Albert Darruthy v. City of Miami

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ November 26, 2003
THOMAS K. KAHN
No. 02-17017 CLERK
________________________

D. C. Docket No. 01-04155-CV-FAM

ALBERT DURRUTHY,

Plaintiff-Appellee,
versus

JENNIFER PASTOR,
Officer, individually,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 26, 2003)

Before HULL, MARCUS and STAHL*, Circuit Judges.

MARCUS, Circuit Judge:

*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
 In this civil rights case, Defendant Jennifer Pastor (“Pastor”), a police

officer in the City of Miami, appeals from the district court’s denial of her motion

for summary judgment on the basis of qualified immunity. Plaintiff Albert

Durruthy (“Durruthy”), a freelance cameraman, claims, inter alia, that Pastor

violated his rights under the Fourth Amendment when she arrested him for being

in the busy intersection of Flagler Street and N.W. 27th Avenue in Miami as the

police were trying to keep the streets clear on a chaotic day after the federal

government removed young Elian Gonzalez from his family in Miami in order to

return him to his father, who lived in Cuba. After thorough review of this record,

including a series of videotaped recordings of the incident at issue, we conclude

that Pastor is entitled to qualified immunity on Durruthy’s wrongful arrest and

excessive force claims. Accordingly, we reverse and remand for further

proceedings consistent with this opinion.

We review de novo a district court’s disposition of a summary judgment

motion based on qualified immunity, applying the same legal standards as the

district court. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). A motion

for summary judgment should be granted when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

2
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

resolve all issues of material fact in favor of the plaintiff, and then determine the

legal question of whether the defendant is entitled to qualified immunity under

that version of the facts. See Ferraro, 284 F.3d at 1190.

The relevant facts are straightforward. On April 22, 2000, United States

government officials removed a young boy, Elian Gonzalez, from his uncle’s

house to facilitate the boy’s return to his father in Cuba. The reaction in some parts

of Miami was immediate and violent. Protestors took to the streets and, as the

Plaintiff said, “[t]hat was the day of the riots in Miami.” Durruthy Dep. at 17.

Some people threw trash bins into the streets and set them on fire. Others threw

bottles, rocks, and broken glass. At the major intersection of N.W. 27th Avenue

and Flagler Street (one of the intersection’s roads has six lanes, the other four), the

scene was chaotic during some of the morning. Police were trying to clear the

intersection of people and cars. Protesters were arrested at that location. Many

cameramen were on hand, including Durruthy.

By Durruthy’s account, he knew that Miami police officers were trying to

clear the street. He observed that throughout the day he was “shooting officers

arresting protesters, clearing the street, and I was shoulder to shoulder with these

officers. And officers would grab me and say please, once you get your shot,

3
please go back from the street, from tear gas, from launching tear gas, from

arresting protesters.” Durruthy Dep. at 78.

By 11:00 a.m. the intersection of Flagler Street and N.W. 27th Avenue was

shut off to vehicular traffic, and police officers had cleared the demonstrators from

the street. At that time, the police arrested a cameraman, Bruce Bernstein

(“Bernstein”), and escorted him through the middle of the cleared street. Durruthy,

a freelance cameraman who was on assignment to film the protests, ran into the

street to film Bernstein’s arrest up close.

The scene that followed was captured on a series of videotapes filmed by

different people (including Durruthy) and from different locations. While

Durruthy was filming Bernstein’s arrest in the street, an officer instructed

Durruthy to get out of the street. Durruthy backpedaled toward the sidewalk,

while continuing to film Bernstein’s arrest. As Durruthy approached the sidewalk,

Officer Pastor grabbed him from behind. Pastor and another officer then pulled

Durruthy onto the ground, while struggling to pin his arms behind him and

handcuff him. During the struggle, the other officer also kneed Durruthy in the

back. Durruthy stated, “Sir, my arm . . . please sir . . . I am going peacefully, sir.”

Pastor held Durruthy down with her hands, while the other officer tied Durruthy’s

arms behind his back with flex cuffs. Officer Pastor testified that whenever anyone

4
is being arrested, she assumes that the person is armed with a weapon. She also

said that she had never seen the Plaintiff before the day of his arrest.

In a sworn declaration, Durruthy said that during the morning of April 22

other police officers let him enter the street, film his “shot,” and return to the

sidewalk on several occasions. He further stated that he had followed this

procedure “countless” times during the previous four months without incident and

with the permission of police. In his deposition, Durruthy testified that throughout

that morning he had filmed officers arresting protestors and clearing the streets,

and the officers had requested that he move out of the street once he got his

“shot.” Durruthy did not detail any of the specific circumstances surrounding these

earlier incidents, nor did he identify any officer by name. Notably, however,

Durruthy does not contend that Pastor allowed him to enter the streets at any time

that day or in the past.

Durruthy was charged with resisting, obstructing, or opposing an officer in

violation of Fla. Stat. § 843.02,1 but the charges ultimately were dropped.

1
This statute provides that:

Whoever shall resist, obstruct, or oppose any officer as defined in s.
943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any
administrative aide or supervisor employed by the commission; county probation
officer; parole and probation supervisor; personnel or representative of the
Department of Law Enforcement; or other person legally authorized to execute
process in the execution of legal process or in the lawful execution of any legal duty,

5
Subsequently, Durruthy filed a complaint against the City of Miami and Pastor,

alleging claims under 42 U.S.C. § 1983 for unlawful arrest and excessive force, in

violation of the Fourth Amendment, as well as various state law claims. Pastor

moved for summary judgment on the ground that she was entitled to qualified

immunity. Pastor argued that not only did she have probable cause to arrest

Durruthy for violating § 843.02, but she also had probable cause to arrest him for

without offering or doing violence to the person of the officer, shall be guilty of a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Fla. Stat. § 843.02.

