# Jones v. United States Of America

> District Court, S.D. Florida · September 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10118184

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** September 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case Number: 19-20852-CIV-MORENO
JOHN MARK JONES,
Plaintiff,
Vs.
UNITED STATES OF AMERICA;
SPECIAL AGENT LUIS ARIAS,
individually; and
SPECIAL AGENT JASON SCELSA
a/k/a JASON WILSON, individually,
Defendants.
eee
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
In this excessive force case, Plaintiff John Mark Jones, a Sergeant with the Monroe County
Sheriff's Office, alleges that his Fourth Amendment rights were violated by federal agents of the
Bureau of Alcohol, Tobacco, Firearms and Explosives because they used excessive force against
him during an investigatory stop. In his Amended Complaint, Jones asserts 6 excessive force
claims under Bivens and Section 1983 against ATF Agents Luis Arias and Jason Scelsa, and 4
claims against the United States under the Federal Tort Claims Act for negligence, assault, battery,
and false imprisonment.
Defendants move to dismiss all claims. They argue that the allegations fail to state any
claims against the United States, and that the Agents are immune from suit on qualified immunity
grounds. Jones insists that his claims are adequately pleaded and that qualified immunity is not
appropriate here.
For the reasons below, the Defendants’ Motion to Dismiss (D.E. 26) is GRANTED IN
PART AND DENIED IN PART.

I. FACTUAL BACKGROUND'
In September 2017, Plaintiff John Mark Jones, a Sergeant with the Monroe County
Sheriffs Office, was working alongside other law enforcement agencies to coordinate security and
clean-up efforts in the Florida Keys following the devastation left by Hurricane Irma. (D.E. 25 at
12, 14.) While traveling on a two-lane highway on Sugarloaf Key, Jones approached two
vehicles stopped in the road. /d. at 16-20. The vehicles, which were heading in opposition
directions, were positioned mirror-to-mirror. Jd. at 19-20. Unable to drive around the stopped
vehicles, Jones honked his horn at the black Chevrolet Suburban stopped immediately in front of
him. Jd. at J§ 21-22. Although the other vehicle moved, the driver of the Suburban “glanced” at
Jones with an “irritated” and “angry” stare and refused to move his vehicle. /d. at § 23. Left with
no choice, Jones “was forced to proceed” around the Suburban. Id. at § 24.
Almost one mile down the highway, Jones noticed the Black Suburban traveling at a high
rate of speed with his emergency lights and siren activated. Id. at] 25. Jones “immediately pulled
over” and “exited” his “unmarked” truck. Jd. at 16, 26.2 He then, “pursuant to policy and
procedure,” stated that he worked for the Sheriff's Office and asked why he was stopped. Id. at
426. The Suburban was occupied by Defendants Luis Arias and Jason Scelsa, both agents with
the Bureau of Alcohol, Tobacco, Firearms and Explosives. Jd. at Jf 15,27. The Agents exited the
Suburban. And unlike Jones, who was wearing plain clothes,’ both Agents wore tactical gear with
“ATF” displayed on their vests. Jd. at Jones again shouted that he worked for the Sheriff's

' These facts come from the Amended Complaint and are presumed true for ruling on the motion
to dismiss. Caravello v. Am. Airlines, Inc., 315 F. Supp. 2d 1346, 1348 (S.D. Fla. 2004).
* The unmarked truck was issued by the High Intensity Drug Trafficking Areas Program, of which
Jones was amember. This program aids federal, state, local, and tribal law enforcement agencies operating
in critical drug-trafficking areas of the United States. (D.E. 25 at 13, 16.)
3 The Court reasonably infers this fact from Jones’s other allegations that he was driving an
“unmarked truck,” that he needed his wallet to show the Agents that he worked for the Sheriff’s Office, and
that he repeatedly told the Agents during the encounter that he worked for the Sheriff's Office.

9.

Office and announced that he was going to get his wallet. /d at It was then that Jones
“wanted to reach for his wallet” but the driver* ordered Jones to stop and show his hands, and then
warned Jones not to reach for anything or else he would be shot. Jd. at { 29.
Jones complied with the driver’s order, again asserted that he worked for the Sheriff's
Office, and again asked why he was stopped. /d. at 930. At this point, both Agents approached
Jones with their guns drawn and pointed at his face. /d. at ¢32. The driver then “grabbed” Jones,
directed him to the Suburban, and “slammed” him against the side fender and hood. Jd. at □ 33.
During this time, Jones continued to tell the Agents that he worked for the Sheriff's Office and
told the Agents to check his wallet or truck. Jd Agent Arias continued to yell at Jones while
Agent Scelsa continued to aim his gun at Jones’s face. Jd. at § 34. Then, Agent Arias grabbed
Jones’s right arm and “forcefully pulled it behind his back and to the middle of his neck.” Jd. at
435. Jones immediately felt pain and his shoulder muscle and tendons tear. Jd. It was not until
after this injury that the Agents checked Jones’s law enforcement credentials. Jd. at § 36.
The Agents considered bringing in and arresting Jones, yet, despite Jones’s repeated
questions, refused to tell him why he was stopped. Jd. at 37. Jones “requested to leave” but the
Agents “refused and held” him “against his will.” /d. at 738. After Jones told the Agents that he
was going to tell his Captain and the Sheriff about the incident, the Agents told Jones that they
would be taking him to jail. Jd The Agents then started yelling obscenities louder and louder to
the point where some local residents started observing the incident. Jd. at § 39. It was at this point
that the Agents decided to let Jones go. Jd. at § 41. Jones asked why he was stopped one last time,
and Agent Scelsa replied that he was stopped for speeding. /d. at 442. Jones alleges that “all
parties know” that this is “a fabricated story .. . in an attempt to justify the stop.” Id.

