The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
XAVIER ALEXANDER
Plaintiff,
Vv. Case No. 6:23-cv-2325-JA-DCI
ANDREW J. MAMONE and CITY
OF ORLANDO,
Defendants.
/
ORDER
This case is before the Court on Defendants’ motions for summary
judgment (Docs. 28 & 29), Plaintiffs responses (Docs. 30 & 31), and Defendants’
replies (Docs. 32 & 35). Based on the Court’s review of the parties’ submissions,
the motions must be granted.
I. BACKGROUND
In March 2020, Orlando Police Department (OPD) officers Andrew J.
Mamone and Emily Melville responded to the scene of a motor vehicle accident
between Plaintiff, Xavier Alexander, and non-party Christopher Gentry. (Doc.
28-1 at 12:9-15, 28:7—21; Doc. 28-2 at 14:2—20; Doc. 28-3 at 7:7—9; Doc. 30-2 at
11). Plaintiff was driving a 2007 Mercedes-Benz C-280 and Gentry was driving
a 2017 Ford F-250 pickup truck. (Doc. 28-1 at.14:5-8; Doc. 28-2 at 10:18—20).
. Officer Melville served as the lead investigator, with Officer Mamone assisting
her. (Doc. 30-1 at 12). The accident investigation and the subsequent traffic
stop were recorded on Officer Mamone’s police body camera.!
A. Accident Investigation
After arriving at the scene, Officer Mamone spoke privately with Gentry
while Officer Melville met with Plaintiff. (Video 1 at 17:33:00). Gentry told
Officer Mamone that he was driving southbound in the left lane on Orange
Avenue closely behind another vehicle when Plaintiff attempted to merge from
the right lane between Gentry and that other vehicle. (/d. at 17:33:38—17:33:56).
But Plaintiff did not have room to merge, causing the right front bumper of
Gentry’s truck to hit Plaintiffs left taillight. Ud. at 17:33:56-17:34:10). Officer
Mamone inspected the right front side of Gentry’s truck, observed that the truck
sustained no damage, laughed, and exclaimed that “trucks always win.” (Id. at.
17:34:10-17:34:20). Officer Mamone then concluded his conversation with
Gentry. (Id. at 17:35:10). At that point, Officer Mamone had not inspected the
1 Officer Mamone recorded two separate police body camera videos in this
case. The first, taken during the accident investigation, will be referred to as
“Video 1.” (Doc. 28-5). The second, taken during the subsequent traffic stop, will
be referred to as “Video 2.” (Doc. 28-6). The timestamps referred to in this order
are based on the timestamps located in the upper right corner of both videos.
Officer Melville failed to activate her police body camera during the incidents.
(See Doc. 30-1 at 20—21).
damage to Plaintiff's vehicle or heard his account of the accident. (See Doc. 30-
1 at 19).
Officer Mamone then approached Officer Melville while Plaintiff was
explaining to her that he saw smoke billowing from Gentry’s truck after it
suddenly accelerated behind him. (Video 1 at 17:35:18, 17:35:29-17:35:34). At
this point, Officer Melville had already informed Plaintiff that Gentry was at
fault. (Doc. 28-1 at 29:20-30:12). Officer Mamone and Officer Melville then
began a private discussion about the investigation. (Video 1 at 17:36:48).
Officer Melville explained to Officer Mamone that Plaintiff believes
Gentry’s vehicle sped up suddenly behind him after Plaintiff was fully merged
into the left lane. (Ud. at 17:36:49-17:37:10). Officer Mamone asked rhetorically
who is at fault when an accident occurs as a result of a vehicle merging lanes,
to which Officer Melville replied that Gentry may have accelerated. (Ud. at
17:37:15-17:37:18). Officer Mamone then asked who has the responsibility to
make sure the lane is open, which Officer Melville agreed was Plaintiffs
responsibility. (Ud. at 17:37:18—-17:37:23). Officer Mamone rhetorically asked
again who is at fault, to which Officer Melville replied, “Whatever, I never list
anyone at fault, my opinion doesn’t matter.” (Ud. at 17:37:24—17:37:27). Officer
Mamone then argued that the damage to Plaintiffs left taillight indicated that
he was at fault, to which Officer Melville responded “usually, when you get hit
in the back... .” then cut herself off and remarked that civil accidents did not
warrant so much police scrutiny. (/d. at 17:37:28-17:37:40). Officer Mamone
continued to try convincing Officer Melville of his fault determination before
leaving to talk with Plaintiff to “smooth it over.” (Ud. at 17:38:30—17:38:26).
