holding that officers did have arguable probable cause to arrest plaintiff when he was engaged in political speech because he had violated Florida’s trespass after warning statute
How later courts described this case
- holding that officers did have arguable probable cause to arrest plaintiff when he was engaged in political speech because he had violated Florida’s trespass after warning statute
- “In wrongful arrest cases, we have defined the ‘clearly-established’ prong as an ‘arguable probable case’ inquiry.”
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 21, 2010
No. 09-11074
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 07-00257-CV-FTM-29-DNF
ROBERT MORAN,
Plaintiff-Appellant,
versus
BILL CAMERON,
JOHN DAVENPORT,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 21, 2010)
Before CARNES and HULL, Circuit Judges, and LAWSON,* District Judge.
LAWSON, District Judge:
*
Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
Robert Moran (“Moran”), the plaintiff in this case, appeals from the district
court’s order granting final summary judgment to defendants John Davenport
(“Davenport”), the Charlotte County Sheriff, and Bill Cameron (“Cameron”), the
Charlotte County Deputy Sheriff, on the basis of qualified immunity. Cameron
arrested Moran for refusing his order to leave the Cultural Center of Charlotte
County (“Cultural Center”), in violation of Florida’s trespass after warning statute,
Fla. Stat. § 810.09(2)(b). Moran claims that the officers1 violated his Fourth
Amendment rights because they arrested him without probable cause and made
false post-arrest statements to manufacture probable cause. He also claims they
violated his First Amendment rights because no reasonable police officer would
have arrested him for engaging in political speech at the Cultural Center.
This Court reviews “de novo a district court’s disposition of a summary
judgment motion based on qualified immunity, applying the same legal standards
as the district court.” Whittier v. Kobayashi, 581 F.3d 1304, 1307 (11th Cir. 2009)
(citation omitted). “We resolve all issues of material fact in favor of the plaintiff,
and then, under that version of the facts, determine the legal question of whether
the defendant is entitled to qualified immunity.” Id. (citation omitted).
Our analysis proceeds as follows: first, we state the facts of the case in the
1
The term “officers” refers to Cameron and Davenport only.
2
light most favorable to Moran. Next, we explain why, under that version of the
facts, Cameron and Davenport had arguable probable cause to arrest Moran for
violating Florida’s trespass after warning statute. Then we explain why Cameron
and Davenport did not manufacture probable cause and therefore are entitled to
qualified immunity on the Fourth Amendment claim. Finally, we explain that
because the officers had arguable probable cause to arrest Moran, they also are
entitled to qualified immunity on the First Amendment claims. We affirm the
district court’s grant of final summary judgment.
I. BACKGROUND
A. Factual Background
The Cultural Center of Charlotte County, Inc. (“the Corporation”) is a non-
profit corporation that leases the Cultural Center building and parking lot from
Charlotte County for $1 per year. The Corporation initially owned the property,
but donated it to Charlotte County, which in turn leased it back to the Corporation.
The Corporation is self-supporting and draws on no public monies for operating
costs. It generates its own income through room rental and food and craft sales and
is totally funded by user fees and donations.
On October 16, 2006, the campaign for Joe Negron, a local candidate for the
3
Republican party, rented two rooms at the Cultural Center to conduct a political
rally in support of Negron’s candidacy. The then governor of Florida, Jeb Bush,
was scheduled to attend the rally. Moran, the president of “the Democratic club” in
Charlotte County, decided to come to the Cultural Center when he learned that the
governor would be there. He initially entered the Cultural Center building wearing
a local Democratic party T-shirt. After arriving at the Cultural Center, however,
Moran decided to change into a “Florida for Peace” shirt and carry a sign to protest
the Iraq war. He returned to his car to change his shirt and removed a homemade
picket sign from his trunk. The sign was approximately twenty inches long by
thirty inches wide and was mounted on a stick. On one side the sign said, “Dumb
Men Start Wars,” and on the other side, it said “Guided by God – George and
Osama.”
As Moran walked up the sidewalk leading to the front doors of the Cultural
Center, David Powell (“Powell”), the volunteer president of the Cultural Center's
Board of Directors, came outside and told Moran that he could not bring the sign
into the building. Moran told Powell at least twice that Powell was violating
Moran’s First Amendment rights, to which Powell responded, “Yes, I am.”
