||ELEVENTH CIRCUIT UPHOLDS QUALIFIED IMMUNITY FOR ARREST AND USE OF FORCE: PART ONE – PROBABLE CAUSE

ELEVENTH CIRCUIT UPHOLDS QUALIFIED IMMUNITY FOR ARREST AND USE OF FORCE: PART ONE – PROBABLE CAUSE

On June 4, 2018, the Eleventh Circuit Court of Appeals decided Manners v. Cannella et al.[i], in which the court discussed whether officers were entitled to qualified immunity for an arrest and use of force incident.  This is a two-part article, with Part One discussing whether probable cause existed to arrest Manners.  Part Two will discuss whether the use of force was reasonable under the Fourth Amendment.  The relevant facts of Manners are as follows:

Close to three in the morning on June 24, 2014, Livingston Manners was sitting in his car on the side of Plunkett Street, a residential street in the City of Hollywood, Florida (“the City”), before heading to work. Ronald Cannella, a City of Hollywood police officer, was on patrol “in reference to recent crimes of theft in the area,” and he drove past Manners. Soon after Cannella drove by, Manners pulled out and turned south on 26th Avenue. There is a dispute about what happened next. Cannella said he saw — through his rearview mirror — that Manners ran a stop sign. Manners claimed that he came to a complete stop.

Cannella made a U-turn and followed Manners down 26th Avenue. At some point between Plunkett Street and Pembroke Road, a distance of some four or five blocks, Cannella activated his emergency lights and also ran his sirens, although there is some dispute about when exactly this happened. Manners admitted that, some three blocks past Plunkett Street, he saw Officer Cannella behind him and that the officer’s lights and sirens were on. Cannella said that he “activated [his] emergency lights and sirens, as [he] hit the intersection of Pembroke Road and 26th Avenue” and that he was directly behind Manners’s vehicle at that intersection.

On this record, however, and taking the evidence in a light most favorable to the plaintiff, it is undisputed that Manners did not stop when he saw Cannella behind him, or when he saw Cannella’s lights and sirens activated. Manners knew that the vehicle was a police car, that a police officer was instructing him to stop, and that the lights and sirens meant he was required to stop his car. Instead of stopping, Manners continued along 26th Avenue, through a traffic light at Pembroke Road, and stopped at a gas station across the intersection. We know this because Manners has said repeatedly, and explicitly, that he did not stop when directed to do so…”[ii]

Manners stated in his deposition that he knew it was a police officer trying to stop him but he did not stop because it was very dark.  He further explained he saw the officer’s lights and heard the siren but he had been “punched or hit” by an officer in the past because he is “big and black.”[iii]

Now continuing with the facts directly from the case, the court stated

Manners offers that because he was afraid, he continued driving until he reached a well-lit gas station where video surveillance was available. By Manners’s own account, the distance he intentionally travelled after seeing the officer behind him with lights and sirens, but before coming to a stop, was about three blocks, one-tenth of a mile, or 176 yards. He continued to drive after being directed to stop for 14.4 seconds, or, as he said at another occasion in his deposition, for “[a]bout two minutes, two minutes at the most.”1

At the gas station, Cannella stopped behind Manners and approached the driver’s side of Manners’s car. Cannella asked for Manners’s driver’s license, which Manners provided. A silent video recording of the entire incident at the gas station was taken from surveillance cameras. Cannella can be seen at Manners’s driver’s side door, and while Cannella looked in the backseat, Manners stepped out of the vehicle. Cannella and Manners spoke, facing one another, for several seconds. There is no dispute that Cannella informed Manners he was under arrest. Manners knew this; in fact, Manners said he asked Cannella to hurry up so that he could get to work and Cannella said “[y]ou’re going to jail.” According to Cannella, he repeatedly directed Manners to get back into his car, but Manners refused to do so. Cannella then placed Manners under arrest. Cannella said: “I must have told him at least two to three times [to remain seated in his vehicle] and he said, no, every time.” Manners, on the other hand, denied that Cannella ever directed him to stay in the car.

A review of the video recording clearly establishes that a physical struggle ensued when Cannella attempted to place Manners under arrest. Manners’s efforts to thwart the arrest are equally evident from the video. The first attempt to handcuff Manners occurred outside the vehicle — Cannella apparently grabbed Manners’s wrist as Manners either sat or fell back into his car. A struggle ensued in the car; Cannella leaned or fell on top of Manners, and he tried to pull Manners out of the vehicle. The parties disagree about what happened inside the car. Manners conceded that he pulled back, asked why he was under arrest, and said Cannella punched him three times while lying on top of him. Cannella, in turn said Manners screamed at him and struck him (Cannella) three to four times.

