MARY S. SCRIVEN, District Judge.
On December 14, 2009, Gudrun Kastritis, Joedith R. Dice, Heather Buchanan, Nikki Sias, and Tanya Sias filed an action in federal court against the City of Daytona Beach Shores, and Daytona Beach Shores Public Safety Department Detective Trevor R. Wyman and Officer Susanne Williams (collectively "Defendants"), pursuant to 42 U.S.C. § 1983, for, inter alia, violations of Plaintiffs' First and Fourth Amendment rights under the United States Constitution. (Dkt. 1) The Defendants moved to dismiss Plaintiffs' Complaint on February 16 and 19, 2010. (Dkts. 18, 20, and 21) After considering Defendants' motions and Plaintiffs' responses at (Dkts. 24-26), United States Magistrate Judge Gregory J. Kelly entered a Report and Recommendation on August 20, 2010, recommending dismissal of Counts III, VI, VII, and X, in their entirety. (Dkt. 30 at 37) Judge Kelly also recommended that the district court dismiss Counts I and II to the extent Plaintiffs sought declaratory judgments against the Defendants. (Id.) Judge Kelly also determined that the search warrant was overbroad in violation of the Fourth Amendment's particularity requirements and recommended that the district court find the search warrant unconstitutional. (Id. at 28) None of the Defendants objected to the Report and Recommendation.
On September 8, 2010 — after conducting a careful and complete review of the findings and recommendations — this Court confirmed Judge Kelly's findings and adopted the Report and Recommendation as part of its Order. (Dkt. 33) A review of the record reveals that on September 22, 2010, this case was consolidated for all further proceedings with an action brought against the same defendants by Angela Glenn
Pursuant to the Court's September 8, 2010 Order dismissing some of the claims, the following claims remain at issue in this case:
The following facts are undisputed in this case:
In January 2009, a confidential informant notified the Daytona Shores Department of Public Safety (the "Department") that some employees of Biggins Gentlemen's Club (the "Club") were selling prescription pills and other illegal narcotics to patrons. (Wyman Aff't., Dkt. 50-2 ¶¶ 7-10; Fowler Aff't., Dkt. 49-8 ¶ 13) The confidential informant also notified the Department that his/her friend, David Thomas, a manager at the Club, died from a drug overdose of Roxicodone that he purchased from an exotic dancer at the Club. (Dkt. 1 at 55; Dkt. 53-4 at 60; Fowler Aff't., Dkt. 49-8 ¶ 13) From May 6, 2009 to September 16, 2009, Defendant Wyman, in his official capacity as a law enforcement officer for the Department, conducted an undercover investigation at the Club. (Dkt. 1 at 56-60; Dkt. 53-4 at 54-60) During the investigation three individuals, namely Rosalie Kain, Amanda Jean Deavers, and Rose Anna Marie Gustin, had engaged Defendant Wyman in illegal drug transactions while he was undercover as a patron in the Club. (Dkt. 1 at 56-60; Dkt. 53-4 at 54-60; Wyman Aff't., Dkt. 50-2 ¶¶ 13-18) Based on the information gathered during investigation, Defendant Wyman prepared an affidavit and warrant for a search of the Club, including vehicles in the parking lot and all persons inside the establishment. (Dkt. 1 ¶ 34; Wyman Depo., Dkt. 53-3 at 10, 13) The warrant was issued by Judge Michael Hutcheson of the Circuit Court in and for Volusia County. (Dkt. 1 at 61; Dkt. 53-4 at 1)
On September 18, 2009, at approximately 10:00 p.m., Daytona Beach Shores Public Safety officers, including Defendants Wyman and Williams, executed a search warrant on the Club, located at 2324 South Atlantic Avenue in Daytona Beach Shores, Florida. (Dkt. 1 ¶ 51; Fowler Aff't., Dkt. 49-8 ¶ 19) Several officers, including Defendant Williams, entered the dressing area in the Club and searched through the personal items of the exotic dancers, including those of the Plaintiffs. (Dkt. 1 ¶ 55; Fowler Aff't., Dkt. 49-8 ¶ 19) All patrons inside the Club were detained for thirty (30) minutes while officers conducted a pat-down search on each of them and checked for outstanding warrants. (Dkt. 1 ¶ 56; Wyman Depo., Dkt. 53-3 at 32) Officers also detained and hand-cuffed all of the Club's employees and performers, including Plaintiffs, with "flexicuffs." (Dkt. 1 ¶ 59; Wyman Depo., Dkt. 53-3 at 30-31) The employees, including Plaintiffs, were then directed to line up against a wall, questioned, and photographed. (Dkt. 1 ¶¶ 62, 64; Williams Depo., Dkt. 49-1 at 25-26)
During the execution of the warrant, Defendant Williams strip searched each of the Plaintiffs. (Dkt. 1 ¶¶ 68, 129, 131; Williams Depo., Dkt. 49-1 at 44-52) Plaintiffs Kastritis, Dice, Buchanan, and Glenn performed at the Club as exotic dancers. (Case No. 6:09-cv-2105-MSS-GJK, Dkt. 1 ¶¶ 8-10; Case No. 6:10-cv-00941-MSS-GK, Dkt. 1 ¶ 9) As exotic dancers, Plaintiffs Kastritis, Dice, Buchanan, and Glenn wore bikinis. (Dkt. 1 ¶ 65; Williams Depo., Dkt. 49-1 at 35) Plaintiffs N. Sias and T. Sias were employed at the Club as bartenders. (Dkt. 1 ¶¶ 11-12) As bartenders,
Summary judgment is appropriate when the movant can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir.2009) (citing Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir.2007)). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).
Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559 F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving party discharges its burden on a motion for summary judgment by showing or pointing out to the Court that there is an absence of evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation omitted).
When a moving party has discharged its burden, the non-moving party must then designate specific facts (by its own affidavits, depositions, answers to interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1321 (11th Cir.2006) (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) ("conclusory allegations without specific supporting facts have no probative value.").
Under Section 1983 of Title 42 of the United States Code ("Section 1983"),
42 U.S.C. § 1983. To sustain a claim under Section 1983, a plaintiff must demonstrate that a person acting under the color of state law deprived her of a federal right. See Cook v. Randolph County, 573 F.3d 1143, 1151-52 (11th Cir.2009). Section 1983 is not a source of federal rights; rather, it "merely provides a method for vindicating [a specific] federal right[]." Cummings v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir.1994). Once the specific constitutional right has been identified, "the court must then apply the standard applicable to that particular provision to determine whether a constitutional violation actually occurred." Signature Pharmacy, Inc. v. Soares, 717 F.Supp.2d 1276, 1288 (M.D.Fla.2010).
Qualified immunity shields a law enforcement officer who is sued in his or her individual capacity for alleged federal constitutional violations that may arise during the performance of his or her discretionary
In assessing whether a defendant officer acted "within the scope of his discretionary authority," courts must consider whether he "was (a) performing a legitimate job-related function ... (b) through means that were within his power to utilize." Brock v. City of Zephyrhills, 232 Fed.Appx. 925-27 (11th Cir.2007) (quoting Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.2004) (the Circuit Court "interpreted the term `discretionary authority' to include actions that do not necessarily involve an element of choice, and emphasized that, for purposes of qualified immunity, a governmental actor engaged in purely ministerial activities can nevertheless be performing a discretionary function.")); see C.C. v. Monroe County Bd. of Educ., 299 Fed.Appx. 937, 940 (11th Cir.2008). In Brock, the Circuit Court concluded that "[t]he acts of obtaining and executing a warrant for an arrest and performing a search of a vehicle ... qualify as discretionary functions of law enforcement officers." Brock, 232 Fed.Appx. at 927-28.
After the defendant officer invokes qualified immunity, the plaintiff must then prove (1) that the officer violated her constitutional rights and (2) that the right was clearly established "in light of the specific context of the case, not as a broad general proposition." Case, 555 F.3d at 1326 (emphasis added). In examining whether the officer violated Plaintiffs' constitutional rights, the Court must consider "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Maiorano v. Santiago, No. 6:05-cv-107-Orl-19KRS, 2005 WL 1200882, at *7 (M.D.Fla. May 19, 2005) (internal quotation omitted); see Williams v. Kaufman, 352 F.3d 994, 1003 (5th Cir. 2003) ("The appropriate inquiry, therefore, is whether the state of the law [at the time of the violation] gave [defendants] fair warning that their alleged treatment of [plaintiffs] was unconstitutional").
In establishing that the right was clearly established, Plaintiffs must point to decisions of the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the highest court of the pertinent state, in this case, the Supreme Court of Florida, that provide clear notice of the violation. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.2007); Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.2000). If an officer is reasonably mistaken, he or she should not face personal liability. Maughon v. Bibb Cnty., 160 F.3d 658, 661 (11th Cir.1998). The officer is entitled to qualified immunity if the plaintiff fails to prove (a) that the officer violated the plaintiff's constitutional rights, and (b) that the right was clearly established. McClish, 483 F.3d at 1237.