According to Moran, Powell never told Moran to leave the property. After Moran
asked him who he was, Powell introduced himself as the president of the Cultural
4
Center. Moran then walked away from the entrance and stood beside a bench
outside the building, fourteen feet away from the front door. Powell returned to the
inside of the Cultural Center.
Sheriff Davenport, who was dressed in his sheriff’s uniform, and Deputy
Sheriff Cameron, who was dressed in plain clothes, observed Moran and Powell’s
interaction from inside the Cultural Center. Davenport was at the Cultural Center
to meet the Governor, and Cameron had paused in the lobby of the Cultural Center
after attending a luncheon speech given by a candidate for Lieutenant Governor of
Florida.
While watching the encounter between Powell and Moran, Cameron asked
Davenport whether the Cultural Center was public or private property. Davenport,
who was a member of the Board of Trustees of the Cultural Center, told Cameron
that it was private property. Davenport had not seen the lease prior to the date of
the arrest. It was his understanding that Charlotte County owned the building and
the grounds, but leased it to the management of the Corporation, a private entity. It
was also his understanding that it was a landlord-tenant relationship that allowed
the Corporation to control the entire property, including the parking lot and the
walkways. Davenport was not aware of any rules governing the rental of rooms at
the center, but he was aware that there was a rule against political signs on the
5
common areas of the Cultural Center, such as the lobby and the walkways.
Moreover, it was his understanding that the Corporation could exclude citizens
from using the facility for certain purposes, such as skateboarding, and if they
refused to leave, they could be arrested for trespassing.
Upon returning to the inside of the Cultural Center, Powell spoke with
Cameron and Davenport. At the time of the exchange, Cameron did not know
Powell, but Powell and Davenport knew one another because both served on
boards of the Cultural Center and they had served together on various other boards
in the past.
Powell told Cameron and Davenport that Moran was not leaving. According
to Cameron, he asked Powell whether he wanted Moran removed, whether Powell
was a manager at the Cultural Center, and whether the Cultural Center was private
property. Powell said that he wanted Moran removed, said that he was a manager
at the Cultural Center, and confirmed that the property was private. Cameron then
told Powell that he would go out and speak to Moran. Cameron left the group and
went outside.
Powell remembers telling the officers that Moran was not leaving and that
one of the officers told him“we’ll take care of it.” He does not remember Cameron
or Davenport saying anything else to him at that time. He interpreted the statement
6
“we’ll take care of it” to mean that the officers would remove Moran from the
property.
Once outside the Cultural Center, Cameron introduced himself to Moran and
said, “this is private property and they want you off the property.” Moran told
Cameron, “you’re taking away my First Amendment rights.” Cameron then
offered Moran the option of holding his sign on the sidewalk across the parking lot,
but Moran refused the offer and stayed where he was. Moran then asked whether
he could enter the Cultural Center without his sign. Cameron replied, “they want
you off the property.” Moran continued to refuse to leave the property, even after
Cameron warned him that he would arrest Moran for remaining on the property
after having been warned to leave. After receiving a final warning from Cameron,
Moran told Cameron to arrest him. Cameron then arrested Moran for trespass after
warning in violation of Fla. Stat. § 810.09(2)(b).
Following Moran’s arrest, Cameron and Moran walked to the parking lot and
Cameron radioed for a patrol car. Davenport observed Cameron and Moran’s
interaction from inside the Cultural Center, and when he saw Cameron and Moran
walking toward the parking lot, Davenport followed. Cameron told Davenport that
he had arrested Moran after Moran had not moved despite being informed that the
Cultural Center was private property. At no time did Davenport and Moran speak
7
to each other.
Deputy April Strejcek (“Strejcek”) arrived in a patrol car. Moran was
searched, handcuffed, and placed in the patrol car. Cameron advised Strejcek that
Moran was under arrest for trespassing. Cameron never told Strejcek that
Davenport had told him to arrest Moran. After Moran was placed in the patrol car,
Strejcek filled out paperwork on the trunk of her patrol car with Joan Robbins
(“Robbins”), the Cultural Center’s Assistant Executive Director and a paid
employee.
