Robert German v. Steven Sosa

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 12, 2010
No. 10-10443
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 6:08-cv-00845-ACC-GJK
ROBERT GERMAN,
Plaintiff-Appellant,
versus
STEVEN SOSA,
individually
BRIAN PAPARO,
individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 12, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff Robert German appeals the district court’s grant of summary
judgment in favor of Defendants Steven Sosa and Brian Paparo. German alleges
that the Defendants violated several of his clearly established rights when they
arrested him on July 18, 2006. The district court determined that the Defendants
were entitled to qualified immunity with respect to German’s claims for false
arrest/imprisonment (counts 1 and 4), unnecessary/excessive use of force (counts 2
and 5), and malicious prosecution (counts 3 and 6). After reviewing the record
and the parties’ briefs, we agree and affirm the district court’s decision.
We review the district court’s grant of summary judgment de novo, drawing
all facts and inferences in the light most favorable to the non-moving party. Dryer
v. Lee, 488 F.3d 876, 879 (11th Cir. 2007). “Summary judgment is appropriate
when ‘there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.’” Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1085 (11th Cir. 2004) (quoting Fed. R. Civ. P. 56(c)).
“Qualified immunity protects municipal officers from liability in § 1983
actions as long ‘as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Lewis v.
City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting
2
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982)). “To receive
qualified immunity, the officer must first show that he acted within his
discretionary authority.” Id. Here, the officers were on-duty and were clearly
acting within their discretionary authority; therefore, the burden shifts to German
to show that qualified immunity should not apply. See id.We use a two-step process to determine whether qualified immunity applies
to the Defendants’ actions. Id. (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.
Ct. 2151 (2001)). One step involves determining whether the officer’s conduct
amounted to a constitutional violation; the other involves determining whether the
right violated was “clearly established” at the time of the violation. Id. The order
of the inquiry is fluid, giving us the flexibility to determine that the right violated
was not clearly established without discussing whether a constitutional violation
occurred at all. Id. (citing Pearson v. Callahan, 555 U.S.___, 129 S. Ct. 808(2009).
“A right may be clearly established for qualified immunity purposes in one
of three ways: (1) case law with indistinguishable facts clearly establishing the
constitutional right; (2) a broad statement of principle within the Constitution,
statute, or case law that clearly establishes a constitutional right; or (3) conduct so
egregious that a constitutional right was clearly violated, even in the total absence
3
of case law.” Id. at 1291-92 (internal citations omitted). We now apply these
standards to each of German’s claims to determine whether the Defendants are
entitled to qualified immunity.
I. False Arrest/Imprisonment (Counts 1 and 4)
German first argues that the district court erred in granting qualified
immunity to the Defendants on German’s false arrest claim. We agree with the
district court that the Defendants should be granted qualified immunity on this
claim because they had probable cause, or at least arguable probable cause, to
arrest German. “The existence of probable cause at the time of arrest . . .
constitutes an absolute bar to a section 1983 action for false arrest.” Case v.
Eslinger, 555 F.3d 1317, 1326-27 (11th Cir. 2009) (citations and quotation marks
omitted). In addition, “[q]ualified immunity . . . protects officers who ‘reasonably
but mistakenly conclude that probable cause is present.’” Garczynski v.
Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009) (citations and quotation marks
omitted). “To determine whether arguable probable cause exists, courts must look
to the totality of the circumstances.” Davis v. Williams, 451 F.3d 759, 763 (11th
Cir. 2006). “Arguable probable cause exists where reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could have
believed that probable cause existed to arrest Plaintiff.” Brown v. City of
4
Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010) (internal quotation omitted).
“Whether a particular set of facts gives rise to probable cause or arguable
probable cause for arrest depends . . . on the elements of the crime.” Crosby v.
Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Here, German was
arrested for violating Florida Statute § 843.02, the elements of which require that
“(1) the officer was engaged in the lawful execution of a legal duty; and (2) the
action by the defendant constituted obstruction or resistance of that lawful duty.”
Davis, 451 F.3d at 764. Defendant Sosa claims that he saw cannabis in German’s
mouth, and that he believed German was resisting him by chewing and swallowing
what he believed was evidence of a crime. German has provided no evidence
either that Sosa did not possess these beliefs, or that these beliefs were objectively
unreasonable based on the totality of the circumstances. Thus, Defendants had at
least arguable probable cause to arrest German. Brown, 608 F.3d at 734. We
therefore agree with the district court that Defendants are entitled to qualified
immunity on the false arrest/false imprisonment claims.
