Appendix — De Armas v. Kingsland

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT DATED MAY 11, 2004

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

No. 03-13331

May 11, 2004

MISTY KINGSLAND,

Plaintiff-Appellant,

versus

CITY OF MIAMI, a Florida Municipal Corporation,

RAMON DE ARMAS, individually, E. VALENZUELA,

individually, J. BALIKES, individually,

Defendants-Appellees.

Before WILSON and KRAVITCH, Circuit Judges, and

GOLDBERG,* Judge.

WILSON, Circuit Judge:

Appellant Misty Kingsland appeals the district court’s

grant of summary judgment in favor of Defendants-

Appellees, based on her § 1983 claims of false arrest and

* Honorable Richard W. Goldberg, Judge, United States Court

of International Trade, sitting by designation.

2a

Appendix A

malicious prosecution.' For the reasons that follow, we

reverse the district court’s judgment and remand this case

for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background

At approximately 8:00 p.m. on November 27, 1995,

Appellant Kingsland was involved in an automobile accident

with off-duty Officer Ramon De Armas of the City of Miami

Police Department. Officer De Armas reported the accident

on his police radio. Kingsland, who was driving a yellow

Penske rental truck, had two passengers with her. De Armas

was transporting one passenger in his unmarked police

vehicle. Kingsland asserts that De Armas ran a red light and

caused the accident, while De Armas avers that it was

Kingsland who ran the red light.

At the time of the accident, Kingsland was not under the

influence of alcohol or drugs. As a result of the accident,

Kingsland suffered head trauma, cried, was dizzy, felt sick,

and had blurred vision. Following the collision, she climbed

out of the rental truck and sat down in a pile of shattered

glass adjacent to the truck, cutting her hand. She was

disoriented and was “in and out of it.” Not knowing Officer

De Armas had been a participant in the collision, and instead

believing him to be an officer who had responded to the scene,

1. Kingsland does not appeal summary judgment as to her

claims against the City of Miami, but only as to her claims against

the defendant officers.

3a

Appendix A

Kingsland screamed to him, “He just ran the red light and

hit me!”

Although Miami police officers promptly responded to

the scene of the accident, an officer did not approach

Kingsland until approximately thirty minutes had passed.

At that time, Kingsland remained seated in a pile of shattered

glass and was unable to stand up. When asked for her license

and registration, she attempted to stand to retrieve it, but

had to sit back down. One of her passengers eventually

obtained the license and registration from the truck.

Kingsland alleges that she told the officers that she was

dizzy and could not stand up. She also mentioned that she

had sustained injuries to her head, and requested ice for her

head, which she did not receive.’ Contrary to the assertions

of the defendants, Kingsland contends that she was not treated

at the scene by emergency medical technicians. Officer

De Armas and his passenger, however, did receive medical

treatment.

Despite the presence of about twenty police officers at

the scene, no officer asked Kingsland for a statement of her

version of the events or spoke to any witnesses on the scene.

However, the officers spent a great deal of time talking to

Officer De Armas, who claimed that Kingsland was at fault.

2. A post-accident physical exam conducted by Kingsland’s

doctor revealed that Kingsland bore two black eyes; a bruise and a

large bump on her head; bruising from her left shoulder across her

chest (presumably from her seatbelt); and injuries to her left jaw,

hip, and shoulder due to impact with the inside of the truck.

4a

Appendix A

When Officer Valenzuela arrived at the scene, Officer

Balikes told Officer Valenzuela that he noticed an odor of

cannabis coming from Kingsland’s vehicle and person, and

that he thought Kingsland was impaired. Officer Valenzuela

then went to the truck to corroborate Officer Balikes’s

statements, and later testified that he also smelled a

“slight odor” of cannabis on Kingsland’s person. Yet, none

of these investigating officers saw fit to conduct a search of

Kingsland’s vehicle. Likewise, no drug-sniffing dogs were

summoned to corroborate the officers’ beliefs, and no

cannabis was ever found. Kingsland denies the existence of

any cannabis or cannabis odor on her person or in the truck.

In her complaint, she alleges that the officers fabricated the

smell of cannabis in an effort to manufacture probable cause.

Officer Valenzuela also noticed that Kingsland’s eyes

were bloodshot. Kingsland explains that if her eyes were

bloodshot, it was because she had been crying. Officer

Valenzuela saw one of Kingsland’s passengers being treated

by rescue personnel, but did not attempt to talk to him or the

other passenger to assess whether either of them smelled of

cannabis.

Officer Balikes and another officer asked Officer

Valenzuela, who is a certified Driving Under the Influence

(DUI) technician with two years experience, to administer a

field sobriety test on Kingsland. Kingsland informed the

officers that she was feeling dizzy and sick, and that she

wanted to go to the hospital.’ The officers did not talk to

rescue personnel about Kingsland’s condition.

3. In contrast, Officer Valenzuela testified that Kingsland did

not say she was dizzy, and that she responded that she was fine when

asked if she was okay.

Sa

Appendix A

During the “walk and turn” test, Kingsland did an about

face instead of doing the turn as instructed. She also swayed

while balancing on one leg, did not properly place her finger

to her nose, missed the tip of her nose five times, failed to

follow instructions, had eyelid tremors, and failed to keep

her eyes shut during the Rhomberg balancing test. Officer

Valenzuela concluded that Kingsland failed the sobriety tests.

The officers then escorted Kingsland into a police cruiser,

informing her that she was being transported to the hospital

for treatment and more tests.‘ She was instead taken into

custody and brought to a DUI testing facility. At the police

station, the defendants and other officers accused her of

running a red light and causing the accident.

Although Officer Valenzuela says that he always

suspected that Kingsland was under the influence of cannabis

and later charged her with that offense, Kingsland stated that

she was charged with driving under the influence of alcohol

upon arriving at the station. Kingsland asserts that the officers

told her they knew she was drunk and had been driving drunk.

They performed between two and four Breathalyzer tests,

all of which came back negative-with a 0.000% alcohol

content. When the Breathalyzer results came back, the officer

who was writing on a form asked another officer what he

should then write. The second officer told the first officer to

write that Kingsland had a strong odor of cannabis emitting

from her breath. At that point, the first officer threw away

4. Kingsland’s passengers were left at the scene of the accident.

6a

Appendix A

the form he was writing on and started writing on a new

form.°

After she passed the Breathalyzer tests, Kingsland

continued telling the officers that she did not do drugs and

that she felt sick. Officer Valenzuela then requested that a

drug test be performed on Kingsland. Officer Robert Jenkins

of the Miami Beach Police Department responded and

performed more tests on Kingsland, including walking a

straight line, touching her nose, and closing her eyes while

extending her arms. Officer Jenkins determined that

Kingsland’s normal facilities were impaired and obtained a

urine specimen from her.

Kingsland was then handcuffed, transported to the

Dade County jail, and charged with DUI.° Her father posted

a $1,000.00 bond the following day, and she was subsequently

5. The arrest affidavit, which was signed by Officer Balikes,

states that Kingsland “ran the red light . . . and collided with a [sic]

unmarked police unit,” and that she was “observed with bloodshot

eyes, slurred speech, and a strong odor of cannabis emitting from

her breath.” Although the arrest affidavit was completed after the

Breathalyzer tests had been administered, the affidavit contains no

mention of the negative Breathalyzer results. Instead, in the area in

which the officer was to mark whether the arrestee was under the

influence of alcohol, a box was checked to indicate that the answer

was unknown.

6. While incarcerated, Kingsland’s eyes began dilating and

constricting, and she began vomiting. The prison nurse mentioned

that she was afraid Kingsland may have suffered a concussion, placed

Kingsland in isolation, and checked on her every fifteen to thirty

minutes.

7a

Appendix A

arraigned on charges of careless driving, reckless driving,

and Kingsland denies that there was any odor of cannabis on

her person or in the truck. Further, she disputes without

supporting evidence whether she had bloodshot eyes and

slurred speech, and claims that if she did in fact exhibit these

characteristics, they resulted from the trauma of the accident

and her subsequent continual crying.

DUI. Kingsland made two trips from New Jersey to

Florida to appear in court on these charges.

The defendant officers assert that they never received

the laboratory test results, which came back negative for

cannabis. They claim that, according to police department

policies, drug test results are delivered to the prosecutor and

the officer who submits the sample for analysis-in this case,

Officer Jenkins.’

On February 5, 1996, the prosecutor provided

the negative urine test results to Kingsland’s counsel. In

May 1996, after two court appearances that resulted in

continuances, Kingsland filed a motion to dismiss in light of

the drug test results. The charges were dropped on June 6,

1996.

B. Procedural History

Kingsland filed suit under 42 U.S.C. § 1983 against

Officers De Armas, Balikes, and Valenzuela, and against

7. Because Officer Jenkins worked for the Miami Beach police,

the City of Miami police department did not receive the test results,

despite the fact that the case arose in the City of Miami.

8a

Appendix A

the City of Miami, alleging false arrest and malicious

prosecution. In Kingsland v. City of Miami, 2003 U.S. Dist.

LEXIS 25449, No. 99-03393-CV-AJ (S.D. Fla. May 29,

2003), the district court granted summary judgment in favor

of the defendants, finding that the officers had probable cause

to arrest Kingsland, and that the officers were entitled to

qualified immunity on both claims.

Kingsland appeals the district court’s grant of summary

judgment, arguing that the appellees violated her Fourth

Amendment rights and are not entitled to qualified immunity.

Il. STANDARD OF REVIEW

We review a district court’s grant of summary judgment

de novo, applying the same legal standards used by the district

court. See O’Ferrell v. United States, 253 F.3d 1257, 1265

(11th Cir. 2001). Summary judgment is appropriate where

“there is no genuine issue as to any material fact and... the

moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c). We view the evidence and all factual

inferences therefrom in the light most favorable to the

non-moving party, and resolve all reasonable doubts about

the facts in Favor of the non-movant. See Burton v. City of

Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999)

(citing Clemons v. Dougherty County, 684 F.2d 1365, 1368-

69 (11th Cir. 1982)).

9a

Appendix A

III. DISCUSSION

A. False Arrest

A warrantless arrest without probable cause violates the

Constitution and provides a basis for a section 1983 claim.

Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990).

The existence of probable cause at the time of arrest, however,

constitutes an absolute bar to a section 1983 action for false

arrest. Jd. at 1505-06. Because this case comes to us on

Summary judgment, we need only decide whether the

defendants carried their burden of demonstrating that

probable cause existed to arrest Kingsland as a matter of law.

Probable cause to arrest exists when an arrest is

objectively reasonable based on the totality of the

circumstances. Rankin v. Evans, 133 F.3d 1425, 1435

(11th Cir. 1998). “This standard is met when ‘the facts and

circumstances within the officer’s knowledge, of which he

or she has reasonably trustworthy information, would cause

a prudent person to believe, under the circumstances shown,

that the suspect has committed, is committing, or is about

to commit an offense.’” Jd. (quoting Williamson y. Mills,

65 F.3d 155, 158 (11th Cir. 1995)).

1. The Integrity of the Evidence

If the officers’ assessment that Kingsland’s eyes were

bloodshot, that her speech was slurred, and that either she or

her truck smelled of cannabis were undisputed, we would

have no problem agreeing with the district court’s

conclusions. The record, however, contains evidence that

—

10a

Appendix A

contradicts each of these findings, sufficient to overcome

summary judgment.

Principally, the defendant officers based their arrest in

part on their allegation that they detected an odor of cannabis

emanating from either Kingsland’s breath, her person, or her

vehicle. However, Kingsland claims that she did not engage

in illegal drug activity on the day of the accident or on any

other day, and hence, that the officers could not have detected

any such odor prior to her arrest. At the outset, the district

court erred in failing to recognize in Kingsland’s complaint

the assertion that the defendants fabricated evidence to

support probable cause.

We find it significant that Kingsland is able to support

her assertions of fabrication with the following facts:

(1) despite detecting an odor of cannabis, the officers chose

not to conduct a search of Kingsland’s vehicle or her

passengers to corroborate their testimony; (2) the officers

did not call in drug-sniffing dogs to confirm their suspicions

of drug use; (3) no drugs were ever found or produced;

(4) Kingsland tested negative for cannabis; (5) Kingsland’s

vehicle was not impounded as evidence, nor was her allegedly

odoriferous clothing retained; (6) the defendants stated in

their arrest affidavit that Kingsland ran the red light, allegedly

without taking statements from available witnesses or from

Kingsland herself; and (7) the officers decided to charge

Kingsland with DUI-cannabis rather than DUI-alcohol, and

simultaneously destroy an initial arrest affidavit, only after

she passed Breathalyzer tests.* In sum, the defendants appear

8. In contrast, we are mindful that a court need not entertain

conclusory and unsubstantiated allegations of fabrication of evidence.

(Cont'd)

lla

Appendix A

to lack any corroborating evidence to support their testimony

that an odor of cannabis was present, whereas Kingsland is

able to support her assertions with circumstantial evidence.

In finding both probable cause and reasonable suspicion

to conduct a field sobriety test on Kingsland, the district court

stated:

Officers Valenzuela and Balikes detected an

odor of cannabis emanating from [Kingsland’s]

truck. Ms. Kingsland denied that she smelled of

cannabis, but she has no evidence to contradict

the testimony of Officers Valenzuela and Balikes

about the truck’s odor.

Even though Ms. Kingsland did not smell of

cannabis — I credit her version of events instead

of Officer Valenzuela’s and Officer Balikes’ — she

has no evidence to contradict the testimony of

Officers Valenzuela and Balikes that there was an

odor of cannabis from the truck.

Kingsland, No. 99-03393-CV-AJ, slip op. at 6, 9. We have

several concerns about this reasoning.

(Cont'd)

See, e.g., Cunningham v. Gates, 229 F.3d 1271, 1291-92 (9th Cir.

2000) (dismissing plaintiffs’ conclusory allegations of fabrication

where the plaintiffs produced “not an iota of evidence” to suggest

that the defendant officers fabricated evidence).

12a

Appendix A

First, the record contains conflicting accounts regarding

where the odor of cannabis originated. On the arrest affidavit,

Officer Balikes stated that Kingsland “was observed with

... a strong odor of cannibis [sic] emitting from her breath.”

However, the arrest affidavit makes no mention of a cannabis

odor emanating from the truck. Moreover, Officer Valenzuela,

a DUI specialist, testified that he has trouble smelling

cannabis on a person’s breath, and instead indicated that he

detected a “slight odor” of cannabis on Kingsland’s person.

Thus, there are genuine issues of fact regarding (1) whether

there was any odor at all, and (2) if there was an odor, whether

it radiated from the truck, from Kingsland’s person, or from

Kingsland’s breath.

Second, we note that the plaintiff has proffered no less

evidence regarding the presence or absence of a cannabis

odor than the defendants have. The plaintiff’s word is merely

countered by the defendants’ testimony. Given the standard

of review at the summary judgment stage, we must accept

Kingsland’s version of the facts as true. See Rowe v. City of

Fort Lauderdale, 279 F.3d 1271, 1279 n.9 (11th Cir. 2002)

(stating that a court must accept the non-movant’s version

of disputed facts as true for purposes of summary judgment).

Therefore, the district court improperly accepted as true the

defendants’ allegation that the truck smelled of cannabis, and

erroneously used this fact to support summary judgment in

the defendants’ favor. Whether an odor of cannabis was

indeed emanating from the truck is a genuine issue of material

fact suitable for consideration by a jury.

Third, the district court incorrectly concluded that

Kingsland has no evidence to contradict the officers’

13a

Appendix A

testimony regarding the truck’s odor. As detailed above,

Kingsland has presented circumstantial evidence to support

her assertion that the truck did not smell of cannabis.

In addition, while laboratory tests have proven that

Kingsland was drug-free at the time of her arrest, the

defendants have proffered no objective evidence that drugs

were present, either on Kingsland’s person or in her truck.

We find it incredible that the officers failed to conduct a

search of Kingsland’s vehicle or summon drug-sniffing dogs

upon detecting the “strong odor” of a narcotic, the mere

possession of which is illegal. See, e.g., United States v. Reeh,

780 F.2d 1541, 1543 n.1 (11th Cir. 1986) (“After a member

of the [Coast Guard] detected the odor of marijuana, a search

ensued during which the marijuana was discovered.”).

Presumably, if cannabis were present, such evidence would

justify a drug possession charge.

Finally, it is unclear why the district court chose to credit

Kingsland’s testimony that she did not smell of cannabis,

and yet chose not to accept her assertions that the truck

likewise did not smell of cannabis.

We cannot allow a probable cause determination to stand

principally on the unsupported statements of interested

officers, when those statements have been challenged and

countered by objective evidence.?

9. We further note that this is a special case wherein the

investigating officers were responding to a call made by a fellow

officer on his police radio, to an accident involving that very officer.

If ever there were a case in which we should recognize the potential

(Cont’d)

l4a

Appendix A

2. The Sufficiency of the Investigation

Next, we consider whether the defendants’ investigation

was constitutionally deficient. Appellant argues that the

district court erroneously concluded as a matter of law that

the officers conducted a constitutionally-sufficient

investigation, thereby removing the inquiry from a jury.

She contends that, objectively, officers should not be

permitted to turn a blind eye to exculpatory information that

is available to them, and instead support their actions on

selected facts they chose to focus upon. We agree.

In Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988),

the Fourth Circuit stated:

[A qualified immunity analysis} must charge

{the officer] with possession of all the information

reasonably discoverable by an officer acting

reasonably under the circumstances....

“{A] police officer may not close his or her eyes

to facts that would help clarify the circumstances

of an arrest.” Be Vier v. Hucal, 806 F.2d 123, 128

(7th Cir. 1986) (officer must be held to knowledge

of reasonably discoverable information bearing

upon probable cause to arrest for child neglect).

(Cont'd)

existence of a motive for fabrication, this is it. Cf Stone v. City of

Chicago, 738 F.2d 896 (7th Cir. 1984) (finding evidence sufficient

to support jury verdict in favor of plaintiffs on conspiracy claim under

42 U.S.C. § 1985 where plaintiffs were involved in collision with

officers).

15a

Appendix A

Sevigny, 846 F.2d at 957 n.5. Because the officer in Sevigny

made an arrest without heeding certain, easily obtained

information, the Fourth Circuit held that the officer failed to

act reasonably. /d. at 957. The court articulated that the officer

“simply did not bother to do what any police officer acting

reasonably in the circumstances would have done to Clarify

the factual situation” and that “there was no exigency which

prevented his doing so.” /d. at 958. Kingsland asserts that

the same situation presents itself here. She maintains that

the district court’s conclusion that the investigation was

sufficient to form a basis for probable cause implies that “‘no

good-faith investigation whatsoever is required to satisfy this

standard.” Initial Brief of Appellant at 22.

The district court focused on the reasonableness of

Kingsland’s arrest given what the officers did investigate,

ignoring the fact that they may have subjectively failed to

investigate both sides of the story. On the other hand,

Kingsland argues (and Sevigny implies) that officers must

investigate objectively and consider all information available

to them at the time.'° While the constitutional reasonableness

of a police investigation does not depend on an officer’s

subjective intent or ulterior motive in conducting the

investigation, see, e.g., Whren v. United States, 517 U.S. 806,

10. We are aware that officers are not required to perform

error-free investigations or independently investigate every proffered

claim of innocence. See Baker v. McCollan, 443 U.S. 137, 145-46,

61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). However, that is a separate

inquiry than the narrow question presented here. Here, Kingsland

alleges that the defendants turned a blind eye to immediately available

exculpatory information, improperly choosing to gather information

that would exonerate Officer De Armas in a biased manner.

l6a

- Appendix A

812-13, 135 L. Ed. 2d 89, 1168S. Ct. 1769 (1996), it does not

follow that the officer may then investigate selectively.

The Fourth Circuit’s approach is on point in this case, and

would serve to deter dishonest officers from fabricating

charges to cover up improper detentions by including only

selective evidence in their reports.

We recognize, however, that a police officer “is not

required to explore and eliminate every theoretically plausible

claim of innocence before making an arrest.” Ricciuti v.

N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).

Nevertheless, an officer may not choose to ignore information

that has been offered to him or her, such as Kingsland’s

assertions that she was injured and that Officer De Armas

ran the red light. Nor may the officer conduct an investigation

in a biased fashion or elect not to obtain easily discoverable

facts, such as whether there was cannabis in the truck or

whether witnesses were available to attest to who was at fault

in the accident.

The lack of corroboration through independent police

work of De Armas’s allegation that Kingsland was at fault in

the accident is noteworthy in our probable cause analysis.

Cf. Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996)

(finding no probable cause where arresting officer relied on

unsubstantiated informant’s tip, failed to take any

independent steps to investigate the tip, and did not have

any evidence which would have corroborated the tip).

Appellees rely on the Seventh Circuit’s decision in

Xing Qian v. Kautz, 168 F.3d 949 (7th Cir. 1999), to support

their assertion that they possessed probable cause for

17a

Appendix A

Kingsland’s arrest. In Qian, the court held that a police officer

had probable cause to make a DUI arrest where (1) the officer

observed that a driver had lost control of his car and crashed,

(2) the driver was slumped over and had difficulty walking,

(3) the inside of the car showed no signs of a violent impact

or that the driver’s body had hit anything during the accident,

(4) the driver denied being injured and showed no physical

signs of injury, (5) the driver’s speech seemed slurred,

and (6) the officer did not know anything about the

driver’s preexisting head injury, which caused his

impairment. Jd. at 952-53. The defendants assert that, as in

Qian, they reasonably relied on their experience in concluding

that Kingsland’s behavior most likely resulted from drug

intoxication. However, Qian is distinguishable in a number

of significant respects. First, Qian crashed his own vehicle

without apparent reason and so was clearly at fault, whereas

the question of fault in Kingsland’s collision is unclear and

disputed. Second, the responding officer in Qian searched

the vehicle for signs of injury and for drugs or alcohol before

making an arrest, while the defendant officers did neither

before arresting Kingsland. Third, the officer in Qian asked

the driver several times if he was okay, and the driver denied

any injury and showed no outward signs of injury. In contrast,

Kingsland alleges that, despite her pronouncements of injury

and her visible signs of injury, the defendants denied her

medical attention and altogether ignored her injuries. Fourth,

Qian was not involved in a collision with a police officer,

thereby assuaging concerns of concealment and impropriety.

Fifth, unlike Kingsland, Qian did not make any allegations

of fabrication. Lastly, the plaintiff’s injuries in Qian were

preexisting and did not appear to be caused by the crash,

18a

Appendix A

whereas it was purportedly evident that Kingsland’s injuries

were incurred during the accident with Officer De Armas.

It is clear that the defendant in Qian made a good faith

effort to discover information that would help clarify the

situation he was presented with. On the contrary, a reasonable

jury could find that the appellees’ investigation was deficient

in that the officers consciously did not make an effort to

uncover reasonably discoverable, material information.

Given that a probable cause determination is based on the

totality of the circumstances, the conditions surrounding and

leading up to an arrestee’s outward manifestations, and not

those manifestations alone, factor into the determination.

Thus, an officer may not exclusively rely on the outward

signs that an individual is exhibiting, without considering

them in the context of their surrounding circumstances.

See Rankin, 133 F.3d at 1435 (stating that probable cause is

examined under the totality of circumstances); cf’ Dorman

v. State, 492 So. 2d 1160, 1162 (Fla. 1986) (finding no

probable cause to administer a blood alcohol test where

officer knew the defendant had been involved in a collision,

observed that the defendant’s eyes were red and watery and

that the defendant had been crying, and did not smell alcohol

on defendant’s breath).

We do not dispute that, in certain situations, an officer

may have probable cause to arrest a person if the person was

dizzy, performed poorly on field sobriety tests, and exhibited

bloodshot eyes and slurred speech. However, the presence

of these characteristics cannot be viewed in the absolute.

For example, if an officer has no reason to believe that the

individual has suffered any trauma to cause these conditions,

19a

Appendix A

then a finding of probable cause for DUI would not be

dubious. See generally Qian, 168 F.3d 949. In contrast, if

the investigating officers are fully aware that the person who

exhibits such characteristics has, just moments before, been

involved in a forceful automobile collision and has been

crying, the presence or absence of probable cause is more

ambiguous. Here, the officers found Kingsland sitting in a

pile of debris from the collision, and Kingsland allegedly

outright told them that she has suffered injuries, including

head trauma. In fact, Officer Valenzuela conceded that her

behavior was consistent with that of an accident victim.

[D.E. 25-1 at 13].

The parties dispute the conduct of the defendants leading

up to Kingsland’s arrest. Under Kingsland’s version of the

events, the defendants did not act in an objectively reasonable

manner under the totality of the circumstances. It was within

the officers’ knowledge that Kingsland was involved in an

accident, was crying, and faulted Officer De Armas. It may

also have been within the officers’ knowledge that there were

no drugs in Kingsland’s truck and that Kingsland had been

injured. Yet, there is evidence here that they chose to either

ignore or misrepresent those facts, thus making the

information on which they based their arrest less than

“reasonably trustworthy.”"!

11. We recall that probable cause requires that “‘the facts and

circumstances within the officer s knowledge, of which he or she has

reasonably trustworthy information, would cause a prudent person

to believe, under the circumstances shown, that the suspect has

committed, is committing, or is about to commit an offense.’” Rankin,

133 F.3d at 1435 (citation omitted) (emphasis added).

20a

Appendix A

Because we find that there are genuine issues of material

fact as to whether the defendants (1) manufactured probable

cause, and (2) failed to conduct a reasonable investigation,

viewing the evidence in the light most favorable to the

plaintiff, we cannot conclude as a matter of law that probable

cause existed to arrest Kingsland.'? Thus, summary judgment

is inappropriate on the merits of the false arrest claim.

B. Malicious Prosecution

Plaintiff Kingsland also asserts a § 1983 claim for

malicious prosecution based on the defendants’ alleged

fabrication of evidence against her, their alleged failure to

consider potentially exculpatory information, and their

alleged refusal to investigate impartially. Kingsland maintains

that, due to the officers’ improper actions, the prosecutor was

presented with false and misleading information. She avers

that criminal prosecution was a natural consequence of the

defendants’ purportedly deceptive account of the accident

and its surrounding circumstances.

12. Nor can we conclude, as a matter of law, that probable cause

existed on the basis of the unchallenged evidence. Even if Kingsland

failed multiple sobriety tests, was dizzy, and had bloodshot eyes and

slurred speech, we cannot say that under the circumstances presented

here, such evidence is reasonably trustworthy or sufficient to legally

establish probable cause for a DUI arrest. As we have mentioned,

Kingsland’s physical condition cannot be viewed in a box.

Aside from the odor of cannabis, all of the officers’ alleged

observations are characteristic of a crying accident victim who claims

injury. Under the requisite “totality of the circumstances” approach,

a reasonable jury could find that the defendants did not have probable

cause to believe that Kingsland was intoxicated.

2la

Appendix A

To establish a federal malicious prosecution claim under

§ 1983, a plaintiff must prove (1) the elements of the common

law tort of malicious prosecution, and (2) a violation of her

Fourth Amendment right to be free from unreasonable

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

cert. denied, 157 L. Ed. 2d 143, 124 S. Ct. 298 (2003).

1. The Common Law Elements of Malicious

Prosecution

Under Florida law, a plaintiff must establish each of

six elements to support a claim of malicious prosecution:

(1) an original judicial proceeding against the present plaintiff

was commenced or continued; (2) the present defendant was

the legal cause of the original proceeding; (3) the termination

of the original proceeding constituted a bona fide termination

of that proceeding in favor of the present plaintiff; (4) there

was an absence of probable cause for the original proceeding;

(5) there was malice on the part of the present defendant;

and (6) the plaintiff suffered damages as a result of the

original proceeding. Durkin v. Davis, 814 So. 2d 1246, 1248

(Fla. Dist. Ct. App. 2002) (citing Burns v. GCC Beverages,

Inc., 502 So. 2d 1217 (Fla. 1986)). Only the fourth and fifth

elements are at issue here: whether there was an absence of

probable cause for the original criminal proceeding, and

whether there was malice on the part of the defendants.

“It is well settled that in an action to recover damages

for malicious prosecution where, as here, the evidence is in

dispute, the existence or non-existence of malice and

want of probable cause are questions of fact for the jury.”

Good Holding Co. v. Boswell, 173 F.2d 395, 399 (Sth Cir.

22a

Appendix A

1949).'> Consequently, because Kingsland challenges the

legitimacy of the relevant evidence, concerns regarding the

fulfillment of the fourth and fifth elements for the common

law tort of malicious prosecution are rightly reserved for

the jury.

2. Fourth Amendment Seizure

Next, Kingsland bears the burden of proving that she

was seized in relation to the prosecution, in violation of her

constitutional rights. In the case of a warrantless arrest, the

judicial proceeding does not begin until the party is arraigned

or indicted. See, e.g., Mejia v. City of New York, 119 F. Supp.

2d 232, 254 (E.D.N.Y. 2000) (“The existence, or lack, of

probable cause is measured as of the time the judicial

proceeding is commenced (e.g., the time of the arraignment),

not the time of the preceding warrantless arrest.”). Thus, a

plaintiff’s arrest cannot serve as the predicate deprivation of

liberty because it occurred prior to the time of arraignment,

and was “not one that arose from malicious prosecution as

opposed to false arrest.” Jd. at 254 n.26. However, in having

to (1) pay a$ 1,000 bond; (2) appear at her arraignment; and

(3) make two trips from New Jersey to Florida to defend

herself in court, pursuant to the authority of the state,

Kingsland was subjected to a “continuing seizure” for Fourth

Amendment purposes.'* See Albright v. Oliver, 510 U.S. 266,

13. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)

(en banc), we adopted as binding precedent all decisions of the former

Fifth Circuit rendered prior to October 12, 1981.

14. Rather than to vitiate a finding of seizure, discrepancies in

the degree or severity of a seizure would presumably be reflected in

the amount of damages awarded.

23a

Appendix A

276-79, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (plurality

opinion) (Ginsburg, J., concurring) (stating that a malicious

prosecution claim could be found under the Fourth

Amendment in that a defendant remains seized for trial so

long as he is obligated to appear in court and answer the

State’s charges); Gallo v. City of Philadelphia, 161 F.3d 217,

222 (3d Cir. 1998) (finding seizure where plaintiff (1) had to

post $10,000 bond; (2) was required to attend all court

hearings, including his trial and arraignment; (3) was

obligated to contact pretrial services weekly; and (4) was

prohibited from traveling outside New Jersey and

Pennsylvania); see also Whiting v. Traylor, 85 F.3d 581, 584

(11th Cir. 1996) (describing malicious prosecution as “the

kind of claim where the plaintiff, as part of the

commencement of a criminal proceeding, has been

unlawfully and forcibly restrained in violation of the Fourth

Amendment and injuries, due to that seizure, follow as the

prosecution goes ahead”’).'*

15. In Whiting, the plaintiff had been released on bond after

being detained for one night, but he had to return to court on twenty

occasions to answer the charges against him. See Whiting, 85 F.3d at

583. We declined to rule on the “continuing seizure” argument in

Whiting, holding that two other possible seizures — Whiting’s arrest

and his surrender after he learned of a newly-issued warrant —

“were seizures that could be the basis of a section 1983 claim.”

Id. at 584-85. We later noted that Whiting’s arrest was pursuant to

the filing of an information and was therefore part of a prosecution.

Id. at 585 n.7. Furthermore, the warrant issued against Whiting was

based on a preexisting charge of obstructing officers, and since it

was an initial step of a criminal prosecution, it likewise fell under

the tort of malicious prosecution rather than false arrest. Jd. at 583,

585. In contrast, Kingsland’s arrest may not constitute a seizure for

(Cont'd)

24a

Appendix A

Consequently, Kingsland may have a cognizable claim

for malicious prosecution, and she has supported her

contentions adequately to survive a motion for summary

judgment on the merits.

C. Qualified Immunity

1. General Principles

If the defendant officers are entitled to qualified

immunity, we must affirm summary judgment in their favor.

“Qualified immunity offers complete protection for

government officials sued in their individual capacities if

their conduct ‘does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346

(11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). Qualified

immunity represents a balance between the need for a remedy

to protect citizens’ rights and the need for government

officials to perform their duties without the fear of constant,

(Cont'd)

purposes of a malicious prosecution claim because it was made before

the commencement of a criminal proceeding. See id. at 585 n.5.

Rather, her being subject to a bond and being required to appear in

court to answer the charges against her throughout the prosecution

constitute a seizure for purposes of malicious prosecution. Such

seizure is virtually no different or less severe than the degree of state

control upon which Whiting is based — namely an arrest and a

surrender. Both here and in Whiting, the plaintiff was required to

submit to the authority of the state pursuant to legal process.

See id. at 585.

25a

Appendix A

baseless litigation. GJR Invs. v. County of Escambia,

132 F.3d 1359, 1366 (11th Cir. 1998).

The essence of qualified immunity is the public official’s

objective reasonableness, regardless of his underlying intent

or motivation. See Harlow, 457 U.S. at 819; Lee v. Ferraro,

284 F.3d 1188, 1195 (11th Cir. 2002). If reasonable public

officials could differ on the lawfulness of the defendants’

actions, the defendants are entitled to immunity. Storck v.

City of Coral Springs, 354 F.3d 1307, 1314 (11th Cir. 2003).

However, “where an official could be expected to know that

certain conduct would violate statutory or constitutional

rights, he should be made to hesitate; and a person who suffers

injury caused by such conduct may have a cause of action.”

Harlow, 457 U.S. at 819. Qualified immunity “gives ample

room for mistaken judgments” but does not protect

“the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 343, 341, 89 L. Ed. 2d

271, 106 S. Ct. 1092 (1986).

To receive qualified immunity, “the public official must

first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts

occurred.” Lee, 284 F.3d at 1194 (citation and internal

quotation marks omitted). Here, it is undisputed that Officers

Valenzuela and Balikes were acting within the course and

scope of their discretionary authority when they arrested

Kingsland. “Once the defendant establishes that he was

acting within his discretionary authority, the burden shifts to

the plaintiff to show that qualified immunity is not

appropriate.” Jd.

26a

Appendix A

The Supreme Court has held that qualified immunity

analysis involves two discrete queries. First, we must decide

whether the facts alleged, assuming they are true, demonstrate

that the defendants violated a constitutional right. See Saucier

v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct.

2151 (2001). Ifthis is answered in the affirmative, we proceed

to the second query, which is to determine whether the right

violated was clearly established. See id. As a result of this

analysis, we conclude that Officers Balikes and Valenzuela

are not entitled to qualified immunity on either of the false

arrest or malicious prosecution claims.

2. False Arrest

“Plainly, an arrest without probable cause violates the

right to be free from an unreasonable search under the Fourth

Amendment.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th

Cir. 2003) (citing Redd v. City of Enterprise, 140 F.3d 1378,

1382 (11th Cir. 1998)). As discussed above, we cannot

conclude as a matter of law that probable cause existed to

arrest Kingsland. Officers who make an arrest without

probable cause are nevertheless entitled to qualified immunity

if there was arguable probable cause for the arrest. Jones v.

Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999). Accordingly,

we must inquire whether “reasonable officers in the same

circumstances and possessing the same knowledge as the

Defendants could have believed that probable cause existed

to arrest Plaintiff. ...” Von Stein v. Brescher, 904 F.2d 572,

579 (11th Cir. 1990). Kingsland must demonstrate that no

reasonable officer could have found probable cause under

the totality of the circumstances. See Storck, 354 F.3d at 1313.

tl tes teh ib isa andi

27a

Appendix A

In granting qualified immunity to the defendants,

tne User wut fund the facta vithiacasatahe analaggis.

to those set forth in Post v. City of Fort Lauderdale, 7 F.3d

1552 (11th Cir. 1993). In Post, we granted qualified immunity

where government agents inspecting a restaurant made an

improper arrest for a building code violation. Jd. at 1558.

The agents in Post claimed that they counted people in excess

of the restaurant’s maximum capacity, but in effect they

erroneously counted employees who were not to be counted.

We held that a “mistaken but reasonable count” was sufficient

for the agents to establish arguable probable cause. Jd.

However, the agents in Post simply made a good faith

mistake, whereas, here, the officers’ conduct creates factual

issues as to their credibility. It was error for the district court

to omit the plaintiff’s allegations of falsification and knowing

lack of probable cause from its analysis. It is readily apparent

that the conduct in Post is characteristic of the type of conduct

that the policies of qualified immunity seek to protect.

In Post, the officials made a reasonable mistake in the

legitimate performance of their duties, and there were no

concerns regarding potential abuse of authority. See id.;

see also Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d

589, 112 S. Ct. 534 (1991) (officers who reasonably but

mistakenly conclude that probable cause existed are entitled

to immunity); Cf Harlow, 457 U.S. at 814 (“In situations of

abuse of office, an action for damages may offer the

only realistic avenue for vindication of constitutional

guarantees.”’).

In contrast, Kingsland contends that the defendants made

deliberately false statements to support her arrest, in violation

of the law. She cites Holmes v. Kucynda, 321 F.3d 1069

28a

Appendix A

(11th Cir. 2003), in which we held that qualified immunity

“does not offer protection if an official knew or reasonably

should have known that the action he took within his sphere

of official responsibility would violate the constitutional

rights of the plaintiff.” Jd. at 1077 (citations and internal

quotations omitted). In Holmes, we reversed the grant of

qualified immunity and summary judgment to police officers

where there existed factual questions regarding whether the

officers filed a recklessly false application for an arrest

warrant. /d. at 1083-84. Based on the facts of the case, the

panel found that the district court could not conclusively

determine that the officer’s affidavit was not made in

“reckless disregard of the truth.” /d. at 1084. Likewise, there

are questions of fact in this case regarding the integrity of

the evidence which is to form the basis of an arguable

probable cause determination.

Viewed in the light most favorable to Kingsland, the facts

support a conclusion that the arrest affidavit included

recklessly or deliberately false statements that are material

to a finding of arguable probable cause. If the defendants

fabricated or unreasonably disregarded certain pieces of

evidence to establish probable cause, as alleged, reasonable —

officers in the same circumstances and possessing the same

knowledge as the defendants could not have believed that

probable cause existed to arrest the plaintiff. Because a jury

question exists as to whether the defendants constructed

evidence upon which to base Kingsland’s arrest, the question

whether arguable probable cause for the arrest existed is also

aptly suited for a jury. Qualified immunity pertaining to the

false arrest claim is therefore improper.

29a

Appendix A

3. Malicious Prosecution

The district court held that the defendants are entitled to

qualified immunity on the malicious Prosecution claim,

stating:

The next issue is whether Ms. Kingsland’s

constitutional right to be free from malicious

prosecution was clearly established as of

November 27, 1995, | agree with Officers

Valenzuela and Balickes [ sic] that such a right was

not recognized by the Eleventh Circuit until it

decided Whiting [in 1996].

Kingsland, No. 99-03393-CV-AJ, slip op. at 14. Alternatively,

the district court stated that even if the constitutional

tort of malicious prosecution had been recognized prior

to Kingsland’s arrest, by Kelly v. Curtis, 21 F.3d 1544

(11th Cir. 1994), the officers were entitled to qualified

immunity because there is no evidence suggesting that they

delayed or withheld exculpatory drug test results or insisted

upon continuing the prosecution in the face of those

results. Kingsland, No. 99-03393-CV-AJ, slip op. at 14-15.

We conclude that the district court’s analysis on this issue is

inaccurate. Specifically, the district court misapplied the test

set forth in Saucier. It failed to clearly delineate the precise

constitutional right allegedly violated — here, the Fourth

Amendment right against unreasonable seizures in

connection with a prosecution. Further, it misapplied the

“clearly established” requirement.’®

16. The explanation that follows will clarify that the officers

did not require fair notice that their conduct constituted a thing called

(Cont'd)

30a

Appendix A

As an initial matter, we must clarify the legal principles

we are obliged to follow in malicious prosecution cases under

§ 1983. In any § 1983 action, including an action for

malicious prosecution, a plaintiff must “identify the specific

constitutional right allegedly infringed.” Albright, 510 U.S.

at 271 (emphasis added). In Whiting, we suggested that

“an independent, classic Fourth Amendment violation is

critical to a section 1983 claim called malicious prosecution.”

Whiting, 85 F.3d at 584 n.4. Thus, in § 1983 claims for

malicious prosecution, the constitutional right at issue is not

the “right to be free from malicious prosecution,” but rather

the underlying Fourth Amendmenr right against unreasonable

seizures. See id. (““We think referring to a federal ‘right’ to

be free from malicious prosecution is actually a description

of the right to be free from an unlawful seizure which is part

of a prosecution.”). Accordingly, we must inquire whether

the facts alleged demonstrate that the defendants violated

Kingsland’s right to be free from an unlawful seizure, and if

so, whether the officers’ specific violation of the right was

clearly established at the time of Kingsland’s arrest.

See Saucier, 533 U.S. at 201; see generally Hope v. Pelzer,

536 U.S. 730, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002).

To the extent that the district court based its judgment

on the fact that the “right to be free from malicious

prosecution” was not clearly established in 1995, that

(Cont'd)

“malicious prosecution,” in violation of § 1983. See Kingsland,

No. 99-03393-CV-AJ, slip op. at 14. Rather, they required fair notice

that their conduct constituted a Fourth Amendmeni violation - one

which rendered them in some way accountable for the continuation

of the prosecution.

,

Biscsnd ant Pt Natt At ated in Asahi si nt al <X'de “

3la

Appendix A

decision was in error. The district court applied the “clearly

established” requirement in an improper context.

As mentioned above, a § 1983 claim for malicious

prosecution is merely a means by which a plaintiff may seek

redress for a violation of his or her clearly established Fourth

Amendment rights. We have held that “labeling... a section

1983 claim as one for a ‘malicious prosecution’ can be a

shorthand way of describing a kind of legitimate section 1983

claim; the kind of claim where the plaintiff . . . has been

unlawfully and forcibly restrained in violation of the Fourth

Amendment and injuries, due to that seizure, follow as the

prosecution goes ahead.” Whiting, 85 F.3d at 584. Our focus

in a malicious prosecution action must remain on the

allegedly unconstitutional conduct of the defendants, not on

the label attached to the proceedings. Kingsland “can avoid

an order of dismissal if [she] based [her] claim — whatever

[she] calls it— on some actual unlawful, forcible, restraint of

[her] person.” /d. Any reference to the need for an

independent “right against malicious prosecution” simply

directs attention away from the fundamental constitutional

inquiry at hand.

While it is true that the courts have not historically

adopted a consistent position on the constitutional source of

a malicious prosecution claim,'’ the fact that such a claim

17. In Strength v. Hubert, 854 F.2d 421 (11th Cir. 1988) (per

curiam), overruled in part by Whiting, 85 F.3d at 584, we relied ona

Fourteenth Amendment substantive due process theory to support

the concept of a “federally guaranteed right to be free from malicious

prosecution.” See id. at 426; see also Whiting, 85 F.3d at 584 n.4.

In 1994, the Supreme Court concluded that the substantive due

(Cont'd)

32a

Appendix A

originates from the Fourth Amendment is not the purpose of

the “clearly established” requirement. Only the constitutional

right violated, upon which the malicious prosecution claim

is based — wherever derived — must be clearly established.

The “right” against malicious prosecution is not itself a

constitutional right. “[A] section 1983 plaintiff must always

base his claim on the violation of a specific federal right.

Where the right said to be violated is the Fourth Amendment,

the plaintiff must establish a concrete violation of that right.”

Id. at 586. For example, in Graham v. Connor, 490 U.S. 386,

104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), the Supreme

Court addressed the constitutional roots of a § 1983 excessive

force claim. The Court stated that, in addressing such a claim,

“analysis begins by identifying the specific constitutional

right allegedly infringed by the challenged application of

force.” Jd. at 394. Thus, the Court declined to recognize any

abstract constitutional right against excessive force, but rather

explained that a separate, specific constitutional right must

be identified on which to base a § 1983 excessive force claim:

Indeed, many courts have seemed to assume,

as did the courts below in this case, that there is a

(Cont'd)

process component of the Fourteenth Amendment did not provide

the constitutional source of a right to be free from malicious

prosecution, but the Court left open the possibility that the Fourth

Amendment is the appropriate source of such a right. See Albright v.

Oliver, $10 U.S. 266, 274-75, 127 L. Ed. 2d 114, 114 S. Ct. 807

(1994) (plurality opinion), 510 U.S. at 274-75; Wood, 323 F.3d at

882 n.14. Finally, in Whiting, we held that the “right” to be free from

malicious prosecution is actually an expression of the Fourth

Amendment right to be free from an unlawful seizure attributable to

a prosecution. See Whiting, 85 F.3d at 584 &n.4.

33a

Appendix A

generic “right” to be free from excessive force,

grounded not in any particular constitutional

provision but rather in “basic principles of

§ 1983 jurisprudence.” We reject this notion that

all excessive force claims brought under § 1983

are governed by a single generic standard.

Id. at 393 (footnotes omitted) (rejecting substantive due

process as a basis for excessive force claims because such

claims implicate a more specific constitutional right — the

Fourth Amendment). Likewise, we find that there is no

generic “right against malicious prosecution.” Instead, the

plaintiff must demonstrate a concrete violation of the Fourth

Amendment that was clearly established in November 1995.

Finally, we note that it would be inconsistent with our

precedent to adopt the defendants’ position that (1) a right to

be free from malicious prosecution must be clearly

established before a plaintiff may maintain a § 1983 claim

to that end, and (2) such a right was not clearly established

until Whiting was decided in 1996.

If we were to so hold, the validity of our precedential

opinion in Kelly would necessarily be undermined. In Kelly,

we held that a detective who obtained a warrant on the basis

of false information was not entitled to qualified immunity

from liability for malicious prosecution. Kelly, 21 F.3d at

1555. In order for the Kelly court to have reached such a

conclusion, it follows that it must have implicitly recognized

the viability of a § 1983 claim for malicious prosecution in

1994, the year Kelly was decided. If a malicious prosecution

claim based on a violation of the Fourth Amendment was

34a

Appendix A

cognizable at least as of 1994, then it is incontrovertible that

either (1) the night to be free from malicious prosecution need

not be clearly established at all, or (2) such nght was indeed

clearly established in 1995, at the time of Kingsland’s alleged

injuries.'® Any other result would run afoul of our judgment

in Kelly. Thus, the defendants’ assertions cannot be upheld.

Having explained that the fundamental right at issue is

Kingsland’s right against unreasonable seizure,'? we now

address whether the defendants violated that right, and

whether the right was clearly established at the time of

Kingsland’s arrest.

For a constitutional right to be clearly established, the

unlawfulness of an official action must be apparent in the

18. Even if we assume that Kingsland’s claim may not stand

unless a “right to be free from malicious prosecution” was clearly

established in 1995, our holding would remain unchanged. It was

readily apparent in 1995 that, in the Eleventh Circuit, officers may

be sued for malicious prosecution under § 1983. See, e.g., Nesmith

v. Alford, 318 F.2d 110, 126 (Sth Cir. 1963) (“The commencement

and prosecution of unfounded criminal prosecution might under

certain circumstances constitute, not only malicious prosecution

under the state law .. . but a violation of [Federal] Civil Rights as

well.”); Strength, 854 F.2d at 425-26; Kelly, 21 F.3d at 1553-55. Given

that, in Kelly, an officer was denied qualified immunity on a § 1983

claim for malicious prosecution based on the Fourth Amendment,

we believe that the defendant officers had sufficient notice that they,

too, could be held liable for the tort of malicious prosecution.

19. More specifically, in a § 1983 malicious prosecution case,

the right at issue is the right to be free from an unreasonable seizure

that is in connection with a prosecution, as distinguished from a

seizure that is part of an arrest or other proceeding.

i a ce ao a

.

35a

Appendix A

light of pre-existing law. Hope, 536 U.S. at 739. The purpose

of requiring that a right be clearly established is “to ensure

that before they are subjected to suit, officers are on notice

that their conduct is unlawful.” Saucier, 533 U.S. at 206;

see also id. We have previously described this principle as

follows:

Because fair and clear notice to government

Officials is the cornerstone of qualified immunity,

courts must diligently analyze the preexisting case

law to determine whether it really did provide

plain notice to every reasonable government

official that the pertinent conduct, in the specific

circumstances, would clearly violate preexisting

federal law.

Marsh v. Butler County, 268 F.3d 1014, 1031 (11th Cir. 2001)

(emphasis added). Thus, the central question that we must

ask is whether the state of the law in 1995 gave the officers

fair warning that their alleged treatment of Kingsland was

unconstitutional. See Hope, 536 U.S. at 741.

Falsifying facts to establish probable cause is patently

unconstitutional and has been so long before Kingsland’s

arrest in 1995. See, e.g., Riley vy, City of Montgomery,

104 F.3d 1247, 1253 (11th Cir. 1997) (“It was well established

in 1989 that fabricating incriminating evidence violated

constitutional rights.”); see also Hinchman vy. Moore,

312 F.3d 198, 205-06 (6th Cir. 2002) (citing Hill v. McIntyre,

884 F.2d 271, 275 (6th Cir. 1989)). So, the defendants were

on notice in 1995 that manufacturing probable cause is

unconstitutional.

36a

Appendix A

As a final point, we address the defendants’ assertion

that the prosecutor and the state judge who set Kingsland’s

bond provided a causal break sufficient to relieve the officers

of liability for malicious prosecution. “In many cases,

arresting officers will not be responsible for the continuation

of the prosecution because the prosecutor (or some other

factor) will break the causal link between defendants’ conduct

and plaintiff’s injury.” Whiting, 85 F.3d at 586 n.10. However,

the subsequent acts of a prosecutor or judge do not break the

chain of causation in a malicious prosecution case where the

prosecutor and judge are acting on allegedly false information

provided by the defendant officers. See Barts v. Joyner, 865

F.2d 1187, 1195 (11th Cir. 1989) (“The intervening acts of

the prosecutor, grand jury, judge and jury. . . each break the

chain of causation unless plaintiff can show that these

intervening acts were the result of deception or undue

pressure by the defendant policemen.”); Cf Eubanks y.

Gerwen, 40 F.3d 1157, 1161 (11th Cir. 1994) (“[Defendants]

did not make the decision as to whether or not to prosecute

Eubanks; nor did they act in such a way as improperly to

influence the decision by the State Attorney in that regard.”’).

Assuming, as we should, that there was no odor of cannabis

in the truck or on Kingsland’s person, the defendants’

constitutional violations were not discrete, and instead

continued through an arrest, an arraignment, and a trial based

on false testimony. If the defendant officers fabricated

testimony regarding the odor of cannabis and further failed

to correct the misinformation provided to the prosecutor, as

the plaintiff alleges, they were on notice that their actions

clearly violated federal law and are therefore entitled to no

immunity.

37a

Appendix A

Qualified immunity is, as the term implies, qualified.

It is not absolute. It contemplates instances in which a public

official’s actions are not protected. See Madison v. Gerstein,

440 F.2d 338, 341 (Sth Cir. 1971) (“As a law enforcement

officer, defendant . . . does not enjoy the cloak of immunity

of the quasi-judicial prosecuting attorney.”’); see also Butz v.

Economou, 438 U.S. 478, 506-07, 57 L. Ed. 2d 895, 98 S.

Ct. 2894 (1978) (“It is not unfair to hold liable the official

who knows or should know he is acting outside the law, and

that insisting on an awareness of clearly established

constitutional limits will not unduly interfere with the

exercise of official judgment.”). Viewed in the light most

favorable to Kingsland, the evidence shows that the arresting

officers in this case behaved in an objectively unreasonable

fashion and were therefore not entitled to qualified immunity.

Given the significance of the disputed issues of fact here,

qualified immunity from suit is effectively unavailable, even

though after a full trial the officers may yet prevail on the

merits.

Accordingly, we reverse the district court’s grant of

summary judgment on both the false arrest and the malicious

prosecution claims, and we remand for proceedings

consistent with this opinion.

REVERSED AND REMANDED.

38a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA, MIAMI DIVISION DATED MAY 29, 2003

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA,

MIAMI DIVISION

CASE NO. 99-3393-CIV-JORDAN

May 29, 2003

MISTY KINGSLAND,

Plaintiff

VS.

CITY OF MIAMI, A Florida Municipal Corporation,

RAMON DE ARMAS, individually,

EMILIO VALENZUELA, individually,

JOSEPH BALIKES, individually,

Defendants.

ORDER ON MOTIONS FOR

SUMMARY JUDGMENT

ADALBERTO JORDAN, District Judge.

Misty Kingsland sues Officers Ramon De Armas,

Emilio Valenzuela, and Joseph Balikes for false arrest under

42 U.S.C. § 1983; Officers Valenzuela and Balikes for

malicious prosecution under 42 U.S.C. § 1983 and under

Eee

39a

Appendix B

Florida’s common law; and the City of Miami for false arrest

and malicious prosecution under 42 U.S.C. § 1983 and for

false arrest and false imprisonment under Florida’s common

law. The defendants removed the case from Florida circuit

court on the basis of Ms. Kingsland’s federal claims. Federal

question jurisdiction exists over Ms. Kingsland’s § 1983

claims pursuant to 28 U.S.C. § 1331 and supplemental

jurisdiction exists over her state law claims pursuant to

28 U.S.C. § 1367.

The City of Miami, Officer Balikes, and Officer De Armas

filed a motion for summary judgment [D.E. 77] on all counts.'

Officer Valenzuela filed a separate motion for summary

judgment [D.E. 83] on all counts relating to him. For the reasons

which follow, the motions for summary judgment [D.E. 77

& 83] are GRANTED as to the federal claims. I decline to

exercise jurisdiction over the supplemental state law claims

pursuant to 28 U.S.C. § 1367(c)(3).

I. THE RULE 56 STANDARD

j Summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

FED R. CIV. P. 56(c). A material fact is one that might affect

the outcome of the case. See Anderson vy. Liberty Lobby, Inc.,

1. Officer Valenzuela originally joined in this motion but then

filed his own motion for summary judgment.

40a

Appendix B

~ 477 USS. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Where the non-moving party fails to prove an essential

element of its case for which it has the burden of proof at

trial, summary judgment is warranted. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct.

2548 (1986); Hutton v. Strickland, 919 F.2d 1531, 1536

(11th Cir. 1990). Mere conclusory allegations or claims

asserting legal conclusions are not sufficient. See Bennett v.

Parker, 898 F.2d 1530, 1534 (11th Cir. 1990). The question

is whether, considering the evidence in the light most

favorable to the non-moving party, there is evidence on

which a jury could reasonably find a verdict in her favor.

See Anderson, 477 U.S. at 251; Hilburn v. Murata Electronics

N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).

In answering this question, a judge must of course “avoid

weighing conflicting evidence or making credibility

determinations.” See Hilburn, 181 F.3d at 1225 (citing

Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919

(11th Cir. 1994)).

Il. RELEVANT FACTS

The facts, as set forth below, are viewed in light most

favorable to Ms. Kingsland. At times, conflicts in the

evidence are noted, but the version used in analyzing the

summary judgment motions is, of course, Ms. Kingsland’s

version.

On November 27, 1995, Ms. Kingsland, while driving a

rental truck with two passengers, was involved in a motor

vehicle accident with Officer De Armas, a City of Miami

police officer, at the intersection of NW 2nd Avenue and NW

——————————~

4la

Appendix B

Ist Street in Miami, Florida. According to Ms. Kingsland,

Officer De Armas, who was off-duty and driving an unmarked

police car, ran a red light and caused the accident.

On the day of the accident, Ms. Kingsland did not drink

alcohol or ingest any drugs. Specifically, she did not smoke

cannabis on that day or any other day. As a result of the

accident, Ms. Kingsland suffered head trauma, was dizzy,

cried, and had blurred vision. Despite the presence of about

20 police officers on the scene, no officer ever asked

Ms. Kingsland for her version of the events in the accident

or spoke to any witnesses on the scene. The officers on the

scene, however, spent a great deal of time talking to Officer

De Armas.

Officer Valenzuela, a City of Miami police officer, was

called to the scene to conduct a driving under the influence

investigation. When Officer Valenzuela arrived, Officer

Balikes, another City of Miami police officer who had already

responded, told him that he noticed an odor of cannabis

coming from Ms. Kingsland’s vehicle and person, and that

he thought that Ms. Kingsland was impaired. In order to

corroborate Officer Balikes’ statements, Officer Valenzuela

went to the truck that Ms. Kingsland had been driving, and

noticed that it had an odor of smoked cannabis.? Officer

Valenzuela also observed that Ms. Kingsland’s eyes were

bloodshot. Ms. Kingsland does not deny that her eyes were

bloodshot, but explains that if her eyes were bloodshot it

was because she had been crying due to the pain and trauma

from the accident.

2. Officer Valenzuela also testified that he smelled a light odor

of cannabis on Ms. Kingsland, though Ms. Kingsland denies any

such odor.

42a

Appendix B

Although he smelled cannabis coming from

Ms. Kingsland’s truck, Officer Valenzuela did not conduct a

search of the vehicle, and he does not know if other officers

did. Officer Valenzuela saw one of Ms. Kingsland’s

passengers being treated by rescue personnel, but did not

talk to him or get close enough to him to see if there was a

cannabis odor. He also does not know whether any drug test

was performed on him and does not recall whether there was

another passenger.

Officer Balikes and a sergeant on the scene asked Officer

Valenzuela — a certified DUI technician with two years’

practical experience — to administer a field sobriety test on

Ms. Kingsland. Ms. Kingsland remembers an officer telling

her that since she had been in an accident with a police officer,

they were going to perform some routine tests. Ms. Kingsland

told Officer Valenzuela, as well as other police officers on

the scene, that she was feeling dizzy and ill from the accident,

and that she wanted to go to the hospital. Officer Valenzuela

did not talk to rescue personnel or anyone else other than

Officer Balikes about Ms. Kingsland’s physical condition.

The first test Officer Valenzuela performed was the

“walk and turn.” it is undisputed that Ms. Kingsland did an

about face instead of doing the turn as she was instructed,

which is usually an indication of impairment. It is also

undisputed that, during the sobriety test, Ms. Kingsland

swayed while balancing on one leg, did not properly place

her finger to her nose, missed the tip of her nose five times,

failed to follow instructions, had eyelid tremors, and failed

to keep her eyes closed during the Rhomberg balancing test.

43a

Appendix B

Based on her performance, Officer Valenzuela came to the

conclusion that Ms. Kingsland failed the sobriety tests.

After the field sobriety test, Ms. Kingsland was told that

she was being transported to the hospital to have some more

tests done and to see a physician. Instead, she was taken into

custody and taken to a DUI testing facility at the south district

substation by either Officer Valenzuela or Officer Balikes.

Before arriving at the substation, Ms. Kingsland had no idea

that she was being accused or suspected of committing any

crime or traffic infraction. But when they pulled into the

parking lot of the station, the officers accused her of running

the red light and causing the accident.

Although Officer Valenzuela says that he always

suspected that Ms. Kingsland was under the influence of

cannabis (and in fact charged her for that offense),

Ms. Kingsland stated that she was charged with driving under

the influence of alcohol upon arriving at the station.

Ms. Kingsland says that the officers told her that they knew

that she was drunk and had been driving, and that they

performed at least two Breathalyzer tests, all of which came

back negative (i.e., with a breath alcohol content of 0.000%).

After she passed the Breathalyzer tests, Ms. Kingsland

continued telling the officers that she did not do drugs and

that she felt very sick. When the Breathalyzer results came

Out as “zero, zero, zero,” Ms. Kingsland says that one officer

who was writing on a form asked another officer what he

should write now. The second officer told the first officer to

write that she had a strong odor of cannabis emitting from

her breath. At that point, the first officer threw away the form

he was writing on and started writing on a new form.

44a

Appendix B

Officer Valenzuela then requested that a certified drug

recognition technician respond to the substation to administer

drug influence evaluation testing. Officer Robert Jenkins

from the Miami Beach Police Department responded and -

performed more tests on Ms. Kingsland, including walking

in a straight line, touching her nose, and closing her eyes

and putting her arms out. Officer Jenkins determined that

Ms. Kingsland’s normal facilities were impaired, and

obtained a urine specimen from her.

Ms. Kingsland was then transported to the Dade County

Jail, and charged with a violation of Fla. Stat. § 316.193

(driving under the influence). She got out of jail the next

day when her father posted a $1,000 bond, and was

subsequently arraigned.

Officer Valenzuela says that he never got the results of

the urine test, but it is undisputed that the test later came

back negative. In other words, cannabis was not detected.

The state prosecutor, Hillah Katz, Esq., did not remember

much about the case, and her file had been destroyed. She

did, however, explain that some DUI cases can continue to

be prosecuted even in the face of negative Breathalyzer tests

and negative drug tests, depending on field sobriety tests,

arrest reports, and witness interviews.

Ms. Kingsland hired counsel to represent her and

incurred attorneys’ fees, though she cannot recall the amount

of those fees. On February 5, 1996, the prosecutor provided

the negative drug test results to Ms. Kingsland’s counsel.

Two court appearances in the early part of 1996 resulted in

continuances, and Ms. incurred additional expenses in

45a

Appendix B

coming to Miami for the hearings. In May of 1996, Ms.

Kingsland filed a motion to dismiss the charges against her

on the ground that all of the tests performed (including a test

she had performed in New Jersey upon her return) had come

back negative. The charges against Ms. Kingsland were

dismissed on June 6, 1996.

Ill. FALSE ARREST UNDER 42 U.S.C. § 1983

(COUNT II)

In Count II of the complaint, brought under 42 U.S.C.

§ 1983, Ms. Kingsland charges Officer De Armas, Officer

Balikes, and Officer Valenzuela with false arrest in

violation of the Fourth Amendment. Officers Valenzuela and

Balikes contend that there was probable cause to detain

Ms. Kingsland and that they are entitled to qualified

immunity. Officer De Armas argues that he did not arrest

Ms. Kingsland and did not assist in her arrest and, therefore,

cannot be held liable for her arrest.

A. PROBABLE CAUSE

Probable cause is an absolute bar to a § 1983 false

arrest claim. Marx v. Gumbinner, 905 F.2d 1503, 1505-06

(11th Cir. 1990). “Probable cause to arrest exists where the

facts and circumstances within the officers’ knowledge and

of which they had reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable

caution in the belief that an offense has been or is being

committed.” /d. (citing Brinegar v. United States, 338 U.S.

160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)) (internal

quotations and brackets omitted). Probable cause exists

46a

Appendix B

-

regardless of the outcome of the underlying arrest. See, e.g.,

id. (“That a defendant is subsequently acquitted or charges

are dropped against the defendant is of no consequence in

determining the validity of the arrest itself.’’).

Ms. Kingsland maintains that her constitutional rights

were violated by the officers, who allegedly acted in concert

and conspired against her to cover up the fact that Officer

De Armas ran the red light. She claims that Officer Valenzuela

and Officer Balikes knew that she did not run the red light

but purposefully accused and arrested her to protect their

fellow officer.

“For probable cause to exist, ... an arrest must be

objectively reasonable based on the totality of the

circumstances.” Wood v. Kesler, 323 F.3d 872, 2003 WL

722756, *3 (11th Cir. 2003) (internal quotation marks and

citation omitted). Unfortunately for Ms. Kingsland, the

undisputed facts in this case demonstrate that there was

probable cause for her arrest. First, Ms. Kingsland had been

involved in an accident, she had bloodshot eyes, and she was

dizzy. Second, Officers Valenzuela and Balikes detected an

odor of cannabis emanating from her truck. Ms. Kingsland

denied that she smelled of cannabis, but she has no evidence

to contradict the testimony of Officers Valenzuela and Balikes

about the truck’s odor. These facts provided reasonable

suspicion for a field sobriety test. See State v. Taylor, 648

So. 2d 701, 703 (Fla. 1995) (holding that a field sobriety test

did not violate the defendant’s Fourth Amendment rights

where the defendant was staggering, had slurred speech,

bloodshot eyes, and a strong odor of alcohol). Third,

Ms. Kingsland failed the field sobriety test administered by

47a

Appendix B

Officer Valenzuela, and exhibited eyelid tremors. Although

Ms. Kingsland explains that her appearance, behavior, and

performance were caused by the accident — and not by any

impairment — and that she informed the officers examining

her of her condition, she does not deny that her responses to

the tests were objectively deficient. All of these facts, when

viewed objectively by an officer, conform with intoxication

or impairment and permitted the arrest for driving under the

influence.

I have considered Ms. Kingsland’s claim that the officers

were engaged in a conspiracy to cover up what Officer

De Armas did and arrested Ms. Kingsland in order to shift

the blame to her, see generally Whitehurst v. Wright, 592

F.2d 834, 840-41 (Sth Cir. 1979) (discussing § 1983

conspiracy theory in context of deceased victim), but this

does not change the result. In order fora § 1983 conspiracy

claim to stand, there must be an underlying constitutional

violation. See Dixon v. City of Lawton, 898 F.2d 1443, 1449

& n.6 (10th Cir. 1990). Here there was no such violation

because Ms. Kingsland’s arrest was supported by probable

cause. More importantly, the Supreme Court has repeatedly

held that the constitutional reasonableness of police conduct

does not depend cn the officer’s subjective intent or

subjective beliefs. Indeed, the pretextual nature of an officer’s

conduct is irrelevant. See, e.g., Whren v. United States,

517 U.S. 806, 812-13, 135 L. Ed. 2d 89, 116 S. Ct. 1769

(1996); Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed.

2d 523, 107 S. Ct. 3034 (1987). The question, instead, is

whether it was “objectively legally reasonable to conclude

that [Ms. Kingsland’s arrest] was supported by probable

cause.” Creighton, 483 U.S. at 641. The answer to that

48a

Appendix B

question is yes, as explained above. See, e.g., Marks v. Clarke,

102 F.3d 1012, 1033 (9th Cir. 1996) (reversing denial of

qualified immunity because, after Whren, pretext is legally

irrelevant if probable cause exists).

B. QUALIFIED IMMUNITY

Assuming that there is a material issue of fact about

whether probable cause for the arrest actually existed,

I conclude that the officers are entitled to qualified immunity.

At the very least, there was arguable probable cause for

Ms. Kingsland’s arrest.

For qualified immunity purposes, actual probable cause

does not need to exist. See Post v. City of Ft. Lauderdale,

7 F.3d 1552, 1558 (11th Cir. 1993) (“The officer is entitled

to qualified immunity if a reasonable officer could have

believed that probable cause existed.”). All that is required

for qualified immunity to be applicable to an arresting officer

is that the officer have “arguable” probable cause to arrest.

See. e.g., Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002)

(citing Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir.

2001)). Arguable probable cause exists “where reasonable

officers in the same circumstances and possessing the same

knowledge as the [arresting officer] could have believed that

probable cause existed to arrest.” See Scarbrough, 245 F.3d

at 1302. In determining whether arguable probable cause

exists, I must apply “an objective standard, asking ‘whether

the officer’s actions are objectively reasonable... . regardless

of the officer’s underlying intent or motivation.”’ Lee, 284

F.3d at 1195 (citations omitted).

49a

Appendix B

Police officers sued in their individual capacities

are entitled to immunity from liability so long as their

conduct does not violate “clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Lee, 284 F.3d at 1193-94 (citing Thomas v. Roberts,

261 F.3d 1160, 1170 (11th Cir. 2001)). Qualified immunity

is very much the rule, rather than the exception, when

officers are sued for damages in their individual capacities.

See Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149

(11th Cir. 1994) (citing Harlow vy. Fitzgerald, 457 U.S. 800,

818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Barts v. Joyner,

865 F.2d 1187, 1190 (11th Cir. 1989); Dartland vy.

Metropolitan Dade County, 866 F.2d 1321, 1323-24 (11th

Cir. 1989)).

In order to receive qualified immunity, the officer must

first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts

occurred. See Lee, 284 F.3d at 1194 (citing Courson v.

McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). An officer

may demonstrate that an act was within his discretionary

authority merely by showing that the acts were undertaken

pursuant to the performance of his duties, and were within

the scope of his authority. See Jordan v. Doe, 38 F.3d 1559,

1566 (11th Cir. 1994). Once the officer establishes that he

was acting within his discretionary capacity, the burden shifts

to the plaintiff to show that qualified immunity is not

appropriate. See id.

In evaluating a claim of qualified immunity, the Supreme

Court has set forth a two-part test. The first question is

whether the facts, taken in the light most favorable to the

50a

Appendix B

plaintiff, show that the officer’s conduct violated a

constitutional right. The second is whether the right said to

have been violated was “clearly established.” See Gonzalez

v. Reno, 325 F.3d 1228, 2003 WL 1481583, *4 (11th Cir.

2003); Lee, 284 F.3d at 1194 (citing Saucier v. Katz, 533

U.S. 194, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001)). “Clearly

established,” in the qualified immunity context, generally

means that the officer was given fair warning and notice that

his conduct was unlawful. See Hope v. Pelzer, 536 U.S. 730,

122 S. Ct. 2508, 2515, 153 L. Ed. 2d 666 (2002); Willingham

v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003).

Unless an act is obviously wrong in light of pre-existing law,

the officer has immunity from suit. See Lassiter, 28 F.3d at

1149 (citing Malley v. Briggs, 475 U.S. 335, 341-43,

89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)).

The facts in Post are legally analogous to those here.

The underlying arrest in Post was for a violation of a

restaurant’s maximum capacity level. See Post, 7 F.3d at

1555. The arrestee brought a § 1983 false arrest claim.

The government agents in Post — a police officer, a fire

inspector, and a building inspector — moved for summary

judgment based on qualified immunity. The agents claimed

that they counted more than 22 people, the maximum capacity

of the restaurant, on three occasions. The arrestee maintained

that there was just under 22 people on each occasion.

The record, however, showed that the restaurant had

employees who were not to be counted and that the restaurant

had people coming and going constantly. The Eleventh

Sla

Appendix B

Circuit held that the defendants were entitled to qualified

immunity: -

Here, the issue is not whether the code team’s head

counts were, in fact, correct; on summary

judgment, we assume that plaintiffs’ evidence

about the number of customers is true. The issue

material to qualified immunity is whether a

reasonable officer in [the defendant’s] place — that

is, in these circumstances — could have believed

that more than 22 customers were present during

a code team visit.

Id.

Even though Ms. Kingsland did not smell of cannabis —

I credit her version of events instead of Officer Valenzuela’s

and Officer Balikes’ — she has no evidence to contradict the

testimony of Officers Valenzuela and Balikes that there was

an odor of cannabis from the truck. It is also true — viewing

the facts in the light most favorable to Ms. Kingsland — that

Ms. Kingsland told the officers about her injuries and

her condition. The officers, however, were not required to

credit her story, and were entitled to place weight on

Ms. Kingsland’s appearance and inability to pass the field

sobriety test. It may be that the officers did not do as thorough

a job of investigating as one would have liked, but that is a

far cry from holding them constitutionally liable. The officers

had, at the very least, arguable probable cause for the arrest.

Summary judgment is granted in favor of Officers

Valenzuela, Balikes, and De Armas on Count 11.

52a

Appendix B

IV. MALICIOUS PROSECUTION UNDER 42

U.S.C. § 1983 (COUNT III)

Ms Kingsland also asserts-a claim for malicious

prosecution under § 1983 against Officers Valenzuela and

Balikes. In order to establish the constitutional tort of

malicious prosecution under § 1983, Ms. Kingsland must

show (1) that all of the elements of the common law tort of

malicious prosecution (under the applicable state law) have

been met and (2) that the malicious prosecution deprived

her of the constitutional right to be free from unlawful

seizure. See, e.g., Wood, 323 F.3d 872, 2003 WL 722756, at

*6; Mejia v. City of New York, 119 F. Supp. 2d 232, 253-54

(E.D.N.Y. 2000). See also Uboh v. Reno, 141 F.3d 1000,

1002-03 (11th Cir. 1998); Whiting v. Traylor, 85 F.3d 581,

584 n.4 (11th Cir. 1996). I turn first to the common law

elements of malicious prosecution.

A. THE COMMON LAW ELEMENTS OF

MALICIOUS PROSECUTION

Under Florida law, a plaintiff must establish the

following elements in a malicious prosecution case:

(1) an original criminal proceeding against the present

plaintiff was commenced or continued; (2) the present

defendant was the legal cause of the original proceeding;

(3) the termination of the original proceeding constituted a

bona fide termination of that proceeding in favor of the

present plaintiff; (4) an absence of probable cause for the

original proceeding; (5) malice on the part of the defendant;

and (6) damage as a result of the original proceeding.

See Alamo Rent-A-Car. Inc. v. Mancusi, 632 So. 2d 1352,

53a

Appendix B

1355 (Fla. 1994) (citing Burns v. GCC Beverages, Inc.,

502 So. 2d 1217 (Fla. 1986); Adams v. Whitfield, 290 So. 2d

49 (Fla. 1974)). “The failure of a plaintiff to establish

any one of these six elements is fatal to a claim of malicious

prosecution.” Alamo Rent-A-Car, 632 So. 2d at 1355.

Ms. Kingsland bears the burden of proving each of the six

elements by a preponderance of competent evidence.

See Ware v. United States, 971 F. Supp. 1442, 1461 (M.D.

Fla. 1997) (citing Phelan v. City of Coral Gables, 415 So.

2d 1292, 1294 (Fla. Dist. Ct. App. 1982)).

The first, second, third, and sixth elements are easily

satisfied. Officer Valenzuela and Officer Balikes conducted

the investigation into Ms. Kingsland’s sobriety in association

with the accident, and a criminal proceeding was commenced

against Ms. Kingsland based upon their findings. See. e.g.,

Ware. 971 F. Supp. at 1461-62 (finding that an FBI agent

who coordinated a sting operation and the subsequent

investigation was the legal cause of the criminal proceeding).

These proceedings continued until the charges were

ultimately dismissed, and the dismissal of the charges

constitutes a bona fide termination of the proceeding in favor

of Ms. Kingsland. Finally. Ms. Kingsland suffered damages

as a result of the charges — she incurred attorneys’ fees and

expenses before the charges were dismissed. See id. at 1470.

The fourth element — absence of probable cause for the

proceeding — is contested in this case. Officers Valenzuela

and Balikes repeat the same arguments in support of probable

cause for malicious prosecution as they assert for a § 1983

claim. In other words, they argue that the malicious

prosecution claim cannot stand because there was probable

54a

Appendix B

cause for an arrest. The matter, however, is not so simple,

because probable cause for an arrest does not always preclude

a malicious prosecution claim. In other words, the probable

cause justifying an arrest is not necessarily the same thing as

probable cause in the malicious prosecution context.

To establish a lack of probable cause under Florida law,

the plaintiff must introduce evidence sufficient to show that

the initial proceeding was commenced “without a reasonable

ground of suspicion, supported by the circumstances

sufficiently strong in themselves to warrant a cautious man

in the belief that the person accused is guilty of the offense

charged.” Burns, 502 So.2d at 1219. At the same time, where

information is readily observable or the plaintiff points out

exculpatory information and further investigation is not done,

liability may attach. See Harris v. Lewis State Bank, 482

So. 2d 1378, 1381-1382 ( Fla. lst DCA 1986). Furthermore,

Ca] lack of probable cause may be established by proof that

a criminal proceeding was instituted on facts that could as

well be explained innocently.” Jd.* In this respect — and

probably because § 1983 malicious prosecution law looks to

state law — the probable cause element for a constitutional

malicious prosecution claim differs (legally and temporally)

from the probable cause defense to a claim of false arrest

under § 1983.

3. As the Second Circuit has explained, probable cause existing

at the time of arrest can dissipate or be nullified by intervening or

subsequent facts establishing the person’s innocence. See Kinzer v.

Jackson, 316 F.3d 139, 143-44 (2d Cir. 2003) (borrowing from

New York law to analyze malicious prosecution claim under § 1983).

Accord Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir.

1996).

55a

Appendix B

Ms. Kingsland maintains that Officers Valenzuela and

Balikes lacked probable cause to detain or arrest her.

In furtherance of this claim, Ms. Kingsland testified that it

was Officer De Armas who ran the red light, not her, and she

offers evidence that there were witnesses to the crash that

Officer Valenzuela and Officer Balikes failed to interview.

She also testified that she was injured in the accident, that

she was never properly examined after the accident, and that

she informed the officers of her injury and of the confusion

that arose on account of that injury. In conducting the field

sobriety test, Officer Valenzuela did not take into account

Ms. Kingsland’s condition. Moreover, Ms. Kingsland avers

that since she did not smoke cannabis, she could not smell

of that drug. The record evidence also shows that at no time

did the officers search the truck or Ms. Kingsland’s person

for cannabis. Furthermore, Ms. Kingsland asserts that she

saw officers change and destroy an “official document” when

her Breathalyzer tests came back negative. Finally, the

criminal proceeding was commenced and continued even

though Ms. Kingsland passed two Breathalyzer tests and a

drug test.

Although Officers Valenzuela and Balikes had adequate

probable cause (or at least arguable probable cause) to arrest

Ms. Kingsland,, the evidence introduced by Ms. Kingsland

creates questions as to the credibility of the reasonable

suspicion the officers had at the point of pursuing the

prosecution of that arrest. “When the facts relied on to show

probable cause are in dispute, their existence is a question

of fact for the determination of the jury. .. .” Alamo Rent-A-

Car, 632 So. 2d at 1357. The evidence put forth by.

Ms. Kingsland creates enough of a dispute over the lack of

56a

Appendix B

probable cause — at the time of the arrest and at through the

continuation of the criminal proceeding — for malicious

prosecution that the question is rightly reserved for the jury.

The fifth element to malicious prosecution, malice,

is also at issue. “In an action for malicious prosecution it is

not necessary for a plaintiff to prove actual malice; legal

malice is sufficient and may be inferred from, among other

things, a lack of probable cause, gross negligence, or great

indifference to persons, property, or the rights of others.”

Alamo Rent-A-Car, 632 So. 2d at 1357. Because there is an

issue as to whether there was probable cause and because

Ms. Kingsland alleges that the officers acted in concert

against her, legal malice may be inferred.

In sum, Ms. Kingsland has introduced sufficient evidence

to, at a minimum, raise a question of fact for the jury as to

all six elements for the common law tort of malicious

prosecution under Florida law. The next issue is whether Ms.

Kingsland was seized, for purposes of the constitutional tort

of malicious prosecution, in violation of her Fourth

Amendment rights.

B. CONSTITUTIONAL SEIZURE

Even though Officers Valenzuela and Balikes do not

challenge Ms. Kingsland’s assertion that she was seized in

violation of her constitutional rights — they argue only that

there was probable cause for the arrest —- Ms. Kingsland,

nonetheless, bears the burden of proving that she was seized

in relation to the prosecution. In case of a warrantless arrest,

the judicial proceeding does not begin until the party is

S7a

Appendix B

arraigned or indicted. See, e.g., Mejia, 119 F. Supp. 2d at

254 (“This is because a warrantless arrest is an extrajudicial

proceeding. In such cases, the judicial proceeding is not

deemed to have been commenced until the plaintiffs

arraignment or an indictment by a grand jury.”) (internal

citations omitted). See also Whiting, 85 F.3d at 584-85

(analyzing when someone is seized). The seizure, or

detention, of the party in conjunction with the arrest does

not count with respect to a charge of malicious prosecution,

as the probable cause requirements for both are measured at

different times. See Mejia, 119 F. Supp. 2d at 254 (“Finally,

the existence, or lack, of probable cause is measured at a

different point in time in a malicious prosecution action than

a false arrest action, where the prosecution follows a

warrantless arrest.”’). I have already ruled that the officers

are entitled, at the very least, to qualified immunity

concerning the initial detention and arrest of Ms. Kingsland.

At the same time, Ms. Kingsland may have a valid claim

that she was seized in support of her malicious prosecution

claim. The record is not clear as to when Ms. Kingsland was

arraigned. Nonetheless, it is clear that she made two trips

back to Miami in order to defend herself against the

prosecution of her case. In having to return to court to defend

herself, Ms. Kingsland was subjected to a “continuing

seizure” for Fourth Amendment purposes. See Albright, 510

U.S. 266, 276-79, 127 L. Ed. 2d 114, 114 S. Ct. 807

(Ginsburg, J., concurring) (discussing continuing seizure in

a post bond situation). See also Whiting, 85 F.3d at 584

(discussing the continuing seizure theory, but choosing not

to rule on it). But see Reed v. City of Chicago, 77 F.3d 1049,

1052 n.3 (7th Cir. 1996) (rejecting the continuing seizure

theory). In light of the fact that Officers Valenzuela and

58a

Appendix B

Balikes have not challenged Ms. Kingsland’s claim that she

was seized in relation to the prosecution of her case, | find

that Ms. Kingsland has supported her seizure theory

adequately to survive a motion for summary judgment.

C. QUALIFIED IMMUNITY

As with other constitutional claims under § 1983,

Officers Valenzuela and Balikes may invoke qualified :

immunity with respect to the constitutional malicious”

prosecution claim. See, e.g., Kelly v. Curtis, 21 F.3d 1544,

1553 (llth Cir. 1994). The key questions here are whether

the probable cause which existed to arrest Ms. Kingsland

dissipated or was nullified by subsequent events and, if so,

whether Officers Valenzuela and Balikes are constitutionally

responsible for continuing (or helping to continue) the

prosecution against Ms. Kingsland in the face of such events.

If Ms. Kingsland’s drug test had come back negative prior to

the commencement of the judicial proceedings and the

officers played a role in the delay of those results, then the

officers might not be entitled to qualified immunity for

malicious prosecution.

It is undisputed that Officers Valenzuela and Balikes were

acting within the scope of their discretionary authority.

Ms. Kingsland, therefore, has the burden of showing that

qualified immunity is not appropriate. See. e.g., Gonzalez,

325 F.3d 1228, 2003 WL 1481583, at *4. The next issue is

whether Ms. Kingsland’s constitutional right to be free from

malicious prosecution was clearly established as of

November 27, 1995. I agree with Officers Valenzuela and

Balickes that such a right was not recognized by the Eleventh

59a

Appendix B

Circuit until it decided Whiting, 85 F.3d at 584 & n.4, on

June 19, 1996. Because Whiting came down about two weeks

after the charges against Ms. Kingsland were dismissed,

Officers Valemzuela and Balikes could not have violated

clearly established law.*

For purposes of this order, however, I will alternatively

assume that Kelly v. Curtis, 21 F.3d 1544, 1553-55 (11th Cir.

1994), generally recognized the constitutional tort of

malicious prosecution under § 1983, and proceed to the

remainder of the qualified immunity analysis. Ke//y held that

certain officers in question were entitled to qualified

immunity on such a claim because reasonable officers might

not have known that they were acting recklessly in asserting,

without investigation, that no lab report had been received.

Understanding that the level of specificity needed to have

clearly established law varies with each situation, see Vinyard

v. Wilson, 311 F.3d 1340, 1346-54 (11th Cir. 2003)

(discussing different scenarios), I do not believe that, under

the facts here, Officers Valenzuela and Balikes had fair notice

that their conduct constituted malicious prosecution in

violation of § 1983. Ms. Kingsland has not met her burden,

because the record does not contain any information allowing

a jury to find that Officers Valenzuela and Balikes delayed

or withheld the test results from the prosecutor or insisted

on continuing the prosecution in the face of those results.

First, neither party has identified when Ms. Kingsland was

4. Contrary to Ms. Kingsland’s suggestion, the fact that Whiting

recognized the constitutional tort of malicious prosecution does not

mean that a constitutional right previously existed. Whiting involved

a run-of-the-mill dismissal under Rule 12(b)(6), and did not involve

a claim of qualified immunity.

60a

Appendix B

arraigned. Though it likely happened in late 1995, it was

certainly before the negative drug test came back from the

laboratory. Second, although the drug test results were not

completed until two months after the accident and after

Ms. Kingsland’s first court date — the results are dated January

30, 1996, and February 27, 1996 — there is no evidence that

the results were kept from the prosecutor by Officers

Valenzuela and Balikes. Indeed, the only evidence in the

record on this critical issue is Officer Valenzuela’s testimony

that drug test results are sent to the officer who conducted

the test — here Officer Jenkins of the Miami Beach Police

Department — and to the prosecutor. In light of this testimony,

it would be completely speculative to infer that Officers

Valenzuela and Balikes were responsible for any delay or

suppression (or that they had any duty to turn the test over

when they got them given their understanding that the

prosecutor received a copy). See Kelly, 21 F.3d at 1552

(holding that officer has not duty to inform defense counsel

or the court of exculpatory evidence where he “has reason to

believe that the prosecutor is aware of that evidence”). Third,

Ms. Kingsland’s counsel received the test results in early

February of 1996 from the prosecutor, which is consistent

with the time line testified to by Officer Valenzuela. Fourth,

the record is devoid of any information as to the reason why

the charges against Ms. Kingsland were dropped. Fifth, there

is no testimony or documentation even suggesting that

Officers Valenzuela and Balikes asked the prosecutor to press

ahead with the case against Ms. Kingsland in the face of the

negative drug test. In fact, there is no evidence whatsoever

that the prosecutor even spoke to Officers Valenzuela and/or

Balikes. See Harris, 482 So.2d 1378.

6la

Appendix B

In sum, Officers Valenzuela Balikes are entitled to

summary judgment on Count III under the doctrine of

qualified immunity.

Vv. THE FEDERAL CLAIMS AGAINST THE CITY

(COUNT V)

In Count V, Ms. Kingsland alleges that the City of Miami

is responsible under § 1983 for her false arrest and malicious

prosecution. In Monell v. Department of Social Services, 436

U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the

Supreme Court held that a plaintiff can sue a municipality

under § 1983. The Court limited this right, however, to

constitutional violations that were caused by an official

custom, policy, or practice of the municipality. See id. at 691.

“In other words, a municipality cannot be held liable under

§ 1983 on a respondeat superior theory.” Jd. Moreover, “the

official policy or custom must be the moving force of the

constitutional violation in order to establish liability of a

government body under § 1983.” Cuesta v. School Board of

Miami-Dade County, 285 F.3d 962, 967 (11th Cir. 2002).

Ms. Kingsland has not introduced any evidence of a

policy, custom, or practice by the City that can be identified

as the moving force behind her arrest or prosecution. In fact,

Ms. Kingsland herself alleges that the moving force behind

her arrest was the officers’ desire to protect a fellow officer.

Ms. Kingsland, however, offers no official policy, custom,

or practice that provides for or allows this type of conduct.

Though she alleges in her amended complaint that the City

has a policy of allowing DUI arrests prior to establishing

probable cause and that this “encourages officers to fabricate

62a

Appendix B

charges to cover-up improper detentions under Florida

law. ...,” and that the City, “through its policymakers, fails

to effectively investigate traffic accidents involving its

officers, thus causing its officers to know that they can cover-

up their culpability by fabricating evidence and failing to

preserve other evidence,” she has presented no evidence of

such policies.

The only evidence Ms. Kingsland cites to is the

incomplete nature of the accident investigation. The most

telling sign of the deficiency in Ms. Kingsland’s municipal

liability claim is the statement in the opposition memorandum

that the City should have to present evidence at trial that the

investigation in this case deviated from the City’s policies.

It is Ms. Kingsland, however, who bears the burden of

producing sufficient evidence to get to a jury. Even if I

accepted Ms. Kingsland’s allegation that the officers

conspired against her in this case, that would be plainly

insufficient to create a jury issue under Monell and its

progeny. See, e.g., Holmes v. Kucynda, 321 F.3d 1069, 1078

(11th Cir. 2003).

Accordingly, the City of Miami’s motion for summary

judgment on Count V is granted.

VI. CONCLUSION

The motions for summary judgment [D.E. 77, 83] of

the defendants are GRANTED as to Counts II, III, and V

(the § 1983 claims). I decline to exercise supplemental

jurisdiction over the state law claims under 28 U.S.C.

§ 1367(c)(3). Ms. Kingsland is free to return to state court —

63a

Appendix B

where she originally filed suit - to continue litigating those

claims there.

A partial final judgment will be issued by separate order.

This case is CLOSED.

DONE and ORDERED in chambers in Miami, Florida,

this 29th day of May, 2003.

Adalberto Jordan

United States District Judge

CLOSED CIVIL CASE

PARTIAL FINAL JUDGMENT

Pursuant to Rules 54 and 58 of the Federal Rules of Civil

Procedure, final judgment is entered against Misty Kingsland

and in favor of the defendants - Ramon De Armas, Emilio

Valenzuela, Joseph Balikes, and the City of Miami — on

Counts II, III, and V of the amended complaint.

Ms. Kingsland shall take nothing with respect to the federal

claims in Counts II, III, and V. Ms. Kingsland is free to

continue litigating Counts I and IV in state court, as

supplemental jurisdiction will not be exercised under

28 U.S.C. § 1367(c)(3).

64a

Appendix B

This case is CLOSED.

DONE is ORDERED in chambers in Miami, Florida,

this 29th day of May, 2003.

Adalberto Jordan

United States District Judge