Robbins was then asked to sign a “trespass warning notice” and a “victim
witness statement,” which she did. She signed the warning notice because one of
the officers told her that Powell’s signature would not be sufficient because he was
not a paid employee. Robbins did not witness the incident where Powell told
Moran he could not bring his sign into the Cultural Center building. She also did
not speak to Cameron and was not present when Cameron asked Moran to leave.
However, Strejcek testified that at the time she took Moran into custody, she had
the impression that it was Robbins who had asked Moran to leave and then
contacted Cameron for assistance. In the probable cause affidavit, Strejcek wrote
that Cameron told her that Robbins first saw Moran, asked him to leave the
property, and sought out Cameron’s assistance when Moran refused to leave. The
8
victim witness statement that Robbins signed also said that Robbins asked Moran
to leave and then asked Cameron for help when Moran did not move.
B. Procedural History
On April 25, 2007, Moran brought this 42 U.S.C. § 1983 civil rights
complaint against Cameron and Davenport in the United States District Court for
the Middle District of Florida. Moran alleged that Cameron and Davenport
arrested Moran without probable cause in violation of the Fourth Amendment,
denied his right to peaceably assemble in violation of the First Amendment, and
denied his right to engage in political speech in violation of the First Amendment.
The bases of Moran’s claims were that: (1) no “authorized person” warned
him to leave the property as required by the Florida trespassing statute; (2) the
officers fabricated the fact that Robbins told him to leave in order to create
probable cause to arrest him; and (3) no reasonable officer could believe that
ordering him to leave the Cultural Center did not violate his First Amendment
rights.
Cameron and Davenport moved for summary judgment claiming qualified
immunity. The district court granted their motions, concluding that the officers had
arguable probable cause to arrest Moran for violating the trespass after warning
9
statute because under the circumstances a reasonable officer could rely on Powell’s
request to remove Moran when deciding to arrest Moran for trespass. The district
court then concluded that the officers had qualified immunity as to the First
Amendment claims because they had arguable probable cause to arrest Moran,
even though Moran was exercising his First Amendment right to expression at the
time of the arrest. This timely appeal followed.
II. DISCUSSION
A. Qualified Immunity Framework
“The doctrine of qualified immunity provides that ‘government officials
performing discretionary functions generally are shielded 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.’” Case v.
Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “Qualified immunity
is meant to ensure that government officials are not afraid to fulfill their job-related
responsibilities.” Williams v. Consol. City of Jacksonville, 381 F.3d 1298, 1307
(11th Cir. 2004) (citation omitted). Thus, all but those who are plainly incompetent
or knowingly violate the federal law are protected from suit. Lee v. Ferraro, 284
10
F.3d 1188, 1194 (11th Cir. 2002).
In order to be protected by qualified immunity, an officer must first show
that he was engaged in a discretionary function when the alleged constitutional
violation occurred. Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.
2004). The burden then shifts to the plaintiff to overcome the defense of qualified
immunity. Id. The Supreme Court established in Saucier v. Katz, 533 U.S. 194,
121 S. Ct. 2151, 150 L.Ed.2d 272 (2001), that qualified immunity must be granted
to a government official unless the plaintiff shows: first, that the facts viewed in the
light most favorable to him establish a constitutional violation by the official; and,
second, that the unlawfulness of the official’s conduct was clearly established at
the time of the incident. McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.
2009).
We are no longer required to conduct the qualified immunity analysis in the
order articulated by Saucier v. Katz. Instead, we may first resolve the second
question, whether the constitutional right was “clearly established,” before we turn
to the first question, whether a constitutional right was actually violated. Pearson
v. Callahan, 129 S. Ct. 808, 813 (2009). In deciding which of the two prongs of the
qualified immunity analysis should be addressed first, we are “permitted to exercise
[our] sound discretion.” Id. at 818. Regardless of which prong is addressed first,
11
our inquiry still “must be undertaken in light of the specific context of the case, not
as a broad general proposition.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir.
2009) (citation omitted).
