# Bellay v. Shue

> District Court, M.D. Florida · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10105827

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105827

## How later opinions describe it (automated extraction)

- noting that “[d]isorderly conduct is not a serious offense” and “resisting arrest without force does not connote a level of dangerousness that would justify a greater use of force”
- finding use of force following suspect’s surrender that resulted in a broken arm was excessive even though suspect had previously been violent towards officers

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRENDA BELLAY,
Plaintiff,
v. No: 8:19-cv-206-T-02-JSS

OFFICER TYLER SHUE, individually,
and CITY OF TAMPA,
Defendants.
____________________________/
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This is a false arrest and excessive force case. The matter came before the
Court for a hearing on Officer Tyler Shue’s motion for summary judgment, Docs.
28, 32, and Plaintiff’s response, Docs. 39, 40. The Court heard argument from

counsel. Because the facts are entirely in contest, the Court denies the motion.
This matter arises out of a late-night arrest of Plaintiff in September 2015 by
Defendant Shue, a Tampa police officer. Shue arrested Plaintiff at the Tampa bar
MacDinton’s for resisting arrest and trespass with warning. Docs. 28-1; 28-2 at

15. The state attorney later dismissed the charges.
Plaintiff asserts seven counts in her complaint. Against Officer Shue,
Plaintiff asserts Count I, a claim for false arrest under 42 U.S.C. § 1983; Count II,

a common law false arrest claim; Count IV, a claim for excessive force under 42
U.S.C. § 1983; Count V, a common law battery claim; and Count VII, a 42 U.S.C.
§ 1983 freedom of speech claim. The two counts against the City of Tampa, for

common law false arrest and common law battery, are not the subject of the motion
for summary judgment.
The Summary Judgment Standard: The summary judgment standard is

well-cited, and the Court need not set forth quotations from the hornbook law here.
Suffice it to say, under Federal Rule of Civil Procedure 56(a) judgment is
appropriate when there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The Court examines “the

pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any” to determine if there is any issue as to material fact.
Jones v. City of Columbus, Ga., 120 F.3d 248, 251 (11th Cir. 1997). The movant

carries this burden. Celotex Corp. Catrett, 477 U.S. 317, 323 (1986).
The Court must weigh the evidence in a light most favorable to the non-
movant. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir.
2014). The issue is whether the evidence is so one-sided that a reasonable jury

could only arrive at a verdict in the movant’s favor. Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Making credibility determinations and
weighing conflicting evidence are not appropriate at this stage. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986).
After assessing the evidence in a manner described above, in police
encounter cases the Court often must address the issue of qualified immunity.

Qualified immunity is a doctrine that shields “government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have

known.’” Carruth v. Bentley, 942 F.3d 1047, 1053 (11th Cir. 2019) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Law enforcement officers acting
within their discretionary authority “are entitled to qualified immunity from suit
unless a plaintiff can establish that (1) the officer violated a constitutional right,

and (2) the right violated was clearly established.” Alston v. Swarbrick, 954 F.3d
1312, 1318 (11th Cir. 2020). If “the evidence at the summary judgment stage,
viewed in the light most favorable to the plaintiff, shows there are facts that are

inconsistent with qualified immunity being granted, the case and the qualified
immunity issue along with it will proceed to trial.” Johnson v. Breeden, 280 F.3d
1308, 1317 (11th Cir. 2002).
Here, Officer Shue was at all times acting within his discretionary authority

as a police officer. Therefore, the question for the Court is whether Shue violated
Plaintiff’s clearly established constitutional rights.
The Factual Basis: Many of the facts in this case are disputed and

somewhat murky given the passage of time between the incident and the witness
depositions. The uncontested facts are fairly few. Exactly what happened is
“choppy” on this record, as regrettably is the summary here. It appears that

Plaintiff and a female friend were out for the evening, eating dinner and then
visiting several bars in the Howard Avenue area of Tampa. It was the friend’s
fiftieth birthday. Doc. 28-6 at 7. The pair had several drinks. Plaintiff states that

she only had two drinks the entire night. Doc. 28-5 at 66. That might be true, but
the MacDinton’s arrest incident happened after 1:00 a.m. Sunday morning, after
the pair had visited about five different bar/restaurants. Id. at 66, 68.
1. Cellphone video of the incident

