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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13692 Non-Argument Calendar ________________________
D.C. Docket No. 3:15-cv-00543-RH-CJK
RONALD W. JOHNSON,
Plaintiff-Appellee,
versus
SHAUN M. WHITE, MATTHEW BEATY, CHAD ROOP, JESSICA WOOD, PHILIP NIX, MINDY VON ANSBACH YOUNG, In their individual capacity as Escambia County Sheriff's Officers, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(February 27, 2018) Case: 17-13692 Date Filed: 02/27/2018 Page: 2 of 28
Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.
PER CURIAM: Ronald Johnson brought this lawsuit against six deputies of the Escambia
County Sheriff’s Office in their individual capacities, alleging claims of excessive
force, failure to intervene, and malicious prosecution under 42 U.S.C. § 1983. The
defendant deputies are Shaun White, Matthew Beaty, Chad Roop, Jessica Wood,
Philip Nix, and Mindy Von Ansbach Young.1
On the night of August 17, 2013, Johnson was arrested after two 13-year-old
girls witnessed him expose his penis while he was urinating in a public parking lot
next to his vehicle. One of their parents called the sheriff’s office. Although
arriving at various points, all six defendant deputies were ultimately present during
the arrest, but defendant White was the arresting officer. The defendants filed a
motion for summary judgment, which the district court denied. The defendants
appeal the district court’s ruling as to the denial of qualified immunity.
After review of the record, we affirm in part as to the excessive force claims
against defendants White, Beaty, Roop, and Wood. We reverse as to the excessive
force claims against defendants Nix and Young, the failure to intervene claims
against all the defendants, and the malicious prosecution claim against defendant
White.
1 Officer Adam Narvaez was originally named as a defendant, but Johnson stipulated to dismissal of the claims against him during discovery. 2 Case: 17-13692 Date Filed: 02/27/2018 Page: 3 of 28
I. BACKGROUND
A. Material Facts
We recount the facts taken from the depositions of Johnson, the wrecker
operator, and the various deputies.
1. Johnson’s Conduct
In his deposition, Johnson stated that he is a practicing attorney who
specializes in criminal defense and has been admitted to practice law in Florida
since 1973. At around 8:30 p.m. on the night of the arrest, Johnson was sitting in
his Toyota Land Cruiser, which was located in a public parking lot on Pensacola
Beach, Florida. Johnson testified he was visiting some property he owns and
decided to park in a lot across the street due to traffic at his neighbor’s house.
Johnson admitted he drank two beers that night and had attended a social function
on the beach for criminal defense attorneys. 2
Once he arrived in the parking lot, Johnson stepped out of his vehicle “to use
the bathroom.” Johnson admitted that he knew there was a portable toilet nearby
when he decided to urinate on the pavement. While he urinated, two young girls
on bicycles saw Johnson’s penis. Johnson claimed he did not see anyone while he
was urinating. Once he was back in his vehicle, Johnson saw another vehicle enter
2 Although officers later found one empty beer bottle and twenty-four unopened bottles in the vehicle, they never administered a breathalyzer test and never charged Johnson with an intoxication offense. 3 Case: 17-13692 Date Filed: 02/27/2018 Page: 4 of 28
the parking lot and then noticed the two young girls with bicycles walking up the
crossover from the beach. The two girls walked over to the other vehicle and
notified one of their parents, who then contacted the Escambia County Sheriff’s
Office. Shortly after, law enforcement arrived at the parking lot.
2. The Officers’ Arrival and Interview with Witnesses
In his complaint, Johnson alleged that defendant Officer White was the first
to arrive at the scene. The record evidence indicates, however, that Officers White,
Roop, Beaty, and Adam Narvaez arrived simultaneously or within short succession
of one another.3 Upon arrival, these officers approached Johnson’s vehicle and
asked Johnson to identify himself and exit the vehicle. Johnson responded through
the glass window but refused to step out of the vehicle or to answer any
questions. Johnson told the officers it was a “citizen’s encounter” 4 and that he did
not have to get out of his car.
