Jones Jr. v. Davila

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANTONIO JONES, JR.,

Plaintiff,

v.

Case No.: 2:21-cv-764-JLB-NPM

MARTIN DAVILA,

Defendant.

_______________________________________/

ORDER

This case is before the Court on Defendant’s Motion for Summary Judgment.

(Doc. 43). Plaintiff submitted a response in opposition (Doc. 47) and Defendant filed

a reply (Doc. 48). The Court has carefully reviewed the parties’ briefing and viewed

the evidence in the light most favorable to Plaintiff Antonio Jones, Jr. For the

reasons set forth below, Defendant’s Motion is GRANTED as to all counts of the

operative complaint.

BACKGROUND

On May 21, 2020, Defendant Officer Davila of the Fort Myers Police

Department responded to a call of a trespasser at 2335 Cleveland Avenue, which

was a RaceTrac gas station. (Doc. 43-1 at 2). According to the Probable Cause

Statement, the notes of the call stated that a white male was at the gas station

trespassing and had tried to steal something inside the store. (Id.) Moreover, the

Probable Cause Statement notes that the RaceTrac gas station was “designated a

‘problem’ location by [the] [Fort] Myers Police Department because [of] extremely

high calls for service.” (Id.) The Fort Myers Police Department and RaceTrac

management “realize that many people, particularly transients, ‘charge’ cell phones

at the gas station as cover for illegal activity, such as buying [and] selling narcotics,

theft from Race[]Trac, [and] prostitution.” (Id.) “In response to this criminal

activity officers have increased patrol at Race[]Trac to prevent, and arrest those

committing crimes.” (Id.)

Defendant submitted several items indicating that various individuals

involved with RaceTrac authorized the Fort Myers Police Department to “warn and

direct persons to leave” that RaceTrac location via what Defendant refers to as a

“Trespass Authorization.” (Doc. 43-3 at 1–4). The first is a log that has dates

ranging from 2013 through 2016, and one date in 2021, which seem to reflect the

receipt of renewal letters. (Id. at 1). The second item is a document titled “Trespass

Warning Authorization Form for Businesses” and signed by the owner or manager

of the RaceTrac gas station on January 26, 2021. (Id. at 2). This authorization

allows the officers of the Fort Myers Police Department to warn and direct persons

to leave the RaceTrac. (Id.) The third is a letter dated February 14, 2013, with the

subject, “No Trespass Warning Signs,” which is signed by the RaceTrac

Construction Manager. (Id. at 3). Like the Trespass Warning Authorization Form

for Businesses, this authorization permits the officers of the Fort Myers Police

Department to warn and direct persons to leave the RaceTrac. (Id.) Finally,

Defendant provided a letter from the Fort Myers Police Department dated March

14, 2016, indicating that the Trespass Warning letter for the RaceTrac would expire

on March 31, 2016. (Id. at 4). Taken together, these documents indicate that there

have been Trespass Authorizations on file with the Fort Myers Police Department

since at least 2013, but that the last renewal before the update in 2021 was in May

2016. (Id. at 1–4). A document referred to by Defendant as a Dispatch Report

indicates: “Letter of authorization for trespass enforcement on file. Dated

03/27/2015. Authorized by JOSEPH GRAHAM.” (Doc. 43-4 at 2). It is unclear

whether there was an unexpired Trespass Authorization on file for the RaceTrac in

May 2020.

In all events, when Officer Davila––who was wearing a body camera––

arrived on scene in May 2020, he exited his patrol vehicle. (Video at 0:25).1 Officer

Davila testified that he spoke with an employee who said that the white male

suspect the call was placed about had left. (Doc. 43-2 at 21). The sound from the

body camera footage turns on at 29 seconds, at which point Officer Davila can be

heard saying “Where’d he go?” (Video at 00:29–00:32). The Court can hear that

someone was speaking, presumably responding to Officer Davila’s question, but the

response is inaudible.

