Vermette v. Ludwig

• Decision Date: 10 December 1997
• Docket Number: No. 97-00330,97-00330
• Citation: 707 So.2d 742
• Parties: Detective Jerome VERMETTE, Detective James Gaczewski, Corporal George Hill, and Detective Joseph Antinori, Petitioners, v. Henry S. LUDWIG, Respondent.
• Court: Florida District Court of Appeals

Page 742

707 So.2d 742

Detective Jerome VERMETTE, Detective James Gaczewski, Corporal George Hill, and Detective Joseph Antinori, Petitioners, v. Henry S. LUDWIG, Respondent.

No. 97-00330.

District Court of Appeal of Florida Second District.

Dec. 10, 1997.

Rehearing Denied Feb. 19, 1998.

Hala A. Sandridge of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for Petitioners Vermette, Gaczewski and Hill.

Christopher C. Sabella of Hillsborough County Sheriff's Office, Tampa, for Petitioner Antinori.

Henry S. Ludwig, pro se, Tampa, Respondent.

NORTHCUTT, Judge.

Officers of the Hillsborough County Sheriff's Office appeal the denial of their motion for summary judgment in a civil rights action filed against them by Henry Ludwig pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, relative to his arrest for dealing in stolen property. As to the § 1983 claims, the officers grounded their summary judgment motion on an assertion of qualified immunity from suit. They also contended that neither Ludwig's complaint nor the undisputed facts of record supported his claims under §§ 1985 and 1986. The officers advance both of those arguments on appeal. We treat the appeal as a petition for writ of certiorari, and we grant it in part.

We first examine our jurisdiction. The Florida Rules of Appellate Procedure generally do not permit interlocutory appeals of nonfinal orders denying motions for summary judgment. An exception is rule 9.130(a)(3)(C)(viii), which authorizes an appeal of a nonfinal order that determines "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." As can be seen, the rule does not authorize appellate review of the challenged order insofar as it denied summary judgment on Ludwig's §§ 1985 and 1986 claims, because in those regards the ruling did not turn on the issue of qualified immunity. The rule applies here, if at all, only to the extent that the order determined that as a matter of law the officers were not entitled to qualified immunity from the § 1983 claim.

We conclude, however, that even that aspect of the order is not reviewable by interlocutory appeal. The circuit court's order denied the motion for summary judgment without explanation. In their briefs, the officers suggest that the court denied their motion based on Ludwig's assertions of irrelevant fact disputes. Ludwig claims in his brief that the court found that there were disputed issues of material fact. Accepting the parties' representations that the order did not determine that, as a matter of law, the officers were not entitled to qualified immunity, we lack jurisdiction to review the decision under rule 9.130(a)(3)(C)(viii). See Stephens v. Geoghegan, 702 So.2d 517 (Fla. 2d DCA 1997). Cf. Hastings v. Demming, 694 So.2d 718, 720 (Fla.1997) (addressing rule 9.130(a)(1)(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).

Still, we have discretionary jurisdiction to review certain nonfinal orders by certiorari. Fla. R.App. Pro. 9.030(b)(2)(A). 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. Stephens, 702 So.2d at 521; Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Because of the nature and purpose of a claim of immunity from suit, an appeal after final judgment would not be an adequate remedy; a party can not be reimmunized from suit after-the-fact. Stephens, 702 So.2d at 521. Accordingly, as respects the officers' claim of immunity from the § 1983 suit, we find that they have established the material harm, irreparable on appeal after judgment, necessary to invoke our certiorari jurisdiction.

Next, we must decide whether the circuit court's order denying the officers' claim of qualified immunity departed from the essential requirements of law. "[W]hen a public official moves for summary judgment on the ground that he or she enjoys immunity from suit arising under either state or federal law, and the record conclusively demonstrates that the public official is entitled to immunity it is a departure from the essential requirements of law to deny it." Stephens, 702 So.2d at 525. The dispositive issue, then, is whether the record before the circuit court when it considered the motion for summary judgment conclusively demonstrated the officers' entitlement to immunity. We conclude that it did.

Ludwig's third amended complaint charged that the officers arrested him without probable cause to believe that he had committed a crime, thereby violating his rights to freedom from unlawful arrest and imprisonment. At the time of the hearing on the officers' motion for summary judgment, the record disclosed these undisputed facts: Ludwig owned and operated a pawn shop. One morning in June 1991, Carl Ognibene entered the shop and told Ludwig that he wanted to sell two guns. Ludwig asked for identification, but Ognibene had none. He left the shop, then returned with a driver's license a few moments later. Ognibene told Ludwig that "he thought [the guns] were stolen because a friend of his told him that he stole them out of a car." Ognibene mentioned at least three more times that the weapons might be stolen. At some point, Ludwig telephoned the sheriff's office to ask whether the guns appeared on the department's computerized record of stolen firearms. He was told that no guns with those serial numbers were listed. Ludwig then had Ognibene sign a document which falsely stated that the weapons were his personal property. Ludwig purchased the two guns for $150, a price he knew to be well below their market value.

Throughout the foregoing, Ognibene was working as a confidential informant for the sheriff's department under the direction of the defendant officers. The officers had obtained the weapons from the department's property room, and had given them to Ognibene with instructions that he attempt to sell them to Ludwig while representing that they were stolen. After being fitted with a listening device, Ognibene entered the pawn shop while the officers waited nearby.

The listening device failed. But when Ognibene left the pawn shop he recounted to the officers that he had told Ludwig the guns were stolen. Ognibene reported that Ludwig had advised him to sell the weapons on the street unless he could produce identification, in which case Ludwig would buy them at the pawn shop. The officers directed Ognibene to return to the shop with identification and make another attempt to sell the guns.

After Ognibene went back to the pawn shop one of the officers, Det. Antinori, entered the shop posing as a customer. He remained there for a time, eavesdropping on the conversation between Ludwig and Ognibene. Although Antinori could not hear all that was said, he did overhear Ludwig's telephone call to the sheriff's office.

When Ognibene emerged from the pawn shop the second time, he told the officers that Ludwig had purchased the two guns after Ognibene told him the guns were stolen. The officers entered the shop, and observed the guns on a shelf behind the display counter. They arrested Ludwig on a charge of dealing in stolen property. Eventually, however, the state attorney's office declined to prosecute.

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the United States Supreme Court held that "government officials performing discretionary functions 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." It is a two-part analysis. "First, the defendant must demonstrate that he or she performed the acts in question as part of a discretionary governmental function. The burden then shifts to the plaintiff to prove that the defendant's conduct violated clearly established statutory or constitutional rights. See Zeigler v. Jackson, 716 F.2d 847 (11th Cir.1983). If the public official's conduct did not violate a clearly established statutory or constitutional right, the official is immune." Stephens, 702 So.2d at 526.

There is no question here that the officers satisfied the initial burden. Their participation in a reverse sting operation was part of their discretionary governmental functions as sheriff's deputies. Paragraph 12 of Ludwig's third amended complaint alleged that the defendants were duly authorized law enforcement officers and that "in doing the actions alleged here, [they] acted within the course and scope of their employment."

We are left with one critical inquiry, i.e.,...