After Johnson refused, Officers White and Roop went to interview the
witnesses. Officers Beaty and Narvaez stayed with Johnson’s vehicle during the
interview. Officer Roop was with Officer White and could hear White’s
conversation with the witnesses. Officer White spoke with the two girls, who
3 Officer White was the primary officer on the scene while the others were present in a support capacity. It is not clear when Officer Wood arrived, although it was after Officer White and the others. 4 In his deposition, Johnson explained that a citizen’s encounter meant the officers “had no reason to ask [him] to get out of the car” and that “[t]hey had no probable cause to arrest [him] for any felony.” 4 Case: 17-13692 Date Filed: 02/27/2018 Page: 5 of 28
indicated that they saw Johnson going to the bathroom just outside his vehicle. 5
Officer White testified that the two girls told him that Johnson “had a smirk on his
face” or “a grin of some sort” and looked at them while urinating. Officer White
also testified that the father of one of the girls pointed to Johnson’s vehicle and
said, “That’s the man that exposed himself to my daughter.” In his police report,
Officer White included these details about the smirk. Officer Roop’s deposition
testimony corroborated this conversation with the girls. Specifically, Officer Roop
testified the girls told Officer White that Johnson “didn’t make no efforts to turn,
and he smiled at them [the girls].”
In his deposition, Johnson later maintained that he did not smirk at the girls,
but admitted that he did not hear White’s interview with the two girls.
3. The Call for Sergeant Nix
After the interview with the witnesses, Officers White and Roop then
returned to Johnson’s vehicle and repeatedly asked him to exit the vehicle. When
Johnson continued to refuse, Officer White called for Sergeant Nix by radio. Not
long after that, Sergeant Nix, accompanied by Sergeant Young, arrived at the
5 Officer White testified that the two girls told him: As they approached the walkover, they noticed a man standing with his back to his vehicle. As they got close, they noticed that he was standing urinating in the parking lot. They said they were about six or seven feet away when they noticed his exposed penis. At no time did he turn or try to hide his penis, but had a smirk on his face, which terrified them, and they immediately ran to the end of the boardwalk and called their father. 5 Case: 17-13692 Date Filed: 02/27/2018 Page: 6 of 28
scene. Officer White briefed Sergeant Nix on the nature of the complaint.
Sergeant Nix testified that Officer White told him “Johnson was urinating outside
the vehicle” and that when the two girls approached Johnson, he “made no attempt
to turn away from them, smirked at them, [and] continued urinating.” Then “[t]he
girls got scared and ran away.” Based on what Officer White told him, Sergeant
Nix, who had met Johnson previously, 6 testified that he believed there was
probable cause to arrest Johnson for lewd or lascivious exhibition. After Officer
White briefed Sergeant Nix, the officers approached Johnson’s vehicle.
In his complaint, Johnson alleged that the officers surrounded his vehicle
and told him that he was under arrest. At approximately 9:00 p.m., after Johnson
continued to state that he did not consent to their investigation, Sergeant Nix
contacted a wrecker service to unlock Johnson’s vehicle. According to Johnson,
Sergeant Nix became impatient with Johnson’s continued refusal to cooperate and
began to yell and use profanity. Johnson became upset as well, calling the officers
“a bunch of cowboys” and “thugs” and telling them to “go shoot somebody else.”
6 Johnson testified that he had met Sergeant Nix previously during an incident that occurred near the boardwalk on Pensacola Beach. According to Johnson, he asked Sergeant Nix to call a tow truck for a vehicle parked behind him, and Nix became belligerent. Sergeant Nix testified that he knew Johnson before the arrest in this case and that he also knew Johnson was a lawyer. 6 Case: 17-13692 Date Filed: 02/27/2018 Page: 7 of 28
4. Attempts to Unlock the Vehicle
After the wrecker operator—Richard Carter—arrived on the scene at
approximately 9:20 p.m., Carter attempted to unlock the passenger door of
Johnson’s vehicle with an “air wedge” and a “reach tool” but was thwarted by
Johnson. Johnson grabbed the reach tool and yanked on it so that the vehicle could
not be unlocked. In an effort to distract Johnson, Sergeant Nix and Officer Roop
tapped on the windows and hood of Johnson’s vehicle with their flashlights. When
this proved unsuccessful, Sergeant Nix warned Johnson that he was going to have
to break the window if Johnson did not open the door. Johnson refused, and Nix
broke the window to the driver-side door. 7
In his deposition, Carter testified that Johnson tried to get in the back seat of
his vehicle when the officers broke the window. Although Johnson conceded that
it looked like he was retreating, Johnson claimed he “moved back” to avoid the
shattering glass from the broken window. Johnson testified that Sergeant Young
then unlocked the car door, and Officer White opened it. Carter testified that when
“the locks were opened up, . . . that’s when all the doors got opened, and all the
deputies were all in there altogether.”
7 There is some dispute, albeit immaterial, as to whether Sergeant Nix used a flashlight or a baton to break the car window. Sergeant Nix testified that he did not remember using a baton. Carter testified that Sergeant Nix tried to break the window with a flashlight and was unsuccessful, so he then took out a baton and shattered the driver-side window. 7 Case: 17-13692 Date Filed: 02/27/2018 Page: 8 of 28
5. Removal from the Vehicle by White, Beaty, and Roop
In his complaint, Johnson alleged that he was ripped from the vehicle,
slammed on the ground, and beaten while he lay face down on the pavement.