1 Both parties provided a video of the incident from Officer Davila’s body camera.

Copies of these videos are held by the Clerk’s office. (See Doc. 43; Doc. 47). One

version of the video was one minute and forty seconds long; the other was nine

minutes long. As far as the Court can tell, the shorter version of the video is

contained within the longer version. The Court will cite to the longer version of the

video as “Video” and will rely on that version of the video. Moreover, the Court will

cite the time of the actual video rather than the timestamp on the upper right-hand

corner to identify which portion of the video it is referring to.

Immediately after, it appears that Officer Davila noticed Mr. Jones, a black

male, standing across the parking lot because he motioned to Plaintiff with his arm

and said, “What are you doing?” (Id. at 00:36-00:38). Officer Davila then waved his

arm and said, “Get the f*ck out, get out of here, get out, get off the property.” (Id. at

00:37–00:44). As Officer Davila approached, Mr. Jones said, “I’m standing here

waiting on my f*cking ride, I’m not loitering, I’m not loitering. . . I . . . told the lady

in the store, I’m waiting on somebody to come pick me up.” (Id. at 00:58–01:09).

Mr. Jones testified that he had permission from a person who he believed was the

manager of the RaceTrac to charge his phone. (Doc. 43-5 at 59). Mr. Jones stated

that he was a regular customer at the RaceTrac and that he went inside to seek

permission to charge his phone when he arrived at the RaceTrac that day because

there were a lot of homeless people at the RaceTrac and he “always [saw] [the

manager] coming out saying, hey, y’all have to leave.” (Id. at 59–60).

Officer Davila testified that he did not ask anyone whether Mr. Jones had

permission to be there. (Doc. 43-2 at 27) (“On the day that you . . . saw Mr. Jones, . .

. isn’t it accurate . . . that you did not speak to the owner or an employee regarding

whether they had given specific consent to Mr. Jones that he could be charging the

phone there? A. Correct.”). Officer Davila also testified that he had previously

spoken with a manager of the RaceTrac on a different occasion who “stated she

didn’t want anyone on property charging phones.” (Id.)

As Officer Davila approached Mr. Jones, the video clearly shows that Mr.

Jones was charging his phone, using an outlet attached to a utility pole. (Video at

01:10–01:12). Officer Davila then asked, “what’s your name?” (Id. at 01:12–01:14).

Mr. Jones did not respond with his name, but as best as the Court can hear the

video, he instead asked “why.” (Id. at 01:14–01:16). Mr. Jones later testified that

he provided his name the first time he was asked, but the video is clear that he did

not. (See Doc. 43-5 at 84–86). Officer Davila responded explaining that he asked

for his name “because [Mr. Jones was] stealing electricity.” (Video at 01:16–01:17).

Mr. Jones started to respond or explain himself, but Officer Davila interrupted and

said “alright, that’s it, we’re done, what’s your name?” (Id. at 01:18–01:21). Mr.

Jones said, “for what?” (Id. at 01:21–01:23).

Immediately after, the video shows Officer Davila reaching for one of Mr.

Jones’s arms and, with the assistance of a female officer, Officer Davila placed

handcuffs on Mr. Jones. (Id. at 01:23–01:41). During this time, Officer Davila

asked Mr. Jones to turn his wrist and, moments later, said “there we go” as it

sounded like the handcuffs clicked into place. (Id. at 01:36–01:38). Officer Davila

asked Mr. Jones four times to have a seat, and Mr. Jones then sat down on the curb.

(Id. at 01:42–01:55). At this juncture, someone in a vehicle who could be seen in the

background speaking to what appears to be another officer said, there “was another

white man,” to which Officer Davila responded, “no, I understand.” (Id. at 01:54–

02:00). All the while, Mr. Jones repeated that he was “not loitering,” was “waiting

on somebody to come pick [him] up,” “didn’t do sh*t wrong,” and was “not telling

[Officer Davila] sh*t.” (Id. at 01:41–01:56). He could also be heard saying, “what

the f*ck are you f*cking with me for” and “get the f*ck off me . . . b*tch.” (Id. at

01:46–01:49).

