Omar Paez v. Claudia Mulvey

Opinion

Case: 16-16863 Date Filed: 02/08/2019 Page: 1 of 29

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16863 ________________________

D.C. Docket No. 1:15-cv-20444-JAL

OMAR PAEZ,

Plaintiff - Appellee,

YOVANY DIAZ, JON ANTERIO, LYNDEAN PETERS,

Consolidated Plaintiffs - Appellees,

versus

CLAUDIA MULVEY, an individual, JOHN LOYAL, KELLY SULLIVAN, an individual, ROBERT E. BREEDEN, an individual,

Defendants - Appellants,

FLORIDA DEPARTMENT OF LAW ENFORCEMENT, et al.,

Defendants. Case: 16-16863 Date Filed: 02/08/2019 Page: 2 of 29

________________________

Appeals from the United States District Court for the Southern District of Florida ________________________

(February 8, 2019)

Before CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, ∗ District Judge.

MARCUS, Circuit Judge:

In 2011, Sergeant Omar Paez, Sergeant Lyndean Peters, and Officer Yovany

Diaz (“the Appellees”) of the Golden Beach Police Department were arrested on

various charges of public corruption. The officers were accused of, among other

things, fraudulently failing to report off-duty police work that would have required

them to pay administrative fees to the Department. The officers were never tried

and the criminal charges were dropped more than three years later. They now say

the arresting officers, Detective John Loyal of the Miami-Dade Police

Department’s (“MDPD”) Public Corruption Investigations Bureau, and Special

Agent Claudia Mulvey of the Florida Department of Law Enforcement (“FDLE”),

as well as Loyal and Mulvey’s supervisors, Sergeant Kelly Sullivan (MDPD) and

Supervisory Agent Robert Breeden (FDLE), violated their constitutional rights by

intentionally omitting exonerating information from the probable cause affidavits

∗ The Honorable Eleanor L. Ross, United States District Judge for the Northern District of Georgia, sitting by designation. 2 Case: 16-16863 Date Filed: 02/08/2019 Page: 3 of 29

that secured their arrest warrants. The district court denied Loyal, Mulvey, and

their supervisors (“the Appellants”) the protection of qualified immunity. But even

if the omitted information had been included in the affidavits, there would still

have been probable cause to believe each of the Appellees had engaged in a

scheme to defraud in violation of Florida Statute § 817.034(4). Thus, there was no

constitutional error in the officers’ arrests pursuant to warrants based on those

affidavits, and Loyal and Mulvey, as well as their supervisors, were entitled to

qualified immunity.

I.

A.

Appellees Paez, Peters, and Diaz were police officers in the Golden Beach

Police Department (“GBPD”) in the late 2000s. MDPD Detective John Loyal and

FDLE Special Agent Claudia Mulvey were assigned to investigate alleged

misconduct at the GBPD. Loyal and Mulvey jointly submitted probable cause

affidavits to a judge sitting in Florida’s Eleventh Judicial Circuit Court in Miami-

Dade County that led to the issuance of arrest warrants for Paez, Peters, and Diaz.

All three were arrested in early 2011 and subsequently released on bond. The

criminal charges against them were dropped by the State Attorney’s Office and the

case was dismissed in March 2014. The issue before us now is whether those

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arrests violated the Fourth Amendment because of exculpatory information left out

of the warrant affidavits.

Each probable cause affidavit outlined two types of allegedly criminal

behavior. First, because Golden Beach Police Department official time logs and

outside employer time logs for off-duty work showed work performed during the

same hours, the affiants averred that Paez, Peters, and Diaz were paid for off-duty

work while simultaneously billing hours for work performed at the GBPD. In

addition, time logs taken from some outside employers revealed off-duty work that

was not recorded by the GBPD. The Town of Golden Beach (“the Town”)

collected a five-dollar-per-hour administrative fee for off-duty police work to

cover costs like insurance and the use of police vehicles. Because the invoices

Paez, Peters, and Diaz submitted to the GBPD for off-duty work showed fewer

hours than the time records kept by their off-duty employers, the affiants said that

Paez, Peters, and Diaz had avoided payment of the required administrative costs.

According to the Paez probable cause affidavit, signed by Loyal and

Mulvey, Paez had worked 247.5 hours of unrecorded off-duty work, which would

have required him to pay $1,237.50 in administrative fees to the Town. The

affidavit also identified two occasions on which Paez worked off-duty for private

employers during the same hours he was said to have worked for the GBPD,

resulting in $212.49 of apparent “double compensation” from the Department. The

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affidavit urged that there was probable cause to charge Paez with one count of an

Organized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3)

and one count of Grand Theft in violation of Florida Statute § 812.014(2)(c).

