Bezzaz v. Moore

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

KHADIJA BEZZAZ,

Plaintiff,

Vv. Case No. 6:21-cv-528-JA-DAB

CHRISTOPHER MOORE and

MICHAEL FULLER,

Defendants.

ORDER

Khadija Bezzaz’s face, neck, arms, and back were cut and scarred by flying

shards of glass when a deputy sheriff shattered her car window by striking it

with a baton during a traffic stop. Pursuant to 42 U.S.C. § 1983, Bezzaz filed

this action against Orange County Deputy Sheriffs Christopher Moore and

Michael Fuller, alleging that they violated her rights under the Fourth

Amendment to the U.S. Constitution. Bezzaz also asserts claims under Florida

law.

Moore and Fuller now move for summary judgment, relying in part on the

defense of qualified immunity. (Mots., Docs. 30 & 31).! Viewing the record

evidence in Bezzaz’s favor—as required when assessing Defendants’ summary

' In addition to the summary judgment motions themselves, the relevant filings

are Bezzaz’s Responses (Docs. 32 & 33) and Defendants’ Replies (Docs. 34 & 35).

judgment motions—both motions must be granted in part and denied in part.

I. Factual and Procedural Background

This case arises from a very brief but eventful traffic stop that was largely

captured by Moore’s and Fuller’s body cameras.2 On June 3, 2020, just over a

week after George Floyd was killed by a Minneapolis police officer, a group of

people gathered in eastern Orlando, Florida, to protest Floyd’s death. The

Orange County Sheriff's Office monitored the group throughout the day. At

around 7 p.m., a sergeant observed a car stopped on Curry Ford Road next to

protesters gathered on the sidewalk. The sergeant radioed for officers in his

unit to get the car to move along. (See, e.g., Strickland Dep., Doc. 30-10, at 13).

Moore responded to the call and pulled his marked sheriffs office vehicle

behind the stopped car; Fuller came up behind Moore’s vehicle in his own

marked vehicle. The video shows the car—driven by Bezzaz, a five-foot-five-

inch-tall female who was the only occupant of the car—stopped in the roadway

with its hazard lights flashing and several of the protesters standing in the road

beside the driver’s window talking to Bezzaz. Moore Body Cam Video at 00:01—

00:05. Moore activated the lights on his vehicle and called over the speaker on

his vehicle for Bezzaz to move along. Id. at 00:05—00:10.

After about ten seconds, Bezzaz drove to a nearby Walgreens parking lot

2 Both sides filed flash drives containing the body camera footage.

and pulled in, turned back toward the road, and stopped. Id. at 00:15—00:55.

Moore and Fuller pulled in behind her. As a third sheriff's office vehicle pulled

in and blocked Bezzaz’s access to the road, Moore exited his car and immediately

began yelling for Bezzaz to “get out of the car” as he approached the driver’s

door. Id. at 00:56-1:07. At that point, Bezzaz was seated in the driver’s seat

with the window about 1/4 of the way down. Id. at 01:07. Moore repeated his

command to “get out of the car” and Bezzaz responded, “Why?” Id. at 01:07.

Moore immediately asked, “Do you want to go jail? Seriously? Either get out

of the car or you're going to jail.” Id. at 01:08. Bezzaz asked, “Why am I getting

out of the car?” while beginning to film the encounter with her cell phone. Id.

at 01:14.

By this time, Fuller had approached the driver’s door as well. Moore told

Bezzaz that she had been stopped in the middle of the road, and Fuller told her

that they had “a lawful reason” for asking her to get out of the car. Id. at 01:16—

01:20. Moore repeated that Bezzaz had been stopped in the roadway, “violating

a traffic violation,” and said, “At this point you are being detained, do you

understand?” Id. at 01:20-01:25. Bezzaz stated, “Um, I wasn’t doing anything

besides ...” before Moore interjected, “I’m not going to sit here and argue with

you, I’m going to ask you to step out of the car or we’re going to remove you out

of the car, your choice, I’m trying to be nice, I have not been disrespectful, have

I?” Id. at 01:26-01:38. Bezzaz responds, “No, but I don’t think I have done

anything to be detained for.” Id. at 1:40-1:42.

At that point, the encounter suddenly and rapidly escalates. Moore car

be seen reaching into Bezzaz’s car through the open window while Bezzaz yells

“Do not reach into my car. Do not reach into my car. Stop! Stop!” Id. at 01:43-

01:46. Moore grabs the top of the open window with both hands, as if to try tc

break it, but then removes his hands. Id. at 01:43—-1:47. Moore then suddenly

hits the window with his baton while Bezzaz repeatedly yells “stop” and

screams. Id. at 01:48. At almost exactly the same moment, Fuller begins hitting

the passenger side window with his own baton. Id. at 01:48.

