Orlando Bethel v. City of Mobile, Alabama, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 2, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11983
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-00009-CG-N
ORLANDO BETHEL,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
CITY OF MOBILE, ALABAMA,
MAYOR SAM JONES,
MICHAEL P. ELLZEY,
JONATHAN DAVID LEE,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(December 2, 2011)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

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PER CURIAM:
Orlando Bethel, proceeding pro se, brought this action under 42 U.S.C. §
1983 against the City of Mobile, Mayor Sam Jones, and Mobile police officers
Michael Ellzey and Jonathan Lee claiming that Ellzey and Lee arrested him for
disorderly conduct without arguable probable cause in violation of his rights under
First, Fourth, and Fourteenth Amendments of the U.S. Constitution. The arrests
took place during the City’s Mardi Gras parade in 2009 as Bethel, his wife and
three children were standing on a sidewalk along the parade route. Bethel was
holding up a sign which stated: “GOD hates you SINners repent in JESUS name
live SIN free.” Officer Ellzey, who had been working crowd control, was
dispatched to the area where Bethel was holding his sign. He asked Bethel to take
down the sign and cease harassing the crowd because he was creating a public
harm. Bethel refused. Meanwhile, Officer Lee spoke to Renee Cook, who had
called the police because Bethel was harassing her 13-year old daughter with
threatening words, calling her a “whore” and a “slut” and telling her that she
would “burn in hell.” After hearing this from Cook, Lee and Ellzey arrested
Bethel for disorderly conduct, in violation of Alabama’s disorderly conduct
statute. Ala. Code § 13A-11-7 (1975).
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Ellzey and Lee moved the district court to grant them summary judgment on
Bethel’s claims against them on the ground of qualified immunity. The City and
Mayor moved the district court for summary judgment as well on the merits of
Bethel’s claims. The court granted the motions. Bethel appeals. In his brief, he
does not address the district courts rejection of his claims against the City and
Mayor; his sole contention is that the court erred in granting Ellzey and Lee
summary judgment. We agree that they are entitled to qualified immunity and that
summary judgment was appropriate.
I.
In his brief on appeal, Bethel argues that the district court erred in granting
Ellzey and Lee summary judgment because disputed issues of material fact exist as
to whether the officers had probable cause to arrest him for disorderly conduct.
He contends that by arresting him without probable cause, the officers violated his
First Amendment rights of free speech, assembly, and free exercise of religion, his
Fourth Amendment right to be free from unreasonable searches and seizures, and
his Fourteenth Amendment right to equal protection of the laws.
We review de novo a district court’s disposition of a summary judgment
motion based on qualified immunity, applying the same legal standards as the
district court did. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003).
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Summary judgment is appropriate where the evidence shows that there are no
genuine issues as to any material facts and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
As an affirmative defense, 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) (citations omitted). For qualified immunity to apply,
officials who assert the defense bear the burden of establishing that, at the time of
the complained-of conduct, they were acting within their discretionary authority.
Skop v. City of Atlanta, Georgia, 485 F.3d 1130, 1136 (11th Cir. 2007). Here,
neither party disputes that at the time of Bethel’s arrest, Officers Ellzey and Lee
were acting pursuant to their discretionary authority as police officers. Because
the officers were acting within the scope of their discretionary authority, the
burden shifted to Bethel to prove that they were not entitled to qualified immunity.
Skop, 485 F.3d at 1136-37. Bethel had to show that: (1) the officers violated a
constitutional right, and (2) this right was clearly established at the time of the
alleged violation. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264
(11th Cir. 2004).
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A warrantless arrest without probable cause violates the Fourth Amendment
and forms a basis for a § 1983 claim, while an arrest made with probable cause
constitutes an absolute bar to a § 1983 action for false arrest. Ortega v. Christian,
85 F.3d 1521, 1525 (11th Cir. 1996). However, an officer who violates the Fourth
Amendment by arresting an individual without probable cause is not inevitably
removed from the shield of qualified immunity. Skop, 485 F.3d at 1137. Even if
the officer did not in fact have probable cause, we apply the standard of arguable
probable cause: whether a reasonable officer in the same circumstances and
possessing the same knowledge could have believed that probable cause existed to
arrest. Id.
To determine whether arguable probable cause exists, we look to the totality
of the circumstances. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). In
the qualified immunity context, we ask whether a reasonable officer, acting under
these circumstances and possessing the knowledge the arresting officer actually
possessed, could have believed he had probable cause to arrest. Skop, 485 F.3d at
1143. Probable cause determinations need not be supported by “overwhelmingly
convincing evidence,” but instead, officers are entitled to rely on all “reasonable
trustworthy information.” Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir.
1990).
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Police officers are also entitled to qualified immunity on First Amendment
claims stemming from an arrest if the arrest was supported by probable cause. See
Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) (holding that
when probable cause supports an arrest, an officer “is justified in arresting that
person, even if the offender may be speaking at the time that he is arrested”).
Based on the knowledge possessed by Officers Ellzey and Lee at the time
they arrested Bethel, it was reasonable for them to conclude that Bethel had
violated Alabama’s disorderly conduct statute through his use of abusive and
obscene language in a public place. The officers were entitled to rely on Renee
Cook’s “reasonabl[y] trustworthy” report regarding Bethel’s behavior in making
this determination, even if, as Bethel contends, he never used abusive or obscene
language. See Marx, 905 F.2d at 1506. Because there was arguable probable
cause to arrest Bethel for disorderly conduct, Bethel did not demonstrate that his
Fourth Amendment rights were violated such that the officers were not entitled to
qualified immunity. See Skop, 485 F.3d at 1137. Additionally, the existence of
probable cause also entitles Officers Ellzey and Lee to qualified immunity as to
Bethel’ First Amendment claims. See Redd, 140 F.3d at 1383. Other than his
assertions regarding the unequal treatment of similarly situated speakers, Bethel
does not separately argue that Officers Ellzey and Lee were engaged in selective
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enforcement of the law, in violation of the Fourteenth Amendment’s equal
protection guarantee. Such unsupported factual allegations are insufficient to
sustain a claim against a motion for summary judgment. See Fed. R. Civ. P. 56(e).
In light of the foregoing, the district court did not err by granting summary
judgment to Officers Ellzey and Lee as to Bethel’s First, Fourth, and Fourteenth
Amendment claims, as the officers are entitled to qualified immunity as to Bethel’s
false arrest claim, and Bethel presented no evidence that the arrest violated his
First or Fourteenth Amendment rights.
In sum, the district court’s summary judgments in favor of all appellees are
AFFIRMED.
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