The Peters affidavit, also signed by Loyal and Mulvey, found that Peters

engaged in 199.5 hours of unrecorded off-duty work, which would have required

him to pay $997.50 in administrative fees to the Town. The affidavit also

identified eleven occasions on which Peters worked off-duty for private employers

during hours he was listed as having worked for the GBPD, resulting in $1,380.12

of apparent “double compensation” from the Department. The affidavit said there

was probable cause to charge Peters with one count of an Organized Scheme to

Defraud in violation of Florida Statute § 817.034(4)(a)(3), eleven counts of

Official Misconduct in violation of Florida Statute § 838.022, one count of Grand

Theft in violation of Florida Statute § 812.014, and one count of False and

Fraudulent Insurance Claims in violation of Florida Statute § 817.234. 1

1 This count related only to Peters and was not connected in any way to the other fraud and official misconduct charges. The affidavit averred that Peters had committed insurance fraud by submitting a $6,100 insurance claim for replacement of a police canine. Sergeant Peters had been rear-ended by a drunk driver and submitted claims to the driver’s insurance company for Peters’ personal injury in the amount of $10,000, and for $10,000 in property damage on behalf of the Town, which included $3,900 in damages to a police vehicle and $6,100 for the replacement of the police canine he said had to be retired due to injuries sustained in the accident. The affidavit claimed that, according to veterinary records, the canine had “exhibited some soreness” but had not “sustain[ed] any injuries” in the accident that led to the insurance claim. Instead, the treating veterinarian had previously diagnosed a spinal condition and had recommended restricted duty or retirement for the canine before the car accident.

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Finally, the Diaz affidavit, also signed by Loyal and Mulvey, identified 344

hours of unrecorded off-duty work, which would have required the payment of

$1,720 in administrative fees to the Town. The affidavit also identified five dates

on which Diaz worked off-duty for private employers during hours he was listed as

having worked for the GBPD, resulting in $312.00 of apparent “double

compensation” from the Department. The affidavit claimed that there was probable

cause to charge Diaz with one count of an Organized Scheme to Defraud in violation

of Florida Statute § 817.034(4)(a)(3), two counts of Official Misconduct in violation

of Florida Statute § 838.022, and one count of Grand Theft in violation of Florida

Statute § 812.014(2)(c).

B.

After the criminal charges against them were dropped by the State Attorney,

Paez, Peters, and Diaz sued Loyal, Mulvey, Breeden, Sullivan, Miami-Dade

County, the FDLE, and the Town of Golden Beach in Florida’s Eleventh Judicial

Circuit.2 The lawsuits were promptly removed to the United States District Court

The civil rights complaint alleged that based on veterinary records and the accident report available to Mulvey and Loyal during their investigation, it was clear the dog had been injured in the accident and that Peters had received no personal monetary benefit from the insurance payout. Because we find there was probable cause to believe Peters engaged in an organized scheme to defraud, we need not address whether there was probable cause to believe Peters had engaged in insurance fraud as well. See infra at 13–14. 2 The district court dismissed the claims against FDLE and Miami-Dade County, and Plaintiffs withdrew their claim against the Town. Those claims are not relevant to this appeal. 6 Case: 16-16863 Date Filed: 02/08/2019 Page: 7 of 29

for the Southern District of Florida, where they were consolidated and transferred

to a single district judge. Each of the Appellees brought six claims relevant to this

appeal: four § 1983 claims alleging that each of the four Appellants violated their

Fourth Amendment rights by initiating a malicious prosecution, as well as state

common law malicious prosecution claims against Loyal and Sullivan.

In relevant part, the complaint urged that the affidavits submitted by Mulvey

and Loyal should have included additional -- and importantly, exonerating --

information known to the affiants. This information, the complaint said, would

have revealed that their conduct was not criminal. As for the unpaid administrative

fees, the complaint alleged that the GBPD “had no authority” to charge the fees to

the officers. In addition, the Appellees “had paid, and in fact had actually

overpaid, the claimed administrative fees.” Meanwhile, the claimed incidents of

overlapping on-duty and off-duty work, the complaint further alleged, represented

the practice of using “flex time” to avoid overtime billing, a practice “well known

to, and condoned by” the GBPD. That is, while the records of hours worked at the

GBPD did not reflect the actual hours worked, the Department allowed its law

enforcement officers to engage in this practice.

