Anderson v. Ivey

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

LEE EDWARD ANDERSON,

Plaintiff,

Vv. Case No. 6:19-cv-2014-JA-GJK

WAYNE IVEY and ZACHARY

FERREIRA,

Defendants.

ORDER

Lee Edward Anderson brings this action pursuant to 42 U.S.C. § 1983 fo

alleged violations of the Fourth Amendment to the U.S. Constitution, and he

also brings claims under Florida law. The two Defendants—the Sheriff o!

Brevard County, Florida, in his official capacity and Deputy Zachary Ferreira

in his individual capacity—now move for summary judgment. (Mot., Doc. 46).

But there are numerous material facts in dispute, and viewing the evidence in

Anderson’s favor—as required when assessing Defendants’ summary judgment

motion—the motion must be denied.

I. Factual and Procedural Background

Shortly before 11:00 p.m. on Monday, January 29, 2018, Anderson was

driving in the city of Cocoa, Florida, in his 2007 Mercury Grand Marquis.

Anderson, who was employed as a network controller for a defense contractor,

was headed from his home in Rockledge to his job at Cape Canaveral.) Afte

traveling west on Peachtree Street, Anderson turned north onto Pineda Street.

Deputy Ferreira was driving his marked Sheriffs office Dodge Charger tha

evening, and he had traveled south on Pineda and was stopped at the stop □□□□

at Peachtree when Anderson made the turn, (Anderson Dep., Doc. 51, at 42

Ferreira Dep., Doc. 47, at 30, 42). According to Deputy Ferreira, as the Marqui:

passed he looked in his side mirror and noticed that the Marquis had □□□□□

visible tag lights.”3 (Ferreira Dep. at 50). Deputy Ferreira made a U-turn anc

followed the Marquis. (Id. at 52; Anderson Dep. at 42). Deputy Ferreira claim:

that while he was traveling behind the Marquis northbound on Pineda neai

Endeavor Elementary School, he observed a small clear plastic bag tied in ¢

knot fly out of the passenger side of the Marquis and land in the grass on the

east side of Pineda, across from the school. (Ferreira Dep. at 68—71, Ferreira

' Anderson typically worked a daytime shift, but that evening he was scheduled

to earn overtime pay by covering a night shift for a vacationing co-worker. (Anderson

Dep., Doc. 51, at 15-16).

2 Deputies described the area where the events at issue occurred as an area

known for drug activity. (See Ferreira Dep., Doc. 47, at 73 (“It’s a high crime area,

that whole vicinity. There’s drug activity, gang activity, stuff like that in that □□□□□□□□

Yearty Dep., Doc. 48, at 23 (describing a “moderate to heavy volume” of “drug activity

in that area”)).

3 Section 316.221, Florida Statutes, is titled “Taillamps” and provides in part

that “[e]ither a taillamp or a separate lamp shall be so constructed and placed as to

illuminate with a white light the rear registration plate and render it clearly legible

from a distance of 50 feet to the rear.” § 316.221(2), Fla. Stat. And the taillamp or

separate lamp “shall be so wired as to be lighted whenever the headlamps or auxiliary

driving lamps are lighted.” Id.

Arrest Report, Doc. 47-1 at 2; Ferreira Case Report Narrative, Doc. 47-1 at 4)

He could not tell whether anything was in the plastic bag. (Ferreira Dep. at 71)

Deputy Ferreira remained behind Anderson’s vehicle on Pineda as it

reached the red light at the intersection of Pineda and Dixon Boulevard. Wher

the light turned green, Anderson turned right (east) onto Dixon and Deputy

Ferreira activated his overhead lights to initiate a stop of the Marquis. ‘

Anderson pulled over on the side of Dixon Boulevard, and Deputy Ferreira

parked behind the Marquis. When Deputy Ferreira approached the □□□□□□□□

door of the Marquis and told Anderson that his tag lights were out, Anderson

seemed surprised. (Ferreira dashcam video #2 at 22:56:08 to 22:56:22).

Deputy Ferreira had radioed his intention to conduct a traffic stop, and at

least five other deputies, including a K-9 officer, responded for backup. Field

Training Officer Deputy Robert Rowell and his trainee, Deputy Dalton

Brandow, arrived at the scene of the stop within a minute. (See Ferreira

dashcam video #2; Rowell dashcam video #1). After Anderson exited his car as

instructed by Deputy Rowell, Deputy Ferreira asked Anderson what he had

thrown out of the window while Deputy Ferreira was following the Marquis.

