Anthony Colon v. Wendell Smith

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14106

____________________

ANTHONY COLON,

Plaintiff-Appellee,

versus

WENDELL SMITH,

Deputy, Badge No. 75438, in his individual

capacity,

RONALD RASLOWSKY,

Corporal, Badge No. 3535, in his individual

capacity,

Defendants-Appellants.

____________________

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:21-cv-00256-CEM-EJK

____________________

Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.

HULL, Circuit Judge:

We grant in part and deny in part the petition for panel

rehearing, vacate our prior opinion, and substitute the following

opinion making some minor changes to Part IV.B.

* * * *

After responding to a 911 call of a verbal and physical fight

inside an apartment, Corporal Ronald Raslowsky and Deputy

Wendell Smith encountered Anthony Colon outside the location.

An altercation between Colon and the officers followed, and Colon

was arrested and ultimately charged with resisting an officer with

violence. Colon’s charges were later dismissed.

Colon then sued Raslowsky and Smith, raising claims

(1) under 42 U.S.C. § 1983 for unreasonable seizure, false arrest,

excessive force, and malicious prosecution; and (2) under Florida

law for false imprisonment, battery, and intentional infliction of

emotional distress (“IIED”). Raslowsky and Smith moved for

summary judgment based on qualified immunity, and the district

court denied the motions. This is the officers’ appeal.

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I. FACTS

When reviewing the grant or denial of qualified immunity

at summary judgment, “[w]e resolve all issues of material fact in

favor of the plaintiff, and then determine the legal question of

whether the defendant is entitled to qualified immunity under that

version of the facts.” Stephens v. DeGiovanni, 852 F.3d 1298, 1313

(11th Cir. 2017) (quotation marks omitted). “With the facts so

construed, we have the plaintiff’s best case.” Id. at 1314 (quotation

marks omitted).

A. Initial Contact with Colon

On February 6, 2017, Corporal Raslowsky and Deputy

Smith responded to a 911 call regarding a verbal and physical fight

inside Unit 186 of an apartment complex. The caller indicated she

heard two males engaged in a 20-minute physical fight, who stated

they were going to kill each other.

When Corporal Raslowsky arrived, he saw Craig Jackson,

Colon, and a third man walking together down the apartment

complex’s stairwell, and Raslowsky asked whether they lived in

Unit 186. Jackson stated he lived in Unit 186. When asked about

the 911 caller’s description of a fight, Jackson stated he had been

yelling into his cell phone. Corporal Raslowsky asked if the officers

could search the apartment “to make sure nothing was wrong and

that no one needed medical attention,” but Jackson said no.

Corporal Raslowsky then explained to Jackson that he was being

detained while police investigated the 911 call, and the officers

handcuffed Jackson for officer safety. During this interaction,

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Colon stayed with Jackson, standing several feet away. The third

man, having no apparent connection to Jackson or Colon, walked

away.

B. Colon’s Cell Phone Video

As the officers handcuffed Jackson, Colon began recording

the officers on his cell phone. On the cell phone video, Colon asked

the officers why they were arresting Jackson. Corporal Raslowsky

responded Jackson was not under arrest and was being detained for

officer safety. Raslowsky then asked Colon whether he was in

Jackson’s apartment; Colon replied no, he was there to give Jackson

a ride to work. Raslowsky then approached Colon to question him.

On the cell phone video, Corporal Raslowsky, now standing

in front of Colon, stated Colon was interjecting himself into the

investigation, and Raslowsky asked eight times whether Colon had

identification. Instead of producing identification, Colon

responded that he just arrived at the apartment to take Jackson to

work, and Colon asked Raslowsky to step away. Raslowsky’s hand

is then seen reaching toward Colon’s cell phone and the video ends.

In his police report, Corporal Raslowsky explained that

because Colon walked down the stairwell with Jackson, Colon was

a potential participant in the fight leading to the 911 call, and

Raslowsky approached Colon to question him. At his deposition,

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Colon testified he did not provide his identification because he felt

threatened.

C. Disputed Altercation

After the cell phone video ends, an altercation occurred

between Colon and the officers. The parties present conflicting

accounts of this altercation.

The officers assert that after Colon refused to provide his

identification, Corporal Raslowsky reached out his hand to

handcuff Colon, but Colon pushed or “shoulder check[ed]”

Raslowsky. Seeing this, Deputy Smith tackled Colon to the

ground. While Colon and Smith were on the ground, Colon rolled

on top of Smith, and Raslowsky tased Colon.

