Bartley v. Kim's Enter. of Orlando, Inc.
| Decision Date | 11 June 2014 |
| Docket Number | No. 13-13507,D.C. Docket No. 6:10-cv-01180-CEH-DAB,13-13507 |
| Parties | MONICA BARTLEY, NEISHA HIGGS, DARRYEL WOODSON, LEKEITHIA BRYSON, as Administrator of the Estate of T.D. Bryson, KEVIN WALLACE, Plaintiffs-Appellees, JOSHUA BRYSON, Plaintiff, v. KIM'S ENTERPRISE OF ORLANDO, INC., a Florida for profit corporation, d.b.a. "Magic Mall" and "Magic Outlet" and "Magic Outlet Mall", et al., Defendants, FLORIDA INTRACITY PATROL, INC., a Florida for profit corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Appeal from the United States District Court
for the Middle District of Florida
Before CARNES, Chief Judge, DUBINA and SILER,* Circuit Judges.
Florida Intracity Patrol, Inc. ("FIP"), a private security company that provided security services for the Magic Outlet Mall in Orlando, appeals the final judgment against it on the plaintiffs' state law claims for false detention. FIP challenges the district court's denial of its motion for judgment as a matter of law, contending that it cannot be held liable for false detention because the plaintiffs' brief detention by the Orange County Sheriff's Department was not unlawful and, in any event, it did nothing more than accurately report the commission of a crime. FIP also challenges the denial of its motion for a new trial, which impugned the district court for failing to disclose a jury question on damages and for issuing a response that materially altered the jury instructions on compensatory damages.
Darryel "White Folks" Woodson, a black writer, entertainer, and self-styled "player," has published two books and produced a series of popular YouTubevideos, which have amassed an online following of some 300,000 viewers.1 With the help and financial backing of T.D. Bryson, Woodson assembled an all-black film crew to travel from Atlanta, Georgia, to Orlando, Florida, during the weekend of November 22, 2008, to shoot some footage during the annual Florida Classic football game. In addition to Woodson and Bryson, the group consisted of Charles Wilson, Jr., Calvin Ivory, Monica Bartley, Neisha Higgs, Edrichus Sykes, and Kevin Wallace. Wallace, a Georgia police officer, and Sykes, an unlicensed private security guard, were hired to provide security for the film crew and to enhance Woodson's cultivated image as an important entertainer.
In the early evening hours of November 22, 2008, the six men and two women huddled into a rented stretch limousine and made a brief stop at the Magic Outlet Mall in Orlando so that Wallace, who was ill-prepared for the unexpectedly cold night, could buy a long-sleeve shirt. Wallace, the off-duty Georgia police officer, was carrying a concealed weapon. Sykes, his fellow bodyguard, wore a dark-colored battle dress uniform and bullet-proof vest with no identifying insignia, patches, or other markings, and was openly carrying a .380 semiautomatic handgun in his hip holster. He assumed that his Georgia firearm permit, which covered both concealed and open carry, allowed him to tote an exposedfirearm in Florida as well. Unbeknownst to Sykes, Florida's reciprocity with Georgia did not extend to openly carrying a firearm; instead, that act qualified as a second-degree misdemeanor under Florida law. See Fla. Stat. § 790.053.
After the group pulled into the mall's parking lot, Wallace headed straight into the mall while the others momentarily lingered outside the limousine. An FIP security guard slowly drove past, spotted Sykes, and called in a report to his colleagues of a man in a battle dress uniform openly carrying a firearm. Five or six mall security guards, including FIP Chief David Hesselink, arrived in their marked security cars, got out with their guns drawn, and trained their weapons on the group. With his hands in the air, Sykes approached Hesselink, voluntarily produced his Georgia identification card and firearm permit, and informed Hesselink that he and Wallace were providing security for the rest of the group while they filmed around Orlando. Sykes also told Hesselink that Wallace, who had already entered the mall, was a Georgia police officer and was carrying a concealed firearm. Although Hesselink knew that it was a second-degree misdemeanor in Florida to openly carry a firearm, he neglected to mention that fact to Sykes and allowed him to enter the mall with his exposed handgun.
Once Hesselink released the group, Bartley, Higgs, Woodson, and Ivory overheard him say into his radio that everything was "all clear" and that the group members were just a bunch of "'wannabe' rappers." Taking umbrage at that finalremark, Ivory shot back, "Just like you a 'wannabe' cop." Hesselink replied, "We'll see about that." After the remaining group members entered the mall, Hesselink promptly placed a 911 call to the Orange County Sheriff's Department, reporting "two individuals, signal zero, inside [the] mall," one of whom was "supposedly a Georgia police officer" and the other who was working "protection," sporting a battle dress uniform with an exposed firearm, and had produced a Georgia firearm permit when stopped outside the mall. A "signal zero" denotes either armed, use caution, or armed threat, and it automatically triggers an urgent "code three" police response with "lights and sirens." Hesselink also told the 911 operator that his security guards were themselves "signal zero," suggesting that he understood that signal to simply mean armed, and that they were going to "block off the entrances" to the mall and "try to contain [the two men] or at least know where they are once your deputies get here." Hesselink did not mention anyone but Sykes and Wallace, nor did he expressly request any particular police response.
While the plaintiffs insist that a "signal zero" unambiguously signifies a single thing — an armed threat — the record does not support that limited interpretation. At trial, both the 911 operator and the 911 dispatcher testified that it can mean either armed person or armed threat; that it is an appropriate signal to use when someone is openly carrying a firearm; and that they would have convertedHesselink's 911 call into a "signal zero" had he simply reported a man carrying an exposed firearm. Even the plaintiffs' own security expert, Donald Schultz, conceded that a "signal zero" can signify "armed and caution" or "armed and dangerous," and the parties' final joint pretrial statement indicated that it is "police language for an armed person/threat."
Within minutes of dialing 911 (and while he was still on the phone), Hesselink could hear a police helicopter circling overhead and patrol units "coming code three," facts which he relayed to the 911 operator. Nearly a dozen police officers, which included an emergency response team clad in tactical uniforms and equipped with automatic weapons, arrived on the scene. When the film crew eventually exited the mall together, they were confronted by the full contingent of armed officers yelling "watch out for crossfire" and commanding them to lay face down on the ground with their hands behind their backs. The officers handcuffed and frisked some of the group members, briefly questioned them, and then released each and every one of them without charge or arrest. Bartley overheard one of the police officers say, "security lied to us." Once the entire incident had blown over, a number of FIP security personnel, including Chief Hesselink, openly laughed about it.
In July 2010, Bartley, Higgs, Woodson, Bryson, Wallace, Ivory, and Sykes filed a civil suit in Florida against FIP and the Sheriff of Orange County, alleging claims under state and federal law for unlawful detention, illegal search, assault and battery, and intentional infliction of emotional distress.2 After the case was removed to federal court, Wilson joined the suit and the plaintiffs filed an amended complaint. That complaint sought compensatory and punitive damages against FIP under Florida law for (1) false detention or imprisonment; (2) illegal search, seizure, and battery; and (3) intentional infliction of emotional distress. The crux of the plaintiffs' claims against FIP was that "[a]s a direct and proximate result of . . . Chief Hesselink's 911 call to the [police], [they were] physically stopped, forcibly assaulted, detained and forced at gunpoint to lay face first on the ground by the [police] as [they attempted] to leave the Magic Outlet Mall."
FIP moved for summary judgment on each and every claim against it, asserting that the undisputed facts showed that Sykes was openly carrying a firearm in violation of Florida law, which provided probable cause to lawfully detain all of the plaintiffs. The district court granted the motion as to Sykes'claims given the clear probable cause to detain him for illegally carrying an exposed firearm. But the court denied the motion as to the claims of the seven remaining plaintiffs, observing that FIP had offered no argument or authority to support its "implicit proposition" that the probable cause to detain Sykes "extended to the other Plaintiffs in this case who are not accused of openly carrying a weapon or committing any other violation of law."
Soon after, FIP filed a second motion for summary judgment on the claims of the seven remaining plaintiffs, which the court again granted in part and denied in part. The court granted summary judgment to FIP on the plaintiffs' claims for illegal search, seizure, and battery. But it denied summary judgment on the claims for false detention and intentional infliction of emotional distress, finding that genuine issues of material fact existed as to whether FIP "directly or indirectly procured" the plaintiffs' detention by the police, whether Hesselink's 911 call "went beyond merely providing information" and "was made in good faith," and whether his "conduct in calling 911 in the absence of any cognizable threat was reckless, if not intentional, because [] of the...
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