from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:13-CV-60349-RLR
MARCUS and FAY, Circuit Judges, and FRIEDMAN, [*] District Judge.
Stephens appeals summary judgment granted to Broward Deputy
Sheriff Nick DeGiovanni based on qualified immunity in his 42
U.S.C. § 1983 action, alleging false arrest and
excessive force. We affirm summary judgment granted to Deputy
DeGiovanni on Stephens's false-arrest claim, but we
vacate summary judgment granted to Deputy DeGiovanni on
Stephens's excessive-force claim, since Deputy DeGiovanni
is not protected by qualified immunity because of the force
he used in arresting Stephens on misdemeanor charges. We
remand for proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
evening of February 16, 2009, Paul Stephens, who is a black
Jamaican and an automobile mechanic by trade, and his cousin,
Roan Greenwood, also a black Jamaican male, were the invited
guests of Greenwood's girlfriend, Claudia White, who
resided at 4001 N.W. 34th Street, Apartment 205, Fort
Lauderdale, Florida 33319. White's apartment was on the second
floor of the Shoppes of St. Croix, a complex with businesses
on the first floor and apartments on the second floor. The
doorway leading to White's second-floor apartment was on
the first floor. Stephens and Greenwood were checking a car,
owned by Stephens's girlfriend, that she was planning to
sell to White at her request, because the check-engine light
came on prior to the car being parked. The car was not parked
in a space designated for retail parking.
door was open on the driver's side; Stephens was sitting
on the metal frame of the driver's doorway, with both
feet out of the vehicle and on the ground; Greenwood was
sitting in the front-passenger seat. During his checking the
car, Stephens had used a diagnostic scanner to determine what
was wrong with the engine. When Stephens used the scanner,
the car ignition was operating.
P.M., Deputy DeGiovanni was on road patrol, assigned to
Lauderdale Lakes. Aware of recent burglaries in the area, and
because it was late and all of the businesses in the Shoppes
of St. Croix were closed, he decided to investigate. Deputy
DeGiovanni, who is white, initially drove past the car in
which Stephens and Greenwood were sitting; he then reversed
his patrol car, parked behind the car being checked, exited
his vehicle, and approached Stephens, who remained seated.
When Deputy DeGiovanni drove into the Shoppes of St. Croix,
stopped his patrol car, and approached the car, Stephens was
no longer using the scanner; the ignition and engine of the
car were off. Deputy DeGiovanni's first words to Stephens
were: "What are you two doing over here?" When
Stephens answered he and Greenwood were chatting, Deputy
DeGiovanni said: "You two are not supposed to be over
here." Stephens responded they were invited guests of
Claudia White, who lived at the Shoppes of St. Croix, which
Greenwood confirmed. To prove this fact to Deputy DeGiovanni,
Greenwood used the key White had given them to unlock the
door on the first floor, giving access to her second-floor
apartment, and unlocked the door.
DeGiovanni turned away from Stephens and Greenwood and
returned to his patrol car. Thereafter, one or two other
police cars turned into the Shoppes of St. Croix and were
driving toward the car being checked, where Stephens and
Greenwood were sitting. Deputy DeGiovanni returned to
Stephens and asked for identification, but he did not ask for
a driver's license. Stephens stood up to give Deputy
DeGiovanni his identification; while standing, Stephens asked
Deputy DeGiovanni: "What is the problem?" Ignoring
Stephens's question, Deputy DeGiovanni said: "Give
me your ID." Stephens gave Deputy DeGiovanni his State
of Florida identification card. On February 16, 2009,
Stephens possessed a driver's license issued in Jamaica.
he was standing, Stephens's cellular phone rang. When he
answered the phone using the Bluetooth device on his right
ear, Deputy DeGiovanni unexpectedly slapped the Bluetooth
from Stephens's ear and stated: "Who told you to
answer the phone?" Stephens then asked Deputy DeGiovanni
to get a field supervisor on the scene. Deputy DeGiovanni
responded by saying: "Shut your damn mouth." For no
reason, Deputy DeGiovanni, using his full body weight,
slugged Stephens hard in his chest, slamming him into the
stood up and asked Deputy DeGiovanni: "Why are you doing
this?" Deputy DeGiovanni hit Stephens a second time with
a blow to his chest, thrusting him into the driver's
seat. With the air knocked out of his lungs, Stephens got up
and said to Deputy DeGiovanni: "The kids are upstairs
looking at you. What kind of example are you setting for the
kids?" Deputy DeGiovanni battered
Stephens a third time by stepping on Stephens's left foot
while simultaneously and forcefully grabbing him by the neck
and slamming him backward, which threw Stephens against the
car-door frame. Stephens's head hit in the space between
the open driver's door and the car, and his head and neck
slammed into the car-door jamb. Stephens, who was seriously injured,
reached up with his right hand to grab the car door to lift
himself up. Deputy DeGiovanni then grabbed Stephens's
right hand and twisted it so the palm of his hand faced up;
he also forced the last three fingers on Stephens's right
hand backward toward his forearm, causing all of
Stephens's body weight to be placed on those three
fingers of his right hand.
Stephens was standing and while Deputy DeGiovanni still had
those three fingers of Stephens's right hand bent
backwards, Deputy DeGiovanni told Stephens to turn around,
and he handcuffed him. He did not tell Stephens he was under
arrest or why he was arresting him. Because the handcuffs
were quite tight, causing Stephens to lose the feeling in his
hands, he asked Deputy DeGiovanni to loosen the handcuffs.
Deputy DeGiovanni responded: "It's punishment. You
people come here and think you can do as you please."
Am. Compl. at 4 ¶ 15. Deputy DeGiovanni did not
adjust the handcuffs on Stephens for almost three hours.
time did Stephens resist being handcuffed by Deputy
DeGiovanni. Greenwood told Deputy DeGiovanni the two had done
nothing wrong; Deputy DeGiovanni told Greenwood "to stay
back or he would be arrested, too." During the
encounter, Stephens did not raise his voice, say anything
threatening, or make any aggressive gestures. Stephens averred: "At no time did
Deputy DeGiovanni observe me driving or operating my
girlfriend's car." The other Broward Deputy Sheriffs
searched and towed away the car on which Stephens had been
working, although it did not belong to him.
DeGiovanni drove Stephens to the police station, where he was
denied the use of a bathroom. In Stephens's presence,
Deputy DeGiovanni prepared a report of the incident. After
reviewing the report, another deputy told Deputy DeGiovanni:
"That report's not gonna stick." Deputy
DeGiovanni rewrote his event report for the Broward
On 02/16/09 at 2015 hrs. I was conducting preventative
patrol/business checks at 4061 N.W. 34th St. Lauderdale Lakes
During my patrol I observed a 97' Grey Toyota Camry
bearing FL Tag #<U54-0RT> parked in front of closed
businesses with the vehicle running. Additionally, the space
the driver parked his vehicle in was marked with a posted
sign which read "Retail Parking Only". Alert to the
recent burglaries in the area, I approached the vehicle and
asked the driver if he had any business being parked in front
of the mentioned closed establishments. He stated that he
lived in the nearby residential area. I asked the driver to
provide me with a form of identification to verify that he
lived there. The driver refused. I made several additional
requests, but the driver still refused. The driver then
stepped out of the vehicle in an aggressive manner, without
my request or permission. At this time, I placed him
under arrest for obstructing my investigation. Search
incident to the arrest revealed a FL ID Card which showed the
driver lived at 7221 N.W. 54th Ct. Lauderhill, FL. and was
issued on 05/03/2005. I then confirmed through teletype
that the driver has never been issued, or possessed in the
past, a valid driver's license. The suspect was charged
vehicle was towed by West Way.
suspect was transported to BSO Main Jail. Deputy
DeGiovanni's Event Rpt. at 3 (Feb. 17, 2009, 5:14:51 AM)
DeGiovanni charged Stephens under Fla. Stat. § 843.02,
resisting an officer without violence to his or her person,
 and Fla. Stat. § 322.03(1),
requiring Florida drivers to be licensed. After waiting half an hour to forty-five
minutes at the Broward Sheriff's Office jail, the jail
staff refused to book Stephens, because of his injuries.
