Brisk v. City of Miami Beach, Fla., 88-2402-CIV.

• Decision Date: 15 December 1989
• Docket Number: No. 88-2402-CIV.,88-2402-CIV.
• Citation: 726 F. Supp. 1305
• Parties: Alexander BRISK, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, Kenneth Glassman, Chief of Police of the City of Miami Beach, Steven David Robbins, Joseph Brownlow, Samuel Azicri, Kevin Graham, John Krolak, and Armando Torres, Defendants.
• Court: U.S. District Court — Southern District of Florida

726 F. Supp. 1305

Alexander BRISK, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, Kenneth Glassman, Chief of Police of the City of Miami Beach, Steven David Robbins, Joseph Brownlow, Samuel Azicri, Kevin Graham, John Krolak, and Armando Torres, Defendants.

No. 88-2402-CIV.

United States District Court, S.D. Florida.

December 15, 1989.

Isaac Mitrani, Loren Cohen, Miami, Fla., for plaintiff.

Greg Gaebe, David Kleinberg, Coral Gables, Fla., for defendants.

MEMORANDUM OPINION

NESBITT, District Judge.

I. INTRODUCTION

In this Memorandum Opinion, the Court addresses the following question: When a defendant, who is accused by a plaintiff in a § 1983¹ suit of violating his fourth and fourteenth amendment rights, raises the defense of "qualified immunity" at a trial where many factual issues material to the defense remain in dispute, who should resolve the qualified immunity issue—judge or jury?² Because the Eleventh Circuit has never squarely addressed this issue and because the Circuits are split as to who should make this determination,³ the Court explains below why it submitted the defense of qualified immunity to the jury in this case.

II. FACTS

On January 4, 1987, Plaintiff Alexander Brisk was driving his taxicab on Collins Avenue in Miami Beach, Florida. He was pulled over by Defendant John Krolak, a Miami Beach police officer, allegedly for improper passing,⁴ and was given a citation in the presence of a second officer, Defendant Samuel Azicri. The parties vigorously disputed what transpired subsequent to the stop. Brisk alleged that, after he signed the citation and told Krolak that he would challenge its validity in court, Krolak became very upset and retaliated by citing him for failing to wear a seat belt. Brisk testified that Krolak knew he had been wearing his seat belt, that he was willing to sign the seat belt citation, but that he was not given the opportunity to do so. Other witnesses for Plaintiff testified that the officers, without provocation, began to beat Brisk.

In direct contrast to the testimony of Brisk and other witnesses, Officers Krolak and Azicri claimed that Brisk was properly stopped for improper passing, was not wearing his seat belt, willingly refused to sign the seat belt citation, and, in the course of violently losing his temper, struck Azicri. After Azicri called for reinforcements, approximately fifteen officers arrived on the scene, including Defendants Officer Graham, Officer Torres, Sergeant Brownlow, and Lieutenant Robbins.

According to Plaintiff's testimony, despite the fact that Brisk did not attempt to strike any of the officers, Defendants (with the exception of Robbins) "hog-tied" Brisk, beat him with a nightstick, and otherwise struck him until he turned blue and stopped breathing. Defendants, however, claimed that they merely used the amount of force necessary to effectuate the arrest of Brisk, whom they characterized as a large man prone to violence.

Brisk was arrested and charged with improper passing, willful refusal to sign a traffic citation, battery on a police officer, and other offenses. At the conclusion of the criminal trial, all felony, misdemeanor, and traffic charges were dismissed, either by the court or as a result of a jury verdict. Brisk claimed that the officers initiated the prosecutions in order to cover up the false arrest and the use of excessive force.

Brisk then brought suit under 42 U.S.C. § 1983 against Azicri, Brownlow, Graham, Krolak, Robbins, and Torres, and against Police Chief Glassman and the City of Miami Beach, Florida.⁵ Brisk alleged that the officers violated both his fourth amendment rights to be free from false arrest and excessive force, and his fourteenth amendment right to be free from malicious prosecution. He also claimed that the City of Miami Beach had a custom, practice, or policy which caused these constitutional deprivations.⁶

The defendant officers denied that they violated Brisk's rights, and they raised the defense of qualified immunity.⁷ The jury found for the defendants on the false arrest and malicious prosecution claims. However, they found that each of the officers (except Lt. Robbins) had used excessive force on Brisk, that the officers were not entitled to qualified immunity,⁸ and that their use of excessive force was caused by a custom, practice, or policy of the City of Miami Beach. They also found for Plaintiff on his § 1983 double jeopardy claim against Officer Krolak.⁹

