Opposition Brief — Dennis Lemma, Sheriff, Seminole County, Florida, Petitioner v. Seana Barnett

Supreme Court briefJan 6, 2021

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No. 20-595

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DENNIS LEMMA, IN HIS OFFICIAL CAPACITY AS

SHERIFF OF SEMINOLE COUNTY, FLA.,

Petitioner,

v.

SEANA BARNETT,

Respondent,

--------------------------------♦--------------------------------On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

--------------------------------♦--------------------------------OBJECTION TO PETITION FOR WRIT OF

CERTIORARI

--------------------------------♦--------------------------------Kendra D. Presswood

Florida Bar No.: 0935001

Counsel of Record

Email:

kpresswood@shankmanleone.com

Shankman Leone, P.A.

707 N. Franklin Street, 5th Floor

Tampa, Florida 33602

Telephone:

813/223-1099

Facsimile:

813/223-1055

Attorney for Respondent

Seana Barnett

QUESTION PRESENTED

Whether the Fourth Amendment requires

release when law enforcement learns of new

information demonstrating that its purported

probable cause has dissipated?

(I)

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES .................................... ii

OPINIONS BELOW ................................................. 1

STATEMENT OF THE CASE ................................. 1

STATEMENT OF FACTS ........................................ 6

ARGUMENT ............................................................ 13

1.

There Has Been No Finding of Probable

Cause. ............................................................ 14

2.

The Jury Was Not Properly Instructed To

Make a Determination on Probable

Cause. ............................................................ 15

3.

The Evidence Did Not Support a Finding

of Probable Cause. ...................................... 21

4.

Law Enforcement Cannot Continue a

Detention for 48 Hours When Probable

Cause Does Not Exist. ................................ 26

5.

The Eleventh Circuit Did Not Impose

New Duties on Law Enforcement. .......... 28

6.

Other Cases Are Not At Odds with the

Eleventh Circuit. ........................................ 28

7.

The Eleventh Circuit’s Standard Is Not

Unworkable Or Unreasonable. ................ 33

8.

No Clarification Is Needed Because Other

Jurisdictions Do Not Permit Continuing

Detentions Unsupported By Probable

Cause. ............................................................ 35

CONCLUSION ........................................................ 40

i

TABLE OF AUTHORITIES

Cases

Anaya v. Crossroads Managed Care Sys., Inc., 195

F.3d 584, 591 (10th Cir. 1999) .............................. 39

Babers v. City of Tallassee, Ala., 152 F. Supp. 2d

1298, 1312–13 (M.D. Ala. 2001)............................ 18

Barnett v. MacArthur, 715 F. App'x 894, 907 (11th

Cir. 2017) ........................................................passim

Barnett v. MacArthur, 956 F.3d 1291, 1293 (11th

Cir. 2020) ........................................................passim

Bass v. Int’l Bhd. of Boilermakers, 630 F.2d 1058,

1062 (5th Cir. 1980) .............................................. 21

BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) 27,

29, 30, 33

Brown v. Sheriff of Orange Cty., Fla., 604 F. App’x

915 (11th Cir. 2015) .............................................. 22

Caballero v. City of Concord, 956 F.2d 204, 206 (9th

Cir. 1992) ............................................................... 16

City of Fargo v. Stutlien, 505 N.W.2d 738, 741 (N.D.

1993) ...................................................................... 37

City of Jamestown v. Erdelt, 513 N.W.2d 82, 83 (N.D.

1994) ...................................................................... 37

County of Riverside v. McLaughlin, 500 U.S. 44, 111

S. Ct. 1661, 1650, 114 L. Ed. 2d 49, 63 (1991) 28, 37

Cruthirds v. RCI, Inc., 624 F.2d 632, 636 (5th Cir.

1980) ...................................................................... 21

Dorman v. Florida, 492 So.2d 1160, 1162 (Fla. 1st

DCA 1986) ............................................................. 20

ii

Gerstein v. Pugh, 420 U.S. 103, 113–14, 95 S. Ct.

854, 43 L. Ed. 2d 54 (1975) ............................passim

Glover v. City of Wilmington, 966 F. Supp. 2d 417 (D.

Del. 2013) ............................................................... 39

Graham v. Connor, 490 U.S. 386, 397–98 (1989) .... 16

Gregory v. City of Louisville, 444 F.3d 725, 749–50

(6th Cir. 2006) ....................................................... 32

Hudson v. N.Y.C., 271 F.3d 62, 68 (2d Cir. 2001) .. 16,

17

Kingsland v. City of Miami, 382 F.3d 1220, 1223,

1230–31 (11th Cir. 2004) .................................. 2, 20

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d

1299, 1312–13 (11th Cir. 2013)............................. 22

Lipphardt v. Durango Steakhouse of Brandon,

Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) ........... 22

Mathis v. Coats, 24 So.3d 1284, 1290–91 (Fla. 2d

DCA 2010) ............................................................. 18

McConney v. City of Houston, 863 F.2d 1180, 1185

(5th Cir. 1989) ................................................passim

Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled

on other grounds, Monell v. N.Y.C. Dep't of Soc.

Servs., 436 U.S. 658 (1978) ................................... 16

Nicholson v. City of L.A., 935 F.3d 685, 691 (9th Cir.

2019) ...............................................................passim

Panagoulakos v. Yazzie, 741 F.3d 1126, 1131 (10th

Cir. 2013) ............................................................... 39

Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1080–81

(11th Cir. 1987) ..................................................... 21

Peet v. City of Detroit, 502 F.3d 557, 565 (6th Cir. 20

07) .................................................................... 32, 33

iii

Riley v. Cal., 573 U.S. 373, 381, 134 S. Ct. 2473, 189

L.Ed.2d 430 (2014) ................................................ 33

Riley v. Camp, 130 F.3d 958, 962 (11th Cir. 1997) . 25

Salmi v. Sec'y of Health & Human Servs., 774 F.2d

685, 689 (6th Cir. 1985) ........................................ 32

Somer v. Johnson, 704 F.2d 1473, 1478 (11th Cir.

1983) ...................................................................... 21

Spurlock v. Satterfield, 167 F.3d 995, 1006-07 (6th

Cir. 1994) ............................................................... 32

St. Luke's Cataract & Laser Inst., P.A. v. Sanderson,

573 F.3d 1186, 1200 n. 16 (11th Cir. 2009) .......... 22

State v. Pennington, 952 S.W.2d 420, 421 (Tenn.

1997) ...................................................................... 38

Steger v. Gen. Elec. Co., 318 F.3d 1066, 1081 (11th

Cir. 2003) ............................................................... 21

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

1275, 1291–93 (M.D. Ala. 2005), aff'd sub nom.

Strickland v. Summers, 210 F. App’x. 983 (11th

Cir. 2006) ............................................................... 18

Stuckey v. N. Propane Gas Co., 874 F.2d 1563, 1571

(11th Cir. 1989) ..................................................... 21

Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986)

.......................................................................... 27, 33

Constitutional Provisions

U.S. Const. amend. IV .......................................passim

Statutes

11 Del. C. § 1902 ....................................................... 39

42 U.S.C. § 1983 .................................................passim

42 U.S.C. § 1988 .......................................................... 1

iv

Fla. Stat. § 316.193 ......................................... 4, 24, 35

Fla. Stat. § 316.193(9)............................... 5, 19, 24, 25

Fla. Stat. § 316.1934 (2013)...................................... 11

Hal S. Marchman Alcohol and Other Drug Services

Act § 397.301 et seq., Fla. Stat. (2019) ........... 36, 38

Kan. Stat. Ann. § 12-4213 ........................................ 38

N.D. Cent. Code Ann. § 5-01-05.1 ............................ 36

Other Authorities

Fed. R. Civ. P. 59(e) .................................................... 4

v

OPINIONS BELOW

In addition to the opinions identified by Petitioner, the

following opinions, which are identified in Petitioner’s

Related Cases section, are directly related: Barnett v.

