[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12813 November 1, 2006
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-01280 CV-ORL-19-JGG
WAYNE FREEMAN,
WAYNE’S WORLD, INC.,
Doing business as Heroe’s Nightclub,
Plaintiffs-Appellants,
versus
TOWN OF EATONVILLE, FLORIDA,
J. MURPHY,
Defendants-Appellees.
_________________________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________________________
(November 1, 2006)
Before EDMONDSON, Chief Judge, BIRCH and ALARCÓN,* Circuit Judges.
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:
Plaintiffs Wayne Freeman and Wayne’s World, Inc. (“Plaintiffs”) sued the
Town of Eatonville, Florida and J. Murphy, an officer in the Eatonville Police
Department (“EPD”), alleging that Plaintiffs suffered damages from (1) false arrest
and false imprisonment, (2) federal constitutional deprivations, and (3) negligence.
The district court granted summary judgment for the Town of Eatonville and
Officer Murphy (“Defendants”). Finding no reversible error, we affirm.
I. BACKGROUND
Plaintiff Wayne Freeman is the sole owner of co-Plaintiff Wayne’s World,
Inc., which does business under the name of Heroe’s Nightclub (“Heroe’s”).1
Heroe’s is a nightclub with a maximum capacity of 700 people. The club offers
music and dancing for its patrons, and approximately 70 percent of its income is
derived from the sale of alcohol consumed on-site. On weekend nights, Heroe’s
opens its doors at 11:00 p.m. and operates until 4:00 a.m. or 5:00 a.m. Heroe’s is
the only nightclub in the area that operates past 2:00 a.m. And although Heroe’s
1
Heroe’s has also been spelled “Hero’s” in the briefs, but we will refer to the establishment as
Heroe’s in this opinion.
2
faces a mainly commercial street, immediately behind the club is a residential
neighborhood. In the five months before the incident at issue here, law
enforcement was called to Heroe’s about six to eight times to respond to fights or
other disturbances, including gunshots fired near the club. Since the incident at
issue here, law enforcement has responded to several other incidents at Heroe’s,
including one in which someone was shot.
On Friday night/Saturday morning of Labor Day weekend in 1999, Heroe’s
attracted a large crowd. In preparation for the holiday weekend -- during which
Heroe’s anticipated increased customer traffic -- Freeman “beefed up” security by
hiring 15 private security guards (normally 12) and five off-duty, uniformed police
officers (normally two or three). Around 2:00 a.m., Officer Murphy and other
EPD officers arrived at Heroe’s to respond to a disturbance. According to the
sworn statements of three EPD officers who were on the scene, the EPD
summoned at least three other law enforcement agencies to assist in responding to
“several physical and verbal disturbances, including ones with gunfire” that had
broken out in and around Heroe’s. By this time, 200-300 patrons had entered
Heroe’s, and a line of people waiting to enter, according to Freeman, was
“wrapped around the block.”
3
To quell the disturbance, Murphy reported that he was ordered by his
superior to close the doors of Heroe’s and to disperse the crowd.2 Officer Murphy
was familiar with Freeman and Heroe’s because Freeman had previously hired
Murphy to perform off-duty security at the club. Freeman stated that he first
became aware of the decision to shut down Heroe’s when he heard Murphy
closing the club’s exit doors. Murphy then tried to close the front doors where
Freeman was positioned to collect cover charges.
Officer Murphy told Freeman he was closing Heroe’s. Freeman then placed
himself so that Murphy could not shut the club’s doors. Freeman asserts that
Officer Murphy was “out of control, yelling” and “trying to slam the door.”
Freeman contrasts his own conduct as completely in control. Freeman said that
the crowd nearest the door began to surge toward the entrance during Freeman’s
interaction with Murphy. Murphy threatened to arrest Freeman if Freeman did not
step aside from the club’s doors. Freeman responded to Murphy, “Do what you
got to do.” Freeman claims he then complied with Murphy’s request to step away
from the door; Officer Murphy then arrested Freeman.
2
Only Freeman has been deposed in this case. The parties never contacted or deposed Murphy
or the other officers or witnesses to the club’s closing. The only testimonial evidence offered at the
summary judgment stage was Freeman’s deposition, Officer Murphy’s incident report and sworn
charging affidavit, and the sworn statements of two other EPD officers who were at the scene. For
the purposes of summary judgment we -- as the district court did -- construe the facts in the light
most favorable to Freeman.