4 At various points, the Amended Complaint refers to the Agents as the “driver” or “passenger” of
the Suburban. This Section follows the Amended Complaint in this regard.

II. LEGAL STANDARD
“A pleading that states a claim for relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion
to dismiss, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). While legal conclusions can provide the framework of the
complaint, they must be supported by factual allegations. Jd. at 679. Detailed factual allegations
are not required, but the complaint must offer more than “labels and conclusions” or “‘a formulaic
recitation of the elements of the cause of action.” Twombly, 550 U.S. at 555 (citation omitted).
The factual allegations must be enough to “raise a right to relief above the speculative level.” Id.
(citations omitted). Finally, at the motion to dismiss stage, the Court must view the allegations in
the complaint in the light most favorable to the plaintiff and accept well-pleaded facts as true. See
St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir. 1986).
III. DISCUSSION
The Amended Complaint asserts 4 claims against the United States under the Federal Tort
Claims Act for negligence (Count 1), assault (Count 2), battery (Count 3), and false imprisonment
(Count 4). And against the Agents, the Amended Complaint asserts 3 claims under Bivens
(Counts 5—6 and 9) and 3 claims under Section 1983 (Counts 7-8 and 10) for excessive force.
Defendants move to dismiss all claims. Jones insists that all his claims survive as pleaded.

A. CLAIMS AGAINST THE UNITED STATES
The Federal Tort Claims Act demands that federal courts apply the law of the situs state to
determine whether a tort claim has been stated. See Gomez v. United States, 601 F. App’x 841,
851 (11th Cir. 2015) (citing 28 U.S.C. § 1346(b)(1)). The events in this lawsuit occurred in
Monroe County, Florida, and thus Florida law applies to Jones’s claims under the Act.
1. Negligence (Count 1)
To state a negligence claim under Florida law, Jones must allege that the United States
owed him a duty of care, that the United States breached that duty, that the breach injured him,
and that he is entitled to damages. See Miles v. Naval Aviation Museum Found., Inc., 289 F.3d
715, 722 (11th Cir. 2002) (citing Ewing v. Sellinger, 758 So. 2d 1196, 1197 (Fla. 4th DCA 2000)).
Previously, the Court dismissed Jones’s negligence claim under the public duty doctrine.
(See D.E. 20 at 2.) This doctrine, recognized in Trianon Park Condo. Ass’n, Inc. v. City of Hialeah,
generally provides that a government entity’s exercise of discretionary power to enforce the law is
a matter of governance for which there has never been a common law duty of care. 468 So. 2d
912, 919 (Fla. 1985). This time, Jones seeks to avoid dismissal under the Trianon public-duty
doctrine by alleging that the United States owed him a “special duty.” A special duty arises when
law enforcement officers become directly involved in circumstances that place people within a
“zone of risk” by creating or permitting dangers to exist, by taking persons into police custody,
detaining them, or otherwise subjecting them to danger. See Wallace v. Dean, 3 So. 3d 1035, 1048
(Fla. 2009) (citing Pollock v. Fla. Dept. of Highway Patrol, 882 So. 2d 928, 935 (Fla. 2004)).
In the Amended Complaint, Jones alleges that the United States undertook a “special duty”
based on a “‘special relationship’ with other law enforcement entities”: (1) to ensure that various
government agents could carry out their assistance in the cleanup of the Florida Keys following

a]

Hurricane Irma in a professional and safe manner; and (2) to not increase harm and to eliminate
any risk and harm to other law enforcement members. (See D.E. 25 at 945, 48.) Jones further
alleges that the United States breached these duties by, among other reasons, failing to ensure that
the Agents were aware of their specific duties and responsibilities while assisting other law
enforcement members and by inflicting excessive, objectively unreasonable and unwarranted
unconstitutional force upon Jones. Jd. at F¥ 50(b), (d).
The United States argues that there is no support for the concept of a special duty between
law enforcement and agents helping to protect public safety during a natural disaster emergency.
Urging otherwise, Jones cites three Florida Supreme Court cases that applied the “special duty”
exception to the public-duty doctrine. But contrary to Jones’s assertion, there is no support in
Wallace, Henderson, or Kaisner for a special duty between law enforcement agencies or agents:
the Florida Supreme Court in each case found that law enforcement owed a duty to individual
members of the public to protect them from dangers that were created or permitted to exist because
they were detained by officers, or as a result of officers responding to a 911 call. See Wallace, 3
So. 3d at 1043, 1052 (ruling officers had a duty under the undertaker doctrine because, in
responding to a 911 call involving a non-responsive person, the officers increased the risk of harm
by affirmatively undertaking to provide aid but then repeatedly made assurances to third parties
that emergency help was not immediately required); Henderson v. Bowden, 737 So, 2d 532, 534,
537 (Fla. 1999) (ruling officers had a duty to reasonably safeguard the well-being of a vehicle’s
passengers after stopping and arresting the intoxicated driver of the vehicle and then directing one
of the passengers to drive the vehicle to a nearby gas station); Kaisner v. Kolb, 543 So. 2d 732,
733-34 (Fla. 1989) (ruling officer had a duty to reasonably safeguard the well-being of a man and
his family from onrushing traffic during a traffic stop). And in any event, the risks created by the

