Petition for Writ of Certiorari — Dennis Lemma, Sheriff, Seminole County, Florida, Petitioner v. Seana Barnett

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-12238

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D.C. Docket No. 6:15-cv-00469-GKS-DCI

SEANA BARNETT,

Plaintiff-Appellant,

versus

SARA MACARTHUR, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 15, 2020)

Before JORDAN, GRANT, and DUBINA, Circuit

Judges.

JORDAN, Circuit Judge:

In the early morning hours of March 15, 2014,

Seminole County Deputy Sara MacArthur arrested

Seana Barnett on suspicion of driving under the influence of alcohol and transported her to the Seminole

County Jail. At the Jail, Ms. Barnett twice took a

breathalyzer test, and both times the results were

a blood alcohol level of 0.000. Though the tests

App. 2

established that Ms. Barnett was not intoxicated by

alcohol and there was no evidence that she was impaired by any other drug or substance, she was detained for eight hours—even after she posted bond—

pursuant to the DUI eight-hour “hold policy” of the

Seminole County Sheriff ’s Office. Two months later,

the state entered a nolle prosequi on the DUI charge

against Ms. Barnett.

Ms. Barnett sued Deputy MacArthur and the

Sheriff of Seminole County under 42 U.S.C. § 1983, alleging that they violated her Fourth Amendment

rights by falsely arresting her and by unlawfully detaining her. She also asserted state-law claims for

false imprisonment and malicious prosecution. Deputy

MacArthur and the Sheriff moved for summary judgment on all claims. The district court denied qualified

immunity to Deputy MacArthur, and we affirmed

that ruling on interlocutory appeal. See Barnett v.

MacArthur, 715 F. App’x 894 (11th Cir. 2017).

The district court ultimately granted summary

judgment in part against Ms. Barnett but allowed the

§ 1983 unlawful arrest and detention claim against

Deputy MacArthur and the state-law false imprisonment claim against the Sheriff to proceed to trial. As

relevant here, the district court ruled that the Sheriff—as a representative of the County—could not be

liable under § 1983 pursuant to Monell v. Department

of Social Services, 436 U.S. 658 (1978), because his

“hold policy” was permitted by Florida law. The jury ultimately returned a verdict in favor of the defendants

on the two claims that survived summary judgment.

App. 3

Ms. Barnett appeals the district court’s grant of

summary judgment on some of her claims and the denial of her motion for a new trial following the jury’s

verdict on the remaining two claims. We reverse the

entry of summary judgment in favor of the Sheriff on

the Monell claim related to Ms. Barnett’s detention,

but summarily affirm in all other respects.1

I

We begin by setting out the evidence presented at

summary judgment on the detention claim against the

Sheriff under Monell.

A

On March 15, 2014, at around 6:00 p.m., Ms. Barnett

went out to dinner with her friend Alicia Norwood in

downtown Orlando. After dinner, they walked around

the area. At the end of the evening, Ms. Barnett drove

Ms. Norwood home, from downtown Orlando back to

Seminole County, in Ms. Norwood’s car.

On the drive home, at around 3:25 a.m., Ms. Barnett

stopped for about 8 to 10 seconds at a green light. She

stopped to assess which way to turn because it was

dark, she was unfamiliar with the area, and Ms.

Norwood was providing confusing directions, initially

1

For example, the district court correctly granted summary

judgment to the Sheriff on Ms. Barnett’s state-law malicious prosecution claim. That claim, which requires a showing of malice, is

barred by Fla. Stat. § 768.28(9)(a). See Weiland v. Palm Beach

Cty. Sheriff ’s Office, 792 F.3d 1313, 1330 (11th Cir. 2015).

App. 4

telling her to make a left and then changing her mind

about which way to go to take a shortcut home. There

were no other cars nearby.

After seeing the vehicle stop at a green light, Deputy MacArthur activated her in-car video and followed

Ms. Barnett for a short distance before initiating a traffic stop. According to Deputy MacArthur, she observed

Ms. Barnett driving about 10 miles under the speed

limit (35 miles per hour in a 45-miles-per-hour zone),

drifting from left to right within her lane, and varying

her speed between 35 and 40 miles per hour. Ms. Barnett

disputes that she was driving erratically. She contends

that the video shows no perceptible drifting in her lane

and does not show her varying her speed, other than

when she slowed down to turn left. For purposes of our

discussion, we accept Ms. Barnett’s version of events.

When Deputy MacArthur approached the car and

spoke to Ms. Barnett, she asked for her driver’s license,

registration, and proof of insurance. Ms. Barnett provided her driver’s license, but according to Deputy

MacArthur, she needed to be reminded again to provide her registration and proof of insurance. She attempted to open the glove compartment to retrieve

the documents, but “fumbled” with the button and

was unable to open it. The parties dispute whether Ms.

Barnett’s eyes were “glassy” and “bloodshot,” so we

assume they were not.

Before it became clear to Ms. Barnett that she was

being investigated for driving under the influence,

Deputy MacArthur asked her if she had any medical

App. 5

issues. She said no, thinking that she was being asked

if she had any medical conditions—such as a seizure

disorder—that would prevent her from driving safely.

Deputy MacArthur then asked Ms. Barnett if she

had been drinking, and she responded that she had a

glass of wine with dinner at around 6:00 p.m. that

evening. After that, Deputy MacArthur asked if she

was willing to participate in field sobriety exercises.

Ms. Barnett agreed, but she did not know what the

exercises would entail. Deputy MacArthur proceeded

to conduct horizontal and vertical gaze nystagmus

evaluations, a walk and turn exercise, a one-leg stand,

a finger-to-nose test, and a number-counting exercise.

Upon realizing what the tests involved, Ms. Barnett repeatedly told Deputy MacArthur that her performance

could be affected by injuries she sustained in an automobile accident in October 2013, including muscle

tears in her leg for which she was going to physical

therapy.2

This was Deputy MacArthur’s first or second time

making a DUI arrest, and the parties dispute whether

she explained, administered, and interpreted the results of the field sobriety tests properly. The parties

also dispute how well Ms. Barnett performed on the

field sobriety tests, some of which occurred outside the

2

Ms. Barnett had also undergone neck surgery just two

days earlier. Ms. Barnett asserts in her brief that she told Deputy

MacArthur about this surgery after learning what the field sobriety tests entailed, but it is unclear from the record whether Deputy MacArthur was informed about the neck surgery. See D.E. 64

at 211.

App. 6

view of Deputy MacArthur’s dashboard video camera.

Deputy MacArthur claims that she witnessed multiple

indicators of impairment, while Ms. Barnett denies

there were any such indicators. Again, we accept Ms.

Barnett’s factual assertions.

Deputy MacArthur arrested Ms. Barnett for driving under the influence. On the way to the Seminole

County Jail, Deputy MacArthur told Ms. Barnett that

she thought she was impaired because of alcohol.

At her deposition, Deputy MacArthur testified

that there was no indication that Ms. Barnett had been

using drugs. Specifically, she did not observe any evidence of drugs in Ms. Barnett’s vehicle, find any drugs

in her purse, or smell marijuana in her car. Ms. Barnett,

moreover, did not slur or speak in a manner that suggested she was impaired. Indeed, Deputy MacArthur

testified that she did not have probable cause to believe

that Ms. Barnett was under the influence of drugs. See

D.E. 64 at 104 (“Q. Well, you didn’t have any probable

cause to believe she was under any drugs or any kind

of prescription medicine or anything when you arrested her, correct? . . . A. Correct.”). In the arrest and

offense reports, Deputy MacArthur indicated that the

arrest was alcohol-related and that any drug use was

unknown: “Alcohol Related: Y”; “Drug Related: U.” See

D.E. 35-4 at 2; D.E. 64-14 at 1.

B

When Ms. Barnett arrived at the Jail, Keith

Betham, the breath test operator, observed her for 20

App. 7

minutes and then conducted breathalyzer testing. Ms.

Barnett provided two breath samples, both of which

registered 0.000 for alcohol. Mr. Betham testified at his

deposition that after observing Ms. Barnett, he did not

see any signs that she was impaired by drugs. He nevertheless obtained a urine sample from Ms. Barnett at

Deputy MacArthur’s request. The urine test results,

which came back around four weeks later, confirmed

that Ms. Barnett did not have any drugs in her system.

Even though the breathalyzer tests established

that Ms. Barnett was not intoxicated, she was required

to remain at the jail for eight hours from the time of

her arrest pursuant to the “hold policy” of the Seminole

County Sheriff ’s Office. Mr. Betham testified that under this policy, even if a DUI arrestee’s breathalyzer

test results are 0.000, and even if there is no indication

that the arrestee is under the influence of drugs, she

still must wait eight hours from the time of the arrest

to be released—even if she posts bond.

Shane Love, the Captain of Operations at the Jail,

confirmed at his deposition that it is the policy of the

Seminole County Sheriff ’s Office to detain DUI arrestees for at least eight hours, even if their breathalyzer test results are 0.000. Deputy MacArthur

similarly testified that once she arrested Ms. Barnett,

she was going to have to stay in jail for eight hours

pursuant to this policy.

In accordance with the hold policy, Ms. Barnett’s

jail arrest card stated that she was arrested at 4:10

a.m. and noted that she “can go at 12:10”—eight hours

App. 8

later. D.E. 64-17. Ms. Barnett ultimately was released

a little over eight hours from the time of her arrest, at

1:13 p.m., despite having posted bond at 10:58 a.m.

II

Ms. Barnett challenges the district court’s grant

of summary judgment in favor of the Sheriff on her

§ 1983 detention claim under Monell. She argues that

she was unlawfully detained pursuant to the Sheriff ’s

hold policy, which violates the Fourth Amendment because it requires continued detention even where, as

here, there is no probable cause for such detention. Exercising plenary review, see, e.g., Ft. Lauderdale Food

Not Bombs v. City of Ft. Lauderdale, 901 F.3d 1235,

1239 (11th Cir. 2018), and viewing the evidence in the

light most favorable to Ms. Barnett, see, e.g., Scott v.

Harris, 550 U.S. 372, 378 (2007), we agree with her

that the district court should not have entered summary judgment in favor of the Sheriff on her detention

claim.3

A

The detention claim against the Sheriff in his official capacity is in effect a claim against Seminole

3

Ms. Barnett does not (and cannot) argue that she was arrested as a result of the Sheriff ’s hold policy. She asserts only that

she was unlawfully detained based on the policy. So, for purposes

of our discussion on the Monell claim, we assume without deciding at the summary judgment stage that Deputy MacArthur had

probable cause to arrest Ms. Barnett.

App. 9

County. See Monell, 436 U.S. at 690 n.55 (explaining

that “official capacity suits generally represent only

another way of pleading an action against an entity of

which an officer is an agent”). A municipality can be

sued directly under § 1983 when one of its customs,

practices, or policies causes a constitutional injury. See

id. at 690. The plaintiff must demonstrate, however,

that the municipality was the “moving force” behind

the injury. See Bd. of Cty. Comm’rs of Bryan Cty., Okla.

v. Brown, 520 U.S. 397, 404 (1997). As we explain, Ms.

Barnett presented sufficient evidence that she was unconstitutionally detained as a result of the Sheriff ’s

hold policy to survive summary judgment.

