Anthony Colon v. Wendell Smith
U.S. Court of Appeals for the Eleventh Circuit
Anthony Colon v. Wendell Smith
Opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14106
____________________
ANTHONY COLON,
Plaintiff-Appellee,
versus
WENDELL SMITH,
Deputy, Badge No. 75438, in his individual
capacity,
RONALD RASLOWSKY,
Corporal, Badge No. 3535, in his individual
capacity,
Defendants-Appellants.
____________________
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Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00256-CEM-EJK
____________________
Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.
HULL, Circuit Judge:
After responding to a 911 call of a verbal and physical fight
inside an apartment, Corporal Ronald Raslowsky and Deputy
Wendell Smith encountered Anthony Colon outside the location.
An altercation between Colon and the officers followed, and Colon
was arrested and ultimately charged with resisting an officer with
violence. Colon’s charges were later dismissed.
Colon then sued Raslowsky and Smith, raising claims
(1) under 42 U.S.C. § 1983 for unreasonable seizure, false arrest,
excessive force, and malicious prosecution; and (2) under Florida
law for false imprisonment, battery, and intentional infliction of
emotional distress (“IIED”). Raslowsky and Smith moved for
summary judgment based on qualified immunity, and the district
court denied the motions. This is the officers’ appeal.
I. FACTS
When reviewing the grant or denial of qualified immunity
at summary judgment, “[w]e resolve all issues of material fact in
favor of the plaintiff, and then determine the legal question of
whether the defendant is entitled to qualified immunity under that
version of the facts.” Stephens v. DeGiovanni, 852 F.3d 1298, 1313
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(11th Cir. 2017) (quotation marks omitted). “With the facts so
construed, we have the plaintiff’s best case.” Id. at 1314 (quotation
marks omitted).
A. Initial Contact with Colon
On February 6, 2017, Corporal Raslowsky and Deputy
Smith responded to a 911 call regarding a verbal and physical fight
inside Unit 186 of an apartment complex. The caller indicated she
heard two males engaged in a 20-minute physical fight, who stated
they were going to kill each other.
When Corporal Raslowsky arrived, he saw Craig Jackson,
Colon, and a third man walking together down the apartment
complex’s stairwell, and Raslowsky asked whether they lived in
Unit 186. Jackson stated he lived in Unit 186. When asked about
the 911 caller’s description of a fight, Jackson stated he had been
yelling into his cell phone. Corporal Raslowsky asked if the officers
could search the apartment “to make sure nothing was wrong and
that no one needed medical attention,” but Jackson said no.
Corporal Raslowsky then explained to Jackson that he was being
detained while police investigated the 911 call, and the officers
handcuffed Jackson for officer safety. During this interaction,
Colon stayed with Jackson, standing several feet away. The third
man, having no apparent connection to Jackson or Colon, walked
away.
B. Colon’s Cell Phone Video
As the officers handcuffed Jackson, Colon began recording
the officers on his cell phone. On the cell phone video, Colon asked
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the officers why they were arresting Jackson. Corporal Raslowsky
responded Jackson was not under arrest and was being detained for
officer safety. Raslowsky then asked Colon whether he was in
Jackson’s apartment; Colon replied no, he was there to give Jackson
a ride to work. Raslowsky then approached Colon to question him.
On the cell phone video, Corporal Raslowsky, now standing
in front of Colon, stated Colon was interjecting himself into the
investigation, and Raslowsky asked eight times whether Colon had
identification. Instead of producing identification, Colon
responded that he just arrived at the apartment to take Jackson to
work, and Colon asked Raslowsky to step away. Raslowsky’s hand
is then seen reaching toward Colon’s cell phone and the video ends.
In his police report, Corporal Raslowsky explained that
because Colon walked down the stairwell with Jackson, Colon was
a potential participant in the fight leading to the 911 call, and
Raslowsky approached Colon to question him. At his deposition,
Colon testified he did not provide his identification because he felt
threatened.
C. Disputed Altercation
After the cell phone video ends, an altercation occurred
between Colon and the officers. The parties present conflicting
accounts of this altercation.
