Omar Paez v. Claudia Mulvey

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16863
________________________
D.C. Docket No. 1:15-cv-20444-JAL
OMAR PAEZ,
Plaintiff - Appellee,
YOVANY DIAZ,
JON ANTERIO,
LYNDEAN PETERS,
Consolidated Plaintiffs - Appellees,
versus
CLAUDIA MULVEY,
an individual,
JOHN LOYAL,
KELLY SULLIVAN,
an individual,
ROBERT E. BREEDEN,
an individual,
Defendants - Appellants,
FLORIDA DEPARTMENT OF LAW ENFORCEMENT, et al.,
Defendants.
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________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 8, 2019)
Before CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, ∗ District
Judge.
MARCUS, Circuit Judge:
In 2011, Sergeant Omar Paez, Sergeant Lyndean Peters, and Officer Yovany
Diaz (“the Appellees”) of the Golden Beach Police Department were arrested on
various charges of public corruption. The officers were accused of, among other
things, fraudulently failing to report off-duty police work that would have required
them to pay administrative fees to the Department. The officers were never tried
and the criminal charges were dropped more than three years later. They now say
the arresting officers, Detective John Loyal of the Miami-Dade Police
Department’s (“MDPD”) Public Corruption Investigations Bureau, and Special
Agent Claudia Mulvey of the Florida Department of Law Enforcement (“FDLE”),
as well as Loyal and Mulvey’s supervisors, Sergeant Kelly Sullivan (MDPD) and
Supervisory Agent Robert Breeden (FDLE), violated their constitutional rights by
intentionally omitting exonerating information from the probable cause affidavits
∗ The Honorable Eleanor L. Ross, United States District Judge for the Northern District
of Georgia, sitting by designation.
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that secured their arrest warrants. The district court denied Loyal, Mulvey, and
their supervisors (“the Appellants”) the protection of qualified immunity. But even
if the omitted information had been included in the affidavits, there would still
have been probable cause to believe each of the Appellees had engaged in a
scheme to defraud in violation of Florida Statute § 817.034(4). Thus, there was no
constitutional error in the officers’ arrests pursuant to warrants based on those
affidavits, and Loyal and Mulvey, as well as their supervisors, were entitled to
qualified immunity.
I.
A.
Appellees Paez, Peters, and Diaz were police officers in the Golden Beach
Police Department (“GBPD”) in the late 2000s. MDPD Detective John Loyal and
FDLE Special Agent Claudia Mulvey were assigned to investigate alleged
misconduct at the GBPD. Loyal and Mulvey jointly submitted probable cause
affidavits to a judge sitting in Florida’s Eleventh Judicial Circuit Court in Miami-
Dade County that led to the issuance of arrest warrants for Paez, Peters, and Diaz.
All three were arrested in early 2011 and subsequently released on bond. The
criminal charges against them were dropped by the State Attorney’s Office and the
case was dismissed in March 2014. The issue before us now is whether those
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arrests violated the Fourth Amendment because of exculpatory information left out
of the warrant affidavits.
Each probable cause affidavit outlined two types of allegedly criminal
behavior. First, because Golden Beach Police Department official time logs and
outside employer time logs for off-duty work showed work performed during the
same hours, the affiants averred that Paez, Peters, and Diaz were paid for off-duty
work while simultaneously billing hours for work performed at the GBPD. In
addition, time logs taken from some outside employers revealed off-duty work that
was not recorded by the GBPD. The Town of Golden Beach (“the Town”)
collected a five-dollar-per-hour administrative fee for off-duty police work to
cover costs like insurance and the use of police vehicles. Because the invoices
Paez, Peters, and Diaz submitted to the GBPD for off-duty work showed fewer
hours than the time records kept by their off-duty employers, the affiants said that
Paez, Peters, and Diaz had avoided payment of the required administrative costs.
According to the Paez probable cause affidavit, signed by Loyal and
Mulvey, Paez had worked 247.5 hours of unrecorded off-duty work, which would
have required him to pay $1,237.50 in administrative fees to the Town. The
affidavit also identified two occasions on which Paez worked off-duty for private
employers during the same hours he was said to have worked for the GBPD,
resulting in $212.49 of apparent “double compensation” from the Department. The
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affidavit urged that there was probable cause to charge Paez with one count of an
Organized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3)
and one count of Grand Theft in violation of Florida Statute § 812.014(2)(c).