Officer Davila then walked Mr. Jones over to his police vehicle, while Mr.

Jones explained that he had “already been in a family situation” and was “already

upset.” (Id. at 01:58–02:05). On the walk over, Mr. Jones repeated that he did not

“do sh*t” and asked, “what are you detaining me for?” (Id. at 02:07–02:14). When

they got to the police car, Mr. Jones again repeated that he didn’t do anything and,

when Officer Davila appeared to touch Mr. Jones’s pockets, Mr. Jones indicated that

he did not have any drugs or weapons. (Id. at 02:28–02:32). Mr. Jones then said,

“I’m sorry for disrespecting you, but I’m already mad.” (Id. at 03:02–03:05). He

explained that he “just got kicked . . . out by [his] older . . . sister.” (Id. at 03:05–

03:11). He further stated that he felt like Officer Davila was harassing him. (Id. at

03:12–03:20). At that point, Officer Davila took off the handcuffs, took Mr. Jones’s

backpack off, and put the handcuffs back on, as Mr. Jones again asked what he was

being detained for and stated, “you could ask for my ID, you could run my stuff.”

(Id. at 03:30–03:59).

Then, Officer Davila asked Mr. Jones for his name again. (Id. at 03:59–

04:00). Mr. Jones responded, “Antonio Jones, Jr” and provided his date of birth.

(Id. at 04:00–04:04). As Officer Davila was placing Mr. Jones into the police vehicle,

Mr. Jones repeatedly asked, “what are you detaining me for?” (Id. at 04:05–04:24).

Officer Davila never responded to the question but instead simply told Mr. Jones to

have a seat. (Id.) After Mr. Jones sat in the backseat of the patrol car and Officer

Davila shut the door, Officer Davila walked around to the front, sat down in the

driver’s seat, and turned the car on. (Id. at 04:30–5:05). He then asked, “do you

have a license, Mr. Jones?” (Id. at 05:05). Mr. Jones’s response, if any, was

inaudible. (Id. at 05:06–05:22). The Probable Cause Statement indicates that

Officer Davila ran Mr. Jones’s name in the Driver and Vehicle Identification

Database, but the search came back empty. (Doc. 43-1 at 2). Officer Davila then

asked, “what’s your social?” (Video at 05:22–05:29). Mr. Jones responded “I gotta

give you my social security number?” (Id. at 05:29–05:32). Mr. Jones continued to

speak, but the sound is not clear. (Id. at 05:32–05:39). Mr. Jones and Officer

Davila then continued their exchange, with Mr. Jones, among other things, offering

to get his wallet and repeating that he felt like he was being harassed. (Id. at

05:40–06:04). Officer Davila asked Mr. Jones for his middle name, which it does not

appear from the recording that Mr. Jones provided. (Id. at 06:05–06:14).

In response to being asked to spell his name, Mr. Jones explained to Officer

Davila that his license was in his wallet, which was in his bag. (Id. at 06:16–06:34).

Officer Davila then exited the vehicle and began to look through the outside pockets

of the backpack he took from Mr. Jones earlier. (Id. at 06:40–07:05). Officer Davila

began looking through some of the exterior pockets but did not search the entire

bag. (Id.) Mr. Jones said something to Officer Davila that was inaudible, after

which Officer Davila put the backpack into the front seat and said, “we tried.” (Id.

at 07:06–07:17).

