MISTY KINGSLAND, Plaintiff-Appellant, versus CITY OF MIAMI, a Florida Municipal Corporation, RAMON DE ARMAS, individually, E. VALENZUELA, individually, J. BALIKES, individually, Defendants-Appellees.
No. 03-13331
United States Court of Appeals, Eleventh Circuit
August 31, 2004
D. C. Docket No. 99-03393-CV-AJ [PUBLISH] Appeal from the United States District Court for the Southern District of Florida
WILSON, Circuit Judge:
We vacate and withdraw our previous opinion dated May 11, 2004, 369 F.3d 1210 (11th Cir. 2004), and substitute the following opinion.
Appellant Misty Kingsland appeals the district court‘s grant of summary judgment in favor of Defendants-Appellees, based on her
I. BACKGROUND
A. Factual Background
At approximately 8:00 p.m. on November 27, 1995, Appellant Kingsland was involved in an automobile accident with off-duty Officer Ramon De Armas of the City of Miami Police Department. Officer De Armas reported the accident on his police radio. Kingsland, who was driving a yellow Penske rental truck, had two passengers with her. De Armas was transporting one passenger in his
At the time of the accident, Kingsland was not under the influence of alcohol or drugs. As a result of the accident, Kingsland suffered head trauma, cried, experienced dizziness, felt sick, and had blurred vision. Following the collision, she climbed out of the rental truck and sat down in a pile of shattered glass adjacent to the truck, cutting her hand. She was disoriented and was “in and out of it.” Not knowing Officer De Armas had been a participant in the collision, and instead believing him to be an officer who had responded to the scene, Kingsland screamed to him, “He just ran the red light and hit me!”
Although Miami police officers promptly responded to the scene of the accident, an officer did not approach Kingsland until approximately thirty minutes had passed. At that time, Kingsland remained seated in a pile of shattered glass and was unable to stand up. When asked for her license and registration, she attempted to stand to retrieve it, but had to sit back down. One of her passengers eventually obtained the license and registration from the truck.
Kingsland alleges that she told the officers that she was dizzy and could not stand up. She also mentioned that she had sustained injuries to her head, and
Despite the presence of about twenty police officers at the scene, no officer asked Kingsland for a statement of her version of the events or spoke to any witnesses on the scene. However, the officers spent a great deal of time talking to Officer De Armas, who claimed that Kingsland was at fault.
When Officer Valenzuela arrived at the scene, Officer Balikes told Officer Valenzuela that he noticed an odor of cannabis coming from Kingsland‘s vehicle and person, and that he thought Kingsland was impaired. Officer Valenzuela then went to the truck to corroborate Officer Balikes‘s statements, and later testified that he also smelled a “slight odor” of cannabis on Kingsland‘s person. Yet, none of these investigating officers saw fit to conduct a search of Kingsland‘s vehicle. Likewise, no drug-sniffing dogs were summoned to corroborate the officers’ beliefs, and no cannabis was ever found. Kingsland denies the existence of any
Officer Valenzuela also noticed that Kingsland‘s eyes were bloodshot. Kingsland explains that if her eyes were bloodshot, it was because she had been crying. Officer Valenzuela saw one of Kingsland‘s passengers being treated by rescue personnel, but did not attempt to talk to him or the other passenger to assess whether either of them smelled of cannabis.
Officer Balikes and another officer asked Officer Valenzuela, who is a certified Driving Under the Influence (DUI) technician with two years experience, to administer a field sobriety test on Kingsland. Kingsland informed the officers that she was feeling dizzy and sick, and that she wanted to go to the hospital.3 The officers did not talk to rescue personnel about Kingsland‘s condition.
During the “walk and turn” test, Kingsland did an about face instead of doing the turn as instructed. She also swayed while balancing on one leg, did not properly place her finger to her nose, missed the tip of her nose five times, failed to follow instructions, had eyelid tremors, and failed to keep her eyes shut during
The officers then escorted Kingsland into a police cruiser, informing her that she was being transported to the hospital for treatment and more tests.4 She was instead taken into custody and brought to a DUI testing facility. At the police station, the defendants and other officers accused her of running a red light and causing the accident.
