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.