Officer Davila then walked around to the other side of the vehicle, opened the

back door, and said “This is the last time I’m gonna ask you so please listen to me

carefully. Mr. Jones, you’re on your way to jail, . . . my preference is not to take you

to jail, so listen, listen closely.” (Id. at 07:21–07:51). Before Officer Davila could ask

his question, Mr. Jones yelled “Cuz, Trina, cuz, cuz, they harassing me cuz.” (Id. at

07:52–08:00). Officer Davila then closed the door, said “we tried,” and sat back

down in the driver’s seat of the vehicle, where Mr. Jones could still be heard yelling,

presumably to his cousin. (07:55–08:08). In response to a question from another

officer that cannot be heard in the video, Officer Davila said “he was over there, I

went to ask him to identify himself, that was the end of it.” (Id. at 08:30–08:36).

The Arrest Report indicates that Mr. Jones was charged with two violations.

(See Doc. 43-1 at 1). The first violation is under Florida Statute section 843.02,

which is titled “[r]esisting officer without violence to his or her person.” Fla. Stat. §

843.02. The second violation is under Florida Statute section 810.08(2a), which is

titled “[t]respass in structure or conveyance.”

LEGAL STANDARD

Summary judgment is appropriate when the movant can show that there is

no genuine issue of material fact and the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). “A district court must grant a motion for summary

judgment only if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292,

1299 (11th Cir. 2018) (citation and internal quotation marks omitted). An issue is

“genuine” if a rational trier of fact, viewing all of the record evidence, could find in

favor of the nonmoving party. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.

2014). And a fact is “material” if, “under the applicable substantive law, it might

affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004).

In ruling on a motion for summary judgment, the Eleventh Circuit has

directed that courts “resolve all ambiguities and draw reasonable factual inferences

from the evidence in the non-movant’s favor.” Travelers Prop. Cas. Co. of Am. v.

Moore, 763 F.3d 1265, 1268 (11th Cir. 2014) (citation and internal quotation marks

omitted). Moreover, the Eleventh Circuit has provided:

If no reasonable jury could return a verdict in favor of the

nonmoving party, there is no genuine issue of material fact

and summary judgment will be granted. To defeat

summary judgment, a mere scintilla of evidence supporting

the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for

that party.

At the summary judgment stage, we view the evidence,

draw all reasonable factual inferences, and resolve all

reasonable doubts in favor of the non-movant. But we do

so only to the extent supportable by the record. When

opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for summary

judgment. Thus, in cases where a video in evidence

obviously contradicts the nonmovant’s version of the facts,

we accept the video’s depiction instead of the nonmovant’s

account and view the facts in the light depicted by the

videotape.

Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir. 2022) (citations and internal

quotation marks omitted). “[W]here the videos do not answer all the questions or

resolve all the details of the encounter, we view the evidence in the light most

favorable to [the non-moving party].” Johnson v. City of Miami Beach, 18 F.4th

1267, 1269 (11th Cir. 2021).

DISCUSSION

The Amended Complaint contains three overarching 42 U.S.C. § 1983 claims,

which are labeled as a Fourth Amendment claim for unreasonable seizure (Count I),

a Fourth Amendment claim for false arrest (Count III2), and a Fourth Amendment

claim for false imprisonment (Count IV). (Doc. 37 at 4–8). The Court will consider

Counts I and III together because “[u]nder the Fourth Amendment, an individual

has a right to be free from unreasonable searches and seizures . . . [and] an arrest is

a seizure of the person.” Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009)

(citation and internal quotation marks omitted). False imprisonment under section

1983, however, is “based on the protection of the Fourteenth Amendment against

deprivations of liberty without due process of law.” Id. at 1330 (emphasis added)

(citation and internal quotation marks omitted).

But the threshold question underlying all of the claims is whether Officer

Davila had probable cause to arrest Mr. Jones because each of these claims,

2 The Amended Complaint does not contain a Count II.

regardless of whether they are brought under the Fourth or Fourteenth

Amendment, depends on the presence or absence of probable cause. See Crocker v.

