Morley's Auto Body, Inc. v. Hunter , 70 F.3d 1209 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-3158.
MORLEY'S AUTO BODY, INC., a Florida Corporation, d/b/a Morley's
Towing; Morris Solow; David Solow, d/b/a Dave's Towing; Kenneth
Solow, Plaintiffs-Appellees, Cross-Appellants,
v.
Don HUNTER, individually, and in his official capacity as Sheriff
of Collier County; L. Wayne Graham, individually, and in his
capacity as a Captain in the Collier County Sheriff's Office,
Defendants-Appellants, Cross-Appellees,
Collier County; Collier County Sheriff's Office; John Doe, 1-
10, Defendants.
Dec. 18, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-271-Civ-Ftm-23D), George T. Swartz,
Magistrate Judge.
Before ANDERSON and CARNES, Circuit Judges, and Owens* District
Judge.
CARNES, Circuit Judge:
Collier County Sheriff Don Hunter and Captain L. Wayne Graham
appeal from a judgment entered against them in their official
capacities. That judgment followed a jury trial and was entered in
favor of plaintiffs Morley's Auto Body, Inc., and David Solow,
d/b/a Dave's Towing. The main question presented in this 42 U.S.C.
§ 1983 case is whether two wrecker service companies, and their
owners, had a constitutionally protected property interest in
remaining on a wrecker rotation call list maintained by the Collier
County Sheriff's Office. Because such property interests must be
determined by reference to state law, and because we can find no
*
Honorable Wilbur D. Owens, U.S. District Judge for the
Middle District of Georgia, sitting by designation.
Florida law to support their claim of entitlement, we hold that the
plaintiffs have failed to establish that they had a property
interest protected by the Due Process Clause of the Fourteenth
Amendment. Therefore, we will reverse the judgment of the district
court with respect to the procedural due process claim.
Additionally, this case involves the cross-appeal of the
individual plaintiff David Solow. Solow, who claimed that Captain
Graham violated his right under the Fourth and Fourteenth
Amendments to be free of unreasonable seizure, appeals from the
judgment entered by the district court after it granted a defense
motion for a directed verdict. Because the record does not
sufficiently link Captain Graham to the arrest related to this
claim, we will affirm the district court's judgment as to it.
I. FACTS AND PROCEDURAL HISTORY
County sheriffs' offices and other law enforcement agencies
that are called to the scene of automobile accidents and breakdowns
regularly summon wreckers to tow away disabled vehicles. These
calls or referrals are an important source of business for wrecker
service companies. The Collier County Sheriff's Office, like many
law enforcement agencies, maintains a "rotation list" of local
private wrecker service companies that it calls on a rotating basis
when wrecker services are required.
In October 1990, Sheriff Graham issued a document entitled the
"Collier County Sheriff's Office Wrecker Service Policy." The
twelve-page typewritten policy specifies the various equipment and
operating standards for wrecker service providers seeking to be
placed on the rotation list, sets up an application process, and
spells out the operational details of the rotation system. The
policy also requires that wrecker services on the rotation list
comply with the terms it specifies in order to remain on the list.
The provisions of the policy are quite detailed.
The plaintiffs are two wrecker service businesses and their
operators in Collier County. Both wrecker services formerly
received referral business from the Collier County Sheriff's Office
through participation in the rotation call system. Due to various
incidents involving their operators and employees, both of the
1
wrecker services were removed from the rotation list. The
plaintiffs received no notice or opportunity for a hearing before
they were removed from the list.
After being removed from the list, the plaintiffs commenced
this lawsuit under to 42 U.S.C. § 1983. Although the plaintiffs
initially sought recovery under a number of theories of liability,
the parties primarily focused on the plaintiffs' procedural due
process claim, and so do we.2 Additionally, David Solow stated a
claim against Captain Graham alone for unreasonable seizure in
1
The incidents leading to the removal of the plaintiffs from
the rotation list included various traffic citations and criminal
charges, each of which was later reduced, dismissed, or nolle
prossed. One such incident ultimately led to the arrest of David
Solow on a charge of tampering with evidence, and that arrest
forms the basis for Solow's Fourth Amendment claim, which is
discussed on pp. 18-20, below.
