Summary
finding second Bennett factor met where plaintiff alleged that police officer "cut short his ability to exercise his First Amendment rights by interrupting his speech and then ordering him to leave the July 27 meeting" and alleging that the police officer "did this in retaliation for his negative comments about the police department."
Summary of this case from Innova Inv. Grp. v. Vill. of Key BiscayneOpinion
Case Number: 19-21986-CIV-MORENO
2020-09-28
James Eric MCDONOUGH, Plaintiff, v. David MATA, Carlos Garcia, Garland Wright, individually, and the City of Homestead, Defendants.
Alan Judah Greenstein, Palmetto Bay, FL, for Plaintiff. Matthew Harris Mandel, Weiss Serota Helfman Pastoriza et al., Fort Lauderdale, FL, Anne Reilly Flanigan, Weiss Serota Helfman Cole, Bierman, P.L., Coral Gables, FL, for Defendants.
Alan Judah Greenstein, Palmetto Bay, FL, for Plaintiff.
Matthew Harris Mandel, Weiss Serota Helfman Pastoriza et al., Fort Lauderdale, FL, Anne Reilly Flanigan, Weiss Serota Helfman Cole, Bierman, P.L., Coral Gables, FL, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE
Local governments have historically provided a forum for citizens to air grievances and express viewpoints on matters of public concern. It is in this context that this case arises from a citizen voicing his criticisms of the city's police department at a public city council meeting. In this case, Plaintiff, James McDonough, was cut short from speaking at a City of Homestead council meeting and denied access to a subsequent meeting by the Homestead police. The denial of access resulted in Plaintiff's arrest outside of City Hall. Plaintiff's 14-count complaint creates a host of constitutional claims for the Court to resolve. Plaintiff brings 42 U.S.C. § 1983 claims for violations of his free speech, due process, and Fourth Amendment rights against the City of Homestead and the individual officers. Defendants move to dismiss Plaintiff's claims arguing he fails to state claims for municipal liability and for individual liability under § 1983. The individual Defendants argue that to the extent that Plaintiff can state a claim, they are shielded from litigation by the doctrine of qualified immunity. Based on the Plaintiff's version of events, the Court will grant in part and deny in part the motion to dismiss. In the instances where the claims against the individual officers are proceeding, the Court will revisit the application of qualified immunity at summary judgment on a complete record.
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss (D.E. 29) , filed on May 4, 2020 .
THE COURT has considered the motion, the response, the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ADJUDGED that the motion is GRANTED in part and DENIED in part. Plaintiff shall file an Amended Complaint consistent with this Order by October 15, 2020 . The Court grants the motion to dismiss on counts 2, 3, 5, 6, 8, 13 and 14 as set forth in this Order and denies the motion in all other respects.
I. Background
Plaintiff, John McDonough, is suing the City of Homestead, and Officers Garland Wright Carlos Garcia, and David Mata under 42 U.S.C. § 1983. In his Amended Complaint, Plaintiff asserts Defendants violated his civil rights on three occasions relating to his participation in public government meetings. The Homestead City Council sets aside time during council meetings to allow the public to comment on matters of public concern.
The Court has already dismissed the case as to Defendant John Monaco due to Plaintiff's failure to serve him.
On July 27, 2016, Plaintiff attended the Homestead City Council meeting. The meeting agenda posted a Decorum Policy setting forth procedures for the conduct of persons, who appear before that body. Plaintiff's Amended Complaint states that this policy was posted at the top of every agenda for every meeting of the Homestead City Council, except for the November 2016 meeting. Plaintiff's Amended Complaint acknowledges, however, that the City Council had approved a resolution "enacting revised comprehensive council meeting and agenda procedures," on April 20, 2016, four months before Plaintiff's initial incident. The April resolution repealed the language of the Decorum Policy, and replaced it with Rules of Decorum. The new Rules of Decorum were posted for the first time at the November 2016 meeting after Plaintiff's two incidents.
At the July 27, 2016 meeting, Plaintiff rose to speak during the public comment section about issues involving the Homestead Police Department. He complained about an officer falsifying a police report about a woman named Rosemary Brackett. He spoke in favor of police body cameras. He complained about the Police Chief falsifying "destruction logs" and the Chief's retaliation against a citizen who complained of his misconduct in office. Plaintiff also complained about nepotism in the City of Homestead's police department. Finally, he made a comment about City Councilman Maldonado, stating that if Councilman Maldonado "had something to say about him [McDonough] that he should say it in public and not behind his back." Approximately, two and a half minutes into McDonough's speech, Officer Garland Wright approached the Plaintiff and ordered him to leave the council chambers. Plaintiff alleges that Defendant Wright refused to advise him of the reason for his removal. Plaintiff alleges that Officer Wright pushed McDonough and stood directly behind him as he escorted him out of the council chambers. Once outside the chambers, Plaintiff told Officer Wright he would sue him as he walked away. Plaintiff then alleges that Officer Wright blocked his egress from the building.
On August 23, 2016, McDonough published an article critical of Officer Wright's actions against him at the July 2016 meeting and outlined his constitutional violations. Plaintiff alleges that before the August 24 meeting, Officer Wright met with the Mayor Jeff Porter, the City Manager George Gretsas, Police Chief Alexander Rolle, Police Major Scott Kennedy, City Attorney Matthew Pearl and others to discuss how to prevent Plaintiff from speaking at the council meeting. Plaintiff alleges that they decided to apply the repealed decorum policy and that Chief Rolle ordered McDonough "trespassed," meaning he would be prevented from entering City Hall and attending or speaking at the August 24, 2016 meeting.
