351 F.3d 1080 (11th Cir. 2003), 02-17017, Durruthy v. Pastor

Docket Nº:02-17017
Citation:351 F.3d 1080
Party Name:Durruthy v. Pastor
Case Date:November 26, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1080

351 F.3d 1080 (11th Cir. 2003)

Albert DURRUTHY, Plaintiff-Appellee,


Jennifer PASTOR, Officer, individually, Defendant-Appellant.

No. 02-17017.

United States Court of Appeals, Eleventh Circuit

November 26, 2003

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Ronald Jay Cohen, Jose D. Arrojo, Broward Cty. Atty., Miami Lakes, FL, Robert S. Glazier, Law Office of Robert S. Glazier, Miami, FL, for Defendant-Appellant.

Marc A. Wites, Wites & Kapetan, P.A., Deerfield Beach, FL, for Plaintiff-Appellee.

Mark R. Brown, Columbus, OH, for American Civil Liberties Union of Fla., Inc., Amicus Curiae.

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

Before HULL, MARCUS and STAHL[*], Circuit Judges.


MARCUS, Circuit Judge:

In this civil rights case, Defendant Jennifer Pastor ("Pastor"), a police officer in the City of Miami, appeals from the district court's denial of her motion for summary judgment on the basis of qualified immunity. Plaintiff Albert Durruthy ("Durruthy"), a freelance cameraman, claims, inter alia, that Pastor violated his rights under the Fourth Amendment when she arrested him for being in the busy intersection of Flagler Street and N.W. 27th Avenue in Miami as the police were trying to keep the streets clear on a chaotic day after the federal government removed young Elian Gonzalez from his family in Miami in order to return him to his father, who lived in Cuba. After thorough review of this record, including a series of videotaped recordings of the incident at issue, we conclude that Pastor is entitled to qualified immunity on Durruthy's wrongful arrest and excessive force claims. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

We review de novo a district court's disposition of a summary judgment motion based on qualified immunity, applying the same legal standards as the district court. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). A motion for summary judgment should be granted when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). We resolve all issues of material fact in favor of the plaintiff, and then determine the legal question of whether the defendant is entitled to qualified immunity under that version of the facts. See Ferraro, 284 F.3d at 1190.

The relevant facts are straightforward. On April 22, 2000, United States government officials removed a young boy, Elian Gonzalez, from his uncle's house to facilitate the boy's return to his father in Cuba. The reaction in some parts of Miami was immediate and violent. Protestors took to the streets and, as the Plaintiff said, "[t]hat was the day of the riots in Miami." Durruthy Dep. at 17. Some people threw trash bins into the streets and set them on fire. Others threw bottles, rocks, and broken glass. At the major intersection of N.W. 27th Avenue and Flagler Street (one of the intersection's roads has six lanes, the other four), the scene was chaotic during

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some of the morning. Police were trying to clear the intersection of people and cars. Protesters were arrested at that location. Many cameramen were on hand, including Durruthy.

By Durruthy's account, he knew that Miami police officers were trying to clear the street. He observed that throughout the day he was "shooting officers arresting protesters, clearing the street, and I was shoulder to shoulder with these officers. And officers would grab me and say please, once you get your shot, please go back from the street, from tear gas, from launching tear gas, from arresting protesters." Durruthy Dep. at 78.

By 11:00 a.m. the intersection of Flagler Street and N.W. 27th Avenue was shut off to vehicular traffic, and police officers had cleared the demonstrators from the street. At that time, the police arrested a cameraman, Bruce Bernstein ("Bernstein"), and escorted him through the middle of the cleared street. Durruthy, a freelance cameraman who was on assignment to film the protests, ran into the street to film Bernstein's arrest up close.

