[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-11073

____________________

ANDREW JOSEPH, JR., 

as natural father, next friend and personal representative 

of the Estate of Andrew Joseph, III deceased, 

Plaintiff-Appellee,

versus

CHAD CHRONISTER, 

FLORIDA STATE FAIR AUTHORITY,

an instrumentality of the State of Florida, 

MARK CLARK, in his individual capacity, 

Defendants-Appellants,

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2 Opinion of the Court 20-11073

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:16-cv-00274-MSS-CPT

____________________

Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.

PER CURIAM:

Following oral argument and a review of the record, we affirm the district court’s order rejecting the qualified immunity and 

sovereign immunity claims of the appellants. Because the parties 

are familiar with the record, we set out only what is necessary to 

explain our decision, and given the summary judgment posture of 

the case, we view the facts in the light most favorable to the plaintiff, Andrew Joseph, Jr. (“Mr. Joseph”). See Tolan v. Cotton, 572 

U.S. 650, 657 (2014) (qualified immunity under federal law); Green 

v. Graham, 906 F.3d 955, 959 (11th Cir. 2018) (sovereign immunity 

under state law). 

I 

The Florida State Fair, organized by the Florida State Fair 

Authority, takes place every year at fairgrounds located near 

Tampa. The FSF has a Student Day for which the FSFA issues free 

admission tickets to students at area schools. Andrew Joseph, III 

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20-11073 Opinion of the Court 3

(“Andrew”)—who was 14 at the time—attended Student Day at 

the FSF on February 7, 2014. 

After being dropped off with four friends at Gate 3 of the FSF 

at around 6:30 p.m., Andrew was seized and detained by law enforcement officers employed by the Hillsborough County Sheriff’s 

Office and/or the FSFA. The seizure took place following a disturbance at the FSF’s midway. Corporal Mark Clark took Andrew to a 

processing area in the FSF fairgrounds where all children who had 

been seized and detained were held. 

Corporal Clark then turned Andrew over to Deputy Henry 

Echenique. At the processing area, Deputy Echenique filled out an 

ejection form for Andrew based on information provided to him 

by Corporal Clark. The form stated that the basis for Andrew’s 

ejection was “running through the mid-way causing disorderly 

conduct.” D.E. 255 at 2, ¶ 5. Corporal Clark did not attempt to call 

Andrew’s parents to let them know their son had been detained 

and was in custody, as required by Fla. Stat. § 985.101(3). Nor did 

any of the other HCSO officers at the processing area.

Andrew was in custody at the processing area for about 40 

minutes, from 8:00 p.m. to about 8:41 p.m. During that time, officers ran a background check on him to ensure that he was not 

wanted, missing, or endangered. They also took his photograph. 

At 8:41 p.m., Deputy Stephen Jones—who at the time was 

working for the FSFA—and another officer put Andrew and other 

minors into an HCSO transport van and drove them to a drop-off 

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point outside Gate 4 of the FSF. The drop-off point was near Orient 

Road and Interstate 4. The officers did not attempt to release Andrew and the other minors to their parents or other responsible 

adults, as required by Fla. Stat. § 985.115(2)(a), and told them they 

would be arrested if they tried to re-enter the FSF fairgrounds.

Andrew did not call his parents while waiting at Gate 4 because he was afraid he would get in trouble. He also declined a ride 

from a one of his friend’s parents. When he and his friend, C.T. 

(who was 12 years old), asked an officer at Gate 4 if they could reenter the FSF fairgrounds to walk to their pre-arranged pick-up 

point, the officer told them they could not and they faced arrest for 

trespassing.

Andrew and C.T. walked down the sidewalk on Orient Road 

and under Interstate 4 to the Hard Rock Casino. Andrew and C.T. 

then ran across Interstate 4 from the Hard Rock Casino towards 

the FSF. But after Andrew received a phone call, he indicated to 

C.T. that they needed to turn around. When Andrew and C.T. 

tried to run back across Interstate 4, Andrew was struck and killed 

by a car at approximately 10:43 p.m.