MacArthur, 715 F. App'x 894, 907 (11th Cir. 2017) and

Barnett v. MacArthur, Case No: 6:15–cv–469–Orl–

18DCI, 2016 WL 10654460 (Nov. 16, 2016).

JURISDICTION

Petitioner has

jurisdiction.

properly

invoked

this

Court’s

STATEMENT OF THE CASE

Seana Barnett (“Barnett”) brought this action

against Sara MacArthur, individually (“MacArthur”),

and Dennis M. Lemma (formerly Donald Eslinger), in

his official capacity as Sheriff of Seminole County,

Florida (“Lemma”) alleging civil rights violations,

false arrest and malicious prosecution brought

pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, the

Fourth Amendment to the United States

Constitution, and Florida common law. Barnett’s

claims arose out of her arrest and detention for

Driving Under the Influence (“DUI”) on March 16,

2014. 1

Defendants moved for summary judgment on

all counts, 2 which the district court granted except

1 D.50.

2 D.11,D.13,D.76.

1

with regard to Barnett’s 1983 claim for arrest and

continued detention without probable cause against

MacArthur (Count I) and the false imprisonment

claim against Lemma (Count III). D.111 MacArthur

appealed the denial of her qualified immunity

defense. 3 The Eleventh Circuit Court of Appeal

(“Eleventh Circuit” or “Court”) affirmed and declined

to exercise jurisdiction over Barnett’s cross-appeal

issues. 4 On the unlawful arrest claim, the Court

stated:

When we couple these important

disputed facts, which we must view in

the light most favorable to Barnett, with

the

undisputed

evidence—that

MacArthur did not smell or observe any

alcohol during the encounter; perceived

no indication that Barnett was under the

influence of drugs; and admitted that

Barnett communicated lucidly and

cooperated fully—we do not believe a

reasonable officer could have found

probable

cause

to

arrest

Barnett. See Kingsland, 382 F.3d at

1232. Accordingly, we affirm the denial

of MacArthur's qualified immunity

defense against the § 1983 unlawful

arrest claim.

3 D.113.

4 D.126.

2

Barnett v. MacArthur, 715 F. App'x 894, 907 (11th

Cir. 2017). On the unlawful detention claim, the Court

similarly found that no reasonable officer could have

believed there was probable cause:

Upon arrival at the station, the DUI

technician

administered

two

breathalyzer

tests

to

determine

Barnett's blood-alcohol content; both

produced results of 0.000. MacArthur

was

notified

of

the

results,

and, thereafter, ordered a urine analysis

to test for drugs and advanced the DUI

citation. But MacArthur admitted that

she had no evidence at the time of arrest

that Barnett was impaired by drugs.

This included her assessment of

Barnett's performance on the Vertical

Nystagmus Test, the only field sobriety

test used to detect drug use. MacArthur

did not observe any evidence of drugs in

Barnett's vehicle, nor did she find any

drugs in Barnett's purse when she

searched it to retrieve her phone. It is

only after the breathalyzer results came

back negative, at 0.000, that MacArthur

said she determined that “there was

something ... whether it was drugs or—

obviously not alcohol ... [b]ut I don't

know what drugs that could have been.”

Putting aside MacArthur's personal

admission, the objective facts of

Barnett's detention upon receipt of the

3

breathalyzer results are these: (1)

Barnett was not under the influence of

alcohol; (2) there was no evidence to

detain her for driving under the

influence of any other controlled

substance. Under these circumstances,

no reasonable officer could have found

that there was probable cause to

continue to detain Barnett under Section

316.193

of

the

Florida

Statutes. See Case, 555 F.3d at 1327.

Barnett, 715 F. App'x at 907 (emphasis in original).

The case proceeded to trial on March 12–15,

2018, before Senior United States District Judge G.

Kendall Sharp on Counts I and III. 5 The evidence at

trial did not materially differ from the evidence

considered on summary judgment and in the

interlocutory appeal. 6 Nonetheless, the jury returned

a verdict in favor of both Defendants. 7 Barnett moved

for a new trial pursuant to Fed. R. Civ. P. 59(e),

arguing, among other things, that the jury verdict was

against the great weight of the evidence and resulted

in a miscarriage of justice, and that the jury

instructions were inadequate. 8 The district court

denied the motion. 9 Barnett appealed and the

Eleventh Circuit reversed only the entry of summary

5 D.50.

6 D.175,D.179,D.181,D.183.6.

7 D.169.

8 D.174.

9 D.178.

4

judgment in favor of the Sheriff on the Monell claim

based on Barnett's detention. Barnett v. MacArthur,

956 F.3d 1291, 1293 (11th Cir. 2020).

As the Court stated, it was “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.” Barnett, 956 F.3d at 1297. Nevertheless, the

District Court had granted summary judgment,

reasoning that the hold policy was consistent

with Florida Statute § 316.193(9), which allows the

option of holding a person for eight hours after a DUI

arrest. The Eleventh Court ruled that “[t]his

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.” Barnett, 956 F.3d at 1298.

The Court agreed with the Fifth Circuit’s analysis in

McConney v. City of Houston, 863 F.2d 1180, 1185

(5th Cir. 1989), holding:

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

5

not intoxicated—in other words, that

probable cause to detain no longer

exists—the Fourth Amendment requires

that the arrestee be released.

Barnett, 956 F.3d at 1299. The court therefore

reversed the summary judgment because “as

in McConney, a reasonable jury viewing the evidence

in the light most favorable to Ms. Barnett could find

that her continued detention pursuant to the Sheriff's

eight-hour hold policy violated the Fourth

Amendment.” Id.

STATEMENT OF FACTS

At approximately 3:25 a.m. on March 16, 2014,

Deputy MacArthur observed Barnett come to a brief

stop at a green light. There was no traffic in the

vicinity. 10 MacArthur’s observations of Barnett at the

green light did not support stopping Barnett under

Lemma’s DUI policy because Barnett did not sit at the

green light long enough for the signal to cycle. 11

MacArthur followed Barnett for about three blocks

and initiated a traffic stop after only one minute

despite that Barnett was driving normally as

evidenced by the in-car video. 12 Deputy Joel Saslo

(“Saslo”), who assisted MacArthur with the DUI

investigation, reviewed the video and saw nothing

10 D.64:45:11-46:1;D.179pp.17781&Exs.6&8;D.181p.213.

11 D.64:75:25-76:16;D.64-2§V.B;D.175Ex.3;D.179p.232;D181pp.11-12.

12 D.27;D.175pp.73-74-Ex.21.

6

that would cause him to stop Barnett. 13 At the scene,

MacArthur contradicted herself concerning the reason

for the stop, and the video did not support her

reasons. 14 MacArthur further contradicted herself

when she completed her Offense Report. 15

Barnett explained to MacArthur clearly and

lucidly that she had hesitated at the green light

because she was unfamiliar with the area and was

looking for a shortcut her passenger told her to take,

which the video corroborates. 16 Barnett did not slur

her words, smell of alcohol, or otherwise appear

impaired while explaining herself to MacArthur. 17

MacArthur claimed she was justified in

subjecting Barnett to field sobriety tests because

Barnett admitted to having one glass of wine with

dinner at 6:00 p.m. the prior evening (i.e., over nine

(9) hours earlier), and despite Barnett explaining that

she was acting as a designated driver. 18

MacArthur was inexperienced at conducting

field sobriety tests. 19 Barnett was either MacArthur’s

13 D.66:28:14-20.

14 D.64:151:22-152:2;D.27;D.175pp.73-74-Ex.21;D.27;D.351¶6;D.175pp.73-74-Ex.21;D181pp.11-12;D.27;D.351¶6;D.175pp.73-74-Ex.21.