6
violating Fla. Stat. § 316.130,2 Fla. Stat. § 316.072,3 and § 54-2 of the Miami City

Code.4

The district court denied Pastor’s motion for summary judgment. First, the

court found that there was no probable cause, or even arguable probable cause, to

arrest Durruthy. See Durruthy v. City of Miami, 235 F. Supp. 2d 1291, 1297-98

(S.D. Fla. 2002). The court rejected Pastor’s proffered bases for probable cause,

determining that Fla. Stat. § 843.02, Fla. Stat. § 316.072, and § 54-2 of the Miami

City Code were not applicable because Durruthy complied with the officer’s

2
Section 316.130 provides, in pertinent part, that “[w]here sidewalks are provided, no
pedestrian shall, unless required by other circumstances, walk along and upon the portion of a
roadway paved for vehicular traffic.” Fla. Stat. § 316.130(3).
3
Under this statute:

It is unlawful and a misdemeanor of the second degree, punishable as
provided in s. 775.082 or s. 775.083, for any person willfully to fail or refuse to
comply with any lawful order or direction of any law enforcement officer, traffic
crash investigation officer as described in s. 316.640, traffic infraction enforcement
officer as described in s. 316.640, or member of the fire department at the scene of
a fire, rescue operation, or other emergency. Notwithstanding the provisions of this
subsection, certified emergency medical technicians or paramedics may respond to
the scene of emergencies and may provide emergency medical treatment on the scene
and provide transport of patients in the performance of their duties for an emergency
medical services provider licensed under chapter 401 and in accordance with any
local emergency medical response protocols.

Fla. Stat. § 316.072(3).
4
Section 54-2 of the Miami City Code provides that “[i]t is unlawful for any person or
any number of persons to stand, loiter or walk upon any street or sidewalk in the city so as to obstruct
free passage over, on or along said street or sidewalk after a request by a law enforcement officer to
move on so as to cease blocking or obstructing free passage thereon.” Miami City Code § 54-2(b).

7
orders to get out of the street, even if he backpedaled and continued to film when

ordered off the street, and that Fla. Stat. § 316.130 was inapplicable because it is

directed at preventing pedestrians from walking among vehicular traffic. The court

also found that although there was no specific Florida Supreme Court, Eleventh

Circuit, or United States Supreme Court caselaw on point, Pastor’s conduct was

“obviously illegal, based on the complete lack of any reasonable basis for the

arrest.” Id. at 1298.

The district court also held that Pastor used excessive force against

Durruthy. The court reasoned that because Durruthy was obviously a member of

the media, was not protesting, and complied with the officer’s requests and

instructions, any use of “force was unnecessary. . . . In light of the circumstances,

the force applied was illegally disproportionate.” Id. at 1300. The district court

also determined that it was clearly established that Pastor’s conduct constituted

excessive force. It acknowledged that there was no controlling and factually

similar caselaw, but found that her conduct fell “within the category of cases in

which the unlawfulness of the conduct is ‘readily apparent even without

identifying caselaw.’” Id. at 1301 (quoting Smith v. Mattox, 127 F.3d 1416, 1420

(11th Cir. 1997)). This appeal ensued.

As we observed in Lee v. Ferraro:

8
 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.’” Thomas v. Roberts,
261 F.3d 1160, 1170 (11th Cir. 2000) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982))
(additional quotations omitted). The purpose of this immunity is to
allow government officials to carry out their discretionary duties
without the fear of personal liability or harassing litigation, see
Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97
L. Ed. 2d 523 (1987), protecting from suit “all but the plainly
incompetent or one who is knowingly violating the federal law.”
Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001).
Because qualified immunity is a defense not only from liability, but
also from suit, it is “important for a court to ascertain the validity of a
qualified immunity defense as early in the lawsuit as possible.” GJR
Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir.
1998) (citation omitted).

284 F.3d at 1193-94. Whether a defendant is entitled to qualified immunity is a

question of law, in other words, whether the law at the time of the incident was

clearly established so that a reasonable person should have known that he was

violating it. See Courson v. McMillian, 939 F.2d 1479, 1487-88 (11th Cir. 1991).

To receive qualified immunity, the public official must show that he was

acting within the scope of his discretionary authority at the time the allegedly

wrongful acts occurred. See Ferraro, 284 F.3d at 1194. On this record, it is

undisputed that Officer Pastor was acting within her discretionary authority. Once

it is established that the defendant was acting within her discretionary authority,

9
“the burden shifts to the plaintiff to show that qualified immunity is not

appropriate.” Id. In evaluating claims of qualified immunity, we apply the two-part

Saucier test: (1) “As a ‘threshold question’, a court must ask, ‘[t]aken in the light

most favorable to the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right?’”; and (2) “If a constitutional

right would have been violated under the plaintiff’s version of the facts, the court

must then determine ‘whether the right was clearly established.’” Id. (quoting

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272

(2001)). This inquiry, in turn, “‘must be undertaken in light of the specific context

of the case, not as a broad general proposition.’” Id. (quoting Saucier, 533 U.S. at

201, 121 S. Ct. at 2156). In Saucier, the Supreme Court noted that “[i]f no

constitutional right would have been violated were the allegations established,

there is no necessity for further inquiries concerning qualified immunity.” 533

U.S. at 201, 121 S. Ct. at 2156. However, if a constitutional right would have been

violated under the plaintiff’s version of the facts, the court must then determine

whether the right was clearly established. See id.

Durruthy argues that Pastor violated his clearly established constitutional

rights under the Fourth Amendment by arresting him without probable cause and

10
by subjecting him to excessive force. We conduct the Saucier analysis separately

for each of Pastor’s claims. See Ferraro, 284 F.3d at 1194.

First, Durruthy says that his arrest was unlawful. Plainly, an arrest without

probable cause violates the right to be free from an unreasonable search under the

Fourth Amendment. See Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th

Cir. 1998) (“[A]n arrest made without probable cause violates the Fourth

Amendment.”). Under federal law, probable cause to arrest exists “when an arrest

is ‘objectively reasonable based on the totality of the circumstances.’” McCormick

v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Ferraro,

284 F.3d at 1195). “This standard is met 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. (internal citation and quotation marks omitted). “Although probable

cause requires more than suspicion, it ‘does not require convincing proof,’ and

‘need not reach the [same] standard of conclusiveness and probability as the facts

11
necessary to support a conviction.’” Ferraro, 284 F.3d at 1195 (internal citations

omitted).5

Moreover, probable cause determinations are generally ex parte

determinations, see, e.g., United States v. R. Enters., Inc., 498 U.S. 292, 298, 111