Colon presents a different account. 1 Colon testified that

after Corporal Raslowsky asked for his identification, Raslowsky

“got very frustrated” and lunged at him, which knocked his phone

to the ground. As Colon reached down to pick up his phone,

Deputy Smith tackled Colon to the ground, and Raslowsky tased

Colon. Colon denied that he (1) pushed Raslowsky or (2) rolled on

top of Smith when Smith and Colon were on the ground. As a

result of the officers’ force, Colon suffered lower back pain for a

few weeks and his wrist was “lightly sprained.”

1 The officers assert that parts of Colon’s deposition testimony were arguably

inconsistent. Still, at this summary judgment stage, we must view the

evidence in the light most favorable to Colon. Stephens, 852 F.3d at 1313.

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There is a second video taken by a neighbor at the

apartment complex. This video does little to clear up the facts of

the altercation, as it begins the moment Corporal Raslowsky tased

Colon and does not show the disputed altercation itself. In this

second video, Smith and Colon can be seen on the ground, but at

that time Colon is not on top of Smith. After being handcuffed,

Colon can be heard on the video saying, “He started wrestling me

out of nowhere, I didn’t touch him. I asked him to step away from

my face.”

At this summary judgment stage, we must accept Colon’s

version of events as true. See Stephens, 852 F.3d at 1313-14. As a

result, we are left with this key sequence of events: (1) Corporal

Raslowsky approached Colon and asked eight times if Colon had

identification; (2) frustrated with Colon’s lack of response,

Raslowsky lunged at Colon, but Colon did not push Raslowsky;

(3) Deputy Smith then tackled Colon to the ground; (4) while on

the ground, Colon did not roll on top of Smith; and (5) Raslowsky

tased Colon. 2

D. Post Arrest

2 The officers’ police report states that, in a post-arrest phone call to his

mother, Colon stated, “Mom you know that I feel disrespected when someone

gets into my personal space, so I pushed him because he shouldn’t have tried

to take my phone.” At his deposition, Colon testified that he did not make this

comment and his conversation that day with his mother was in person while

he was sitting in the police car at the scene and not by a phone call. Because

Colon testified he never pushed Corporal Raslowsky, we must accept as true

his version that he did not. See Stephens, 852 F.3d at 1313.

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Colon testified that he was able to post bond after his arrest

and spent 6 or 7 hours in jail. On May 18, 2017, Colon was charged

by information with two counts of battery on a law enforcement

officer, but both counts were dismissed. Colon appeared in court

for one hearing before his criminal charges were dropped. As a

result of his arrest, Colon testified that he (1) missed one day of

work, totaling $105 in lost wages, (2) was told he might lose his job

for missing work, but (3) did not actually lose his job.

II. PROCEDURAL HISTORY

Colon sued Corporal Raslowsky and Deputy Smith

(1) under 42 U.S.C. § 1983 for unreasonable seizure, false arrest,

excessive force, and malicious prosecution; and (2) under Florida

law for false imprisonment, battery, and IIED.

The officers moved for summary judgment, raising qualified

immunity as a defense to Colon’s § 1983 law claims. The officers

did not raise Florida law official immunity as a defense to Colon’s

state law claims, and on appeal they present no argument regarding

such immunity.

The district court granted summary judgment in favor of

Corporal Raslowsky on Colon’s § 1983 unreasonable seizure claim,

finding Raslowsky had reasonable suspicion to detain Colon.

However, the district court denied summary judgment to the

officers on Colon’s remaining claims.

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As to Colon’s § 1983 false arrest claims against both officers,

the district court found that the officers lacked arguable probable

cause to arrest Colon.3

The district court then denied summary judgment on

Colon’s § 1983 excessive force claims and his state law battery and

IIED claims. The court found it was disputed “who instigated the

initial physical contact between Plaintiff and Raslowsky . . . and

these facts are material to determining whether Defendants’

subsequent use of force was appropriate.”

The district court also denied summary judgment on

Colon’s § 1983 malicious prosecution claims and his state law false

imprisonment claims. The court determined “[a]ll of these counts

are premised upon the allegation that Defendants’ arrest of

Plaintiff was not supported by probable cause,” which could not be

resolved “because there are disputed issues of material fact”—i.e.,

whether Colon or Corporal Raslowsky initiated physical contact.

The officers timely appealed.

3 The district court construed Colon’s “False Arrest and Unreasonable Seizure”

claim against Deputy Smith as encompassing only Colon’s arrest, not the prior

detention/stop of Colon. On appeal, Colon does not challenge this

determination.

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III. SECTION 1983 CLAIMS

On appeal, the officers argue that the district court erred in

denying them qualified immunity as to Colon’s § 1983 claims for

false arrest, excessive force, and malicious prosecution.

“Qualified immunity protects government officials

performing discretionary functions from suits in their individual

capacities unless their conduct violates clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)

(quotation marks omitted). If an official’s challenged conduct was

within the scope of his discretionary authority, the plaintiff must

establish that the official is not entitled to qualified immunity by

showing both (1) that the official’s conduct violated a constitutional

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

the time of the official’s conduct. Roberts v. Spielman, 643 F.3d 899,

904 (11th Cir. 2011).

Corporal Raslowsky and Deputy Smith were acting in their

discretionary authority. The dispute is over whether they violated

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Colon’s constitutional rights under the Fourth Amendment or

were entitled to qualified immunity. 4

A. False Arrest

On appeal, the officers argue they had both arguable

reasonable suspicion to detain Colon in a Terry 5 stop and arguable

probable cause to arrest him for obstruction without violence

under Fla. Stat. § 843.02. In response, Colon asserts the officers

unconstitutionally detained and arrested him. 6

“[A]n officer may, consistent with the Fourth Amendment,

conduct a brief, investigatory stop when the officer has a

reasonable, articulable suspicion that criminal activity is afoot.”

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In the qualified

immunity context, the question is not whether reasonable

suspicion existed in fact, but whether the officer had arguable

reasonable suspicion given the totality of the circumstances.

Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). “Although a

4 We have jurisdiction to review denials of qualified immunity on Colon’s

§ 1983 claims against the officers. See English v. City of Gainesville, 75 F.4th 1151,

1155-56 (11th Cir. 2023).

5 Terry v. Ohio, 392 U.S. 1 (1968).

6 The district court granted qualified immunity and summary judgment to

Corporal Raslowsky on Colon’s § 1983 unreasonable seizure claim because it

concluded Raslowsky had reasonable suspicion for a Terry stop of Colon.

However, we lack jurisdiction to review a grant of qualified immunity.

Winfrey v. Sch. Bd. of Dade Cnty., 59 F.3d 155, 158 (11th Cir. 1995). Nonetheless,

we must set forth the facts supporting reasonable suspicion as necessary to

analyze Colon’s § 1983 false arrest claims.

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mere hunch does not create reasonable suspicion, the level of

suspicion the standard requires is considerably less than proof of

wrongdoing by a preponderance of the evidence, and obviously

less than is necessary for probable cause.” Kansas v. Glover, 589 U.S.

376, 380 (2020) (quotation marks omitted).

Here, several facts support arguable reasonable suspicion for

a brief investigatory stop of Colon. The 911 caller stated two men

in Unit 186 were engaged in a fight, and the combatants said they

were going to kill each other. After Raslowsky arrived, he saw

Jackson and Colon walking together down the apartment

complex’s stairs, and Jackson confirmed he lived in Unit 186. As

Raslowsky and Smith questioned and handcuffed Jackson, Colon

remained mere feet away and stated that he came to the apartment

to give Jackson a ride to work.

“[G]iven the circumstances, [arguable] reasonable suspicion

objectively existed to justify” a Terry stop of Colon to investigate

whether he was involved in the fight leading to the 911 call. See

Hicks v. Moore, 422 F.3d 1246, 1252 (11th Cir. 2005). Due to Colon’s

presence with and proximity to Jackson, his statement that he had

been to Jackson’s apartment, and the call’s reference to two men,

Corporal Raslowsky was not required to accept Colon’s statement

at face value and had leeway to determine Colon’s identity at least.

Because arguable reasonable suspicion existed, Raslowsky could

detain Colon to ascertain Colon’s identity. See Fla. Stat.

§ 901.151(2). As a result, Raslowsky was engaged in the lawful

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execution of a legal duty when he stopped Colon and asked

whether Colon had identification.

Next, we must determine whether Colon’s failure, while

lawfully detained, to provide his identification constituted

obstructing or resisting an officer under Fla. Stat. § 843.02.