4
Murphy took Freeman to Murphy’s patrol car where Freeman sat for one to
two hours while the officers dispersed the crowd. Freeman was charged with
resisting an officer without violence, in violation of Florida Statutes section
843.02. Later, the charges were dropped. Heroe’s remained closed for the
remainder of that night (one and a half to two hours). When Heroe’s reopened the
next night, Freeman contends, the club attracted a smaller-than-expected crowd.
Plaintiffs sued Officer Murphy and the Town of Eatonville, asserting
liability for false arrest and false imprisonment, negligence, and constitutional
violations. The district court granted summary judgment for Defendants,
concluding that Officer Murphy had probable cause to arrest Freeman, that
Murphy was entitled to qualified immunity, and that the Town of Eatonville could
not be liable because Murphy did not violate Freeman’s rights. The district court
later denied Plaintiffs’ motion for rehearing.
II. DISCUSSION
On appeal, Plaintiffs asserts that questions of material fact exist about
whether Murphy and the other EPD officers were authorized to arrest Freeman and
close Heroe’s. Plaintiffs argue mainly for three questions of fact: (1) whether
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there was gunfire; (2) whether there were “disturbances” around the club; and (3)
whether the crowd was unruly. The district court -- purportedly construing the
facts in Plaintiffs’ favor -- found no genuine issues of material fact and granted
summary judgment for Defendants.
We review de novo the district court’s grant of summary judgment, applying
the same standards as a district court. Kingsland v. City of Miami, 382 F.3d 1220,
1225 (11th Cir. 2004). We view the evidence and all factual inferences therefrom
in the light most favorable to Plaintiffs and resolve all reasonable doubts about the
facts in Plaintiffs’ favor. Id. at 1226. Because Plaintiffs would bear the burden of
proof at trial, Plaintiffs must “go beyond the pleadings and by [their] own
affidavits, or by the depositions, answers to interrogatories, and admissions on
file,” show that genuine issues of material fact exist to be resolved at trial. Fed. R.
Civ. P. 56(e); Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986). We are
satisfied that the district court construed the record facts in Plaintiffs’ favor. After
review, we see no genuine issues of material fact sufficient to defeat summary
judgment.
6
A. State Law Claims
Freeman makes claims under state law for false arrest, false imprisonment,
and negligence.3 Freeman was arrested for resisting an officer without violence in
violation of Florida Statute section 843.02. Florida law provides, in part, that
“[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution
of any legal duty, without offering or doing violence to the person of the officer,
shall be guilty of a misdemeanor of the first degree.” FLA. STAT. § 843.02. To
support a conviction under section 843.02, the state must prove that Officer
Murphy was engaged in the lawful execution of a legal duty and that Freeman’s
acts constituted obstruction or resistance of that lawful duty. Slydell v. State, 792
So. 2d 667, 671 (Fla. Dist. Ct. App. 2001).
If Officer Murphy had probable cause to believe that Freeman was resisting
Murphy’s efforts to execute a legal duty, then summary judgment must be
affirmed. See City of Hialeah v. Rehm, 455 So. 2d 458, 461 (Fla. Dist. Ct. App.
1984) (concluding that an officer “is not liable for false arrest if he has probable
cause (or substantial reason) to believe the arrested person was a committing a
3
Freeman’s claims for false arrest and false imprisonment are “distinguishable in terminology
only.” Johnson v. Weiner, 19 So. 2d 699, 700 (Fla. 1944). We discuss these claims together.
7
misdemeanor in his presence”). Probable cause exists when the facts and
circumstances within the officer’s knowledge, of which he has reasonably
trustworthy information, would cause a prudent person to believe, under the
totality of the circumstances, that the suspect has committed, is committing, or is
about to commit an offense. Elliott v. State, 597 So. 2d 916, 918 (Fla. Dist. Ct.
App. 1994).
Whether Officer Murphy was executing a legal duty when he closed
Heroe’s is a critical element to Defendants’ argument for summary judgment.