S. Ct. 722, 726, 112 L. Ed. 2d 795 (1991) (“The same rules that, in an adversary

hearing on the merits, may increase the likelihood of accurate determinations of

guilt or innocence do not necessarily advance the mission of a grand jury, whose

task is to conduct an ex parte investigation to determine whether or not there is

probable cause to prosecute a particular defendant.”), which are made on the basis

of the evidence extant. See United States v. Gonzalez, 969 F.2d 999, 1003 n.6

5
Pastor’s personal motivation for arresting Durruthy is irrelevant to the determination whether
she had probable cause. There is no question that an officer’s subjective intent is immaterial when
there is an objectively reasonable basis for believing that an offense has occurred. See, e.g., Whren
v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996) (“Subjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); United States v.
Holloman, 113 F.3d 192, 194 (11th Cir. 1997) (per curiam) (“[Whren] conclusively refutes the
notion that ulterior motives may invalidate police conduct that is justified on the basis of probable
cause to believe that a violation of law has occurred.”); see also Holland v. City of Portland, 102
F.3d 6, 9-10 (1st Cir. 1996) (following Whren’s holding with respect to subjective intent in probable
cause determinations); United States. v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1998) (same); Rogers
v. Powell, 120 F.3d 446, 453 n.5 (3d Cir. 1997) (same); United States v. Bullock, 94 F.3d 896, 899
(4th Cir. 1996) (same); United States v. Escalante, 239 F.3d 678, 680-81 (5th Cir. 2001) (same);
United States v. Herbin, 343 F.3d 807, 809-810 (6th Cir. 2003) (same); Williams v. Vasquez, 2003
WL 1796030, *4-*5, 62 Fed. Appx. 686, 690-91 (7th Cir. 2003) (same); Johnson v. Crooks, 326
F.3d 995, 998 (8th Cir. 2003) (same); United States v. Ibarra, 345 F.3d 711, 713-14 (9th Cir. 2003)
(same); United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997) (same); United States
v. Bookhardt, 277 F.3d 558, 565-66 (D.C. Cir. 2002) (same); Arkansas v. Sullivan, 532 U.S. 769,
771-72, 121 S. Ct. 1876, 1878, 149 L. Ed. 2d 994 (2001) (rejecting Arkansas Supreme Court’s
finding that the “subjective intent” language in Whren was nonbinding dicta).

12
(11th Cir. 1992) (“[T]he court must decide whether the objective facts available to

the officers at the time of arrest were sufficient.”). Thus, in Pickens v. Hollowell,

for example, we held that two deputies “who otherwise had probable cause to

arrest [the plaintiff] pursuant to facially valid arrest warrants [] did not have a duty

to investigate and decide the potential viability of a defense . . . before arresting

[the plaintiff].” 59 F.3d 1203, 1207 (11th Cir. 1995).

We add that officers who make an arrest without probable cause are still

“entitled to qualified immunity if there was arguable probable cause for the

arrest.” Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999) (citing Lindsey v.

Storey, 936 F.2d 554, 562 (11th Cir. 1991)). Arguable probable cause exists when

“an officer reasonably could have believed that probable cause existed, in light of

the information the officer possessed.” Montoute v. Carr, 114 F.3d 181, 184 (11th

Cir. 1997); see also Jones, 174 F.3d at 1283. As we framed the concept in Lee v.

Ferraro:

Arguable probable cause exists “where reasonable officers in the
same circumstances and possessing the same knowledge as the
Defendant[] could have believed that probable cause existed to
arrest.” Id. (quoting Redd, 140 F.3d at 1382 (internal citations
omitted)). In determining whether arguable probable cause exists,
“[w]e apply an objective standard, asking ‘whether the officer’s
actions are objectively reasonable . . . regardless of the officer’s
underlying intent or motivation.’” Vaughan v. Cox, 264 F.3d 1027,
1036 (11th Cir. 2001) (quoting Montoute, 114 F.3d at 184).

13
 “Arguable probable cause does not require an arresting officer to
prove every element of a crime or to obtain a confession before
making an arrest, which would negate the concept of probable cause
and transform arresting officers into prosecutors.” Scarbrough v.
Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001).

284 F.3d at 1195.

After thorough review of the entire record, we are satisfied that Pastor had

probable cause to arrest Durruthy for violating Fla. Stat. § 316.130,6 and that, in

any event, she had arguable probable cause to effect the Plaintiff’s arrest. Again, §

316.130 provides, in pertinent part, that “[w]here sidewalks are provided, no

pedestrian shall, unless required by other circumstances, walk along and upon the

portion of a roadway paved for vehicular traffic.” Fla. Stat. § 316.130(3). Notably,

no command or direction by the police to leave the streets is required to establish a

violation of this statute.7 Under Florida law, a law enforcement officer may arrest

6
While Durruthy was charged with violating only Fla. Stat. § 843.02, Pastor is shielded
by qualified immunity so long as she had probable cause to arrest Durruthy for any offense. See
Bailey v. Bd. of County Comm’rs of Alachua County, 956 F.2d 1112, 1119 n.4 (11th Cir. 1992)
(“The validity of an arrest does not turn on the offense announced by the officer at the time of the
arrest.”).
7
This is in contrast with the other statutes Pastor has proffered as bases for probable
cause, all of which require an order or request: Fla. Stat. § 843.02 (making it a misdemeanor to
“resist, obstruct, or oppose any officer”); Fla. Stat. § 316.072(3) (making it a misdemeanor “for any
person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement
officer”); and § 54-2 of the Miami City Code (making it unlawful for any person to “walk upon any
street or sidewalk in the city so as to obstruct free passage . . . after a request by a law enforcement
officer to move on so as to cease blocking or obstructing free passage”). Because Pastor had probable
cause to arrest Durruthy for violating Fla. Stat. § 316.130, we need not consider whether these other
statutes provided additional bases for probable cause.

14
a person without a warrant if “[a] violation of chapter 316 has been committed in

the presence of the officer.” Fla. Stat. § 901.15(5). It is undisputed that Durruthy

was walking in the middle of a street paved for vehicular traffic (the busy

intersection of Flagler Street and N.W. 27th Avenue), where sidewalks were

provided, and he was not required to do so by other circumstances. Moreover,

plainly he was in the middle of the busy street at a chaotic time when the police

were attempting to clear the streets, and by his own account, specifically knew that

the officers were trying to clear that very intersection.