On August 24, 2016, McDonough returned to City Hall and Officer Wright did not allow him to enter. Officer Wright allegedly told Plaintiff that he was "trespassed" and had to leave the premises due to his comments and behavior at the last council meeting. While leaving, McDonough raised his left middle finger at Officer Wright and said "I'm leaving buddy, bye-bye." The Amended Complaint alleges that Officer Wright then ordered Plaintiff to stop, turn around, and to put his hands behind his back. Officer John Monaco then handcuffed Plaintiff and said he was being arrested for disorderly conduct. The Amended Complaint then alleges that Defendant Officer Carlos Garcia advised McDonough of the arrest for disorderly conduct and trespass after warning and that Officer Garcia completed the arrest form under oath. The Amended Complaint also asserts that the police reports indicate that both Officers Wright and Monaco told Plaintiff he was under arrest. The charges of disorderly conduct and trespass after warning were eventually dismissed by the Miami-Dade State Attorney.
Plaintiff alleges that he then posted comments on a website known as Leo Affairs. In the posts, Plaintiff alleges that he made comments about Officer John Monaco. He called Officer Monaco a liar and a coward based on Monaco's statements at a prior council meeting concerning officers wearing body cameras. Plaintiff posted a YouTube video from a council meeting where Officer Monaco stated his home address. According to the Amended Complaint, Officer Monaco reported this to Homestead Police Department's Internal Affairs. Based on this information, Officer Mata arrested Plaintiff on September 1, 2016 for cyberstalking. The Miami-Dade State Attorney dropped the charges.
Plaintiff's complaint contains 14 counts. Count 1 is a 42 U.S.C. § 1983 claim against Officer Wright for violating the First Amendment when he expelled Plaintiff from the city council meeting on July 27, 2016. Count 2 is a § 1983 claim against Officer Wright for a Fourth Amendment seizure on July 27, 2016. Counts 3 and 4 are § 1983 claims against the City of Homestead for First Amendment violations. Count 5 is a § 1983 claim against the City of Homestead for violating the Fifth Amendment's due process requirements. Counts 6, 9, and 12 are state law false imprisonment claims against the City of Homestead. Counts 7, 8, and 10 are § 1983 claims against Officer Wright for violating the First and Fourth Amendments on August 24, 2016. Count 11 is a § 1983 Fourth Amendment claim against Officer Garcia for Plaintiff's arrest on August 24, 2016. Counts 13 and 14 are § 1983 claims against Officer Mata stemming from the September 1, 2016 cyberstalking arrest.
II. Legal Standard
"To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions," instead plaintiffs must "allege some specific factual basis for those conclusions or face dismissal of their claims." Jackson v. BellSouth Telecomm. , 372 F.3d 1250, 1263 (11th Cir. 2004). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am. , 795 F.2d 948, 953 (11th Cir. 1986). This tenet, however, does not apply to legal conclusions. See Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Moreover, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 1950. Those "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In short, the complaint must not merely allege a misconduct, but must demonstrate that the pleader is entitled to relief. See Iqbal, 129 S. Ct. at 1950.
III. Legal Analysis
This case presents issues in constitutional law, municipal liability, and qualified immunity under 42 U.S.C. § 1983. The Court granted Defendants’ first motion to dismiss finding the original complaint constituted a shotgun pleading. Although the Defendants still contend the Amended Complaint constitutes a shotgun pleading, the Court finds the Amended Complaint separates out each claim against each of the Defendants in accordance with the Federal Rules of Civil Procedure. The Court now reviews the motion to dismiss the Amended Complaint on the merits to determine if Plaintiff can state claims against the City of Homestead and the individual officers. To the extent Plaintiff states § 1983 claims against the individual officers, the Court will also determine if qualified immunity shields them at this juncture.
A. Federal Claims against the City of Homestead: Counts 3, 4, and 5
Although the Supreme Court has held that municipalities are "persons" within the scope of § 1983, and subject to liability, a plaintiff cannot rely upon a theory of respondeat superior to hold a municipality liable. See Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 692-93, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding that § 1983 "cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor."). "Congress did not intend for municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights." McDowell v. Brown , 392 F.3d 1283, 1291 (11th Cir. 2004) (quoting Bd. of Cty. Commrs. v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). For § 1983 liability to attach to a municipality, "a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." McDowell , 392 F.3d at 1289 (citing City of Canton v. Harris , 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). Additionally, the plaintiff must show "that the local government entity ... has authority and responsibility over the governmental function at issue" and "must identify those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused that particular constitutional violation in issue." Grech v. Clayton Cty., Ga. , 335 F.3d 1326, 1330 (11th Cir. 2003). The "threshold identification of a custom or policy ‘ensures that a municipality be held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.’ " McDowell , 392 F.3d at 1290 (quoting Brown , 520 U.S. at 403-04, 117 S.Ct. 1382 ).
Both counts 3 and 5 point to the City's Decorum Policy printed on the meeting agenda as the municipal policy violating the Plaintiff's free speech and due process rights. Plaintiff's Amended Complaint asserts that although the City repealed the Decorum Policy on April 20, 2016, the City nevertheless acted consistently with that policy after its repeal. Plaintiff does not challenge the constitutionality of the effective policy, which was enacted on April 20, 2016. He also has dropped the facial constitutional challenge to the repealed policy from this case.
1. Count 3: As-Applied First Amendment Challenge against the City of Homestead
Count 3 is based on the City's application of the repealed decorum policy to Plaintiff on July 27 and August 24, 2016. "An as-applied First Amendment challenge contends that a given statute or regulation is unconstitutional as it has been applied to a litigant's particular speech activity." Rubenstein v. Florida Bar , 72 F. Supp. 3d 1298, 1309 (S.D. Fla. 2014) (quoting Legal Aid Servs. of Oregon v. Legal Servs. Corp. , 608 F.3d 1084, 1096 (9th Cir. 2010) ). As the Supreme Court has explained, "a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right. " Boddie v. Conn. , 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). To establish his Monell claim, Plaintiff asserts that the City unconstitutionally applied the repealed policy to him. The question is whether Plaintiff can assert a Monell claim based on a policy that is no longer in effect. The City correctly argues there can be no municipal liability in this context because generally an as-applied challenge involves a valid statute that is unconstitutionally applied. Here, the allegations of the Amended Complaint establish the policy was repealed by the City Council, and therefore, was not in effect on the date in question.