Although Officer Valenzuela says that he always suspected that Kingsland was under the influence of cannabis and later charged her with that offense, Kingsland stated that she was charged with driving under the influence of alcohol upon arriving at the station. Kingsland asserts that the officers told her they knew she was drunk and had been driving drunk. They performed between two and four Breathalyzer tests, all of which came back negative—with a 0.000% alcohol content. When the Breathalyzer results came back, the officer who was writing on a form asked another officer what he should then write. The second officer told the first officer to write that Kingsland had a strong odor of cannabis emitting
After she passed the Breathalyzer tests, Kingsland continued telling the officers that she did not abuse drugs and that she felt sick. Officer Valenzuela then requested that a drug test be performed on Kingsland. Officer Robert Jenkins of the Miami Beach Police Department responded and performed more tests on Kingsland, including walking a straight line, touching her nose, and closing her eyes while extending her arms. Officer Jenkins determined that Kingsland‘s normal facilities were impaired and obtained a urine specimen from her.
Kingsland was then handcuffed, transported to the Dade County jail, and charged with DUI. Her father posted a $1,000.00 bond the following day, and she6
The defendant officers assert that they never received the laboratory test results, which came back negative for cannabis. They claim that, according to police department policies, drug test results are delivered to the prosecutor and the officer who submits the sample for analysis—in this case, Officer Jenkins.7
On February 5, 1996, the prosecutor provided the urine test results to Kingsland‘s counsel. In May 1996, after two court appearances that resulted in continuances, Kingsland filed a motion to dismiss in light of the drug test results. The charges were dropped on June 6, 1996.
B. Procedural History
Kingsland filed suit under
Kingsland appeals the district court‘s grant of summary judgment, arguing that the appellees violated her Fourth Amendment rights and are not entitled to qualified immunity.
II. STANDARD OF REVIEW
We review a district court‘s grant of summary judgment de novo, applying the same legal standards used by the district court. See O‘Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
III. DISCUSSION
A. False Arrest
Probable cause to arrest exists when an arrest is objectively reasonable based on the totality of the circumstances. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). “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. (quoting Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)).
1. The Integrity of the Evidence
If the officers’ assessment that Kingsland‘s eyes were bloodshot, that her speech was slurred, and that either she or her truck smelled of cannabis were undisputed or supported by evidence other than the defendants’ testimony, we would have no problem agreeing with the district court‘s conclusions. The record,
Principally, the defendant officers based their arrest in part on their allegation that they detected an odor of cannabis emanating from either Kingsland‘s breath, her person, or her vehicle. However, Kingsland claims that she did not engage in illegal drug activity on the day of the accident or on any other day, and hence, that the officers could not have detected any such odor prior to her arrest. At the outset, the district court erred in failing to recognize in Kingsland‘s complaint the assertion that the defendants fabricated evidence to support probable cause.
We find it significant that Kingsland is able to support her assertions of fabrication with the following facts: (1) despite supposedly detecting an odor of cannabis, the officers chose not to conduct a search of Kingsland‘s vehicle, her person, or her passengers to corroborate their testimony; (2) the officers did not call in drug-sniffing dogs to confirm their suspicions of drug use; (3) no drugs were ever found or produced; (4) Kingsland tested negative for cannabis; (5) Kingsland‘s vehicle was not impounded as evidence, nor was her allegedly odoriferous clothing retained; (6) the defendants stated in their arrest affidavit that Kingsland ran the red light, allegedly without taking statements from available
In finding both probable cause and reasonable suspicion to conduct a field sobriety test on Kingsland, the district court stated:
Officers Valenzuela and Balikes detected an odor of cannabis emanating from [Kingsland‘s] truck. Ms. Kingsland denied that she smelled of cannabis, but she has no evidence to contradict the testimony of Officers Valenzuela and Balikes about the truck‘s odor.
. . . .
Even though Ms. Kingsland did not smell of cannabis – I credit her version of events instead of Officer Valenzuela‘s and Officer Balikes’ – she has no evidence to contradict the testimony of Officers Valenzuela and Balikes that there was an odor of cannabis from the truck.
Kingsland, No. 99-03393-CV-AJ, slip op. at 6, 9. We have several concerns about this reasoning.
First, the record contains conflicting accounts regarding where the odor of cannabis originated. On the arrest affidavit, Officer Balikes stated that Kingsland “was observed with . . . a strong odor of cannibis [sic] emitting from her breath.” However, the arrest affidavit makes no mention of a cannabis odor emanating from the truck. Moreover, Officer Valenzuela, a DUI specialist, testified that he has trouble smelling cannabis on a person‘s breath, and instead indicated that he detected a “slight odor” of cannabis on Kingsland‘s person. Thus, there are genuine issues of fact regarding (1) whether there was any odor at all, and (2) if there was an odor, whether it radiated from the truck, from Kingsland‘s person, or from Kingsland‘s breath.