The Peters affidavit, also signed by Loyal and Mulvey, found that Peters
engaged in 199.5 hours of unrecorded off-duty work, which would have required
him to pay $997.50 in administrative fees to the Town. The affidavit also
identified eleven occasions on which Peters worked off-duty for private employers
during hours he was listed as having worked for the GBPD, resulting in $1,380.12
of apparent “double compensation” from the Department. The affidavit said there
was probable cause to charge Peters with one count of an Organized Scheme to
Defraud in violation of Florida Statute § 817.034(4)(a)(3), eleven counts of
Official Misconduct in violation of Florida Statute § 838.022, one count of Grand
Theft in violation of Florida Statute § 812.014, and one count of False and
Fraudulent Insurance Claims in violation of Florida Statute § 817.234. 1
1
This count related only to Peters and was not connected in any way to the other fraud
and official misconduct charges. The affidavit averred that Peters had committed insurance
fraud by submitting a $6,100 insurance claim for replacement of a police canine. Sergeant Peters
had been rear-ended by a drunk driver and submitted claims to the driver’s insurance company
for Peters’ personal injury in the amount of $10,000, and for $10,000 in property damage on
behalf of the Town, which included $3,900 in damages to a police vehicle and $6,100 for the
replacement of the police canine he said had to be retired due to injuries sustained in the
accident. The affidavit claimed that, according to veterinary records, the canine had “exhibited
some soreness” but had not “sustain[ed] any injuries” in the accident that led to the insurance
claim. Instead, the treating veterinarian had previously diagnosed a spinal condition and had
recommended restricted duty or retirement for the canine before the car accident.
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Finally, the Diaz affidavit, also signed by Loyal and Mulvey, identified 344
hours of unrecorded off-duty work, which would have required the payment of
$1,720 in administrative fees to the Town. The affidavit also identified five dates
on which Diaz worked off-duty for private employers during hours he was listed as
having worked for the GBPD, resulting in $312.00 of apparent “double
compensation” from the Department. The affidavit claimed that there was probable
cause to charge Diaz with one count of an Organized Scheme to Defraud in violation
of Florida Statute § 817.034(4)(a)(3), two counts of Official Misconduct in violation
of Florida Statute § 838.022, and one count of Grand Theft in violation of Florida
Statute § 812.014(2)(c).
B.
After the criminal charges against them were dropped by the State Attorney,
Paez, Peters, and Diaz sued Loyal, Mulvey, Breeden, Sullivan, Miami-Dade
County, the FDLE, and the Town of Golden Beach in Florida’s Eleventh Judicial
Circuit.2 The lawsuits were promptly removed to the United States District Court
The civil rights complaint alleged that based on veterinary records and the accident report
available to Mulvey and Loyal during their investigation, it was clear the dog had been injured in
the accident and that Peters had received no personal monetary benefit from the insurance
payout. Because we find there was probable cause to believe Peters engaged in an organized
scheme to defraud, we need not address whether there was probable cause to believe Peters had
engaged in insurance fraud as well. See infra at 13–14.
2
The district court dismissed the claims against FDLE and Miami-Dade County, and
Plaintiffs withdrew their claim against the Town. Those claims are not relevant to this appeal.
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for the Southern District of Florida, where they were consolidated and transferred
to a single district judge. Each of the Appellees brought six claims relevant to this
appeal: four § 1983 claims alleging that each of the four Appellants violated their
Fourth Amendment rights by initiating a malicious prosecution, as well as state
common law malicious prosecution claims against Loyal and Sullivan.
In relevant part, the complaint urged that the affidavits submitted by Mulvey
and Loyal should have included additional -- and importantly, exonerating --
information known to the affiants. This information, the complaint said, would
have revealed that their conduct was not criminal. As for the unpaid administrative
fees, the complaint alleged that the GBPD “had no authority” to charge the fees to
the officers. In addition, the Appellees “had paid, and in fact had actually
overpaid, the claimed administrative fees.” Meanwhile, the claimed incidents of
overlapping on-duty and off-duty work, the complaint further alleged, represented
the practice of using “flex time” to avoid overtime billing, a practice “well known
to, and condoned by” the GBPD. That is, while the records of hours worked at the
GBPD did not reflect the actual hours worked, the Department allowed its law
enforcement officers to engage in this practice.
