Case: 13-13507   Date Filed: 06/11/2014   Page: 1 of 22


                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 13-13507
                        ________________________

                 D.C. Docket No. 6:10-cv-01180-CEH-DAB


MONICA BARTLEY,
NEISHA HIGGS,
DARRYEL WOODSON,
LEKEITHIA BRYSON, as Administrator of the Estate of T.D. Bryson,
KEVIN WALLACE,

                                                            Plaintiffs-Appellees,

JOSHUA BRYSON,

                                                                        Plaintiff,

                                   versus

KIM'S ENTERPRISE OF ORLANDO, INC.,
a Florida for profit corporation,
d.b.a. "Magic Mall" and "Magic Outlet"
and "Magic Outlet Mall", et al.,

                                                                      Defendants,


FLORIDA INTRACITY PATROL, INC.,
a Florida for profit corporation,
                                                           Defendant-Appellant.
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                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                        (June 11, 2014)

Before CARNES, Chief Judge, DUBINA and SILER, * Circuit Judges.

PER CURIAM:

       Florida Intracity Patrol, Inc. (“FIP”), a private security company that

provided security services for the Magic Outlet Mall in Orlando, appeals the final

judgment against it on the plaintiffs’ state law claims for false detention. FIP

challenges the district court’s denial of its motion for judgment as a matter of law,

contending that it cannot be held liable for false detention because the plaintiffs’

brief detention by the Orange County Sheriff’s Department was not unlawful and,

in any event, it did nothing more than accurately report the commission of a crime.

FIP also challenges the denial of its motion for a new trial, which impugned the

district court for failing to disclose a jury question on damages and for issuing a

response that materially altered the jury instructions on compensatory damages.

                                           I. FACTS

       Darryel “White Folks” Woodson, a black writer, entertainer, and self-styled

“player,” has published two books and produced a series of popular YouTube

       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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videos, which have amassed an online following of some 300,000 viewers. 1 With

the help and financial backing of T.D. Bryson, Woodson assembled an all-black

film crew to travel from Atlanta, Georgia, to Orlando, Florida, during the weekend

of November 22, 2008, to shoot some footage during the annual Florida Classic

football game. In addition to Woodson and Bryson, the group consisted of Charles

Wilson, Jr., Calvin Ivory, Monica Bartley, Neisha Higgs, Edrichus Sykes, and

Kevin Wallace. Wallace, a Georgia police officer, and Sykes, an unlicensed

private security guard, were hired to provide security for the film crew and to

enhance Woodson’s cultivated image as an important entertainer.

       In the early evening hours of November 22, 2008, the six men and two

women huddled into a rented stretch limousine and made a brief stop at the Magic

Outlet Mall in Orlando so that Wallace, who was ill-prepared for the unexpectedly

cold night, could buy a long-sleeve shirt. Wallace, the off-duty Georgia police

officer, was carrying a concealed weapon. Sykes, his fellow bodyguard, wore a

dark-colored battle dress uniform and bullet-proof vest with no identifying

insignia, patches, or other markings, and was openly carrying a .380 semi-

automatic handgun in his hip holster. He assumed that his Georgia firearm permit,

which covered both concealed and open carry, allowed him to tote an exposed


       1
          Because FIP is challenging the denial of its motion for judgment as a matter of law, the
facts are presented in the light most favorable to the plaintiffs. See Lamonica v. Safe Hurricane
Shutters, Inc., 

, 1312 (11th Cir. 2013).
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firearm in Florida as well. Unbeknownst to Sykes, Florida’s reciprocity with

Georgia did not extend to openly carrying a firearm; instead, that act qualified as a

second-degree misdemeanor under Florida law. See Fla. Stat. § 790.053.

      After the group pulled into the mall’s parking lot, Wallace headed straight

into the mall while the others momentarily lingered outside the limousine. An FIP

security guard slowly drove past, spotted Sykes, and called in a report to his

colleagues of a man in a battle dress uniform openly carrying a firearm. Five or six

mall security guards, including FIP Chief David Hesselink, arrived in their marked

security cars, got out with their guns drawn, and trained their weapons on the

group. With his hands in the air, Sykes approached Hesselink, voluntarily

produced his Georgia identification card and firearm permit, and informed

Hesselink that he and Wallace were providing security for the rest of the group

while they filmed around Orlando. Sykes also told Hesselink that Wallace, who

had already entered the mall, was a Georgia police officer and was carrying a

concealed firearm. Although Hesselink knew that it was a second-degree

misdemeanor in Florida to openly carry a firearm, he neglected to mention that fact

to Sykes and allowed him to enter the mall with his exposed handgun.

