Petition for Writ of Certiorari — Rankin v. Evans

Supreme Court, u.s.

‘tie.

9% 2012 WN 15 109

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

e

DOUG RANKIN and VICTORIA RANKIN,

Petitioners,

MARK EVANS, RICHARD WILLIE, SHERIFF OF

PALM BEACH COUNTY, PALM BEACH

COUNTY SHERIFF’S DEPARTMENT,

Respondents.

o

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

&

PETITION FOR WRIT OF CERTIORARI

+

Donatp M. HINKLE

Counsel of Record

FONVIELLE HINKLE & Lewis

3375 Capital Circle Northeast,

Building A

Tallahassee, Florida 32308

(850) 422-7773

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Rule 50(a)(2) of the Federal Rules of Civil Procedure

requires a party seeking judgment as a matter of law to

“specify the judgment sought and the law and the facts

on which the moving party is entitled to the judgment.”

This specificity requirement is necessary “so that the

responding party may seek to correct any overlooked

deficiencies in the proof.” Advisory Committee Notes to

1991 Amendments to Fed.R.Civ.P. 50. If a party moves for

judgment as a matter of law at the close of ali the evi-

dence, and the trial court denies the motion, the moving

party may renew its motion for judgment as a matter of

law after trial. Fed.R.Civ.P. 50(b). In light of these provi-

sions, two issues arise:

I. Whether a moving party satisfied the specificity

requirement of Fed.R.Civ.P. 50(a)(2) when the party: (a)

failed to identify any grounds for either of its motions for

judgment as a matter of law; (b) relied on an earlier-

prepared trial memorandum that did not purport to be a

motion for judgment as a matter of law and was never

advocated as or incorporated into one; and (c) omitted

any reference to the basis the trial court ultimately used

to grant renewed judgment as a matter of law on a

section 1983 claim until two months after a jury verdict

was rendered against the moving party.

Il. Whether Petitioners Doug and Victoria Rankin’s

Seventh Amendment right to a civil jury trial free from

being “otherwise re-examined in any Court of the United

States” was violated where the jury verdict in their favor

was vacated five months later on grounds that were not

QUESTIONS PRESENTED - Continued

raised at trial in accordance with the Federal Rules of

Civil Procedure or caselaw interpreting their application.

ili

LIST OF PARTIES

The parties to the proceeding sought to be reviewed

are Doug and Victoria Rankin; Mark Evans; Palm Beach

County, Florida Sheriff's Department; and Richard Willie,

Sheriff of Palm Beach County.

TABLE OF CONTENTS

Page

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TAO OP SPIE TEES 5 coh ee wkd ews vaca ecauaes iv

FAs Se PART I Eo vo os eG einer ee eaks Vv

SIN TO i Se en 2 EEE HES OF 1

STATEMENT OF FURISUOICTION. ..0.. 0 escieeeeds l

SEARS Ore SP BEER GAD oe eee vewkevwewens's i

REASONS FOR GRANTING THE PETITION....... 5

ee PROS cute d50 had bee ooh bear ee enews 16

APPENDIX:

A. Rankin v. Evans, 133 F.3d 1425 (11th Cir.1998) .. A-1

B. Order of Hon. Judge Jose Gonzalez entereci

May 15, 1995, case number 91-8012-CIV-

Sa eRe sees ee eos a ae aa bee hs ae B-1

C. Eleventh Circuit Order denyirg rehearing

ERGO FETE Sp Ps oa tn se eas Cree ceeen C-1

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)... .. 6

Austin-Westshore Construction Co. v. Federated Dept.

Stores, Inc., 934 F.2d 1217 (lith Cie. 1991).......... 11

Francis v. Clark Equipment Co., 993 F.2d 545 (6th

Beare Perera aire Demat mE eis Peet ey 10

Food Lion v. Capital Cities/ABC, Inc., 984 F.Supp.

Fae CURA BORER a5 vce bp ch decree eee aes 14

Gordon v. County of Rockland, 110 F.3d 886 (2d

Cir.1997), cert. denied, 118 S.Ct. 74 (1997).......... 12

Hetzel v. Prince William County, 118 S.Ct. 1210

E . . | ERPRRa aa amare Ogee: Ss PN eh Mma We ag pe 15

Karns v. Emerson Elec. Co., 817 F.2d 1452 (10th

CORSO SD <es i anSa ehns cee eee ae OR PrOae ee) 11

Kutner Buick, Inc. v. American Motors Corp., 868

Rr BES Tk CA I ee esas ea 8, 9, 12

Lewis v. Kendrick, 944 F.2d 949 (1st Cir.1991).......... 7

Livingston Chemicals, Inc. v. Permviro Systems, Inc.,

9Gi Fa: 1251 (4th Cer F982). ose ie cee 9, 10, 14

Mallick v. International Brotherhood of Electrical

Workers, 644 F.2d 228 (3d Cir.1980)........ eS areecaran 14

Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir.1989)..5, 15

Miller v. Premier Corp., 608 F.2d 973 (4th Cir.1979) .... 10

Minh Tu v. Mutual Life Ins. Co., 136 F.3d 77 (1st

CSP nv ne Wen Whee ne eas eee eee ekereer eee ras 16

vi

TABLE OF AUTHORITIES — Continued

Page

Neely v. Eby Construction Co., 386 U.S. 317 (1967)..... 6

Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d

GD Ee CSE aos veo Coo ee eae 12

Perdoni Brothers, Inc. v. Concrete Systems, Inc., 35

S Bat) Ch | PR tr ay eames 7, 8

Piesce 0. Koch, 12 F.36 SSS Gee GAG T9RS) oe cence d's 8

Pulla v. Amoco Oil Co., 72 F.3d 648 (8th Cir.1995).... 10

Stewart v. Thigpen, 730 F.2d 1002 (5th Cir.1984)...... 12

U.S. Leather, Inc. v. H&W Partnership, 60 F.3d 222

(Sets CE FP ka a a ake er Ca el oak cae eee eee 5

Urso v. United States, 72 F.3d 59 (7th Cir.1996)....... 12

Waters v. Young, 100 F.3d 1437 (9th Cir.1996) ........ 10

CONSTITUTIONAL PROVISIONS

LS. <cient Es eo eg ee e a rae 13, 14, 15, 16

STATUTES

USC. 819500 5 ee 1

USC. 6 198 ae ee ee 3

20 USC: & 1988: oo ee 3

£0 WK... | LORS) 0600s ecko sd Reese eee Kees 3

QM

USC. & We oe eee

TABLE OF AUTHORITIES — Continued

Pa ge

RULES

Federal Rule of Civil Procedure 6(b)....... ae

Federal Rule of Civil Procedure 50.............. passim

Federal Rule of Civil Procedure 59.............. ey,

TREATIES

9 Wright & Miller, Federal Practice and Procedure

Bo RRR BEEN Aaa 15

MISCELLANEOUS

Advisory Committee Notes to 1991 Amendment

ep Pe ee PUG ee nc Oa ok cae ead PES Ee le Pe Lee 1]

OPINIONS BELOW

The January 29, 1998 opinion of the Eleventh Circuit

Court of Appeals, which is herein sought to be reviewed,

is reported at 133 F.3d 1425 (11th Cir.1998). It is reprinted

in the appendix to this petition at App. A. The prior order

of the United States District Court for the Southern Dis-

trict of Florida, entered May 15, 1995, case number

91-8012-CIV-GONZALEZ, is unpublished. It is attached

to this petition at App. B.

STATEMENT OF JURISDICTION

The decision of the Eleventh Circuit Court of Appeals

was issued on January 29, 1998. App. A. Timely applica-

tion for rehearing was submitted, and the Court of

Appeals denied rehearing on April 2, 1998. App. C. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

STATEMENT OF THE CASE

Relevant Facts and Procedural History

Throughout most of the 1980s, Doug and Victoria

Rankin owned and operated without incident the Sugar

Plum School House in Lake Worth, Florida. On Novem-

ber 7, 1988, child psychologist Martha Brake enrolled her

three-year-old daughter, Amber, at the school. Brake

quickly became dissatisfied, yelled at other parents, and

after two weeks removed Amber from Sugar Plum.

On November 21, 1988, after cleaning out Amber’s

school locker and taking her child home, Brake made an

audio recording of her daughter stating that “Baba Loo”

made a “hole” in her “bottom.” Brake took Amber to

pediatrician Dr. Donald Drummond the same day, where

an examination showed “long term” injury of a small

healed notch in her hymen that was at least two to three

weeks old and perhaps older. This healed notch was the

only purported evidence of penetration. Significantly, as

Amber was at Sugar Plum for only two weeks, the healed

notch indicates the injury pre-dated Amber’s presence at

the school and contact with Mr. Rankin. The examination

also showed fresh irritation consistent with tight under-

Wear or vigorous wiping.

The next morning, November 22, 1988, Brake took

Amber to Palm Beach County Sheriff’s Department Dep-

uty Mark Evans. During the child’s videotape interview,

she was asked what happened at school. Amber replied,

' After repeated prompting and being

asked “What’s his name?,” Amber mentioned “Pluto,”

then “Donald Duck,” then finally “Baba Loo.” At no point

in the interview did anyone ask Amber who “Baba Loo”

was or who she used that term to refer to. The mother,

but never the child, identified “Baba Loo” as Mr. Rankin.

“I don’t know.’

Deputy Evans then called Dr. Drummond, who told

Deputy Evans of the “long term” injury. Deputy Evans

denied this at trial, but was impeached by his own hand-

written notes stating the evidence of penetration was

“long term.”

With less than an hour’s investigation and in the face

of conflicting evidence, Deputy Evans sought the arrest of

Doug Rankin for sexual battery on a child under 12 years

of age, a capital felony in Florida. The case was submitted

to a grand jury that did not indict Mr. Rankin, choosing

instead to declare him “completely innocent.” All charges

were dropped, but Doug and Victoria Rankin, ostracized

by this highly publicized case, had to sell the school and

leave the community.

On January 10, 1991, Petitioners Doug and Victoria

Rankin filed a two-count complaint in U.S. District Court

for the Southern District of Florida against Deputy Mark

Evans, the sheriff of Palm Beach County, and the Palm

Beach County Sheriff’s Department. Count one was a

section 1983 claim (42 U.S.C. § 1983), and count two was a

state claim for false arrest. The basis for jurisdiction was

28 U.S.C. §§ 1331, 1332, and 1343(3).

The case went to jury trial in December 1994 before

the Honorable Judge Jose Gonzalez, Jr. On December 20,

1994, at the close of Petitioners/Plaintiffs’ case, the

Respondents/Defendants moved for judgment as a mat-

ter of law (formerly known as directed verdict). The

motion was one sentence: “The Defendants, Mark Evans

and Richard P. Wille will move for a directed verdict.”

Respondents/Defendants gave no grounds for their

motion. The court denied the motion, saying it had con-

sidered the evidence and testimony as well as Respon-

dents /Defendants’ trial memorandum and the cases cited

in it. The trial memorandum, prepared before trial, did not

discuss or integrate the evidence adduced at trial; was

not relied upon by Respondents/Defendants during the

motion; and was not advocated or represented as supple-

mental to or explaining the one-sentence motion for judg-

ment as a matter of law.

After their motion was denied, Respondents /Defen-

dants put on their case. At the close of all the evidence,

Respondents / Defendants again moved for judgment as a

ntatter of law. The motion was again made up of one

sentence: “Defendant Mark Evans and Richard B. Wille

would renew its [sic] motion for a directed verdict.” As

before, Respondents /Defendants gave no grounds for the

motion, and also did not refer to the pre-made trial

memorandum. The court denied the motion “on the basis

previously announced at the close of the Plaintiffs’ case in

chief.” On December 21, 1994 the jury found for Peti-

tioners/ Plaintiffs on both counts.

Final judgment was entered for the Rankins on

December 23, 1994. Post-trial motions included Respon-

dents/Defendants’ January 4, 1995 motion for judgment

notwithstanding the verdict (now known as motion for

renewed judgment as a matter of law). The motion abso-

lutely failed to allege existence of probable cause as grounds to

grant the motion on the section 1983 claim. Instead, the

JNOV motion alleged Deputy Evans’ conduct did not

demonstrate deliberate or callous indifference, and

argued against Ms. Rankin’s loss of consortium claim. It

was not until February 27, 1995 —- more than two months

after the verdict and nearly two months after the time to

file post-trial motions expired! - that Respondents /

' The trial court deemed the February 27, 1995

correspondence as “memoranda” rather than part of a post-trial

motion. This was designed to allow Respondents /Defendants

to add the belated probable cause defense beyond the ten-day

period to file post-trial motions. However, the rules provide that

the period for filing and serving a renewed motion for judgment

as a matter of law may not be enlarged by the court, even for

Defendants raised the probable cause issue on the section

1983 claim.

