1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:22-cv-61029-XXXX

LATOYA RATLIEFF,

Plaintiff,

v.

CITY OF FORT LAUDERDALE, et al. 

Defendants,

_________________________________/

DEFENDANTS’ CONSOLIDATED REPLY MEMORANDUM IN SUPPORT OF

THEIR CONSOLIDATED MOTION FOR SUMMARY JUDGMENT

Defendants, Paul Cristafaro, Steve Greenlaw, Avery Figueras, Douglas MacDoughall,, 

Robert Dietrich, Rick Maglione (collectively “Non-Ramos Officers”), and the City of Fort 

Lauderdale (“City”), by and through their undersigned counsel, pursuant to Rule 56, Fed. R. Civ. 

P., and Local Rules 7.1 and 56.1, S.D. Fla. L.R. 7.1, hereby reply to Plaintiff’s Combined Response 

in Opposition to Motions for Summary Judgment (DE 170) (“Response”), and state as follows:

Introduction

Defendants have replied to the factual assertions in Plaintiff’s “Introduction” (DE 170 at 

1-3), and hereby incorporate their reply to Plaintiff’s statements. (DE 174 at ¶¶ 106-152, 165-168, 

174-184, 118-119, 163-172, 143-144, 128-129, 151, 83, 56, 187-193, 80).

I. First Amendment Restriction (Counts I, II)

Plaintiff argues that she and other peaceful demonstrators “were in a public-forum set aside 

by FLPD for use by the demonstrators.” (DE 170 at 4). However, that is incorrect with respect to 

the subject intersection at the relevant time. (DE 174 at ¶ 106). While the street had been blocked 

to allow for the movement of demonstrators leaving the concluded protest, there is no evidence it 

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was blocked for the purpose of providing a forum for further protest and demonstration. (Id.).

Thus, the subject intersection where Plaintiff was during the relevant time period was not a 

traditional public forum. See Keister v. Bell, 879 F.3d 1282, 1291 (11th Cir. 2018) (“Neither are 

we persuaded by Mr. Keister’s argument that because the intersection is open as a public 

thoroughfare, it is per se a traditional public forum.”); Keister v. Bell, 29 F.4th 1239, 1255 (11th 

Cir. 2022) (“[T]he Supreme Court has not created a per se rule that sidewalks are traditional public 

fora simply because they are owned by a municipality ... .”).

However, even if the intersection is deemed a public forum, Plaintiff’s Response does not 

address the Defendants’ argument that the activity Plaintiff characterizes as restrictions on speech 

and assembly is part and parcel of what Plaintiff characterizes as retaliation for such speech and 

assembly. (DE 160 at 4-5; DE 170 at 3-4). Moreover, even if the intersection is deemed a public 

forum, there is no evidence establishing that the City or Non-Ramos Officers violated Plaintiff’s 

First Amendment rights, for the same reasons discussed below and in Defendants’ other summary 

judgment filings with respect to Plaintiff’s First Amendment retaliation claim. 

Plaintiff’s reliance on Toole v. City of Atlanta, 798 Fed. Appx. 381 (11th Cir. 2019), is 

misplaced. There, the plaintiff was arrested when filming police conduct “after zooming in on an 

officer’s name and saying it out loud,” he alleged that the arresting officer’s actions “were aimed 

at preventing him from continuing to film police activity,” and other protestors noted that people 

in the crowd were being grabbed and arrested “for filming.” Id. at 387. The court found that reading 

the facts in the plaintiff’s favor, he was arrested “while engaging in protected First Amendment 

conduct ... specifically to stop him from doing so.” Id. at 388 (emphasis added). In contrast to 

Toole, here there is no evidence that the alleged acts which allegedly restricted Plaintiff’s ability 

to exercise her First Amendment rights—the deployment of tear gas and an impact projectile—

were done specifically for the purpose of stopping Plaintiff (or others) from peacefully protesting.

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II. First Amendment Retaliation (Counts III, IV)

Plaintiff raises the Mt. Healthy test (DE 170 at 5); Defendants incorporate their arguments 

in response to Plaintiff’s summary judgment motion regarding that issue. (DE 169 at 2-9).

