Madiwale v. Savaiko

• Decision Date: 25 July 1997
• Docket Number: No. 96-4398,96-4398
• Citation: 117 F.3d 1321
• Parties: 11 Fla. L. Weekly Fed. C 205 Munir A. MADIWALE, Frances M. Madiwale, Tyyne Mary Hogan, Plaintiffs-Appellees, v. Joyce SAVAIKO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1321

117 F.3d 1321

11 Fla. L. Weekly Fed. C 205

Munir A. MADIWALE, Frances M. Madiwale, Tyyne Mary Hogan Plaintiffs-Appellees, v. Joyce SAVAIKO, Defendant-Appellant.

No. 96-4398.

United States Court of Appeals Eleventh Circuit.

July 25, 1997.

Michael T. Burke, Christine M. Duignan, Johnson, Anselmo, Murdoch, Burke & George, PA, Ft. Lauderdale, FL, for Defendant-Appellant.

Arthur Morton Wolff, Ft. Lauderdale, FL, for Plaintiffs-Appellees.

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

Before COX and BARKETT, Circuit Judges, and SMITH ^*, Senior Circuit Judge.

BARKETT, Circuit Judge:

Joyce Savaiko appeals from the district court's denial of her motion for summary judgment on the issue of qualified immunity in a suit brought pursuant to 42 U.S.C. § 1983 by Tyyne Hogan, Munir Madiwale, and Frances Madiwale. In the lawsuit, Hogan alleged that Savaiko, a police officer, violated her Fourth Amendment rights by arresting her without arguable probable cause for allegedly having failed to report child abuse in violation of Florida Statute § 415.513, having made allegedly false reports to law enforcement authorities in violation of Florida Statute § 837.05, and allegedly being an accessory after the fact in violation of Florida Statute § 777.03. The Madiwales assert that Savaiko violated their Fourth Amendment rights by applying for a search warrant and executing it upon their residence and place of work, likewise without probable cause. Additionally, Munir Madiwale, a physician, alleges that Savaiko violated his constitutional rights by reporting him to a professional oversight committee.

Joyce Savaiko, working for the police department in Cooper City, Florida, first came in contact with Hogan and the Madiwales when she went to the Retreat Ranch, a state-licensed residential rehabilitative center for troubled boys, to investigate a report of child abuse. The Ranch was owned by the Madiwales and was located on the property upon which the Madiwales also had their home. The Ranch employed Hogan as its resident director.

In the course of speaking to the children at the Retreat Ranch, Savaiko discovered that one of the residents had alleged that he was sexually attacked by other boys at the Retreat Ranch on February 5, 1991. It is this incident upon which the application for the search warrants and the warrantless arrest were based. The state's attorney declined to press any charges against Hogan or the Madiwales. The Madiwales and Hogan subsequently sued Savaiko pursuant to 42 U.S.C. § 1983, and Savaiko moved for summary judgment, asserting that she was entitled to qualified immunity on all counts. The district court denied Savaiko's motion.

Discussion

A summary judgment denying qualified immunity can be appealed immediately. Behrens v. Pelletier, --- U.S. ----, ----, ----, 116 S.Ct. 834, 839, 842, 133 L.Ed.2d 773 (1996). Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In our de novo review of a summary judgment order, we must take the evidence in the light most favorable to the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996).

The applicable law provides that government agents engaged in discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The fundamental inquiry in a qualified immunity case is whether "a reasonable official would understand that what he is doing violates [a federal constitutional or statutory] right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). However, "this is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id. at 640, 107 S.Ct. at 3039 (citations omitted). As the Supreme Court recently emphasized, "general statements of the law are not inherently incapable of giving fair and clear warning, and ... a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question...." United States v. Lanier, --- U.S. ----, ----, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997). ¹ The qualified immunity inquiry, then, must establish first, whether the defendant government official was performing a discretionary function and, second, whether, in doing so, the defendant should reasonably have known that the action violated an individual's clearly established federal statutory or constitutional rights. It is not disputed that Savaiko was acting within her discretionary authority during the incidents involved in this case. Thus, it is only the second part of the inquiry that is at issue here. Hogan and the Madiwales assert multiple violations, which we treat in turn.