££.

officers in these cases are not present here: Jones’s injuries were the direct result of force used to
effectuate a stop, whereas the victims in these cases were placed within a “zone of risk” that was
affirmatively created or permitted to exist by law enforcement. See Wallace, 3 So. 3d at 1043,
1052 (unresponsive person died after officers repeatedly made assurances that emergency help
was not immediately required); Henderson, 737 So. 2d at 534, 537 (passengers in vehicle died
after the former-passenger who drove the vehicle to the nearby gas station, with the officer’s
permission, subsequently left the gas station and collided with a cluster of trees); Kaisner, 543 So.
2d at 733-34 (driver of stopped vehicle was struck by the police cruiser after another vehicle from
onrushing traffic unexpectedly struck the police cruiser from behind).
Aside from these cases, Jones does not cite any other authority to support his theory of a
special duty owed between law enforcement agencies or agents. And the Court is not
independently aware of any such special duty under Florida law. Therefore, Jones cannot state a
negligence claim based on his special duty theory. Count | is thus DISMISSED.
2. False Imprisonment (Count 4)
To state a false imprisonment claim under Florida law, Jones must allege that he was
(1) unlawfully detained and deprived of his liberty, (2) against his will, (3) without legal authority
or “color of authority,” and (4) that the deprivation of liberty was unreasonable under the
circumstances. Harder v. Edwards, 174 So. 3d 524, 530 (Fla. 4th DCA 2015) (citations omitted).°
Previously, the Court dismissed Jones’s false imprisonment claim because he alleged that
he “was subjected to a brief investigative stop” and because he did not allege that “the restraint
was unreasonable and unwarranted under the circumstances.” (D.E. 20 at 3.) After reviewing the

> As a conceptual matter, while false arrest and false imprisonment are closely related, false
imprisonment is “a broader common law tort” and false arrest is “only one of several methods of committing
false imprisonment.” Mathis v. Coats, 24 So. 3d 1284, 1289 (Fla. 2d DCA 2010) (citations omitted).

Amended Complaint, the Court finds that these initial pleading deficiencies are cured. In it, Jones
alleges that the ““‘stop’ was not a brief investigative stop” and that the restraint was unreasonable
and unwarranted under the circumstances because he should never have been subjected to
detention, yet the Agents—with “no authority to pull over [Jones] while providing aid to local
authorities during a natural disaster’——“‘drew their service weapons” on him and pinned him
against the hood of the Suburban, thus “forcibly restraining” him by force or threat of force.
(D.E. 25 at 4 67-69.) Jones also alleges that this force was used despite only being stopped for
speeding. Jd. at § 42.
Notably, the United States does not take issue with the sufficiency of Jones’s allegations.
(See D.E. 26 at 12-14.) Instead, the United States invokes an affirmative defense and argues that
the false imprisonment claim must still be dismissed because the Agents had probable cause (or at
least reasonable suspicion) to stop and detain Jones. But the Court cannot determine from the face
of the Amended Complaint that the Agents had probable cause or reasonable suspicion to stop
Jones. And thus, it is premature for the Court to decide at this time whether the stop was
objectively reasonable under the circumstances. See Amato v. Cardelle, 56 F. Supp. 3d 1332, 1334
(S.D. Fla. 2014) (denying motion to dismiss false arrest claim because “probable cause is a
question of fact that cannot be resolved on a motion to dismiss.”); Gregory v. Miami-Dade Cnty.,
86 F, Supp. 3d 1333, 1338 (S.D. Fla. 2014) (denying motion to dismiss false imprisonment claim
because the existence of probable cause could not be determined from the face of the complaint).
At the motion to dismiss stage, the Court’s review is limited to the allegations in the
Amended Complaint. And as set out above, the Amended Complaint alleges that Jones was
forcibly restrained against his will by the Agents, and that the non-brief stop, premised on a
“fabricated story” of speeding, was unreasonable under the circumstances. Taking these

9.