In Hill v. City of Homestead , No. 18-20512-CIV-KING, 2020 WL 1077545 (S.D. Fla. March 6, 2020), the court analyzed a facial challenge to this same repealed ordinance. The court granted the City's motion for summary judgment on the facial challenge finding that the facial challenge was moot because the City repealed the decorum policy. The court also examined Hill's as-applied challenge, and on summary judgment, found that the record did not show that Hill was prevented from exercising his First Amendment rights. In Hill , the court did not examine whether an as-applied challenge could be premised on a repealed policy, which is the issue here.
Plaintiff argues that even though the City repealed the policy, it nevertheless applied it to his detriment. To support his position, Plaintiff asserts three acts to show that the City applied the repealed policy to him. First, he points to the printing of the policy on the top of the July and August meeting agendas. In Hill , the court, however, found that printing the policy on the top of the agendas does not establish the policy's reenactment. Hill , 2020 WL 1077545, at *5. Next, Plaintiff points to a private meeting that took place prior to August 24, 2016 during which City officials allegedly discussed having Plaintiff trespassed. The repealed policy makes no mention of a procedure for "trespass" of an individual. Finally, Plaintiff alleges that Officer Wright told him he was violating a trespass order and would need to request permission in writing to return to the city council chamber. The repealed policy does not provide that procedure for readmission following a trespass order. Accordingly, even taking Plaintiff's allegations in the light most favorable to him, they do not establish that the City acted consistently with a policy that it repealed such that it can be held liable based on that policy. Because the allegations fail in this regard and given that the City Council repealed the policy purportedly giving rise to municipal liability, the Court cannot find the claim can proceed under Monell . Accordingly, the Court grants the motion to dismiss and dismisses this claim without prejudice.
2. Count 4: Monell claim based on "policymaker" theory
There are several different ways of establishing municipal liability under § 1983. As stated, a municipality can be liable for a written policy as is present in counts 3 and 5. Municipal liability may also attach if final policymakers have acquiesced in a longstanding practice that constitutes the entity's standard operating procedure. See Hoefling v. City of Miami , 811 F.3d 1271, 1279 (11th Cir. 2016). Finally, a municipality can be held liable on the "basis of ratification when a subordinate public official makes an unconstitutional decision and when that decision is then adopted by someone who does have final policymaking authority." Id. (quoting Matthews v. Columbia County , 294 F.3d 1294, 1297 (11th Cir. 2002) ). Count 4 presents a claim under this last theory of liability allowed by Monell . In this context, municipal liability under § 1983 does not require or depend on a single policymaker.
Plaintiff does not present this theory of municipal liability based on a longstanding practice.
In Count 4, Plaintiff asserts a First Amendment claim under a final policymaker theory. Under a final policymaker theory, "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Pembaur v. City of Cincinnati , 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). "Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official – even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable." Id. at 481-83, 106 S.Ct. 1292. Even under a final policymaker theory, Plaintiff must still allege a policy, practice, or custom that caused his constitutional deprivation. See Hoefling , 811 F.3d at 1280.
The City moves to dismiss count 4 by arguing that Plaintiff's failure to identify a final policymaker and failure to show how the City purportedly ratified the decision are fatal to his claim. The first argument is without merit as the Eleventh Circuit explicitly stated that "[a]lthough [the plaintiff] may ultimately have to identify (and provide proof concerning) a single final policymaker in order to survive summary judgment or prevail at trial, we do not think that he had to name that person in his complaint in order to survive a Rule 12(b)(6) motion. All he needed to do was allege a policy, practice, or custom of the City which caused the seizure and destruction of his sailboat." Id. at 1280. Identifying and proving that a final policymaker acted on behalf of a municipality is an "evidentiary standard, and not a pleading requirement." Id.
Here, the Plaintiff alleges that the final decisionmakers, including the Mayor, met behind closed doors, and decided to issue a "trespass" order as to him, which precluded him from exercising his First Amendment rights on August 24, 2016. He alleges that the City, through its policymakers, ordered and/or ratified the enforcement of a trespass order to preclude him from attending or speaking at the open government meeting. Indeed, the allegations are that Officer Wright followed through with the order given at the meeting and told Plaintiff he was trespassing at the August 24th City Council meeting. The Court finds these allegations sufficiently state a claim that the final policymakers acted on behalf of the municipality and the motion to dismiss is denied.
3. Count 5: Municipal liability for violation of 5th Amendment Due Process
Count 5 alleges the City violated Plaintiff's procedural due process rights protected by the Fifth Amendment. Plaintiff again asserts the City applied the repealed decorum policy to him on July 27 and August 24, 2016, by issuing a trespass order that prospectively barred Plaintiff from attending and speaking at any Homestead City Council meeting without providing due process as to how to challenge the trespass determination. His claim is that Officer Wright's instruction to him to write a letter to gain readmission is insufficient to satisfy procedural due process. Again, Monell requires the "threshold identification of a custom or policy [to] ‘ensure[ ] that a municipality be held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.’ " McDowell , 392 F.3d at 1290 (quoting Brown , 520 U.S. at 403-04, 117 S.Ct. 1382 ). The City argues that because the policy Plaintiff identifies was repealed, it cannot be held liable for failing to provide procedural due process after placing a trespass order on Plaintiff.
As noted in the Court's analysis of Count 3, the allegations do not establish that the City acted in accordance with the repealed policy, which makes no mention of trespass orders, let alone open-ended ones. Accordingly, the Court finds the Amended Complaint fails to meet Monell ’s threshold requirement of identifying a "custom or policy that constituted deliberate indifference to that constitutional right." McDowell , 392 F.3d at 1289 (citing City of Canton v. Harris , 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). The Court grants the motion to dismiss and dismisses this claim without prejudice.
