Ford v. City of Boynton Beach
| Decision Date | 04 August 2021 |
| Docket Number | No. 4D19-3664,4D19-3664 |
| Citation | 323 So.3d 215 |
| Parties | Sharron Tasha FORD, Appellant, v. CITY OF BOYNTON BEACH, a Florida municipal corporation, Appellee. |
| Court | Florida District Court of Appeals |
Samuel Alexander of Alexander Appellate Law P.A., DeLand, for appellant.
Michael T. Burke and Jonathan H. Railey of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee.
Michael Masinter, Miami, James K. Green of James K. Green, P.A., West Palm Beach, and Daniel B. Tilley of The American Civil Liberties Union Foundation of Florida, Inc., Miami, for Amicus Curiae The American Civil Liberties Union Foundation of Florida, Inc., The Florida Justice Institute, The Radio Television Digital News Association, The National Press Photographers Association, The South Florida Chapter of the National Lawyers Guild, Center for Freedom of Information, Society of Environmental Journalists, First Look Media Works, Inc., American Society of Media Photographers, and The Society of Professional Journalists.
ON MOTION FOR REHEARING
We grant the motion for rehearing, withdraw our prior opinion, and substitute the following in its place.
Appellant Sharron Tasha Ford challenges a final summary judgment entered in favor of appellee City of Boynton Beach on her complaint alleging false arrest by city police officers. She argues that law enforcement did not have probable cause to arrest her for intercepting oral communications and for obstruction without violence. We agree and reverse.
On an evening in 2009, law enforcement detained appellant's minor son as a juvenile for trespassing at a movie theater. The officers called appellant to come and pick him up. As requested, appellant drove to her son's location and the incident from which her arrest arose ensued.1
When appellant arrived at the scene, her son and the police officers were outdoors next to a publicly accessible sidewalk at a shopping center directly across the street from the movie theater entrance. Because the police officers did not close any portion of the sidewalk during this incident, pedestrians continued to use the sidewalk for ingress and egress to the theater and shopping center parking lot. At any given time during the juvenile's detention, there were numerous bystanders who were permitted to mill around the detention site as they were coming and going from the theater entrance.
Appellant approached the officers with a video camera. The officers stood on the sidewalk about twenty feet from where her son was being detained by shopping center security guards. One officer told appellant that by law she needed his permission to videotape him. In response, she said, "You knew that when I came up here with the camera." When the lead officer took over interacting with appellant, she told him that she was recording, and he gave permission, stating, She then repeated to the lead officer that she was recording, and he responded,
The lead officer asked for appellant's identification. She gave him her out of state license. He asked for her address, which she could not provide. She explained they had recently moved here and were staying with her mother.
Appellant was permitted to speak to her son, who told her that he had sneaked into the movie theater without paying, was caught, and ordered to leave. After the son left the theater, an officer that the son believed was a security guard stopped him. The son asked the officer: "You're not the police so what is this necessary for?" He stated the officer then forcibly arrested him by slamming him against the hood of a car.
After appellant finished speaking to her son, the lead officer began to explain the next steps. She asked the lead officer why he arrested her son and why he "slammed" him on a car for trespassing when he had already left the premises. At this point, the interaction became more confrontational, and another officer approached appellant. She explained that she "[was] just asking questions" because she was "a mother and a concerned parent" and that she "ha[d] that right."
The lead officer explained why they had called her. She responded that she was "in shock" when they called and that "[the police officers] were aggressive towards [her]." She felt that they were ready to "throw [her] in handcuffs." The officer asked if she was ready to talk and asked if she was still recording. When appellant said nothing further, the officer proceeded to explain why they called her. She then spoke to her son again briefly and stood to the side, continuing to record the scene, including numerous bystanders watching the police.
At this point, appellant panned the camera around, and an unidentified man who may have been a theater security guard put his hand up and said: "No ma'am, I don't want you to take my picture." She moved the frame away from him. Another officer asked her whether she was recording with audio. She responded: "Oh now you're gonna [sic] arrest me." The officer stated that "it was against the law" in the State of Florida to record on audio and video. He told her that he did not mind her taking pictures, but that she should not continue recording with video and audio.
Appellant continued recording and repeated again: The officer told her that he would tell her if he was going to arrest her. At that point, the video cuts off.
The video resumes with appellant speaking to the lead officer about her address. A man and a woman who apparently knew the lead detective interrupted appellant's conversation with the officer and exchanged a few words with him. The man had his back to the camera for most of the conversation, and the conversation was unintelligible.
When the lead officer resumed his discussion with appellant, he asked her if the camera was still on. She falsely claimed that it was turned off. Other officers approached her and told her that her son was under arrest.
After a pause, the video begins again, recording an interaction between appellant and an officer who told her again to turn the camera off. She continued to record and said: When ordered to turn the camera off again, she stated, "This is a public forum." The video then cuts off shortly thereafter.
The video resumes once more with appellant speaking to an officer as he explained how they were going to turn her son over to her after he was issued a trespass warning, instead of arresting him. But because she chose not to listen to them, they chose to go with the option of arresting him as a juvenile.
Appellant then interrupted the officer to state that she was only asking questions. The officer responded that he approached her in a very polite manner and that she did not even give him the common courtesy to explain why her son was being detained. Appellant continued to express that she had the right to ask questions as the video ends.
The police took appellant's camera and placed her under arrest. At the police station, she was booked for obstruction without violence and intercepting oral communications. Despite appellant's arrest, no criminal charges were ever filed by the State against her.
Appellant filed a multi-count complaint against the City and the officers for false arrest, declaratory relief, and for violating her civil rights under 42 U.S.C. § 1983. The City removed the case to federal court where the civil rights claims were dismissed. The state law claims were remanded back to state court.
The City moved for summary judgment, arguing the police had probable cause to arrest appellant for intercepting oral communications and for obstruction without violence. Appellant responded that the relevant parties lacked any expectation of privacy, so the wiretapping statute did not apply, and her arrest for obstruction without violence was based on the police officers’ erroneous belief that she was illegally recording them.
The trial court granted the motion for summary judgment. In support of its decision, the court found the recorded parties had a subjective and reasonable expectation of privacy in their communications so that probable cause existed to arrest appellant for violating the wiretapping statute. The trial court also found appellant lied to the police about recording them and obstructed the police in their detention of her son, concluding that probable cause existed for her arrest for obstruction without violence. Appellant appeals the final summary judgment.
The standard of review for an order granting summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P ., 760 So. 2d 126, 130 (Fla. 2000). Summary judgment is proper if there is no genuine issue of material fact, and the moving party is therefore entitled to judgment as a matter of law. Id . "Summary judgment may be granted only where the facts are so crystallized that nothing remains but questions of law." Vander Voort v. Universal Prop. & Cas. Ins. Co., 127 So. 3d 536, 538 (Fla. 4th DCA 2012) (citing McCabe v. Fla. Power & Light Co ., 68 So. 3d 995, 997 (Fla. 4th DCA 2011) ).
Probable cause is an affirmative defense to a claim of false arrest. Mailly v. Jenne , 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004) (citation omitted). The test for probable cause is:
To show probable cause in a false arrest situation, it is not necessary that the arresting officer know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged; probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged.
Id. (quoting
Fla. Game & Freshwater Fish Comm'n v. Dockery , 676 So. 2d 471, 474 (Fla. 1st DCA 1996) ). "Probable cause is judged by the facts and legal state of affairs that existed at the...
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