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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10791
Non-Argument Calendar
________________________
D.C. Docket No. 0:17-cv-60009-DPG
ERIC WATKINS,
Plaintiff - Appellant,
versus
OFFICER SHIELDS,
Fort Lauderdale Police Department,
OFFICER SCHRIDER,
Fort Lauderdale Police Department,
RIVERLAND PARK, CARABEO,
950 SW 27th Avenue
Fort Lauderdale, FL 33312,
Defendants - Appellees,
RANGER TRILLO,
Defendant.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 10, 2021)
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Eric Watkins, proceeding pro se, appeals the district court’s grant of summary
judgment against him on his
42 U.S.C. § 1983 civil-rights action for violations of
his rights under the First, Fourth, Fifth, and Fourteenth Amendments. After careful
review, we vacate the grant of summary judgment on Watkins’s Fourth Amendment
claim, but we affirm the judgment in all other respects.
I.
We present the relevant facts in the light most favorable to Watkins.1 On
March 14, 2013, Watkins was parked in Riverland Park’s parking lot, playing music
from his car stereo system. A park ranger approached and asked him to turn off the
music because of park rules against playing amplified sound. Watkins refused.
The ranger radioed law enforcement, and Officers Shields and Schrider of the
Fort Lauderdale Police Department arrived. They ordered Watkins to turn the music
1
At summary judgment, “[w]e view the evidence and all factual inferences therefrom in
the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts
in favor of the non-movant.” Alston v. Swarbrick,
954 F.3d 1312, 1317 (11th Cir. 2020).
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off, stating that amplified sound was prohibited by park rules. Watkins complied
and shut off the music. Shields then ordered Watkins to get in his car and leave the
park, warning him that if he ever returned to the park he would be arrested for
trespass. Watkins got in his car and left.
After leaving, Watkins drove around the park and pulled up by Shields, who
was parked outside the park. Watkins asked him for the case number for the trespass
warning. Shields instructed Watkins to get out of the road and to pull into the park
where they could talk. Watkins did so, and both he and Shields exited their cars.
Watkins again asked for the case number and stated that he intended to challenge the
permanent trespass warning with Shields’s supervisor. Shields became angry and
told Watkins he was under arrest for trespass after warning. 2 Schrider assisted in the
arrest.
II.
In a second amended complaint, Watkins alleged, in relevant part, that
Officers Shields and Schrider violated (1) his Fourth Amendment rights by arresting
him without probable cause for trespass, (2) his due-process right, under the Fifth
and Fourteenth Amendments, to patronize the public park by trespass-warning him
from ever returning to the park, and (3) his First Amendment rights to freedom of
2
Shields and Schrider dispute these events, contending that Watkins reentered the park on
his own, loudly playing music from his car stereo. We must credit Watkins’s version of events at
summary judgment, however.
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speech and expression at a public park by enforcing an unconstitutional prohibition
on amplified sound. He also brought a similar First Amendment claim against
Carabeo in his official capacity, purportedly as manager of Riverland Park.
After discovery, the defendants filed a joint motion for summary judgment.
Shields and Schrider argued that they did not violate Watkins’s constitutional rights
and were entitled to qualified immunity. Carabeo asserted that he could not be held
liable because he was not personally involved in or aware of the events at Riverland
Park, he was not a Riverland Park manager, and he had no role in drafting or revising
the City of Fort Lauderdale Parks Rules and Regulations (“Park Rules”). In a
response, Watkins argued his claims and asserted that he intended Carabeo to be a
placeholder for the City of Fort Lauderdale. The defendants filed a reply.
In a report and recommendation (“R&R”), a magistrate judge recommended
that the district court grant the defendants’ motion for summary judgment. The
magistrate judge first concluded that any claim based on Watkins’s First
Amendment rights failed because the regulation at issue, Park Rule 4.5, was a
reasonable and content-neutral time, place, and manner restriction.