Beatty, 995 F.3d 1232, 1243 (11th Cir. 2021) (“The existence of probable cause bars

a Fourth Amendment false-arrest claim.”), cert. denied, 142 S. Ct. 845 (2022); Skop

v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007) (“The ‘reasonableness’ of an

arrest is . . . determined by the presence or absence of probable cause for the

arrest”); Case, 555 F.3d at 1330 (“[A] claim of false imprisonment, absent

misidentification, depends on an absence of probable cause . . . .”).

I. Probable cause, generally

“An arrest without a warrant and lacking probable cause violates the

Constitution and can underpin a [section] 1983 claim, but the existence of

probable cause at the time of arrest is an absolute bar to a subsequent

constitutional challenge to the arrest.” Brown v. City of Huntsville, 608 F.3d 724,

734 (11th Cir. 2010) (emphasis added). “For probable cause to exist, . . . an arrest

must be objectively reasonable based on the totality of the circumstances.” Lee v.

Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). Thus, “[a]n officer has probable

cause when the facts and circumstances within the officer’s knowledge, of which he

or she has reasonably trustworthy information, would cause a prudent person to

believe, under the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” Crocker, 995 F.3d at 1243–44

(internal quotation marks and citation omitted). More recently, the Eleventh

Circuit has stated that “the correct legal standard to evaluate whether an officer

had probable cause to seize a suspect is to ‘ask whether a reasonable officer would

conclude . . . that there was a substantial chance of criminal activity.’” Washington

v. Howard, 25 F.4th 891, 902 (11th Cir. 2022) (quoting District of Columbia v.

Wesby, 584 U.S. 48, 61 (2018)); see id. at 899 (finding that “[t]he older standard is

more demanding than the Wesby standard” in that the older standard “requires

facts and circumstances such that all prudent people would affirmatively believe

that the suspect has already engaged in or will shortly engage in criminal

behavior,” whereas the Wesby standard “requires only that it be reasonable for any

particular officer to conclude that there is a substantial chance of criminal activity”)

(internal citations and quotation marks omitted). Moreover, “an officer’s subjective

intent doesn’t matter for ‘ordinary, probable-cause Fourth Amendment analysis.”

Id. at 1244 (quoting Whren v. United States, 517 U.S. 806, 813 (1996)). And “[w]hen

an officer makes an arrest, which is properly supported by probable cause to arrest

for a certain offense, neither his subjective reliance on an offense for which no

probable cause exists nor his verbal announcement of the wrong offense vitiates the

arrest.” United States v. Saunders, 476 F.2d 5, 7 (5th Cir. 1973).3

“Public officials acting within their discretionary authority enjoy qualified

immunity from civil damages when their conduct does not violate a constitutional

right that was clearly established at the time of the challenged action.” Land v.

Sheriff of Jackson County Florida, --- F.4th ---, 2023 WL 7138510, at *3 (11th Cir.

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh

Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to

October 1, 1981.

Oct. 31, 2023) (internal quotation marks and citation omitted). “The absence of a

constitutional violation ends the analysis of qualified immunity.” Id. (citing

Pearson v. Callahan, 555 U.S. 223 (2009)).

In the context of a false arrest claim, a law enforcement officer who makes an

arrest without probable cause is nevertheless entitled to qualified immunity if there

was “arguable probable cause” for the arrest. Brown, 608 F.3d at 734 (“To receive

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

‘arguable’ probable cause.”) (citation omitted). 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

arrest Plaintiff.” Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990)

(emphasis added). “Arguable probable cause does not require an arresting officer to

prove every element of a crime or to obtain a confession before making an arrest,

which would negate the concept of probable cause and transform arresting officers

into prosecutors.” Scarbrough v. Myles, 245 F.3d 1299, 1302–03 (11th Cir. 2001);

see id. at 1303 n.8 (“Police officers are not expected to be lawyers or prosecutors.”).