The district court nevertheless held that no probable cause existed under §

316.130, reasoning:

The statute is directed at preventing pedestrians from walking among
vehicular traffic. In this case, however, there was no vehicular traffic
in the roadway. Further, [Durruthy] was not a pedestrian in the
normal sense of the word but an obvious member of the media acting
within the scope of his journalistic duties. Under these circumstances,
an arrest pursuant to § 316.130 could not be reasonable.

Durruthy, 235 F. Supp. 2d at 1298. We disagree. First, the statute does not require

that there be vehicular traffic in the roadway at the time of the offense. See Fla.

Stat. § 316.130(3); see also Fla. Stat. § 316.003(42) (defining “roadway” as “[t]hat

portion of a highway improved, designed, or ordinarily used for vehicular travel,

exclusive of the berm or shoulder” (emphasis added)). Nor was it a surprise to

15
anyone at that intersection on the morning of April 22, 2000, that the police had

cleared protesters from the street. Second, the definition of “pedestrian” as “[a]ny

person afoot,” Fla. Stat. § 316.003(28), contains no exception for anyone,

including members of the media. Indeed, at oral argument, Plaintiff conceded that

Durruthy was entitled to no special deference or exception simply because he was

a cameraman.

Simply put, our case law makes clear that probable cause exists whenever

an officer reasonably believes that an offense is being committed. It is therefore

difficult to understand the claim that no probable cause, let alone arguable

probable cause, existed to arrest Durruthy when the undisputed facts show him to

have been in unmistakable violation of Fla. Stat. § 316.130(3). The wording of

that provision says nothing about giving exemptions to people who violate the

command of the statute when its intended purpose is otherwise satisfied. A driver

who runs a red light when no other cars or pedestrians are around is not exempt

from a traffic law requiring him to stop, even though the obvious purpose of the

law -- preventing accidents -- may be moot at the time. Section 316.130(3)

unambiguously says that “[w]here sidewalks are provided, no pedestrian shall,

unless required by other circumstances, walk along and upon the portion of a

roadway paved for vehicular traffic.” No one has denied that Durruthy did just

16
that. Nor is there any suggestion in the record that circumstances somehow

required or compelled him to walk in the intersection.

The heart of Durruthy’s argument is that there was no probable cause for his

arrest because he had permission to be in the street. The first problem with this

contention is that there is no evidence Durruthy had express permission to be in

the street at the time and location of the arrest. His evidence of “permission” is

vague, general, and stated at the highest order of abstraction. The most that can be

said is that other unnamed officers allowed him to be in unspecified streets, at

unspecified locations, and under unexplained circumstances, earlier that morning,

and that in the preceding four months he had gotten the implied and express

permission of still other unnamed officers to shoot pictures in the street at

unspecified locations and under unexplained circumstances.

In the second place, there is no evidence that Pastor knew other officers

previously had allowed Durruthy to be in the street under unspecified

circumstances, and, significantly, probable cause is determined based on the “facts

and circumstances within the officer’s knowledge.” McCormick, 333 F.3d at 1243;

see also Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir. 2002) (holding that the

probable cause standard is met if, “at the moment the arrest was made, ‘the facts

and circumstances within [the officers’] knowledge and of which they had

17
reasonably trustworthy information were sufficient to warrant a prudent man in

believing’ that [the suspect] had committed or was committing an offense.”

(emphasis added) (quoting Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534,

116 L. Ed. 2d 589 (1991))); see also Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir.

2003) (same); Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003)

(same); Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003) (same); Jocks v.

Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (same); United States v. Fiasconaro,

315 F.3d 28, 34-35 (1st Cir. 2002) (same); United States v. Wesley, 293 F.3d 541,

545 (D.C. Cir. 2002) (same); United States v. Henderson, 241 F.3d 638, 648 (9th

Cir. 2000) (same); McFarland v. Childers, 212 F.3d 1178, 1186 (10th Cir. 2000)

(same); Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999) (same); Sanders v.

Sears, Roebuck & Co., 984 F.2d 972, 976 (8th Cir. 1993) (same); Martin v.

Thomas, 973 F.2d 449, 453 (5th Cir. 1992) (same).

Finally, even if we could somehow impute such knowledge to Pastor, we

can discern no grounds for saying that she could not enforce Fla. Stat. §

316.130(3) simply because other officers in unspecified circumstances had not

enforced it. The aforementioned driver who runs a red light does not get a free

pass just because he ran another red light earlier in the day and was not stopped

for that violation. Notably, mere selective enforcement of a law is not

18
unconstitutional, and Durruthy has not even alleged selective prosecution based on

improper grounds. See United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir.

1980) (“Though selective prosecution, if based on improper motives, can violate

constitutional guarantees of equal protection, selective enforcement in and of itself

is not a constitutional violation. Therefore, to support a defense of selective

prosecution, one must establish (1) that others similarly situated have not

generally been prosecuted and (2) that the government’s discriminatory selection

of him is invidious, or in bad faith that is based on constitutionally impermissible

considerations, such as race or religion.” (citing Oyler v. Boles, 368 U.S. 448, 456,

82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962), and United States v. Johnson, 577 F.2d

1304, 1308 (5th Cir. 1978))).8

Durruthy also points to an internal City of Miami Police Department Order

saying that “[n]o warrantless arrest of media personnel for non-felonious acts

arising out of the pursuit of the news gathering function will be made without the

express authority of the senior on-duty commanding officer or the staff duty

officer.” R1-56, exhibit G. We are unable to understand how Pastor’s failure to

comply with this internal police department guideline vitiates probable cause. By

8
Fifth Circuit decisions rendered prior to September 30, 1981 are binding precedent on this
court. See Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981).

19
its own terms, the guideline doesn’t alter the elements of § 316.130, provide an

affirmative defense, create any enforceable rights in a defendant, or otherwise

undermine probable cause. Cf. United States v. Beard, 41 F.3d 1486, 1489 (11th

Cir. 1995) (holding that the Department of Justice’s dual prosecution policy “is an

internal policy [of self-restraint] which confers no enforceable rights on a criminal

defendant”). Nor does it address precisely how an officer should react to the

circumstances of directly seeing a violation of § 316.130 on a busy street at a

chaotic time.