2
In addition to constitutional claims, discussed infra, the
plaintiffs included in their complaint a claim for breach of
contract. Under this theory, the plaintiffs contended that the
wrecker rotation policy, as implemented by the Collier County
Sheriff's Office, created a contractual relationship. The
district court dismissed this claim, finding that the
relationship between the parties had "no mutuality of obligation
to form a contract," and the plaintiffs did not appeal that
dismissal.
violation of the Fourth and Fourteenth Amendments. At the close of
the plaintiffs' evidence, the district court directed a verdict in
favor of Captain Graham on that claim.
II. DUE PROCESS CLAIM
A. THE ISSUE
Resolution of the due process claim depends on the answer to
a single question: Did the plaintiffs have a constitutionally
protected property interest in remaining on the rotation list? "In
assessing a claim based on an alleged denial of procedural due
process a court must first decide whether the complaining party has
been deprived of a constitutionally protected liberty or property
interest. Absent such a deprivation, there can be no denial of due
process." Economic Dev. Corp. v. Stierheim, 782 F.2d 952, 954-55
(11th Cir.1986). It is undisputed that the plaintiffs received no
notice or opportunity for a hearing prior to being removed from the
rotation call list. Therefore, as the defendants concede, if the
plaintiffs had a constitutionally protected property interest in
remaining on the rotation list, they were deprived of that interest
without due process of law.
The crux of the plaintiffs' argument is that the "mutually
explicit understandings of the parties," taken together with the
written policy, gave rise to a property interest under the
principles outlined in Board of Regents v. Roth, 408 U.S. 564, 92
S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The defendants argue that the
plaintiffs misconstrue the principles of Roth, at least as
clarified by the Supreme Court's subsequent decision in Bishop v.
Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). Relying
on Bishop and decisions of this Court that address the creation of
property rights, the defendants argue that such property rights
must be determined by reference to state law, and that Florida law
recognizes no property interest under the circumstances of this
case. Accordingly, the defendants contend that the district court
committed reversible error by failing to hold, as a matter of law,
that no such interest existed and by denying their summary judgment
and directed verdict motions on this claim. We agree.3
B. STANDARD OF REVIEW
"State law defines the parameters of a plaintiff's property
interest for section 1983 purposes," Mackenzie v. City of
Rockledge, 920 F.2d 1554, 1559 (11th Cir.1991) and "[w]hether state
law has created a property interest is a legal question for the
court to decide." Id. (quoting Marine One, Inc. v. Manatee County,
877 F.2d 892, 894 (11th Cir.1989)). Questions of law are subject
to de novo review by this Court. E.g., Swint v. City of Wadley,
Ala., 51 F.3d 988, 994 (11th Cir.1995).
C. ANALYSIS
In Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33
L. Ed. 2d 548 (1972), the Supreme Court discussed the basic
principles governing the existence of property interests subject to
3
The district court submitted to the jury the ultimate
question of whether the plaintiffs' constitutional rights were
violated. That was error. The function of the jury, insofar as
liability is concerned, is to decide genuine issues of material
fact, of which there are none in this case. It is the function
of the court, not the jury, to decide legal issues, such as
whether the wrecker service policy that indisputably existed in
this case created a property interest. Because there are no
genuine issues of material fact involving the wrecker service
policy claim, the legal issue of whether the policy created a
property interest is dispositive of this claim.
procedural due process protections: "To have a property interest
in a benefit, a person clearly must have more than an abstract need
or desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement to
it." Id. at 577, 92 S.Ct. at 2709. The Court further explained
how such a claim of entitlement may be created: "Property
interests, of course, are not created by the Constitution. Rather
they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as
state law...." Id.
In Perry v. Sindermann, a companion case to Roth, the Supreme
Court reiterated the conceptual basis for the creation of property
rights: "A person's interest in a benefit is a "property' interest
for due process purposes if there are such rules or mutually
explicit understandings that support his claim of entitlement to
the benefit...." 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33
L. Ed. 2d 570 (1972). The plaintiffs point to the phrase "mutually
explicit understandings" as support for their argument that their
relationship with the Collier County Sheriff's Office creates a
cognizable property interest, even in the absence of a contract
with that office, and even in the absence of any supporting Florida
statute, regulation, court decision, or any other source of Florida
law creating the entitlement. The plaintiffs' argument fails,
however, because it disregards the post-Roth teachings of the
Supreme Court, and it is inconsistent with the law of this Circuit
regarding the creation of constitutionally protected property
interests.
After Roth and Perry, the Supreme Court clarified the
relationship between state law and the creation of property
interests, holding that "the sufficiency of the claim of
entitlement must be decided by reference to state law." Bishop v.
Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976)
(policeman had no property interest in his continued public
employment because North Carolina law did not act to create such an
interest); see also Logan v. Zimmerman Brush Co., 455 U.S. 422,
430, 102 S. Ct. 1148, 1155, 71 L. Ed. 2d 265 (1982) ("The hallmark of
property ... is an individual entitlement grounded in state law,
which cannot be removed except "for cause.' ") (emphasis added).
This Court has consistently applied the teachings of Bishop
in the context of due process deprivation claims by looking to
state law to determine whether a property interest has been
created. See Warren v. Crawford, 927 F.2d 559, 562-64 (11th
Cir.1991) (applying Georgia law to the question of whether the
plaintiff in a wrongful discharge case had property interest in his
county job and observing that even a "mutual understanding" cannot
create a property interest contrary to state law); Mackenzie, 920
F.2d at 1559 (holding that plaintiff had no property interest in a
building permit because Florida law creates no such interest);
Marine One, 877 F.2d at 894 (same); Shahawy v. Harrison, 875 F.2d
1529, 1532 (11th Cir.1989) (relying on Florida statutory law in
holding that physician had a property interest in the continuation
of his medical staff privileges); Schneider v. Indian River
Community College Found., 875 F.2d 1537, 1544 (11th Cir.1989)
(examining Florida statutory law and holding that plaintiffs in
wrongful discharge case had no property interest in their continued
employment at a community college radio station); Whitfield v.
Finn, 731 F.2d 1506, 1508 (11th Cir.1984) (applying Alabama law in
determining that discharged city police officer had no property
interest in his job); see also Lassiter v. Alabama A & M Univ., 28
F.3d 1146, 1148-52 (11th Cir.1994) (en banc) (looking to Alabama
law in holding that state university officials were entitled to
qualified immunity in wrongful discharge case because it was not
clearly established that university vice president had a property
interest under state law in continued employment).
The decision in Bishop and this Court's precedents make clear
that, if the plaintiffs in this case had a protected property
interest in remaining on the wrecker rotation list in Collier
County, that interest must be rooted in Florida law. The
plaintiffs do not cite, and we have not found, any decision of any
Florida court indicating that they had an entitlement to remain on
the rotation list. Neither do they cite, nor have we found, any
Florida statute, state administrative regulation, or any other
source of Florida law that might be construed to provide the
asserted entitlement.
Instead, the plaintiffs rely on the sheriff's wrecker rotation
policy itself for the creation of the alleged property right.
Their reliance is misplaced, because there is no Florida state law
authority that elevates that policy to the status of a regulation
with the force of law.4 The policy was issued in the sole
4
In contrast, we note that Florida statutory law governs the
wrecker rotation system utilized by the Florida Highway Patrol,
Fla.Stat.Ann. § 321.051 (West 1994), and entitles wrecker service
discretion of the Collier County Sheriff and no state agency with
statutory authority to do so has authorized the sheriff to create
the entitlement the plaintiffs urge us to recognize. Because any
expectations arising from the wrecker rotation policy of a county
sheriff are not grounded in Florida law, such a policy does not
give rise to a constitutionally protected property interest.