Although the evidence is in conflict, the version most favorable to the plaintiff is
that these three defendants—Officers White, Beaty, and Roop—removed Johnson
from the vehicle.
For example, Johnson testified that, while he was still in the vehicle, Officer
White grabbed his right arm and Officer Roop grabbed his left arm and then they
“ripped” Johnson out of the car and “flung” him to the ground. Roop, on the other
hand, testified that it was White who removed Johnson from his vehicle and that,
instead, Officer Roop stood behind Officer White and then handcuffed Johnson’s
left arm as Johnson went to the ground. Officer Roop claims he did not remove
Johnson from the vehicle.
Officer White testified that he “reached in and placed [his] hands on
[Johnson’s] left arm to get him out of the vehicle.” Officer White testified that
Johnson snatched his hand away and said, “I’ll get out when I want to,” or
something similar. Officer White then grabbed a “tighter hold of [Johnson] and
tried to get him out of the car” and Johnson grabbed the steering wheel with his
right hand.
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Sergeant Young testified that Officers White and Beaty removed Johnson
from the car.
In their depositions and reports, the officers agree that Johnson grabbed the
steering wheel when Officer White and at least one other officer attempted to
remove Johnson from the vehicle. Officer Wood testified that Johnson was
“holding onto the steering wheel with both hands just as tight as he can . . . . [And]
lean[ed] into the vehicle so that [officers could not] pull him out.” Officer Wood
and Sergeant Young each testified that Johnson positioned his feet underneath his
seat and the brake pedals to anchor himself inside the vehicle.
Several officers stated that, once Johnson’s hold on the steering wheel was
broken, they attempted to remove Johnson from the vehicle but—because
Johnson’s shoes got caught inside the vehicle—Johnson fell to the pavement amid
shattered glass from the broken window. Sergeant Nix testified that Johnson was
“pulled from the car and directed to the ground,” where he landed on his front side.
In any event, Johnson’s removal from the vehicle took only seconds.
Although Johnson admitted he was leaning back when Officer White
reached for him, Johnson testified that he did not grab the steering wheel to prevent
his being removed from the vehicle and that he did not fall but rather was “flung”
or thrown to the ground. Sergeant Nix testified that Johnson continued to resist
once he reached the ground.
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6. Pinning and Striking on the Ground by Beaty and Wood
When Johnson made contact with the ground, he claims that two unknown
officers “jumped on [his] back,” pinned him with their knees, and pushed his head
into the asphalt. According to Johnson, an unknown officer then “kicked” or “hit”
him approximately two or three times on his right side.
Although Johnson could not identify the officers, Officers Beaty and Wood
admitted to being the officers who put their knees in Johnson’s back and struggled
with Johnson on the ground. But their version of what happened on the ground
differs significantly from Johnson’s. Officers Beaty and Wood claim that Johnson
was “flailing around” and initially attempted to roll onto his back. Officer Wood
testified that, once Johnson rolled over onto his back, she and another officer rolled
Johnson back onto his stomach. 8 According to Officer Beaty, once Johnson was
turned onto his stomach, Officer Beaty placed a knee on the back of Johnson’s
shoulder to prevent him from “rolling around.” Likewise, Officer Wood placed
her knee on Johnson’s lower back “to keep him on the ground.” Johnson denied
that he ever rolled over onto his back.
8 Officer Wood could not identify the other officer. Wood stated it could have been Beaty or Roop, but “[t]hey both have dark hair” and “it was kind of like in my peripheral.” Given Beaty’s admitted involvement with Johnson on the ground and Wood’s statement it could have been Beaty, Wood’s testimony does not create an issue of fact as to Roop’s involvement in the pinning and striking on the ground. 10 Case: 17-13692 Date Filed: 02/27/2018 Page: 11 of 28
Officer Roop testified that Officers Beaty and Wood were trying to get
Johnson’s right arm out from underneath him. Officer Wood admitted that she
struck Johnson on his right side three times with a closed fist, but contended that
she did so to make Johnson release his right arm, which he had positioned
underneath his body to avoid being handcuffed. Officer Wood also claimed that
she did not touch Johnson until he was on the ground and rolled over onto his back.
