Martelli v. Knight

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JEANNE F. MARTELLI,

Plaintiff,

v. Case No. 8:19-cv-0441-T-02SPF

THOMAS M. KNIGHT, in his capacity

as Sheriff of the SARASOTA COUNTY

SHERIFF’S DEPARTMENT, and DAVID

TUCK, in his individual capacity and as an

employee of the SARASOTA COUNTY

SHERIFF’S DEPARTMENT,

Defendants.

_____________________________________/

ORDER

This matter comes to the Court on Defendants Thomas M. Knight and David

Tuck’s Motion for Summary Judgment, Dkt. 40. Plaintiff Jeanne F. Martelli filed a

response. Dkt. 55. With the benefit of full briefing, the Court grants the Defendants’

Motion.

STATEMENT OF THE FACTS

The parties agree on the overarching facts of this case.1 Late at night on

November 18, 2016, Plaintiff returned to the home she shared with William Tillis,

1 In her Statement of Disputed Facts, Dkt. 57, takes issue with many of the facts set out in

Defendants’ Statement of Undisputed Facts, Dkt. 41. But Plaintiff does not contest any of the

facts set out in this section of the Order. So, for the purposes of this section, the Court will cite to

her ex-boyfriend and current roommate. Dkt. 41 at 2–3. Plaintiff had been drinking

and brought with her an unknown man. Id. at 3. Tillis was angered by this and

made the man leave. Id. While it is disputed what happened immediately after that,

it is undisputed that some time afterwards Plaintiff returned to her room, grabbed

her 9mm handgun, loaded a magazine into the gun, and shot Tillis. Id. at 4; Dkt. 57

at 2–3 (describing Plaintiff’s version of events between Tillis making the man

leave and Plaintiff shooting Tillis)

Tillis and Plaintiff then both called 911 for medical help for Tillis. Dkt. 41 at

4. Plaintiff told the 911 operator that she “shot [Tillis]. Okay, because he was

coming after me, and I’m done with him coming after me.” Dkt. 57-2 at 33. When

emergency services arrived, Tillis was rushed to the hospital and Plaintiff was

detained by Sherriff’s deputies. Dkt. 41 at 4–5. Defendant Tuck, the lead detective

assigned by the Sarasota County Sherriff’s Department, arrived shortly after this

and began investigating the shooting. Id. Plaintiff maintained that she shot Tillis

entirely in self-defense. Id. Tuck interviewed Plaintiff about the shooting but

released her without making an arrest. Id. at 5–7.

Tuck then spent the next two weeks investigating the shooting and Plaintiff’s

self-defense argument. Id. at 7–9. Tuck interviewed various neighbors and friends

Defendants’ Statement of Undisputed Facts, Dkt. 41, since these facts are, seemingly,

undisputed.

about Tillis and Plaintiff. Id. Tuck reviewed evidence gathered at the scene and

listened to the 911 tapes. Id. Tuck also unsuccessfully attempted to locate the man

Plaintiff brought back to her home on the night of the shooting. Id.

After this investigation, Tuck typed up a one-page affidavit summary of the

investigation and submitted it with an arrest warrant application for Plaintiff. Id. at

9–10. Florida Circuit Court Judge Debra Johnes Riva reviewed this application,

found probable cause that Plaintiff committed Aggravated Battery with a Firearm,

and ordered that Plaintiff arrested. Id. Plaintiff was arrested pursuant to this

warrant on December 6, 2016. Id. at 10. After full discovery with adversarial fact

uncovering by Plaintiff’s criminal defense lawyer, the State Attorney entered a

nolle prosequi in that prosecution on August 9, 2017. Id.

Plaintiff brings this suit against Sherriff Knight and Tuck under 42 U.S.C §

1983, for alleged violations of her Fourth and Fourteenth Amendment rights, and

under Florida state tort law. Dkt. 20. Each of the counts in her Amended Complaint

are based on claims of false arrest. Id. at 9–13. Defendants now move for summary

judgment on these claims. Dkt. 40.

LEGAL STANDARD

Under Rule 56, Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if 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); see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th

Cir. 1996). An issue of fact is “genuine” only if “a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if the fact could affect the outcome of the lawsuit

under the governing law. Id.