The complaint also asserted that Mulvey and Loyal knew that the officers’

conduct was not criminal or improper. It referenced five relevant pieces of omitted

evidence:

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[D]uring the investigation, Mulvey and Loyal: (1) were given a copy of the [Collective Bargaining Agreement for the GBPD], that clearly and by its express terms, did not authorize Golden Beach to charge its police officers the administrative fees but only authorized the off-duty employers to be charged; (2) secured witness statements from Golden Beach Chief Skinner that part-time police officers such as . . . for part of the covered period Diaz, were not covered by the CBA and its administrative fee policy; (3) chose to ignore undisputed evidence that Plaintiffs Paez, Peters, and Diaz had fully paid -- and had even overpaid -- the claimed administrative fees; (4) secured a sworn statement by Golden Beach Town Manager A. Diaz that Golden Beach officers regularly paid the fees late and Golden Beach would accept those late payments; [and] (5) were provided with sworn statements of [Police Chief] Skinner in 2010 and Golden Beach Police Captain Joseph Barasoain (“Barasoain”) in 2011 that discussed the “flex time” policy and were thus informed about the “flex time” practice as justification for the alleged double reporting of off-duty and on-duty work hours . . . .

The complaint said that since Mulvey and Loyal knew these facts, their affidavits

contained knowingly false and misleading statements and omitted substantial

exculpatory evidence.

The complaint urged that Mulvey’s supervisor (Breeden) and Loyal’s

supervisor (Sullivan) also were liable for the misrepresentations made by officers

Mulvey and Loyal. Breeden and Sullivan allegedly knew about the exculpatory

evidence and also knew there was no probable cause to believe any crimes had

been committed. Yet, they wrongfully approved the arrest warrant affidavits. The

complaint added that Breeden and Sullivan were made aware of the contradictory

facts by Mulvey and Loyal, and from their review of the investigative reports and

all of the evidence and testimony that had been compiled. 8 Case: 16-16863 Date Filed: 02/08/2019 Page: 9 of 29

The Appellants jointly moved the district court to dismiss all of the claims,

arguing that there was no wrongful arrest and no malicious prosecution, and thus

that they were entitled to qualified immunity. The district court granted the motion

in part and denied it in part. It rejected the motion to dismiss the § 1983 malicious

prosecution claims and the state common law malicious prosecution claims leveled

against Mulvey and Loyal. The trial court concluded that the complaint plausibly

alleged that Mulvey and Loyal intentionally or recklessly made material omissions

in their probable cause affidavits and that the inclusion of the omitted information

would have negated any finding of probable cause. Thus, Mulvey and Loyal were

not entitled to qualified immunity.

As for the § 1983 supervisory liability claims, the district court dismissed

Paez and Diaz’s § 1983 claims against Breeden because Breeden was no longer

Mulvey’s supervisor at the time the relevant affidavits were submitted. However,

the court denied the motion to dismiss all three § 1983 supervisory liability claims

against Sullivan and Peters’ § 1983 supervisory liability claim against Breeden;

like Mulvey and Loyal, the supervisors were not entitled to qualified immunity.

Mulvey, Breeden, Loyal, and Sullivan timely filed this interlocutory appeal.

II.

“We review de novo a district court’s decision to grant or deny the defense

of qualified immunity on a motion to dismiss, accepting the factual allegations in

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the complaint as true and drawing all reasonable inferences in the [nonmoving

party’s] favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).

Qualified immunity protects public officers “from undue interference with

their duties and from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982). It allows government officials to “carry out

their discretionary duties without the fear of personal liability or harassing

litigation.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009). “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.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002) (quotation omitted).

In order to establish qualified immunity, a defendant first must show that she

was acting within the scope of her discretionary authority at the time of the alleged

misconduct. See, e.g., Oliver, 586 F.3d at 905; O’Rourke v. Hayes, 378 F.3d 1201,

1205 (11th Cir. 2004). No one disputes that Mulvey and Loyal were acting within

the scope of their discretionary authority in investigating corruption in the Golden

Beach Police Department, and in submitting probable cause affidavits, or that

Breeden and Sullivan were acting within the scope of their discretionary authority

in supervising Mulvey and Loyal.

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Once a defendant has established that she was acting within her

discretionary authority, the burden shifts to the plaintiff to show that qualified

immunity is not appropriate. Lee, 284 F.3d at 1194. The arresting officer would

be entitled to qualified immunity unless the plaintiff establishes that “(1) [she]

violated a federal statutory or constitutional right, and (2) the unlawfulness of [her]

conduct was ‘clearly established at the time.’” Manners v. Cannella, 891 F.3d 959,

968 (11th Cir. 2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018)). These two requirements may be analyzed in any order. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009). The questions, then, boil down to whether

Mulvey and Loyal’s conduct violated the Fourth Amendment, and whether it was

clearly established at the time that their conduct did so. Because we conclude that

Mulvey and Loyal did not violate any constitutional right, we have no reason to

address separately the “clearly established” prong.