B. Count 6: State Law False Imprisonment Claim against the City for July 27, 2016
Count 6 alleges that the City of Homestead, through its police officers, wrongly restrained and detained Plaintiff by removing him from the July 27, 2016 City Council meeting. The state law tort of false imprisonment is the "unlawful restraint of a person against his or her will, and the gist of the action is the unlawful detention of the person and the deprivation of his or her liberty." Spears v. Albertson's, Inc. , 848 So. 2d 1176, 1178 (Fla. 1st DCA 2003). To state a claim, the plaintiff must establish four elements: "1) the unlawful detention and deprivation of liberty of a person; 2) against that person's will 3) without legal authority or ‘color of authority’ and 4) which is unreasonable and unwarranted under the circumstances." Harder v. Edwards , 174 So. 3d 524, 530 (Fla. 4th DCA 2015).
Here, Plaintiff alleges he spoke at the July 27, 2016 meeting and that Officer Wright ordered him to leave. He does not make any factual allegations that any physical detention occurred. Indeed, a plain reading of the factual allegations support the finding that Officer Wright directed Plaintiff to leave the council chambers, not keep him there. Plaintiff alleges in paragraph 23 that he went outside the council chambers and walked away. Plaintiff next alleges that while he was leaving the building, Officer Wright blocked his egress. There are no allegations that Plaintiff was handcuffed, restrained, or arrested during this encounter on July 27, 2016. Like Hill , these allegations do not state a false imprisonment claim under state law. Hill , 2020 WL 1077545, at *2, *6. Accordingly, the Court grants the City's motion to dismiss Count 6 and dismisses the claim without prejudice.
The City does not move to dismiss the other state law false imprisonment claims raised in counts 9 and 12.
C. Counts 1,2,7, 8, 10, 11, 13 & 14 against Officers Wright, Garcia, and Mata
The qualified immunity defense may be raised and addressed on a motion to dismiss, and will be granted if the complaint "fails to allege the violation of a clearly established constitutional right." Smith v. Siegelman , 322 F.3d 1290,1294 (11th Cir. 2003) (quoting Chesser v. Sparks , 248 F.3d 1117, 1121 (11th Cir. 2001) and Williams v. Ala. State Univ. , 102 F.3d 1179, 1182 (11th Cir. 1997) ). This Court held in Lawson v. City of Miami Beach , 908 F. Supp. 2d 1285, 1289 (S.D. Fla. 2012), that a "court may dismiss a complaint under Rule 12(b)(6) ‘when its allegations, on their face, show that an affirmative defense bars recovery on that claim.’ " (quoting Cottone v. Jenne , 326 F.3d 1352, 1357 (11th Cir. 2003) ). "The affirmative defense of qualified immunity in particular is intended ‘to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.’ " Id. (quoting Brown v. City of Huntsville , 608 F.3d 724, 733 (11th Cir. 2010) and Lee v. Ferraro , 284 F.3d 1188, 1194 (11th Cir. 2002) ). "As a result, ‘unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of the discovery.’ " Id. (quoting Cottone , 326 F.3d at 1357 ).
To establish a qualified immunity defense, "the public official ‘must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ " Vinyard v. Wilson , 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee , 284 F.3d at 1194 ). "Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Id. In this case, Plaintiff does not contest that Officers Wright, Garcia, and Mata were acting within their discretionary authority. Accordingly, the burden shifts to the Plaintiff to show that his allegations establish a violation of his constitutional rights, and the "next, sequential step is to ask whether the right was clearly established." Id. at 1346 (quoting Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ).
"In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, the Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose." Jenkins by Hall v. Talladega City Bd. of Educ. , 115 F.3d 821, 827 n.3 (11th Cir. 1997) (citing Hamilton v. Cannon , 80 F.3d 1525, 1532 n. 7 (11th Cir. 1996) ). The Supreme Court has reiterated the "longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ " White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017). "Rather, 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, 97 L.Ed.2d 523 (1987) ). In Stephens v. DeGiovanni , 852 F.3d 1298, 1316 (11th Cir. 2017), the Eleventh Circuit clarified that the "focus should be on whether the law on the date of the excessive conduct in question gave the implicated officials ‘fair warning that their alleged treatment of [the plaintiff] was unconstitutional.’ " "For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 1316 (quoting Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ).
1. Counts 1, 2, 7, 8 & 10 against Officer Wright
a. First Amendment Claim: Count 1 (July 27, 2016 Meeting)
Plaintiff asserts that Officer Wright retaliated against him for exercising his First Amendment rights on July 27, 2016. "An individual has a viable First Amendment claim against the government when he is able to prove that the government took action against him for his exercise of First Amendment rights." Lozman v. City of Riviera Beach , 39 F. Supp. 3d 1392, 1405 (S.D. Fla. 2014). To state a retaliation claim, a plaintiff "must establish first, that his speech or act was constitutionally protected; second, that the defendant's retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech ...." Bennett v. Hendrix , 423 F.3d 1247, 1250 (11th Cir. 2005). " ‘A plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.’ " Id. at 1254.
The Court must first determine whether the Plaintiff's speech was constitutionally protected as required by Bennett ’s first prong. Plaintiff alleges that he spoke about six different topics at the July 27, 2016 meeting, including accusations of criminal conduct by the police department. He complained that Officer Murguido falsified a police report concerning an individual named Rosemary Brackett. He stated he supported bodycams. Finally, he stated to Councilman Maldonado that if he "had something to say to [Plaintiff], that he should say it in public and not behind his back." The allegations suffice to establish Bennett's first prong, as for the most part, the speech was directed at matters concerning the police department. The statement directed at Councilman Maldonado, in at least as to how it is alleged, does not appear to rise to a level of a threat. See Virginia v. Black , 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (" ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.").
As to the second and third Bennett factors, the Court finds the allegations sufficiently state a claim under the First Amendment. Plaintiff alleges that Officer Wright cut short his ability to exercise his First Amendment rights by interrupting his speech and then ordering him to leave the July 27 meeting. He also alleges that Officer Wright did this in retaliation for his negative comments about the police department. A claim is sufficiently stated. The face of the Amended Complaint establishes that Officer Wright retaliated against Plaintiff in violation of his First Amendment rights as set forth in Bennett.
