Filed: Jul. 07, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 14-10447 Date Filed: 07/07/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10447 Non-Argument Calendar _ D.C. Docket No. 5:12-cv-00325-MW-EMT BRIAN MEAD, Plaintiff - Appellee, versus FRANK MCKEITHEN, et al., Defendants, DOUG PIERCE, Defendant - Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (July 7, 2014) Before PRYOR, MARTIN, and COX, Circuit Judges. PER CURIAM: Case: 14-10447 Da
Summary: Case: 14-10447 Date Filed: 07/07/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10447 Non-Argument Calendar _ D.C. Docket No. 5:12-cv-00325-MW-EMT BRIAN MEAD, Plaintiff - Appellee, versus FRANK MCKEITHEN, et al., Defendants, DOUG PIERCE, Defendant - Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (July 7, 2014) Before PRYOR, MARTIN, and COX, Circuit Judges. PER CURIAM: Case: 14-10447 Dat..
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Case: 14-10447 Date Filed: 07/07/2014 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10447
Non-Argument Calendar
________________________
D.C. Docket No. 5:12-cv-00325-MW-EMT
BRIAN MEAD,
Plaintiff - Appellee,
versus
FRANK MCKEITHEN, et al.,
Defendants,
DOUG PIERCE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 7, 2014)
Before PRYOR, MARTIN, and COX, Circuit Judges.
PER CURIAM:
Case: 14-10447 Date Filed: 07/07/2014 Page: 2 of 9
I. Introduction
On September 7, 2009, Brian Mead pulled into the driveway of his home
and was immediately accosted by off-duty sheriff’s deputy Doug Pierce. Pierce
identified himself as a law enforcement officer but wore no uniform and could
produce no identification supporting his claim. On top of his inability to produce
identification, it is undisputed that Pierce smelled of alcohol when he confronted
Mead. Consequently, when Pierce forcibly grabbed Mead and attempted to subdue
him, a struggle ensued and Mead pulled away from Pierce, escaping his grasp.
Pierce later represented to on-duty deputies who arrived at Mead’s home that Mead
had assaulted him. The on-duty deputies arrested Mead for assault on a law
enforcement officer.
Mead then filed the present suit against Pierce and others. 1 The claim
against Pierce is that Pierce caused Mead to be seized in violation of the Fourth
Amendment. Pierce moved for summary judgment, asserting a defense of
qualified immunity. The district court denied Pierce’s motion for summary
judgment, saying that “the facts are very much in dispute as to what occurred
1
Mead sued his neighbors, Kenneth and Tara Bibbs, and the Bay County Sherriff, Frank
McKeithen. The disposition of the case as to these defendants is not relevant to this appeal.
2
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between Mead and Pierce” and that Pierce was not entitled to qualified immunity.
(Doc. 85 at 3). Pierce appeals. We affirm.
II. Facts
The parties dispute the facts in this case. But the basic facts are well-known
to both parties. Mead and the Bibbs are neighbors. But they had limited
interaction prior to the incident giving rise to this suit. On September 7, 2009, the
Bibbs’ boston terrier escaped from their yard and encountered Mead’s two pit
bulls. The pit bulls killed the Bibbs’ dog. In response, Kenneth Bibbs, an off-duty
sheriff’s deputy, shot and killed the two pit bulls with his shotgun—continuing to
shoot the dogs even after it was apparent they were dead. After Kenneth finished
shooting the dogs, Tara Bibbs, his wife, emptied her handgun into the dogs as well.
In the wake of all these gunshots, Pierce, also an off-duty sheriff’s deputy, left his
own home down the street and walked to the Bibbs’ house. When he arrived, he
found the three dead dogs and the Bibbs.
Shortly after Pierce arrived, Mead pulled into his own driveway next door to
the Bibbs’ house. When Mead stepped out of his truck, Pierce immediately
approached him. Pierce was wearing civilian clothes with no indication of his law
enforcement status. Pierce forcibly grabbed Mead. Either immediately before or
simultaneously with grabbing Mead, Pierce identified himself as a law
enforcement officer. Despite Mead’s repeated request for Pierce to produce
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identification confirming his status as a law enforcement officer, Pierce did not
produce any such identification because he did not have any on him. Pierce had
been drinking before arriving at the Bibbs’ house, and his breath smelled of
alcohol. When Pierce failed to produce any law enforcement identification, Mead
pulled away from Pierce and ran to the other side of his truck. Pierce then struck
Mead in the back of the head, knocking Mead to the ground. It is undisputed that
Mead did not ball up his fists or make any threatening gestures towards Pierce. 2
Pierce then retreated to the street to await the arrival of uniformed officers. Pierce
discussed the incident with the uniformed officers and filled out a probable cause
affidavit to arrest Mead for assault on a law enforcement officer—a charge on
which a uniformed officer then arrested Mead.
III. Issue on Appeal and Standard of Review
The sole issue on appeal is whether the district court properly denied Pierce
qualified immunity. (Appellant’s Initial Br. at 2). We review a district court’s
denial of qualified immunity de novo, viewing the facts in the light most favorable
to the nonmoving party. Waldrop v. Evans, 871 F.2d 1030, 1032 (11th Cir. 1989).
IV. Contention of the Parties
2
Pierce conceded this fact for purposes of summary judgment. (Doc. 58 at 4 n.2).
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Pierce contends that the district court erred by failing to find that he had
probable cause, or at least arguable probable cause, to arrest Mead for “some”
offense—even if it was not the offense for which Mead was actually arrested.
(Appellant’s Initial Br. at 7,8).
Mead, on the other hand, contends that the district court correctly declined to
grant Pierce qualified immunity because there was not probable cause to arrest
Mead. And, Mead contends that qualified immunity on the basis that he could
have been arrested on a lesser charge is only available for a good-faith mistake by
Pierce. Finally, Mead contends that arguable probable cause is not a lesser
standard as Pierce contends, but simply goes to whether a law was clearly
established at the time of the arrest—which is an objective standard.
V. Discussion
To determine whether an officer is entitled to qualified immunity, we engage
in a two-step analysis. Pearson v. Callahan, 555 U.S. 223, 236,
129 S. Ct. 808,
818 (2009). First, we ask whether the facts alleged by a plaintiff show a violation
of a constitutional right.
Id. Second, we ask whether the right was clearly
established at the time of an officer’s alleged misconduct.
Id. A court may
exercise its sound discretion in determining which step of the analysis it should
first address.
Id.
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We first address the constitutional prong. Mead contends that Pierce caused
his arrest in violation of his Fourth Amendment right to be free from an
unreasonable seizure. An arrest of a person constitutes a seizure. Skop v. City of
Atlanta, GA, 485 F.3d 1130, 1137 (11th Cir. 2007). And a seizure by arrest is
“reasonable” only if probable cause exists. Kingsland v. City of Miami,
382 F.3d
1220, 1226 (11th Cir. 2004). Probable cause exists when “law enforcement
officials have facts and circumstances within their knowledge sufficient to warrant
a reasonable belief that the suspect had committed or was committing a crime.”
United States v. Gonzalez,
969 F.2d 999, 1002 (11th Cir. 1992). We determine
whether probable cause existed by looking at the totality of the circumstances. See
Rankin v. Evans,
133 F.3d 1425, 1435 (11th Cir. 1998).
It is difficult to discern the basis for Mead’s Fourth Amendment claim from
the complaint in this case. (See Doc. 1-1). Count III (the relevant count) is part of
a “shotgun pleading” of the kind we have criticized for many years. See, e.g.,
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117 (11th Cir. 2013). In this single
count—Count III—Mead asserts claims against Pierce, Sheriff McKeithen,
Kenneth Bibbs, and Bibb’s wife, Tara Bibbs.
Count III does not allege that Pierce falsified an affidavit that resulted in
Mead’s arrest. But Pierce does not argue on appeal that this falsified affidavit was
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not the basis of Mead’s Fourth Amendment claim in Count III. And, the district
court and the parties litigated this case based upon a falsified affidavit. Our court
has encountered this issue before. “Pursuant to Fed. R. Civ. P. 15(b), ‘[w]hen
issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings.’ Although Rule 15 uses the word ‘tried,’ we accept Rule 15(b) as a
guide—by way of analogy, at the appellate level—for cases never tried, but
litigated on motions.” Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1023 n.4 (11th
Cir. 2001) (en banc), abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544,
127 S. Ct. 1955 (2007). In Marsh, we said that even though it was
clear from the face of the plaintiff’s complaint that she had not stated a claim
against a local sheriff in her individual capacity, we said that “we accept this case
and will decide this case as one in which the complaint purports to sue the Sheriff
in both her official and individual capacities. The reason is that, in the district
court, the parties and the district judge clearly litigated the case in that way.”
Id.
We review this case as it was actually litigated by the parties before the district
court; thus, we need not consider whether count III in Mead’s complaint actually
states a claim because the parties and the district court assumed that it did.
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Here, it is clear that viewing the facts in the light most favorable to the non-
moving party—Mead—there was not probable cause to arrest Mead for assault on
a law enforcement officer. See Fla. Stat. § 784.07 (2009). The fact that Pierce did
not actually make the arrest is irrelevant since we have held that where falsified
evidence provided by an officer is necessary to substantiate the probable cause for
a plaintiff’s arrest, that officer can be held liable. See Kingsland, 382 F.3d at 1232
(11th Cir. 2004) (citations omitted). And here, Pierce’s affidavit was necessary to
establish probable cause for Mead’s arrest since it was the only evidence
suggesting to the uniformed officers that Mead had in any way threatened Pierce.
Even if probable cause did not exist to arrest Mead, Pierce does not
automatically lose qualified immunity. Instead, we next examine whether the law
regarding what constituted probable cause was clearly established at the time of
Mead’s arrest. “In wrongful arrest cases, we have frequently framed the ‘clearly
established’ prong as an ‘arguable probable cause’ inquiry. In other words, we
have said that when an officer violates the Constitution because he lacked probable
cause to make an arrest, the officer’s conduct may still be insulated under the
second prong of qualified immunity if he had ‘arguable probable cause’ to make
the arrest.” See Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009). In other
words, would it “be clear to a reasonable officer this conduct was unlawful in the
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situation he confronted”? Saucier v. Katz, 533 U.S. 194, 202,
121 S. Ct. 2151,
2156 (2001).
Again, viewing the facts in the light most favorable to Mead, it is clear that
Pierce’s conduct has long been prohibited. Falsifying facts to establish probable
cause is clearly unconstitutional and has been “clearly established” long before
Mead’s arrest. Kingsland, 382 F.3d at 1232 (11th Cir. 2004).
Lastly, we agree with the district court’s analysis that even if probable cause
existed for Pierce to cause Mead to be arrested for “some” offense, even if not for
the offense actually charged, Pierce is not entitled to qualified immunity. The
district court’s opinion properly analyzes and rejects this argument. (District
Court’s Opinion, Doc. 85 at 8–9).
VI. Conclusion
Accordingly, we agree with the district court that Pierce has not
demonstrated entitlement to qualified immunity.
AFFIRMED.
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