Paez v. Mulvey

• Citation: 915 F.3d 1276
• Decision Date: 08 February 2019
• Docket Number: No. 16-16863,16-16863
• Parties: Omar PAEZ, Plaintiff - Appellee, Yovany Diaz, Jon Anterio, Lyndean Peters, Consolidated Plaintiffs - Appellees, v. Claudia MULVEY, an individual, John Loyal, Kelly Sullivan, an individual, Robert E. Breeden, an individual, Defendants - Appellants, Florida Department of Law Enforcement, et al., Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

915 F.3d 1276

Omar PAEZ, Plaintiff - Appellee,Yovany Diaz, Jon Anterio, Lyndean Peters, Consolidated Plaintiffs - Appellees,

v. Claudia MULVEY, an individual, John Loyal, Kelly Sullivan, an individual, Robert E. Breeden, an individual, Defendants - Appellants,Florida Department of Law Enforcement, et al., Defendants.

No. 16-16863

United States Court of Appeals, Eleventh Circuit.

February 8, 2019

Roderick V. Hannah, Roderick V. Hannah, Esq., PA, Hollywood, FL, Pelayo M. Duran, The Law Office of Pelayo Duran, PA, Miami, FL, for Plaintiffs-Appellees.

Bradley Allan Silverman, Andrew J. Anthony, The Law Offices of Anthony & Associates, PA, Coral Gables, FL, Rhea Pincus Grossman, Rhea P. Grossman, PA, Ft. Lauderdale, FL, for Defendant-Appellant CLAUDIA MULVEY.

James Edwin Kirtley, Jr., Miguel Angel Gonzalez, Miami-Dade County Attorney's Office, Miami, FL, for Defendants-Appellants JOHN LOYAL, KELLY SULLIVAN.

Christopher J. Whitelock, Whitelock & Associates, PA, Fort Lauderdale, FL, for Defendant-Appellant ROBERT E. BREEDEN.

Before CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS,^* District Judge.

MARCUS, Circuit Judge:

In 2011, Sergeant Omar Paez, Sergeant Lyndean Peters, and Officer Yovany Diaz ("the Appellees") of the Golden Beach Police Department were arrested on various charges of public corruption. The officers were accused of, among other things, fraudulently failing to report off-duty police work that would have required them to pay administrative fees to the Department. The officers were never tried and the criminal charges were dropped more than three years later. They now say the arresting officers, Detective John Loyal of the Miami-Dade Police Department’s ("MDPD") Public Corruption Investigations Bureau, and Special Agent Claudia Mulvey of the Florida Department of Law Enforcement ("FDLE"), as well as Loyal and Mulvey’s supervisors, Sergeant Kelly Sullivan (MDPD) and Supervisory Agent Robert Breeden (FDLE), violated their constitutional rights by intentionally omitting exonerating information from the probable cause affidavits that secured their arrest warrants. The district court denied Loyal, Mulvey, and their supervisors ("the Appellants") the protection of qualified immunity. But even if the omitted information had been included in the affidavits, there would still have been probable cause to believe each of the Appellees had engaged in a scheme to defraud in violation of Florida Statute § 817.034(4). Thus, there was no constitutional error in the officers’ arrests pursuant to warrants based on those affidavits, and Loyal and Mulvey, as well as their supervisors, were entitled to qualified immunity.

I.

A.

Appellees Paez, Peters, and Diaz were police officers in the Golden Beach Police Department ("GBPD") in the late 2000s. MDPD Detective John Loyal and FDLE Special Agent Claudia Mulvey were assigned to investigate alleged misconduct at the GBPD. Loyal and Mulvey jointly submitted probable cause affidavits to a judge sitting in Florida’s Eleventh Judicial Circuit Court in Miami-Dade County that led to the issuance of arrest warrants for Paez, Peters, and Diaz. All three were arrested in early 2011 and subsequently released on bond. The criminal charges against them were dropped by the State Attorney’s Office and the case was dismissed in March 2014. The issue before us now is whether those arrests violated the Fourth Amendment because of exculpatory information left out of the warrant affidavits.

Each probable cause affidavit outlined two types of allegedly criminal behavior. First, because Golden Beach Police Department official time logs and outside employer time logs for off-duty work showed work performed during the same hours, the affiants averred that Paez, Peters, and Diaz were paid for off-duty work while simultaneously billing hours for work performed at the GBPD. In addition, time logs taken from some outside employers revealed off-duty work that was not recorded by the GBPD. The Town of Golden Beach ("the Town") collected a five-dollar-per-hour administrative fee for off-duty police work to cover costs like insurance and the use of police vehicles. Because the invoices Paez, Peters, and Diaz submitted to the GBPD for off-duty work showed fewer hours than the time records kept by their off-duty employers, the affiants said that Paez, Peters, and Diaz had avoided payment of the required administrative costs.

