Heather Olson v. Jason Whitfield ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11172
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-00571-RH-CAS
HEATHER OLSON,
Plaintiff - Appellee,
versus
BENJAMIN J. STEWART,
in his official capacity as sheriff Madison County, Florida,
Defendant,
JASON WHITFIELD,
in his official capacity,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 12, 2018)
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Before MARTIN, JULIE CARNES, and O’SCANNLAIN,∗ Circuit Judges.
MARTIN, Circuit Judge:
Deputy Sheriff Jason Whitfield appeals the District Court’s decision to deny
him qualified immunity on Heather Olson’s claims of false arrest under federal and
state law. Accepting Ms. Olson’s version of the facts, she has alleged a clearly-
established constitutional violation on these claims, and we therefore affirm the
ruling of the District Court.1
I.
We review de novo a District Court’s decision denying qualified immunity
at summary judgment. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). In
conducting that review, we must “resolve all issues of material fact in favor of the
plaintiff.” Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th Cir. 1998) (per
curiam). That means we must believe Ms. Olson’s evidence, Evans v. Stephens,
407 F.3d 1272, 1277 (11th Cir. 2005), and “construe the facts and draw all
inferences in the light most favorable” to her, Davis v. Williams, 451 F.3d 759,
763 (11th Cir. 2006). Thus, our analysis “must begin with a description of the
facts in the light most favorable to the plaintiff.” Id. “We then answer the legal
∗
Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
1
The District Court determined Deputy Whitfield was “not entitled to qualified immunity
under a given set of facts.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1250 n.3 (11th
Cir. 2013). This court has jurisdiction over Deputy Whitfield’s interlocutory appeal of that
ruling. See id.
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question of whether the defendant[] [is] entitled to qualified immunity under that
version of the facts.” Thornton, 132 F.3d at 1397.
II.
On the morning of December 8, 2012, Ms. Olson was awakened in her home
by the sound of a door slamming. She heard loud, angry yelling outside her
bedroom. She got out of bed, put on a pair of blue shorts and a bra, then left her
room.
When walking down the hallway outside her bedroom, Ms. Olson saw three
uniformed police officers and several of her houseguests standing at the kitchen
table. Unbeknownst to Ms. Olson, two people temporarily staying in her home,
Naomi Fritz, and her mother, Betty Fritz, 2 had an argument that became physical,
leaving Naomi with a red mark on her chest. Also unbeknownst to Ms. Olson,
Betty had called 911 to ask for police assistance in moving her belongings out of
Ms. Olson’s house, which she said she couldn’t do alone due to a “big family
fight.”
Ms. Olson asked her housemates if they let the officers in. They said they
did not. She asked the officers what they were doing in her house. The officers
responded that they did not know. She asked the officers who let them in. “No
2
Because they share the same last name, we will refer to Betty Fritz and Naomi Fritz by
their first names.
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one,” they said. Addressing everyone, Ms. Olson said, “Get the fuck out—I did
not invite you-all in here.” 3
Ms. Olson began walking back toward her bedroom to get a shirt. Deputy
Brad Johnson stopped Ms. Olson and asked what she was doing. Ms. Olson told
Deputy Johnson that she was getting a shirt, and he allowed her to go ahead.
After getting dressed, Ms. Olson walked outside. As soon as she left the
house, Deputy Whitfield grabbed her from behind, slammed her against a brick
wall, and shoved her across the yard. Due to a preexisting back injury, Ms. Olson
had a large scar on her left leg that was clearly visible. She also had a pin in her
hip, and she couldn’t walk quickly or easily without pain. Two of her housemates
yelled to Deputy Whitfield that Ms. Olson had a metal pin in her hip. Ms. Olson
told Deputy Whitfield she was in pain because of the way he was handling her.