Section 843.02 provides “[w]hoever shall resist, obstruct, or

oppose any officer . . . in the lawful execution of any legal duty,

without offering or doing violence to the person of the officer, shall

be guilty of a misdemeanor of the first degree.” Fla. Stat. § 843.02.

This statute has two elements: “(1) the officer was engaged in the

lawful execution of a legal duty; and (2) the defendant’s action, by

his words, conduct, or a combination thereof, constituted

obstruction or resistance of that lawful duty.” C.E.L. v. State, 24

So. 3d 1181, 1185-86 (Fla. 2009).

“Florida courts have generally held, with very limited

exceptions, that physical conduct must accompany offensive words

to support a conviction under § 843.02.” Davis v. Williams, 451 F.3d

759, 765 (11th Cir. 2006). But “[w]ords alone may result in

obstruction of justice where the officer in question is . . . legally

detaining a person.” Id. at 765 n.9 (quoting Francis v. State, 736

So. 2d 97, 99 n.2 (Fla. Dist. Ct. App. 1999)).

“When an officer lawfully conducts a Terry stop, Fla. Stat.

§ 843.02 authorizes the officer to arrest a person who refuses to

provide identification in response to requests.” Moore v. Pederson,

806 F.3d 1036, 1049 (11th Cir. 2015). Compare K.A.C. v. State, 707

So. 2d 1175, 1177 (Fla. Dist. Ct. App. 1998) (holding lawfully

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detained truant juvenile resisted officers when he refused to

identify himself and reveal where he went to school), and N.H. v.

State, 890 So. 2d 514, 517 (Fla. Dist. Ct. App. 2005) (holding lawfully

detained individual obstructed police by “refusing to identify

himself, refusing to sit and thus comport himself so that the officers

could investigate and finally physically threatening them”), with

M.M. v. State, 51 So. 3d 614, 615-16 (Fla. Dist. Ct. App. 2011)

(holding individual did not violate § 843.02 because “[a]t no time

was M.M. under lawful detention” and “[t]hus he was free to refuse

to identify himself to the officer”).

Here, Corporal Raslowsky was engaged in a lawful Terry

stop when he asked whether Colon had identification eight times.

It is undisputed that Colon did not present his identification.

Therefore, the officers had arguable probable cause to arrest Colon

for resisting an officer without violence under Fla. Stat. § 843.02,

and thus, Colon’s § 1983 false arrest claims fail. See Turner v.

Williams, 65 F.4th 564, 589 (11th Cir. 2023) (stating probable cause

is an absolute bar to § 1983 false arrest claims).

Colon’s arguments to the contrary are not persuasive. First,

Colon argues that Raslowsky’s failure to comply with Fla. Stat.

§ 901.17 renders his arrest illegal. That statute requires that unless

a suspect “flees or forcibly resists,” an officer must inform the

suspect “of the officer’s authority and the cause of arrest.” Fla.

Stat. § 901.17. However, “an officer’s failure to comply with section

901.17 does not render the arrest illegal; it is merely a fact the jury

can consider in the defendant’s criminal case in evaluating the

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reasonableness of the defendant’s actions.” Fla. Fish & Wildlife

Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 466-67 (Fla. Dist. Ct.

App. 2015); Albury v. State, 910 So. 2d 930, 933 (Fla. Dist. Ct. App.

2005) (same).

Second, Colon contends he did not have sufficient time to

provide Raslowsky with his identification. Colon’s cell phone video

clearly shows Raslowsky asking about identification eight times. A

reasonable officer in Raslowsky’s position could have believed

Colon was resisting an officer without violence where Colon failed

to present his identification after eight requests. See Edger v. McCabe,

84 F.4th 1230, 1236-37 (11th Cir. 2023) (“In the false arrest context,

arguable probable cause exists where a reasonable officer, looking

at the entire legal landscape at the time of the arrests, could have

interpreted the law as permitting the arrests.” (quotation marks

omitted)).

Third, at oral argument, Colon suggested that an individual

obstructs an officer by refusing to provide identification only after

the individual is arrested, not prior to arrest, such as when an

individual is lawfully detained. The Florida Supreme Court has

rejected this argument, stating “section 843.02 . . . does not require

that the officer be attempting to arrest the suspect.” Jacobson v.

State, 476 So. 2d 1282, 1287 (Fla. 1985). “On its face, [§ 843.02] is

unambiguous. It is intended to apply to any situation where a

person willfully interferes with the lawful activities of the police.