      Once Hesselink released the group, Bartley, Higgs, Woodson, and Ivory

overheard him say into his radio that everything was “all clear” and that the group

members were just a bunch of “‘wannabe’ rappers.” Taking umbrage at that final


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remark, Ivory shot back, “Just like you a ‘wannabe’ cop.” Hesselink replied,

“We’ll see about that.” After the remaining group members entered the mall,

Hesselink promptly placed a 911 call to the Orange County Sheriff’s Department,

reporting “two individuals, signal zero, inside [the] mall,” one of whom was

“supposedly a Georgia police officer” and the other who was working

“protection,” sporting a battle dress uniform with an exposed firearm, and had

produced a Georgia firearm permit when stopped outside the mall. A “signal zero”

denotes either armed, use caution, or armed threat, and it automatically triggers an

urgent “code three” police response with “lights and sirens.” Hesselink also told

the 911 operator that his security guards were themselves “signal zero,” suggesting

that he understood that signal to simply mean armed, and that they were going to

“block off the entrances” to the mall and “try to contain [the two men] or at least

know where they are once your deputies get here.” Hesselink did not mention

anyone but Sykes and Wallace, nor did he expressly request any particular police

response.

      While the plaintiffs insist that a “signal zero” unambiguously signifies a

single thing — an armed threat — the record does not support that limited

interpretation. At trial, both the 911 operator and the 911 dispatcher testified that it

can mean either armed person or armed threat; that it is an appropriate signal to use

when someone is openly carrying a firearm; and that they would have converted


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Hesselink’s 911 call into a “signal zero” had he simply reported a man carrying an

exposed firearm. Even the plaintiffs’ own security expert, Donald Schultz,

conceded that a “signal zero” can signify “armed and caution” or “armed and

dangerous,” and the parties’ final joint pretrial statement indicated that it is “police

language for an armed person/threat.”

       Within minutes of dialing 911 (and while he was still on the phone),

Hesselink could hear a police helicopter circling overhead and patrol units “coming

code three,” facts which he relayed to the 911 operator. Nearly a dozen police

officers, which included an emergency response team clad in tactical uniforms and

equipped with automatic weapons, arrived on the scene. When the film crew

eventually exited the mall together, they were confronted by the full contingent of

armed officers yelling “watch out for crossfire” and commanding them to lay face

down on the ground with their hands behind their backs. The officers handcuffed

and frisked some of the group members, briefly questioned them, and then released

each and every one of them without charge or arrest. Bartley overheard one of the

police officers say, “security lied to us.” Once the entire incident had blown over,

a number of FIP security personnel, including Chief Hesselink, openly laughed

about it.




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                               II. PROCEDURAL HISTORY

       In July 2010, Bartley, Higgs, Woodson, Bryson, Wallace, Ivory, and Sykes

filed a civil suit in Florida against FIP and the Sheriff of Orange County, alleging

claims under state and federal law for unlawful detention, illegal search, assault

and battery, and intentional infliction of emotional distress. 2 After the case was

removed to federal court, Wilson joined the suit and the plaintiffs filed an amended

complaint. That complaint sought compensatory and punitive damages against FIP

under Florida law for (1) false detention or imprisonment; (2) illegal search,

seizure, and battery; and (3) intentional infliction of emotional distress. The crux

of the plaintiffs’ claims against FIP was that “[a]s a direct and proximate result of .

. . Chief Hesselink’s 911 call to the [police], [they were] physically stopped,

forcibly assaulted, detained and forced at gunpoint to lay face first on the ground

by the [police] as [they attempted] to leave the Magic Outlet Mall.”

       FIP moved for summary judgment on each and every claim against it,

asserting that the undisputed facts showed that Sykes was openly carrying a

firearm in violation of Florida law, which provided probable cause to lawfully

detain all of the plaintiffs. The district court granted the motion as to Sykes’


       2
         FIP also asserted claims, either in state or federal court, against Kim’s Enterprise of
Orlando, Inc., the owner of the Magic Outlet Mall, and Chom Kim, the last known member-
manager of Magic Mall, LLC. The district court ultimately entered defaults against both
defendants; Kim’s Enterprise of Orlando for failing to respond to the plaintiffs’ amended
complaint, and Chom Kim for failing to comply with the court’s case management order.
Neither defendant is a party to this appeal.
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claims given the clear probable cause to detain him for illegally carrying an

exposed firearm. But the court denied the motion as to the claims of the seven

remaining plaintiffs, observing that FIP had offered no argument or authority to

support its “implicit proposition” that the probable cause to detain Sykes “extended

to the other Plaintiffs in this case who are not accused of openly carrying a weapon

or committing any other violation of law.”

      Soon after, FIP filed a second motion for summary judgment on the claims

of the seven remaining plaintiffs, which the court again granted in part and denied

in part. The court granted summary judgment to FIP on the plaintiffs’ claims for

illegal search, seizure, and battery. But it denied summary judgment on the claims

for false detention and intentional infliction of emotional distress, finding that

genuine issues of material fact existed as to whether FIP “directly or indirectly

procured” the plaintiffs’ detention by the police, whether Hesselink’s 911 call

“went beyond merely providing information” and “was made in good faith,” and

whether his “conduct in calling 911 in the absence of any cognizable threat was

reckless, if not intentional, because [] of the predicable response of local law

enforcement officers.”

      Before trial, the remaining plaintiffs reached a settlement with the Sheriff of

Orange County and dismissed their claims against him. The case thus proceeded




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to trial on the plaintiffs’ claims against FIP for false detention and intentional

infliction of emotional distress.

       The plaintiffs’ theory at trial, which they presented to the jury during

opening and closing arguments, was that FIP was liable for false detention because

Hesselink intentionally instigated, with malice and in bad faith, the events that

culminated in their detention by needlessly calling 911 and then effectively lying

to the police when he reported a “signal zero” in the absence of any actual or

perceived threat. Critically, the plaintiffs did not contend that the police had acted

unlawfully in briefly detaining them in order to investigate the 911 call. To the

contrary, the plaintiffs, their attorney, and their own expert witness repeatedly

conceded during the course of the trial that the police had acted appropriately

under the circumstances.3 For that very reason, FIP moved for judgment as a

matter of law at the close of the plaintiffs’ case and again at the close of all the

evidence. The district court granted the motion as to the plaintiffs’ claims for

intentional infliction of emotional distress, but took the remaining portions of FIP’s

motion under advisement and submitted the surviving claims of false detention to

the jury.


       3
         During opening and closing arguments, the plaintiffs’ lawyer frankly acknowledged that
the police had “acted appropriately” and “didn’t do anything wrong.” When Bartley, Higgs, and
Wallace were asked on cross-examination whether the police had acted lawfully or appropriately
in response to Hesselink’s 911 call, each one answered in the affirmative. The plaintiffs’ expert
witness likewise acknowledged before the jury that the police had acted appropriately for “the
type of call” that they had received.
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      The court instructed the jury that in order to hold FIP liable for false

detention, it had to find that the private security company intentionally caused the

plaintiffs’ restraint and that the restraint was unreasonable, unwarranted, and

“without lawful authority,” meaning that “the Orange County Sherriff’s

Department did not act under color of or claim of lawful authority.” In accordance

with Florida’s recognized “privilege of private citizens to provide, without fear of

subsequent tort liability, information about suspected criminal activities to law

enforcement officials,” the court also admonished the jury that “[i]f the private

citizen makes an honest, good faith mistake in reporting an incident, the mere fact

that his communication to an officer may have caused the victim’s restraint does

not make him liable when he did not in fact request any detention.” See Pokorny

v. First Fed. Savs. & Loan Ass’n of Largo, 

, 682 (Fla. 1980). And

on the issue of compensatory damages, the court instructed the jury that if it found

FIP guilty of procuring a false detention, it should award a sum that would “fairly

and adequately compensate” each plaintiff for his or her “mental anguish,

inconvenience, humiliation and loss of capacity for the enjoyment of life.” It

cautioned, however, that “[t]here is no exact standard for measuring such damage,”

only that the measure of damages “should be fair and just in light of the evidence.”

      During its deliberations, the jury submitted a question to the court about

damages: “If we were to find for the plaintiff’s [sic], what monetary guidelines or


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limits do we have regarding compensatory or/and punitive damages[?]” Without

disclosing the jury’s question to either party or giving them an opportunity to

object to any proposed response, the court reiterated that “there is no exact

standard for measuring [compensatory damages]” and that “[t]he amount should be

fair and just in light of the evidence.” Unlike its response to the punitive damages

portion of the jury’s question, which specifically directed the jury to “review . . .

the punitive damages instruction,” the court did not expressly refer the jury to the

remainder of its original instructions on compensatory damages, including those

limiting such damages to the mental anguish, inconvenience, humiliation, and loss

of capacity for enjoyment of life suffered by each plaintiff.

      The jury returned a verdict in favor of the plaintiffs on their false detention

claims, specifically finding that FIP “participate[d], directly or indirectly by

procurement, in the [plaintiffs’] restraint” and that the restraint was “unreasonable,

unwarranted and without legal authority.” It awarded each of the seven remaining

plaintiffs $50,000 in compensatory damages, for a total of $350,000, and awarded

$2 million in punitive damages, which was later reduced by the court to

$1,050,000, the maximum authorized by Florida law. See Fla. Stat. § 768.73(1)(a)

(providing that “an award of punitive damages may not exceed the greater of . . .

[t]hree times the amount of compensatory damages awarded to each claimant” or

“[t]he sum of $500,000.”). After the jury issued its verdict, the district court


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denied FIP’s outstanding motion for judgment as a matter of law on the false

detention claims and entered judgment in the plaintiffs’ favor.

      FIP later filed a renewed motion for judgment as a matter of law or, in the

alternative, for a new trial. FIP contended that it was entitled to judgment as a

matter of law on the plaintiffs’ false detention claims for two independent reasons:

(1) the undisputed testimony of the plaintiffs and their expert witness established

that the police detention was lawful, which necessarily negated any claim for false

detention; and (2) Hesselink’s 911 call accurately informed the police about the

commission of a crime and did not request any particular police response, which

meant that FIP could not be held liable for procuring the plaintiffs’ detention. FIP

alternatively argued that it was entitled to a new trial because the district court

failed to disclose the jury’s question on damages and its response, by quoting “only

a limited portion” of the instruction on compensatory damages, materially altered

those instructions. The plaintiffs did not dispute FIP’s assertion that their detention

at the hands of the police was lawful; instead, they argued that Hesselink had

“maliciously” and “without good faith” set the whole incident in motion.

      Although the district court agreed that a claim for false detention under

Florida law requires proof of an unlawful detention, it nevertheless denied FIP’s

renewed motion for judgment as a matter of law. The court reasoned that the

plaintiffs’ trial testimony “[fell] short of undisputed testimony that [the police]


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detention of Plaintiffs was lawful,” that “there was sufficient evidence before the

jury to support a finding that Plaintiffs’ restraint by [the police] was unlawful,” and

that “[t]he jury was free . . . to come to its own conclusion about the lawfulness of

the detention by [the police].” The court also denied FIP’s request for a new trial,

observing that it was not required to “assemble the attorneys to go over” the jury’s

question on damages, particularly given that the question was “rather simple,” and

that its response to the jury’s question did not alter the given instructions on

compensatory damages.

                                       III. DISCUSSION

       FIP challenges the district court’s denial of its renewed motion for judgment

as a matter of law, contending that the challenged detention by the Orange County

Sheriff’s Department was not unlawful and, in any event, that it cannot be held

liable for procuring that detention based solely on Hesselink’s 911 call, which

accurately reported that Sykes was illegally carrying an exposed firearm. 4 The

plaintiffs do not directly respond to the contention that their police detention was

lawful; instead, they assert that FIP’s position “begs” the “dispositive” question of

whether Hesselink’s actions in calling 911 and reporting a “signal zero” were

motivated by malice. From that premise, they argue that FIP is not entitled to
       4
        For identical reasons, FIP also challenges the district court’s partial denials of its two
motions for summary judgment. A party may not, however, appeal an order denying summary
judgment after there has been a full trial on the merits. Ortiz v. Jordan, — U.S. —, 

, 888–89 (2011); see also Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 

, 1219 (11th Cir. 2012).
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judgment as a matter of law because the jury reasonably could have found that

Hesselink, after determining that Sykes did not pose an imminent threat and after

letting him enter the mall, should never have called 911, effectively lied to the

police by reporting a “signal zero,” and did so in bad faith and in retaliation for

Ivory’s comment that he was a “‘wannabe’ cop.”

       We review de novo the denial of a motion for judgment as a matter of law,

which “may be granted only if after examining all evidence in a light most

favorable to the non-moving party . . . there is no legally sufficient evidentiary

basis for a reasonable jury to find for that party” on a controlling legal issue.

Myers v. TooJay’s Mgmt. Corp., 

, 1287 (11th Cir. 2011) (quotation

marks omitted); see also Fed. R. Civ. P. 50(a). If the “facts are sufficiently clear

that the law requires a particular result,” the court should remove the case or

certain issues from the jury’s consideration. Weisgram v. Marley Co., 

, 448, 

, 1017 (2000).

       We agree with FIP that it was entitled to judgment as a matter of law on the

plaintiffs’ false detention claims because the plaintiffs did not, and could not,

establish an essential element of those claims — that their brief detention at the

hands of the Orange County Sheriff’s Department was unlawful. 5 In Florida, the


       5
          Given the clear absence of a false or unlawful detention, we need not address FIP’s
alternative argument that it was entitled to judgment as a matter of law because Hesselink’s
actions in calling 911 cannot serve as a basis for imposing tort liability. We also agree with FIP
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largely synonymous torts of false arrest, false detention, and false imprisonment

are “defined as ‘the unlawful restraint of a person against his will, the gist of which

action is the unlawful detention of the plaintiff and the deprivation of his liberty.’”

Escambia Cnty. Sch. Bd. v. Bragg, 

, 572 (Fla. 1st DCA 1996)

(quoting Johnson v. Weiner, 

, 700 (Fla. 1944)) (emphasis added); see

also Mathis v. Coats, 

, 1289 (Fla. 2d DCA 2010) (“The essential

elements of a cause of action for false imprisonment include: (1) the unlawful

detention and deprivation of liberty of a person; (2) against that person’s will;

(3) without legal authority or ‘color of authority’; and (4) which is unreasonable

and unwarranted under the circumstances.”) (emphasis added). At a bare

minimum, a plaintiff asserting a Florida claim for false detention must establish

detention “contrary to his will and the unlawfulness of the detention.” Johnson v.




that the district court erred in responding to the jury’s question on damages without first
notifying the parties of its contents and affording them an opportunity to be heard. See Rogers v.
United States, 

, 39, 

, 2095 (1975) (“[T]he jury’s message should have
been answered in open court and [the] petitioner’s counsel should have been given an
opportunity to be heard before the trial judge responded.”); Fillippon v. Albion Vein Slate Co.,

, 81, 

, 436 (1919) (“In this case the trial court erred in giving a
supplementary instruction to the jury in the absence of the parties and without affording them an
opportunity either to be present or to make timely objection to the instruction.”); United States v.
McDuffie, 

, 241 (5th Cir. 1976) (“When a communication is received from the jury,
counsel should be informed of its substance and afforded an opportunity to be heard before a
supplemental charge is given.”). But FIP’s entitlement to judgment as a matter of law on the
plaintiffs’ sole surviving claims for false detention obviates any need for us to consider whether
that error was harmless. See 

(recognizing that judicial errors of this
kind are subject to harmless error review).
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Barnes & Noble Booksellers, Inc., 

, 1116 (11th Cir. 2006) (quoting

Rivers v. Dillards Dep’t Store, Inc., 

, 1331 (Fla. 1st DCA 1997)).

      Tracking the definition of a false detention, the district court instructed the

jury that FIP could not be held liable unless the police had acted “without lawful

authority” in detaining the plaintiffs. Yet the plaintiffs, their attorney, and their

own expert witness conceded throughout every phase of the trial, including in

opening and closing arguments, that the police had “acted appropriately” and

“didn’t do anything wrong” in detaining them. Those concessions, coupled with

the plaintiffs’ complete failure to even suggest to the jury that the police detention

was unlawful, fatally undermined their claims for false detention. Cf. N. Ins. Co.

of N.Y. v. Chatham Cnty., Ga., 

, 195, 

, 1694 (2006)

(finding a defendant’s concession below that it was not entitled to sovereign

immunity to be dispositive on that question); Ross v. Jefferson Cnty. Dep’t of

Health, 

, 661 (11th Cir. 2012) (holding that the plaintiff’s deposition

testimony that she did not feel “like her termination had anything to do with her

race” was sufficient to warrant summary judgment in the employer’s favor on her

racial discrimination claim) (brackets and ellipsis omitted).

      The plaintiffs’ unflagging contention that the lawfulness of the police

detention is irrelevant because Hesselink’s actions in calling 911 were motivated

by malice and born of bad faith is sharply at odds with Florida law, the district


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court’s jury instructions, and the very nature of the claim that they chose to bring.

See, e.g., 

; St. Petersburg v. Austrino, 

,

957 (Fla. 2d DCA 2005) (“The gravamen of the tort of false arrest is the unlawful

restraint of a person against that person’s will.”); Escambia Cnty. Sch. Bd., 

at 572. As the Florida Supreme Court has explained, if the challenged detention

or “imprisonment is under legal authority it may be malicious but it cannot be

false.” 

. In other words, the subjective motives skulking

behind a detention are irrelevant if that detention is lawful. Cf. Graham v. Connor,

, 397, 

, 1872–73 (1989) (emphasizing that “the

subjective motivations of the individual officers,” including whether they acted

maliciously or in bad faith, have “no bearing on whether a particular seizure is

‘unreasonable’ under the Fourth Amendment”). Indeed, if Hesselink’s allegedly

malicious motives in calling 911 were enough to sustain liability on a false

detention claim, it is difficult to see why the district court granted summary

judgment in favor of FIP on Sykes’ false detention claim; it was the same call,

made for the same purpose, with the same motive that led to the detention of the

entire film crew as they exited the mall together.

      Even without the plaintiffs’ concessions and fundamentally flawed theory of

liability, the probable cause to detain Sykes for illegally carrying an exposed

firearm authorized the police to briefly detain the plaintiffs — all of whom


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accompanied Sykes as he exited the mall — to ensure officer safety. 6 “[F]or safety

reasons, officers may . . . briefly detain individuals about whom they have no

individualized reasonable suspicion of criminal activity in the course of conducting

a valid [investigatory] stop as to other related individuals,” particularly when the

officers are — as they were here — operating in “the known presence of firearms.”

United States v. Lewis, 

, 1306, 1309 (11th Cir. 2012); see also

Maryland v. Wilson, 

, 415, 

, 886 (1997) (holding that an

officer making a valid traffic stop of a driver “may order passengers to get out of

the car pending completion of the stop” to ensure officer safety); Michigan v.

Summers, 

, 702–03, 

, 2594 (1981) (holding that

officers conducting a valid search of a residence may detain an occupant without

probable cause in order to minimize “[t]he risk of harm to both the police and the

occupants”); United States v. Clark, 

, 1285 (11th Cir. 2003) (“[A]n

officer may ‘control’ persons not suspected of wrongdoing if they are near a street

encounter with persons reasonably suspected of criminal activity.”); Hudson v.


       6
          Although FIP, in moving for judgment as a matter of law, did not specifically argue —
as it does on appeal — that the police were entitled to detain the plaintiffs to ensure officer and
public safety, it did make the broader claim that the challenged detention was lawful. Having
preserved that broader claim in the district court, FIP is not precluded from raising new
arguments in support of that claim on appeal. See Yee v. City of Escondido, 

, 534,

, 1532 (1992) (“Once a federal claim is properly presented, a party can make any
argument in support of that claim; parties are not limited to the precise arguments they made
below.”); Pugliese v. Pukka Dev., Inc., 

, 1304 n.3 (11th Cir. 2008) (“Although
new claims or issues may not be raised [for the first time on appeal], new arguments relating to
preserved claims may be reviewed on appeal.”).
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Hall, 

, 1297 (11th Cir. 2000) (“[A] police officer performing his

lawful duties may direct and control — to some extent — the movements and

location of persons nearby, even persons that the officer may have no reason to

suspect of wrongdoing.”); State v. Cromatie, 

, 1077 (Fla. 2d DCA

1996) (holding that an officer conducting a valid traffic stop could “detain all

occupants of the car until he completed the search”); Williams v. State, 

, 1208 (Fla. 2d DCA 1994) (holding that an officer who had probable cause to

arrest a fleeing car occupant could briefly detain the other occupants while he gave

chase because it was “a reasonable and necessary response to the exigent

circumstances confronting the deputy that demanded immediate action”). 7



        7
          The police were also authorized to briefly detain the plaintiffs without individualized
suspicion of wrongdoing under the exigent circumstances exception to the Fourth Amendment’s
usual requirements, which permits law enforcement to conduct a suspicionless search or seizure
when confronted with an emergency situation that, among other things, requires immediate
action for the protection or preservation of life. See Mincey v. Arizona, 

, 392, 

, 2413 (1978) (“We do not question the right of the police to respond to emergency
situations. . . . The need to protect or preserve life or avoid serious injury is justification for what
would be otherwise illegal absent an exigency or emergency.”) (quotation marks omitted);
Seibert v. State, 

, 468 (Fla. 2006) (“[P]olice may enter a residence without a
warrant if an objectively reasonable basis exists for the officer to believe that there is an
immediate need for police assistance for the protection of life or substantial property interests.”);
Campbell v. State, 

, 1070 (Fla. 2d DCA 1985) (“The preservation of human life
is paramount to the right of privacy protected by search and seizure laws . . . .”). In light of
Hesselink’s 911 call reporting two “signal zeros” in the mall, one of whom was openly carrying
a firearm and wearing a battle dress uniform, the police officers had an objectively reasonable
basis for concluding that they were facing a potentially life-threatening emergency, which
justified the brief detention of Sykes and his companions until the officers could investigate the
situation and allay any fears of a possible threat. See In re J.B., 

, 491 (Fla. 4th
DCA 1993) (“A 911 call is a cry to the authorities for help. And until the investigating officer is
reasonably satisfied that no emergency exists, he is within his legal duty to investigate such calls
in a manner consistent with their emergency nature.”).
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      In denying FIP’s renewed motion for judgment as a matter of law, the

district court reasoned that the plaintiffs’ trial testimony “[fell] short of undisputed

testimony that [the police] detention of Plaintiffs was lawful,” that “there was

sufficient evidence before the jury to support a finding that Plaintiffs’ restraint by

[the police] was unlawful,” and that the “jury was free to . . . come to its own

conclusion about the lawfulness of the detention.” The court emphasized that the

video of the police detention “depicted the [Sheriff’s Department] detaining

everybody in the group, male and female, even though they were not accused of

openly carrying a weapon or committing any other violation of law.” Each of the

court’s underlying premises, stated or unstated, is wrong.

      First, the district court’s assessment of the plaintiffs’ trial testimony wholly

ignored the fact that their entire theory of liability, as presented to the jury and

reiterated on appeal, is contrary to Florida law and the court’s own jury

instructions, both of which required a showing that the police detention was false

or unlawful. Second, the court erroneously surmised that the lawfulness of a

detention is ultimately a factual question for a jury to decide, not a legal question

to be resolved by a court. See Alamo Rent-A-Car, Inc. v. Mancusi, 

, 1357 (Fla. 1994) (“When the facts relied on to show probable cause are in

dispute, their existence is a question of fact for the determination of the jury; but

their legal effect, when found or admitted to be true, is for the court to decide as a


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question of law.”) (quotation marks omitted) (emphasis added). In the context of a

motion for judgment as a matter of law, where the evidence must be construed in

the light most favorable to the non-moving party, the question of whether a

particular detention was lawful is a “pure issue of law.” Cf. Cottrell v. Caldwell,

, 1486 n.3 (11th Cir. 1996) (“In determining the facts for summary

judgment purposes, we, like the district court, are required to view the evidence in

the light most favorable to the plaintiff. When that is done, a pure issue of law is

created.”).

      Finally, the court also mistakenly assumed that the Sheriff’s Department

could detain the plaintiffs only if it had individualized suspicion that they

themselves had committed a crime. But as we have explained, “individualized

suspicion is not an absolute prerequisite” for every lawful detention, including

where — as here — the police briefly detain members of a group while they

investigate suspected criminal activity of a nearby associate. See 

, 1308 (“Once the officers had [reasonable suspicion of criminal activity],

they were not obliged to let three of the four associated individuals walk about

freely while they investigated McRae, in light of the officers’ powerful concern for

their own safety.”); see also Samson v. California, 

, 855 n.4, 

, 2201 n.4 (2006) (“The touchstone of the Fourth Amendment is

reasonableness, not individualized suspicion.”).


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      In sum, even when the evidence is viewed in the light most favorable to the

plaintiffs, there was no legally sufficient basis to conclude that they had been

unlawfully detained by the police, an essential element of their claims for false

detention. See 

. The plaintiffs simply cannot prevail on a

false detention claim absent a false detention. Contrary to the district court’s

decision, FIP is entitled to judgment as a matter of law on the plaintiffs’ sole

remaining claims for false detention, including the compensatory and punitive

damages awarded on those claims. We therefore reverse the district court’s denial

of FIP’s renewed motion for judgment as a matter of law and remand with

instructions that the court enter judgment for FIP.

      REVERSED AND REMANDED.




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