This fact is significant because the sole basis for the

trial court’s order granting renewed judgment as a matter

of law was on the probable cause issue — an argument not

made at the first motion for judgment as a matter of law;

not made at the second motion for judgment as a matter

of law; and not made in Respondents/Defendants’

motion for JNOV on the section 1983 claim. Focusing

primarily on the probable cause issue, the Eleventh Cir-

cuit Court of Appeals affirmed the trial court’s order of

judgment as a matter of law. For the reasons expressed

below, Petitioners/Plaintiffs seek certiorari review.

¢

REASONS FOR GRANTING THE PETITION

The Court should grant the petition because there is

substantial confusion and conflicting decisions among the

federal circuit courts about the specificity required to

satisfy Fed.R.Civ.P. 50. Further, the Eleventh Circuit Court

of Appeals sanctioned a radical departure of the accepted

and usual course of judicial proceedings so as to call on

the Supreme Court’s supervisory power and plenary

review over application of the Federal Rules of Civil

Procedure. Finally, certiorari should be granted because

the proceedings below violated Petitioners/Plaintiffs’

rights under the Seventh Amendment.

cause. Fed.R.Civ.P. 6(b); U.S. Leather, Inc. v. H&W Partnership, 60

F.3d 222, 225 (Sth Cir.1995); Meriwether v. Coughlin, 879 F.2d

1037, 1041 (2d Cir.1989).

Issue I. Whether a moving party satisfied the

specificity requirement of Fed.R.Civ.P. 50(a)(2)

when the party: (a) failed to identify any

grounds for either of its motions for judgment

as a matter’of- law; (b) relied on an earlier-

prepared trial memorandum that did not pur-

port to be a motion for judgment as a matter of

law and was never advocated as or incorpo-

rated into one; and (c) omitted any reference to

the basis the trial court ultimately used to

grant renewed judgment as a matter of law on

a section 1983 claim until two months after a

jury verdict was rendered against the moving

party.

The last time this Court thoroughly discussed the

requirements of Rule 50 was more than thirty years ago.

Neely v. Eby Construction Co., 386 U.S. 317 (1967).2 Since

that time, the circuit courts of appeals have reached

divergent conclusions about how specific a party moving

for judgment as a matter of law must be to satisfy

Fed.R.Civ.P. 50(a)(2). The rule is as follows:

Rule 50. Judgment as a Matter of Law in Jury

Trials; Alternative Motion for New Trial; Condi-

tional Rulings

(a) Judgment as a Matter of Law

(2) Motions for judgment as a matter of law

may be made at any time before submission of

the case to the jury. Such a motion shall specify

the judgment sought and the Jaw and the facts

2 The Court also discussed Rule 50 as it relates to Rule 56

(summary judgment) in Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986).

on which the moving party is entitled to the

judgment.

(emphasis added)

The importance of this provision was made clear in

Lewis v. Kendrick, 944 F.2d 949 (1st Cir.1991), which like

the case at bar involved section 1983 and pendant state

claims against police officers. The Lewis court, including

the Hon. Stephen BREYER (then Chief Judge of the First

Circuit Court of Appeal), approved the trial court’s

refusal to grant a directed verdict on qualified immunity,

noting that the defense failed to specify grounds at its

motion for directed verdict as required by Rule 50(a).

Lewis, 944 F.2d at 953 (“At the close of the evidence

counsel for the officers still had no written motion. He

merely said, “I simply want to renew my oral motion

earlier for directed verdict on all counts... ”; “[T]he rule

requires in the motion a specification of the grounds.

Fed.R.Civ.P. 50(a) . . . Unhappily, since the motion for

judgment n.o.v. cannot exceed the original motion, the

point was lost.”). Here, Respondents/Defendants sim-

ilarly made one-sentence oral motions, and never even

relied upon the earlier-submitted trial memorandum in

their oral motions for judgment as a matter of law.

The First Circuit Court of Appeals plainly notes that,

“The law is crystal clear that a ‘party may not base its

motion for a judgment n.o.v. on a ground that was not

argued in its motion for directed verdict.’” Perdoni

Brothers, Inc. v. Concrete Systems, Inc., 35 F.3d 1, 3 (1st Cir.

1994). Perdoni points out that without the specificity

requirement, a party can take its argument to the jury -

keeping silent during its motions for directed verdict —

and hope to prevail with the finders of fact. When that

plan backfires, the party can then complain on appeal

that the trial court erred in denying its motion for

directed verdict despite failing to elucidate the grounds

for the judge. Perdoni, 35 F.3d at 4 (“As was its right, CSI

[Rule 50 movant] simply attempted to persuade the jury

that the parties intended a severable contract. Having

once embarked on this course, however, CSI was not

entitled to set out on a new one after its chosen litigation

tactic failed.”).

In a Second Circuit Court of Appeals case, Piesco v.

Koch, 12 F.3d 332 (2d Cir.1993), the motion for directed

verdict was comprised of, “Yes your honor. Defendants

move for a directed verdict.” That bare proffer was found

insufficient to meet Rule 50’s requisite that the motion

specify the judgment sought and the law and facts on

which the moving party is entitled to the judgment.

Piesco, 12 F.3d at 341 (“This statement plainly did not

identify the issue on which defendants contended there

was insufficient evidence to permit the jury to find in

favor of Piesco”).

The Third Circuit Court of Appeals has also safe-

guarded the provisions of Rule 50. In Kutner Buick, Inc. v.

American Motors Corp., 868 F.2d 614 (3d Cir.1989), the Rule

50 movant failed to specify during its directed verdict

motions the ground for which the trial court, in a post-

trial ruling, ultimately ordered judgment as a matter of

law. The trial court relied on a ground that was an argu-

ment the Rule 50 movant made in limine before motions

for judgment as a matter of law were made. This is

similar to Judge Gonzalez’ reliance in the case at bar on

Respondents / Defendants’ trial memorandum, which was

also prepared and submitted before moving for judgment

as a matter of law. The Kutner court reversed the post-

trial ruling that was based on a pre-directed verdict argu-

ment, noting:

The rule that a post-trial Rule 50 motion can

only be made on grounds specifically advanced

in a motion for a directed verdict at the end of

plaintiff’s case is the settled law of this circuit

... The sufficiency of proof of damages was not

advanced for AMC’s [Rule 50 movant’s]

directed verdict motion, and could not be relied

upon, post-trial, as a ground for granting Rule

50 relief.

Kutner, 868 F.2d at 617.

Even a movant’s due process arguments will fail if

not raised with specificity in a motion for judgment as a

matter of law. In Livingston Chemicals, Inc. v. Permviro

Systems, Inc., 981 F.2d 1251 (4th Cir.1992), the court

affirmed the trial court’s denial of an appellant/defen-

dant’s JNOV motion contending that a state’s punitive

damages statute deprived the party of due process under

the Fourteenth Amendment. In rejecting the appellant /

defendant’s position, the court noted:

Permviro’s [appellant/defendant] failure to

raise the issue in its motion for directed verdict

during the trial precludes its reliance on the

issue in its motion for judgment n.o.v. To raise

an issue on judgment n.o.v., a party must pre-

serve that right by first making an appropriate

motion for directed verdict . . . ‘The requirement

of a proper directed verdict motion as founda-

tion for a motion for judgment n.o.v. under

Fed.R. Civ.P. (50) is not a mere technicality; it

serves vitally important interests in the fair con-

duct of litigation.’

10

Livingston Chemicals, 981 F.2d at 1253 (quoting Miller v.

Premier Corp., 608 F.2d 973, 979 n.3 (4th Cir.1979)).

The Sixth Circuit Court of Appeals has similarly reit-

erated the importance of Rule 50’s specificity require-

ment. In Francis v. Clark Equipment Co., 993 F.2d 545 (6th

Cir.1993), the court concluded the defendant’s motion as

a matter of law failed where it “did not specify what law

it was relying on for its argument.” Reversing the prod-

ucts liability case, the court noted “a more detailed state-

ment is required by Rule 50(a)(2), and in the present case

there was not sufficient foundation for the motion.”

Francis, 993 F.2d at 554; see also Pulla v. Amoco Oil Co., 72

F.3d 648, 655 n.7 (8th Cir.1995) (noting the purposes

behind Rule 50).

Recently the Ninth Circuit Court of Appeal, in

reversing the trial court, criticized a judgment as a matter

of law where the sole substance of the motion was, “Your

Honor, I make a-motion under Federal Rule of Civil

Procedure 50 on grounds that [plaintiff] has not sustained

his burden of proof and defendant should be entitled to

judgment as a matter of law.” Waters v. Young, 100 F.3d.

1437, 1440 (9th Cir.1996). Like Respondents / Defendants’

one-sentence motions for directed verdict, the Waters

defendant failed to comply with the specificity require-

ment of Rule 50 and its purpose “to assure the respond-

ing party an opportunity to cure any deficiency in that

party’s proof that may have been overlooked until called

to the party’s attention by a late motion for judgment.”

Waters, 100 F.3d at 1441 (quoting Fed.R.Civ.P. 50 advisory

committee’s note to 1991 amendment). The premonition

in Waters is precisely what happened in the instant case —

Respondents/Defendants spoke sketchily at their

—_

11

motions for judgment as a matter of law, content with the

“late motion for judgment” results rendered five months

after the verdict that were not based on any reason put

forth in directed verdict motions or during the 10-day

post-trial motion period. See also Karns v. Emerson Electric

Co., 817 F.2d 1452, 1455 n.2 (10th Cir. 1987) (“Grounds not

raised in support of a motion for directed verdict may not

later be raised in a motion for judgment n.o.v.”).

Even the Eleventh Circuit Court of Appeals has insis-

ted on adherence to the specificity requirement of Rule

50. In Austin-Westshore Construction Co. v. Federated Dept.

Stores, Inc., 934 F.2d 1217 (11th Cir.1991), the court con-

cluded a directed verdict movant was barred from raising

a theory which it did not raise until moving for JNOV. In

reaching this conclusion the court noted the specificity

requirement of Rule 50 “is especially strict in cases in

which judgment is entered upon a general verdict.” Aus-

tin-Westshore, 934 F.2d at 1222. The verdicts in the instant

case were general verdicts.

Rule 50’s specificity requirement is not idle musing.

As the 1991 Advisory Committee Notes make clear:

The second sentence of paragraph (a)(2) does

impose a requirement that the moving party

articulate the basis on which a judgment as a

matter of law might be rendered. The articulation

is necessary to achieve the purpose of the require-

ment that the motion be made before the case is

submitted to the jury, so that the responding party

may seek to correct any overlooked deficiencies in the

proof.

Advisory Committee Notes to 1991 Amendment to

Fed.R.Civ.P. 50 (emphasis added).

12

Some circuit courts of appeals, however, have carved

out exceptions and modifications to Rule 50. See, e.g.,

Stewart v. Thigpen, 730 F.2d 1002, 1006-07 n.2 (5th

Cir.1984) (stating that the Rule 50 movant’s failure to

specifically identify the grounds for his motion for

directed verdict did not preclude JNOV in his favor

where the trial court and opposing party had “actual

notice” of the basis of the motion); cf. Parkway Garage, Inc.

v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir.1993) (dis-

cussing implicit notice by Rule 50 movant). Recently the

Second Circuit Court of Appeal, noting that an issue had

been “central” at trial, excused a party from failure to

raise the issue during it motions for judgment as a matter

of law. Gordon v. County of Rockland, 110 F.3d 886, 887 (2d

Cir.1997), cert. denied, 118 S.Ct. 74 (1997); see also Urso v.

United States, 72 F.3d 59, 61 (7th Cir.1996).

These exceptions — actual notice to the court and

nonmoving party, the issue being central at trial — are

loosely defined and yield inconsistent results. How does

“actual notice” manifest itself? Is an issue “central” at

trial solely because it had been litigated in earlier pro-

ceedings? If that is true, then why didn’t Kutner’s motion

in limine suffice to put the trial court and opposing party

on notice during the movant’s argument for directed

verdict? Kutner, 868 F.2d at 617.

In the case at bar, the Eleventh Circuit Court of

Appeals has extended the “actual notice” exception to

Rule 50 to include a trial memorandum that: (a) fails to

reference any facts as adduced at trial, and (b) does not

purport to be a motion for judgment as a matter of law

and was never advocated as or incorporated into one by

the Respondents/Defendants. Also cutting against the

13

“actual notice” conclusion is the fact that, even in their

JNOV motion, Respondents/Defendants did not raise probable

cause as a basis to grant JNOV on the section 1983 claim.