The magistrate judge also rejected Watkins’s other claims, stating that he
knowingly returned to the park immediately after being trespass-warned. Regarding
Watkins’s claim that he was simply “following orders from Defendant Shields when
he returned to the Park,” the magistrate judge observed that Watkins “has been found
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to have frequently brought frivolous and vexatious claims, often involving trespass,
in this Court, and that he has been sanctioned for continuing to do so.” So according
to the magistrate judge, “If Plaintiff returned to the Park under any circumstances
immediately after he was given a trespass warning, he did so knowingly and at his
own peril.” Finally, the magistrate judge found that Shields and Schrider were
entitled to qualified immunity.
The district court adopted the R&R over Watkins’s objections and granted the
defendants’ motion for summary judgment. This appeal followed.
III.
We review the grant of summary judgment de novo, construing the evidence
and drawing all reasonable inference in favor of the nonmoving party. Feliciano v.
City of Miami Beach,
707 F.3d 1244, 1252 (11th Cir. 2013). We may not make
credibility choices, and we therefore must credit the nonmoving party’s version of
the facts even if we believe the evidence is “of doubtful veracity.”
Id.
We construe pro se briefs liberally. Timson v. Sampson,
518 F.3d 870, 874
(11th Cir. 2008). We may affirm the judgment on any ground supported by the
record. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,
528 F.3d 839, 844 (11th
Cir. 2008).
IV.
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We begin with the § 1983 claims against Officers Shields and Schrider, who
raised the defense of qualified immunity. Qualified immunity generally protects
government officials from individual liability for their on-the-job conduct unless
they “violate[] clearly established statutory or constitutional rights of which a
reasonable person would have known.” Piazza v. Jefferson Cnty.,
923 F.3d 947, 951
(11th Cir. 2019) (quotation marks omitted).
A.
Watkins first claims that Shields and Schrider violated his clearly established
First Amendment right to play amplified sound in a public forum by enforcing Park
Rule 4.5, which Watkins believes is unconstitutional.
According to Park Rule 4.5, “No person or group shall play or operate any
sound amplification device including radios, television sets, turn tables, tape decks,
public address systems, amplified musical instruments, portable generators, or any
other loud noise generating device which disturbs other persons.” Park Rule 11.3
provides that any person who violates any of the rules “shall be ordered to leave all
City of Fort Lauderdale parks . . . for a minimum 24-hour period, and if he fails to
leave, he will be subject to arrest and prosecution for trespassing or prosecuted under
other ordinances.”
Shields and Schrider are entitled to qualified immunity on this claim.
Watkins’s conduct fell within Park Rule 4.5’s prohibition because he used a sound
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amplification device—his car stereo system 3—inside Riverland Park. Although
Watkins argues that Park Rule 4.5 violates the First Amendment, “[p]olice are
charged to enforce laws until and unless they are declared unconstitutional.”
Michigan v. DeFillippo,
443 U.S. 31, 38 (1979). At the time of the incident giving
rise to Watkins’s arrest, Park Rule 4.5, or something materially identical, “had not
been declared unconstitutional, and therefore it could not have been apparent to [the
officers] that [they were] violating [Watkins’s] constitutional rights” by ordering
him to turn off his music and leave the park. Cooper v. Dillon,
403 F.3d 1208, 1220
(11th Cir. 2005).
Watkins relies on the Florida Supreme Court’s decision in State v. Catalano,
104 So. 3d 1069 (Fla. 2012), but in that case the amplified-sound regulation was
held unconstitutional because it was content based, carving out more favorable rules
for “motor vehicles used for business or political purposes.”
Id. at 1078–79. The
regulation was therefore subject to strict scrutiny.
Id. In contrast, Park Rule 4.5 is
a content-neutral sound ordinance directed at limiting sound emanating within and
around parks, which is a substantial interest of the city. See Ward v. Rock Against
Racism,
491 U.S. 781, 784, 803 (1989) (stating that content-neutral sound
regulations are valid if they are narrowly tailored to serve a significant governmental
3
Despite Watkins’s assertions to the contrary, a car stereo system is plainly a “sound
amplification device” within the meaning of Park Rule 4.5.