4 When Deputy Ferreira activated the overhead lights, the dashcam on his

Charger turned on. That dashcam preserves video beginning 30 seconds before it is

activated, and that video—submitted by Defendants in four segments—captured much

of the traffic stop. (See Docs. 54 & 55 and accompanying flash drive). Dashcams on

two other law enforcement vehicles also recorded video that Defendants submitted

with their summary judgment motion. (See id.)

(Ferreira dashcam video #2 at 22:57:39 to 22:58:01). Anderson denied throwing

anything out of the window and insisted that the windows of the Marquis were

up. (Ferreira dashcam video #2 at 22:58:00 to 22:58:04). Holding up his □□□□□

finger, Deputy Rowell then told Anderson that he had “one chance.” □□□□□□□□□

dashcam video #2 at 22:58:04 to 22:58:07; Rowell Dep., Doc. 49, at 42). Andersor

insisted that he was telling the truth and reiterated that he did not throw

anything out the window and that the window was up. (Ferreira dashcam videc

#2 at 22:58:07 to 22:58:11).

Meanwhile, other officers, including Deputy William Yearty and Deputy

Justin Winstead, went to Pineda Street across from the school to search for the

bag that Deputy Ferreira reported seeing fly out of the Marquis’s passenger

window. At 23:16:13, someone can be heard on Deputy Ferreira’s radio saying,

“Right by the school, I got a baggie with a couple of crack rocks in it.” (Ferreira

dashcam video #4 at 23:16:13 to 23:16:16). Dashcam video taken from the

vehicle of Deputy Yearty shows that at 23:19:355 Deputy Yearty pulled over on

Pineda near where Deputy Winstead was standing and shining a flashlight at

the ground. Deputy Yearty then put on gloves, picked a plastic bag up off the

ground, and put it on the hood of his vehicle. The bag contained a white

5 Two dashcam videos from Deputy Yearty’s vehicle are in the record. They are

substantially the same, but video #2 is of better quality and is partially in color rather

than black and white.

substance, and Deputy Yearty tested it with his field-test kit. At 23:24:22 1

23:24:24, Deputy Yearty and Deputy Winstead note on the dashcam video the

the substance had tested positive as crack cocaine.

Deputy Yearty then drove to the scene of the traffic stop, where othe

deputies had been searching Anderson’s vehicle. That search, which include

searches of Anderson’s briefease and the trunk of the Marquis, turned u

nothing. One of the deputies on the scene was K-9 officer David Lovell. Deput

Lovell was not asked to have his trained narcotics-trained dog sniff Anderson’

vehicle, and the dog accordingly remained in Deputy Lovell’s vehicle throughou

the stop and search. (Lovell Dep., Doc. 50, at 13, 16). Deputy Yearty gave th

plastic bag to Deputy Ferreira, and ultimately Deputy Ferreira arreste

Anderson for possession of cocaine and possession of drug paraphernalia.¢ Th

6 Both Deputy Ferreira and Deputy Yearty wrote reports about the incident

(Ferreira Arrest Report, Doc. 47-1 at 1-2; Ferreira Case Report, Doc. 47-1 at 3—€

Yearty Case Supplement Report, Doc. 48 at 77-79). None of those reports or Deput:

Ferreira’s Affidavit for Reimbursement of Investigative Costs (Doc. 47-1 at 7) mention

any of the other four officers involved. Deputy Yearty’s report states in part that h

“conducted a search on foot” and “[w]hile on foot [he] located a clear plastic baggie tie:

in a knot” in front of the school. (Doc. 48 at 78). Deputy Ferreira’s report similarl

states that Deputy Yearty located the bag. (Doc. 47-1 at 4).

But as is clear from Deputy Yearty’s dashcam video and as acknowledged bi

both Deputy Yearty and Deputy Ferreira in their depositions, it was actually □□□□□□□

Winstead—not Deputy Yearty—who found the plastic bag. (Y earty Dep. at 24 □□□□□□□

pulled up to Deputy Winstead, he had located a plastic baggy on the ground.”); □□□□□□□□

Dep. at 97). As Deputy Yearty put it in his deposition, “I located it after he located it.

(Yearty Dep. at 27). Deputy Ferreira did not realize that Deputy Winstead was the

one who found the bag until he reviewed Deputy Yearty’s dashcam video the weel

before Deputy Ferreira’s September 2020 deposition. (Ferreira Dep. at 97-98).

cocaine in the plastic bag weighed less than one gram. (Ferreira Dep. at 112).

