FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 30, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16281

Non-Argument Calendar

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D. C. Docket No. 08-00328-CV-J-25-HTS

AUDREY PATRICIA SNOVER,

Plaintiff-Appellee,

versus

CITY OF STARKE, FLORIDA, et al.,

Defendants,

JASON CROSBY,

TOMMY MURROW,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 30, 2010)
Before EDMONDSON, CARNES and MARTIN, Circuit Judges.

PER CURIAM:

City of Starke, Florida police officers Jason Crosby and Tommy Murrow

appeal the district court’s denial of their motion for summary judgment on

qualified immunity grounds in Audrey Patricia Snover’s § 1983 action. Officer

Crosby challenges the denial of summary judgment on Snover’s false arrest claim.

Officer Murrow challenges the denial of summary judgment on Snover’s excessive

force claim. We address each claim separately.

I.

“We review de novo a denial of qualified immunity. In an appeal of a denial

of summary judgment based on qualified immunity, all evidence must be viewed in

the light most favorable to the nonmoving party.” Townsend v. Jefferson County,

601 F.3d 1152, 1157 (11th Cir. 2010) (quotation marks omitted). Because Snover

was the nonmoving party, “we set forth the facts, drawn from the evidence

presented, in the light most favorable to [her].” Snow ex rel. Snow v. City of

Citronelle, 420 F.3d 1262, 1265 (11th Cir. 2005). On March 24, 2004, Snover

pulled into the parking lot of her doctor’s office. She got out of her car and walked

to the doctor’s office. As she was entering, Snover noticed a police car drive into

the parking lot with its lights flashing and park directly behind her car. Snover

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walked back to her car, and the police officer, Officer Crosby, told her that she had

been speeding and asked for her driver’s license and registration. Snover handed

him both documents and then went back to the doctor’s office and told the

receptionist that she was getting a speeding ticket. When Snover returned to her

car, Crosby told her to get in her car while he wrote the ticket, which she did.

After he finished writing the ticket, Crosby asked Snover to sign it, but she refused.

Crosby then told Snover: “Ma’am, it’s a new law. You have got to sign this ticket”

and informed her that he could arrest her if she did not sign it. Snover agreed to

sign the ticket and said “I will see you in court.”

After that comment, Officer Crosby pulled out his gun but quickly

reholstered it. He then handcuffed Snover and pulled her out of the car. Once she

was out of the car, he held Snover’s right arm over her head, causing her arm to

come out of its socket. Crosby then used his body to shove and bang Snover down

the side of her car. He placed Snover in the back of his police car and arrested her

on the charges of refusal to sign and accept a traffic citation and resisting an officer

without violence.

Officer Crosby contends that the district court erred by denying summary

judgment on Snover’s false arrest claim against him. He argues that Snover’s

arrest was supported by “arguable” probable cause because she initially refused to

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sign the speeding ticket. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 734

(11th Cir. 2010) (noting that “[t]o receive qualified immunity, an officer need not

have actual probable cause, but only ‘arguable’ probable cause”). “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 Plaintiff.” Id. (quotation marks omitted). “The

standard is an objective one, and therefore does not include an inquiry in the

officers’ subjective intent or beliefs.” Rushing v. Parker, 599 F.3d 1263, 1266

(11th Cir. 2010) (quotation marks omitted); see also Koch v. Rugg, 221 F.3d 1283,

1295 (11thCir. 2000) (“The subjective intent of government actor defendants plays

no part in qualified immunity analysis” (quotation marks omitted)). “Whether an

officer possesses probable cause or arguable probable cause depends on the

elements of the alleged crime and the operative fact pattern.” Brown, 608 F.3d at

735.

Under Florida law, any person cited for a traffic citation “must sign and

accept a citation indicating a promise to appear.” Fla. Stat. § 318.14(2). “Any

person who willfully refuses to accept and sign a summons is guilty of a

misdemeanor of the second degree.” Fla. Stat. § 318.14(3); see also Robinson v.

City of Miami, 867 So. 2d 431, 432 (Fla. 3d DCA 2004) (recognizing that refusal

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to accept and sign a citation is a criminal offense). A person convicted of a

misdemeanor of the second degree can receive up to 60 days in jail. Fla. Stat. §

775.082(4)(b).