The moving party bears the initial burden of identifying those portions of the

record demonstrating the lack of a genuinely disputed issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If met, the burden shifts to the

non-moving party to “come forward with specific facts showing that there is a

genuine issue for trial.” Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir.

2018) (citation omitted). To satisfy its burden, the non-moving party “must do

more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). The non-moving party must go beyond the pleadings and “identify

affirmative evidence” that creates a genuine dispute of material fact. Crawford-El

v. Britton, 523 U.S. 574, 600 (1998).

In determining whether a genuine dispute of material fact exists, the Court

must view the evidence and draw all factual inferences therefrom in a light most

favorable to the non-moving party and must resolve any reasonable doubts in the

non-moving party’s favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.

2007). Summary judgment should only be granted “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party[.]”

Matsushita, 475 U.S. at 587.

DISCUSSION

Defendants argue they are entitled to summary judgment on all of Plaintiff’s

claims for several reasons including qualified immunity. The thrust of Defendants’

argument is that, even accepting all facts presented by Plaintiff, she is unable to

show that she suffered injury because her arrest was not unlawful. This Court will

first address this argument for Plaintiff’s federal claims (Counts I and II) and then

look to her state law claims (Counts III and IV).

A. Federal Law Claims

Tuck argues that he is entitled to qualified immunity from Plaintiff’s federal

claim. Qualified immunity protects a government official acting within his

discretionary authority from civil lawsuits unless his conduct violates a statutory or

constitutional right clearly established when the alleged violation occurred.

Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). The doctrine protects “all

but the plainly incompetent or those who knowingly violate the law.” Gates v.

Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018) (citing Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011)).

If an official is engaged in a discretionary function, the burden shifts to a

plaintiff to overcome the official’s qualified immunity by meeting a two-part test.

Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). First, she must

show that the defendant violated a constitutional right. Id. This step requires a

court to analyze the specific constitutional right at issue and decide as a matter of

law if the defendant violated such a right. Id. at 1156–57. Second, if a violation

occurred, she must then show that the right was clearly established at the time of

the incident. Id. at 1156.

To begin, Tuck was engaged in discretionary functions. Discretionary

functions are actions taken by a government official during “the performance of his

duties and within the scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564

(11th Cir. 1988). Plaintiff’s allegations all involve actions taken by Tuck as a

detective. So the burden then shifts to Plaintiff to show that Tuck violated a clearly

established constitutional right.

Plaintiff contends that her arrest lacked probable cause because she was

engaged in lawful self-defense. So, she argues, that her arrest was unlawful, and

violated her Fourth Amendment rights. “An arrest made without probable cause is

an unreasonable seizure” and violates the Fourth Amendment. Paez v. Mulvey, 915

F.3d 1276, 1285 (11th Cir. 2019). Tuck contends that obtaining a valid arrest

warrant is sufficient for a valid and lawful arrest. While true, this argument

neglects to note that a valid arrest warrant must not only be facially valid but the

uncontroverted facts must “show that the arrest warrant was executed in good faith

and with probable cause.” Fullman v. Graddick, 739 F.2d 553, 561 (11th Cir.

1984) (emphasis added).

Probable cause is established “when the facts and circumstances within the

officer’s knowledge, of which he or she has reasonably trustworthy information,

would cause a prudent person to believe, under the circumstances shown, that the

suspect has committed, is committing, or is about to commit an offense.” Durruthy

v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003) (quoting McCormick v. City of

Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)). However, “[t]o receive

qualified immunity, an officer need not have actual probable cause, but only

‘arguable’ probable cause.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 734

(11th Cir. 2010). “Arguable probable cause exists ‘where reasonable officers in the

same circumstances and possessing the same knowledge as the Defendant[ ] could

have believed that probable cause existed to arrest.’” Lee v. Ferraro, 284 F.3d

1188, 1195 (citation omitted); see also Brown, 608 F.3d at 734. “This standard

recognizes that law enforcement officers may make reasonable but mistaken

judgments regarding probable cause but does not shield officers who unreasonably

conclude that probable cause exists.” Skop v. City of Atlanta, Ga., 485 F.3d 1130,

1137 (11th Cir. 2007).