The officers assert that after Colon refused to provide his
identification, Corporal Raslowsky reached out his hand to
handcuff Colon, but Colon pushed or “shoulder check[ed]”
Raslowsky. Seeing this, Deputy Smith tackled Colon to the
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ground. While Colon and Smith were on the ground, Colon rolled
on top of Smith, and Raslowsky tased Colon.
Colon presents a different account. 1 Colon testified that
after Corporal Raslowsky asked for his identification, Raslowsky
“got very frustrated” and lunged at him, which knocked his phone
to the ground. As Colon reached down to pick up his phone,
Deputy Smith tackled Colon to the ground, and Raslowsky tased
Colon. Colon denied that he (1) pushed Raslowsky or (2) rolled on
top of Smith when Smith and Colon were on the ground. As a
result of the officers’ force, Colon suffered lower back pain for a
few weeks and his wrist was “lightly sprained.”
There is a second video taken by a neighbor at the
apartment complex. This video does little to clear up the facts of
the altercation, as it begins the moment Corporal Raslowsky tased
Colon and does not show the disputed altercation itself. In this
second video, Smith and Colon can be seen on the ground, but at
that time Colon is not on top of Smith. After being handcuffed,
Colon can be heard on the video saying, “He started wrestling me
out of nowhere, I didn’t touch him. I asked him to step away from
my face.”
At this summary judgment stage, we must accept Colon’s
version of events as true. See Stephens, 852 F.3d at 1313-14. As a
1 The officers assert that parts of Colon’s deposition testimony were arguably
inconsistent. Still, at this summary judgment stage, we must view the
evidence in the light most favorable to Colon. Stephens, 852 F.3d at 1313.
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result, we are left with this key sequence of events: (1) Corporal
Raslowsky approached Colon and asked eight times if Colon had
identification; (2) frustrated with Colon’s lack of response,
Raslowsky lunged at Colon, but Colon did not push Raslowsky;
(3) Deputy Smith then tackled Colon to the ground; (4) while on
the ground, Colon did not roll on top of Smith; and (5) Raslowsky
tased Colon. 2
D. Post Arrest
Colon testified that he was able to post bond after his arrest
and spent 6 or 7 hours in jail. On May 18, 2017, Colon was charged
by information with two counts of battery on a law enforcement
officer, but both counts were dismissed. Colon appeared in court
for one hearing before his criminal charges were dropped. As a
result of his arrest, Colon testified that he (1) missed one day of
work, totaling $105 in lost wages, (2) was told he might lose his job
for missing work, but (3) did not actually lose his job.
2 The officers’ police report states that, in a post-arrest phone call to his
mother, Colon stated, “Mom you know that I feel disrespected when someone
gets into my personal space, so I pushed him because he shouldn’t have tried
to take my phone.” At his deposition, Colon testified that he did not make this
comment and his conversation that day with his mother was in person while
he was sitting in the police car at the scene and not by a phone call. Because
Colon testified he never pushed Corporal Raslowsky, we must accept as true
his version that he did not. See Stephens, 852 F.3d at 1313.
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II. PROCEDURAL HISTORY
Colon sued Corporal Raslowsky and Deputy Smith
(1) under 42 U.S.C. § 1983 for unreasonable seizure, false arrest,
excessive force, and malicious prosecution; and (2) under Florida
law for false imprisonment, battery, and IIED.
The officers moved for summary judgment, raising qualified
immunity as a defense to Colon’s § 1983 law claims. The officers
did not raise Florida law official immunity as a defense to Colon’s
state law claims, and on appeal they present no argument regarding
such immunity.
The district court granted summary judgment in favor of
Corporal Raslowsky on Colon’s § 1983 unreasonable seizure claim,
finding Raslowsky had reasonable suspicion to detain Colon.
However, the district court denied summary judgment to the
officers on Colon’s remaining claims.
As to Colon’s § 1983 false arrest claims against both officers,
the district court found that the officers lacked arguable probable
cause to arrest Colon.3
The district court then denied summary judgment on
Colon’s § 1983 excessive force claims and his state law battery and
IIED claims. The court found it was disputed “who instigated the
3 The district court construed Colon’s “False Arrest and Unreasonable Seizure”
claim against Deputy Smith as encompassing only Colon’s arrest, not the prior
detention/stop of Colon. On appeal, Colon does not challenge this
determination.