Plaintiff sought to record the incident with her phone but was unsuccessful
in completing a full recording; we have only a few fairly incomprehensible
snippets. Doc. 34.1 Plaintiff’s video (taken before her arrest) shows that she and

the friend were in MacDinton’s parking lot, and there was a lot of loud music. Id.
Plaintiff’s apparently-drunk friend can be seen wearing a bar-admit-type plastic
wristband that did not come from MacDinton’s. Id.; Doc. 28-4 at 36–38. In one
video snippet, Plaintiff’s friend strikes Shue’s fellow officer on the chest with her

open hand while loudly cursing. Doc. 28-5 at 61; Doc. 34. The blow Plaintiff’s
friend made to the officer was not a hard strike, but the video shows it was plainly
what one would call a battery. See Doc. 28-3 at 10; Doc. 34. In another snippet

1 The snippets are on a CD, which is kept as a physical record by the Clerk at Doc. 34.
the friend is seen on her knees in the parking lot with the fellow officer standing
nearby. Doc. 34. Another snippet depicts the arrest of the friend, during which

Officer Shue appears to tell Plaintiff to “Back up. Back up.” Id.; Doc. 28-2 at 52;
Doc. 28-5 at 61, 129.
A recorded snippet with unclear video also depicts Officer Shue telling

Plaintiff sternly, “Drop the phone or I’m going to break it.” Doc. 28-2 at 51.
Plaintiff then says, “No, I’m not going to,” whereupon there is an immediate
scuffle, the phone is upset, and Shue physically arrests or takes down Plaintiff,
which cannot be seen clearly on video. Doc. 28-5 at 62. At one point in this

snippet, Plaintiff states in exclamation, “You must not know.” Doc. 34; Doc. 28-2
at 51; Doc. 28-5 at 86. This is consistent with Plaintiff’s statement that she told the
officers it was legal to video record police. Doc. 28-5 at 61, 83, 116, 129, 153.

2. Testimony regarding Plaintiff’s arrest
With an incomplete recording of the incident, deposition testimony must be
relied on to fill in the gaps. We can begin with the few points on which there is
agreement in the record. The consensus is that the events at the heart of this

lawsuit were set in motion when Plaintiff’s friend and MacDinton’s security agents
became engaged in a heated confrontation. Id. at 74. Responding to the
commotion, Officer Shue and a fellow officer arrived at the scene and asked the

friend for her identification. The friend refused the officers’ request for
identification “numerous times.” Id. at 75. Shue’s fellow officer testified he
needed the identification to do a trespass warning. Doc. 28-3 at 9–10. But the

friend refused to produce it and was yelling. Id.; Doc. 28-5 at 60–61, 75. Plaintiff
also testified that the other officer asked Plaintiff for her identification. Doc. 28-5
at 61, 78–79.

Most of the remaining facts are in dispute, which requires the Court to credit
Plaintiff’s version of events. As the officers handcuffed the friend, they told
Plaintiff twice to back away from them. Id. at 81. Plaintiff testified that she took a
step backward as ordered and announced she was videotaping and that it was not

illegal. Id. at 83. Then, according to Plaintiff, Shue slammed her into a car and
said, “relax,” and then he said, “Drop your phone or I’m going to break it.” Id. at
84.

Plaintiff testified Officer Shue accosted her angrily and without warning,
apparently incensed that she refused to stop filming. She states that after a forceful
takedown, Shue kicked her in the back of the head while she was prone,
handcuffed, and compliant, and then yanked her up by the arms, which injured her

further. Doc. 28-5 at 152–155. Officer Shue denies all of this. See Doc. 28-2.
No other competent evidence exists regarding Plaintiff’s physical arrest
beyond the parties’ opposing narratives.2 But the available video snippets do

contradict Plaintiff’s story as to the timing of when Shue ordered her to drop the
phone. The video shows Officer Shue directed Plaintiff to drop her phone right
before the takedown—not after. Doc. 34.