Plaintiff misrepresents the evidence in arguing that “FLPD deployed KIPs and tear gas 

with the intent to disperse every person present at the Parking Garage.” (DE 170 at 6). Plaintiff’s 

reliance on Ramos’ IA statement is misplaced, as it is undisputed that Ramos did not use tear gas 

that affected the Plaintiff. (DE 165 at ¶ 40). In addition, contrary to Plaintiff’s assertion, none of 

the Non-Ramos Officers have “unequivocally admitted to the allegations in the Third Amended

Complaint that KIPs, along with tear gas, were deployed for the primary purpose of dispersing the 

crowd, thereby preventing Ratlieff and others from assembling.” (Id.) The Non-Ramos Officers 

denied such allegations in their Answers to the Third Amended Complaint, and Plaintiff’s 

characterization of the evidence in paragraphs 169-172 of DE 171 (see DE 170 at 6-7) is 

inaccurate. (See DE 174 at ¶¶ 169-172). Plaintiff also conspicuously omits Defendants Greenlaw 

and MacDoughall from her discussion. The only deployment that is pertinent to Plaintiff’s claims 

is Ramos’ KIP deployment that accidentally struck her, and the evidence is undisputed that 

dispersing the crowd was not even a purpose, much less the primary purpose, of Ramos’ 

deployment. (DE 157 at ¶¶ 75-76, 78; DE 147 at ¶¶ 23, 27-28, 30). Similarly, there is no evidence 

in the record that any of the Non-Ramos Officersspecifically ordered or authorized the deployment 

of tear gas that affected Plaintiff, much less that they did so for the specific purpose of 

indiscriminately dispersing the entire “crowd” of which Ms. Ratlieff was allegedly a part.

As to Plaintiff’s other arguments regarding Defendant Ramos (DE 170 at 7-11), Defendants 

hereby incorporate Ramos’ reply to those arguments (DE 172 at 1-10). Since there was no 

underlying First Amendment violation by Ramos, there can be no First Amendment claim against 

the City or Non-Ramos Officers based on his conduct. (DE 160 at 2, ¶ 4).

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Plaintiff misstates the evidence as to Dietrich’s statements concerning deployment. 

Dietrich was in distress and advised he was getting rocked and bottled and the SWAT officers 

were deploying less lethal munitions to mitigate the violence towards them. (DE 156-23 at 17:325-

326). Although Plaintiff attempts to construe otherwise, Dietrich related a clear intent to disperse 

a crowd of violent agitators. There is zero evidence that any less lethal munitions were deployed 

to disperse peaceful crowd members, including the Plaintiff. 

Plaintiff relies upon her repeated assertions and a lack of justification for John Doe 1’s 

purported “main” tear gas deployment. The evidence has demonstrated that the Unknown Felon 

was in the vicinity at the time and criminal acts were occurring just to the west of the area. Videos 

confirm he previously threw (3) objects at the police. (DE 145 at 3:38; 4:51; 4:59). Assuming 

John Doe 1 or another officer deployed the canister, such would have been justified to thwart 

further criminal acts. Plaintiff expert agrees. (DE 174 at ¶ 150). Plaintiff ignores the testimony of 

Ofc. Rodriguez who responded to an act of violence seconds before the Ramos deployment. (DE 

174 at ¶¶147, 158). The evidence does not support Plaintiff’s assertion of a tear gas deployment to 

NW corner of the intersection directed at her, versus dispelling and deterring continued threats. 

A. Qualified Immunity. 

As noted by Ramos (DE 173 at 11), Plaintiff discusses “clearly established” law in terms 

of broad, general propositions. (DE 170 at 12). Plaintiff relies primarily on Keating v. City of 

Miami, 598 F.3d 753 (11th Cir. 2010), but Defendants have already shown why Keating does not 

control the significantly different facts in this case. (DE 160 at 12-15; DE 169 at 22-24). Mercado 

v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005), also supports the Non-Ramos Officers’ 

entitlement to qualified immunity on the supervisory liability claims and cuts against Plaintiff’s 

argument regarding the officers being at a different location and unaware of Plaintiff’s presence

(DE 170 at 13). In Mercado, the court stated:

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Officer Rouse was in another room during the incident, and did not see Padilla aim 

or fire the gun. She did not tell Padilla to fire the Sage Launcher at Mercado's 

head. Given that Padilla was trained in the proper use of the launcher, that the 

Department's guidelines prohibited firing the launcher at a suspect's head or neck 

except in deadly force situations, and that ... there is no evidence that Padilla has 

used similarly excessive force in the past-all of which are undisputed facts in the 

record-Rouse could not reasonably have anticipated that Padilla was likely to shoot 

Mercado in the head either intentionally or unintentionally. Even under the “failure 

to stop” standard for supervisory liability, Rouse cannot be held liable.