We add that for qualified immunity purposes we are concerned only with

the constitutional requirements of probable cause. See Craig v. Singletary, 127

F.3d 1030, 1044 (11th Cir. 1997) (holding that, for purposes of determining

whether probable cause exists, “we are only concerned with constitutional

requirements . . . not with any local policies or with any strategic decisions of law

enforcement officers”). The fact that Pastor may have violated an internal

guideline may subject her to internal sanction, but it does not undermine objective

facts -- the Plaintiff was walking in the middle of a busy intersection at a chaotic

time with specific knowledge that the police were trying to clear that street, and he

was not required to be in the street -- that otherwise establish probable cause, let

20
alone arguable probable cause. Simply put, the internal guideline does not

convert an illegal act suddenly into a legal one.

Moreover, even though we believe Pastor had probable cause to arrest

Durruthy for violating Fla. Stat. § 316.130, she would also be “entitled to

qualified immunity if there was [even] arguable probable cause for the arrest.”

Jones, 174 F.3d at 1283 (emphasis added). Here, Pastor was faced with making a

close call on a difficult day, under chaotic circumstances. She had no knowledge

that Durruthy previously had been allowed, by unknown officers and under

unspecified conditions, to shoot pictures in the street. A reasonable officer could

have believed, in light of the information Pastor possessed, that she had probable

cause. See Montoute, 114 F.3d at 184 (holding that arguable probable cause exists

when “an officer reasonably could have believed that probable cause existed, in

light of the information the officer possessed”).

We add that even if Durruthy had actually alleged the violation of a

constitutional right, such a violation was not clearly established. A party may

show that the law was clearly established, first by pointing to “‘a materially similar

case [that has] already decided that what the police officer was doing was

unlawful.’” Lee v. Ferraro, 284 F.3d at 1198 (citation omitted). A party may also

demonstrate the existence of clearly established law when “the words of the

21
pertinent federal statute or federal constitutional provision . . . [are] specific

enough to establish clearly the law applicable to particular conduct and

circumstances and to overcome qualified immunity, even in the total absence of

case law. This kind of case is one kind of ‘obvious clarity’ case.” Vinyard v.

Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (footnote omitted) (emphasis in

original). Thus, “the words of a federal statute or federal constitutional provision

may be so clear and the conduct so bad that case law is not needed to establish that

the conduct cannot be lawful.” Id. (emphasis added).

No caselaw gave Pastor fair warning that she would be charged with the

knowledge that other officers previously allowed Durruthy to film in the street, or

that she somehow lacked probable cause to arrest Durruthy for violating § 316.130

because of that “permission.” See Williams v. Consol. City of Jacksonville, 341

F.3d 1261, 1270 (11th Cir. 2003) (noting that in determining whether the

unlawfulness of an official’s actions was clearly established, “the salient question .

. . is whether the state of the law [at the time of the unconstitutional act] gave [the

official] fair warning that [her] alleged treatment of [the plaintiff] was

unconstitutional” (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508,

2516, 153 L. Ed. 2d 666 (2002)). Nor was Pastor on notice that an internal

departmental guideline requiring her to obtain a superior officer’s approval before

22
making a misdemeanor arrest rendered an arrest otherwise based on probable

cause unconstitutional or somehow vitiated that probable cause. No case to which

we have been cited, or that we can find, even remotely suggests that the possible

violation of an internal law enforcement guideline strips an officer of qualified

immunity for an arrest founded on sufficient cause. In this context, we are

reminded of the Supreme Court’s admonition in County of Sacramento v. Lewis:

Like prison officials facing a riot, the police on an occasion calling
for fast action have obligations that tend to tug against each other.
Their duty is to restore and maintain lawful order, while not
exacerbating disorder more than necessary to do their jobs. They are
supposed to act decisively and to show restraint at the same moment,
and their decisions have to be made “in haste, under pressure, and
frequently without the luxury of a second chance.”

523 U.S. 833, 853, 118 S. Ct. 1708, 1720, 140 L. Ed. 2d 1043 (1998) (citation

omitted). Moreover, nothing found in the language of § 316.130 or in the

command of the Fourth Amendment states with “obvious clarity” that Pastor’s

conduct in arresting Durruthy was unlawful. See Vinyard v. Wilson, 311 F.3d at

1350.9

9
Parallels between this case and Hope, 536 U.S. 730, 122 S. Ct. 2508, are difficult to discern.
There, the Supreme Court found a clear violation of the Eighth Amendment right to be free from
cruel and unusual punishment when corrections officers handcuffed an inmate to a hitching post for
seven hours in the hot sun without a bathroom break, all the while taunting the inmate about his
thirst. Despite the absence of any emergency, the corrections officers knowingly subjected Hope to
a substantial risk of physical harm and to unnecessary pain. Under these circumstances the Supreme
Court observed that “[a]rguably, the violation was so obvious that our own Eighth Amendment cases
gave the respondents fair warning that their conduct violated the Constitution. Regardless, in light

23
 Durruthy also claims that Pastor used excessive force when she arrested

him. “The Fourth Amendment’s freedom from unreasonable searches and seizures

encompasses the plain right to be free from the use of excessive force in the course

of an arrest.” Ferraro, 284 F.3d at 1197 (citation omitted). “The question is

whether the officer’s conduct is objectively reasonable in light of the facts

confronting the officer.” Vinyard v. Wilson, 311 F.3d at 1347. We begin by

observing that “[w]hen an officer lawfully arrests an individual for the commission

of a crime, no matter how minor the offense, the officer is entitled under

controlling Supreme Court precedent to effectuate a full custodial arrest.” Ferraro,

284 F.3d at 1196. Indeed, under Florida law, like under federal law, a full

custodial arrest is allowed even when the offense is only a misdemeanor. See Fla.

Stat. § 901.15(1) (“A law enforcement officer may arrest a person without a

warrant when . . . [t]he person has committed a felony or misdemeanor . . . in the

presence of an officer.”). In this inquiry, we consider such factors as “‘the severity

of the crime at issue, whether the suspect poses an immediate threat to the safety

of binding Eleventh Circuit precedent, an Alabama Department of Corrections (ADOC) regulation,
and a DOJ report informing the ADOC of the constitutional infirmity in its use of the hitching post,
we readily conclude that the respondents’ conduct violated ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Id. at 741-42 (citing Harlow
v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982). No such notice existed in the
case before us, nor were the police acts in arresting Durruthy for being in the middle of a busy
intersection (in violation of Fla. Stat. § 361.130(3)) as they tried to keep the streets clear on a chaotic
and riotous day remotely like the egregious conduct proscribed in Hope.