Anderson was taken to jail, strip-searched, and ultimately released o1

bond at around 4:00 a.m. on Wednesday, January 31, 2018.7 (Anderson Dep. a

40-41, 50). Two weeks later, on February 14, the state attorney filed a Notice

of No Information, declining to pursues the charges against Anderson. (Doc. 47

1 at 18).

Anderson filed this suit against Deputy Ferreira and the Sheriff it

October 2019. (Compl., Doc. 1). In his Amended Complaint (Doc. 20), Andersor

alleges two federal claims pursuant to 42 U.S.C. § 1983 and three claims □□□□□

Florida law: (1) against Deputy Ferreira for violation of the Fourth Amendment

based on the stop, detention, and interrogation; (2) against Deputy Ferreira □□□

false arrest/false imprisonment in violation of the Fourth Amendment; (3

against the Sheriff for false arrest/false imprisonment under Florida law; (4)

against Deputy Ferreira for false arrest/false imprisonment under Florida law:

and (5) against Deputy Ferreira for malicious prosecution under Florida law.

Defendants seek summary judgment on all of Anderson’s claims.

7 Anderson held a secret security clearance—first acquired in 1987—for his job.

(Anderson Dep. at 14-15). As a condition of that security clearance, he was required

to tell his supervisor that he had been arrested, and he did so. (Id. at 60-61). He then

had to redo the security clearance application, (id. at 63), and he was not allowed to

view classified material until an investigation by his employer was completed six

months later, (id. at 70-71). Anderson had no prior arrests and has had none since.

(Id. at 71).

Il. Summary Judgment Standards

“The court shall grant summary judgment if the movant shows that ther

is no genuine dispute as to any material fact and the movant is entitled t

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling on a motion fo:

summary judgment, the Court construes the facts and all reasonable inference:

therefrom in the light most favorable to the nonmoving party and “may no

make credibility determinations or weigh the evidence.” Reeves v. □□□□□□□□□

Plumbing Prods., Inc., 530 U.S. 188, 150 (2000). But when faced with :

“properly supported motion for summary judgment, [the nonmoving party] mus

come forward with specific factual evidence, presenting more than meré

allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.8d 995, 999 (11th Cir. 1997).

“[A]t the summary judgment stage the judge’s function is not himself □□

weigh the evidence and determine the truth of the matter but to determin:

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 47’

U.S. 242, 249 (1986). “Essentially, the inquiry is ‘whether the evidence present:

a sufficient disagreement to require submission to the jury or whether it is si

one-sided that one party must prevail as a matter of law.” Sawyer v. Southwes

Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2008) (quoting Anderson, 47’

U.S. at 251-52). Summary judgment is mandated “against a party who fails t

make a showing sufficient to establish the existence of an element essential t

that party’s case, and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Ill. Discussion

A. Anderson’s Federal Claims

In Counts I and II, Anderson challenges the traffic stop and his arrest an

imprisonment pursuant to 42 U.S.C. § 1983, alleging in both counts that Deput

Ferreira violated the Fourth Amendment’s proscription against unreasonab!]

seizures. Deputy Ferreira contends that he is entitled to summary judgment o

both claims based on the defense of qualified immunity. But it is not possibl

to conclude from the summary judgment record that Deputy Ferreira enjoy

qualified immunity from Anderson’s claims.

“The doctrine of qualified immunity protects government officials ‘fror

liability for civil damages insofar as their conduct does not violate clearl

established statutory or constitutional rights of which a reasonable perso

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotin

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To receive qualified immunity}

the officer must first show that he acted within his discretionary authority.

Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). Here

there is no dispute that Deputy Ferreira was acting within his discretionar

authority during the events at issue. Thus, “the burden . . . shifts to the plainti

to show that qualified immunity should not apply.” Lewis, 561 F.3d at 1291.

Determination of whether Deputy Ferreira enjoys the benefit of qualifie

immunity at the summary judgment stage requires assessment of (1) □□□□□□□□

the facts, viewed in the light most favorable to Anderson, show a violation of a

constitutional right and (2) whether that right was clearly established at the

time of the events at issue. See Pearson, 555 U.S. at 232; see also Tolan v.

