Morley's Auto Body, Inc. v. Hunter

United States Court of Appeals,

Eleventh Circuit.

No. 94-3158.

MORLEY'S AUTO BODY, INC., a Florida Corporation, d/b/a Morley's

Towing; Morris Solow; David Solow, d/b/a Dave's Towing; Kenneth

Solow, Plaintiffs-Appellees, Cross-Appellants,

v.

Don HUNTER, individually, and in his official capacity as Sheriff

of Collier County; L. Wayne Graham, individually, and in his

capacity as a Captain in the Collier County Sheriff's Office,

Defendants-Appellants, Cross-Appellees,

Collier County; Collier County Sheriff's Office; John Doe, 1-

10, Defendants.

Dec. 18, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-271-Civ-Ftm-23D), George T. Swartz,

Magistrate Judge.

Before ANDERSON and CARNES, Circuit Judges, and Owens* District

Judge.

CARNES, Circuit Judge:

Collier County Sheriff Don Hunter and Captain L. Wayne Graham

appeal from a judgment entered against them in their official

capacities. That judgment followed a jury trial and was entered in

favor of plaintiffs Morley's Auto Body, Inc., and David Solow,

d/b/a Dave's Towing. The main question presented in this 42 U.S.C.

§ 1983 case is whether two wrecker service companies, and their

owners, had a constitutionally protected property interest in

remaining on a wrecker rotation call list maintained by the Collier

County Sheriff's Office. Because such property interests must be

determined by reference to state law, and because we can find no

*

Honorable Wilbur D. Owens, U.S. District Judge for the

Middle District of Georgia, sitting by designation.

Florida law to support their claim of entitlement, we hold that the

plaintiffs have failed to establish that they had a property

interest protected by the Due Process Clause of the Fourteenth

Amendment. Therefore, we will reverse the judgment of the district

court with respect to the procedural due process claim.

Additionally, this case involves the cross-appeal of the

individual plaintiff David Solow. Solow, who claimed that Captain

Graham violated his right under the Fourth and Fourteenth

Amendments to be free of unreasonable seizure, appeals from the

judgment entered by the district court after it granted a defense

motion for a directed verdict. Because the record does not

sufficiently link Captain Graham to the arrest related to this

claim, we will affirm the district court's judgment as to it.

I. FACTS AND PROCEDURAL HISTORY

County sheriffs' offices and other law enforcement agencies

that are called to the scene of automobile accidents and breakdowns

regularly summon wreckers to tow away disabled vehicles. These

calls or referrals are an important source of business for wrecker

service companies. The Collier County Sheriff's Office, like many

law enforcement agencies, maintains a "rotation list" of local

private wrecker service companies that it calls on a rotating basis

when wrecker services are required.

In October 1990, Sheriff Graham issued a document entitled the

"Collier County Sheriff's Office Wrecker Service Policy." The

twelve-page typewritten policy specifies the various equipment and

operating standards for wrecker service providers seeking to be

placed on the rotation list, sets up an application process, and

spells out the operational details of the rotation system. The

policy also requires that wrecker services on the rotation list

comply with the terms it specifies in order to remain on the list.

The provisions of the policy are quite detailed.

The plaintiffs are two wrecker service businesses and their

operators in Collier County. Both wrecker services formerly

received referral business from the Collier County Sheriff's Office

through participation in the rotation call system. Due to various

incidents involving their operators and employees, both of the

1

wrecker services were removed from the rotation list. The

plaintiffs received no notice or opportunity for a hearing before

they were removed from the list.

After being removed from the list, the plaintiffs commenced

this lawsuit under to 42 U.S.C. § 1983. Although the plaintiffs

initially sought recovery under a number of theories of liability,

the parties primarily focused on the plaintiffs' procedural due

process claim, and so do we.2 Additionally, David Solow stated a

claim against Captain Graham alone for unreasonable seizure in

1

The incidents leading to the removal of the plaintiffs from

the rotation list included various traffic citations and criminal

charges, each of which was later reduced, dismissed, or nolle

prossed. One such incident ultimately led to the arrest of David

Solow on a charge of tampering with evidence, and that arrest

forms the basis for Solow's Fourth Amendment claim, which is

discussed on pp. 18-20, below.