allegations as true and drawing reasonable inferences from them, Jones states a claim for false
imprisonment. The motion to dismiss is accordingly DENIED as to Count 4. At summary
judgment, the United States may renew its probable cause defense with supporting evidence.
3. Assault (Count 2) and Battery (Count 3)
Finally, Jones asserts claims against the United States for assault and battery. But in this
Circuit, “a claim that any force in an illegal stop .. . is excessive is subsumed in [an] illegal stop
... claim and is nota discrete excessive force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th
Cir. 2000) (emphases added) (citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995)).
This is because “if a stop or arrest is illegal, then there is no basis for any threat or any use of
force....” Id.
Following Jackson and Williamson, courts in this district have dismissed assault and
battery claims that stem from the same factual allegations asserted in support of a false
imprisonment or false arrest claim. See Gregory, 86 F. Supp. 3d at 1339 (applying Jackson and
granting motion to dismiss battery claim because “by operation of law” the claim was “subsumed
within [the] claim for false imprisonment”); Papa v. City of N. Miami Beach, 2007 WL 9701041,
at *4 (S.D. Fla. Apr. 2, 2007) (applying Williamson and granting motion to dismiss assault claim
because “the correct analysis” is that the assault claim was “subsumed in the false imprisonment
claim’). Thus, Counts 2 and 3 are DISMISSED as subsumed by the false imprisonment claim.
B. CLAIMS AGAINST THE AGENTS
The Amended Complaint asserts 6 excessive force claims against the Agents: 3 claims
under Bivens and 3 claims under Section 1983. At the outset, the Court notes that the 2 Bivens
claims against Agent Scelsa (Counts 6 and 9) are duplicative of each other, as are the 2 Section
1983 claims against Arias (Counts 7 and 10). Because the Court finds no discernable difference

_Q.

between the allegations supporting these claims, and there is no argument from Jones to the
contrary, Counts 9 and 10 are dismissed as duplicative in the interests of judicial economy. See Jn
re Takata Airbag Prods. Liab. Litig., — F. Supp. 3d —, 2020 WL 2892366, at *20 n.8 (S.D. Fla.
June 1, 2020) (citing Kuchenbecker v. Johnson & Johnson, 2019 WL 4416079, at *2 (S.D. Fla.
Sept. 16, 2019)). The Court will now address the remaining claims.
1. Bivens Claims (Counts 5—6)
Jones alleges that the Agents are liable under Bivens v. Six Unknown Agents, 403 U.S. 388
(1971) for violating his Fourth Amendment rights by unreasonably using excessive force. The
Agents argue that these claims are barred because they are entitled to qualified immunity.
a) Qualified Immunity at the Motion to Dismiss Stage
The qualified immunity defense may be raised in a motion to dismiss and will be granted
if the complaint fails to allege the violation of a clearly established constitutional right. Smith v.
Siegelman, 322 F.3d 1290, 1294 (11th Cir. 2003) (quoting Chesser v. Sparks, 248 F.3d 1117, 1121
(11th Cir. 2001)). Qualified immunity balances two important public interests: the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably. Corbitt v.
Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). This allows officials to work without fear of liability, protecting “all but the plainly
incompetent or those who knowingly violate the law.” Jd. (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)). So “unless the plaintiff's allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled to dismissal before the
commencement of the discovery.” Diaz v. Miami-Dade Cnty., 424 F. Supp. 3d 1345, 1356 (S.D.
Fla. 2019) (quoting Lawson v. City of Miami Beach, 908 F. Supp. 2d 1285, 1289 (S.D. Fla. 2012)).

an.

b) Discretionary Function
The qualified immunity defense shields government officials performing discretionary
functions from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.
Corbitt, 929 F.3d at 1311 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To establish
a qualified immunity defense, “the public official ‘must first prove that he was acting within the
scope of his discretionary authority when the allegedly wrongful acts occurred.’” Vinyard vy.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002)). Acting within the scope of discretionary authority means that the actions were (1)
undertaken pursuant to the performance of the officer’s duties and (2) within the scope of the
officer’s authority. See Collier v. Dickinson, 477 F.3d 1306, 1307 n.1 (11th Cir. 2007) (quoting
Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995)).
Here, the Agents assert that they were in the Florida Keys performing a public security
function while assisting other law enforcement agencies in the aftermath of Hurricane Irma. They
argue that activating their emergency sirens and lights to stop Jones was an exercise of their public
security function. This argument is not seriously contested by Jones: without more, he summarily
asserts that he is “unwilling to concede that the actions of the Special Agents were discretionary.”
(D.E. 27 at 12.) This conclusory contention is not persuasive. And in any event, the Court finds
that the stop was a discretionary exercise of the Agents’s public security function. The burden
now shifts back to Jones to show that his allegations establish that his Fourth Amendment rights
were violated and that the unlawfulness of the Agents’s conduct was clearly established at the
time.

