the street to film Bernstein‘s arrest up close.
The scene that followed was captured on a series of videotapes filmed by different people (including Durruthy) and from different locations. While Durruthy was filming Bernstein‘s arrest in the street, an officer instructed Durruthy to get out of the street. Durruthy backpedaled toward the sidewalk, while continuing to film Bernstein‘s arrest. As Durruthy approached the sidewalk, Officer Pastor grabbed him from behind. Pastor and another officer then pulled Durruthy onto the ground, while struggling to pin his arms behind him and handcuff him. During the struggle, the other officer also kneed Durruthy in the back. Durruthy stated, “Sir, my arm ... please sir ... I am going peacefully, sir.” Pastor held Durruthy down with her hands, while the other officer tied Durruthy‘s arms behind his back with flex cuffs. Officer Pastor testified that whenever anyone is being arrested, she assumes that the person is armed with a weapon. She also said that she had never seen the Plaintiff before the day of his arrest.
In a sworn declaration, Durruthy said that during the morning of April 22 other police officers let him enter the street, film his “shot,” and return to the sidewalk on several occasions. He further stated that he had followed this procedure “countless” times during the previous four months without incident and with the permission of police. In his deposition, Durruthy testified that throughout that morning he had filmed officers arresting protestors and clearing the streets, and the officers had requested that he move out of the street once he got his “shot.” Durruthy did not detail any of the specific circumstances surrounding these earlier incidents, nor did he identify any officer by name. Notably, however, Durruthy does not contend that Pastor allowed him to enter the streets at any time that day or in the past.
Durruthy was charged with resisting, obstructing, or opposing an officer in violation of
The district court denied Pastor‘s motion for summary judgment. First, the court found that there was no probable cause, or even arguable probable cause, to arrest Durruthy. See Durruthy v. City of Miami, 235 F.Supp.2d 1291, 1297-98 (S.D.Fla.2002). The court rejected Pastor‘s proffered bases for probable cause, determining that
The district court also held that Pastor used excessive force against Durruthy. The court reasoned that because Durruthy was obviously a member of the media, was not protesting, and complied with the officer‘s requests and instructions, any use of “force was unnecessary.... In light of the circumstances, the force applied was illegally disproportionate.” Id. at 1300. The district court also determined that it was clearly established that Pastor‘s conduct constituted excessive force. It acknowledged that there was no controlling and factually similar caselaw, but found that her conduct fell “within the category of cases in which the unlawfulness of the conduct is ‘readily apparent even without identifying caselaw.‘” Id. at 1301 (quoting Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997)). This appeal ensued.
As we observed in Lee v. Ferraro:
Qualified immunity offers “complete protection for government officials sued in their individual capacities as long as ‘their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (additional quotations omitted). The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, see Anderson v. Creighton, 483 U.S. 635, 638 (1987), protecting from suit “all but the plainly incompetent or one who is knowingly violating the federal law.” Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001). Because qualified immunity is a defense not only from liability, but also from suit, it is “important for a court to ascertain the validity of a qualified immunity defense as early in the lawsuit as possible.” GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir. 1998) (citation omitted).
284 F.3d at 1193-94. Whether a defendant is entitled to qualified immunity is a question of law, in other words, whether the law at the time of the incident was clearly established so that a reasonable person should have known that he was violating it. See Courson v. McMillian, 939 F.2d 1479, 1487-88 (11th Cir. 1991).
