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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
ALBERT
DURRUTHY,
Plaintiff,
vs.
THE
CITY OF MIAMI, et al.,
Case Number: 01-4155-CIV-MORENO
235 F. Supp. 2d 1291
December 12, 2002,
Decided
December 13, 2002, Filed
Plaintiff
is a television cameraman who was arrested on April 22, 2000 in Miami, FL
during the protests surrounding the Elian Gonzalez affair. Plaintiff has sued
the City of Miami, its Chief of Police, and the arresting officer for
violations of his constitutional rights and state law assault, battery and
false arrest. Before the Court is Officer Pastor's Motion for Final Summary
Judgment. For the reasons set forth below, the motion is DENIED.
I. BACKGROUND
The
relevant facts of this case are mostly undisputed, thanks in large part to a
videotape that captured Plaintiff's arrest on April 22, 2000. On that day,
protesters gathered in downtown Miami to voice displeasure over the United
States government's decision to return Elian Gonzalez to Cuba. Government
officials had removed Gonzalez from his uncle's house at approximately 5:30
a.m. that morning.
Because of
the demonstrations, Flagler Street in downtown Miami was shut off to vehicular
traffic and surrounded by barricades. Police officers were also attempting to
move the protestors from the street to the sidewalk. By 11:00 a.m., the police
had cleared the demonstrators from the [*1295] street at the intersection of
Flagler Street and 27th Ave.
At approximately 11:00 a.m., the police arrested cameraman Bruce Bernstein
for unknown (and irrelevant) reasons near the intersection of Flagler Street
and 27th Ave. After arresting and handcuffing Bernstein, the police escorted
him through the middle of the cleared street towards a paddy wagon. Plaintiff,
a freelance cameraman who was filming the protests on assignment, stepped into
the street in an attempt to film the arrest of Bernstein. As Plaintiff
approached, the police officer who was in the process of arresting Bernstein
instructed Plaintiff to return to the sidewalk. n1 Plaintiff immediately began
walking backwards to the sidewalk. He continued to film. After he began walking
backwards, the police officer who had told him to get out of the street rushed
towards him and arrested him. Another officer, Jennifer Pastor, approached him
from behind.
After grabbing Plaintiff, the
two officers forced him to his stomach and
kneeled on his back. The officers then pulled his arms behind him and
secured his wrists. Plaintiff pleaded with the officers to be gentler with his
arms because his shoulder was hurt. He also stated "I am going peacefully,
Sir." Upon being handcuffed, the officers pulled Plaintiff to his feet by
his arms. The police then removed what appears from the tape to be a gas mask.
Plaintiff's
amended complaint contains four counts against the City of Miami, Chief of
Police Raul Martinez in his official capacity, and Officer Pastor based on: (1)
violations of Plaintiff's Fourth Amendment rights to be free from an
unreasonable arrest and excessive force; (2) state law assault; (3) state law
battery; and (4) state law false arrest. Pastor has moved for summary judgment
on all four counts.
II. LEGAL STANDARD
Summary judgment is
authorized when there is no genuine issue of material fact. Fed. R. Civ. P.
56(c). The party seeking summary
judgment bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26
L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The
party opposing the motion for summary judgment may not simply rest upon mere
allegations or denials of the pleadings; the non-moving party must establish
the essential elements of its case on which it will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct.
2548 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The nonmovant must present
more than a scintilla of evidence in support of the nonmovant's position. A
jury must be able reasonably to find for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
III. ANALYSIS
A. § 1983 Claims
Plaintiff
has alleged that Pastor, one of the two arresting officers, violated his
constitutional rights under the Fourth Amendment. Pastor argues that the Court
should grant summary judgment in her favor because she is entitled to qualified
immunity. The Court disagrees.
The defense of qualified
immunity shields a government official from § 1983 liability for harms arising
from the official's [*1296] discretionary acts, so long as the discretionary
acts do not violate clearly established federal statutory or constitutional
rights of which a reasonable person would have known. Vinyard v. Wilson, 311
F.3d 1340, 2002 WL 31521208, at *4 (11th Cir. Nov. 14, 2002). This defense
attempts to strike a balance between the need for a remedy to protect the
rights of citizens and the need for government officials to be able to carry
out their discretionary functions without fear of constant litigation. GJR
Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1366 (11th Cir.
