IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH JEROME SILER,

Plaintiff,

v. Case No. 3:10-cv-289

Officer JOSEPH FLOYD, of Crestview

Police Department and Chief BRIAN

MITCHELL of the Crestview Police Department,

Defendants.

_________________________________________/

ORDER

Before me is Defendants’ motion for summary judgment (Doc. 34).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is

“whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986).

The moving party has the burden of showing the absence of a genuine issue as to

any material fact, and in deciding whether the movant has met this burden, the

court must view the movant’s evidence and all factual inferences arising from it in

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398

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U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

Thus, if reasonable minds could differ on the inferences arising from undisputed

facts, then a court should deny summary judgment. Miranda v. B & B Cash

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However,

a mere ‘scintilla’ of evidence supporting the nonmoving party's position will not

suffice; there must be enough of a showing that the jury could reasonably find for

that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing

Anderson, 477 U.S. at 251). 

II. BACKGROUND

I accept the facts in the light most favorable to Plaintiff. See Galvez v.

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d

1340, 1343 n.1 (11th Cir. 2002)). “ ‘All reasonable doubts about the facts should

be resolved in favor of the non-movant.’ ” Id. (quoting Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684

F.2d 1365, 1368-69 (11th Cir. 1982). 

Plaintiff is a Crestview, Florida, resident. Defendant Floyd is an officer with

the Crestview Police Department, and Defendant Mitchell is the Chief of Police of

the Crestview Police Department. During 2008, Plaintiff publicly spoke out in the

Crestview community concerning Crestview Police Department officers’ treatment

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of black citizens and use of excessive force during arrests. In February 2008,

Plaintiff filed an official complaint with the Crestview Police Department alleging

misconduct by Floyd. The Crestview Police Department conducted an

investigation of the complaint, but ultimately determined that the complaint was

unfounded. Following Plaintiff’s complaint, Plaintiff alleges he became a target of

harassment by Floyd. (Doc.1).

The first incident giving rise to this suit occurred on April 29, 2008. 

Defendant Floyd and Officer Jordan were on-duty near Plaintiff’s property, known

as the “Lot.” The Lot is open to the public, and on the night in question, Defendant

Floyd and Officer Jordan saw a man in the lot who had been reported earlier as

engaging in suspected drug activity. Whether the man was engaging in criminal

behavior at the time is disputed. Defendant Floyd and Officer Jordan drove their

vehicle into the Lot, which was surrounded by a chain-link fence. Plaintiff arrived

at the Lot and parked his truck in the gate opening so that Defendant Floyd and

Officer Jordan were prevented from exiting. Defendant Floyd instructed Plaintiff

to move his truck several times and threatened to arrest Plaintiff. Plaintiff ignored

this instruction for several minutes before moving his truck. As a result of this

encounter, Defendant Floyd filed a Report of Arrest and obtained a Criminal

Summons from the magistrate judge for obstruction. Plaintiff entered in a

Deferred Prosecution Agreement, which allowed Plaintiff to avoid prosecution

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upon the completion of certain conditions. Plaintiff completed these conditions

and was not prosecuted.

The second incident took place on August 28, 2008. Sergeant Harp with the

Crestview Police Department reported to Main Street in Crestview to help a man

who had cut himself and threatened he would do so again. To prevent the man

from further self-injury, Sergeant Harp tasered the man before the ambulance

arrived. Plaintiff was in the area, an estimated 150 feet away from the ambulance,

with his daughter when he stopped to speak with off-duty Sergeant Lewis. 

Plaintiff, while standing with Sgt. Lewis, saw Defendant Floyd go through a stop

sign. There is no dispute that Defendant Floyd was on-duty at this time. He was

working undercover narcotics surveillance and responded to the scene because he

was also the taser instructor and responsible for reviewing all uses of a taser by

CPD officers.

Plaintiff then moved towards the scene loudly telling Defendant Floyd that

he had seen him run the red light. There was a confrontation and verbal exchange

between Plaintiff and Defendant Floyd. Defendant Floyd asked Plaintiff to move

away from the back of the ambulance, and Plaintiff said that Defendant could not

ask him to leave as he was lawfully on a public sidewalk. At some point,

Defendant Floyd placed his hand on Plaintiff’s chest to make him back away, and

Plaintiff pushed Defendant’s hand away. Defendant Floyd then tried to place

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Plaintiff under arrest for battery on a police officer. When Plaintiff protested,

Defendant threatened to use a taser and also arrest Plaintiff for resisting arrest. 

Plaintiff was then arrested.

Plaintiff then filed a seven-count complaint, alleging violation of his civil

rights under the Fourth Amendment, violation of his civil rights to due process,

battery, false imprisonment, and malicious prosecution. Count four was later

dismissed (Doc. 16). Defendants now move for summary judgment on the

remaining counts.