To receive qualified immunity, the public official must show that he was acting within the scope of his discretionary authority at the time the allegedly wrongful acts occurred. See Ferraro, 284 F.3d at 1194. On this record, it is undisputed that Officer Pastor was acting within her discretionary authority. Once it is established that the defendant was acting within her discretionary authority, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Id. In evaluating claims of qualified immunity, we apply the two-part Saucier test: (1) “As a ‘threshold question‘, a court must ask, ‘[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer‘s conduct violated a constitutional right?““; and (2) “If a constitutional right would have been violated under the plaintiff‘s version of the facts, the court must then determine ‘whether the right was clearly established.‘” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). This inquiry, in turn, “‘must be undertaken in light of the specific context of the case, not as a broad general proposition.‘” Id. (quoting Saucier, 533 U.S. at 201). In Saucier, the Supreme Court noted that “[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” 533 U.S. at 201. However, if a constitutional right would have been violated under the plaintiff‘s version of the facts, the court must then determine whether the right was clearly established. See id.
Durruthy argues that Pastor violated his clearly established constitutional rights under the Fourth Amendment by arresting him without probable cause and by subjecting him to excessive force. We conduct the Saucier analysis separately for each of Pastor‘s claims. See Ferraro, 284 F.3d at 1194.
First, Durruthy says that his arrest was unlawful. Plainly, an arrest without probable cause violates the right to be free from an unreasonable search under the Fourth Amendment. See Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998) (“[A]n arrest made without probable cause violates the Fourth Amendment.“). Under federal law, probable cause to arrest exists “when an arrest is ‘objectively reasonable based on the totality of the circumstances.‘” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Ferraro, 284 F.3d at 1195). “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.” Id. (internal citation and 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.‘” Ferraro, 284 F.3d at 1195 (internal citations omitted).5
Moreover, probable cause determinations are generally ex parte determinations, see, e.g., United States v. R. Enters., Inc., 498 U.S. 292, 298 (1991) (“The same rules that, in an adversary hearing on the merits, may increase the likelihood of accurate determinations of guilt or innocence do not necessarily advance the mission of a grand jury, whose task is to conduct an ex parte investigation to determine whether or not there is probable cause to prosecute a particular defendant.“), which are made on the basis of the evidence extant. See United States v. Gonzalez, 969 F.2d 999, 1003 n. 6 (11th Cir. 1992) (“[T]he court must decide whether the objective facts available to the officers at the time of arrest were sufficient.“). Thus, in Pickens v. Hollowell, for example, we held that two deputies “who otherwise had probable cause to arrest [the plaintiff] pursuant to facially valid arrest warrants [] did not have a duty to investigate and decide the potential viability of a defense ... before arresting [the plaintiff].” 59 F.3d 1203, 1207 (11th Cir. 1995).
We add that officers who make an arrest without probable cause are still “entitled to qualified immunity if there was arguable probable cause for the arrest.” Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999) (citing Lindsey v. Storey, 936 F.2d 554, 562 (11th Cir. 1991)). Arguable probable cause exists when “an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997); see also Jones, 174 F.3d at 1283. As we framed the concept in Lee v. Ferraro:
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, 140 F.3d at 1382 (internal citations omitted)). In determining whether arguable probable cause exists, “[w]e apply an objective standard, asking ‘whether the officer‘s actions are objectively reasonable regardless of the officer‘s underlying intent or motivation.‘” Vaughan v. Cox, 264 F.3d 1027, 1036 (11th Cir. 2001) (quoting Montoute, 114 F.3d at 184). “Arguable probable cause does not require an arresting officer to prove every element of a crime or to obtain a confession before making an arrest, which would negate the concept of probable cause and transform arresting officers into prosecutors.” Scarbrough v. Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001).
After thorough review of the entire record, we are satisfied that Pastor had probable cause to arrest Durruthy for violating
The district court nevertheless held that no probable cause existed under
The statute is directed at preventing pedestrians from walking among vehicular traffic. In this case, however, there was no vehicular traffic in the roadway. Further, [Durruthy] was not a pedestrian in the normal sense of the word but an obvious member of the media acting within the scope of his journalistic duties. Under these circumstances, an arrest pursuant to
§ 316.130 could not be reasonable.