Nothing indicates that it applies only when police are arresting a

suspect . . . .” N.H., 890 So. 2d at 516.

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Because the officers had arguable probable cause to arrest

Colon under Fla. Stat. § 843.02, his § 1983 false arrest claims fail.

Accordingly, we reverse the district court’s order denying qualified

immunity and summary judgment to the officers on Colon’s false

arrest claim.7

B. Excessive Force

On appeal, the officers argue the district court erred in

denying them qualified immunity and summary judgment on

Colon’s excessive force claims.

The Fourth Amendment encompasses “the right to be free

from the use of excessive force in the course of an arrest.” Johnson

v. City of Miami Beach, 18 F.4th 1267, 1272 (11th Cir. 2021). “[T]he

right to make an arrest . . . necessarily carries with it the right to

use some degree of physical coercion or threat thereof to effect it.”

Myers v. Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013) (quotation

7 The parties dispute whether Corporal Raslowsky was an arresting officer

subject to Colon’s false arrest claim. To be liable for a false arrest, an officer

(1) must have participated in the arrest or (2) must have been the arresting

officer’s supervisor or in their chain of command. Brown v. City of Huntsville,

608 F.3d 724, 736-37 (11th Cir. 2010). Raslowsky was an active participant in

Colon’s arrest—he detained Colon, tased Colon after Smith’s tackle, and then

instructed Smith to handcuff Colon. Further, Raslowsky was in Smith’s chain

of command. Smith testified that Raslowsky, as a corporal, had seniority over

him, and Smith testified that Raslowsky was his corporal, stating, “So, we –

originally, my corporal, Raslowsky, he was the first responding deputy there.

I backed him up on the call.” Even though Corporal Raslowsky was an

arresting officer, Colon’s false arrest claims fail on other grounds.

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marks omitted). Still, the manner in which an officer conducts an

arrest “must nonetheless comply with the Fourth Amendment.”

Richmond v. Badia, 47 F.4th 1172, 1180 (11th Cir. 2022).

In evaluating an excessive force claim, we utilize a

non-exhaustive list of factors set forth by the Supreme Court in

Graham v. Connor, 490 U.S. 386, 396 (1989), as well as factors added

by our caselaw. Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir.

2019). These factors include (1) “the severity of the crime at issue,”

(2) “whether the suspect poses an immediate threat to the safety of

the officers or others,” (3) whether the suspect “is actively resisting

arrest or attempting to” flee, (4) “the relationship between the need

and amount of force used,” and (5) “the extent of the injury

inflicted” on the suspect. Id. (quotation marks omitted).

As explained above, for the purposes of this appeal, we must

take as true Colon’s account of the events. See Stephens, 852 F.3d at

1313-14; supra at 6. Under Colon’s version, Raslowsky lunged at

Colon, Colon did not push or shoulder check Raslowsky, Smith

tackled Colon to the ground, and Raslowsky tased Colon, all while

Colon posed no immediate risk, was not resisting an arrest, and was

not attempting to evade his arrest by fleeing.

Under Colon’s version, there was no need for any force at all

and thus the force used—tackling Colon to the ground and tasing

him—was excessive and not proportionate. And Colon suffered a

sore back and a sprained wrist from the officers’ force.

Accepting Colon’s events as true, the officers violated his

clearly established Fourth Amendment right to be free from

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excessive force during a detention and an arrest when they used

gratuitous force and tackled and tased a non-resisting, non-violent

Colon. See Johnson, 18 F.4th at 1272 (“[A] police officer violates the

Fourth Amendment if he uses gratuitous force against a suspect

who is secure, not resisting, and not a safety threat to the officer or

other officers.”).

Further, it was clearly established at the time of the officers’

conduct “that gratuitous use of force when a criminal suspect is

not resisting arrest constitutes excessive force.” Hadley v. Gutierrez,

526 F.3d 1324, 1330 (11th Cir. 2008); see also Saunders v. Duke, 766

F.3d 1262, 1265 (11th Cir. 2014) (characterizing as gratuitous force

an officer slamming a non-resisting suspect’s head into the ground);

Fils v. City of Aventura, 647 F.3d 1272, 1292 (11th Cir. 2011) (holding

it was clearly established that using a taser “is excessive where the

suspect is non-violent and has not resisted arrest”).

At this summary judgment juncture, we affirm the denial of

qualified immunity to the officers on Colon’s § 1983 excessive force

claims.