Probable cause, arguable or not, is not a high bar to meet. Kaley v. United

States, 571 U.S. 320, 338 (2014). Probable cause “requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.”

D.C. v. Wesby, 138 S. Ct. 577, 586 (2018) (citing Illinois v. Gates, 462 U.S. 213,

243–44 n.13 (1983)). Far from “‘requir[ing] convincing proof’ that [an] offense

was committed,” probable cause is a flexible and fluid concept, that looks instead

to the totality of the circumstances to determine the reasonableness of the officer’s

belief that a crime has been committed. Manners v. Cannella, 891 F.3d 959, 968

(11th Cir. 2018) (quoting Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F.2d

1112, 1120 (11th Cir. 1992)). Meaning that, “[t]he test for probable cause is not

reducible to precise definition or quantification.” Florida v. Harris, 568 U.S. 237,

243 (2013) (internal quotation omitted).

Importantly, an affirmative defense to an alleged crime will not necessarily

defeat probable cause. Manners, 891 F.3d at 971–72. Police officers aren’t lawyers

and are not expected to resolve legal questions or to weigh the viability of most

affirmative defenses. See Williams v. City of Albany, 936 F.2d 1256, 1260 (11th

Cir. 1991) (“Whether the statute of limitations bars a prosecution is a question of

law. The officers properly deferred legal decisions to the district attorney.”).

Instead, the arresting officer should determine if “the totality of the circumstances

present a sufficient basis for believing that an offense has been committed.” Dahl

v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002).

Beyond that, Florida’s Stand Your Ground law, Florida Statutes §§ 776.012

and 776.032, adds another layer to the probable cause analysis. “[T]he Stand Your

Ground law is intended to be an immunity from prosecution as opposed to just

an affirmative defense[.]” Bretherick v. State, 170 So. 3d 766, 779 (Fla. 2015).

Under Florida’s Stand Your Ground law, “[a] person is justified in using . . .

deadly force if he or she reasonably believes that using . . . such force is necessary

to prevent imminent death or great bodily harm to himself or herself[.]” Fla. Stat. §

776.012(2). So an officer “may not arrest [a] person for using . . . force unless [the

officer] determines that there is probable cause that the force that was used . . . was

unlawful.” Id. § 776.032(2). As noted by the Eleventh Circuit, “[s]ection

776.032(1) expressly grants defendants a substantive right to not be arrested,

detained, charged, or prosecuted as a result of the use of legally justified force.”

Davis v. City of Apopka, 734 F. App’x 616, 622 (11th Cir. 2018) (quoting Dennis

v. State, 51 So. 3d 456, 462 (Fla. 2010)).

That said, the Florida Supreme Court has acknowledged that while §

776.032(1) purports to grant immunity from arrest

in many situations, it would be impossible for law enforcement to

secure a judicial immunity determination prior to arresting an

individual suspected of killing or causing bodily harm to another (or

attempting to do so). The law is clear that we expect officers to

temporarily detain a person encountered under circumstances creating

a reasonable suspicion of criminal activity. § 901.151, Fla. Stat. (2017).

Then, if there is probable cause to believe that the person committed a

felony, law enforcement is authorized to immediately effectuate the

arrest, under section 901.15, Florida Statutes (2017), and should clearly

do so when there is probable cause to believe that a person has

committed a serious crime of violence against another. Cf. §

907.041(4)(c)5., Fla. Stat. (2017) . . . . Probable cause to arrest for a

crime of violence would include probable cause to believe that the

suspect was not acting in self-defense; and, suspects will often claim

self-defense even when the facts would not appear to support such a

claim. This means that in most potential self-defense cases, a post-arrest

and post-charging immunity determination, made when a defendant’s

counsel requests that determination, will be the best that we can do.

Kumar v. Patel, 227 So. 3d 557, 559–60 (Fla. 2017). Yet it is a different situation

altogether when law enforcement waits to arrest someone and instead seeks a

judicial determination of probable cause in a case where Stand Your Ground issues

are potentially implicated—as was the case here. See Dkt. 57-1 at 68–69. Looking

to Florida law, it appears in that situation the person would have immunity from

arrest unless “there is probable cause that the force that was used . . . was

unlawful.” Fla. Stat. § 776.032(2).

Plaintiff’s argument that her arrest warrant lacked probable cause centers on

the allegation that Tuck failed to include certain facts in his warrant application.

Plaintiff argues that these facts would have prevented the warrant judge from

finding probable cause that her use of force was unlawful. And, since she was not

arrested until after the judicial determination of probable cause, this would have

given her immunity under Florida’s Stand Your Ground law from being arrested at

all.

It is clear that an officer cannot ‘cherry pick’ those facts that support a

probable cause determination and ignore those that are exculpatory. See Cozzi v.

City of Birmingham, 892 F.3d 1288, 1294 (11th Cir. 2018). An arrest warrant may

lack probable cause, and violate the Fourth Amendment, if a warrant application

affidavit has intentional or reckless material misstatements or omissions. Kelly v.

Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994). Negligent misstatements or

omissions, on the other hand, would not invalidate an arrest warrant. Id.

The Eleventh Circuit devised a two-part test to determine whether a

misstatement in an officer’s warrant affidavit amounts to a violation of the Fourth

Amendment. Paez v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019). First, this

Court asks “whether there was an intentional or reckless misstatement or

omission.” Id. Then, this Court “examine[s] the materiality of the information by

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

removed or the omitted information included.” Id.

At this stage in the proceedings this Court must view the evidence, and

draw all factual inferences, in a light most favorable to the non-moving party. Skop

v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Since it is a disputed

material fact whether Tuck omitted information and, if he did omit necessary

information, what his mindset was, this Court will take as true that Defendant

omitted, either intentionally or with reckless disregard, the information Plaintiff

alleges would have exculpated her. See Paez, 915 F.3d at 1287. The only

remaining question, then, is whether the warrant application filed by Tuck would

have still established probable cause to believe Plaintiff’s use of force was

unlawful if he had included the omitted information. If so, Tuck did not violate the

Fourth Amendment and is entitled to qualified immunity.

As a first step, this Court must determine what information was omitted

from the warrant application submitted by Tuck. Tuck’s probable cause affidavit

describes how both Plaintiff and Tillis called 911 after the shooting and Plaintiff

stated to the 911 calltaker [sic] “I just shot my boyfriend because he

was attacking me.” [Tillis] stated to the 911 call taker “[Plaintiff] shot

me, hurry’ and ‘get away from me.” The 911 call taker also asked if

[Tillis] knew why the defendant shot him and he stated “I don’t know,

hurry.”

Dkt 57-2 at 46. Tuck also describes how a search of Plaintiff’s residence found

blood—presumably Tillis’s—only in Tillis’s bedroom with “[n]o other evidence . .

. to believe a physical altercation occurred as [Plaintiff] described.” Id.

Tuck goes on in the affidavit to detail interviews with Plaintiff and Tillis.

Tuck notes that Plaintiff “related that she had an argument with [Tillis] which led

to her being battered.” Id. But, he observes that “an examination of [Plaintiff’s]

body did not corroborate these statements nor did the condition of her residence.”

Id. The only other thing that Tuck records about this interview is that Plaintiff said

“that after the battery she went into her room[,] obtained her handgun, loaded it,

chambered a round, and shot [Tillis].” Id. Tuck then describes his interview with

Tillis at Sarasota Memorial Hospital. In the interview Tillis denies being “involved

in any altercation with the[Plaintiff]. He stated he was going back to his bedroom

when he observed [Plaintiff] appear with a handgun and shoot him. [Tillis] denied

battering [Plaintiff] at any time and was not sure why [she] shot him.” Id.

But Tuck’s investigative reports and interview transcripts—which were not

attached to the warrant application—show details missing from Tuck’s

characterization in the affidavit. Despite presenting it as a he-said-she-said in the

warrant application Tuck was able to corroborate many details of the events that

took place before the shooting. Tillis admitted to Tuck that he angrily confronted

Plaintiff and the man she brought back to her home before physically throwing the

man out “by this ear.” Dkts. 57-3 at 1. Plaintiff told Tuck her head hurt from being

smashed into the ground and Tuck himself noticed a scratch on Plaintiff’s arm, but

this too was omitted. Dkt. 57-2 at 53. Similarly, Tuck omits certain details about

the reliability of Tillis’s statement—such as internally contradictory information

and admissions by Tillis that his memory of the night was unclear—while

including comments on the credibility of Plaintiff’s statements. Compare Dkt. 57-3

at 6–8 (detailing a conversation between Tillis and Tuck where Tillis is confused

about many details of the night including about the time of the shooting) with Dkt.