It is undisputed that the officers were acting within their discretionary
authority when they arrested Moran. Therefore, our qualified immunity analysis
focuses on whether Moran has satisfied his burden of showing that the grant of
qualified immunity is inappropriate. We choose to first address the second prong
of the Saucier test’s two-prong inquiry and ask whether the officers’ arrest of
Moran was clearly established as unconstitutional because it lacked arguable
probable cause. We hold that the officers had at least arguable probable cause to
arrest Moran.
B. The Officers Had Arguable Probable Cause to Arrest Moran
Moran complains that Cameron and Davenport violated his Fourth
Amendment rights because they falsely arrested him for violating Fla. Stat. §
810.09(2)(b). The Fourth Amendment provides that a person has a right to be free
from unreasonable searches and seizures. U.S. Const. Amend. IV. Whether an
arrest of a person, which is a seizure, is reasonable depends on a finding of
probable cause. Kingsland, 382 F.3d at 1226. “Probable cause to arrest exists
where the facts and circumstances within the officers’ knowledge and of which
12
they had reasonably trustworthy information are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has been or is being
committed.” Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990)
(quotations and citation omitted). A warrantless arrest without probable cause
violates the Constitution. Kingsland, 382 F.3d at 1226.
Nevertheless, “[w]e do not automatically hold an officer liable for making an
arrest that, when seen with the benefit of hindsight, turns out not to have been
supported by probable cause.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137
(11th Cir. 2007). Rather, if an officer violates the Constitution because he lacks
probable cause, the officer may still be shielded from liability under the second
prong of the qualified immunity analysis because his “actions did not violate
‘clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Case, 555 F.3d at 1327 (quoting Hope v. Pelzer, 536 U.S.
730, 739, 122 S. Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)).
In wrongful arrest cases, we have defined the “clearly-established” prong as
an “arguable probable cause” inquiry. See id. (“If a constitutional violation
occurred because the officer lacked probable cause, we next consider whether
arguable probable cause existed.”); Draper v. Reynolds, 369 F.3d 1270, 1276 n. 7
(11th Cir. 2004) (“Given our conclusion that [defendant] had actual probable cause
13
and no constitutional violation occurred, we need not discuss the arguable probable
cause doctrine ... for purposes of determining the second prong of the qualified
immunity test.”); Scarbrough v. Myles, 245 F.3d 1299, 1303 (11th Cir. 2001)
(“Because [defendant] had arguable probable cause to arrest [plaintiff], he violated
no clearly established law. . . .”). The “clearly-established” standard means that
even if the arresting officer lacks probable cause, he is still entitled to qualified
immunity if there was “arguable probable cause for the arrest, which is a more
lenient standard than probable cause.” Knight v. Jacobson, 300 F.3d 1272, 1274
(11th Cir. 2002).
In determining whether arguable probable cause exists we ask whether
“reasonable officers in the same circumstances and possessing the same knowledge
as the Defendant could have believed that probable cause existed to arrest.” Lee,
284 F.3d at 1195 (quotations and citations omitted). There is no arguable probable
cause if “no reasonable officer could have found probable cause under the totality
of the circumstances.” Kingsland, 382 F.3d at 1232.
We find that the facts, taken in the light most favorable to Moran, show that
Cameron and Davenport had at least arguable probable cause to arrest Moran.2 We
2
There is no evidence that Davenport arrested Moran or directed Cameron to arrest
Moran. Nevertheless, we conduct our arguable probable cause analysis as if both officers
arrested Moran.
14
make this conclusion for three reasons: (1) there is no genuine issue of fact that
Powell asked the officers to order Moran to leave the Cultural Center’s property;
(2) a reasonable officer could believe that Powell was an “authorized person” as
required by the Florida trespassing statute; and (3) an officer could reasonably
believe that ordering Moran to leave the Cultural Center’s property did not violate
Moran’s First Amendment rights.
1. There is no genuine issue of fact that Powell asked the officers to
remove Moran.
Florida statute § 810.09 is titled “Trespass on property other than structure or
conveyance.” Moran was arrested for violating subsection (2)(b) of the statute,
which states in relevant part: “[i]f the offender defies an order to leave, personally
communicated to the offender by the owner of the premises or by an authorized
person . . . the offender commits a misdemeanor of the first degree . . . .”