Mr. Joseph, Andrew’s father, filed a lawsuit against a number of defendants. As relevant here, he asserted a state wrongful 

death claim against Hillsborough County Sheriff Chad Chronister 

in his official capacity, a state wrongful death claim against the 

FSFA on a theory of vicarious liability, a state wrongful death claim 

against the FSFA on a theory of direct liability, a federal claim under 42 U.S.C. § 1983 against Sheriff Chronister, and federal claims 

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20-11073 Opinion of the Court 5

under § 1983 against Corporal Clark and Deputies Echenique and 

Jones in their individual capacities. 

These defendants moved for summary judgment on the 

claims against them on the basis of sovereign immunity and qualified immunity, but the district court denied their motions. Sheriff 

Chronister, Corporal Clark, and the FSFA now appeal.

II 

Our review of the district court’s summary judgment order 

is de novo. See, e.g., Morrison v. Magic Carpet Aviation, 383 F.3d 

1253, 1254 (11th Cir. 2004). With that plenary standard in mind, we 

turn to the arguments of the appellants. 

A 

To have Article III standing, a plaintiff must allege and ultimately prove three things: (1) an injury in fact; (2) causation; and 

(3) redressability. See Moody v. Holman, 887 F.3d 1281, 1286 (11th 

Cir. 2018). In the Article III context, causation means that the plaintiff’s injury is “fairly traceable” to the defendant’s actions. See Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). 

Sheriff Chronister and Corporal Clark argue that Mr. Joseph 

lacks Article III standing because he has not sufficiently proven causation. They assert that the actions of Andrew (and those of other 

parties) and the time lapse of over two hours (from the seizure to 

Andrew’s death) “create too substantial a break in the ‘fairly traceable’ chain.” Br. for Appellants Chronister and Clark at 55–57. 

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Our cases hold that, in a qualified immunity appeal under 

the collateral order doctrine, a defendant cannot raise (and we 

therefore do not decide) whether the plaintiff has Article III standing. See Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 n.3 

(11th Cir. 1998); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 

1326, 1334 (11th Cir. 1999); Scott v. Taylor, 405 F.3d 1251, 1256 n.8 

(11th Cir. 2005). Sheriff Chronister and Corporal Clark do not 

acknowledge or discuss these cases in their brief, and we see no 

basis (legal or otherwise) for ignoring them. So, we do not address 

in this appeal whether Mr. Joseph has Article III standing. 

B 

We turn to the merits and begin with Corporal Clark. Mr. 

Joseph sued Corporal Clark under § 1983, alleging that he violated 

Andrew’s Fourth Amendment rights when he seized and detained 

him. On appeal, Corporal Clark—who cannot remember the 

events related to Andrew on the night of February 7, 2014—argues 

that he is entitled to qualified immunity because he had probable 

cause, or at least arguable probable cause, to seize and detain Andrew for committing a trespass under Fla. Stat. § 616.185(a) or obstruction of justice under Fla. Stat. § 843.02. According to Corporal 

Clark, Andrew picked up the hat of one of his friends who had been 

detained by the officers, ran after the officers, and “interjected himself into [their] escort.” Br. for Appellants Chronister and Clark at 

7–8, 28–29, 46. Corporal Clark also contends that any Fourth 

Amendment right that he may have violated was not clearly established. See id. at 47–54. Given the record before us, and applying 

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20-11073 Opinion of the Court 7

the governing qualified immunity standard, see, e.g., District of 

Columbia v. Wesby, 138 S. Ct. 577, 589–91 (2018), we disagree with 

Corporal Clark. 