57-2 at 46 (“However, an examination of the [Plaintiff’s] body did not corroborate

[Plaintiff’s] statements nor did the condition of the residence.”).

Tuck also omits the context surrounding Plaintiff bringing the other man

home on the night of the shooting. Plaintiff and Tillis’s relationship had recently

gotten rockier than usual. Plaintiff had been attempting to get Tillis to move out

but he was refusing to do so. Dkt. 57-3 at 45. And, despite attempts by Plaintiff to

end their relationship, Tillis continued to refer to Plaintiff as his “wife.” Id. at 36–

37. Plaintiff had begun to warn Tillis that she intended to see other people since

they were no longer a couple. Id. at 63. The man that Plaintiff brought home that

night—who Tillis describes in his hospital interview as a “weirdo” with a “shitty

beard, shitty hair” and wearing “dumpy shit”—was the first man brought back to

her home since warning Tillis she intended to start dating. Id. at 1. There also was

increasing tension between Tillis and Plaintiff because Tillis was attempting to

maintain sobriety while Plaintiff was drinking again. Id. at 25.

Beyond that, the warrant application omits any mention of Tillis’s history of

violence including violence against Plaintiff. During his interview with Plaintiff,

Tuck learned that Tillis “abus[ed] her pretty bad while they were living in Ft.

Meyers.” Dkt. 57-2 at 50. Tuck had Plaintiff describe an incident where Tillis was

arrested for beating Plaintiff, dragging her to a car, and then throwing her out of

the moving car. Id. at 50–51; Dkt. 56 at 20. Plaintiff also told Tuck that there

continued to be physical fights between Plaintiff and Tillis, including two times

when she called the police. Dkt. 57-2 at 51. Tuck was able to confirm the existence

of these 911 calls. Id. at 54. Moreover, Tuck discovered that Tillis had been

previously charged for—though never convicted of—burglary, child abuse without

harm, and domestic battery. Id. at 55. All of these details, too, were omitted from

the warrant application affidavit.

Next, Plaintiff must establish that this omitted information would have

negated the probable cause determination. This is a difficult burden for Plaintiff.

The Eleventh Circuit recently noted that “if the [warrant application] (including the

omitted information) would have demonstrated even arguable probable cause—

that a reasonable officer could have believed an offense was committed—then the

officers are entitled to qualified immunity.” Paez, 915 F.3d at 1287. In this case the

burden is slightly different because of Florida’s Stand Your Ground law. The

question in this case is whether the warrant application with the omitted

information would have demonstrated even arguable probable cause that Plaintiff’s

use of force was unlawful. Plaintiff is unable to meet this high burden.

Florida appellate courts have noted that “to justify the use of deadly force,

the appearance of danger must have been so real that a reasonably cautious and

prudent person under the same circumstances would have believed that the danger

could be avoided only through the use of that force.” Garrett v. State, 148 So. 3d

466, 468 (Fla. 1st DCA 2014); see also Garcia v. State, 286 So. 3d 348, 352 (Fla.

2d DCA 2019). So the circumstances that Plaintiff faced before she shot Tillis

were key to any determination of the lawfulness of her actions. Many of these

details were omitted by Tuck.

Plaintiff and Tillis have a, by their own admission, strange and, at times,

abusive relationship. Dkt. 57-2 at 50, 62. Tillis has, on one verifiable time and

several other alleged times, been physically violent with Plaintiff. This includes the

time that Tillis brutally beat Plaintiff in the face before throwing her from a

moving vehicle. Dkt. 56 at 20. Even before the events of that night, Plaintiff’s

relationship with Tillis was already strained. Dkt. 57-2 at 52. They were sleeping

in separate rooms and Plaintiff was attempting to force Tillis to move out of the

home she owned. Dkt. 57-3 at 45. These facts set the scene for the confrontation

between Plaintiff and Tillis on the night of the shooting.