~11-

c) Constitutional Violation
Bivens recognizes a cause of action for damages against federal officers based on
constitutional violations. See Smith, 322 F.3d at 1297.15. And Jones’s Bivens claim alleges that
the Agents violated his Fourth Amendment rights by unreasonably using excessive force. The
Fourth Amendment provides the “right of the people to be secure in their persons... against
unreasonable ... seizures.” U.S. Const. amend. [V. The Fourth Amendment also “encompasses
the right to be free from excessive force during the course of a criminal apprehension.” Corbitt,
929 F.3d at 1315 (quoting Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)). To establish a
Fourth Amendment claim for excessive force, Jones must allege (1) that a seizure occurred and (2)
that the force used to effect the seizure was unreasonable. Jd. (quoting Troupe v. Sarasota Cnty.,
419 F.3d 1160, 1166 (11th Cir. 2005)).
(1) The Seizure
There is no question here that the Agents seized Jones. A seizure occurs “only when there
is a governmental termination of freedom of movement through means intentionally applied.”
Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989) (emphasis in original). And here, Jones’s arm
was pinned behind his back and his body was pinned to the Agents’s vehicle. The core issue in
dispute, then, is whether this force was reasonable.
(2) The Reasonableness of the Seizure
To determine whether force is excessive, the Supreme Court has directed courts to give
“careful attention to the facts and circumstances of each particular case,” including (1) the severity
of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers
or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.
Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).

Because these so-called “Graham factors” serve only as a guide, it is not necessary for an officer
to show that all three factors weigh in his or her favor to establish that the force used was
reasonably proportionate to the need for the force. Varnadore v. Merritt, 778 F. App’x 808, 813—
14 (1th Cir. 2019) (citing Shaw v. City of Selma, 884 F.3d 1093, 1098-100 & n.5 (11th Cir.
2018)). In addition to the Graham factors, the Eleventh Circuit has added as important
considerations “the relationship between the need and amount of force used” and “the extent of
the injury inflicted.” Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir. 2019) (quoting Vinyard,
311 F.3d at 1347). Although these standards do not establish a bright line, “qualified immunity
applies unless application of the standard would inevitably lead every reasonable officer in
[the officer’s] position to conclude the force was unlawful.” Jd. (quoting Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994)).
(i) The Graham Factors
Jones argues that, under the Graham factors, the force used by the Agents was
unreasonable under the circumstances. Jones emphasizes that he was stopped for a minor, non-
criminal offense (speeding), that he did not pose an immediate threat of safety to the Agents or the
public because he is Sargent with the Sheriff's Office, and that he did not actively resist or attempt
to flee, but, instead, complied with the Agents’s orders while trying to provide them with his
identification. Although the Agents disagree with Jones’s conclusion, the parties agree on two of
the Graham factors, and they appear to partially agree on a third factor. Specifically, the Agents
do not dispute that Jones did not resist or attempt to flee, nor do they dispute that Jones was stopped
for speeding. And the Agents and Jones partially agree that he did not pose an immediate threat
of safety to the Agents or the public. They diverge, however, on the point in time when this
conclusion was known or should have been known by the Agents. And it is this disagreement that

~ 17322

the Court finds dispositive to the qualified immunity analysis.
As Graham recognizes, the “‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene”——“rather than with the 20/20 vision of
hindsight.” Graham, 490 U\S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). Jones’s
theory is that he was never a threat to the Agents or the public because he was a Sargent with the
Sheriff's Office and was assisting other law enforcement agencies in the aftermath of Hurricane
Irma. But the Agents could not know this until they confirmed Jones’s identity and his law
enforcement credentials. And at that snapshot in time, based on Jones’s allegations, this is what
the Agents experienced: that after initiating a stop, an unidentified man immediately exited his
unmarked truck in plain clothes and, as he started approaching the Agents, intimated that he was
going to reach for his wallet. (See D.E. 25 at [J 16, 25-26, 28-29.)
As a Sargent with the Sheriff's Office, Jones likely knows and appreciates that “a police
officer need not credit everything a suspect tells him.” Rodriguez v. Farrell, 294 F.3d 1276, 1278
(11th Cir. 2002). So while Jones initially announced to the Agents that he worked for the Sheriffs
Office—an announcement made only after he exited his unmarked vehicle in plain clothes and
began approaching the Agents—and then repeated this throughout the encounter, the Agents were
not forbidden from exercising force in order to confirm Jones’s assertion. The same is true about
Jones intimating that he was going to reach for his wallet to provide his identification. And this is
because officers conducting an investigative stop “may take reasonable steps to ensure their safety
so long as they possess an articulable and objectively reasonable belief that the suspect is
potentially dangerous.” United States v. Mendoza, 658 F. App’x 479, 484 (11th Cir. 2016)
(quoting United States v. Acosta, 363 F.3d 1141, 1146 (11th Cir. 2004)). Faced with this situation,
no prudent officer would have just taken Jones at his word at the potential sacrifice of his safety.

1A.