The Fourth Amendment, in relevant part, protects

“[t]he right of the people to be secure in their persons

. . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. One of the Amendment’s protections

is the right to be free from arrest without probable

cause. See Kingsland v. City of Miami, 382 F.3d 1220,

1232 (11th Cir. 2004) (“Plainly, an arrest without probable cause violates the right to be free from an unreasonable search under the Fourth Amendment.”)

(citation and internal quotation marks omitted).

Probable cause exists when “an arrest is objectively reasonable based on the totality of the circumstances.” Id. “This standard is met when the facts and

circumstances within the officer’s knowledge, of which

he or she has reasonably trustworthy information,

would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed,

is committing, or is about to commit an offense.” Id.

App. 10

(citation and internal quotation marks omitted).

Stated differently, probable cause to arrest “requires

only a probability or substantial chance of criminal activity, not an actual showing of such activity.” D.C. v.

Wesby, 138 S. Ct. 577, 586 (2018) (citation and internal

quotation marks omitted). An officer’s “on-the-scene

assessment of probable cause provides legal justification for arresting a person suspected of crime, and for

a brief period of detention to take the administrative

steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103,

113–14 (1975). As we have noted, we assume for summary judgment purposes that Deputy MacArthur had

probable cause to arrest Ms. Barnett.

But probable cause to make a warrantless arrest

is not the end of the matter, for “[d]etention [in jail] . . .

is a type of seizure of the person to which Fourth

Amendment protections attach.” Alcocer v. Mills, 906

F.3d 944, 953 (11th Cir. 2018). Just as “probable cause

may cease to exist after a warrant is issued,” United

States v. Grubbs, 547 U.S. 90, 95 n.2 (2006), it may also

dissipate after an officer makes a warrantless arrest.

See, e.g., BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.

1986) (“The continuation of even a lawful arrest violates the Fourth Amendment when the police discover

additional facts dissipating their earlier probable

cause.”); McConney v. City of Houston, 863 F.2d 1180,

1185 (5th Cir. 1989) (“[O]nce a responsible officer actually does ascertain beyond a reasonable doubt that

one who has been so arrested is not intoxicated, the

arrestee should be released.”); Nicholson v. City of

Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (“It is

App. 11

well-established that a person may not be arrested, or

must be released from arrest, if previously established

probable cause has dissipated.”) (citation and internal

quotation marks omitted); 3 Wayne R. LaFave, Search

and Seizure: A Treatise on the Fourth Amendment

§ 5.3(d) (5th ed. 2012) (“Even if a particular arrest was

lawfully made upon probable cause to believe that the

person arrested had committed an offense, additional

information coming to the attention of the police after

the arrest may establish an absence of probable cause,

in which case the arrested person is entitled to be released.”). Cf. Thompson v. Olson, 798 F.2d 552, 556 (1st

Cir. 1986) (addressing false imprisonment claim under

Maine law: “following a legal warrantless arrest based

on probable cause, an affirmative duty to release arises

only if the arresting officer ascertains beyond a reasonable doubt that the suspicion (probable cause) which

forms the basis for the privilege to arrest is unfounded”).

B

It is undisputed that the Sheriff ’s hold policy

mandates an eight-hour detention of a person like Ms.

Barnett who is charged with a DUI—even if her

breathalyzer test results show that her blood alcohol

content is .000 and even if she posts bond. The summary judgment evidence in the district court (including the testimony of Mr. Betham and Captain Love)

makes that clear, and the Sheriff concedes the point in

his brief. See Answer Br. at 20–28.

App. 12

In granting summary judgment in favor of the

Sheriff, the district court reasoned that the hold policy

is consistent with Florida Statute § 316.193(9), which

allows the option of holding a person for eight hours

after a DUI arrest. See D.E. 111 at 18. This constituted

error for two independent reasons. First, unlike the

hold policy, § 316.193(9) does not mandate the blanket

eight-hour detention of all DUI arrestees. Second, even

if it did, the statute could be unconstitutional as applied to Ms. Barnett through the Sheriff ’s hold policy.

The language of § 316.193(9) is as follows:

A person who is arrested for a violation of this

section may not be released from custody:

(a) Until the person is no longer under the

influence of alcoholic beverages, any

chemical substance set forth in s. 877.111,

or any substance controlled under chapter 893 and affected to the extent that his

or her normal faculties are impaired;

(b) Until the person’s blood-alcohol level or

breath-alcohol level is less than 0.05; or

(c) Until 8 hours have elapsed from the time

the person was arrested.

(emphasis added). Subsections (a), (b), and (c) are separated by an “or,” and that word is “almost always

disjunctive[.]” United States v. Woods, 571 U.S. 31, 45

(2019). So, as we explained in Deputy MacArthur’s interlocutory appeal, “[§] 316.193 simply requires one of

three conditions to be met to ensure sobriety prior to

releasing a DUI arrestee, one of which is an eight

App. 13

hours lapse from the time of arrest and one of which is

a blood-alcohol level below 0.05.” Barnett, 715 F. App’x

at 908. Unlike the Sheriff ’s hold policy, pursuant to

which officers are required to detain DUI arrestees

for eight hours, § 316.193 gives officers discretion in

determining when to release a DUI arrestee and allows for three release options (only one of which is an

eight-hour hold). See id. “When an officer exercises this

discretion under Florida law, the Constitution requires

her to exercise her discretion in a way that does not

violate a person’s Fourth Amendment rights.” Id.

But even if the Sheriff ’s hold policy were consistent with (or mandated by) § 316.193, the existence

of a state statute does not answer the federal constitutional question. It has long been understood that a

state law must conform to the Constitution, and if it

does not do so it must yield. See, e.g., M’Culloch v.

Maryland, 17 U.S. 316, 361 (1819) (explaining that,

due to the Supremacy Clause, “the states are prohibited from passing any acts which shall be repugnant to

a law of the United States”). The same goes for a municipal ordinance or policy. See, e.g., Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 58–59 (1991) (holding that a

county policy which provided for probable cause determinations within two days of a warrantless arrest, exclusive of weekends and holidays, was inconsistent

with the Fourth Amendment). So, the fact that

§ 316.193 permits holding a DUI arrestee for up to

eight hours does not immunize the Sheriff ’s hold policy, as applied to Ms. Barnett, from constitutional scrutiny. See Cooper v. Dillon, 403 F.3d 1208, 1222–23 (11th

App. 14

Cir. 2005) (holding that a city could be liable for enforcing an unconstitutional policy, even though the policy

was consistent with a Florida statute, because the statute itself was unconstitutional). See also Christensen v.

Park City Mun. Corp., 554 F.3d 1271, 1278–80 (10th

Cir. 2009) (holding that a municipality can be held liable under Monell if its ordinance is applied unconstitutionally); Amnesty America v. Town of West Hartford,

361 F.3d 113, 125–26 (2d Cir. 2004) (same).4

On this record, Ms. Barnett’s detention claim

against the Sheriff must be decided by a jury. Viewing

the evidence in the light most favorable to her, Ms.

Barnett was kept in custody pursuant to (and because

of ) the Sheriff ’s mandatory eight-hour hold policy after her two breathalyzer test results registered bloodalcohol readings of 0.000 and after she posted bond.

The only remaining question then, is whether a reasonable jury could find that the hold policy, as applied

to Ms. Barnett, violated her Fourth Amendment rights.

On this issue, we are persuaded by the Fifth Circuit’s

opinion in McConney.

In McConney, the plaintiff claimed that after being arrested for public intoxication, he was unlawfully

detained pursuant to a city policy requiring anyone

who was arrested on such a charge to be held for four

hours, even after the officers learned that he was not

4

The Sheriff cannot assert qualified immunity because he

is being sued in his official capacity under a municipal liability

theory. See Owen v. City of Indep., 445 U.S. 622, 638 (1980) (holding

that a “municipality may not assert the good faith of its officers

or agents as a defense to liability under § 1983”).

App. 15

intoxicated. See 863 F.2d at 1185. The Fifth Circuit affirmed the district court’s entry of judgment against

the city in accordance with the jury’s verdict. See id. at

1188. It explained that “a person may constitutionally

be detained for at least four or five hours following a

lawful warrantless arrest for public intoxication without the responsible officers having any affirmative

duty during that time to inquire as to whether the

person is intoxicated, even if requested to do so.” Id. at

1185. But, the Fifth Circuit cautioned, “once a responsible officer actually does ascertain beyond a reasonable doubt that one who has been so arrested is in fact

not intoxicated, the arrestee should be released.” Id.

The Fifth Circuit based its decision in part on a First

Circuit state-law false imprisonment case involving

suspected intoxication, which had adopted this same

standard from the Restatement (Second) of Torts

§ 134, comment f. See id. (citing Thompson, 798 F.2d at

556).

We agree with the Fifth Circuit. Following a warrantless DUI arrest based on probable cause, officers

do not have an affirmative Fourth Amendment duty

to investigate or continually reassess whether the arrestee is or remains intoxicated while in custody. But

where, as here, the officers seek and obtain information which shows beyond a reasonable doubt that

the arrestee is not intoxicated—in other words, that

probable cause to detain no longer exists—the Fourth

Amendment requires that the arrestee be released.

Here, as in McConney, a reasonable jury viewing the

evidence in the light most favorable to Ms. Barnett

App. 16

could find that her continued detention pursuant to the

Sheriff ’s eight-hour hold policy violated the Fourth

Amendment.5

First, a jury could find that the officers at the Seminole County Jail obtained information showing beyond

a reasonable doubt that there was no longer probable

cause to continue holding Ms. Barnett. Her two breathalyzer test results resulted in blood-alcohol readings

of 0.000, which indicated that she had no alcohol whatsoever in her system. And Deputy MacArthur and

Mr. Betham admitted there was no evidence that Ms.

Barnett—who did not smell of marijuana or slur her

words—was under the influence of drugs.

Second, a jury could easily find that the Sheriff ’s

hold policy was the “moving force” behind the Fourth

Amendment violation (i.e., Ms. Barnett’s continued detention). See Brown, 520 U.S. at 404. Ms. Barnett’s jail

arrest card stated that she “can go at 12:10,” eight

hours after her arrest, which is consistent with the

mandatory hold policy. Mr. Betham and Captain Love

testified that DUI arrestees are detained for eight

hours under the hold policy. And, Mr. Betham told Ms.

Barnett that although there was nothing in her system, she had to stay in custody for eight hours.

One of our own cases supports the conclusion we

reach. In Alcocer v. Mills, we held under the Fourth

Amendment that officials could not continue to hold a

5

Our holding does not mean that the hold policy is categorically unconstitutional. That is a question we do not and need not

decide.

App. 17

person arrested for driving on a suspended license after she posted bond unless they could “show they had

probable cause” to believe she had committed another

offense. See Alcocer, 906 F.3d at 953–54 (“Any facts

that might have underpinned the conclusion that [the

plaintiff ] was in the United States illegally were not a

part of the probable cause that supported [her] original

detention, which was for the misdemeanor of driving

with a suspended license. For this reason, independent

probable cause was required to warrant [the plaintiff ’s] continued detention after she had satisfied all

conditions of her bond on her original detention.”).

Alcocer is consistent with our conclusion that where

police have no probable cause to detain an arrestee, the

arrestee must be released.6

C

The Sixth Circuit has rejected the argument

that “[w]hen subsequent developments disprove the

correctness of a previous police determination that

probable cause exists, . . . the police no longer have

6

In State v. Atkinson, 755 So. 2d 842, 845 (Fla. 5th DCA

2000), Florida’s Fifth District Court of Appeal held that

§ 316.193(9) “is not unconstitutional in allowing temporary detention of an apparently drunk driver, nor does such detention give

rise to any viable claim of double jeopardy by the detainee at any

subsequent criminal trial.” We have considered Atkinson, but conclude that it is distinguishable because in that case the arrestees,

unlike Ms. Barnett, had “refused a breath test or were measured

as having an unlawful alcohol level.” Id. at 843. There was, in

other words, no evidence in Atkinson demonstrating beyond a

reasonable doubt that the arrestees were not intoxicated.

App. 18

justification under the Fourth Amendment to continue

the incarceration, and must release the suspect.” Peet

v. City of Detroit, 502 F.3d 557, 565 (6th Cir. 2007). We

choose not to follow Peet for two reasons.

First, the Sixth Circuit incorrectly suggested that

there were no cases or authorities supporting the

Fourth Amendment proposition it rejected. See id.

When Peet was decided in 2007, however, the Fifth and

Seventh Circuits had already held under the Fourth

Amendment that a person must be released from custody if the probable cause that existed for her arrest

has dissipated. See BeVier, 806 F.2d at 128; McConney,

863 F.2d at 1185. For some reason, the Sixth Circuit

did not acknowledge, consider, or discuss those decisions.

Second, the Sixth Circuit was concerned that investigators would have an affirmative duty to re-evaluate

the matter of probable cause with every new piece of

information or evidence they received. See id. The

Fourth Amendment standard we announce, borrowed

from the McConney decision of the Fifth Circuit, does

not place on police officers an affirmative and independent duty to further investigate in order to continually reassess the matter of probable cause in

warrantless arrest cases. It only requires that the officers release an arrestee if evidence they obtain

demonstrates beyond a reasonable doubt that there

is no longer probable cause for the detention. That

standard, we believe, properly balances the competing

liberty interests and law enforcement concerns and remains faithful to the Fourth Amendment’s textual

App. 19

command that seizures and detentions be reasonable.

See Riley v. California, 573 U.S. 373, 381 (2014) (“As

the text makes clear, the ultimate touchstone of the

Fourth Amendment is reasonableness.”) (citation and

internal quotation marks omitted).7

D

One final matter warrants discussion. The Sheriff

contends that he cannot be liable under Monell because the jury found in favor of Deputy MacArthur on

the individual Fourth Amendment detention claim

against her. As the Sheriff sees things, the jury verdict

means that there was no Fourth Amendment violation,

and without a Fourth Amendment violation there cannot be municipal liability under Monell. See Answer Br.

at 17–20.

The syllogism is superficially seductive, but on

this record it does not work. It is true, as the Sheriff

says, that “an inquiry into a governmental entity’s custom or policy is relevant only when a constitutional

deprivation has occurred.” Rooney v. Watson, 101 F.3d

1378, 1381 (11th Cir. 1996). But the problem for the

Sheriff is that the jury verdict in favor of Deputy MacArthur does not constitute a finding that Ms. Barnett

7

We express no view on what the Fourth Amendment may

or may not require when an arrest is made pursuant to a valid

warrant and the arrestee claims that new evidence has caused

probable cause to dissipate. For one case addressing such a scenario, see Brady v. Dill, 187 F.3d 104, 111 (1st Cir. 1999).

App. 20

suffered no Fourth Amendment violation as a result of

the detention.

We have held that “Monell . . . and its progeny do

not require that a jury must first find an individual defendant liable before imposing liability on local government.” Anderson v. City of Atlanta, 778 F.2d 678, 686

(11th Cir. 1985). For example, municipal liability can

exist if a jury finds that a constitutional injury is due

to a municipal policy, custom, or practice, but also finds

that no officer is individually liable for the violation.

See id. (“[I]f the jury were to find, as it did, that the

deprivation of Mr. Anderson’s constitutional rights was

a result of understaffing, then it would logically find no

fault on the part of the individual arresting officers.”).

This is not a controversial concept, as many of our

sister circuits have come to the same conclusion. See

Garcia v. Salt Lake Cty., 768 F.2d 303, 310 (10th Cir.

1985) (“Monell does not require that a jury find an individual defendant liable before it can find a local governmental body liable [under § 1983]. . . . Although the

acts and omissions of no one employee may violate an

individual’s constitutional rights, the combined acts or

omissions of several employees acting under a governmental policy or custom may violate an individual’s

constitutional rights.”); Fagan v. City of Vineland, 22

F.3d 1283, 1292 (3d Cir. 1994) (en banc) (“We hold that

in a substantive due process case arising out of a police

pursuit, an underlying constitutional tort can still exist even if no individual police officer violated the Constitution. . . . A finding of municipal liability does not

depend automatically or necessarily on the liability of

App. 21

any police officer.”); Barrett v. Orange Cty. Human

Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999) (“We

agree with our sister circuits that under Monell municipal liability for constitutional injuries may be

found to exist even in the absence of individual liability, at least so long as the injuries complained of are

not solely attributable to the actions of named individual defendants.”); Speer v. City of Wynne, 276 F.3d 980,

985–86 (8th Cir. 2002) (“Our court has . . . rejected the

argument that . . . there must be a finding that a municipal employee is liable in his individual capacity as

a predicate to municipal liability. . . . [S]ituations may

arise where the combined actions of multiple officials

or employees may give rise to a constitutional violation, supporting municipal liability, but where no one

individual’s actions are sufficient to establish personal

liability for the violation.”); Fairley v. Luman, 281 F.3d

913, 917 (9th Cir. 2002) (“If a plaintiff establishes that

he suffered a constitutional injury by the City, the fact

that individual officers are exonerated is immaterial to

liability under § 1983.”); Thomas v. Cook Cty. Sheriff ’s

Dep’t, 604 F.3d 293, 305 (7th Cir. 2010) (“[A] municipality can be held liable under Monell, even when its officers are not, unless such a finding would create an

inconsistent verdict.”). So has a leading treatise on

§ 1983. See Sheldon Nahmod, Civil Rights and Civil

Liberties Litigation: The Law of Section 1983 § 6:13 at

6–49 (2019 ed.) (“[A]s a general matter a local government can be independently liable for its own unconstitutional policy or custom which caused harm to a

plaintiff, even if its officials or employees did not

App. 22

themselves violate the plaintiff ’s constitutional rights

in the course of implementing that policy or custom.”).8

Where, as here, a jury has returned a verdict in

favor of an individual defendant on a § 1983 claim, the

question is whether that verdict “can be harmonized

with a concomitant verdict or decision imposing liability on the municipal entity. The outcome of the inquiry

depends on the nature of the constitutional violation

alleged, the theory of municipal liability asserted by

the plaintiff, and the defenses set forth by individual

actors.” Speer, 276 F.3d at 986. Accord Thomas, 604

F.3d at 305. We conclude that the jury verdict in favor

of Deputy MacArthur does not preclude a finding of

municipal liability due to the Sheriff ’s mandatory

eight-hour hold policy.

At trial, there was no evidence that Deputy MacArthur had any discretion or role in keeping Ms.

Barnett in custody after arresting her and taking her

to the Jail. Indeed, Captain Love testified that Deputy

MacArthur turned Ms. Barnett over to the staff at

the Jail, and he confirmed that deputies had no discretion to release DUI arrestees before eight hours had

8

The same holds true when an individual defendant is protected from § 1983 liability by qualified immunity. In that situation, the municipality is not necessarily absolved of liability. See,

e.g., Horton v. City of Santa Maria, 915 F.3d 592, 604 (9th Cir.

2019); Int’l Ground Transp. v. Mayor & City Council of Ocean

City, 475 F.3d 214, 219–20 (4th Cir. 2007) (plurality opinion);

Nahmod, Civil Rights and Civil Liberties Litigation § 6:13 at 6–

46.

App. 23

passed. See D.E. 175 at 156–57. Mr. Betham testified

that the Jail’s booking staff—not Deputy MacArthur—

wrote on Ms. Barnett’s jail arrest card that she could

be released at 12:10 (eight hours after she arrived),

consistent with the Jail’s policy that when an individual is arrested for impaired driving, she must be held

for eight hours. See D.E. 179 at 38; D.E. 167-18. Ms.

Barnett similarly testified that after her breath test

results were negative, Mr. Betham told her that she

had to stay at the Jail for eight hours anyway. See D.E.

181 at 123. Deputy MacArthur confirmed that even if

Ms. Barnett posted bond before the end of the eighthour period, she would have to stay at the Jail for eight

hours. See D.E. 179 at 251.

Given this evidence, defense counsel told the jury

in closing argument that Deputy MacArthur could not

be held liable on the Fourth Amendment detention

claim because the undisputed evidence showed that

Ms. Barnett was kept in custody pursuant to the Sheriff ’s mandatory hold policy, a policy that Deputy MacArthur had no discretion to deviate from:

The other thing . . . as to the stay at the jail,

the testimony has been—and I don’t recall

any conflict on it—that it was the policy of the

Sheriff that, if somebody’s arrested for DUI,

driving under the influence, they’re brought to

the jail; they’re going to be there for eight

hours. So that wasn’t Deputy MacArthur’s decision that Ms. Barnett was continued to be

detained at the jail. That was the policy of the

App. 24

Sheriff and . . . she didn’t do anything wrong

in terms of that.

D.E. 181 at 252.

The district court instructed the jury that, on the

individual detention claim against Deputy MacArthur,

Ms. Barnett had to show that Deputy MacArthur “intentionally committed acts that violated [her] constitutional right not to be arrested or detained without

probable cause.” D.E. 165 at 30. When the jury asked

whether Ms. Barnett could have been released after

her 0.000 breathalyzer test results, the district court

declined to answer that question. See D.E. 183 at 21–

23. So the jury was not asked to determine whether,

as a general matter, Ms. Barnett suffered a Fourth

Amendment violation due to the hold policy.

Because the jury found only that Deputy MacArthur had not “intentionally committed acts that violated [Ms.] Barnett’s Fourth Amendment right . . . not

to be arrested or detained without probable cause,”

DE. 169 at 1 (verdict form), its verdict says nothing

about whether the continued detention of Ms. Barnett—

after her breathalyzer tests and after posting bond—

due to the Sheriff ’s hold policy violated the Fourth

Amendment. Stated differently, the jury was asked to

decide only whether Deputy MacArthur was personally responsible (due to “intentionally committed

acts”) for any Fourth Amendment violations, and not

whether Ms. Barnett suffered a Fourth Amendment

violation due to her continued detention. Under the

circumstances—including the evidence presented, the

App. 25

defense theory, the jury instructions, and the verdict

form—the jury’s verdict in favor of Deputy MacArthur

does not insulate the Sheriff from a § 1983 claim under

Monell for Ms. Barnett’s continued detention pursuant

to the eight-hour mandatory hold policy.