That night, Plaintiff brought home a man she met while out drinking. It is

undisputed that Plaintiff and the man were loud enough to wake up Tillis. Tillis

then angrily confronted them before throwing the man out “by the ear.” Dkt. 57-2

at 62. Plaintiff then alleges that Tillis began to argue with and attack her. She

alleges that Tillis threw her to the ground and began to “smash” her head into the

ground. She alleges that she believed that Tillis was out of control and would kill

her. Dkt. 57-3 at 63. She then runs to her room and gets her gun. It is unclear what

Plaintiff’s intentions were at this point but she returned to the hallway and ran back

into Tillis. It was in this small hallway area that Plaintiff shot Tillis. These

allegations are contradicted by Tillis.

During his interview at the hospital, Tillis told Tuck that he could not

remember if he got into an argument with Plaintiff that day. Dkt. 57-2 at 102. He

told Tuck that after he threw the man out “by his ear” there was no argument or

confrontation between him and Plaintiff. Dkt. 57-3 at 2–3. He then said that he was

walking back to his room when Plaintiff entered the hallway and shot him in the

abdomen. Id.

That all said, the facts that Tuck discovered in his investigation, taken in

their entirety, are unclear. It is agreed that Tillis was angry and physically attacked

the man Plaintiff had brought home. It is also agreed that Plaintiff went to her

bedroom, loaded a magazine into her handgun, chambered a round, returned to the

narrow hallway, and shot Tillis. What happened between these two agreed

bookends is disputed. In the light most favorable to Plaintiff, she was violently

attacked by her estranged former-boyfriend who had a history of violence against

her and who was angry with her after she returned home drunk and with a strange

man. But, even accepting this as true, a reasonable judge could have still found

probable cause that her use of force was unlawful.

Again, the standard here is high. Plaintiff must show that the warrant

application with the omitted information would not have demonstrated even

arguable probable cause that Plaintiff’s use of force was unlawful. While many of

the facts support Plaintiff’s version of events and paint a picture of justified self-

defense, there is enough ambiguity even in Plaintiff’s own version of the facts to

support arguable probable cause that her use of force was unlawful.

Accepting that Tillis attacked Plaintiff and that she credibly feared for her

life, she still had the time to go to her bedroom, retrieve the gun, and return to the

hallway to shoot Tillis as he was either retreating to his bedroom or following

Plaintiff to continue the attack. Even if ultimately her decision to shoot Tillis in the

hallway was perfectly reasonable, with the information Tuck was able to discover

there is a reasonable argument that the circumstances changed when she went to

her bedroom. It is a reasonable conclusion to draw that the danger she faced in the

hallway was no longer “so real that a reasonably cautious and prudent person under

the same circumstances would have believed that the danger could be avoided only

through the use of that force.” Garrett, 148 So. 3d at 468.

As noted by the Florida Supreme Court in Kumar v. Patel, Florida’s Stand

Your Ground law presents an interesting predicament. On the one hand, if law

enforcement knows a suspect shot someone, but sees a credible Stand Your

Ground argument, they may arrest that person and determine immunity from

prosecution at a hearing post-arrest. Kumar, 227 So. 3d at 559–60. On the other

hand, if law enforcement investigates the shooting and seeks an arrest warrant,

immunity from arrest is determined in an ex parte proceeding with no defense

argument, no ability to judge the credibility of witnesses, and no substantive

presentation of evidence.2 See Id. And in many cases—this one seemingly

included—the entirety of the evidence presented to the judge deciding probable

cause is a single-page affidavit sworn out by the detective assigned to the case. So

while Florida’s Stand Your Ground law purports to grant immunity from arrest, the

bounds of that immunity are unclear.

In that regard, Plaintiff may well have been entitled to Stand Your Ground

immunity from arrest for the shooting. In fact, after Plaintiff’s criminal defense

attorney engaged in discovery in her the criminal matter the State Attorney entered

a nolle prosequi in that prosecution. But that is not the issue presented in this case.

