Reagan v. Mallory
| Decision Date | 13 June 2011 |
| Docket Number | No. 10-11916,D. C. Docket No. 5:09-cv-00091-RS-MD,10-11916 |
| Parties | JACKIE DALE REAGAN, KATHY REAGAN, Plaintiffs-Appellees, v. MARK MALLORY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Appeal from the United States District Court for the Northern District of Florida
Before MARCUS and ANDERSON, Circuit Judges,* and MILLS, District Judge.
Mark Mallory, a Calhoun County Deputy Sheriff, appeals the district court's denial of qualified immunity in Plaintiff-Appellee Jackie Reagan's § 1983 suit against him for unlawful arrest and detention. We conclude that it was not clearly established that Officer Mallory lacked probable cause to arrest Reagan for aggravated assault and therefore that Mallory was entitled to qualified immunity.1 The district court's denial of qualified immunity is reversed.
"Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right." Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). It thus "operates 'to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.' " Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 2158 (2001)). Qualified immunity "allows government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Galvez v. Bruce,552 F.3d 1238, 1241 (11th Cir. 2008) (internal quotation marks and alterations omitted).
Officer Mallory was entitled to qualified immunity on Reagan's false arrest claim so long as he had probable cause or arguable probable cause for the arrest. See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). Probable cause to arrest exists under both federal and Florida law when an arrest is "objectively reasonable based on the totality of the circumstances." Id. at 1195. "This standard is met when the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Id. (citations and quotations omitted). Probable cause requires more than a mere suspicion, but not the level of convincing proof necessary to support a conviction. Id. Arguable probable cause exists where reasonable officers in the same circumstances and with the same knowledge as the defendant could have believed that probable cause existed. Id. To determine whether probable cause or arguable probable cause exists, this Court must look to state law defining the substantive offense.
Florida defines assault as "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, anddoing some act which creates a well-founded fear in such other person that such violence is imminent." Fla. Stat. § 784.011. Aggravated assault is assault "[w]ith a deadly weapon without intent to kill." Fla. Stat. § 784.021.
However, a use of force that appears to fulfill the other elements of assault is justified, and therefore not unlawful, when used to the extent necessary to defend property. Florida statute provides:
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property.
Fla. Stat. § 776.031 (emphasis added). The statute creates an immunity from criminal prosecution. Fla. Stat. § 776.032(1) ().
Under Florida law, law enforcement officers have a duty to assess the validity of this defense, but they are provided minimal, if any, guidance on how to make this assessment. "A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probablecause that the force that was used was unlawful." Fla. Stat. § 776.032(2) (emphasis added). "This allows law enforcement officers to determine a suspect's immunity prior to making an arrest." Velasquez v. State, 9 So. 3d 22, 24 (Fla. 4th DCA 2009), abrogated on other grounds by Dennis v. State, 51 So. 3d 456 (Fla. 2010).
By defining "criminal prosecution" to include the arrest, detention, charging, or prosecution of the defendant, the statute allows for an immunity determination at any stage of the proceeding. Created to eliminate the need to retreat under specified circumstances, the statute authorized the immunity determination to be made by law enforcement officers, prosecutors, judges, and juries. In enacting the statute, however, the legislature did not restrict the time frame for determining immunity, but rather provided a time continuum stretching across the entire criminal process."
Id. "Despite section 776.032's broad temporal application, running from before arrest through trial, there is no legislative guidance as to the statute's implementation." Horn v. State, 17 So. 3d 836, 838 (Fla. 2d DCA 2009).
Not only is it generally unclear how an officer is to make the probable cause determination when a person accused of assault raises the immunity provided for by Florida Statutes § 776.032, it is even less clear when the alleged trespasser is in retreat. Our research revealed no Florida cases which discuss the effect of a trespasser's retreat on the viability of immunity where § 776.031 triggers the § 776.032 immunity. Cases discussing whether immunity from prosecution pursuant to § 776.032 is applicable when the victim of an assault is retreating haveinstead arisen where the underlying statute triggering immunity is § 776.013, rather than § 776.031. See, e.g., Hair v. State, 17 So. 3d 804 (Fla. 1st DCA 2009); State v. Heckman, 993 So. 2d 1004 (Fla. 2d DCA 2007). Those cases, both issued after the events of this case, expressed opposite views about the effect of retreat. Compare Hair, 17 So. 3d at 806 () with Heckman, 933 So. 2d at 1004 (). These divergent opinions highlight the fact that it was not clearly established in 2006, when the events of this case occurred, nor is it clearly established today, that § 776.032 immunity applies when a person uses force after a trespasser is already in retreat.
Furthermore, the effect of retreat is even more profound where § 776.031—the statute relevant for this case—rather than § 776.013, triggers immunity under § 776.032. Section 776.013 creates a presumption that a person using deadly force was in fear of their life, thereby relieving him of the need to prove this element, when "[t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle'" § 776.013(1)(a)(emphasis added). Section 776.031, on the other hand, justifies force "to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass." Thus, cases which allow immunity on the basis of § 776.013 will most often involve threats to the person, see, e.g., Hair, 17 So. 3d at 805-06 (). On the other hand, immunity on the basis of § 776.031 will generally involve threats to property. Where § 776.031 is at issue, retreat will arguably convey some indication that force is no longer necessary to terminate the trespass because the trespass is already in the process of being terminated.
The district court concluded that Officer Mallory could not have had...
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