Moore shattered the driver's window with the second strike of his baton

just as Bezzaz started to open the driver’s door—approximately 42 seconds after

Moore approached the door. Id. at 01:48-01:50. Shards of glass flew into

Bezzaz’s car and onto her face and body. Id. at 01:51. Bezzaz began screaming

“Oh my God” as Moore and Fuller pulled her out of the car, ordered her to put

her hands behind her back, propelled her up against the driver’s door of Fuller’s

car, and handcuffed her. Id. at 01:51-2:08. They then placed Bezzaz in the back

of Moore’s car. Id. at 2:08-2:22. By that time, there were at least eight law

enforcement officers on the scene, and some of the protesters had made their

way along the sidewalk to the Walgreens.

While seated alone in Moore’s car, Bezzaz realized that her face was

bleeding and shouted to Moore, “I need help. I am bleeding, I need an

ambulance.” Id. at 03:22—03:28. Moore called for an ambulance, but because he

did not tell Bezzaz that he had done so, Bezzaz continued to tell him, “I am

bleeding, I need an ambulance,” id. at 03:32-03:34; 03:42-:03:44, and screamed,

“I am bleeding!” as Moore left her in the car alone again, id. at 03:48-03:51.

When Moore opened the back door where Bezzaz was seated, Bezzaz—visibly

bleeding from her face—again screamed, “I am bleeding, I need an ambulance.”

Id. at 03:55-04:00. Moore then told her that an ambulance was on the way. Id.

at 04:00.

An ambulance ultimately arrived and took Bezzaz to the hospital, where

she was briefly treated for cuts from the glass and released. Moore submitted

charges against Bezzaz of battery on a law enforcement officer? and resisting an

officer without violence to the state attorney’s office, but that office declined to

prosecute. (See Arrest Aff., Doc. 30-4; see also State Attorney Documentation,

Doc. 30-11, at 1-2).

Bezzaz filed this suit against Moore and Fuller in March 2021. (Compl.,

Doc. 1). In the Complaint, Bezzaz asserts four federal claims pursuant to 42

U.S.C. § 19838 for alleged violations of the Fourth Amendment: against Moore

(Count I) and Fuller (Count II) for false arrest; against Moore for excessive force

(Count III); and against Fuller for failure to intervene (Count IV). She also

3 The basis for the battery charge was Moore’s assertion that Bezzaz rolled the

car window up on his arm. Bezzaz disputes this, and the videos do not resolve it.

asserts three claims under Florida law against Moore: false imprisonment

(Count V), battery (Count VI), and intentional infliction of emotional distress

(Count VII). Defendants seek summary judgment on all of Bezzaz’s claims.

II. Summary Judgment Standards

“The 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). In ruling on a motion for

summary judgment, the Court construes the facts and all reasonable inferences

therefrom in the light most favorable to the nonmoving party and “may not

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

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

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

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

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477

USS. 242, 249 (1986). “Essentially, the inquiry is ‘whether the evidence presents

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

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

Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (quoting Anderson, 477

U.S. at 251-52).

6

III. Discussion

A. Federal Claims

In Counts I through IV, Bezzaz claims that Moore and Fuller falsely

arrested her, that Moore used excessive force, and that Fuller failed to intervene

to stop Moore’s use of excessive force—all in violation of the Fourth

Amendment’s proscription against unreasonable seizures.4 Both Moore and

Fuller contend that they are entitled to summary judgment on these claims

based on the defense of qualified immunity. As set forth below, both Defendants

enjoy qualified immunity on the false arrest claims. However, the summary

judgment record does not support qualified immunity for Moore on the excessive

+The Fourth Amendment’s “ban on ‘unreasonable searches and seizures” is

“made applicable to the States by the Due Process Clause of the Fourteenth

Amendment.” City of Ontario v. Quon, 560 U.S. 746, 750 (2010); accord Bailey v.

United States, 568 U.S. 186, 192 (2013). Thus, in the Complaint, Bezzaz properly

alleges deprivation “of her constitutional rights guaranteed by the Fourth and

Fourteenth Amendments of the United States Constitution.” (Doc. 1 at 1).

In their summary judgment motions, Defendants seem to find fault with

Bezzaz’s reference to the Fourteenth Amendment as part of the basis of her claims.