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initial physical contact between Plaintiff and Raslowsky . . . and
these facts are material to determining whether Defendants’
subsequent use of force was appropriate.”
The district court also denied summary judgment on
Colon’s § 1983 malicious prosecution claims and his state law false
imprisonment claims. The court determined “[a]ll of these counts
are premised upon the allegation that Defendants’ arrest of
Plaintiff was not supported by probable cause,” which could not be
resolved “because there are disputed issues of material fact”—i.e.,
whether Colon or Corporal Raslowsky initiated physical contact.
The officers timely appealed.
III. SECTION 1983 CLAIMS
On appeal, the officers argue that the district court erred in
denying them qualified immunity as to Colon’s § 1983 claims for
false arrest, excessive force, and malicious prosecution.
“Qualified immunity protects government officials
performing discretionary functions from suits in their individual
capacities unless their conduct violates clearly established statutory
or constitutional rights of which a reasonable person would have
known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)
(quotation marks omitted). If an official’s challenged conduct was
within the scope of his discretionary authority, the plaintiff must
establish that the official is not entitled to qualified immunity by
showing both (1) that the official’s conduct violated a constitutional
right, and (2) that the constitutional right was clearly established at
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the time of the official’s conduct. Roberts v. Spielman, 643 F.3d 899,
904 (11th Cir. 2011).
Corporal Raslowsky and Deputy Smith were acting in their
discretionary authority. The dispute is over whether they violated
Colon’s constitutional rights under the Fourth Amendment or
were entitled to qualified immunity. 4
A. False Arrest
On appeal, the officers argue they had both arguable
reasonable suspicion to detain Colon in a Terry 5 stop and arguable
probable cause to arrest him for obstruction without violence
under Fla. Stat. § 843.02. In response, Colon asserts the officers
unconstitutionally detained and arrested him. 6
“[A]n officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In the qualified
4 We have jurisdiction to review denials of qualified immunity on Colon’s
§ 1983 claims against the officers. See English v. City of Gainesville, 75 F.4th 1151,
1155-56 (11th Cir. 2023).
5 Terry v. Ohio, 392 U.S. 1 (1968).
6 The district court granted qualified immunity and summary judgment to
Corporal Raslowsky on Colon’s § 1983 unreasonable seizure claim because it
concluded Raslowsky had reasonable suspicion for a Terry stop of Colon.
However, we lack jurisdiction to review a grant of qualified immunity.
Winfrey v. Sch. Bd. of Dade Cnty., 59 F.3d 155, 158 (11th Cir. 1995). Nonetheless,
we must set forth the facts supporting reasonable suspicion as necessary to
analyze Colon’s § 1983 false arrest claims.
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immunity context, the question is not whether reasonable
suspicion existed in fact, but whether the officer had arguable
reasonable suspicion given the totality of the circumstances.
Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). “Although a
mere hunch does not create reasonable suspicion, the level of
suspicion the standard requires is considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously
less than is necessary for probable cause.” Kansas v. Glover, 589 U.S.
376, 380 (2020) (quotation marks omitted).
Here, several facts support arguable reasonable suspicion for
a brief investigatory stop of Colon. The 911 caller stated two men
in Unit 186 were engaged in a fight, and the combatants said they
were going to kill each other. After Raslowsky arrived, he saw
Jackson and Colon walking together down the apartment
complex’s stairs, and Jackson confirmed he lived in Unit 186. As
Raslowsky and Smith questioned and handcuffed Jackson, Colon
remained mere feet away and stated that he came to the apartment
to give Jackson a ride to work.
“[G]iven the circumstances, [arguable] reasonable suspicion
objectively existed to justify” a Terry stop of Colon to investigate
whether he was involved in the fight leading to the 911 call. See
Hicks v. Moore, 422 F.3d 1246, 1252 (11th Cir. 2005). Due to Colon’s
presence with and proximity to Jackson, his statement that he had
been to Jackson’s apartment, and the call’s reference to two men,
Corporal Raslowsky was not required to accept Colon’s statement
at face value and had leeway to determine Colon’s identity at least.