The testimony of Plaintiff’s friend generally aligns with the video in terms
of timing. The friend recalled that things escalated after she “flat hand pushed”
the police officer. Doc. 28-6 at 13–14, 17. She testified that at some point Shue’s
fellow officer started to “drag” her and “question” her. Id. at 38. As this was

happening, Plaintiff asked the officer, “What’s going on?” and was within arm’s
reach when she did so. Id. at 38. Plaintiff’s friend testified the officer asked
Plaintiff to stop recording, and when she did not, the officer knocked the phone out

of Plaintiff’s hand. Id. at 16. The friend denied being drunk but testified about
having four drinks. Id. at 35, 38.
3. Conflicting testimony on the events post-arrest

2 The MacDinton’s security guard testified with a hazy recollection due to the four years since
the incident and it being a commonplace, routine event to call police for patron trouble at this
popular party bar. He first testified that he did not recognize Plaintiff and had no recollection of
the incident at all, but then noted it was “kind of coming back” to him but, as he put it, he was
going “on an hour of sleep . . . and this was four years ago.” Doc. 28-4 at 5–6, 9, 12. He kept no
notes or report. His testimony is too vague and indefinite to have any bearing at this stage, on a
cold written record. His hazy recollection might be presented to the jury for whatever it is worth.
He favors Defendant’s version of events.
An equally contested set of facts involves the incidents post-arrest. Officer
Shue testified that he offered Plaintiff a notice to appear so that she could be

released and appear on charges later, at her own recognizance. Doc. 28-2 at 55.
This is what happened to the apparently-drunk friend who struck the other officer.
Doc. 28-6 at 21–22. Shue says Plaintiff refused to sign the notice to appear. Doc.

28-2 at 55. Plaintiff says Shue thrust some item or clipboard at her, did not explain
was it was, and told her to sign something that she believed to be inculpatory—so
she did not. Doc. 28-5 at 162–63.
Also in contest are facts concerning medical treatment at the scene. Shue

testified that Plaintiff had some sort of seizure while waiting to be transported, and
the officers had to call an ambulance so she could be medically assessed. Doc. 28-
2 at 54. Officer Shue also testified that Plaintiff began slamming her head against

the seat partition, and had to be put into a posey vest-type physical restraint. Doc.
28-2 at 55–56. Shue’s fellow officer also testified he had to put Plaintiff into this
restraint garment. Doc. 28-3 at 15. This fellow officer said emergency medical
service (“EMS”) had to be called when Plaintiff evinced some sort of injury. Doc.

28-3 at 13, 24. Plaintiff denies any recollection of this happening at all. Doc. 28-5
at 153–154.
There is an EMS run report showing this ambulance appearance on the

scene, with Plaintiff listed as the patient being assessed, and noting that Plaintiff
had been reported as passed out and unable to be aroused, or “unconscious
fainting.” Doc. 49-1 at 1–13; Doc. 49-2 at 10. The report noted Plaintiff was

“awake and yelling,” id. at 11, with no pain complaints or handcuff pain or injury.
Id. at 27–30. In this report the primary impression was psychiatric disorder, with
the condition code listed as “alcohol intoxication or drug overdose.” Id. at 16–17.

The EMS officers testified but had no recollection of the incident independent of
the report. Doc. 49-1 at 7; Doc. 49-2 at 28. Plaintiff says she recalls no encounter
with an ambulance or EMS paramedics that evening. Doc 28-5 at 153. Her
lawyers suggested at the hearing this may have been a mistake in identity and it

might have been the drunk friend who was attended to by EMS. Shue’s counsel
suggest Plaintiff may have been too drunk or upset to remember. Shue’s testimony
and the run report show she was the drunk, yelling patient as listed by EMS. Doc.

28-2 at 54–55. This is a jury question as to what happened.
The disputed history is further highlighted by the fact that Plaintiff’s injuries
are consistent with both versions of the case. Plaintiff was bonded out of jail on
Sunday, the day of her arrest. She went to see a lawyer on Monday and did not

seek medical attention until Tuesday. The clinic on Tuesday offered pain
medication, which she declined. Doc 28-5 at 97. Her mild-to-moderate bruising
on the legs and wrists, and palpable bump on the head, see id. at 180–186, are
consistent both with her story that she was attacked, and with that of Officer Shue
that she resisted and engaged in a manic fury while restrained.