Johnson admitted that his “right arm may have been under [him] at some
point” when he fell but that his “left hand was cut on the underside,” and so it was
unlikely to have been under him as well.9 The officers claim that after a few
seconds of struggling, they were able to handcuff Johnson. Likewise, Johnson
testified that he was handcuffed within “a matter of seconds” after landing on the
ground.10
9 As to what happened on the ground, Carter testified that Officer Wood straddled Johnson’s rear end while she and two other male deputies attempted to pull Johnson’s arms, which were positioned underneath his body, behind his back to be handcuffed. In his deposition, however, Carter did not identify the other deputies who were trying to handcuff Johnson. But again, Beaty admitted he pulled on Johnson’s right arm and, according to Johnson, Roop had already grabbed Johnson’s left arm while Johnson was in the car. 10 Conversely, in his testimony, Carter speculated that the struggle on the ground lasted “somewhere between two and five minutes” but Carter also admitted: “I honestly couldn’t tell you” and “I don’t know exactly how long.” Because of Carter’s pronounced uncertainty about this fact, we accept Johnson’s version of the events and Johnson’s own testimony that the struggle on the ground lasted only “a matter of seconds.” The officers agree that the struggle on the ground lasted only a few seconds.
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7. After the Handcuffing
According to Johnson, a few of the officers then picked him up off the
ground, took him to the rear of a patrol car, and began “cleaning [him] up some.”
They bandaged Johnson’s foot and called an ambulance. The ambulance “cleaned
[him] up some more,” and Johnson was placed in a patrol car. Officer White later
took Johnson to Sacred Heart Hospital after Officer Roop signed a refusal form for
transport by the ambulance. At the hospital, Johnson was handcuffed to a bed,
received medical treatment, and was eventually released.
Along with cuts and bruises, Johnson sustained injuries to his left shoulder
and both biceps requiring multiple medical visits. Johnson alleged that he suffered
serious lacerations on his body, a torn shoulder, an injured back and neck, and a
severed bicep muscle. In August 2013 and March 2014, respectively, Johnson
required two surgeries to reattach and treat his right bicep, and he has still not
regained full function. Johnson also underwent anesthesia to have his left shoulder
put back in its socket and, in December 2013, had a surgery to repair his left
shoulder.
B. Procedural History
At the time of the arrest, Officer White charged Johnson with felony lewd or
lascivious exhibition, in violation of Florida Statutes § 800.04, and misdemeanor
resisting an officer without violence, in violation of Florida Statutes § 843.02.
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Ultimately, the lascivious exhibition charge was dismissed, and Johnson pled “no-
contest” to a reduced misdemeanor charge of disorderly conduct, in violation of
Florida Statutes § 877.03, with adjudication withheld. On December 7, 2015,
Johnson filed this lawsuit alleging excessive force and failure to intervene against
each of the six deputies, as well as malicious prosecution against Officer White.
After discovery and depositions, the defendants filed a motion for summary
judgment against Johnson’s excessive force, failure to intervene, and malicious
prosecution claims and asserted qualified immunity.
In a five-page order dated August 14, 2017, the district court denied the
defendants’ motion and found that genuine factual disputes precluded summary
judgment for the defendants. The district court concluded that the defendants were
not entitled to qualified immunity because Johnson’s account of the facts
demonstrated that, as to excessive force, the officers violated clearly established
law under Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989), and, as to
malicious prosecution, Officer White violated clearly established law under Payne
v. State, 463 So. 2d 271 (Fla. Dist. Ct. App. 1984). On appeal, the defendants
challenge the district court’s denial of qualified immunity.
II. STANDARD OF REVIEW
We review de novo a district court’s denial of a motion for summary
judgment. Stephens v. DeGiovanni, 852 F.3d 1298, 1313 (11th Cir. 2017); Fils v.
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City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). A motion for summary
judgment should be granted only when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
To determine whether the movant is entitled to judgment as a matter of law,
we review the record in the light most favorable to the nonmoving party and draw
all justifiable inferences against the movant. See Stephens, 852 F.3d at 1313; Fils,
647 F.3d at 1287; Vinyard v. Wilson, 311 F.3d 1340, 1346 n.7 (11th Cir. 2002).
“However, a mere scintilla of evidence in support of the non-moving party’s
position is insufficient to defeat a motion for summary judgment.” See Kesinger
ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004).
III. DISCUSSION
A. Qualified Immunity
Qualified immunity offers complete protection for government officials sued
in their individual capacities as long as their conduct is taken pursuant to their
discretionary authority and does not violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” See Lee v.
Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002) (internal quotation marks
omitted) (quoting Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001)).
Whether the law is clearly established is not defined “at a high level of generality.”
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White v. Pauly, 580 U.S. __, __, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting
Ashcroft v. Al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)). Rather, in
all but the most obvious cases, the “clearly established law must be ‘particularized’
to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640,
107 S. Ct. 3034, 3039 (1987)).
In determining whether a particular plaintiff’s rights were clearly established
at the time of the violation, this Court “looks only to binding precedent—cases
from the United States Supreme Court, the Eleventh Circuit, and the highest court
of the state under which the claim arose.” Coffin v. Brandau, 642 F.3d 999, 1013
(11th Cir. 2011) (en banc); see Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1184
(11th Cir. 2009).
In this case, the deputies were clearly operating under their discretionary
authority. See Lee, 284 F.3d at 1194 (“In this case, there can be no doubt that [the
officer] was acting in his discretionary capacity when he arrested [the plaintiff].”);
Vinyard, 311 F.3d at 1346 (“Here, it is clear that [the officer] was acting within the
course and scope of his discretionary authority when he arrested [the plaintiff] and
transported her to jail.”). And so, we must assess (1) whether, in the light most
favorable to Johnson, the facts demonstrate that the officers violated Johnson’s
constitutional rights, and (2) whether those constitutional rights were clearly
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established at the time of Johnson’s arrest. See Durruthy v. Pastor, 351 F.3d 1080,
1087 (11th Cir. 2003).
We analyze Johnson’s excessive-force claims against the six deputies, his
failure-to-intervene claims against them, and then his malicious prosecution claim
against Officer White.
B. Excessive Force against All Deputies
“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.” Lee, 284 F.3d at 1197; see Graham, 490 U.S. at 394–95,
109 S. Ct. at 1871. It is well established that claims for excessive force in the
course of an arrest are properly analyzed under the Fourth Amendment’s
“objective reasonableness” standard. Graham, 490 U.S. at 395, 109 S. Ct. at 1871.
Proper application of this standard “requires careful attention to the facts and
circumstances of each particular case, including [1] the severity of the crime at
issue, [2] whether the suspect poses an immediate threat to the safety of the
officers or others, and [3] whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. at 396, 109 S. Ct. at 1872. That is, the force used to
carry out an arrest must be “reasonably proportionate to the need for that force.”
Lee, 284 F.3d at 1198. The reasonableness of a particular use of force “must be
judged from the perspective of a reasonable officer on the scene, rather than with
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the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872;
Vaughn v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003) (“We are loath to second-
guess the decisions made by police officers in the field.”).
The Supreme Court 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.” Graham, 490 U.S. at 396, 109, S.
Ct. at 1871–72. This Court has similarly embraced the notion 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 offense.” Durruthy, 351 F.3d at 1094; see
Lee, 284 F.3d at 1197. Likewise, de minimis force is not actionable under § 1983.
See Vinyard, 311 F.3d at 1348 n.13.
Notwithstanding these principles, under the three factors noted in Graham as
well as this Court’s own precedent, officers may not use substantial force to
apprehend a nonthreatening suspect who has committed only a minor offense and
is not resisting arrest. See 490 U.S. at 396, 109 S. Ct. at 1871–72; Hadley v.
Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (“Our cases hold that gratuitous
use of force when a criminal suspect is not resisting arrest constitutes excessive
force.”).
Here, Johnson contends that, without physically resisting at all, he was
forcibly removed from his vehicle, thrown to the ground, pinned down by the
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officers’ knees, had his face pushed into the asphalt, and was struck several times
while face down. Although the officers dispute this narrative, we must view the
evidence in a light most favorable to Johnson.
Under Johnson’s version of the facts, he did not resist and the alleged
instances of excessive force occurred at two points in time—(1) Johnson’s forcible
removal from the vehicle and (2) the pinning and striking of Johnson while he was
face down on the ground and not resisting. The record, based on Johnson’s
account, reflects that defendant Officers White and Roop were involved in forcibly
removing him from the vehicle, although Roop denies this.11 According to
Sergeant Young, White and Beaty removed Johnson from the vehicle. And, in the
light most favorable to Johnson, defendants Wood and Beaty were involved in
pinning and striking Johnson on the ground.