In the Eleventh Circuit, "it is well established that a municipality cannot be held liable for a [Section] 1983 violation [solely] based upon the theory of respondeat superior." Turner v. Jones, No. 10-14547, 2011 U.S.App. LEXIS 3760, at *16-17 (11th Cir. Feb. 23, 2011). Instead, a municipality may be liable under Section
Maschmeier v. Scott, 269 Fed. Appx. 941, 943 (11th Cir.2008). "Final policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir.1997); see Doe v. School Board of Broward County, 604 F.3d 1248, 1264 (11th Cir.2010). The delegation of authority does not absolve the policymaker of liability for his decisions. Scala, 116 F.3d at 1399 (quoting Mandel v. Doe, 888 F.2d 783, 792 (11th Cir.1989)).
Plaintiffs contend that the warrant upon which Defendant Wyman relied was overbroad, lacked particularized probable cause, and was supported by an affidavit that contained false information. (Dkt. 1 ¶ 116) Plaintiffs further argue that a general warrant, such as the one relied on by Defendant Wyman, is unconstitutional, as is all evidence obtained through its execution. (Id., ¶¶ 119-120) Specifically, they contend that:
(Id., ¶ 122) Defendant Wyman maintains that he is protected from suit by the doctrine of qualified immunity because his actions were not "so obviously wrong" or "plainly incompetent" that it can be fairly said that no reasonable officer in his circumstance would have acted in the manner that he did. (Dkt. 50 at 7) Defendant Wyman also contends that his investigation of the Club in the weeks leading up to the raid "produced ample probable cause to generate the warrant, and [that] the law with regards to `all persons' warrants is not so well established that any knowing violation of the law on these facts may be found." (Id.)
The first prong of the qualified immunity analysis — whether the officer was acting in the scope of his discretionary authority when the alleged unconstitutional act took place — is not in dispute with regards to Plaintiffs' constitutional claims against Defendant Wyman. It is undisputed that at the time he drafted and executed the warrant Defendant Wyman was acting within the scope of his official duties as a detective with the Daytona Beach Shores Police Department. (Dkt. 53-3 at 5) The Court, therefore, next considers whether: (1) Defendant Wyman violated Plaintiffs' Fourth Amendment right to be free from unlawful searches and seizures, and (2) whether that right was clearly established.
The Fourth Amendment provides in pertinent part that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to b e seized." U.S. CONST. amend. IV (emphasis added). "It is well established that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional." Signature Pharmacy, 717 F.Supp.2d at 1292 (citing Groh v. Ramirez, 540 U.S. 551, 564, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)) (quoting Massachusetts v. Sheppard, 468 U.S. 981, 988, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984)).
In Ybarra v. State of Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court held that "`open-ended' or `general' warrants are constitutionally prohibited. It follows that a warrant to search a place cannot normally be construed to authorize a search of each individual in that place." Ybarra, 444 U.S. at 91, n. 4, 100 S.Ct. 338. In Ybarra, a judge issued a warrant authorizing the search of a tavern and the bartender for evidence of the possession of a controlled substance. Id. at 88, 100 S.Ct. 338. After entering the tavern, the officers announced their intent to "conduct a cursory search for weapons." Id. While searching one of the customers, Mr. Ybarra, an officer discovered a cigarette pack that contained packets of heroine. Id. The trial court denied Mr. Ybarra's motion to suppress the contraband "finding that the search had been conducted under the authority of an Illinois statute which allows law enforcement officers executing a search warrant to detain and search any person found on the premises." Id. at 89, 100 S.Ct. 338. The Illinois Appellate Court "affirmed Ybarra's conviction, and the Illinois Supreme Court denied his petition for leave to appeal." Id. at 90, 100 S.Ct. 338. The United States Supreme Court ultimately reversed the state court and held that the officers lacked probable cause, based on the search warrant, to believe that any person other than the bartender would be violating the law. Id. The Supreme Court held that the heightened probable cause standard that governs searches and seizures requires that "a search or seizure of a person
Swint v. City of Wadley, Ala., 51 F.3d 988, 997 (11th Cir.1995); see United States v.
The officer executing the search warrant has a duty to ensure that he is executing a valid search warrant. Signature Pharmacy, 717 F.Supp.2d at 1292 (It "is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted."). "This is `not a duty to proofread; it is, rather, a duty to ensure that the warrant conforms to constitutional requirements.'" Id. "[A] warrant may be so facially deficient — i.e., failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid." United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
This Court has already concluded that the affidavit and warrant upon which Defendant Wyman relied "provide[d] no particularized showing which would justify a search of the Plaintiffs" and "a reasonable officer would not have acted on an unparticularlized search warrant." (Dkt. 30 at 28) In the order granting in part and denying in part the motions to dismiss, the Court opined that:
(Dkt. 30 at 28, n. 8) The Court did not come to a conclusion regarding the validity of the warrant based on an analysis that construed the unsworn allegations in a light most favorable to Plaintiffs. Rather, the Court determined that the warrant was unconstitutionally overbroad after conducting an independent review of the text of the actual warrant. See (Id., at 5, n. 2). A review of this record reveals that none of the Defendants objected to the Report and Recommendation, as permitted by FED. R. CIV. P. 72(b)(2). This Court adopted Judge Kelly's findings and analysis as part of its Order on September 8, 2010. (Dkt. 33) In consideration of the parties' summary judgment motions and the record evidence, the Court's opinion remains unchanged: The evidence of record demonstrates that Defendant Wyman violated Plaintiffs' Fourth Amendment rights by conducting a search pursuant to a facially defective search warrant.