The False Arrest Counts: Counts I and II allege false arrest under 42
U.S.C. § 1983 and Florida common law, respectively. Plaintiff was arrested for
trespass with warning, Fla. Stat. § 810.09(2)(a) (2015), and resisting an officer

without violence, Fla. Stat. § 843.02 (2015).
An arrest without a warrant and lacking probable cause violates the
Constitution and can be an underpinning for a false arrest claim. Brown v. City of
Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). But the existence of

“probable cause constitutes an absolute bar to both state and § 1983 claims alleging
false arrest.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998); Fernander v.
Bonis, 947 So. 2d 584, 589 (Fla. 4th DCA 2007) (same). In the qualified immunity

context, an officer must establish only “arguable probable cause” to defeat a false
arrest claim. Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001). Here,
arguable probable cause existed if a reasonable officer placed “‘in the same
circumstances and possessing the same knowledge as [Officer Shue] could have

believed that probable cause existed to arrest’ the [P]laintiff[].” Id. (quoting Redd
v. City of Enterprise, 140 F.3d 1378, 1384 (11th Cir. 1998)). The existence of
arguable probable cause is judged under an “objective” standard and “does not
include an inquiry into the officer’s subjective intent or beliefs.” Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010).

The analysis begins with the trespass without warning charge. This was the
alleged offense that triggered the interaction between Officer Shue and Plaintiff
that ended in her arrest. The offense of misdemeanor trespass consists of four

elements: “(1) the [individual] willfully entered or remained on property; (2) other
than a structure or conveyance; (3) without being authorized, licensed, or invited;
(4) when notice against entering or remaining had been given to the [individual].”
Seago v. State, 768 So. 2d 498, 500 (Fla. 2d DCA 2000); Fla. Standard Jury Instr.

13.4 (Crim.). For the fourth element actual notice is required. “When an invitation
has been extended to enter an open business, actual communication is necessary to
put a person on notice that he is no longer welcome on the property and may be

arrested for trespass.” K.M.B. v. State, 69 So. 3d 311, 314 (Fla. 4th DCA 2011)
(citing Smith v. State, 778 So. 2d 329, 331 (Fla. 2d DCA 2000)).
The element of notice is entirely in dispute here. Plaintiff and Officer Shue
are the only two persons who have provided any substantive, factual testimony in

this record about the precise details of their interaction leading up to Plaintiff’s
arrest. 3 And their stories are in direct conflict.

3 Officer Shue’s fellow officer at the scene did not recall any significant details of Shue’s
interaction with Plaintiff. During that time, the fellow officer was occupied with Plaintiff’s
misbehaving friend, and did not offer any testimony about the relevant interactions between
Officer Shue testified that when he arrived at MacDinton’s he was told by
the fellow officer that the two ladies had been asked to leave and were refusing to

do so. Doc. 28-2 at 8. He testified that he asked Plaintiff to leave, notifying her
that she was requested to depart. Id. at 10–11. Plaintiff’s friend was on the ground
when he arrived. Id. at 10. The officers helped the friend get up, and she then

struck the fellow officer, and Plaintiff still refused to leave. Id. at 13. Office Shue
testified Plaintiff kept crowding him, which is a safety issue. He claims he had to
push her back several times, and she interfered with his investigation. Id at 15,
22. In one of the tape snippets, it appears Officer Shue is telling Plaintiff to “back

up.” Id. at 52.
Officer Shue further testified that when he was arresting Plaintiff, she kept
saying something like, “Do you know who I am?” repeatedly. Doc. 28-2 at 17.

Concerning this, Plaintiff testified: “I said [to Shue] my name is Brenda Bellay,
please check the Tampa Police record of false arresting me [a prior false arrest I
was exonerated on] and he yelled ‘I don’t care who you are.’” Doc. 28-5 at 86.
Plaintiff’s version of the facts differs entirely from Officer Shue’s.

