Stephens v. Geoghegan

• Decision Date: 17 October 1997
• Docket Number: Nos. 96-04103,96-04145,s. 96-04103
• Citation: 702 So.2d 517
• Parties: 22 Fla. L. Weekly D2428, 22 Fla. L. Weekly D2659 Darrell STEPHENS, individually and in his official capacity as Chief of Police, Terrance Upman, individually and in his official capacity as Assistant Chief of Police, and Annie Worlds, individually and in her official capacity as Major of Police, Petitioners, v. John G. GEOGHEGAN and Martha Geoghegan, his wife, Respondents. CITY OF ST. PETERSBURG, a municipal corporation, Darrell Stephens, individually and in his official capacity as Chief of Police, Terrance Upman, individually and in his official capacity as Assistant Chief of Police, and Annie Worlds, individually and in her official capacity as Major of Police, Petitioners, v. John J. GEOGHEGAN and Martha Geoghegan, his wife, Respondents.
• Court: Florida District Court of Appeals

Page 517

702 So.2d 517

22 Fla. L. Weekly D2428, 22 Fla. L. Weekly D2659

Darrell STEPHENS, individually and in his official capacity as Chief of Police, Terrance Upman, individually and in his official capacity as Assistant Chief of Police, and Annie Worlds, individually and in her official capacity as Major of Police, Petitioners, v. John G. GEOGHEGAN and Martha Geoghegan, his wife, Respondents.

CITY OF ST. PETERSBURG, a municipal corporation, Darrell Stephens, individually and in his official capacity as Chief of Police, Terrance Upman, individually and in his official capacity as Assistant Chief of Police, and Annie Worlds, individually and in her official capacity as Major of Police, Petitioners, v. John J. GEOGHEGAN and Martha Geoghegan, his wife, Respondents.

Nos. 96-04103, 96-04145.

District Court of Appeal of Florida,

Second District.

Oct. 17, 1997.

Michael S. Davis, City Attorney, and William N. Drake, Jr. and Pamela D. Cichon, Assistant City Attorneys, St. Petersburg, for Petitioners.

Joseph M. Ciarciaglino of Ciarciaglino & Coyle, P.A., St. Petersburg, for Respondents.

NORTHCUTT, Judge.

This case involves a suit by a retired St. Petersburg police officer against the City of St. Petersburg and against three members of its police force: Darrell Stephens, the police chief; Terrance Upman, the assistant police chief; and Annie Worlds, a police major. In March 1993 the officer, John Geoghegan, shot and killed a man he suspected of burglary. The police department conducted an internal affairs investigation, then convened a shooting review board. Of the six-member board, the three defendants, Stephens, Upman and Worlds, recommended that Geoghegan be terminated from the force because of the shooting. Geoghegan was discharged, but he was later reinstated with full back pay and benefits after an arbitration hearing. He retired from the police department in 1994.

Geoghegan and his wife then sued the city and the three individual defendants, seeking damages under various theories. Among them were a federal civil rights claim under 42 U.S.C. § 1983, based on an alleged lack of due process at the shooting review board hearing, and claims for defamation and intentional infliction of emotional distress based on Florida law. After answering the complaint, Stephens, Upman and Worlds filed a joint motion for summary judgment, in their individual capacities, contending that they were entitled to judgment in their favor because they have qualified immunity from the Geoghegans' federal civil rights claim and they enjoy absolute immunity from the state tort claims. They filed a second joint motion, in their official capacities and in conjunction with the city, asserting immunity from the state law causes of action. In three separate orders the circuit court denied the defendants' motions; the first order denied the city's and the official-capacity defendants' motion on counts I through III; the second denied the individual-capacity defendants' motion on those same counts; and the third denied both motions as to count IV, the defamation count. As we will explain in detail, we find that the rulings denying Stephens's, Upman's, and Worlds's assertions of immunity, in their individual capacities, are reviewable by petition for writ of certiorari. We hold that the defendants are entitled to relief, and quash, in part, the orders denying that motion for summary judgment.

JURISDICTION

We first address our jurisdiction to consider the defendants' assertion that, in their individual capacities, they enjoy qualified immunity from the federal civil rights action. The springboard for our analysis is Tucker v. Resha, 648 So.2d 1187 (Fla.1994) ¹, in which our supreme court held that a nonfinal order denying summary judgment based upon a claim of qualified immunity is appealable "to the extent that the order turns on a question of law." Tucker II, 648 So.2d at 1190. In accordance with Tucker II, the that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law.