2

In addition to constitutional claims, discussed infra, the

plaintiffs included in their complaint a claim for breach of

contract. Under this theory, the plaintiffs contended that the

wrecker rotation policy, as implemented by the Collier County

Sheriff's Office, created a contractual relationship. The

district court dismissed this claim, finding that the

relationship between the parties had "no mutuality of obligation

to form a contract," and the plaintiffs did not appeal that

dismissal.

violation of the Fourth and Fourteenth Amendments. At the close of

the plaintiffs' evidence, the district court directed a verdict in

favor of Captain Graham on that claim.

II. DUE PROCESS CLAIM

A. THE ISSUE

Resolution of the due process claim depends on the answer to

a single question: Did the plaintiffs have a constitutionally

protected property interest in remaining on the rotation list? "In

assessing a claim based on an alleged denial of procedural due

process a court must first decide whether the complaining party has

been deprived of a constitutionally protected liberty or property

interest. Absent such a deprivation, there can be no denial of due

process." Economic Dev. Corp. v. Stierheim, 782 F.2d 952, 954-55

(11th Cir.1986). It is undisputed that the plaintiffs received no

notice or opportunity for a hearing prior to being removed from the

rotation call list. Therefore, as the defendants concede, if the

plaintiffs had a constitutionally protected property interest in

remaining on the rotation list, they were deprived of that interest

without due process of law.

The crux of the plaintiffs' argument is that the "mutually

explicit understandings of the parties," taken together with the

written policy, gave rise to a property interest under the

principles outlined in Board of Regents v. Roth, 408 U.S. 564, 92

S.Ct. 2701, 33 L.Ed.2d 548 (1972). The defendants argue that the

plaintiffs misconstrue the principles of Roth, at least as

clarified by the Supreme Court's subsequent decision in Bishop v.

Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Relying

on Bishop and decisions of this Court that address the creation of

property rights, the defendants argue that such property rights

must be determined by reference to state law, and that Florida law

recognizes no property interest under the circumstances of this

case. Accordingly, the defendants contend that the district court

committed reversible error by failing to hold, as a matter of law,

that no such interest existed and by denying their summary judgment

and directed verdict motions on this claim. We agree.3

B. STANDARD OF REVIEW

"State law defines the parameters of a plaintiff's property

interest for section 1983 purposes," Mackenzie v. City of

Rockledge, 920 F.2d 1554, 1559 (11th Cir.1991) and "[w]hether state

law has created a property interest is a legal question for the

court to decide." Id. (quoting Marine One, Inc. v. Manatee County,

877 F.2d 892, 894 (11th Cir.1989)). Questions of law are subject

to de novo review by this Court. E.g., Swint v. City of Wadley,

Ala., 51 F.3d 988, 994 (11th Cir.1995).

C. ANALYSIS

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33

L.Ed.2d 548 (1972), the Supreme Court discussed the basic

principles governing the existence of property interests subject to

3

The district court submitted to the jury the ultimate

question of whether the plaintiffs' constitutional rights were

violated. That was error. The function of the jury, insofar as

liability is concerned, is to decide genuine issues of material

fact, of which there are none in this case. It is the function

of the court, not the jury, to decide legal issues, such as

whether the wrecker service policy that indisputably existed in

this case created a property interest. Because there are no

genuine issues of material fact involving the wrecker service

policy claim, the legal issue of whether the policy created a

property interest is dispositive of this claim.

procedural due process protections: "To have a property interest

in a benefit, a person clearly must have more than an abstract need

or desire for it. He must have more than a unilateral expectation

of it. He must, instead, have a legitimate claim of entitlement to

it." Id. at 577, 92 S.Ct. at 2709. The Court further explained

how such a claim of entitlement may be created: "Property

interests, of course, are not created by the Constitution. Rather

they are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as

state law...." Id.