A constitutional claim brought pursuant to § 1983 must begin with the

identification of a specific constitutional right that has allegedly been infringed.

Albright v. Oliver, 510 U.S. 266, 270 (1994). Paez, Peters, and Diaz say that each

of the Appellants violated the Fourth Amendment in pursuing malicious

prosecutions against them. In order “[t]o establish a federal malicious prosecution

claim under § 1983, a plaintiff must prove (1) the elements of the common law tort

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of malicious prosecution, and (2) a violation of her Fourth Amendment right to be

free of unreasonable seizures.” See, e.g., Kingsland v. City of Miami, 382 F.3d

1220, 1234 (11th Cir. 2004). “[T]he constituent elements of the common law tort

of malicious prosecution include[]: (1) a criminal prosecution instituted or

continued by the present defendant; (2) with malice and without probable cause;

(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the

plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).

This appeal turns on the second part of the federal malicious prosecution

claim: whether Paez, Peters, and Diaz were unreasonably seized in violation of the

Fourth Amendment. If the conduct alleged did not violate the Fourth Amendment,

the Appellants would be entitled to qualified immunity and the suit must be

dismissed. A § 1983 malicious prosecution claim includes, though is not limited

to, an unconstitutional arrest. See, e.g., Kingsland, 382 F.3d at 1235; Kjellsen v.

Mills, 517 F.3d 1232, 1238 (11th Cir. 2008); Whiting v. Traylor, 85 F.3d 581, 584

(11th Cir. 1996); see also Heck v. Humphrey, 512 U.S. 477, 484 (1994). An arrest

made without probable cause is an unreasonable seizure. See, e.g., Grider v. City

of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). The Fourth Amendment

provides, in pertinent part, that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation,” U.S. Const. amend. IV, and the law requires

that a warrant for an arrest be supported by “sufficient information to establish

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probable cause,” Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (citing

Franks v. Delaware, 438 U.S. 154, 164 (1978)); see also Illinois v. Gates, 462 U.S.

213, 238–39 (1983). Probable cause, in turn, is established “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.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)

(emphasis omitted) (quoting McCormick v. City of Fort Lauderdale, 333 F.3d

1234, 1243 (11th Cir. 2003)).

The affidavits alleged that there was probable cause to believe each Appellee

had committed multiple crimes. At oral argument, all of the parties conceded that

the existence of probable cause (or even arguable probable cause) as to any one

offense would defeat a § 1983 malicious prosecution claim. Though this issue is

unresolved in our case law pertaining to § 1983 malicious prosecution claims, we

have said that arguable probable cause as to any one offense is sufficient to defeat

§ 1983 claims for other Fourth Amendment violations, including false arrest and

unlawful searches. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.

1997) (finding officer entitled to qualified immunity when a misstatement in a

search warrant vitiated arguable probable cause as to one offense, but the

misstatement was “not relevant to the existence of probable cause to believe that . .

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. other . . . crimes had been committed”); Bailey v. Bd. of Cty. Comm’rs of

Alachua Cty., 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.”).

Based on the parties’ concessions, we need not resolve the question as it relates to

malicious prosecution. Rather, we assume arguendo that a finding of probable

cause (or arguable probable cause) as to one offense announced in the affidavit

would defeat the Appellees’ § 1983 malicious prosecution claims.

Probable cause “‘requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.’ Probable cause ‘is not a

high bar.’” Wesby, 138 S. Ct. at 586 (first quoting Gates, 462 U.S. at 243–44 n.13;

then quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). Far from

“‘requir[ing] convincing proof’ that [an] offense was committed,” probable cause

is a flexible and fluid concept, that looks instead to the totality of the circumstances

to determine the reasonableness of the officer’s belief that a crime has been

committed. Manners, 891 F.3d at 968 (quoting Bailey, 956 F.2d at 1120).

Accordingly, “[t]he test for probable cause is not reducible to ‘precise definition or

quantification,’” and “[f]inely tuned standards such as proof beyond a reasonable

doubt or by a preponderance of the evidence . . . have no place in the [probable-

cause] decision.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (first quoting

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Maryland v. Pringle, 540 U.S. 366, 371 (2003); then quoting Gates, 462 U.S. at

235).

Importantly, as we noted in Manners, an affirmative defense to an alleged

crime does not necessarily vitiate probable cause. Manners, 891 F.3d at 971–72.

Indeed, “arresting officers, in deciding whether probable cause exists, are not

required to sift through conflicting evidence or resolve issues of credibility, so long

as the totality of the circumstances present a sufficient basis for believing that an

offense has been committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.