There could hardly have been “actual notice” sufficient to

defeat Rule 50 and caselaw interpreting it if Respon-

dents/Defendants did not think the probable cause issue

was plain enough to include in their JNOV motion for the

section 1983 claim.

The Eleventh Circuit's ruling has disturbing implica-

tions for the Federal Rules of Civil Procedure. Is a ready-

made trial memorandum now a proxy for Rule 50? If so,

Rule 50 may soon be rendered ineffectual. Virtually all

federal civil trials are subject to pretrial conferences and

orders that give “actual notice” of issues to be tried or

that delineate the “central” issues at trial. Fed.R.Civ.P.

16(c) (noting the trial court may take action with respect

to, among other things, “the formulation and simplifica-

tion of the issues” and “the form and substance of the

pretrial order”). The fact that issues are identified before

trial does not abrogate a Rule 50 movant’s obligation to

specify both the law and facts as adduced at trial. The

Court should visit these issues to provide clarity among

the circuits and to provide uniform application of the

civil rules governing judgment as a matter of law. Fur-

ther, as noted below, the consequences of the lower

courts’ rulings have constitutional ramifications meriting

review.

Issue II. Whether Petitioners Doug and Victo-

ria Rankin’s Seventh Amendment right to a

civil jury trial free from being “otherwise re-

examined in any Court of the United States”

was violated where the jury verdict in their

favor was vacated five months later on

grounds that were not raised at trial in accor-

dance with the Federal Rules of Civil Pro-

cedure or caselaw interpreting their

application.

The Seventh Amendment states:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise re-exam-

ined in any Court of the United States, than

according to the rules of the common law.

U.S. Const. amend. VII.

Renewed judgment as a matter of law eliminates a

jury’s finding of fact. “Unless a court has been alerted to

deficiencies in proof by a motion for a directed verdict, a

request that the court enter a judgment contrary to that of

the jury is tantamount to asking the court to re-examine

the facts as found by the jury. Such a re-examination would

abridge the Seventh Amendment.” Mallick v. International

Brotherhood of Electrical Workers, 644 F.2d 228, 233 (3d

Cir.1980) (emphasis added); see also Livingston Chemicals,

Inc. v. Permviro Systems, Inc., 981 F.2d 1251, 1253 (4th

Cir.1992) (“Without a proper motion for directed verdict,

the opposing party is deprived of an opportunity to

respond before the jury, thus infringing its Seventh

Amendment rights.”); Food Lion v. Capital Cities/ABC, Inc.,

984 F.Supp. 923, 930 (M.D.N.C. 1997) (“Rule 50(b)

[renewed motion for judgment as a matter of law] is

essentially a notice provision that, among other functions,

protects the important Seventh Amendment right to a

trial by jury.”). Indeed, as recently as March 23, 1998, this

15

Court reversed on Seventh Amendment grounds a circuit

court of appeals decision that set aside a jury’s damage

award and tried to enter judgment for a lesser amount

without offering the petitioner/plaintiff the option of a

new trial. Hetzel v. Prince William County, 118 S.Ct. 1210

(1998).

The Eleventh Circuit and trial court exceeded the

proper gatekeeping function of Rule 50 and entered the

impermissible realm of eliminating Seventh Amendment

rights. As noted in Petitioners/Plaintiff’s statement of the

case, supra, the trial court deemed Respondents /Defen-

dants’ February 27, 1995 correspondence as a memoran-

dum to their timely filed post-trial motion for JNOV. The

trouble with this conduct, however, is that the “mem-

orandum” raised the issue of probable cause as an

entirely new basis for granting JNOV on the section 1983

claim. The action would not be so significant if it were

not the sole basis upon which the trial court relied in

granting JNOV to Respondents /Defendants.

After final judgment was entered on the jury verdicts

on December 23, 1994, the Respondents/Defendants had_

10 days within which to file post-trial motions.

Fed.R.Civ.P. 50, 59. This time frame is not expandable.

Fed.R.Civ.P. 6(b); Meriwether v. Coughlin, 879 F.2d 1037,

1041 (2d Cir.1989) (noting that “the rule against the dis-

cretionary enlargement of certain time periods [including

Rule 50] is ‘mandatory and jurisdictional and . . . cannot

be circumvented regardless of excuse.’”); 9 Wright &

Miller, Federal Practice and Procedure § 2537 at 601

(1971). The February 27, 1995 “memorandum,” filed after

Petitioners/ Plaintiffs submitted their response to Respon-

dents/Defendants’ January 4, 1995 JNOV motion, was

16

akin to improperly raising a new basis for summary

judgment after the opposing party has already - |

responded. Minh Tu v. Mutual Life Ins. Co., 136 F.3d 77, 82

(1st Cir.1998).

Alternatively, the February 27, 1995 correspondence

was a belated second portion of the initial JNOV motion,

and as such the trial court was without jurisdiction to

consider it. Fed.R.Civ.P. 6(b). By doing so, the trial court

allowed Rule 50(b) to sever Doug and Victoria Rankin’s

Seventh Amendment protections, and the Court should

make clear that rules of civil procedure should not be

used as a guillotine to truncate tenants of the Bill of

Rights.

CONCLUSION

With divergent results among the circuits and Sev-

enth Amendment rights at stake, the time has come for

renewed guidance on Rule 50’s application in federal trial

courts across the country. The petition for writ of cer-

tiorari should be granted and the judgment of the Elev-

enth Circuit Court of Appeal should be reversed.

Respectfully submitted,

Donatp M. HINKLE

FonviELLE HiInkte & Lewis

3375 Capital Circle Northeast,

Building A

Tallahassee, Florida 32308

(850) 422-7773

Counsel for Petitioners

| sd

A-1

APPENDIX A

Doug RANKIN, Victoria

Rankin, Plaintiffs-Appellants, Cross-Appellees,

V.

Mark EVANS, Richard Willie, Sheriff of Palm

~Beach County, Palm Beach County

Sheriff’s Department, Defendants-Appellees,

Cross-Appellants.

No. 95-4744.

United States Court of Appeals,

Eleventh Circuit.

Jan. 29, 1998.

Robert L. Hinkle, Radey Hinkle Thomas, Tallahassee,

FL, Donald M. Hinkle, Fonvielle, FL, for Plaintiffs-Appel-

lants, Cross-Appellees.

Marjorie Gadarian Graham, Palm Beach Gardens, FL,

Monroe A. Coogler, Jr., West Palm Beach, FL, David J.

Glatthorne, West Palm Beach, FI, for Defendants-Appel-

lees, Cross-Appellants.

Appeal from the United States District Court for the

Southern District of Florida.

Before BARKETT, Circuit Judge, KRAVITCH, Senior

Circuit Judge, and HARRIS*, Senior District Judge.

HARRIS, Senior District Judge:

This case, like some others involving allegations of

sexual abuse of a child, inevitably evokes feelings of

* Honorable Stanley S. Harris, Senior U.S. District Judge for

the District of Columbia, sitting by designation.

A-2

compassion for all of the participants involved in the

long-running dispute. However, obviously the issues

must be resolved dispassionately.

Plaintiff-appellant Doug Rankin was arrested in late

November of 1988 and charged with the sexual abuse of a

child under the age of twelve. Thereafter, not only did a

grand jury not indict him; it affirmatively found that he

was “completely innocent.” He and his wife, plaintiff-

appellant Victoria Rankin, brought an action against the

arresting officer, Deputy Sheriff Mark Evans, and the

Palm Beach County Sheriff’s Department under 42 U.S.C.

§ 1983, and also made a state claim for false arrest.

At the conclusion of the evidentiary portion of the

civil trial, the district judge denied defendants’ motion

for a directed verdict and permitted the case to go to the

jury, which returned a substantial verdict for plaintiffs.

Thereafter, upon defendants’ motion, the district court set

aside the verdict on the ground that probable cause for

Doug Rankin’s arrest and detention had existed as a

matter of law. That ruling is before us, as is defendants’

cross-appeal of the district court’s conditional denial of

their motion for a new trial and its denial of their motions

for remittitur and to alter or amend the judgment on the

state count. We affirm the district court’s grant of a JNOV

and dismiss the cross-appeal as moot. (In light of the

cross-appeal, for clarity we often refer to the parties as

plaintiffs and defendants).

Lt REE TREO POTTS GEIR oer eos 8 .

——

A-3

I. Factual History!

Plaintiffs Doug and Victoria Rankin owned and oper-

ated the Sugar Plum School House, a pre-school program

located in Lake Worth, Florida. Dr. Martha Brake’s three-

and-a-half-year-old daughter Amber began attending

Sugar Plum on November 7, 1988. On November 21, 1988,

Amber made a statement to her mother, who is a child

psychologist, indicating that she had been sexually

abused. Dr. Brake then made an audio tape of her daugh-

ter’s statement in which the child again indicated that she

had been abused. That evening, Dr. Brake took her

daughter to a pediatrician, Dr. Drummond, to be exam-

ined for possible evidence of abuse. During the examina-

tion, Dr. Drummond found physical signs which were

consistent with sexual abuse. The next morning, Dr.

Brake went to Amber’s prior school — Victory Baptist -

and played the tape in an attempt to get Amber readmit-

ted to that school. At approximately nine o'clock that

morning, Dr. Brake called the sheriff's department to

inform it that she had proof that her daughter had been

sexually molested. Deputy Mark Evans, who was

' In analyzing the factual history, we have viewed all facts

in the light most favorable to plaintiffs and have drawn all

reasonable inferences in their favor. See Bailey v. Board of County

Comm'rs of Alachua County, 956 F.2d 1112, 1119 (11th Cir.), cert.

denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 58 (1992).

However, this presumption in favor of plaintiffs does not apply

where no jury could reasonably conclude that the evidence

supported a certain factual finding or inference, despite minor

conflicts in the record. Id. (stating that a “mere scintilla of

evidence does not create a jury question; there must be a

substantial conflict in evidence to create a jury question”).

A-4

assigned to the case, called Dr. Brake and scheduled an |

interview with her and Amber for that morning.

Deputy Evans and a representative from the Florida

Department of Health and Rehabilitation Services and

Victim’s Services (HRS) interviewed Dr. Brake while

another officer observed Amber. Dr. Brake informed

Evans that: (1) Amber had made a spontaneous statement

to her which indicated that she had been molested by a

person named Ba Ba Blue; (2) she had heard Amber refer

to Doug Rankin as Ba Ba Blue on several occasions and

had never heard her refer to anyone else by that name; (3)

a teacher had informed her that children frequently called

Doug Rankin Baba Loo; (4) Doug Rankin worked at the

school, Sugar Plum, which Amber attended; (5) the only

men who had had access to Amber in the recent past

were Rankin and one of Dr. Brake’s coworkers; (6) she

had seen Rankin on the playground with the children; (7)

Amber had attended Sugar Plum for about two weeks; (8)

Amber started exhibiting behavioral changes starting at

the end of her first week at the school;? (9) Amber had

used the age-inappropriate term “boobies” in reference to

2 It is uncontested that Baba Loo was a nickname used for

Rankin by the children, and that Amber pronounced this name

as Ba Ba Brue or Ba Ba Blue. Accordingly, we use the term “Ba

Ba Blue” whenever we refer to Amber’s statements regarding

Baba Loo. When referring to another party’s independent use of

the term, we use the term “Baba Loo.”

3 Dr. Brake testified that she told Evans that Amber initially .

enjoyed school, but that her behavior had changed significantly

by the end of the first week. She told Evans that Amber had

become more withdrawn, had indicated that she did not want to

go to school, had become more clingy, and had begun having

nightmares.

I re on ee

A-5

her chest after starting school at Sugar Plum; (10) Dr.

Brake was so disturbed by Amber’s behavioral changes

that she tried to get her re-enrolled at her prior school,

Victory Baptist; (11) Dr. Brake saw Rankin pick Amber

up, and Amber hit him in response, on the day that

Amber made her initial statement indicating sexual

abuse; (12) it was unusual for Amber to strike an adult;

(13) Dr. Brake had had an argument with Rankin regard-

ing what she considered to be insufficient supervision of

the children; (14) she had taken Amber to be examined by

Dr. Drummond (their pediatrician) the day Amber made

her initial statement, and he told Dr. Brake that there was

physical evidence consistent with abuse; and (15) a col-

league of hers who was also a child psychologist, Dr.

Decharme, had seen Amber on the evening of November

21, 1988, and told Dr. Brake that Amber had indicated

that she had been abused.

Dr. Brake also informed Evans that she had made an

audiotape of Amber’s recounting of her previous state-

ment. Evans listened to that tape. On it, Amber stated

that Ba Ba Blue had made “a hole in [her] bottom” and

that he put “his fingers in [her] bottom and it pinched

and it feels bad.” She also indicated that, after Ba Ba Blue

was finished with her, he sent her to the playground.