In addition to finding the allegations establish that Officer Wright unlawfully retaliated against Plaintiff for exercising his First Amendment rights, the Court also finds that given the context of this open government meeting, the allegations establish Officer Wright unlawfully restricted Plaintiff's free speech rights.
Generally, city commission meetings are "limited’ public fora" meaning that a city can place limits on public commentary. Rowe v. City of Cocoa, Fla. , 358 F.3d 800, 802 (11th Cir. 2004). "As a limited public forum, a city council meeting is not open for endless public commentary speech but instead is simply a limited platform to discuss the topic at hand. " Id. at 803. Although the case law recognizes the government's ability to regulate public meetings, the allegations in this case are that the City of Homestead opened the floor to the public to speak on any matter of public concern. Once a city intentionally opens its meeting to the public and permits public discourse, it designates its meeting as a traditional public forum. Jones v. Heyman , 888 F.2d 1328, 1331 (11th Cir. 1989). Although the council need not have created this forum in the first place, once it did so, the council became bound by the same standards that apply in the case of a traditional public forum (and so did Officer Wright). Id. Content-neutral time, place, and manner restrictions are permissible if they are narrowly drawn to achieve a significant governmental interest and if they allow communication through other channels. Content-based exclusions must be narrowly tailored to effectuate a compelling governmental interest. Id. The Supreme Court has recognized the significance of the government's interest in conducting orderly, efficient meetings of public bodies. Id. at 1332 (citing City of Madison, Joint Sch. Dist. v. Wisconsin Employment Relations Comm'n , 429 U.S. 167, 176 n.8, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ).
Based on the Amended Complaint's allegations, the Court declines Officer Wright qualified immunity at this juncture because the Amended Complaint sufficiently alleges that he violated Plaintiff's free speech rights in a traditional public forum by interrupting him and ordering him to leave. The allegations state this action was content-based and it is therefore subject to a strict scrutiny analysis. The Court adds that the law is also clearly established that a government actor may not exclude speech where that action is not "reasonable in light of the purpose served by the forum," nor may it "discriminate against speech on the basis of its viewpoint." Rosenberger v. Rector & Visitors of Univ. of Virginia , 515 U.S. 819, 829-30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). In this case, Plaintiff's speech fell within the purview of what was allowed by the City Council (i.e. matters of public concern) -- so the remarks were reasonable in light of the forum's purpose. Despite that, the Amended Complaint asserts that Officer Wright ordered him to cease his remarks and leave because Officer Wright did not like what Plaintiff had to say. Certainly, this states a claim for a violation of clearly established law.
In so holding, the Court notes that it will revisit the issue of whether Officer Wright violated clearly established law at summary judgment on a complete record of what transpired on July 27, 2016. Indeed, the cases cited by the Defendant are cases where the courts evaluated the record evidence and were not decided on motions to dismiss. Cleveland v. City of Cocoa Beach, Florida , 221 F. App'x 875 (11th Cir. 2007) (indicating the procedural posture was on appeal following a ruling on motion for summary judgment); Rowe v. City of Cocoa, Fla ., 358 F.3d 800 (11th Cir. 2004) (indicating the procedural posture was on appeal following a ruling on a motion for summary judgment); Jones , 888 F.2d at 1330 (indicating the district court conducted a bench trial).
b. Count 7: First Amendment Claim against Defendant Wright (August 24, 2016)
The Court has already found that by opening the meetings to public discourse, the Homestead City Council created a traditional public forum. Count 7 stems from Officer Wright's actions in excluding Plaintiff from entering the government meeting on August 24, 2016. In Count 7, Plaintiff alleges he is a member of the class to which the designated public forum was available and Defendant restricted his access because of the nature of his remarks at the prior meeting. Restrictions that favor or disfavor certain speech based on the speaker rather than the content of the message are content based. Solantic LLC v. City of Neptune Beach , 410 F.3d 1250, 1266 (11th Cir. 2005).
"Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles." Surita v. Hyde , 665 F.3d 860, 870 (7th Cir. 2011) (quoting United States v. Playboy Entm't Grp. Inc. , 529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ). "The government violates the Free Speech Clause of the First Amendment when it excludes a speaker from a speech forum the speaker is entitled to enter." Id. (quoting Christian Legal Soc'y v. Walker , 453 F.3d 853, 865 (7th Cir. 2006) (citing Rosenberger , 515 U.S. at 829-30, 115 S.Ct. 2510 )).
The government may "exclude a speaker from a traditional public forum ‘only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.’ " Ark. Educ. Television Comm'n v. Forbes , 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund., Inc. , 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ). That same standard applies to a designated public forum, as is alleged here, which is created when the government opens a nontraditional public forum for public discourse. Id. at 677, 118 S.Ct. 1633 ("If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny.")
The allegations sufficiently state that Plaintiff is a speaker who falls within the class to which the designated public forum, the City Council meeting, is made generally available. To pass constitutional muster, Officer Wright would need to establish that excluding the Plaintiff is a narrowly tailored action to achieve a compelling state interest. This is not an issue the Court can resolve on a motion to dismiss. In addition, the Court cannot grant Officer Wright qualified immunity at this juncture because the allegations are that he excluded Plaintiff from an open governmental meeting because of the content of his speech at the July 27, 2020 meeting and told Plaintiff he could not return until he obtained permission. The law at the time of this incident was clearly established that the government violates the Free Speech Clause of the First Amendment when it excludes a speaker from a speech forum the speaker is entitled to enter. See Rosenberger , 515 U.S. at 829-30, 115 S.Ct. 2510 (finding a denial of access to a group to a traditional public forum constituted impermissible viewpoint discrimination and stating "[w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."); Universal Amusement Co. v. Vance, 587 F.2d 159, 165 (5th Cir. 1978) (stating that a "prior restraint of expression comes before [the] court with ‘a heavy presumption against its constitutional validity.’ "); Arkansas Educ. , 523 U.S. at 682, 118 S.Ct. 1633 ("To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property.); Brown v. City of Jacksonville , No. 06-cv-122-J-20MMH, 2006 WL 385085, *4 (M.D. Fla. Feb. 17, 2006) (holding that a "directive banning [Plaintiff] from seven cycles of future [City] Council meetings based on her past conduct" was "an unconstitutional restriction ... [that] violate[d] Plaintiff's First Amendment protection against prior restraint on speech."). Accordingly, the Court finds the Plaintiff's version of the facts supports a finding that Officer Wright violated clearly established law and therefore, the Court denies qualified immunity at this time. Of course, the Court will revisit whether the record evidence supports Plaintiff's version of what transpired at summary judgment to determine whether there is sufficient evidence of a violation of clearly established law to proceed to trial.