Second, we note that the plaintiff has proffered no less evidence regarding the presence or absence of a cannabis odor than the defendants have. The plaintiff‘s word is merely countered by the defendants’ testimony. Given the standard of review at the summary judgment stage, we must accept Kingsland‘s version of the facts as true. See Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279 n.9 (11th Cir. 2002) (stating that a court must accept the non-movant‘s version of disputed facts as true for purposes of summary judgment). Therefore, the district court improperly accepted as true the defendants’ allegation that the truck smelled of cannabis, and erroneously used this fact to support summary
Third, the district court incorrectly concluded that Kingsland has no evidence to contradict the officers’ testimony regarding the truck‘s odor. As detailed above, Kingsland has presented circumstantial evidence to support her assertion that the truck did not smell of cannabis. Furthermore, though the defendants’ allegation that a cannabis odor was present could potentially have been verified with direct evidence, it is incongruous to expect the plaintiff to prove a negative – the absence of an odor.
While laboratory tests have proven that Kingsland was drug-free at the time of her arrest, the defendants have proffered no objective evidence that drugs were present, either on Kingsland‘s person or in her truck. We find it incredible that the officers failed to conduct a search of Kingsland‘s vehicle or summon drug-sniffing dogs upon detecting the “strong odor” of a narcotic, the mere possession of which is illegal. See, e.g., United States v. Reeh, 780 F.2d 1541, 1543 n.1 (11th Cir. 1986) (“After a member of the [Coast Guard] detected the odor of marijuana, a search ensued during which the marijuana was discovered.“). Presumably, if cannabis were present, such evidence would warrant a drug possession charge.
Finally, it is unclear why the district court chose to credit Kingsland‘s testimony that she did not smell of cannabis, and yet chose not to accept her assertions that the truck likewise did not smell of cannabis.
We cannot allow a probable cause determination to stand principally on the unsupported statements of interested officers, when those statements have been challenged and countered by objective evidence.9
2. The Sufficiency of the Investigation
Next, we consider whether the defendants’ investigation was constitutionally deficient. Appellant argues that the district court erroneously concluded as a matter of law that the officers conducted a constitutionally sufficient investigation, thereby removing the inquiry from a jury. She contends that, objectively, officers should not be permitted to turn a blind eye to
In Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988), the Fourth Circuit stated:
[A qualified immunity analysis] must charge [the officer] with possession of all the information reasonably discoverable by an officer acting reasonably under the circumstances. . . . “[A] police officer may not close his or her eyes to facts that would help clarify the circumstances of an arrest.” BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (officer must be held to knowledge of reasonably discoverable information bearing upon probable cause to arrest for child neglect).
Sevigny, 846 F.2d at 957 n.5. Because the officer in Sevigny made an arrest without heeding certain, easily obtained information, the Fourth Circuit held that the officer failed to act reasonably. Id. at 957. The court articulated that the officer “simply did not bother to do what any police officer acting reasonably in the circumstances would have done to clarify the factual situation” and that “[t]here was no exigency which prevented his doing so.” Id. at 958. Kingsland asserts that the same situation presents itself here. She maintains that the district court‘s conclusion that the investigation was sufficient to form a basis for probable cause implies that “no good-faith investigation whatsoever is required to satisfy this standard.” Initial Brief of Appellant at 22.
The district court focused on the reasonableness of Kingsland‘s arrest given what the officers did investigate, ignoring the fact that they may have subjectively failed to investigate both sides of the story. On the other hand, Kingsland argues (and Sevigny implies) that officers must investigate objectively and consider all information available to them at the time.10 While the constitutional reasonableness of a police investigation does not depend on an officer‘s subjective intent or ulterior motive in conducting the investigation, see, e.g., Whren v. United States, 517 U.S. 806, 812-13 (1996), it does not follow that the officer may then investigate selectively. The Fourth Circuit‘s approach serves to deter dishonest officers from fabricating charges to cover up improper detentions by including only selective evidence in their reports.
We recognize, however, that a police officer “is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). Nevertheless, an officer may not choose to ignore information that has been offered to him or her, such as Kingsland‘s assertions that she was injured and that
The lack of corroboration through independent police work of De Armas‘s allegation that Kingsland was at fault in the accident is noteworthy in our probable cause analysis. Cf. Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (finding no probable cause where arresting officer relied on unsubstantiated informant‘s tip, failed to take any independent steps to investigate the tip, and did not have any evidence which would have corroborated the tip).