(See, e.g., Doc. 30 at 11 (“Plaintiffs assertion that the Fourteenth Amendment applies

in the instant case is misguided.”); Doc. 31 at 11 (same)). Defendants apparently

construe Bezzaz’s reference to the Fourteenth Amendment as an indication that she is

pursuing her claims as a pretrial detainee rather than as an arrestee. See, e.g., Piazza

v. Jefferson Cnty., 923 F.3d 947, 952 (11th Cir. 2019) (explaining that “the Fourth

Amendment prevents the use of excessive force during arrests, and the Eighth

Amendment serves as the primary source of protection against excessive force after

conviction, [while] it is the Fourteenth Amendment that protects those who exist in

the in-between—pretrial detainees” (citations omitted)); (see Doc. 30 at 12: Doc. 31 at

12). But it is clear to the Court that Bezzaz is pursuing her claims as an arrestee under

the Fourth Amendment standard, and her reference to the Fourteenth Amendment

reflects that that amendment makes the Fourth Amendment applicable to the states

and their subdivisions.

force claim or for Fuller on the failure-to-intervene claim.

1. Qualified Immunity Principles

“The doctrine of qualified immunity protects government officials ‘from

ability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

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

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). If the

officer does so, “the burden then shifts to the plaintiff to show that qualified

immunity should not apply.” Id.

If Defendants were acting within their discretionary authority,

determination of whether Defendants enjoy the benefit of qualified immunity

on any of Bezzaz’s claims at the summary judgment stage requires assessment

of (1) whether the facts, viewed in the light most favorable to Bezzaz, 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

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

be undertaken in any particular order. Pearson, 555 U.S. at 236. All of Bezzaz’s

§ 1983 claims arise under the Fourth Amendment’s protection against

unreasonable seizures.

2. Application

a. Discretionary Function

Bezzaz argues—with surprising vigor—that Defendants were not

performing a “discretionary function” during the events at issue. (See, e.g., Doc.

32 at 9-11; Doc. 33 at 9-11). But Bezzaz is incorrect on this point. She

essentially argues that law enforcement officers do not have discretion to violate

citizens’ constitutional rights, but this is not the correct focus of the

“discretionary function” inquiry.

Under well-established precedent, the salient question in analyzing

whether an officer was performing a “discretionary function” is “whether the

[officer] was (a) performing a legitimate job-related function (that is, pursuing

a job-related goal), (b) through means that were within his power to utilize.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). As

the Eleventh Circuit explained in Holloman, “to pass the first step of the

discretionary function test for qualified immunity, the defendant must have

been performing a function that, but for the alleged constitutional infirmity,

would have fallen with[in] his legitimate job description.” Id. at 1266 (emphasis

in original). Thus, the Holloman court explained, “[i]n considering whether ar

act of allegedly excessive force fell within a police officer’s duties, for example

we do not ask whether police have the right to use excessive force.” Id. (emphasis

in original); see also Crosby v. Monroe Cnty., 394 F.8d 1328, 1332 (11th Cir.

2004) (“Because making an arrest is within the official responsibilities of a

sheriffs deputy, [the defendant] was performing a discretionary function when

he arrested [the plaintiff].”). In sum, Defendants unquestionably were

performing discretionary functions when they pulled Bezzaz over for a traffic

violation and ultimately arrested her; whether they violated her rights in doing

so 1s assessed during a later part of the analysis. Thus, “the burden... shifts

to [Bezzaz] to show that qualified immunity should not apply.” Lewis, 561 F.3d

at 1291.

b. False Arrest (Counts I (Moore) and II (Fuller))

Bezzaz alleges false arrest in Counts I and II, asserting that Moore and

Fuller “had no legal right to detain. handcuff (seize) or arrest” her. (Compl.

‘I 44 & 54). But because—even viewing the facts in the light most favorable to

Bezzaz—Defendants had at least arguable probable cause to believe that Bezzaz

had committed both a traffic violation and the offense of resisting without

violence during the traffic stop, Defendants are entitled to qualified immunity

on the false arrest claims.

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i. The Traffic Stop

Bezzaz asserts that Moore and Fuller had no right to “detain” her. But

she is mistaken. To the extent Bezzaz bases Counts I and II on an assertion

that the initial traffic stop itself was an unreasonable seizure, Moore and Fuller

enjoy qualified immunity.

“Temporary detention of individuals during the stop of an automobile by

the police, even if only for a brief period and for a limited purpose, constitutes a

‘seizure’ of ‘persons’ within the meaning of’ the Fourth Amendment. Whren v.

United States, 517 U.S. 806, 809-10 (1996). “As a general matter, the decision

to stop an automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred.” Id. at 810. “To receive qualified

immunity, an officer need not have actual probable cause, but only ‘arguable’

probable cause.” Brown v. City of Huntsville, 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 Defendants could

have believed that probable cause existed to” detain the plaintiff for having

committed a traffic violation. Id. (quoting Kingsland vy. City of Miami, 382 F.3d

1220, 1232 (11th Cir. 2004)). Here, Defendants had arguable probable cause to

believe that Bezzaz committed a traffic offense when she stopped in the roadway

and impeded traffic. See, e.g., § 316.183(5), Fla. Stat. (providing that “[n]Jo

11

person shall drive a motor vehicle at such a slow speed as to impede or block the

normal and reasonable movement of traffic”).