2002), abrogated on other grounds by Lozman v. City of Riviera Beach, 138 S. Ct.

1945 (2018). This is so, in part, because probable cause is a preliminary

determination made initially in an ex parte proceeding. Again, it does not require

anything close to conclusive proof or proof beyond a reasonable doubt that a crime

was in fact committed, or even a finding made by a preponderance of the evidence.

See Manners, 891 F.3d at 968. A law enforcement officer is not required to

resolve every inconsistency found in the evidence. Moreover, police officers

aren’t lawyers; we do not expect them to resolve legal questions or to weigh the

viability of most affirmative defenses. See Williams v. City of Albany, 936 F.2d

1256, 1260 (11th Cir. 1991) (“Whether the statute of limitations bars a prosecution

is a question of law. The officers properly deferred legal decisions to the district

attorney.”). So long as it is reasonable to conclude from the body of evidence as a

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whole that a crime was committed, the presence of some conflicting evidence or a

possible defense will not vitiate a finding of probable cause. The touchstone

remains the reasonableness of the officer’s conduct.

It is also true that officers may not lie about or conceal critical information.

The Supreme Court has held that the Fourth Amendment demands a warrant

affiant provide information with a reasonable belief in its veracity:

[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing. . . . This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct . . . [but] surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Franks, 438 U.S. at 165–66. Intentional or reckless material misstatements or

omissions in a warrant affidavit thus could violate the Fourth Amendment. Kelly

v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). Negligent misstatements or

omissions, on the other hand, do not. Id.

We have employed a two-part test to determine whether a misstatement in

an officer’s warrant affidavit amounts to a violation of the Fourth Amendment.

First, we ask whether there was an intentional or reckless misstatement or

omission. Then, we examine the materiality of the information by inquiring

whether probable cause would be negated if the offending statement was removed

or the omitted information included. See United States v. Kirk, 781 F.2d 1498,

1502 (11th Cir. 1986) (“[W]e must consider: (1) whether the alleged misstatements 16 Case: 16-16863 Date Filed: 02/08/2019 Page: 17 of 29

in the affidavit were made either intentionally or in reckless disregard for the truth,

and, if so, (2) whether, after deleting the misstatements, the affidavit is insufficient

to establish probable cause.” (citing Franks, 438 U.S. 154)); see also Madiwale,

117 F.3d at 1326–27 (“[A] warrant affidavit violates the Fourth Amendment when

it contains omissions made intentionally or with a reckless disregard for the

accuracy of the affidavit . . . if inclusion of the omitted facts would have prevented

a finding of probable cause.” (internal citation and quotation omitted)); Stewart v.

Donges, 915 F.2d 572, 582 n.13 (10th Cir. 1990) (“Whether the omitted statement

was material is determined by examining the affidavit as if the omitted information

had been included and inquiring if the affidavit would still have given rise to

probable cause for the warrant.”).

Three basic rules, then, guide our consideration today: (1) a warrant for

arrest must establish probable cause for an offense; (2) a warrant affidavit must

contain truthful statements that do support probable cause; and (3) an affidavit’s

omissions may lead to an unreasonable and unconstitutional warrant-based arrest if

information that the affiant knew about but intentionally or recklessly disregarded

negates a finding of probable cause. Because at this stage in the proceedings we

must accept the facts as alleged in the complaint as true, we take as true that the

exculpatory information was known to Loyal and Mulvey and their omission was

made either intentionally or in reckless disregard of the truth. Our only question,

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then, is whether the affidavits still would have established probable cause to

believe the officers had violated Florida Statute § 817.034(4), if they had included

the omitted information that they knew about. If so, Mulvey and Loyal did not

violate the Fourth Amendment, nor did their supervisors, and each of them would

be entitled to qualified immunity.

Paez, Peters, and Diaz face a difficult road in perfecting their § 1983 claims.

As the Supreme Court has explained in a similar context, “the . . . standard of

objective reasonableness . . . defines the qualified immunity accorded an officer

whose request for a warrant allegedly caused an unconstitutional arrest. Only

where the warrant application is so lacking in indicia of probable cause as to render

official belief in its existence unreasonable will the shield of immunity be lost.”

Malley v. Briggs, 475 U.S. 335, 344–45 (1986) (citation omitted); see also id. at

341 (“Defendants will not be immune if, on an objective basis, it is obvious that no

reasonably competent officer would have concluded that a warrant should issue;

but if officers of reasonable competence could disagree on this issue, immunity

should be recognized.”). Put another way, if the affidavits (including the omitted

information) would have demonstrated even arguable probable cause -- that a

reasonable officer could have believed an offense was committed -- then the

officers are entitled to qualified immunity. See, e.g., Grider, 618 F.3d at 1257.