The complaint also asserted that Mulvey and Loyal knew that the officers’
conduct was not criminal or improper. It referenced five relevant pieces of omitted
evidence:
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[D]uring the investigation, Mulvey and Loyal: (1) were given a copy
of the [Collective Bargaining Agreement for the GBPD], that clearly
and by its express terms, did not authorize Golden Beach to charge its
police officers the administrative fees but only authorized the off-duty
employers to be charged; (2) secured witness statements from Golden
Beach Chief Skinner that part-time police officers such as . . . for part
of the covered period Diaz, were not covered by the CBA and its
administrative fee policy; (3) chose to ignore undisputed evidence that
Plaintiffs Paez, Peters, and Diaz had fully paid -- and had even
overpaid -- the claimed administrative fees; (4) secured a sworn
statement by Golden Beach Town Manager A. Diaz that Golden
Beach officers regularly paid the fees late and Golden Beach would
accept those late payments; [and] (5) were provided with sworn
statements of [Police Chief] Skinner in 2010 and Golden Beach Police
Captain Joseph Barasoain (“Barasoain”) in 2011 that discussed the
“flex time” policy and were thus informed about the “flex time”
practice as justification for the alleged double reporting of off-duty
and on-duty work hours . . . .
The complaint said that since Mulvey and Loyal knew these facts, their affidavits
contained knowingly false and misleading statements and omitted substantial
exculpatory evidence.
The complaint urged that Mulvey’s supervisor (Breeden) and Loyal’s
supervisor (Sullivan) also were liable for the misrepresentations made by officers
Mulvey and Loyal. Breeden and Sullivan allegedly knew about the exculpatory
evidence and also knew there was no probable cause to believe any crimes had
been committed. Yet, they wrongfully approved the arrest warrant affidavits. The
complaint added that Breeden and Sullivan were made aware of the contradictory
facts by Mulvey and Loyal, and from their review of the investigative reports and
all of the evidence and testimony that had been compiled.
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The Appellants jointly moved the district court to dismiss all of the claims,
arguing that there was no wrongful arrest and no malicious prosecution, and thus
that they were entitled to qualified immunity. The district court granted the motion
in part and denied it in part. It rejected the motion to dismiss the § 1983 malicious
prosecution claims and the state common law malicious prosecution claims leveled
against Mulvey and Loyal. The trial court concluded that the complaint plausibly
alleged that Mulvey and Loyal intentionally or recklessly made material omissions
in their probable cause affidavits and that the inclusion of the omitted information
would have negated any finding of probable cause. Thus, Mulvey and Loyal were
not entitled to qualified immunity.
As for the § 1983 supervisory liability claims, the district court dismissed
Paez and Diaz’s § 1983 claims against Breeden because Breeden was no longer
Mulvey’s supervisor at the time the relevant affidavits were submitted. However,
the court denied the motion to dismiss all three § 1983 supervisory liability claims
against Sullivan and Peters’ § 1983 supervisory liability claim against Breeden;
like Mulvey and Loyal, the supervisors were not entitled to qualified immunity.
Mulvey, Breeden, Loyal, and Sullivan timely filed this interlocutory appeal.
II.
“We review de novo a district court’s decision to grant or deny the defense
of qualified immunity on a motion to dismiss, accepting the factual allegations in
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the complaint as true and drawing all reasonable inferences in the [nonmoving
party’s] favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).
A.
Qualified immunity protects public officers “from undue interference with
their duties and from potentially disabling threats of liability.” Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982). It allows government officials to “carry out
their discretionary duties without the fear of personal liability or harassing
litigation.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009). “Because
qualified immunity is a defense not only from liability, but also from suit, it is
important for a court to ascertain the validity of a qualified immunity defense as
early in the lawsuit as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002) (quotation omitted).
In order to establish qualified immunity, a defendant first must show that she
was acting within the scope of her discretionary authority at the time of the alleged
misconduct. See, e.g., Oliver, 586 F.3d at 905; O’Rourke v. Hayes, 378 F.3d 1201,
1205 (11th Cir. 2004). No one disputes that Mulvey and Loyal were acting within
the scope of their discretionary authority in investigating corruption in the Golden
Beach Police Department, and in submitting probable cause affidavits, or that
Breeden and Sullivan were acting within the scope of their discretionary authority
in supervising Mulvey and Loyal.
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Once a defendant has established that she was acting within her
discretionary authority, the burden shifts to the plaintiff to show that qualified
immunity is not appropriate. Lee, 284 F.3d at 1194. The arresting officer would
be entitled to qualified immunity unless the plaintiff establishes that “(1) [she]
violated a federal statutory or constitutional right, and (2) the unlawfulness of [her]
conduct was ‘clearly established at the time.’” Manners v. Cannella, 891 F.3d 959,
968 (11th Cir. 2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018)). These two requirements may be analyzed in any order. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009). The questions, then, boil down to whether
Mulvey and Loyal’s conduct violated the Fourth Amendment, and whether it was
clearly established at the time that their conduct did so. Because we conclude that
Mulvey and Loyal did not violate any constitutional right, we have no reason to
address separately the “clearly established” prong.