Specifically, the record evidence shows that the "all persons" warrant failed to state, with particularity, the persons or items to be searched and/or seized. The search warrant permitted state, city, and county law enforcement officers to search and seize the following:
(Dkt. 53-4 at 1-3) (emphasis added) The search warrant also indicated that the following persons occupied or controlled the premises: Rosalie Kain aka Destiny, Amanda Jean Deavers aka Candice, Rose Anna Marie Gustin aka Deja, "the front door manager only known as `Bill,'] and/or any other person(s) unknown." (Id., at 2) None of the Plaintiffs were named in the search warrant.
The evidence of record also shows that Defendant Wyman lacked individual probable cause to believe that any of the Plaintiffs had engaged in illegal drug activity. In his deposition testimony, Defendant Wyman admitted that he lacked probable cause to search the particular Plaintiffs and that, at best, he had only a "reasonable suspicion" that some of the Club's exotic dancers were dealing drugs:
Wyman Depo., Dkt. 53-3 at 12, 15, 17, 21, 36.
Also, neither the search warrant nor the underlying affidavit evinces any factual basis to support a probable cause determination with regards to the bartenders, N. Sias and T. Sias. In that regard, Defendant Wyman testified to the following:
Id. at 17.
Public Safety Chief Stephan Dembinsky ("Chief Dembinsky") also testified that the Department lacked probable cause to believe that any Plaintiffs were involved in illegal drug activity:
Dembinsky Depo., Dkt. 53-1 at 48.
The law is clear that "probable cause" and "reasonable suspicion" are different. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). "Reasonable suspicion" is not adequate justification for a search and seizure; rather, a search warrant must only be issued upon a showing of particularized probable cause. See Ybarra, 444 U.S. at 91, 100 S.Ct. 338; see also Swint, 51 F.3d at 997.
Upon consideration of the foregoing, this Court concludes that the record evidence overwhelmingly shows that the search warrant upon which Defendant Wyman relied was overbroad and failed to state, with any particularity, any probable cause to search Plaintiffs. Furthermore, the record evidence demonstrates that Defendant Wyman lacked probable cause to believe that any of the Plaintiffs had engaged in any illegal activity. Accordingly, Plaintiffs' claim that Defendant Wyman violated their Fourth Amendment rights has been established from this record.
In the instant motion, Defendant Wyman contends that "[e]ven if the Court finds that the warrant was overbroad, [he] is still entitled to qualified immunity on the issue of whether or not the law was clearly established." (Dkt. 50 at 21) Defendant Wyman argues that the Supreme Court has declined to explicitly state that "all persons" warrants are overbroad. The Court rejects this argument. It is clearly established law that (1) a search warrant must be particularized and (2) that the standard to support a search and seizure is probable cause, not reasonable suspicion. Signature Pharmacy, 717 F.Supp.2d at 1292; Ybarra, 444 U.S. at 90-91, 100 S.Ct. 338. In his Motion for Summary Judgment, Defendant Wyman concedes that Ybarra requires "that the search or seizure of a person must be supported by probable cause particularized with respect to that person." (Dkt. 50 at 15) (emphasis in original).
Upon consideration of the foregoing, the Court
Plaintiffs contend that Defendant Williams knowingly violated their Fourth
As an initial matter, the evidence of record reveals that Defendant Williams initially participated in the execution of the search warrant on the Club by securing "the female bathroom, detain[ing] people and prevent[ing] evidence tampering." (Dkt. 53-2 at 20); Williams Depo., Dkt. 49-1 at 17. In this regard, Defendant Williams "adopts the arguments ... made by Detective Trevor Wyman in his Motion for Summary Judgment regarding the legality of the warrant." (Dkt. 49 at 9) As this Court discussed in Section IV.A of this Order, the search warrant was overbroad and unconstitutional, and a reasonable officer would not rely on it as a basis for conducting a search.
However, there is substantial evidence on this record to support a finding that Defendant Williams had no knowledge of the substance or scope of the search warrant and participated in the raid at the direction of a superior officer, which has created a factual dispute regarding the reasonableness of her actions. Williams Depo., Dkt. 49-1 at 11-15, 17, 23, 58. Whether her reliance on the instructions of a superior officer was reasonable is a material issue of fact that is not resolved on this record, as explained in more detail in the subsequent section of this Order.