According to her, she was calmly attempting to film the incident with her phone,
and backed up when instructed. She states that Officer Shue accosted her in an

Plaintiff and Defendant, nor is any such detail in his written report. Doc. 28-3 at 12–13, 14, 16–
19.
enraged fashion, apparently incensed by her videotaping. Doc. 28-5 at 61, 83–88,
117. She also flatly denies that she was ever trespass noticed, or instructed by

anyone to leave the premises. She says she was not. Doc. 28-5 at 75, 79, 116, 169.
Shue says she was. Doc. 28-2 at 10–11. Nobody else says anything.4
Given these diametrically opposed accounts, this is not a case where there is

“arguable notice” or “arguable probable cause.” Either there was an express
trespass notice/warning, or there was not—there are no shades of gray here.
Plaintiff squarely states no notice or trespass warning was given to her—ever.
Doc. 28-5 at 169. Defendant claims the flat, absolute opposite. Doc. 28-2 at 10–

11. The Court must construe these facts in Plaintiff’s favor at this stage. This
material fact is in dispute and requires denial of the summary judgment motion on
the false arrest counts.

The other crime charged, resisting without violence, is derivative of the
trespass charge. If there was no probable cause to arrest for trespass (as the
evidence viewed in Plaintiff’s favor establishes) then there could be no lawful
charge of resisting (false) arrest without violence. Jackson v. State, 192 So. 3d

4 Officer Shue testified Plaintiff refused his instruction to depart. Doc. 28-2 at 10–11. Shue also
testified that the fellow officer told Shue that the fellow officer had instructed both women to
depart. Id. at 57–58. Plaintiff denies this, and the fellow officer only recalled instructing
Plaintiff’s misbehaving friend.
541, 543 (Fla. 4th DCA 2016) (“If an arrest is unlawful, a defendant cannot be
guilty of resisting it without violence.” (internal quotation marks omitted)).

As to the claim under Florida law for false arrest (Count II), Officer Shue
argues that he is immune from suit under sections 768.28(9) and 776.05 of the
Florida Statutes. Section 768.28(9)(a) provides immunity as a matter of law for a

state agent, acting within the scope of his employment, unless the agent “acted in
bad faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.” Again, accepting all of the facts
asserted by Plaintiff, Officer Shue attacked her and kicked her gratuitously after

arresting her without probable cause—thus acting in bad faith and with willful
disregard of safety. This Florida statutory defense will remain for trial on the
many contested facts.

Likewise, section 776.05, entitled “Law enforcement officers; use of force in
making an arrest,” states in part that an officer need not retreat or desist in making
a lawful arrest due to resistance of the arrestee, and the officer may use force that
he reasonably believes is necessary to defend himself or herself or another from

bodily harm in making the arrest. § 766.05(1). This statute appears only slightly
on point, and does not affect the analysis at this stage.
The Excessive Force Counts: Office Shue also moves for summary
judgment on Counts IV and V, which allege 42 U.S.C. § 1983 excessive force

arrest and common law battery, respectively.
When evaluating the constitutionality of an arresting officer’s use of force,
we must balance “the nature and quality of the intrusion on the individual’s Fourth

Amendment interests” against the government’s interest in safely apprehending the
suspect. Graham v. Connor, 490 U.S. 386, 396 (1989) (citations omitted). This is
necessarily a fact-intensive inquiry that requires a court to consider (1) “the
severity of the crime at issue,” (2) “whether the suspect poses an immediate threat

to the safety of the officers or others,” and (3) “whether [s]he is actively resisting
arrest or attempting to evade arrest by flight.” Id. Assessment of an arrestee’s
excessive force claim is governed by a standard of “objective reasonableness.”