24
of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.’” Ferraro, 284 F.3d at 1197-98 (quoting Graham v. Connor,

490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989)).

The district court determined that the force applied by Pastor was illegally

disproportionate because no force was acceptable under these circumstances. See

Durruthy, 235 F. Supp. 2d at 1300. We disagree. This circuit has made clear that

some use of force by a police officer when making a custodial arrest is necessary

and altogether lawful, regardless of the severity of the alleged offense. See

Ferraro, 284 F.3d at 1197 (“‘Fourth Amendment jurisprudence has long

recognized that the right to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat thereof to effect

it.’” (quoting Graham, 490 U.S. at 396, 109 S. Ct. at 1871-72)). Quite simply, the

police were allowed to use some force in effecting the Plaintiff’s arrest.

Furthermore, “the application of de minimis force, without more, will not support

a claim for excessive force in violation of the Fourth Amendment.” See Nolin v.

Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). Here, even if the force applied by

Pastor in effecting the arrest -- forcing Durruthy down to the ground and placing

him in handcuffs -- was unnecessary, plainly it was not unlawful. The amount of

force used was de minimus. In fact, the quantum of force used here was far less

25
than our Court has sustained in other contexts. See id. at 1255 (finding force to be

de minimus where an officer grabbed the plaintiff “from behind by the shoulder

and wrist, threw him against a van three or four feet away, kneed him in the back

and pushed his head into the side of the van, searched his groin area in an

uncomfortable manner, and handcuffed him”); see also Jones v. City of Dothan,

121 F.3d 1456, 1460 (11th Cir. 1997) (finding the force used to be minor where

officers slammed the plaintiff against a wall, kicked his legs apart, required him to

put his arms above his head, and pulled his wallet from his pants pocket).

Notably, Durruthy had not been restrained at the time the force was applied,

distinguishing the instant case from two cases on which the district court relied.

See Ferraro, 284 F.3d at 1191, 1198-99 (finding excessive force where the

plaintiff was already handcuffed when an officer slammed her head on the car);

Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000) (concluding

that the force was excessive where a police officer released an attack dog on the

plaintiff while the plaintiff was lying on the ground and the police officer’s gun

was pointed at the plaintiff’s head). The pivotal question in this case is really

whether the arrest was lawfully founded on probable cause (or at least arguable

probable cause). We are satisfied on this point. Moreover, on the facts presented

here, we also find that the physical restraint and handcuffing of the Plaintiff was

26
likewise lawful.10 The force used to effect the Plaintiff’s arrest was de minimus,

not excessive under the Fourth Amendment. Because we find no constitutional

violation, we need not address whether the constitutional right at issue was clearly

established.

Accordingly, we reverse the district court’s denial of the defense of

qualified immunity and remand for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

10
Durruthy also argues that the force used aggravated a pre-existing shoulder injury. We
have observed, however, in a similar context that “[w]hat would ordinarily be considered reasonable
force does not become excessive force when the force aggravates (however severely) a pre-existing
condition the extent of which was unknown at the time.” Rodriguez v. Farrell, 280 F.3d 1341, 1353
(11th Cir. 2002). On this record, there is no evidence that Pastor, before the arrest, had any
knowledge of Durruthy’s pre-existing condition.

27
STAHL, Circuit Judge, dissenting:

The defense of qualified immunity attempts to strike a balance between the

need for a remedy to protect the rights of citizens from government excess and the

need for government officials to be able to carry out their discretionary functions

without fear of constant litigation. GJR Investments, Inc. v. County of Escambia,

Fla., 132 F.3d 1359, 1366 (11th Cir. 1998). In this case, we address the violation

of a clearly established constitutional right by a police officer who had more than

enough awareness of the surrounding circumstances to know that her arrest of

plaintiff Albert Durruthy, and the force used in so doing, was not only

unnecessary, but unlawful. Whether under a standard of probable cause or

arguable probable cause to arrest, the facts of this case, made all the more apparent

and troubling by videotape evidence of the arrest, preclude any notion that Officer

Pastor, or any reasonable police officer, could have believed that probable cause to

arrest existed. Qualified immunity is inappropriate here, especially at the

summary judgment stage. Accordingly, with respect, I dissent.

First, we must consider the threshold issue of whether Durruthy's

allegations, if taken as true, establish a violation of his constitutional right against

unlawful arrest under the Fourth Amendment of the federal Constitution. See

Hope v. Pelzer, 536 U.S. 730 (2002). The evidence shows that there simply was

28
no reason for Durruthy's arrest. The videotape squarely refutes Pastor's initial

stated basis for the arrest of Durruthy, which was allegedly his obstruction of an

officer's arrest of Bruce Bernstein, an NBC cameraman, and his failure to obey

another officer's order to leave the street. See Fla. Stat. § 843.02. There were no

acts of civil obedience taking place and no protestors or moving vehicles in the

street. Moreover, the police were not clearing the area in which Durruthy was

filming. Pastor herself was standing in a line of officers approximately sixty feet

away from Durruthy. She left the line, without the permission of any superior

officer, and rushed over to Durruthy though she plainly saw that he was following

another officer's direct order to "get off the street." She admitted that she was

aware that Durruthy was a member of the press and saw that he was carrying a

large television camera, but nonetheless helped pin him to the ground and forcibly

secure him by wrenching his right arm behind his back and pressing his head to

the sidewalk. Though Durruthy repeatedly pled with Pastor and the other officers

that he would go peacefully and that his "bad arm" would not bend backward,

Pastor and the other officers did not relent.

In addition, George Bouza--Durruthy's "sound man" who recorded audio of

the events--approached the scene, attempted to inform the attending police

officers, including Pastor, that he was Durruthy's partner, and convinced the

29
officers to give him Durruthy's camera, which they had taken from Durruthy

before forcing him to the ground. Yet, Pastor continued to pin Durruthy to the

sidewalk and proceed with the arrest without regard to the obvious pain and injury

she was inflicting even though Durruthy was neither resisting the officers nor

presenting any danger. Pastor knew all of this. Thereafter, Durruthy was held in a

police van without medical care for six hours before being released. A prudent

officer with Pastor's knowledge of the situation, under the circumstances, could

not have believed that Durruthy had committed, was committing, or was about to

commit an offense which justified arrest.