III. ANALYSIS

Count 1

Count one is a civil rights claim against Defendant Floyd for violation of

Plaintiff’s Fourth Amendment rights regarding the August 28, 2008, incident. 

Defendant Floyd seeks summary judgment on count one, arguing that he is entitled

to qualified immunity. Qualified immunity is a shield against liability for

government actors, prohibiting “civil damages for torts committed while

performing discretionary duties unless their conduct violates a clearly established

statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th

Cir. 2008)(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified

immunity “‘allow[s] government officials to carry out their discretionary duties

without the fear of personal liability or harassing litigation, protecting from suit all

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but the plainly incompetent or one who is knowingly violating the federal law.’ ” 

Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). “Qualified immunity is ‘an

immunity from suit rather than a mere defense to liability . . . .’ ” Scott v. Harris,

550 U.S. 372, 372 n.2 (2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)).

Qualified immunity requires a three-step inquiry. First, the defendant public

official must prove that “ ‘he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.’ ” Courson v. McMillan, 939

F.2d 1479 (11th Cir. 1991)(quoting Rich v. Dollar,841 F.2d 1558, 1563-64 (11th

Cir. 1988)). Once this is established, the burden shifts to the plaintiff, and the

second question is “whether ‘[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show [that Defendants’] conduct violated a

constitutional [or statutory] right?’ If so, the [next] question is whether the right, be

it constitutional or statutory, was clearly established.” Hadley v. Gutierrez, 526

F.3d at 1329 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))(internal citations

omitted).

There is no dispute among the parties that Defendant Floyd was on-duty at

the time of the incident. Therefore, the first step is met, and the burden shifts to

Plaintiff to show that Defendant violated a clearly established constitutional right. 

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The Fourth Amendment protects individuals from unreasonable searches and

seizures, and an arrest without probable cause clearly violates this Fourth

Amendment right. Durrithy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)(citing

Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998)). The Eleventh

Circuit has concluded that the standard for determining the existence of probable

cause is whether “ ‘a reasonable man would have believed [probable cause existed]

had he known all of the facts known by the officer.’ ” Rankin v. Evans, 133 F.3d

1425, 1433 (11th Cir. 1998)(quoting United States v. Ullrich, 580 F.2d 765, 769

(5th Cir. 1978)). Furthermore, “officers who make an arrest without probable

cause are entitled to qualified immunity if there was arguable probable cause for

the arrest.” Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.

2004)(citing Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999)). Arguable

probable cause exists if reasonable officers in the same circumstances and

possessing the same knowledge as Defendants could have believed that probable

cause existed to arrest Plaintiff. Id. Therefore, the important question here is

whether Defendant Floyd had arguable probable cause to arrest Plaintiff.

In this case, Defendant Floyd could have believed that probable cause

existed to arrest Plaintiff. First, there was an ongoing emergency, which Plaintiff

was not involved with. Plaintiff admits that he walked over to the scene and got 6-

10 feet away from the back of the ambulance. (Doc. 34, Exhibit 1, p. 119). 

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Witness testimony provides that Defendant Floyd told Plaintiff numerous times to

leave the scene because he was “disrupting what we’re doing.” (Id., p. 123). 

Jonathan Hoke, who worked for EMS and responded to the scene, wrote in his

Witness Interview Statement that Defendant Floyd:

numerous times told a gentleman to leave a scene because he was disrupting

the scene but the gentleman kept raising his voice louder and louder telling

Lt. Floyd he did not have to leave the scene and when the gentleman came

closer to the edge of the road Lt. Floyd walked up to the gentleman and

placed one hand on his chest to attempt to have him step back and move on

pass the scene. Then the gentleman smacked Lt. Floyds [sic] hand off his

chest and then Lt. Floyd pulled out his Taser and attempted to put the

gentleman into custody along with other Crestview Police officers.

(Doc. 34, Exhibit 11). 

In addition, Defendant Floyd’s description of the situation as his understood

it shows that there were reasons for wanting Plaintiff to back away from the scene:

I had been receiving information that there was a weapon involved, a razor

blade. There was blood contamination involved. They were bringing the

patient over to the back of the ambulance and putting him in there. He was

bleeding. He has privacy issues. I didn’t know exactly what he had, if a

crime had occurred along with the Baker Act. There was [sic] a bunch of

things that were going through my head. I just know that Mr. Siler being

there and coming to the back of the ambulance was going to hinder my

assessment of what was going on.

(Doc. 34, Exhibit 4, p. 72). Given that Plaintiff refused to back away from an

emergency situation after repeatedly being told to do so by a law enforcement

officer and then “smacking” Defendant Floyd’s hand away, reasonable officers in

the same circumstances and possessing the same knowledge as Defendant Floyd

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could have believed that probable cause existed to arrest Plaintiff for battery on a

law enforcement officer. Because Defendant Floyd did not violate a clearly

established constitutional right, he is entitled to qualified immunity.