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interest, such as “protecting its citizens from unwelcome noise,” and leave open
alternative channels of communication). Watkins also cites to Daley v. City of
Sarasota,
752 So. 2d 124 (Fla. Dist. Ct. App. 2000), but that case did not involve
sound regulation in public parks. And even assuming Park Rule 4.5 might fail
Ward’s test for constitutionality, despite its valid goals and content neutrality, it is
not “so grossly and flagrantly unconstitutional” that the officers should have known
it was unconstitutional. DeFillippo,
443 U.S. at 38.
Accordingly, Shields and Schrider are entitled to qualified immunity as to
Watkins’s § 1983 First Amendment claims.
B.
Watkins next asserts that Shield and Schrider violated his Fourth Amendment
rights when they arrested him for trespass based on conduct authorized by Shields.
Relatedly, he claims that these officers lacked the authority to issue a trespass
warning in the first place. 4
4
Watkins’s argument on this point is primarily statutory, but he also asserts in passing that
the “[t]respass warning was invalid from the beginning because it was indefinite and hence
illegally violated Plaintiffs due process right to patron the park.” We conclude that this passing
reference, without any supporting legal authority or arguments, is not sufficient to raise a due
process argument on appeal. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th
Cir. 2014) (“We have long held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting arguments and
authority.”).
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“[I]t is well established that [a] warrantless arrest without probable cause
violates the Fourth Amendment and forms a basis for a section 1983 claim.” Carter
v. Butts Cnty.,
821 F.3d 1310, 1319 (11th Cir. 2016) (quotation marks omitted). But
where probable cause supports an arrest, it bars a § 1983 unlawful-arrest claim. Id.
“Probable cause to arrest exists if the facts and circumstances within the officer’s
knowledge, of which he has reasonably trustworthy information, would cause a
prudent person to believe, under the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” Id. (internal quotation
marks omitted). We evaluate probable-cause determinations objectively—that is,
without regard to the officer’s subjective intentions—and under the totality of the
circumstances. See id.
Watkins was arrested under a Fort Lauderdale ordinance prohibiting “trespass
. . . on public property.” Fort Lauderdale Code of Ordinances § 16-71(b)(7).
“Trespass” includes “[e]ntering upon or refusing to leave any public property in
violation” of lawfully enacted and promulgated regulations “where immediately
prior to such entry, or subsequent thereto, such regulations are made known by the
official charged with the security, care or maintenance of the property, his agent or
a police officer.” Id. § 16-71(c)(2). In addition, Florida state law criminalizes
trespass on property other than a structure or conveyance—such as a public park—
where a person, “without being authorized, licensed, or invited,” “willfully enters
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upon or remains” on the property “[a]s to which notice against entering or remaining
is given . . . by actual communication to the offender.”
Fla. Stat. § 810.09(1)(a).
The record shows that a park ranger told Watkins that he was violating park
rules by playing music inside Riverland Park through a sound-amplification
device—his car stereo system. When Watkins refused to turn off the music, thereby
continuing to violate park rules, the ranger notified police. Despite Watkins’s views
to the contrary, his conduct plainly violated Park Rule 4.5, so the park rules required
that he be “ordered to leave . . . for a minimum 24-hour period,” even if he was not
actively violating park rules at the time he was ordered to leave. See Park Rule 11.3.
The officers did just that, informing him that he was violating park rules and ordering
him to leave the park.
We are not persuaded that the officers lacked the authority to issue a trespass
warning for violating park rules or—more pertinent for purposes of qualified
immunity—that the officers should have known they lacked that authority. Watkins
asserts that the officers were required to have written authorization from Riverland
Park to issue trespass warnings, claiming that this requirement derives from
§§ 810.08 and 810.09. He is incorrect.
Section 810.08 governs trespass of a “structure or conveyance,” while
§ 810.09 governs most other trespasses. Section 810.09 applies here because no
structure or conveyance was involved. And in contrast to offenses under § 810.08,
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§ 810.09 includes no requirement that the alleged trespasser “defied an order to leave
communicated by the owner or authorized person.” R.C.W. v. Florida,
507 So. 2d
700, 702 (Fla. Dist. Ct. App. 1987). The statute requires merely that “notice against
entering or remaining is given . . . by actual communication to the offender,” which
is what Shields and Schrider provided.