Moreover, when Durruthy and his criminal defense attorney met with the

State Attorney several weeks after the arrest, Durruthy's counsel showed the State

Attorney the videotape of the arrest. The State Attorney immediately decided to

drop all charges against Durruthy, and asked him to sign a release of liability in

favor of the Miami Police Department and its officers. Durruthy refused to sign

the release.

In a thoughtful opinion, the district court concluded that a reasonable jury

could find that Pastor arrested Durruthy without probable cause. See Durruthy v.

City of Miami, 235 F. Supp.2d 1291 (S.D. Fla. 2002). The court further found that

there was sufficient evidence to show that Pastor did not even have arguable

30
probable cause, that is, there existed sufficient proof that "no reasonable police

officer in the position of Pastor could have believed that there was probable cause

to arrest Plaintiff." Id. at 1296-97.

The majority's decision adopts Pastor's argument made to the district court

that even if there was no probable cause or arguable probable cause to arrest

Durruthy for obstructing or resisting the officers, there was probable cause or at

least arguable probable cause to arrest him under Fla. Stat. § 316.30. The district

court found this argument unconvincing because § 316.130 "is directed at

preventing pedestrians from walking among vehicular traffic" and "there was no

vehicular traffic in the roadway." Durruthy, 235 F. Supp.2d at 1298. The majority

points out that the statute does not require that there be vehicular traffic in the

roadway at the time of the offense and that it contains no exception for anyone,

including members of the media. Indeed, Durruthy acknowledges that he was not

entitled to a special exception because he was a cameraman. The fact that he was

a cameraman, however, and that he was performing his duties as a cameraman at

the time of the arrest goes to the core of the qualified immunity analysis.

And that is where the district court is correct and the majority of this Court

wrong with respect to Pastor's arguable probable cause to arrest under § 316.130.

Again, the district court pointed out that "[t]he statute is directed at preventing

31
pedestrians from walking among vehicular traffic." 235 F. Supp.2d at 1298.

Notwithstanding what the statute does and does not require, "an arrest pursuant to

§ 316.130 could not be reasonable" given that at the time of the arrest, Pastor

knew that "there was no vehicular traffic in the roadway" and that Durruthy was

"an obvious member of the media acting within the scope of his journalistic

duties." Id. In my view, the district court correctly analyzed the applicability of §

316.130 in terms of whether Pastor, at the time of the arrest and given her

knowledge of the circumstances, had arguable probable cause to arrest based on §

316.130. The inquiry is not whether Durruthy actually violated the statute or

whether the elements of the statute were met, but whether it was objectively

reasonable for Pastor to arrest Durruthy given the obvious circumstances. Pastor's

invocation of § 316.130 fails to amount even to an after-the-fact excuse for her

actions. Durruthy was charged only with obstruction of an officer under Fla. Stat.

§ 843.02, and that charge was dropped immediately by the State Attorney upon

viewing the videotape of the arrest. Pastor never articulated § 316.130 as the

purported basis for the arrest at the time of the arrest and raised it as a justification

for the arrest only after the commencement of this litigation. Though I

acknowledge that an arrest is not rendered invalid by the fact that the basis for the

arrest, though legitimate, was merely pretextual, see Whren v. United States, 517

32
U.S. 806, 813 (1996), we should "be troubled by an argument suggesting that a

legitimate basis for an arrest identified only after the arrest would provide

sufficient grounds therefor." Rogers v. Powell, 120 F.3d 446, 453 n.5 (3d Cir.

1997) (emphasis added). Moreover, it is patently obvious to any observer of the

videotape evidence that the sole reason for Pastor's conduct was that she and the

other officers wanted Durruthy to stop filming the arrest of the NBC cameraman.

No one has argued that the mere act of Durruthy's filming is a crime, unlike the

scenarios in Whren, United States v. Holloman, 113 F.3d 192 (11th Cir. 1997),

and other cases cited by the majority where the officers' purported bases for arrest

were obvious pretexts for suspicion of drug possession, murder, and other crimes.

The majority states that "[t]he heart of Durruthy's argument is that there was

no probable cause for his arrest because he had permission to be in the street" and

proceeds to discredit Durruthy's testimony as "vague, general, and stated at the

highest order of abstraction." Given that the case is at the summary judgment

stage, we must resolve all issues of material fact in favor of Durruthy before

determining the legal question of whether the defendant is entitled to qualified

immunity under Durruthy's version of the facts. See Lee v. Ferraro, 284 F.3d

1188, 1190 (11th Cir. 2002). Durruthy's testimony on whether he had permission

to be in the street still leaves a genuine issue of material fact as to whether Pastor

33
was aware, with notice that Durruthy (and the media overall) was authorized to be

in the street, that she was violating a clearly established federal right when she

arrested him. See Penn v. City of Miami, 1999 WL 1050059, *18 (S.D. Fla. Sept.

7, 1999).

As to the issue of whether Durruthy's constitutional right against illegal

arrest was "clearly established," the majority relies on this Circuit's "rigid gloss" of

how exactly such a right is "clearly established." Hope, 536 U.S. at 739.

Durruthy has argued that Pastor's violation of a Miami Police Department internal

policy shows Pastor's knowledge of the unlawfulness of her actions. The policy

reads:

No warrantless arrest of media personnel for non-felonious acts
arising out of the pursuit of the news gathering function will be made
without the express authority of the senior on-duty commanding
officer or the staff duty officer.

City of Miami's Office Bulletin #00-4 dated January 14, 2000.

Chief of Police Raul Martinez explained that the Department's media policy

granted a higher degree of courtesy to members of the media than to average

citizens and that if a member of the media complies with a police officer's request

to move, such compliance should be the end of the incident.

34
 The majority claims that it cannot find any precedent that "even remotely

suggests that the possible violation of an internal law enforcement guideline"

defeats an official's qualified immunity. Hope, however, a decision by the United

States Supreme Court that directly addresses this Circuit's strict view of qualified

immunity, stands in part on guidelines and regulations issued by law enforcement.