Durruthy, 235 F.Supp.2d at 1298. We disagree. First, the statute does not require that there be vehicular traffic in the roadway at the time of the offense. See
Simply put, our case law makes clear that probable cause exists whenever an officer reasonably believes that an offense is being committed. It is therefore difficult to understand the claim that no probable cause, let alone arguable probable cause, existed to arrest Durruthy when the undisputed facts show him to have been in unmistakable violation of
The heart of Durruthy‘s argument is that there was no probable cause for his arrest because he had permission to be in the street. The first problem with this contention is that there is no evidence Durruthy had express permission to be in the street at the time and location of the arrest. His evidence of “permission” is vague, general, and stated at the highest order of abstraction. The most that can be said is that other unnamed officers allowed him to be in unspecified streets, at unspecified locations, and under unexplained circumstances, earlier that morning, and that in the preceding four months he had gotten the implied and express permission of still other unnamed officers to shoot pictures in the street at unspecified locations and under unexplained circumstances.
In the second place, there is no evidence that Pastor knew other officers previously had allowed Durruthy to be in the street under unspecified circumstances, and, significantly, probable cause is determined based on the “facts and circumstances within the officer‘s knowledge.” McCormick, 333 F.3d at 1243; see also Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir. 2002) (holding that the probable cause standard is met if, “at the moment the arrest was made, ‘the facts and circumstances within [the officers‘] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing’ that [the suspect] had committed or was committing an offense” (emphasis added) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991))); see also Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir. 2003) (same); Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003) (same); Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003) (same); Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (same); United States v. Fiasconaro, 315 F.3d 28, 34-35 (1st Cir. 2002) (same); United States v. Wesley, 293 F.3d 541, 545 (D.C. Cir. 2002) (same); United States v. Henderson, 241 F.3d 638, 648 (9th Cir. 2000) (same); McFarland v. Childers, 212 F.3d 1178, 1186 (10th Cir. 2000) (same); Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999) (same); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 976 (8th Cir. 1993) (same); Martin v. Thomas, 973 F.2d 449, 453 (5th Cir. 1992) (same).
Finally, even if we could somehow impute such knowledge to Pastor, we can discern no grounds for saying that she could not enforce
Durruthy also points to an internal City of Miami Police Department Order saying that “[n]o warrantless arrest of media personnel for non-felonious acts arising out of the pursuit of the news gathering function will be made without the express authority of the senior on-duty commanding officer or the staff duty officer.” R1-56, exhibit G. We are unable to understand how Pastor‘s failure to comply with this internal police department guideline vitiates probable cause. By its own terms, the guideline doesn‘t alter the elements of
We add that for qualified immunity purposes we are concerned only with the constitutional requirements of probable cause. See Craig v. Singletary, 127 F.3d 1030, 1044 (11th Cir. 1997) (holding that, for purposes of determining whether probable cause exists, “we are only concerned with constitutional requirements ... not with any local policies or with any strategic decisions of law enforcement officers“). The fact that Pastor may have violated an internal guideline may subject her to internal sanction, but it does not undermine objective facts—the Plaintiff was walking in the middle of a busy intersection at a chaotic time with specific knowledge that the police were trying to clear that street, and he was not required to be in the street—that otherwise establish probable cause, let alone arguable probable cause. Simply put, the internal guideline does not convert an illegal act suddenly into a legal one.
Moreover, even though we believe Pastor had probable cause to arrest Durruthy for violating
We add that even if Durruthy had actually alleged the violation of a constitutional right, such a violation was not clearly established. A party may show that the law was clearly established, first by pointing to “‘a materially similar case [that has] already decided that what the police officer was doing was unlawful.‘” Lee v. Ferraro, 284 F.3d at 1198 (citation omitted). A party may also demonstrate the existence of clearly established law when “the words of the pertinent federal statute or federal constitutional provision ... [are] specific enough to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity, even in the total absence of case law. This kind of case is one kind of ‘obvious clarity’ case.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (footnote omitted) (emphasis in original). Thus, “the words of a federal statute or federal constitutional provision may be so clear and the conduct so bad that case law is not needed to establish that the conduct cannot be lawful.” Id. (emphasis added).