Looking at the Graham factors together, the Court finds that although Jones was stopped
for a minor, non-criminal offense and did not resist or attempt to flee—two factors that certainly
weigh in Jones’s favor—the dynamic of the whole encounter changed irreversibly when Jones
exited his unmarked truck in plain clothes and, as he started approaching the Agents, intimated
that he was going to reach for his wallet. Confronted with this situation, the Agents acted lawfully
by exercising force to verify Jones’s identity and law enforcement credentials, and to determine
whether he posed a threat to them or the public.
(ii) The Eleventh Circuit’s Additional Factors
The Eleventh Circuit adds other important considerations to the qualified immunity
calculus, such as “the relationship between the need and amount of force used” and “the extent of
the injury inflicted.” Sebastian, 918 F.3d at 1308 (quoting Vinyard, 311 F.3d at 1347).
Starting with the amount of force, the Agents argue that the force used against Jones was
de minimis. Jones disagrees. He emphasizes that he immediately felt pain and his shoulder muscle
and tendons tear right when his arm was pulled behind his back and to the middle of his neck by
Agent Arias. While Jones initially asserted in the Amended Complaint that this maneuver was an
“objectively unreasonable, unwarranted, impermissible, unconstitutional[,] and gratuitous
excessive force,” (D.E. 25 at § 43), he now acknowledges in his Opposition that “lifting an
arrestee’s arm behind his back in order to handcuff him is a routine arrest technique” (D.E. 27 at
12). And indeed, the Eleventh Circuit has ruled that the arm pinning maneuver used on Jones is
“a relatively common and ordinarily accepted non-excessive way to detain an arrestee.” Rodriguez
vy. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (officer “grabbed plaintiffs arm, twisted it around
plaintiff's back, jerk[ed] it up high to the shoulder and then handcuffed plaintiff as plaintiff fell to
his knees screaming that [the officer] was hurting him’); see also Huebner vy. Bradshaw, 935 F.3d

-15-

1183, 1191 (11th Cir. 2019) (“Officers routinely pull arrestees’ arms behind their backs... .”).
Although Jones does not take issue in his Opposition with being “grabbed” and “slammed”
against the fender and hood of the Suburban, there is no question that “[t]he right to make an arrest
or investigatory stop necessarily carries with it the right to use some degree of physical coercion
or threat thereof to effect it.” Hall v. Ala. Dept. of Pub. Safety, 249 F. App’x 749, 751 n.1 (11th
Cir. 2007) (quoting Vinyard, 311 F.3d at 1347). And even when taken together, the arm pin and
the body grab and slam fall well short of the even harsher exercises of force that have not been
enough to sustain excessive force claims. See, e.g., Croom v. Balkwill, 645 F.3d 1240, 1244-45,
1252-53 (11th Cir. 2011) (per curiam) (affirming summary judgment for officers and finding no
excessive force where an officer pushed a 63-year-old retired woman with arthritis “to the ground
from her squatting position and [held] her there with a foot (or knee) in the back for up to ten
minutes”); Rodriguez, 280 F.3d at 1351 (reversing denial of qualified immunity and ruling there
was no excessive force where officer “grabbed plaintiff's arm, twisted it around plaintiffs back,
jerk[ed] it up high to the shoulder and then handcuffed plaintiff as plaintiff fell to his knees
screaming that [the officer] was hurting him”); Nolin v. Isbell, 207 F.3d 1253, 1254-55, 1258-59
(11th Cir. 2000) (reversing denial of qualified immunity where officer grabbed the plaintiff “from
behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in
the back and pushed his head into the side of the van, searched his groin area in an uncomfortable
manner, and [then] handcuffed him”); Jones v. City of Dothan, Ala., 121 F.3d 1456, 1458 1460-
61 (11th Cir. 1997) (per curiam) (reversing denial of qualified immunity where the officer
“slammed” the plaintiff “against a wall, kicked his legs apart, [and] required him to raise his arms
above his head” causing the plaintiff to experience “pain from having to lift his arms since he had
previously suffered a stroke” and “pain in his arthritic knee from having his legs kicked apart’’).

~164—-

Looking to the severity of his injury, Jones emphasizes that he felt tears in his shoulder
muscle and tendons immediately when Agent Arias performed the arm pinning maneuver, which
ultimately resulted in “significant medical treatment.” (D.E. 25 at {¥ 35, 43.) But “the severity of
the injury alone does not transform” the Agents’s use of force into an excessive use. See Sanchez
v. Obando-Echeverry, 716 F. Supp. 2d 1195, 1207 (S.D. Fla. 2010). And beyond these allegations,
the Amended Complaint is silent on the extent of Jones’s injuries and treatment. At any rate, the
denial of qualified immunity has been reversed even in cases where the officer’s force resulted in
“more than twenty-five subsequent surgeries and ultimately amputation of the arm below the
elbow.” See Rodriguez, 280 F.3d at 1351.
Turning to the need for force, Jones argues that he was subjected to gratuitous force. He is
correct that the Eleventh Circuit has “repeatedly ruled that a police officer violates the Fourth
Amendment, and is denied qualified immunity, if he or she uses gratuitous and excessive force
against a suspect who is under control, not resisting, and obeying commands.” Sebastian, 918
F.3d at 1308 (quoting Stephens v. DeGiovanni, 852 F.3d 1298, 1328 (11th Cir. 2017)). But that is
not what Jones alleges here. To start, Jones never alleges that he was handcuffed. And so his
reliance on Lee v. Ferraro and Hadley v. Gutierrez stretches beyond persuasion. See Lee, 284
F.3d at 1199 (suspect’s head was slammed onto a trunk after the suspect was “arrested, handcuffed,
and completely secured, and after any danger to the arresting officer as well as any risk of flight
had passed”); Hadley, 526 F.3d 1324, 1330 (11th Cir. 2008) (suspect was punched in the stomach
after “he was handcuffed and not struggling or resisting”). Jones also never alleges that he was
subjected to additional force after the Agents confirmed his identity, as he was subsequently
released. And so, the force used against Jones lasted no longer than necessary to confirm or dispel
the Agents’s suspicions. Cf Thompson v. Hall, 479 F. App’x 243, 245 (11th Cir. 2012) (affirming