Nevertheless, the record evidence clearly establishes that Defendant Williams went beyond securing the female bathroom in the Club and strip searched the individual Plaintiffs. The Court now considers the legality of that strip search.
The first prong of the qualified immunity analysis — whether the officer was acting in the scope of her discretionary authority when the alleged unconstitutional act took place — is not in dispute with regards to Plaintiffs' constitutional claims against Defendant Williams. It is undisputed that at the time she conducted the strip search, Defendant Williams was acting within the scope of her discretionary authority as an officer with the Daytona Beach Shores Police Department. (Dkt. 1 ¶ 15); Williams Depo., Dkt. 49-1 at 10-12 The Court, therefore, next considers whether: (1) Defendant Williams violated Plaintiffs' Fourth Amendment right to be free from unlawful searches and seizures, and (2) whether that right was clearly established.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, and unreasonable searches and seizures." U.S. CONST. amend. IV (emphasis added); Sims ex rel. Sims v. Forehand, 112 F.Supp.2d 1260, 1266 (M.D.Ala.2000). The Supreme Court has held that "wherever an individual may harbor a reasonable `expectation of privacy' [the Fourth Amendment entitles the person] to be free
The Eleventh Circuit has recognized an individual's constitutional right to bodily privacy. The Circuit Court has held:
Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir.1993) (emphasis added) (citing Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992); Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir.1992); Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988)). In Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 2641, 174 L.Ed.2d 354 (2009), the United States Supreme Court appears to suggest that a strip search requires some justification over and above the probable cause required for a search and seizure of an individual's general person and belongings. The Supreme Court held:
Safford, 129 S.Ct. at 2641 (emphasis added). In Safford, the Supreme Court held that the level of suspicion did not meet the degree of intrusion of the strip search, and that "the search as actually conducted [must be] reasonably related in scope to the circumstances which justified the interference in the first place." Id.
The Eleventh Circuit has held that there must be particularized suspicion in order to conduct a strip search of an individual. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 956 (11th Cir.2003) (strip searches of schoolchildren conducted without particularized suspicion were unreasonable); see also Sims v. Glover, 84 F.Supp.2d 1273, 1283 (M.D.Ala.1999) (relying on Ybarra, the court held that the deputies were not shielded by qualified immunity because "there [were] no facts upon which [the] deputies ... could have possessed even arguable probable cause for the strip search"). So have other circuit courts. See Williams, 352 F.3d at 1005 (Ybarra "clearly established that strip searches conducted without individualized reasonable suspicion or probable cause are unlawful"); see also Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991). In Rivera, the Second Circuit held that:
Rivera, 928 F.2d at 606-07 (emphasis added).
Under the law, a law enforcement officer may subject an individual to a strip search only upon a particularized showing of probable cause that would justify "going beyond a search of the outer clothing and belongings." Safford, 129 S.Ct. at 2641; see Thomas, 323 F.3d at 956. In her Motion for Summary Judgment, Defendant Williams maintains that she searched the Plaintiffs upon Sergeant Fowler's — her superior officer — instruction to search the women "thoroughly." Williams Depo., Dkt. 49-1 at 33. Sergeant Fowler confirms that he instructed Defendant Williams to search the individual Plaintiffs. Fowler Aff't., Dkt. 49-8 ¶ 21; Fowler Aff't., Dkt. 51-3 ¶ 5. When asked during her deposition about the search, Defendant Williams expressly stated that Sergeant Fowler did not give her instructions on how to search the women. The manner in which she proceeded was based on her experience and not pursuant to any written or oral directive from a supervisor. Williams Depo., Dkt. 49-1 at 33-34, 61-62.
There are no credible facts on this record that suggest that the Plaintiffs had hidden contraband in their undergarments. Moreover, this record does not support a finding that the specific suspects listed in the warrant had hidden contraband in their undergarments. The affidavit underlying the warrant demonstrates that in all but two occasions the exotic dancers listed as suspects in the warrant apparently (1) negotiated the sale of narcotics with undercover officer Wyman, (2) retrieved the narcotics from the employee locker room, and (3) then handed them over to Defendant Wyman in exchange for money:
(Dkt. 53-4 at 46-57) Defendant Wyman purchased narcotics from another dancer on two other occasions and the record evidence reveals that she retrieved narcotics from a dollar bill that was rolled up and attached to a garter belt that was secured to her thigh:
(Id., at 50-51) (emphasis added) These facts do not implicate Plaintiffs in any illegal activity and do not constitute probable cause to violate their constitutional right to bodily privacy. Defendant Williams clearly conducted a search of the Plaintiffs that was consistent with the definition of "strip search" in the Florida Statutes.