“By now it is well established that ‘[a] warrantless arrest 

without probable cause violates the Fourth Amendment and forms 

a basis for a [§] 1983 claim.’” Carter v. Butts Cnty., 821 F.3d 1310, 

1319 (11th Cir. 2016) (quoting Ortega v. Christian, 85 F.3d 1521, 

1525 (11th Cir. 1996)). Probable cause exists if the facts and circumstances within the officer’s knowledge would cause a prudent person to believe, under the circumstances, that the suspect has committed, is committing, or is about to commit an offense. See id. at 

1318. Arguable probable cause, which provides a basis for qualified 

immunity, exists where reasonable officers in the same circumstances and possessing the same knowledge could have believed 

that probable cause existed. See id. at 1320. 

In assessing the questions of probable cause and qualified 

immunity, we repeat that we must take the evidence in the light 

most favorable to Mr. Joseph. See Tolan, 572 U.S. at 657. Here the 

evidence, viewed from that perspective, indicates that Andrew ran 

after his friend’s hat, not the officers. Nor did he interfere with the 

officers’ seizure of his friend or obstruct the officers in the performance of their duties. Instead, he merely picked up the hat belonging to his friend, acknowledged his friendship with him, and attempted to give the hat to him. See D.E. 283 at 3, 32–33 (testimony 

of C.T. and R.P.). The act of picking up a friend’s hat and trying to 

return it, without more, did not give Officer Clark probable cause 

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8 Opinion of the Court 20-11073

or even arguable probable cause to seize and detain Andrew for 

trespass on the grounds of the FSF under § 616.185(a) (prohibiting 

the commission of “any act that disrupts the orderly conduct of any 

authorized activity of the fair association in charge”) or for obstruction under § 843.02 (prohibiting the “obstruct[ion]” of a law enforcement officer without violence). 

Corporal Clark is wrong in asserting that Andrew ran after 

the officers and interfered with their detention and escort of his 

friend. That factual assertion does not view the summary judgment 

record in the light most favorable to Mr. Joseph. As the district 

court put it, for summary judgment purposes “Andrew was not, in 

any conceivable way, committing a crime, or even breaking any 

rule.” D.E. 283 at 36. To the extent that Corporal Clark asserts that 

he was merely giving Andrew a trespass warning, or that the encounter was a consensual one, those assertions are belied by the 

lengthy in-custody detention by armed officers in the processing 

area following Andrew’s seizure. 

Insofar as the clearly established prong of qualified immunity is concerned, Corporal Clark does not explain how or why a 

reasonable officer could have believed or thought that picking up a 

friend’s hat and attempting to give it to him was behavior that disrupted the orderly conduct of the FSF, or the FSFA and its employees or agents. We understand, of course, that Corporal Clark does 

not bear the burden on this point, but the question is whether, under the circumstances, he would have had fair warning that his 

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20-11073 Opinion of the Court 9

seizure and detention of Andrew violated the Fourth Amendment. 

See Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc).

We agree with the district court that the law was clearly established in February of 2014 that mere proximity to one who is 

suspected of (or has committed) an offense does not provide probable cause or arguable probable cause for a detention. See, e.g., 

Swint v. City of Wadley, 51 F.3d 988, 997 (11th Cir. 1995) (denying 

qualified immunity to officers who searched and seized (but did not 

arrest) patrons at a nightclub when trying to find a single individual 

who sold drugs to an undercover agent: “Probable cause to arrest 

one suspect, and even probable cause to believe that a number of 

other or unidentified people had sold drugs in the establishment in 

the past, did not give the officers carte blanche to seize everyone 

who happened to be in the Club when the two raids took place.”). 

And, again, Andrew did nothing (when the evidence is viewed in 

the light most favorable to Mr. Joseph) that would indicate that he 

had disrupted or obstructed the activities of the officers or of anyone associated with the HCSO, the FSF, or the FSFA. See Davis v. 

Williams, 451 F.3d 759, 766–67 (11th Cir. 2006) (officers did not 

have probable cause, or arguable probable cause, to arrest homeowner for obstruction of justice or disorderly conduct under Florida law based on his approaching officers conducting a traffic stop 

near his home and asking them if he could direct the traffic of his 

guests onto his own property).