1998).
In order to receive qualified immunity, a defendant must first
prove that he was acting within the scope of his discretionary authority. Lee
v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Once the defendant
establishes that he was acting within his discretion, the burden shifts to the
plaintiff to show that qualified immunity should not be applied. Id. To do so,
the plaintiff must satisfy a two-part
test. First, the court must ask whether the defendant violated plaintiff's
constitutional rights under the plaintiff's version of the facts. Vinyard, 311
F.3d 1340, 2002 WL 31521208 (citing Hope v. Pelzer, 536 U.S. 730, 122 S. Ct.
2508, 2513, 153 L. Ed. 2d 666 (2002) and Saucier v. Katz, 533 U.S. 194, 150 L.
Ed. 2d 272, 121 S. Ct. 2151 (2001)). If the plaintiff can establish a
violation, the court must determine whether the constitutional rights were
"clearly established" under the law at the time of the incident. Id.
In making the determination of whether the law was clearly established,
"the salient question" is whether the law provided the official with
sufficient warning that her alleged actions were unconstitutional. Hope, 536
U.S. 730, 122 S. Ct. at 2516; Vinyard, 311 f.3D 1340, 2002 WL 31521208 at * 6.
In this case, Plaintiff does not dispute that Pastor was acting
within her discretion. Plaintiff 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. Thus, the
Court must consider, first, whether Plaintiff's rights were violated. If the
Court finds a violation, the Court then considers whether the law was clearly
established at the time of the arrest so as to put Pastor on notice that her conduct
violated Plaintiff's rights.
1. Probable Cause
Plaintiff argues that Pastor violated his constitutional rights
by arresting him without probable cause. An arrest without probable cause violates the right to be free
from unreasonable searches under the Fourth Amendment. Redd v. City of
Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998). Probable cause exists where
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 presented to an officer "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).
To raise a valid qualified immunity defense, however, a police
officer need only have had arguable probable cause to arrest the plaintiff. Jones
v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999). Arguable probable cause means
that a reasonable police officer in the defendant's position could have
believed that probable cause existed. Lee, 284 F.3d at 1194. It is the
plaintiff's burden to prove the absence of arguable probable cause. Rankin, 133
F.3d at 1436. Thus, to show that his rights have been violated, Plaintiff must
prove that no reasonable police officer in the position of Pastor could have
believed [*1297] that there was probable cause to arrest Plaintiff.
According to
Pastor, arguable probable cause existed because Plaintiff interfered with the
police by walking out into the street while the police were trying to clear the
street. This conduct, explains Pastor, clearly violated § 832.02, Fla. Stat.,
which makes it a misdemeanor to
"resist, obstruct, or oppose any officer . . . without offering or doing
violence to the person of the officer . . . ." Under both Florida and federal law, committing a misdemeanor in
the presence of a police officer creates probable cause for arrest. Lee, 284
F.3d at 1196 (citing Fla. Stat. Ann. § 901.15(1) and Atwater v. City of Lago
Vista, 532 U.S. 318, 354, 149 L. Ed. 2d 549, 121 S. Ct. 1536 (2001)); see also Post
v. City of Ft. Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (finding arguable probable cause for an arrest based
on § 832.02, Fla. Stat., where the facts showed that the plaintiff kept talking
after the officer told him to be quiet, and that the officer had been told
earlier that the plaintiff had previously resisted an arrest with violence).
After being
arrested, Plaintiff was charged with violating § 832.02. However, so long as
Pastor had probable cause to arrest Plaintiff for any offense she is shielded
by qualified immunity. Bailey v. Board County Comm'rs of Alachua County, 956
F.2d 1112, 1119 n.4 (11th Cir. 1992). Accordingly, Pastor submits as
alternative bases for probable cause various alleged violations of the traffic
laws concerning pedestrians in the streets. Section 316.130, Fla Stat., for
example, makes it unlawful for a
pedestrian to "walk along and upon the portion of a roadway paved for
vehicular traffic." Similarly, § 54-2 of the Miami City Code [ makes it unlawful for any person to
"walk upon any street or sidewalk in the city so as to obstruct free
passage . . . after a request by a law enforcement officer to move on so as to
cease blocking or obstructing free passage." Section 316.072, Fla. Stat.
also makes it a misdemeanor "for
any person to willfully fail or refuse to comply with any lawful order or
direction of any law enforcement officer [with respect to the traffic
laws]." The Court must therefore consider these laws in relation to the
facts of this case and must decide if Pastor had arguable probable cause to
arrest Plaintiff based on any of them.