Thus, Defendants enjoy qualified immunity on Bezzaz’s false arrest

claims to the extent these claims are based on the initial traffic stop.

ii. The Arrest

Bezzaz also asserts in Counts I and II that her arrest was an unreasonable

seizure in violation of the Fourth Amendment. But just as with the initial traffic

stop, Bezzaz cannot overcome qualified immunity because Defendants had

arguable probable cause to arrest her.

“[W]hen an officer has probable cause to believe a person committed even

a minor crime in his presence, ... [t]he arrest is constitutionally reasonable.”

Virginia v. Moore, 553 U.S. 164, 171 (2008). And as just discussed, an officer

enjoys qualified immunity if he had “only ‘arguable’ probable cause.” Brown,

608 F.3d at 734.

Here, Defendants had at least arguable probable cause to arrest Bezzaz

for committing a traffic violation and for resisting an officer without □□□□□□□□□

Under Florida law, “[a] law enforcement officer may arrest a person without a

warrant when,” among other things, “[t]he person has committed a felony or

>In his Reply, Moore asserts that he also had probable cause to arrest Bezzaz

for battery on a law enforcement officer. (See Doc. 34 at 6). But the facts are in dispute

regarding that offense.

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misdemeanor . .. in the presence of the officer” or “[a] violation of chapter 316

has been committed in the presence of the officer.” § 901.15(1), (5), Fla. Stat.

Chapter 316, Florida Statutes, contains the state’s traffic laws.

It was reasonable for Defendants to believe that Bezzaz committed a

traffic violation in their presence. and Defendants therefore had arguable

probable cause to arrest her. See, e.g., § 316.183(5), Fla. Stat. Additionally,

Defendants had arguable probable cause to arrest Bezzaz for the offense of

resisting an officer without violence in violation of section 843.02, Florida

Statutes. It has long been established that it is permissible for law enforcement

officers to require a driver to exit the car during a traffic stop. See Pennsylvania

v. Mimms, 434 U.S. 106 (1977). By failing to comply with Moore’s commands to

exit the car, Bezzaz at least arguably “resist[ed], obstruct[ed], or oppose[d]” him

within the meaning of § 843.02.

Because Defendants had at least arguable probable cause to arrest

Bezzaz, they enjoy qualified immunity on her false arrest claims.¢ Thus, their

summary judgment motions must be granted as to Counts I and II of the

Complaint.

6 The existence of arguable probable cause is sufficient to dispose of Bezzaz’s

federal false arrest claims. As discussed later in this Order with regard to Bezzaz’s

state law false imprisonment claim, Defendants also had actual probable cause to

arrest Bezzaz, and the federal claims in Counts I and II would fail on the merits even

in the absence of the defense of qualified immunity.

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c. Excessive Force (Count III—Moore)

Bezzaz asserts in Count III that Moore used excessive force in arresting

her. Moore is not entitled to summary judgment on this claim.

“It is clearly established that the use of excessive force in carrying out an

arrest constitutes a violation of the Fourth Amendment.” Thornton v. City of

Macon, 132 F.3d 1395, 1400 (11th Cir. 1988) (citing Graham v. Connor, 490 U.S.

386, 394 (1989)). While some degree of force is expected and sometimes

necessary in order to carry out a lawful arrest, excessive use of force renders a

seizure unreasonable. See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1197-98 (11th

Cir. 2002). Assessing the reasonableness of the force used “requires a careful

balancing of ‘the nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental interests at

stake.” Graham, 490 U.S. at 396 (further internal quotations marks omitted)

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also Stephens v.

DeGiovanni, 852 F.3d 1298, 1317 (11th Cir. 2017) (“In considering an excessive-

force case, a court should determine whether an officer’s conduct in making an

arrest is objectively reasonable or if it is an over-reactive, disproportionate

action for the situation relative to the response of the apprehended person.”); id.

at 1318 (“Courts must examine ‘the fact pattern from the perspective of a

reasonable officer on the scene with knowledge of the attendant circumstances

and facts, and balance the risk of bodily [or psychological] harm to the suspect

14

against the gravity of the threat the officer sought to eliminate.” (alteration in

original) (quoting McCullough v. Antolini, 559 F.3d 120 1, 1206 (11th Cir.

2009))).

As the Supreme Court explained in Graham, evaluation of the

reasonableness of force under the Fourth Amendment “requires careful

attention to the facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. In

addition to these Graham factors, a court “also consider[s] as relevant the

nature and extent of the arrestee’s injuries.” Glasscox v. City of Argo, 903 F.3d

1207, 1214 (11th Cir. 2018); accord Stephens, 852 F.3d at 1325 (“The nature and

extent of physical injuries sustained by a plaintiff are relevant in determining

whether the amount and type of force used by the arresting officer were

excessive.” (emphasis omitted)). Under the circumstances of this case, the Court

cannot conclude that the amount of force used by Moore was reasonable.

First, looking to the non-exclusive factors listed by the Supreme Court in

Graham, the “crime” at issue here was not severe but was instead, at worst,

either a minor traffic infraction or failure to instantaneously comply with

commands to get out of a car during a traffic stop. Further, the video does not

suggest that Bezzaz posed any threat—immediate or otherwise—to the safety

15

of the officers or others. See, e.g., Stephens, 852 F.3d at 1322 (“[I]t .. □ is clear

Stephens posed no threat to the safety of Deputy DeGiovanni or the other twa

deputies .... The only threatening language and forceful, physical conduct,

which injured Stephens, came from Deputy DeGiovanni.”). And although

Bezzaz may have passively resisted by questioning why she was being detained

instead of immediately exiting the car, she was not “actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see also Hanks

v. Rogers, 853 F.3d 738, 748 (5th Cir. 2017) (““Where, as here, an individual

stopped for a minor traffic offense offers, at most. passive resistance and

presents no threat or flight risk, abrupt application of physical force rather than

continued verbal negotiating (which may include threats of force) is clearly

unreasonable and excessive.” (footnote omitted)). Indeed, Bezzaz was

surrounded by law enforcement officers and their vehicles. In sum, then, Bezzaz

was not “suspected of having committed a serious crime,” did not “pose[] an

immediate threat to anyone, and [did not] actively resist[] arrest.” Thornton,

132 F.3d at 1400. And, looking to Bezzaz’s injuries, she suffered cuts and scars

from the broken glass, and she also claims emotional harm from the incident.

Nowhere in his motion does Moore note the factors identified by the

Supreme Court in Graham. Instead, he asserts that “[c]ourts in this Circuit

have previously held that breaking a window to remove a driver is not excessive

force,” (Doc. 31 at 16 (citing Adams v. Basile, No. CV 108-038, 2009 U.S. Dist.

16

LEXIS 113554, at *23 (S.D. Ga. Oct. 29, 2009) (magistrate judge report anc

recommendation)), and argues that the force he applied here was de minimis

(Doc. 31 at 17-18). Moore also asserts that Bezzaz’s “injury was minor” because

“[s]he required no stiches [sic], and all cuts and scratches healed without

infection,” (id. at 18).

Moore’s assertions miss the mark. F irst, of course, he overlooks the

Graham factors altogether. And Adams—a district court case? with very

different facts—does not establish that smashing a car window is per se

permissible under the Fourth Amendment; again, each case is to be judged on

its facts, and the Eleventh Circuit has affirmed the denial of qualified immunity

where law enforcement officers smashed a car window to remove a driver. See

Johnson v. White, 725 F. App’x 868 (11th Cir. 20 19). Further, in support of his

claim of “de minimis” force, Moore cites several cases that are distinguishable

on their facts. And Moore’s assertion of minimal injury is misguided because

he overlooks the fact that Bezzaz suffered cuts and scars all over her upper body

from the shattered glass. (See, e.g., Bezzaz Dep., Doc. 30-1, at 113 (“There were

lacerations all over the side of my face, my neck, my back, my arms.”); id. at 114

7 Moore cites a magistrate judge’s report and recommendation in Adams. That

report and recommendation was later adopted by the district judge. See 2009 WL

4639681 (S.D. Ga. Dec. 7, 2009).

8 Moore cites Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000); Rodriguez v. Farrell,

280 F.3d 1341 (11th Cir. 2002); Woodruff v. City of Trussville, 434 F. App’x 852 (11th

Cir. 2011); and Durruthy v. Pastor, 351 F.3d 1080 (11th Cir. 2008).

17

(“[T]here’s multiple scars on my body. There’s a scar on the left side of my upper

lip. There’s scars going down my neck and the top of my back... . The largest

scar is on my lip.”). The Court cannot conclude on this record that scars on the

face and body of a 21-year-old woman amount to only “de minimis” injury. And,

of course, the danger of much more serious injury from a shattered window is

and was obvious; for example, Bezzaz could have been blinded if glass had

gotten into her eyes. See Lee, 284 F.3d at 1200 (“[T]he fact that Lee did not

suffer greater injury to her head as a result of it being slammed against the

trunk of a car does not alone render the force used de minimis... . [O]bjectively

unreasonable force does not become reasonable simply because the fortuity of

the circumstances protected the plaintiff from suffering more severe physical

harm.”).