In Perry v. Sindermann, a companion case to Roth, the Supreme

Court reiterated the conceptual basis for the creation of property

rights: "A person's interest in a benefit is a "property' interest

for due process purposes if there are such rules or mutually

explicit understandings that support his claim of entitlement to

the benefit...." 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33

L.Ed.2d 570 (1972). The plaintiffs point to the phrase "mutually

explicit understandings" as support for their argument that their

relationship with the Collier County Sheriff's Office creates a

cognizable property interest, even in the absence of a contract

with that office, and even in the absence of any supporting Florida

statute, regulation, court decision, or any other source of Florida

law creating the entitlement. The plaintiffs' argument fails,

however, because it disregards the post-Roth teachings of the

Supreme Court, and it is inconsistent with the law of this Circuit

regarding the creation of constitutionally protected property

interests.

After Roth and Perry, the Supreme Court clarified the

relationship between state law and the creation of property

interests, holding that "the sufficiency of the claim of

entitlement must be decided by reference to state law." Bishop v.

Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976)

(policeman had no property interest in his continued public

employment because North Carolina law did not act to create such an

interest); see also Logan v. Zimmerman Brush Co., 455 U.S. 422,

430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) ("The hallmark of

property ... is an individual entitlement grounded in state law,

which cannot be removed except "for cause.' ") (emphasis added).

This Court has consistently applied the teachings of Bishop

in the context of due process deprivation claims by looking to

state law to determine whether a property interest has been

created. See Warren v. Crawford, 927 F.2d 559, 562-64 (11th

Cir.1991) (applying Georgia law to the question of whether the

plaintiff in a wrongful discharge case had property interest in his

county job and observing that even a "mutual understanding" cannot

create a property interest contrary to state law); Mackenzie, 920

F.2d at 1559 (holding that plaintiff had no property interest in a

building permit because Florida law creates no such interest);

Marine One, 877 F.2d at 894 (same); Shahawy v. Harrison, 875 F.2d

1529, 1532 (11th Cir.1989) (relying on Florida statutory law in

holding that physician had a property interest in the continuation

of his medical staff privileges); Schneider v. Indian River

Community College Found., 875 F.2d 1537, 1544 (11th Cir.1989)

(examining Florida statutory law and holding that plaintiffs in

wrongful discharge case had no property interest in their continued

employment at a community college radio station); Whitfield v.

Finn, 731 F.2d 1506, 1508 (11th Cir.1984) (applying Alabama law in

determining that discharged city police officer had no property

interest in his job); see also Lassiter v. Alabama A & M Univ., 28

F.3d 1146, 1148-52 (11th Cir.1994) (en banc) (looking to Alabama

law in holding that state university officials were entitled to

qualified immunity in wrongful discharge case because it was not

clearly established that university vice president had a property

interest under state law in continued employment).

The decision in Bishop and this Court's precedents make clear

that, if the plaintiffs in this case had a protected property

interest in remaining on the wrecker rotation list in Collier

County, that interest must be rooted in Florida law. The

plaintiffs do not cite, and we have not found, any decision of any

Florida court indicating that they had an entitlement to remain on

the rotation list. Neither do they cite, nor have we found, any

Florida statute, state administrative regulation, or any other

source of Florida law that might be construed to provide the

asserted entitlement.

Instead, the plaintiffs rely on the sheriff's wrecker rotation

policy itself for the creation of the alleged property right.

Their reliance is misplaced, because there is no Florida state law

authority that elevates that policy to the status of a regulation

with the force of law.4 The policy was issued in the sole

4

In contrast, we note that Florida statutory law governs the

wrecker rotation system utilized by the Florida Highway Patrol,

Fla.Stat.Ann. § 321.051 (West 1994), and entitles wrecker service

discretion of the Collier County Sheriff and no state agency with

statutory authority to do so has authorized the sheriff to create

the entitlement the plaintiffs urge us to recognize. Because any

expectations arising from the wrecker rotation policy of a county

sheriff are not grounded in Florida law, such a policy does not

give rise to a constitutionally protected property interest.