We recognize that factual disputes exist about whether Johnson fled or tried
to flee to the back seat of his vehicle to evade arrest and resisted the officers by
grabbing the steering wheel, by rolling over on the ground, and by placing his
hands underneath his body to avoid handcuffing them together.12 There is also a
11 Officer Wood testified that Sergeant Nix may have been involved in removing Johnson from the vehicle, but she suspected it could just as well have been Officer Beaty, which is what Sergeant Young said. On its own, this testimony does not affirmatively establish that Sergeant Nix made contact with Johnson. Herrington, 381 F.3d at 1247 (stating that a mere “scintilla” of evidence is insufficient to overcome summary judgment). 12 To the extent that Johnson argues (1) there was no probable cause for an arrest for violation of Florida Statutes § 800.04 and thus (2) any force used was unreasonable, this Court’s precedent dictates that such a claim is not a discrete excessive-force claim but is a false arrest 18 Case: 17-13692 Date Filed: 02/27/2018 Page: 19 of 28
factual dispute as to whether officers forcibly threw Johnson from the vehicle to
the ground or whether his shoe got caught and caused him to fall. But under
Johnson’s version of the facts, he did not resist the removal from the vehicle or the
handcuffing of either arm. Thus, the jury must decide what happened and whether
defendants White, Wood, Beaty, and Roop used excessive force on a non-resisting
suspect or used reasonable force given plaintiff’s resistance to being arrested. On
the other hand, no evidence shows that Sergeants Nix or Young physically touched
Johnson during these events, and they are entitled to qualified immunity as to
excessive force.
Accordingly, we conclude that the district court did not err in denying
qualified immunity as to Johnson’s excessive force claims against defendants
White, Roop, Beaty, and Wood, but did err in denying qualified immunity as to the
excessive force claims against defendants Nix and Young. 13
claim. See Bashir v. Rockdale Cty., 445 F.3d 1323, 1331 (11th Cir. 2006). That is because a no-force-at-all claim is “dependent upon and inseparable from” an unlawful arrest claim. Id. at 1332. Admittedly, Johnson does not make an unlawful arrest claim. Therefore, we assess only whether the “quantum of force” used “in effecting an otherwise lawful arrest” was reasonable. Id. 13 Although the parties’ briefs address a spoliation issue, it is not properly before this Court on appeal. The defendants appealed with respect to qualified immunity on this record, and any allegations of spoliation do not weigh on that determination. However, since there is no video or audio recording of these events, the disputes hinge on credibility determinations between the testimony of Johnson, the wrecker operator, and the various deputies. Thus, this is not a case where the record contains documentary evidence that blatantly contradicts plaintiff’s testimony so as to render it incredible and thus not worthy of favorable construal at the summary judgment phase. See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007). 19 Case: 17-13692 Date Filed: 02/27/2018 Page: 20 of 28
C. Failure to Intervene against All Deputies
Even if an officer personally did not use excessive force, an officer who is
present at the scene can be alternatively liable for failing to take “reasonable steps
to protect the victim of another officer’s use of excessive force.” Hadley, 526 F.3d
at 1330 (quoting Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir.
2007)); Priester v. City of Riviera Beach, 208 F.3d 919, 924–25 (11th Cir. 2000)
(finding officer liable on a failure to intervene theory). However, an observing
officer must have both the opportunity to intervene and be in a position to
intervene and yet fail to do so. Hadley, 526 F.3d at 1331. Instances of force that
occur within seconds do not place officers in a realistic position to intervene. See
id. (finding no evidence from which a reasonable jury could find that an officer
could have anticipated and stopped another officer from punching the plaintiff
once in the stomach).
In this case, the whole incident lasted only a few seconds and evolved
rapidly once the car door was opened. By Johnson’s own testimony, both his
removal from the vehicle and his handcuffing on the ground occurred within
seconds. Johnson has simply not presented evidence that any deputy, and
specifically Sergeants Nix or Young, had an opportunity or was in a position to
intervene but failed to do so. See Hadley, 526 F.3d at 1331. Johnson has not
shown a constitutional violation with respect to any officers’ alleged failure to
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intervene. Thus, even assuming an officer used excessive force in the moments
Johnson was removed from the vehicle and handcuffed on the ground, the other
officers are entitled to qualified immunity with respect to Johnson’s separate
failure to intervene claims. Id.
Accordingly, the district court erred in denying qualified immunity to the six
deputies as to Johnson’s failure-to-intervene claims.
D. Malicious Prosecution against Officer White
Johnson also asserts a malicious prosecution claim against Officer White.
Johnson argues that Officer White knew that he lacked probable cause to charge
Johnson with lewd or lascivious exhibition of his genitals, in violation of Florida
Statutes § 800.04, and proceeded anyway. Section 800.04 provides that a person
who “[i]ntentionally exposes the genitals in a lewd or lascivious manner . . . in the
presence of a victim who is less than 16 years of age, commits lewd or lascivious
exhibition.” Fla. Stat. § 800.04(7)(a)2. As to this claim, the district court erred in
denying qualified immunity to Officer White. We explain why.
“Our Court has identified malicious prosecution as a violation of the Fourth
Amendment and a viable constitutional tort cognizable under § 1983.” Wood v.