3
Deputy Whitfield alleges that he ordered everyone out of the house. This allegation is
disputed on the record before us, because it contradicts the narrative Ms. Olson offered in her
own sworn affidavit, her deposition testimony, and that of Naomi. We are aware that the District
Court found that it was “undisputed that the officer gave the command.” The only record
support for that conclusion is Ms. Olson’s unverified complaint. Pleadings, of course, “are only
allegations, and allegations are not evidence of the truth of what is alleged.” Wright v. Farouk
Sys., Inc., 701 F.3d 907, 911 n.8 (11th Cir. 2012); see also Fed. R. Civ. P. 11(b)(3), (4)
(describing facts alleged in pleadings as “factual contentions”). We therefore consider this fact
disputed for the purposes of summary judgment. See Feliciano, 707 F.3d at 1252 n.5 (noting that
we may “disregard a district court’s determination of the facts for summary judgment purposes
and determine those facts ourselves”); see also Skelly v. Okaloosa Cty. Bd. of Cty. Comm’rs,
456 F. App’x 845, 849 n.6 (11th Cir. 2012) (per curiam) (unpublished) (holding that there was
“no merit to Defendants’ argument that [plaintiff] was bound by factual allegations in her
unverified complaint to the extent they are inconsistent with her sworn statements submitted at
summary judgment”).
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After pushing Ms. Olson across the yard, Deputy Whitfield pushed her onto
the hood of a patrol car, shoved his knee into her lower back, twisted her arms
behind her back, and handcuffed her. Ms. Olson asked Deputy Whitfield why he
was putting his knee in her back and said, “That’s all right, when I get out, that
bitch won’t be in my house and you’re giving me a hell of a lawsuit.” Deputies
placed Ms. Olson in the patrol car and drove off. As a result of the force Deputy
Whitfield used against her, Ms. Olson suffered bruising on her wrist and lower
back, and her back injury was exacerbated.
After Ms. Olson was taken from the scene, the officers asked about what
happened before they arrived. Along with other housemates, Naomi told the police
that Ms. Olson had nothing to do with the argument, the fight, or the marks on her
chest.
Ms. Olson was charged with disorderly conduct, but the charge was later
dropped because of “insufficient evidence to prove the crime beyond a reasonable
doubt.”
III.
Ms. Olson sued Deputy Whitfield under 42 U.S.C. § 1983 alleging
violations of her federal constitutional rights as well as related rights under Florida
law. The District Court granted Deputy Whitfield qualified immunity on each of
Ms. Olson’s claims except her federal and state false arrest claims. The District
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Court ruled that, accepting Ms. Olson’s facts, a reasonable jury could find there
was no probable cause to arrest her. The District Court further observed that
Deputy Whitfield’s use of force would not have been excessive if Ms. Olson’s
arrest were lawful, but ruled that “[w]hen an officer has no reason to arrest an
individual, the officer’s use of force against the individual may be excessive, even
when use of the same force would be constitutional in connection with a lawful
arrest.”
IV.
At the time of Ms. Olson’s arrest, “our binding precedent clearly established
. . . that an arrest made without arguable probable cause violates the Fourth
Amendment’s prohibition on unreasonable searches and seizures.” See Skop v.
City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007). Thus, an officer is entitled
to qualified immunity for a false arrest claim only if “that officer had arguable
probable cause, that is, where reasonable officers in the same circumstances and
possessing the same knowledge as the [officer] could have believed that probable
cause existed to arrest the plaintiff.” Davis, 451 F.3d at 762 (quotations omitted).
“Whether a particular set of facts gives rise to probable cause or arguable probable
cause to justify an arrest for a particular crime depends, of course, on the elements
of the crime.” Crosby v. Monroe Cty., 394 F.3d 1328, 1333 (11th Cir. 2004). We
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therefore conduct the arguable probable cause analysis based on the facts Ms.
Olson alleged. Davis, 451 F.3d at 763, 766.
Deputy Whitfield asserts he had arguable probable cause to arrest Ms. Olson
for two crimes under Florida law: resisting an officer without violence, Fla.
Stat. § 843.02, and disorderly conduct, Fla. Stat. § 877.03. 4 Both arguments fail.
At the time of Ms. Olson’s December 8, 2012 arrest, any reasonable officer
would have known that probable cause for a violation of § 843.02 could not be
based on mere words. See Davis, 451 F.3d at 765–66. Florida Statute § 843.02
provides that “[w]hoever shall resist, obstruct, or oppose any officer . . . 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” commits a first-degree
misdemeanor. For years before Ms. Olson’s arrest, Florida courts had consistently
held that a “person’s words alone can rarely, if ever, rise to the level of an
obstruction,” unless an officer is legally detaining or executing process on the
speaker or requesting the speaker’s “assistance with an ongoing emergency that
4
In his opening brief, Deputy Whitfield does not assert that he had arguable probable
cause to arrest Ms. Olson for assaulting Naomi. Under this Court’s precedent, he has waived this
argument. See Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3 (11th Cir. 2002). Beyond that,
and construing this record in the light most favorable to Ms. Olson, we know that Naomi said no
officer bothered to ask her who hit her until Ms. Olson had been driven away in handcuffs.
Thus, Deputy Whitfield did not conduct a sufficient investigation to legally arrest Ms. Olson for
assaulting Naomi. See Kingsland v. City of Miami, 382 F.3d 1220, 1228–29 (11th Cir. 2004)
(holding that, before making arrests, officers must conduct reasonable investigations, and that
“elect[ing] not to obtain easily discoverable facts” before making an arrest amounts to an
unreasonable investigation).
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presents a serious threat of imminent harm to person or property.” See D.G. v.
State, 661 So. 2d 75, 76–77 (Fla. 2d DCA 1995) (collecting cases); see also Davis,
451 F.3d at 765–66 (same). “[T]he use of ‘oppose’ in conjunction with ‘obstruct’
manifests a clear and unambiguous legislative intent to proscribe only acts or
conduct that operate to physically oppose an officer in the performance of lawful
duties.” Wilkerson v. State, 556 So. 2d 453, 455–56 (Fla. 1st DCA 1990).
Likewise, on December 8, 2012, any reasonable officer would have known
that probable cause for disorderly conduct 5 could not be based on mere words
except in very limited circumstances. See Davis, 451 F.3d at 766 (collecting
cases). The sole exceptions to this rule are words “which by their very utterance
inflict injury or tend to incite an immediate breach of the peace” and “words,
known to be false, reporting some physical hazard in circumstances where such a
report creates a clear and present danger of bodily harm to others.” See State v.
Saunders, 339 So. 2d 641, 644 (Fla. 1976) (quotation omitted and alteration
adopted). As with § 843.02, conduct that physically obstructs an officer’s ability
to make an arrest may amount to disorderly conduct. See, e.g., C.L.B. v. State, 689
So. 2d 1171, 1172 (Fla. 2d DCA 1997) (affirming disorderly conduct adjudication
5
The disorderly conduct statute, Fla. Stat. § 877.03, reads:
Whoever commits such acts as are of a nature to corrupt the public morals, or
outrage the sense of public decency, or affect the peace and quiet of persons who
may witness them, or engages in brawling or fighting, or engages in such conduct
as to constitute a breach of the peace or disorderly conduct, shall be guilty of a
misdemeanor of the second degree . . . .
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where youth approached officer and arrestee closely enough that officer had to
push youth aside and tell him to stay away). Thus, “to constitute a violation of
section 877.03, there must be evidence of something more than loud or profane
language or a belligerent attitude.” Miller v. State, 667 So. 2d 325, 328 (Fla. 1st
DCA 1995).
Based on Ms. Olson’s account, Deputy Whitfield did not have arguable
probable cause to arrest her. After their first encounter in the kitchen, Ms. Olson
did five things before Deputy Whitfield arrested her: (1) said to her housemates
and the officers “Get the fuck out—I did not invite you-all in here”; (2) went to her
room to get a shirt so that she could be appropriately clothed to join them outside;
(3) secured permission from Deputy Johnson to get dressed on her way to doing
so; (4) put on a shirt; and (5) went outside.