The plaintiffs rely on Fla.Stat.Ann. sections 30.15, 30.53,

and 316.640 as support for the proposition that Florida county

sheriffs have authority to promulgate wrecker service regulations

that have the effect of creating a legal entitlement. Section

30.15 defines the general "[p]owers, duties, and obligations" of

county sheriffs but contains no delegation of regulatory power.

Fla.Stat.Ann. § 30.15 (West 1988). Section 30.53 preserves the

independence of sheriffs "concerning the purchase of supplies and

equipment, selection of personnel ... setting of salaries," but

says nothing about the promulgation of regulations. Fla.Stat.Ann.

§ 30.53 (West 1988). Section 316.640 authorizes the sheriff to

"enforce all of the traffic laws" and to employ a "parking

enforcement specialist" to assist in the issuance of parking

tickets. Fla.Stat.Ann. § 316.640 (West 1989). In any event, the

operators to a hearing in connection with removal from that

particular rotation system, Fla.Stat.Ann. § 120.57 (West 1982).

However, no comparable statutory provision governs wrecker

rotation systems established by Florida county sheriffs.

Although the Collier County Wrecker Service Policy requires that

all wrecker services on the Collier County rotation list qualify

for participation in the Florida Highway Patrol rotation system,

the incorporation of Florida Highway Patrol standards into the

Collier County policy cannot bootstrap that policy into a

regulation with the force of law. Neither Florida law nor the

Florida Highway Patrol standards requires such incorporation or

elevates it into the status of an entitlement.

question is not whether the sheriff had the authority to promulgate

a wrecker rotation policy per se. Instead, the question is whether

any state decisional law, statute, or regulation having the force

of law authorized or mandated creation of the entitlement that

plaintiffs claim. None did.

Although not binding precedent in this Court, Piecknick v.

Commonwealth of Pennsylvania, 36 F.3d 1250 (3rd Cir.1994), informs

our analysis of the wrecker rotation policy at issue in this case.

In Piecknick, the Pennsylvania State Police created and distributed

a wrecker service policy designed to allocate wrecker service

referral calls within Washington County. Id. at 1253. A key issue

in the case was whether the policy itself created a

constitutionally protected property interest. As here, the policy

at issue had not been specifically authorized by, or codified in,

any state statute or regulation nor had it been approved by any

state agency with authority to do so. Id. at 1258. These factors

prompted the Piecknick court to conclude: "The guideline at issue

here is not a regulation having the force of law.... Accordingly,

Piecknick has not alleged any property interest entitled to

protection under the Due Process Clause of the Fourteenth

Amendment." Id. at 1259. We find persuasive the analysis of the

Third Circuit in Piecknick and we likewise reject the argument that

the policy involved in this case could, in and of itself, create a

property right under Florida law.

D. DURHAM v. JONES

The preceding analysis illuminates the futility of the

plaintiffs' efforts to distinguish Durham v. Jones, 698 F.2d 1179

(11th Cir.1983), this circuits's only precedent addressing property

interests in the context of a wrecker rotation list. In Durham, a

wrecker service operator brought a section 1983 action based on a

Georgia sheriff's refusal to place him on the wrecker rotation list

that the sheriff informally maintained. Id. at 1180. We held that

the plaintiff did not have a property interest in being on that

list. Id. at 1181.

The plaintiffs point to two facts in an attempt to

distinguish this case from Durham: (1) a written policy is

involved in this case, and (2) unlike the Durham plaintiff, the

plaintiffs in this case have already received the benefits of

wrecker service referrals. Yet these factual distinctions can lead

to no difference in the result unless they operate to create a

constitutionally protected property interest where there would

otherwise be none. As to the first factual distinction, we know of

no authority for the proposition that the act of reducing a wrecker

rotation policy to writing can create a legally enforceable

entitlement. There is no statute of frauds doctrine in procedural

due process law. As a matter of logic, it does not follow from the

fact that no written policy was involved in the Durham case where

no property interest was found, that the presence of a written

policy would create such an interest. As to the second factual

distinction, it is axiomatic that the mere receipt of a benefit

from the government does not automatically create an entitlement to

that benefit. Therefore, the factual distinctions urged by the

plaintiffs do not persuade us to reach a result different from that

in Durham.