“Even law enforcement officials who reasonably but mistakenly conclude that

probable cause is present are entitled to immunity.” Wood v. Kesler, 323 F.3d 872,

878 (11th Cir. 2003) (citation and internal quotations omitted). “Indeed, it is

inevitable that law enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present, and in such cases those officials

should not be held personally liable.” Brown, 608 F.3d at 734–35 (citation and

internal quotations omitted). When the facts of a case “are not in dispute, whether

probable cause existed is a question of law, and summary judgment is appropriate.”

Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990).

II. Whether Officer Davila had probable cause or arguable probable

cause to arrest Mr. Jones.

Where an arrestee faces multiple charges, if any one charge is supported by

arguable probable cause, the defendant is entitled to qualified immunity with

respect to the arrest. See Skop, 485 F.3d at 1138 (“If [the officer] possessed probable

cause or arguable probable cause to arrest Skop for either [of two possible crimes],

he is entitled to qualified immunity.”). Because the Court finds that Officer Davila

had probable cause or, at the very least, arguable probable cause to arrest Mr.

Jones for trespassing, the Court need not reach the issue of whether Officer Davila

had probable cause or arguable probable cause to arrest Mr. Jones for the resisting

an officer charge.

Section 810.08 of the Florida Statutes provides that a person who was

permitted to enter a structure or conveyance but is subsequently “warned by the

owner or lessee of the premises, or by a person authorized by the owner or lessee, to

depart and refuses to do so, commits the offense of trespass in a structure or

conveyance.” Fla. Stat. § 810.08(1). “Person authorized,” in the context of the

statute, means “any owner or lessee, or his or her agent, or any law enforcement

officer whose department has received written authorization from the owner or

lessee, or his or her agent, to communicate an order to depart the property in the

case of a threat to public safety or welfare.” Fla. Stat. § 810.08(3).

Defendant appears to concede that the charge should have been under section

810.09 of the Florida statutes, titled “[t]respass on property other than structure or

conveyance.” Fla. Stat. § 810.09; see Doc. 43 at 11–12. That section provides that:

A person who, without being authorized, licensed, or

invited, willfully enters upon or remains in any property

other than a structure or conveyance:

1. As to which notice against entering or remaining is

given, either by actual communication to the offender or by

posting, fencing, or cultivation . . . ; or

2. If the property is the unenclosed curtilage of a dwelling

and the offender enters or remains with the intent to

commit an offense thereon, other than the offense of

trespass,

commits the offense of trespass on property other than a

structure or conveyance.

Fla. Stat. § 810.09(1)(a).

The fact that Officer Davila “wrote down the wrong statute number on the

citation is inconsequential as long as probable cause to arrest existed based on the

objective circumstances.” United States v. Glover, Case No. 3:10cr40/MCR, 2010

WL 11526871, at *4 (N.D. Fla. July 27, 2010), aff’d, 441 F. App’x 748 (2011); see also

Lee, 284 F.3d at 1196 (“[W]hen an officer makes an arrest, which is properly

supported by probable cause to arrest for a certain offense, neither his subjective

reliance on an offense for which no probable cause exists nor his verbal

announcement of the wrong offense vitiates the arrest.”) (citation and internal

quotation marks omitted); see generally Devenpeck v. Alford, 543 U.S. 146, 155

(2004) (“While it is assuredly good police practice to inform a person of the reason

for his arrest at the time he is taken into custody, we have never held that to be

constitutionally required.”).