The facts when viewed in the light most favorable to Snover are that she

initially refused to sign the speeding ticket but agreed to sign it once Officer

Crosby told her that doing so was required by law. Florida Statute § 318.14(3)

makes it a crime to “willfully” refuse to sign a speeding ticket. “Willfully means

intentionally, knowingly, and purposely.” Koch v. State, No. 2D09-1030, 2010

WL 2671287, at *2 (Fla. 2d DCA July 7, 2010) (quotation marks omitted); see also

Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000) (explaining that “[i]n the

context of criminal violations, ‘wilfully’ implies that a defendant has acted

voluntarily and consciously, not accidentally”); Reliance Ins. Co. v. Lazzara Oil

Co., 601 So. 2d 1241, 1242 (Fla. 2d DCA 1992) (noting that for purposes of

Florida criminal statutes an act is “willful” if it is intentional; the act “need not be

intended to cause harm or violate the law”); Linehan v. State, 442 So. 2d 244, 247

(Fla. 2d DCA 1983) (explaining that “in general intent statutes words such as

‘willfully’ or ‘intentionally,’ without more, indicate only that the person must have

intended to do the act and serve to distinguish that conduct from accidental

(noncriminal) behavior or strict liability crimes”). Snover intentionally chose to

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disobey Officer Crosby’s first instruction to sign the speeding ticket. Based on her

initial refusal, a reasonable officer in Crosby’s position could have believed that

probable cause to arrest Snover existed because Florida law does not appear to

require that she have known of the statutory requirement when she failed to

comply with it. Although Snover later agreed to sign the ticket, the crime was

complete when Snover initially refused to sign it. Crosby’s subjective motivation

for arresting Snover is irrelevant. For those reasons, the district court erred in

denying summary judgment on Snover’s false arrest claim.

II.

Snover was also arrested on June 14, 2004 following a separate incident.

She brought an excessive force claim against Officer Murrow based on that arrest.

Murrow challenges the district court’s denial of summary judgment on that claim.

As an initial matter, he contends that the district court erred in relying on Snover’s

deposition testimony in ruling on summary judgment. Officer Murrow argues that

testimony was discredited by a DVD recording that Snover made during the

incident. Relying on the decision in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769

(2007), he asserts that the district court should have relied on the DVD instead of

Snover’s deposition testimony in ruling on summary judgment. See Scott, 550

U.S. at 380, 127 S.Ct. at 1776 (holding that the court should not have relied on a

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version of events “utterly discredited” by an uncontested videotape but instead

“should have viewed the facts in the light depicted in the videotape”).

In support of summary judgment, the defendants submitted the DVD to the

district court without any accompanying affidavits. Snover disputed the DVD’s

authenticity and admissibility in her opposition to summary judgment. In ruling on

the defendants’ summary judgment motion, the district court excluded the DVD

from its consideration, stating that it was not “properly admitted . . . into

evidence.” We review that evidentiary ruling only for abuse of discretion. See

Taylor v. Food World, Inc., 133 F.3d 1419, 1422 (11th Cir. 1998). “On motions

for summary judgment, [a court] may consider only that evidence which can be

reduced to an admissible form.” Rowell v. BellSouth Corp., 433 F.3d 794, 800

(11th Cir. 2005); see also Peter Letterese & Assocs., Inc. v. World Inst. of

Scientology Enters., 533 F.3d 1287, 1299 (11th Cir. 2008) (“The grant of summary

judgment is appropriate where, upon viewing the admissible evidence and drawing

all reasonable inferences therefrom in the light most favorable to the non-moving

party, there remains no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.”); United States v. Jones, 29 F.3d 1549,

1554 (11th Cir. 1994) (“Summary judgment may be based on any evidence which

would be admissible at trial.”). Authentication is a “condition precedent to

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admissibility.” See Fed. R. Evid. 901(a). Because the defendants merely filed the

DVD with the court and did not authenticate it, the district court did not abuse its

discretion in declining to consider the DVD. See Asociacion de Periodistas de

Puerto Rico, 529 F.3d 52, 56–57 (1st Cir. 2008) (district court properly declined to

consider DVD of local news program, which was submitted without any

accompanying affidavits attesting to its authenticity, in ruling on defendants’

summary judgment motion).