II. Excessive Force (Counts 2 and 5)
German next claims the district court erred in granting the Defendants
qualified immunity on his unnecessary and excessive use of force claims. When
evaluating an excessive force claim, courts analyze the particular facts of each
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case to “determine whether the force used was justified under the totality of the
circumstances.” Garczynski, 573 F.3d at 1166 (citing Graham v. Connor, 490
U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989)). Under Graham, the factors used to
determine reasonableness include “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396, 109 S. Ct. at 1872. “[T]he reasonableness inquiry in an
excessive force case is an objective one: the question is whether the officers’
actions are objectively reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.”
Garczynski, 573 F.3d at 1166-67 (internal quotation marks omitted).
German appears to claim that two actions in particular taken by the
Defendants constituted unnecessary or excessive force. First, he objects to
Defendant Sosa’s application of force by “put[ting] his hand around German’s
throat and slamm[ing] him against the car.” Second, he objects to Defendant
Paparo’s use of a taser. We agree with the district court that neither application of
force violated any clearly established right, and that Defendants are entitled to
qualified immunity on German’s unnecessary or excessive force claims.
First, Defendant Sosa did not use excessive force when he attempted to
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prevent German from swallowing what Sosa believed to be cannabis. It is
constitutional for officers recognizing an attempt to swallow and destroy what
appears to be narcotics to hold the suspect’s throat and attempt to pry open the
suspect’s mouth by placing pressure against his jaw and nose. See Espinoza v.
United States, 278 F.2d 802, 804 (5th Cir. 1960).1 As we have already
determined, German has provided no evidence that Sosa’s belief that German was
attempting to swallow cannabis was unreasonable; therefore, Sosa did not violate
a clearly established right in his use of force to attempt to stop German from
swallowing the evidence.
Second, we also cannot say that Defendant Paparo violated a clearly
established right when he tased German. No case, statute, or principle within the
Constitution provides the necessary precedent to clearly establish the rights
German claims were violated by the Paparo’s use of a taser. Thus, qualified
immunity applies in this case unless German can show that the Defendants’
actions were so egregious and unacceptable so as to have blatantly violated the
Constitution. See Lewis, 561 F.3d at 1292. This standard is only met when “every
reasonable officer would conclude that the excessive force used was plainly
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
September 30, 1981.
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unlawful.” Id. (citing Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926-
27 (11th Cir. 2000)).
This standard is not met in this case. As discussed above, the officers
believed German was attempting to destroy evidence, and that he was resisting
orders and attempting to flee or resist arrest by jumping in the car. We agree with
the district court that it would not be clear to every reasonable officer that the
force used was excessive under the circumstances.2 Therefore, the Defendants did
not violate a constitutional right that was clearly established when they tased
German. Accordingly, the district court was correct to grant the Defendants
qualified immunity on German’s unnecessary and excessive force claims.
III. Malicious Prosecution (Counts 3 and 6)
Finally, German argues that the district court erred in granting qualified
immunity and summary judgment to the Defendants on German’s malicious
prosecution claims. “To establish a federal malicious prosecution claim under §
1983, a plaintiff must prove (1) the elements of the common law tort of malicious
prosecution, and (2) a violation of her Fourth Amendment right to be free from
unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th
2
In fact, as Defendants point out, we previously held in Draper v. Reynolds, 369
F.3d 1270 (11th Cir. 2004), that an officer’s use of a taser gun against a suspect resisting arrest
during a traffic stop did not constitute excessive force. Id. at 1278.
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Cir. 2004). Common law malicious prosecution comprises six elements under
Florida law:
(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.
Id. (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 4th DCA 2002)).
Because we agree with the district court that the Defendants had probable
cause to arrest German, German has not proved the fourth element of common law
malicious prosecution, and therefore this claim fails. Thus, the Defendants are
entitled to qualified immunity and summary judgment on German’s malicious
prosecution claims.
For the foregoing reasons, we affirm the district court’s grant of qualified
immunity and summary judgment to the Defendants on German’s claims for false
arrest/imprisonment, unnecessary and excessive use of force, and malicious
prosecution.
AFFIRMED.3
3
Appellant’s request for oral argument is DENIED.
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