Hope, an inmate assigned to Limestone Correctional Facility in Alabama, was

twice handcuffed to a "hitching post" for several hours as punishment for

disruptive behavior. This Court found that though "cuffing an inmate to a hitching

post for a period of time extending past that required to address an immediate

danger or threat is a violation of the Eighth Amendment," Hope v. Pelzer, 240

F.3d 975, 980 (11th Cir. 2001), the defendant prison guards were still entitled to

qualified immunity because "there was no clear, bright-line test established [at the

time of the violation] that would survive our circuit's qualified immunity analysis."

Id. at 981. This Court went on to explain that "it is important to analyze the facts

in...[prior] cases, and determine if they are 'materially similar' to the facts in the

case in front of us." Id. "[A]nalogous" facts, the Court concluded, are not enough.

Id. Instead, the facts must be "'materially similar' to Hope's situation." Id.

35
 The Supreme Court reversed and rejected this Court's analysis and asserted

that "this rigid gloss on the qualified immunity standard . . . is not consistent with

our cases." Hope, 536 U.S. at 739. The Court continued:

officials can still be on notice that their conduct violates established
law even in novel factual circumstances. . . . Although earlier cases
involving "fundamentally similar" facts can provide especially strong
support for a conclusion that the law is clearly established, they are
not necessary to such a finding. The same is true of cases with
"materially similar" facts. ... [T]he salient question that the Court of
Appeals ought to have asked is whether the state of the law in 1995
gave respondents fair warning that their alleged treatment of Hope
was unconstitutional.

Id. at 741.

The Court, as part of its analysis, considered (1) a regulation issued by the

Alabama Department of Corrections (ADOC) and (2) a report and advisory letter

issued by the U.S. Department of Justice to the ADOC before the incidents of

Hope's mistreatment. The ADOC regulation authorized the use of the hitching

post when an inmate refused to work or was otherwise disruptive to the prison

work squad. It provided that an activity log should be completed for each such

inmate, detailing his responses to offers of water and bathroom breaks every

fifteen minutes. The regulation also stated than an inmate had to be released back

into the work squad whenever he told an officer that he was ready to go back to

36
work. The log was not completed for Hope's second shackling, which lasted for

seven hours, and the evidence showed that the periodic offers contemplated by the

regulation were never made to Hope. The evidence also showed that the

regulation was frequently ignored for other prisoners. The Court concluded that

the regulation and the fact that the prison guards "could ignore it with impunity"

provided "strong support for the conclusion that they were fully aware of the

wrongful character of their conduct." Id. at 744.

In addition, the Court asserted that "its conclusion 'that a reasonable person

would have known' [was] buttressed" by a report and letter sent to the ADOC from

the U.S. Department of Justice in which the DOJ specifically advised that the

systematic use of the hitching post constituted improper corporal punishment. See

id. at 745. The Court concluded that though the DOJ's views may not have been

communicated to the prison guards, the "exchange lends support to the view that

reasonable officials in the ADOC should have realized that the use of the hitching

post under the circumstances alleged by Hope violated the Eighth Amendment

prohibition against cruel and unusual punishment." Id.

The majority asserts that the existence of the Miami Police Department's

internal guideline "does not undermine objective facts" surrounding the scene of

the incident. Indeed, the guideline "does not convert an illegal act suddenly into a

37
legal one." It does, however, bear strongly on Pastor's knowledge of the

circumstances, of how she should act in such circumstances, and ultimately on the

issue of whether a reasonable police officer with her knowledge would have

probable cause to arrest Durruthy. Again, Pastor admits that she knew Durruthy

was a member of the media. Her knowledge of the guideline put her on clear

notice that she was not supposed to arrest a newsman without permission from a

supervising officer. As the district court correctly assessed, "When an obvious

member of the media approaches a police officer in a cleared street, is instructed to

return to the sidewalk, and complies with the instruction, a police officer should be

aware that a custodial arrest based on interference with a police officer is illegal."

235 F. Supp.2d at 1298. It is on these objective facts that the Miami PD's internal

guideline sheds additional light in favor of finding against qualified immunity at

the summary judgment stage.

Notwithstanding the issue of whether and how much notice the Miami PD's

internal guideline provided, this case is very similar to Holmes v. Kucynda, 321

F.3d 1069 (11th Cir. 2003), where Atlanta police arrested the plaintiff, Holmes,

for constructive possession of cocaine and marijuana. At the time of the arrest, the

police had reason to believe that Holmes was just a visitor in the apartment where

the drugs were discovered. She specifically informed the officers that she did not

38
reside in the apartment, her suitcases still had clothes in them, her toiletry items

were found in a travel bag, and her driver's license indicated that she lived in

Norcross, Georgia. Id. at 1081. Other than her mere presence in the house, the

evidence showed nothing from which to infer that Holmes had knowledge of,

control or dominion over, the drugs. See id. Thus, there was reason to know that

she was not in possession of the drugs. In reversing the district court's award of

summary judgment to the arresting officers, this Court observed that similar

reported cases need not be identified after Hope. Id. at 1078. Under the Eleventh

Circuit's "arguable probable cause" standard, this Court inquired, taking the facts

in the "light most favorable to Holmes," id. at 1081, whether a reasonable officer

would have known there existed no arguable probable cause to make the arrest.

The Court held that "it was not even arguably reasonable for Officer Rolfe to

arrest Holmes for constructive possession of illegal contraband." Id. Hence,

qualified immunity was not proper at the summary judgment stage.

The unique facts here on their own establish the egregiousness and illegality

of Officer Pastor's conduct. Pastor "did not need specific case law to give her fair

warning that an arrest in these circumstances could violate Plaintiff's Fourth

Amendment rights." Durruthy, 235 F. Supp.2d at 1298. The majority opinion sets

the bar prohibitively high and tips the balance contemplated by qualified immunity

39
away from the Constitution. Aggrieved individuals will have less incentive to

challenge unwarranted and unconstitutional government actions because monetary

compensation for their harms is unavailable. In the end, unconstitutional

government action is more likely to go unchallenged and unchanged. That is our

ultimate concern.

Hence, in my view, the district court did not err by denying Pastor qualified

immunity at the summary judgment stage and I would affirm that decision.

40