15 D.64-15;D.179p.190&Ex.14-15;D.27;D.175pp.73-74Ex.21.

16 D.27;D.35-1¶4;D.35-2¶3;D.175pp.73-74Ex.21;D.27;D.175pp.73-74-Ex.21.

17 D.64:76:23-77:14;D.27;D.35-1¶¶13&17;D.35-2¶¶7-8;D.353¶4;D.175pp.73-74-Ex.21.

18 D.64-14;D.175pp.73-74-Ex.14-15&21.;D.35-1¶7,D.352¶7,D.64:154:17-18;160:24-25;D.27;D.175pp.73-74-Ex.21.

19 D.27;D.175pp.73-74-Ex.21;D.64:6:11-12;12:15-17;16:4-

7

first or second DUI arrest. 20 Despite Lemma’s policy

requiring that Deputies microphones remain on

during a DUI investigation, 21 after informing another

Deputy that the stop was a possible Signal 1

(intoxicated driver), McArthur turned off her

microphone for over five (5) minutes, apparently

discussing her inexperience with the other Deputy. 22

MacArthur then proceeded to fumble through

administering the field sobriety tests, ignoring

Barnett telling her that she was suffering from

injuries due to a recent automobile accident, including

muscle tears in her leg. 23 MacArthur administered the

tests incorrectly in several respects and scored them

incorrectly. 24

After Barnett completed the tests, MacArthur

asked Deputy Saslo: “What did you write down? What

do you think? I’m thinking yeah, but….” Saslo

interjected, “She’s definitely been drinking and stuff

like that…how’d her eyes look?” MacArthur

responded “fine.” 25 Saslo then asked, “Are you 10-12?”,

which is code for asking if your microphone is on. 26

18:22;D.64-1;D.175pp.73-74-Ex.21.

20 D.64:15:16-20;D.179pp.152-53.

21 D.79:22:1-24:18;31:12-15;D.79-5.

22 D.27;D.175pp.73-74-Ex.2;D.179pp.222–23;D.64:163:23164:2;164:13-15;D.27;D.179pp.225–26&Ex.21.

D.27;D.175pp.73-74-Ex.21.

23 D.35-1¶11;D.64:6-10;D.27;D.179pp.114-15,128-29,14446,151;D.175pp.73-74-Ex.21;D.351¶11;D.27;D.179pp.131,144-46,151&Ex.21;D.181p.110,11617.

24 D.35-6;D.27;D.181pp.23-99.

25 D.64:261:21-262:13;D.27;D.175pp.73-74-Ex.21.

26 D.64:64:9-12;65:20-24;D.175pp.179-81&Ex.21;D.179p.154-

8

MacArthur got the message that Saslo was going to

say something that they did not want recorded and

turned off her microphone. 27 After four (4)

minutes, MacArthur turned the microphone back on

as she handcuffed Barnett. 28 Both MacArthur and

Saslo claim they do not recall their unrecorded

conversation. 29 Saslo testified he could not remember

if he thought there was probable cause to arrest

Barnett or not. 30 However, after reviewing the entire

video, Saslo testified that the field sobriety test results

did not warrant arrest. 31

MacArthur did not bother to speak to Barnett’s

passenger, Alicia Norwood (“Norwood”), to see

whether Norwood would verify Barnett’s statements

about being the designated driver, having only one

drink, looking for a shortcut, and so on. 32 MacArthur

did not feel she had any responsibility to explore

exculpatory evidence. 33

While being transported to jail, Barnett asked

MacArthur why she arrested her and asked, “So you

think it’s because of drinking, ma’am?” to which

56.

27 D.64:263:18-22;266:18-267:15;D.27;D.179pp.154-56&Ex.21.

28 D.66:113:1-24;D.27;D.175pp.73-74-Ex.21.

29 D.64:62:23-24;D.66:110:13-20;113:25-114:5;D.175pp.17981;D.179p.156.

30 D.66:26:10-20;D.175pp.179-81.

31 D.66:61:7-17;91:4;114:110-23;D.181pp.218-19.

32 D.64:64:23-25;D.175pp.73-74-Ex.21;D.179pp.22930;D.64:65:1-15;D.179pp.229-30.

33 D.64:65:17-66:4;D.179pp.229-30;D.27;D.352¶12;D.181p.120.

9

MacArthur replied, “Yes ma’am.” 34 MacArthur had no

reason to believe that Barnett was impaired by any

substance other than alcohol. 35 MacArthur did not

detect the odor of Marijuana or any other drug. 36 No

drugs were found in the vehicle (the deputies did not

even bother asking to search it), on Barnett’s person

(including during the strip search), or in Barnett’s

purse (which both deputies searched looking for

Barnett’s cell phone). 37 MacArthur did not even

bother asking Barnett about drugs. 38 MacArthur

admitted she got no indication from the Vertical

Nystagmus test that Barnett was on drugs. 39 Indeed,

MacArthur admitted under oath she did not

have any indication that Barnett was on drugs

when she arrested her, and that she did not have

probable cause to arrest Barnett for driving

under the influence of drugs. 40 Of course, the

urine test results ultimately confirmed that Barnett

had no drugs in her system. 41

When Barnett arrived at the jail, Breath Test

Operator Keith Betham (“Betham”) first observed

Barnett for 20 minutes and then conducted

Breathalyzer testing. 42 Barnett’s breath samples

34 D.64:284:16-21;D.27;D.175pp.73-74-Ex.21.

35 D.64-14;D.35-4;D.27;D.175pp.73-74-Exs.14,15&21.

36 D.64:64-14;77:3-5;D.35-4;D.27;D.175pp.73-74Exs.14,15&21.

37 D.64:52:2-19;273:19-24;D.27;D.175Exs.14,15&21;D.179pp.161-64.

38 D.35-1¶16;D.27;D.175pp.73-74-Ex.21.

39 D.35-6;D.27;D.181pp.23-99;D.64:79:8-23;D.35-6.

40 D.64:81:16-18,104:6-12;D.179pp.159-61,166.

41 D.64-12;D.175-Ex.12.

42 D.65:11:3-12:24;24:1-12;26:5-15;28:25-

10

showed no trace of alcohol. 43 At that point, pursuant

to § 316.1934, Fla. Stat. (2013), and the Seminole

County

Sheriff’s

Office’s

policy

on

DUI

Countermeasures, Barnett was presumed not to be

under the influence of alcohol to the extent her normal

faculties were impaired. 44 Additionally, Betham

testified he saw no signs that Barnett was

impaired, nor did he observe any indicators that

she was on drugs. 45 Nonetheless, and even though

MacArthur admittedly had no reason to believe

Barnett was under the influence of any drug,

MacArthur had Betham request a urine sample.

Betham did so, informing Barnett that she would lose

her driver’s license if she did not consent. 46

As MacArthur was aware when she arrested

Barnett, the Sheriff has an official policy and practice

requiring that DUI arrestees be detained in jail for a

minimum of eight (8) hours regardless of whether it

becomes clear after the arrest that the individual is

not, in fact, impaired. 47 MacArthur also testified

that she could not and would not release an

arrestee if she knew she no longer had probable

cause “because we don’t do that” and “probable

29:31;D.179pp.11,14.

