Case: 13-14290     Date Filed: 09/25/2014   Page: 1 of 17


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 13-14290
                            ________________________

                    D.C. Docket No. 6:12-cv-00723-RBD-KRS



DWAINE HARGIS,

                                                                 Plaintiff-Appellant,

                                           versus

CITY OF ORLANDO, FLORIDA,
OFFICER THEODIS SPRINGER,
in his official and individual capacity,

                                                             Defendants-Appellees,


                            ________________________

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

                                (September 25, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
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       Appellant Dwaine Hargis appeals the district court’s grant of summary

judgment to Theodis Springer, an officer with the Orlando Police Department, and

the City of Orlando (collectively, the Appellees) on Hargis’s second amended

complaint, which alleged causes of action under 42 U.S.C. § 1983 and state law

arising from Officer Springer’s investigatory stop and subsequent arrest of Hargis.

After review of the record and consideration of the parties’ briefs, and having had

the benefit of oral argument, we conclude none of the arguments raised by Hargis

have merit and we therefore affirm.

                                     I. BACKGROUND

       Before beginning his shift on the evening of May 12, 2008, Officer Springer

received a briefing about recent commercial burglaries that had been taking place

in the early morning hours along International Drive in Orlando, Florida. Officer

Springer’s squad, as well as several other units, were conducting an operation and

were therefore on the lookout for potential burglars when they went out on patrol

that evening.

       While on patrol along the International Drive corridor that night, Officer

Springer observed Hargis at approximately 1:00 a.m. or 2:00 a.m. driving slowly

from the back of a restaurant toward the front of the building.1 In his deposition,


       1
         Although Hargis stated he was driving to a gas station to purchase items and that he was
driving slowly because he was in a parking lot, Hargis’s reasons for his actions are immaterial to
our qualified immunity analysis. Instead, the issue is whether a reasonable officer in Springer’s
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Hargis testified that after he drove slowly from around the side of the building, and

then turned around and headed back the way he had come, Officer Springer

activated the lights on his marked patrol car and Hargis pulled his car over.

Officer Springer immediately called for backup because he was concerned about

his safety given the time of day, the fact that he was alone, and because Hargis’s

car contained three individuals.2

       Hargis’s and Officer Springer’s versions of events differ significantly as to

what happened after Officer Springer stopped Hargis. For instance, Officer

Springer testified in his deposition that he waited for backup to arrive and that he

and the other officers directed Hargis to exit the vehicle and walk back to them.

We recount the facts in the light most favorable to Hargis, however, because this

case comes to us on summary judgment. See Penley v. Eslinger, 

,

848 (11th Cir. 2010) (“In determining the relevant set of facts at the summary

judgment stage, we must view all evidence and make any reasonable inferences




place could have thought the facts were such that he could reasonably conclude Hargis was
engaging in or about to engage in criminal activity. See Post v. City of Fort Lauderdale, 

, 1559 n.8 (11th Cir. 1993). As we have explained, “to defeat summary judgment because
of a dispute of material fact, a plaintiff facing qualified immunity must produce evidence that
would allow a fact-finder to find that no reasonable person in the defendant’s position could have
thought the facts were such that they justified defendant’s acts.” 

       2
          It is unclear whether Officer Springer observed the other two individuals in the car prior
to stopping the vehicle. Whether Officer Springer observed the other two individuals before or
after stopping the car, however, is immaterial to our resolution of the issues on appeal.


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that might be drawn therefrom in the light most favorable to the non-moving

party.” (internal quotation marks omitted)).

      Accepting Hargis’s account of the incident, after Hargis stopped his car,

Officer Springer approached the car and asked Hargis for his license and

registration. Hargis handed the officer his information and asked why he had been

stopped. Officer Springer did not respond and walked back to his police car.

      Approximately 30 seconds later, Hargis’s car was surrounded by police

officers and one of the officers pointed a shotgun at Hargis. The other officers also

had their guns drawn. The officer with the shotgun stood by the door on the

driver’s side of Hargis’s car and held the shotgun inches away from Hargis’s face

while telling Hargis that he would shoot Hargis in the face if he moved. Other

officers opened the passenger side door and the back passenger door.

      Officer Springer returned to Hargis’s car and asked Hargis to exit the

vehicle. Hargis asked why he needed to get out of the car, and the officer with the

shotgun told Hargis to exit the vehicle immediately. During his deposition, Officer

Springer testified Hargis was acting unusually nervous and that he was shaking.

Hargis was taken to the back of his car where Officer Springer grabbed his arm and

began to search him. Hargis protested that he did not want to be searched and

jerked his arm away. Another officer grabbed Hargis and he was put in handcuffs

and then searched. During the search, Officer Springer discovered a gun in a


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holster on Hargis’s waistband. Hargis did not have a permit for the weapon. After

Officer Springer found the gun, Hargis was thrown to the ground and the search

continued. Eventually Hargis was told to get on the curb. Hargis testified in his

deposition that when he did not move quickly enough, an officer kicked him in the

back of the head, causing his chin to hit the curb.

      Approximately 30 minutes later, Hargis was put in a squad car and taken to

the police station. When Hargis was taken to the jail, he was refused admission

because of the injuries on his chin. Accordingly, officers took Hargis to the

hospital where he received stitches before he was returned to the jail.

      Hargis was subsequently charged in state court with being a felon in

possession of a firearm. During his state criminal proceedings, Hargis filed a

motion to suppress the gun found on his waistband as well as all of the evidence

obtained as a result of Officer Springer’s stop. The trial court granted the motion,

and the State of Florida voluntarily dismissed its appeal of that ruling. The State

ultimately dropped all charges against Hargis.

      Hargis then filed this lawsuit against the City of Orlando (the City) as well

as Officer Springer in his individual and official capacities. In his second amended

complaint, Hargis alleged in pertinent part that Officer Springer violated the Fourth

and Fourteenth Amendments by intentionally intruding upon his solitude,

seclusion, or private affairs and concerns, that Officer Springer’s intrusion “would


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be highly offensive to a reasonable person and was unwarranted and unjustified,”

and that Officer Springer “wrongfully and unlawfully, and without any order,

warrant or process of any Court authorizing him to do so” caused Hargis to be

wrongfully arrested and imprisoned. Hargis further alleged that the City, through

its employees and agents acting in the course and scope of their duties as police

officers, searched him without consent or probable cause.

      The Appellees moved for summary judgment, arguing that Officer Springer

was entitled to qualified immunity because he had reasonable suspicion to stop

Hargis. The Appellees further maintained that the City was entitled to summary

judgment because Officer Springer did not violate Hargis’s constitutional rights

and it did not have a policy or custom that caused a violation of Hargis’s

constitutional rights.

      In response, Hargis argued that Officer Springer violated his clearly

established right to be free from unreasonable searches and seizures. Hargis

maintained that none of his actions in the parking lot were consistent with criminal

behavior and that the time of day and history of criminal activity in the area did not

justify the stop. Hargis stated Officer Springer lacked arguable probable cause to

arrest him because it was not objectively reasonable to believe probable cause

existed for an arrest and thus Officer Springer was not entitled to qualified

immunity. Hargis contended the facts showed only that he was using the parking


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lot as an alternate route to his destination and Officer Springer therefore lacked

arguable probable cause to stop him. 3 Hargis further asserted that, although

Officer Springer attempted to justify his subsequent detention and search of Hargis

based on the fact Hargis was acting unusually nervous, Officer Springer failed to

acknowledge that another officer had his shotgun pointed at Hargis’s face. Hargis

also maintained that Officer Springer was collaterally estopped from arguing the

stop was supported by reasonable suspicion because the state trial court already

settled that issue in granting Hargis’s motion to suppress during his criminal

proceedings.

       Regarding his claims against the City, Hargis argued the City’s training and

supervision was deficient and the City ignored the deficiencies. Specifically, the

City failed to train police officers about the proper standard for conducting

investigatory stops and it had a policy which encouraged officers to detain

individuals in an unlawful manner.

       The district court granted the Appellees’ motion for summary judgment as to

the § 1983 claims. The district court first found that collateral estoppel did not

apply because Officer Springer and the City were not parties to Hargis’s state


       3
          Although Hargis argued that Officer Springer lacked arguable probable cause to stop
him, Officer Springer was entitled to qualified immunity if there was arguable reasonable
suspicion for the stop. See Jackson v. Sauls, 

, 1166 (11th Cir. 2000) (“When an
officer asserts qualified immunity, the issue is not whether reasonable suspicion existed in fact,
but whether the officer had arguable reasonable suspicion to support an investigatory stop.”
(internal quotation marks omitted)).
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criminal proceedings, nor were they in privity with the State of Florida. Second,

the court found that Officer Springer was entitled to qualified immunity because he

had arguable reasonable suspicion to stop Hargis, the search of Hargis’s person

was justified based on concerns about officer safety, and Officer Springer had

probable cause to arrest Hargis. The district court also found that Hargis waived

any argument that Officer Springer lacked probable cause to arrest him because he

was not a convicted felon. Third, the district court found the City was entitled to

summary judgment because Hargis failed to establish his constitutional rights were

violated. The district court then declined to exercise supplemental jurisdiction

over Hargis’s state law claim for false arrest and dismissed it without prejudice.

This appeal followed.

                          II. STANDARD OF REVIEW

      “We review de novo the grant of summary judgment on qualified immunity

grounds, drawing all inferences and viewing all of the evidence in a light most

favorable to the nonmoving party.” Gilmore v. Hodges, 

, 272 (11th

Cir. 2013). “Summary judgment is appropriate if there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Walden v. Ctrs. for Disease Control & Prevention, 

, 1283 (11th Cir.

2012) (internal quotation marks omitted). We also review de novo the

applicability of collateral estoppel principles. Tampa Bay Water v. HDR Eng’g,


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Inc., 

, 1177 (11th Cir. 2013). We may affirm the district court’s

grant of summary judgment on any ground supported by the record. 

.

                                      III. DISCUSSION

       Hargis raises three main arguments 4 on appeal: (1) collateral estoppel

principles precluded a grant of summary judgment to Officer Springer on the basis

that he had reasonable suspicion to stop Hargis; (2) Officer Springer was not

entitled to qualified immunity because he lacked reasonable suspicion to stop

Hargis; and (3) the district court erred in finding Officer Springer had probable

cause to arrest him. We address each issue in turn.

A. Collateral Estoppel

       Hargis argues that when there has been a previous judicial determination an

officer’s actions violated the Fourth Amendment, the officer should be precluded


       4
          Hargis also argues that (1) as a matter of public policy and fundamental fairness,
collateral estoppel should bar an officer from being able to avail himself of qualified immunity
when a court has granted a motion to suppress in a plaintiff’s criminal proceedings; (2) the
definition of the word “arguable” means “open to dispute” and thus summary judgment cannot
be granted on the basis of arguable reasonable suspicion; (3) this Court should reconsider the
rule that a lack of privity between an officer and the State of Florida renders collateral estoppel
inapplicable; (4) this Court has implied that when a court has previously determined there was a
Fourth Amendment violation, qualified immunity is precluded as a matter of law; (5) the cases
on which the district court relied to conclude Officer Springer had arguable reasonable suspicion
are distinguishable; (6) several district courts have found reasonable suspicion lacking in similar
circumstances; and (7) this Court should follow the Florida state courts’ interpretation of the
reasonable suspicion standard. To the extent these arguments are not addressed by our
discussion of Hargis’s three main issues, we conclude they lack merit and do not warrant further
elaboration.

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from obtaining summary judgment on the basis of qualified immunity. Hargis also

maintains the district court erred in finding the Appellees were not in privity with

the State of Florida such that he could not avail himself of the doctrine of collateral

estoppel.

      We have held that “[i]t is settled that rules of collateral estoppel apply to

actions brought under 42 U.S.C. § 1983 and can give preclusive effect to

judgments rendered in state criminal proceedings.” Webb v. Ethridge, 

, 549 (11th Cir. 1988) (citing Allen v. McCurry, 

, 97-98 (1980)).

Accordingly, we look to the Florida law of collateral estoppel to determine whether

the state trial court’s grant of Hargis’s motion to suppress was entitled to

preclusive effect in his § 1983 action. See id.; see also Hadley v. Gutierrez, 

, 1332 (11th Cir. 2008) (“Because Defendants rely on a state criminal

judgment to bar a federal action, we look to the state’s law governing collateral

estoppel.”).

      “In Florida, collateral estoppel applies if (1) an identical issue, (2) has been

fully litigated, (3) by the same parties or their privies, and (4) a final decision has

been rendered by a court of competent jurisdiction.” Winn-Dixie Stores, Inc. v.

Dolgencorp, LLC, 

, 1036 (11th Cir. 2014) (internal quotation marks

omitted). First, Officer Springer is not collaterally estopped from arguing he had

reasonable suspicion to stop Hargis because Officer Springer was not a party to


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Hargis’s state criminal proceedings, nor was he in privity with the State of Florida.

See Gentile v. Bauder, 

, 783 (Fla. 1998) (explaining a police officer

was not a party to a defendant’s state criminal proceedings nor was the officer in

privity with the State of Florida for purposes of collateral estoppel). As the Florida

Supreme Court has explained, “[p]rosecutors represent the interests of the people

of the State of Florida, not the interests of the arresting police officer,” and thus

police officers have no greater interest in the outcome of criminal proceedings

“than any other citizen of [the] state.” 

estoppel is inapplicable because the issue before the state

trial court was not identical to the issue in Hargis’s § 1983 suit. See 

before the trial court was whether Officer Springer had reasonable suspicion to

conduct an investigatory stop. The issue in Hargis’s federal case, by comparison,

is whether Officer Springer had arguable reasonable suspicion. See Jackson v.

Sauls, 

, 1166 (11th Cir. 2000) (“When an officer asserts qualified

immunity, the issue is not whether reasonable suspicion existed in fact, but

whether the officer had arguable reasonable suspicion to support an investigatory

stop.” (internal quotation marks omitted)). As the Florida Supreme Court has aptly

noted, to accept the argument asserted by Hargis “would mean that all suppression

orders would automatically trigger section 1983 liability—a ludicrous result.”

(internal quotation marks omitted). Hargis’s argument


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also ignores the fundamental purpose of the qualified immunity doctrine, which is

to shield from liability “all but the plainly incompetent or those who knowingly

violate the law,” Franklin v. Curry, 

, 1252 (11th Cir. 2013) (internal

quotation marks omitted), and thus encompasses police offers who reasonably but

mistakenly conclude reasonable suspicion is present, 

(“A law enforcement official who reasonably but mistakenly concludes that

reasonable suspicion is present is still entitled to qualified immunity.”). The

district court did not err by concluding collateral estoppel was inapplicable to the

instant case.

B. Arguable Reasonable Suspicion

      Hargis contends Officer Springer lacked arguable reasonable suspicion to

pull him over and the district court therefore erred by granting summary judgment

to him on the basis of qualified immunity. Hargis argues the record is devoid of

any indication he committed a traffic infraction and he was driving in a manner

unrelated to criminal activity.

      Contrary to Hargis’s contentions, Officer Springer was entitled to qualified

immunity for his investigatory stop. The parties do not dispute that Officer

Springer was acting within the scope of his discretionary authority when he

stopped Hargis, and Hargis therefore had the burden “to satisfy the following

two-pronged inquiry: (1) whether the facts that a plaintiff has shown make out a


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violation of a constitutional right; and (2) whether the right at issue was clearly

established at the time of the defendant’s alleged misconduct.” 

. It is well established that “an officer may, consistent with the Fourth

Amendment, conduct a brief, investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot.” 

(internal quotation marks and alteration omitted). Whether an officer had

reasonable suspicion to conduct a stop is determined by assessing the totality of the

circumstances to see whether the detaining officer had a particularized and

objective basis for suspecting criminal activity. United States v. Arvizu, 

, 273 (2002). For reasonable suspicion to exist, “the likelihood of criminal

activity need not rise to the level required for probable cause, and it falls

considerably short of satisfying a preponderance of the evidence standard.” 

Furthermore, as noted above, “[w]hen an officer asserts qualified immunity,

the issue is not whether reasonable suspicion existed in fact, but whether the

officer had arguable reasonable suspicion to support an investigatory stop.”

(internal quotation marks omitted).

      Based on the totality of the circumstances, the district court did not err by

finding Officer Springer had arguable reasonable suspicion to believe Hargis was

engaged or about to be engaged in criminal activity. Officer Springer observed a

car driving slowly from behind a closed commercial building to the front of the


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building in the early morning hours in an area he knew to have experienced a

recent string of burglaries. Hargis also changed direction and headed back the way

he had come, essentially making a full lap of the parking lot. That Hargis’s actions

may have been consistent with lawful conduct is immaterial because “[t]he

Supreme Court has made it abundantly clear that, although an individual may

ultimately be engaged in conduct that is perfectly lawful . . . officers may detain

the individual to resolve the ambiguity.” United States v. Lewis, 

,

1304 (11th Cir. 2012) (internal quotation marks and brackets omitted); see also

(explaining that, in deciding to conduct an investigatory

stop, officers may “draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to them

that might well elude an untrained person” (internal quotation marks omitted)). A

reasonable officer in Springer’s position could have believed reasonable suspicion

existed to stop Hargis and he was therefore entitled to qualified immunity.

C. Probable Cause to Arrest

      Hargis argues the district court erred in granting summary judgment to

Officer Springer because there was a genuine dispute of material fact about

whether probable cause existed to arrest him. Specifically, there was a dispute as

to whether Hargis was a convicted felon such that probable cause existed to arrest

him for being a convicted felon in possession of a firearm. Hargis maintains


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nothing in Officer Springer’s deposition or his own deposition supported a finding

there was probable cause to arrest him for being a convicted felon in possession of

a firearm. Hargis also contends the district court erred by granting summary

judgment based on his failure to submit evidence other than his own assertion that

he was not a convicted felon. Hargis does not make any other arguments about the

basis for his arrest.

       We affirm the district court’s grant of summary judgment because Officer

Springer was entitled to qualified immunity. Officer Springer had arguable

probable cause to arrest Hargis for violating § 790.01 of the Florida Statutes, which

prohibits individuals from carrying a concealed firearm. 5 See Lee v. Ferraro, 

, 1195 (11th Cir. 2002) (explaining that “arguable probable cause . . . is

all that is required for qualified immunity to be applicable to an arresting officer”

(emphasis and internal quotation marks omitted)); see also Fla. Stat. § 790.01(2)

(“A person who carries a concealed firearm on or about his or her person commits

a felony of the third degree.”). After restraining Hargis, Officer Springer frisked




       5
          It is irrelevant to our analysis what offense Officer Springer may have announced orally
or in his arrest report as the basis for Hargis’s arrest. See Lee v. Ferraro, 

,
1195-96 (11th Cir. 2002). As we have explained, “when an officer makes an arrest, which is
properly supported by probable cause to arrest for a certain offense, neither his subjective
reliance on an offense for which no probable cause exists nor his verbal announcement of the
wrong offense vitiates the arrest.” 

(internal quotation marks and brackets omitted).


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him and felt a gun in a holster on Hargis’s waistband. 6 A reasonable officer in the

same circumstance and possessing the same knowledge as Officer Springer could

have believed probable caused existed to arrest Hargis for carrying a concealed

firearm on his person. See 

(“Arguable probable cause exists

where reasonable officers in the same circumstances and possessing the same

knowledge as the Defendant could have believed that probable cause existed to

arrest.” (internal quotation marks and brackets omitted)). Accordingly, Officer

Springer was entitled to qualified immunity for his arrest of Hargis.

       Alternatively, Hargis is not entitled to relief on this claim because he failed

to raise his specific argument before the district court in his response to the

Appellees’ motion for summary judgment. In his response, Hargis argued only

that Officer Springer lacked arguable probable cause to arrest him because it was

not objectively reasonable to believe probable cause existed for an arrest. Hargis

never asserted any argument that he was not a convicted felon and he therefore

waived the issue by failing to present it to the district court. See Transamerica

Leasing, Inc. v. Inst. of London Underwriters, 

, 1308 n.1 (11th Cir.

2001); see also OPIS Mgmt. Res., LLC v. Sec’y Fla. Agency for Health Care

Admin., 

, 1297 n.7 (11th Cir. 2013) (“[T]he specific argument
       6
         Hargis does not make any argument in his initial brief regarding Officer Springer’s pat
down. See Access Now, Inc. v. Sw. Airlines Co., 

, 1330 (11th Cir. 2004) (“[T]he
law is by now well settled in this Circuit that a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.”).


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advanced on appeal was not sufficiently raised before the district court and we will

not address it.”).

                               IV. CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment.

      AFFIRMED.




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