Robert Dale Harris v. Kasey P. Wingo

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 19-14447 & 19-14452
Non-Argument Calendar
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D.C. Docket No. 2:18-cv-00017-JES-MRM
ROBERT DALE HARRIS,
Plaintiff - Appellee,
versus
KASEY P. WINGO, individually,
MICHAEL D. CHAPMAN, individually,
Defendants - Appellants.
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Appeals from the United States District
Court for the Middle District of Florida
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(April 19, 2021)
Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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This case arises out of the arrest of plaintiff Robert Harris by Deputies
Michael Chapman and Kasey Wingo of the Collier County Sheriff’s Office.1
Chapman and Wingo stopped Harris as he was leaving a storage facility one
evening. After a brief conversation, during which Harris provided his name and
explained that he was working at the facility, the deputies arrested him for loitering
and prowling in violation of Fla. Stat. § 856.021 and resisting an officer without
violence in violation of Fla. Stat. § 843.02. Harris brought claims under 42 U.S.C
§ 1983 against Chapman and Wingo for constitutional violations including false
arrest, malicious prosecution, and First Amendment retaliation. Both deputies
moved for summary judgment, and the district court denied their motions as to
these three claims. The deputies now appeal the denial of summary judgment.2
Viewing the facts in the light most favorable to Harris, we hold that his arrest
violated his clearly established constitutional rights; thus, we affirm.
I. BACKGROUND
Harris’s lawsuit stems from several interactions with deputies of the Collier
County Sheriff’s Office. Only one is relevant to this appeal: Harris’s stop and
subsequent arrest by Wingo and Chapman on the night of April 4, 2014.
1
Chapman’s and Wingo’s appeals were briefed separately but are consolidated for the
purposes of this opinion.
2
The district court also denied summary judgment on an assault and battery claim, but
the deputies have not appealed that denial.
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The undisputed facts of the interaction are as follows.3 At approximately
9:30 p.m., Chapman spotted Harris, who was riding a bicycle and wearing a
backpack, exiting a storage facility. The facility had closed at 9:00 p.m. Chapman
maintains that there had been several storage unit burglaries in the area, so he
stopped Harris to investigate. During their entire conversation, Harris stood
straddling his bicycle with his feet on the ground.
Except for the very beginning of their interaction, the audio of Harris and
Chapman’s conversation was recorded on Chapman’s dash cam, although none of
it occurred within the video frame. When the audio recording begins, we hear
Chapman ask Harris, “Robert, here’s the thing, do you work in here?” Doc. 101-
2. 4 Harris then explains that he is working for someone named Randy, who is still
in the storage facility. Chapman tells Harris that he is being abrasive, and Harris
asks to speak to Chapman’s supervisor. Chapman responds that Harris “do[es]
[not] have a right” to do so. Id.
3
On review of a motion for summary judgment, we view the facts in the light most
favorable to the plaintiff. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). In recounting
the facts, we note where facts are disputed and at this stage resolve the disputes in Harris’s favor.
We emphasize, however, “that the facts, as accepted at the summary judgment stage of the
proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208 F.3d
919, 925 n.3 (11th Cir. 2000) (internal quotation marks omitted). Because we write for the
parties, who are familiar with the facts, we include only what is necessary to explain our
decision.
4
“Doc.” numbers refer to the district court’s docket entries.
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At this point we hear Deputy Wingo on the recording for the first time. He
asks if Chapman has gotten Harris’s identification. Chapman responds that he
thinks Harris’s name is “Robert . . . Price, I think is his last name . . . Robert
something.” Id. Harris immediately interjects, “No it’s not.” Id. Wingo asks for
Harris’s ID, and Harris responds that he does not have one. Chapman then asks
Harris who he is working with, and Harris uses his cell phone on speakerphone to
call Randy to ask that he “come out to the gate and talk to these officers.” Id.Randy responds that he is “on [his] way.” Id.When Harris hangs up the phone, Wingo asks, “What’s your last name,
Robert?” Id. Harris responds, “of the family Harris, and I do not consent . . .” Id.Wingo interrupts Harris and asks, “Harris? H-A-R-R-I-S?” Id. Harris begins to
respond, but Chapman interrupts and cuts him off mid-sentence. The conversation
continues for another 41 seconds, during which Wingo asks again for Harris’s
name. Throughout, both deputies cut Harris off as he speaks to them. During the
41 seconds, Wingo declares that he is “trying to get [Harris’s] name and date of
birth,” but neither officer ever asks Harris for his birth date. Id. After additional
back and forth, Chapman tells Harris to step off his bike. We hear scuffling and
Harris screaming in pain.