Appellees rely on the Seventh Circuit‘s decision in Qian v. Kautz, 168 F.3d 949 (7th Cir. 1999), to support their assertion that they possessed probable cause for Kingsland‘s arrest. In Qian, the court held that a police officer had probable cause to make a DUI arrest where (1) the officer observed that a driver had lost control of his car and crashed, (2) the driver was slumped over and had difficulty walking, (3) the inside of the car showed no signs of a violent impact or that the driver‘s body had hit anything during the accident, (4) the driver denied being injured and showed no physical signs of injury, (5) the driver‘s speech seemed slurred, and (6) the officer did not know anything about the driver‘s preexisting
It is clear that the defendant in Qian made a good faith effort to discover information that would have helped clarify the situation he was presented with. On the contrary, a reasonable jury could find that the appellees’ investigation was deficient in that the officers consciously and deliberately did not make an effort to uncover reasonably discoverable, material information. Given that a probable cause determination is based on the totality of the circumstances, the conditions surrounding and leading up to an arrestee‘s outward manifestations, and not those manifestations alone, factor into the determination. Thus, an officer may not exclusively rely on the outward signs that an individual is exhibiting, without considering them in the context of their surrounding circumstances. See Rankin, 133 F.3d at 1435 (stating that probable cause is examined under the totality of circumstances); cf. Dorman v. Florida, 492 So. 2d 1160, 1162 (Fla. 1986) (finding no probable cause to administer a blood alcohol test where officer knew the defendant had been involved in a collision, observed that the defendant‘s eyes were red and watery and that the defendant had been crying, and did not smell alcohol on defendant‘s breath).
We do not dispute that, in certain situations, an officer may have probable cause to arrest a person if the person was dizzy, performed poorly on field sobriety tests, and exhibited bloodshot eyes and slurred speech. However, the presence of
The parties dispute the conduct of the defendants leading up to Kingsland‘s arrest. Under Kingsland‘s version of the events, the defendants did not act in an objectively reasonable manner under the totality of the circumstances. It was within the officers’ knowledge that Kingsland was involved in an accident, was injured and crying, and faulted Officer De Armas. It may also have been within
Because we find that there are genuine issues of material fact as to whether the defendants (1) manufactured probable cause, (2) failed to conduct a reasonable investigation, and (3) ignored certain facts within their knowledge, we cannot conclude as a matter of law that probable cause existed to arrest Kingsland. Thus, viewing the evidence in the light most favorable to the plaintiff, summary judgment is inappropriate on the merits of the false arrest claim.
3. Qualified Immunity
If the defendant officers are entitled to qualified immunity with respect to the plaintiff‘s claim of false arrest, we must affirm summary judgment in their favor. “Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct ‘does not violate clearly
The essence of qualified immunity analysis is the public official‘s objective reasonableness, regardless of his underlying intent or motivation. See Harlow, 457 U.S. at 819; Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). If reasonable public officials could differ on the lawfulness of the defendants’ actions, the defendants are entitled to immunity. Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th Cir. 2003). However, “[w]here an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.” Harlow, 457 U.S. at 819. Qualified immunity “gives ample room for mistaken judgments” but does not protect “the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 343, 341 (1986).
The Supreme Court has held that qualified immunity analysis involves two discrete queries. First, we must decide whether the facts alleged, assuming they are true, demonstrate that the defendants violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If this is answered in the affirmative, we proceed to the second query, which is to determine whether the right violated was clearly established. See id. We conclude that Officers Balikes and Valenzuela are not entitled to qualified immunity on the false arrest claim.
“Plainly, an arrest without probable cause violates the right to be free from an unreasonable search under the Fourth Amendment.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998)). As discussed above, we cannot conclude as a matter
Nevertheless, officers who make an arrest without probable cause are entitled to qualified immunity if there was arguable probable cause for the arrest. Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999). Accordingly, we must inquire whether “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). Kingsland must demonstrate that no reasonable officer could have found probable cause under the totality of the circumstances. See Storck, 354 F.3d
In granting qualified immunity to the defendants, the district court found the facts of this case to be analogous to those set forth in Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir. 1993). In Post, we granted qualified immunity where government agents inspecting a restaurant made an improper arrest for a building code violation. Id. at 1558. The agents in Post claimed that they counted people in excess of the restaurant‘s maximum capacity, but in effect they erroneously counted employees who were not to be counted. We held that a “mistaken but reasonable count” was sufficient for the agents to establish arguable probable cause. Id. However, the agents in Post simply made a good faith mistake, whereas here, the officers’ conduct creates factual issues as to their honesty and credibility. It was error for the district court to omit the plaintiff‘s
It is readily apparent that the conduct in Post is characteristic of the type of conduct that the policies of qualified immunity seek to protect. In Post, the officials made a reasonable mistake in the legitimate performance of their duties, and there were no concerns regarding potential abuse of authority or motivation to make an arrest. See id.; see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (officers who reasonably but mistakenly conclude that probable cause existed are entitled to immunity); Cf. Harlow, 457 U.S. at 814 (“In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.“).