The plaintiffs rely on Fla.Stat.Ann. sections 30.15, 30.53,
and 316.640 as support for the proposition that Florida county
sheriffs have authority to promulgate wrecker service regulations
that have the effect of creating a legal entitlement. Section
30.15 defines the general "[p]owers, duties, and obligations" of
county sheriffs but contains no delegation of regulatory power.
Fla.Stat.Ann. § 30.15 (West 1988). Section 30.53 preserves the
independence of sheriffs "concerning the purchase of supplies and
equipment, selection of personnel ... setting of salaries," but
says nothing about the promulgation of regulations. Fla.Stat.Ann.
§ 30.53 (West 1988). Section 316.640 authorizes the sheriff to
"enforce all of the traffic laws" and to employ a "parking
enforcement specialist" to assist in the issuance of parking
tickets. Fla.Stat.Ann. § 316.640 (West 1989). In any event, the
operators to a hearing in connection with removal from that
particular rotation system, Fla.Stat.Ann. § 120.57 (West 1982).
However, no comparable statutory provision governs wrecker
rotation systems established by Florida county sheriffs.
Although the Collier County Wrecker Service Policy requires that
all wrecker services on the Collier County rotation list qualify
for participation in the Florida Highway Patrol rotation system,
the incorporation of Florida Highway Patrol standards into the
Collier County policy cannot bootstrap that policy into a
regulation with the force of law. Neither Florida law nor the
Florida Highway Patrol standards requires such incorporation or
elevates it into the status of an entitlement.
question is not whether the sheriff had the authority to promulgate
a wrecker rotation policy per se. Instead, the question is whether
any state decisional law, statute, or regulation having the force
of law authorized or mandated creation of the entitlement that
plaintiffs claim. None did.
Although not binding precedent in this Court, Piecknick v.
Commonwealth of Pennsylvania, 36 F.3d 1250 (3rd Cir.1994), informs
our analysis of the wrecker rotation policy at issue in this case.
In Piecknick, the Pennsylvania State Police created and distributed
a wrecker service policy designed to allocate wrecker service
referral calls within Washington County. Id. at 1253. A key issue
in the case was whether the policy itself created a
constitutionally protected property interest. As here, the policy
at issue had not been specifically authorized by, or codified in,
any state statute or regulation nor had it been approved by any
state agency with authority to do so. Id. at 1258. These factors
prompted the Piecknick court to conclude: "The guideline at issue
here is not a regulation having the force of law.... Accordingly,
Piecknick has not alleged any property interest entitled to
protection under the Due Process Clause of the Fourteenth
Amendment." Id. at 1259. We find persuasive the analysis of the
Third Circuit in Piecknick and we likewise reject the argument that
the policy involved in this case could, in and of itself, create a
property right under Florida law.
D. DURHAM v. JONES
The preceding analysis illuminates the futility of the
plaintiffs' efforts to distinguish Durham v. Jones, 698 F.2d 1179
(11th Cir.1983), this circuits's only precedent addressing property
interests in the context of a wrecker rotation list. In Durham, a
wrecker service operator brought a section 1983 action based on a
Georgia sheriff's refusal to place him on the wrecker rotation list
that the sheriff informally maintained. Id. at 1180. We held that
the plaintiff did not have a property interest in being on that
list. Id. at 1181.
The plaintiffs point to two facts in an attempt to
distinguish this case from Durham: (1) a written policy is
involved in this case, and (2) unlike the Durham plaintiff, the
plaintiffs in this case have already received the benefits of
wrecker service referrals. Yet these factual distinctions can lead
to no difference in the result unless they operate to create a
constitutionally protected property interest where there would
otherwise be none. As to the first factual distinction, we know of
no authority for the proposition that the act of reducing a wrecker
rotation policy to writing can create a legally enforceable
entitlement. There is no statute of frauds doctrine in procedural
due process law. As a matter of logic, it does not follow from the
fact that no written policy was involved in the Durham case where
no property interest was found, that the presence of a written
policy would create such an interest. As to the second factual
distinction, it is axiomatic that the mere receipt of a benefit
from the government does not automatically create an entitlement to
that benefit. Therefore, the factual distinctions urged by the
plaintiffs do not persuade us to reach a result different from that
in Durham.