After the details of an indiscernible struggle occurred inside the car, the video recording shows that Cannella pulled Manners out of the car. Cannella flipped Manners onto the ground and went on top of him. Manners, in turn, is seen shoving at Cannella, and Cannella is seen punching Manners in the head. Cannella then flipped Manners onto his stomach and attempted to bring Manners’s arms together behind his back, evidently attempting to handcuff Manners. Manners is seen pulling his arms away, flailing, and then rolling onto his back. Manners is also seen bringing his leg up and onto Cannella’s upper back, and grabbing and holding Cannella’s wrists for an extended period.

Officer Sabillon arrived on the scene as backup; she said it “looked like [Cannella] was trying to take Livingston Manners into custody, but he couldn’t because of the constant power struggle between the both of them with their hands.” On the video recording, Sabillon is seen deploying her taser on Manners’s stomach. Manners flailed on the ground, and both Cannella and Sabillon are seen attempting to handcuff him for about a minute, deploying one or both of their tasers. Eventually, Sabillon is seen lying across Manners, while Cannella placed Manners in handcuffs. More officers arrived, and four or five of them surrounded Manners and attempted to fully restrain him. Manners is eventually seen lying on his back, handcuffed, and subdued. At no point thereafter was he struck or tased by the officers.

The parties disagree about what Cannella and Manners said to one another during the incident. Both sides agree, however, that Cannella advised Manners during the incident that he was being placed under arrest. The video recording makes it abundantly clear that Cannella (and later Sabillon) attempted to place Manners under arrest, and Manners is clearly visible resisting those attempts for some time, a little more than three full minutes. The parties agree that at the time of the incident, Manners was 6 feet 2 inches tall and weighed 240 pounds while Cannella was 5 feet 10 inches tall and weighed 215 pounds.[iv]

Manners was arrested and went to trial for violations of Florida law related to battery on a law enforcement officer and resisting an officer without violence.  A jury acquitted him of both charges.  He incurred approximately $30,000 in legal fees.

He then filed suit against Officer’s Cannella and Sabillon and alleged they violated his rights under the Fourth Amendment to be free from malicious prosecution and excessive force.  This article will not discuss the state law claims.  The district court granted qualified immunity to the officers and Manners appealed to the Eleventh Circuit Court of Appeals.

The court of appeals first discussed qualified immunity.  Qualified immunity protects officers from liability for reasonable mistakes when they are engaged in discretionary functions, such as whether or not to make an arrest.  When determining whether an officer is entitled to qualified immunity, the court uses a two-part test.  First, they determine whether a constitutional right was violated.  If not, then the officer is entitled to summary judgment, which means the suit is dismissed.  If the court determines the officer did violate a constitutional right, they examine whether the right was clearly established, such that another reasonable officer in the same situation would have had fair warning that the conduct at issue violated the Constitution.  If the law was clearly established, then the officer is not entitled to qualified immunity.  If the law was not clearly established, the officer is entitled to qualified immunity and the suit is dismissed.  It’s also important to note that, at this stage of litigation, the court is required to view the facts in a light most favorable to the plaintiff, or in other words, accept their version of the facts unless there is clear evidence to the contrary, such as video.

The court then stated that whether or not the officers are entitled to qualified immunity for the malicious prosecution claim depends upon whether there was probable cause to arrest Manners.  The court then noted several legal principles related to probable cause.  The court described those principles as follows:

  • Probable cause “does not require convincing proof” that the offense was committed. Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F.2d 1112, 1120 (11th Cir. 1992). It does not require proof beyond a reasonable doubt or even by a preponderance of the evidence.[v]
  • Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” We cannot examine the facts in isolation but, rather, we “consider the whole picture” because “the whole is often greater than the sum of its parts.” [vi]
  • Probable cause for an arrest may be found if there is probable cause to believe any crime was committed, whether or not there is probable cause for the crime the arresting officer actually believed had been committed. See, e.g., Lee, 284 F.3d at 1195-96 (“The validity of an arrest does not turn on the offense announced by the officer at the time of the arrest.” (quoting Bailey, 956 F.2d at 1119 n.4 (alteration adopted)).[vii]
  • [I]t is now settled law that there is probable cause for a warrantless custodial arrest even for a seemingly insignificant crime. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).[viii]