B.
A constitutional claim brought pursuant to § 1983 must begin with the
identification of a specific constitutional right that has allegedly been infringed.
Albright v. Oliver, 510 U.S. 266, 270 (1994). Paez, Peters, and Diaz say that each
of the Appellants violated the Fourth Amendment in pursuing malicious
prosecutions against them. In order “[t]o establish a federal malicious prosecution
claim under § 1983, a plaintiff must prove (1) the elements of the common law tort
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of malicious prosecution, and (2) a violation of her Fourth Amendment right to be
free of unreasonable seizures.” See, e.g., Kingsland v. City of Miami, 382 F.3d
1220, 1234 (11th Cir. 2004). “[T]he constituent elements of the common law tort
of malicious prosecution include[]: (1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without probable cause;
(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the
plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).
This appeal turns on the second part of the federal malicious prosecution
claim: whether Paez, Peters, and Diaz were unreasonably seized in violation of the
Fourth Amendment. If the conduct alleged did not violate the Fourth Amendment,
the Appellants would be entitled to qualified immunity and the suit must be
dismissed. A § 1983 malicious prosecution claim includes, though is not limited
to, an unconstitutional arrest. See, e.g., Kingsland, 382 F.3d at 1235; Kjellsen v.
Mills, 517 F.3d 1232, 1238 (11th Cir. 2008); Whiting v. Traylor, 85 F.3d 581, 584
(11th Cir. 1996); see also Heck v. Humphrey, 512 U.S. 477, 484 (1994). An arrest
made without probable cause is an unreasonable seizure. See, e.g., Grider v. City
of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). The Fourth Amendment
provides, in pertinent part, that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation,” U.S. Const. amend. IV, and the law requires
that a warrant for an arrest be supported by “sufficient information to establish
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probable cause,” Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (citing
Franks v. Delaware, 438 U.S. 154, 164 (1978)); see also Illinois v. Gates, 462 U.S.
213, 238–39 (1983). Probable cause, in turn, is established “when 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 is about to
commit an offense.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)
(emphasis omitted) (quoting McCormick v. City of Fort Lauderdale, 333 F.3d
1234, 1243 (11th Cir. 2003)).
The affidavits alleged that there was probable cause to believe each Appellee
had committed multiple crimes. At oral argument, all of the parties conceded that
the existence of probable cause (or even arguable probable cause) as to any one
offense would defeat a § 1983 malicious prosecution claim. Though this issue is
unresolved in our case law pertaining to § 1983 malicious prosecution claims, we
have said that arguable probable cause as to any one offense is sufficient to defeat
§ 1983 claims for other Fourth Amendment violations, including false arrest and
unlawful searches. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.
1997) (finding officer entitled to qualified immunity when a misstatement in a
search warrant vitiated arguable probable cause as to one offense, but the
misstatement was “not relevant to the existence of probable cause to believe that . .
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. other . . . crimes had been committed”); Bailey v. Bd. of Cty. Comm’rs of
Alachua Cty., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992) (“The validity of an arrest
does not turn on the offense announced by the officer at the time of the arrest.”).
Based on the parties’ concessions, we need not resolve the question as it relates to
malicious prosecution. Rather, we assume arguendo that a finding of probable
cause (or arguable probable cause) as to one offense announced in the affidavit
would defeat the Appellees’ § 1983 malicious prosecution claims.
Probable cause “‘requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.’ Probable cause ‘is not a
high bar.’” Wesby, 138 S. Ct. at 586 (first quoting Gates, 462 U.S. at 243–44 n.13;
then quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). Far from
“‘requir[ing] convincing proof’ that [an] offense was committed,” probable cause
is a flexible and fluid concept, that looks instead to the totality of the circumstances
to determine the reasonableness of the officer’s belief that a crime has been
committed. Manners, 891 F.3d at 968 (quoting Bailey, 956 F.2d at 1120).
Accordingly, “[t]he test for probable cause is not reducible to ‘precise definition or
quantification,’” and “[f]inely tuned standards such as proof beyond a reasonable
doubt or by a preponderance of the evidence . . . have no place in the [probable-
cause] decision.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (first quoting
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Maryland v. Pringle, 540 U.S. 366, 371 (2003); then quoting Gates, 462 U.S. at
235).
Importantly, as we noted in Manners, an affirmative defense to an alleged
crime does not necessarily vitiate probable cause. Manners, 891 F.3d at 971–72.
Indeed, “arresting officers, in deciding whether probable cause exists, are not
required to sift through conflicting evidence or resolve issues of credibility, so long
as the totality of the circumstances present a sufficient basis for believing that an
offense has been committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.