C. Malicious Prosecution

This brings us to the officers’ appeal of the denial of

qualified immunity on Colon’s malicious prosecution claims.

To prevail on a Fourth Amendment malicious prosecution

claim, the plaintiff must prove “(1) that the defendant violated his

Fourth Amendment right to be free from seizures pursuant to legal

process and (2) that the criminal proceedings against [the plaintiff]

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terminated in his favor.” Luke v. Gulley, 975 F.3d 1140, 1144 (11th

Cir. 2020) (emphasis added).

While Colon’s warrantless arrest—a seizure without legal

process—would support a false arrest claim, it cannot support his

malicious prosecution claims. See Williams v. Aguirre, 965 F.3d 1147,

1157-58 (11th Cir. 2020) (noting false arrest and malicious

prosecution claims concern different kinds of seizures). Instead, a

malicious prosecution claim must be premised on a seizure

pursuant to legal process, such as a warrant-based arrest or a seizure

“following an arraignment, indictment, or probable-cause

hearing.” Id. at 1158. Colon presented no evidence of such a

seizure, so his malicious prosecution claims necessarily fail.

At oral argument, Colon suggested his malicious

prosecution claims could be based on the criminal “information”

filed against him on May 18, 2017. But there is no evidence that

Colon was seized after that “information” was filed. The only

evidence of a seizure is the warrantless arrest and Colon’s related 6

or 7 hours in jail on February 6, 2017. That was a seizure without

legal process and does not support a malicious prosecution claim. 8

8 As to the malicious prosecution claim, the district court missed the mark by

addressing whether there was probable cause under Fla. Stat. § 843.02

(resisting without violence), a crime for which Colon was not charged. Just

like the seizure requirement, the probable-cause inquiry for malicious

prosecution and false arrest claims is distinct. In the false arrest context, we

assess whether there was probable cause to arrest for any crime, even

uncharged crimes, such as Fla. Stat. § 843.02. See Garcia v. Casey, 75 F.4th 1176,

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For the above reasons, we reverse the denial of summary

judgment to the officers on Colon’s malicious prosecution claims.

IV. FLORIDA LAW CLAIMS

A. Jurisdiction

We have a threshold obligation to ensure that we have

appellate jurisdiction, even where no party has raised the issue.

Corley v. Long-Lewis, Inc., 965 F.3d 1222, 1227, 1233 (11th Cir. 2020).

Colon’s state law claims present a jurisdictional wrinkle.

“Qualified immunity is a defense to federal causes of action and

does not protect officials from claims based upon state law.” Andreu

v. Sapp, 919 F.2d 637, 640 (11th Cir. 1990). Florida law provides

official immunity from suit for state tort claims. See Fla. Stat.

§ 768.28(9)(a); Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012). And

state officials may immediately appeal the non-final denial of state

official immunity from suit. See Jones v. Fransen, 857 F.3d 843, 849

(11th Cir. 2017). But Raslowsky and Smith did not raise Florida law

official immunity as a defense to Colon’s state law claims at

1187 (11th Cir. 2023). But in the malicious prosecution context, we assess

probable cause for the crimes actually charged that justified the seizure.

Williams, 965 F.3d at 1161-62. Because Colon presented no evidence that he

was seized pursuant to legal process, we need not address whether there was

probable cause for the crimes for which he was actually charged or whether

probable cause had to exist for all or just one of the crimes actually charged.

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summary judgment, and they do not address this immunity on

appeal.

In other words, when the district court denied summary

judgment to Raslowsky and Smith on Colon’s state law claims, it

did not deny them an immunity from suit. We thus lack an

independent jurisdictional basis to review the denial of summary

judgment on Colon’s state law claims.

However, we still have the option to exercise our

discretionary pendent appellate jurisdiction, which allows us to

review non-appealable matters that are “inextricably intertwined

with an appealable decision.” Smith v. LePage, 834 F.3d 1285, 1292

(11th Cir. 2016) (quotation marks omitted). Matters are sufficiently

intertwined where they “implicate the same facts and the same

law.” Id. (quotation marks omitted and alteration adopted). Here,

the same facts and law that are necessary to resolve Colon’s § 1983

law claims also resolve his state law claims. We choose to exercise

such pendent jurisdiction to reach Colon’s state law claims.