E. "WRECKER ROTATION" CASE LAW IN OTHER CIRCUITS

Our holding in Durham, and our holding in this case, is

consistent with the law of other circuits that have considered the

issue of property rights in the context of wrecker rotation lists.

The Second, Third, Fourth, Fifth, Seventh, and Tenth Circuits have

addressed this issue. The general principle that emerges from all

of the decisions is that:

Where a court has found a property interest in remaining on a

rotation list, the plaintiff has alleged a claim of

entitlement supported or created by a formal and settled

source such as a state statute or regulatory scheme. Absent

such an entitlement grounded in state law, courts have not

found a protected property interest in remaining on a wrecker

rotation list.

Blackburn v. Marshall, 42 F.3d 925, 938 (5th Cir.1995). To

illustrate the application of this principle, and to illuminate our

own analysis, we review briefly the cases from each of these

circuits.

In the most recent case of this series, the Seventh Circuit

considered whether a wrecker service company had a property

interest in remaining on a city rotation list. O'Hare Truck Serv.,

Inc. v. City of Northlake, 47 F.3d 883 (7th Cir.1995). The wrecker

service company in O'Hare claimed that the City of Northlake

violated its procedural due process rights when the city removed it

from the rotation list without providing an opportunity for a

hearing. Id. at 884. Although no statute or ordinance governed

the rotation system, the company argued nonetheless that it had a

protected property interest in remaining on the list. The court

rejected that argument stating, "We have, of course, found property

interests arising from internal rules or regulations, but only when

they have the force of law." Id. at 886. Finding no Illinois

authority supporting the conclusion that Northlake's policy and

practice concerning the rotation list had the force of law, the

Seventh Circuit held that the wrecker service company had no

property interest in remaining on the list. Id.

As noted previously, the Fifth Circuit articulated the general

principle governing these cases in Blackburn v. Marshall, 42 F.3d

at 938, another case in which the plaintiff claimed a property

interest in remaining on a local law enforcement agency's wrecker

rotation list. The Blackburn Court drew from Roth, Perry, Bishop,

Logan, and applicable Fifth Circuit decisions the principle that

constitutionally protected property interests must be grounded in

state law. Applying that principle to the facts, the court

concluded, "Because there apparently is no Texas or local statute,

ordinance, or regulatory scheme governing the wrecker list ... we

hold that Blackburn has failed to allege a property interest in

remaining on the wrecker rotation list." Blackburn, 42 F.3d at

941.

The Third Circuit applied the same principle in Piecknick, 36

F.3d at 1257-59. Distinguishing wrecker rotation cases in which a

property interest had been found, the court stated: "These cases

are distinguishable. In all of them, a state statute or regulation

gave a towing operator a property interest. Here, there is no

Pennsylvania statute or regulation governing towing or wrecker

services." Id. at 1257 (footnote omitted). The court also

considered and rejected, as we do, the contention that the

applicable wrecker service policy at issue could, of itself, create

a protected property interest. Id. at 1259. Concluding that that

policy was "not a regulation having the force of law" and noting

the absence of "any other governing state law or regulation" to

support the asserted entitlement, the court held that the plaintiff

failed to establish a property interest protected by the Fourteenth

Amendment. Id.

The Second Circuit considered whether a wrecker referral

system created a property right in White Plains Towing Corp. v.

Patterson, 991 F.2d 1049 (2d Cir.), cert. denied, --- U.S. ----,

114 S.Ct. 185, 126 L.Ed.2d 144 (1993). In that case, the state

police divided a section of a state highway into three zones,

assigning exclusive towing referral rights to a single wrecker

service within each zone. Under the system, the dispatcher called

the assigned wrecker unless the disabled motorists requested a

different wrecker service. The plaintiff brought a section 1983

due process claim when his exclusive zone assignment was

terminated. The Second Circuit emphasized that the wrecker

assignment system was not authorized by or codified in any New York

statute or regulation and held that "regardless of their unilateral

hopes or expectations, plaintiffs had no cognizable property

interest in continued towing referrals ... and the mere termination

of their status thus did not deprive them of a

due-process-protected interest." Id. at 1062.