Kingsley v. Hendrickson, 576 U.S. 389, 396–397 (2015). If the Court credits
Plaintiff’s statement that she was compliant, lying on the ground, and Defendant
Shue gratuitously kicked her in the head, this is clearly an objectively
unreasonable use of force. The qualified immunity standard is plainly not met for

a gratuitous blow struck upon a complying, handcuffed arrestee.
The first Graham factor involves assessing the severity of the crime at issue.
Graham, 490 U.S. at 396. The underlying crime—a misdemeanor trespass—

cannot fairly be described as “severe.” Vinyard v. Wilson, 311 F.3d 1340, 1347
(11th Cir. 2002); see also Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir.
2011) (noting that “[d]isorderly conduct is not a serious offense” and “resisting

arrest without force does not connote a level of dangerousness that would justify a
greater use of force”).
The second and third Graham factors—which ask whether the suspect poses

a threat to officers or is attempting to evade arrest—also favor Plaintiff when
accepting her version of events. The “gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive force.” Hadley v. Gutierrez,
526 F.3d 1324, 1330 (11th Cir. 2008). And there was no doubt at the time of this

incident that, in the Eleventh Circuit, striking a compliant and nonthreatening
suspect—particularly one in handcuffs—constitutes excessive force. Id.; Slicker v.
Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000); see also Smith v. Mattox, 127 F.3d

1416, 1419–20 (11th Cir. 1997) (finding use of force following suspect’s surrender
that resulted in a broken arm was excessive even though suspect had previously
been violent towards officers).
Officer Shue denies this “unprovoked kick to head” story factually. But he

also suggests that it fails legally, because it runs afoul of the “sham affidavit”
doctrine. He notes that a description of the excessive force can be found in the
complaint and in Plaintiff’s original interrogatory answers, and Plaintiff fails

entirely to describe a kick to her head while she was handcuffed and prone. Only
in her deposition does this tale appear, notes Officer Shue. Doc. 28-5 at 112.
Plaintiff testified about the kick to her head in her deposition when Officer Shue’s

counsel asked whether she was kicked or kneed once she was handcuffed. Id.
And then a month later Plaintiff amended her interrogatory answers to describe the
kick to the back of her head by Officer Shue. Doc. 28-8 at 1–2.

Although it is a close question, the Court determines that the “sham affidavit
doctrine”5 does not operate here to bar or preclude Plaintiff’s deposition testimony.
This “head kick” testimony was clear and was not “extracted” by Plaintiff’s
lawyer’s coaching during her deposition. The complaint and interrogatory answers

were written by a lawyer, or perhaps drafted by a paralegal. Plaintiff’s first chance
to personally tell her story contains this plain (and otherwise unimpeached beyond
Shue) description of how she was kicked in the head and how the blow only could

have come from Officer Shue. Plaintiff did not give a deposition and produce full
discovery, only to contradict or “correct” some omitted or impeaching fact at the

5 This doctrine is basically one of judicial estoppel. It almost always applies when a later
affidavit contradicts or saves, in the affiant’s favor, a prior sworn deposition by that affiant. It is
infrequently applied, and usually is invoked when a lawyer has sought to plug a hole at the end
of the case with an affidavit that contradicts earlier, more reliable testimony. See Van T. Junkins
& Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a party has given
clear answers to unambiguous questions which negate the existence of any genuine issue of
material fact, that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.”); see also Allen v. Bd. of
Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1316–1317 (11th Cir. 2007); Rolllins v. TechSouth,
Inc., 833 F.2d 1525, 1530 (11th Cir. 1987).
end through an affidavit piled onto a summary judgment response at the last
minute.

Plaintiff notes the Eleventh Circuit “appears to have applied the [sham
affidavit] rule only when an affidavit or declaration contradicts sworn deposition
testimony.” Doc. 39 at 8 (citing Baysa v. Gualtieri, 786 F. App’x 941 (11th Cir.

2019), and Allen, 495 F.3d at 1316). That is not the scenario here. Plaintiff’s
deposition testimony expanded her original interrogatories and did not expressly
contradict them. This is more in the nature of trial impeachment rather than
disqualifying.

Subject to the “sham affidavit” rule, a “plaintiff’s testimony cannot be
discounted on summary judgment unless it is blatantly contradicted by the record,
blatantly inconsistent, or incredible as a matter of law, meaning that it relates to

facts that could not have possibly been observed or events that are contrary to the
laws of nature.” Sears v. Roberts, 922 F.3d 1199, 1208 (11th Cir. 2019) (citations
omitted). Plaintiff’s testimony is not facially incredible and does not fit squarely
within the present state of the “sham affidavit” doctrine.