1) Arrest of Hogan

There is no question that an arrest without probable cause to believe a crime has been committed violates the Fourth Amendment. Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990); Herren v. Bowyer, 850 F.2d 1543 (11th Cir.1988). Probable cause exists if "the facts and the circumstances within the collective knowledge of the law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed." United States v. Jimenez, 780 F.2d 975, 978 (11th Cir.1986). However, when considering qualified immunity, the issue is

not probable cause in fact, but arguable probable cause. Actual probable cause is not necessary for an arrest to be objectively reasonable. Indeed, it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and in such cases those officials should not be held personally liable.

Von Stein, 904 F.2d at 579 (citations, internal ellipses, and internal quotations omitted). Thus, in applying the qualified immunity test in the context of a claim of an unlawful arrest, "we must determine whether reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest Plaintiff...." Id.

a) Failure to Report Child Abuse

Savaiko arrested Hogan for failing to report the alleged child abuse of Anthony Casales on February 5, 1991, in violation of Florida Statutes §§ 415.504 and 415.513. Section 415.504 states in relevant part (1) Any person ... who knows, or has reasonable cause to suspect, that a child is an abused, abandoned, or neglected child shall report such knowledge or suspicion to the department in the matter prescribed in subsection (2).

(2)(a) Each report of known or suspected child abuse or neglect pursuant to this section ... shall be made immediately to the department's central abuse hotline on the single statewide toll-free telephone number....

Section 415.513 makes failure to comply a misdemeanor in the second degree.

The uncontested facts reveal that Savaiko had been informed prior to arresting Hogan that Anthony Casales and his therapist called the HRS hotline to report the alleged February 5th incident. Savaiko stated in her deposition that she was given this information by both Anthony Casales and Tyyne Hogan. [Savaiko Depo., Vol. I at 113, 118]. There is no evidence in the record disputing that the report to the hotline had been made. ² Most importantly, in addition to the telephone calls to the hotline, Hogan also submitted a written report regarding the incident to the Miami HRS office on April 16, 1991, [Savaiko Depo., Vol I Plaintiff's Exb. # 5] which Savaiko acknowledged she received on May 3, 1991 [Savaiko Depo., Vol. I, at 135], seven days prior to arresting Hogan. Thus, all of the evidence known to Savaiko indicated that the incident had been reported to the central abuse hotline and that Hogan had additionally submitted a written report to the Miami HRS office.

In this appeal, Savaiko does not dispute that the phone calls to the HRS were made. Rather, she argues that notwithstanding the plain language of the statute, she had arguable probable cause to arrest because she was told by an HRS hotline manager that callers reporting child-on-child abuse at residential facilities were instructed to contact local law enforcement and the local HRS office. [R3-109-12]. Florida Statute § 415.504, however, nowhere requires abuse to be reported to local law enforcement or to a local HRS office. Rather, the statute only requires that abuse be reported to the HRS hotline. Here, where Hogan and her employees performed the acts required by § 415.504, and where it is uncontested that Savaiko had no reason to doubt that those acts had been performed, Savaiko had no arguable probable cause to arrest Hogan pursuant to that statute.

b) Accessory After the Fact

Savaiko also arrested Hogan for violating Florida Statute § 777.03, which at the time of the arrest stated in relevant part, "Whoever ... maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial, or punishment, shall be deemed an accessory after the fact, and shall be guilty of a felony of the third degree...." (emphasis added).

Nowhere in her briefs to this court does Savaiko explain how arguable probable cause to arrest could have existed under this statute. She does not indicate who Hogan was allegedly helping, or what crime that...