43 D.64-10;D.175-Ex.10;D.179pp.24-27&Ex.11.

44 D.64:41:17-20;D.64-6;D.65:40:16-21;D-175pp.12829&Exs.3&7.

45 D.65:11:3-12:24;24:1-12;26:5-15;28:2529:3;D.179pp.22,34.

46 D.65:30:2-17;32:15-17;61:11-14;D.179pp.27-28,31.

47 D.79:20:16-18;21:2-12;D.35-1§14;D.64:40:341:8;281:6-10;D.64-17;D.64-18;D.27;D.175Ex.21;D.27;D.175-Ex.21.

11

cause doesn’t go away.” 48 Under Lemma’s policy,

a deputy does not have the discretion to release

an individual if the deputy learns that probable

cause no longer exits. 49 In fact, Betham informed

Barnett that she would have to stay in jail the full

eight (8) hours even though she blew a .000 and should

not have been there in the first place. 50

Shane Love (“Love”) testified as Lemma’s

representative. 51 Love said that, if the Breathalyzer

results in a .000, the practice “most of the time” is to

request a urine analysis “to see if there’s anything

else” even though the individual was suspected only of

driving under the influence of alcohol. 52 Betham

likewise testified that Lemma files every DUI with the

prosecutor even if someone blows a .000 and there is

no indication that drugs are involved, and that they

are still required to stay in jail for eight (8) hours and

pay a $500 bond. 53

As a result of MacArthur’s actions and

Lemma’s official policies, practices and customs,

Barnett was processed as an inmate and held for more

than eight (8) hours. 54 The following day, March 17,

48 D.64:37:9-18.

49 D.79:20:11-15;21:2-12;58:10-16;D.64:40:3-41:8;D.65:23:1621;31:9-12;D.175pp.69,155-56;D.181pp.229,252.

50 D.35-1¶15;D.65:30:2-17;D.179p.38&Ex.18;D.181p.123.

51 D.79:4:13-5:20.

52 D.79:21:6-20;D.64:41:17-42:5;43:5-15;D.66:132:511;D.179p.37;D.79:17:6-20;D.175pp.69,15556;D.181pp.229,252.

53 D.65:18:24-19-17;D.93:11-15;276:7-12.

54 D.64-16;D.64-17;D.64-18;D.77:96:7-101:23;D.181pp.12527;D.64-17;D.64-18;D.142p.8;D.175p.69-Ex.17-

12

2014, criminal charges were filed based upon

MacArthur’s arrest report. 55 On April 15, 2014, the

Florida Department of Law Enforcement (“FDLE”)

issued its Laboratory Report showing that Barnett

had no drugs in her system. 56 On May 2, 2014, the

state entered a Nolle Prosequi. 57

ARGUMENT

As Lemma acknowledges in his Petition for

Writ of Certiorari (“Petition”), to warrant review, this

Court would first have to accept the premise that

MacArthur had probable cause to arrest Barnett for

DUI based upon the jury verdict on the Section 1983

claim against MacArthur. That premise is false,

however. As the Eleventh Circuit determined, one

cannot infer from the jury’s verdict in this case that it

found there was probable cause for the arrest or

continued detention, as further explained below.

Nonetheless, throughout his Petition, Lemma

represents that the jury found that there was probable

cause to support the arrest and the continued

detention Barnett despite that her breathalyzer

results showed she had zero alcohol in her system.

E.g., Pet. pp. 8–9, 11, 13. Lemma states repeatedly

that there was still probable cause because Barnett

could have been under the influence of drugs. E.g.,

Pet. pp. 12–13, 19, 24, 29. However, as the Eleventh

Circuit recognized, MacArthur admitted she had no

20;D.179pp.37-38;D.181pp.123,229,252.

55 D.82-1;D.175-Ex.14-15&23;D.142p.8.

56 D.64-12;D.142p.8;D-175-Ex.12;D.179pp.32-33&Ex.13.

57 D.82-1;D.142p.9.

13

probable cause to arrest Barnett for drugs and there

was no evidence to support any belief that Barnett

was impaired by drugs. Thus, review should be denied

because the premise on which the Petition is based is

false.

Nor did the Eleventh Circuit rule that law

enforcement is required to continually reassess

probable cause as Lemma claims. Pet. pp. 15–16, 22.

Additionally, contrary to Lemma’s representation,

Barnett never argued, and the Eleventh Circuit did

not rule, that the Sheriff was “obligated to

immediately release her.” Pet. pp. 9, 16. Rather,

Barnett argued that the Constitution requires release

after a “brief period of detention to take the

administrative steps incident to arrest.” Gerstein v.

Pugh, 420 U.S. 103, 113–14, 95 S. Ct. 854, 43 L. Ed.

2d 54 (1975). Thus, review is not warranted based

upon these false assertions either.

1. There Has Been No Finding of Probable

Cause.

As Barnett argued below, the jury was not

properly instructed on the 1983 claim against

MacArthur and the overwhelming weight of the

evidence, as well as the Eleventh Circuit’s opinion in

Lemma’s first appeal, demonstrated that MacArthur

did not have probable cause for the arrest, let alone

the continued detention. The Eleventh Circuit

therefore rejected Lemma’s argument that the jury

verdict in favor of Deputy MacArthur constituted a

finding that Ms. Barnett suffered no Fourth

Amendment violation as a result of the detention.

Barnett, 956 F.3d at 1291, 1301 (explaining that

14

“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”). As the Eleventh

Circuit recognized, defense counsel’s closing

argument told the jury 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.” Id. at

1303. Thus, the Eleventh Circuit found that:

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.

Id. In short, there has been no finding of probable

cause in this case.

2. The Jury Was Not Properly Instructed To

Make a Determination on Probable Cause.

Even had the jury made a finding on probable

cause, which it did not, such a finding could not be

relied upon because the jury instructions were

15

inadequate to explain the law concerning probable

cause for both the arrest and the continued detention.

In fact, the instructions were misleading in several

respects. First, although the District Court utilized

the Eleventh Circuit’s standard instruction which

states that the violation of the plaintiff’s

Constitutional rights must be “intentional,” the

instruction was incorrect regarding the Fourth

Amendment violations at issue. MacArthur’s violation

of Barnett’s constitutional right to not be arrested or

detained did not have to be “intentional.” E.g., Hudson

v. N.Y.C., 271 F.3d 62, 68 (2d Cir. 2001) (“These

instructions were incorrect. Section 1983 does not

require any intent to violate constitutional rights.”)

(citing Caballero v. City of Concord, 956 F.2d 204, 206

(9th Cir. 1992) (stating that “[i]t is well established

that specific intent is not a prerequisite to liability

under § 1983”) (citing Monroe v. Pape, 365 U.S. 167,

187 (1961), overruled on other grounds, Monell v.

N.Y.C. Dep't of Soc. Servs., 436 U.S. 658 (1978))). The

question is not whether the Fourth Amendment

violation was intentional. Id. “Rather, ‘the question is

whether the officer['s] actions are ‘objectively

reasonable’ in light of the facts and circumstances

confronting [her], without regard to [her] underlying

intent or motivation.” Caballero, 956 F.2d at 206

(quoting Graham v. Connor, 490 U.S. 386, 397–98

(1989)). “To paraphrase Graham: ‘An officer's evil

intentions will not make a Fourth Amendment

violation out of an objectively reasonable [arrest]; nor

will an officer's good intentions make an objectively

unreasonable [arrest] constitutional.’” Id. As such, the

instruction was incorrect. Id. This was particularly

16

prejudicial given Defendants’ position in trial that

MacArthur subjectively “believed” there was probable

cause based upon her inadequate training and

experience. The jury likely concluded that MacArthur

was not liable because she did not “intentionally”

violate Barnett’s Fourth Amendment rights. Rather,

the jury may have concluded that MacArthur was not

aware that she lacked probable cause due to her

inexperience, or that MacArthur had no choice but to

detain Barnett for the eight-hours because Lemma’s

policy required the hold, or both. The jury should have

been instructed that the arrest had to be objectively

reasonable regardless of any supposed good intent on

MacArthur’s part. Id.; Hudson, 271 F.3d at 71 (“It is,

therefore, quite possible that the jury's finding that no

Fourth Amendment violation occurred resulted from

its mistaken belief that every rights violation under §

1983, including those involving the Fourth

Amendment, must be intentional.”).

Second, the jury instructions lacked an

explanation of the law holding that probable cause for

an arrest only permits detaining a person for the time

necessary to complete the administrative steps for the

arrest, and that probable cause may dissipate after

arrest requiring that the arrestee be released.

