James T. DeRosa vs Sheriff of Collier County, FL, Shaun M. George

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14046 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 1, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cv-00806-JES-SPC
JAMES T. DEROSA,
KATHLEEN DEROSA,
LOUIS J. DEROSA,
MARY ELIZABETH DEROSA,
Plaintiffs - Appellees,
versus
SHERIFF OF COLLIER COUNTY, FLORIDA, et al.,
Defendants,
SHAUN M. GEORGE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 1, 2011)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Deputy Sheriff Shaun George appeals the denial of qualified immunity
against Kathleen DeRosa’s complaint of false arrest. The district court ruled that
George lacked arguable probable cause to arrest DeRosa. We affirm.
Although there is little dispute about the events that led to and occurred
during the encounter between George and DeRosa, we view the facts in the light
most favorable to DeRosa, as we must do at this stage of the proceedings. See
Grider v. City of Auburn, 618 F.3d 1240, 1246 & n.1 (11th Cir. 2010). In 2005,
while Deputy George was on patrol on a remote road in Collier County, Florida,
he noticed a GMC Yukon vehicle driving on the opposite side of the road using its
high beam lights. When the vehicle failed to dim its lights as it drove by George’s
patrol car, George stopped the vehicle. James DeRosa was driving the car and
Kathleen DeRosa was riding in the back seat of the vehicle. Kathleen noticed that
George was shaking, agitated, and nervous.
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George asked James for his driver’s license. Kathleen spoke to James three
times about the location of his license and, on each occasion, George told
Kathleen to “shut up.” Kathleen told George that he “really need[ed] to work on
[his] community service skills.” George cited James for failing to dim his
headlights, Fla. Stat. § 316.238, and James signed the citation using a pencil.
After George gave James a copy of the citation, James drove away.
George activated his lights and siren and pursued the DeRosas. Kathleen
called “911” and stated that James would stop at a specific gas station two miles
away. Kathleen told the operator that she was afraid of George because he was
acting aggressively, and Kathleen requested that additional officers meet the
DeRosas at the gas station.
After James stopped his vehicle, George instructed another officer to arrest
Kathleen. The officer grabbed Kathleen’s arm as she climbed out of the vehicle,
dragged her to a patrol car, pushed her against the hood to handcuff her, turned her
around and pushed her back against the hood, and then shoved her inside a patrol
car. Kathleen was charged with obstructing a law enforcement officer without
violence, id. § 843.02, but the charge was dismissed.
George lacked arguable probable cause to arrest Kathleen. To support a
conviction for obstructing a police officer without violence, the officer must be
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“‘engaged in the lawful execution of a legal duty’” and the action of the defendant
must “‘constitute[] obstruction or resistance of that lawful duty.’” Jay v. State,
731 So. 2d 774, 775 (Fla. Dist. Ct. App. 1999) (quoting S.G.K. v. State, 657 So.
2d 1246, 1247 (Fla. Dist. Ct. App. 1995)). Although mere words can violate
section 843.02, the words must thwart an officer from performing his official
duties:
[As a] general proposition[,] [i]f a police officer is not engaged in
executing process on a person, is not legally detaining that person, or
has not asked the person for assistance with an ongoing emergency that
presents a serious threat of imminent harm to person or property, the
person’s words alone can rarely, if ever, rise to the level of an
obstruction.
D.G. v. State, 661 So. 2d 75, 76 (Fla. Dist. Ct. App. 1995). Florida courts have
long held that criticism cannot support a conviction for obstruction, even if the
criticism is insulting or defiant:
“Conduct involving only verbal challenge of an officer’s authority or
criticism of his actions . . . operates, of course, to impair the working
efficiency of government agents . . . Yet the countervailing danger that
would lie in the stifling of all individual power to resist—the danger of
an omnipotent, unquestionable officialdom—demands some sacrifice of
efficiency.”
S.D. v. State, 627 So. 2d 1261, 1262 (Fla. Dist. Ct. App. 1993) (quoting City of
Houston v. Hill, 482 U.S. 451, 464 n.12, 107 S. Ct. 2502, 2510 n.12 (1987)).
Kathleen did not come close to obstructing George in the execution of his
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lawful duties. Kathleen’s criticisms of George, even if distracting, did not incite
others against, interfere with, or impede George from citing James for his traffic
infraction. See R.S. v. State, 531 So. 2d 1026, 1026–27 (Fla. Dist. Ct. App. 1988)
(refusal of juvenile to answer questions and instructions to companion not to
answer questions, though “frustrating and annoying” did not constitute
obstruction). In fact, the record does not suggest that Kathleen even questioned
George’s authority. See D.G., 661 So. 2d at 76–78 (“protesting loudly and
obnoxiously” to officers’ investigation, “encouraging his mother not to
cooperate,” and refusing to answer questions about an associate suspected of
burglary did not violate section 843.02); S.D., 627 So. 2d at 1262–63 (announcing
the presence of police officers in response to a warning from the officers not to
alert persons in the area about a sting operation did not obstruct official duty
because those persons already had been warned not to approach officers to
purchase drugs).
George argues that he was entitled to arrest Kathleen based on his right to
“maintain ‘unquestioned command of the situation,’” Maryland v. Wilson, 519
U.S. 408, 414, 117 S. Ct. 882, 886 (1997), but we disagree. The Supreme Court
held in Wilson that an officer making a traffic stop may, in the interests of
personal safety, order passengers to exit a vehicle until the stop is complete, id. at
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413–15, 117 S. Ct. at 885–86, but Wilson is distinguishable. Kathleen’s remarks
were not so disruptive or alarming to warrant removing her from the vehicle to
complete the traffic stop.
The denial of George’s motion for summary judgment based on qualified
immunity is AFFIRMED.
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