In contrast, Kingsland contends that the defendants made several deliberately false statements to support her arrest, in violation of the law. She cites Holmes v. Kucynda, 321 F.3d 1069 (11th Cir. 2003), in which we held that qualified immunity “does not offer protection if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff.” Id. at 1077 (citations and internal quotations omitted). In Holmes, we reversed the grant of qualified immunity and summary judgment to police officers where there existed factual questions regarding whether the officers filed a recklessly false application
Viewed in the light most favorable to Kingsland, the facts support a conclusion that the arrest affidavit included recklessly or deliberately false statements that are material to a finding of arguable probable cause. If the defendants fabricated or unreasonably disregarded certain pieces of evidence to establish probable cause or arguable probable cause, as alleged, reasonable officers in the same circumstances and possessing the same knowledge as the defendants could not have believed that probable cause existed to arrest the plaintiff. Because a jury question exists as to whether the defendants constructed evidence upon which to base Kingsland‘s arrest, the question whether arguable probable cause for the arrest existed is aptly suited for a jury.
Qualified immunity is, as the term implies, qualified. It is not absolute. It contemplates instances in which a public official‘s actions are not protected. See Madison v. Gerstein, 440 F.2d 338, 341 (5th Cir. 1971) (“As a law enforcement officer, defendant . . . does not enjoy the cloak of immunity of the quasi-judicial
B. Malicious Prosecution
Kingsland also asserts a
To establish a federal malicious prosecution claim under
1. The Common Law Elements of Malicious Prosecution
Under Florida law, a plaintiff must establish each of six elements to support a claim of malicious prosecution: (1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the
“It is well settled that in an action to recover damages for malicious prosecution where, as here, the evidence is in dispute, the existence or non-existence of malice and want of probable cause are questions of fact for the jury.” Good Holding Co. v. Boswell, 173 F.2d 395, 399 (5th Cir. 1949).12 Consequently, because Kingsland challenges the legitimacy of the relevant evidence, concerns regarding the fulfillment of the fourth and fifth elements for the common law tort of malicious prosecution are rightly reserved for the jury.
2. Fourth Amendment Seizure
The district court held that Kingsland was subjected to a “continuing seizure” for
According to Justice Ginsburg:
A person facing serious criminal charges is hardly freed from the state‘s control upon his release from a police officer‘s physical grip. He is required to appear in court at the state‘s command. He is often subject, as in this case, to the condition that he seek formal permission from the court (at significant expense) before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense. A defendant incarcerated until trial no doubt suffers greater burdens. That difference, however, should not lead to the conclusion that a defendant released pretrial is not still “seized” in the constitutionally relevant sense. Such a defendant is scarcely at liberty; he remains apprehended, arrested in his movements, indeed “seized” for trial, so long as he is bound to appear in court and answer the state‘s charges. He is equally bound to appear, and is hence “seized” for trial, when the state employs the less strong-arm means of a summons in lieu of arrest to secure his presence in court.
Albright, 510 U.S. at 278-79 (Ginsburg, J., concurring).
Notwithstanding the eminence of its sponsor, our circuit has previously noted that we have doubts about the viability of this theory. See Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir. 1996) (stating “[w]e also have questions about the [“continuing seizure“] theory . . . .” and acknowledging the Seventh Circuit‘s post-Albright rejection of the “continuing seizure” theory in Reed v. City of Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996)). A number of our sister circuits have addressed the theory, and none have been willing to conclude that normal conditions of pretrial release constitute a “continuing seizure” barring some significant, ongoing deprivation of liberty, such as a restriction on the defendant‘s right to travel interstate. Compare, e.g., Nieves v. McSweeney, 241 F.3d 46, 56-57 (1st Cir. 2001) (holding that plaintiffs suffered no post-arraignment seizure because of the “relatively benign nature” of their pretrial release conditions), and Reed, 77 F.3d at 1052 n.3 (rejecting theory that defendant could remain seized for trial so long as he was bound to appear in court and answer the state‘s charges), with Evans v. Ball, 168 F.3d 856, 860-61 (5th Cir. 1999) (holding that a plaintiff had alleged
Because Kingsland cannot prove a violation of her
Accordingly, we reverse the district court‘s grant of summary judgment on Kingsland‘s false arrest claim, affirm the grant of summary judgment on the malicious prosecution claim, and remand for proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.