Gerstein, 420 U.S. at 113–14 (holding that an officer’s

on-the-scene assessment of probable cause can justify

only the initial arrest and a “brief period of detention

to take the administrative steps incident to arrest”);

see also McConney, 863 F.2d at 1180, 1185 (“A policy

requiring continued detention … after determination

beyond reasonable doubt that one held on a proper

warrantless arrest for public intoxication is in fact not

17

intoxicated and that probable cause no longer exists

raises obvious constitutional concerns.”). Once it

becomes clear that the on-the-scene assessment was

wrong, continuing the detention is unconstitutional.

Id. As a result, requiring that an arrestee remain in

custody for four (4) hours after a zero Breathalyzer

result violates the Fourth Amendment. Strickland v.

City of Dothan, Ala., 399 F. Supp. 2d 1275, 1291–93

(M.D. Ala. 2005), aff'd sub nom. Strickland v.

Summers, 210 F. App’x. 983 (11th Cir. 2006); Babers

v. City of Tallassee, Ala., 152 F. Supp. 2d 1298, 1312–

13 (M.D. Ala. 2001) (“The court, therefore, finds that

Babers has produced sufficient evidence to allow a

reasonable jury to conclude that the City had a policy

that required an individual once arrested to remain

incarcerated until the arrival of a magistrate, even if

an officer ascertains beyond a reasonable doubt that

the probable cause which formed the basis for the

arrest was unfounded.”); Mathis v. Coats, 24 So.3d

1284, 1290–91 (Fla. 2d DCA 2010) (stating plaintiff

may be able to establish false arrest claim where,

“[a]lthough probable cause existed at the time Mathis

was arrested at the scene, she may be able to

demonstrate that probable cause evaporated … Ms.

Mathis’s breathalyzer test showed a .000 reading.”)

(citations omitted). “[F]ollowing a lawful warrantless

arrest, a police officer 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. This instruction

was necessary based upon issues presented at trial,

particularly Defendants’ testimony and argument

18

that the Sheriff’s official policy does not permit release

of any DUI arrestee even where, as here, the evidence

was undisputed that the only probable cause for arrest

was that Barnett was impaired by alcohol – not drugs

– and Barnett’s Breathalyzer results were 0.000. The

jury needed clarification that the constitution requires

release when there is no probable cause, contrary to

the Sheriff’s policy.

Indeed, the jury asked during deliberations

whether Barnett could be released after the 0.000

Breathalyzer results. 58 In response, Barnett

requested that the District Court provide an

additional instruction to the jury which the Court

denied because the case law which the instruction was

based upon was not “in evidence.” D.92pp.20–

21;D.183p.22. Barnett then asked that the Court

instruct the jury from Florida Statute Section

316.193(9), which was “in evidence,” 59 and which

authorizes the release of a DUI arrestee when there is

no longer probable cause to believe the person is

impaired. §316.193(9), Fla. Stat. (2013). The Court

declined. 60 Particularly considering the Eleventh

Circuit’s prior ruling that Florida Statute Section

316.193(9) did authorize releasing Barnett once she

blew a 0.000, the jury should have been so

instructed. 61 Barnett, 715 F. App’x at 894, 907.

58 D.183pp.21-23.

59 D.174-Ex.7.

60 D.182pp.22-23.

61 Subsequently, the jury asked another question requesting

copies of Florida Statutes Chapter 316 (all the traffic statutes)

and Chapter 322 (the driver’s license statutes), highlighting that

they did not understand what they were deciding.

19

Third, over Barnett’s objection, the instructions

did not explain to the jury that:

The determination of probable cause is

based

on

the

totality

of

the

circumstances, thus, a deputy must

consider all the evidence available to

her. When a deputy fails to investigate or

consider

exculpatory

information

available to her, or when a deputy

falsifies facts to try to support probable

cause, it demonstrates that the deputy

does

not

have

probable

cause.

Additionally, it is not reasonable for a

deputy to rely upon a suspect’s

performance on a field-sobriety test for a

finding of probable cause for a DUI

arrest when the test has been

administered incompetently. 62

Kingsland v. City of Miami, 382 F.3d 1220, 1223,

1230–31 (11th Cir. 2004); Dorman v. Florida, 492

So.2d 1160, 1162 (Fla. 1st DCA 1986). These

instructions were necessary based upon the evidence

at trial that MacArthur did not consider exculpatory

evidence of which she was aware, did not investigate

other exculpatory evidence readily available to her,

and falsified her reports by not only misrepresenting

evidence, but also by excluding exculpatory

evidence. 63

62 D.154pp.11-12;D.183p.3 (citations omitted) (emphasis in

original).

63 Barnett’s Eleventh Circuit Opening Brief pp.4-18,33-55.

20

In summary, the jury’s verdict cannot be relied

upon because the instructions gave the jury “‘a

misleading impression or inadequate understanding

of the law and the issues to be resolved.’” Steger v.

Gen. Elec. Co., 318 F.3d 1066, 1081 (11th Cir. 2003)

(quoting Stuckey v. N. Propane Gas Co., 874 F.2d

1563, 1571 (11th Cir. 1989) (quoting Bass v. Int’l Bhd.

of Boilermakers, 630 F.2d 1058, 1062 (5th Cir. 1980))).

A new trial should have been granted on the Section

1983 claim against MacArthur because the

instructions left “the jury to speculate as to an

essential point of law,” including whether Barnett

could have been released after the 0.000 Breathalyzer

test results. Cruthirds v. RCI, Inc., 624 F.2d 632, 636

(5th Cir. 1980); Pate v. Seaboard R.R., Inc., 819 F.2d

1074, 1080–81 (11th Cir. 1987); Somer v. Johnson, 704

F.2d 1473, 1478 (11th Cir. 1983). The jury’s questions

made it clear that they did not understand the concept

of probable cause, or how to evaluate it, particularly

regarding the continued detention.

3. The Evidence Did Not Support a Finding

of Probable Cause.

The jury’s finding that MacArthur did not

intentionally violate Barnett’s Fourth Amendment

right not to be arrested or detained without probable

cause also was against the great weight of the

evidence. The evidence at trial did not materially

differ from the evidence presented at summary

judgment. 64 Based upon virtually identical evidence,

albeit viewed in the light most favorable to Barnett,

both the District Court and the Eleventh Circuit had

64 D.92;D.175,179,181,183.

21

previously ruled that the evidence did not support

arguable probable cause for the arrest or continued

detention, let alone actual probable cause. 65

Specifically, the Eleventh Circuit had stated, “we do

not believe a reasonable officer could have found

probable cause to arrest Barnett” and “no reasonable

officer could have found there was probable cause to

continue to detain Barnett” after the 0.000

Breathalyzer results. Barnett, 715 F. App’x at 907. As

the District Court put it: “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.” 66 Accordingly, the jury’s verdict was

contrary to the great weight of the evidence presented

at trial. Brown v. Sheriff of Orange Cty., Fla., 604 F.

App’x 915 (11th Cir. 2015); Lamonica v. Safe

Hurricane Shutters, Inc., 711 F.3d 1299, 1312–13

(11th Cir. 2013); St. Luke's Cataract & Laser Inst.,

P.A. v. Sanderson, 573 F.3d 1186, 1200 n. 16 (11th Cir.

2009); Lipphardt v. Durango Steakhouse of Brandon,

Inc., 267 F.3d 1183, 1186 (11th Cir. 2001).

That evidence included MacArthur turning off

her microphone twice during the investigation,

apparently to hide her inexperience and doubt as to

whether there was probable cause to arrest Barnett. 67

Additionally, there was undisputed evidence that

MacArthur had no reason to believe Barnett was

impaired by any type of drugs when she placed

65 D.111;D.126pp.25-27.

66 D.111p.12.

67 D.175-Exs.21&22.

22

Barnett under arrest, and that she admitted she did

not have probable cause to arrest Barnett for drug

impairment. Likewise, Deputy Betham, a Drug

Recognition Expert, testified that he observed no

signs whatsoever that Barnett was impaired by drugs

when she arrived at the jail. 68 As the Eleventh Circuit

put it, “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.” Barnett, 956 F.3d 1291, 1291.