As for § 832.02, the videotape
submitted to the Court shows that Plaintiff did indeed enter the street during
the protest, and it was obvious that the street had been cleared of
pedestrians. The tape also shows, however, that as soon as the police
instructed Plaintiff to return to the sidewalk he immediately obeyed. Plaintiff
walked backwards slowly in the direction of the sidewalk. It was while he was
retreating that Pastor arrested him. Thus, Plaintiff clearly complied with the
instruction of the police officer to some extent.
It is true,
of course, that Plaintiff did not stop filming and did not move quickly. The
question is whether Plaintiff's slow movement and continued filming could have
given rise to the impression that he was resisting, obstructing, or opposing
the officer. After viewing the tape, the Court will not find that it reasonably
could have. Plaintiff was told to return to the sidewalk. He began moving in
that direction. The fact that he continued to film and did not move as quickly
as possible does not make an arrest for resisting, obstruction, or opposing an
officer reasonable. Accordingly, the Court cannot find that Pastor had arguable
probable cause for the arrest based on § 832.02.
The Court
also finds that the traffic statutes identified by Pastor as alternative bases
for an arrest do not suffice. First, § 316.072, Fla. Stat. and § 54-2 of [*1298]
the Miami City Code specify that a person is in violation when he fails or
refuses to comply with an order or direction of a law enforcement officer.
Plaintiff in this case, however, did comply by walking backwards toward the
sidewalk. He may not have moved fast enough for the officers' liking, but he
complied nonetheless. As for § 316.130, Fla. Stat., the Court concludes that no
arguable probable cause existed under the totality of the circumstances. 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, Plaintiff 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. The Court therefore finds
sufficient evidence that Pastor violated Plaintiff's Fourth Amendment rights to
be free from an arrest without probable cause.
Furthermore,
the Court finds that the law regarding probable cause was clearly established
at the time of the arrest so as to give Pastor fair warning that her actions
were illegal. While the Court notes that
the "clearly
established" standard is often a difficult one for plaintiffs to satisfy
(and rightfully so), the Court also acknowledges that "such fair and clear
notice can be given in various ways." Vinyard, 311 F.3d 1340, 2002 WL
31521208, at *7 (emphasis omitted). Specific case law applicable to the
particular facts of a case is not always required. Instead, broad statements of
the law made in certain factual situations may apply "with obvious
clarity" to later factual circumstances. Id. In those cases the precise
facts surrounding the conduct are immaterial to the violation. Id. Moreover, in
other cases the conduct may be so obviously a violation of constitutional
rights that precedential case law does not even factor into the analysis.
Conduct may be "so bad that case law is not needed to establish that the
conduct cannot be lawful." Id.
After
reviewing the record in this case and viewing the videotape of Pastor's
conduct, the Court notes the unique facts in this case and acknowledges the
lack of specific case law from the Eleventh Circuit or Supreme Court to put
Pastor on notice of the legal constraints of her actions. Nevertheless, the
Court finds that the conduct was obviously illegal, based on the complete lack
of any reasonable basis for the arrest. When an obvious member of the media
approaches a police officer in a cleared street, is instructed to return to the
sidewalk, and complies with the instruction, a police officer should be aware
that a custodial arrest based on interference with a police officer is illegal.
After Plaintiff began complying with the officer's instruction, the only
conduct that Pastor could base the arrest on was the fact that Plaintiff
continued to film and walked slowly. Pastor did not need specific case law to
give her fair warning that an arrest in these circumstances could violate
Plaintiff's Fourth Amendment rights. Therefore, the Court will not grant her
qualified immunity.