_~17-

denial of qualified immunity where “the length and circumstances of [the plaintiffs] detention
were not ‘reasonably related in scope to the circumstances which justified’ the initial decision to
handcuff her” because she “remained handcuffed for at least an hour, well after the scene had been
secured”) (citation omitted).
Jones’s gratuitous force argument, then, is not supported by his allegations. And
by extension, his reliance on Stephens v. DeGiovanni and Smith v. Mattox is misplaced because
the force used in those cases was far and away more oppressive than the force used here.
See Stephens, 852 F.3d at 1322-24 (reversing summary judgment for officer where the officer
struck the plaintiff in his chest multiple times, causing his head to strike the door jamb, stepped on
the plaintiffs foot while slamming him into a car, and twisted the plaintiffs right hand back toward
his forearm such that the plaintiffs full body weight was supported by only three of his fingers);
Smith, 127 F.3d 1416, 1418 (11th Cir. 1997) (affirming denial of qualified immunity where officer
put his knee into the plaintiff's lower back to prepare an arrest and in the process of pulling the
plaintiffs left arm behind his back, put the plaintiffs forearm in a position that caused discomfort
and then, “with a grunt and a blow,” broke the plaintiffs arm).
Together, the Eleventh Circuit’s additional factors do not alter the conclusion reached
under the Graham factors. Although Jones was stopped for a minimal, non-criminal infraction
and did not resist or attempt to flee, the Court cannot “use hindsight to judge” the Agents’s use of
force. Rodriguez, 280 F.3d at 1352-53. Instead, the Court must look at what the Agents “knew
(or reasonably should have known) at the time of the act.” /d. at 1353. And at that time, all the
Agents knew was what they observed: that after initiating a stop, an unidentified man immediately
exited his unmarked truck in plain clothes and, as he started approaching them, intimated that he
was going to reach for his wallet. In this moment, the Agents did not know Jones’s name or his

_12.

occupation; nor, most importantly, his intentions. And so they acted lawfully by using force to
determine Jones’s identity and to assess whether he posed a threat to the Agents or the public.
In doing so, the Agents were not plainly incompetent and did not knowingly violate the law.
Cf Corbitt, 929 F.3d at 1323 (reversing denial of qualified immunity at motion to dismiss stage
even where officer fired his gun at a dog and accidentally shot a 10-year-old child in the knee).
On the facts alleged, the Court finds that Jones does not meet his burden of establishing
that the Agents violated his Fourth Amendment rights. Sebastian, 918 F.3d at 1308 (“[Ql]ualified
immunity applies unless application of the standard would inevitably lead every reasonable officer
in [the officer’s] position to conclude the force was unlawful.”) (citation omitted). The Agents are
thus entitled to qualified immunity. Diaz, 424 F. Supp. 3d at 1356 ‘(Unless the plaintiffs
allegations state a claim of violation of clearly established law, a defendant pleading qualified
immunity is entitled to dismissal before the commencement of the discovery.”) (citation omitted).
d) “Clearly Established” Right
The Court finds that Jones does not allege a constitutional violation here. And without this
element, the Court “need not assess whether the alleged violation was clearly established.”
Garczynski v. Bradshaw, 573 F.3d 1158, 1170 (11th Cir. 2009) (citing Case v. Eslinger, 555 F.3d
1317, 1328 (11th Cir. 2009)); Varnadore, 778 F. App’x at 813 (“Because we conclude that Merritt
did not violate Foskey’s Fourth Amendment rights in this case, it necessarily follows that there
was no violation of a clearly established right.”). That said, even if Jones sufficiently alleged a
constitutional violation, he would still fail to meet his burden of showing that qualified immunity
is not appropriate because his allegations are not defined with the specificity required for this Court
to rule that the Agents violated a clearly established right.
The Supreme Court has “repeatedly told courts . . . not to define clearly established law at