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10 Opinion of the Court 20-11073

C 

Sheriff Chronister and the FSFA contend that they are entitled to sovereign immunity under Florida law on Mr. Joseph’s 

state-law claims for wrongful death. We disagree.

“[A]n order denying state official or sovereign immunity is 

immediately appealable if state law defines the immunity at issue 

to provide immunity from suit rather than just a defense to liability.” Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1367 (11th Cir. 

2016). Although we had previously read Florida law to mean that 

sovereign immunity is simply an immunity from liability, see id. at 

1368–70, the Florida Supreme Court has recently told us that our 

reading of Florida law has been wrong. Because we now know that 

“[i]n Florida, sovereign immunity is both an immunity from liability and an immunity from suit,” Fla. Highway Patrol v. Jackson, 

288 So. 3d 1179, 1185 (Fla. 2020), we have jurisdiction to address 

the denial of sovereign immunity to Sheriff Chronister and the 

FSFA. 

1 

Sheriff Chronister devotes much of his sovereign immunity 

argument to the contention that he did not owe Andrew any duty 

under Florida law. See Br. for Appellants Chronister and Clark at 

21–34. The FSFA also makes the same argument, albeit in a more 

summary way. See Br. for the FSFA at 19–21. The Florida Supreme 

Court, however, has declared that “duty and sovereign immunity 

are conceptually distinct,” and that the question of sovereign 

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20-11073 Opinion of the Court 11

immunity is addressed only after a court determines that a duty is 

owed. See Sanchez v. Miami-Dade Cnty., 286 So. 3d 191, 193 (Fla. 

2019) (“[I]f a duty of care is owed, it must then be determined 

whether sovereign immunity bars an action for an alleged breach 

of that duty.”). The Florida Supreme Court has also explained that 

“[u]nder traditional principles of tort law, the absence of a duty of 

care between the defendant and the plaintiff results in a lack of liability, not application of immunity from suit.” Id. at 194 (emphasis 

in original). See also Pollock v. Fla. Dep’t of Highway Patrol, 882 

So. 2d 928, 932 (Fla. 2004) (“If no duty of care is owed with respect 

to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune 

from suit need not be reached.”).

Because the question of duty goes to the merits of Mr. Joseph’s wrongful death claim, and not to the existence of sovereign 

immunity under Florida law, Sheriff Chronister and the FSFA cannot raise the duty issue in this sovereign immunity appeal. The 

only proper question for us in an interlocutory appeal raising a 

state-law sovereign immunity claim is whether the defendant is immune under the relevant state law, and in addressing that question 

we assume—as the district court concluded—that Sheriff Chronister and the FSFA owed Andrew a duty of care.

2 

The Florida Supreme Court has held that under Fla. Stat. §§ 

768.28(1)–(5), which waives sovereign immunity in certain circumstances, some “‘discretionary’ government[ ] functions remain 

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12 Opinion of the Court 20-11073

immune from tort liability.” Com. Carrier Corp. v. Indian River 

Cnty., 371 So. 2d 1010, 1022 (Fla. 1979). It has distinguished between “planning” decisions (which are immune) and “operational” 

decisions (which are not). See id. Applying this framework, it held 

in Commercial Carrier that, once a decision had been made to install a traffic light and a traffic sign at an intersection, their maintenance was “operational level activity.” Id. 

The district court ruled that sovereign immunity did not apply to the alleged operational negligence of the officers who implemented the security policies adopted by the FSFA and the HCSO—

i.e., the decisions to not call Andrew’s parents and to drop Andrew 

off at Gate 4 at night. See D.E. 283 at 25–28. It relied on two Florida 

Supreme Court sovereign immunity cases: Kaisner v. Kolb, 543 So. 

2d 732 (Fla. 1989), and Henderson v. Bowden, 737 So. 2d 532 (Fla. 

1999). As relevant here, Kaisner held that sovereign immunity does 

not apply to how police officers carry out a traffic stop; though the 

officers’ decision “involve[s] a degree of discretion,” the decision is 

“operational, not discretionary.” 543 So. 2d at 737–38. Henderson, 

which involved the alleged negligence of officers who after a DUI 

arrest directed an intoxicated person to drive a car to a nearby location, similarly held that sovereign immunity does not apply to “a 

situation in which sheriff’s deputies are alleged to have acted negligently during a roadside detention.” 737 So. 2d at 538. 

In his brief, Sheriff Chronister does not address the district 

court’s conclusion that the officers’ methods and means of carrying 

out planning decisions made by the FSFA and the HCSO are 

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20-11073 Opinion of the Court 13

operational in nature. See Br. for Appellants Chronister and Clark 

at 34–40. Without such briefing, we cannot say that the district 

court erred. First, under Florida law, officers owe a common law 

duty of care to those they take into custody, and “this duty of exercising reasonable care . . . is an operational level function.” Dep’t 

of Health & Rehab. Servs. v. Whaley, 574 So. 2d 100, 103 (Fla. 

1991). Second, where a district court bases its decision on a given 

ground, an appellant who fails to address that ground in his brief 

has effectively abandoned his challenge to the ruling. See Sapuppo 

v. Allstate Floridian Ins., 739 F.3d 678, 680–81 (11th Cir. 2014). So, 

we affirm the district court’s ruling that Sheriff Chronister is not 

entitled to sovereign immunity at the summary judgment stage of 

the case. 

For its part, the FSFA argues that sovereign immunity applies because its decision to turn over all security issues to the 

HCSO, and the policies developed by the HCSO for the FSF, were 

discretionary planning decisions. And it seeks to distinguish Kaisner 

and Henderson on that basis. See Br. for the FSFA at 13–20. But the 

FSFA’s focus misses the point. Mr. Joseph is not suing the FSFA for 

hiring the HCSO to provide security at the FSF. Nor is he suing the 

FSFA for the general policies created by the HCSO. He is instead 

suing for the operational negligence of officers on the ground in 

failing to notify Andrew’s parents and in choosing to drop Andrew 

off at Gate 4 at night. The question is whether that alleged negligence is operational in nature.

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14 Opinion of the Court 20-11073

Given the record before us, and based on Commercial Carrier, Kaisner, and Henderson, we agree with the district court that 

the actions of the officers who dealt with Andrew after his seizure 

are operational. Those actions may have involved some discretion, 

as was the case in Henderson, but that does not change their operational character. 

The FSFA alludes generally to the event action plan developed by the HCSO for the FSF but does not quote or summarize 

any of its provisions. The deposition testimony indicates that the 

plan is an internal HCSO document, see D.E. 243-2 at 185–86, and 

a copy of the plan can be found at D.E. 236-4. Significantly, the plan 

does not direct or order officers working at the FSF, as a policy/planning matter, to ignore Fla. Stat. § 985.101(1)(b) and not attempt to call or notify the parents of minors who have been seized 

and/or detained. Nor does the plan direct or order officers working 

at the FSF, as a policy/planning matter, to ignore Fla. Stat. 

§ 985.115(2)(a) and not release detained minors into the custody of 

their parents or other responsible adults. Finally, nor does the plan 

direct or order officers working at the FSF, as a policy/planning 

matter, to take detained minors who have been ejected to Gate 4—

no matter the time of day—and leave them there to their own devices. Absent such language in the plan devised by the HCSO for 

the FSF, we cannot say that the alleged negligent acts of the officers 

are protected by sovereign immunity. 

We add one final point. The FSFA contends that the HCSO’s 

actions regarding security were not imputable to it once it made 

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20-11073 Opinion of the Court 15

the decision to delegate responsibility for security to HCSO. As the 

district court correctly explained, however, the FSFA’s argument is 

short on legal support:

The FSFA conspicuously cites no authority for the 

proposition that a state instrumentality can, as a policy decision, delegate to a third party its obligations 

and absolve itself from all liability for the operational 

negligence of its appointed agents—the Court can 

find none and declines to invent any such precedent 

in this Order.