2. Excessive Force
Plaintiff
also argues that Pastor used excessive force when she arrested him. "In
order to determine whether the amount of force used by a police officer was
proper, a court must ask 'whether a reasonable officer would believe that this
level of force is necessary in the situation at hand.'" Lee, 284 F.3d at
1197 (quoting Willingham v. Loughnan, 261 F.3d 1178, 1186 (11th Cir. 2001)). As
the Eleventh Circuit recently explained:
The Supreme Court has established that, in order to balance the necessity of using some force attendant
to an arrest [*1299] against the arrestee's constitutional rights, a court must
evaluate a number of factors, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.
Lee, 284 F.3d at 1198
(citing Graham v. Connor, 490 U.S. 386, 394-95, 104 L. Ed. 2d 443, 109 S. Ct.
1865 (1989) and Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)).
A review
of Eleventh Circuit case law applying this standard reveals that court's
regular acceptance of a police officer's use of some force when making a
custodial arrest. In Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2001), for
example, the plaintiff was arrested after the officer believed that the
plaintiff was in a physical fight with another individual. The police officer
"grabbed him 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." Id. The court found that this force was de minimus and
concluded that "the application of de minimus force, without more, will
not support a claim for excessive force in violation of the Fourth Amendment."
Id. at 1257.
In Jones v. City of Dothan, Ala., 121 F.3d 1456 (11th Cir. 1997),
the police arrested the plaintiff believing that he had harassed and chased a
woman earlier that day. The officers "slammed" the plaintiff's head
against a wall, kicked his legs apart, required him to put his arms above his
head, and pulled his wallet from his pants pocket. The court applied qualified
immunity to the officers, finding that "while use of force against [the
plaintiff] may have been unnecessary, the actual force used and the injury
inflicted were both minor in nature." Id. at 1460.
In Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.
1993), the police arrested a
restauranteur for repeated violations of the building and health codes. The
police officer, who knew that the arrestee had previously been arrested for
resisting arrest, placed him against a display case, applied a choke hold, and
handcuffed him. Id. at 1556. Afterwards, the arrestee made a remark, and the
officer pushed him. The court found that "the amount of force [the
officer] used, even if unnecessary, was enough to violate the law was not
plain; reasonable doubt existed, and still exists, on whether this amount of
unnecessary force was unlawful." Id. at 1560.
In this
case, the force used by the officers was not clearly more violent than in
Nolin, Jones, and Post. The officers shoved Plaintiff to the ground, kneeled on
his back, wrenched his arms behind his back and secured his wrists with
handcuffs. The officers then pulled him up by his arms. When standing, another
officer pulled his mask off his face.
Nonetheless, while officers certainly have some leeway in
applying force, courts must always consider the offense for which the plaintiff
was arrested. A less serious offense permits less force during an arrest. Thus,
in Lee, the plaintiff was arrested for honking her car horn at a vehicle in her
traffic lane. 284 F.3d at 1191. After handcuffing the plaintiff, the officer
"shoved" her against the car. The Eleventh Circuit found that
arguable probable cause existed for the arrest, but declined to apply qualified
immunity on plaintiff's excessive force claim. Id. at 1200. The court found
that the force was "plainly excessive, wholly unnecessary, and, indeed,
grossly disproportionate under Graham." Id. at 1199 (citing Graham, 490
U.S. at 396). [*1300]The court also distinguished previous cases because
"the crime at issue in this case was undeniably less significant that the
crimes in any of the other cases we have considered." Id.
Police officers
necessarily use force during an arrest to protect themselves and others from
threats posed by the arrestee. Where that threat is minimal or nonexistent,
however, the officer must tailor her actions
accordingly. See Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th
Cir. 1998) (per curiam). In Thornton, the police responded to a domestic
dispute. After lying to obtain entry into the plaintiff's home, the police
grabbed plaintiff's arms and neck, threw him to the floor, cuffed his hands
behind his back and dragged him outside. Id. at 1398. The district court denied
the officers' summary judgment motions and the Eleventh Circuit affirmed. The
court concluded both that no arguable probable cause existed and that the
police used excessive force. As for the excessive force claim, the court noted
that the plaintiff was not "suspected of having committed a serious crime,
neither posed an immediate threat to anyone, and neither actively resisted
arrest . . . Under the circumstances, the officers were not justified in using
any force, and a reasonable officer would have recognized that the force used
was excessive." Id. at 1400.
