D'Aguanno v. Gallagher

• Decision Date: 29 March 1995
• Docket Number: No. 93-3097,93-3097
• Citation: 50 F.3d 877
• Parties: Dennis J. D'AGUANNO, John William McVeigh, Christine S. Webster, Wesley Keith Coleman, Plaintiffs-Appellants, v. Walter J. GALLAGHER, individually, Kenneth E. Kinzler, Jr., individually, Robert A. Pasteur, individually, Miguel A. Vasquez, individually, Hector Ramirez, III, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 877

50 F.3d 877

Dennis J. D'AGUANNO, John William McVeigh, Christine S Webster, Wesley Keith Coleman, Plaintiffs-Appellants, v. Walter J. GALLAGHER, individually, Kenneth E. Kinzler, Jr. individually, Robert A. Pasteur, individually Miguel A. Vasquez, individually, Hector Ramirez, III, Defendants-Appellees.

No. 93-3097.

United States Court of Appeals Eleventh Circuit.

March 29, 1995.

James M. Russ, Orlando, FL, Nina E. Vinik, Miami, FL, Helaine M. Blum, Legal Aid, Orlando, FL, for appellants.

Jeffrey G. Slater, Eubanks, Hilyard, Rumbley, Meier & Lengauer, Orlando, FL, for appellees.

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

Before EDMONDSON and CARNES, Circuit Judges, and HAND ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

This appeal is from a decision granting defendants' motion for summary judgment in a suit pursuant to 42 U.S.C. Sec. 1983 for alleged civil rights violations. We affirm in part and vacate in part.

FACTS

Appellants, Dennis J. D'Aguanno, John W. McVeigh, Christine S. Webster, and Wesley K. Coleman, are four homeless people who lived in shelters they had built in a "homeless campsite" on undeveloped, private property in Orange County, Florida. At the same time, defendant Walter Gallagher was the Sheriff of Orange County, and defendants Kenneth E. Kinzler, Jr., Robert A. Pasteur, Miguel A. Vazquez, and Hector Ramirez were deputy sheriffs. Invoking 42 U.S.C. Sec. 1983, plaintiffs sued each defendant in his individual capacity for alleged civil rights violations. Plaintiffs also alleged that defendants violated state constitutional law.

The land upon which plaintiffs had built their shelters was owned by Rhoda Bouzek and managed by Gus Miller. Ms. Bouzek and Mr. Miller both stated that they did not know plaintiffs were living on the property and never gave permission or consent for any person to live on or to use the property. In affidavit, Ms. Bouzek said that she did not want people on her property and that she was grateful that defendants had worked to help keep people ("trespassers" in her view) off her property. ¹ Although plaintiffs claim they never saw "no trespassing" signs posted on the property, Mr. Miller stated that he had placed "no trespassing" signs on the property many times; but the signs were removed. Throughout the time plaintiffs occupied the property, defendant deputies visited the campsite at least once a month and routinely requested identification from the plaintiffs. Although D'Aguanno claims defendants never told him to leave the campsite Plaintiffs then sued defendants, alleging that defendants violated their rights secured by the United States Constitution. Plaintiffs also asserted claims for violations of the Florida Constitution. Plaintiffs argued that defendants did not have the legal authority to force them to leave; and plaintiffs sought declaratory relief, injunctive relief, monetary damages, attorneys' fees, and litigation costs. Defendants responded that their act of removing plaintiffs' shelters and personal belongings from the property was taken based on their belief that plaintiffs were trespassing on private property.

defendants repeatedly told McVeigh, Webster, and Coleman to leave the property. Defendants ultimately entered the campsite and removed plaintiffs' shelters and personal property.