III

We reverse the district court’s grant of summary

judgment on Ms. Barnett’s Fourth Amendment detention claim against the Sheriff under Monell and remand for a trial on that claim. In all other respects, we

affirm.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

App. 26

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SEANA BARNETT,

Plaintiff,

v.

SARA MACARTHUR and

DONALD ESLINGER,

Case No:

6:15-cv-469-Orl-18DCI

Defendants.

ORDER

(Filed Nov. 16, 2016)

THIS CAUSE comes for consideration on Defendants Sara MacArthur (“MacArthur”) and Donald

Eslinger’s (“Eslinger”) (collectively, the “Defendants”)

Motion for Summary Judgment (the “Motion”) (Doc.

76) to which Plaintiff Seana Barnett (“Barnett”) responded in opposition (Doc. 92), and Defendants replied (Doc. 97). For the reasons that follow, the Motion

will be granted in part and denied part.

App. 27

I.

BACKGROUND1

On March 15, 2014, Barnett went to dinner around

6:00 p.m. with her friend, Alicia Norwood (“Norwood”)

in downtown Orlando. (Barnett Deposition, Doc. 77

at 68:8-24, 70:4-6.) After spending several hours at

dinner, Barnett and Norwood walked around downtown Orlando. (Id. at 73:2-5.) Barnett drank some wine

at dinner and, a few hours later, she drank a minimal

amount of Bailey’s Irish Cream.2 (Barnett Dep. at

70:25-71:13.) Barnett was the designated driver for

Norwood, and she undertook the task of driving both

herself and Norwood home from downtown Orlando

in Norwood’s vehicle (the “Vehicle”). (Id. at 72:6, 74:1420.) During the drive home, Barnett stopped the Vehicle at a green light on Lake Mary Boulevard. (Id. at

75:15- 20, 76:19-21.) When Barnett stopped the Vehicle

at the green light in “the left straight through lane,”

MacArthur was stopped at the intersection waiting

to turn onto Lake Mary Boulevard. (MacArthur Dep.

at 44:18-45:21.) MacArthur testified that she observed

1

Defendants provided the Court with a DVD of video and

audio recordings from MacArthur’s patrol car dash camera and

from the rear sear of MacArthur’s patrol car. (See Doc. 27.) Defendants also provided the Court with audio files of Barnett’s jail

telephone calls. (See, Doc. 88.) Although the Court’s recitation of

the undisputed facts does not include citations to the DVDs, the

Court reviewed and considered the videos in the course of adjudicating the instant motion.

2

Immediately after Bartlett was placed under arrest, she

informed MacArthur that, hours prior, she drank Bailey’s Irish

Cream and wine. (MacArthur Deposition, Doc. 64 at 269:15270:5.) Prior to arresting Barnett, MacArthur did not know that

Barnett drank Bailey’s Irish Cream. (Id. at 270:13-18.)

App. 28

the Vehicle stopped at the green light for approximately eight to ten seconds. (Id. at 45:20-21.) At this

time, there were no vehicles or pedestrians in the roadway. (Id. at 104:25-105:6.) When the Vehicle passed by,

MacArthur activated her dashboard video camera and

pulled in behind the Vehicle. (Id. at 46:3-47:18.) After

Barnett turned the Vehicle left onto a side street, MacArthur initiated a traffic stop, and Barnett pulled the

Vehicle over in response. (Doc. 64-13 at 1.)

Soon after MacArthur stopped Barnett, Barnett

informed MacArthur that she drank a small amount of

wine around 6:00 p.m. the prior evening. (Barnett Dep.

at 82:8-12.) Barnett also provided her driver’s license

to MacArthur, but she was unable to provide registration and insurance despite being reminded twice and

fumbling with the button on the Vehicle’s glove compartment. (MacArthur Dep. at 107:8-15; Doc. 64-14 at

2.) Upon MacArthur’s request, Barnett agreed to perform field sobriety exercises. (Doc. 64-14 at 2.) Prior to

explaining and initiating the field sobriety testing,

MacArthur asked Barnett if she had any medical issues, to which Barnett responded she did not. (MacArthur Dep. at 165:15-166:7.) MacArthur subsequently

conducted a horizontal gaze nystagmus evaluation, a

walk and turn exercise, a one leg stand exercise, a finger to nose exercise, and a number counting exercise.

(Doc. 64-14 at 3.) MacArthur’s dashboard video captured audio and video for a portion of the field sobriety

exercises, although only audio is available for exercises

that took place outside of the camera’s view. (MacArthur Dep. at 107:16-108:7.) During the heel to toe

App. 29

exercise, Barnett informed MacArthur that she had

muscle tears in her legs due to injuries from a prior

accident and that she sees a chiropractor on a regular

basis. (Id. at 207:10-208:24) At the conclusion of the

field sobriety exercises, MacArthur conversed with

Joel Saslo (“Saslo”), another law enforcement officer on

the scene; however, MacArthur turned off the audio,

and the majority of their conversation is not audible.

(Id. at 262:7-268:23.) After approximately four (4)

minutes of unrecorded conversation between MacArthur and Saslo, the audio returns and MacArthur

began arresting Barnett. (See id.)

Subsequently, MacArthur transported Barnett to

the Seminole County jail, where Barnett was processed

and given a breathalyzer test. (Barnett Dep. at 96:715.) Barnett provided two (2) breath samples, both of

which tested negative (.000) for alcohol. (Doc. 64-14 at

4; Doc. 654.) The breath tests was administered by DUI

technician, Keith Betham (“Betham”), who observed

that he could smell a “moderate” amount of alcohol on

Barnett’s breath and that her eyes were “glassy, bloodshot and watery.” (Betham Deposition, Doe. 65 at 91:217.) Betham also observed that Barnett’s pupils were

normal, she did not act unusual, and he could understand her speech. (Id. at 91;18-92:3.) Thereafter, upon

request, Barnett provided a urine sample for drug

testing and was informed that it would take several

months for the results of the urine test to come back.

(Barnett Dep. at 98:1-13.) After providing a urine

sample, Barnett was processed as an inmate, finger

printed, and instructed to undress and take a shower.

App. 30

(Id. at 98:15-17.) At the time, Barnett was menstruating and had to remove her sanitary napkin. (Id. at

98;17-18.) During the course of her jail stay, Barnett

was put in two (2) different jail cells with numerous

female inmates, some of whom purportedly ridiculed

and harassed her. (Id. at 99:7-16, 100:8-101:18.)

Shortly after 1:00 p.m. on March 16, 2014, Barnett

posted bond and was released from jail. (Id. at 102:715; Love Deposition, Doc. 79 at 47:16-21.)

MacArthur copied Barnett’s offense and arrest report, as well as her DUI citation, which were scanned

and forwarded to the state attorney. (See MacArthur

Dep. at 93:5-6.) On or about April 15, 2014, the results

of Barnett’s urine testing were produced. (See Doc. 6613 at 1.) As reflected on the Florida Department of Law

Enforcement’s laboratory report, Barnett’s urine was

specifically analyzed for amphetamines, barbiturates,

benzodiazepines, cannabinoids, carisoprodol, cocaine,

methadone, opiates, and oxycodone. (Id.) Indisputably,

no drugs were identified as being in Barnett’s system

via the urine testing. (Id.) Barnett was arraigned on

April 16, 2014, and a nolle prosequi was entered on

May 2, 2014. (Doc. 82-1 at 1-2.)

MacArthur did not smell alcoholic beverages or

marijuana on Barnett at any time prior to the arrest,

nor did MacArthur observe any evidence of illegal

drugs. (MacArthur Dep. at 76:2377:5). Both MacArthur

and Saslo looked in Barnett’s purse to locate her cellular telephone, and MacArthur did not see any kind of

drugs in Barnett’s purse. (Id. at 273:19-24.) MacArthur

did not search the Vehicle and testified that she did

App. 31

not feel there was a reason to search the Vehicle. (Id.

at 68:6-11.) Additionally, Barnett did not slur her

speech or have any indication from the way she spoke

that she was impaired. (Id. at 77:6-10.) Barnett also

didn’t stumble around or lose her balance getting out

of the Vehicle. (Id. at 77:11-14.) Barnett assisted Saslo

“in putting down an orange tapeline on the ground

with no apparent difficulty.” (Id. at 256:12-17.) MacArthur testified that Barnett’s adeptness at assisting

with the orange tape could be a clue that Barnett was

not impaired but that she did not consider this when

deciding to arrest Barnett. (Id. at 256:12-257:11.)

On October 16, 2015, Barnett filed her eight (8)

count Amended Complaint (Doc. 50) against Defendants in this case, wherein Barnett asserts federal and

state law claims against MacArthur in her individual

capacity and federal and state law claims against

Eslinger in his official capacity as Sheriff of Seminole

County, Florida. (See id. 1116-7.) Defendants now move

for summary judgment on all of Barnett’s claims. (Doc.

76.)

II.

LEGAL STANDARD

A court may grant summary judgment “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). Material facts

are those that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Disputed issues

App. 32

of material fact preclude the entry of summary judgment, but factual disputes that are irrelevant or unnecessary do not. Id. “[S]ummary judgment will not lie

if the dispute about a material fact is ‘genuine,’ that is,

if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

In determining whether the moving party has satisfied its burden, the Court considers all inferences

drawn from the underlying facts in a light most favorable to the party opposing the motion and resolves all

reasonable doubts against the moving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574,

587-88 (1986). The moving party may rely solely on the

pleadings to satisfy its burden. Celotex Corp. v. Catrett,

477 U.S. 317, 323-24 (1986). A nonmoving party bearing the burden of proof, however, must go beyond the

pleadings and submit affidavits, depositions, answers

to interrogatories, or admissions that designate specific facts indicating there is a genuine issue for trial.

Id. at 324. If the evidence offered by the non-moving

party “is merely colorable, or is not significantly probative,” the Court may grant summary judgment. Anderson, 477 U.S. at 249-50. Similarly, summary judgment

is mandated against a party who fails to prove an essential element of its case “with respect to which [the

party] has the burden of proof.” Celotex, 477 U.S. at

323.

App. 33

III.

ANALYSIS

A. Federal Claims against MacArthur: Count I,

Count VII

1. Qualified Immunity Standard

Pursuant to the doctrine of qualified immunity,

government officials performing discretionary functions are shielded from suits in their individual capacities, except when “their conduct violates ‘clearly

established statutory or constitutional rights of which

a reasonable person would have known.’ ” Andujar v.

Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007) (quoting Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.

2003)). In order to be eligible for qualified immunity, a

law enforcement officer must prove that he or she was

acting within the scope of his discretionary duties

when the alleged wrong occurred, Hawthorne v. Sheriff

of Broward Cnty., 212 F. App’x 943, 946 (11th Cir.

2007). A government official’s actions are within his

discretionary authority when “ ‘undertaken pursuant

to the performance of his duties and within the scope

of his authority.’ ” Rich v, Dollar, 841 F.2d 1558,1564

(11th Cir. 1988) (quoting Barker v. Norman, 651 F.2d

1107, 1121 (5th Cir. July 1981), and Douthit v. Jones,

619 F.2d 527, 534 (5th Cir. 1980)). If a law enforcement

officer was acting within the scope of his or her discretionary authority, the burden then shifts to the plaintiff to establish that the law enforcement officer

violated a constitutional right that was clearly established at the time of the misconduct. Pearson v. Callahan,

555 U.S. 223, 232 (2009); Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1263-64 (11th Cir. 2004), A

App. 34

plaintiff can show a right is clearly established

through “(1) [presenting] case law with indistinguishable facts clearly establishing the constitutional right;

(2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a

constitutional right was clearly violated, even in the

total absence of case law.” Lewis v. City of W. Palm

Beach, Fla., 561 F.3d 1288, 1291-92 (11th Cir. 2009)

(citations omitted). A constitutional right is clearly established if it is “ ‘sufficiently clear that a reasonable

official would understand that what he is doing violates that right.’ ” Hope v. Pelzer, 536 U.S. 730, 739

(2002) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)); Saucier v. Katz, 533 U.S. 194, 202 (2001)

(“The relevant, dispositive inquiry in determining

whether a [constitutional] right is clearly established

is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”).

2. Count I: 42 U.S.C. § 1983 Claim against MacArthur

for Arrest and Continued Detention

In Count 1, Barnett brings a 42 U.S.C. § 1983

claim against MacArthur for MacArthur’s arrest and

continued detention of Barnett. (Doc. 50 ¶¶ 63-77.)

Purportedly, “MacArthur’s conduct violated [Barnett’s]

clearly established rights under the Fourth Amendment to the United States Constitution to be free from

involuntary detention in the absence of probable cause

and under the Fourteenth Amendment to the United

App. 35

States Constitution to be free from involuntary detention without due process of law.” (Id. ¶ 74.) Barnett

states that “MacArthur acted intentionally and with

malice and/or reckless indifference to [Barnett’s] federally protected rights.” (Id. ¶ 75.) MacArthur argues

that she is entitled to qualified immunity because

there was arguable probable cause for Barnett’s arrest

and continued detention at the jail after administration of the breathalyzer test and acquisition of a urine

sample from Barnett. (Doc. 76 at 2.) MacArthur further

avers that summary judgment in her favor is appropriate because actual probable cause existed for Barnett’s

arrest and continued detention. (Id. at 2-3.)

a. Barnett’s § 1983 Arrest Claim

“A warrantless arrest without probable cause violates the Fourth Amendment and provides the basis for

a § 1983 claim.” Holt v. U.S. Atty. Gen., 486 F. App’x 97,

99 (11th Cir. 2012) (citing Marx v. Gumbinner, 905 F.2d

1503, 1505 (11th Cir. 1990)). Under both federal and

Florida law, a law enforcement officer has probable

cause to arrest somebody when, under the totality of

the circumstances, “the facts and circumstances within

the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent

person to believe, under the circumstances shown, that

the suspect has committed, is committing, or is about

to commit an offense.” Lee v. Ferraro, 284 F. 3d 1188,

1195 (11th Cir. 2002) (quotation marks and citation

omitted). If a law enforcement officer “fabricated or unreasonably disregarded certain pieces of evidence to

App. 36

establish probable cause or arguable probable cause

[for arrest,] . . . the question whether arguable probable cause for the arrest existed is aptly suited for a

jury.” Kingsland v. City of Miami, 382 F.3d 1220, 1233

(11th Cir. 2004).

Allegedly, Barnett’s erratic driving pattern, admittance to consumption of alcohol, and poor performance

on field sobriety exercises led MacArthur to conclude,

based on her training and experience, that Barnett was

operating the Vehicle with impaired normal faculties

in violation of Section 316.193(1), Florida Statutes.

(Doc. 64-14 at 3; see MacArthur Dep. at 44:4-45:21;

47:6-15, 52:22-23, 55:3-15, 57:2-20.) Barnett does not

seemingly dispute that she was driving under the

speed limit and, during a recorded jail telephone conversation with her son, Barnett admitted to falling

asleep while driving the Vehicle and swaying in the

road. (See Doc. 92 at 3.) Additionally, Barnett indisputably stopped the Vehicle at a greenlight in the middle

of the road during the early morning hours. Further,

Barnett admitted to drinking alcohol earlier the prior

evening and had difficulty retrieving the Vehicle’s insurance and registration upon MacArthur’s request. It

is also notable that Macarthur’s dashboard video

shows Barnett ask MacArthur to repeat instructions

for the field sobriety test exercises, and Barnett also

appears to sway at times and begin exercises prematurely.

Despite the presence of some material, undisputed

facts, genuine issues of material fact remain unresolved. The parties dispute whether Barnett’s eyes

App. 37

were bloodshot and whether Barnett was driving the

Vehicle erratically. Indisputably, however, there were

no vehicles travelling on the same roadway when the

Vehicle was stopped at the green light, and Barnett

began moving the Vehicle when other vehicles started

approaching. Also, although Barnett admits to falling

asleep and swaying while driving, there is no evidence

of when such actions took place and whether they occurred immediately before or during MacArthur’s efforts to initiate a traffic stop. Further, MacArthur

testified that Barnett moved the Vehicle “really far

over” and almost hit a mailbox in the course of pulling

the Vehicle over. (MacArthur Dep. at 55:3-10.) However, in contrast to MacArthur’s testimony, the video

evidence does not clearly show that Barnett moved the

Vehicle “really far over” and that she almost hit a mailbox when MacArthur was pulling her over. The video

evidence does show, however, that another vehicle was

approaching the Vehicle at the referenced time, and it

is thus conceivable that Barnett was simply being

cautious in her efforts to move the Vehicle out of the

approaching vehicle’s way. (See MacArthur Dep. at

55:11-15.) Otherwise, the video evidence does not show,

clearly and uncontrovertibly, that Barnett was driving

the Vehicle erratically as suggested by MacArthur.

Thus, whether Barnett’s driving presented an objectively reasonable basis for suspecting that she was under the influence is not sufficiently clear. See Nicholas

v. State, 857 So. 2d 980, 982 (Fla. 4th DCA 2003) (noting that “there is no statutory definition of erratic driving and it is necessarily determined on a case by case

basis” and holding there was no probable cause for the

App. 38

initial stop or the DUI arrest of plaintiff after plaintiff

turned from the wrong lane, where plaintiff was observed driving for a short period of time and did not

interfere with any traffic). Further, even if Barnett

performed poorly on portions of her field sobriety tests,

there are genuine disputes of material fact as to

whether MacArthur properly administered the field

sobriety tests and whether a reasonable law enforcement officer would have determined that Barnett

failed enough of the tests for purposes of effectuating

an arrest. (See Expert Reports at Does. 35-6, 81-1); see

Strickland v. City of Dothan, Ala., 399 F. Supp. 2d

1275, 1289 (M.D. Ala. 2005), aff ’d sub nom. Strickland

v. Summers, 210 F. App’x 983 (11th Cir. 2006) (“It is

not objectively reasonable to rely on a performance in

a field-sobriety test for a finding of probable cause for

a DUI arrest when the test has been administered incompetently.”). There is also a dispute as to the credence that should have been given to Barnett’s

professed medical conditions when assessing her performance on the field sobriety exercises.

MacArthur admits that there were no indicators

that Barnett was on drugs and that she did not have

probable cause to believe that Barnett was under the

influence of drugs or prescription medication. (MacArthur Dep. at 81:16-18, 104:6-12.) MacArthur further

testified that Barnett spoke clearly and did not stumble when she was getting out of the Vehicle or when

she was assisting Saslo with putting tape on the

ground. Also, there is no allegation or evidence that

MacArthur smelled alcohol on Barnett’s breath at any

App. 39

time prior, during, or after Barnett’s arrest. Additionally, although Barnett drank alcohol prior to driving,

she informed MacArthur that she drank a minimal

amount of alcohol many hours prior to her arrest and

walked around downtown Orlando for hours after

she drank. See Strickland, 399 F. Supp. 2d at 1287

(“[Plaintiff ’s] admission that he drank an alcoholic

beverage over four hours earlier does not indicate that

he was impaired at the time of the stop. . . .”). It is not

clear that MacArthur properly considered potentially

exculpatory evidence in determining whether probable

cause existed to arrest Barnett, through communicating with Norwood or questioning Barnett about her

medical conditions, for example. See Kingsland, 382

F.3d at 1228 (“[O]fficers should not be permitted to

turn a blind eye to exculpatory information that is

available to them, and instead support their actions on

selected facts they chose to focus upon. . . .”). Upon review of the entire record, and drawing all inferences

in favor of Barnett to the extent supportable by the

record and the law, the Court is not persuaded that

MacArthur is entitled to summary judgment based on

actual or arguable probable cause for Barnett’s arrest.

b. Barnett’s § 1983 Continued Detention Claim

As provided under Section 316.1934, Florida Statutes, “if a person registers ‘at the time’ of a breathalyzer test, a ‘breath-alcohol level of 0.05 or less, it is

presumed that the person was not under the influence

of alcoholic beverages to the extent that his or her

normal faculties were impaired.’ ” Festa v. Santa Rosa

App. 40

County Florida, 413 F. App’x 182, 186 (11th Cir. 2011)

(quoting Fla. Stat. § 316.1934(2)(a)). The presumptions

delineated in Section 316.1934(2)(a), Florida Statutes

“do not limit the introduction of any other competent

evidence bearing upon the question of whether the

person was under the influence of alcoholic beverages

to the extent that his or her normal faculties were impaired.” Fla. Stat. § 316.1934(2)(c).

Defendants aver that, as set forth in Festa v. Santa

Rosa County Florida, 413 F. App’x 182 (11th Cir. 2011),

there is a lack of constitutional authority, statutory

authority, or case law establishing that Barnett had a

clearly established constitutional right to be released

upon registering 0.000 on the breathalyzer test. (Doc.

76 at 15-18); see Bannister v. Conway, 2013 WL

5770802, at *6 (N.D. Ga. Oct. 23, 2013) (granting qualified immunity to law enforcement officers on plaintiff ’s unreasonable detention claims and noting that

“the constitutional duty to release is itself not clearly

established”). However, controlling Eleventh Circuit

case law3 does establish that “[f ]ollowing a lawful warrantless arrest, a police office has an affirmative duty

to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the

basis of the arrest was unfounded.” Strickland, 399

F. Supp. 2d at 1291 (quotation marks and citation

3

See United States v, Hogan, 986 F.2d 1364, 1369 (11th Cir.

1993) (“[I]t is the firmly established rule of this Circuit that each

succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled

en banc, or by the Supreme Court.”).

App. 41

omitted); cf. Cruz v. Davidson, 552 F. App’x 865, 868

(11th Cir. 2013) (linking probable cause analysis to a

§ 1983 detention claim and finding that probable cause

for arrest is sufficient to justify subsequent detention

for purposes of the Fourth Amendment).

MacArthur testified that she did not believe Barnett

was driving under the influence of any drug besides

alcohol and that she did not observe any drugs or feel

compelled to search the Vehicle for drugs. In fact, MacArthur admitted that she did not have probable cause

to believe that Barnett was impaired by any substance

besides alcohol. Especially after the breathalyzer test

established that Barnett did not have any alcohol in

her system, MacArthur did not have actual or arguable

probable cause to detain Barnett. To the extent that

MacArthur had discretionary authority over Barnett’s

continued detention after she blew a .000, MacArthur

is not protected by qualified immunity.4 Even if there

was initial probable cause for arrest, the question remains whether a reasonable officer in MacArthur’s position could have believed there was probable cause to

detain Barnett, either for purposes of obtaining a urine

sample or booking her into jail to be held for a minimum of eight (8) hours. As Barnett’s continued detention was not supported by arguable or actual probable

cause, MacArthur is not entitled to summary judgment

in her favor.

4

The parties dispute whether MacArthur is able to meet her

burden of proving that she was acting within the scope of her discretionary authority for purposes of a qualified immunity analysis. (See Doc. 92 at 17-18; Doc. 99 at 7.)

App. 42

3. Count VII: 42 U.S.C. § 1983 Claim against MacArthur for Malicious Prosecution

In Count VII, Barnett brings a 42 U.S.C. § 1983

claim against MacArthur for MacArthur’s alleged malicious prosecution of Barnett. (Doc. 50 ¶¶ 107-09.)

Purportedly, “MacArthur’s conduct violated [Barnett’s]

clearly established rights under the Fourth Amendment to the United States Constitution to be free from

involuntary detention in the absence of probable cause

and under the Fourteenth Amendment to the United

States Constitution to be free from involuntary detention and prosecution without due process of law.” (Id.

¶ 108.) MacArthur argues that there was both actual

and arguable probable cause for the proceedings

against Barnett, and she is entitled to qualified immunity. (Doc. 76 at 2, 4.) MacArthur further states that

she did not act with malice, she was “not the legal

cause of the prosecution,” and Barnett “was not seized

in relation to the prosecution.” (Id. at 4.)

The Eleventh Circuit “has identified malicious

prosecution as a violation of the Fourth Amendment

and a viable constitutional tort cognizable under § 1983.”

Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). In

order to state a claim for malicious prosecution under

§ 1983, a plaintiff must establish elements of both a

common law malicious prosecution claim and an unlawful arrest in violation of the Fourth Amendment.

Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256-57,

1257 n.25 (11th Cir. 2010); Ortega v. Christian, 85 F.3d

1521, 1525 (11th Cir. 1996) (a warrantless arrest without probable cause violates the Constitution and forms

App. 43

the basis of a 42 U.S.C. § 1983 malicious prosecution

claim), In order to state a claim for malicious prosecution, a plaintiff must allege facts demonstrating:

(1) an original criminal or civil judicial proceeding against the present plaintiff was

commenced or continued; (2) the present defendant was the legal cause of the original

proceeding against the present plaintiff as the

defendant in the original proceeding; (3) the

termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there

was an absence of probable cause for the original proceeding; (5) there was malice on the

part of the present defendant; and (6) the

plaintiff suffered damage as a result of the

original proceeding.

Infante v. Whidden, No. 2:12-cv-41-FtM-29UAM, 2013

WL 5476022, at *7 (M.D. Fla. Sept. 30. 2013) (quoting

Alterra Healthcare Corp. v. Campbell, 78 So. 3d 595,

602 (Fla. 2d DCA 2011)). A law enforcement officer will

be entitled to qualified immunity from a § 1983 malicious prosecution claim if there was arguable probable

cause for the arrest. Crosby v. Monroe Cnty., 394 F.3d

1328, 1332-33 (11th Cir. 2004) (law enforcement officer

that reasonably, albeit mistakenly, concludes that

there is probable cause to arrest someone is entitled

to immunity from suit).

As discussed supra, MacArthur did not, for purposes of summary judgment, have actual or arguable

probable cause to arrest and detain Barnett. However,

App. 44

in order to establish a § 1983 malicious prosecution

claim, a plaintiff must also show that her Fourth

Amendment right to be free from unreasonable seizures was violated. Kesler, 323 F.3d at 881. The plaintiff must thus prove “that she was seized in relation

to the prosecution, in violation of her constitutional

rights.” Kingsland, 382 F.3d at 1235. Further, “[i]n the

case of a warrantless arrest, the judicial proceeding

does not begin until the party is arraigned or indicted.”

Id. Conditions of pretrial release and the obligation to

attend court proceedings associated with prosecution

have been deemed as insufficient deprivations of liberty to qualify as a Fourth Amendment seizure for purposes of a § 1983 claim. See Donley v. City of Morrow,

Georgia, 601 F. App’x 805, 813-14 (11th Cir. 2015) (finding that plaintiff ’s warrantless arrest, arraignment,

and conditions of pretrial release do not constitute a

significant deprivation of liberty and seizure under

the Fourth Amendment); Kingsland, 382 F.3d at 1236

(“While we sympathize with [plaintiff ’s] anxiety and

inconvenience . . . we cannot go so far as to say that

the conditions of her pretrial release . . constituted a

seizure violative of the Fourth Amendment.”). In this

case, a criminal proceeding was filed against Barnett

on March 17, 2014, and Barnett appeared at her arraignment on April 16, 2014. Subsequently, on May 2,

2014, the state entered a nolle prosequi in the case. For

purposes of establishing a § 1983 malicious prosecution claim against MacArthur, there are no allegations

or evidence that Barnett was “seized” after charges

were filed against her such that Barnett’s liberty was

deprived in violation of her Fourth Amendment right

App. 45

to be free from seizure. Thus, MacArthur is entitled to

summary judgment in her favor on Count VII.

B. Federal Claims against Eslinger: Count II,

Count VIII

1. Municipal Liability Standard

“Local governing bodies [ ] can be sued directly

under § 1983 for monetary, declaratory, or injunctive

relief where [ ] the action that is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers.” Monell v.

Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690

(1978). However, it is well-settled that “under § 1983,

local governments are responsible only for ‘their own

illegal acts.’ ” Connick v. Thompson, 563 U.S. 51, 60

(2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469,

479 (1986)). Official capacity suits against a law enforcement officer “represent only another way of pleading an action against an entity of which an officer is an

agent.” Monell, 436 U.S. at 691 n.55. A “municipality

cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be

held liable under § 1983 on a respondeat superior

theory.” Id. at 691. “Instead, to impose § 1983 liability

on a municipality, a plaintiff must show: (1) that his

constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3)

that the policy or custom caused the violation.”

App. 46

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.

2004). Additionally, “[i]f the decision to adopt [a] particular course of action is properly made by [the] government’s authorized decisionmakers, it surely

represents an act of official government ‘policy’ as that

term is commonly understood.” Pembaur, 475 U.S. at

481. In order to correctly plead that a municipality

should be held liable for the actions of its employees

because it ratified said actions, a plaintiff must show a

“persistent failure to take disciplinary action against

officers,” which “can give rise to the inference that a

municipality has ratified conduct, thereby establishing

a ‘custom’ within the meaning of Monell.” Fundiller v.

City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.

1985) (citation omitted). Further, “a municipality’s failure to correct the constitutionally offensive actions of

its employees can rise to the level of a custom or policy

‘if the municipality tacitly authorizes these actions or

displays deliberate indifference’ towards the misconduct.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308

(11th Cir. 2001) (quoting Brooks v. Scheib, 183 F.2d

1191, 1193 (11th Cir. 1987)).

2. Count 11: 42 U.S.C. § 1983 Claim against Eslinger for Arrest and Continued Detention

In Count II, Barnett alleges a 42 U.S.C. § 1983

claim against Eslinger in his official capacity for Barnett’s arrest and continued detention in purported violation of her Fourth and Fourteenth Amendment

rights. (Doc. 50 ¶¶ 78-83.) As grounds therefore, Barnett avers that Eslinger’s official written policy

App. 47

governing DUI detection, arrests, and detentions “was

the moving force behind MacArthur’s actions including

her decision to arrest [Barnett] for DUI despite the fact

that MacArthur knew or should have known she did

not have probable cause for the arrest.” (Id. ¶ 80.) Barnett argues that Eslinger’s “official policy, practice[,]

and custom was [also] the moving force behind MacArthur’s . . . continued detention of Barnett after she

arrived at the jail showing no signs of impairment, and

after her breathalyzer test results showed she had zero

alcohol in her system.” (Id. ¶ 81.) Barnett attests that

Eslinger has an “official policy, practice or custom of

requiring that DUI arrestees be detained in jail for a

minimum of eight (8) hours from the time of the arrest,

regardless of whether there is probable cause to believe the arrestee is impaired subsequent to their arrest and regardless of whether any arguable probable

cause for the arrest has since dissipated.” (Id.) Barnett

also states that “Eslinger’s official policy, practice and

custom of having deputies deliberately turn off their

microphones so there is no record of wrongdoing by the

deputies further demonstrates reckless indifference to

[Barnett’s] and other citizen’s federally protected

rights.” (Id. ¶ 82.) Purportedly, Eslinger’s policies violated Barnett’s constitutional rights to be free from involuntary detention in the absence of probable cause

and to be free from involuntary detention without due

process of law. (Id. ¶ 83.) Eslinger requests summary

judgment on the grounds that “DUI Sheriff ’[s] Policy

E-19 is not facially unconstitutional; that [Eslinger]

was not deliberately indifferent to known or obvious

consequences of the policy; and that there is not a

App. 48

policy of ‘failing to investigate’ DUI evidence. . . .” (Doc.

76 at 3.)

MacArthur explained the indicators that she looks

for when performing field sobriety tests and testified

that she was acting under Policy E-19, Eslinger’s DUI

Countermeasures Policy when she arrested Barnett.

(MacArthur Dep. at 68:24-69:8.) Although the written

purpose of Policy E19 is “to vigorously enforce DUI

traffic laws of the State of Florida,” Policy E-19 is not

facially unconstitutional as it does not itself violate

federal law or direct the violation of federal law. (See

Policy E-19 at Doc. 79-2.) Under Policy E-19, law enforcement officers are directed to arrest somebody for

driving under the influence only if they have probable

cause to believe the person is, in fact, under the influence of a chemical substance. (Id. at 2.) It is reasonable

to assume that an arrestee may begin to look and act

better over the course of time in jail, and an arrestee’s

negative breath alcohol test does not rule out impairments by controlled or chemical substances that require further laboratory testing. Policy E-19 and

Eslinger’s routine practice of holding people that have

been arrested for DUI for at least eight (8) hours (the

“Hold Policy”) are not facially unconstitutional and

were not moving forces behind any violation of Barnett’s constitutional rights related to her arrest or detention. (See Love Deposition, Document 79 at 20:1618.) In so finding, the Court notes that “[t]he practice

of detaining an intoxicated driver is to protect the

driver and the community from an unreasonable danger imposed by drunken driving.” Slate v. Atkinson, 755

App. 49

So. 2d 842, 844 (5th DCA 2000) (“Section 316.193(9),

Florida Statutes (1997), is not unconstitutional in allowing temporary detention of an apparently drunk

driver, . .”), Also, Florida law provides that a person

who is arrested for driving under the influence may not

be released from custody:

(a) Until the person is no longer under the

influence of alcoholic beverages, any chemical

substance set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal

faculties are impaired;

(b) Until the person’s blood-alcohol level or

breath-alcohol level is less than 0.05; or

(c) Until 8 hours have elapsed from the time

the person was arrested.

Fla, Stat. § 316.193(9). The language of Section

316.193(9), Florida Statutes, thus allows for the option

of holding a person for eight (8) hours after a DUI arrest. Additionally, Barnett fails to provide sufficient

evidence showing that Eslinger deliberately ignored a

pattern or history of unconstitutional DUI arrests that

are attributable to Policy E-19.

Barnett also claims that Eslinger implements or

otherwise condones a policy that allows law enforcement officers to turn off their microphones when effectuating a traffic stop, and “the purpose is to avoid

creating a record of wrongdoing by the deputies.”

(Doc. 92 at 29.) However, Captain Shane Love (“Love”),

Eslinger’s Rule 30(b)(6) representative, testified that

App. 50

it is not the practice or policy of the Seminole County

Sheriff ’s Office for deputies to cease recording audio

when discussing whether to arrest someone. (Love

Dep. at 22:21-25.) Instead, Policy E-49 requires law

enforcement officers to leave their microphones turned

on after a DUI arrest unless, for example, the person

has already been arrested and the officer is waiting

for the arrestee’s car to be towed. (Id. at 24:13-18; see

Policy E-49 at Doc. 79-5.) Also, MacArthur testified she

wasn’t trained to turn off her microphone when having

discussions with other deputies. (MacArthur Dep. at

64:15-18.) Upon review, Policy E-49 is not facially unconstitutional, and there is no evidence that Eslinger

commonly ignored the requirement that deputies keep

their microphones turned on absent extenuating circumstances that were not applicable in Barnett’s case.

There is insufficient evidence to support Barnett’s

claims in Count II that Policy E-19, the Hold Policy,

Policy E-49, or any other policy at issue were facially

unconstitutional or were the “moving force” behind the

constitutional injuries at issue. See Gilmere v. City of

Atlanta, 737 F.2d 894, 901 (11th Cir. 1984) (In order

to establish municipal liability under § 1983, “[t]he

official policy or custom ‘must be the moving force of

the constitutional violation.’ ” (internal quotation

marks and citation omitted)). There is also insufficient

evidence to allow a reasonable juror to conclude that

Eslinger tacitly or explicitly authorized Barnett’s arrest or continued detention without probable cause, or

that Eslinger was deliberately indifferent to the alleged known or obvious consequences of the policies at

App. 51

issue. Accordingly, summary judgment in Eslinger’s favor on Count II will be granted.

3. Count VIII: 42 U.S.C. § 1983 Claim against Eslinger

for Malicious Prosecution

In Count VIII, Barnett avers that Eslinger’s “official policy, practice and custom to seek prosecution of

all DUI arrestees regardless of the circumstances . . .

violated [Barnett’s] clearly established rights under

the Fourth Amendment . . . to be free from involuntary

detention in the absence of probable cause.” (Id. ¶ 12.)

Barnett states that her Fourteenth Amendment right

“to be free from involuntary detention and prosecution without due process of law” was also violated. (Id.)

Eslinger avers that summary judgment in his favor on

Count VIII is appropriate because “[Barnett] was not

seized in relation to the prosecution[,] . . . probable

cause existed for the proceedings[,] and there was

no malice on the part of MacArthur.” (Doc. 76 at 4.)

Eslinger alleges that “there is no genuine issue of material fact that [Eslinger’s] policies were not the moving force behind the alleged constitutional violations.”

(Id.)

As discussed supra, a criminal proceeding was

filed against Barnett on March 17, 2014, and Barnett

appeared at her arraignment on April 16, 2014. Subsequently, on May 2, 2014, the state entered a nolle prosequi in the case. For purposes of establishing a § 1983

malicious prosecution claim, there are no allegations

or evidence that Barnett was “seized” after charges

App. 52

were filed in that her liberty was deprived in violation

of her Fourth Amendment right to be free from seizure.

Thus, Eslinger is entitled to summary judgment on

Count VIII.

C. State Law Claims

Count IV, Count V

against

MacArthur:

1. State Law Immunity Standard

Section 768.28, Florida Statutes, provides statutory immunity from civil suit for law enforcement officers employed by the State of Florida. See Fla. Stat.

§ 768.28. Specifically, Florida’s law enforcement officers are immune from individual liability for tortious

acts they perform within the scope of their employment provided they have not “acted in bad faith or

with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or

property.” Fla. Stat. § 768.28(9)(a); see Drudge v. City of

Kissimmee, 581 F. Supp. 2d 1176, 1194-95 (M.D. Fla.

2008); Geidel v. City of Bradenton Beach, 56 F. Supp. 2d

1359, 1367-68 (M.D. Fla. 1999). In the context of Section 768.28(9)(a), “conduct committed in bad faith has

been characterized as conduct acted out with actual

malice,” while “wanton and willful” conduct must be

“worse than gross negligence” and “more reprehensible

and unacceptable than mere intentional conduct.”

Kastritis v. City of Daytona Beach Shores, 835

F. Supp. 2d 1200, 1225 (M.D. Fla. 2011) (citations omitted).

App. 53

2. Count IV: Common Law False Imprisonment

Claim against MacArthur

In Count IV, Barnett brings a common law false

imprisonment claim against MacArthur. (Doc. 50

¶¶ 89-92.) Barnett avers that “MacArthur unlawfully

detained and deprived [Barnett] of her liberty, against

her will, under circumstances that were unreasonable

or unwarranted.” (Id. 91.) Barnett further states that

“MacArthur was not within the course and scope of her

employment when she falsely imprisoned [Barnett]

and/or MacArthur was acting in bath faith or with

malicious purpose that was wanton and willful when

she falsely imprisoned [Barnett.]” (Id. 90.) MacArthur

argues that she is entitled to summary judgment and

as grounds therefore states that she has personal immunity under Section 768,28(9)(a), Florida Statutes

because “there is no genuine issue of material fact that

[MacArthur] did not act with bad faith, malicious purpose[,] or with wanton and willful disregard of human

rights and safety.” (Doc. 76 at 3.) MacArthur further

avers that probable cause existed for Barnett’s arrest

and detention. (Id.)

Florida law provides that “a person is guilty of a

DUI offense if the person is driving or in actual physical control of a vehicle, and that person is affected by a

substance to the extent that his normal facilities are

impaired or he has a breath-alcohol level over .08.”

Holt, 486 F. App’x at 99 (citing Fla. Stat. § 316.193).

The tort of false arrest is defined as “the unlawful restraint of a person against his will, the gist of which

action is the unlawful detention of the plaintiff and

App. 54

deprivation of his liberty.” Johnson v. Weiner, 19 So. 2d

699, 700 (Fla. 1944); see Willingham v. City of Orlando,

929 So. 2d 43, 48 (Fla. 5th DCA 2006). “Like it does in

1983 actions, the existence of probable cause or arguable probable cause defeats a Florida false arrest claim.”

See Caldwell v. Nocco, No. 8:14-cv-2167-T-30AEP, 2015

WL 9302835, at *4 (M.D. Fla. Dec. 22, 2015) (citation

omitted). However, under Florida law and in contrast

to § 1983 actions, the defendant has the burden of

proving arguable probable cause as an affirmative defense. Id.

Although MacArthur admits that she stated “I

will” in response to another law enforcement officer

yelling out “have fun,” she avers that she was being

sarcastic about upcoming paperwork. (See MacArthur

Dep. at 279:23-280:2.) Regardless, the video and audio

evidence show MacArthur treating Barnett in a respectful and professional manner before, during, and

after Barnett’s arrest. MacArthur’s conduct related to

Barnett’s arrest and detention does not evidence bad

faith, actual malice, or wanton and willful disregard of

human rights, safety, or property sufficient to override

MacArthur’s state law immunity from Barnett’s

claims. Thus, the Court will enter summary judgment

in MacArthur’s favor on Count IV.

3. Count V: Common Law Malicious Prosecution

Claim against MacArthur

In Count V, Barnett alleges that MacArthur was

the legal cause of the criminal proceeding against

App. 55

Barnett that was commenced on March 17, 2014 in the

Eighteenth Judicial Circuit of the State of Florida.

(Doc. 50 ¶¶ 94-95.) As grounds therefore, Barnett avers

that “MacArthur provided information she knew or

should have known to be false and/or misleading to

the State Attorney, upon which information the State

Attorney relied to commence the original criminal proceeding.” (Id. ¶ 96.) Barnett states that, “[t]he original

criminal proceeding was commenced and continued

without probable cause” and that MacArthur acted

intentionally and with malice. (Id. ¶¶ 98-100.) MacArthur argues that she is entitled to summary judgment on Count V because “there is no genuine issue of

material fact that MacArthur did not act with actual

malice; that probable cause existed; and finally that

MacArthur was not the legal cause of the prosecution.”

(Doc. 76 at 3.)

Under Florida law, in order to prevail on a malicious prosecution claim, a plaintiff must establish the

absence of probable cause for an arrest and the presence of malice therein, amongst other elements. See

Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA

1968). The element of malice may be proven through

a showing of actual malice or an inference of legal

malice. Douglas v. United Slates, 796 F. Supp. 2d 1354,

1367 (M.D. Fla. 2011). However, although legal malice

may be sufficient to support a malicious prosecution

claim, legal malice is not the type of malice contemplated under Section 768.28(9) that results in a state

employee losing individual immunity for actions taken

App. 56

inside the course and scope of his or her employment.

See Moore v. Seminole Cty., Fla., No. 6:13-cv-224-Orl31GJK, 2014 WL 4278744, at *6 (M.D. Fla. Aug. 29,

2014), aff ’d sub nom. Moore v. Pederson, 806 F.3d 1036

(11th Cir. 2015) (“Stated differently, the cases cited by

Moore may establish that legal malice is sufficient to

prevail on a malicious prosecution claim under Florida

law, but they do not establish that legal malice is sufficient to overcome the immunity from personal liability

provided by Fla. Stat. § 768.28(9).”).

In this case, the video and audio evidence show

MacArthur treating Barnett in a respectful and professional manner. Additionally, although MacArthur submitted Barnett’s case package to the State Attorney’s

Office, which did not include every detail about her

interactions with Barnett, there is no evidence that

MacArthur omitted information or otherwise mislead

the State Attorney’s Office as to the evidence in bath

faith or with a malicious intent or in wanton and willful disregard of Barnett’s constitutional rights. Further, there is no evidence that MacArthur contacted

anyone, including personnel in the State Attorney’s

Office, in an effort to influence Barnett’s case in any

manner. Accordingly, MacArthur is entitled to immunity from Barnett’s malicious prosecution claims and

will be awarded summary judgment on Count V.

App. 57

D. State Law Claims against Eslinger: Count III,

Count VI

1. Municipal Liability Standard

In accordance with Section 768.28, Florida Statutes, a government entity may be held liable for torts,

negligent and intentional, committed by an employee,

unless the employee committed same outside the

course and scope of employment or was acting in bad

faith, or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights,

safety, and property. See Fla. Stat. § 768.28 (providing

the statutory framework for Florida’s waiver of sovereign immunity in tort actions); Geidel, 56 F. Supp. 2d

at 1365 (explaining that a municipality can be held liable for an intentional tort committed by an employee

when the waiver of sovereign immunity set forth in

Section 768.28, Florida Statutes, applies). As set forth

in Section 768.28(5), “[t]he state and its agencies and

subdivisions shall be liable for tort claims in the same

manner and to the same extent as a private individual

under like circumstances.” Fla. Stat. § 768.28(5); see

Caldwell, 2015 WL 9302835, at *6 (“In circumstances

where, as here, personal liability is foreclosed by Florida’s immunity statute, a remedy remains available

against the agency itself, or its representatives in their

official capacities.”).

App. 58

2. Count III: Common Law False Imprisonment

Claim against Eslinger

In Count III, Barnett avers that MacArthur

falsely imprisoned Barnett in violation of Florida

common law. (Doc. 50 ¶¶ 85-86.) Barnett alleges that

“Eslinger unlawfully detained and deprived [Barnett]

of her liberty, against her will, under circumstances

that were unreasonable or unwarranted.” (Id. ¶ 87.)

Eslinger argues that summary judgment in his favor

on Count III is appropriate because probable cause

existed for Barnett’s arrest and detention. (Doc. 76 at

3.)

Genuine issues of material fact preclude the entry

of summary judgment on the issue of MacArthur having probable cause to arrest and detain Barnett. Additionally, a reasonable juror could find that the record

evidence, particularly the breathalyzer test results,

demonstrates beyond a reasonable doubt that Barnett

was not impaired and should have been immediately

released from detention.5 Thus, the Court will not

award summary judgment in Eslinger’s favor on Count

III.

5

As set forth in Defendants’ Motion for Summary Judgment,

the cases referenced by Mathis v. Coals, 24 So.3d 1284 (Fla. 2d

DCA 2010) “generally stand for the proposition that continued

detention is inappropriate only if it is determined ‘beyond a reasonable doubt that the probable cause which formed the basis for

the arrest was unfounded.’ ” (Doc. 76 at 24); see Mathis, 24 So.3d

at 1290 (citations omitted).

App. 59

3. Count VI. Common Law Malicious Prosecution

Claim against Eslinger

In Count VI, Barnett avers that “Eslinger was the

legal cause of the commencement of the criminal proceeding against [Barnett] as it is his official policy,

practice and procedure to file charges with the state

to have DUI arrestees prosecuted regardless of the circumstances.” (Doc. 50 ¶ 104.) Purportedly, “Eslinger’s

implementation of an official policy, practice and custom of filing charges with the state to have DUI arrestees prosecuted regardless of the circumstances is

malicious and in reckless disregard of [Barnett’s]

rights, safety, and welfare . . . ” (Id. ¶ 105.) In his defense, Eslinger argues that Section 768,28(9), Florida

Statutes, does not recognize a malicious prosecution

claim against him in his official capacity and he “cannot be liable by virtue of sovereign immunity and separation of powers.” (Doc. 76 at 3-4.) Eslinger further

posits that there is no genuine issue of material fact

that probable cause existed for Barnett’s arrest, and

there is a lack of malice and causation. (Id. at 4.)

Barnett avers that, pursuant to Eslinger’s “official

policy, practice and procedure,” charges were filed

against her solely because she was a DUI arrestee,

without proper regard to the specific facts of her case.

(See Doe. 50 ¶ 104.) However, despite extensive discovery in this case, including but not limited to deposition

testimony and the exchange of numerous policy documents, Barnett has not elicited concrete evidence of

such policy. Accordingly, based on the evidence in this

case, a reasonable juror could not conclude that

App. 60

Eslinger is liable for malicious prosecution of Barnett

because of an “official policy, practice and procedure” or

otherwise. The Court will thus award summary judgment in Eslinger’s favor on Count VI.

E. Barnett’s § 1983 Fourteenth Amendment

Claims

As provided under the Fourteenth Amendment to

the United States Constitution, no state shall “deprive

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause of the Fourteenth Amendment “is phrased

as a limitation on the State’s power to act, not as a

guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago Cnty. Dept. of Soc. Servs.,

489 U.S. 189, 195 (1989). “[Nothing in the language of

the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against

invasion by private actors.” Id. With respect to conduct

by a government actor, such “will rise to the level of a

substantive due process violation only if the act can be

characterized as arbitrary or conscience shocking in a

constitutional sense.” Waddell v. Hendry Cnty. Sheriff ’s

Office, 329 F.3d 1300, 1305 (11th Cir. 2003). “[O]nly

the most egregious official conduct can be said to be

‘arbitrary in the constitutional sense.’ ” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting

Collins v. City of Harker Heights, 503 U.S. 115, 129

(1992)). Further, whether conduct is egregious is evaluated from the time the government actor made the

decision rather than from hindsight. Waddell, 329 F.3d

App. 61

at 1305. Additionally, “[i]n some cases, a state official’s

deliberate indifference will establish a substantive due

process violation.” Id. at 1306.

Defendants posit that they are entitled to summary judgment on Barnett’s Fourteenth Amendment

claims contained in her 42 U.S.C. § 1983 claims. (Doc.

76 at 30-31.) Barnett admits that her § 1983 malicious

prosecution claims against Defendants do not implicate the Fourteenth Amendment. (See Doc. 92 at 3435.) Accordingly, summary judgment will be granted

in Defendants’ favor on Barnett’s Fourteenth Amendment claims in Count VII and Count VIII. Additionally,

Barnett’s false arrest and continued detention claims

are properly brought and analyzed under the Fourth

Amendment, rather than the Fourteenth Amendment.

See Strickland, 399 F. Supp. 2d 1285 (analyzing motorist’s § 1983 claims related to his arrest for driving

under the influence and his subsequent, approximately seven (7) hour, detention under the Fourth

Amendment and finding that motorist’s “arrest and

his subsequent detention—both of which involve a

‘seizure’ . . . should be analyzed under the ‘objective

reasonableness’ standard of the Fourth Amendment”)

(citing Tinney v. Shores, 77 F.3d 378, 381 (11th Cir.

1996)). Accordingly, the Court will grant summary

judgment in MacArthur’s favor on Count I and will

grant summary judgment in Eslinger’s favor on Count

II to the extent that Barnett relies on the Fourteenth

Amendment to bring said claims.

App. 62

F. Punitive Damages

Pursuant to Section 768.72(2), Florida Statutes,

“[a] defendant may be held liable for punitive damages

only if the trier of fact, based on clear and convincing

evidence, finds that the defendant was personally

guilty of intentional misconduct or gross negligence.”

Fla. Stat. § 768.72(2). In § 1983 cases, punitive damages awards “are appropriate where a defendant’s

conduct is motivated by evil intent or involves callous

or reckless indifference to federally protected rights.”

H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1089 (11th

Cir. 1986) (citing Smith v. Wade, 461 U.S. 30, 56 (1983)).

The Court finds MacArthur’s conduct prior, during,

and after Barnett’s arrest did not rise to the level that

is necessary to support Barnett’s claims for punitive

damages. Accordingly, MacArthur will be awarded

summary judgment in her favor on Barnett’s punitive

damages claims.

IV.

CONCLUSION

For the foregoing reasons, it is ORDERED and

ADJUDGED as follows:

1. Defendants Sara MacArthur and Donald

Eslinger’s Motion for Summary Judgment (Doe. 76) is

GRANTED in part and DENIED in part.

2. Defendants’ Motion for Summary Judgment

(Doc. 76) is GRANTED in that summary judgment

is awarded in Defendants’ favor on Count II, Count IV,

Count V, Count VI, Count VII, and Count VIII, The

App. 63

Court also awards summary judgment in Defendants’

favor on Plaintiff Seana Barnett’s Fourteenth Amendment claims and punitive damages claims.

3. In all other respects, Defendants’ Motion for

Summary Judgment (Doc. 76) is DENIED.

4. The Clerk of Court is directed to ENTER

JUDGMENT accordingly.

DONE and ORDERED in Orlando, Florida on

this 16th day of November, 2016

/s/ G. Kendall Sharp

G. KENDALL SHARP

SENIOR UNITED STATES

DISTRICT JUDGE

Copies furnished to:

Counsel of Record

App. 64

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-----------------------------------------------------------------------

No. 18-12238-AA

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SEANA BARNETT,

Plaintiff - Appellant,

versus

SARA MACARTHUR,

individually,

SHERIFF, SEMINOLE COUNTY FLORIDA,

in his official capacity as Sheriff of Seminole County,

Florida,

Defendants - Appellees,

DONALD ESLINGER,

in his official capacity as former Sheriff of Seminole

County, Florida,

Defendant.

-----------------------------------------------------------------------

Appeal from the United States District Court

for the Middle District of Florida

-----------------------------------------------------------------------

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC

BEFORE:

Judges.

JORDAN, GRANT, and DUBINA, Circuit

PER CURIAM:

App. 65

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. (FRAP 35) The Petition for Panel Rehearing is

also denied. (FRAP 40)

ORD-46

App. 66

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SEANA BARNETT,

Plaintiff,

vs.

SARA MACARTHUR,

individually, and DENNIS

M. LEMMA, in his official

capacity as SHERIFF OF

SEMINOLE COUNTY,

FLORIDA,

Defendants.

CASE NO.: 6:15-CV469-Orl-18-DCI

/

VERDICT

(Filed Mar. 15, 2018)

Federal Claim Against MacArthur for

False Arrest and Detention in Violation of the

Fourth Amendment of the U.S. Constitution

(42 U.S.C. 1983)

Do you find from a preponderance of the evidence:

1.

That Defendant MacArthur intentionally

committed acts that violated Plaintiff Barnett’s Fourth Amendment right under the

United States Constitution not to be arrested

or detained without probable cause?

Answer Yes or No No

If your answer is “Yes,” proceed to question 2.

App. 67

If your answer is “No,” skip questions 2-4 and

proceed to question 5.

2.

That the conduct of Defendant MacArthur

caused loss, injury or damage to Plaintiff Barnett?

Answer Yes or No

If your answer is “Yes,” proceed to question 3.

If your answer is “No,” skip questions 3-4 and

proceed to question 5.

3.

That Plaintiff Barnett should be awarded

compensatory damages?

Answer Yes or No

If your answer is “Yes,” in what amount?

$

If you answered “Yes,” after filling in the

amount, skip question 4 and proceed to

question 5.

If your answer is “No,” proceed to question 4.

4.

That Plaintiff Barnett should be awarded

nominal damages?

Answer Yes or No

App. 68

Common Law Claim Against Defendant

Sheriff for False Imprisonment

Do you find from a preponderance of the evidence:

5.

That Defendant Sheriff, by and through the

conduct of Defendant MacArthur, caused

Plaintiff Barnett to be falsely imprisoned?

Answer Yes or No No

If your answer to question 5 is Yes, answer

question 6.

If your answer to question 5 is No, skip questions 6 through 8.

6.

That the Defendant Sheriff has proven the affirmative defense that probable cause existed

for the arrest and detention of Plaintiff Barnett by a preponderance of the evidence?

Answer Yes or No

If your answer is Yes, skip questions 7-8.

If your answer is No, proceed to question 7.

7.

That the conduct of Defendant MacArthur

caused loss, injury or damage to Plaintiff Barnett?

Answer Yes or No

8.

That Plaintiff Barnett should be awarded

compensatory damages?

Answer Yes or No

If your answer is Yes, in what amount?

$

App. 69

SO SAY WE ALL THIS 15 DAY OF MARCH, 2018.

/s/ Lisa Donaldson

Foreperson’s Signature