Florida law vests municipalities with the power to act to maintain order and to
quell any disturbance or disorder. See FLA. STAT. § 14.022 (vesting in governor
power to “take such measures and to do all and every act and thing which she or
he may deem necessary in order to prevent violence . . . or to quell violence or any
disturbance or disorder which threatens the peace and good order of society”);
FLA. STAT. § 166.021 (extending to municipalities the right to exercise powers of
the state, including those powers set out in section 14.022). Florida law also
compels law enforcement officers to disperse “immediately and peaceably”
crowds which are “unlawfully, riotously, or tumultuously assembled.” FLA. STAT.
§ 870.04. And Eatonville Ordinance No. 96-03 makes it unlawful for a business
to “knowingly permit, allow or suffer . . . [t]he place of business . . . to become
8
unreasonably disorderly or noisy with the premises so as to annoy or disturb
persons off the premises of that place of business . . . .”
Freeman contends that his deposition testimony rebuts the facts laid out in
the officers’ statements and creates issues of material fact about whether Murphy
and the other officers were executing a legal duty when they closed Heroe’s. We
disagree.
Even construing the facts in Plaintiffs’ favor -- as we must -- there is no
dispute that Heroe’s, a nightclub with a history of disturbances, including physical
disturbances and gunfire, attracted a large crowd late at night to an area bordered
by residences. The officers stated -- without contradiction -- that they were called
to Heroe’s because of reports of “several physical and verbal disturbances,
including ones with gunfire.” Undisputed evidence shows that the crowd
assembled outside Heroe’s was sufficiently large and rowdy that officers from at
least four law enforcement agencies took almost two hours to disperse the crowd.
And although Freeman stated that he personally did not hear gunshots and did not
observe a fight, he was unable to say that these events did not in fact occur. Under
the circumstances, we conclude that sufficient undisputed evidence exists such
that a reasonable police officer could believe he was lawfully executing a legal
duty when he closed Heroe’s.
9
Whether Freeman obstructed or resisted Officer Murphy’s efforts to close
Heroe’s is the second element. For the arrest to be lawful, Murphy needed only to
have had reasonable grounds to believe that Freeman was resisting Murphy’s
efforts to close Heroe’s. See State v. Dwyer, 317 So. 2d 149, 150 (Fla. Dist. Ct.
App. 1975). Freeman stated that he challenged Murphy’s authority to close the
club and stood in the doorway to prevent Murphy from closing the doors. Murphy
asked Freeman to move; he warned Freeman that continued interference would
result in arrest; and Freeman responded to Murphy by saying, “Do what you got to
do.” Freeman further stated that while he was engaged with Murphy, the crowd at
the club’s entrance moved in around the men before other officers came to assist
Murphy.
Under the circumstances, a reasonable officer could believe that Freeman
was obstructing efforts to close the club. Murphy therefore had probable cause to
arrest Freeman. And because Murphy acted with probable cause, the arrest was
lawful, and Defendants were entitled to summary judgment on Plaintiffs’ state law
claims.
10
B. Federal Constitutional Claims
Freeman also contends that his arrest and the temporary closure of Heroe’s
violated his constitutional rights to be free from unreasonable search and seizure
and to due process.4 We disagree.
1. Fourth Amendment. Freeman contends he was deprived of his Fourth
Amendment rights against unreasonable search and seizure when he was arrested.
The district court determined that Murphy was entitled to qualified immunity.
Qualified immunity immunizes from suit police officers who, when acting within
the scope of their discretionary authority, do not violate “clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Rodriguez v. Farrell, 280 F.3d 1341, 1345 (11th Cir. 2002) (quoting
Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.
1994) (en banc)). To determine whether qualified immunity exists, we employ a
two-step inquiry. First, we decide whether Murphy’s acts violated the
constitution. Garrett v. Athens-Clarke County, Ga., 378 F.3d 1274, 1278 (11th
4
Freeman, in his complaint, also charged Defendants with violating his right to equal protection.
But Plaintiffs did not raise this issue in their briefs before this Court. The equal protection claim is
therefore abandoned. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is deemed
abandoned and its merits will not be addressed.”).
11
Cir. 2004) (citing Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001)). If we conclude
that no constitutional right was violated, our inquiry ends: then Murphy has done
nothing wrong under federal law. But if we conclude that, under the assumed
facts, federal law was violated, we then consider whether, at the time of the
incident, every objectively reasonable police officer would have realized the acts -
- given the circumstances -- did violate already clearly established federal law.