Officer Honholz, who had been with Amber during

Evans's interview of her mother, informed Evans and Dr.

Brake that Amber made a statement to him regarding the

abuse.

Deputy Evans then conducted a videotaped inter-

view with Amber in which she again indicated that a man

at school named Ba Ba Blue had abused her. Prior to

A-6

identifying Ba Ba Blue as her abuser, Amber named two

cartoon characters in response to police questioning

regarding the identity of her abuser. Baba Loo is the name

of a cartoon character from a video the children watched

in school. Rankin used the term as a general nickname to

refer to the children. The children, including Amber, also

referred to Rankin by this nickname.

Amber also made several improbable or inconsistent

statements regarding the timing of the abuse. She indi-

cated that the abuser had used both his hand and a

spoon, taken pictures of her, touched her with his geni-

talia, and had been naked. She also indicated that the

abuse had happened both inside the school and outside

on some steps.

Deputy Evans telephoned Dr. Drummond regarding

Amber’s physical examination. Dr. Drummond told

Evans that there were several physical symptoms that

could be the result of sexual abuse: (1) a fresh abrasion;

(2) an enlarged hymenal opening; and (3) a healed notch

on the hymen. Dr. Drummond indicated that the first

symptom could be consistent with improper sexual con-

duct such as rubbing, but that there were other possible

causes. Dr. Drummond stated that the hymenal notch and

the enlargement of the area suggested some form of

limited penetration — possibly digital. Dr. Drumrnond

also noted that the notch to the hymen was at least two to

three weeks old.

On the morning of November 23, 1988, with the

authorization of his superiors, Evans went to Sugar Plum

to arrest Doug Rankin for sexual battery on a child under

the age of twelve. Rankin was not there. Evans did not

ee ee

A-7

inform anyone at the school of the purpose of his visit,

nor did he interview anyone at the school regarding the

alleged abuse. Instead, he returned several hours later,

when he had been informed Rankin would be present, at

which time he arrested Rankin.

During his subsequent interview with police, Rankin

repeatedly proclaimed his innocence and informed Evans

that he had never been alone with Amber (a fact that he

asserted the teachers could corroborate), that he was

physically unable to fit on or reach into the playground

equipment on which the police stated that the abuse

occurred, that Baba Loo was the name of a cartoon char-

acter, that he was not the only person at the school who

was called Baba Loo, and that Amber had attended the

school for only two weeks.

During his interview, Rankin also conceded that he

was the only male who worked at the school, that the

children referred to him as Baba Loo, that he had access

to the entire schoolhouse, and that he had been at school

on November 21, 1988. He also made numerous specific

comments regarding Amber’s personality and behavior

during the two weeks she had been at school, even

though he stated that there were 120 students at the

school and that he had relatively little contact with the

children. Furthermore, he made progressively more criti-

cal comments regarding Dr. Brake as the interview pro-

ceeded.

Following the interrogation, Rankin formally was

charged with sexual battery of a child under the age of

twelve pursuant to Fla. Stat. 794.011(2). He subsequently

was released on bond with no opposition from Deputy

A-8

Evans. A grand jury later exonerated Rankin, specifically

stating that he was “completely innocent.”

II. Procedural History

Following those events, plaintiffs Doug Rankin and

his wife Victoria filed a complaint asserting both state

and federal claims. The claims resolved by the jury at

trial were as follows.* Count I stated a claim pursuant to

42 U.S.C. § 1983 alleging that defendant Mark Evans, as a

Deputy Sheriff of Palm Beach County, while acting under

the color of state law, arrested and seized plaintiff Doug

Rankin without a warrant or probable cause in violation

of the Fourth and Fourteenth Amendments of the United

States Constitution. Count II alleged that defendant Rich-

ard Wille, as Sheriff of the Palm Beach County Sheriff's

Department, acting through its agents and employees,

falsely arrested and imprisoned plaintiff Doug Rankin.®

At trial, defendants made a motion for a directed verdict

4+ It should be noted that Sheriff Richard Wille was

originally named as a defendant in Count I, but was dismissed

prior to trial. The Sheriff’s Department was named as a

defendant in both Counts I and II. However, summary judgment

was entered in the Department’s favor on Count I, and thus it

remained as a defendant only in Count II. Richard Wille

subsequently was substituted for the Palm Beach County

Sheriff’s Department in Count II. Accordingly, at trial, Deputy

Mark Evans was the defendant in Count I and Richard Wille, as

the Sheriff, was the defendant in Count II.

> Although Count II alleges both false arrest and false

imprisonment, we refer to the claim as one for false arrest

because under Florida law “false arrest and false imprisonment

are different labels for the same cause of action.” Weissman v.

K-Mart Corp., 396 So.2d 1164, 1164 n. 1 (Fla. 3d DCA 1981).

seni

A-9

both at the close of plaintiffs’ case and at the close of all

evidence.® At neither time did defendants specifically

state their grounds for the motion for a directed verdict.

The trial court denied both motions, and the case went to

the jury, which found defendants liable on both counts.”

On January 4, 1995, defendants filed motions for a

judgment notwithstanding the verdict, for remittitur, to

alter or amend the judgment on the state count, and

alternatively for a new trial. Defendants based their

motion for a JNOV on the asserted existence of probable

cause for the arrest.8 The motion also asserted that

© We note that the 1991 Amendments to Rule 50 of the

Federal Rules of Civil Procedure changed the terminology used

to describe the relevant actions taken. Instead of using the term

“directed verdict” for a motion for a judgment as a matter of law

when the motion is made prior to the verdict, and the term

“judgment notwithstanding the verdict” when the motion is

made after the verdict is returned, Rule 50 now refers to both

motions as motions for a judgment as a matter of law. However,

since one issue on appeal turns on the timing of the motion for

the judgment as a matter of law, we use the older terms

“directed verdict” and “judgment notwithstanding the verdict”

for convenience and clarity.

? The jury awarded Doug Rankin $1,000,000 for intangible

damages, damage to personal reputation, and loss of past

income and earning potential. Victoria Rankin was awarded

$500,000 as damages for loss of consortium. The Rankins also

were awarded $500,000 as business damages.

®§ Plaintiffs contend that defendants failed properly to raise

probable cause as the ground for a JNOV on the § 1983 claim

because they did not assert that ground until their reply to

plaintiffs’ opposition to the motion for a JNOV. We reject this

argument.

On January 4, 1995 — the date on which defendants’ motions

for a JNOV, for remittitur, to alter and amend the judgment on

A-10

defendants were entitled to a JNOV on the § 1983 claim

because plaintiffs failed to demonstrate that Deputy

Evans acted with deliberate or callous indifference to

Doug Rankin’s constitutional rights, as required to sup-

port a § 1983 claim. On May 15, 1995, the district court

granted defendants’ motion for a JNOV on both the state

and federal claims on the ground that probable cause for

Rankin’s arrest and detention existed and constitutes an

absolute bar to plaintiffs’ claims. The Order also condi-

tionally denied defendants’ motion for a new trial and

denied their other motions as moot.

Plaintiffs appeal the grant of a JNOV in favor of

defendants on both counts. Defendants appeal the condi-

tional denial of the motion for a new trial and the denial

of their other motions as moot.

the state claim, and for a new trial were filed - defendants also

filed a motion for an extension of time in which to file addenda

to those motions. Confusion as to the district court’s position

regarding this request for an extension of time prompted the

district court to treat defendants’ February 28, 1995, reply to

plaintiffs’ opposition as an addendum to defendants’ original

motion for a JNOV. See March 16, 1995, Order (detailing the

procedural history regarding this matter). The Order explicitly

stated that plaintiffs were entitled to respond pursuant to the

Local Rules to defendants’ February 28, 1995, submission.

Certainly, it was well within the district court’s discretion to

treat defendants’ reply as an addendum to its original motion in

an attempt to remedy any procedural confusion resulting from

its Orders. Accordingly, we reject the assertion by plaintiffs that

probable cause was not raised in defendants’ motion for a JNOV

as a ground for relief.

III. Analysis

A. The Grant of a JNOV Was Not Procedurally

Barred

The first question we decide is whether the district

court’s grant of a JNOV in favor of defendants was pro-

cedurally barred. The Rankins correctly assert that Fed-

eral Rule of Civil Procedure 50(b) requires that a party

moving for a JNOV first must have made a timely and

proper motion for a directed verdict. See Wilson v. Atta-

way, 757 F.2d 1227, 1237 (11th Cir.1985). Federal Rule of

Civil Procedure 50(a)(2) states that such a motion “shall

specify .. . the law and the facts on which the moving

party is entitled to the judgment.” See also National Indus.,

Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1548 (11th

Cir.1986). The Rankins note that defendants failed to state

specifically any ground for their motions for a directed

verdict —- much less the ground on which the Court later

granted a JNOV, ie., the existence of probable cause.

Therefore, the Rankins contend that defendants’ motions

for a directed verdict did not satisfy the specificity

requirement of Rule 50(a)(2), and that defendants’ motion

for a JNOV should have been denied as technically defi-

cient. See, e.g., Piesco v. Koch, 12 F.3d 332, 340-41 (2d

Cir.1993) (defendant’s motion for a directed verdict failed

to specify any grounds and thus was not sufficiently

informative to preserve defendant's right to move for a

JNOV); Purcell v. Seguin State Bank & Trust Co., 999 F.2d

950, 956-57 (Sth Cir.1993) (issue raised in a JNOV motion

that was not specifically raised in motion for a directed

verdict at close of evidence held waived); McCarty v.

Pheasant Run, Inc., 826 F.2d 1554, 1555-56 (7th Cir.1987)

(same).

A-12

Defendants argue that a rigid application of Rules

50(b) and 50(a)(2) is inappropriate where motions for a

directed verdict were timely made and the judge and

opposing counsel were aware of the legal and factual

bases of the motion despite the moving party’s failure to

state them explicitly. See, e.g., Stewart v. Thigpen, 730 F.2d

1002, 1006-07 n. 2 (5th Cir.1984) (stating that plaintiff’s

failure specifically to identify the grounds for his motion

for a directed verdict did not preclude a JNOV in his

favor where the trial court and defendants had actual

notice of the basis of the motion); Clarke v. O'Connor, 435

F.2d 104, 113 n. 15 (D.C.Cir.1970) (concluding that

although defendant’s motion for a directed verdict did

not explicitly assert the applicability of the statutory pro-

vision on which a JNOV later was based, it provided the

court and opposing counsel with sufficient notice to sat-

isfy Rule 50). Defendants assert that the trial court and

opposing counsel were aware that defendants’ motions

for a directed verdict were based upon the ground that

probable cause for Rankin’s arrest existed as a matter of

law and constituted an absolute defense to plaintiffs’

claims.

In support of this contention, defendants stress that it

was obvious throughout trial that the existence of proba-

ble cause was the central issue in the case. Defendants

note that on the day before they made their motions for a

directed verdict, they submitted a trial memorandum

briefing the issue of probable cause. The trial judge

referred to this memorandum and specifically alluded to

a probable cause case that was discussed therein in deny-

ing defendants’ motion for a directed verdict at the close

of plaintiffs’ case. The trial judge subsequently denied

A-13

defendants’ motion for a directed verdict at the close of

all evidence “on the basis previously announced at the

close of the plaintiffs’ case in chief.” Accordingly, defen-

dants argue, since it was apparent to all involved that the

existence of probable cause was the basis for its motions

for a directed verdict, the district court did not err in

granting defendants’ motion for a JNOV on that ground.

This Circuit has looked to the purpose of Rule 50(b)

in determining what constitutes a motion for a directed

verdict sufficient thereafter to support a JNOV. See

National Indus., 781 F.2d at 1549-50 (noting that where

Rule 50(b)’s purpose — providing notice to the court and

opposing counsel of any deficiencies in the opposing

party’s case prior to sending it to the jury — has been met,

the Circuit “ha[s] taken a liberal view of what constitutes

a motion for directed verdict”).? See also Scottish Heritable

Trust v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th

Cir.) (stating that “[t]echnical noncompliance with Rule

° The Rankins cite Austin-Westshore Constr. Co. v. Federated

Dep't Stores, Inc., 934 F.2d 1217, 1222-23 (11th Cir.1991), in

support of their contention that Rules 50(b) and 50(a)(2) should

be strictly applied to bar the grant of a JNOV in this case. In

Austin, however, the ground on which the motion for a JNOV

was based had never been raised at trial. Thus, the trial court

could not rely upon the standard articulated in National

Industries in support of a grant of a JNOV because opposing

counsel and the trial court did not have actual notice as to any

“flaw” in the case prior to sending it to the jury. Unlike in

Austin, the grant of a JNOV in this case is justified by the fact

that the moving parties substantially complied with the

requirements of Rules 50(a)(2) and (b) because the court and

opposing counsel unquestionably had actual notice at trial of

the ground upon which the JNOV ultimately was granted.

A-14

50(b) may be excused in situations in which the purposes

of the rule are satisfied”), cert. denied, __ U.S. __, 117

S.Ct. 182, 136 L.Ed.2d 121 (1996); Parkway Garage, Inc. v.

City of Philadelphia, 5 F.3d 685, 691 (3rd Cir.1993) (conclud-

ing that defendants’ motions for a directed verdict were

sufficient to support a JNOV where the court and oppo-

sing counsel had actual notice of the basis_of the motion

even though it was only implicitly raised by defendants’

motions). A party is obliged to make a motion for a

directed verdict at the close of the evidence as a prerequi-

site to a motion for JNOV to ensure that neither the court

nor the opposing party is “lulled into complacency” con-

cerning the sufficiency of the evidence. National Indus.,

781 F.2d at 1549. See also Scottish Heritable, 81 F.3d at 610

(stating that “the two basic purposes of [Rule 50(b)] are

‘to enable the trial court to re-examine the question of

evidentiary sufficiency as a matter of law if the jury

returns a verdict contrary to the movant, and to alert the

opposing party to the insufficiency before the case is

submitted to the jury’ ”) (internal citation omitted).

Requiring a motion for a directed verdict prior to submit-

ting the case to the jury ensures that the court and the

opposing party will be alerted to any sufficiency prob-

lems at a stage when such deficiencies might be

remedied.

The same purpose underlies the specificity require-

ment of Rule 50(a)(2). Accordingly, where the trial court

and all parties actually are aware of the grounds upon

which the motion is made, strict enforcement of the speci-

ficity requirement of Rule 50(a)(2) is unnecessary to serve

the purpose of the rule.

A-15

The record shows that the trial court and plaintiffs’

counsel were aware that the asserted existence of proba-

ble cause formed the basis of defendants’ motions for a

directed verdict. That issue was the central question in

the case; defendants submitted a trial memorandum on

that issue on the day prior to making their motions for a

directed verdict; and the trial judge referred to that mem-

orandum, and more specifically to a particular probable

cause case, in making his rulings on defendants’ motions

for a directed verdict. Accordingly, we conclude that

defendants’ motions for a directed verdict were sufficient

to support their subsequent motion for a JNOV.

B. Probable Cause as the Ground for the Entry of a

JNOV

1. The Relevance of the Arresting Officer’s Sub-

jective Belief in the Arrestee’s Guilt to the

Existence of Probable Cause

We now turn to plaintiffs’ argument that Florida law

requires an arresting officer to believe subjectively in the

guilt of an arrestee in order to have probable cause for

the arrest. Under this view of the law, the Rankins con-

tend that a reasonable jury could have concluded that

Deputy Evans did not subjectively believe in Rankin’s

guilt and, thus, that he did not have probable cause to

arrest Rankin. They further argue that such an arrest

would have exceeded state authority, thus violating

Rankin’s Fourth Amendment rights and rendering defen-

dants liable for that violation pursuant to 42 U.S.C.

§ 1983. Defendants counter that no such subjective belief

requirement exists under Florida law. We conclude that

A-16

neither Florida nor federal law requires that a police

officer actually have a subjective belief in the guilt of the

person arrested.

This Circuit has concluded that the standard for

determining the existence of probable cause is the same

under both Florida and federal law - whether “ ‘a reason-

able man would have believed [probable cause existed]

had he known all of the facts known by the officer.’ ”

United States v. Ullrich, 580 F.2d 765, 769 (5th Cir.1978)

(quoting State v. Outten, 206 So.2d 392, 397 (Fla.1968)).!°

See also United States v. McDonald, 606 F.2d 552, 553 n. 1

(5th Cir.1979) (per curiam) (stating that “Florida’s stan-

dard of probable cause for a lawful arrest is the same as

that required by the Fourth Amendment”); Wright v.

State, 418 So.2d 1087, 1094 (Fla. lst DCA 1982) (conclud-

ing that the Florida standard for probable cause is no

more restrictive than the federal standard and is in effect

a mirror image of that standard). Furthermore, prior to its

adoption of the proposition that the state and federal

probable cause standards are identical, this Circuit explic-

itly rejected the idea that the subjective belief of the

arresting officer is relevant to the determination of

whether probable cause exists. See United States v. Clark,

559 F.2d 420, 425 (5th Cir.) (stating that “even if the

officers felt that probable cause was lacking, an objective

standard would still be applicable”), cert. denied, 434 U.S.

969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977); United States v.

10 All decisions issued by the former Fifth Circuit prior to

October 1, 1981, have been adopted as binding precedent for the

Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir.1981) (en banc).

A-17

Resnick, 455 F.2d 1127, 1132 (5th Cir.1972) (concluding

that probable cause existed and “the scope of the Fourth

Amendment is not determined by the subjective conclu-

sion of the law enforcement officer”).!! Finally, relying on

1! We here address plaintiffs’ citation of several decisions

which they contend establish that an officer must subjectively

believe that a crime has been committed and that the suspect

committed it in order for probable cause to exist. See Spicy v.

City of Miami, 280 So.2d 419, 421 (Fla.1973) (stating that an

officer “must have . . . ‘substantial reason’ and must ‘believe’

from observation and evidence at the point of arrest” that the

person was guilty); Osborne v. State, 87 Fla. 418, 100 So. 365, 366

(1924) (officer has probable cause to arrest “any person whom

such officer has reasonable ground to believe, and does believe,

has committed any felony”); City of Hialeah v. Rehm, 455 So.2d

458, 461 (Fla. 3d DCA 1984) (reversing a directed verdict in

favor of defendant on false arrest and imprisonment claims,

because “jury issues were presented as to a) whether, when he

placed [the suspect] under arrest, [the arresting officer] in fact

himself believed that the offense . . . had been committed ... ;

and b) whether, if so, there was a reasonable basis for that belief

in the circumstances he observed”); Donner v. Hetherington, 399

So.2d 1011, 1012 (Fla. 3d DCA 1981) (same). We note that

Osborne and Spicy were decided prior to the Eleventh Circuit

authority described in the text above which rejects the

proposition that there is a subjective element to a probable cause

analysis. We must therefore presume that this Circuit

considered Osborne and Spicy in the decisions which collectively

rejected that proposition. We are bound by this precedent

because “a prior decision of the circuit (panel or en banc)

[cannot] be overruled by a panel but only by the court sitting en

banc.” Bonner, 661 F.2d at 1209.

Both Donner and Rehm, which are state appellate-level

decisions decided after the referenced Eleventh Circuit

authority, cite Spicy as their sole authority for the proposition

that there is a subjective element to the state probable cause

analysis. Donner, 399 So.2d at 1012; Rehm, 455 So.2d at 461. As

A-18

its own precedent dating back to 1973, the Supreme Court

recently stated: “Subjective intentions play no role in

noted, this Circuit has concluded that Spicy does not stand for

the proposition for which plaintiffs cite it.

However, even.if we were not so bound, we would not

conclude that the cases cited by plaintiffs establish that there is a

subjective element to the probable cause analysis under Florida

law. Our research indicates that no other Florida appellate

jurisdiction has joined the Third District’s adoption of an

explicit two-part probable cause analysis requiring an officer

subjectively to believe that probable cause exists and have a

reasonable basis for that subjective belief. The other

jurisdictions appear to rely on an objective standard: probable

cause exists when “the totality of the facts and circumstances

within the officer’s knowledge would cause a reasonable person

to believe that an offense has been committed and that the

defendant is the one who committed it.” Revels v. State, 666

So.2d 213, 215 (Fla. 2d DCA 1995); see also Florida Game and

Freshwater Fish Comm'n v. Dockery, 676 So.2d 471, 474 (Fla. 1st

DCA 1996); Millets v. State, 660 So.2d 789, 791 (Fla. 4th DCA

1995); LeGrand v. Dean, 564 So.2d 510, 512 (Fla. 5th DCA 1990).

But see LeGrand, 564 So.2d at 513 (Griffin, J., specially

concurring) (citing Donner and Spicy for the proposition that an

officer must “actually have a belief that a crime was committed

and that the people he proposes to arrest perpetrated the

crime”). Finally, the Florida Supreme Court again defined the

test for probable cause in objective terms after Donner. See Blanco

v. State, 452 So.2d 520, 523 (Fla.1984) (“The probable cause

standard for a law enforcement officer to make a legal arrest is

whether the officer has reasonable grounds to believe the

person has committed a felony.”), cert. denied, 469 U.S. 1181, 105

S.Ct. 940, 83 L.Ed.2d 953 (1985). Thus, Donner and Rehm do not

represent any significant shift in Florida law that would affect

this Circuit’s conclusion that the subjective belief of the

arresting officer plays no role in a probable cause analysis under

either Florida or federal law.

A-19

ordinary, probable-cause Fourth Amendment analysis.” !?

Whren v. United States, 517 U.S. 806, __, 116 S.Ct. 1769,

1774, 135 L.Ed.2d 89 (1996). Thus, when this Circuit con-

cluded that state and federal probable cause standards

are identical, it was clearly established under federal law

that there was no subjective belief requirement. No sub-

jective belief requirement exists under either state or

federal law.'*

12 The Court also stated: “Not only have we never held,

outside the context of inventory search or administrative

inspection ..., that an officer’s motive invalidates objectively

justifiable behavior under the Fourth Amendment; but we have

repeatedly held and asserted the contrary.” Whren, 517 U.S. at

__, 116 S.Ct. at 1774; see also United States v. Villamonte-Marquez,

462 U.S. 579, 584 n. 3, 103 S.Ct. 2573, 2577 n. 3, 77 L.Ed.2d 22

(1983) (rejecting the contention that an ulterior motive might

strip officers of their legal justification for an otherwise lawful

warrantless boarding of a ship); Scott v. United States, 436 U.S.

128, 136-38, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978) (rejecting

the contention that the Fourth Amendment required the

exclusion of certain wiretap evidence and accepting the

government's position that “[s]ubjective intent alone . . . does

not make otherwise lawful conduct illegal or unconstitutional”);

United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d

427 (1973) (characterized by Scott, 436 U.S. at 136-38, 98 S.Ct. at

1723, as holding that “the fact that the officer does not have the

state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does not

invalidate the action taken as long as the circumstances, viewed

objectively, justify that action”).

13 Plaintiffs also cite Tillman v. Coley, 886 F.2d 317, 321 (11th

Cir.1989), as providing support for the existence of a subjective

element to the probable cause analysis. In that case we

concluded that a reasonable officer would investigate serious

doubts regarding the identity of a suspect prior to arrest, and

held that no “reasonable law enforcement officer may conclude

A-20

2. The Existence of Probable Cause

The Rankins assert that the trial court erred in grant-

ing a JNOV in favor of defendants because a reasonable

jury could have concluded that the arresting officer, Dep-

uty Evans, did not have probable cause to arrest or detain

Doug Rankin. Defendants contend that the trial court was

correct in ruling that Evans had probable cause to arrest

Rankin as a matter of law. We conclude that probable

cause to arrest Rankin existed as a matter of law, and,

accordingly, we affirm the trial court’s grant of a JNOV in

favor of defendants.

In determining whether a JNOV was properly

granted, we apply the same standard as the district court.

Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989).

Resolving all the factual disputes and drawing all logical

inferences in favor of the nonmoving party, we determine

whether these facts and inferences so strongly favor one

party “that reasonable people, in the exercise of impartial

judgment, could not arrive at a contrary verdict.” Bailey v.

Board of County Comm'rs of Alachua County, 956 F.2d 1112,

1119 (11th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121

L.Ed.2d 58 (1992). If so, the motion was properly granted.

We must also keep in mind, however, that a “mere scin-

tilla of evidence does not create a jury question; there

must be a substantial conflict in evidence to create a jury

question.” Id.

that . . . an arrest [may be] made for the sole purpose of

identifying a suspect.” Id. Plaintiffs’ use of this limited holding

in support of a subjective belief requirement is unpersuasive in

light of Eleventh Circuit and Supreme Court precedent.

A-21

As noted, the trial court granted a JNOV in favor of

defendants on the ground that the arresting officer had

probable cause to arrest Rankin as a matter of law. Since

probable cause constitutes an absolute bar to both state

and § 1983 claims alleging false arrest, the remaining

question for us to address is whether the trial court

correctly concluded that probable cause did exist as a

matter of law. Ortega v. Christian, 85 F.3d 1521, 1525 (11th

Cir.1996) (probable cause constitutes an absolute bar to a

§ 1983 claim alleging false arrest); Bolanos v. Metropolitan

Dade County, 677 So.2d 1005, 1005 (Fla. 3d DCA 1996)

(“[P]robable cause is a complete bar to an action for false

arrest and false imprisonment.”) (per curiam). Accord-

ingly, “we . . . must evaluate [the] facts and inferences

according to the legal standard for probable cause.” Bai-

ley, 956 F.2d. at 1119.

As has been discussed, the standard for determining

whether probable cause exists is the same under Florida

and federal law. McDonald, 606 F.2d at 553 n. 1. In order

for probable cause to exist, “an arrest [must] be objec-

tively reasonable under the totality of the circumstances.”

Bailey, 956 F.2d at 1119; see also State v. Scott, 641 So.2d

517, 519 (Fla. 3d DCA 1994). This standard is met when

“the facts and circumstances within the officer’s knowl-

edge, of which he or she has reasonably trustworthy

information, would cause a prudent person to believe,

under the circumstances shown, that the suspect has com-

”

mitted, is committing, or is about to commit an offense.

Williamson v. Mills, 65 F.3d 155, 158 (11th Cir.1995); see also

Elliott v. State, 597 So.2d 916, 918 (Fla. 4th DCA 1992).

“Probable cause requires more than mere suspicion, but

does not require convincing proof.” Bailey, 956 F.2d at

A-22

1120; see also Scott, 641 So.2d at 519 (“[T]he facts neces-

sary to establish probable cause need not reach the stan-

dard of conclusiveness and probability as the facts

necessary to support a conviction.”). In determining

whether probable cause exists, “ ‘we deal with proba-

bilities . . . [which] are the factual and practical consider-

ations of everyday life on which reasonable and prudent

men, not legal technicians, act.’ ” Revels, 666 So.2d at 215

(quoting Illinois v. Gates, 462 U.S. 213, 229-31, 103 S.Ct.

2317, 2328, 76 L.Ed.2d 527 (1983)).

An arresting officer is required to conduct a reason-

able investigation to establish probable cause. See Tillman,

886 F.2d at 321; see also Harris v. Lewis State Bank, 482

So.2d 1378, 1382 (Fla. Ist DCA 1986) (“Where it would

‘

appear to a ‘cautious man’ that further investigation is

justified before instituting a proceeding, liability may

attach for failure to do so, especially where the informa-

tion is readily obtainable, or where the accused points out

the sources of the information.”). An officer, however,

need not take “every conceivable step .. . at whatever

cost, to eliminate the possibility of convicting an innocent

person.” Tillman, 886 F.2d at 321; see also State v. Riehl, 504

So.2d 798, 800 (Fla. 2d DCA 1987) (“In order to establish

the probable cause necessary to make a valid arrest, .. . it

is not necessary to eliminate all possible defenses.”). Fur-

thermore, once an officer makes an arrest based upon

probable cause, he “need not ‘investigate independently

every claim of innocence.’ ” Tillman, 886 F.2d at 321 (inter-

nal citation omitted). Probable cause is “judged not with

clinical detachment but with a common sense view to the

realities of normal life.” Marx v. Gumbinner, 905 F.2d 1503,

A-23

1506 (11th Cir.1990) (internal citation omitted); see also

Revels, 666 So.2d at 215.

The only difference in the probable cause analysis

applicable to the state and federal claims at issue here is

which party carried the burden of proving whether prob-

able cause existed. The existence of probable cause consti-

tutes an affirmative defense to the claims of false arrest

and imprisonment under Florida law. See Bolanos, 677

So.2d at 1005 (probable cause bars a state claim for false

arrest or false imprisonment); DeMarie v. Jefferson Stores,

Inc., 442 So.2d 1014, 1016 n. 1 (Fla. 3d DCA 1983) (“[T]he

existence of probable cause is a part of the defense to a

false arrest action which must be shown by the defen-

dant.”). Accordingly, defendants had the burden of dem-

onstrating the existence of probable cause as a defense to

the state claim. However, plaintiffs had the burden of

demonstrating the absence of probable cause in order to

succeed in their § 1983 claim. Evans v. Hightower, 117 F.3d

1318, 1320 (11th Cir.1997) (“In order to establish a Fourth

Amendment violation, [plaintiff] must demonstrate that a

seizure occurred and that it was unreasonable.”); see also

Rivas v. Freeman, 940 F.2d 1491, 1496 (11th Cir.1991) (“To

successfully litigate a lawsuit for deprivation of constitu-

tional rights under 42 U.S.C. section 1983, a plaintiff must

show violation of a constitutionally protected liberty or

property interest and deliberate indifference to constitu-

tional rights.”). We conclude that probable cause existed

as a matter of law and that the existence of such probable

cause defeats both the federal and state claims.

The Rankins first assert that the evidence on which

Deputy Evans relied in making the arrest either exone-

rated Doug Rankin or was not sufficiently trustworthy or

A-24

reliable to support a finding of probable cause. They

assert that the medical evidence of which Evans was

aware compelled the conclusion that Rankin was not

Amber’s abuser because it suggested that the charged

conduct had occurred prior to Rankin’s first contact with

the child. They also contend that the physical evidence

exonerated Rankin because he could not physically have

committed the acts of which he was accused in the loca-

tion identified by the victim. Additionally, the Rankins

contend that Rankin’s lack of access to Amber defeated

probable cause for his arrest, especially in light of the fact

that Evans knew that another male, one of Dr. Brake’s

coworkers, had had access to Amber during a time frame

consistent with the medical evidence suggesting penetra-

tion.

The Rankins also contend that Evans should not have

relied on Amber’s or Dr. Brake’s statements about possi-

ble abuse when determining probable cause. They claim

that Amber’s statements regarding abuse were unreliable

because of: (1) her age; (2) inconsistencies regarding the

identity of the abuser, the number of times the abuse

occurred, and the location and timing of the abuse; (3) the

possibility that Dr. Brake, a child psychologist, concocted

the story that Amber spontaneously told her about the

abuse and that Dr. Brake’s coaching resulted in Amber’s

subsequent statements; and (4) the possibility that the

police officers’ questions during their interview with

Amber led her into making statements that she would not

otherwise have made. They further contend that Evans

should have viewed Dr. Brake’s statements with consid-

erable skepticism because he should have known that Dr.

Brake was biased against Rankin due to their argument

aN a re ee ras

A-25

regarding the school’s supervision of the children under

its care. They also seem to suggest that Evans should

have considered the possibility that either Dr. Brake or

somebody she was protecting committed the abuse.

Accordingly, they conclude that Evans should have

placed little weight on Dr. Brake’s comments regarding

Amber’s behavior and statements.

Finally, the Rankins argue that, at the very least, the

information available to Evans at the time of the arrest

should have created doubts as to the existence of proba-

ble cause and should have prompted further investiga-

tion. The Rankins claim that Evans should have examined

the playground equipment to determine whether Rankin

could have abused Amber on the steps of that equipment

as her statements indicated. They also argue that Evans

should have interviewed the teachers regarding Amber’s

behavior at school and Rankin’s degree of access to

Amber. Although the Rankins contend that this investiga-

tion should have been done prior to arresting Rankin,

they further assert that it certainly should have been

done after Rankin raised concerns regarding these issues

during his interview with the police. Plaintiffs contend

that such additional investigation was especially impor-

tant here because time was not of the essence in making

an arrest since the school was going to be closed over the

Thanksgiving holidays, limiting Rankin’s access to the

children.

Defendants counter that Evans’s conclusion that

probable cause existed to arrest Rankin was well-sup-

ported by the evidence available to him at the time of

Rankin’s arrest and detention. Defendants note that

A-26

Evans interviewed Amber, Dr. Brake, and Dr. Drum-

mond, all of whom provided information supporting the

conclusion that Rankin had abused Amber.

Defendants also contend that Evans’s interviews with

Amber and her mother, his conversation with Dr. Drum-

mond, and his interrogation of Rankin in which Rankin

made several damaging statements constituted a reason-

able investigation and provided trustworthy and reliable

information from which he could conclude that probable

cause existed both at the time of arrest and during

Rankin’s subsequent detention. They further contest

plaintiffs’ assertion that time was not of the essence in

making the arrest. They note that had Rankin not been

arrested on the morning of November 23, he would have

had access to the children at the school for the entire day.

We conclude that the investigation conducted by

Evans was reasonable and that the evidence on which he

based his decision to arrest Rankin was sufficient to

create probable cause as a matter of law. We also con-

clude that the statements made by Rankin after his arrest

did not defeat the existence of probable cause or necessi-

tate immediate further investigation.

a. The Medical Evidence

We now address plaintiffs’ assertion that the medical

evidence available to Evans precluded the existence of

probable cause to arrest Rankin for the crime with which

he was charged. The Rankins note that penetration is an

element of the crime of sexual abuse of a child under

twelve. See § 794.011 Fla. Stat. (1987). Resolving all factual

ee

A-27

disputes in favor of the plaintiffs, we must conclude that

Evans knew that the injury suggesting such penetration

had been incurred at least two weeks before the date of

Dr. Drummond’s examination and that Evans knew that

Amber had attended Sugar Plum for just two weeks. We

also must conclude that Dr. Brake told Evans that Amber

had told her that abusive behavior had occurred on

November 21, 1988, a date which seemingly conflicts with

the medical evidence that penetration (if only partial) had

occurred at least two weeks prior to that date.!4 Accord-

ingly, the question to be answered is whether a prudent

person faced with such information could reasonably

have believed that Rankin committed the offense.

In addition to that information, however, Deputy

Evans also knew that Amber had sustained a fresh abra-

sion within 24 hours of the November 21, 1988, medical

examination which could have been caused by a finger-

ing of the genital area. During her videotaped interview,

Amber indicated that abusive incidents occurred on more

than one occasion. Thus, Amber’s statements and the

medical evidence both suggested that more than one

'4 The parties disputed this at trial. Evans testified that Dr.

Brake told him that the date on which Amber told her about the

incident with Ba Ba Blue was November 21, but that Dr. Brake

gave him a time frame of November 7 to November 21 during

which the actual incident or incidents of abuse could have

occurred. Plaintiffs confronted Evans at trial with his arguably

conflicting deposition testimony in which he indicated that Dr.

Brake told him that Amber said that the abuse occurred on

November 21, 1988. In light of this conflicting evidence, we

must accept plaintiffs’ assertion as true.

- A-28

instance of abuse occurred, and a prudent officer reason-

ably could have concluded that a single individual, rather

than two separate individuals, was responsible for the

alleged abuse. Furthermore, an officer reasonably could

have concluded that Rankin was that individual.

Evans knew that Amber consistently had called her

alleged abuser Ba Ba Blue and repeatedly linked the

alleged abuse to the school. He knew that Rankin was the

only person whom Amber called by that name. Amber

repeatedly referred to her abuser as a “he,” and Dr. Brake

told Evans that Rankin was the only male who had access

to Amber during the approximately two-week period

which was consistent with all of the medical evidence.!5

Dr. Brake also informed Deputy Evans that, after Amber

started school at Sugar Plum, her behavior and language

had changed in ways which Evans knew to be consistent

with sexual abuse.

Plaintiffs assert that even if the abuse could have

occurred on the first day on which Amber attended Sugar

Plum, which would have placed the incident involving

penetration within a time frame consistent with Rankin’s

'S Amber attended Sugar Plum for two weeks, and Dr.

Drummond indicated that the injury suggesting penetration

was at least two weeks old. Thus, accepting as true that Evans

knew of Dr. Drummond ’s time line, an overlap of approximately

a day existed during which a cautious officer reasonably could

have concluded that Rankin could have committed the charged

offense. We further note that an officer reasonably could have

concluded that the time frame given by the doctor was an

estimate and not necessarily a strict cut-off point, thus possibly

expanding the window of opportunity by a reasonable period of

time.

A-29

guilt, Evans knew that Amber had stated that abuse had

occurred on November 21, 1988, which was clearly incon-

sistent with the medical time frame for the act of penetra-

tion. However, the relevant question is whether a prudent

officer reasonably could have believed that Rankin com-

mitted the offense in light of the medical evidence sug-

gesting that any penetration had to have happened

significantly before November 21, 1988, and Dr. Brake’s

statement that Amber indicated that the abuse occurred

on November 21, 1988.