407 F.3d at 1158 (emphasis added). Plaintiff’s reliance on Williams v. Santana, 340 Fed. Appx. 

614 (11th Cir. 2009), is misplaced; there, the “numerous prior incidents” involving an officer’s 

use of force “were sufficient to put [the supervising officer] on notice of misconduct that was 

sufficiently ‘obvious, flagrant, rampant and of continued duration’ to require him to act.” Id. at 

618. Here, there is no evidence that there were any prior incidents suggesting a problem with 

Ramos or the unidentified John Does 1-3, much less that any of the Non-Ramos Officers were 

aware of any such problems that would have triggered a requirement to act.

Plaintiff’s flippant dismissal of De Mian v. City of St. Louis, 86 F.4 1179 (8th Cir. 2023)

(DE 170 at 12-13) ignores the fact that the officer’s pepper spray was not directed at the plaintiff, 

but at a different protestor, and that the plaintiff was more than 20 feet away, “near the edge of the 

arc that he sprayed over the crowd.” Id. at 1181. Plaintiff also ignores the fact that the plaintiff in 

De Mian complained that there had been no dispersal order prior to the officer deploying the pepper 

spray. Id. Although De Mian clearly does not count as “clearly established law” in the Eleventh 

Circuit, its analysis of the First Amendment claim and qualified immunity is instructive. Plaintiff’s 

statement that this case involves “the entire FLPD force deploying tear gas to disperse the entire 

crowd assembled” (DE 170 at 13) ignores the fact that this case is not a class action and only 

concerns the deployments of gas and single KIP that affected Plaintiff.

B. Monell Liability

Defendants have responded to Plaintiff’s factual assertions in DE 174. 

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Delegation – Plaintiff states that “the Second Amended Complaint abandoned the 

delegation theory.” (DE 170 at 17). That is strange because the operative pleading is the Third

Amended Complaint (DE 126) and Plaintiff herself moved for summary judgment on a delegated 

authority Monell theory (DE 159 at 22-23). Now, however, Plaintiff concedes that “there was no 

delegation” (DE 170 at 17), so the City is entitled to summary judgment on the this theory for that 

reason and as argued DE 160 (at 17-18) and in response to Plaintiff’s motion (DE 169 at 17-19).

Ratification – Plaintiff’s argument in this section is purportedly fact-based. Defendants 

have already responded to the same in DE 174.

Failure to Train – Plaintiff incorrectly asserts that the George Floyd protest cases have

“consistently recognized” that the need to train officers on the use of KIPs before giving it to them 

to deploy in crowd control is obvious. (DE 170 at 18). The Johnson case cited in Defendants’ 

motion (DE 160 at 20) reached the opposite conclusion at the summary judgment stage, and the 

two cases Plaintiff cites concern motions to dismiss. Further, in Sanderlin, the court later granted

the city summary judgment on the failure-to-train theory. Sanderlin v. City of San Jose, No. 20-

CV-04824-BLF, 2023 WL 2562400, at *22-24 (N.D. Cal. Mar. 16, 2023). Furthermore, the 

evidence here establishes that Ramos, the only officer who fired a KIP that struck the Plaintiff, 

had been trained in the use of KIPs prior to May 31, 2020. (DE 157 at ¶ 76; DE 147 at ¶ 8).

Plaintiff’s discussion of her experts’ opinions fails to demonstrate a genuine issue of 

material fact sufficient to preclude summary judgment against her on the failure-to-train theory. 

As to Hubbs’ opinion that FLPD failed to adequately train officers (DE 170 at 18), “to hold a 

municipality liable for failure to train it is not enough to show that the training was inadequate. ... 

