Wayne Freeman v. Town of Eatonvillle FL

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________ FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 05-12813 November 1, 2006

_____________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 03-01280 CV-ORL-19-JGG

WAYNE FREEMAN,

WAYNE’S WORLD, INC.,

Doing business as Heroe’s Nightclub,

Plaintiffs-Appellants,

versus

TOWN OF EATONVILLE, FLORIDA,

J. MURPHY,

Defendants-Appellees.

_________________________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________________________

(November 1, 2006)

Before EDMONDSON, Chief Judge, BIRCH and ALARCÓN,* Circuit Judges.

*

Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by

designation.

PER CURIAM:

Plaintiffs Wayne Freeman and Wayne’s World, Inc. (“Plaintiffs”) sued the

Town of Eatonville, Florida and J. Murphy, an officer in the Eatonville Police

Department (“EPD”), alleging that Plaintiffs suffered damages from (1) false arrest

and false imprisonment, (2) federal constitutional deprivations, and (3) negligence.

The district court granted summary judgment for the Town of Eatonville and

Officer Murphy (“Defendants”). Finding no reversible error, we affirm.

I. BACKGROUND

Plaintiff Wayne Freeman is the sole owner of co-Plaintiff Wayne’s World,

Inc., which does business under the name of Heroe’s Nightclub (“Heroe’s”).1

Heroe’s is a nightclub with a maximum capacity of 700 people. The club offers

music and dancing for its patrons, and approximately 70 percent of its income is

derived from the sale of alcohol consumed on-site. On weekend nights, Heroe’s

opens its doors at 11:00 p.m. and operates until 4:00 a.m. or 5:00 a.m. Heroe’s is

the only nightclub in the area that operates past 2:00 a.m. And although Heroe’s

1

Heroe’s has also been spelled “Hero’s” in the briefs, but we will refer to the establishment as

Heroe’s in this opinion.

2

faces a mainly commercial street, immediately behind the club is a residential

neighborhood. In the five months before the incident at issue here, law

enforcement was called to Heroe’s about six to eight times to respond to fights or

other disturbances, including gunshots fired near the club. Since the incident at

issue here, law enforcement has responded to several other incidents at Heroe’s,

including one in which someone was shot.

On Friday night/Saturday morning of Labor Day weekend in 1999, Heroe’s

attracted a large crowd. In preparation for the holiday weekend -- during which

Heroe’s anticipated increased customer traffic -- Freeman “beefed up” security by

hiring 15 private security guards (normally 12) and five off-duty, uniformed police

officers (normally two or three). Around 2:00 a.m., Officer Murphy and other

EPD officers arrived at Heroe’s to respond to a disturbance. According to the

sworn statements of three EPD officers who were on the scene, the EPD

summoned at least three other law enforcement agencies to assist in responding to

“several physical and verbal disturbances, including ones with gunfire” that had

broken out in and around Heroe’s. By this time, 200-300 patrons had entered

Heroe’s, and a line of people waiting to enter, according to Freeman, was

“wrapped around the block.”

3

To quell the disturbance, Murphy reported that he was ordered by his

superior to close the doors of Heroe’s and to disperse the crowd.2 Officer Murphy

was familiar with Freeman and Heroe’s because Freeman had previously hired

Murphy to perform off-duty security at the club. Freeman stated that he first

became aware of the decision to shut down Heroe’s when he heard Murphy

closing the club’s exit doors. Murphy then tried to close the front doors where

Freeman was positioned to collect cover charges.

Officer Murphy told Freeman he was closing Heroe’s. Freeman then placed

himself so that Murphy could not shut the club’s doors. Freeman asserts that

Officer Murphy was “out of control, yelling” and “trying to slam the door.”

Freeman contrasts his own conduct as completely in control. Freeman said that

the crowd nearest the door began to surge toward the entrance during Freeman’s

interaction with Murphy. Murphy threatened to arrest Freeman if Freeman did not

step aside from the club’s doors. Freeman responded to Murphy, “Do what you

got to do.” Freeman claims he then complied with Murphy’s request to step away

from the door; Officer Murphy then arrested Freeman.

2

Only Freeman has been deposed in this case. The parties never contacted or deposed Murphy

or the other officers or witnesses to the club’s closing. The only testimonial evidence offered at the

summary judgment stage was Freeman’s deposition, Officer Murphy’s incident report and sworn

charging affidavit, and the sworn statements of two other EPD officers who were at the scene. For

the purposes of summary judgment we -- as the district court did -- construe the facts in the light

most favorable to Freeman.