Officer Mamone approached Plaintiff and asked him to explain his version
of events. (Ud. at 17:38:44). Plaintiff stated that Gentry hit him in the back, (/d.
at 17:38:46), to which Officer Mamone responded that “Tf he hit you in the back
... your taillight is stuck on his passenger side tow hook, so if he hit you in the
back, it would be your driver’s side.” (d. at 17:38:48-17:38:58). Plaintiff
pointed to the damage around his left taillight and stated that it was what he
meant by the “back” of his vehicle. (Ud. at 17:39:00—-17:39:04). Plaintiff
explained that he safely merged into the left lane ahead of Gentry, but Gentry
accelerated and rear-ended him. (id. at 17:39:10-17:39:22). Officer Mamone
responded that if Plaintiff's vehicle had fully merged into the left lane, then
Gentry’s right side tow hook would have struck Plaintiffs right taillight. Ud. at
17:39:30). Plaintiff remarked that he “guess[es] whatever I’m saying is not
making sense to you,” to which Officer Mamone replied, “it doesn’t.” (Ud. at
17:39:33-17:39:35). Plaintiffs gestures became more emphatic as he continued
arguing that Gentry “sped up because I got over.” Ud. at 17:39:48—-17:39:52).
Plaintiff continued to argue until Officer Mamone interjected, “Are you
going to let me talk now?” (/d. at 17:40:04). Officer Mamone explained that
Gentry had the right-of-way and that Plaintiff was obligated to ensure the lane
was clear. (Ud. at 17:40:19-17:40:22). Plaintiff again argued that Gentry
accelerated, causing Officer Mamone to shout that “[Gentry] had the right-of
way, he isin the lane.” (Ud. at 17:40:24). Plaintiff became more visibly agitated
as he continued arguing his version of events, leading Officer Mamone to
comment that “based off the damage, you cut him off.” (Ud. at 17:40:27—
17:40:38). After Plaintiff again repeated that he was “clearly in front” of Gentry,
Officer Mamone asked him to explain why his right taillight was not broken.
Ud. at 17:40:40-17:41:01). Plaintiff said, “I was clearly in the lane, ’m not
lying,” and Officer Mamone replied, “You were clearly cutting him off from the
lane.” (Ud. at 14:41:02-17:41:11). This led Plaintiff to comment, “You're talking
like the person that was hit.” (Ud. at 17:41:13). Officer Mamone then told
Plaintiff that he was at fault and began to walk back to the police vehicle. □□□□
at 17:41:15-17:41:23).
Plaintiff then made an inaudible comment, prompting Officer Mamone to
return to Plaintiff and state, “You say he hit you in the back, the rest of your
bumper is not even touched, just the corner... what’s right is right.” (Ud. at
17:41:30—-17:41:46). Plaintiff, gesturing as if he were holding a steering wheel,
claimed that Gentry swerved and hit him in the left taillight. (Ud. at 17:41:44—
17:41:47). The two continued talking over each other and Officer Mamone
remarked, “So, one would say maybe I have a little more experience at this than
you?” (Ud. at 17:41:47-17:42:30). Plaintiff replied that he thinks Officer
rc
Mamone is “biased” because he did not “hear [Officer Mamone] talk like that to
[Gentry].” (Ud. at 17:42:33-17:42:36). Officer Mamone replied, “that’s because
what [Gentry] said made sense,” and walked back to the police vehicle to fill out
forms.2 (Id. at 17:42:42-17:45:48).