The city must be on notice that the training was inadequate as well.” AFL-CIO v. City of Miami, 

637 F.3d 1178, 1189 (11th Cir. 2011). “A plaintiff must present evidence not only that the 

municipality was on notice of a need to train but also that the municipality made a choice not to 

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do so.” Id. Here, Plaintiff has not pointed to any such evidence, nor to any evidence of deliberate 

indifference on the part of the City. (DE 170 at 18-19). There is no such evidence. (See DE 157 

at ¶¶ 86-87). In addition, Plaintiff’s recital of her retained experts’ unsubstantiated legal 

conclusions as to the supposedly “obvious’ need for training (DE 170 at 18-19) is insufficient to 

create a fact issue. See Gold v. City of Miami, 151 F.3d 1346, 1352 n.13 (11th Cir. 1998) (“Gold 

presented expert testimony that the need for training and/or supervision in these two areas should 

have been obvious to the City and that the City was deliberately indifferent in not responding. 

However, an expert's conclusory testimony does not control this Court's legal analysis of whether 

any need to train and/or supervise was obvious enough to trigger municipal liability without any 

evidence of prior incidents putting the municipality on notice of that need.”).

III. Fourteenth Amendment Substantive Due Process (Count V, VI)

“Under substantive due process, the question is whether [Defendants’] use of force shocks 

the conscience, a more onerous standard of proof than under the Fourth Amendment.” West v. 

Davis, 767 F.3d 1063, 1067 (11th Cir. 2014). The “essence of the calculus” on a Fourth 

Amendment excessive force claim is “reasonableness,” but “it is far easier for a plaintiff to show 

a defendant's behavior was unreasonable than to show it shocks the conscious.” Davis v. Waller, 

44 F.4th 1305, 1317 (11th Cir. 2022). In a non-custodial situation, as here, “only a purpose to cause 

harm unrelated to the legitimate object of law enforcement satisfies the element of arbitrary 

conduct shocking to the conscience that is necessary for a due process violation.” McCants v. City 

of Mobile, 752 Fed. Appx. 744, 749 (11th Cir. 2018) (Officer's alleged conduct towards mother at 

scene of her daughter's automobile accident, yelling at and punching her, did not shock the 

conscience, as required to state a substantive due process claim) (citing Cnty. of Sacramento v. 

Lewis, 523 U.S. 833, 836 (1998)). Plaintiff does not show the Defendants’ conduct exhibited a 

purpose to cause harm unrelated to legitimate law enforcement objectives (DE 170 at 19-23).

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Plaintiff suggests in conclusory fashion that evidence that FLPD deployed tear gas and 

KIPs “to disperse the crowd” would be sufficient to “shock the conscience,” requiring a jury trial 

on her Fourteenth Amendment claims. (DE 170 at 20-21). However, the evidence does not 

establish that the City or Non-Ramos Officers deployed or ordered the deployment of tear gas or 

the single KIP that affected Plaintiff, to disperse the crowd. Rather, the evidence is that to the 

extent that tear gas and KIPs were authorized and deployed, they were done discriminately and 

only in accordance with established FLPD policies that are facially constitutional and based on the 

judgment of the individual officer(s) on the ground, and the deployments were made in response 

to violent acts (resistance) for the purpose of protecting officers and other, non-violent protestors.

See Carr v. Tatangelo, 338 F.3d 1259, 1273 (11th Cir. 2003), as amended (Sept. 29, 2003)

(officers’ “protective shooting” was not malicious, but “was self-defense and defense of a fellow 

officer,” and “does not rise to the level of egregious conduct that would shock the conscience”).

But even if there was evidence that tear gas and Ramos’ KIP that affected Plaintiff were 

deployed with the intent “to disperse the crowd,” such conduct would not “shock the conscience”

so as to sustain a Fourteenth Amendment claim. (See DE 160 at 21-23). In analyzing a similar 

injury in the less stringent Fourth Amendment context, the Eleventh Circuit held that a plaintiff’s 

“incidental exposure to pepper fumes for a short period of time is not a sufficient basis to state an 

excessive force claim and thus the district court was correct to render summary judgment on this 

claim.” AFL-CIO v. City of Miami, 637 F.3d 1178, 1191 (11th Cir. 2011).

