United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on motions to dismiss
filed by Defendants Anthony Pustizzi, Chief of Police of the
City of Coral Springs Police Department [ECF No. 14], and
City of Coral Springs Police Officers V. Jones [ECF No. 17]
and A. Plesher [ECF No. 18]. The Court has carefully
considered the parties' briefs, the Plaintiff's
Complaint, and the applicable law and is otherwise fully
advised in the premises. For the reasons that follow, Chief
Pustizzi's and Officer Jones's motions to dismiss
shall both be granted, and Officer Plesher's motion to
dismiss shall be granted in part and denied in part.
to the allegations in the Complaint, on the evening of
January 17, 2016, Plaintiff Michael George Forrest was in his
home in Coral Springs, Florida, watching a movie with his
girlfriend Angela and his cousin Faye. Compl. ¶ 12. At
just after 9:00 p.m., Forrest heard a loud knock at the front
door. Id. ¶ 13. The group was not expecting any
other visitors that evening, so Forrest went downstairs to
the front door and looked through the peephole, but he did
not see anyone. Id. ¶¶ 14-15. In an
abundance of caution, Forrest drew his legally permitted gun
from its holster and concealed it behind his back, so as to
not expose it to anyone when he opened the door. Id.
opened the door, Forrest saw Officer Jones close to the
corner next to the garage, and Officer Plesher coming from
behind the door to confront him. Id. ¶ 17.
Officer Jones asked if any women were inside the house.
Id. ¶ 19. When Forrest replied in the
affirmative, Officer Jones advised him that she and Officer
Plesher were investigating a possible domestic violence
complaint in the area and stated that a woman was heard
crying out for help. Id. ¶¶ 19-20. Forrest
told the Officers that they had come to the wrong house, but
the Officers asked to confirm that both women in the house
were not victims of domestic violence. Id.
¶¶ 21-22. Officer Plesher then forced the front
door open and stood in the doorway. Id. ¶ 23.
Forrest feared returning his gun to its holster out of fear
that the Officers would misunderstand why he was holding it,
so he continued to hold the gun behind his back during the
parties' discussion. Id. ¶¶ 24-25.
called to Angela and Faye to come downstairs, but to do so,
he had to turn around and call up the stairs, which revealed
his gun to the Officers. Id. ¶ 26. He next
heard both Officers yelling at him to “drop the
[expletive] gun, ” and he immediately started to turn
around to place the gun down on the stairs so it would be
plainly visible. Id. ¶ 27. Before Forrest could
tell the Officers that the gun was on the stairs, Officer
Plesher punched him in the face, breaking his nose.
Id. ¶ 28. By then, Angela and Faye had appeared
at the top of the stairs, and Officer Jones pointed her gun
at them, telling them repeatedly to “stay the
[expletive] upstairs and don't move.” Id.
¶ 29. Officer Plesher repeatedly punched Forrest in the
head, grabbed Forrest's hair as he forced him to the
ground onto his stomach, kicked Forrest in the back, and
placed his feet in the center of Forrest's back while
saying “Give me your [expletive] hands. I told you how
many [expletive] times to drop the gun and get the
[expletive] down on your stomach.” Id.
¶¶ 30, 32. Forrest remained passive throughout.
Id. ¶ 31. He told the Officers he was within
his rights in his own home and had done nothing wrong, and he
asked Officer Plesher why he was beating him but Officer
Plesher, rather than answering, continued to punch and kick
him. Id. ¶¶ 33-34.
was eventually lifted from the floor in handcuffs.
Id. ¶ 35. He tried to explain that the Officers
had the wrong house, but the Officers did not check any other
homes in the area, nor did they check on Angela or Faye.
Id. ¶¶ 36-37. When Forrest asked why he
was being arrested, the Officers replied, “You did not
obey the command.” Id. ¶ 39. Because of
his injuries, Forrest was taken to be treated at Broward
Health Coral Springs, and he was then remanded to the custody
of the Broward County Sheriff's Office. Id.
¶ 43. Forrest was admitted into the Broward Main Jail
and charged with a violation of Fla. Stat. § 843.02
(resisting an officer-obstruction without violence) by the
Broward County Sheriff's Office. Id. ¶ 44.
He continued to experience pain as a result of the injuries
inflicted by Officer Plesher but he was never provided with
pain medication. Id. ¶¶ 45, 48. He was
forced to endure booking and processing, arraignment, and
imprisonment. Id. ¶ 46. He was forced to seek
bail and retain counsel, and all charges against him were
eventually dropped. Id. ¶¶ 47, 49-50.
filed this action on September 13, 2016, and he brings the
following claims: false arrest and/or false imprisonment in
violation of the Fourth Amendment to the U.S. Constitution
and under 42 U.S.C. § 1983 against Officer Jones (Count
I), Officer Plesher (Count II), and Chief Pustizzi (Count
III);excessive force in violation of the Fourth
Amendment and under 42 U.S.C. § 1983 against Officer
Plesher (Count IV) and Chief Pustizzi (Count V); state law
negligent training and supervision against Chief Pustizzi
(Count VI); state law battery against Officer Plesher (Count
VII) and Chief Pustizzi (Count VIII); and state law
intentional infliction of emotional distress against Officer
Plesher (Count IX) and Officer Jones (Count X). Each
Defendant has moved to dismiss all claims against him or her.
survive a motion to dismiss brought pursuant to Federal Rule
of Civil Procedure 12(b)(6), a claim “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '”
meaning that it must contain “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While a court must accept well-pleaded factual
allegations as true, “conclusory allegations . . . are
not entitled to an assumption of truth-legal conclusions must
be supported by factual allegations.” Randall v.
Scott, 610 F.3d 701, 709-10 (11th Cir. 2010).
“[T]he pleadings are construed broadly, ”
Levine v. World Fin. Network Nat'l Bank, 437
F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the
complaint are viewed in the light most favorable to the
plaintiff, Bishop v. Ross Earle & Bonan, P.A.,
817 F.3d 1268, 1270 (11th Cir. 2016). The question is not
whether the claimant “will ultimately prevail . . . but
whether his complaint [is] sufficient to cross the federal
court's threshold.” Skinner v. Switzer,
562 U.S. 521, 530 (2011).
Federal Claims against the Officers
Jones and Officer Plesher have moved to dismiss all federal
claims against them on the basis of qualified immunity.
“Because qualified immunity is a defense not only from
liability, but also from suit, it is important for a court to
ascertain the validity of a qualified immunity defense as
early in the lawsuit as possible.” Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citation
and internal quotation marks omitted).
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.”
Stephens v. DeGiovanni, 852 F.3d 1298, 1314 (11th
Cir. 2017) (quoting Hadley v. Gutierrez, 526 F.3d
1324, 1329 (11th Cir. 2008)). An official who asserts an
entitlement to qualified immunity must first establish that
he or she was acting within the scope of his or her
discretionary authority when the allegedly wrongful act
occurred. Carter v. Butts County, 821 F.3d 1310,
1319 (11th Cir. 2016); see also Moore v. Pederson,
806 F.3d 1036, 1042 (11th Cir. 2015) (“[T]he term
‘discretionary authority' include[s] all actions of
a governmental official that (1) were undertaken pursuant to
the performance of his duties, and (2) were within the scope
of his authority.” (citation and internal quotation
marks omitted)). It is not disputed that Officers Jones and
Plesher were both acting within their discretionary authority
at the time of Forrest's arrest.
discretionary authority established, “the burden shifts
to the plaintiff to demonstrate that qualified immunity is
inappropriate.” Id. To make that
determination, the Court undergoes a two-pronged inquiry.
First, the Court asks “whether the facts, [t]aken in
the light most favorable to the party asserting the injury, .
. . show [that] the officer's conduct violated a
[federal] right.” Salvato v. Miley, 790 F.3d
1286, 1292 (11th Cir. 2015) (first and third alterations in
original) (quoting Tolan v. Cotton, 572 U.S. __, __,
134 S.Ct. 1861, 1865 (2014) (per curiam)). Second, the Court
asks “whether the right in question was ‘clearly
established' at the time of the violation.”
Id. (quoting Tolan, 135 S.Ct. at 1866).
“‘[C]learly established law' should not be
defined ‘at a high level of generality, '”
White v. Pauly, 580 U.S. __, __, 137 S.Ct. 548, 552
(2017) (per curiam) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)), and “must be
‘particularized' to the facts of the case, ”
id. (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)).
Arrest (Counts I and II)
Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend. IV. An arrest is a seizure of the person, and
courts assess the reasonableness of an arrest by determining
the presence or absence of probable cause for the arrest.
Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th
Cir. 2007). Probable cause to arrest exists if “the
facts and circumstances within the officer's knowledge,
of which he 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.” Kingsland v. City of
Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) (citations
and internal quotation marks omitted). That said,
“[e]ven if an officer has effected an arrest without
probable cause (and without a warrant), he will still be
entitled to qualified immunity if the arrest was supported by
arguable probable cause.”
Fish v. Brown, 838 F.3d 1153, 1165 (11th Cir. 2016).
To determine whether arguable probable cause exists, the
Court must decide whether “reasonable officers in the
same circumstances and possessing the same knowledge as the
[defendant] could have believed
that probable cause existed to arrest [the plaintiff],
” Morris v. Town of Lexington, 748 F.3d 1316,
1324 (11th Cir. 2014) (emphasis added) (citation and internal
quotation marks omitted), a determination which
“naturally depends on the elements of the alleged crime
and the operative fact pattern, ” Skop, 485
F.3d at 1137-38. Arguable probable cause does not exist if it
is “clear that the conduct in question does not rise to
the level of a crime, under the facts known at the
time.” Wilkerson v. Seymour, 736 F.3d 974, 976
(11th Cir. 2013). Where an officer arrests without arguable
probable cause, he violates the arrestee's clearly
established Fourth Amendment right to be free from
unreasonable seizures. Case v. Eslinger, 555 F.3d
1317, 1327 (11th Cir. 2009).
Jones and Plesher arrested Forrest for a violation of Fla.
Stat. § 843.02-Resisting officer without violence to his
or her person. The statute provides, in relevant part:
“Whoever shall resist, obstruct, or oppose any officer
. . . in the lawful execution of any legal duty, without
offering or doing violence to the person of the officer,
shall be guilty of a misdemeanor of the first degree . . .
.” Fla. Stat. § 843.02. The elements of the crime
of resisting an officer without violence are: “(1) the
officer was engaged in the lawful execution of a legal duty;
and (2) the defendant's action, by his words, conduct, or
a combination thereof, constituted obstruction or resistance
of that lawful duty.” C.E.L. v. State, 24
So.3d 1181, 1186 (Fla. 2009). This statute “is intended
to apply when a person willfully interferes with an
officer's lawful activities, ” although inaction
can also constitute the requisite interference. J.M. v.
State, 960 So.2d 813, 816 (Fla. 3d DCA 2007); see
also C.E.L. v. State, 995 So.2d 558, 563 (Fla. 2d DCA
2008) (holding broadly that “a knowing defiance of a
lawful police order” is within the scope of section
843.02), aff'd, 24 So.3d 1181. Refusal to comply
with an order to surrender a firearm can give rise to a
violation of this statute. E.g., Light v.
State, 796 So.2d 610, 613 (Fla. 2d DCA 2001).
on the facts alleged in the Complaint, the Officers went to
Forrest's home because of a potential domestic violence
incident in the area around Forrest's home. Compl. ¶
20. The Officers were dressed in police uniforms and informed
Forrest as to their investigation and that a woman had been
heard crying out for help. Id. ¶¶ 18, 20.
They were told by Forrest that there were two women in the
house. Id. ¶ 22. The Officers sought
confirmation that both women were not victims of domestic
violence. Id. When Forrest turned away from them to
call the women downstairs, the Officers learned, for the
first time, that Forrest had been holding a gun behind his
back. Id. ¶ 26. The Officers then demanded that
Forrest drop the gun, id. ¶ 27, which the Court
finds is an objectively reasonable command, given the
circumstances and potential for danger. In making this
command, the Officers were engaged in the execution of a
legal duty. Despite this lawful command, Forrest did not
immediately surrender the gun. Rather, he turned to put the
gun on the stairs.A reasonable officer under these
circumstances, possessing the knowledge that Officer Jones
and Officer Plesher possessed at the time,
could believe that probable cause
existed to arrest Forrest for resisting an officer without
violence. That Forrest alleges that he intended to place the
gun on the stairs is immaterial; all that is critical is the
Officers' knowledge at the time
and whether that knowledge gave the Officers arguable
probable cause to arrest.
reliance on Petithomme v. County of Miami-Dade, 511
F. App'x 966 (11th Cir. 2013) (per curiam), a
nonprecedential Eleventh Circuit decision, is misplaced.
There, police officers, during a valid investigatory stop,
demanded the plaintiff produce the identification for her
vehicle. The plaintiff alleged that she asked the officers if
she could go into her home to retrieve the identification.
The court found that the officers did not have arguable
probable cause to arrest the plaintiff for resisting an
officer without violence because the allegations indicated
that the plaintiff did not refuse to provide the
identification, but instead attempted to comply with the
officers' request. See Id. at 971 (“[A]
reasonable officer could not have concluded that [the
p]laintiff was acting to or was attempting to ‘resist,
obstruct or oppose' the [o]fficers from viewing her
identification merely because, while in the process of
searching, she could not locate the identification for the
vehicle as quickly as the [o]fficers would have
to the court's conclusion in Petithomme was that
the plaintiff did everything in her power to comply with the
officers' request as soon as it was made. The plaintiff
was sitting in her car when the investigatory stop began.
Because she believed her identification was inside her home,
she asked to go inside to search for it. Forrest, by
contrast, had the ability to immediately surrender his gun
when Officer Jones and Officer Plesher demanded he do so by
simply dropping it or placing it on the floor.Notably, Forrest
does not allege that he immediately complied with the
Officers' command to drop the gun. Rather, he asserts
that he “immediately began to turn around and place
the gun down on the stairs.” Compl. ¶ 27
(emphasis added). His failure to immediately comply with the
Officers' commands is further revealed by the allegation
that Officer Plesher later stated, “I told you how many
[expletive] times to drop the gun and get the [expletive]
down on your stomach, ” and that one of the Officers
also stated, “You did not obey the command, ” in
response to Forrest's inquiring why the Officers were
arresting him. Id. ¶¶ 32, 39. Given that
the Officers instructed Forrest to surrender a firearm, the
existence of which Forrest had concealed from them for the
majority of the encounter, the Officers reasonably were not
required to wait any length of time for Forrest to comply
with their command. See Hayden v. Broward County,
No. 12-62278, 2014 WL 1877405, at *7-8 (S.D. Fla. May 9,
2014) (“[C]ontrary to [the p]laintiff's assertion
that he immediately complied with the officers' request
to turn over his firearm, [the p]laintiff admits that he
first grabbed his camera case before ...