c. Count 2: Fourth Amendment Seizure Claim against Sergeant Wright for July 27, 2016
Plaintiff asserts an unlawful Fourth Amendment seizure occurred at the July 27, 2016 meeting, when Plaintiff left the meeting, but was not arrested. The allegations are that Officer Wright stopped Plaintiff in the middle of his speech, pushed Plaintiff, and ordered him to leave City Hall against his will. Plaintiff claims that he submitted to Officer Wright's authority and was seized in violation of the Fourth Amendment. Plaintiff cites to United States v. Jordan , 635 F.3d 1181 (11th Cir. 2011) for the proposition that Officer Wright violated clearly established law on July 27, 2016.
In Jordan , the Eleventh Circuit explained that "[n]ot all interactions between law enforcement and citizens ... implicate the scrutiny of the Fourth Amendment. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may [a court] conclude that a ‘seizure’ has occurred." Id. at 1185 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). The Eleventh Circuit categorizes encounters between police and citizens into three types, with varying levels of Fourth Amendment scrutiny: " ‘(1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests.’ " United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006). The first type of encounter, often referred to as a consensual encounter, does not implicate the Fourth Amendment. Id. "If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Id. at 777–78 (quotations and emphasis omitted). "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets." United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003) (quoting Terry , 392 U.S. 1, 88 S.Ct. 1868 ). If the citizen's cooperation is induced by "coercive means" or if a reasonable person would not "feel free to terminate the encounter," however, then the encounter is no longer consensual, a seizure has occurred, and the citizen's Fourth Amendment rights are implicated. See Jordan , 635 F.3d at 1185-86 (citing United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) ).
The Eleventh Circuit provided the following factors for courts to consider in determining whether the Fourth Amendment is implicated. They are
whether a citizen's path is blocked or impeded; whether identification is retained; the suspect's age, education and intelligence; the length of the suspect's detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect, and the language and tone of voice of the police.
Perez, 443 F.3d at 778. The Court does not apply these "factors rigidly, however, but rather use them as relevant guidance, to be considered with the totality of the circumstances." Jordan , 635 F.3d at 1186. The ultimate inquiry remains whether a person's freedom of movement was restrained by physical force or by submission to a show of authority. See California v. Hodari D., 499 U.S. 621, 626-28, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ("The test for existence of a "show of authority" is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.").
The allegations regarding the July 27th encounter do not indicate that Plaintiff's freedom of movement was restrained by physical force or by submission to a show of authority. Plaintiff's own allegations establish that he was ordered to leave a government meeting and was not detained. Officer Wright did not question him or retain his identification. There was no display of weapons. The only allegation in support of Plaintiff's claim is that Officer Wright pushed him and blocked his egress. These allegations are insufficient to rise to the level of a Fourth Amendment seizure as there is no allegation that would suggest that a reasonable person would think he was not free to terminate the encounter. Accordingly, the Court grants the motion to dismiss this claim without prejudice as Plaintiff's allegations do not state a claim for a Fourth Amendment seizure.
d. Counts 8 &10: Fourth Amendment Claims against Defendants Wright for actions on August 24, 2016
Count 8 states a Fourth Amendment claim for an unlawful seizure and Count 10 states a Fourth Amendment false arrest claim against Officer Wright based on his actions on August 24, 2016.
1. Count 8: Seizure
The case law regarding unlawful seizures applies to Count 8. As stated earlier, if the citizen's cooperation is induced by "coercive means" or if a reasonable person would not "feel free to terminate the encounter," then the encounter is no longer consensual, a seizure has occurred, and the citizen's Fourth Amendment rights are implicated. See Jordan , 635 F.3d at 1185-86 (citing United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) ). The Court is also guided by the relevant Perez factors set forth by the Eleventh Circuit – whether a citizen's path is impeded, the length of the suspect's detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect, and the language and tone of voice of the police.
Here, the allegations are that the Plaintiff approached the entrance to the meeting where Officer Wright told Plaintiff he could not enter. Plaintiff's response to the motion to dismiss argues that by stopping and prohibiting him from entering the council chambers, Officer Wright seized Plaintiff similarly to his actions on July 27, 2016. Plaintiff claims the restriction on his ability to enter the chambers constitutes an unlawful seizure. These allegations as to Officer Wright do not show that he seized or detained Plaintiff. There are no allegations of coercion, other than an order to leave. There are no allegations that he was questioned by Officer Wright or that he used any weapon or physical force to coerce him to leave. Indeed, the allegations are that Plaintiff proceeded to leave, but then was stopped and subsequently arrested, which is the subject of Counts 10 and 11. As to Officer Wright, there are no allegations that sufficiently rise to the level of an unlawful seizure based on his order to Plaintiff that he could not enter the August 24, 2016 meeting. Accordingly, the Court grants the motion to dismiss this claim without prejudice based on the allegations as stated in the Amended Complaint.