Subsection (3) defines “authorized person” as
any owner, his or her agent, or a community association
authorized as an agent for the owner, or any law
enforcement officer whose department has received
written authorization from the owner, his or her agent, or
a community association authorized as an agent for the
owner, to communicate an order to leave the property in
the case of a threat to public safety or welfare.
Fla. Stat. § 810.09(3).
15
Moran argues that there is an issue of fact of whether Powell asked the
officers to order Moran to leave. If Powell never gave the officers such an order,
then Cameron would not have had even arguable probable cause for the arrest.
Under Moran’s version of the facts, Powell told Moran that he could not
enter the building with his sign. Thus, according to Moran, Powell never asked
him to leave the Cultural Center. Moran relies on Powell’s testimony for his
assertion that Powell also never asked the officers to remove him from the
property. Powell testified that after he told Moran he could not enter the building
with his sign, Powell returned to the inside of the Cultural Center, located the
officers, who were standing together, and said “[h]e’s not moving.” One of the
officers then said “we’ll take care of it.” Powell testified that he could not
remember anything else that Davenport or Cameron said to him at that time, but he
understood “we’ll take care of it” to mean that the officers would order Moran to
leave the Cultural Center’s property.
While we could hold that a reasonable officer in Cameron’s or Davenport’s
shoes could have perceived Powell’s statement “he’s not moving” to be a request
for the officers to order Moran to leave the property, we decline to do so because
there is other unrebutted testimony, which is not inconsistent with Powell’s
testimony, that shows that Cameron expressly asked Powell whether he wanted
16
Moran removed from the property. Cameron testified that when Powell came back
inside the Cultural Center building, Cameron asked Powell whether he was a
member of the management, asked him if he wanted Moran removed, and finally
asked him if the Cultural Center was private property. After receiving Powell’s
affirmative answers, Cameron told Powell he would go outside and talk to Moran.
Powell’s testimony does not create a genuine issue of fact. Rather,
Cameron’s testimony adds to and expands upon Powell’s limited testimony about
the conversation that occurred between the officers and Powell. Powell admitted
that he could not remember anything said by Davenport or Cameron other than
“we’ll take care it,” but that he interpreted the statement to mean that one of the
officers would order Moran to leave. Cameron’s testimony was directly consistent
with Powell’s in that both established that one of the officers agreed to go outside
and speak to Moran. Cameron’s testimony then filled in the gaps left by Powell’s.
Thus, on this record testimony, we cannot conclude that Moran has created a
genuine issue of fact regarding whether Powell asked the officers to order Moran to
leave.
2. A reasonable officer could believe Powell was an “authorized
person.”
Having determined that there is no genuine issue of fact whether Powell
17
asked the officers to order Moran to leave, the “authorized person” question left
before us is whether a reasonable officer could believe that Powell was an agent of
the Cultural Center for purposes of asking Cameron to warn Moran to leave.
Under Florida law, an agent may have actual or apparent authority to act on
behalf of the principal. A finding of actual authority requires evidence that the
principal acknowledged that the agent would act for him, that the agent accepted
the responsibility of acting on behalf of the principal, and that the principal
maintained control over the agent's actions. Villazon v. Prudential Health Care
Plan, Inc., 843 So. 2d 842, 853 n.10 (Fla. 2003) (citing Goldschmidt v. Holman,
571 So. 2d 422, 424 n. 5 (Fla.1990)).
In contrast, an agency relationship based on apparent authority exists if there
is a representation by the principal, reliance on the representation by a third person,
and a change in position by the third party in reliance on the representation. Mobil
Oil Corp. v. Bransford, 648 So. 2d 119, 124 (Fla.1995).
It is plain to us that officers in Cameron’s and Davenport’s positions could
have reasonably perceived that Powell had actual authority to act on behalf of the
Cultural Center in deciding who could be present on the property. It is undisputed
that Davenport served on the Board of Trustees of the Cultural Center and that he
knew that Powell served as the Cultural Center’s volunteer president of the Board
18
of Directors. Powell’s authority as president could indicate to a reasonable officer
that he had broad, general management authority at the Cultural Center, including
the authority to determine who could be present on the property. The fact that
Powell served as a volunteer and was not paid does not make it less reasonable for
an officer to believe that Powell had authority to act or speak on behalf of the
Cultural Center.