The Eleventh Circuit's Johnson decision—though unpublished—is

persuasive and instructive. There, the § 1983 plaintiff repeatedly refused to get

out of his vehicle to answer questions after two young girls had observed him

urinating in a parking lot and their parents called the sheriff's office. After six

officers arrived on the scene and the plaintiff continued to be noncompliant, a

wrecker service was called and arrived almost an hour after the incident began.

The wrecker operator then tried to unlock the passenger door with several tools

“but was thwarted by” the plaintiff. 725 F. App’x at 872. An officer warned the

plaintiff that he would break the window if the plaintiff did not open the door;

18

the plaintiff refused, and the officer broke the driver’s window. The plaintif

claimed that the officers then grabbed his arms, “ripped” him out of the car, anc

“flung’ him to the ground.” Id. “Along with cuts and bruises, Johnson sustainec

injuries to his left shoulder and both biceps requiring multiple medical visits,’

including two surgeries. Id. at 874.

In the course of affirming the district court’s denial of qualified immunity

to four of the six defendants at the summary judgment stage, the Johnson court

noted that “under the three factors noted in Graham as well as this Court’s own

precedent, officers may not use substantial force to apprehend a nonthreatening

suspect who has committed only a minor offense and is not resisting arrest.” Id.

at 876. The court concluded that “the jury must decide... whether

defendants...used excessive force on a non-resisting suspect or used

reasonable force given plaintiffs resistance to being arrested.” Id. at 877.

Such is the case here as well. In Johnson, the officers attempted to

negotiate with a driver who was much more resistant than Bezzaz for nearly an

hour before breaking the car window. Moore, on the other hand, shattered

Bezzaz’s car window in less than a minute, and instead of negotiating he

escalated the situation by barking commands at Bezzaz even though the

situation was not urgent and Bezzaz was surrounded by at least eight deputies

and numerous vehicles. See, e.g., Hartfelder v. New Jersey State Police, Civ.

No. 16-5461, 2019 WL 3072252, at *6 (D.NJ. July 15, 2019) (“[T]he duration of

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the traffic stop is perhaps the most striking factor in assessing Defendant

Clark’s reasonableness....The roughly forty total seconds that elapsed in

between Defendant Clark’s first request and the baton swing is problematic,

considering that Plaintiff did not pose any immediate threat to safety.”).

Especially considering the brevity of the encounter here and the fact that Bezzaz

appears to have been trying to get out of the car as Moore shattered the window,

qualified immunity does not shield Moore from the excessive force claim. See

Stephens, 852 F.3d at 1324 n.27 (“Officers may consider a suspect’s refusal to

comply with instructions during a traffic stop in assessing whether physical

force is needed to effectuate the suspect’s compliance. However, officers must

assess not only the need for force, but also the relationship between the need and

the amount of force used. Taking the facts in the light most favorable to

plaintiffs, a jury could reasonably find that the degree of force the officers used

in this case was not justifiable under the circumstances.” (emphasis in original)

(quoting Deville v. Marcantel, 567 F.3d 156, 167-68 (5th Cir. 2009))). The issue

of excessive force is for the jury’s determination in this case, and Moore’s motion

for summary judgment must be denied on Count III.

d. Failure to Intervene (Count IV—Fuller)

In Count IV, Bezzaz claims that Fuller is liable in his own right because

he failed to intervene in Moore's application of excessive force. Fuller seeks

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summary judgment on this claim on the basis that he did not have time tc

intervene, but his motion must be denied.

“[A]n officer who is present at the scene and who fails to take reasonable

steps to protect the victim of another officer’s use of excessive force[] can be held

liable for his nonfeasance.” Hadley v. Gutierrez, 526 F.3d 1324, 13830 (11th Cir.

2008) (first alteration in original) (quoting Velazquez v. City of Hialeah, 484

F.3d 1340, 13841 (11th Cir. 2007)); see also Byrd v. Clark, 783 F.2d 1002, 1007

(11th Cir. 1986) (“If a police officer, whether supervisory or not, fails or refuses

to intervene when a constitutional violation such as an unprovoked beating

takes place in his presence, the officer is directly liable under Section 1983.”).

For the non-intervening officer to be liable, he must have been “in a position to

intervene yet failed to do so.” Hadley, 526 F.3d at 1331.