Florida Supreme Court later adopted Florida Rule of Appellate Procedure 9.130(a)(3)(C)(viii), which permits appellate review of nonfinal orders determining:

This review proceeding was commenced after Tucker II, but before the new rule took effect on January 1, 1997. Therefore, the rule is not applicable here. Beyond that, we note that the order under review does not fall within either the Tucker II jurisdictional pronouncement or the subsequent jurisdictional rule. The order itself fails to state that, as a matter of law, the defendants are not entitled to qualified immunity from the federal claim. At the hearing on the motion, the judge expressed his belief that immunity is "a factually intensive defense ... in all probability not ripe for summary judgment." The court denied the motion without specifying what facts it considered material or disputed. Clearly, though, the court did not decide this issue as one of law. That being so, Tucker II does not grant us jurisdiction to review the decision by interlocutory appeal, nor would rule 9.130(a)(3)(C)(viii). Cf. Hastings v. Demming, 694 So.2d 718, 720 (Fla.1997) (addressing rule 9.130(a)(3)(C)(vi), which permits interlocutory appeal of orders determining, as a matter of law, that a party is not entitled to workers' compensation immunity; court noted that order must specifically state that the immunity is not available as a matter of law).

The same is true in regard to the defendants' assertion of absolute immunity from the state tort actions. Tucker II referred to claims of qualified immunity in the context of federal civil rights claims. The rule embraces both qualified and absolute immunity but, by its terms, restricts its application to orders in federal civil rights actions. ²

Our jurisdictional inquiry does not end there, however, for we have discretionary jurisdiction to review certain nonfinal orders by certiorari. Fla. R.App. P. 9.030(b)(2)(A). A certiorari petition must pass a three-pronged test before we may grant relief from an erroneous nonfinal order. To obtain a writ of certiorari the petitioner must establish: (1) a departure from the essential requirements of the law; (2) resulting in material injury for the remainder of the case; (3) that cannot be corrected on postjudgment appeal. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Prior to reaching this standard of review on the merits, we are required to analyze whether a petitioner has properly invoked our jurisdiction. Before we have the power to determine whether an interlocutory order departs from the essential requirements of law, the petitioner must demonstrate that the order causes material harm that cannot be remedied on postjudgment appeal. 658 So.2d at 649.

Here, the defendants correctly argue that absolute and qualified immunity for public officials are not merely defenses to liability; as the terms themselves imply, they protect a public official from having to defend a suit at all. Tucker II, 648 So.2d at 1189; City of Miami v. Wardlow, 403 So.2d 414, 415 (Fla.1981). This entitlement is lost if the defendant is required to go to trial; having been forced to defend the suit, the public official cannot be reimmunized after-the-fact. Tucker II, 648 So.2d at 1189. Because of the nature and purpose of a claim of immunity, an appeal after final judgment would not be an adequate remedy. Accordingly, we hold that Stephens, Upman and Worlds have established the requisite material harm, irreparable on appeal after judgment, needed to invoke our certiorari jurisdiction. We now

examine whether the circuit court's orders denying them immunity in their individual capacities depart from the essential requirements of law. ³

THE STATE LAW CLAIMS

The counts of the Geoghegans' complaint alleging defamation and intentional infliction of emotional distress concern statements by Stephens, Upman and Worlds which supposedly misrepresented the results of the shooting review board. These include:

1. The composition and distribution of a memorandum, for circulation to all police personnel, reporting that the review board determined that the shooting was not justified;

2. Stephens's statements to the St. Petersburg Times and Upman's statements to the Tampa Tribune;

3. Upman's statements to police personnel;

4. Comments by all the defendants during depositions in a civil suit growing out of the shooting filed by the deceased burglary suspect's estate; and

5. Stephens's statements at the arbitration hearing.

In their individual-capacity motion for summary judgment, the defendants asserted that they are absolutely immune from suit for defamation for statements published in the course of their public duties. They also claimed that many of their allegedly defamatory statements were made in judicial or quasi-judicial proceedings and, therefore, could not form the basis of a defamation action. Because we agree with the defendants' contention concerning absolute immunity, we need not reach their second argument.

Public officials who make statements within the scope of their duties are absolutely immune from suit for defamation. See Wardlow, 403 So.2d at 415. Florida law affords this protection to low-level, as well high-placed, public officials. See generally Alfino v. Department of Health and Rehabilitative Services, 676 So.2d 447 (Fla. 5th DCA 1996) (Sharp, J., concurring). This grant of immunity is justified because it is "in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." McNayr v. Kelly, 184 So.2d 428, n. 12 (Fla.1966).

A series of opinions from the district courts of this state have applied this principle. See, e.g., Goetz v. Noble, 652 So.2d 1203 (Fla. 4th DCA 1995); Forman v. Murphy, 501 So.2d 640 (Fla. 4th DCA 1986); Skoblow v....