Harris was arrested and charged with three counts of battery on a police
officer, one count of assault on a police officer, one count of resisting an officer
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without violence, and one count of loitering and prowling. The state’s attorney
later dropped all charges.
Harris filed a § 1983 action against Wingo and Chapman, among other
defendants. In this appeal, we are concerned with three of Harris’s claims: false
arrest, malicious prosecution, and First Amendment retaliation based on the April
4, 2014 incident. In the district court, Wingo and Chapman moved for summary
judgment on these claims, arguing that they had probable cause to arrest Harris.
Chapman argued that he had probable cause to arrest Harris for loitering and
prowling and resisting arrest without violence. Wingo maintained that he had
probable cause to arrest Harris for resisting an officer without violence. Both
deputies argued in the alternative that, even if they lacked probable cause, they had
arguable probable cause to arrest Harris and therefore were entitled to qualified
immunity for the three claims. The district court determined that neither deputy
had probable cause or arguable probable cause to arrest Harris and denied
summary judgment on all three claims.
This appeal followed.
II. STANDARD OF REVIEW
We review the district court’s denial of summary judgment de novo, viewing
the facts in the light most favorable to the nonmovant, here, Harris. Hadley v.
Gutierrez, 526 F.3d 1324, 1328 (11th Cir. 2008). A government official asserting
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a qualified immunity defense bears the initial burden of showing “he was acting
within his discretionary authority.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002). It is undisputed that Wingo and Chapman were acting within their
discretionary authority when they arrested Harris. Thus, the burden shifts to Harris
to show that, taking the facts in the light most favorable to him, (1) Wingo and
Chapman violated his constitutional right, and (2) this right was clearly established
at the time of the alleged violations. Hadley, 526 F.3d at 1329.
III. DISCUSSION
On appeal, Chapman and Wingo argue that they are entitled to qualified
immunity on the false arrest, malicious prosecution, and First Amendment
retaliation claims because they had arguable probable cause to arrest Harris, 5 so
there was no Fourth Amendment violation, and the district court erred in denying
them summary judgment. We disagree.
An officer who “make[s] an arrest without probable cause [is] entitled to
qualified immunity if there was arguable probable cause for the arrest.” Kingsland
v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). Arguable probable cause
exists “where reasonable officers in the same circumstances and possessing the
5
Chapman also argues on appeal that the undisputed facts demonstrate he had probable
cause to arrest Harris. Because we conclude that neither deputy had arguable probable cause,
Chapman’s argument that he had actual probable cause necessarily fails. See Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1258 (11th Cir. 2010).
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same knowledge as the Defendant[] could have believed that probable cause
existed to arrest.” Lee, 284 F.3d at 1195 (internal quotation marks omitted). The
arguable probable cause standard “is an objective one and does not include an
inquiry [into] the officer’s subjective intent or beliefs.” Brown v. City of
Huntsville, Ala., 608 F.3d 724, 735 (11th Cir. 2010). Whether an officer possessed
arguable probable cause “depends on the elements of the alleged crime and the
operative fact pattern.” Id. We begin by examining whether the deputies had
arguable probable cause to arrest Harris for loitering and then proceed to resisting
an officer without violence.
A. Loitering and Prowling
The offense of loitering and prowling under Florida law “has two elements:
(1) the accused must be loitering or prowling at a place, at a time, or in a manner
not usual for law-abiding citizens; and (2) the loitering or prowling must be under
circumstances that warrant a reasonable fear for the safety of persons or property in
the vicinity.” United States v. Gordon, 231 F.3d 750, 758 (11th Cir. 2000). “Even
when an individual’s conduct justifies an officer’s alarm, the concern for an
imminent breach of the peace may diminish because the loitering and prowling
statute requires the officer to provide the person with the opportunity to dispel any
alarm created by those circumstances.” D.S.D. v. State, 997 So. 2d 1191, 1193
(Fla. Dist. Ct. App. 2008).
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Chapman maintains that Harris’s presence at the facility after closing time,
especially while riding a bicycle and wearing a backpack, was sufficient to justify
concern for the safety of persons or property in the area. Chapman also argues that
Harris was given the opportunity to dispel alarm about his presence at the storage
facility but did not do so and refused to give the deputies his first and last name
when asked. According to Chapman, a reasonable officer possessing this
knowledge would have believed he had probable cause to arrest Harris.