The district court granted defendants' motion for summary judgement on all of plaintiffs' causes of action, 827 F.Supp. 1558. The court concluded that defendants were entitled to qualified immunity on plaintiffs' claims for violations of plaintiffs' rights to peaceable assembly, freedom of association, due process of law, and to be free from unreasonable searches and seizures under both the federal and state constitutions. On the claims that defendants violated plaintiffs' rights to equal protection of the law and to be free from cruel and unusual punishment, the district court concluded that plaintiffs failed to state a claim upon which relief could be granted. ²

Because qualified immunity is a defense only to federal claims, we hold that the district court erred in concluding that defendants were entitled to qualified immunity on the claims for violations of state law. See Andreu v. Sapp, 919 F.2d 637, 640 (11th Cir.1990). And, because qualified immunity is a defense only to claims for monetary relief, the district court erred in granting summary judgment on plaintiffs' claims for injunctive and declaratory relief. See Fortner v. Thomas, 983 F.2d 1024 (11th Cir.1993). We vacate and remand that portion of the district court's judgment granting defendants summary judgment on these issues. We address in more detail only the issue of whether the district court properly concluded that defendants were entitled to qualified immunity on the federal claims for monetary damages. The district court's decision that defendants were entitled to qualified immunity is reviewed de novo. James v. City of Douglas, 941 F.2d 1539 (11th Cir.1991).

QUALIFIED IMMUNITY

Government actors performing discretionary functions are entitled to qualified immunity from civil trials for money damages and may not be held liable in their individual capacity "if their conduct violates no 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). No one disputes that defendants were performing discretionary functions when the alleged constitutional violations occurred. Therefore, to overcome defendants' qualified immunity defense, plaintiffs must establish that defendants' conduct violated " 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Id. Applying this principle, we now consider each of the federal constitutional claims.

A. Damage Claim on Right to Peaceable Assembly and Freedom of Association:

Plaintiffs allege that, in removing them from the property, defendants violated plaintiffs' rights to peaceable assembly and freedom of association guaranteed in the First Amendment. To show that these rights were clearly established, plaintiffs rely To overcome the qualified immunity defense, citing precedent which establishes a general right will not do. Because those cases plaintiffs cite do not dictate and compel the conclusion that defendants' acts violated plaintiffs' rights to peaceable assembly and freedom of association, and because plaintiffs have failed to cite other authority which dictates that conclusion, plaintiffs have failed to show defendants violated clearly established federal law of which a reasonable officer would have known. The district court, therefore, properly held defendants were entitled to qualified immunity on plaintiffs' First Amendment claims. ³

                mainly upon the Supreme Court's decisions in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), and Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).  In Roberts, the Court recognized "as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."  Id. at 622, 104 S.Ct. at 3252.   While those cases recognized a general First Amendment right to peaceable assembly and freedom of association, they did not clearly establish that people have a right to pursue such ends on the property of another without the owner's permission.
                

B. Damage Claim on Right to Privacy:

Plaintiffs also allege that, in searching their persons and property without a warrant, defendants violated the right to privacy and the right to be secure from unreasonable searches and seizures guaranteed by the Fourth Amendment. To invoke the protection of the Fourth Amendment, plaintiffs must show that they had a subjective expectation of privacy that society, at the time, was prepared to recognize as reasonable.

While the facts establish that plaintiffs might have had a subjective expectation of privacy in their shelters and personal property, no case law is advanced to establish clearly that society recognized plaintiffs' expectation of privacy as reasonable under the facts of this case. Although plaintiffs cite several cases which recognize a general right to privacy, the facts of those cases are too different to show that plaintiffs' right to privacy was clearly established in the context of a case like this one. Those cases address a person's right to privacy and freedom from search and seizure when he resides or stores his belongings at another's residence or on another's property with the landowner's permission or in public places. ⁴ Plaintiffs have cited no authority which recognizes a person's right to privacy when he lives or stores his belongings on private property without the landowner's permission. ⁵ The district court, therefore, properly concluded that defendants were entitled to qualified immunity on this issue.

C. Damages Claim on Due Process of Law:

Plaintiffs claim that, in destroying their shelters and personal property without first notifying them and providing them an [T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified...