IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FLORIDA FISH AND WILDLIFE NOT FINAL UNTIL TIME EXPIRES TO
CONSERVATION COMMISSION FILE MOTION FOR REHEARING AND
and BENJAMIN G. JOHNSON, DISPOSITION THEREOF IF FILED
individually,
CASE NO. 1D15-1406
Petitioners,
v.
TIMOTHY JEFFREY,
Respondent.
___________________________/
Opinion filed October 15, 2015.
Petition for Writ of Certiorari.
Pamela Jo Bondi, Attorney General, and Antony D. Constantini, Assistant Attorney
General, Tallahassee, for Petitioner Florida Fish and Wildlife Conservation
Commission.
Heath R. Stokley and Kerry A. Parsons of Nabors, Giblin & Nickerson, P.A.,
Tallahassee, and Edward A. Dion, Nabors, Giblin & Nickerson, P.A., Ft.
Lauderdale, for Petitioner Benjamin G. Johnson.
Marie A. Mattox and Lisa Lambert of Marie A. Mattox, P.A., Tallahassee, for
Respondent.
WETHERELL, J.
The Florida Fish and Wildlife Conservation Commission (FWCC) and FWCC
officer Benjamin Johnson petition for certiorari review of the order denying their
motions for summary judgment based on sovereign immunity and qualified immunity,
respectively. We dismiss FWCC’s petition because it failed to establish the irreparable
harm necessary to obtain certiorari review, but we grant Officer Johnson’s petition in
part and quash the challenged order insofar as it denied him qualified immunity from
the false arrest claim asserted by Respondent under 42 U.S.C. § 1983.
I. Factual and Procedural Background
This case stems from a dropped cup. Although there is conflicting evidence as
to what kind of cup it was 1 and how it was dropped, 2 it is undisputed that Respondent
dropped the cup on the side of a road; that Officer Johnson told him several times to
pick it up; and that Respondent refused to pick up the cup, cursed at Officer Johnson,
and walked away. It is also undisputed that when Officer Johnson attempted to grab
Respondent’s arm to stop him from walking away so he could issue him a citation for
littering, Respondent pushed Officer Johnson’s hand away and started fighting with
him. Respondent claimed that he did not know that Officer Johnson was a law
enforcement officer because he is blind and Officer Johnson did not identify himself as
1
Respondent testified in his deposition that the cup was a styrofoam coffee cup from
McDonald’s, whereas Officer Johnson testified that the cup was “a red cup, white
inside, plastic cup.”
2
Respondent testified in his deposition that he accidentally dropped the cup when he
slipped and fell as he was walking along the road and that he was unable to find the
cup when the wind blew it away because he is blind. By contrast, Officer Johnson
testified in his deposition that Respondent intentionally “flung [the cup] to the curb of
the road” as he was walking.
2
an officer until the physical altercation was well underway. 3 Respondent was arrested
and charged with battery on a law enforcement officer and resisting an officer with
violence, but the criminal charges were subsequently nol prossed.
After the criminal charges were dropped, Respondent filed suit against FWCC
and Officer Johnson, asserting common law claims for negligence (against FWCC),
battery (against FWCC and Officer Johnson), false arrest (against FWCC and Officer
Johnson), malicious prosecution (against Officer Johnson), and intentional infliction of
emotional distress (against Officer Johnson). The suit also included a § 1983 claim
against Officer Johnson alleging two separate Fourth Amendment violations: false
arrest and excessive use of force. FWCC and Officer Johnson asserted various
defenses in their answers, including sovereign immunity and qualified immunity,
respectively.
FWCC and Officer Johnson filed motions for summary judgment. FWCC
asserted that it was entitled to judgment as a matter of law on the battery and false
arrest claims based on the facts asserted by Respondent in his deposition, and it argued
that the denial of its motion would be “a denial of sovereign immunity.” Officer
Johnson asserted that he was entitled to qualified immunity from the § 1983 claims and
that the other claims against him failed as a matter of law.
3
Although Officer Johnson testified in his deposition that he identified himself as a
law enforcement officer when he first told Respondent to pick up the cup (and several
times thereafter), we present the facts as the trial court was required to view them: in
3
The trial court held a hearing on the motions for summary judgment, and at the
conclusion of the hearing, the court orally granted the motions. 4 However, before the
court memorialized its ruling in a written order, Respondent filed a motion for
reconsideration in which he argued that summary judgment should be denied because
there was a factual dispute as to whether Officer Johnson identified himself as a law
the light most favorable to Respondent.
4
The trial court explained its ruling as follows:
[U]nder the circumstances here, there was probable cause to
do that initial stop, to inquire with [Respondent] regarding
why he left that cup on the side of the road. [Respondent]
admitted he left the cup on the side of the road. His only
beef is he could not go back and pick it up.
The law enforcement officer had the ability to stop and
inquire and investigate . . . whether there was a basis for that
action and whether it could be remedied or whether it
should be sanctioned by the civil . . . infraction. Once that
stop occurs, [Respondent]’s actions create a scenario that
resulted in actions by the law enforcement officer
responding to [Respondent] which the law enforcement
officer acted completely reasonable in protecting himself
and [Respondent], frankly. Because if [Respondent] is
getting into a fight on the side of the road with a law
enforcement officer, there's the potential for somebody
stumbling into the road and getting into a much worse
injury than would ever result from a fight.
The facts are that this law enforcement officer in looking at
the facts through his eyes as stated by [Respondent] in his
own deposition . . . is that the law enforcement officer had
probable cause for his actions and did, in fact, act
appropriately when confronted with the threat resulting
from the physical altercation that was arising.
4
enforcement officer before he attempted to detain Respondent as required by section
901.17, Florida Statutes. 5 The trial court treated the motion as supplemental argument
in opposition to the motions for summary judgment, and after a hearing, the court
entered an order denying the motions for summary judgment. The order stated in
pertinent part:
Defendant Johnson had the right to take action to stop
[Respondent] and cite him for littering. However, he was
required to do so in a manner which was consistent with the
law, including the requirement that he identify himself as a
law enforcement officer prior to initiating a physical
detention of a potential defendant. The undisputed facts do
not establish that Defendant Johnson acted within those
parameters, and his failure to do so may ultimately be
determined to have caused damage to [Respondent].
Summary Judgment is not appropriate because of the
presence of disputed issues of fact which must be resolved
at trial.
FWCC appealed the order to this court and Officer Johnson filed a notice of
joinder in the appeal. Respondent filed a motion to dismiss the appeal in which he
argued that the order was not appealable under Florida Rules of Appellate Procedure
9.130(a)(3)(C)(vii) and (xi) because the immunity claims asserted in the motions for
summary judgment were not denied “as a matter of law.” After considering the
responses filed by FWCC and Officer Johnson, we converted the appeal to a certiorari
5
This statute provides: “A peace officer making an arrest without a warrant shall
inform the person to be arrested of the officer’s authority and the cause of arrest except
5
proceeding. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the
case shall be treated as if the proper remedy had been sought . . . .”). FWCC and
Officer Johnson thereafter filed separate petitions for writ of certiorari seeking review
of the trial court’s order denying their motions for summary judgment.
II. Analysis
“Certiorari is the proper remedy, in limited circumstances, to review a non-final
order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130.”
AVCO Corp. v. Neff, 30 So. 3d 597, 601 (Fla. 1st DCA 2010). However, certiorari is
“an extraordinary remedy and should not be used to circumvent the interlocutory
appeal rule which authorizes appeal from only a few types of non-final orders.”
Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987).
To obtain a writ of certiorari, the petitioner must establish “(1) a departure from
the essential requirements of the law, (2) resulting in material injury for the remainder
of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood
Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v.
Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)); see also Keck v. Eminisor, 104 So.
3d 359, 364 (Fla. 2012). The latter two elements – which are often collectively
referred to as “irreparable harm” – are jurisdictional and must be considered first. See
Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); Elms v. Castle Constructors Co.,
when the person flees or forcibly resists before the officer has an opportunity to inform
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109 So. 3d 1274, 1275 (Fla. 1st DCA 2013); Parkway Bank v. Ft. Myers Armature
Works, Inc., 658 So. 2d 646, 648-49 (Fla. 2d DCA 1995).
A. Irreparable Harm
The mistaken denial of a motion for summary judgment asserting qualified
immunity – whether based on a determination of law or an erroneous belief that
material issues of fact preclude summary judgment on the issue – results in irreparable
harm because qualified immunity is an immunity from suit that is effectively lost if a
case is erroneously permitted to go to trial. See Stephens v. Geoghegan, 702 So. 2d
517, 525 (Fla. 2d DCA 1997) (explaining that the gravity of a mistaken denial of
immunity from suit is the same irrespective of the ground on which the denial was
based); see also Tucker v. Resha, 648 So. 2d 1187, 1189 (Fla. 1994) (explaining that
“an order denying qualified immunity is effectively unreviewable on appeal from a
final judgment as the public official cannot be re-immunized if erroneously required to
stand trial or face the other burdens of litigation”) (citation and internal quotations
omitted). Accordingly, because the challenged order in this case denied Officer
Johnson’s claim of qualified immunity, he has established the jurisdictional
prerequisite of irreparable harm necessary to obtain review of the order. However, as
discussed below, Officer Johnson’s entitlement to relief from the order depends on
whether the order departs from the essential requirements of law.
the person or when giving the information will imperil the arrest.”
7
By contrast, any harm resulting from the erroneous denial of FWCC’s motion
for summary judgment is not irreparable because, by virtue of the waiver of sovereign
immunity in section 768.28, Florida Statutes, FWCC has only limited immunity from
the liability that may result from Respondent’s suit, not immunity from the suit itself.
See Dep’t of Educ. v. Roe, 679 So. 2d 756, 759 (Fla. 1996) (explaining that “forcing
the state to wait until a final judgment before appealing the issue of sovereign
immunity does not present the same concerns that exist in the area of qualified
immunity” because “although the state will have to bear the expense of continuing the
litigation, the benefit of immunity from liability, should the state ultimately prevail on
the sovereign immunity issue, will not be lost simply because review must wait until
after final judgment”); Stephens, 702 So. 2d at 527 (dismissing certiorari petition
challenging denial of immunity claim by officers sued in their official capacity because
such a suit was actually a suit against the municipality that employed the officers and
“[t]he material harm, irreparable on postjudgment appeal, that impelled us to exercise
our certiorari jurisdiction with regard to the individual defendants . . . is simply not
present in a suit against a municipality”). Absent irreparable harm, we lack certiorari
jurisdiction to review the order denying FWCC’s motion for summary judgment and
we must dismiss its petition for writ of certiorari. See Elms, 109 So. 3d at 1276 n.*
(citing Bared & Co. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996)).
8
In reaching this conclusion, we have not overlooked the decision in O’Brien v.
Esposito, 824 So. 2d 954 (Fla. 3d DCA 2002), relied on by FWCC. However, that
case is distinguishable. First, the trial court in O’Brien “deferred ruling” on the
defendant’s immunity claim, id. at 955, whereas the trial court in this case expressly
denied the motion for summary judgment in which FWCC asserted its claim of
sovereign immunity. Second, the immunity claim on which the trial court deferred
ruling in O’Brien was a claim of qualified immunity by an individual, id., not a claim
of sovereign immunity by an agency as is the case with FWCC’s claim.
B. Departure from the Essential Requirements of Law
As the Second District explained in Stephens,
when a public official moves for summary judgment on the
ground that he or she enjoys immunity from suit arising
under either state or federal law, and the record conclusively
demonstrates that the public official is entitled to immunity,
it is a departure from the essential requirements of law to
deny it.
702 So. 2d at 525. However, “when a court denies summary judgment in the face of
disputed issues of material fact, it commits no legal error, let alone a departure from
the essential requirements of law.” Id. at 525 n.4 (“In those instances, the denial of
immunity prior to trial is unavoidable and irremediable.”); see also Ondrey v.
Patterson, 884 So. 2d 50, 55 (Fla. 2d DCA 2004) (denying certiorari petition because
there was a genuine issue of material fact regarding correctional officer’s entitlement to
qualified immunity from § 1983 suit alleging a violation of prisoner’s rights under the
9
Eighth Amendment); Butler v. Dowling, 750 So. 2d 674 (Fla. 4th DCA 1999) (denying
certiorari petition because, under the arrestee’s version of the facts, police officer was
not entitled to qualified immunity from excessive use of force claim under § 1983).