The scene that followed was captured on a series of videotapes filmed by different people (including Durruthy) and from different locations. While Durruthy was filming Bernstein's arrest in the street, an officer instructed Durruthy to get out of the street. Durruthy backpedaled toward the sidewalk, while continuing to film Bernstein's arrest. As Durruthy approached the sidewalk, Officer Pastor grabbed him from behind. Pastor and another officer then pulled Durruthy onto the ground, while struggling to pin his arms behind him and handcuff him. During the struggle, the other officer also kneed Durruthy in the back. Durruthy stated, "Sir, my arm . . . please sir . . . I am going peacefully, sir." Pastor held Durruthy down with her hands, while the other officer tied Durruthy's arms behind his back with flex cuffs. Officer Pastor testified that whenever anyone is being arrested, she assumes that the person is armed with a weapon. She also said that she had never seen the Plaintiff before the day of his arrest.

In a sworn declaration, Durruthy said that during the morning of April 22 other police officers let him enter the street, film his "shot," and return to the sidewalk on several occasions. He further stated that he had followed this procedure "countless" times during the previous four months without incident and with the permission of police. In his deposition, Durruthy testified that throughout that morning he had filmed officers arresting protestors and clearing the streets, and the officers had requested that he move out of the street once he got his "shot." Durruthy did not detail any of the specific circumstances surrounding these earlier incidents, nor did he identify any officer by name. Notably, however, Durruthy does not contend that Pastor allowed him to enter the streets at any time that day or in the past.

Durruthy was charged with resisting, obstructing, or opposing an officer in violation of Fla. Stat. § 843.02,1 but the charges

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ultimately were dropped. Subsequently, Durruthy filed a complaint against the City of Miami and Pastor, alleging claims under 42 U.S.C. § 1983 for unlawful arrest and excessive force, in violation of the Fourth Amendment, as well as various state law claims. Pastor moved for summary judgment on the ground that she was entitled to qualified immunity. Pastor argued that not only did she have probable cause to arrest Durruthy for violating § 843.02, but she also had probable cause to arrest him for violating Fla. Stat. § 316.130,2 Fla. Stat. § 316.072,3 and § 54-2 of the Miami City Code.4

The district court denied Pastor's motion for summary judgment. First, the court found that there was no probable cause, or even arguable probable cause, to arrest Durruthy. See Durruthy v. City of Miami, 235 F.Supp.2d 1291, 1297-98 (S.D.Fla.2002). The court rejected Pastor's proffered bases for probable cause, determining that Fla. Stat. § 843.02, Fla. Stat. § 316.072, and § 54-2 of the Miami City Code were not applicable because Durruthy complied with the officer's orders to get out of the street, even if he backpedaled and continued to film when ordered off the street, and that Fla. Stat. § 316.130 was inapplicable because it is directed at preventing pedestrians from walking among vehicular traffic. The court also found that although there was no specific Florida Supreme Court, Eleventh Circuit, or United States Supreme Court caselaw on point, Pastor's conduct was "obviously illegal, based on the complete lack of any reasonable basis for the arrest." Id. at 1298.

The district court also held that Pastor used excessive force against Durruthy. The court reasoned that because Durruthy was obviously a member of the media, was not protesting, and complied with the officer's requests and instructions, any use of "force was unnecessary. . . . In light of the circumstances, the force applied was illegally disproportionate." Id. at 1300. The district court also determined that it was clearly established that Pastor's conduct constituted excessive force. It acknowledged that there was no controlling and factually similar caselaw, but found that her conduct fell "within the category

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of cases in which the unlawfulness of the conduct is 'readily apparent even without identifying caselaw.' " Id. at 1301 (quoting Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997)). This appeal ensued.

As we observed in Lee v. Ferraro:

Qualified immunity offers "complete protection for government officials sued in their individual capacities as long as 'their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.' " Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)) (additional quotations omitted). The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, see Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987), protecting from suit "all but the plainly incompetent or one who is knowingly violating the federal law." Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001). Because qualified immunity is a defense not only from liability, but also from suit, it is "important for a court to ascertain the validity of a...

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