III. DISCUSSION

A. The Law of Qualified Immunity

The defense of qualified immunity, enunciated by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), provides that government officials performing discretionary functions (including police officers) are shielded from liability if (1) "the law with respect to their actions was unclear at the time the cause of action arose," McDaniel v. Woodard, 886 F.2d 311, 313 (11th Cir. 1989) (quoting Clark v. Evans, 840 F.2d 876, 879 (11th Cir.1988)), or if (2) "a reasonable officer could have believed the officer's actions to be lawful, in light of clearly established law and the information the ... officer possessed." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); McDaniel v. Woodard, 886 F.2d at 313.

In Anderson, the Supreme Court emphasized that an important policy behind its recognition of qualified immunity is to promptly dispose of insubstantial claims such that public officials may avoid the "broad-ranging discovery that can be particularly disruptive of effective government." Id. 107 S.Ct. at 3042 n. 6 (quoting Harlow, 102 S.Ct. at 2737-38). Thus, courts are strongly encouraged to resolve § 1983 claims prior to discovery and at the summary judgment stage whenever possible. Id. at 3039 n. 2. In effect, "the entitlement is an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original).¹⁰

In Mitchell, the Court made clear that, in order to effectuate this policy, it is, under certain circumstances, appropriate and even desirable for a court to rule on the qualified immunity issue as a matter of law. For instance, if the plaintiff's allegations do not state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Id. 105 S.Ct. at 2815.¹¹ Similarly, even if the complaint alleges acts that violated clearly established law, a defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed the alleged acts. Id.¹²

In this case, however, the Court is not presented with either of the situations envisioned in Mitchell. Here, Plaintiff alleged that he was "hog-tied," struck repeatedly with a police nightstick, and otherwise severely beaten without any provocation whatsoever. He further alleged that there was neither probable cause for his arrest for battery because he never hit the arresting officers, nor probable cause to arrest him for willfully refusing to sign a citation because he was never given the opportunity to sign it.

These allegations clearly made out a claim of violations of well-established fourth amendment rights, thereby rendering inappropriate any dismissal before some discovery had taken place. Similarly, because the defendants failed to move for summary judgment based on qualified immunity, the Court had no opportunity before trial to determine whether there existed sufficient evidence to support the allegations of violations of clearly established law.¹³ Accordingly, the case proceeded to trial with the qualified immunity issue unaddressed and hence unresolved.

B. Qualified Immunity at Trial

1. The Supreme Court and the Eleventh Circuit

In determining who should decide a qualified immunity defense raised at trial, we are, of course, bound by the teachings of Harlow, Mitchell, and Anderson, and by the decisions of the Eleventh Circuit. Though the Supreme Court has not explicitly addressed the issue of whether the judge or the jury should decide a qualified immunity defense raised at trial, at least three justices share the view that the defense should go to the jury when material factual issues are in dispute. In his dissent in Anderson, Justice Stevens, joined by Justices Brennan and Marshall, recognized "the possibility that the `objective reasonableness' of the officer's conduct may depend on a factual dispute. Such a dispute ... should not necessarily prevent a jury from resolving the factual issues in the officer's favor and thereafter concluding that his conduct was objectively reasonable." Anderson v. Creighton, 107 S.Ct. at 3047 (Stevens, J., dissenting).¹⁴

Neither has the Eleventh Circuit explicitly addressed this specific issue. In several cases, however, the Eleventh Circuit has tacitly approved of the concept of sending the qualified immunity question to the jury. In Peppers v. Coates, 887 F.2d 1493 (11th Cir.1989), the court granted summary judgment for the defendant on the ground that there existed no genuine issue of fact material to the qualified immunity defense. In so holding, the court stated that "no jury rationally could find that a reasonable person in the position of the defendant should have known that his conduct violated the plaintiff's constitutional" rights. Id. at 1499. Apparently, had facts material to the determination been in dispute, the court in Peppers would have thought it appropriate to deny summary judgment and to send the question of qualified immunity to the jury. Cf. id. at 1498 ("We do not believe that a jury could reasonably infer from the facts that the defendant should have known that his conduct violated the plaintiff's constitutional rights.").

In Popham v. Kennesaw, 820 F.2d 1570 (11th Cir.1987), a § 1983 false arrest/excessive force case decided after A...