Dan J. Benson v. Andres Facemyer , 657 F. App'x 828 ( 2016 )

Case: 15-14571 Date Filed: 07/20/2016 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________
No. 15-14571
_________________
D. C. Docket No. 1:13-cv-00595-WSD
DAN J. BENSON,
Plaintiff-Appellee,
Cross-Appellant,
versus
OFFICER ANDRES FACEMYER,
in his individual capacity,
Defendant-Appellant,
Cross-Appellee.
_________________
Appeals from the United States District Court
for the Northern District of Georgia
________________
(July 20, 2016)
Before ED CARNES, Chief Judge, DUBINA, Circuit Judge and HUCK, * District
Judge.
*
Paul Huck, United States District Judge for the Middle District of Florida, sitting by
designation.
Case: 15-14571 Date Filed: 07/20/2016 Page: 2 of 16
PER CURIAM:
Dan Benson filed a complaint in district court against police officer Andres
Facemyer (“Officer Facemyer”), under 42 U.S.C. § 1983, alleging that Officer
Facemyer violated Benson’s Fourth Amendment rights by arresting him without
probable cause. The district court conducted a jury trial, and the jury found in
favor of Benson and awarded him $472,000 in damages. Thereafter, Officer
Facemyer filed a motion for judgment as a matter of law, reasserting his right to
qualified immunity, and he filed a motion for new trial. The district court denied
Officer Facemyer’s motion for judgment as a matter of law, but granted his motion
for new trial solely on the issue of damages. Officer Facemyer now appeals the
district court’s order denying his post-trial motion for judgment as a matter of law
and the district court’s order granting a new trial solely on the issue of damages.
Benson filed a cross-appeal challenging the district court’s ruling that Officer
Facemyer had arguable probable cause when he formally arrested Benson. Having
the benefit of oral argument, reading the parties’ briefs, and reviewing the record,
we affirm in part and dismiss in part for lack of jurisdiction.
2
Case: 15-14571 Date Filed: 07/20/2016 Page: 3 of 16
I. BACKGROUND 1
On February 22, 2011, Benson, who was then sixty-five years old, was
walking in a park in Atlanta, Georgia. As he walked by a woman, later identified
as Ms. Wood, and her two-year-old daughter, he waved. Benson noticed that the
child was wearing a pink jumper. He said, “That’s a beautiful pink dress you have
on.” The child then “grabbed her bodice, yanked it up about a half an inch and
yell[ed], Panties.” The child’s attire reminded Benson of his daughter, who at a
similar age wore matching bloomers under her dresses. Benson told the child that
“[m]y daughter used to wear panties just like yours.” He then continued walking
in the opposite direction.
Shortly after this encounter, Ms. Wood borrowed a passerby’s cell phone to
call the Atlanta Police Department and report that a man matching Benson’s
description approached her and her daughter and asked her daughter about the
color of her panties. Officer Facemyer responded to the call and identified Benson
as the man Ms. Wood described. He yelled at Benson to “get over here” and asked
Benson if he was armed. Benson held up his hands and stated that he had a firearm
and a permit. Once Officer Facemyer was near Benson, he grabbed Benson’s right
1
Because this was a jury trial and Officer Facemyer did not request special
interrogatories related to qualified immunity, “we must resolve all disputed factual issues for the
question of qualified immunity by viewing the evidence in the light most favorable to [Benson].”
Priester v. City of Riviera Beach, Florida, 208 F.3d 919, 925 n.3 (11th Cir. 2000).
3
Case: 15-14571 Date Filed: 07/20/2016 Page: 4 of 16
arm, pulled it around his back and told him that if he ran, he would “chase [him]
down . . . tackle [him], and . . . really hurt [him].” Next, Officer Facemyer
handcuffed Benson, secured his firearm, and searched him. During this
interaction, Officer Facemyer asked Benson what he said to the child. Benson
described the exchange recited above. Officer Facemyer refused to believe
Benson’s recitation of what transpired between him and the child.
Soon, two other officers approached them, and Officer Facemyer left
Benson in their custody. The officers peppered him with questions about his
encounter with the child and when Benson told them that he merely spoke to the
child and nothing more, the officers refused to believe him. They eventually
placed Benson into a police wagon where he remained for approximately one hour.
While Benson remained in the police wagon, Officer Facemyer conducted
an investigation. He briefly interviewed Ms. Wood and asked her to complete a
written statement. In her statement, Ms. Wood reported that she and her daughter
encountered Benson twice while they were in the park. At the first encounter,
Benson said “hi” to them while they were walking. At a later encounter, Ms.
Wood stated that Benson approached them and asked her daughter “if her panties
were pretty and matched her dress.” Benson’s question prompted her daughter to
“place both her hands on her panties and say ‘panties pretty.’” In addition to
obtaining Ms. Wood’s statement, Officer Facemyer discussed the incident with
4
Case: 15-14571 Date Filed: 07/20/2016 Page: 5 of 16
three other officers, all of whom agreed that probable cause existed to arrest
Benson for violating Georgia’s child molestation statute. One of these officers also
spoke with an assistant district attorney about the case, and the attorney likewise
agreed that probable cause existed to arrest Benson. Hence, about an hour after
questioning, handcuffing, and searching Benson, and ordering that Benson be
detained in the police wagon, Officer Facemyer “formally arrested” Benson. He
informed Benson that he was facing charges for felony child molestation because
“[a]ccording to the FBI’s code on felony child molestation, any adult who uses the
word ‘panty’ in a sentence with a minor under 17 years of age has committed
felony child molestation.”
Subsequently, Benson filed a § 1983 action against Officer Facemyer. Both
parties moved for summary judgment, but the district court denied the motions.
The district court found that there was a dispute over critical facts concerning when
Benson was arrested and what Officer Facemyer knew when the arrest occurred to
support a determination of arguable probable cause to arrest. Hence, the district
court denied qualified immunity to Officer Facemyer, and the case proceeded to
trial. The jury found in favor of Benson and awarded him $472,000 in
compensatory damages. Office Facemyer filed a motion for judgment as a matter
of law, reasserting his entitlement to qualified immunity, and a motion for new
trial. In denying the motion for judgment as a matter of law, the district court
5
Case: 15-14571 Date Filed: 07/20/2016 Page: 6 of 16
found that Officer Facemyer placed Benson under arrest shortly after arriving on
the scene and acted without arguable probable cause when he made the arrest.
Therefore, the district court determined that Officer Facemyer was not entitled to
qualified immunity at that time. The district court concluded that “there [wa]s [a]
legally sufficient evidentiary basis for a reasonable jury to have found for [Benson]
based upon the arrest at the time [he] was detained and handcuffed.”
However, the district court vacated the jury’s verdict and ordered a new trial
as to damages because it found that factual developments arose after Officer
Facemyer’s initial arrest of Benson that impacted Officer’s Facemyer’s liability for
damages. Officer Facemyer timely appeals the district court’s denial of his motion
for judgment as a matter of law and its order granting a new trial on damages.
Benson cross-appeals, challenging the district court’s ruling that factual
developments after Benson’s initial arrest gave Officer Facemyer arguable
probable cause to formally arrest Benson.
II. ISSUES
1. Whether this court has jurisdiction over Benson’s cross-appeal or Officer
Facemyer’s appeal of the district court’s order granting a new trial.
2. Whether the district court properly denied Officer Facemyer’s motion for
judgment as a matter of law.
6
Case: 15-14571 Date Filed: 07/20/2016 Page: 7 of 16
III. DISCUSSION
A. Jurisdiction
“Because we are a court of limited jurisdiction . . . we first must examine our
own jurisdiction in this case.” Hudson v. Hall, 231 F.3d 1289, 1293 (11th Cir.
2000) (citations omitted) (considering an appeal of a qualified immunity ruling).
We have jurisdiction over all final judgments of the district court and over “a small
category of decisions that, although they do not end the litigation, must nonetheless
be considered ‘final.’” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.