No caselaw gave Pastor fair warning that she would be charged with the knowledge that other officers previously allowed Durruthy to film in the street, or that she somehow lacked probable cause to arrest Durruthy for violating
Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made “in haste, under pressure, and frequently without the luxury of a second chance.”
523 U.S. 833, 853 (1998) (citation omitted). Moreover, nothing found in the language of
Durruthy also claims that Pastor used excessive force when she arrested him. “The Fourth Amendment‘s freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest.” Ferraro, 284 F.3d at 1197 (citation omitted). “The question is whether the officer‘s conduct is objectively reasonable in light of the facts confronting the officer.” Vinyard v. Wilson, 311 F.3d at 1347. We begin by observing that “[w]hen an officer lawfully arrests an individual for the commission of a crime, no matter how minor the offense, the officer is entitled under controlling Supreme Court precedent to effectuate a full custodial arrest.” Ferraro, 284 F.3d at 1196. Indeed, under Florida law, like under federal law, a full custodial arrest is allowed even when the offense is only a misdemeanor. See
The district court determined that the force applied by Pastor was illegally disproportionate because no force was acceptable under these circumstances. See Durruthy, 235 F.Supp.2d at 1300. We disagree. This circuit has made clear that some use of force by a police officer when making a custodial arrest is necessary and altogether lawful, regardless of the severity of the alleged offense. See Ferraro, 284 F.3d at 1197 (“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” (quoting Graham, 490 U.S. at 396)). Quite simply, the police were allowed to use some force in effecting the Plaintiff‘s arrest. Furthermore, “the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.” See Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). Here, even if the force applied by Pastor in effecting the arrest—forcing Durruthy down to the ground and placing him in handcuffs—was unnecessary, plainly it was not unlawful. The amount of force used was de minimis. In fact, the quantum of force used here was far less than our Court has sustained in other contexts. See id. at 1255 (finding force to be de minimis where an officer grabbed the plaintiff “from behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head into the side of the van, searched his groin area in an uncomfortable manner, and handcuffed him“); see also Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997) (finding the force used to be minor where officers slammed the plaintiff against a wall, kicked his legs apart, required him to put his arms above his head, and pulled his wallet from his pants pocket).
Notably, Durruthy had not been restrained at the time the force was applied, distinguishing the instant case from two cases on which the district court relied. See Ferraro, 284 F.3d at 1191, 1198-99 (finding excessive force where the plaintiff was already handcuffed when an officer slammed her head on the car); Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000) (concluding that the force was excessive where a police officer released an attack dog on the plaintiff while the plaintiff was lying on the ground and the police officer‘s gun was pointed at the plaintiff‘s head). The pivotal question in this case is really whether the arrest was lawfully founded on probable cause (or at least arguable probable cause). We are satisfied on this point. Moreover, on the facts presented here, we also find that the physical restraint and handcuffing of the Plaintiff was likewise lawful.10 The force used to effect the Plaintiff‘s arrest was de minimis, not excessive under the Fourth Amendment. Because we find no constitutional violation, we need not address whether the constitutional right at issue was clearly established.
Accordingly, we reverse the district court‘s denial of the defense of qualified immunity and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MARCUS
CIRCUIT JUDGE
Notes
Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
It is unlawful and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer, traffic crash investigation officer as described in s. 316.640, traffic infraction enforcement officer as described in s. 316.640, or member of the fire department at the scene of a fire, rescue operation, or other emergency. Notwithstanding the provisions of this subsection, certified emergency medical technicians or paramedics may respond to the scene of emergencies and may provide emergency medical treatment on the scene and provide transport of patients in the performance of their duties for an emergency medical services provider licensed under chapter 401 and in accordance with any local emergency medical response protocols.