# Berry

> District Court, M.D. Florida · December 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11213972

## Case

- **Full name:** Shawn Michael Berry v. Taylor Smith and City of Punta Gorda
- **Court:** District Court, M.D. Florida
- **Decided:** December 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11213972

## How later opinions describe it (automated extraction)

- holding that the words “Fuck the Draft” written across a witness’s jacket in a courtroom corridor, while distasteful, did not fall into a category of speech not protected by the First Amendment.
- finding circumstances of case did not give the officer “fair warning” that the statute was unconstitutional

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

SHAWN MICHAEL BERRY,

Plaintiff,

v. Case No: 2:25-cv-299-JES-NPM

TAYLOR SMITH and CITY OF
PUNTA GORDA,

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of Taylor Smith
(“Officer Smith”) and the City of Punta Gorda’s (the “City”)
(collectively “Defendants”) Motion to Dismiss the Second Amended
Complaint (Doc. #25) filed on August 15, 2025. Plaintiff Shawn
Michael Berry (Plaintiff or “Berry”) filed an Answer in Opposition
To Defendants’ Motion (Doc. #27) on August 27, 2025. For the
reasons set forth below, Defendants’ motion is mostly denied.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
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).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). As the Eleventh Circuit has recently
summarized:

When reviewing a motion to dismiss, we accept the
plaintiff's allegations as true and construe them in the
light most favorable to the plaintiff. To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to
relief that is plausible on its face. A claim is facially
plausible if the plaintiff pleads factual content that
allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. This
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. When
making the determination of whether a complaint states
a plausible claim, we draw on our judicial experience
and common sense.
. . .
We use a two-step process to determine whether a
claim survives Rule 12(b)(6) scrutiny. At the outset, we
determine what must be pled for each cause of action. .
. . Then, we consider the well-pleaded factual
allegations . . . to determine whether they plausibly
suggest an entitlement to relief.

Caterpillar Fin. Services Corp. v. Venequip Mach. Sales Corp., 147
F.4th 1341, 1346–47 (11th Cir. 2025) (citations and internal
punctuation omitted).
A pleading drafted by a party not represented by counsel (a
pro se party) is held to a less stringent standard than one drafted
by an attorney, and the Court will construe such pleadings
liberally. Jones v. Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th
Cir. 2015). But “this leniency does not give a court license to
serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014). “[A] pro

se pleading must suggest (even if inartfully) that there is at
least some factual support for a claim; it is not enough just to
invoke a legal theory devoid of any factual basis.” Jones, 787
F.3d at 1107.
II.
The following facts are set forth in the Second Amended
Complaint (SAC) (Doc. #23) or in documents the Court may consider
in deciding a motion to dismiss:
On May 3, 2022, Berry participated in a protest against City
Ordinance Chapter 26, Section 11.5(z) (the “Ordinance”) while on
a public sidewalk in the City. The Ordinance had been adopted by
the City on June 2, 2021, and prohibited the public display of any

sign containing obscene language or graphics. More specifically,
the Ordinance provided:
Unless as otherwise provided for in this Article,
no person shall erect, display, wear, alter, maintain,
or relocate any of the following signs in the City and
such existing signs must be removed:
. . .
(z) Any sign which contains obscene language or
graphics; and any sign containing fighting words or
indecent speech which is legible from any public right-
of-way or within any public space, and which can
potentially be viewed by children under the age of 17.
This provision includes signs or flags in or on any
vehicle, vessel or on any apparel and accoutrements.

Punta Gorda, Fla., Code of Ordinances, ch. 26, § 11.5(z).
“Indecent speech” is defined as “language or graphics that depict
or describe sexual or excretory activities or organs in a manner
that is offensive as measured by contemporary community
standards.” Punta Gorda, Fla., Code of Ordinances, ch. 26, §
11.4(a)(32).
During the protest Berry displayed a sign that stated: “PUNTA
GORDA FUCKING FIRST AMENDENT.” (Doc. #23, p. 6). Non-party
officers approached Berry and “yelled profanities.” Another non-
party officer accused Berry of “being un-American,” and threatened
to arrest him and the other protestors. (Id.). Another non-party
officer demanded Berry’s identification, and Officer Smith then
began to issue Berry a citation for violation of the Ordinance.
(Id.). Berry did not feel free to leave while Officer Smith wrote
the citation, but was not arrested. Berry had been videotaping
the entire protest, which the SAC asserts constitutes
“journalism.” The citation effectively halted Berry’s activities
at the protest, and Berry then left the area.
The City proceeded with the civil proceedings against Berry

initiated by the citation, which compelled Berry to appear at four
hearings before the Code Enforcement Board between June and October
2022. (Id.). Meanwhile, on September 26, 2022, in unrelated
litigation, a state Circuit Court in Charlotte County found the
Ordinance was unconstitutional. See Massey v. City of Punta Gorda,

Case No. 21001014CA. The City voluntarily dismissed the case
against Berry on October 12, 2022.
The SAC asserts claims pursuant to 42 U.S.C. § 1983 against
Officer Smith and the City for: (1) violation of Berry’s First
Amendment right to free speech when Defendants “retaliated against
him for the content of his political protest sign and journalism”
by issuing the citation, and (2) violation of Berry’s Fourth
Amendment right to be free from unreasonable seizures when he was
“temporarily detained and compelled to submit to the issuance of
a citation and multiple mandatory code enforcement hearings[.]”
(Id. at pp. 3-4). Read liberally, the SAC thus alleges four claims
against each defendant: (1) First Amendment retaliation for

issuing a citation because of the language on the sign; (2) First
Amendment retaliation for issuing the citation because of filming
at activities of the police and protesters; (3) Fourth Amendment
violation for stopping and detaining Berry while the citation was
issued; and (4) Fourth Amendment violation for maliciously
prosecuting and compelling his appearing before the Code
Enforcement Board. Berry sues Officer Smith in her individual
capacity and the City pursuant to the liability principles of
Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658
(1978). Berry seeks compensatory, punitive, and nominal damages
as well as costs.