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Here, we find that the affidavits would have established not just arguable probable

cause, but probable cause itself.

III.

We consider the § 1983 malicious prosecution claims against Mulvey and

Loyal together because the § 1983 claims levelled against Mulvey and Loyal are

essentially the same. Both Mulvey and Loyal swore and signed each of the

affidavits. Loyal was referred to as the “Affiant” and Mulvey as the “Co-Affiant.”

The complaint alleges that Mulvey and Loyal conducted the investigation together

and that each knew about the relevant information that the Appellees claim was

omitted. In addition, although Mulvey and Loyal are represented by different

counsel on appeal, each has adopted the arguments of the other.

After reviewing all of the relevant information -- what was included and

what was omitted -- there still was probable cause to believe Paez, Peters, and Diaz

had engaged in an organized scheme to defraud in violation of Florida’s criminal

law, and that, therefore, there was no violation of the Fourth Amendment. Reliable

information described in the affidavits still would have led a reasonable officer to

believe that Paez, Peters, and Diaz intentionally failed to report off-duty work

hours that would have required them to pay administrative fees. The omissions do

not undercut the reasonableness of the belief. Among other things, the affidavits

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asserted probable cause to charge each of the three law enforcement officers with

engaging in an organized scheme to defraud in violation of the Florida

Communications Fraud Act, Florida Statute § 817.034. The relevant provision of

Florida’s penal code makes it a crime to “engage[] in a scheme to defraud and

obtain[] property thereby.” Fla. Stat. § 817.034(4)(a). “Property” is defined as

“anything of value.” Fla. Stat. § 817.034(3)(c). A “scheme to defraud” is “a

systematic, ongoing course of conduct with intent to defraud one or more persons,

or with intent to obtain property from one or more persons by false or fraudulent

pretenses, representations, or promises or willful misrepresentations of a future

act.” Fla. Stat. § 817.034(3)(d). To “defraud” means to “cause injury or loss to (a

person or organization) by deceit; to trick (a person or organization) in order to get

money.” Defraud, Black’s Law Dictionary 516 (10th ed. 2014) (internal

punctuation omitted).

Although there are countless ways to engage in a scheme to defraud --

indeed the concept is as wide as the imagination of man -- the conduct here would

fit the basic statutory definitions. Having repeatedly and deceptively failed to

report off-duty work hours and having thereby deprived the Town of fees to which

it was rightfully entitled, the Appellees appeared to have engaged in a “systematic,

ongoing course of conduct with intent to defraud.” Fla. Stat. § 817.034(3).

Probable cause, then, comes down to this: since Paez, Peters, and Diaz repeatedly

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withheld relevant information about off-duty work in order to avoid payment of

fees, there was sound reason to believe each had engaged in an organized scheme

to defraud. The affidavits themselves set out sufficient facts drawn from more than

one reliable source that would lead a reasonable officer to believe the Appellees

repeatedly withheld information in order to avoid paying fees. The claimed

omissions do not undermine the reasonableness of the affidavits.

The civil rights complaint references three pieces of omitted information:

that the administrative fees were not legally owed by the officers; that, in any

event, the officers were allowed to pay the fees late; and that the officers had, in

fact, paid the fees. We examine each in turn. Since the omitted facts only relate to

whether Paez, Peters, and Diaz had the “intent to defraud” or the “intent to obtain

property . . . by false or fraudulent . . . representations,” our analysis focuses on

intent.

First, the Appellees say that, pursuant to Article 29 of the Collective

Bargaining Agreement (“CBA”) between the Town and the police officer’s union,

the GBPD expressly agreed to charge administrative fees only to off-duty

employers, not to the officers themselves. Thus, they say, because Mulvey and

21 Case: 16-16863 Date Filed: 02/08/2019 Page: 22 of 29

Loyal had a copy of the CBA, 3 they knew or should have known that the officers

were not contractually responsible for paying the administrative fees.

We remain unpersuaded. Even with conflicting information about whether

the officers were responsible for paying the administrative fees, the affiants still

could reasonably believe that Paez, Peters, and Diaz were required to report their

off-duty work hours and pay the administrative fees. This is so because reliable

sources told them as much. Mulvey and Loyal were informed by the Golden

Beach Finance Director, Maria Camacho, that “GBPD officers who work off-duty

details are required to pay an administrative fee.” The Appellees do not dispute

that Mulvey and Loyal were told this. And the Finance Director’s responsibilities

included collecting the fees, so it was perfectly reasonable for the investigating

officers to credit her account.

The investigating officers did not rely just on this statement, however.