Here, this Court must determine whether the information omitted from the

probable cause affidavit that would have created a warrant application where there

was not even arguable probable cause. While many details relevant to the situation

that faced Plaintiff on the night of the shooting were—seemingly improperly—

omitted, taking all of the information found by Tuck there is still reasonably

2 However, to be clear, in this example too an arrested individual would have the opportunity for

a full hearing, while represented by legal counsel, to determine immunity from prosecution

under Stand Your Ground.

arguable probable cause that Plaintiff’s shooting Tillis in the stomach was

unlawful. So Plaintiff is unable to meet the second-prong of the Eleventh Circuit’s

test and there was arguable probable cause to arrest Plaintiff. Paez, 915 F.3d at

1287. Since Plaintiff is unable to show her arrest was unlawful Tuck is entitled to

summary judgment on Plaintiff’s section 1983 claim in Count II of the Amended

Complaint.

As for the section 1983 claim in Count I against Knight in his capacity as

Sheriff of the Sarasota County Sheriff’s Department, Knight argues that he is

entitled to summary judgment for several reasons. But, in her Response in

opposition to this Motion, Plaintiff fails to respond to any of Defendant's

arguments for summary judgment on Count I.

The Eleventh Circuit has repeatedly stated that failure to defend a claim on

summary judgment results in the claim being abandoned. Davis v. Coca-Cola

Bottling Co. Consol., 516 F.3d 955, 972 n.36 (11th Cir. 2008) (“[Plaintiff] did not

defend the claim on summary judgment; he thus abandoned it.”). “There is no

burden upon the district court to distill every potential argument that could be

made based upon the materials before it on summary judgment. . . . Rather, the

onus is upon the parties to formulate arguments; grounds alleged in the complaint

but not relied upon in summary judgment are deemed abandoned.” Resolution

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). The Court finds

that Plaintiff has abandoned Count I. So summary judgment on Count I is granted.

B. State Law Claims

With summary judgment granted to Defendants on the federal claims, all

that remains are Plaintiff’s state False Arrest claims, Counts III and IV. But, if a

district court “has dismissed all claims over which it ha[d] original jurisdiction,” 28

U.S.C. § 1367(c)(3) provides that the court may decline supplemental jurisdiction

over any remaining state law claims. See Raney v. Allstate Ins. Co., 370 F.3d 1086,

1088–89 (11th Cir. 2004) (“The decision to exercise supplemental jurisdiction over

pendant state claims rests within the discretion of the district court.”). The

Supreme Court notes that “in the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered under the pendent

jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will

point toward declining to exercise jurisdiction over the remaining state-law

claims.” Carnegie-Melion Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Similarly,

the Eleventh Circuit “encourage[s] district courts to dismiss any remaining state

claims when, as here, the federal claims have been dismissed prior to trial.” Raney,

370 F.3d at 1089.

These false arrest claims center on Florida’s Stand Your Ground. In the

interest of comity to Florida state courts to interpret these unique issues, Plaintiff’s

False Arrest claims are best heard in state court.3 Finding no reason why the

remaining state law claims should proceed in this forum, this Court declines to

exercise supplemental jurisdiction. The state law claims (Counts III and IV) are

dismissed without prejudice. See Ingram v. Sch. Bd. of Miami-Dade Cnty., 167 F.

App’x. 107, 109 (11th Cir. 2006) (“When a court decides not to exercise

supplemental jurisdiction under § 1367(c)(3) because only state claims remain, the

proper action is a dismissal without prejudice so that the complaining party may

pursue the claim in state court.”). As to these state claims, this Court tolls the

statute of limitations for sixty days.

3 The statute of limitations on these claims has not yet run and Plaintiff is still free to pursue

these state law remedies in state court. See Ervans v. City of Venice, 169 So. 3d 267, 268 (Fla. 2d

DCA 2015) (citing Fla. Stat. § 95.11(3)(o)).

Conclusion

The Court grants Defendants’ Motion for Summary Judgment, Dkt. 40, for

Counts I (Section 1983 False Arrest claim against Knight) and II (Section 1983

False Arrest claim against Tuck). Counts III (state law False Arrest claim against

Knight) and IV (state law False Arrest claim against Tuck) are dismissed, without

prejudice. The Clerk is directed to enter judgment consistent with this Order,

terminate any pending motions, and close the file.

DONE AND ORDERED at Tampa, Florida, on June 23, 2020.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record