Addressing qualified immunity, Plaintiff states that “the individual defendants had fair 

notice that their conduct was unreasonable.” (DE 170 at 22) (emphasis added). However, 

reasonableness is not the standard on a Fourteenth Amendment claim. Plaintiff argues that Ramos 

“deployed deadly force,” citing Turk, an unpublished case. (DE 170 at 22). The proposition for 

which Plaintiff cites Turk is actually found in a different case discussed therein, Mercado v. City 

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of Orlando, 407 F.3d 1152, 1158 (11th Cir. 2005), where the Eleventh Circuit found that an officer 

violated the Plaintiff’s Fourth Amendment rights “when he intentionally aimed at and shot 

Mercado in the head with the Sage Launcher.” In Mercado, the evidence supported a finding that 

the officer “intentionally aimed for Mercado’s head,” especially since he fired from a distance of 

only six feet. Id. at 1161. Such is not the case here, where the evidence establishes that Ramos was 

not aiming at Ratlieff at all, but rather, between the nipple and waistline of a person who had 

thrown a venting gas canister at the police. (DE 157 at ¶¶ 75-76, 78; DE 147 at ¶¶ 23, 27-28, 30).

Plaintiff’s argument regarding tear gas canisters thrown high in the air and posing a risk of hitting 

someone in the head is not relevant, as there is no evidence that Ratlieff was struck by a gas canister 

or that any officer threw a gas canister at or toward her.

As did the plaintiff in Reed v. Clough, 694 Fed. Appx. 716 (11th Cir. 2017), Plaintiff here 

“cites a variety of cases for the proposition that an officer may not shoot a suspect posing no danger 

to him or others.” Id. at 726. (DE 170 at 22). While that much “is axiomatic,” those cases are

factually distinguishable and each of the cases, like those in Reed, “was decided under the Fourth 

Amendment and not under the more stringent Fourteenth Amendment standard applicable to this 

case.” Reed, 694 Fed. Appx. at 726. As such, they do not constitute clearly established law for 

purposes of a Fourteenth Amendment substantive due process claim. Furthermore, Plaintiff’s 

emphasis of inflammatory language used by non-party officers (DE 170 at 23) to support the notion 

that unspecified “FLPD officers were not engaged in any legitimate law enforcement purpose” (id.

at 22) is neither relevant nor probative to the substantive due process claims against the NonRamos Officers or their entitlement to qualified immunity on such claims. 

As to clearly established law, this Court noted in 2021 that “the only two published 

decisions in which the Eleventh Circuit has found that a defendant's conduct ‘shocked the 

conscience’ involved violent and intentional physical assaults by teachers against children.” 625 

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Fusion, LLC v. City of Fort Lauderdale, 526 F. Supp. 3d 1253, 1271 (S.D. Fla. 2021). “[T]he 

Eleventh Circuit has time and again made clear that only a very narrow range of governmental 

conduct will ‘shock the conscience’—a list that, for instance, doesn't even include a stateemployed college professor's violent and intentional battery against a student or a firefighter's 

sexual assault of an apprentice.” Id. “Even death itself, in fact, sometimes fails to meet this (very) 

high bar.” Id. at 1272 (citing Sacramento, 523 U.S. at 833 (finding that a police officer's “conscious 

disregard” of the risk of death to another motorist was not conscience shocking)). Here, Plaintiff 

has not overcome the Non-Ramos Officers’ entitlement to qualified immunity.

IV. Procedural Due Process (Counts XIV, XV)

Plaintiff incorporates her procedural due process analysis from her summary judgment 

motion (DE 170 at 23), and Defendants hereby incorporate their response to her analysis. (DE 169 

at 9-14). Plaintiff’s reliance on state law providing governmental immunity for killing someone 

during an unlawful riotous assembly (DE 170 at 23) is misplaced, as no one was killed here and 

requirements for immunity are not tantamount to due process.

In response to Plaintiff’s arguments regarding procedural due process, Defendants 

incorporate the arguments from their response to Plaintiff’s summary judgment motion (DE 169 

at 9-14, 19-21). Plaintiff’s argument that it was “feasible” for “FLPD” to inform the demonstrators 

“that they had determined the assembly was unlawful, riotous, or tumultuous before Ms. Ratlieff’s 

shooting” (DE 170 at 24) is based on a false premise, as no “assembly” had been determined to be 

unlawful at the time Plaintiff was struck. (See DE 169 at 20). Plaintiff acknowledges that there are 

“extraordinary situations” where “some valid governmental interest is at stake that justifies 

postponing the hearing until after the [deprivation].” (DE 170 at 24) (citation omitted). Here, 

unquestionably there was a valid governmental interest at stake in protecting police officers and 

non-violent protestors. Moreover, Plaintiff’s “feasibility” argument is unconvincing, especially 

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since the evidence establishes that tear gas had already been dispersed in the vicinity of the subject 

intersection at the time Plaintiff arrived there, and she chose to stop and remain in that area despite 

the fact that she heard sounds of popping weapons and saw tear gas. (DE 156-5 at 106:7-18; 109:4-

13). It would not have been feasible for FLPD to provide any form of “notice” to the Plaintiff when 

gas had been deployed before her arrival, which she was aware. The undisputed evidence also 

establishes that there was no opportunity for Ramos to provide pre-deprivation notice to Plaintiff 

before discharging his KIP round. Thus, the McKinney analysis governs, despite her protestations.

In response to Plaintiff’s argument that the Defendants cited cases where conversion 

provided an adequate post-deprivation remedy (DE 170 at 26), Defendants direct the Court to the 

cases where courts have rejected procedural due process claims arising out of tear gas injuries 

based on the availability of adequate post-deprivation remedies (DE 169 at 10-11), including 

actions against a police officer’s employer for a tort committed by the officer during the 

performance of his official duties. See Young v. Akal, 985 F. Supp. 2d 785, 804 (W.D. La. 2013); 

cf. § 768.28(9)(a), Fla. Stat.

V. Fourth Amendment (Count VIII1)

Plaintiff asserts that video footage shows her “freedom of movement was terminated 

because of the tear gas.” (DE 170 at 27). Plaintiff incorrectly focuses only on the effect of the tear 

gas. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989) (“It is clear ... that a Fourth 

Amendment seizure does not occur whenever there is a governmentally caused termination of an 

individual’s freedom of movement (the innocent passerby) ... .”), quoted in, West v. Davis, 767 

F.3d 1063, 1068 (11th Cir. 2014). A seizure, however, requires the use of force with intent to 

restrain.” Torres v. Madrid, 141 S.Ct. 989, 998 (2021). Force “intentionally applied for some other 

1 Plaintiff’s Response references Count VII (DE 170 at 27), but that count is only directed against 

still-unidentified John Does 1-3 and is not part of the City and Non-Ramos Officers’ Motion.

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purpose” does not satisfy that rule. Id. While Plaintiff urges that the officer’s “subjective intent to 

disperse” is irrelevant, Plaintiff has not shown and cannot show that the deployment of the tear gas 

or impact projectile that affected her objectively manifests an intent to restrain her. See id. (noting 

that “the appropriate inquiry is whether the challenged conduct objectively manifests an intent to 

restrain”). It does not. (See DE 160 at 28-29). Cf. Dundon v. Kirchmeier, 85 F.4 1250, 1257 (8th

Cir. 2023) (concluding it was not clearly established that “use of force to disperse the crowd was 

a seizure”). Construing the facts in the light most favorable to Plaintiff, it is impossible to “see 

how a reasonable person in [Ratlieff’s] position would not have believed that [s]he was free to 

leave at any time.” O’Boyle v. Thrasher, 638 Fed. Appx. 873, 877 (11th Cir. 2016). Plaintiff 

ignores her own testimony that she voluntarily entered an area where tear gas had already been 

deployed. (DE 157 at ¶69). See Sanderlin v. City of San Jose, No. 20-CV-04824-BLF, 2023 WL 

2562400, at *8 (N.D. Cal. Mar. 16, 2023) (As to the tear gas theory, plaintiff “states that she walked 

into an area where tear gas was already present. ... She therefore cannot show that the officers 

intentionally applied tear gas to her. Plaintiff ... therefore cannot show she was seized.”).

Plaintiff contends that the City “misrelies” on Rauen and Jennings (DE 170 at 27), but

Defendants’ Motion does not cite or rely on them in discussing the Fourth Amendment claim. (DE

160 at 26-29). Plaintiff briefly argues there was a seizure because she was “not free to remain in a 

public place of her choosing,” citing Florida v. Bostick, 501 U.S. 429, 436 (1991). (DE 170 at 28).

