7 F.3d 1552 (11th Cir. 1993), 92-4661, Post v. City of Fort Lauderdale

Docket Nº:92-4661.
Citation:7 F.3d 1552
Party Name:Sandra POST, Abilio Lirio, Plaintiffs-Appellees, v. CITY OF FORT LAUDERDALE, Defendant, Doug Danziger, City Commissioner, John Schlegel, Boris Sellers-Sampson, Roy Hurley, William Helms, William Banks, Sr., Defendants-Appellants, Patrick Roberts, Phil Krauss, Defendants.
Case Date:November 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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7 F.3d 1552 (11th Cir. 1993)

Sandra POST, Abilio Lirio, Plaintiffs-Appellees,



Doug Danziger, City Commissioner, John Schlegel, Boris

Sellers-Sampson, Roy Hurley, William Helms,

William Banks, Sr., Defendants-Appellants,

Patrick Roberts, Phil Krauss, Defendants.

No. 92-4661.

United States Court of Appeals, Eleventh Circuit

November 9, 1993

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Robert H. Schwartz, Ft. Lauderdale, FL, for defendants-appellants.

Louis C. Thomas, Herzfeld and Rubin, Miami, FL, for plaintiffs-appellees.

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

Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

This case involves claims brought under 42 U.S.C. § 1983. The district court denied defendants' motion for summary judgment based on qualified immunity. We reverse.

I. Background

Sandra Post is the former owner of Big Louie's restaurant in the City of Fort Lauderdale ("the City"). 1 Abilio Lirio is the former manager. On February 10, 1988, Post decorated Big Louie's with a large campaign balloon supporting a candidate opposed to Doug Danziger, the incumbent City Commissioner.

On February 17, Danziger sent a memo to the City Manager requesting a review of parking at Big Louie's. A City code team visited Big Louie's on February 19. 2 The code team said nothing about parking, but left behind a notice of violation citing the restaurant for exceeding its maximum occupancy cap ("max cap") of 22.

On February 26, the City Manager gave Danziger a memo describing the February 19 inspection. In reply, Danziger sent the City Manager a memo discussing "the Big Louie's problem" and requesting a review of "parking requirements for this type of operation." A copy of the City Manager's memo also went to John Schlegel, the Assistant Director of the Building and Zoning Department. Because Schlegel's supervisor had written "code team" on the memo, Schlegel asked the code team to visit the restaurant.

On February 28, a code team composed of Roy Hurley, a building inspector, Boris Sellers-Sampson, a police officer, and William Banks, a fire inspector, visited Big Louie's. Hurley counted 50 customers, Sellers-Sampson counted 43, and Banks counted 44. After discussing his results with Banks, Sellers-Sampson issued Lirio a notice to appear for violating the max cap. 3 The notice said 43 people were present. Lirio signed the notice without telling the code team he thought the counts were wrong.

The same code team visited again on March 4. After doing a head count, Sellers-Sampson issued another notice to appear, which said that 33 people were present. Banks also counted heads and filled out a fire inspection report noting that 31 people were seated.

Danziger was reelected as City Commissioner on March 15. On March 18, the code team returned. Banks completed an inspection report noting that 27 people were seated and 6 were standing. Post signed the report without disputing the code team's head counts. Sellers-Sampson also counted 27 people. After comparing his results with Banks, he arrested Post for violating the building code. When Post protested, he added the charge of interfering with an officer. He also arrested Lirio for obstructing an officer and resisting arrest.

Post and Lirio sued Danziger, Schlegel, Sellers-Sampson, Hurley, and Banks, among others, under 42 U.S.C. § 1983. Defendants moved for summary judgment based on qualified immunity. The district court granted summary judgment to defendants on all but

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the following claims: 1) retaliatory prosecution of Lirio against Sellers-Sampson, Hurley, and Danziger; 2) false arrest of Post against Sellers-Sampson and Hurley; 3) false arrest of Lirio against Sellers-Sampson; 4) excessive force used against Lirio by Sellers-Sampson and Hurley; 5) deprivation of Post's due process rights against all defendants; and 6) failure to supervise against Schlegel and Danziger. Defendants appeal.

To oppose summary judgment, plaintiffs offered evidence 4 that Schlegel was overheard discussing plans to "hit" Big Louie's before the arrests. Schlegel also said, referring to plaintiffs, "we are going to teach those fucking ass holes [sic] a lesson."

Big Louie's hostess said in an affidavit that the restaurant had 19 or 20 customers during the March 4 visit and that the restaurant was below the max cap during the February 28 visit. Lirio testified that he thought Big Louie's had 19 customers during the February 28 visit, 19 or 20 during the March 4 visit, and 18 or 19 during the March 18 visit. He added he only signed the February 28 report because Sellers-Sampson "got a little nasty" and ordered him to sign. Post likewise claimed that a code team member made her sign the March 18 report.

Bystanders said that Lirio was doing nothing to interfere with the code team when he was arrested. Lirio testified he did tell an employee to turn down the radio after Post was arrested. Sellers-Sampson then told Lirio to be quiet; Lirio repeated his instruction to turn the radio down. Sellers-Sampson told Lirio he was under arrest. Lirio then put his hands up (Lirio says to be handcuffed). Sellers-Sampson told Lirio to stop resisting arrest, spun him around, placed him against a display case, applied a choke hold, and handcuffed him.

Afterwards, Sellers-Sampson took Lirio outside. When Lirio made a remark, Sellers-Sampson told Lirio, "shut up, you're under the control of the hatchet man for the commissioner now." When Lirio kept speaking, Sellers-Sampson pushed Lirio against a wall.

The interference charge against Post was eventually dropped, and Post and Lirio were acquitted on the remaining charges. Before Lirio was tried, two City prosecutors said or implied they would drop the charges against Lirio if he signed a civil liability release.

II. Discussion

Defendants argue they are entitled to summary judgment based on qualified immunity. We review this issue de novo. Hutton v. Strickland, 919 F.2d 1531, 1536 (11th Cir.1990).

Qualified immunity protects government officials performing discretionary functions from civil liability if their conduct violates no "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Suits against government officials for damages against them individually are costly not only for the defendants, but for society as a whole. The social costs include "the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Id. at 814, 102 S.Ct. at 2736. Qualified immunity recognizes that, "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and...

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