Kesler, 323 F.3d 872, 881 (11th Cir. 2003). To establish a federal malicious
prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth
Amendment right to be free from unreasonable seizures, as well as the elements of
21 Case: 17-13692 Date Filed: 02/27/2018 Page: 22 of 28
the common law tort of malicious prosecution under state law. See id.; Uboh v.
Reno, 141 F.3d 1000, 1003–06 (11th Cir. 1998) (analyzing malicious prosecution
under Georgia law).
Under Florida law, a claim for malicious prosecution has the following six
elements:
(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. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004) (emphasis
added). Consistent with these elements, the existence of probable cause defeats a
§ 1983 claim for malicious prosecution. Grider v. City of Auburn, 618 F.3d 1240,
1256 (11th Cir. 2010). Probable cause exists when an arrest is objectively
reasonable based on the totality of the circumstances and the officer’s knowledge
at that time. Kingsland, 382 F.3d at 1226.
And for qualified immunity purposes, an officer needs only “arguable”
probable cause. Grider, 618 F.3d at 1257 (quotation marks omitted). Arguable
probable cause exists where a “reasonable officer[] in the same circumstances and
possessing the same knowledge as the Defendants could have believed that
22 Case: 17-13692 Date Filed: 02/27/2018 Page: 23 of 28
probable cause existed to arrest Plaintiff.” Id. (emphasis added) (quoting
Kingsland, 382 F.3d at 1232).
Thus, the question here is whether Officer White had arguable probable
cause to arrest Johnson for violation of § 800.04. Johnson does not dispute that he
exposed his genitals in front of two minor girls. Rather, Johnson contends his
exposure was only in a “urinating” posture—not in a lewd or lascivious manner—
and therefore Officer White lacked probable cause to arrest him for violation of
§ 800.04. Johnson acknowledges that if he looked at the girls and “smirked,” that
would provide the necessary probable cause, but Johnson avers he did not smirk
and testified he did not know the girls were there.
Here, the district court erred in ruling that factual disputes about whether
Johnson actually “smirked” at the girls precluded qualified immunity. That was
error because we look at what the girls told Officer White and not whether Johnson
admits that conduct. According to Officer White, after he arrived at the scene, the
two girls told him that Johnson “had a smirk on his face,” looked at them while
urinating, and did not try to cover himself or turn away. Officer White’s hearing
this information created at least arguable probable cause for him to believe that
Johnson had exposed his penis in a lewd or lascivious manner. Officer White
proceeded accordingly and included the girls’ statements in his contemporaneous
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report of the incident. Although Johnson denies smirking and looking at the girls,
our focus for qualified immunity is on what Officer White was told by the girls.
Johnson stresses that the two girls’ written statements mention exposure of
Johnson’s private parts but do not mention a smirk. 14 However, the girls’ written
statements do say that Johnson made no attempt to turn around or to cover himself
when they rode up, facts from which White could infer that Johnson was acting in
a lewd or lascivious manner. Further, witnesses are not required to write out every
detail of an incident and this omission of a “smirk” does not create a jury issue as
to what the girls told Officer White at the scene. See Rankin v. Evans, 133 F.3d
1425, 1441 (11th Cir. 1998) (“Generally, an officer is entitled to rely on a victim’s
criminal complaint as support for probable cause.”). Importantly, the girls were
not deposed and there is no evidence that they ever denied telling Officer White
about Johnson’s looking at them, smirking, and making no attempt to turn around
or cover himself when they rode up. Thus, in light of their uncontroverted verbal
statements to Officer White at the scene, he had at least arguable probable cause to
arrest Johnson for violation of § 800.04.
Alternatively, even assuming Johnson did not smirk and assuming the girls
did not tell Officer White that he did smirk, the totality of the particular
circumstances here still gave Officer White arguable probable cause to arrest
14 We agree with Johnson that the girls’ written statements in the record did not mention any smirk. 24 Case: 17-13692 Date Filed: 02/27/2018 Page: 25 of 28
Johnson for violation of § 800.04. See Grider, 618 F.3d at 1257. Florida courts
recognize that “a determination of the precise meaning of the words ‘lewd and
lascivious’ in particular contexts must be developed on a case by case basis” and
by using a “totality of the circumstances” analysis. Egal v. State, 469 So. 2d 196,
197–98 (Fla. Dist. Ct. App. 1985). Likewise, these same courts have noted that
“conduct which in some circumstances might be purely innocent, such as nudity,
can be found to be lewd and lascivious if accompanied by the requisite improper
intent.” See id. at 198.
In this case, even in the absence of a smirk by Johnson, it is undisputed that
Officer White was responding to a phone call by a parent about a man exposing his
penis in front of two young girls, that Johnson actually exposed his penis, and that
Johnson chose to urinate in a public parking lot with a portable toilet within 15 feet
of his location. A reasonably competent officer in Officer White’s shoes, and in
light of the information he possessed, could conclude that probable cause existed
for a charge of a violation of § 800.04.
At a minimum, there was no clearly established law that would have given
notice to Officer White that he lacked arguable probable cause to arrest Johnson
for a violation of § 800.04. As stated above, when considering whether a
constitutional violation is clearly established, we look “only to binding
precedent—cases from the United States Supreme Court, the Eleventh Circuit, and
25 Case: 17-13692 Date Filed: 02/27/2018 Page: 26 of 28
the highest court of the state under which the claim arose.” Coffin, 642 F.3d at
1013 (emphasis added); Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009)
(finding law was not clearly established in Florida where plaintiff presented no
decision from the Florida Supreme Court). Johnson points to no decision from the
United States Supreme Court, this Court, or the Florida Supreme Court.
We recognize that Johnson cites and relies on the Florida appellate court’s
decision in Payne v. State, 463 So. 2d 271 (Fla. Dist. Ct. App. 1984), where the
defendant urinated in a public parking lot and was charged with indecent exposure
under Florida Statutes § 800.03—a different statute from this case. Id. at 271.
Section 800.03 makes it unlawful to “expose or exhibit one’s sexual organs in
public . . . in a vulgar or indecent manner, or to be naked in public except in any
place provided or set apart for that purpose.” See Fla. Stat. § 800.03 (emphasis
added). The Florida court found: (1) that a conviction for indecent exposure under
§ 800.03 requires a “lascivious exposure of a sexual organ;” (2) that “lascivious”
meant “an unlawful indulgence in lust, eager for sexual indulgence;” and (3) that
the defendant’s conduct—simply urinating in public—did not, as a matter of law,
constitute a violation of § 800.03. Id. at 271–72 (quoting Cheesebrough v. State,
255 So. 2d 675, 677 (Fla 1971)).
Payne involved § 800.03 and did not clearly establish law as to minors under
the age of 16, which is the focus of § 800.04. See 463 So. 2d at 271. The Supreme
26 Case: 17-13692 Date Filed: 02/27/2018 Page: 27 of 28
Court recently reiterated its “longstanding principle” that clearly established law is
not defined “at a high level of generality.” White, 580 U.S. at __, 137 S. Ct. at 551
(quoting Al-Kidd, 563 U.S. at 742, 131 S. Ct. at 2084). Rather, clearly established
law must be “particularized” to the facts of the case. Id. (quotation marks omitted).
Thus, the relevant inquiry is whether the alleged violation of a right is “sufficiently
clear that a reasonable officer would understand that what he is doing violates that
right.” Oliver, 586 F.3d at 907 (quoting Wilson v. Layne, 526 U.S. 603, 615, 119
S. Ct. 1692, 1699 (1999)).
In contrast to Payne, the present case involves a different statute and the
exposure of genitals in a lewd or lascivious manner “in front of a victim who is
less than 16 years of age,” as prohibited in Florida Statutes § 800.04. Although
Florida courts have read a lascivious element into the separate offense of indecent
exposure under § 800.03, see Egal, 469 So. 2d at 198, this interpretation is
insufficient to make the facts of Payne “clearly established law” for purposes of an
offense under § 800.04 involving minors who report a person exposed his penis
and did not turn away or attempt to cover himself. See Oliver, 586 F.3d at 907.
Payne did not involve conduct within the close proximity of two young girls that
was reported by a concerned parent about a man’s exposure of his penis to
children. See 463 So. 2d at 271. This factual distinction means that a reasonable
27 Case: 17-13692 Date Filed: 02/27/2018 Page: 28 of 28
officer would not necessarily understand that what he was doing was unlawful.
See Oliver, 586 F.3d at 907.
For all these reasons, we conclude that the district court erred in denying
Officer White summary judgment based on qualified immunity as to Johnson’s
malicious prosecution claim against Officer White.
IV. CONCLUSION
We affirm the district court’s denial of qualified immunity for defendants
White, Roop, Beaty, and Wood as to Johnson’s excessive force claims.
We reverse the district court’s denial of qualified immunity for defendants Nix and
Young as to Johnson’s excessive force claims, its denial of qualified immunity for
all six deputies as to Johnson’s failure to intervene claims, and its denial of
qualified immunity for defendant White as to Johnson’s malicious prosecution
claim. We vacate the district court’s order to that extent and remand for a trial as
to Johnson’s excessive force claims against defendants White, Roop, Beaty, and
Wood.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.