According to their affidavits, Mulvey and Loyal also reviewed GBPD spreadsheet

records, which catalogued GBPD officers’ off-duty work and the payment of

administrative fees. Indeed, those spreadsheets contained highly detailed

information about the payment of administrative fees, including the amount of fees

3 Mulvey and Loyal apparently did have the CBA and did recognize its significance to the administrative fees. At least one of the affidavits recognized that the CBA covered the administrative fees, saying the fees “are required to be paid by all GBPD officers covered by the Collective Bargaining Agreement working off-duty details.”

22 Case: 16-16863 Date Filed: 02/08/2019 Page: 23 of 29

owed and paid, the date of payment, and even the form of payment. These

spreadsheets came from reliable sources. The Golden Beach Finance Director

explained that the officers themselves were responsible for any missing details in

the spreadsheets -- “the accuracy of the spreadsheet relies upon the accuracy of the

documentation submitted by the off-duty officer and [the Operations Captain].” In

fact, even the Appellees say, in a charge they leveled against the Town of Golden

Beach, that there was an “unwritten policy and practice[] to charge the Golden

Beach police officers . . . [the] administrative fee.” A reasonable investigating

officer could accept that the CBA said one thing but that the policy and practice

was quite another.

As we’ve noted, probable cause is a preliminary determination. The

investigating officers were not required to resolve legal matters in dispute,

understand the nuances of any possible defense, or answer them in order to decide

whether there was probable cause. Jordan, 487 F.3d at 1356–57. Even if there was

an affirmative defense that the fees were not contractually owed by the officers

themselves and they therefore received no legal benefit from their conduct, that

defense does not negate the preliminary determination of probable cause.

In the second place, the Appellees say that -- even if the officers themselves

were required to pay the administrative fees -- Golden Beach allowed its officers to

pay the fees late. As we see it, this fact is irrelevant. The affidavits didn’t claim

23 Case: 16-16863 Date Filed: 02/08/2019 Page: 24 of 29

that Paez, Peters, and Diaz had failed to timely remit payments due. Rather, the

affidavits charged the three officers with having taken affirmative steps to conceal

essential facts from their employer (the GBPD) that would have evidenced that

administrative fees were owed. Paez, Peters, and Diaz offer no explanation for the

discrepancies found in the spreadsheets apparently based on their failure to report

essential facts. The spreadsheets were compared with off-duty employer records,

and the comparison revealed repeated instances of unreported or under-reported

off-duty work.

Finally, the Appellees claim that the affidavits omitted any reference to a

2010 sworn statement by the Golden Beach Finance Director indicating that they

had fully paid -- indeed, had overpaid -- the claimed administrative fees for the off-

duty work that they had reported. The problem again, however, is that the failure

to pay is not the central element of the charged fraud; rather, the failure to report

the off-duty hours is the critical component. The affidavits asserted that the

spreadsheets maintained by the GBPD and the Town of Golden Beach, at the time

that they reviewed it, had been “recently updated.” Yet the spreadsheets, when

compared to records drawn from off-duty employers, revealed numerous instances

of off-duty work being omitted. Thus, for example, the affidavit supporting the

arrest warrant for Paez identified some 37 separate dates of off-duty work between

December 2008 and September 2009 that were missing from the spreadsheets. The

24 Case: 16-16863 Date Filed: 02/08/2019 Page: 25 of 29

affidavit supporting the Peters arrest identified 21 such dates between December

2008 and September 2009. And the affidavit providing the basis for the warrant to

arrest Diaz, in turn, identified 46 such dates between March 2009 and December

2009. The affidavits also said that Mulvey and Loyal reviewed subpoenaed

“payroll records, off-duty, and on-duty logs” from the GBPD and the Town of

Golden Beach in April 2010. None of the omitted information suggests that the

investigating officers’ sources were unreliable or that there weren’t significant

discrepancies between the GBPD spreadsheets and off-duty employer records.

Mulvey and Loyal reasonably believed that Paez, Peters, and Diaz

committed fraud by their repeated failure to report regardless of the fee-payment

status. And even if the affidavits had included a statement saying that in 2010 the

Appellees had paid the “claimed administrative fees” -- the fees for the work they

had reported -- nothing about the payment status would negate a finding that they

intentionally concealed material information from the Department. The unreported

information was relevant, material to any examining official, and it should have

been reported. The investigating officers had reason to believe that Paez, Diaz,

and Peters were required to pay administrative fees, and that they were also

required to report their off-duty hours to the Golden Beach Police Department. A

prudent person would have believed based on an examination of all the operative

facts -- what was included and what was omitted -- that the officers had engaged in

25 Case: 16-16863 Date Filed: 02/08/2019 Page: 26 of 29

a scheme to defraud in violation of Florida law. Their arrests were not

unreasonable and did not violate the Fourth Amendment. Since the allegations,

taken as true, do not establish a violation of the Constitution, Mulvey and Loyal

were entitled to qualified immunity on each of the § 1983 malicious prosecution

claims.

Finally, because Mulvey and Loyal committed no constitutional violations,

their supervisors, Breeden and Sullivan, cannot be found liable either for violating

§ 1983. The claims against Sergeant Sullivan and Supervisory Agent Breeden are

premised entirely on their supervision of Loyal and Mulvey. But “there can be no

supervisory liability . . . if there was no underlying constitutional violation.” Gish

v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008); see also Myers v. Bowman, 713

F.3d 1319, 1328 (11th Cir. 2013) (“[A] supervisor may not be held liable under

section 1983 unless the supervised official committed an underlying violation of a

constitutional right.”). Since there was no Fourth Amendment violation, much less

a clearly established Fourth Amendment violation, Breeden and Sullivan are

entitled to qualified immunity as well.

The Appellees also brought common law malicious prosecution claims

under Florida law against Mulvey and Loyal, though not against their supervisors.

The district court again refused to dismiss the claims on the grounds that they are

26 Case: 16-16863 Date Filed: 02/08/2019 Page: 27 of 29

barred under Florida law by official immunity, a species of sovereign immunity

that shields officers from tort liability unless the officer “acted in bad faith or with

malicious purpose or in a manner exhibiting wanton and willful disregard of

human rights, safety, or property.” Fla. Stat. § 768.28(9)(a).

In Florida, the elements of the common law tort of malicious prosecution are

these:

(1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damages as a result of the original proceeding.

Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002).

We have pendent appellate jurisdiction over the district court’s denial of the

motion to dismiss these state law claims. The denial of qualified immunity as to

the § 1983 claims falls squarely within our appellate jurisdiction. See Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985); see also Howe v. City of Enterprise, 861 F.3d

1300, 1302 (11th Cir. 2017); Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.

2003). We also have pendent appellate jurisdiction over issues that are

“inextricably intertwined” or “inextricably interwoven” with the issue on appeal.

See United States v. Masino, 869 F.3d 1301, 1305 (11th Cir. 2017); Harris v. Bd.

of Educ. Of Atlanta, 105 F.3d 591, 594 (11th Cir. 1997). Pendent appellate 27 Case: 16-16863 Date Filed: 02/08/2019 Page: 28 of 29

jurisdiction is limited and rarely used. See King v. Cessna Aircraft Co., 562 F.3d

1374, 1379–80 (11th Cir. 2009). Issues are not “inextricably intertwined” with the

question on appeal when “the appealable issue can be resolved without reaching

the merits of the nonappealable issues.” In re MDL-1824 Tri-State Water Rights

Litig., 644 F.3d 1160, 1179 (11th Cir. 2011). Here, however, we cannot evaluate

the denial of qualified immunity on the § 1983 malicious prosecution claims

without necessarily evaluating the merits underlying the state law malicious

prosecution claims. Both analyses require us to consider whether the affidavits

sufficiently establish probable cause. Where a finding of probable cause (or

arguable probable cause) is a component of a qualified-immunity claim on appeal,

a state law claim that also depends on the existence of probable cause is

“inextricably intertwined” for purposes of pendent appellate jurisdiction. See

Valderrama v. Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015).

We review the district court’s ruling on a motion to dismiss de novo. See

Fortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir. 1993). The denial of a motion

to dismiss is proper if the plaintiff’s complaint, taking the facts alleged therein as

true, makes out a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

28 Case: 16-16863 Date Filed: 02/08/2019 Page: 29 of 29

Our Fourth Amendment § 1983 probable cause analysis applies with equal

force to state common law malicious prosecution claims. The absence of probable

cause is a necessary element of common law malicious prosecution. See Miami-

Dade County v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA 2012). For the same

reasons the complaint has failed to make out a § 1983 malicious prosecution claim,

it also fails to plausibly allege a state common law malicious prosecution claim.

These claims, too, should have been dismissed.

The long and short of it is that officers Mulvey and Loyal submitted warrant

affidavits supporting a finding of probable cause. Nothing alleged in the

Appellees’ civil rights complaint undermines probable cause and thus, Mulvey and

Loyal, as well as their supervisors Breeden and Sullivan, were entitled to qualified

immunity on the § 1983 claims. And because there was probable cause to arrest,

the state law malicious prosecution claims fail as well. The judgment of the

district court is reversed and the cause remanded for further proceedings consistent

with this opinion.

REVERSED and REMANDED.