Ct. 1203, 1208 (1995) (citations omitted). “That small category includes only
decisions that are conclusive, that resolve important questions separate from the
merits, and that are effectively unreviewable on appeal from the final judgment in
the underlying action.” Id. A police officer’s appeal of a denial of qualified
immunity falls within this small category “where the disputed issue is whether the
[officer]’s conduct violated clearly established law.” See Hudson, 231 F.3d at
1293 (internal quotation marks omitted). Hence, we have jurisdiction over Officer
Facemyer’s appeal of the district court’s denial of his motion for judgment as a
matter of law because that appeal is a challenge to the denial of qualified immunity
that depends on whether Officer Facemyer violated clearly established law. See id.On the contrary, we do not have jurisdiction to entertain Benson’s cross-
appeal or Officer Facemyer’s appeal of the district court’s grant of a new trial. The
7
Case: 15-14571 Date Filed: 07/20/2016 Page: 8 of 16
jurisdictional exception for qualified immunity cases does not encompass an
appeal like Benson’s which challenges the district court’s finding that Officer
Facemyer developed arguable probable cause to arrest Benson during Officer
Facemyer’s investigation following Benson’s initial arrest. Thus, Benson contends
that we have pendent appellate jurisdiction over his cross-appeal because it is
“inextricably intertwined” with Officer Facemyer’s challenge to the district court’s
denial of qualified immunity. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,
1335 (11th Cir. 1999).
However, we conclude that the resolution of Benson’s cross-appeal is “not
necessary to resolve” Officer Facemyer’s challenge to the district court’s denial of
qualified immunity at the time of Benson’s initial arrest. See King v. Cessna
Aircraft Co., 562 F.3d 1374, 1380 (11th Cir. 2009) (stating that pendant appellate
jurisdiction does not exist “when resolution of the nonappealable issue [i]s not
necessary to resolve the appealable one”). Benson’s cross-appeal would require
this court to consider whether Officer Facemyer had arguable probable cause when
he formally arrested Benson, while Office Facemyer’s challenge implicates this
question with respect to Benson’s initial arrest. The formal arrest occurred
approximately one hour after the initial arrest and, during that time, a number of
factual developments arose that are relevant to the arguable probable cause inquiry.
Consequently, the formal arrest involves different circumstances and requires a
8
Case: 15-14571 Date Filed: 07/20/2016 Page: 9 of 16
separate arguable probable cause analysis than the initial arrest. 2 Accordingly,
Benson’s cross-appeal is not “inextricably intertwined” with Officer Facemyer’s
appeal, and we decline to entertain it.
Likewise, we lack jurisdiction over Officer Facemyer’s appeal of the district
court’s grant of a new trial on damages. See Deas v. PACCAR, Inc., 775 F.2d
1498, 1503 (11th Cir. 1985) (“[T]he grant of a new trial is an interlocutory order,
not subject to appellate review unless coupled with the grant of a [judgment
notwithstanding the verdict] as provided in Fed. R. Civ. P. 50(c).”). Hence, the
only appeal properly before us is Officer Facemyer’s challenge to the district
court’s denial of his motion for judgment as a matter of law.
B. Motion for judgment as a matter of law
Officer Facemyer’s appeal of the district court’s denial of his motion for
judgment as a matter of law is a challenge to the denial of qualified immunity,
which we review de novo. See Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir.
2000). The district court concluded that Officer Facemyer is not entitled to
qualified immunity for his initial arrest of Benson because Officer Facemyer did
not have arguable probable cause for that initial arrest. We agree.
2
We express no view as to whether arguable probable cause can develop after an
unlawful arrest, or whether qualified immunity can arise based on the post-arrest development of
arguable probable cause.
9
Case: 15-14571 Date Filed: 07/20/2016 Page: 10 of 16
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (quoting
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). We employ a two-part
test to evaluate a qualified immunity defense. First, the police officer “must prove
that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Pickens v. Hollowell, 59 F.3d 1203, 1205 (11th
Cir. 1995) (quoting Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995)).
Second, if the officer “meets this burden, the plaintiff must then demonstrate that
the [officer] violated clearly established law based upon objective standards.” Id.(quoting Hartsfield, 50 F.3d at 953). There is no question that Officer Facemyer
was acting within the scope of his discretionary authority during his interactions
with Benson. However, there is a question whether Officer Facemyer violated
clearly established law when he initially arrested Benson.
“[A]n arrest without probable cause violates the Fourth Amendment.” Lowe
v. Aldridge, 958 F.2d 1565, 1570 (11th Cir. 1992). Probable cause exists if “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
10
Case: 15-14571 Date Filed: 07/20/2016 Page: 11 of 16
is about to commit an offense.” Von Stein v. Brescher, 904 F.2d 572, 578 (11th
Cir. 1990) (citations and footnote omitted). The appropriate inquiry under the
“violated clearly established law” prong of qualified immunity, however, “is not
whether there was probable cause, but whether there was ‘arguable’ probable cause
to arrest.” See Pickens, 59 F.3d at 1206. Arguable probable cause is evaluated by
determining whether “reasonable officers in the same circumstances and
possessing the same knowledge as the Defendant[] could have believed that
probable cause existed to arrest.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.
2002) (alteration in original) (quoting Scarbrough v. Myles, 245 F.3d 1299, 1302
(11th Cir. 2001)); see also Jones v. Cannon, 174 F.3d 1271, 1283 n.4 (11th Cir.
1999) (“[W]hat counts for qualified immunity purposes relating to probable cause
to arrest is the information known to the defendant officers or officials at the time
of their conduct, not the facts known to the plaintiff then or those known to a court
later.”).
A police officer “may seize a suspect for a brief, investigatory” stop if (1)
the officer has “a reasonable suspicion that the suspect was involved in” a crime
and (2) the stop is “reasonably related in scope to the circumstances” giving rise to
the stop. United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (internal
quotation marks omitted). “No brightline test separates an investigatory stop from
an arrest.” United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995).
11
Case: 15-14571 Date Filed: 07/20/2016 Page: 12 of 16
“Instead, whether a seizure has become too intrusive to be an investigatory stop
and must be considered an arrest depends on the degree of intrusion, considering
all the circumstances.” Id. (citations omitted). When examining the
circumstances, we consider “the law enforcement purposes served by the
detention, the diligence with which the police pursue the investigation, the scope
and intrusiveness of the detention, and the duration of the detention.” United
States v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000) (quoting United States v.
Hardy, 855 F.2d 753, 759 (11th Cir. 1988)). Considering the totality of the
circumstances presented, we conclude that Officer Facemyer’s initial detainment
of Benson was an arrest.
When we consider first the law enforcement purpose served by the detention
of Benson, we closely examine “the most important factor . . . ‘whether the police
detained [the defendant] to pursue a method of investigation that was likely to
confirm or dispel their suspicions quickly, and with a minimum of interference.’”
Id. at 1351 (alteration in original) (quoting Hardy, 855 F.2d at 759). Here, when
he encountered Benson, Officer Facemyer knew that an anonymous caller had
reported to authorities that while she and her daughter were in the park, a man
asked the caller’s daughter about the color of her panties. Officer Facemyer also
had a description of the man who spoke to the child. When Officer Facemyer
identified Benson as the man described by the caller, he questioned him, searched
12
Case: 15-14571 Date Filed: 07/20/2016 Page: 13 of 16
him, and disarmed him. Within a short period of time, other officers arrived at the
scene, and Officer Facemyer left Benson in their custody while he conducted an
investigation. The officers placed Benson in the police van where he remained for
approximately one hour. Therefore, the record evidence supports the finding that
Officer Facemyer was diligent in his investigation and did not detain Benson for
any amount of time longer than was necessary to conduct an investigation.
We next consider the “‘actual scope and intensity of the intrusion.’” Id.(quoting Hardy, 855 F.2d at 760). We agree with the district court that Benson’s
detainment was a severe form of intrusion that was unnecessary under the
circumstances. While disarming Benson, Officer Facemyer threatened him with
violence should he attempt to run, and then placed Benson in handcuffs. This
action was surely not the minimal amount of interference Officer Facemyer could
have applied to complete his investigation of a non-exigent matter. Cf. Gil, 204
F.3d at 1351 (finding that the detention in the back of a police car was reasonable
where the detainee could not be immediately searched and could have interfered
with the search of a residence). Hence, we conclude that the scope of the
intrusiveness of the detention supports the finding that Benson’s arrest occurred
when he was initially detained by Officer Facemyer. This was a severe form of
intrusion that was unnecessary for either officer safety or the completion of the
13
Case: 15-14571 Date Filed: 07/20/2016 Page: 14 of 16
investigation. Accordingly, under the Gil factors, Benson’s detention was more
intrusive than necessary and constituted an arrest.