B. False Imprisonment

We can make short work of Colon’s state law false

imprisonment claims because the officers had actual probable

cause for Colon’s arrest. Baxter v. Roberts, 54 F.4th 1241, 1271 (11th

Cir. 2022) (holding “probable cause is a complete bar” to Florida

false imprisonment claims); Bolanos v. Metro. Dade Cnty., 677 So. 2d

1005, 1005 (Fla. Dist. Ct. App. 1996) (same). Above, in analyzing

Colon’s § 1983 false arrest claims, we explained that the officers had

arguable probable cause to arrest Colon, which defeated those

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claims. Because the officers asserted qualified immunity as a

defense to Colon’s § 1983 false arrest claims, “[a]rguable probable

cause, not the higher standard of actual probable cause,” governed

our analysis. See Jones v. Cannon, 174 F.3d 1271, 1283 n.3 (11th Cir.

1999). But, as highlighted in our jurisdiction discussion, qualified

immunity does not extend to Colon’s state law false imprisonment

claims, and the officers have not raised any immunity as to those

claims. Therefore, it seems that actual probable cause governs our

analysis of Colon’s state law false imprisonment claims. See Baxter,

54 F.4th at 1271.

While actual probable cause is a more demanding standard

than arguable probable cause, it “is not a high bar.” District of

Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quotation marks omitted).

“Probable cause requires only a probability or substantial chance

of criminal activity, not an actual showing of such activity.” N.H. v.

State, 358 So. 3d 477, 481 (Fla. Dist. Ct. App. 2023) (quotation marks

omitted). Given the above Florida law about the § 843.02 offense,

we conclude that the officers had actual probable cause to arrest

Colon for obstructing an officer without violence when, while

lawfully detained, Colon failed to present his identification. See

Moore, 806 F.3d at 1049; K.A.C., 707 So. 2d at 1177; N.H., 890 So. 2d

at 517. As a result, we reverse the denial of summary judgment to

the officers on Colon’s state law false imprisonment claims.

C. Battery

Similarly, and as the parties agree, Colon’s state law battery

claims rise and fall with his § 1983 excessive force claims. “Under

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Florida law, force used by a police officer during an arrest is

transformed into a battery where the force used was clearly

excessive.” Johnson, 18 F.4th at 1275. “[T]o determine whether the

force used was excessive, Florida courts analyze whether the

amount of force used was reasonable under the circumstances.” Id.

In light of our conclusion above that a reasonable jury could

conclude Corporal Raslowsky and Deputy Smith used excessive

force, they were not entitled to summary judgment. See id. We

affirm the denial of summary judgment to the officers on Colon’s

state law battery claims.

D. IIED

Under Florida law, an IIED claim has four elements:

“(1) deliberate or reckless infliction of mental suffering; (2) by

outrageous conduct; (3) which conduct must have caused the

suffering; and (4) the suffering must have been severe.” Hart v.

United States, 894 F.2d 1539, 1548 (11th Cir. 1990) (citing Metro. Life

Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985)).

Among other things, the officers argue Colon failed to

present evidence of this fourth element—severe emotional distress.

We agree.

Under Florida law, “severe emotional distress means

emotional distress of such a substantial quality or enduring quality

that no reasonable person in a civilized society should be expected

to endure it.” Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla.

Dist. Ct. App. 2018) (quotation marks omitted and alteration

adopted). To prove an IIED claim, a plaintiff must show “both the

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existence of emotional distress and the quality of that emotional

distress such that a factfinder may reasonably infer both that the

distress in fact happened and that the quality of that distress was

too much for a reasonable person to be expected to bear.” Id. at

1306. Outrageous conduct, standing alone, cannot prove severe

emotional distress. Id. at 1308.

Here, Colon’s evidence failed to show that he suffered severe

emotional distress, as required under Florida law. At most, Colon

stated he missed one day of work, totaling $105 in lost wages, and

that he was told he could lose his job for missing work, although

he did not actually lose his job. This falls far short of what is

required under Florida law to show an IIED claim.

Therefore, we reverse the denial of summary judgment to

the officers on Colon’s IIED claim.

V. CONCLUSION

For the above reasons, we (1) affirm the denial of summary

judgment to Corporal Raslowsky and Deputy Smith on Colon’s

§ 1983 excessive force and state law battery claims, (2) reverse the

denial of summary judgment to the officers on Colon’s § 1983 false

arrest, § 1983 malicious prosecution, state law false imprisonment,

and state law IIED claims, and (3) remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART.