284 F.3d 1188 (11th Cir. 2002), 00-16054, Lee v Ferraro

Docket Nº:00-16054
Citation:284 F.3d 1188
Party Name:KIM D. LEE, f.k.a. Kim D. White, Plaintiff-Appellee, v. LUIS FERRARO, individually and in his official capacity as a City of Miami Police officer, Defendant-Appellant.
Case Date:March 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1188

284 F.3d 1188 (11th Cir. 2002)

KIM D. LEE, f.k.a. Kim D. White, Plaintiff-Appellee,


LUIS FERRARO, individually and in his official capacity as a City of Miami Police officer, Defendant-Appellant.

No. 00-16054

United States Court of Appeals, Eleventh Circuit

March 5, 2002

Page 1189

[Copyrighted Material Omitted]

Page 1190

Appeal from the United States District Court for the Southern District of Florida

Before BARKETT and MARCUS , Circuit Judges, and MILLS1, District Judge.

MARCUS, Circuit Judge:

In this civil rights case, Defendant Luis Ferraro, a police officer in the City of Miami, appeals the district court's denial of his motion for summary judgment on the basis of qualified immunity. Plaintiff Kim D. Lee claims, inter alia, that Ferraro violated her rights under the Fourth Amendment of the United States Constitution when he arrested her for improperly honking her car horn on a busy city street during rush hour and when he applied excessive force in carrying out the arrest. After thorough review, we conclude that Ferraro is entitled to qualified immunity on Lee's wrongful arrest claim, but hold that the police officer is plainly not entitled to qualified immunity on the excessive force claim.


In conducting de novo review of the district court's disposition of a summary judgment motion based on qualified immunity, we are required to resolve all issues of material fact in favor of the plaintiff. See, e.g., Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir. 1998). "We then answer the legal question of whether the defendant[] [is] entitled to qualified immunity under that version of the facts." Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th Cir. 1998). Indeed, we approach the facts from the plaintiff's perspective because "[t]he issues appealed here concern 'not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of clearly established law.'" Sheth, 145 F.3d at 1236 (quoting Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 2155, 132 L.Ed. 2d 238 (1995)). As this Court has repeatedly stressed, the "facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case." Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000). Nevertheless, for summary judgment purposes, our analysis must begin with a description of the facts in the light most favorable to the plaintiff. See Skrtich v. Thornton, ___ F.3d ___, (11th Cir. Jan. 29, 2002).

At approximately 6:00 p.m. on July 9, 1997, Lee, a twenty-nine year old African-American female, approximately 5'7" tall and 160 pounds, was driving home on Biscayne Boulevard from her job as a paralegal in the City of Miami, a municipality within Miami-Dade County. While proceeding northbound in moderate to heavy traffic on a four-lane thoroughfare, Lee encountered a car stopped in her lane of travel, two or three car-lengths before the next traffic light. Officer Ferraro's police car was stopped in a travel lane next to the car on the passenger's side. Because the car in front of her did not move despite the light being green, Lee honked her horn for the car "to go with the flow of traffic," and the car proceeded. At this time, Ferraro yelled at her from his car, asking if she was with the passengers in the car that had been stopped. Lee shook her head, said no, and drove on. Ferraro then pulled his police cruiser behind her car and Page 1191

turned on his siren lights, so Lee pulled her car to the left side of the northbound lanes. She explained that she went to the left side because she was already in the left lane and could not "dart across" four lanes of traffic. After Lee had stopped her car, Ferraro motioned for her to pull her car into the parking lot of a gas station to her left, across the southbound lanes of traffic. Lee complied, and Ferraro parked directly behind her.

Ferraro, a 6'3", 190 pound male, came to the driver's side window and asked "what the hell was wrong" with her and "who the hell [she] thought [she] was," and, before Lee responded, asked for her driver's license. Lee started to reach down to get the bag containing her license, which was on the floor on the passenger's side of the front seat, asking Ferraro why he pulled her over. Ferraro responded that "he is the fucking boss around here, he asks all the questions, don't ask him questions, and things of that nature."

Before Lee could reach her bag, Ferraro, who had not asked her to get out of the car, pulled the door open. He then took out his retractable night stick and "put it in [her] face." As he did this, according to Lee, "he was saying things to the effect that he should kick my black ass, he is the boss, he can -- like just a whole lot of racial -- just a lot of words pertaining to -- black bitch." He called her "a fucking black bitch. He was saying he should kick my fucking ass. If I was a man, he would kick my ass. Things like that." While screaming these words, Ferraro kept his night stick in Lee's face, and she remained seated in the car.

Ferraro then "grabbed" Lee's left wrist and "just pulled [her] out" of the car. He pulled her with his hand still on her wrist, and then shoved her hand against her back. As he pulled her out of the car, he said, "You are under arrest." Once he had her outside the car, Ferraro "shoved" Lee against the car in front of the driver's side door. Asked if she was shoved "face first against the car," Lee responded "[r]ight, like chest." At this point, Lee explained, Ferraro "threw my hand on top of the hood and he frisked me, went through my pockets and things like that. After he was done with that, then he put the handcuffs on." Notably, she said that after the handcuffs were on and after she was secured, Ferraro "led me to the trunk of my car and slammed my head down onto the trunk and he kept spreading my legs with his foot." Lee did not resist Ferraro at any time during this incident.2

Ferraro called for back-up, and Lee remained standing with her head on the trunk of her car. Other police officers arrived and, with Ferraro, began searching her car and the items in it. When Ferraro saw a Coast Guard identification card that Lee possessed because her husband was in the Coast Guard, he said, "You are in the Coast Guard. Oh, I can't wait for your commander to get a whiff of this, to see that you have been arrested. Wait till he sees this." Ferraro never explained to Lee why she was being arrested. When the other officers inquired, Ferraro said "assault."

After her car was towed away and she waited about forty-five minutes or an hour, Page 1192

Lee was taken by Officer Jesse Wilkins and his partner Officer Wilson to the police station, where she was fingerprinted. There, a police official behind the counter read Ferraro's report on the incident and said "something to the effect that these are some really lame charges." Lee was then taken to a second facility, where she was put in a cell. Officer Wilkins asked her about bail and told her that she would remain in custody until the following morning. Several hours later, Lee was taken to a third facility on a bus with other prisoners. At this facility, she was strip searched, given a medical examination, and then placed in a large room with cots. She remained there until the next morning, when Officer Wilkins, whom she had not met before the previous evening's incident, posted bond for her.

On July 12, 1997, three days after the incident, Lee went to the walk-in center at Memorial Regional Hospital in Pembroke Pines "for bruises and aching wrists." Dr. Jose Suarez, a medical doctor, observed "mild tenderness to palpation" in Lee's wrist area. The pain was slightly greater in the right wrist than the left. Suarez diagnosed " bilateral wrist trauma" and also noticed some median nerve compression in her right wrist. Because of this compression, he reported that Lee might be suffering from carpal tunnel syndrome because of the trauma. Suarez explained in his deposition that the injuries were fully consistent with Lee's account of the encounter with Ferraro. In particular, he opined that tissue injury could compress the nerve in the wrist and thus cause pain and tenderness throughout the arm. This compression could be caused by the hard grabbing of a handcuffed wrist or by being grabbed and pulled out of a vehicle. This condition, he explained, "could be permanent." Suarez ordered splints for Lee's wrists and recommended that she apply ice to the wrist and take over-the-counter pain medication. Suarez referred her to a primary care physician to look into the carpal tunnel issue. Lee's wrist injuries "continued to bother [her] and cause [her] substantial pain for several months."

In addition to her physical injuries, Lee said she suffered from psychological effects as a result of the incident: "I was depressed. I just couldn't get it together, short attention span. I was trying to alleviate the fear of every time you see a cop, you get extremely nervous." Even after she moved from Miami to Philadelphia, the fear continued: "You get very nervous that they might pull you over and what they might do to you." As recently as June 1999, Lee still became depressed at times, and the effects of the incident had caused difficulty in her marriage. Dr. Shirley Suarez, a psychologist, testified that when she examined Lee twice in October 1997, Lee was suffering psychological trauma relating to the incident, especially the verbal abuse from Ferraro, the strip search, and the overnight detention in jail. Suarez, who diagnosed Lee as suffering from post-traumatic stress disorder, noted that Lee "feels 'numb' and 'not normal' since the incident and that she is having difficulty concentrating at work." Dr. Anastasio Castiello, a psychiatrist who examined Lee on behalf of the defendants, reported in January 2000 that Lee still...

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