E. "WRECKER ROTATION" CASE LAW IN OTHER CIRCUITS
Our holding in Durham, and our holding in this case, is
consistent with the law of other circuits that have considered the
issue of property rights in the context of wrecker rotation lists.
The Second, Third, Fourth, Fifth, Seventh, and Tenth Circuits have
addressed this issue. The general principle that emerges from all
of the decisions is that:
Where a court has found a property interest in remaining on a
rotation list, the plaintiff has alleged a claim of
entitlement supported or created by a formal and settled
source such as a state statute or regulatory scheme. Absent
such an entitlement grounded in state law, courts have not
found a protected property interest in remaining on a wrecker
rotation list.
Blackburn v. Marshall, 42 F.3d 925, 938 (5th Cir.1995). To
illustrate the application of this principle, and to illuminate our
own analysis, we review briefly the cases from each of these
circuits.
In the most recent case of this series, the Seventh Circuit
considered whether a wrecker service company had a property
interest in remaining on a city rotation list. O'Hare Truck Serv.,
Inc. v. City of Northlake, 47 F.3d 883 (7th Cir.1995). The wrecker
service company in O'Hare claimed that the City of Northlake
violated its procedural due process rights when the city removed it
from the rotation list without providing an opportunity for a
hearing. Id. at 884. Although no statute or ordinance governed
the rotation system, the company argued nonetheless that it had a
protected property interest in remaining on the list. The court
rejected that argument stating, "We have, of course, found property
interests arising from internal rules or regulations, but only when
they have the force of law." Id. at 886. Finding no Illinois
authority supporting the conclusion that Northlake's policy and
practice concerning the rotation list had the force of law, the
Seventh Circuit held that the wrecker service company had no
property interest in remaining on the list. Id.
As noted previously, the Fifth Circuit articulated the general
principle governing these cases in Blackburn v. Marshall, 42 F.3d
at 938, another case in which the plaintiff claimed a property
interest in remaining on a local law enforcement agency's wrecker
rotation list. The Blackburn Court drew from Roth, Perry, Bishop,
Logan, and applicable Fifth Circuit decisions the principle that
constitutionally protected property interests must be grounded in
state law. Applying that principle to the facts, the court
concluded, "Because there apparently is no Texas or local statute,
ordinance, or regulatory scheme governing the wrecker list ... we
hold that Blackburn has failed to allege a property interest in
remaining on the wrecker rotation list." Blackburn, 42 F.3d at
941.
The Third Circuit applied the same principle in Piecknick, 36
F.3d at 1257-59. Distinguishing wrecker rotation cases in which a
property interest had been found, the court stated: "These cases
are distinguishable. In all of them, a state statute or regulation
gave a towing operator a property interest. Here, there is no
Pennsylvania statute or regulation governing towing or wrecker
services." Id. at 1257 (footnote omitted). The court also
considered and rejected, as we do, the contention that the
applicable wrecker service policy at issue could, of itself, create
a protected property interest. Id. at 1259. Concluding that that
policy was "not a regulation having the force of law" and noting
the absence of "any other governing state law or regulation" to
support the asserted entitlement, the court held that the plaintiff
failed to establish a property interest protected by the Fourteenth
Amendment. Id.
The Second Circuit considered whether a wrecker referral
system created a property right in White Plains Towing Corp. v.
Patterson, 991 F.2d 1049 (2d Cir.), cert. denied, --- U.S. ----,
114 S. Ct. 185, 126 L. Ed. 2d 144 (1993). In that case, the state
police divided a section of a state highway into three zones,
assigning exclusive towing referral rights to a single wrecker
service within each zone. Under the system, the dispatcher called
the assigned wrecker unless the disabled motorists requested a
different wrecker service. The plaintiff brought a section 1983
due process claim when his exclusive zone assignment was
terminated. The Second Circuit emphasized that the wrecker
assignment system was not authorized by or codified in any New York
statute or regulation and held that "regardless of their unilateral
hopes or expectations, plaintiffs had no cognizable property
interest in continued towing referrals ... and the mere termination
of their status thus did not deprive them of a
due-process-protected interest." Id. at 1062.
Applying the same principle in a different state law context,
the Fourth Circuit has recognized that a wrecker service company
has a constitutionally protected property interest in remaining on
a rotation list when state regulations require maintenance of the
list for the stated purpose of providing companies with an equal
opportunity to obtain the referral business. Pritchett v. Alford,
973 F.2d 307 (4th Cir.1992). That case involved a section 1983 due
process claim brought by a wrecker service company that had been
removed from a rotation list. The rotation list was governed by
extensive state regulations that "required every highway patrol
district to establish wrecker zones and "wrecker-rotation' lists
for the zones ... to ensure that all wrecker services on the list
have an equal opportunity to the towing business arising from the
rotation list." Id. at 317. As the court explained, "Being on
[the list] by virtue of this state regulatory regime insured that
it was a legally enforceable entitlement...." Id. (emphasis
added). As we have noted, no such state regulatory regime is
present in this case.
Likewise, the Tenth Circuit has recognized a protected
property interest in continued wrecker referrals when the referral
system was directly governed by a state wrecker statute mandating
that referrals be made on an equal basis. Abercrombie v. City of
Catoosa, 896 F.2d 1228 (10th Cir.1990). The plaintiff in
Abercrombie brought a section 1983 due process claim after he was
removed from a city's wrecker rotation list. To support his claim
of entitlement, the plaintiff relied on the state wrecker statute,
which required the city "to make wrecker referrals on an equal
basis as nearly as possible" to licensed wreckers in or near the
city limits. Id. at 1232. Closely examining the applicable
statute, the court concluded that it "created a property interest
in wrecker referrals in favor of the plaintiff." Id. As
previously explained, no analogous Florida statute operates to
create a property interest in this case.
In summary, every circuit to date that has considered the
creation of property interests in the context of wrecker rotation
lists has reached a decision in harmony with the principle recently
distilled by the Fifth Circuit in Blackburn: The existence of a
property right in such a case turns on whether the alleged claim of
entitlement is supported or created by state law such as a state
statute or regulatory scheme or decisional law. We see no reason
for this circuit to depart from that principle, which is entirely
consistent with our Durham decision.
Because the plaintiffs have not, and apparently cannot, point
to any Florida statute, state administrative regulation, or any
other source of Florida law that provides the asserted entitlement
in remaining on the wrecker rotation list, we hold that they have
failed to allege a property interest protected by the Due Process
Clause of the Fourteenth Amendment. Accordingly, the judgment of
the district court must be reversed with respect to the plaintiffs'
claims arising from their removal from the list.5
5
In addition to the property interest claim, the plaintiffs'
second amended complaint averred a procedural due process liberty
interest claim, a substantive due process claim, and an equal
protection claim resulting from their removal from the wrecker
rotation list.
The plaintiffs rely on Cowan v. Corley, 814 F.2d 223
(5th Cir.1987) as support for their argument that they had a
liberty interest in remaining on the rotation list. This
reliance is misplaced. In Cowan, the Fifth Circuit held
that it was error to dismiss a wrecker service's liberty
interest claim when "[a]ll wrecker assignments, including
those made on an owner-preference basis were routed through
the sheriff's office," id. at 225, which allegedly resulted
in the plaintiff's "exclusion from all wrecker calls
III. UNREASONABLE SEIZURE CLAIM
David Solow's cross-appeal of the district court's decision
to grant Captain Graham's directed verdict motion on the
unreasonable seizure claim need not detain us long. Solow's claim
arises from a dispute he had at the scene of an automobile accident
with Collier County Deputy Sheriff Charles Campbell, who is not a
defendant in this case. When Deputy Campbell arrived at the scene,
Solow had already loaded a wrecked vehicle for towing. Deputy
Campbell informed Solow that the vehicle would need to be unloaded
to facilitate the investigation. Solow became upset at the
originating on public property," id. at 227 (emphasis
added). Here, the removal of the plaintiffs from the
rotation list does not affect their right to operate wrecker
service businesses, to remove vehicles from public property
at the request of the owners, or to provide wrecker services
to any member of the public who requests such services. In
short, the removal of the plaintiffs from the rotation list
does not cognizably burden the plaintiffs' liberty "to
follow a chosen profession free from unreasonable
governmental interference," Greene v. McElroy, 360 U.S. 474,
492, 79 S. Ct. 1400, 1411, 3 L. Ed. 2d 1377 (1959), or "to work
for a living in the common occupations of the community,"
Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10, 60 L. Ed.
131 (1915).
The plaintiffs' substantive due process claim is
palpably without merit. Any expectations the plaintiffs may
have had regarding the rotation list do not approach a right
"implicit in the concept of ordered liberty" as required for
the triggering of substantive due process protection. See
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994)
(quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct.
149, 152, 82 L. Ed. 288 (1937); see also Lovins v. Lee, 53
F.3d 1208, 1209 (11th Cir.1995) (discussing the restricted
authority of federal courts to expand substantive due
process rights).
The plaintiffs' equal protection claim is equally
meritless, as they have "neither asserted nor established
the existence of any suspect classification or the
deprivation of any fundamental constitutional right."
Hurrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 199, 99
S. Ct. 1062, 1065, 59 L. Ed. 2d 248 (1979).
prospect of losing the towing job, but unloaded the vehicle when
Deputy Campbell directed him to do so. Subsequently, Deputy
Campbell completed an affidavit seeking Solow's arrest. The
warrant issued and Solow was arrested on a charge of tampering with
evidence in violation of Fla.Stat. section 918.13. Following his
arrest, Solow did not sue Deputy Campbell; instead, he sued
Captain Graham.
At the close of the plaintiffs' proof in this case, the
district court granted Captain Graham's motion for a directed
verdict on the unreasonable seizure claim on the basis that
probable cause existed to support the arrest. In ruling on this
motion, and in response to argument from Solow's attorney, the
court stated: "I think you're wrong, counsel. Once a warrant has
been issued, at least in this circuit, that is probable cause.
It's absolute probable cause as far as I know about it. I don't
see how you can get around it." The district court was mistaken,
because the issuance of a warrant cannot transform an
unconstitutional arrest into a constitutional one, nor can it
insulate from liability an officer who obtains the warrant. E.g.,
Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271
(1986). However, the constitutionality of Solow's arrest is
irrelevant insofar as the defendant in this case, Captain Graham,
is concerned, unless a sufficient connection exists between Captain
Graham and the arrest.
The record shows no such connection. Deputy Campbell
testified that his supervisor, Sergeant Greve, directed him to take
information to the State Attorney's Office to determine whether
there was sufficient evidence for prosecution. It is undisputed
that after consultation with an Assistant State Attorney, Deputy
Campbell completed and signed the affidavit seeking Solow's arrest.
Although the testimony of Captain Graham is somewhat ambiguous on
this point, it appears from the testimony that the extent of his
involvement in the matter was limited to reviewing the facts with
Deputy Campbell, telling him to proceed with the investigation and
to take his findings to the State Attorney's office, and discussing
the incident with in-house counsel at the Collier County Sheriff's
Office.
Because Solow failed to offer sufficient evidence to present
a jury issue on whether Captain Graham caused Deputy Campbell to
obtain the warrant, we affirm the trial court's decision to direct
a verdict in Graham's favor on this claim.6
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court
respecting the removal of the plaintiffs from the wrecker rotation
list is REVERSED, the judgment of the district court with respect
to David Solow's unreasonable seizure claim is AFFIRMED, and the
case is REMANDED for entry of a judgment in favor of the defendants
on all claims.
6
Because both defendants are entitled to judgments in their
favor as to all the claims involved, their other arguments and
the plaintiffs' cross-appeal contending that the district court
erred in dismissing the defendants in their individual capacities
are moot.