2002), abrogated on other grounds by Lozman v. City of Riviera Beach, 138 S. Ct.
1945 (2018). This is so, in part, because probable cause is a preliminary
determination made initially in an ex parte proceeding. Again, it does not require
anything close to conclusive proof or proof beyond a reasonable doubt that a crime
was in fact committed, or even a finding made by a preponderance of the evidence.
See Manners, 891 F.3d at 968. A law enforcement officer is not required to
resolve every inconsistency found in the evidence. Moreover, police officers
aren’t lawyers; we do not expect them to resolve legal questions or to weigh the
viability of most affirmative defenses. See Williams v. City of Albany, 936 F.2d
1256, 1260 (11th Cir. 1991) (“Whether the statute of limitations bars a prosecution
is a question of law. The officers properly deferred legal decisions to the district
attorney.”). So long as it is reasonable to conclude from the body of evidence as a
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whole that a crime was committed, the presence of some conflicting evidence or a
possible defense will not vitiate a finding of probable cause. The touchstone
remains the reasonableness of the officer’s conduct.
It is also true that officers may not lie about or conceal critical information.
The Supreme Court has held that the Fourth Amendment demands a warrant
affiant provide information with a reasonable belief in its veracity:
[W]hen the Fourth Amendment demands a factual showing sufficient
to comprise ‘probable cause,’ the obvious assumption is that there will
be a truthful showing. . . . This does not mean “truthful” in the sense
that every fact recited in the warrant affidavit is necessarily correct . . .
[but] surely it is to be “truthful” in the sense that the information put
forth is believed or appropriately accepted by the affiant as true.
Franks, 438 U.S. at 165–66. Intentional or reckless material misstatements or
omissions in a warrant affidavit thus could violate the Fourth Amendment. Kelly
v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). Negligent misstatements or
omissions, on the other hand, do not. Id.We have employed a two-part test to determine whether a misstatement in
an officer’s warrant affidavit amounts to a violation of the Fourth Amendment.
First, we ask whether there was an intentional or reckless misstatement or
omission. Then, we examine the materiality of the information by inquiring
whether probable cause would be negated if the offending statement was removed
or the omitted information included. See United States v. Kirk, 781 F.2d 1498,
1502 (11th Cir. 1986) (“[W]e must consider: (1) whether the alleged misstatements
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in the affidavit were made either intentionally or in reckless disregard for the truth,
and, if so, (2) whether, after deleting the misstatements, the affidavit is insufficient
to establish probable cause.” (citing Franks, 438 U.S. 154)); see also Madiwale,
117 F.3d at 1326–27 (“[A] warrant affidavit violates the Fourth Amendment when
it contains omissions made intentionally or with a reckless disregard for the
accuracy of the affidavit . . . if inclusion of the omitted facts would have prevented
a finding of probable cause.” (internal citation and quotation omitted)); Stewart v.
Donges, 915 F.2d 572, 582 n.13 (10th Cir. 1990) (“Whether the omitted statement
was material is determined by examining the affidavit as if the omitted information
had been included and inquiring if the affidavit would still have given rise to
probable cause for the warrant.”).
Three basic rules, then, guide our consideration today: (1) a warrant for
arrest must establish probable cause for an offense; (2) a warrant affidavit must
contain truthful statements that do support probable cause; and (3) an affidavit’s
omissions may lead to an unreasonable and unconstitutional warrant-based arrest if
information that the affiant knew about but intentionally or recklessly disregarded
negates a finding of probable cause. Because at this stage in the proceedings we
must accept the facts as alleged in the complaint as true, we take as true that the
exculpatory information was known to Loyal and Mulvey and their omission was
made either intentionally or in reckless disregard of the truth. Our only question,
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then, is whether the affidavits still would have established probable cause to
believe the officers had violated Florida Statute § 817.034(4), if they had included
the omitted information that they knew about. If so, Mulvey and Loyal did not
violate the Fourth Amendment, nor did their supervisors, and each of them would
be entitled to qualified immunity.
Paez, Peters, and Diaz face a difficult road in perfecting their § 1983 claims.
As the Supreme Court has explained in a similar context, “the . . . standard of
objective reasonableness . . . defines the qualified immunity accorded an officer
whose request for a warrant allegedly caused an unconstitutional arrest. Only
where the warrant application is so lacking in indicia of probable cause as to render
official belief in its existence unreasonable will the shield of immunity be lost.”