None of these actions—including her profane command—supply arguable
probable cause under Florida law for the arrest of Ms. Olson here. Florida courts
have addressed suspects who far more aggressively challenged police who are
investigating them and found those suspects did not engage in obstruction or
disorderly conduct. See, e.g., D.G., 661 So. 2d at 75–77 (holding that, where
officers were investigating suspect for burglary, his loud and obnoxious protests,
refusal to answer questions, and encouraging his mother not to cooperate with the
officers was not obstruction); Miller, 667 So. 2d at 326–27 (holding that, where
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officer had been called to respond to domestic violence allegations, suspect’s loud
arguing and cursing with police and others, which continued despite police
ordering him to calm down, was not disorderly conduct).6
Therefore, the District Court properly denied qualified immunity to Deputy
Whitfield on Ms. Olson’s federal false arrest claim. Our analysis applies equally to
Ms. Olson’s state law false arrest claim. See Sharp v. City of Palatka, 529 F. Supp.
2d 1342, 1352–53 (M.D. Fla. 2007) (indicating that the “Florida courts have
looked to the federal bench for direction when ruling on qualified immunity
issues” and applying the arguable probable cause analysis to a state law malicious
prosecution claim). Thus, we affirm the District Court’s denial of qualified
immunity to Deputy Whitfield on Ms. Olson’s federal and state law false arrest
claims.
V.
Ms. Olson does not challenge the District Court’s ruling on her separately-
pled excessive force claim. Therefore, it is not before us on appeal. See
6
Ms. Olson’s statement while Deputy Whitfield was pushing her onto the hood of the
patrol car—“That’s all right, when I get out, that bitch won’t be in my house and you’re giving
me a hell of a lawsuit”—doesn’t change this analysis. First, to the extent this can be deemed
resistance, Florida courts allowed Ms. Olson “every right to resist without violence” while
Deputy Whitfield was unlawfully arresting her. See J.G.D. v. State, 724 So. 2d 711, 711–12
(Fla. 3d DCA 1999); see also English v. State, 293 So. 2d 105, 107 (Fla. 1st DCA 1974).
Second, her words did not amount to disorderly conduct under Florida law. See, e.g. Clanton v.
State, 357 So. 2d 455, 456–57 (Fla. 2d DCA 1978) (hollering that an officer did not have the
right to open a car door, that he did not have a “Goddamn search warrant,” and that the man the
officer was investigating “didn’t have to tell [the officer] anything” did not qualify as disorderly
conduct).
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Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(declining to address merits of a cross-appeal because appellant did not elaborate
arguments on the issue in its brief).
But, before concluding, we briefly address Deputy Whitfield’s appellate
briefing on Ms. Olson’s excessive force claim. Deputy Whitfield argues that the
force he used was not excessive, apparently based on his understanding that the
District Court ruled against him on Ms. Olson’s separately-pled excessive force
claim. His assumption, as Ms. Olson notes, is not correct. In fact, the District
Court’s ruling on the excessive force claim was in favor of Deputy Whitfield.
However, the District Court did rule that, even if Deputy Whitfield is
entitled to qualified immunity on Ms. Olson’s separately-pled excessive force
claim, his use of force would remain relevant to the amount of damages Ms. Olson
might recover on her false arrest claims. This comports with our Circuit precedent.
See Bashir v. Rockdale Cty., 445 F.3d 1323, 1332 (11th Cir. 2006) (“[T]he
damages recoverable on an unlawful arrest claim include damages suffered
because of the use of force in effecting the arrest.”) (quotation omitted and
alteration adopted).
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VI.
The District Court correctly denied qualified immunity to Deputy Whitfield
on Ms. Olson’s false arrest claims and correctly ruled that Ms. Olson may recover
damages for the force Deputy Whitfield used during her arrest.
AFFIRMED.
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