There also was considerable evidence that

MacArthur administered and scored the field sobriety

tests improperly. 69 Moreover, Love and both expert

witnesses agreed that MacArthur should have taken

Barnett’s injuries into consideration in evaluating

Barnett’s performance on the tests. 70 Barnett’s

medical records showed that she was unable to do a

similar heel-to-toe walk and one leg stand for her

doctor just days before the stop. 71

Moreover, the jury was prejudiced by the

Defendants’ evidence and arguments at trial

attempting to shift blame away from MacArthur,

particularly by taking positions opposite to those

previously taken by the Defendants in the litigation.

For example, Defendant’s closing argument included

that MacArthur truly believed that she saw

nystagmus despite all the evidence that the tests were

“garbage” because she did not perform them correctly.

68 D.179pp.22,34;D.181p.209.

69 D.181p.33-35,67;D.175Ex.3;D.181pp.434-65;D.181pp.218-19.

70 D.175p.150,D.181pp.24-26,54-55,215-16.

71 D.181pp.158-59.

23

Defendants also argued that MacArthur should not be

held liable for the continued detention because

Lemma’s Hold Policy did not give her the discretion to

release Barnett for at least eight (8) hours. 72 This was

contrary to Defendants’ prior position that MacArthur

was entitled to qualified immunity for the continued

detention. 73,74 Barnett, 715 F. App’x at 906 (“there is

no dispute over whether MacArthur was acting

within the scope of her discretionary authority as a

Deputy Sheriff of Seminole County when she arrested

and detained Barnett”). Defendant’s reliance on its

official policy at trial was also contrary to its prior

position that Florida Statute Section 316.193(9)

required the eight (8) hour detention, 75 a position

which the District Court had agreed with76 but the

Eleventh Circuit had rejected. Barnett, 715 F. App’x

at 908. Indeed, Defendants’ position was contrary to

the law of the case as stated by the Eleventh Circuit’s

Order:

Section 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 hour

lapse from the time of arrest and one of

72 D.175p.69;D.181pp.229, 252.

73 See, e.g., D.476pp.13–16. Defendants took the position in

their summary judgment pleadings and in the interlocutory

appeal that MacArthur had the requisite discretion because,

otherwise, MacArthur had no qualified immunity for the

continued detention. Id.

74 D.111p.12; D.126p.23.

75 D.41pp.4-6.

76 D.111p.12.

24

which is a blood-alcohol level below 0.05.

Fla. Stat. § 316.193(9)(b)–(c). Florida law

grants officers discretion in making a

DUI arrest and in releasing a DUI

arrestee. 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. When an officer exercises her

discretion to refrain from releasing a

DUI arrestee where there is no longer a

basis for the arrest or detention, on the

unsupported ex post justification that

“there was something,” she exercises her

discretion in clear violation of the Fourth

Amendment.

Id. (emphasis in original); see generally Riley v.

Camp, 130 F.3d 958, 962 (11th Cir. 1997) (explaining

that the district court and appellate court are bound

by law of the case developed on prior interlocutory

appeal).

In effect, having been relieved of liability for the

Monell claim by the District Court’s summary

judgment ruling, 77 Lemma all but admitted liability

for the claim during trial. In fact, Lemma stipulated

in the Pretrial Statement that “Defendant Eslinger

[now Lemma] has an official policy, practice or custom

of requiring that DUI arrestees be detained in jail for

77 D.111pp.16-19.

25

a minimum of eight (8) hours.” 78 Despite the

stipulation, Defendants repeatedly introduced

evidence that Lemma’s policy requires holding DUI

arrestees for at least eight (8) hours regardless of

whether probable cause exists to support the

continued detention and that MacArthur had no

discretion to release Barnett, including testimony by

Betham, MacArthur, and Love. 79 Moreover, contrary

to the Eleventh Circuit’s ruling that MacArthur

exercised her discretion in violation of the Fourth

Amendment when she did not release Barnett because

she felt “there was something,” id., Defendants

repeatedly suggested to the jury that Barnett “could

have been” impaired by drugs despite the complete

absence of any evidence that she was. 80 Defendants’

position hopelessly confused the jury regarding

whether Defendants, particularly MacArthur, could

be held liable for the continued detention of Barnett

after the 0.000 Breathalyzer results. For all these

reasons, this Honorable Court cannot rely upon any

alleged finding of probable cause by the jury in this

case.

4. Law Enforcement Cannot Continue a

Detention for 48 Hours When Probable

Cause Does Not Exist.

Lemma first presents a new argument in his

Petition that, if Barnett had not posted bond prior to

the eight-hour minimum hold required by his Hold

Policy, she would have no claim because Lemma could

78 D.142p.8.

79 D.175-Ex.17-20;D.179p.38;D.181p.123;D.179p.37.

80 D.175pp.69-70,190-91;D.179pp.22,35,37;D.181p.70.

26

have held Barnett even longer, namely, until her first

appearance as long as it occurred within 48 hours. To

the contrary, regardless of whether Barnett posted

bond, the Constitution required that Barnett be

released from custody once it was clear that there was

no probable cause to support her continued detention.

Barnett, 956 F.3d at 1297 (citing, among other

authorities, 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, 863 F.2d at 1185

(“[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 L.A., 935 F.3d 685,

691 (9th Cir. 2019) (“It is 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); 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”)))).

Gerstein and require release if a judge does not

determine there is probable cause within 48 hours to

protect individuals’ constitutional right not to be

detained without probable cause. They do not say that

the Constitution permits a 48-hour detention

27

regardless of whether it becomes clear during the first

hour, as it did in this case, that probable cause is

lacking. Id.

5. The Eleventh Circuit Did Not Impose New

Duties on Law Enforcement.

Lemma next argues that this Court’s decisions

in Gerstein and McLaughlin did not say there must be

an “independent and continuing reassessment of

probable cause either by the arresting officers or by

jail officials.” Pet. p. 15. But neither did the Eleventh

Circuit; the Eleventh Circuit said the opposite:

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.

Barnett, 956 F.3d at 1301. Rather, when law

enforcement learns information that makes it clear

that probable cause no longer exists, the constitution

forbids continuing the detention.

6. Other Cases Are Not At Odds with the

Eleventh Circuit.

Lemma also tries to distinguish the cases the

28

Eleventh Circuit cited to support its decision, arguing

they are “inapposite to the case at hand.” Pet. p. 16.

The distinctions Lemma attempts to make, however,

do not demonstrate any disagreement and, in fact, the

overwhelming weight of authority, if not all the

authority, supports the Eleventh Circuit’s decision.

For example, Lemma attempts to distinguish

BeVier, Nicholson, and McConney, in which the

Seventh, Ninth, and Fifth Circuits, respectively,

found Fourth Amendment violations where officers

continued detaining arrestees after learning of

information dissipating probable cause. According to

Lemma, while subsequent evidence in those cases

sufficiently disproved probable cause, such a finding

is not warranted here because (1) a jury found

probable cause for Barnett’s arrest for DUI, and (2)

the 0.000 Breathalyzer results did not rule out that

Barnett was impaired by controlled substances. Pet.

pp. 16–19. First, as stated above, this Court cannot

rely upon the jury’s verdict as a finding of probable

cause in this case. Second, Lemma’s contention

regarding the Breathalyzer results is immaterial

given that, as the Eleventh Circuit stated, “Deputy

MacArthur and Mr. Betham admitted there was no

evidence that Ms. Barnett … was under the influence

of drugs.” Barnett, 956 F.3d at 1291.