Malley v. Briggs, 475 U.S. 335, 344–45 (1986) (citation omitted); see also id. at
341 (“Defendants will not be immune if, on an objective basis, it is obvious that no
reasonably competent officer would have concluded that a warrant should issue;
but if officers of reasonable competence could disagree on this issue, immunity
should be recognized.”). Put another way, if the affidavits (including the omitted
information) would have demonstrated even arguable probable cause -- that a
reasonable officer could have believed an offense was committed -- then the
officers are entitled to qualified immunity. See, e.g., Grider, 618 F.3d at 1257.
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Here, we find that the affidavits would have established not just arguable probable
cause, but probable cause itself.
III.
A.
We consider the § 1983 malicious prosecution claims against Mulvey and
Loyal together because the § 1983 claims levelled against Mulvey and Loyal are
essentially the same. Both Mulvey and Loyal swore and signed each of the
affidavits. Loyal was referred to as the “Affiant” and Mulvey as the “Co-Affiant.”
The complaint alleges that Mulvey and Loyal conducted the investigation together
and that each knew about the relevant information that the Appellees claim was
omitted. In addition, although Mulvey and Loyal are represented by different
counsel on appeal, each has adopted the arguments of the other.
After reviewing all of the relevant information -- what was included and
what was omitted -- there still was probable cause to believe Paez, Peters, and Diaz
had engaged in an organized scheme to defraud in violation of Florida’s criminal
law, and that, therefore, there was no violation of the Fourth Amendment. Reliable
information described in the affidavits still would have led a reasonable officer to
believe that Paez, Peters, and Diaz intentionally failed to report off-duty work
hours that would have required them to pay administrative fees. The omissions do
not undercut the reasonableness of the belief. Among other things, the affidavits
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asserted probable cause to charge each of the three law enforcement officers with
engaging in an organized scheme to defraud in violation of the Florida
Communications Fraud Act, Florida Statute § 817.034. The relevant provision of
Florida’s penal code makes it a crime to “engage[] in a scheme to defraud and
obtain[] property thereby.” Fla. Stat. § 817.034(4)(a). “Property” is defined as
“anything of value.” Fla. Stat. § 817.034(3)(c). A “scheme to defraud” is “a
systematic, ongoing course of conduct with intent to defraud one or more persons,
or with intent to obtain property from one or more persons by false or fraudulent
pretenses, representations, or promises or willful misrepresentations of a future
act.” Fla. Stat. § 817.034(3)(d). To “defraud” means to “cause injury or loss to (a
person or organization) by deceit; to trick (a person or organization) in order to get
money.” Defraud, Black’s Law Dictionary 516 (10th ed. 2014) (internal
punctuation omitted).
Although there are countless ways to engage in a scheme to defraud --
indeed the concept is as wide as the imagination of man -- the conduct here would
fit the basic statutory definitions. Having repeatedly and deceptively failed to
report off-duty work hours and having thereby deprived the Town of fees to which
it was rightfully entitled, the Appellees appeared to have engaged in a “systematic,
ongoing course of conduct with intent to defraud.” Fla. Stat. § 817.034(3).
Probable cause, then, comes down to this: since Paez, Peters, and Diaz repeatedly
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withheld relevant information about off-duty work in order to avoid payment of
fees, there was sound reason to believe each had engaged in an organized scheme
to defraud. The affidavits themselves set out sufficient facts drawn from more than
one reliable source that would lead a reasonable officer to believe the Appellees
repeatedly withheld information in order to avoid paying fees. The claimed
omissions do not undermine the reasonableness of the affidavits.
The civil rights complaint references three pieces of omitted information:
that the administrative fees were not legally owed by the officers; that, in any
event, the officers were allowed to pay the fees late; and that the officers had, in
fact, paid the fees. We examine each in turn. Since the omitted facts only relate to
whether Paez, Peters, and Diaz had the “intent to defraud” or the “intent to obtain
property . . . by false or fraudulent . . . representations,” our analysis focuses on
intent.
First, the Appellees say that, pursuant to Article 29 of the Collective
Bargaining Agreement (“CBA”) between the Town and the police officer’s union,
the GBPD expressly agreed to charge administrative fees only to off-duty
employers, not to the officers themselves. Thus, they say, because Mulvey and
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Loyal had a copy of the CBA, 3 they knew or should have known that the officers
were not contractually responsible for paying the administrative fees.
We remain unpersuaded. Even with conflicting information about whether
the officers were responsible for paying the administrative fees, the affiants still
could reasonably believe that Paez, Peters, and Diaz were required to report their
off-duty work hours and pay the administrative fees. This is so because reliable
sources told them as much. Mulvey and Loyal were informed by the Golden
Beach Finance Director, Maria Camacho, that “GBPD officers who work off-duty
details are required to pay an administrative fee.” The Appellees do not dispute
that Mulvey and Loyal were told this. And the Finance Director’s responsibilities
included collecting the fees, so it was perfectly reasonable for the investigating
officers to credit her account.