Cotton, 572 U.S. 650, 655-56 (2014); Stryker v. City of Homewood, 978 F.3d 769

773 (11th Cir. 2020) (If, at the summary judgment stage, the evidence

construed in the light most favorable to the plaintiff shows that there are facts

inconsistent with granting qualified immunity, then the case and the qualifiec

immunity defense proceed to trial.”). This two-part analysis need not be

undertaken in any particular order. Pearson, 555 U.S. at 236.

Both of Anderson’s § 1983 claims arise under the Fourth Amendment, anc

both involve clearly established rights. As Defendant’s acknowledge, it “has

long been clearly established that ...an investigatory or traffic stop violates the

Fourth Amendment absent ‘reasonable suspicion’ to suspect the □□□□□□□□□□

person stopped of criminal activity or probable cause to believe that the drive:

has committed a traffic violation.” Bletcher v. City of Orlando, Case No. 6:13:

ev-1913-Orl-37TBS, 2015 WL 13333135, at *6 (M.D. Fla. May 20, 2015). Andi

has also long been clearly established that “a full custodial arrest violates the

Fourth Amendment unless it is justified by a warrant or ‘probable cause’ t

believe a crime has been committed.” Id.

Although an officer may obtain the benefit of qualified immunity if onl;

arguable probable cause or arguable reasonable suspicion existed, see id., □□□□

the facts are contested as to both arguable probable cause and arguable

reasonable suspicion. The parties vigorously dispute whether the Marquis’s tag

lights were out and whether Anderson threw a plastic bag out the window

Deputy Ferreira insists that the answer to both of these questions is yes, but

Anderson maintains that neither assertion is true. Under Anderson’s versior

of events, there was not arguable probable cause to believe that a traffic

violation occurred, arguable reasonable suspicion to suspect Anderson o:

criminal activity, or arguable probable cause to arrest Anderson for possessior

of drugs or drug paraphernalia.

First, Anderson maintains that the tag lights of the Marquis were not out

on the night in question, relying on several pieces of evidence to support his

position. He correctly notes that the dashcam video from Deputy Ferreira’:

Charger does not establish that the tag lights were out; indeed, as Andersor

argues, a jury viewing the video might conclude that it shows—as the Marquis

turned from Pineda onto Dixon—that the tag lights were on. (See Ferreire

dashcam video #2 at 22:55:26—-22:55:32; Anderson Dep. at 77). Moreover, wher

Anderson and his son, Keithen, went to pick up the Marquis at the impound lot

on January 31 after Anderson’s release from jail, Keithen took photographs o!

the car at the impound lot that seem to show the tag lights functioning. (See

Doc. 61 & jpg files on accompanying flash drive; see also Keithen Hamilton

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Dep., Doc. 57, at 5-9). Anderson also took video of the Marquis when he go’

home that night; that video appears to show the tag lights illuminated. (See

Doc. 61 & .mp4 video file on accompanying flash drive). And in his deposition

Anderson testified that since acquiring the Marquis in 2014, he had never hac

to change out the tag lights. (Anderson Dep. at 48). In view of this evidence

the Court cannot conclude at this stage of the case that arguable probable cause

existed that a tag light violation occurred.

Second, Deputy Ferreira and Anderson present conflicting testimony

about whether a plastic bag was indeed thrown out of the Marquis. Deputy

Ferreira insists that he saw a bag fly out, but in a sworn affidavit Andersor

states: “I neither had nor threw a plastic baggie or anything else out of my

vehicle while travelling north on Pineda Street between Peachtree and Dixon.

(Anderson Aff., Doc. 56, § 3). At this stage of the case, Anderson’s version o

events must be credited, and it does not support reasonable suspicion of crimina

activity by Anderson or probable cause to arrest him.

It is not the role of the Court to resolve disputes of fact in ruling □□

motion for summary judgment. The record presents a credibility contest tha

cannot be resolved at this point. Anderson will bear the burden of proving to :

8 Deputy Ferreira acknowledges in the summary judgment motion that the fact.

must be “viewed in the light most favorable to the plaintiff’? when assessing qualifie:

immunity. (Doc. 46 at 15). But he then urges that the issue must be “analyzed fron

the perspective of the officer” and that “[t]he only perspective that counts is that of :

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jury that his version of events is the correct one, but his account must be credited

at the summary judgment stage. Deputy Ferreira is not entitled to summary

judgment on Anderson’s § 1983 claims based on qualified immunity.

B. Anderson’s State Law Claims

In addition to his federal claims in Counts I and II, Anderson brings

claims under Florida law in Counts III, IV, and V. He alleges false arrest/false

imprisonment against the Sheriff (Count III) and Deputy Ferreira (Count IV).