According to FLA. STAT. § 901.211, an officer conducts a "strip search" of an arrested person by having that individual
Id. at 901.211(2)(a)-(b). Florida law also mandates that:
Id. at 901.211(3), (5) (emphasis added).
Here, the Plaintiffs were not under arrest at the time of the search. Additionally, the search warrant did not authorize a strip search of any individuals. (Dkt. 1 at 61-63; Dkt. 53-4 at 1-3) Nevertheless, by
Williams Depo., Dkt. 49-1 at 44-46.
Defendant Williams searched Plaintiff Kastritis, who was wearing a dress, as follows:
Id. at 54. Similarly, Defendant Williams subjected N. Sias and T. Sias — the Plaintiffs who worked as bartenders — to the following:
Id. at 47-52
The record evidence also shows that Defendant Williams conducted a strip search of Plaintiffs in a well lit section of the Club in front of all persons who were still in the establishment, including the male officers in the operational team:
Williams Depo., Dkt. 49-1 at 44, 52; see also Dembinsky Depo., Dkt. 53-1 at 27.
Defendant Williams admitted that she was aware of the department's policy concerning strip searches and had even read the document. Williams Depo., Dkt. 49-1 at 34. The record evidence reveals that the department's written policy regarding strip searches is:
Defendant City's Answers to Interrogatories, Dkt. 53-2 at 54. Despite the admitted knowledge of the policy, Defendant Williams subjected Plaintiffs to a strip search without probable cause or written authorization from a shift supervisor, and in full view of the male officers of the police operational team. Williams Depo., Dkt. 49-1 at 44, 52, 61; Dembinsky Depo., Dkt. 53-1 at 27.
The Court is not impressed by the arguments proffered by Defendants City and Williams that "nothing more could have been exposed during the searches than is
Even if Plaintiffs have demonstrated, from this record, that Defendant Williams violated their Fourth Amendment rights, the officer is nonetheless entitled to qualified immunity if it would not be clear to a reasonable officer that the search was illegal.
In establishing that the right was clearly established, Plaintiffs must show that Defendant Williams had clear notice that her actions were unlawful. McClish, 483 F.3d at 1237; Priester, 208 F.3d at 926. If an officer is reasonably mistaken, she should not face personal liability. Maughon, 160 F.3d at 661. A defendant officer is entitled to qualified immunity if it was objectively reasonable for her to rely on the representation of a supervisor. Brock, 232 Fed.Appx. at 928. In Brock, the Circuit Court held:
Brock, 232 Fed.Appx. at 928 (emphasis added).
Here, Defendant Williams contends that a reasonable officer in her position would have believed that the search was lawful based on the instructions of her supervisor, Sergeant Michael Fowler. (Dkt. 49 at 14) Viewing the evidence in the light most favorable to the Plaintiff, the Court finds that the evidence does not bear out this contention.
Sergeant Fowler and Defendant Williams testified that Fowler instructed Defendant Williams to search the Plaintiffs, Williams Depo., Dkt. 49-1 at 33; Fowler Aff't., Dkt. 49-8 ¶ 21; Fowler Aff't., Dkt. 51-3 ¶ 5. Although Defendant Williams maintains that she was told to search the women "thoroughly," she concedes she was not given instructions on how to conduct the search. Williams Depo., Dkt. 49-1 at 33. She testified that the manner in which she proceeded was based on her experience and not pursuant to any written or oral directive from a supervisor. Id. at 33-34, 61-62.
In addition, other facts on record create a dispute as to material fact concerning what Sergeant Fowler or any other superior officer actually told Defendant Williams during the operation briefing or while the execution of the search warrant was underway.
In an affidavit prepared in anticipation of litigation, Sergeant Fowler conceded
Fowler Aff't, Dkt. 49-8 ¶ 21 (emphasis added). Defendant Williams also testified that she attended a briefing prior to the execution of the warrant. Williams Depo., Dkt. 49-1 at 15-17. Whether Sergeant Fowler and Defendant Williams attended the same briefing and whether Defendant Williams received supplemental instructions regarding the strip search at this briefing from Sergeant Fowler or some other superior officer, is highly relevant to a finding on this issue. Notably, even in the affidavit Fowler only states that he "instructed Officer Williams to search the exotic dancers and barmaids." He does not mention strip search as part of his instruction — only as part of his mental impressions. Without a resolution of these disputed facts, this Court is not able to ascertain whether Defendant Williams is entitled to qualified immunity. The Court also notes that the principal policy maker, Chief Dembinsky, was present on the scene and observed the strip searches being conducted, yet he stood idly by as a spectator of sorts and did not intervene to stop the searches or to address the manner in which they were being conducted. Whether this is viewed as some tacit instruction by the ultimate supervisor or merely evidence of the municipality's placing its imprimatur on the illegal conduct remains to be addressed at trial.
Accordingly, the Motions for Summary Judgment filed by Defendant Williams and Plaintiffs are
Plaintiffs allege that Defendant City violated their Fourth Amendment rights by acting on an overbroad search warrant and conducting an unconstitutional strip search. (Dkt. 2 ¶¶ 109-123, 125-132) Plaintiffs argue that Defendant City should be liable for violations of their constitutional rights because Chief Dembinsky, authorized the criminal investigation. (Dkt. 53 at 22)
This Court has already concluded that the record evidence supports a finding that Plaintiffs' constitutional rights were violated by the execution of the overbroad search warrant. Now, the Court must consider whether Defendant City "had a custom or policy that constituted deliberate indifference to [Plaintiffs'] constitutional right," or whether Plaintiffs' injury was caused by the unlawful action of someone with final policy making authority. Turner, 2011 U.S.App. LEXIS 3760, at *16-17; Doe, 604 F.3d at 1264; Maschmeier,
Upon consideration of the record evidence, the Court finds that there is a factual dispute that precludes the Court's ruling on this issue. Chief Dembinsky testified that he is the policy maker for Defendant City:
Dembinsky Depo., Dkt. 53-1 at 21-22. Chief Dembinsky also declared that he authorized the operation to execute the search warrant. See Defendant's Answers to Interrogatories, Dkt. 53-2 at 4. He maintains, apparently even with the full benefit of hindsight, that probable cause to search the Club existed and the search warrant was lawful. Dembinsky Depo., Dkt. 53-1 at 47, 68. However, he testified that he had not read the "all persons" warrant:
Id. at 67.
Chief Dembinsky testified that a department-wide policy on conducting strip searches existed and that it would have required Defendant Williams to obtain the permission of her supervisor before strip searching an individual. (Id., at 21, 23). Chief Dembinsky testified that he had no knowledge of whether Defendant Williams obtained that permission or not. (Id., at 23) Record evidence demonstrates that, at the very least, Defendant City's strip search policy required the search to take place upon a showing of probable cause and outside the presence of others, especially members of the opposite sex. See Defendant City's Answers to Interrogatories, Dkt. 53-2 at 54; see also FLA. STAT. § 901.211(1)(a), (3). Chief Dembinsky later admitted that the city lacked probable cause to search the individual plaintiffs and that the Plaintiffs were searched simply because they were employees of the Club present at the time the search warrant was executed. Dembinsky Depo., 53-1 at 46-48. However, Chief Dembinsky was physically present at the Club for a period of time and observed the execution of the unlawful "all persons" warrant. Dembinsky Depo., Dkt 53-1 at 23-27, 48-49, 57.
The record evidence also reveals that Chief Dembinsky watched Defendant Williams strip search several females "between the pool table and the bar" of the Club, in his full view. Id. Even if he was unsure of the existence of probable cause, Chief Dembinsky knew that the manner and means of the execution of the strip searches was unlawful, yet, as final policymaker he concedes he did nothing. Id. at 49. In his deposition testimony, he offers yet another suggestion — that at the time, he did not know what a strip search was and believed it to only encompass the most extreme body cavity and genital searches:
Dembinsky Depo., Dkt. 53-1 at 22, 30-31, 34-36. The suggestion that he didn't know what a strip search was is belied by the written policy itself and calls into substantial question Chief Dembinsky's overall veracity as to his involvement and as to his selfserving testimony concerning his knowledge of the scope of the warrant.
In the Complaint, Plaintiffs allege that after the law enforcement officers executed the warrant they ordered that the Club close for the remainder of the evening. (Dkt. 1 ¶¶ 164-165, 178-79). Plaintiffs maintain that the "closure order was intended to and had the actual effect of censoring Plaintiffs' speech and preventing Plaintiffs from disseminating their message of eroticism." (Id., ¶¶ 169-170, 183-84) Plaintiffs further contend that since the warrant was executed, officers employed with Defendant City "have come into the club for `bar checks' several times a week and also park in the Biggins parking lot and on neighboring properties." (Id., ¶ 185) Plaintiff states that they "believe that the Defendant are planning additional raids on [the Club] and are fearful that the Defendants will issue additional closure orders requiring Plaintiffs to vacate the premises and/or discontinue their dance performances." (Id., ¶ 186)
Generally, "[a] prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs." United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir.2000). "Although prior restraints are not per se unconstitutional, there is a strong presumption against their constitutionality." Id. at 1237. In Frandsen, the Eleventh Circuit acknowledged that the Supreme Court had established several "procedural safeguards that a prior restraint on protected expression must contain to obviate the dangers of censorship." They are:
Frandsen, 212 F.3d at 1238.