Cameron’s perception that Powell had authority to ask him to order Moran to
leave was also one that a reasonable officer could have. Although Cameron did not
know that Powell was the volunteer president of the Cultural Center, he observed
Powell prevent Moran from entering the building. Powell’s conduct could indicate
to a reasonable officer that Powell had a position of authority at the Cultural
Center. Most importantly, however, Cameron asked Powell whether he held a
management position at the Cultural Center. Powell stated he was a manager
before Cameron went outside to order Moran to leave. We find that a reasonable
officer, having been told by Powell that he was a manager of the Cultural Center,
could believe that Powell had the authority to control who could be present on the
Cultural Center’s property.
Moran argues that there is evidence indicating the officers did not
subjectively believe that Powell was an “authorized person.” The analysis of
19
arguable probable cause is not concerned with the subjective beliefs of the officers.
The standard for probable cause and arguable probable cause focuses on the facts
and circumstances known to the arresting officer at the time, but it does not
consider at all his subjective beliefs or motivations. United States v. Street, 472
F.3d 1298, 1305 (11th Cir. 2006) (“The officer’s own subjective opinions or beliefs
about probable cause are irrelevant, because it is an objective standard.”). Instead,
the standard asks whether a reasonable officer would have or could have believed
that a crime had been committed or was being committed. Crosby v. Monroe
County, 394 F.3d 1328, 1332 (11th Cir. 2004). Thus, whether there is evidence
that raises the inference that Cameron and Davenport did not subjectively believe
that Powell had actual or apparent authority to speak for the Cultural Center is
immaterial.
We note that in his reply brief Moran argues that no “authorized person”
issued him a trespass warning because Cameron received a verbal authorization
from Powell, and the Florida statute clearly establishes that an officer must receive
written authorization from the property owner or his agent before issuing a trespass
warning. He did not raise this issue in his initial brief before this Court. We have
consistently and expressly stated that we will not “consider issues raised for the
first time in an appellant’s reply brief.” United States v. Britt, 437 F.3d 1103, 1104
20
(11th Cir. 2006) (quoting United States v. Levy, 416 F.3d 1273, 1276 n. 3 (11th
Cir. 2005)). Because Moran did not assert in his opening brief that summary
judgment was inappropriate on the basis that Cameron must have received written
authorization to issue him a trespass warning, we decline to consider the issue.
3. A reasonable officer could believe that ordering Moran to leave
did not violate his First Amendment rights.
Finally, we address Moran’s argument that the officers lacked arguable
probable cause because no reasonable officer could believe that ordering Moran to
leave the Cultural Center’s property did not violate Moran’s First Amendment
rights. The officers concede that there may be some evidence that the Cultural
Center has been opened and designated as a place for public discourse, but it is
undisputed that Cameron asked Davenport whether the property was private, and
Davenport told him that it was private property. Moran has failed to produce any
evidence demonstrating that Cameron’s reliance on this statement from Davenport
was unreasonable. Davenport also testified that he believed, based on the landlord-
tenant relationship, that the property was “private” because the Corporation had the
right to control it and was leasing it from the County. Davenport’s understanding
may have been erroneous, but Moran has failed to provide any reasons why his
21
understanding was unreasonable. On these facts, a reasonable officer could believe
that the property was private and not a place for First Amendment expression, and
therefore that there was a basis for Moran’s arrest under the trespass statute when
he refused to leave the property.
Further, Moran has presented no evidence that it was clearly established as
unreasonable for the officers to believe that at a minimum the Cultural Center’s
walkway and parking lot were not a public forum for engaging in free speech. A
party may show that the law was clearly established by pointing to “a materially
similar case [that has] already decided that what the police officer was doing was
unlawful,” or demonstrating that “the words of the pertinent federal statute or
federal constitutional provision . . . [are] specific enough to establish clearly the
law applicable to particular conduct and circumstances and to overcome qualified
immunity, even in total absence of case law. This kind of case is one kind of
‘obvious clarity’ case.” Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th
Cir. 2003) (quotations and citation omitted).