4

Murphy took Freeman to Murphy’s patrol car where Freeman sat for one to

two hours while the officers dispersed the crowd. Freeman was charged with

resisting an officer without violence, in violation of Florida Statutes section

843.02. Later, the charges were dropped. Heroe’s remained closed for the

remainder of that night (one and a half to two hours). When Heroe’s reopened the

next night, Freeman contends, the club attracted a smaller-than-expected crowd.

Plaintiffs sued Officer Murphy and the Town of Eatonville, asserting

liability for false arrest and false imprisonment, negligence, and constitutional

violations. The district court granted summary judgment for Defendants,

concluding that Officer Murphy had probable cause to arrest Freeman, that

Murphy was entitled to qualified immunity, and that the Town of Eatonville could

not be liable because Murphy did not violate Freeman’s rights. The district court

later denied Plaintiffs’ motion for rehearing.

II. DISCUSSION

On appeal, Plaintiffs asserts that questions of material fact exist about

whether Murphy and the other EPD officers were authorized to arrest Freeman and

close Heroe’s. Plaintiffs argue mainly for three questions of fact: (1) whether

5

there was gunfire; (2) whether there were “disturbances” around the club; and (3)

whether the crowd was unruly. The district court -- purportedly construing the

facts in Plaintiffs’ favor -- found no genuine issues of material fact and granted

summary judgment for Defendants.

We review de novo the district court’s grant of summary judgment, applying

the same standards as a district court. Kingsland v. City of Miami, 382 F.3d 1220,

1225 (11th Cir. 2004). We view the evidence and all factual inferences therefrom

in the light most favorable to Plaintiffs and resolve all reasonable doubts about the

facts in Plaintiffs’ favor. Id. at 1226. Because Plaintiffs would bear the burden of

proof at trial, Plaintiffs must “go beyond the pleadings and by [their] own

affidavits, or by the depositions, answers to interrogatories, and admissions on

file,” show that genuine issues of material fact exist to be resolved at trial. Fed. R.

Civ. P. 56(e); Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986). We are

satisfied that the district court construed the record facts in Plaintiffs’ favor. After

review, we see no genuine issues of material fact sufficient to defeat summary

judgment.

6

A. State Law Claims

Freeman makes claims under state law for false arrest, false imprisonment,

and negligence.3 Freeman was arrested for resisting an officer without violence in

violation of Florida Statute section 843.02. Florida law provides, in part, that

“[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution

of any legal duty, without offering or doing violence to the person of the officer,

shall be guilty of a misdemeanor of the first degree.” FLA. STAT. § 843.02. To

support a conviction under section 843.02, the state must prove that Officer

Murphy was engaged in the lawful execution of a legal duty and that Freeman’s

acts constituted obstruction or resistance of that lawful duty. Slydell v. State, 792

So. 2d 667, 671 (Fla. Dist. Ct. App. 2001).

If Officer Murphy had probable cause to believe that Freeman was resisting

Murphy’s efforts to execute a legal duty, then summary judgment must be

affirmed. See City of Hialeah v. Rehm, 455 So. 2d 458, 461 (Fla. Dist. Ct. App.

1984) (concluding that an officer “is not liable for false arrest if he has probable

cause (or substantial reason) to believe the arrested person was a committing a

3

Freeman’s claims for false arrest and false imprisonment are “distinguishable in terminology

only.” Johnson v. Weiner, 19 So. 2d 699, 700 (Fla. 1944). We discuss these claims together.

7

misdemeanor in his presence”). Probable cause exists when the facts and

circumstances within the officer’s knowledge, of which he has reasonably

trustworthy information, would cause a prudent person to believe, under the

totality of the circumstances, that the suspect has committed, is committing, or is

about to commit an offense. Elliott v. State, 597 So. 2d 916, 918 (Fla. Dist. Ct.

App. 1994).

Whether Officer Murphy was executing a legal duty when he closed

Heroe’s is a critical element to Defendants’ argument for summary judgment.