Applying the same principle in a different state law context,

the Fourth Circuit has recognized that a wrecker service company

has a constitutionally protected property interest in remaining on

a rotation list when state regulations require maintenance of the

list for the stated purpose of providing companies with an equal

opportunity to obtain the referral business. Pritchett v. Alford,

973 F.2d 307 (4th Cir.1992). That case involved a section 1983 due

process claim brought by a wrecker service company that had been

removed from a rotation list. The rotation list was governed by

extensive state regulations that "required every highway patrol

district to establish wrecker zones and "wrecker-rotation' lists

for the zones ... to ensure that all wrecker services on the list

have an equal opportunity to the towing business arising from the

rotation list." Id. at 317. As the court explained, "Being on

[the list] by virtue of this state regulatory regime insured that

it was a legally enforceable entitlement...." Id. (emphasis

added). As we have noted, no such state regulatory regime is

present in this case.

Likewise, the Tenth Circuit has recognized a protected

property interest in continued wrecker referrals when the referral

system was directly governed by a state wrecker statute mandating

that referrals be made on an equal basis. Abercrombie v. City of

Catoosa, 896 F.2d 1228 (10th Cir.1990). The plaintiff in

Abercrombie brought a section 1983 due process claim after he was

removed from a city's wrecker rotation list. To support his claim

of entitlement, the plaintiff relied on the state wrecker statute,

which required the city "to make wrecker referrals on an equal

basis as nearly as possible" to licensed wreckers in or near the

city limits. Id. at 1232. Closely examining the applicable

statute, the court concluded that it "created a property interest

in wrecker referrals in favor of the plaintiff." Id. As

previously explained, no analogous Florida statute operates to

create a property interest in this case.

In summary, every circuit to date that has considered the

creation of property interests in the context of wrecker rotation

lists has reached a decision in harmony with the principle recently

distilled by the Fifth Circuit in Blackburn: The existence of a

property right in such a case turns on whether the alleged claim of

entitlement is supported or created by state law such as a state

statute or regulatory scheme or decisional law. We see no reason

for this circuit to depart from that principle, which is entirely

consistent with our Durham decision.

Because the plaintiffs have not, and apparently cannot, point

to any Florida statute, state administrative regulation, or any

other source of Florida law that provides the asserted entitlement

in remaining on the wrecker rotation list, we hold that they have

failed to allege a property interest protected by the Due Process

Clause of the Fourteenth Amendment. Accordingly, the judgment of

the district court must be reversed with respect to the plaintiffs'

claims arising from their removal from the list.5

5

In addition to the property interest claim, the plaintiffs'

second amended complaint averred a procedural due process liberty

interest claim, a substantive due process claim, and an equal

protection claim resulting from their removal from the wrecker

rotation list.