According to the Paez probable cause affidavit, signed by Loyal and Mulvey, Paez had worked 247.5 hours of unrecorded off-duty work, which would have required him to pay $1,237.50 in administrative fees to the Town. The affidavit also identified two occasions on which Paez worked off-duty for private employers during the same hours he was said to have worked for the GBPD, resulting in $212.49 of apparent "double compensation" from the Department. The affidavit urged that there was probable cause to charge Paez with one count of an Organized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3) and one count of Grand Theft in violation of Florida Statute § 812.014(2)(c).

The Peters affidavit, also signed by Loyal and Mulvey, found that Peters engaged in 199.5 hours of unrecorded off-duty work, which would have required him to pay $997.50 in administrative fees to the Town. The affidavit also identified eleven occasions on which Peters worked off-duty for private employers during hours he was listed as having worked for the GBPD, resulting in $1,380.12 of apparent "double compensation" from the Department. The affidavit said there was probable cause to charge Peters with one count of an Organized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3), eleven counts of Official Misconduct in violation of Florida Statute § 838.022, one count of Grand Theft in violation of Florida Statute § 812.014, and one count of False and Fraudulent Insurance Claims in violation of Florida Statute § 817.234.¹

Finally, the Diaz affidavit, also signed by Loyal and Mulvey, identified 344 hours of unrecorded off-duty work, which would have required the payment of $1,720 in administrative fees to the Town. The affidavit also identified five dates on which Diaz worked off-duty for private employers during hours he was listed as having worked for the GBPD, resulting in $312.00 of apparent "double compensation" from the Department. The affidavit claimed that there was probable cause to charge Diaz with one count of an Organized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3), two counts of Official Misconduct in violation of Florida Statute § 838.022, and one count of Grand Theft in violation of Florida Statute § 812.014(2)(c).

B.

After the criminal charges against them were dropped by the State Attorney, Paez, Peters, and Diaz sued Loyal, Mulvey, Breeden, Sullivan, Miami-Dade County, the FDLE, and the Town of Golden Beach in Florida’s Eleventh Judicial Circuit.² The lawsuits were promptly removed to the United States District Court for the Southern District of Florida, where they were consolidated and transferred to a single district judge. Each of the Appellees brought six claims relevant to this appeal: four § 1983 claims alleging that each of the four Appellants violated their Fourth Amendment rights by initiating a malicious prosecution, as well as state common law malicious prosecution claims against Loyal and Sullivan.

In relevant part, the complaint urged that the affidavits submitted by Mulvey and Loyal should have included additional -- and importantly, exonerating -- information known to the affiants. This information, the complaint said, would have revealed that their conduct was not criminal. As for the unpaid administrative fees, the complaint alleged that the GBPD "had no authority" to charge the fees to the officers. In addition, the Appellees "had paid, and in fact had actually overpaid, the claimed administrative fees." Meanwhile, the claimed incidents of overlapping on-duty and off-duty work, the complaint further alleged, represented the practice of using "flex time" to avoid overtime billing, a practice "well known to, and condoned by" the GBPD. That is, while the records of hours worked at the GBPD did not reflect the actual hours worked, the Department allowed its law enforcement officers to engage in this practice.

The complaint also asserted that Mulvey and Loyal knew that the officers’ conduct was not criminal or improper. It referenced five relevant pieces of omitted evidence:

[D]uring the investigation, Mulvey and Loyal: (1) were given a copy of the [Collective Bargaining Agreement for the GBPD], that clearly and by its express terms, did not authorize Golden Beach to charge its police officers the administrative fees but only authorized the off-duty employers to be charged; (2) secured witness statements from Golden Beach Chief Skinner that part-time police officers such as ... for part of the covered period Diaz, were not covered by the CBA and its administrative fee policy; (3) chose to ignore undisputed evidence that Plaintiffs Paez, Peters, and Diaz had fully paid -- and had even overpaid -- the claimed administrative fees; (4) secured a sworn statement by Golden Beach Town Manager A. Diaz that Golden Beach officers regularly paid the fees late and Golden Beach would accept those late payments; [and] (5) were provided with sworn statements of [Police Chief] Skinner in 2010 and Golden Beach Police Captain Joseph Barasoain ("Barasoain") in 2011 that discussed the "flex time" policy and were thus informed about the "flex time" practice as justification for the alleged double reporting of off-duty and on-duty work hours ....

The complaint said that since Mulvey and Loyal knew these facts, their affidavits contained knowingly false and misleading statements and omitted substantial exculpatory evidence.

The complaint urged that Mulvey’s supervisor (Breeden) and Loyal’s supervisor (Sullivan) also were liable for the misrepresentations made by...