Officer Shue denies kicking a compliant Plaintiff in the head when she was
on the ground handcuffed. And the “bump on the head” noted in Plaintiff’s
medical clinic report two days later is consistent with her banging her head in a

rage while inside the patrol car, something which might well have happened and
has some support in the record such as the other officer’s testimony and the EMS
run report. As the Eleventh Circuit has noted, this “presents us with ‘a classic

swearing match, which is the stuff of which jury trials are made.’” Id. (quoting
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013)). For the
reasons already articulated, if a jury believes Plaintiff’s testimony, she is entitled to

a judgment in her favor on the excessive force claim. Striking a compliant and
handcuffed suspect after all resistance has ceased amounts to a clearly established
constitutional violation. A jury will determine whether this happened.
As to Count V, common law battery, the Defendant asserts the Florida

statutory immunity discussed above in regard to Count II. The same analysis
applies.
The First Amendment Count: Plaintiff’s Count VII alleges that she

possessed a First Amendment right to film the police, and was doing so in a public
place in a safe and nonthreatening manner. The Count alleges that Officer Shue
violated Plaintiff’s First Amendment rights by forcibly stopping her filming.
The First Amendment of the U.S. Constitution states in its entirety:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
It is quite a capacious reading of this language to find Plaintiff had an
affirmative right under this text to peacefully film police action in a public place,
when she was not engaged in protesting, speech, or any expressive conduct.
However legal the simple act of filming police in public may be, it does not fit well

within the text of this Amendment when divorced from expressive conduct. The
Eleventh Circuit has indeed recognized an affirmative First Amendment right to
videotape police activity in public, if done in a peaceful and non-obstructive

manner. Smith v. City of Cumming, 212 F. 3d 1332, 1333 (11th Cir. 2000); Bowers
v. Superintendent Miami S. Beach Police Dep’t, 557 F. App’x 857, 863 (11th Cir.
2014); Toole v. City of Atlanta, 798 F. App’x 381, 387 (11th Cir. 2019).6 In Smith
the Court, per Judge Barkett, established this substantive right in a ruling

unnecessary to the holding, overruling a district judge who had found no such
right. See 212 F.3d at 1333.
Because this First Amendment right is set forth by the Eleventh Circuit, it is

well-established. Indeed, Defendant Shue testified that he became aware Plaintiff
was filming and that filming was not by itself an arrestable offense and citizens
“absolutely” may film police at a safe distance in a reasonable manner. Doc. 28-2
at 23, 36–37 (Shue: “People can record whatever they want in a public place.”).

6 Perhaps a more logical way of addressing this claim would be just to consider it in a false arrest
context. Because filming the police in a peaceful, non-obstructive manner is not illegal, the act
does not support probable cause to arrest under either Florida common law or the Fourth
Amendment.
A Plaintiff who claims a retaliatory arrest for asserting First Amendment
rights must plead and establish the lack of probable cause. Nieves v. Bartlett, 139

S. Ct. 1715, 1724 (2019). In the summary judgment context here, Plaintiff must
show a contested issue of fact on this point. She has done that.
Whether Officer Shue violated this known right that night at MacDinton’s is

simply a swearing contest between the only two people who offer evidence on the
point. Officer Shue stated he did not. He stated that he told Plaintiff to drop her
phone or he would break it as part of arresting her for trespass and obstructing
police activity by not backing up. Doc. 28-2 at 26, 57. Plaintiff states entirely the

opposite: Shue wanted her to stop filming, became enraged when she said she
would not, and accosted her in an arrest takedown and assault as retaliation. See
Doc. 39 at 10–11 (listing record citations). Plaintiff’s friend also testified that one

of the officers told Plaintiff to stop filming and knocked the phone out of her hand.
Doc. 28-6 at 16.
Based upon the foregoing analysis, this matter is contested factually.
Neither the state of the facts nor the qualified immunity doctrine precludes Plaintiff

from her day in court on her complaint.
DONE AND ORDERED at Tampa, Florida on September 3, 2020.

/S/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105827. Public record. Not legal advice.