Accordingly, Officer Johnson’s entitlement to relief in this case turns on whether the
record conclusively establishes that he is entitled to qualified immunity from the false
arrest and excessive use of force claims asserted by Respondent under § 1983.
A law enforcement officer is entitled to qualified immunity from a false arrest
claim under § 1983 if the evidence establishes that the officer had probable cause to
make the arrest. See Vermette v. Ludwig, 707 So. 2d 742, 746 (Fla. 2d DCA 1997)
(“An arrest without probable cause violates the Fourth Amendment and establishes a
cause of action under § 1983. On the other hand, the existence of probable cause is an
absolute bar to a § 1983 claim.”) (citation omitted). A law enforcement officer is
entitled to qualified immunity from an excessive use of force claim under § 1983 if the
evidence establishes that the officer’s actions “are ‘objectively reasonable’ in light of
the facts and circumstances confronting them, without regard to their underlying intent
or motivation.” Brown ex rel. Brown v. Jenne, 122 So. 3d 881, 885 (Fla. 4th DCA
2012) (quoting Graham v. Conner, 490 U.S. 386, 397 (1989)).
Here, as the trial court initially ruled (see note 4, supra), the material undisputed
facts establish that Officer Johnson had probable cause to arrest Respondent for
resisting an officer with violence because Officer Johnson was lawfully in the process
10
of attempting to detain Respondent so he could issue him a citation for littering when
Respondent pushed Officer Johnson’s hand away and fought with him. The fact that
the criminal charges against Respondent were later dropped has no bearing on the
question of whether Officer Johnson had probable cause to arrest Respondent. See
Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 668 (Fla. 3d DCA 2012); Fla. Game &
Freshwater Fish Comm’n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996).
Accordingly, because Officer Johnson had probable cause to arrest Respondent, he was
entitled to qualified immunity from the false arrest claim asserted by Respondent under
§ 1983, and the trial court departed from the essential requirements of law in denying
his motion for summary judgment on that claim.
In reaching this conclusion, we have not overlooked the trial court’s
determination that there are disputed issues of fact concerning Officer Johnson’s
compliance with section 901.17, Florida Statutes. However, we agree with Officer
Johnson that the trial court’s reliance on that statute is misplaced. First, the plain
language of the statute only requires the officer to identify himself as a law
enforcement officer prior to making an “arrest” and, here, Officer Johnson was only
attempting to detain Respondent in order to issue him a civil citation for littering when,
according to Respondent, he failed to identify himself as a law enforcement officer.
Second, it is undisputed that Officer Johnson identified himself as a law enforcement
officer during the physical altercation that occurred prior to, and was the grounds for,
11
Respondent’s arrest. Third, an officer’s failure to comply with section 901.17 does not
render the arrest illegal; it is merely a fact the jury can consider in the defendant’s
criminal case in evaluating the reasonableness of the defendant’s actions. See Albury
v. State, 910 So. 2d 930, 933 (Fla. 2d DCA 2005).
Unlike the false arrest claim, there are disputed issues of fact as to what
precisely occurred during the physical altercation between Respondent and Officer
Johnson – including when and how many times Respondent was pepper sprayed – that
preclude us from determining as a matter of law that the force used by Officer Johnson
in effectuating Respondent’s arrest was objectively reasonable under the
circumstances. For example, Respondent testified in his deposition that Officer
Johnson “sucker punched” him at the outset of the altercation and that the altercation
had effectively ended before he was pepper sprayed the first time, whereas Officer
Johnson testified in his deposition that he did not punch Respondent and that
Respondent was actively resisting arrest each time that he was pepper sprayed.
Because of these factual disputes, the trial court did not depart from the essential
requirements of law in denying Officer Johnson’s motion for summary judgment on
the excessive use of force claim under § 1983.
III. Conclusion
For the reasons stated above, we grant Officer Johnson’s petition for writ of
certiorari in part and quash the trial court’s order insofar as it denied his motion for
12
summary judgment on the false arrest claim under § 1983, but we deny Officer’s
Johnson’s petition in all other respects. And, because any harm resulting from the
denial of FWCC’s motion for summary judgment asserting sovereign immunity can be
remedied on post-judgment appeal, we dismiss FWCC’s petition for writ of certiorari.
GRANTED in part; DENIED in part; DISMISSED in part.
LEWIS and MAKAR, JJ., CONCUR
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