The investigating officers did not rely just on this statement, however.
According to their affidavits, Mulvey and Loyal also reviewed GBPD spreadsheet
records, which catalogued GBPD officers’ off-duty work and the payment of
administrative fees. Indeed, those spreadsheets contained highly detailed
information about the payment of administrative fees, including the amount of fees
3
Mulvey and Loyal apparently did have the CBA and did recognize its significance to the
administrative fees. At least one of the affidavits recognized that the CBA covered the
administrative fees, saying the fees “are required to be paid by all GBPD officers covered by the
Collective Bargaining Agreement working off-duty details.”
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owed and paid, the date of payment, and even the form of payment. These
spreadsheets came from reliable sources. The Golden Beach Finance Director
explained that the officers themselves were responsible for any missing details in
the spreadsheets -- “the accuracy of the spreadsheet relies upon the accuracy of the
documentation submitted by the off-duty officer and [the Operations Captain].” In
fact, even the Appellees say, in a charge they leveled against the Town of Golden
Beach, that there was an “unwritten policy and practice[] to charge the Golden
Beach police officers . . . [the] administrative fee.” A reasonable investigating
officer could accept that the CBA said one thing but that the policy and practice
was quite another.
As we’ve noted, probable cause is a preliminary determination. The
investigating officers were not required to resolve legal matters in dispute,
understand the nuances of any possible defense, or answer them in order to decide
whether there was probable cause. Jordan, 487 F.3d at 1356–57. Even if there was
an affirmative defense that the fees were not contractually owed by the officers
themselves and they therefore received no legal benefit from their conduct, that
defense does not negate the preliminary determination of probable cause.
In the second place, the Appellees say that -- even if the officers themselves
were required to pay the administrative fees -- Golden Beach allowed its officers to
pay the fees late. As we see it, this fact is irrelevant. The affidavits didn’t claim
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that Paez, Peters, and Diaz had failed to timely remit payments due. Rather, the
affidavits charged the three officers with having taken affirmative steps to conceal
essential facts from their employer (the GBPD) that would have evidenced that
administrative fees were owed. Paez, Peters, and Diaz offer no explanation for the
discrepancies found in the spreadsheets apparently based on their failure to report
essential facts. The spreadsheets were compared with off-duty employer records,
and the comparison revealed repeated instances of unreported or under-reported
off-duty work.
Finally, the Appellees claim that the affidavits omitted any reference to a
2010 sworn statement by the Golden Beach Finance Director indicating that they
had fully paid -- indeed, had overpaid -- the claimed administrative fees for the off-
duty work that they had reported. The problem again, however, is that the failure
to pay is not the central element of the charged fraud; rather, the failure to report
the off-duty hours is the critical component. The affidavits asserted that the
spreadsheets maintained by the GBPD and the Town of Golden Beach, at the time
that they reviewed it, had been “recently updated.” Yet the spreadsheets, when
compared to records drawn from off-duty employers, revealed numerous instances
of off-duty work being omitted. Thus, for example, the affidavit supporting the
arrest warrant for Paez identified some 37 separate dates of off-duty work between
December 2008 and September 2009 that were missing from the spreadsheets. The
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affidavit supporting the Peters arrest identified 21 such dates between December
2008 and September 2009. And the affidavit providing the basis for the warrant to
arrest Diaz, in turn, identified 46 such dates between March 2009 and December
2009. The affidavits also said that Mulvey and Loyal reviewed subpoenaed
“payroll records, off-duty, and on-duty logs” from the GBPD and the Town of
Golden Beach in April 2010. None of the omitted information suggests that the
investigating officers’ sources were unreliable or that there weren’t significant
discrepancies between the GBPD spreadsheets and off-duty employer records.
Mulvey and Loyal reasonably believed that Paez, Peters, and Diaz
committed fraud by their repeated failure to report regardless of the fee-payment
status. And even if the affidavits had included a statement saying that in 2010 the
Appellees had paid the “claimed administrative fees” -- the fees for the work they
had reported -- nothing about the payment status would negate a finding that they
intentionally concealed material information from the Department. The unreported
information was relevant, material to any examining official, and it should have
been reported. The investigating officers had reason to believe that Paez, Diaz,
and Peters were required to pay administrative fees, and that they were also
required to report their off-duty hours to the Golden Beach Police Department. A
prudent person would have believed based on an examination of all the operative
facts -- what was included and what was omitted -- that the officers had engaged in
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a scheme to defraud in violation of Florida law. Their arrests were not
unreasonable and did not violate the Fourth Amendment. Since the allegations,
taken as true, do not establish a violation of the Constitution, Mulvey and Loyal
were entitled to qualified immunity on each of the § 1983 malicious prosecution
claims.