III.
Defendants raise three grounds for dismissal: (1) “Plaintiff
fails to allege a seizure necessary to properly state a claim for
unlawful seizure or malicious prosecution.”; (2) “Officer Smith is
entitled to qualified immunity because at the time of Plaintiff’s
alleged citation, a valid and enforceable City ordinance
existed.”; and (3) “Plaintiff fails to properly plead a Monell
claim.” (Doc. #25, p. 3.) The Court begins with the qualified
immunity argument, as did Defendants. (Id. at 4-14.)
A. Officer Smith’s Assertion of Qualified Immunity
The SAC alleges that Officer Smith issued the citation for
violation of the Ordinance in retaliation for Berry exercising his

First Amendment rights to display a sign which stated “PUNTA GORDA
FUCKING FIRST AMENDMENT” and to videotape the protest activities.
The SAC also alleges that Officer Smith violated Berry’s Fourth
Amendment rights by detaining him while she issued the citation
and causing him to attend multiple mandatory court appearances in
response to the citation. Officer Smith asserts that litigation
and personal liability for these claims are barred by qualified
immunity. Berry responds that qualified immunity does not apply.
(1) Qualified Immunity Principles
Qualified immunity shields government officials performing
discretionary functions from civil litigation and liability in

their personal capacity unless their conduct violated clearly
established statutory or constitutional rights that a reasonable
person would have known about. Aguirre v. Seminole Cnty., No. 23-
10811, 2025 WL 3078186, at *12 (11th Cir. Nov. 4, 2025); Huggins
v. Sch. Dist. of Manatee Cnty., 151 F.4th 1268, 1278 (11th Cir.
2025). A district court must resolve a request for qualified
immunity “at the earliest possible stage in litigation.” Miller
v. Palm Beach Cnty. Sheriff's Office, 129 F.4th 1329, 1334 (11th
Cir. 2025). “The qualified immunity defense may be raised and
addressed on a motion to dismiss, and will be granted if the
complaint ‘fails to allege the violation of a clearly established
constitutional right.’” Smith ex rel. Smith v. Siegelman, 322

F.3d 1290, 1294 (11th Cir. 2003) (citations omitted.) Whether the
SAC alleges a violation of a clearly established right is a
question of law. Id.; Williams v. Alabama State Univ., 102 F.3d
1179, 1182 (11th Cir. 1997).
The Court employs a burden-shifting analysis to determine
whether official conduct is protected by qualified immunity.
Huggins, 151 F.4th at 1278. First, the official must prove that
she was acting within the scope of her discretionary authority
when the alleged wrongful act occurred. Huggins, 151 F.4th at 1278;
DeMarcus v. Univ. of S. Ala., 133 F.4th 1305, 1317 (11th Cir.
2025). This requires the official to show that her actions were

undertaken pursuant to the performance of her duties and within
the scope of her authority. Huggins, 151 F.4th at 1278. A district
court looks to the general nature of defendant's action,
temporarily disregarding the alleged illegality of that act. Id.
Second, if the official makes the required showing, the burden
shifts to plaintiff to show that the conduct violated his statutory
or constitutional right and that the right was clearly established
at the time of the challenged conduct. Huggins, 151 F.4th at 1278;
Watkins v. Davis, 156 F.4th 1084, 1097 (11th Cir. 2025). “[A]
police officer is entitled to qualified immunity if a reasonable
police officer could have believed his or her actions were lawful
in light of clearly established law and the information possessed

by the officer at the time the conduct occurred.” Watkins, 156
F.4th at 1097 (citation omitted.) Plaintiff can show the law was
“clearly established” in any of three ways: (1) identifying a
qualifying case with “indistinguishable facts,” (2) relying on “a
broad statement of principle within the Constitution, statute, or
case law,” or (3) showing that the Officers’ behavior was “so
egregious” that it was obvious “a constitutional right was clearly
violated, even in the total absence of case law.” Id. See also
Andre v. Clayton Cnty., Georgia, 148 F.4th 1282, 1298 (11th Cir.
2025).
(2) Application of Qualified Immunity Principles
(a) Action Within Scope of Discretionary Authority

Officer Smith was clearly acting within her discretionary
authority as a law enforcement officer during the entire encounter
with Berry. As the SAC alleges, Officer Smith was acting “under
color of state and local law as a uniformed police officer for the
City of Punta Gorda” when she issued the citation. (Doc. #23, p.
4.) Issuing the citation was pursuant to the performance of
Officer Smith’s duties and was within the scope of her authority
as a City police officer. Thus, the burden shifts to Berry to
show that qualified immunity is not appropriate for his claims.
The Court analyzes each claim separately to determine whether
Berry has carried his burden to show qualified immunity is not

appropriate. Watkins, 156 F.4th at 1098. The Court begins with
the two First Amendment claims, then addresses the two Fourth
Amendment claims.
(b) First Amendment Claims
“[A]s a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory
actions” for engaging in protected speech. Hartman v. Moore, 547
U.S. 250, 256 (2006). If the official’s adverse action is motivated
by such retaliation, and “non-retaliatory grounds are in fact
insufficient to provoke the adverse consequences,” the person may
generally seek relief by bringing a First Amendment claim. Nieves

v. Bartlett, 587 U.S. 391, 398 (2019). To state a First Amendment
retaliation claim, Berry must plausibly allege that (1) he engaged
in constitutionally protected speech; (2) the defendant's
retaliatory conduct adversely affected that protected speech; and
(3) a causal connection exists between the defendant's retaliatory
conduct and the adverse effect on the plaintiff's speech. Huggins,
151 F.4th at 1281, (citing DeMartini v. Town of Gulf Stream, 942
F.3d 1277, 1289 (11th Cir. 2019)). To defeat a qualified immunity
motion, Berry must establish not only that he was engaged in
constitutionally protected speech, but that the law providing such
constitutional protection was clearly established at the time of
his conduct. Huggins, 151 F.4th at 1278.

Officer Smith argues that she “is entitled to qualified
immunity because at the time of Plaintiff’s alleged citation, a
valid and enforceable City ordinance existed.” (Doc. #25, p. 3.)
Officer Smith essentially asserts that the law was not clearly
established at the time she issued the citation because the
Ordinance prohibited Berry’s conduct and the Ordinance was not
found unconstitutional until after she issued the citation.
(i) Berry’s Sign
It is undisputed that the Ordinance had not been declared
unconstitutional at the time the citation was issued. The
legitimacy of the officer’s conduct, however, does not turn on the

constitutionality of the Ordinance or Officer Smith’s ability to
predict whether it would be declared unconstitutional. “The
subsequently determined invalidity of the [city] ordinance . . .
does not undermine the validity of the arrest made for violation
of that ordinance . . .”. Michigan v. De Fillippo, 443 U.S. 31,
40 (1979). “Police are charged to enforce laws until . . . they
are declared unconstitutional. The enactment of a law forecloses
speculation by enforcement officers concerning its
constitutionality — with the possible exception of a law so grossly
and flagrantly unconstitutional that any person of reasonable
1
prudence would be bound to see its flaws.” (Id. at 38.) So long
as the officer has probable cause, an arrest is constitutional.
Nieves, 587 U.S. at 398.

1
The Supreme Court discussed the exception mentioned in De
Fillippo the next term in Ybarra v. Illinois, 444 U.S. 85, 96 n.11
(1979). Police officers had acted on the strength of a state
statute that did not define the elements of a substantive criminal
offense but purported to authorize the police in some circumstances
to make searches and seizures without probable cause and without
search warrants. The Supreme Court noted that this fell within the
category of statutes purporting to authorize searches without
probable cause, “which the Court has not hesitated to hold invalid
as authority for unconstitutional searches. (collecting cases).”
Id.
While De Fillippo involved a Fourth Amendment claim, the same
principles apply to First Amendment retaliation claims. Nieves,
587 U.S. at 397–98 (probable cause to arrest defeats a claim that

the arrest was in retaliation for speech protected by the First
Amendment); DeMartini, 942 F.3d at 1306 (“[T]he presence of
probable cause will generally defeat a . . . § 1983 First Amendment
retaliation claim . . ..”); Cooper v. Dillon, 403 F.3d 1208, 1220–
21 (11th Cir. 2005) (finding circumstances of case did not give
the officer “fair warning” that the statute was unconstitutional).
Officer Smith argues that she had probable cause to issue the
citation, or at least arguable probable cause, and therefore she
is entitled to qualified immunity. (Doc. #25, pp. 7, 9-11.) The
Court concludes, however, Officer Smith did not have any level of
suspicion, and therefore is not entitled to qualified immunity.
As Berry points out (Doc. #27, pp. 7-8), long before Officer

Smith issued the citation the United States Supreme Court had held
that conveying a message which included the written word “fuck”
was protected by the First Amendment. Cohen v. California, 403
U.S. 15, 20 (1971) (holding that the words “Fuck the Draft” written
across a witness’s jacket in a courtroom corridor, while
distasteful, did not fall into a category of speech not protected
by the First Amendment.) Shortly before the issuance of the
citation, the Supreme Court reiterated this principle. Mahanoy
Area Sch. Dist. v. B. L. by & through Levy, 594 U.S. 180, 185
(2021) involved a high school student who posted an image of
herself and a friend with middle fingers raised and the caption

“Fuck school fuck softball fuck cheer fuck everything.” The
Supreme Court stated:
This criticism did not involve features that would
place it outside the First Amendment's ordinary
protection. B. L.’s posts, while crude, did not amount
to fighting words. See Chaplinsky v. New Hampshire, 315
U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). And while
B. L. used vulgarity, her speech was not obscene as this
Court has understood that term. See Cohen v. California,
403 U.S. 15, 19–20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).
To the contrary, B. L. uttered the kind of pure speech
to which, were she an adult, the First Amendment would
provide strong protection. See id., at 24, 91 S.Ct. 1780;
cf. Snyder v. Phelps, 562 U.S. 443, 461, 131 S.Ct. 1207,
179 L.Ed.2d 172 (2011) (First Amendment protects “even
hurtful speech on public issues to ensure that we do not
stifle public debate”); Rankin v. McPherson, 483 U.S.
378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (“The
inappropriate . . . character of a statement is
irrelevant to the question whether it deals with a matter
of public concern”).

Id. at 191.
Thus, at the time Officer Smith issued the citation, the law
was clearly established that Berry’s written sign was not obscene
and was protected by the First Amendment. No factual allegation
in the SAC takes Berry’s circumstances outside the broad scope of
this law, and the SAC specifically pleads a lack of probable cause
by Officer Smith. (Doc. #23, p. 4.) There was a Supreme Court
case with indistinguishable material facts (Cohen) and broad
statements of principle within Supreme Court cases (Mahoney Area)
which clearly precluded a reasonable officer from believing she
could validly issue a citation for violation of the Ordinance based

on the contents of the sign. Since the SAC describes nothing
outside the protection of the First Amendment in connection with
Berry’s sign, Officer Smith did not have any level of suspicion,
including arguable probable cause. Accordingly, Officer Smith is
not entitled to qualified immunity for issuing a citation based on
the contents of Berry’s placard.
(ii) Videotaping Police and Protest
A portion of the First Amendment retaliation claim in the SAC
includes the assertion that Berry was videotaping the protest
activities, which the SAC asserts constitutes “journalism”
protected by the First Amendment. The SAC alleges in a conclusory
fashion that the citation was issued in retaliation for the

videotaping activity. Officer Smith argues that at the time the
citation was issued there was not a clearly established First
Amendment right to videotape the police activities at the protest,
and therefore she is entitled to qualified immunity as to the video
portion of the claim. (Doc. #25, p. 6, n.2.) The Court agrees
with Officer Smith.
The law in the Eleventh Circuit was not sufficiently clear at
the time of the protest to defeat qualified immunity. In 2000 the
Eleventh Circuit found that videotaping a police officer and the
surrounding area is protected by the First Amendment. See Smith v.
City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“As to the

First Amendment claim under Section 1983, we agree with the Smiths
that they had a First Amendment right, subject to reasonable time,
manner and place restrictions, to photograph or videotape police
conduct. The First Amendment protects the right to gather
information about what public officials do on public property, and
specifically, a right to record matters of public interest.”
(collecting cases.) In 2021, however, the Eleventh Circuit walked
back this broad language, finding that Smith did not provide the
required clarity and upholding an officer’s entitlement to
qualified immunity on a First Amendment retaliation claim. Crocker
v. Beatty, 995 F.3d 1232, 1243 (11th Cir. 2021). In Khoury v.
Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1129 (11th Cir. 2021) the

Court found that the First Amendment right to videotape the
activity of a police officer was clearly established under the
circumstances of that case, citing Smith and distinguishing
Crocker. As stated in Ghandour v. City of Miami, 710 F. Supp. 3d
1188, 1198 (S.D. Fla. 2024) “[i]n assessing whether Smith applies
to a particular case, courts often grapple with factual and legal
nuances relevant to a given case, reaching differing conclusions.”
The Court finds that the law was not sufficiently clear to
place officers on notice that it would violate the First Amendment
to issue a citation because the person was videotaping police

activities at this protest. “’For a constitutional right to be
clearly established, its contours must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right’ such that ‘in the light of pre-existing law
the unlawfulness [is] apparent.’” Aguirre, 2025 WL 3078186, at
*14 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). As the
Supreme Court stated in Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011),
[a] Government official's conduct violates clearly
established law when, at the time of the challenged
conduct, “[t]he contours of [a] right [are] sufficiently
clear” that every “reasonable official would [have
understood] that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
97 L.Ed.2d 523 (1987). We do not require a case directly
on point, but existing precedent must have placed the
statutory or constitutional question beyond debate. See
ibid.; Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct.
1092, 89 L.Ed.2d 271 (1986).

Under the factual allegations in the SAC, it appears that Berry
did indeed have a First Amendment right to videotape the activities
at the protest, including police conduct. However, Berry has not
satisfied the “beyond debate” standard, and therefore Officer
Smith is entitled to qualified immunity as to the videotaping
2
aspect of the First Amendment retaliation claim.
(c) Fourth Amendment Claims
The SAC asserts that Officer Smith violated the Fourth
Amendment in two ways: by detaining Berry while she issued the
citation, and by causing Berry to attend multiple mandatory court
appearances in response to the citation. The Court discusses each
separately.
(i) Seizure During Issuance of Citation
The Fourth Amendment “protects people from unreasonable . .
. seizures.” U.S. Const. Amend. IV. “Not all interactions between
law enforcement and citizens, however, implicate the scrutiny of
the Fourth Amendment.” United States v. Jordan, 635 F.3d 1181,
1185 (11th Cir. 2011). Courts have identified three distinct types

of police-citizen encounters: (1) consensual encounters; (2) brief
seizures or investigatory stops; and (3) arrests. Jordan, 635
F.3d at 1185; United States v. Perez, 443 F.3d 772, 777 (11th Cir.

2
Even if Officer Smith is not entitled to qualified immunity for
the videotaping portion of the claim, the SAC fails to plead
plausible facts to establish that the issuance of the citation was
in retaliation for that videotaping. The SAC simply states in a
conclusory fashion that Berry was videotaping, and that the
citation was issued because of it. The plausible facts indicate
that it was the content of the sign that caused issuance of the
citation, and no facts are alleged to establish that the
videotaping played a role in Officer Smith’s decision.
2006); Popple v. State, 626 So.2d 185, 186–87 (Fla. 1993). Only
the last two types of encounters implicate the Fourth Amendment,
and only the first two types of encounters are at issue in this

case.
“There is nothing in the Constitution which prevents a
policeman from addressing questions to anyone on the streets.”
United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003)
(quotations omitted). Such a consensual encounter does not
implicate the Fourth Amendment because the person is free to leave
at any time. United States v. Mendenhall, 446 U.S. 544, 553
(1980). To establish the encounter was consensual, the officer
bears the burden of proving voluntary consent to the encounter
based on the totality of circumstances. Jordan, 635 F.3d at 1185.
If an objective, reasonable, innocent person would feel free to
terminate the encounter, the person has not been seized. United

States v. Knights, 989 F.3d 1281, 1286 (11th Cir. 2021).
In contrast, Fourth Amendment protections do “extend to brief
investigatory stops of persons or vehicles that fall short of
traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273
(2002). See also Whren v. United States, 517 U.S. 806, 809−10
(1996); United States v. Drayton, 536 U.S. 194 (2002); Jordan, 635
F.3d at 1185. A person is “seized” within the meaning of the
Fourth Amendment when an officer, by means of physical force or a
show of authority, terminates or restrains the person’s freedom of
movement through intentional means. Brendlin v. California, 551
U.S. 249, 254 (2007). This includes a show of authority without

the use of physical force. Id. If the actions of the police are
ambiguous, a seizure occurs if “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave.” Brendlin, 551 U.S. at 255. Thus,
a person has been “seized” within the meaning of the Fourth
Amendment if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not
free to leave. California v. Hodari D., 499 U.S. 621, 627–28
(1991); Andre, 148 F.4th at 1292. To justify an investigatory
stop, an officer must have reasonable well-founded suspicion to
believe that a person has committed, is committing, or is about to
commit a crime. Ornelas v. United States, 517 U.S. 690, 696

(1996).
Defendants begin by arguing that Berry “was not seized.”
(Doc. #25, p. 7.) Defendants correctly assert that an officer
does not seize a person by approaching the person and identifying
herself, or by simply asking questions. (Doc. #25, p. 8 n.4.)
Defendants then incorrectly argue that the allegations in the SAC
only establish that there was a consensual police-citizen exchange
involving no coercion or detention, and that issuance of a citation
is insufficient to constitute a seizure without some other conduct
by Officer Smith. (Id. at 7-8.)
If Officer Smith’s conduct did not violate the Fourth

Amendment she would certainly be entitled to qualified immunity.
Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). Although
Officer Smith argues to the contrary, the plausible factual
allegations and reasonable inferences in the SAC show that Officer
Smith “seized” Berry within the meaning of the Fourth Amendment
when she detained Berry to issue the citation. Officer Smith and
fellow officers approached Berry; one or more of the officers
demanded his identification and made aggressive comments to him
while Officer Smith wrote the citation. It is a reasonable
inference that Officer Smith utilized and retained Berry’s
identification while she completed the citation. No reasonable
person would have felt free to leave until after the citation

process was complete. Accordingly, the SAC does not describe a
consensual encounter but one where Officer Smith “seized” Berry
within the meaning of the Fourth Amendment.
Officer Smith argues that even if a brief, temporary seizure
occurred when she issued the citation, she is still entitled to
qualified immunity. (Doc. #25, pp. 8-9.) Officer Smith correctly
asserts that officers are permitted to approach someone for
purposes of investigating possible criminal behavior without
probable cause if there is reasonable suspicion of criminal
activity, citing Terry v. Ohio, 392 U.S. 1 (1968). (Id.) Officer
Smith argues that the “brief ‘stop’ of the Plaintiff to issue him

a ticket is akin to a Terry stop and thus does not sufficiently
implicate the Fourth Amendment.” (Id. at 9, citing Bennett v.
3
Hendrix, 423 F.3d 1247 (11th Cir. 2005)). Officer Smith also
argues she is entitled to qualified immunity because she had
arguable probable cause to temporarily detain Berry to issue him
the citation for violating the Ordinance. (Doc. #25, pp. 9-11.)
The Court agrees with Officer Smith that her issuance of the
citation is akin to a Terry stop. Contrary to her argument,
however, the Fourth Amendment does apply to such a stop and
detention, and requires a reasonable well-founded suspicion that
Berry has committed, is committing, or is about to commit a crime.
Ornelas, 517 U.S. at 696. As the Court has already determined,
Officer Smith did not have any level of suspicion that Berry’s
conduct was not protected by the First Amendment. Officer Smith
is therefore not entitled to qualified immunity for this aspect of
the Fourth Amendment seizure claim.
(ii) Malicious Prosecution

3
The Court notes that Bennett has been red-flagged as partially
abrogated.
The SAC also asserts that the City prosecuted the code
enforcement case initiated by the citation, which compelled Berry
to attend four mandatory hearings under threat of penalty. (Doc.

#23, pp. 4, 6.) Read liberally, this asserts a claim for malicious
prosecution under the Fourth Amendment.
Fourth Amendment malicious prosecution claims focus on
seizures pursuant to legal process. Aguirre, 2025 WL 3078186, at
*16 (citing Williams v. Aguirre, 965 F.3d 1147, 1157–58 (11th Cir.
2020)) (explaining malicious prosecution is a “shorthand way of
describing” certain Fourth Amendment claims involving seizure
pursuant to legal process). “To succeed on a malicious-prosecution
claim, then, a plaintiff must show that the legal process
justifying the seizure was defective due to constitutional
infirmities.” Aguirre, 2025 WL 3078186, at *16 (citation omitted).
To state a Fourth Amendment malicious-prosecution claim, a

plaintiff must plausibly allege four elements: (1) plaintiff was
seized under legal process; (2) the legal process justifying the
plaintiff's seizure was constitutionally infirm; (3) the suit or
proceeding terminated in the plaintiff's favor; and (4) the seizure
would not otherwise be justified without legal process. Gervin v.
Florence, 139 F.4th 1236, 1248–49 (11th Cir. 2025). When
considering qualified immunity for malicious prosecution claims,
the court also reviews for arguable probable cause and whether the
law was clearly established. Prospero v. Sullivan, 153 F.4th 1171,
1183–84 (11th Cir. 2025).
Officer Smith did not detain Berry pursuant to legal process

when she stopped him to issue the citation. It is factually
undisputed that Officer Smith had no warrant or similar legal
process to restrain Berry’s movements. As has been stated before
by this court, the seizure while Officer Smith wrote a ticket
cannot serve as the required seizure pursuant to legal process.
Hoffman v. Smith, No. 2:24-CV-111-SPC-KCD, 2024 WL 511161, at *1
(M.D. Fla. Dec. 13, 2024) (Chappell, J.). Accordingly, Berry’s
malicious prosecution claim cannot include the stop and detention
while Officer Smith wrote the citation.
The citation, however, was a legal process which resulted in
Berry being required to attend multiple subsequent code
enforcement hearings. See generally Fla. Stat. § 162.21(3)-(5),

(8). As discussed previously, the SAC has alleged enough facts to
plausibly show that the legal process (the citation) was
constitutionally infirm. The issue is whether Berry suffered a
seizure due to the citation. Berry essentially argues that he was
subjected to a “continuing seizure” because he was compelled to
appear on four occasions for Code Enforcement Board hearings in
response to the citation.
The Eleventh Circuit expressed doubts about the viability of
the continuing seizure theory, even in the context of a criminal
prosecution. Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th

Cir. 2004) (“normal conditions of pretrial release” do not
“constitute a continuing seizure barring some significant, ongoing
deprivation of liberty, such as a restriction on the defendant's
right to travel interstate”), abrogated on other grounds by
Aguirre, 965 F.3d at 1159. More recently, the Eleventh Circuit
held that “[t]o succeed on a Fourth Amendment claim for a seizure
pursuant to legal process in this context, a plaintiff must prove
that the officer took an affirmative act to continue the
prosecution.” Washington v. Howard, 25 F.4th 891, 912 (11th Cir.
2022). Such affirmative acts include filing the probation-
revocation petition and offering later testimony at the probation-
revocation hearing. Gervin, 139 F.4th at 1248. See also Lyon v.

Sheriff of Lake Cnty., Florida, No. 22-11839, 2023 WL 166889, at
*2 (11th Cir. Jan. 12, 2023) (“Under our precedents, Lyon was not
seized merely because he was required to appear in court.”)
Here, Officer Smith is entitled to qualified immunity as to
the Fourth Amendment malicious prosecution claim because there is
no allegation that she took affirmative acts to continue the City’s
prosecution of Berry. Additionally, the law was not clearly
established that the continuing seizure theory applies to civil
cases such as the code enforcement proceedings.
In sum, Officer Smith is not entitled to qualified immunity

on the claim of First Amendment retaliation based on the content
of plaintiff’s sign, but is entitled to qualified immunity on the
claim of First Amendment retaliation based on photographing
officers at the protest. Additionally, Officer Smith is not
entitled to qualified immunity on the claim of Fourth Amendment
violation based on the detention to issue the citation, but is
entitled to qualified immunity on the claim of Fourth Amendment
violation based on being required to appear at multiple hearings.
B. Pleading Deficiencies
Defendants next argue that the SAC “fails to state a claim
under any theory of relief, and dismissal is warranted.” (Doc.
#25, p. 3.) The Court discusses the First Amendment and the Fourth

Amendment arguments separately.
(1) First Amendment Retaliation Claims
As previously stated, in addition to alleging plaintiff was
engaged in constitutionally protected speech, the SAC must
plausibly allege that: (1) defendants’ retaliatory conduct
adversely affected Berry’s protected speech, and (2) there was a
causal connection between the retaliatory conduct and the adverse
effect on the speech. DeMartini, 942 F.3d at 1289. Defendants
challenge the sufficiency of the allegations of both these
elements.
Defendants argue that issuing and prosecuting the citation

caused only de minimis inconvenience on the exercise of Berry’s
First Amendment rights, which is insufficient to state a claim.
(Doc. #25, pp. 6-7.) When determining the adverse effect on a
plaintiff’s protected speech, courts “consider whether the
allegedly retaliatory conduct would likely deter a person of
ordinary firmness from the exercise of First Amendment rights.
This presents an objective question.” Huggins, 151 F.4th at 1281.
The SAC plausibly alleges sufficient facts to show that, viewed
objectively, the conduct of Defendants would likely deter a person
of ordinary firmness from the exercise of First Amendment rights.
Berry was approached by multiple officers, at least some of
whom were in uniform. At least one officer threatened to arrest

him and others, and it is clear from the circumstances that Berry
was not allowed to leave until the citation was written. The SAC
alleges that Berry’s “protest was effectively halted” by the
citation. (Doc. #23, p. 6.) The citation was an official charging
document which required Berry to appear at multiple mandatory Code
Enforcement Board hearings which could have resulted in civil
penalties. Viewed objectively and in the light most favorable to
Berry, as required at this stage of the proceedings, the Court
finds that the conduct was not de minimis and that a person of
ordinary firmness would likely be deterred from the exercise of
his or her First Amendment rights by Defendants’ conduct.

Defendants also challenge the sufficiency of the causation
element, arguing that Officer Smith’s subjective motivation was
the Ordinance, not the language on Berry’s sign. (Doc. #25, pp. 6-
7.) “In order to establish a causal connection, the plaintiff
must show that the defendant was subjectively motivated to take
the adverse action because of the protected speech. However, once
the plaintiff shows that her protected conduct was a motivating
factor, the burden shifts to the defendant to show that she would
have taken the same action in the absence of the protected conduct,
in which case the defendant cannot be held liable.” Castle v.
Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir.
2011)(citations omitted.)

The SAC has plausibly asserted that the adverse action (the
citation) would not have occurred absent the words on Berry’s sign.
Officer Smith’s motivation to issue the citation was the words,
which she wrongly believed were not protected by the First
Amendment. The SAC sufficiently pleads this element of the claim.
Defendants also argue that the SAC fails to state either a
First Amendment or a Fourth Amendment claim because Officer Smith
had probable cause (or at least arguable probable cause) to issue
the citation. (Doc. #25, pp. 6-7.) As discussed earlier, it is
certainly true that the existence of probable cause, or arguable
probable cause in the context of qualified immunity, would preclude

both First and Fourth Amendment claims. But as the Court has
already found, Officer Smith lacked either arguable or actual
probable cause.
Even without any level of probable cause, Officer Smith can
prevail by showing that the seizure would have been made for some
lawful reason other than retaliation. Nieves, 587 U.S. at 404.
Viewing the facts in the SAC in favor of Berry, no such showing
has been made.
(2) Fourth Amendment Claims
Defendants argue that (a) the SAC does not contain a
sufficient nexus between the actions of Officer Smith and the
alleged violation of Berry’s Fourth Amendment rights; (b) the SAC

must plead more about Berry’s subjective feelings than that he
“did not feel free to leave”; and (c) receiving a citation from
Officer Smith “does not rise to the level sufficient to assert a
claim for unlawful seizure,” and there must be “some objective
action by Smith, other than the citation, that shows there was a
seizure.” (Doc. #25, p. 8.)
As discussed earlier, multiple officers approached Berry,
yelled profanities, and made threats of arrest. (Doc. #23, p. 2).
Before Officer Smith issued the citation, at least one officer
approached and demanded that Berry produce identification. (Id.).
Berry was detained while a citation was issued. The Court finds

that Berry has pled sufficient facts to show that a reasonable
person in Berry’s circumstances would not have felt free to leave
and was seized. The Court has already determined that Officer
Smith did not have sufficient reason to issue a citation to Berry
for violating the Ordinance. No additional action by Officer Smith
was required to constitute a seizure. Accordingly, Berry has
plausibly asserted a claim for unlawful seizure under the Fourth
Amendment.
Defendants also argue that the SAC “fails to plead a claim
for malicious prosecution” “because Plaintiff was never seized
pursuant to legal process” and the SAC “does not allege that
[Berry] was charged with any crime, received legal process with

respect to any charge, or that he was seized after any legal
process.” (Id. at 11-12.) “Given the lack of allegation of any
criminal charge or legal process, Plaintiff has not alleged that
[defendants] were somehow responsible for that legal process going
wrong.” (Id. at 12.)
Contrary to Defendants’ assertion, a malicious prosecution
claim does not require a plaintiff to have been criminally
prosecuted. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d
1352, 1355 (Fla. 1994) (“In order to prevail in a malicious
prosecution action, a plaintiff must establish that: (1) an
original criminal or civil judicial proceeding against the present

plaintiff was commenced or continued; . . . ”); Scott v. City of
Miami, 139 F.4th 1267, 1279 (11th Cir. 2025).
However, as discussed above, the SAC fails to sufficiently
plead that Berry was seized as a result of the citation merely
because he was required to appear in court since there is no
allegation that Officer Smith took any affirmative action to
continue the code enforcement proceedings. Accordingly, the Court
agrees with Defendants that Berry has failed to state a claim for
malicious prosecution.
In sum, the SAC plausibly sets forth claims of First Amendment
retaliation and Fourth Amendment seizure in connection with
issuance of the citation, but does not set forth a plausible claim

of malicious prosecution based on mandatory appearances in code
enforcement proceedings.
C. Monell Claim Against the City
The SAC asserts that the City is liable for the First and
Fourth Amendment violations under the principles established by
Monell. Generally, a local government may not be sued for
constitutional injuries inflicted by its employees. Monell, 436
U.S. at 694. Instead, the government as an entity is responsible
“when execution of a government's policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury.” Id. “To

prove a Monell claim, a plaintiff must show: (1) that his
constitutional rights were violated; (2) that the municipality had
a custom or policy that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused
the violation.” Teel v. Lozada, 99 F.4th 1273, 1279 (11th Cir.
2024) (quotation omitted). See also Andre, 148 F.4th at 1300.
Liability under Monell may be based on an official policy or
“a practice or custom that is so pervasive, as to be the functional
equivalent of a policy adopted by the final policymaker.” Khoury
v. Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1131 (11th Cir. 2021).
“A policy is a decision that is officially adopted by the
municipality, or created by an official of such rank that he or

she could be said to be acting on behalf of the municipality,”
while a “custom is an unwritten practice that is applied
consistently enough to have the same effect as a policy with the
force of law.” Goebert v. Lee Cnty., 510 F.3d 1312, 1332 (11th
Cir. 2007) (citations omitted.)
The City argues that the SAC has failed to state a claim under
Monell because Berry has failed to allege sufficient facts to
establish a pattern of unconstitutional conduct to impose
liability. (Doc. #25, pp. 15-16.) The City argues that the SAC
only proffered one other example of the challenged policy or
practice and “even one or two incidents of unconstitutional

activity is generally insufficient to impose liability against a
municipality.” (Id., p. 15.)
As explained by the Supreme Court,
it is plain that municipal liability may be
imposed for a single decision by municipal
policymakers under appropriate circumstances.
No one has ever doubted, for instance, that a
municipality may be liable under § 1983 for a
single decision by its properly constituted
legislative body—whether or not that body had
taken similar action in the past or intended
to do so in the future—because even a single
decision by such a body unquestionably
constitutes an act of official government
policy.
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
Here, Berry does not rely on custom or an unwritten policy or
practice of regulating free speech. Rather, Berry alleges that he
was cited under an Ordinance officially adopted and promulgated by
the City. Thus, Berry has pled sufficient plausible facts to hold
the City liable for any constitutional violations caused by the
Ordinance.
Berry must also plead sufficient facts to show that the
Ordinance was the “moving force” behind a violation of his
constitutional rights. See Barnett v. MacArthur, 956 F.3d 1291,
1296 (11th Cir. 2020). Berry has pled (and the City does not
dispute) that the Ordinance prohibits “[a]ny sign which contains
obscene language or graphics . . .[.]” Punta Gorda, Fla., Code of

Ordinances, ch. 26, § 11.5(z). Construing the facts pled by Berry
in his favor (as the Court is required to do at this stage in the
proceedings), the Court finds the SAC sufficiently pleads that the
Ordinance’s prohibition on certain signs was the moving force for
the detention and citation. As noted earlier, Berry has not
asserted sufficient facts to state a claim as to the videotaping.
The operative pleading alleges, in a conclusory fashion, that he
“was videotaping the entire protest, the videotaping was creation
of journalism,” and that “as a result of the ticket, [Berry’s]
journalism was stopped.” (Doc. #23, p. 6.) Outside of this
conclusory allegation, Berry’s complaint is devoid of any facts
showing a causal connection between his photojournalism and

Officer Smith’s issuance of the citation under the Ordinance.
Thus, even if Berry’s photojournalism was protected speech, he has
not plausibly set forth a causal connection between his
photojournalism and the citation. Accordingly, the City’s motion
to dismiss is granted as to Berry’s claim for First Amendment
retaliation based on his videotaping the protest activities.
Berry has pled sufficient facts to hold the City liable under
Monell for violation of his Fourth Amendment right to be free from
unreasonable seizure during issuance of the citation. Berry’s
claim for malicious prosecution under the Fourth Amendment fails
because there is no allegation that Officer Smith took any

affirmative action to continue the code enforcement proceedings
after she cited Berry pursuant to the Ordinance. Thus, the City
cannot be held liable under Monell for the malicious prosecution
claims because “Monell and its progeny do not ‘authorize[ ] the
award of damages against a municipal [entity] based on the actions
of one of its officers when in fact . . . the officer inflicted no
constitutional harm.’” Andre, 148 F.4th at 1306 (citing Teel, 99
F.4th at 1288), and the City’s Motion to Dismiss Berry’s claim for
malicious prosecution is granted.
Accordingly, it is now
ORDERED:
Defendants’ Motion to Dismiss is GRANTED IN PART AND DENIED

IN PART as follows:
(1) Officer Smith’s motion to dismiss the claim of First
Amendment retaliation for issuing a citation because of the
language on the sign is DENIED because Officer Smith is not
entitled to qualified immunity and the Amended Complaint states a
plausible claim;
(2) Officer Smith’s motion to dismiss the claim of First
Amendment retaliation for issuing the citation because of filming
the activities of the police and protesters is GRANTED because
Officer Smith is entitled to qualified immunity and the Amended
Complaint does not state a plausible claim;

(3) Officer Smith’s motion to dismiss the claim of Fourth
Amendment violation for stopping and detaining Berry while the
citation was issued is DENIED because Officer Smith is not entitled
to qualified immunity and the Amended Complaint states a plausible
claim;
(4) Officer Smith’s motion to dismiss the claim of Fourth
Amendment violation for maliciously prosecuting and compelling
plaintiff’s appearing before the Code Enforcement proceedings is
GRANTED because Officer Smith is entitled to qualified immunity
and the Amended Complaint does not state a plausible claim;
(5) The City’s motion to dismiss the claim of First Amendment
retaliation for issuing the citation because of filming the

activities of the police and protesters is GRANTED because
Plaintiff has failed to adequately plead constitutional harm by
the City;
(6) The City’s motion to dismiss the claim of Fourth Amendment
violation for maliciously prosecuting and compelling plaintiff’s
appearing before the Code Enforcement proceedings is GRANTED
because Plaintiff has failed to adequately plead constitutional
harm by the City;
(7) The City’s motion to dismiss is otherwise DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 3rd day of
December 2025.

Copies:
Parties of record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11213972. Public record. Not legal advice.