Fla. Stat. § 810.09(1)(a)(1). So at the very
least, the relevant law was not so clearly established that the officers should have
known that they lacked the authority to issue a trespass warning.
Turning to Watkins’s arrest, the district court found that the officers had
probable cause to arrest for trespass because, considering his prior litigation history,
Watkins reentered the park “knowingly and at his own peril” immediately after being
trespass-warned by the officers. But that finding effectively served as an
impermissible credibility determination because it contradicted Watkins’s version
of the facts. See Feliciano, 707 F.3d at 1252.
Under Watkins’s version of the facts, his reentry to the park was not
unauthorized. See Daniel v. Morris,
181 So. 3d 1195, 1199 (Fla. Dist. Ct. App.
2015) (“Trespass to real property is the unauthorized entry onto another’s real
property.”); Coddington v. Staab,
716 So. 2d 850, 851 (Fla. Dist. Ct. App. 1998)
(“Trespass to real property has been defined as an unauthorized entry onto another’s
property.”). Rather, according to Watkins, he reentered the park at the direction and
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with the permission of Shields, under whose authority he had just been ordered to
leave.
To the extent Watkins was simply following Shields’s directions and not
violating any other park rule, as Watkins claims he was, no reasonable officer in
these circumstances could have believed that Watkins was trespassing. See
Fla. Stat.
§ 810.09 (stating that a trespasser must have entered or remained “without being
authorized, licensed, or invited”); Pearson v. Ford Motor Co.,
694 So. 2d 61, 69
(Fla. Dist. Ct. App. 1997) (“Consent is an absolute defense to an action for
trespass.”). Under Watkins’s version of events—which we must credit,
notwithstanding his history of bringing “frivolous and vexatious claims,” as the
magistrate judge observed—his reentry to the park was authorized.
Accordingly, we conclude that Shields and Schrider are not entitled to
qualified immunity on this claim.
V.
Finally, Watkins asserts that his § 1983 claim against Carabeo in his official
capacity was, in actuality, a claim against the municipality of Fort Lauderdale. 5
5
We note that Watkins attempted to amend his complaint to add additional defendants,
including the City of Fort Lauderdale and various City officials. But that motion was denied for
reasons of futility and undue delay, and even liberally construing Watkins’s briefing, we cannot
discern any challenge to the reasons for that denial. So we must conclude that he has abandoned
that issue. See Sapuppo, 739 F.3d at 680 (issues not raised on appeal are abandoned).
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“When suing local officials in their official capacities under § 1983, the
plaintiff has the burden to show that a deprivation of constitutional rights occurred
as a result of an official government policy or custom.” Cooper,
403 F.3d at 1221.
However, “[o]nly those officials who have final policymaking authority may render
the municipality liable under § 1983.” Id. (quotation marks omitted).
Here, there is no evidence that Carabeo had any policymaking authority with
respect to the Park Rules or that he had any personal involvement in the events at
Riverland Park. In a declaration, Carabeo provided unrebutted testimony that he
was not at Riverland Park on the day in question, that he has never been a Riverland
Park ranger, and that he did not participate in the creation, drafting, or revision of
the Park Rules. Accordingly, Carabeo is neither personally liable nor an official
with final policymaking authority who “may render the municipality liable under §
1983.” Id. We therefore affirm the district court’s grant of summary judgment
against Watkins on his § 1983 claim against Carabeo.
VI.
In conclusion, we vacate the grant of summary judgment on Watkins’s Fourth
Amendment claim, and we remand for further proceedings consistent with this
opinion. We affirm the district court’s judgment in all other respects.6
6
Watkins contends that the magistrate judge erred in granting the defendants’ motion for
an extension of time to file their motion for summary judgment. But Watkins did not timely
request district-court review of the magistrate judge’s decision, so he has waived appellate review
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AFFIRMED IN PART, VACATED AND REMANDED IN PART.
of that order. See Smith v. Sch. Bd. of Orange Cnty.,
487 F.3d 1361, 1365 (11th Cir. 2007)
(“[W]here a party fails to timely challenge a magistrate’s nondispositive order before the district
court, the party waive[s] his right to appeal those orders in this Court.”); Fed. R. Civ. P. 72(a).
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