Although we question whether Harris’s presence at the facility was
sufficient to warrant a reasonable fear for persons or property, we need not reach
that issue to determine that Chapman and Wingo lacked arguable probable cause to
arrest Harris for loitering and prowling. Regardless of whether Harris’s actions
were suspicious, he was denied the opportunity to dispel alarm, as required by
Florida law. D.S.D., 997 So. 2d at 1193. Before his arrest, Harris explained why
he was at the facility and called the man with whom he was working, Randy, on
speakerphone so that the deputies could hear. He asked Randy to come speak with
the deputies, and Randy said he was “on his way.” Yet, Chapman and Wingo did
not wait to verify Harris’s explanation. Instead, before Randy arrived—less than a
minute after the phone call—they arrested Harris. By refusing to wait and see
whether Randy came out of the facility and could verify Harris’s explanation for
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why he was at the facility after closing time, Chapman and Wingo denied Harris
the opportunity to dispel alarm.
The argument that Harris refused to identify himself is equally unavailing.
During the interaction, Harris confirmed that his first name was Robert, corrected
Chapman when he said Harris’s last name was Price, and told the deputies that his
last name was Harris. Chapman argues that Harris’s phrasing of his answer, “of
the family Harris,” to supply his last name amounted to insufficient identification,
but we disagree. A reasonable officer under the circumstances would not have
assumed Harris was refusing to provide his name. And if confused by the answer,
the officer could simply have asked Harris to clarify. Indeed, Wingo had no
trouble understanding Harris’s response, “of the family Harris,” as supplying his
last name because Wingo immediately asked Harris to confirm the spelling.6
A reasonable officer in the same position as Chapman and Wingo would not
have believed that probable cause existed to arrest Harris for loitering and
prowling. Harris gave his name when asked. He explained his presence at the
storage facility by saying he was working there and on his own initiative sought to
prove it, but the deputies arrested him before he could provide proof, even though
6
On appeal, Chapman argues that the district court erred in assuming Harris had given
his name before the dash cam audio began recording because Chapman testified in his deposition
that he knew Harris’s name from a previous encounter. The district court relied on the dash cam
recording, in which Chapman states he did not know Harris before he pulled him over. This
dispute is of no moment for our purposes because Harris provided his name to the deputies
during the recorded part of their conversation.
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they knew that proof was on its way in a matter of minutes. Florida law was clear
on April 4, 2014 that an officer must give a suspect the opportunity to “dispel any
alarm created by th[e] circumstances” before arresting him for loitering and
prowling. D.S.D., 997 So. 2d at 1193; see also Kingsland, 382 F.3d at 1229
(concluding that police cannot ignore readily available information that would
exonerate an arrestee). The deputies thus lacked arguable probable cause to arrest
Harris for loitering and prowling.
B. Resisting an Officer Without Violence
Chapman and Harris also maintain they had arguable probable cause to
arrest Harris for resisting an officer without violence. In Florida, an individual
commits the offense of resisting an officer without violence when they “resist,
obstruct, or oppose any [law enforcement] officer . . . in the lawful execution of
any legal duty, without offering or doing violence to the person of the officer.”
Fla. Stat. § 843.02. “[T]o support a conviction for obstruction without violence,
the State must prove: (1) the officer was engaged in the lawful execution of a legal
duty; and (2) the defendant’s action, by his words, conduct, or a combination
thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State,
24 So. 3d 1181, 1185–86 (Fla. 2009). Probable cause exists to arrest an individual
for resisting an officer without violence when that individual disobeys a command
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by a law enforcement officer. Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th
Cir. 2008).
The deputies maintain they had arguable probable cause to arrest Harris for
resisting an officer without violence because he refused to identify himself. As
explained above, the record does not support this assertion. The audio evidence
indicates that Harris gave Wingo and Chapman his name when asked. When asked
for his ID, Harris responded he did not have one. Chapman argues that Wingo
asked Harris for his birth date and Harris refused to provide it. But, again, the
audio proves otherwise. On the audio recording, Wingo says that he is “trying to
get [Harris’s] name and date of birth,” but Wingo never asked for Harris’s birth
date. Doc. 101-2. Harris did not disobey any of the deputies’ commands. An
objectively reasonable officer therefore could not have believed he had probable
cause to arrest Harris for resisting an officer.
Because the deputies lacked arguable probable cause to arrest Harris on
either count, we easily determine that the arrest violated Harris’s clearly
established Fourth Amendment rights. See Skop v. City of Atlanta, 485 F.3d 1130,
1143 (11th Cir. 2007) (“[A]n arrest made without arguable probable cause violates
the Fourth Amendment’s prohibition on unreasonable searches and seizures.”).
The deputies are not entitled to qualified immunity for the arrests, nor are they
entitled to summary judgment on these claims.
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IV. CONCLUSION
For the foregoing reasons, we affirm the denial of summary judgment as to
Harris’s claims of false arrest, malicious prosecution, and First Amendment
retaliation.
AFFIRMED.
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