[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 12, 2008
No. 07-12424
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-01722-CV-ORL-18KRS
STEVEN J. WOLK,
Plaintiff-Appellee,
versus
SEMINOLE COUNTY, FLORIDA,
a political subdivision of the State of Florida,
et al.,
Defendants,
SARA L. KLEIN,
individually and in her official capacity as
Deputy Sheriff of the Seminole County Sheriff's Office,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 12, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Sara L. Klein, an officer who arrested Steven J. Wolk for battery, has filed
an interlocutory appeal, challenging the district court’s order denying her summary
judgment, based on qualified immunity, in Wolk’s 42 U.S.C. § 1983 action
alleging false arrest and incarceration. Wolk, an attorney proceeding pro se, filed
his civil rights complaint against Klein, alleging that she arrested him for battery
without probable cause.1 Specifically, Wolk asserted that he and his sister, who
was visiting him, had an argument, and she called 911, but when the deputies
arrived, he denied an impermissible touching, and his sister urged the deputy not
to arrest Wolk.
Klein moved for summary judgment, based on qualified immunity, arguing
that Wolk admitted touching his sister during the argument. To support her
assertion, Klein submitted Wolk’s deposition, wherein he stated that he informed
Klein that he had pushed his sister’s hand out of his face as they argued. Wolk
opposed summary judgment, and submitted his and his sister’s affidavits to
support his contention that there was not probable cause to believe that a battery
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Wolk also named Seminole County, Florida, the sheriff, and two additional deputies in
his complaint. These defendants were granted summary judgment and are not involved in this
appeal.
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had occurred. In his affidavit, Wolk stated that he told Klein that the only contact
during the argument was when he pushed his sister’s hand out of his face in self-
defense. In her affidavit, Wolk’s sister stated that she told Klein that there was no
physical contact between her brother and her.
The district court denied Klein summary judgment, finding that the evidence
created a genuine issue of fact as to whether probable cause existed to believe that
a battery had occurred, and, viewed in the light most favorable to Wolk, there was
not probable cause. On appeal, Klein argues that the district court erred in finding
that she did not have arguable probable cause to arrest Wolk for battery, because
he admitted pushing his sister’s hand out of his face.
We review a district court’s denial of summary judgement de novo.
Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). “Summary
judgment is appropriate when the evidence, viewed in the light most favorable to
the nonmoving party, presents no genuine issue of material fact and compels
judgment as a matter of law in favor of the moving party.” Id. at 836-37.
“Qualified immunity offers complete protection for government officials
sued in their individual capacities as long as their conduct violates no clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir. 2002) (internal
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quotation omitted). “In order to receive qualified immunity, the public official
must first prove that [she] was acting within the scope of [her] discretionary
authority when the allegedly wrongful acts occurred.” Id. at 1194 (internal
quotation omitted). If the official establishes that she was acting within her
discretionary authority, the burden shifts to the plaintiff to show, with the facts
taken in his favor, that (1) the officer violated a constitutional right, and (2) the
right was clearly established. Id.
Probable cause exists for an arrest when “the facts and circumstances within
the officer's knowledge, of which he or she has reasonably trustworthy
information, would cause a prudent person to believe, under the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.” Id. at 1195 (internal quotation omitted). It is irrelevant to our probable
cause determination that the plaintiff never was prosecuted for the crime, but
“[p]lainly, an arrest without probable cause violates the right to be free from an
unreasonable search under the Fourth Amendment.” Id. at 1088; Knight v.
Jacobson, 300 F.3d 1272, 1275 (11th Cir. 2002).
We have held that to receive qualified immunity protection, an officer only
needed arguable probable cause. Crosby v. Monroe County, 394 F.3d 1328, 1332
(11th Cir. 2004). “Arguable probable cause exists if, under all of the facts and
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circumstances, an officer reasonably could . . . have believed that probable cause
was present.” Id. This standard allows for some mistaken judgment, “and it
shields from liability all but the plainly incompetent or those who knowingly
violate the law.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) (internal
quotation omitted).
“Whether a particular set of facts gives rise to probable cause or arguable
probable cause to justify an arrest for a particular crime depends . . . on the
elements of the crime.” Crosby, 394 F.3d at 1333. Under Florida law, a battery
occurs when a person “[a]ctually and intentionally touches or strikes another
person against the will of the other.” Fla. Stat. § 784.03(1)(a)(1). The Supreme
Court of Florida has held that “any intentional touching, no matter how slight, is
sufficient to constitute a simple battery.” State v. Hearns, 961 So.2d 211, 218-19
(Fla. 2007). However, “[a] person is justified in using force, except deadly force,
against another when and to the extent that the person reasonably believes that
such conduct is necessary to defend himself or herself or another against the
other's imminent use of unlawful force.” Fla. Stat. § 776.012.
We have held that a party cannot create a genuine issue of fact by providing
an affidavit that contradicts his clear answers to unambiguous questions during a
deposition, and if the party attempts to do so, the affidavit may be disregarded as a
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sham. Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987). We also
have held that this rule should be used sparingly, and the affidavit and deposition
must contain inherent inconsistencies before the affidavit can be disregarded. Id.
When Appellant Officer Klein arrived on the scene, in response to a 911 call
reporting a domestic disturbance, Gina reported to Klein that she called 911
because her brother had become more aggressive. When asked if she had been
battered or threatened, Gina responded that Wolk was “six foot six, and it got to
that point, that’s why I called.” When Officer Klein spoke with Wolk, he
acknowledged there had been an argument. When asked if he had any physical
contact with Gina, he said that he had pushed her hands out of his face
defensively.
Although it may well have been wiser not to arrest Wolk, especially after
Gina urged that course of action, we conclude that a reasonable officer in this
situation could have believed that probably cause was present. The Florida statute
defining battery requires only an intentional touching against the will of the other,
however slight. See Fla. Stat. § 784.03(1)(a); Hearns, 961 So.2d at 218-19 . We
cannot conclude that such a reasonable officer would have known under the
circumstances that she must accept at face-value Wolk’s self-interested assertion
that his striking or touching of Gina was defensive, on pain of violating the
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Constitution. When asked if she had been battered or threatened, Gina responded
that Wolk was six feet six “and it got to that point.” The crucial question is not
whether Wolk’s physical contact with Gina was or was not defensive. Rather, the
crucial question is what reasonably appeared to an officer under the circumstances.
We cannot conclude that no reasonable officer, under all the circumstances, would
conclude there was probable cause for an arrest. Crosby, 394 F.3d at 1332
Therefore, we conclude that Officer Klein is entitled to qualified immunity and we
reverse the judgment of the district court denying Klein’s motion for summary
judgment.
REVERSED
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