The Bostick scenario is not applicable here, though, since it is undisputed that there were no police 

requests of Ratlieff or attempts to search or question her, and there is no evidence that she was not 

free to terminate any “encounter” with the police. Bostick, 501 U.S. at 436. In Quraishi v. St. 

Charles Cnty., Mo., 986 F.3d 831 (8th Cir. 2021), the plaintiffs also argued they were seized 

“because they could not stay in their chosen location,” citing Brendlin (which discusses Bostick) 

and Brower, but the court noted that such cases did not give fair warning that deploying tear gas 

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is a seizure where the plaintiffs “were dispersed.” Id. at 840. As in Quraishi, here, Plaintiff has not 

offered any case in which a court has determined that the deployment of tear gas or impact 

munitions constitute a seizure under a “not free to leave” analysis. The Court should decline the 

invitation to do so in this case.

VI. Battery (Counts IX, X)

Plaintiff incorporates the argument regarding the battery claims from her own summary 

judgment motion (DE 170 at 28), and the Defendants hereby incorporate their response to 

Plaintiff’s argument. (DE 169 at 24-27). As to the Non-Ramos Officers, Plaintiff’s Response (DE

170 at 28-29) ignores her concession in her own summary judgment motion that “[t]here are no 

disputed issues of fact that the defendants were acting inside the scope of their employment and 

were not acting in bad faith or with malicious purpose or in a manner exhibiting wanton and willful 

disregard of human rights, safety, or property.” (DE 159 at 29) (emphasis added). In light of that

dispositive admission, the Non-Ramos Officers are entitled to immunity under § 768.28(9)(a), Fla. 

Stat., regardless of Plaintiff’s later argument about another allegedly “disputed fact” (DE 170 at 

29). The Non-Ramos Officers are entitled to summary judgment on the battery claim in Count IX.

Plaintiff’s Response incorrectly asserts that “[o]ther than Defendant Dietrich, the nonRamos defendants do not dispute that they gave orders substantially certain to result in the battery 

against Ratlieff alleged.” (DE 170 at 29). While Plaintiff cites page 30 of the Defendants’ Motion 

(DE 160) for that proposition, nothing on that page or elsewhere in the Motion supports that

contention. Moreover, Defendants have expressly argued to the contrary. (DE 160 at 32; DE 169 

at 26-27). Plaintiff falsely asserts that the City “says” Dietrich gave an order to deploy force. (DE

170 at 29). Plaintiff cites paragraph 208 of her “PRSMF” (id.) which presumably refers to DE 171. 

However, paragraph 208 of DE 171 does not support that contention. If Plaintiff intended to cite ¶ 

207, which seems likely, Plaintiff’s cite does not support her assertion. (See DE 174 at ¶ 207).

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Plaintiff’s assertion that “FLPD deployed tear gas and KIPs against everyone present, to 

effectuate their plan to clear the street” (DE 170 at 29, 30) (citing DE 171 at ¶¶ 163-173) is not an 

accurate characterization of the evidence. (See DE 174 at ¶¶ 163-173).

Plaintiff’s reliance on Vernon v. Medical Management Associates of Margate, Inc., 912 F. 

Supp. 1549 (S.D. Fla. 1996), to support a “concert of action” theory on the battery claim (DE 170 

at 29) is misplaced. As an initial matter, Plaintiff does not plead a “concert of action” theory in her 

battery claims. (DE 126 at 60-62, ¶¶ 392-409). Further, in 1990, the Florida Supreme Court 

declined to adopt the “concert of action” theory in products liability cases and indicated that the 

decision to adopt such a theory must be based on its appropriateness in the type of case at issue. 

See Conley v. Boyle Drug Co., 570 So. 2d 275, 280-81 (Fla. 1990). The Florida Supreme Court 

has not adopted this theory in police liability cases involving battery claims and it is unclear 

whether it would do so, and no Florida appellate court has recognized the theory as viable either.

Even if Florida did recognize a “concert of action” theory of liability for alleged battery by 

police officers, the evidence demonstrates that such a claim must fail under the facts in this case.

Here, Plaintiff has not been able to identify the alleged officer or person who deployed tear gas 

that affected her, and the Florida Supreme Court has “never approved” a concert of action theory 

of liability “in cases where the plaintiff has been unable to identify the specific tortfeasor.” Ray v. 