Further, courts must take into account the arrestee's
behavior during the incident. That is, how did the arrestee respond to the
police? Where, as here, the arrestee fully cooperates, a small amount of force
may be less reasonable. In Priester v. City of Riviera Beach, Fla., 208 F.3d
919 (11th Cir. 2000), the plaintiff was a suspect in a burglary at a golf shop.
When the police confronted the
plaintiff, they instructed him to lay down. Plaintiff complied. The facts
revealed that the plaintiff did not pose a threat of bodily harm to the
officers or to anyone else. He was not attempting to flee. Nevertheless, the
officer released his attack dog on the plaintiff while he was laying down and
let the dog attack him for at least two minutes. The Eleventh Circuit found
that "no reasonable police officer could believe that this force was
permissible given these straightforward circumstances." Id. 927.
Here,
Plaintiff was a member of the media who was arrested in the street during a protest.
As he approached the police officer in the street, carrying his camera, it
would have been clear to anyone that he was a journalist. Obviously he was not
a danger to the police officers or anyone else. He himself was not even
protesting -- he was merely filming another cameraman's arrest. It appears from
the videotape that he was arrested because he continued to film as he walked
back to the sidewalk. Thus, the only danger facing Pastor and the other police
officers was to their reputation on account of Plaintiff's footage.
Plaintiff
also fully complied with the officer's requests and instructions. When motioned
back to the sidewalk he immediately started in that direction. Moreover, when
Pastor began physically securing Plaintiff, he clearly stated "I am going
peacefully!" Thus, Pastor was faced with a situation in which force was
unnecessary. Pastor nonetheless forced him down to the ground, used her knee to
hold him face down on the sidewalk, and pulled his arms behind his back. In
light of the circumstances, the force applied was illegally disproportionate.
Finally, the Court also finds
that at the time of the arrest it was clearly established that Pastor's conduct
constituted excessive force. While Plaintiff has identified no controlling and
factually similar case that covers the precise situation in this case, Pastor's
conduct brings this case [*1301] within the category of cases in which the
unlawfulness of the conduct is "readily apparent even without identifying
caselaw." Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997). It was
completely unnecessary for Pastor to use any force in arresting Plaintiff. Not
only was Plaintiff not fleeing and not a danger to Pastor or others, Plaintiff complied
with instructions from the police. In
addition, Plaintiff clearly and audibly stated that he was "going
peacefully." Despite these circumstances, Pastor ran at Plaintiff, forced
him to the ground, held him down by kneeling on his back, wrenched his arms
behind him, and handcuffed him.
Pastor's
conduct violated the "clear and obvious principle that once an arrest has
been fully secured and any potential danger or risk of flight vitiated," a
police officer cannot employ "severe and unnecessary force." Lee, 284
F.3d at 1200. Where a principle is
"clear and obvious," an officer cannot argue that she had no warning
that her conduct was verboten. Pastor is thus not entitled to qualified
immunity.
B. State Law Claims
Pastor has also moved for summary judgment on Plaintiff's claims
under Florida law for assault, battery, and false arrest. In light of the
Court's findings above, however, the Court need not pause long to deny the
motions.
First, as for the assault and battery claims, a jury question
is created by a police officer's use of arguable excessive force while
effectuating an arrest. City of Homestead v. Suarez, 591 So. 2d 1125, 1125
(Fla. 3d DCA 1992). As the Court has found that Pastor used
arguably excessive force in this case, summary judgment is inappropriate on
these claims.
Second, as for the false arrest claim, Pastor has argued that
the claim is barred because she had probable cause for the arrest. The Court
has found that based on the record before it no such probable cause existed.
Summary judgment is therefore unwarranted on this claim as well.
IV. CONCLUSION
Plaintiff has satisfactorily demonstrated that Pastor violated
his Fourth Amendment constitutional rights by arresting him without probable
cause and by using excessive force during the arrest. As a, Plaintiff has also
created an issue for the jury on his state law claims for assault, battery, and
false arrest. It is therefore
ADJUDGED that Officer Pastor's Motion for Final Summary Judgment
(D.E. No. 41), filed on August 16, 2002 is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 12th day of
December, 2002.
FEDERICO A. MORENO
UNITED STATES DISTRICT JUDGE
FOOTNOTE:
n1 This
officer was not named in this lawsuit. To this day Plaintiff does not know who
he was.