There is no genuine issue of fact as to whether it was reasonable for Officer

Davila to believe that Mr. Jones was a person who, without being authorized,

willfully remained at the RaceTrac after Officer Davila gave him notice that he had

to leave. See Fla. Stat. § 810.09. Officer Davila testified that the RaceTrac gas

station was designated a “problem” location by the Fort Myers Police Department

(Doc. 43-2 at 16–17) and that one of the managers previously told him that she did

not want anyone on the property charging phones (Id. at 27). There had also been

trespass authorizations on file with the Fort Myers Police Department since at least

2013, even if one was not on the file at the time of the incident with Mr. Jones. (See

Doc. 43-3 at 1–4). And Officer Davila’s belief that the RaceTrac gas station was a

“problem” location was corroborated by Mr. Jones’s testimony that he was a regular

customer at the RaceTrac, there were a lot of homeless people there, and he “always

[saw] [the manager] coming out saying, hey, y’all have to leave.” (Doc. 43-5 at 59–

60). Moreover, the Video shows Officer Davila telling Mr. Jones, from afar, to “get

the f*ck out, get out of here, get out, get off the property.” (Video at 00:37–00:44).

Mr. Jones did not leave. Given this evidence, no reasonable jury could find that

Officer Davila did not have probable cause to arrest Mr. Jones for trespassing

because he remained at the RaceTrac after Officer Davila asked him to leave.

While the Court finds that Officer Davila had probable cause, the Court also finds

that, even if he did not have probable cause, Officer Davila is entitled to qualified

immunity because there is no question that he had arguable probable cause to

arrest Mr. Jones.4 In other words, a reasonable officer in the same circumstance

and possessing the same knowledge could have believed that there was probable

cause to arrest Mr. Jones for trespassing because he remained on the property after

being told to leave.

Mr. Jones suggests that there are genuine issues of material fact precluding

summary judgment, but he points to no evidence that would create a genuine issue

of fact. For example, in his response to the motion for summary judgment, Mr.

Jones claims that he “was a bit of distance away from the Defendant and was

shocked, but unsure what profanity the officer yelled at him and why.” (Doc. 47 at

3). But Mr. Jones cited no deposition, affidavit, or anything else in evidence

indicating that Officer Davila was too far away for Mr. Jones to hear him, that he

did not hear Officer Davila, or that he was “unsure” of what Officer Davila was

yelling. Certainly, he points to no evidence that Officer Davila knew that Mr. Jones

could not hear him or even had reason to believe that Mr. Jones did not hear him or

see him gesticulating towards him. (See Video at 0:36–0:44).

Mr. Jones also claims that he had permission to be at the RaceTrac. (Doc. 43-

5 at 59). Assuming that is true, as this Court must when analyzing this summary

judgment motion, there is nothing in the video, in Mr. Jones’s testimony, or in

4 It appears undisputed that Officer Davila was acting within his discretionary

authority when arresting Mr. Jones. See, e.g., Lee, 284 F.3d at 1194 (“In this case,

there can be no doubt that [officer] was acting in his discretionary capacity when he

arrested [plaintiff].”).

Officer Davila’s testimony indicating that Officer Davila, at the time of the

encounter, was aware that Mr. Jones had sought permission to be there. Cf. Gates

v. Khokhar, 884 F.3d 1290, 1300 (11th Cir. 2018) (an arresting deputy is not

required to “have specific evidence of the subjective intent and knowledge of a

subject beyond the subject’s conduct that otherwise gives rise to probable cause to

arrest”). Indeed, Officer Davila readily admits that he did not ask anyone whether

Mr. Jones had permission to charge his phone and instead relied on prior

encounters with a RaceTrac manager to determine that Mr. Jones did not have

permission to be on the RaceTrac property. (See Doc. 43-2 at 27) (“On the day that

you . . . saw Mr. Jones, . . . isn’t it accurate . . . that you did not speak to the owner

or an employee regarding whether they had given specific consent to Mr. Jones that

he could be charging the phone there? A. Correct. . . . One of the managers on a

previous occasion stated she didn’t want anyone on property charging phones.”).

To be clear, the Court finds that, because of all of Officer Davila’s other

reasons to conclude that there was a substantial chance of criminal activity, Officer

Davila was not required to affirmatively investigate whether Mr. Jones had

permission to be on the property to establish that he had probable cause or arguable

probable cause to arrest him. Cf. Washington, 25 F.4th at 902 (“[T]he correct legal

standard to evaluate whether an officer had probable cause to seize a suspect is to

‘ask whether a reasonable officer could conclude . . . that there was a substantial

chance of criminal activity.’”) (citing Wesby, 138 S. Ct. at 61); Wesby, 583 U.S. at 57

(probable cause “requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity”) (citations and internal quotation

marks omitted); Elliott v. Wilcox, 641 F. App’x 893, 897 (11th Cir. 2016) (where

plaintiff was arrested for trespassing while walking on a trail and officer had

received information that there were trespassers in the area, “[w]hatever [plaintiff]

knew regarding who owned the land, or what he told [the officer] about his right to

be on the trail, is . . . irrelevant because [the officer] believed the power company

owned that land and that Elliott was not allowed to walk the trail”).

Mr. Jones’s other arguments are equally unavailing. For example, Mr. Jones

points to Palmer v. State, 112 So. 3d 606 (Fla. 4th DCA 2013), for the proposition

that “[a] reasonable suspicion of trespassing must be based upon something more

than a mere hunch or guess.” (Doc. 47 at 6). The Court finds that Palmer, is

inapposite because the facts are totally different from the facts here. In Palmer, the

defendant was standing next to buildings with “no trespassing” signs posted and

fled when the officers exited their vehicle, announced their presence, and ordered

the defendant to stop. 112 So. 3d at 607. There, defendant was charged with

entering a structure, but there was no evidence that he attempted to enter a

building or that either officer believed that he was about to enter a building. Id. at

608. Here, as already set forth above, although Plaintiff was charged under the

incorrect trespassing statute, he was arrested, in part, because Officer Davila asked

him to leave the property and he remained on the property. (See Doc. 43-1 at 2)

(“Jones Jr was also charged with trespassing as he was ‘charging’ his cell phone and

not conducting any legitimate business at the Race[]Trac and refused to leave when

asked to so by Davila.”).

Mr. Jones also argues that he “adequately allege[d] that Defendant[] seized

Mr. Jones and that the seizure was unreasonable.” (Doc. 47 at 13). But what Mr.

Jones alleged in his complaint is largely irrelevant, particularly when compared

with the actual evidence presented by Officer Davila because this case is at the

summary judgment stage, not at the motion to dismiss stage. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (“In response to a summary judgment motion, . . .

the plaintiff can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by

affidavit or other evidence ‘specific facts,’ . . . which for purposes of the summary

judgment motion will be taken to be true.”) (citing Fed. R. Civ. P. 56(e)).

Officer Davila’s policing with respect to Mr. Jones was not ideal. There is no

doubt that he could have initially spoken to Mr. Jones in a more respectful tone but,

in fairness, Mr. Jones’s ensuing comments and responses to Officer Davila were

laden with profanity and evasive. And the Video clearly depicts an officer who was

responding to a trespass call from a known problem area, where individuals

frequent that location and use charging their cell phones as fronts for illegal

activity. Furthermore, Officer Davila made diligent efforts to ask Mr. Jones for his

name and was met with resistance in some form the entire time, either by not

providing his name at first or subsequently by not providing his social security

number when the name he provided to Officer Davila did not yield any results in

Officer Davila’s database search. Although Officer Davila could have asked the

employee inside the RaceTrac whether Mr. Jones had permission to charge his

phone, or given Mr. Jones another opportunity to explain himself before

handcuffing him, that does not change the fact that no reasonable jury could find

that Officer Davila did not have probable cause to believe that Mr. Jones was

trespassing or, at the very least, that Officer Davila is entitled to qualified

immunity because a reasonable officer could have believed that Mr. Jones was

trespassing.

CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment

is GRANTED. The Clerk of Court is DIRECTED to enter judgment accordingly,

terminate all deadlines, and close the case.

ORDERED at Fort Myers, Florida on November 16, 2023.

PES bhofbeuLi

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

21