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Because arguable reasonable suspicion existed, Raslowsky could
detain Colon to ascertain Colon’s identity. See Fla. Stat.
§ 901.151(2). As a result, Raslowsky was engaged in the lawful
execution of a legal duty when he stopped Colon and asked
whether Colon had identification.
Next, we must determine whether Colon’s failure, while
lawfully detained, to provide his identification constituted
obstructing or resisting an officer under Fla. Stat. § 843.02.
Section 843.02 provides “[w]hoever shall resist, obstruct, or
oppose any officer . . . in the lawful execution of any legal duty,
without offering or doing violence to the person of the officer, shall
be guilty of a misdemeanor of the first degree.” Fla. Stat. § 843.02.
This statute has two elements: “(1) the officer was engaged in the
lawful execution of a legal duty; and (2) the defendant’s action, by
his words, conduct, or a combination thereof, constituted
obstruction or resistance of that lawful duty.” C.E.L. v. State, 24
So. 3d 1181, 1185-86 (Fla. 2009).
“Florida courts have generally held, with very limited
exceptions, that physical conduct must accompany offensive words
to support a conviction under § 843.02.” Davis v. Williams, 451 F.3d
759, 765 (11th Cir. 2006). But “[w]ords alone may result in
obstruction of justice where the officer in question is . . . legally
detaining a person.” Id.at 765 n.9 (quoting Francis v. State,736 So. 2d 97
, 99 n.2 (Fla. Dist. Ct. App. 1999)).
“When an officer lawfully conducts a Terry stop, Fla. Stat.
§ 843.02 authorizes the officer to arrest a person who refuses to
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provide identification in response to requests.” Moore v. Pederson,
806 F.3d 1036, 1049(11th Cir. 2015). Compare K.A.C. v. State,707 So. 2d 1175, 1177
(Fla. Dist. Ct. App. 1998) (holding lawfully
detained truant juvenile resisted officers when he refused to
identify himself and reveal where he went to school), and N.H. v.
State, 890 So. 2d 514, 517 (Fla. Dist. Ct. App. 2005) (holding lawfully
detained individual obstructed police by “refusing to identify
himself, refusing to sit and thus comport himself so that the officers
could investigate and finally physically threatening them”), with
M.M. v. State, 51 So. 3d 614, 615-16 (Fla. Dist. Ct. App. 2011)
(holding individual did not violate § 843.02 because “[a]t no time
was M.M. under lawful detention” and “[t]hus he was free to refuse
to identify himself to the officer”).
Here, Corporal Raslowsky was engaged in a lawful Terry
stop when he asked whether Colon had identification eight times.
It is undisputed that Colon did not present his identification.
Therefore, the officers had arguable probable cause to arrest Colon
for resisting an officer without violence under Fla. Stat. § 843.02,
and thus, Colon’s § 1983 false arrest claims fail. See Turner v.
Williams, 65 F.4th 564, 589 (11th Cir. 2023) (stating probable cause
is an absolute bar to § 1983 false arrest claims).
Colon’s arguments to the contrary are not persuasive. First,
Colon argues that Raslowsky’s failure to comply with Fla. Stat.
§ 901.17 renders his arrest illegal. That statute requires that unless
a suspect “flees or forcibly resists,” an officer must inform the
suspect “of the officer’s authority and the cause of arrest.” Fla.
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Stat. § 901.17. However, “an officer’s failure to comply with section
901.17 does not render the arrest illegal; it is merely a fact the jury
can consider in the defendant’s criminal case in evaluating the
reasonableness of the defendant’s actions.” Fla. Fish & Wildlife
Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 466-67 (Fla. Dist. Ct.
App. 2015); Albury v. State, 910 So. 2d 930, 933 (Fla. Dist. Ct. App.
2005) (same).
Second, Colon contends he did not have sufficient time to
provide Raslowsky with his identification. Colon’s cell phone video
clearly shows Raslowsky asking about identification eight times. A
reasonable officer in Raslowsky’s position could have believed
Colon was resisting an officer without violence where Colon failed
to present his identification after eight requests. See Edger v. McCabe,
84 F.4th 1230, 1236-37 (11th Cir. 2023) (“In the false arrest context,
arguable probable cause exists where a reasonable officer, looking
at the entire legal landscape at the time of the arrests, could have
interpreted the law as permitting the arrests.” (quotation marks
omitted)).
Third, at oral argument, Colon suggested that an individual
obstructs an officer by refusing to provide identification only after
the individual is arrested, not prior to arrest, such as when an
individual is lawfully detained. The Florida Supreme Court has
rejected this argument, stating “section 843.02 . . . does not require
that the officer be attempting to arrest the suspect.” Jacobson v.
State, 476 So. 2d 1282, 1287 (Fla. 1985). “On its face, [§ 843.02] is
unambiguous. It is intended to apply to any situation where a
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person willfully interferes with the lawful activities of the police.
Nothing indicates that it applies only when police are arresting a
suspect . . . .” N.H., 890 So. 2d at 516.
Because the officers had arguable probable cause to arrest
Colon under Fla. Stat. § 843.02, his § 1983 false arrest claims fail.
Accordingly, we reverse the district court’s order denying qualified
immunity and summary judgment to the officers on Colon’s false
arrest claim.7
B. Excessive Force
On appeal, the officers argue the district court erred in
denying them qualified immunity and summary judgment on
Colon’s excessive force claims.
The Fourth Amendment encompasses “the right to be free
from the use of excessive force in the course of an arrest.” Johnson
7 The parties dispute whether Corporal Raslowsky was an arresting officer
subject to Colon’s false arrest claim. To be liable for a false arrest, an officer
(1) must have participated in the arrest or (2) must have been the arresting
officer’s supervisor or in their chain of command. Brown v. City of Huntsville,
608 F.3d 724, 736-37 (11th Cir. 2010). Raslowsky was an active participant in
Colon’s arrest—he detained Colon, tased Colon after Smith’s tackle, and then
instructed Smith to handcuff Colon. Further, Raslowsky was in Smith’s chain
of command. Smith testified that Raslowsky, as a corporal, had seniority over
him, and Smith testified that Raslowsky was his corporal, stating, “So, we –
originally, my corporal, Raslowsky, he was the first responding deputy there.
I backed him up on the call.” Even though Corporal Raslowsky was an
arresting officer, Colon’s false arrest claims fail on other grounds.
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v. City of Miami Beach, 18 F.4th 1267, 1272 (11th Cir. 2021). “[T]he
right to make an arrest . . . necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it.”
Myers v. Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013) (quotation
marks omitted). Still, the manner in which an officer conducts an
arrest “must nonetheless comply with the Fourth Amendment.”
Richmond v. Badia, 47 F.4th 1172, 1180 (11th Cir. 2022).
In evaluating an excessive force claim, we utilize a
non-exhaustive list of factors set forth by the Supreme Court in
Graham v. Connor, 490 U.S. 386, 396 (1989), as well as factors added
by our caselaw. Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir.
2019). These factors include (1) “the severity of the crime at issue,”
(2) “whether the suspect poses an immediate threat to the safety of
the officers or others,” (3) whether the suspect “is actively resisting
arrest or attempting to” flee, (4) “the relationship between the need
and amount of force used,” and (5) “the extent of the injury
inflicted” on the suspect. Id. (quotation marks omitted).
As explained above, for the purposes of this appeal, we must
take as true Colon’s account of the events. See Stephens, 852 F.3d at
1313-14; supra at 6. Under Colon’s version, Raslowsky lunged at
Colon, Colon did not push or shoulder check Raslowsky, Smith
tackled Colon to the ground, and Raslowsky tased Colon, all while
Colon posed no immediate risk, was not resisting an arrest, and was
not attempting to evade his arrest by fleeing.
Under Colon’s version, there was no need for any force at all
and thus the force used—tackling Colon to the ground and tasing
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him—was excessive and not proportionate. And Colon suffered a
sore back and a sprained wrist from the officers’ force.
Accepting Colon’s events as true, the officers violated his
clearly established Fourth Amendment right to be free from
excessive force during a detention and an arrest when they used
gratuitous force and tackled and tased a non-resisting, non-violent
Colon. See Johnson, 18 F.4th at 1272 (“[A] police officer violates the
Fourth Amendment if he uses gratuitous force against a suspect
who is secure, not resisting, and not a safety threat to the officer or
other officers.”).
Further, it was clearly established at the time of the officers’
conduct “that gratuitous use of force when a criminal suspect is
not resisting arrest constitutes excessive force.” Hadley v. Gutierrez,
526 F.3d 1324, 1330(11th Cir. 2008); see also Saunders v. Duke,766 F.3d 1262, 1265
(11th Cir. 2014) (characterizing as gratuitous force
an officer slamming a non-resisting suspect’s head into the ground);
Fils v. City of Aventura, 647 F.3d 1272, 1292 (11th Cir. 2011) (holding
it was clearly established that using a taser “is excessive where the
suspect is non-violent and has not resisted arrest”).
At this summary judgment juncture, we affirm the denial of
qualified immunity to the officers on Colon’s § 1983 excessive force
claims.
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C. Malicious Prosecution
This brings us to the officers’ appeal of the denial of
qualified immunity on Colon’s malicious prosecution claims.
To prevail on a Fourth Amendment malicious prosecution
claim, the plaintiff must prove “(1) that the defendant violated his
Fourth Amendment right to be free from seizures pursuant to legal
process and (2) that the criminal proceedings against [the plaintiff]
terminated in his favor.” Luke v. Gulley, 975 F.3d 1140, 1144 (11th
Cir. 2020) (emphasis added).
While Colon’s warrantless arrest—a seizure without legal
process—would support a false arrest claim, it cannot support his
malicious prosecution claims. See Williams v. Aguirre, 965 F.3d 1147,
1157-58 (11th Cir. 2020) (noting false arrest and malicious
prosecution claims concern different kinds of seizures). Instead, a
malicious prosecution claim must be premised on a seizure
pursuant to legal process, such as a warrant-based arrest or a seizure
“following an arraignment, indictment, or probable-cause
hearing.” Id. at 1158. Colon presented no evidence of such a
seizure, so his malicious prosecution claims necessarily fail.
At oral argument, Colon suggested his malicious
prosecution claims could be based on the criminal “information”
filed against him on May 18, 2017. But there is no evidence that
Colon was seized after that “information” was filed. The only
evidence of a seizure is the warrantless arrest and Colon’s related 6
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or 7 hours in jail on February 6, 2017. That was a seizure without
legal process and does not support a malicious prosecution claim. 8
For the above reasons, we reverse the denial of summary
judgment to the officers on Colon’s malicious prosecution claims.
IV. FLORIDA LAW CLAIMS
A. Jurisdiction
We have a threshold obligation to ensure that we have
appellate jurisdiction, even where no party has raised the issue.
Corley v. Long-Lewis, Inc., 965 F.3d 1222, 1227, 1233 (11th Cir. 2020).
Colon’s state law claims present a jurisdictional wrinkle.
“Qualified immunity is a defense to federal causes of action and
does not protect officials from claims based upon state law.” Andreu
v. Sapp, 919 F.2d 637, 640 (11th Cir. 1990). Florida law provides
official immunity from suit for state tort claims. See Fla. Stat.
8 As to the malicious prosecution claim, the district court missed the mark by
addressing whether there was probable cause under Fla. Stat. § 843.02
(resisting without violence), a crime for which Colon was not charged. Just
like the seizure requirement, the probable-cause inquiry for malicious
prosecution and false arrest claims is distinct. In the false arrest context, we
assess whether there was probable cause to arrest for any crime, even
uncharged crimes, such as Fla. Stat. § 843.02. See Garcia v. Casey,75 F.4th 1176, 1187
(11th Cir. 2023). But in the malicious prosecution context, we assess
probable cause for the crimes actually charged that justified the seizure.
Williams, 965 F.3d at 1161-62. Because Colon presented no evidence that he
was seized pursuant to legal process, we need not address whether there was
probable cause for the crimes for which he was actually charged or whether
probable cause had to exist for all or just one of the crimes actually charged.
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§ 768.28(9)(a); Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012). And
state officials may immediately appeal the non-final denial of state
official immunity from suit. See Jones v. Fransen, 857 F.3d 843, 849
(11th Cir. 2017). But Raslowsky and Smith did not raise Florida law
official immunity as a defense to Colon’s state law claims at
summary judgment, and they do not address this immunity on
appeal.
In other words, when the district court denied summary
judgment to Raslowsky and Smith on Colon’s state law claims, it
did not deny them an immunity from suit. We thus lack an
independent jurisdictional basis to review the denial of summary
judgment on Colon’s state law claims.
However, we still have the option to exercise our
discretionary pendent appellate jurisdiction, which allows us to
review non-appealable matters that are “inextricably intertwined
with an appealable decision.” Smith v. LePage, 834 F.3d 1285, 1292
(11th Cir. 2016) (quotation marks omitted). Matters are sufficiently
intertwined where they “implicate the same facts and the same
law.” Id. (quotation marks omitted and alteration adopted). Here,
the same facts and law that are necessary to resolve Colon’s § 1983
law claims also resolve his state law claims. We choose to exercise
such pendent jurisdiction to reach Colon’s state law claims.
B. False Imprisonment
We can make short work of Colon’s state law false
imprisonment claims because we already determined there was
arguable probable cause for Colon’s arrest. Baxter v. Roberts, 54
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F.4th 1241, 1271 (11th Cir. 2022) (holding probable cause is a
complete bar to false imprisonment claims); Bolanos v. Metro. Dade
Cnty., 677 So. 2d 1005, 1005 (Fla. Dist. Ct. App. 1996) (same). As
described above, the officers had at least arguable probable cause
to arrest Colon for obstructing an officer without violence when,
while lawfully detained, Colon failed to present his identification.
As a result, we reverse the denial of summary judgment to the
officers on Colon’s state law false imprisonment claims.
C. Battery
Similarly, and as the parties agree, Colon’s state law battery
claims rise and fall with his § 1983 excessive force claims. “Under
Florida law, force used by a police officer during an arrest is
transformed into a battery where the force used was clearly
excessive.” Johnson, 18 F.4th at 1275. “[T]o determine whether the
force used was excessive, Florida courts analyze whether the
amount of force used was reasonable under the circumstances.” Id.
In light of our conclusion above that a reasonable jury could
conclude Corporal Raslowsky and Deputy Smith used excessive
force, they were not entitled to summary judgment. See id. We
affirm the denial of summary judgment to the officers on Colon’s
state law battery claims.
D. IIED
Under Florida law, an IIED claim has four elements:
“(1) deliberate or reckless infliction of mental suffering; (2) by
outrageous conduct; (3) which conduct must have caused the
suffering; and (4) the suffering must have been severe.” Hart v.
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United States, 894 F.2d 1539, 1548 (11th Cir. 1990) (citing Metro. Life
Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985)).
Among other things, the officers argue Colon failed to
present evidence of this fourth element—severe emotional distress.
We agree.
Under Florida law, “severe emotional distress means
emotional distress of such a substantial quality or enduring quality
that no reasonable person in a civilized society should be expected
to endure it.” Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla.
Dist. Ct. App. 2018) (quotation marks omitted and alteration
adopted). To prove an IIED claim, a plaintiff must show “both the
existence of emotional distress and the quality of that emotional
distress such that a factfinder may reasonably infer both that the
distress in fact happened and that the quality of that distress was
too much for a reasonable person to be expected to bear.” Id. at
1306. Outrageous conduct, standing alone, cannot prove severe
emotional distress. Id. at 1308.
Here, Colon’s evidence failed to show that he suffered severe
emotional distress, as required under Florida law. At most, Colon
stated he missed one day of work, totaling $105 in lost wages, and
that he was told he could lose his job for missing work, although
he did not actually lose his job. This falls far short of what is
required under Florida law to show an IIED claim.
Therefore, we reverse the denial of summary judgment to
the officers on Colon’s IIED claim.
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V. CONCLUSION
For the above reasons, we (1) affirm the denial of summary
judgment to Corporal Raslowsky and Deputy Smith on Colon’s
§ 1983 excessive force and state law battery claims, (2) reverse the
denial of summary judgment to the officers on Colon’s § 1983 false
arrest, § 1983 malicious prosecution, state law false imprisonment,
and state law IIED claims, and (3) remand for further proceedings.
AFFIRMED IN PART, REVERSED IN PART.
Reference
- Status
- Unpublished