Florida law vests municipalities with the power to act to maintain order and to

quell any disturbance or disorder. See FLA. STAT. § 14.022 (vesting in governor

power to “take such measures and to do all and every act and thing which she or

he may deem necessary in order to prevent violence . . . or to quell violence or any

disturbance or disorder which threatens the peace and good order of society”);

FLA. STAT. § 166.021 (extending to municipalities the right to exercise powers of

the state, including those powers set out in section 14.022). Florida law also

compels law enforcement officers to disperse “immediately and peaceably”

crowds which are “unlawfully, riotously, or tumultuously assembled.” FLA. STAT.

§ 870.04. And Eatonville Ordinance No. 96-03 makes it unlawful for a business

to “knowingly permit, allow or suffer . . . [t]he place of business . . . to become

8

unreasonably disorderly or noisy with the premises so as to annoy or disturb

persons off the premises of that place of business . . . .”

Freeman contends that his deposition testimony rebuts the facts laid out in

the officers’ statements and creates issues of material fact about whether Murphy

and the other officers were executing a legal duty when they closed Heroe’s. We

disagree.

Even construing the facts in Plaintiffs’ favor -- as we must -- there is no

dispute that Heroe’s, a nightclub with a history of disturbances, including physical

disturbances and gunfire, attracted a large crowd late at night to an area bordered

by residences. The officers stated -- without contradiction -- that they were called

to Heroe’s because of reports of “several physical and verbal disturbances,

including ones with gunfire.” Undisputed evidence shows that the crowd

assembled outside Heroe’s was sufficiently large and rowdy that officers from at

least four law enforcement agencies took almost two hours to disperse the crowd.

And although Freeman stated that he personally did not hear gunshots and did not

observe a fight, he was unable to say that these events did not in fact occur. Under

the circumstances, we conclude that sufficient undisputed evidence exists such

that a reasonable police officer could believe he was lawfully executing a legal

duty when he closed Heroe’s.

9

Whether Freeman obstructed or resisted Officer Murphy’s efforts to close

Heroe’s is the second element. For the arrest to be lawful, Murphy needed only to

have had reasonable grounds to believe that Freeman was resisting Murphy’s

efforts to close Heroe’s. See State v. Dwyer, 317 So. 2d 149, 150 (Fla. Dist. Ct.

App. 1975). Freeman stated that he challenged Murphy’s authority to close the

club and stood in the doorway to prevent Murphy from closing the doors. Murphy

asked Freeman to move; he warned Freeman that continued interference would

result in arrest; and Freeman responded to Murphy by saying, “Do what you got to

do.” Freeman further stated that while he was engaged with Murphy, the crowd at

the club’s entrance moved in around the men before other officers came to assist

Murphy.

Under the circumstances, a reasonable officer could believe that Freeman

was obstructing efforts to close the club. Murphy therefore had probable cause to

arrest Freeman. And because Murphy acted with probable cause, the arrest was

lawful, and Defendants were entitled to summary judgment on Plaintiffs’ state law

claims.

10

B. Federal Constitutional Claims

Freeman also contends that his arrest and the temporary closure of Heroe’s

violated his constitutional rights to be free from unreasonable search and seizure

and to due process.4 We disagree.

1. Fourth Amendment. Freeman contends he was deprived of his Fourth

Amendment rights against unreasonable search and seizure when he was arrested.

The district court determined that Murphy was entitled to qualified immunity.

Qualified immunity immunizes from suit police officers who, when acting within

the scope of their discretionary authority, do not violate “clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Rodriguez v. Farrell, 280 F.3d 1341, 1345 (11th Cir. 2002) (quoting

Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.

1994) (en banc)). To determine whether qualified immunity exists, we employ a

two-step inquiry. First, we decide whether Murphy’s acts violated the

constitution. Garrett v. Athens-Clarke County, Ga., 378 F.3d 1274, 1278 (11th

4

Freeman, in his complaint, also charged Defendants with violating his right to equal protection.

But Plaintiffs did not raise this issue in their briefs before this Court. The equal protection claim is

therefore abandoned. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th

Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is deemed

abandoned and its merits will not be addressed.”).

11

Cir. 2004) (citing Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001)). If we conclude

that no constitutional right was violated, our inquiry ends: then Murphy has done

nothing wrong under federal law. But if we conclude that, under the assumed

facts, federal law was violated, we then consider whether, at the time of the

incident, every objectively reasonable police officer would have realized the acts -

- given the circumstances -- did violate already clearly established federal law.