Next, attempting to distinguish BeVier,

Lemma states that the court there held that “probable

cause dissipated because a social worker suggested

alternatives to arrest.” Pet. p. 17 (citing BeVier, 806

F.2d at 128). That is no different than the situation

MacArthur

faced

with

Barnett.

MacArthur

29

indisputably had the authority to exercise her

discretion not to arrest Barnett. MacArthur could

have allowed Barnett to get a ride home along with

her passenger, whose brother came to drive her home,

if MacArthur had any concern about Barnett’s ability

to drive. 81 Moreover, Lemma fails to mention that

BeVier holding was also based on the court’s finding

that there was no evidence that the plaintiffs knew of

their children’s condition, which was required by the

child neglect statute for which they were arrested, and

that the social worker subsequently informed the

arresting officer that the plaintiffs had not violated

the child neglect statute. See BeVier, 806 F.2d at 126–

28. Similarly, in this case, MacArthur admitted that

there was no evidence that Barnett was impaired by

any controlled substances and MacArthur was

subsequently informed by way of the 0.000

Breathalyzer results that Barnett was not impaired

by alcohol. Thus, probable cause for Barnett’s

detention for DUI, if any, had dissipated.

Next, Lemma tries to distinguish Nicholson,

which involved the detention of teenagers with a toy

gun. See 935 F.3d at 689. Lemma states that the

officers’ on-the-scene determination that the gun was

a toy “might well merit the conclusion … that probable

cause had been eliminated ‘beyond a reasonable

doubt,’” but that such a conclusion is not warranted

here “given that a) a jury has found that Barnett was

arrested with probable cause for DUI, and, b) analysis

of the urine sample remained pending.” Pet. pp. 17–

81 D.35-3;64:38:16-39:4;D.66:119:14-120:11;D.179:233:10234:21.

30

18. Lemma’s reasoning is erroneous. Similar to the

officers in Nicholson determining on-the-scene that

the plaintiffs were unarmed and not engaged in

criminal activity, MacArthur determined before

Barnett was booked into jail that Barnett was not

under the influence of alcohol. That MacArthur then

requested a urine sample knowing there would be no

results for weeks cannot justify the continued

detention in light of MacArthur and Betham’s

admissions that there was no evidence that Barnett

was under the influence of drugs. There was no

probable cause to continue to detain Barnett. The

Constitution does not permit detaining people based

upon conjecture that “there might be something.”

Finally, Lemma attempts to distinguish

McConney in which “[t]he Fifth Circuit held that a

jail’s four-hour hold of a sober plaintiff was

unconstitutional.” Pet. p. 18. According to Lemma,

such a conclusion was warranted in McConney

because “there was testimony that a jail official

‘indicated in substance that he knew (plaintiff) was

sober’ but had to follow a regulation to hold him for

four hours.” Id. (quoting McConney, 863 F.3d at 1183

(alteration in original). Lemma further argues that

such a conclusion was not warranted in this case

because the results of Barnett’s urine sample were not

yet known. Id. at 19. However, similar to McConney,

both MacArthur and Betham admitted that there was

no evidence that Barnett was impaired by drugs and

they knew she had zero alcohol in her system. Their

only justification for continuing to detain Barnett was

Lemma’s eight-hour hold policy. Therefore, contrary

to Lemma’s assertions, there was no probable cause to

31

continue detaining Barnett let alone require a urine

sample from her.

In short, all of the cases support the Eleventh

Circuit’s decision. That leaves Lemma with the one

Sixth Circuit split panel decision in Peet in which the

majority said there was no precedent to require

release when law enforcement learns probable cause

no longer exists. Peet cited no authority to support its

statement, which was incorrect. The Sixth Circuit had

long recognized the constitutional right to be free of

continued detention without probable cause. E.g.,

Gregory v. City of Louisville, 444 F.3d 725, 749–50

(6th Cir. 2006) (discussing whether continued

detention claims should be brought as malicious

prosecution or 1983 claims and noting that the law

had been clearly established well prior to 1993) (citing

Spurlock v. Satterfield, 167 F.3d 995, 1006-07 (6th

Cir. 1994). 82 A panel decision of the Sixth Circuit

cannot overrule the decision of a prior panel, thus,

Peet’s contrary position is not controlling in the Sixth

Circuit. E.g., Salmi v. Sec'y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985) (explaining

that a panel decision cannot overrule a prior panel

decision) (citations omitted). Therefore, Sixth Circuit

precedent is not in conflict with the Eleventh Circuit’s

decision.

Additionally, as the Eleventh Circuit pointed

out, the Sixth Circuit failed to recognize other courts’

prior decisions that were contrary to its statement and

82 The dissenting opinion in cited the Gregory decision for this

very proposition. Peet, 502 F.3d 579.

32

incorrectly assumed that requiring release would

necessarily impose an affirmative duty to re-evaluate

the matter of probable cause with every new piece of

information or evidence. Barnett, 956 F.3d at 1300–01

(declining

to

follow

Peet v. City of Detroit, 502 F.3d 557, 565 (6th Cir. 20

07)). As such, the Peet panel’s ill-considered

statements in the majority opinion do not warrant this

Honorable Court’s consideration in light of the Sixth

Circuit’s contrary cases and the nearly universal

decisions from all other courts to the contrary.

7. The Eleventh Circuit’s Standard Is Not

Unworkable Or Unreasonable.

Lemma next claims the Eleventh Circuit’s

standard is not workable or reasonable. However, the

Eleventh Circuit considered and balanced the

concerns of law enforcement and the Constitution.

The Court determined that the standard “properly

balances the competing liberty interests and law

enforcement concerns and remains faithful to the

Fourth Amendment's textual command that seizures

and detentions be reasonable.” Barnett, 956 F.3d at

1301 (citing Riley v. Cal., 573 U.S. 373, 381, 134 S. Ct.

2473, 189 L.Ed.2d 430 (2014) (“As the text makes

clear, the ultimate touchstone of the Fourth

Amendment is reasonableness.”) (citation and

internal quotation marks omitted)). This standard has

worked in the First, Fifth and Seventh Circuits since

the 1980s. E.g., BeVier, 806 F.2d at 128; McConney,

863 F.2d at 1185; Thompson, 798 F.2d at 556. It has

since been adopted by the Ninth and Eleventh

Circuits. E.g., Nicholson, 935 F.3d at 691; Barnett,

33

956 F.3d at 1297. The standard adopted by the

Eleventh Circuit has not proven unworkable in the

nearly 40 years it has been utilized.

Contrary

to

Lemma’s

suggestion,

Constitutional rights are not disposable simply

because it is more expedient for law enforcement to

ignore them. Lemma argues that it is too taxing for

law enforcement to have to reassess whether probable

cause still exists when it learns new information.

However, the standard of beyond a reasonable doubt

makes release necessary only in cases where it should

be obvious to any reasonable officer that probable

cause no longer exists. In other words, it is only in

cases like Barnett’s, where it was abundantly clear

that the probable cause has dissipated, that release is

required. Any reasonable officer should have known

that there was no longer probable cause when

Barnett’s breathalyzer came back zero and the only

reason she was arrested was the officer’s belief that

she was impaired by alcohol. If anything, the standard

adopted by the Eleventh Circuit is weighted too much

in favor of law enforcement by requiring that the

evidence demonstrate “beyond reasonable doubt” that

there is no longer probable cause for a detention for an

arrestee’s constitutional rights to prevail, and not

imposing any duty at to reassess probable cause

unless exculpatory evidence happens to fall in law

enforcement’s lap. This standard will surely result in

many continued detentions unsupported by

continuing probable cause when the Constitution

requires erring on the side of release rather than

detention.

34

8. No Clarification Is Needed Because Other

Jurisdictions Do Not Permit Continuing

Detentions Unsupported By Probable

Cause.