Finally, because Mulvey and Loyal committed no constitutional violations,
their supervisors, Breeden and Sullivan, cannot be found liable either for violating
§ 1983. The claims against Sergeant Sullivan and Supervisory Agent Breeden are
premised entirely on their supervision of Loyal and Mulvey. But “there can be no
supervisory liability . . . if there was no underlying constitutional violation.” Gish
v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008); see also Myers v. Bowman, 713
F.3d 1319, 1328 (11th Cir. 2013) (“[A] supervisor may not be held liable under
section 1983 unless the supervised official committed an underlying violation of a
constitutional right.”). Since there was no Fourth Amendment violation, much less
a clearly established Fourth Amendment violation, Breeden and Sullivan are
entitled to qualified immunity as well.
B.
The Appellees also brought common law malicious prosecution claims
under Florida law against Mulvey and Loyal, though not against their supervisors.
The district court again refused to dismiss the claims on the grounds that they are
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barred under Florida law by official immunity, a species of sovereign immunity
that shields officers from tort liability unless the officer “acted in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.” Fla. Stat. § 768.28(9)(a).
In Florida, the elements of the common law tort of malicious prosecution are
these:
(1) an original judicial proceeding against the present plaintiff was
commenced or continued; (2) the present defendant was the legal
cause of the original proceeding; (3) the termination of the original
proceeding constituted a bona fide termination of that proceeding in
favor of the present plaintiff; (4) there was an absence of probable
cause for the original proceeding; (5) there was malice on the part of
the present defendant; and (6) the plaintiff suffered damages as a
result of the original proceeding.
Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002).
We have pendent appellate jurisdiction over the district court’s denial of the
motion to dismiss these state law claims. The denial of qualified immunity as to
the § 1983 claims falls squarely within our appellate jurisdiction. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985); see also Howe v. City of Enterprise, 861 F.3d
1300, 1302 (11th Cir. 2017); Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.
2003). We also have pendent appellate jurisdiction over issues that are
“inextricably intertwined” or “inextricably interwoven” with the issue on appeal.
See United States v. Masino, 869 F.3d 1301, 1305 (11th Cir. 2017); Harris v. Bd.
of Educ. Of Atlanta, 105 F.3d 591, 594 (11th Cir. 1997). Pendent appellate
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jurisdiction is limited and rarely used. See King v. Cessna Aircraft Co., 562 F.3d
1374, 1379–80 (11th Cir. 2009). Issues are not “inextricably intertwined” with the
question on appeal when “the appealable issue can be resolved without reaching
the merits of the nonappealable issues.” In re MDL-1824 Tri-State Water Rights
Litig., 644 F.3d 1160, 1179 (11th Cir. 2011). Here, however, we cannot evaluate
the denial of qualified immunity on the § 1983 malicious prosecution claims
without necessarily evaluating the merits underlying the state law malicious
prosecution claims. Both analyses require us to consider whether the affidavits
sufficiently establish probable cause. Where a finding of probable cause (or
arguable probable cause) is a component of a qualified-immunity claim on appeal,
a state law claim that also depends on the existence of probable cause is
“inextricably intertwined” for purposes of pendent appellate jurisdiction. See
Valderrama v. Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015).
We review the district court’s ruling on a motion to dismiss de novo. See
Fortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir. 1993). The denial of a motion
to dismiss is proper if the plaintiff’s complaint, taking the facts alleged therein as
true, makes out a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
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Our Fourth Amendment § 1983 probable cause analysis applies with equal
force to state common law malicious prosecution claims. The absence of probable
cause is a necessary element of common law malicious prosecution. See Miami-
Dade County v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA 2012). For the same
reasons the complaint has failed to make out a § 1983 malicious prosecution claim,
it also fails to plausibly allege a state common law malicious prosecution claim.
These claims, too, should have been dismissed.
The long and short of it is that officers Mulvey and Loyal submitted warrant
affidavits supporting a finding of probable cause. Nothing alleged in the
Appellees’ civil rights complaint undermines probable cause and thus, Mulvey and
Loyal, as well as their supervisors Breeden and Sullivan, were entitled to qualified
immunity on the § 1983 claims. And because there was probable cause to arrest,
the state law malicious prosecution claims fail as well. The judgment of the
district court is reversed and the cause remanded for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
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