Counts II & III

Counts two and three allege Defendant Floyd violated Plaintiff’s right to due

process when he arrested Plaintiff without probable cause on April 29, 2008, and

August 28, 2008, and when Floyd prepared arrest affidavits and offense reports for

these arrests that contained false and misleading information. The “Constitution

prohibits a police officer from knowingly making false statements in an arrest

affidavit about the probable cause for an arrest in order to detain a citizen . . . if

such false statements were necessary to the probable cause.” Jones v. Cannon, 174

F.3d 1271, 1285 (11th Cir. 1999). However, a warrant is valid if “absent the

misstatements or omissions, there remains sufficient content to support a finding of

probable cause.” Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002). 

Furthermore, qualified immunity will not shield an officer from liability for such

false statements if they were necessary to the probable cause. Id. 

Count II is based upon the events that occurred on August 28, 2008. As

stated above, given the circumstances of the emergency situation, Plaintiff’s refusal

to back away from the scene, and the subsequent “smacking” away of Defendant

Floyd’s hand, Floyd could have believed that probable cause existed at the time

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Plaintiff was arrested. Therefore, any false statements made in the arrest affidavit

or offense report were not necessary to support Defendant Floyd’s belief that there

was probable cause to arrest Plaintiff.

Count III is based upon the events that occurred on April 29, 2008. In his

deposition, Plaintiff admits to blocking the police vehicle in the Lot and refusing to

move it for several minutes after being asked to by law enforcement officers. 

(Doc. 34, Exhibit 1, p. 70-73). Plaintiff argues that Defendant Floyd and his

partner could have exited through another gate; however, the gate was closed,

Defendant Floyd believed there was a padlock, and Plaintiff never informed the

officers of the other exit. (Id., p. 73). Plaintiff was later arrested for obstruction of

a law enforcement officer. Plaintiff admits to blocking the police vehicle for

several minutes so any superfluous false statements made in the arrest affidavit or

offense report certainly were not necessary to support a finding of probable cause. 

Because there was a sufficient belief of probable cause for each arrest regardless of

any false statements made by Defendant Floyd, Plaintiff’s due process rights were

not violated.

Count V

Count five is a state law battery claim against Defendant Floyd from the

August 28th incident. Fla. Stat. § 784.03 defines battery as actually and

intentionally touching another person against their will. However, when a police

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officer is on duty, the officer can use force in good faith and is “liable for damages

only where the force used is clearly excessive.” City of Miami v. Sanders, 672

So.2d 46, 47 (Fla. 3d DCA 1996). Defendant Floyd, while on-duty, put his hand

on Plaintiff’s chest to make him back away from an emergency situation. Given

the circumstances, this touching does not constitute excessive force. Therefore, the

battery claim fails.

Count VI

Count six is a state law false imprisonment claim against both Defendants

Floyd and Mitchell for the arrest on August 28th. False imprisonment and false

arrest are “different labels for the same cause of action.” Rankins v. Evans, 133

F.3d 1425, 1431 n.5 (11th Cir. 1998). “Probable cause is an absolute bar to claims

for false arrest.” Mills v. Town of Davie, 48 F.Supp.2d 1378, 1380 (S.D. Fla.

1999). Sufficient probable cause to justify an arrest exists where the facts and

circumstances allow a reasonable officer to conclude that an offense has been

committed and requires an examination of the totality of the circumstances. Id. As

discussed above in Count I, a reasonable officer in similar circumstances could

have believed there was probable cause to arrest Plaintiff. Therefore, there is an

absolute bar to this claim for false imprisonment.

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Count VII

Count seven is a state claim for malicious prosecution against Defendant Floyd

arising out of the April 29th arrest. There are six elements for a claim of malicious

prosecution: (1) a judicial proceeding was commenced against the plaintiff; (2) the

defendant was the “legal cause” of the proceeding; (3) the proceeding was terminated

in favor of the plaintiff; (4) no probable cause existed to institute the prosecution; (5)

the defendant acted with malice; and (6) the plaintiff suffered damages as a result of

the proceeding. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). 

“The failure of a plaintiff to establish any one of the six elements is fatal to a claim of

malicious prosecution.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355

(Fla. 1994). As discussed above in Count III, there was sufficient probable cause to

arrest Plaintiff for obstructing a law enforcement officer when Plaintiff refused to

move his truck which was preventing the police vehicle from exiting the Lot. 

Therefore, Plaintiff fails to establish element 4 for malicious prosecution, which is

fatal to the claim.

IV. CONCLUSION

Summary judgment is granted for Defendant against Plaintiff. The clerk is

directed to close the case.

ORDERED on August 26, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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