Lemma also claims that DUI arrests present a

unique problem because the person might bond out

while still intoxicated and, thus, might pose a threat

to themselves or others. This is not a unique problem,

however. For example, many arrested for violent

crimes or crimes like drug trafficking also may pose a

threat to themselves or others when released. That

risk does not justify unconstitutional detentions, nor

is there anything unique about DUI arrests that

warrants exempting them from the Fourth

Amendment.

Similarly, the Eleventh Circuit’s opinion does

not defeat the supposed public safety justification for

holding DUI arrestees as Lemma suggests. There is

no public safety justification for jailing a person that

law enforcement knows, beyond a reasonable doubt,

there is no probable cause to believe is under the

influence.

Lemma’s argument also ignores that Florida’s

statutory scheme allows for release either after the

arrestee is no longer impaired, after the person's

blood-alcohol level is less than 0.05; or after eight

hours. § 316.193, Fla. Stat. (2019). Lemma simply

chose to ignore the first two options for every DUI

arrestee, both of which authorized releasing Barnett

in this case, insisting instead on holding every

arrestee for at least eight hours regardless. In fact,

MacArthur could have exercised her discretion to

35

release Barnett at the scene instead of arresting her.

In fact, her passenger’s brother arrived at the scene to

drive his sister home before Barnett was placed under

arrest, and Barnett could have ridden home with them

if there were concern over her ability to drive.

Moreover, Florida has a separate statutory scheme

that allows for the detention of an intoxicated person

who is a danger to herself or others; it’s commonly

known as the Marchman Act. § 397.301 et seq., Fla.

Stat. (2019). As such, Lemma’s alleged safety concerns

do not justify the arrest or the continued detention.

Lemma attempts to portray the issue as though

it is a widespread concern throughout the country.

However, most of the statutes and cases to which he

cites are not DUI laws at all. And, as Lemma points

out, various states have differing policies for when

intoxicated individuals can be detained. However,

that patchwork of different approaches is all the more

reason to deny certiorari in this case, particularly

since none of the statutes or cases are contrary to the

Eleventh Circuit’s holding.

The North Dakota statute Lemma points to is

not a DUI statute, but a public intoxication statute

more akin to Florida’s Marchman Act. N.D. Cent.

Code Ann. § 5-01-05.1. The statute provides

alternatives to jail as long as the person is not a

danger to herself or others, including taking the

individual home or to a hospital or detoxification

center. Id. Nonetheless, the City of Jamestown

insisted on holding every DUI arrestee for at least

eight hours in violation of the statute, like Lemma,

reasoning that all arrestees pose a danger to

36

themselves and others. This resulted in the dismissal

of the DUI charges as a sanction for violating the law.

City of Jamestown v. Erdelt, 513 N.W.2d 82, 83 (N.D.

1994). No Constitutional issue was raised or

addressed, and the case is not inapposite to the

present case. Id.

Lemma also points to the case of City of Fargo

v. Stutlien, 505 N.W.2d 738, 741 (N.D. 1993), in which

the Supreme Court of North Dakota discussed the

interplay between the state’s DUI statute and the

state’s civil commitment statute and said the latter

provided the appropriate avenue for addressing safety

concerns. Thus, it was improper to create a blanket

“minimum period of detention” for DUI arrestees to be

held in jail for up to 12 hours or until their BAC was

below .05. City of Fargo discussed this Court’s

decisions in Gerstein and McLaughlin, rejecting the

same argument Lemma makes in this case, i.e., that

this Court allows up to a 48 hour hold regardless of

the circumstances. Id. As City of Fargo put it:

“Although those decisions allow detention for

completion of the administrative steps incident to a

warrantless arrest, they do not involve blanket

“minimum periods of detention” and specifically

disapprove “delays for the purpose of gathering

additional evidence to justify the arrest, a delay

motivated by ill will against the arrested individual,

or delay for delay's sake.” (quoting County of

Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661,

1650, 114 L. Ed. 2d 49, 63 (1991) and citing Gerstein

v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54

(1975)). Again, the case is consistent with the

Eleventh Circuit’s decision.

37

The Kansas statute Lemma discusses is not a

DUI statute either. Again, it is a protective custody

statute more akin to Florida’s Marchman Act. It

allows law enforcement officers to detain a person

arrested for violation of a municipal ordinance for a

period not to exceed six hours if there is probable

cause to believe that the person may cause injury to

oneself or others, but only if there is no responsible

person or institution to which such person might be

released. Kan. Stat. Ann. § 12-4213. The statute has

no bearing on Lemma’s policy of holding DUI

arrestees for a minimum of eight hours regardless of

whether the probable cause for arrest has dissipated,

or regardless of whether the arrestee poses a threat to

herself or others, or regardless of whether there is a

responsible person to whom she could be released.

In the Tennessee case Lemma references, local

judges created a policy of detaining DUI arrestees who

refused to submit to a breath-alcohol tests in custody

for twelve hours. State v. Pennington, 952 S.W.2d 420,

421 (Tenn. 1997). The only constitutional issue raised

was double jeopardy, which was rejected, although the

court recognized the detentions could implicate other

constitutional protections. Id. at 423 (“A policy of

detaining suspected drunk drivers for refusing to

submit to a test to determine blood-alcohol content

may, if punitive, implicate certain constitutional

protections, but the double jeopardy clause is not one

of them…”). Again, the case is not inapposite to the

present case.

The Delaware case Lemma cites provides that,

under some circumstances, a person suspected of DUI,

38

but for whom the police officer does not have probable

cause, may lawfully be taken to the police station for

further investigation. However, the person can be held

for only two hours on reasonable suspicion, and the

police officer in that case violated the law by holding

the plaintiff for four hours. Thus, summary judgment

was denied on the unlawful detention claim. Glover v.

City of Wilmington, 966 F. Supp. 2d 417 (D. Del.

2013). Once again, the statute that supported the

detention was not a DUI statute. 11 Del. C. § 1902. It

was a reasonable suspicion statute generally

applicable to criminal investigations. Id. And, again,

Glover is not inapposite to this case, nor did it address

the constitutional issue at hand.

The Colorado statute discussed in Anaya v.

Crossroads Managed Care Sys., Inc., 195 F.3d 584,

591 (10th Cir. 1999), was another civil commitment

statute; not a DUI statute. Id. (citing Colo. Rev. Stat.

Ann. § 25–1–310(1)). The Court held that probable

cause justifying an arrest for a crime does not

necessarily provide probable cause to justify detaining

the arrestee in a detox center. Rather, there must be

probable cause to believe an intoxicated person is a

danger to himself or others. Id. Accordingly, the Court

reversed the summary judgment on the plaintiffs’

1983 claims. Id. Similarly, the other Tenth Circuit

case Lemma cites had nothing to do with detaining a

DUI arrestee. Panagoulakos v. Yazzie, 741 F.3d 1126,

1131 (10th Cir. 2013). Panagoulakos involved a

firearm charge and held that there was no clearly

established authority that required release under the

unique circumstances of that case. Id. Neither case is

contrary to the Eleventh Circuit’s opinion in this case.

39

CONCLUSION

Lemma’s Petition fails to demonstrate that

review by this Honorable Court is needed or

appropriate. The Eleventh Circuit’s opinion is

consistent with this Court’s precedent and all other

courts to have considered the same or similar issues,

save one decision that failed to cite or consider other

case law including its own precedent. The Fourth

Amendment does not permit holding a person in jail

for eight hours when law enforcement is well aware

that probable cause does not exist for the continued

detention.

Respectfully submitted,

Kendra D. Presswood

Florida Bar No.: 0935001

Counsel of Record

Email:

kpresswood@shankmanleone.com

Shankman Leone, P.A.

707 N. Franklin Street,

5th Floor Tampa,

Florida 33602

Telephone: 813/223-1099

Facsimile:

813/223-1055

Attorney for Respondent

Seana Barnett

40

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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