After giving the crash form to Gentry, Officer Mamone walked back over
to Plaintiff, who was talking on a cell phone. (/d. at 17:46:00-17:46:26). Officer
Mamone handed Plaintiff his information and the crash form and Plaintiff
began to walk away. (d. at 17:46:30-17:46:35). Officer Mamone asked if
Plaintiff wanted him to explain the forms, Plaintiff replied that he did not, and
Officer Mamone stated, “youre at fault, have a good day.” Ud. at 17:46:36—
17:46:40). Officer Mamone then walked over to Gentry and said, “Ill hang tight
until you get out of here, [Plaintiff] seems really upset that he’s at fault.” Cd.
at 17:46:52). Plaintiff then approached Officer Mamone and asked him to print
his name on the crash report form. (/d. at 17:47:15—-17:47:20). Officer Mamone
printed his name and returned the form to Plaintiff, who was still talking on the
cell phone and standing next to his vehicle. (Ud. at 17:47:50—17:47:54).
Plaintiff entered his vehicle—with the driver’s side window rolled down—
while Officer Mamone stood nearby. (Ud. at 17:47:57). Officer Mamone called
□□ Officer Mamone can be observed writing down Officer Melville’s name in
the section listing “Investigating Officer” in the Online Traffic Crash Report.
(Video 1 at 17:44:41).
out, “drive carefully, please,” to which Plaintiff made an inaudible comment and
a dismissive wave. (Id. at 17:48:00—17:48:03). After more inaudible comments
from Plaintiff, Officer Mamone stated, “I’m not trying to instigate anything, sir,
I believe you're the one who called me a ‘dickhead.” (Ud. at 17:48:08—-17:48:11).
Plaintiff began to drive away, and Officer Mamone commented, “Be careful, I
advise you to get off the phone when you drive,” to which Plaintiff replied, “shut
up.” Ud. at 17:48:15—-17:48:17). Officer Mamone continued, “or at least put it on
hands-free,” to which Plaintiff again replied, “shut up.” (Ud. at 17:48:20—
17:48:25). Plaintiff then drove out of the parking lot, concluding Video 1. In his
deposition testimony, Plaintiff stated that he said “fuck you” to Officer Mamone
as he drove away. (Doc. 28-1 at 38:14—25).
B. Traffic Stop
Video 2 begins two seconds later with Officer Mamone initiating a traffic
stop on Plaintiff. (Video 2 at 17:49:11). As Officer Mamone was initiating the
stop, Officer Melville remarked, “I take this as a P.O.P.?”8 Ud. at 17:49:22).
Officer Mamone did not respond to Officer Melville’s comment and maintains
that he initiated the stop because he “noticed that [Plaintiffs] tint was illegal”
as Plaintiff was driving away. (Doc. 28-1 at 20:238-21:2, 28:19-22). Officer
Mamone also claims that Plaintiff's tires “squeal[ed]” as he “peel[ed] out” of the
3P.0.P.” is a “common term” meaning “Pissed Off Police.” (Doc. 28-1 at
28:12).
parking lot, but this was not captured on the police body camera video and was
not addressed with Plaintiff during the traffic stop. (Doc. 28-3 at 44:1-20; Video
1 at 17:48:33).
After stopping Plaintiff a few blocks from the scene of the accident, Officer
Mamone reintroduced himself to Plaintiff, informed him that he was being
stopped for a tint violation, and requested his paperwork. (Doc. 28-3 at 30:11,
Video 2 at 17:49:38-17:49:42). Plaintiff replied, “how is my tint illegal?” to
which Officer Mamone responded, “Ill show you.” (Video 2 at 17:49:42—
17:49:46). Plaintiff searched for his paperwork while Officer Mamone went back
to the police vehicle to retrieve and calibrate the tint meter. (Ud. at 17:51:42—
17:52:01; Doc. 28-3 at 30:8-20, 42:20—25).
Officer Mamone tested Plaintiffs driver’s side window and announced
that the meter indicated that the window allowed twenty-six percent light
transmittance, below the statutory minimum of twenty-eight percent for front
windows.‘ (Video 2 at 17:52:18). As Officer Mamone removed the meter,
Plaintiff asserted that the meter “went up to twenty-eight.” (Ud. at 17:52:28).
Officer Mamone then reinserted the tint meter in the driver’s side window and
acknowledged that the meter read as twenty-eight percent. (Ud. at 17:52:38).
4§ 316.2953, Fla Stat.
5 The video appears to show the meter as reading twenty-six percent when
it was first inserted into the driver’s side window. (Video 2 at 17:52:19).
Meanwhile, Officer Mamone inserted the tint meter into Plaintiffs rear window.
(Ud. at 17:52:30). He instructed Plaintiff to “step out of the car so [he could] see
the rear window,” and asked him rhetorically, “What number does that say?
twelve percent,” which is below the Florida statutory minimum of fifteen
percent light transmittance for rear windows.® Ud. at 17:52:33—17:52:40; Doc.
28-3 at 30:19-20). Officer Mamone ordered Plaintiff to return to the driver’s
seat and close the car door. (Video 2 at 17:52:49-17:52:59). He then instructed
Officer Melville to stand by while he returned to the police vehicle to write a
citation because he did not want Plaintiff “running away.” (Cd. at 17:53:03).
As he returned to Plaintiffs vehicle after writing the citation, Officer
Mamone called out, “Sir, if you saw smoke coming out of the back of [Gentry’s]
car you would have saw his car and you probably would have avoided the
accident.” (Ud. at 18:01:07—18:01:11). Plaintiff, with his driver’s side door still
ajar, replied, “you don’t know what I saw,” while Officer Mamone attempted to
close the car door. (Id. at 18:01:11). Officer Mamone remarked, “Do you want
to close the [car] door so I can hand you [your paperwork]?” (Ud. at 18:01:12—
18:01:16). Plaintiff stated that there was nothing stopping Officer Mamone from
handing him the paperwork through the open door, to which Officer Mamone
retorted that “it’s hard when its cracked” and grabbed and fully opened the car
6 § 316.2954(1)(a), Fla. Stat.
door. Ud. at 18:01:17—18:01:18). Plaintiff then shut the door, to which Officer
Mamone remarked, “There you go, that’s so much easier, isn’t it?” (Ud. at
18:01:20). Plaintiff replied, “Just give me the ticket, man, stop fucking with
me.” (Cd. at 18:01:21-18:01:24).
Officer Mamone informed Plaintiff that he was still not being cited for
the accident but would receive a ticket for the tint violation. (/d. at 18:01:28—
18:01:37). Plaintiff stated that he felt the traffic stop was only to “harass|[]” him
because he could have been cited for a tint violation during the accident
investigation. (Ud. at 18:01:39-18:01:46). Officer Mamone responded that he
“could have ticketed [Plaintiff] for careless driving at the spot [of the accident].”
Ud. at 18:01:48). Plaintiff continued to protest, prompting Officer Mamone to
return to the police vehicle to write Plaintiff a citation for careless driving in
connection with the accident. (Ud. at 18:01:56—18:08:12).
Officer Mamone returned to Plaintiff and informed him he would be cited
for careless driving and the tint violation (/d. at 18:08:16). Officer Mamone
asked Plaintiff if he had any questions regarding the careless driving ticket, and
Plaintiff made no reply and refused to sign the ticket. (/d. at 18:08:36—18:08:58).
Plaintiff then attempted to show Officer Mamone a form from a business called
Pro Tint of Florida indicating that the tint installation was within the lawful
range, but Officer Mamone disregarded it in favor of the tint meter reading. (/d.
at 18:09:04—18:09:19; Doc. 28-4 J 4-5). Plaintiff also refused to sign the tint
Wn
violation ticket, so Officer Mamone handed it to him and told him he was “free
to go.” (Video 2 at 18:09:28—-18:09:36). The encounter was prolonged another
thirteen seconds so that Officer Mamone could retrieve Plaintiffs driver’s
license from the police vehicle. (Ud. at 18:09:37—18:09:50). That was the end of
the encounter.
C. OPD Investigation
A few months later, Plaintiff presented a signed Citizen’s Complaint Form
to Deputy Chief of Police Jose R. Veléz based on his encounter with Officer
Mamone. (Doc. 30-1 at 3). This prompted the OPD’s Internal Affairs division
to launch a formal investigation and prepare an investigative report, number
IR 20-38. (d.; Doc. 29-1 at 12:21—22). During the investigation, Deputy Veléz
characterized Officer Mamone’s police body camera footage from this incident
as “kind of disturbing.” (Doc. 30-1 at 8). Deputy Veléz stated that Officer
Mamone “did not conduct himself in the same manner when dealing with one
individual as he was dealing with the other one,” noting that Gentry is White
and Plaintiffis Black. (Id. at 9). The investigation determined that it is “evident
Officer Mamone had pre-determined [Plaintiff] was at fault for the traffic crash”
and that it is “obvious Officer Mamone was utilizing [the] tint meter
incorrectly.”’ (Ud. at 15, 19).
7 The factory user manual indicated a different calibration threshold than
Officer Mamone used during the traffic stop. (Doc. 30-1 at 14). Officer Mamone
44
The report concluded that “Officer Mamone’s actions were completely
unprofessional and not in keeping with what is expected of an officer of the
[OPD] and served to delegitimize the Department’s efforts of applying the law
without bias.” (Ud. at 20). The report recommended that Officer Mamone be
found to have violated OPD RM 200-1, Standards of Conduct, which provides
that “Employees shall not engage in any conduct which constitutes neglect of
duty, conduct unbecoming of an officer or City employee, or any act that is likely
to adversely affect the discipline, good order, or reputation of the Department.”
(Id. at 16, 20). Officer Mamone was disciplined with a written censure based on
his treatment of Plaintiff. (Doc. 28-3 at 32:6-16). Moreover, both of the tickets
Officer Mamone issued to Plaintiff were dismissed. (Ud. at 38:6—-18, 41:9-19;
Doc. 28-1 at 38:8—18).
Officer Mamone has been the subject of two other formal investigations
during his time as an OPD officer. (See Doc. 29-2; Doc. 29-8). In 2018, OPD
Internal Affairs investigated Officer Mamone for misconduct during a traffic
stop, case number 2018-IR-0009. (Doc. 29-2). As a result of that investigation,
Officer Mamone was found to have violated OPD RM 900-7, Conduct Toward
the Public (a) Courtesy. Ud. at 12). Officer Mamone was sanctioned with an
utilized a three percent variance when he tested the provided reference
standards, but the factory user manual calls for no more than two percent. (Cd.
at 14-15). The report does not state whether Officer Mamone’s misuse of the
tint meter invalidated its readings.
19
oral reprimand. (Doc. 29-1 at 27:14-19). Officer Mamone was again
investigated in 2019 for mistreatment of an arrestee, case number IR 19-383.
(Doc. 29-3). OPD Internal Affairs recommended Officer Mamone be disciplined
for violating OPD RM 800-2, Arrests, (C) and (D), which provide that “All
prisoners/detainees shall be treated humanely and with regard to their legal
rights,” and “It shall be the duty of each member to report any violations of this
Regulation by any member.” (/d. at 6, 8). But these recommendations were
rejected after arbitration. (Doc. 29-1 at 29:8-18). Officer Mamone remains
employed by the OPD. (Doc. 28-3 at 7:13—15).
Plaintiff claims that he has suffered “nightmares” as a result of his
encounter with Officer Mamone and now feels nervous around police officers.
(Doc. 28-1 at 60:1-61:17). Plaintiff brings claims against Officer Mamone and
the City under 42 U.S.C. § 1983 for violating his rights under the Fourth and
Fourteenth Amendments.’ (Doc. 1-1, { 34). In their motions for summary
judgment, Defendants argue that Plaintiffs constitutional rights were not
violated. Alternatively, Defendants contend that Officer Mamone is entitled to
qualified immunity, that the City did not implement any policy or custom that
caused the alleged violation, and that Plaintiff suffered no damages.
8 Plaintiff is no longer pursuing his third claim, which alleged intentional
infliction of emotional distress. (Doc. 30 9).
12
Il. LEGAL STANDARD
On a motion for summary judgment, a district court views “all facts and
reasonable inferences in the light most favorable to the nonmoving party.”
Wesson v. Huntsman Corp. , 206 F.3d 1150, 1152 (11th Cir. 2000). “The court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is “genuine” only if “a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might
affect the outcome of the suit under the governing law.” Id. The movant “bears
the initial responsibility of informing the district court of the basis for its
motion” and “identifying those portions” of the record that ‘it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant demonstrates the absence of a
genuine issue of material fact, “[t]he burden then shifts to the non[]moving
party” to “present affirmative evidence to show that a genuine issue of material
fact exists.” Porter v. Ray, 461 F.3d 13815, 1320 (11th Cir. 2006). To satisfy its
burden, the nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
1A
III. DISCUSSION
A. Claims Against Officer Mamone
1. Qualified Immunity
“A government official faced with a civil rights claim brought pursuant to
42 U.S.C. § 1983 is entitled to raise the affirmative defense of qualified
immunity.” Simmons v. Bradshaw, 879 F.3d 1157, 1162 (11th Cir. 2018).
“Qualified immunity generally shields government officials 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.” Jd. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The
entitlement is an immunity from suit rather than a mere defense to liability. . .
[and] it is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). “The purpose of qualified
immunity is to allow officials to carry out discretionary duties without the
chilling fear of personal liability or [harassing] litigation... .” McCullough v.
Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (citing Anderson v. Creighton, 488
U.S. 635, 6388-89 (1987)). “Because of the purpose served by the doctrine of
qualified immunity, a valid defense based upon it must be recognized as soon as
possible, preferably at the motion to dismiss or summary judgment stage of the
litigation.” Johnson v. Breeden, 280 F.3d 1308, 13817 (11th Cir. 2002).
15
To receive qualified immunity, the defendant public official “must show
that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Zeigler v. Jackson, 716. F.2d 847, 849 (11th
Cir. 1983) (citing Douthit v. Jones, 619 F.2d 527, 538 (5th Cir. 1980)). “Once the
official makes that showing, the burden shifts to the plaintiff to demonstrate
that qualified immunity is inappropriate.” Alcocer v. Mills, 906 F.3d 944, 951
(11th Cir. 2018). In this case, it is undisputed that Officer Mamone was acting
within his discretionary authority when he conducted the traffic stop. See
Jackson v. City of Atlanta, 97 F.4th 1848, 1856 (11th Cir. 2024). Thus, the
burden is on Plaintiff to overcome the qualified immunity defense, which
requires him to “establish both that the officer's conduct violated a
constitutionally protected right and that the right was clearly established at the
time of the misconduct.” Alcocer, 906 F.3d at 951. The Court “may consider in
any order whether the plaintiff has satisfied [his] burden.” Jd. (citing Pearson
v. Callahan, 555 U.S. 228, 2386 (2009)).
2. Constitutionality of the Traffic Stop
“In any § 1988 case, [a court] must begin [its] analysis by identifying ‘the
precise constitutional violation’ the defendant has allegedly committed.”
Alcocer, 906 F.3d at 952 (quoting Franklin v. Curry, 7388 F.3d 1246, 1250 (11th
Cir. 2013)). Here, the precise right implicated by the facts Plaintiff alleges is
the Fourth Amendment right to be free from unreasonable searches and
16
seizures arising from the traffic stop. “[A] relatively brief encounter,’ a routine
traffic stop is ‘more analogous to a so-called ‘Terry stop’... than to a formal
arrest.” Rodriguez v. United States, 575 U.S. 348, 354 (2015) (quoting Knowles
v. Iowa, 525 U.S. 118, 117 (1998)). “Like a Terry stop, the tolerable duration of
police inquiries in the traffic-stop context is determined by the seizure’s
‘mission’—to address the traffic violation that warranted the stop and attend to
related safety concerns.” Jd. (citing Illinois v. Caballes, 543 U.S. 405, 407
(2005)). “Authority for the seizure thus ends when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Jd. (citing United
States v. Sharpe, 470 U.S. 675, 686 (1985)). There must be “reasonable
suspicion” to support a traffic stop based on “specific reasonable inferences
which [the officer] is entitled to draw from the facts in light of his
experience.” Terry, 392 U.S. at 27. The question “is not whether a specific
arresting officer . . . actually and subjectively had the pertinent reasonable
suspicion, but whether, given the circumstances, reasonable suspicion
objectively existed.” Hicks v. Moore, 422 F.3d 1246, 1252 (11th Cir. 2005).
And in the context of qualified immunity, the Eleventh Circuit has stated
that “the issue is not whether reasonable suspicion existed in fact, but whether
the officer had ‘arguable’ reasonable suspicion.” Jackson v. Sauls, 206 F.3d 1156,
1166 (11th Cir. 2000). Under the “arguable reasonable suspicion” standard, “a
law enforcement officer who conducts an unconstitutional search based upon a
17
reasonable but mistaken conclusion that reasonable suspicion exists is entitled
to qualified immunity.” Brent v. Ashley, 247 F.3d 1294, 1303 (11th Cir. 2001).
“In undertaking the arguable reasonable suspicion inquiry, this Court must
examine the totality of the circumstances to determine whether an officer had a
‘particularized and objective’ basis to support his suspicion.” Whittier v.
Kobayashi, 581 F.3d 1304, 13809 (11th Cir. 2009) (quoting Brent, 247 F.3d at
1304). “Whether the officer’s suspicion ends up being mistaken is immaterial
so long as it was reasonable.” Id.
In Florida, police officers may lawfully stop a vehicle if the officer suspects
that the vehicle’s side or rear windows are tinted more than the amount allowed
for by law. See §§ 316.2958 & 316.2954(1)(a), Fla. Stat. “The officer need not be
right about the level of tinting—so long as his mistake is reasonable, the seizure
is lawful under the Fourth Amendment.” United States v. Longoria, 183 F.
Supp. 3d 1164, 1166 (N.D. Fla. 2016) (citing United States v. Jackson, 558 F.
App’x 932, 9383-35 (11th Cir. 2014)).
In this case, Officer Mamone purportedly stopped Plaintiff because he
suspected that Plaintiffs vehicle’s windows were tinted in excess of the amount
of tinting allowed for by law. (Doc. 28-3 at 27:9-17). The police body camera
video shows that Plaintiffs windows could not easily be seen through. (See, e.g.,
Video 1 at 17:48:02). During the traffic stop, the tint meter indicated that the
front window was tinted at or above the statutory maximum and that the rear
18
window tint violated the law. (Video 2 at 17:52:18-17:52:40). Plaintiff claims
that the window tint was at or just below the statutory maximum, (Doc. 28-1 at
48:18-25; Doc. 28-4 § 7), and record evidence suggests that the human eye
cannot differentiate between windows tinted at the statutory maximum from
windows tinted in excess of the legal amount. (Doc. 28-4 □ 7). Thus, based on
the totality of the circumstances, the Court concludes that Officer Mamone had
at least arguable reasonable suspicion to justify the traffic stop because
Plaintiffs dark windows constituted a particularized and objective basis to
support Officer Mamone’s suspicion that the windows were tinted in excess of
the legally allowed amount. See also United States v. Weaver, 145 F. App’x 639
(11th Cir. 2005); United States v. Collins, No. 2383-10322, 2024 WL 3949946 (11th
Cir. Aug. 27, 2024).
Plaintiff contends that Officer Mamone “fabricated” the tint violation in
order to punish Plaintiff for voicing his displeasure over being found at fault for
the accident. (Doc. 30 at 4). Plaintiff also points out that Officer Melville asked
Officer Mamone whether the stop was a “P.O.P.” But it is well-established that
“the Fourth Amendment's concern with ‘reasonableness’ allows certain actions
to be taken in certain circumstances, whatever the subjective intent.” Whren v.
United States, 517 U.S. 806, 814 (1996) (emphasis in original). Here, the traffic
stop was lawful because arguable reasonable suspicion existed that Plaintiffs
window tint violated the law. Even assuming that Officer Mamone had
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malicious intent, the Court may not consider his subjective motivations. See
also Smith v. Centurion of Florida, LLC, No. 5:18-cv-545-Oc, 2020 WL 7074557,
at *4 (M.D. Fla. Dec. 3, 2020) (finding that “threatening, demeaning, or abusive
comments do not rise to the level of a constitutional violation”).
Plaintiff argues that the Supreme Court’s decision in District of Columbia
v. Wesby helps demonstrate that Officer Mamone violated a clearly established
constitutional right in this case. 583 U.S. 48 (2018). In Wesby, the Supreme
Court found that qualified immunity was available to police officers who
arrested partygoers during a “bachelor party” being held at a vacant house
without the consent of the property owner. Jd. at 65. Plaintiff does not explain
how Wesby should inform the Court’s analysis of this case. Thus, this argument
is rejected. See United States v. Markovich, 95 F.4th 1367, 13879 (11th Cir. 2024)
(rejecting a “conclusory argument “because the party advancing it “d[id] not
explain [its] legal basis”).
Plaintiff also notes that his expert witness, Michael Pearl, opined that
racial bias in policing may violate the Equal Protection Clause of the Fourteenth
Amendment as well as the Fourth Amendment, (Doc. 30-2 at 8), and that Deputy
Veléz noted that Officer Mamone treated Gentry, who is White, more favorably
than Plaintiff, who is Black. (Doc. 30-1 at 9). But Plaintiff did not plead that
he was racially discriminated against during the accident investigation. Thus,
the Court will not consider this argument. See Gilmour v. Gates, McDonald &
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Co., 382 F.8d 1312, 1815 (11th Cir. 2004) (“A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment.”).
B. Claims Against the City
“Congress did not intend municipalities to be held liable unless action
pursuant to official municipal policy of some nature caused a constitutional
tort.” Monell v. Dep’t of Soc. Serus., 436 U.S. 658, 691 (1978). Municipal liability
under Monell is “derivative of—and thus requires—an underlying constitutional
violation.” Aracena v. Gruler, 347 F. Supp. 3d 1107, 1120 (M.D. Fla. 2018)
(quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Because the
Court concludes that no constitutional violation occurred, the Court must grant
summary judgment in favor of the City on Plaintiffs Monell claim. See also
Knight ex rel. Kerr v. Miami—Dade Cnty., 856 F.3d 795, 821 (11th Cir. 2017)).
IV. CONCLUSION
For the reasons given above, it is ORDERED that Defendants’ motions
for summary judgment (Docs. 28 & 29) are GRANTED. The Clerk is directed
to enter a judgment providing that Plaintiff takes nothing from Defendants on
any of his claims in this case. The Clerk shall then close this case.
DONE and ORDERED in Orlando, Florida;-on Pebruary‘[-7, 2035,
~~ agian
United States District Judge
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Copies furnished to:
Counsel of Record
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