Cutter Labs., Div. of Miles, Inc., 744 F. Supp. 1124, 1127 (M.D. Fla. 1990) (cited in Vernon); see 

also Valderrama v. Rousseau, No. 11-CIV-24637-COOKE/TURNOFF, 2012 WL 12925174, at 

*6 (S.D. Fla. Sept. 18, 2012) (“Under Florida law, concert of action is proven when a specific 

wrongdoer can be identified.”). In addition, “proof of causation is still required” and “Plaintiff’s 

inability to make this proof renders concert of action ... inapplicable.” Ray, 744 F. Supp. at 1127.

Here, there is no proof that either Ramos, the unidentified John Does 1-3, or any other FLPD 

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officer deployed tear gas or impact projectiles that affected Plaintiff pursuant to any alleged orders 

or directives from the Non-Ramos Officers who are alleged to have committed battery.

The Vernon court dismissed the plaintiff’s “concert of action” claim, finding that the 

plaintiff had not alleged that the defendants formulated a “common plan” to engage in harmful or 

offensive contact with the plaintiff. 912 F. Supp. at 1556. Here, there is no evidence supporting 

the existence of any “common plan” among Ramos, John Does 1-3, and each of the individual 

Non-Ramos Officers, much less a common plan “to commit a tortious act.” Id.; see also Btesh v. 

City of Maitland, No. 6:10-cv-71-Orl-19DAB, 2010 WL 2179126, at *4 (M.D. Fla. June 1, 2010)

(dismissing battery claim based on concert-of-action theory where plaintiff did not plead facts 

plausibly establishing that officer who did not shoot plaintiff acted “in pursuance of a common 

plan or design” with the other officer to shoot plaintiff).

As to the City, Plaintiff incorrectly asserts that the City “does not dispute that Ratlieff was 

tear gassed by one of its employees.” (DE 170 at 30). However, even if Ratlieff was, in fact, 

subjected to tear gas by a City employee, that does not constitute a battery. Plaintiff must prove 

the requisite intent to sustain a battery claim. Since Plaintiff has not been able to identify the person 

or persons who deployed or threw tear gas that actually affected her, there is no evidence of that 

person or persons’ intent. As already discussed at length elsewhere, since the evidence establishes 

that neither Ramos nor the Non-Ramos Officers battered Ratlieff and since there is no evidence 

that the unidentified John Does 1-3 battered her, Plaintiff cannot sustain her battery claim against 

the City in Count X, and the City is entitled to summary judgment on that claim.

CONCLUSION

The Court should grant the City and Non-Ramos Officers summary judgment on Counts I 

through VI, VIII through X, XIV, and XV of the Third Amended Complaint.

Case 0:22-cv-61029-RAR Document 177 Entered on FLSD Docket 02/16/2024 Page 15 of 16
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Response to Plaintiff’s Request for Oral Argument

Defendants submit that a hearing is not necessary for determination of the issues presented 

in their Motion or Plaintiff’s Response.

Respectfully submitted, this 16th day of February, 2024.

/s/ Jeffery R. Lawley

Jeffery R. Lawley, Esq.

Fla. Bar No. 0596027

jrl@bclmr.com

BILLING, COCHRAN, LYLES, 

 MAURO & RAMSEY, P.A.

Las Olas Square, Suite 600

515 E. Las Olas Blvd.

Fort Lauderdale, Florida 33301

Phone: 954-764-7150

Fax: 954-764-7279

Counsel for Defendants,

Attorneys for Defendants, City of Fort Lauderdale, 

Paul Cristafaro, Steve Greenlaw, Avery Figueras, 

Douglas MacDoughall, Robert Dietrich, and Rick 

Maglione

I HEREBY CERTIFY that on this 16th day of February, 2024, I electronically filed a true 

and correct copy of the foregoing with the Clerk of the Southern District of Florida, by using the 

CM/DE system. 

By: _/s/ Jeffery R. Lawley_____

Jeffery R. Lawley, Esq.

Fla. Bar No. 0596027

jrl@bclmr.com

Case 0:22-cv-61029-RAR Document 177 Entered on FLSD Docket 02/16/2024 Page 16 of 16