Garrett, 378 F.3d at 1278-79.
We are satisfied that Officer Murphy was acting within the scope of his
discretionary authority when he arrested Freeman and closed Heroe’s. We must
then consider whether Murphy, in the context of the assumed facts, violated
Freeman’s constitutional rights. Whether a defendant “has violated a
constitutional right at all is, of course, a necessary concomitant to the question of
qualified immunity: if a defendant has not violated the law at all, he certainly has
not violated clearly established law.” Rodriguez, 280 F.3d at 1345 (citations and
quotations omitted). We have written that “[t]he existence of probable cause at the
time of arrest . . . constitutes an absolute bar to a section 1983 action for false
arrest.” Kingsland, 382 F.3d at 1226. As we discussed above, Murphy had
12
probable cause to arrest Freeman.5 See Rankin v. Evans, 133 F.3d 1425, 1435
(11th Cir. 1998) (noting that “the standard for determining whether probable cause
exists is the same under Florida and federal law”). Because Murphy had probable
cause to arrest Freeman, Murphy can have no federal liability, and he is due
summary judgment.6
2. Due Process. Plaintiffs’ due process claim similarly fails. In McKinney
v. Pate, we wrote that “a procedural due process violation is not complete ‘unless
and until the State fails to provide due process.’” 20 F.3d 1550, 1557 (11th Cir.
1994) (en banc) (citing Zinermon v. Burch, 110 S.Ct. 975, 983 (1990)). Plaintiffs
could have pursued remedies in state court for lost profits or damages suffered by
the club’s closure. Plaintiffs therefore suffered no procedural due process
violation. See Horton v. Bd. of County Comm’rs of Flagler County, 202 F.3d
1297, 1300 (11th Cir. 2000) (concluding that plaintiff’s failure to pursue state law
5
Murphy would be entitled to qualified immunity if he had only “arguable probable cause” to
arrest Freeman. Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993). That is, Murphy
would be entitled to qualified immunity if “a reasonable officer could have believed that probable
cause existed.” Id. (citation and quotation omitted). This lesser standard is clearly met under the
circumstances: Murphy had actual probable cause to arrest Freeman.
6
In the alternative, we conclude that under the law at the time of Freeman’s arrest, the purported
unlawfulness of the arrest was not already clearly established; so Officer Murphy is due immunity.
13
claim is not dispositive; Fourteenth Amendment only requires that plaintiffs have
opportunity to pursue relief in state courts).7
3. Municipal liability. Even when individual town officers are entitled to
immunity, a town might still be liable if a plaintiff can demonstrate that the town
had a policy or custom that led to a constitutional deprivation. See Monell v. Dep’t
of Social Servs. of City of New York, 98 S.Ct. 2018, 2037-38 (1978) (“[I]t is when
execution of a government’s policy or custom . . . inflicts the injury that the
government as an entity is responsible under § 1983.”). But we make this inquiry
only when a plaintiff has suffered a constitutional deprivation. See City of Los
Angeles v. Heller, 106 S.Ct. 1571, 1573 (1986) (determining that the extent to
which departmental regulations infringe on constitutional rights is irrelevant when
no constitutional injury, in fact, occurred). In this case, we have concluded that
Plaintiffs suffered no constitutional deprivation. We accordingly conclude that the
Town of Eatonville was entitled to summary judgment on Plaintiffs’ constitutional
claims.
7
To the extent Plaintiffs assert a violation of substantive due process, we decline to extend the
concept of fundamental constitutional rights to encompass Plaintiffs’ claims. And our analysis of
the Fourth Amendment claim controls any cause of action Freeman, individually, may bring under
the banner of substantive due process. See generally Graham v. Connor, 109 S.Ct. 1865, 1871
(1989) (concluding in police excessive force case that “[b]ecause the Fourth Amendment provides
an explicit textual source of constitutional protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims”).
14
III. CONCLUSION
Freeman was not falsely arrested. In performing his official duties, Officer
Murphy violated no federal law and, if he did, was entitled to qualified immunity
from suit. And because Plaintiffs suffered no constitutional deprivation, the Town
of Eatonville -- and Officer Murphy -- were entitled to summary judgment. The
judgment of the district court is accordingly
AFFIRMED.
15