And in Count V, he asserts malicious prosecution against Deputy Ferreira only.

Defendants contend that they are entitled to summary judgment on these

claims because probable cause existed for Anderson’s arrest. Additionally

Deputy Ferreira asserts that he is immune from lability on Counts IV and \

reasonable officer on the scene.” (Id. at 16 (quoting Garezynski v. Bradshaw, 573 F.3c

1158, 1166 (11th Cir. 2009)). He also contends that “material issues of disputed fact

are not a factor in the court’s analysis of qualified immunity.” (Id. at 18 (quoting

Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005)).

But analyzing the issue “from the perspective of the officer” does not mean thai

courts are to accept the officer’s testimony as true where it is contradicted by the non

moving party. And the reason that issues of disputed fact “are not a factor” is because

where facts are disputed at the summary judgment stage, the Court must accept the

non-movant’s view of the facts. See Robinson, 415 F.3d at 1257 (‘With the plaintiff:

best case in hand, the court is able to move to the question of whether the defendan

committed the constitutional violation alleged in the complaint without having t«

assess any facts in dispute.”); see also Tolan v. Cotton, 572 U.S. 650 (2014) (reversing

grant of summary judgment based on qualified immunity in § 1983 case where □□□□□

court did not view the summary judgment evidence in the light most favorable to the

non-movant); Stryker v. City of Homewood, 978 F.3d 769 (11th Cir. 2020) (same); ef

Williams v. Aguirre, 965 F.3d 1147, 1152 (11th Cir. 2020) (“Because, under [the

plaintiffs] version of events, the officers enjoy no immunity from [his] complaint tha’

they falsely accused him... , we affirm [the denial of their motion for summary

judgment].”).

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because he did not act “in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or property.”

See § 768.28(9)(a), Fla. Stat. (providing that “[t]he exclusive remedy for injury

or damage suffered as a result of an act, event, or omission of an officer,

employee, or agent of the state or any of its subdivisions or constitutional officers

shall be by action against the governmental entity, or the head of such entity in

her or his official capacity, ... unless such act or omission was committed in bad

faith or with malicious purpose or in a manner exhibiting wanton and willful

disregard of human rights, safety, or property”). Both of Defendants’ arguments

are unavailing.

First, although Defendants are correct that the existence of probable

cause bars claims of false arrest and malicious prosecution, Alvarez-Mena_v.

Miami-Dade Cnty., 305 So. 3d 68, 67-68 (Fla. 8d DCA 2019), summary

judgment cannot be granted on those claims where the facts regarding probable

cause are disputed, id. at 69. Here, viewing the evidence in the light most

favorable to Anderson, probable cause did not exist.

And Deputy Ferreira’s assertion of immunity under section 768.28(9)(a)

fares no better. Under Anderson’s version of events, a jury could conclude that

Deputy Ferreira acted “in bad faith or with malicious purpose or in a manney

exhibiting wanton and willful disregard of human rights, safety, or property” sc

as to overcome his statutory immunity.

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For these reasons, Defendants’ motion for summary on Anderson’s state

law claims must be denied.

C. Punitive Damages

Anderson requests an award of punitive damages against Deputy Ferreira

in the § 1983 claims in Counts I and II of the Amended Complaint.® Deputy

Ferreira seeks summary judgment regarding those requests. But this portion

of Defendants’ motion must also be denied.

“TA] jury may be permitted to assess punitive damages in an action under

§ 1988 when the defendant’s conduct is shown to be motivated by evil motive or

intent, or when it involves reckless or callous indifference to the federally

protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Here, if a

jury credits Anderson’s version of events, it could conclude that Deputy Ferreira

was “motivated by evil motive or intent” or acted with “reckless or callous

indifference” to Anderson’s federally protected rights. Deputy Ferreira is not

entitled to summary judgment as to Anderson’s requested punitive damages

remedy.

IV. Conclusion

Accordingly, it is ORDERED that the Motion for Final Summary

9 Anderson does not request punitive damages in any of his state law claims

(See Am. Compl., Doc. 20, at 7-10).

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Judgment (Doc. 46) filed by Defendants is DENIED in all respects.

DONE and ORDERED in ey □ arch , 2021.

ff <b __ Lo

JOHN ANTOON II

7 United States District Judge

Copies furnished to:

Counsel of Record

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