Garrett, 378 F.3d at 1278-79.

We are satisfied that Officer Murphy was acting within the scope of his

discretionary authority when he arrested Freeman and closed Heroe’s. We must

then consider whether Murphy, in the context of the assumed facts, violated

Freeman’s constitutional rights. Whether a defendant “has violated a

constitutional right at all is, of course, a necessary concomitant to the question of

qualified immunity: if a defendant has not violated the law at all, he certainly has

not violated clearly established law.” Rodriguez, 280 F.3d at 1345 (citations and

quotations omitted). We have written that “[t]he existence of probable cause at the

time of arrest . . . constitutes an absolute bar to a section 1983 action for false

arrest.” Kingsland, 382 F.3d at 1226. As we discussed above, Murphy had

12

probable cause to arrest Freeman.5 See Rankin v. Evans, 133 F.3d 1425, 1435

(11th Cir. 1998) (noting that “the standard for determining whether probable cause

exists is the same under Florida and federal law”). Because Murphy had probable

cause to arrest Freeman, Murphy can have no federal liability, and he is due

summary judgment.6

2. Due Process. Plaintiffs’ due process claim similarly fails. In McKinney

v. Pate, we wrote that “a procedural due process violation is not complete ‘unless

and until the State fails to provide due process.’” 20 F.3d 1550, 1557 (11th Cir.

1994) (en banc) (citing Zinermon v. Burch, 110 S.Ct. 975, 983 (1990)). Plaintiffs

could have pursued remedies in state court for lost profits or damages suffered by

the club’s closure. Plaintiffs therefore suffered no procedural due process

violation. See Horton v. Bd. of County Comm’rs of Flagler County, 202 F.3d

1297, 1300 (11th Cir. 2000) (concluding that plaintiff’s failure to pursue state law

5

Murphy would be entitled to qualified immunity if he had only “arguable probable cause” to

arrest Freeman. Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993). That is, Murphy

would be entitled to qualified immunity if “a reasonable officer could have believed that probable

cause existed.” Id. (citation and quotation omitted). This lesser standard is clearly met under the

circumstances: Murphy had actual probable cause to arrest Freeman.

6

In the alternative, we conclude that under the law at the time of Freeman’s arrest, the purported

unlawfulness of the arrest was not already clearly established; so Officer Murphy is due immunity.

13

claim is not dispositive; Fourteenth Amendment only requires that plaintiffs have

opportunity to pursue relief in state courts).7

3. Municipal liability. Even when individual town officers are entitled to

immunity, a town might still be liable if a plaintiff can demonstrate that the town

had a policy or custom that led to a constitutional deprivation. See Monell v. Dep’t

of Social Servs. of City of New York, 98 S.Ct. 2018, 2037-38 (1978) (“[I]t is when

execution of a government’s policy or custom . . . inflicts the injury that the

government as an entity is responsible under § 1983.”). But we make this inquiry

only when a plaintiff has suffered a constitutional deprivation. See City of Los

Angeles v. Heller, 106 S.Ct. 1571, 1573 (1986) (determining that the extent to

which departmental regulations infringe on constitutional rights is irrelevant when

no constitutional injury, in fact, occurred). In this case, we have concluded that

Plaintiffs suffered no constitutional deprivation. We accordingly conclude that the

Town of Eatonville was entitled to summary judgment on Plaintiffs’ constitutional

claims.

7

To the extent Plaintiffs assert a violation of substantive due process, we decline to extend the

concept of fundamental constitutional rights to encompass Plaintiffs’ claims. And our analysis of

the Fourth Amendment claim controls any cause of action Freeman, individually, may bring under

the banner of substantive due process. See generally Graham v. Connor, 109 S.Ct. 1865, 1871

(1989) (concluding in police excessive force case that “[b]ecause the Fourth Amendment provides

an explicit textual source of constitutional protection against this sort of physically intrusive

governmental conduct, that Amendment, not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these claims”).

14

III. CONCLUSION

Freeman was not falsely arrested. In performing his official duties, Officer

Murphy violated no federal law and, if he did, was entitled to qualified immunity

from suit. And because Plaintiffs suffered no constitutional deprivation, the Town

of Eatonville -- and Officer Murphy -- were entitled to summary judgment. The

judgment of the district court is accordingly

AFFIRMED.

15