Further, the court went on to discuss that, for the purposes of qualified immunity, the officer only needs “arguable probable cause,” rather than actual probable cause.  The court, in discussing arguable probable cause, stated

Moreover, for purposes of granting qualified immunity to law enforcement officers, it is enough that there is “arguable probable cause” for a warrantless custodial arrest. See, e.g., Lee, 284 F.3d at 1195. Arguable probable cause simply means that “reasonable officers in the same circumstances and possessing the same knowledge as the [defendant-officers] could have believed that probable cause existed to arrest.” Grider v. City of Auburn, 618 F.3d 1240, 1257 (11th Cir. 2010) (quotation omitted).[ix]

On appeal, the officers argued that there was probable cause to arrest Manners for two offenses under Florida law: (1) running a stop sign, and (2) fleeing or attempting to elude a law enforcement officer.  The court of appeals determined that the dispute in testimony and lack of definitive evidence prevented them from concluding, for the purpose of qualified immunity that there was probable cause to arrest Manners for running the stop sign.

However, the court held that, based upon the statutory definition of the Florida fleeing and attempting to elude statute, and based on Manner’s own testimony, the officer had probable cause, both actual and arguable, to arrest Manners for this offense.  Manners admitted that the officer had activated his lights and siren, which he knew meant he had to stop.  He also admitted that he did not stop when instructed to do so, rather he stopped when he wanted to stop.  By Manner’s version, he continued to drive approximately three blocks or one-tenth of a mile after the officer attempted to stop him.  The court held that these facts admitted by Manner’s would “cause a prudent person to believe Manners had committed the offense of fleeing and attempting to elude a law enforcement officer.”[x]

Manners argued that the short distance he travelled negated the probable cause in his case.  However, the court stated

Even if the short interval between Cannella’s command to stop and Manners’s compliance undermined the state’s ability to prove the offense beyond a reasonable doubt, to reiterate, probable cause is not established by proof beyond a reasonable doubt, or by clear and convincing evidence, or even by a preponderance of the evidence. That a reasonable officer could believe Manners failed to stop when directed to do so suffices to establish arguable probable cause. Thus, Officer Cannella had arguable probable cause to arrest Manners for fleeing or attempting to elude him.[xi] [emphasis added]

Manners also argued that he was not required to stop for the officer at the time he activated his emergency out of the defense of “necessity.”  Manners argued that he “feared for his life because he was a black male alone with a law enforcement officer on an empty, dark street in the middle of the night” and the only means to avoid the danger was to drive to “a safe, well lit area.”[xii]  The court of appeals discussed the ‘doctrine of necessity’ and stated it requires that

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.  Driggers v. State, 917 So. 2d 329, 331 (Fla. Dist. Ct. App. 2005).[xiii]

The court then described how a general distrust of police officers did not satisfy the requirements of the doctrine of necessity.  The court stated

A general distrust of all police officers is not enough to establish the real, imminent, and impending nature of the danger requirement. Nor is there any showing on this record that either Officer Cannella or the Hollywood police department posed a direct, real, imminent, and impending danger. Nor, finally, was there any reason for Officer Cannella to know why Manners did not comply with his demand to stop until Manners reached a well-lit gas station. And even if some exigency existed, Cannella had no reason to know of any perceived necessity. Again, probable cause is based on the facts known to the law enforcement officer.

Even if Manners’s explanation might satisfy a jury if he were charged, failing to stop because of a generalized fear of police does not provide a legal basis to vitiate probable cause for the offense of flight. Manners by his own account knowingly stopped when he chose to do so, rather than when he was directed to do so, for reasons that may be understandable, but that in no way deprived the police of probable cause.[xiv] [emphasis added]

Therefore, the court of appeals held that the officers had probable cause to arrest Manners, which disposes of the Fourth Amendment malicious prosecution claim and all claims that hinged on probable cause.

_____________________________________

CITATIONS:

[i] No. 17-10088 (11th Cir. Decided June 4, 2018)

[ii] Id. at 2-3

[iii] Id. at 4

[iv] Id. at 5-8

[v] Id. at 13

[vi] Id. at 14

[vii] Id.

[viii] Id. at 14-15

[ix] Id. at 15

[x] Id. at 18

[xi] Id. at 20

[xii] Id. at 22

[xiii] Id.

[xiv] Id. at 22-23

By |2018-12-11T23:24:36+00:00December 11th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.