D.E. 283 at 25. In its brief here, the FSFA again fails to cite any cases 

holding that a state agency can delegate its public safety duties to a 

third-party contractor and thereby enjoy the benefits of sovereign 

immunity. Even the case cited by the FSFA, McCall v. Alabama 

Bruno’s, Inc., 647 So. 2d 175, 176 (Fla. 1st Dist. Ct. App. 1994) (citing Restatement (Second) Torts § 49 (1965) and its comments), says 

that there are some “non-delegable duties arising out of some relation toward the public or the particular plaintiff” which cannot be 

avoided through the hiring of a contractor.

III 

The district court’s summary judgment order is affirmed.

AFFIRMED.

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JORDAN, Circuit Judge, Concurring:

I join the court’s opinion in full and write separately to address some of the issues raised by the appellants and not reached 

by the court.

* * * * * * *

In a qualified immunity appeal under the collateral order 

doctrine, we do not address claims that the plaintiff lacks Article III 

standing. See, e.g., Scott v. Taylor, 405 F.3d 1251, 1256 n.8 (11th 

Cir. 2005). But even if we could adjudicate the Article III standing 

of Mr. Joseph in this appeal, I am not persuaded by argument of 

Sheriff Chronister and Officer Clark. 

At the summary judgment stage, the question is not 

whether Mr. Joseph has conclusively established Article III causation but rather whether he has submitted sufficient evidence—accepted as true—to create an issue of fact and permit the jury to find 

that there is causation. See Bishoff v. Osceola Cnty., 222 F.3d 874, 

878 (11th Cir. 2000). Viewing the record in the light most favorable 

to Mr. Joseph, a reasonable jury could find that Andrew’s death is 

“fairly traceable” to the decisions/actions/omissions of the defendants to (a) not call his parents as required by Florida law; (b) not 

turn Andrew over to his parents or another adult as required by 

Florida law; (c) leave Andrew to fend for himself at Gate 4, a dropoff area near Interstate 4, at night; and (d) tell Andrew that he 

would be arrested if he tried to renter the FSF grounds in order to 

get back to Gate 3, where he had been dropped off. 

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2 [JORDAN, J., Concurring] 20-11073

To the extent that Sheriff Chronister and Officer Clark are 

arguing (or suggesting) that proximate cause is missing, any such 

argument goes not to Article III standing but to the merits of Mr. 

Joseph’s claims for damages. See Moody v. Holman, 887 F.3d 1281, 

1287 (11th Cir. 2018). As the Supreme Court has explained, “[p]roximate caus[e] is not a requirement of Article III standing.” Lexmark 

Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6 

(2014). 

Indeed, the Supreme Court has rejected an Article III standing argument much like the one that Sheriff Chronister and Officer 

Clark press here. See Bennett v. Spears, 520 U.S. 154, 168–69 (1997) 

(rejecting defendant’s Article III argument that any injury would be 

the result of another agency’s actions: “This wrongly equates injury ‘fairly traceable’ to the defendant with injury as to which the 

defendant’s actions are the very last step in the chain of causation. 

While . . . it does not suffice if the injury complained of is th[e] 

result [of] the independent action of some third party not before 

the court, that does not exclude injury produced by determinative 

or coercive effect upon the action of someone else.”) (citations and 

internal quotation marks omitted). We have similarly explained 

that “a plaintiff need not show that the defendant’s actions were 

the very last step in the chain of causation.” Wilding v. DNC Servs. 

Corp., 941 F.3d 1116, 1126 (11th Cir. 2019). Furthermore, “[t]here 

is no Article III requirement that Mr. [Joseph] ‘demonstrate a connection between the injur[y] [he] claim[s] and the . . . rights being 

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20-11073 [JORDAN, J., Concurring] 3

asserted.’” Moody, 887 F.3d at 1287 (quoting Duke Power Co. v. 