We view the facts now in the record in the light most favorable to Snover.

See Townsend, 601 F.3d at 1157. According to her deposition testimony, on June

19, 2004 Snover was driving in the City of Starke and saw a group of police

officers gathered on the side of the road. As she was driving by, she saw one of the

officers slam a young man up against his car. Snover drove home, got her video

camera, and then returned to that location. While filming the officers, Snover

stopped her car on the road because a police car door was open, making the road

impassible without crossing into another lane. After the officer closed his door,

Snover began driving again at the speed limit. Two police cars followed Snover.

After she traveled about half a block, the officers turned on their flashing lights.

Snover slowed down but did not stop because there was no place to pull over.

Officer Murrow, who was driving another police car, stopped his car in front of

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Snover’s, blocking her from driving forward.

Officer Murrow then got out of his car with his weapon drawn and

approached Snover. As he did, Murrow called Snover a “bitch.” Snover was

instructed to get out of the car but remained inside to send a text message to her

husband notifying him that she was being arrested and that he needed to come get

her at the jail. When Snover did not get out of the car, two other officers on the

scene forcibly removed her from the driver’s seat. Once she was outside of the car,

Officer Murrow grabbed the video camera that Snover was holding in her left

hand. “[T]he strap caught [Snover’s] fingers” and Murrow “ripped . . . two fingers

totally back,” causing damage to ligaments and tendons in those fingers. Another

officer then handcuffed Snover and put her in the back of a police car. She was

arrested on charges of aggravated fleeing and attempting to allude and resisting

arrest without violence.

Snover contends that Officer Murrow used excessive force when he forcibly

removed the video camera from her hand. The district court agreed and denied

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Murrow’s summary judgment motion, which he contends was error. An excessive

force claim is “properly analyzed under the Fourth Amendment’s ‘objective

reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865,

Snover does not contend that any other actions by any of the officers on the scene 1

amounted to a Fourth Amendment violation. 

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1867–68 (1989); see also Brown, 608 F.3d at 733 (“A law enforcement officer

receives qualified immunity for use of force during an arrest if an objectively

reasonable officer in the same situation could have believed the use of force was

not excessive.”). “The reasonableness of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007)

(quotation marks omitted); see also Davis v. Williams, 451 F.3d 759, 767 (11th

Cir. 2006) (“Whether the force used is reasonable turns on ‘the facts and

circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.’”); Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002).

At the time that Officer Murrow grabbed the video camera from Snover’s

hand, she was not restrained. Cf. Lee v. Ferraro, 284 F.3d 1188, 1198–99 (11th

Cir. 2002) (finding excessive force where officer slammed the plaintiff’s head on

the trunk of a car after she was handcuffed); Slicker v. Jackson, 215 F.3d 1225,

1233 (11th Cir. 2000) (finding excessive force where officers “repeatedly hit [the

plaintiff’s] head on the pavement, kicked him, and knocked him unconscious” after

he was handcuffed). A reasonable officer in Officer Murrow’s position could have

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believed that the force used was lawful on the basis that the video camera in

Snover’s hand was a potential weapon that posed a threat to officer safety. See

United States v. Gualdado, 794 F.2d 1533, 1535 (11th Cir. 1986) (recognizing that

“[a]lmost any object which as used or attempted to be used may endanger life or

inflict great bodily harm, or which is likely to produce death or great bodily injury,

can in some circumstances be a dangerous weapon”) (quotation marks omitted);

see also Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (noting that “[t]he

government has a weighty interest in protecting . . . police officers from the threat

of force”); Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (recognizing

that “the typical arrest involves some force and injury”); id. (finding no excessive

force where officer “grabbed plaintiff’s arm, twisted it around plaintiff’s back,

jerking it up high to the shoulder and then handcuffed plaintiff”). Given Snover’s

earlier lack of cooperation in failing to get out of her car when ordered to do so, a

reasonable officer in Murrow’s position could have believed that she would use the

video camera in a hostile manner. The district court erred in denying summary

judgment on Snover’s excessive force claim against Officer Murrow.

REVERSED AND REMANDED.

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