Fuller contends in his motion that he “did not have a sufficient amount of

time to cross back over to the driver’s side to stop Deputy Moore from breaking

the window,” emphasizing that Moore “was able to break the driver’s side

window in two strikes, which took no more than a couple of seconds.” (Doc. 30

at 20-21). But as the video shows, at almost the exact moment that Moore

began striking the driver’s side window of Bezzaz’s car, Fuller began striking

the passenger’s side window with his own baton, though he did not succeed in

breaking it. Thus, Fuller engaged in the same conduct as did Moore. This belies

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his “not enough time” excuse, which the Court rejects out of hand. Fuller’s

motion for summary judgment on Count IV therefore is denied.

B. State Law Claims

Bezzaz brings three claims against Moore under Florida law: false

imprisonment (Count V), battery (Count VI), and intentional infliction of

emotional distress (Count VII). Moore seeks summary judgment on each of

these claims, but his motion is due to be granted only on Count V.

1, False Imprisonment (Count V)

Bezzaz asserts in Count V that Moore falsely imprisoned her when he

“unlawfully arrested [her] without probable cause.” (Compl. 4 80). But Moore

correctly argues that because he had probable cause to arrest Bezzaz, her false

imprisonment claim fails.

Under Florida law, “[flalse imprisonment . . . is often ‘distinguishable in

terminology only from the action for false arrest” and the two “are essentially

the same tort when the issue involves an arrest and detention by a law

enforcement officer.” Willingham v. City of Orlando, 929 So. 2d 43, 49-50 (Fla.

5th DCA 2006) (quoting Johnson v. Weiner, 19 So. 2d 699, 700 (Fla. 1944)). The

elements of this tort are: “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)

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(internal quotation marks omitted) (quoting Montejo v. Martin Mem’] Med. Ctr..

Inc., 935 So. 2d 1266, 1268 (Fla. 4th DCA 2006)). “[P]robable cause is a complete

bar to an action for false arrest and false imprisonment.” Bolanos v. Metro.

Dade Cnty., 677 So. 2d 1005, 1005 (Fla. 3d DCA 1996); see also Wille v.

Raymond, 487 So. 2d 1211, 1213 (4th DCA 1986) (“As a matter of law there could

not have been false imprisonment where there was probable cause for arrest.”),

Earlier in this Order, the Court concluded that Defendants had arguable

probable cause to arrest Bezzaz and that they therefore enjoy qualified

immunity on the federal false arrest claims. The Court now finds that Moore

had not just arguable probable cause but actual probable cause to arrest Bezzaz

for both a traffic violation and resisting without violence.

Although during the traffic stop Bezzaz did not understand what she had

done wrong, at her deposition she acknowledged that she had committed a

traffic violation. (See Bezzaz Dep. at 86 (“Q.... Are you now aware that it’s a

violation of a traffic law for you to impede the roadway by coming to a stop and

impeding the flow of traffic? A. Yes.”). Indeed, the video footage establishes

this fact beyond dispute. See, e.g., § 316.183(5), Fla. Stat. (providing that “[n]o

person shall drive a motor vehicle at such a slow speed as to impede or block the

normal and reasonable movement of traffic’). And the video also supports

actual probable cause to arrest for resisting without violence. See, e.g., Billips

v. State, 777 So. 2d 1094, 1095 (Fla. 3d DCA 2001) (affirming conviction under

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§ 843.02, Florida Statutes, and noting that “the officers were . . . legally justified

in ordering [the defendant] to exit the vehicle in order to conduct a limited

investigation, and her refusal to do so clearly obstructed their investigation”);

Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008) (finding that

deputies had probable cause to arrest the § 1983 plaintiff for resisting without

violence where the plaintiff “disobeyed a command by members of law

enforcement to sit while they executed their lawful duties”).

The existence of probable cause for Bezzaz’s arrest defeats the false

imprisonment claim in Count V. Moore’s motion for summary judgment will

therefore be granted on this claim.

2. Battery (Count VD)

In Count VI, Bezzaz alleges that Moore committed battery by

intentionally attacking her, shattering her car window, and throwing her up

against a police car. (Compl. ¥ 90). This claim survives summary judgment.

“If excessive force is used in an arrest, the ordinarily protected use of force

by a police officer is transformed into a battery.” City of Miami v. Sanders, 672

So. 2d 46, 47 (Fla. 3d DCA 1996); accord Davis v. Williams, 451 F.3d 759. 768

(11th Cir. 2006); see also City of Homestead v. Suarez, 591 So. 2d 1125, 1126

(Fla. 3d DCA 1992) (finding that a jury question was presented on battery claim,

noting that “even if the arrest was valid, this would not justify ... excessive

force... to effect the arrest”). “A battery claim for excessive force is analyzed

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by focusing upon whether the amount of force used was reasonable under the

circumstances.” Sanders, 672 So. 2d at 47. As discussed earlier, a jury coulc

conclude that the amount of force Moore used was not reasonable under the

circumstances. Thus, Moore is not entitled to summary judgment on Bezzaz’s

state law battery claim either.