Carolina Envt’l Study Grp., Inc., 438 U.S. 59, 78 (1978)). 

* * * * * * *

I agree with the court that Sheriff Chronister’s appeal of the 

denial of sovereign immunity does not allow us to address whether 

a duty was owed to Andrew. But because Sheriff Chronister presses 

the duty issue so forcefully, I explain why I believe his argument is 

flawed.

In Florida, the “existence of a duty is a legal question.” Limones v. Sch. District of Lee Cnty., 161 So. 3d 384, 389 (Fla. 2015). A 

duty in Florida can arise from (1) statutes or regulations, (2) judicial 

interpretations of statutes or regulations, (3) sources in the common law or judicial precedent, or (4) the general facts of a case. See 

id. For a number of reasons, I agree with the district court that the 

Sheriff, through his employees, agents, and subordinates, had a 

general duty to ensure the safety of minor children like Andrew 

who have been seized and detained.

First, several Florida statutes create a duty of care where detained minors are concerned. I describe them in detail. 

One Florida statute, Fla. Stat. § 985.101(1)(b), provides that 

a child (i.e., a minor) like Andrew can be taken into custody for a 

“delinquent act or violation of law.” That same statute also provides in a different subsection that when a child is taken into custody for such an act, “the person taking the child into custody shall 

attempt to notify the parent, guardian, or legal custodian of the 

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4 [JORDAN, J., Concurring] 20-11073

child,” and “shall continue such attempt until the parent, guardian, 

or legal custodian of the child is notified or the child is delivered to 

the [Department of Juvenile Justice] under [Fla. Stat. §§] 985.14 and 

985.145, whichever occurs first.” § 985.101(3). 

Another Florida statute, Fla. Stat. § 985.115(2), provides that 

“unless there is a need to hold the child, a person taking a child into 

custody shall attempt to release the child” to (a) the child’s parent, 

guardian, or legal custodian and if they are unavailable to “any responsible adult;” (b) contingent upon specific appropriation, to an 

authorized shelter; (c) if the child is suffering from a serious physical condition, to a law enforcement officer who shall take the child 

to a hospital for evaluation and treatment; (d) if the child is believed 

to be mentally ill, to a law enforcement officer who shall take the 

child to a designated facility for evaluation; (e) if the child appears 

to be intoxicated and has threatened physical harm on himself or 

others or is incapacitated by substance abuse, to a law enforcement 

officer who shall take the child to a hospital, addiction facility, or 

treatment resource; or (f) if available, to a juvenile assessment center equipped and staffed to assume custody of the child for the purpose of assessing his needs. That same statute further provides in 

a different subsection that upon taking a child into custody, a law 

enforcement officer may deliver the child “for temporary custody, 

not to exceed 6 hours, to a secure booking area of a jail or other 

facility intended or used for the detention of adults, for the purpose 

of fingerprinting or photographing the child or awaiting appropriate transport . . . provided no regular sight and sound contact 

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20-11073 [JORDAN, J., Concurring] 5

between the child and adult inmates or trustees is permitted and 

the receiving facility has adequate staff to supervise and monitor 

the child’s activities at all times.” § 985.115(3). 

Taken together, these Florida statutes, §§ 985.101(1), (3) and 

985.115(2), (3), create a general duty on the part of law enforcement officers to notify the parent, guardian, or legal custodian of a 

child taken into custody, and to safely release a child who is in custody as directed. The statutes set out detailed and mandatory instructions for what officers are to do (in terms of notification and 

release) when a child is taken into custody in order to make sure 

that the child is safe and returned to the adults who care for him. 

They therefore establish a duty of care. See Restatement (Second) 

of Torts § 286 (1965) (explaining when a statute can be adopted by 

a court as setting out the standard of care). The situation here is 

similar to that in Florida Department of Corrections v. Abril, 969 

So. 2d 201, 205–06 (Fla. 2007), where the Florida Supreme Court 

held that that state statutes created a duty on the part of laboratories to maintain HIV test results confidential. See also Estate of Logusak ex rel. Logusak v. City of Togiak, 185 P.3d 103, 108 (Alaska 

2008) (pursuant to statute requiring police to release intoxicated 

minor to the custody of her parents unless there was a lawful reason for further detention, “police officers did have a duty to act reasonably in releasing [the minor] to her parents”).