2. Count 10: False Arrest Claim as to Officer Wright
As to the false arrest, the Amended Complaint alleges that as Plaintiff left the meeting, he gave the officers the "bird." Officer Wright instructed Plaintiff to stop, turn around, and place his hands behind his back. When Plaintiff asked what he was being arrested for, Officer Monaco, who is no longer a defendant in this case, said for disorderly conduct and placed the handcuffs on him. Officer Garcia then also advised Plaintiff that he was under arrest and authored the arrest form charging Plaintiff with trespass after warning and disorderly conduct. The Amended Complaint alleges that the police reports indicate that Officers Wright and Monaco told Plaintiff he was under arrest. Officer Wright argues that because he was not the arresting officer, Plaintiff fails to state a claim as to him for a Fourth Amendment false arrest. He also argues that even if he was the arresting officer, the allegations establish there was arguable probable cause for the arrest and he, therefore, has qualified immunity.
To establish § 1983 liability, a plaintiff must show "proof of an affirmative causal connection" between a government actor's acts or omissions and the alleged constitutional violation, which "may be established by proving that the official was personally involved in the acts that resulted in the constitutional deprivation." Brown v. City of Huntsville , 608 F.3d 724, 737 (11th Cir. 2010) (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) ). Merely being present with the arresting officers at the scene is not enough, unless the plaintiff can show that the defendant officer was part of the chain of command authorizing the arrest action. In Brown , the Eleventh Circuit upheld a district court's grant of qualified immunity to two police officers, who were at the scene of the plaintiff's arrest, but who did not personally participate in arresting the plaintiff and were not the arresting officer's supervisors. Id. at 736-37. The question is whether the allegations are sufficient to establish that Officer Wright instigated or participated in the arrest. See Jordan v. Mosley , 487 F.3d 1350, 1354 (11th Cir. 2007) ("In this Circuit, a non-arresting officer who instigates or causes an unlawful arrest can still be liable under the Fourth Amendment.").
The Eleventh Circuit in Wilkerson v. Seymour , 736 F.3d 974, 980 (11th Cir. 2013) discussed the level of involvement in an arrest before a non-arresting officer could be found liable under § 1983. The degree of participation in the arrest and the amount of information available to the non-arresting officer are important considerations in determining whether a non-arresting officer is liable for a false arrest. The Court stated that "[w]hat is made explicit in Jones [v. Cannon , 174 F.3d 1271, 1286 (11th Cir. 1999) ] is that a participant in an arrest, even if not the arresting officer, may be liable if he knew the arrest lacked any constitutional basis and yet participated in some way." The Eleventh Circuit in Wilkerson found the non-arresting officer had qualified immunity because there was no "constitutional requirement for a supervising officer to complete a full on-scene investigation of the basis for an arrest for conduct he did not observe." The Eleventh Circuit factually distinguished Jones where the "non-arresting officer participated in the transportation, arrest, and report, while fully aware, based on his personal observations, that the basis for the arrest was fabricated." Id. (citing Jones , 174 F.3d at 1283-84 ).
The allegations against Officer Wright are more like Jones than Wilkerson . First, Plaintiff alleges that Officer Wright instigated the arrest by ordering him to stop, turn around, and put his hands behind his back. Next, the Plaintiff alleges that the police reports state that Officers Wright and Monaco told Plaintiff he was under arrest. The Amended Complaint adds that Officer Monaco handcuffed him and Officer Garcia then completed the arrest form. The allegations also establish that Officer Wright was present during the entire incident and observed what transpired. The Court finds the allegations sufficiently state that Officer Wright instigated in and participated in the arrest. The Court will review his level of participation on a motion for summary judgment to determine whether his involvement was sufficient as a non-arresting officer for a jury to consider.
Having found that the Amended Complaint sufficiently states a claim for false arrest, the Court must also decide whether Officer Wright has qualified immunity if the arrest was based on arguable probable cause. Because this is also an issue as to whether Officer Garcia has qualified immunity, the Court's analysis of this issue is below on Count 11. The Court concludes that based on the Plaintiff's version of what took place, there is no arguable probable cause for his arrest for disorderly conduct and trespass under Florida law, and the Court declines to grant Officer Wright qualified immunity at this juncture.
3. Count 11: Fourth Amendment False Arrest Claim against Officer Garcia
A warrantless arrest without probable cause violates the Constitution and forms the basis of a § 1983 claim. Conversely, if an arrest is supported by probable cause, the arrestee is absolutely barred from pursuing a § 1983 false arrest claim. Probable cause exists "if at the moment the arrest was made, the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." Holmes v. Kucynda , 321 F.3d 1069, 1079 (11th Cir. 2003).
To receive qualified immunity protection, an officer "need not have actual probable cause but only ‘arguable probable cause. ’ " Id. (quoting Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) ). "Arguable probable cause exists when "an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed." Durruthy v. Pastor , 351 F.3d 1080, 1089 (11th Cir. 2003) (quoting Montoute , 114 F.3d at 184 ). 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." Id. at 1089 (quoting Lee , 284 F.3d at 1195 ) (additional citations omitted).
Applying this standard, the Court turns to whether Officer Garcia had arguable probable cause for the August 24, 2016 arrest. Officer Garcia arrested Plaintiff for disorderly conduct after he raised a middle finger to Officer Wright. "It is clear from Florida law that merely being upset is insufficient to establish arguable probable cause for disorderly conduct because far more egregious conduct is insufficient to violate the statute." Petithomme v. Cty. of Miami-Dade , 511 F. App'x 966, 972 (11th Cir. 2013) (finding officers lacked arguable probable cause for arrest when plaintiff was upset after being asked four times for her identification and stating that under Florida law "screaming obscenities at an officer is not sufficient to violate the statute."). "Furthermore, the mere fact that neighbors exited their home and observed the scene is not, of itself, sufficient to give rise to arguable probable cause for disorderly conduct unless there is ‘some evidence that the crowd is actually responding to the defendant's words in some way that threatens to breach the peace.’ " Id. (quoting Barry v. State , 934 So. 2d 656, 658 (Fla. 2d DCA 2006) (reversing conviction for disorderly conduct when defendant cursed and screamed obscenities at officer; finding speech alone will not support conviction for disorderly conduct)); Miller v. State , 780 So. 2d 197, 197-98 (Fla. 2d DCA 2001) (reversing conviction for disorderly conduct when defendant directed loud and aggressive speech toward officers who were conducting investigation in her house). The Eleventh Circuit has held that similar disorderly conduct statutes from Georgia and Alabama do not support an arrest for cursing at a police officer. Merenda v. Tabor , 506 F. App'x 862, 866 (11th Cir. 2013) (reversing a conviction for calling a police officer by an expletive); Lawrence v. City of Fairhope, Ala. , 429 F. App'x 900, 903 (11th Cir. 2011) (stating that cursing at an officer does not support disorderly conduct charge). Based on Plaintiff's version of what happened, Officer Garcia did not have arguable probable cause to arrest him for disorderly conduct under Florida law.