The plaintiffs rely on Cowan v. Corley, 814 F.2d 223

(5th Cir.1987) as support for their argument that they had a

liberty interest in remaining on the rotation list. This

reliance is misplaced. In Cowan, the Fifth Circuit held

that it was error to dismiss a wrecker service's liberty

interest claim when "[a]ll wrecker assignments, including

those made on an owner-preference basis were routed through

the sheriff's office," id. at 225, which allegedly resulted

in the plaintiff's "exclusion from all wrecker calls

III. UNREASONABLE SEIZURE CLAIM

David Solow's cross-appeal of the district court's decision

to grant Captain Graham's directed verdict motion on the

unreasonable seizure claim need not detain us long. Solow's claim

arises from a dispute he had at the scene of an automobile accident

with Collier County Deputy Sheriff Charles Campbell, who is not a

defendant in this case. When Deputy Campbell arrived at the scene,

Solow had already loaded a wrecked vehicle for towing. Deputy

Campbell informed Solow that the vehicle would need to be unloaded

to facilitate the investigation. Solow became upset at the

originating on public property," id. at 227 (emphasis

added). Here, the removal of the plaintiffs from the

rotation list does not affect their right to operate wrecker

service businesses, to remove vehicles from public property

at the request of the owners, or to provide wrecker services

to any member of the public who requests such services. In

short, the removal of the plaintiffs from the rotation list

does not cognizably burden the plaintiffs' liberty "to

follow a chosen profession free from unreasonable

governmental interference," Greene v. McElroy, 360 U.S. 474,

492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959), or "to work

for a living in the common occupations of the community,"

Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed.

131 (1915).

The plaintiffs' substantive due process claim is

palpably without merit. Any expectations the plaintiffs may

have had regarding the rotation list do not approach a right

"implicit in the concept of ordered liberty" as required for

the triggering of substantive due process protection. See

McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994)

(quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct.

149, 152, 82 L.Ed. 288 (1937); see also Lovins v. Lee, 53

F.3d 1208, 1209 (11th Cir.1995) (discussing the restricted

authority of federal courts to expand substantive due

process rights).

The plaintiffs' equal protection claim is equally

meritless, as they have "neither asserted nor established

the existence of any suspect classification or the

deprivation of any fundamental constitutional right."

Hurrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 199, 99

S.Ct. 1062, 1065, 59 L.Ed.2d 248 (1979).

prospect of losing the towing job, but unloaded the vehicle when

Deputy Campbell directed him to do so. Subsequently, Deputy

Campbell completed an affidavit seeking Solow's arrest. The

warrant issued and Solow was arrested on a charge of tampering with

evidence in violation of Fla.Stat. section 918.13. Following his

arrest, Solow did not sue Deputy Campbell; instead, he sued

Captain Graham.

At the close of the plaintiffs' proof in this case, the

district court granted Captain Graham's motion for a directed

verdict on the unreasonable seizure claim on the basis that

probable cause existed to support the arrest. In ruling on this

motion, and in response to argument from Solow's attorney, the

court stated: "I think you're wrong, counsel. Once a warrant has

been issued, at least in this circuit, that is probable cause.

It's absolute probable cause as far as I know about it. I don't

see how you can get around it." The district court was mistaken,

because the issuance of a warrant cannot transform an

unconstitutional arrest into a constitutional one, nor can it

insulate from liability an officer who obtains the warrant. E.g.,

Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271

(1986). However, the constitutionality of Solow's arrest is

irrelevant insofar as the defendant in this case, Captain Graham,

is concerned, unless a sufficient connection exists between Captain

Graham and the arrest.

The record shows no such connection. Deputy Campbell

testified that his supervisor, Sergeant Greve, directed him to take

information to the State Attorney's Office to determine whether

there was sufficient evidence for prosecution. It is undisputed

that after consultation with an Assistant State Attorney, Deputy

Campbell completed and signed the affidavit seeking Solow's arrest.

Although the testimony of Captain Graham is somewhat ambiguous on

this point, it appears from the testimony that the extent of his

involvement in the matter was limited to reviewing the facts with

Deputy Campbell, telling him to proceed with the investigation and

to take his findings to the State Attorney's office, and discussing

the incident with in-house counsel at the Collier County Sheriff's

Office.

Because Solow failed to offer sufficient evidence to present

a jury issue on whether Captain Graham caused Deputy Campbell to

obtain the warrant, we affirm the trial court's decision to direct

a verdict in Graham's favor on this claim.6

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

respecting the removal of the plaintiffs from the wrecker rotation

list is REVERSED, the judgment of the district court with respect

to David Solow's unreasonable seizure claim is AFFIRMED, and the

case is REMANDED for entry of a judgment in favor of the defendants

on all claims.

6

Because both defendants are entitled to judgments in their

favor as to all the claims involved, their other arguments and

the plaintiffs' cross-appeal contending that the district court

erred in dismissing the defendants in their individual capacities

are moot.