_19.-

a high level of generality.” City of Escondido v. Emmons, — U.S. —, 139 S. Ct. 500, 503 (2019)
(per curiam) (quoting Kisela v. Hughes, — U.S. —, 138 S. Ct. 1148, 1152 (2018) (per curiam)).
This is “particularly important in excessive force cases” because “it is sometimes difficult for an
officer to determine how the relevant legal doctrine ... will apply to the factual situation the
officer confronts.” Jd. (quoting Kisela, 138 S. Ct. at 1152). And because excessive force is “an
area of the law in which the result depends very much on the facts of each case . . . police officers
are entitled to qualified immunity unless existing precedent squarely governs the specific facts at
issue....” Id. (emphasis added) (quoting Kisela, 138 S. Ct. at 1153). And so, “it does not suffice”
for this Court to simply state that the Agents “may not use unreasonable and excessive force, deny
qualified immunity, and then remit the case for a trial on the question of reasonableness.” Id.
(quoting Kisela, 138 S. Ct. at 1153).
Here, Jones only alleges that he had a “clearly established Constitutional right under the
Fourth Amendment to be secure in his person from unreasonable seizure through excessive force”
and that any reasonable officer would know that this right was clearly established at the time.
(D.E. 25 at 49 74-75, 91-92.) And then he summarily, and passively, argues that he has shown
that “[i]t is clearly established that an arrest made or instituted without probable cause violates the
Fourth Amendment.” (D.E. 27 at 8.) But these general allegations, taken as true and left without
any further elaboration, are framed at the same “high level of generality” that the Supreme Court
has scolded courts for using as grounds to deny qualified immunity. See City of Escondido, 139
S. Ct. at 503 (reversing court of appeals for “defin[ing] the clearly established right at a high level
of generality by saying only that the ‘right to be free of excessive force’ was clearly established”);
Kisela, 138 S. Ct. at 1152 (reversing denial of qualified immunity and noting that it has “repeatedly
told courts...not to define clearly established law at a high level of generality”)

-90-

(citation omitted); see also Corbitt, 929 F.3d at 1316 (reversing denial of qualified immunity at
motion to dismiss stage where district court erred in “relying on the general proposition that it is
clearly established that the use of excessive force is unconstitutional”). So even if Jones
sufficiently alleged a constitutional violation—and he does not—his allegations are not defined
with the specificity required for this Court to deny qualified immunity.
The Court does not doubt that with the benefit of hindsight all parties could have acted
more carefully. But qualified immunity is evaluated under a calculus that must consider—as Jones
can appreciate—that “police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving.” Corbitt, 929 F.3d at 1321-23
(reversing denial of qualified immunity even where officer fired his gun at a dog and accidentally
shot a 10-year-old child in the knee) (citation omitted).
And taking Jones’s allegations as true, the Court finds that not every officer in the position
of the Agents would conclude that the force used against Jones was unlawful. Sebastian, 918 F.3d
at 1308 (“[Q]ualified immunity applies unless application of the standard would inevitably lead
every reasonable officer in [the officer’s] position to conclude the force was unlawful.”) (citation
omitted). As such, for all these reasons, the Agents are entitled to qualified immunity on the Bivens
claims. Counts 5 and 6 are thus DISMISSED as barred by qualified immunity.
2. Section 1983 Claims (Counts 7-8)
Finally, Jones asserts Section 1983 claims against both Agents. The Agents argue that
these claims must be dismissed because alleged wrongdoing by federal actors cannot support
Section 1983 claims. Jones persists that he alleges colorable claims under Section 1983.
But the Court need not address these arguments because “the qualified immunity analysis
is identical” under both Bivens and Section 1983. See Wilson v. Layne, 526 U.S. 603, 609 (1999).

-21-

And as shown above, Jones fails to meet his burden of establishing that the Agents violated his
Fourth Amendment rights. And he also fails to define that violation with the specificity required
for this Court to rule that the Agents violated a clearly established right. The Court thus finds that
the Agents are also entitled to qualified immunity on the Section 1983 claims. Counts 7 and 8 are
therefore also DISMISSED as barred by qualified immunity.®
CONCLUSION
For all these reasons, it is
ADJUDGED that Defendants’ Motion to Dismiss (D.E. 26) is GRANTED IN PART
AND DENIED IN PART as follows:
(1) As to the claims against the United States, Count 1 is DISMISSED for failing to state
a claim, and Counts 2 and 3 are DISMISSED as subsumed by Count 4.
The United States must answer the only remaining claim, Count 4, no later than
September 18, 2020;
(2) As to the claims against the Agents, Counts 5—8 are DISMISSED as barred by qualified
immunity, and Counts 9 and 10 are DISMISSED as duplicative; and, finally
(3) The stay of discovery (D.E. 31) is LIFTED. _—
da, this
DONE AND ORDERED in Chambers at Miami, Florida, this of August 2020.

F CO A. MORENO
ITED STATES DISTRICT JUDGE.
Copies furnished to:
Counsel of Record

6 And in any event, Section 1983 “does not apply to federal actors acting under color of federal
law.” Hindman v. Healy, 278 F. App’x 893, 895 (11th Cir. 2008) (citing Dist. of Columbia v. Carter, 409
US. 418, 424-25 (1973)); Albajon v. Gugliotta, 72 F. Supp. 2d 1362, 1370 (S.D. Fla. 1999) (granting
summary judgment to federal officer on Section 1983 claim because her “authority [arose] solely from her
status as a federal law enforcement officer as a Special Agent of the United States Drug Enforcement
Administration” and so “[a]ny actions taken by [the agent] in this matter arose under federal law’).

99.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10118184. Public record. Not legal advice.