Deputy DeGiovanni took Stephens to Broward General Medical
Center, where he remained for several hours. He then
transported Stephens to the Broward County Jail, where he
remained for several hours until he was able to pay his $100
bond the following morning.
affidavit, Stephens describes his injuries resulting from his
encounter with Deputy DeGiovanni that continue to cause him
[A]s a result of Deputy DeGiovanni shoving me the third time,
causing me to strike the back of my head and neck on the
car, and twisting my hand the way he did,
forcing the last three fingers on my right hand backwards
toward my forearm and causing all of my body weight to be
placed on those three fingers, and leaving me
handcuffed for almost three hours in handcuffs that were too
tight, I experienced physical injuries, pain and suffering
including, among other things headaches, back pain, and loss
of sensation in my right hand. The injuries, pain and
suffering are continuing and ongoing.
Stephens's Aff. at 5 ¶ 13 (emphasis added). Dr.
Barry Schapiro, an orthopedic physician, examined Stephens
and reviewed his medical records resulting from the February
16, 2009, incident. In his September 26, 2014, report, Dr.
Schapiro diagnosed Stephens with
a cervical sprain/strain with multilevel disc herniations and
resultant foraminal stenosis as a result of the described
assault on February 16, 2009. The patient also sustained a
left shoulder partial thickness articular-sided rotator cuff
tear involving the infraspinatus tendon. He also sustained a
sprain of the right wrist. Further electrodiagnostic workup
is required to evaluate the radiating pain and little finger
numbness to differentiate cervical radiculitis/radiculopathy
and a peripheral nerve injury in the right upper extremity.
. . . .
The injuries sustained are causally related to the injury of
February 16, 2009. . . .
. . . .
The claimant's treatment was medically necessary and
reasonable as it relates to his traumatic injury of February
. . . .
The claimant's diagnostic workup was medically necessary
and reasonable as it relates to his traumatic injury of
February 16, 2009.
. . . .
I would recommend an electromyography and nerve conduction
study of the right upper extremity. I believe this additional
study to be reasonable, related, and necessary.
. . . .
Additional care, as it relates to the traumatic injury of
February 16, 2009, is indicated. The patient may require
arthroscopic rotator cuff debridement or repair due to his
persistent and refractory left shoulder pain. He may require
cervical epidural steroid injections or cervical disc
decompression depending on the result of his
Schapiro, M.D., Report on Paul Stephens at 8 (Sept. 26, 2014)
(regarding injuries sustained on Feb. 16, 2009).
amended pro se complaint for his § 1983 action in the
Southern District of Florida, Stephens describes his injuries
and the consequences to him, all of which resulted from his
encounter with Deputy DeGiovanni on February 16, 2009:
(A)Severe permanent physical injury resulting in pain and
suffering and requiring neck surgery, which was performed;
the injury resulted in me having a swollen neck, cervical
herniated and bulging dis[c]s, severe pain spreading from my
shoulder blade to my neck, headaches, and pain and numbness
in my right hand (causing problems because I am
right-handed). I also had to undergo extensive treatment and
(B)The injuries have prevented me from working, causing me to
lose my job as an auto mechanic and causing me to continue to
(D) Physical inconvenience and discomfort, loss of time,
emotional trauma, anxiety and distress, humiliation and
embarrassment, and impairment to reputation.
Am. Compl. at 5-6 ¶ 26 (emphasis added).