[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11208 SEPT 27, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-20707-CV-CMA
BENTLEY KILLMON,
JARED ALDRIDGE,
PAUL BAME,
STEFANO BLOCH,
STEVEN DIAMOND, et al.,
Plaintiffs-Appellees,
versus
THE CITY OF MIAMI, A municipal entity, et al.,
Defendants,
M. NEILLY, Officer,
N. MANDERA, Broward Sheriff's Office,
LLOYD BINGHAM,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 27, 2006)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Three officers of the Broward County Sheriff, Manfreth Neilly, Nancy
Mandera, and Lloyd Bingham (the Officers), appeal the denial of their motion to
dismiss based on qualified immunity. Bentley Killmon, Caleb Selman, and
Lawrence Winawer (the Protesters) complain that they were wrongfully arrested by
the Officers, without probable cause, in violation of the Fourth Amendment. We
affirm.
I. BACKGROUND
We take as true the factual allegations of the third amended complaint. In
late November 2003, Killmon, Selman, and Winawer traveled to Miami to protest
the economic policies of Free Trade Area of the Americas, the member countries
of which were meeting in Miami. On November 20, they participated in a lawful,
permitted rally and march organized by the AFL-CIO. Law enforcement officials
had prohibited all chartered buses from picking up their passengers at the
amphitheater where the march ended.
After completing the march, Protester Bentley Killmon, a 71-year old retiree
and Korean war veteran, and Protester Caleb Selman, a student at Florida State
University, attempted to find their buses for the return trip home. Protester
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Lawrence Winawer, an employee of the association of retirees to which Killmon
belonged, accompanied Killmon. Killmon and Winawer asked a lieutenant from
the Miami-Dade Police Department in which direction they should disperse and
were told to proceed down a set of railroad tracks.
After following the lieutenant’s instructions, the Protesters were arrested.
When they were arrested, Killmon, Selman, and Winawer were more than a mile
from the amphitheater, walking peacefully in a group of 15 to 20 people. A
contingent of police officers from the Broward Sheriff’s Office commanded by
Captain John Brooks stopped the group and arbitrarily arrested some of its
members while letting others go free.
For two of the three arrests, the charges were dropped. Killmon was arrested
by Officer Neilly and charged with engaging in an unlawful assembly, but all
charges against him were dismissed at his initial bond hearing. Selman was
arrested by Officer Bingham and pleaded no contest to a misdemeanor after being
told that if he had no money for bail, he could be held in jail for up to three weeks.
Winawer was arrested by Officer Mandera and charged with disorderly conduct,
which was reduced to a charge of failure to obey before being dismissed nolle
prosequi.
The Protesters, along with several other Plaintiffs allegedly subjected to
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warrantless misdemeanor arrests, filed a complaint against numerous municipal
entities, public officials, and law enforcement officers. The district court denied
the Officers’ motion to dismiss based on the defense of qualified immunity. The
district court rejected the argument of the Officers that probable cause existed
because the Protesters were trespassing upon the railroad tracks in violation of
Florida Statute section 810.09. It held that two of the elements of trespassing
under section 810.09–entering the property willfully and doing so despite notice
against entering–did not exist under the facts alleged in the complaint. The court
also rejected the argument that the Officers had probable cause because they were
following orders. It stated that this Court has been generally hostile to the
“following orders” defense and noted that we have credited the defense only when
there were independent reasons the officer could have believed a search or seizure
was reasonable.
II. STANDARD OF REVIEW
An order denying a motion to dismiss is reviewed de novo, “accepting the
factual allegations in the complaint as true and drawing all reasonable inferences in
the plaintiff’s favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11 th Cir. 2003).
III. DISCUSSION
Two issues are presented for our consideration: whether we have jurisdiction
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to review the district court’s denial of the motion to dismiss based on qualified
immunity, and, if so, whether the district court correctly denied the motion to
dismiss. We answer both questions in the affirmative. Each issue is discussed in
turn.
A. This Court Has Jurisdiction To Review the Denial of
the Officers’ Qualified Immunity Defense Because the
Denial Turns on a Question of Law.
To overcome a defense of qualified immunity, a plaintiff must establish that
the defendant violated a constitutional right that was clearly established when the
violation occurred. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156
(2001). Whether a complaint alleges a violation of a clearly established right is a
question of law. Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th
Cir. 1997); Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793 (1991). To
the extent that “a district court’s denial of a claim of qualified immunity...turns on
an issue of law, [that denial] is an appealable ‘final decision’ within the meaning of
28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.
Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985). We have jurisdiction to
review a denial of qualified immunity that turns on whether the complaint alleges a
violation of a clearly established right.
The Protesters’ argument that we lack jurisdiction fails. We have
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jurisdiction over this appeal, because the denial of the Officers’ defense of
qualified immunity turns on whether the complaint of the Protesters alleges a
violation of a clearly established right. The complaint alleges that the Officers
were ordered by their commander to arrest the Protesters who were walking
peacefully on the railroad tracks as instructed by other police officers. The
Officers argue that these allegations require a finding of probable cause, and the
Protesters respond that the complaint adequately alleges an arrest without probable
cause. The dispute then does not turn on the sufficiency of the evidence, which
would foreclose our jurisdiction, Koch v. Rugg, 221 F.3d 1283, 1296 (11th Cir.
2000); instead, this appeal turns on whether the facts alleged in the complaint
establish that the Protesters were arrested without probable cause.
B. The District Court Properly Denied the Officers’
Defense of Qualified Immunity.
The evaluation of a defense of qualified immunity involves three steps. A
public official who asserts a defense of qualified immunity “must first prove that
he was acting within the scope of his discretionary authority when the wrongful
acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). The burden
then shifts to the plaintiffs, who must establish that the defendants’ conduct
violated the Constitution. Hope v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508,
2513 (2002). In the final step, the plaintiffs must establish that the constitutional
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right was clearly established when the violation occurred. Saucier v. Katz, 533
U.S. at 201. This appeal turns on the second step.
The Officers do not dispute that it was clearly established, under the Fourth
Amendment, that the arrests of the Protesters had to be supported by probable
cause. The dispute is whether the relevant level of probable cause existed. A
police officer charged with unlawful arrest is entitled to qualified immunity if there
was arguable probable cause to make the arrest. Durruthy v. Pastor, 351 F.3d
1080, 1089 (11th Cir. 2003). “Arguable probable cause exists when an officer
reasonably could have believed that probable cause existed, in light of the
information the officer possessed.” Id. (internal quote omitted). The Officers
argue that they had arguable probable cause, and the Protesters deny it. We must
resolve that dispute by reviewing the allegations of the complaint.
Taking its allegations as true, the complaint establishes that the Protesters
were arrested without arguable probable cause. Killmon, Selman, and Winawer
were arrested hours after and more than a mile away from where the march had
ended. The complaint alleges that neither the arresting officers nor Captain Brooks
saw the Protesters violate any law.
The Officers make two arguments about the existence of arguable probable
cause, but both arguments fail. First, they assert that they were following orders,
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and that the “fellow-officer” rule, Fla. Stat. Ann. § 901.18, allows an officer to rely
on the probable cause determination of another. They argue that it was reasonable
for the Officers to assume that their commanding officer, Captain Brooks, had
probable cause to order the arrest of the Protesters.
The problem with this first argument is that the Officers were with Captain
Brooks the entire time. They saw what he saw. When an officer is present with a
fellow officer and both observe the same course of events, it is unreasonable for an
officer to rely upon the fellow-officer rule to determine that probable cause exists.
Florida courts apply the fellow-officer rule when the arresting officer was
absent for a significant portion of the events that gave rise to probable cause. See,
e.g., Voorhees v. State, 699 So.2d 602 (Fla. 1997); State v. Boatman, 901 So.2d
222 205 (Fla. 2d DCA 2005); Huebner v. State, 731 So.2d 40 (Fla. 4th DCA
1999); State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990). It is reasonable for
an officer in that situation to rely upon his fellow officer’s judgment about
probable cause. The rule typically requires that the fellow officer actually
communicate to the arresting officer the basis for probable cause. See Voorhees,
699 So.2d at 609 (“The fellow officer rule allows an arresting officer to assume
probable cause to arrest a suspect from information supplied by other officers.”
(emphasis added)). When the arresting officer observed the same events as his
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fellow officer, the fellow-officer rule does not apply. As the district court
acknowledged and we have explained, “the ‘just following orders’ defense has not
occupied a respected position in our jurisprudence, and officers in such cases may
be held liable under § 1983 if there is a ‘reason why any of them should question
the validity of that order.’” O’Rourke v. Hayes, 378 F.3d 1201, 1210 n.5 (11th
Cir. 2004).
Second, the Officers argue that, because walking on railroad tracks is a
criminal trespass under Florida law, arguable probable cause existed to arrest the
Protesters. This argument also fails. As the district court explained, the complaint
alleges the absence of at least one element of the offense of trespass as defined by
Florida law–that a person “willfully enter[] upon or remain[] in any property other
than a structure or conveyance.” Fla. Stat. Ann. § 810.09(1)(a). The Protesters
allege that they were directed, even “herded,” onto the railroad tracks by police
officers. They also allege that the law enforcement operation that day was highly
coordinated. It is reasonable to infer that the Officers and their commander were
aware that the dispersing protesters had been directed onto the railroad tracks by
other police officers, which means that the Officers should have known that the
Protesters were not on the tracks willfully. The complaint adequately alleges that
the Protesters were arrested in violation of their clearly established Fourth
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Amendment rights.
We do not address the argument of the Officers, which is raised for the first
time on appeal, in a footnote of their initial brief, that Selman is barred from
complaining about the absence of probable cause for his arrest, because he pleaded
no contest to his misdemeanor charge. See generally Heck v. Humphrey, 512 U.S.
477, 114 S. Ct. 2364 (1994). Ordinarily we will not address an argument that was
not raised in the district court. Ochran v. United States, 117 F.3d 495, 502 (11th
Cir. 1997). This issue is best addressed, in the first instance, by the district court.
IV. CONCLUSION
The denial of the Officers’ motion to dismiss is
AFFIRMED.
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