In light of the evidence suggesting multiple incidents

of abuse, a prudent officer reasonably could have

believed that, in recounting her story to her mother,

Amber might not have distinguished between penetra-

tion and simple fingering or rubbing. Thus, in recounting

the abuse she could have conflated the incidents or con-

fused the dates, or, in talking to her mother, she could

have been referring to the conduct which may have

resulted in the abrasion. A cautious officer, therefore,

reasonably could have believed that multiple incidents of

abuse occurred and that the abuse with which Rankin

was charged occurred within the first few days of school

~ which was within the medically permissible time frame.

Accordingly, a reasonable jury could not have concluded

that the medical evidence defeated probable cause to

arrest Rankin.

b. Access

The Rankins next assert that, even if the medical

evidence does not conclusively defeat probable cause,

Rankin’s lack of access to Amber while she was at school

A-30

does. They contend that, had Evans interviewed any of

the teachers before arresting Rankin, he would have real-

ized that Rankin was never alone with Amber and, thus,

could not have abused her. Plaintiffs further note that it is

uncontested that Rankin informed Evans of his lack of

access to Amber during questioning after he was

arrested. They thus contend that Evans knew or should

have known that Rankin was never alone with Amber

and that he therefore lacked the opportunity to have

committed the crime charged.

Defendants counter that Deputy Evans knew that

Rankin was present at the school during the relevant time

frame and that he moved freely throughout the school.

Evans also knew that Dr. Brake had observed what she

perceived to be a lack of adequate supervision of the

children. Finally, defendants contend that a reasonable

officer could have concluded that the abuse - partial

penetration by a finger and rubbing of Amber’s genitalia

- could have occurred with others in the room if the

abuser had his body between any other adult and the

child and he simply slipped his hand down the front of

Amber’s pants or skirt.!©

‘6 The Rankins note that, in Amber's videotaped interview,

she indicated that Ba Ba Blue touched her with both a finger and

a plastic spoon. The Rankins assert that a reasonable officer

could not possibly believe that Rankin could penetrate Amber

with a spoon with other adults in the same room, since such an

action undoubtedly would have been painful and caused

Amber to make some sort of outcry. However, a cautious officer

could have reasonably concluded that the facts available to him

at the point of arrest supported at least Amber's contention that

Rankin digitally penetrated her. Although further investigation

may have been required in order to determine whether the

A-31

Additionally, the teachers whom Rankin argues that

Evans should have interviewed were employed by

Rankin and thus would have been of questionable cred-

ibility.'7 A cautious officer certainly could have reason-

ably concluded that, even if the teachers were to have

stated that Rankin had no access to Amber, such testi-

mony would be so undercut by the witnesses’ bias in

favor of their employer and their own self-interest in

asserting that they were always aware of Amber’s move-

ments — such supervision being one of their job respon-

sibilities — that it would not defeat the existence of

probable cause in light of the other evidence suggesting

Rankin’s guilt. Finally, interviewing those witnesses prior

to picking up Rankin might have alerted him to his

possible arrest and, conceivably, precipitated his flight. In

light of all of these considerations, a reasonable jury

spoon incident could be verified, a reasonable officer could

conclude that he had sufficient evidence to proceed on the

digital penetration allegation and that time was of the essence

considering Rankin’s position as the owner of a day care center.

Furthermore, a prudent officer could reasonably conclude that

Amber’s statements regarding digital penetration — which she

made on several separate occasions and stated in her own

words — were more reliable than her single reference to possible

penetration by a spoon —- which she referred to only in response

to a question by Evans.

'7 Rankin also asserts that one of the teachers would have

told Evans that she saw Amber rubbing her vagina on

November 21. However, we note that a prudent officer who had

such information reasonably could have believed that a child

would not have rubbed herself so hard as to cause an abrasion.

Thus, such information, even had it been credible and had

Evans known it, would not have defeated the existence of

probable cause.

A-32

could not have concluded that a prudent officer could not

have reasonably believed that Rankin had sufficient

access to Amber to have committed the crime charged.

The Rankins further assert that the physical evidence

contradicted Amber’s account of events and that those

contradictions defeated probable cause. The Rankins

argue that Amber’s contention that she was abused by Ba

Ba Blue on the steps of playground equipment at the

school simply could not have been true because Rankin

physically could not have performed the actions she

described at that location. They contend that a reasonable

jury could have concluded that the playground equip-

ment steps were too small for a man of Rankin’s size to

enter and that the slats on the sides of the equipment

were too narrow to permit him to reach into the equip-

ment from the outside. The Rankins also assert that a

reasonable jury could have determined that Evans did

not examine the playground equipment to determine

whether Amber’s account of the abuse was consistent

with the physical evidence. Assuming this to have been

true, the question is whether a prudent officer reasonably

could have believed, in light of all the evidence known to

him, that Rankin was guilty of sexually abusing Amber.

We conclude that a cautious officer reasonably could

have believed that, even if Amber’s story was inaccurate

as to the precise location of the abuse, the core of her

story regarding the abuse and the identity of the abuser

was trustworthy and reliable, especially in light of the

medical and other evidence corroborating her story. See

Easton v. City of Boulder, 776 F.2d 1441, 1449-50 (10th

Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93

L.Ed.2d 28 (1986). -

*

a

wi

BY

ye

A-33

Furthermore, a prudent person reasonably could

have believed that the abuse happened in the approxi-

mate area of the playground equipment, if not actually on

it. Amber stated on the audiotape that, after Ba Ba Blue

made “a hole in [her] bottom,” he put her “back on the

playground.” In the videotaped interview, she said that

the abuse took place outside the school. In response to a

question from Evans asking whether it was on the play-

ground, she said “yeah.” In response to the question of

whether it was on a piece of a toy, she said “no.” She said

that the incident took place on the steps. Interpreting the

physical evidence in light of the statements by the victim,

it would not be unreasonable for a prudent person to

conclude that a three-and-a-half-year-old might either

unclearly articulate the location of the abuse or conflate

the idea of being put back on the playground after being

abused with the idea of where the abuse actually

occurred. Additionally, since Amber did not actually state

that the abuse occurred on the steps of the playground

equipment, there is no reason why a reasonable officer

would have to have concluded that Rankin’s inability to

commit the alleged act on the playground equipment

obviated probable cause. Finally, we note that Amber

stated that the abuse occurred both inside and outside the

schoolhouse, so the fact that Rankin apparently could not

have abused Amber on the playground equipment does

not affect the possibility that he abused her in the school-

house. In light of all of the evidence, we conclude that a

reasonable jury could not have concluded that Rankin’s

alleged lack of access to Amber defeated probable cause.

A-34

c. The Victim's Statements

Next, we address the Rankins’ contentions that the

only information available to Deputy Evans suggesting

that Rankin was the perpetrator of any abuse ultimately

was based upon statements made by Amber, and that

those statements were not sufficiently reliable and trust-

worthy to support the existence of probable cause. Defen-

dants contend not only that Amber’s statements were

sufficiently reliable and trustworthy to support probable

cause, but also that Evans was prohibited from simply

disregarding such statements based upon the age of the

victim. We conclude that evidence other than Amber’s

statements supported the conclusion that Rankin likely

was the perpetrator of the charged conduct. We also

conclude that Evans was entitled to rely to a meaningful

degree on Amber’s statements in determining the exis-

tence of probable cause, and that those statements sup-

ported probable cause.

As noted, Amber’s statements did not constitute the

only evidence suggesting that Rankin was the person

who had abused her. The medical evidence was consis-

tent with two separate episodes of abuse — partial pene-

tration which dated back at least two weeks prior to

November 21, and either rubbing or fingering of the

genitalia which occurred within 24 hours of Dr. Drum-

mond’s examination of Amber. Dr. Brake indicated to

Evans that she and the school staff were the only people

with access to Amber during the two-week period cover-

ing both potential incidents of abuse.

Furthermore, a cautious person reasonably could

have believed that Dr. Brake was unlikely either to have

aca sa

A-35

been the abuser or to have been protecting someone else

whom she knew to be the abuser since she — at a point at

which no one else knew that any abuse might have

occurred — told a friend that she thought that Amber had

been abused, took her to a pediatrician to have her exam-

ined for abuse, and promptly informed the police of the

suspected abuse. A prudent person reasonably could

have concluded that one who was guilty of, or complicit

in, abusive conduct would not spontaneously decide

aggressively to volunteer information to people in a posi-

tion to take prosecutorial action regarding potential

abuse and insist that such action be taken.

Thus, having concluded that Dr. Brake was unlikely

to have been responsible for the alleged abusive inci-

dents, a cautious person reasonably could have believed

that the perpetrator was someone at the school.!* This

conclusion was further supported by Dr. Brake’s state-

ment that Amber started exhibiting behavioral changes

within a week of beginning her attendance at Sugar

Plum. These behavioral changes included unusual clingi-

ness, an abnormal aversion to attending school, and atyp-

ical shyness. A seasoned officer reasonably could have

concluded that these behavioral changes were consistent

with sexual abuse and linked that abuse to the school.!?

i8 Although Evans knew that a male coworker of Dr.

Brake’s had had access to Amber approximately three weeks

prior to the medical examination, that person had not had

access to her during the two-week period potentially covering

the occurrences resulting in both the damage to the hymen and

the fresh abrasion.

19 The Rankins contend that if Evans had interviewed the

teachers, they would have told him that Amber exhibited no

A-36

Having narrowed the class of likely suspects to the

school house, information provided by Dr. Brake sug-

gested that Rankin was the guilty party. Dr. Brake told

Evans that, on the day Amber informed her of the abuse,

she saw Rankin pick up Amber and that Amber hit him.

A prudent officer reasonably could have found this infor-

mation to be relevant to the probable cause determination

in two ways: (1) as Evans testified, an abuser often shows

a special interest in a child whom he is abusing, and

Rankin’s particular attention to Amber in a class of

approximately 120 might indicate such a special interest;

behavioral changes, appeared to be happy at school, and even

started to misbehave at the end of the day when she had to leave

school. However, a cautious officer reasonably could have

concluded that any potential statements by the teachers

regarding Amber’s behavior would not have been particularly

probative considering their limited experience with Amber,

particularly in light of the fact that her mother, who clearly

knew her very well, indicated that such changes had occurred.

The Rankins also contend that Evans knew that Amber and

her family had just moved, that she had been repeatedly moved

to new preschools, and that her mother had been paying a lot of

attention to Amber’s younger brother because of his severe

illness. They argue that - knowing about those family

circumstances - a cautious officer would not have given

significant weight to any behavioral changes. However, we

conclude that a cautious officer reasonably could have believed,

in light of the knowledge that Amber had frequently moved to

new preschools and that her brother’s health problems were

apparently chronic, that Amber had faced such strains before

and that her mother was presumably aware of her child’s

typical reactions to such ongoing problems. Dr. Brake, however,

had nonetheless concluded that Amber’s behavior was unusual

and reported that conclusion to Evans. A reasonable officer

acting cautiously could have given significant weight to her

evaluation of her child’s behavior.

pis Joi aman haar

A-37

and (2) the hostility Amber demonstrated towards Rankin

by striking him was not typical of her behavior towards

adults, as indicated by her mother, suggesting that

Rankin had done something to prompt such a reaction.

In addition to this independent evidence linking

Rankin to the abuse, Evans relied on Amber’s statements

to both her mother and the police in determining that

probable cause existed to arrest Rankin. As noted above,

the essential question regarding Amber’s statements is

whether they were sufficiently reliable and trustworthy

to support a determination of probable cause. We con-

clude as a matter of law that a prudent person reasonably

could have believed that the fundamental information

provided by Amber’s statements was sufficiently reliable

and trustworthy to consider in determining the existence

of probable cause.

Generally, an officer is entitled to rely on a victim’s

criminal complaint as support for probable cause. See

Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d

Cit. 1995), cert. denied, US. 2, 316 SACU i676; 158

L.Ed.2d 779 (1996). The Rankins assert that Evans was not

entitled to so rely here because the victim’s age and

inconsistencies rendered her statements unreliable. We

conclude that, although a child victim’s statements must

be evaluated in light of her age, Amber’s statements -

considered along with the other supporting evidence -

were sufficiently reliable and trustworthy at their core to

form the basis for probable cause to arrest Rankin. See

Marx, 905 F.2d at 1506 (indicating that, although a four-

year-old’s age affected the weight due her statements, the

arresting officer could not simply disregard her state-

ments in determining whether probable cause existed);

A-38

Myers v. Morris, 810 F.2d 1437, 1456-57 (8th Cir.), cert.

denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987);

Easton, 776 F.2d at 1450-51.