Sheriff Chronister argues he owed no duty to Andrew because these two statutes only apply to situations where a child is 

“placed under arrest.” But the statutes do not speak of a child who 

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6 [JORDAN, J., Concurring] 20-11073

is “placed under arrest”; they speak of a child who is taken “into 

custody.” See §§ 985.101(1), 985.115(2), (3). And taking a person 

(including a child) “into custody” does not require a formal arrest. 

As the Florida Supreme Court has held, a person is “in custody” 

when there is a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Roman v. 

State, 475 So. 2d 1228, 1231 (Fla. 1989) (emphasis added and citation and internal quotation marks omitted). 

The “in custody” analysis, moreover, focuses on how a reasonable person would have perceived the situation. See id. Viewing 

the facts in the light most favorable to Mr. Joseph, Andrew was in 

custody from the time that he was taken to the processing area and 

was still in custody when he was driven to Gate 4 near Interstate 4 

and left there. He had been seized against his will inside the FSF 

fairgrounds, taken in an HCSO van to a processing area, held there 

for about 40 minutes—during which time the officers ran a background check on him to ensure that he was not wanted, missing, 

or endangered, and took his photograph—and then driven by officers to Gate 4, where he was left to fend for himself. If that is not 

custody, I don’t know what is.

There is also a common-law basis for concluding that Sheriff 

Chronister owed Andrew a duty of reasonable care under the circumstances. Under Florida law a “special tort duty does arise when 

law enforcement officers become directly involved in circumstances which place people within a ‘zone of risk’ by creating or 

permitting dangers to exist, by taking persons into police custody, 

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20-11073 [JORDAN, J., Concurring] 7

detaining them, or otherwise subjecting them to danger.” Pollock 

v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 932 (Fla. 2004). 

Indeed, the Florida Supreme Court has held that a “person taken 

into custody . . . ‘is owed a common law duty of care.’” Dep’t of 

Health & Rehab. Servs. v. Whaley, 574 So. 2d 100, 103 (Fla. 1991) 

(citation omitted). Given these cases, Sheriff Chronister’s argument fails.

The existence of a duty of care under these circumstances 

makes sense. Generally speaking, a “person who has custody of another owes a duty of reasonable care to protect the other from foreseeable harm.” Dan B. Dobbs et al., The Law of Torts § 418 (2d ed. 

June 2021 update). When the police detain a minor, they “owe a 

duty of reasonable care to protect the minor’s safety while he or 

she is involuntarily detained,” and “the majority of courts have 

held that there is a greater degree of care owed a juvenile.” Catherine Palo, Wrongful Death of a Minor in Police Custody, 69 Am. 

Jur. Trials 1 §§ 1, 4 (1998 & August 2021 update). 

Importantly, the Florida Supreme Court has rejected the argument that the question of duty should be characterized as narrowly as possible through the specific circumstances presented. See 

Limones, 161 So. 3d at 391 (“reject[ing] the decision of the Second 

District to narrowly frame the issue as whether [the school district] 

had a specified duty to diagnose the need for or use an AED on [the 

student]” in part because such a “narrow definition of duty, a 

purely legal question, slides too easily into breach, a factual matter 

for the jury”). So, whether Sheriff Chronister breached that duty of 

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reasonable care through the operational decisions of his officers 

(e.g., the decisions to not call Andrew’s parents and to drop Andrew off at Gate 4 at night) is a factual issue for the jury to determine, and not a legal one for us to resolve.

* * * * * * *

The district court correctly denied the appellants’ motions 

for summary judgment based on qualified immunity and sovereign 

immunity. I join the court’s opinion.

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