3. Intentional Infliction of Emotional Distress (Count VID

In her seventh and final claim, Bezzaz asserts intentional infliction □□

emotional distress against Moore. The elements of this claim under Florida law

are: “(1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct

was outrageous; (3) the conduct caused emotional distress; and (4) the emotional]

distress was severe.” Williams v. Worldwide Flight Servs., Inc., 877 So. 2d 869,

870 (Fla. 3d DCA 2004). In arguing for summary judgment in his favor, Moore

contends that his conduct was not outrageous and that Bezzaz did not suffer

severe emotional distress. (See Doc. 31 at 23-24). However, the record presents

triable issues on both of these points, and thus Moore is not entitled to summary

judgment on this claim.

Under Florida law, to qualify as “outrageous” for purposes of this tort the

conduct must be “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Metro. Life Ins. Co. v. McCarson,

467 So. 2d 277, 278-79 (Fla. 1985) (quoting Restatement (Second) of Torts § 46

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cmt. d (1965)). “Generally, the case is one in which the recitation of the facts tc

an average member of the community would arouse his resentment against the

actor, and lead him to exclaim, ‘Outrageous!” Id. at 279 (quoting Restatement

(Second) of Torts § 46 cmt. d). Under the circumstances of this case, a jury could

conclude that Moore’s treatment of Bezzaz rises to this level. An average

member of the community, upon being told the facts or viewing the video, might

well feel resentment toward Moore and “exclaim, ‘Outrageous!”

And emotional distress is “severe” for purposes of this tort if it is “so severe

that no reasonable man could be expected to endure it.” Kim v. Jung Hyun

Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA 2018) (quoting Restatement (Second)

of Torts § 46 cmt. j (Am. Law Inst. 1965)). “[T]he intensity and the duration of

the distress are factors to be considered in determining its severity.” Id.

(quoting Restatement (Second) of Torts § 46 cmt. j).

Moore argues that Bezzaz has not provided evidence “of distress that is

substantial or enduring,” (Doc. 31 at 24), emphasizing that she only saw a

therapist twice and was not provided with any medication, (see id.). But in her

deposition, Bezzaz testified that she has anxiety about speaking with people,

leaving her house, driving herself anywhere, working, and being in a setting

where law enforcement might be present. (Bezzaz Dep. at 14—15; see also id. at

120 (“I can no longer drive myself anywhere. I don’t feel comfortable doing

normal activities like grocery shopping in large areas of people. I don’t feel

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comfortable engaging with people in any type of setting, which kind of hinders

anything outside of my home place.”). She also testified that she no longer wants

to work in the medical field because she does not “feel that [she] can care fox

people the way that [she] want[s] to due to [her] own trauma and [her] own

anxiety and fear.” (Id. at 20-21). Additionally, she described having a lot of

panic attacks beginning immediately after the incident, during which she

trembles, sweats excessively, and is “unable to speak properly.” (Id. at 21).

Bezzaz testified that she has panic attacks “[a]ny time [she] want[s] to do

anything out of the comfort of [her] own home.” (Id. at 22). She also stated that

she has been suffering from depression since the incident, (id. at 30), and that

she is not working because of the incident and the panic attacks, (id. at 33). And

she attested that she has difficulty sleeping and her hair is falling out. (Id. at

125). Although Bezzaz will bear the burden at trial of persuading a jury that

she has suffered severe emotional distress due to the June 3, 2020 incident, on

this record the Court cannot conclude that she did not and does not suffer such

distress.

In sum, because issues of fact remain regarding the outrageousness of

Moore’s conduct and the severity of Bezzaz’s emotional distress, Moore’s motion

for summary judgment on Count VII must be denied.

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IV. Conclusion

Accordingly, itis ORDERED as follows:

lis Moore’s Motion for Summary Judgment (Doc. 31) 1s GRANTED in

part and DENIED in part. The motion is granted as to Counts I (false arrest,

and V (false imprisonment) and is denied as to Counts III (excessive force), V]

(battery), and VII (intentional infliction of emotional distress).

2. Fuller’s Motion for Summary Judgment (Doc. 30) is GRANTED in

part and DENIED in part. The motion is granted as to Count IT (false arrest)

and is denied as to Count IV (failure to intervene).

DONE and ORDERED in Orlando, Florida, enSeptemb “Le 2021.

CVC □□

JOHN ANTOON II

United’ States District Judge

Copies furnished to:

Counsel of Record

IS