In determining whether there is a materially similar case that establishes the
unlawfulness of an officer’s conduct, we look to the precedents of the United States
Supreme Court, this Court, and the highest court of the relevant state. Vinyard,
311 F.3d at 1351 n. 22.
22
Moran has not provided, and our own research has not revealed, any case
from the Eleventh Circuit, the Florida Supreme Court, or the United States
Supreme Court that shows that asking Moran to leave the Cultural Center’s
surrounding walkway and move across the street to the sidewalk violated his First
Amendment right to engage in protest speech. Moran refers us to Southeastern
Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016 (5th Cir. 1972). In
that case, our predecessor court held that a city auditorium was subject to the
requirements of the First Amendment because it was a public facility and had
served as a venue for the communication of ideas and opinions. Id. at 1018-19.
We find Southeastern factually different and not materially similar. Unlike
in Southeastern, where the auditorium was owned and controlled by the city, the
Cultural Center is leased from the County by a private entity that controls what
activities occur on the property. The Cultural Center is funded entirely by private
funds, while the auditorium in Southeastern was funded by public money. Thus,
the Cultural Center has more characteristics of private property, while the city
auditorium in Southeastern was clearly public property. Because of these
differences, we believe that Southeastern does not clearly establish that a
reasonable officer would know that a privately leased building and its entrance and
surrounding walkway, controlled by a private corporation, are designated public
23
forums for free speech.
There is case law that clearly establishes that the ability of the government to
limit expressive activity is very limited in quintessential public forums, like streets
and parks. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S.
37, 45, 103 S. Ct. 948, 74 L.Ed.2d 794 (1983) (“In places which by long tradition
or by government fiat have been devoted to assembly and debate, the rights of the
state to limit expressive activity are sharply circumscribed. At one end of the
spectrum are streets and parks which have immemorially been held in trust for the
use of the public, and . . . have been used for purposes of . . . communicating
thoughts between citizens, and discussing public questions.”) (quotation omitted);
Amnesty Intern., USA v. Battle, 559 F.3d 1170, 1182 (11th Cir. 2009) (“[Plaintiff]
also has a constitutional right to engage in peaceful protest on public land such as
in a city park.). Those cases are distinguishable. It is undisputed that Cameron
offered Moran access to a sidewalk across from the Cultural Center, a
quintessentially public place for protest, and Cameron and Davenport understood
that the Cultural Center was private property.
Alternatively, Moran has not established that the First Amendment is so clear
and the officers’ conduct was so egregious that case law is not needed to establish
that the conduct is unconstitutional. Accordingly, we conclude that it was not
24
“clearly established” that Moran had a right to free speech on the walkway to the
Cultural Center, or that the Cultural Center was a public forum, such that the
officers should have known it at the time of the arrest and should not have arrested
him based on this knowledge
For these reasons, the officers had arguable probable cause to arrest Moran
when he refused Cameron’s order to leave the Cultural Center.
C. The Officers’ Post-Arrest Statements Do Not Show That They
Manufactured Probable Cause
Moran also asserts that the officers manufactured the probable cause for his
arrest. He argues that the officers fabricated the statements in the victim witness
statement and asked Robbins to sign the trespass warning notice even though she
did not ask Moran to leave the Cultural Center. Additionally, he takes issue with
the probable cause affidavit, arguing that it falsely indicates that Robbins
confronted Moran and told him to leave the property and then sought out
Cameron’s assistance when he refused to leave. According to Moran, if the
officers reasonably believed that Powell was an authorized person then there would
have been no reason to have Robbins sign the trespass warning notice and include
false statements in the victim statement and probable cause affidavit.
The Warrant Clause of the Fourth Amendment requires that warrant
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applications contain sufficient information to establish probable cause. Franks v.
Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We have
held that it is clearly established that the “Constitution prohibits a police officer
from knowingly making false statements in an arrest affidavit about the probable
cause for an arrest . . . if such false statements were necessary to the probable
cause.” Jones v. Cannon, 174 F.3d 1271, 1285 (11th Cir. 1999); see also Holmes
v. Kucynda, 321 F.3d 1069, 1083-84 (11th Cir. 2003) (holding that the officer was
not entitled to qualified immunity where he submitted a warrant application that
included deliberately false statements about the incidents leading to the plaintiff’s
arrest and there was no evidence of probable cause other than the facts
manufactured or falsified by him). “A search warrant may be voided if the affidavit
supporting the warrant contains deliberate falsity or reckless disregard for the truth,
and this rule includes material omissions.” Dahl v. Holley, 312 F.3d 1228, 1235
(11th Cir. 2002). Nevertheless, a “warrant is valid if, absent the misstatements or
omissions, there remains sufficient content to support a finding of probable cause.”
Id. (citation omitted).
Viewing all the evidence and disputed factual inferences in the light most
favorable to Moran, the misstatements in the probable cause affidavit that Robbins
first saw Moran, asked him to leave the property, and then requested Cameron’s
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assistance are immaterial since there are other sufficient facts to support a finding
of arguable probable cause. Uncontroverted evidence in the record shows that
Powell asked the officers to order Moran to leave, that Cameron asked Moran to
leave, and that Cameron arrested Moran after he refused to move. Moreover,
Powell told the officers he was a manager at the Cultural Center, and based on this
representation, a reasonable officer could have believed that Powell had authority
to ask the officers to order Moran to leave the Cultural Center’s property. These
facts form a basis for arguable probable cause separate from the facts stated in the
affidavit. Therefore, we conclude that the officers are protected by qualified
immunity.
We now address the misstatements in the victim witness statement and
Robbins’ signature on the trespass warning notice. Under Moran’s version of the
facts, Cameron arrested him and then brought him over to the side of the road
where Strejcek soon arrived in her patrol car. Robbins then wrote the victim
witness statement and signed the trespass warning notice. We find that the trespass
warning notice and victim witness statement were not necessary to the probable
cause determination and therefore any false information in them does not change
our holding that the officers had arguable probable cause to arrest Moran. We
make this conclusion for two reasons. First, both documents were made and signed
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after the arrest was completed.3 Second, the Constitution prohibits knowingly or
recklessly making false statements material to probable cause in an arrest affidavit.
Kingsland, 382 F.3d at 1233. This prohibition does not apply to the trespass
warning notice and victim witness statement because, unlike the probable cause
affidavit, they cannot be used to support an application for a warrant. See U.S.
Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause, supported
by oath or affirmation . . . .”). Therefore, regardless of whether the information in
the trespass warning notice and victim witness statement was false or even
fabricated, the information was not essential to the constitutional validity of the
arrest. It does not change the result that Cameron and Davenport had arguable
probable cause to arrest Moran at the time of the arrest.
Because the post-arrest statements were not material to a finding of arguable
probable cause, the officers did not manufacture probable cause. Cameron and
Davenport are accordingly entitled to qualified immunity from Moran’s Fourth
Amendment claim.
D. The Officers are Entitled to Qualified Immunity on the First
Amendment Claims.
We finally address whether the officers are entitled to qualified immunity on
3
Moran does not challenge on appeal the district court’s finding that Cameron arrested
him, not Strejcek.
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Moran's First Amendment claims. We have held that “[w]hen a police officer has
probable cause to believe that a person is committing a particular public offense, he
is justified in arresting that person, even if the offender may be speaking at the time
that he is arrested.” Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir.
1998) (holding that officers were protected by qualified immunity on a First
Amendment claim where they had arguable probable cause to arrest a street
preacher for disorderly conduct); accord Gold v. City of Miami, 121 F.3d 1442,
1446 (11th Cir. 1997) (holding that officers were protected by qualified immunity
where they had arguable probable cause to arrest person who was talking loudly
and cursing for disorderly conduct). This is also true when an officer has arguable
probable cause to believe that a person is committing a particular offense, even if
the person may be speaking at the time he is arrested. Redd, 140 F.3d at 1384.
Because we hold that the officers had arguable probable cause to arrest
Moran, we conclude that the officers are entitled to qualified immunity from
Moran's First Amendment claims.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order granting
summary judgment to Davenport and Cameron on Moran’s Fourth Amendment
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wrongful arrest claim and his First Amendment claims.
AFFIRMED.
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