Here, Defendant City presents a single challenge to Plaintiffs' prior restraint argument. It offers the testimony of Sergeant Fowler. In an affidavit, Sergeant Fowler stated that he did not order the Club to close and that no other officer on the scene was authorized to do so. Fowler Aff't., Dkt. 51-3 ¶ 6. Plaintiffs respond by directing the Court's attention to the testimony of Plaintiff Heather Buchanan. In a deposition, Plaintiff Buchanan testified that the Club closed for the evening after the raid was concluded:
Buchanan Depo., Dkt, 49-6 at 112. Defendant City does not reply to Plaintiff Buchanan's assertions and rests on Sergeant Fowler's affidavit as its sole defense. Consequently, this Court is unable to consider any of the other Frandsen factors that are relevant to the prior restraint analysis. Upon consideration of the foregoing, this Court concludes that there is a factual dispute on this record regarding whether Defendant City closed down the Club for the evening after the search warrant was executed. The Court finds that this factual dispute precludes the Court's from granting summary judgment on this issue. Accordingly, Defendant City's Motion for Summary Judgment as to Counts IV and V is
Plaintiffs invoke this Court's supplemental jurisdiction
Generally, an actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of another and (b) an offensive contact with the person of the other directly or indirectly results against the receiver's will. City of Miami v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996). However, Florida Statute Section provides in pertinent part:
FLA. STAT. § 768.28(9)(a). In Willingham v. City of Orlando, 929 So.2d 43, 47-48 (Fla. 5th DCA 2006), the Fifth District Court of Appeal of Florida held that, under § 768.28(9)(a), an Orlando police officer is not liable in tort and is entitled to summary judgment against a plaintiff's state tort law claims, unless a plaintiff can prove that the officer's conduct was in bad faith, exhibited malicious purpose, or exhibited wanton and willful disregard of human rights, safety, or property. In the context of § 768.28(9)(a), conduct committed in bad faith has been characterized as conduct acted out with actual malice. Parker v. State Bd. of Regents ex rel. Florida State Univ., 724 So.2d 163, 167 (Fla. 1st DCA 1998). Conduct meeting the "wanton and willful" standard in the context of § 768.28(9)(a), must be "worse than gross negligence," Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 593 (Fla. 5th DCA 2003), and "more reprehensible and unacceptable than mere intentional conduct." Richardson v. City of Pompano Beach, 511 So.2d 1121, 1123 (Fla. 4th DCA 1987).
Here, Plaintiffs allege that Defendant Williams committed battery against them by initiating "offensive, non-consensual physical contact" and conducting a "strip search[] of each of the Plaintiffs in a public place, in the presence of persons of the opposite gender[.]" (Dkt. 1 ¶¶ 244-45) Plaintiffs further allege that Defendant Williams' "actions in conducting a strip search of the Plaintiffs, were taken intentionally, maliciously and with complete disregard for the Plaintiffs' constitutional rights." (Id., ¶ 249)
As this Court found in Section IV.B.2 of this Order, the strip search conducted by
Plaintiffs allege that due to the strip search, Defendant Williams and Defendant City caused them "great humiliation and embarrassment" and that, as a result, they "have suffered severe emotional harm and ongoing psychological injuries." (Dkt. 1 ¶¶ 278-79) Plaintiffs further contend that "Defendants acted recklessly and with complete indifference to Plaintiffs' right of privacy, and emotional and physical wellbeing." (Id., ¶ 280) In response, Defendant Williams maintains that FLA. STAT. § 768.28(9) shields her from Plaintiffs' state law claims and that her "physical contact with the Plaintiffs [did] not rise to a level that would preclude her from enjoying the protection of this statutory grant of immunity." (Dkt. 49 at 17)
It is well settled that to sustain a claim for intentional infliction of emotional distress in Florida, a plaintiff must prove "(1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct by the defendant; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe." Christman v. Walsh, 416 Fed.Appx. 841, 845 (11th Cir. 2011). "To demonstrate that the defendant engaged in outrageous conduct, the plaintiff must show that the defendant's actions were `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. at 845.
If the record evidence in this case is accepted, a reasonable fact finder could conclude that invading someone's bodily privacy, in a public setting, in the presence of members of the opposite sex, without legal justification, is outrageous. Accordingly, Defendant Williams' Motion for Summary Judgment on this issue is
Defendant City's Motion for Summary Judgment on this Claim is
Upon consideration of the foregoing, this Court hereby
Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1293 (11th Cir.2009) (internal quotations and citations omitted).