After the Plaintiff was handcuffed and detained for disorderly conduct, he alleges Officer Garcia also arrested him for trespass. To establish the crime of trespass under Florida law, both § Officer Wright gave Plaintiff notice that he was trespassing and that he needed to request permission in writing to gain readmission to the City Council meeting. At which point, Plaintiff proceeded to leave. The Amended Complaint does not establish that Plaintiff defied the order to leave. Based on Plaintiff's version of the facts, Officer Garcia did not have arguable probable cause to effectuate an arrest for trespass and the Court therefore denies qualified immunity for Count 11. Because there is no arguable probable cause based on the Plaintiff's version of the arrest for disorderly conduct and trespass, the Court likewise declines to afford Officer Wright qualified immunity for the false arrest claim raised in Count 10.
Officer Garcia argues that he was not the arresting officer because the Amended Complaint indicates that Officer Monaco placed the handcuffs on Plaintiff and told him he was under arrest. The Amended Complaint indicates that Officer Garcia then advised Plaintiff again that he was under arrest. The Amended Complaint alleges that Officer Garcia under oath authored the arrest form charging Plaintiff with disorderly conduct and trespass. The allegations sufficiently establish that Officer Garcia participated in the arrest and "a participant in an arrest, even if not the arresting officer, may be liable if he knew the arrest lacked any constitutional basis and yet participated in some way." Wilkerson , 736 F.3d at 980. The Court again reiterates that this holding is premised on the allegations in the Amended Complaint and the Court will revisit the application of qualified immunity on a full record at summary judgment.
4. Counts 13 & 14: § 1983 Claims against Officer Mata
a. Count 13: Fourth Amendment False Arrest Claim against Officer Mata
In Count 13, Plaintiff alleges that Officer Mata violated the Fourth Amendment when he arrested him on September 1, 2016 for cyberstalking and tampering with a witness based on information provided by Officer Monaco. The Complaint alleges that Officer Monaco reported certain on-line postings authored and posted by Plaintiff about him. Plaintiff's complaint describes what he posted about Officer Monaco, which including calling him a "liar and a coward," and posting Officer Monaco's home address. Officer Monaco reported this conduct to Internal Affairs.
It is well-settled that an officer is entitled to qualified immunity where the officer relies on a victim's statement to support probable cause, and there are no facts to indicate that said reliance was unreasonable under the circumstances. Barr v. Gee , 437 F. App'x 865, 877 (11th Cir. 2011) (affirming dismissal of claims because victim's statement supported finding of probable cause, absent allegations to indicate reliance on the statement was unreasonable); Giraldo v. City of Hollywood , 142 F. Supp. 3d 1292, 1299 (S.D. Fla. 2015) (holding officers had arguable probable cause based on victim's statements, and thus qualified immunity); Lawson , 908 F. Supp. 2d at 1290 (S.D. Fla. 2012) (finding officers had arguable probable cause to arrest where they relied on the alleged victim's statement and were entitled to qualified immunity). Plaintiff agrees that Officer Mata's reliance on Officer Monaco's statement to Internal Affairs was reasonable. Plaintiff's position is that the contents of the postings did not meet the elements for cyberstalking under Florida law.
Florida Statute § 784.048(d)(1) sets forth the elements for cyberstalking, which are words communicated to a specific person, "causing substantial emotional distress to that person and serving no legitimate purpose." Plaintiff made online "comments" and "posts" about Officer Monaco and he disclosed Officer Monaco's home address. On the face of the Amended Complaint, therefore, Plaintiff has alleged a "repeated course of conduct" sufficient to find arguable probable cause existed to arrest Plaintiff. See Jeter v. McKeithen , No. 5:14-CV-189-MW-EMT, 2015 WL 3747690, at *4 (N.D. Fla. June 15, 2015) (stating the law is not clearly established that "repeatedly" necessarily refers to cyberstalking a particular individual repeatedly or cyberstalking more than one person). In Jeter , for example, the district court held that an officer was entitled to qualified immunity because he had arguable probable cause to arrest the plaintiff for cyberstalking, noting the lack of clearly established law regarding probable cause for the cyberstalking arrest. Based on Plaintiff's allegations and Officer Monaco's statement, the Court finds that Officer Mata had arguable probable cause to arrest Plaintiff for cyberstalking, and therefore qualified immunity requires the dismissal of this claim.
The Jeter case was decided a little over a year before the Plaintiff's arrest for cyberstalking.
b. Count 14: First Amendment Claim as to Officer Mata
Plaintiff's final claim is that Officer Mata violated his First Amendment rights on September 1, 2016, when he was arrested for cyberstalking and tampering with a witness, allegedly in retaliation for Plaintiff's online postings about Officer Monaco. Having found that Officer Mata had arguable probable cause to arrest Plaintiff for cyberstalking, the Court also finds he is entitled to qualified immunity from the First Amendment claims stemming from the arrest. Gates v. Khokhar , 884 F.3d 1290, 1298 (11th Cir. 2018). From the face of this Amended Complaint, the Court finds the allegations show that Detective Mata had arguable probable cause to effect the arrest for cyberstalking, which requires the Court grant Officer Mata qualified immunity on this claim.
DONE AND ORDERED in Chambers at Miami, Florida, this 28th of September 2020.