We next examine whether Officer Facemyer had arguable probable cause to
arrest Benson for a child molestation violation. In our examination, we consider
the elements of the crime charged and the operative fact pattern. Skop v. City of
Atlanta, 485 F.3d 1130, 1137–38 (11th Cir. 2007). Arguable probable cause does
not exist if it is “clear that the conduct in question does not rise to the level of a
crime, under the facts known at the time.” Wilkerson v. Seymour, 736 F.3d 974,
978 (11th Cir. 2013). This is an objective standard, and the officer’s subjective
intent, beliefs, or inferences are not part of the inquiry. Rushing v. Parker, 599
F.3d 1263, 1266 (11th Cir. 2010).
Under Georgia law, a person commits child molestation when such person
“[d]oes any immoral or indecent act to or in the presence of or with any child
under the age of 16 years with the intent to arouse or satisfy the sexual desires of
either the child or the person.” O.C.G.A. § 16-6-4(a)(1) (2009). “[T]he law
against child molestation . . . proscribe[s] acts which offend against the public’s
sense of propriety as well as to afford protection to a child’s body in those cases
where the act or acts are more suggestive of sexually oriented misconduct than
simply assaultive in nature.” Chapman v. State, 318 S.E.2d 213, 214 (Ga. App. Ct.
1984). “The focus is on the adult’s action toward the child in relation to the motive
14
Case: 15-14571 Date Filed: 07/20/2016 Page: 15 of 16
for the action.” Stroeining v. State, 486 S.E.2d 670, 671 (Ga. App. Ct. 1997). An
act “generally viewed as morally indelicate or improper or offensive” can
constitute child molestation. See Chapman, 318 S.E.2d at 214. There is no
requirement that the act must involve physical contact with the child. “A child’s
mind may be victimized by molestation as well.” Smith v. State, 342 S.E.2d 769,
771 (Ga. App. Ct. 1986).
As an initial matter, the district court’s qualified immunity analysis
erroneously relied on only what Benson told Office Facemyer at the time of the
arrest. Instead, it should have relied on what Officer Facemyer knew. See Lee v.
Ferraro, 284 F.3d at 1195. Officer Facemyer knew that an unidentified woman
called the authorities to report that a man fitting Benson’s description asked her
two-year-old daughter the color of her panties; that the passerby who loaned Ms.
Wood her phone stated that Benson was the subject of the call; that Benson
admitted that he mentioned the word “panties” in a brief conversation with the
child that centered on the color of the child’s dress and bloomers; and that Benson
was carrying a firearm with a valid concealed carry permit. The question the
district court should have asked is whether a reasonable officer with that
information could have believed that arguable probable cause existed to arrest
Benson for the crime of child molestation. The answer to that question is no. No
reasonable officer could have believed that Benson’s passing comment to the child
15
Case: 15-14571 Date Filed: 07/20/2016 Page: 16 of 16
“offend[ed] against the public’s sense of propriety,” Chapman, 318 S.E.2d at 214,
or was “morally and sexually indelicate, improper and offensive,” id. at 215.
Moreover, Benson’s legal possession of a firearm could not give a reasonable
officer reason to believe that Benson had committed the offense of child
molestation.
Accordingly, we conclude from the record that the district court did not err
in denying Officer Facemyer’s motion for judgment as a matter of law because his
initial detainment of Benson was an arrest, and Officer Facemyer violated clearly
established law in making that arrest. Thus, Officer Facemyer was not entitled to
qualified immunity at the time of the initial arrest.
IV. CONCLUSION
For the aforementioned reasons, we affirm the district court’s order denying
Officer Facemyer’s motion for judgment as a matter of law, and we dismiss the
parties’ remaining appeals for lack of jurisdiction.
AFFIRMED IN PART AND DISMISSED IN PART FOR LACK OF
JURISDICTION.
16