Next, we address the Rankins’ contention that Amber

never explicitly stated that Rankin or Mr. Doug abused

her. Instead, they note that she merely referred to her

abuser as Ba Ba Blue. However, they do not dispute that

Evans knew at the time of Rankin’s arrest that Rankin

was referred to by the children as Baba Loo. They also do

not contest that Amber in particular called Rankin Ba Ba

Blue, which was her pronunciation of Baba Loo. Amber

identified Ba Ba Blue as the culprit in both her first

statement regarding the abuse made to her mother and

the subsequent audiotaped statement. Dr. Brake told

Evans that Amber also had identified her alleged abuser

as Ba Ba Blue to Dr. Drummond. Furthermore, in the

videotaped interview of Amber, she ultimately responded

“Ba Ba Blue” to questions regarding the identity of her

abuser.?° In addition, Amber consistently referred to her

20 The Rankins assert that the videotaped statement in

which Amber identified “Ba Ba Blue” as her abuser

demonstrates the unreliability of her statements because she

initially answered “Donald Duck” and “Pluto” in response to

the question of who did the things to her which she described.

The Rankins assert that her identification of two cartoon

characters, followed immediately by her identification of Ba Ba

Blue as her abuser, precluded Evans from relying on her

statements for probable cause to arrest Rankin. However, a

prudent officer reasonably could conclude that Amber was

merely playing when she answered “Donald Duck” and

“Pluto,” but was being serious when she ultimately responded

Ba Ba Blue because: (1) she had repeatedly identified Ba Ba Blue

as the abuser in past statements and had never before

DN EAD NS, Be PR A

A-39

abuser as “he,” indicating that the offending individual

was a male. As noted above, the only people beside

Amber’s mother who appeared to have access to her were

the staff at Sugar Plum. In addition, Amber indicated that

all of her teachers were female, suggesting that Rankin

was the only male at Sugar Plum (a fact which Rankin

subsequently conceded during questioning). Accordingly,

we conclude that Amber’s statements provided sufficient

information for a cautious person reasonably to believe

that Amber was abused by someone called Ba Ba Blue,

and that other evidence indicated that Ba Ba Blue was

Rankin.

The Rankins also assert that inconsistencies in

Amber’s videotaped statement indicated that her state-

ments as a whole were unreliable. For instance, they note

that when Amber was questioned regarding the timing of

any abusive incidents, she stated that she had been

abused “today” — the date of the interview — but not on

the day before, the date on which she reported the inci-

dents to her mother and on which Dr. Brake told Evans

mentioned the first two characters; (2) she actually knew

someone who was referred to as Ba Ba Blue, unlike the other

characters; (3) she repeatedly referred to the person who abused

her as “he” and the person referred to as Ba Ba Blue was a male;

and (4) other corroborating evidence was consistent with abuse

by the individual identified as Ba Ba Blue. Thus, a cautious

officer reasonably could have concluded that Amber, when

referring to Ba Ba Blue, was referring to a real person as

opposed to a cartoon character. In light of the other evidence,

such an officer also reasonably could have concluded that

Rankin was Ba Ba Blue.

A-40

that Amber had indicated the abuse had occurred.?!

However, an officer as seasoned in the field of child

abuse as Deputy Evans reasonably could have discounted

Amber’s statements regarding the timing of the abuse

because of the fact that young children do not have a

particularly strong grasp of the concept of time, although

they are able to articulate more concrete concepts such as

events that have occurred or things that have happened

to them.??

The Rankins also point to several other comments by

Amber which they assert fatally undermine the reliability

of her statements.2> Although we acknowledge that a

stronger statement by the victim would be preferable

prior to arrest, we cannot conclude that a prudent officer

could not have reasonably relied on the fundamental

allegation consistently made by Amber: that a male

21 The Rankins also note the varying times which Amber

gave Dr. Drummond for the dates of the abuse as evidence that

Evans should not have relied on Amber’s statements. The

Rankins, however, have pointed to no evidence indicating that

Dr. Drummond relayed that information to Evans.

22 For example, Dr. Drummond testified that, in his

experience, children who were unable to fully grasp temporal

concepts were able accurately to-describe more concrete events

such as physical pain. A police officer such as Evans, with

formal training and extensive practical experience in child

abuse cases, would be aware of children’s difficulties with time,

and reasonably could have discounted those inconsistencies.

23 For instance, they note that Amber stated in the

videotaped interview that Dr. Drummond stuck a thermometer

in her bottom and that the testimony at trial showed that he did

not do so. However, the Rankins point to no evidence indicating

that Evans knew or should have known of this inconsistency at

the time of the arrest.

A-41

named Ba Ba Blue made a hole in her bottom at school.24

She made statements to this effect on at least four sepa-

rate occasions of which Evans was aware: to her mother,

to Dr. Drummond, on audiotape, and to him during the

videotaped interview.?> In light of the medical evidence

supporting the conclusion that abuse had occurred, Dr

Brake’s observations regarding Amber’s behavioral

changes, and her statements regarding the limited

number of people who had access to Amber during the

relevant time period, we conclude that Evans properly

relied on Amber’s statements in establishing the

*4 The Rankins contend that Amber’s assertion that the

abuser had stuck a finger in her bottom undercut the reliability

of her statement regarding the abuse because it was inconsistent

with the medical evidence which showed vaginal penetration,

but no anal contact. However, we note that, in the videotaped

interview, Amber referred to her genitals as her bottom. We also

note that it is not surprising that a three-year-old would not

have separate words for her vagina and bottom. Accordingly, a

reasonable officer could conclude that Amber intended to refer

to her vagina.

*° Defendants assert that Amber also made such statements

to Officer Honholz and Dr. Decharme. Plaintiffs assert that a

reasonable jury could have concluded that such statements were

never made to these individuals. We conclude that a prudent

officer reasonably could have relied upor Dr. Brake’s assertion

that Amber had made such a statement to Dr. Decharme and on

Officer’s Honholz’s representation to Evans and Dr. Brake that

Amber had made such a statement to him in evaluating the

existence of probable cause. However, even disregarding these

additional statements, probable cause existed as a matter of law.

A-42

existence of probable cause to arrest Rankin.?° See Marx,

905 F.2d at 1506; Myers, 810 F.2d at 1456-57.

Conclusion

In sum, we conclude that the trial court was not

procedurally barred by Federal Rule of Civil Procedure

50 from granting a JNOV in favor of defendants on the

ground that probable cause existed. Although we note

with regret the undoubted hardship caused to plaintiffs

by Doug Rankin’s arrest and detention, especially in light

of his subsequent complete exoneration by the grand jury,

we conclude that the district court correctly determined

that probable cause existed as a matter of law. Accord-

ingly, we affirm the district court’s grant of a JNOV in

favor of defendants and dismiss the cross-appeal as moot.

AFFIRMED.

26 We note that under Fla. Stat. 794.022(1) (West Supp.1990),

“[t}he testimony of the victim need not be corroborated in a

prosecution under s. 794.011 [commission of a sexual battery of

a child under twelve].” However, we do not need to address the

question of how this statutory section would apply when the

victim is a young child and the statement is merely being used

to establish probable cause, rather than as the sole basis for a

- conviction, because Evans had evidence in addition to Amber's

statements which incriminated Rankin at the time of arrest.

Me Faw ae Pe,

I

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

DOUG RANKIN and

VICTORIA RANKIN,

Nir CASE NO. 91-8012-CIV-

Plaintiffs,

GONZALEZ

v.

MARK EVANS and

PALM BEACH COUNTY

SHERIFF’S

DEPARTMENT,

Defendants.

ORDER

(Filed May 15, 1995)

THIS CAUSE has come before the Court upon

Defendants’ Motion for Judgment Notwithstanding the

Verdict and Motion for New Trial, filed on January 4,

1995. The motions have been fully briefed and are ripe for

disposition.

Following a trial of this matter, the Jury returned its

verdict in favor of Plaintiffs on both Counts of the Com-

plaint. First, the Jury found that Defendants violated

Plaintiffs’ Fourth and Fourteenth Amendment rights in

violation of 42 U.S.C. § 1983. Second, the Jury found

Defendants’ liable for false arrest/false imprisonment

under Florida law.

When considering a motion for judgment notwith-

standing the verdict, the Court must view all evidence

B-2

and inferences in the light most favorable to the non-

moving party. Carter v. City of Miami, 870 F.2d 578 581

(11th Cir. 1989). Only if the Court concludes that no

reasonable jury could have found in favor of the prevail-

ing party should the Court disturb a jury’s verdict. “A

mere scintilla of evidence is insufficient to present a

question for the jury. The substantial evidence standard

requires evidence of such quality and weight that reason-

able and fair-minded jurors might reach different conclu-

sions.” Cannon v. Macon County, 1 F.3d 1558, 1562 (11th

Cir. 1993), citing Von Stein v. Brescher, 904 F.2d 572, 578

‘(11th Cir. 1990). Because the Court concludes that there

was no legally sufficient evidentiary basis for a reason-

able jury to find for Plaintiffs in this case on either count

of the Complaint, this Court shall enter judgment as a

matter of law and conditionally deny the motion for new

trial. Fed.R.Civ.P. 50(b)-(c).

Under both federal and Florida law, the existence of

probable cause is a complete defense to the claims

asserted by Plaintiffs in their Complaint. See Chester J.

Antieau, 1 Federal Civil Rights Acts; Civil Practice § 126;

Marx v. Gumbinner, 905 F.2d 1503 (11th Cir. 1990); Von

Stein v. Brescher, 904 F.2d 572 (11th Cir. 1990); Lindsey v.

Storey, 936 F.2d 554 (11th Cir. 1991); Fla.Stat. § 901.15(3);

LeGrand v. Dean, 564 So.2d 510, 511 (Fla.Dist.Ct-App.

1990). Probable cause exists where a reasonably cautious

person, knowing all of the facts known by an arresting

officer at the time of an arrest, would have believed that

the accused was guilty of the offense charged. LeGrand, at

513; 24 Fla.Jur.2d False Imprisonment § 21; Brinegar v.

United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11,

93 L.Ed. 1879 (1949); Wilson v. Attaway, 757 F.2d 1227,

ee

B-3

1235 (11th Cir. 1985). An arresting officer need not rely

upon overwhelmingly convincing evidence, but only

“reasonably trustworthy information,” Von Stein, supra,

citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13

L.Ed.2d 142 (1964). Probable cause “must be judged not

with clinical detachment but with a common sense view

to the realities of normal life.” Wilson, 757 F.2d at 1235.

Viewing all of the facts in the light most favorable to

Plaintiffs, the Court concludes that probable cause exis-

ted in the present case. Accordingly, Defendants were

entitled to a judgment as a matter of law before this case

was submitted to the Jury. Out of an abundance of cau-

tion, and pursuant to Fed.R.Civ.P. 50(b), this Court

reserved ruling on Defendants’ motion and submitted the

case to the Jury. However, the Jury having returned a

verdict contrary to any reasonable interpretation of the

law and facts in this case, this Court shall enter judgment

notwithstanding the verdict.

Accordingly, having considered the motions and the

record, and being otherwise duly advised, it is hereby:

ORDERED and ADJUDGED as follows:

1. Detendants’ Motion for Judgment Notwithstand-

ing the Verdict is GRANTED and Judgment as a Matter

of Law is hereby entered in favor of Defendants and

against Plaintiffs on both counts of the Complaint.

2. Pursuant to Fed.R.Civ.P. 50(e), Defendants’

Motion for New Trial is conditionally DENIED. This con-

ditional denial is based upon the fact that this Court’s

present ruling is rooted in its determination that probable

cause existed in this case. As no other error requiring a

B-4

new trial exists in the record, should the court of appeals

disagree with this Court’s determination, there would

exist no grounds for a new trial.

3. All other pending motions are DENIED as moot.

DONE AND ORDERED in Chambers at Fort

Lauderdale, Florida, this 15th day of May, 1995.

/s/ Jose A. Gonzalez, Jr.

JOSE A. GONZALEZ, JR.

UNITED STATES

DISTRICT JUDGE

cc: Counsel

C-]

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-4744

DOUG RANKIN,

VICTORIA RANKIN,

Plaintiffs-Appellants,

Cross-Appellees,

versus

MARK EVANS,

RICHARD WILLIE, Sheriff of

Palm Beach County, et al.

Defendants-Appellees,

Cross-Appellants.

On Appeal from the United States District Court

for the Southern District of Florida

(Filed April 2, 1998)

BEFORE: BARKETT, Circuit Judge, KRAVITCH, Senior

Circuit Judge, and HARRIS*, Senior District.

PER CURIAM:

The petition(s) for rehearing filed by the appellants’

is DENIED.

* Honorable Stanley S. Harris, Senior U.S. District Judge for

the District of Columbia, sitting by designation.

ee ee

C-2

ENTERED FOR THE COURT:

's/ Rosemary Barkett

UNITED STATES CIRCUIT JUDGE