Steven Paul Jones v. Tom Butt, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12602
Non-Argument Calendar
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D.C. Docket No. 0:13-cv-61854-RNS
STEVEN PAUL JONES,
Plaintiff - Appellant,
versus
TOM BUTT,
SHAWN BURST,
CITY OF PLANTATION,
CITY OF PLANTATION POLICE DEPARTMENT,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(February 25, 2016)
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Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff Steven Jones brought an action for malicious prosecution under 42
U.S.C. § 1983, alleging that Detective Tom Butt and Officer Shawn Burst
(collectively, Defendants) violated his constitutional rights through a criminal
investigation that culminated in his arrest on seven counts of lewd and lascivious
molestation and one count of lewd and lascivious molestation on a victim under
twelve. The district court granted summary judgment in favor of Defendants,
finding, inter alia, that Detective Butt had probable cause to arrest and institute
criminal proceedings against Jones and that Officer Burst played no role in Jones’s
arrest and prosecution. Jones appeals this determination.
On appeal, Jones argues that the district court erred in determining (i) there
was sufficient evidence on the record to support a probable cause finding for
Jones’s arrest by Detective Butt and (ii) Officer Burst could be found to have
initiated criminal proceedings against Jones.
I.
On February 2, 2008, Detective Butt reported to the Lakes of Jacaranda
apartment complex (“Jacaranda Complex”) to investigate the scene in which a
male suspect had exposed himself to three minor victims (two five-year-old girls,
I.L. and S.C., and one eight-year-old boy, M.L.) and forced one of the five-year old
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girls to touch his penis (the “Apartment Complex Incident”). During the course of
the investigation into the Apartment Complex Incident, Detective Butt learned of
multiple similar incidents in the vicinity, including one on November 26, 2007 in
which a white male suspect masturbated in front of middle school children at a bus
stop less than a half–mile from the Jacaranda Complex (the “Bus Stop Incident”).
The three victims of the Apartment Complex Incident were brought in for
forensic interviews, and M.L. worked separately with a sketch artist to create a
composite of the perpetrator.1 Detective Butt then distributed this composite
sketch as a flyer in the Jacaranda Complex.
After seeing the composite sketch, Officer Burst, a local police officer
uninvolved in the investigation, emailed Detective Butt. He gave some
background information of his previous experience investigating Jones as a suspect
in various peeping tom incidents nearby, and previous arrests for loitering,
prowling, and burglary. He also described a recent conversation with Jones’s
girlfriend’s mother, Linda Van Brock, during which Brock stated that her daughter,
Crystal Hasley, believed the sketch looked like Jones. He also noted that Van
Brock mentioned Hasley had found a pair of little girl’s underwear in the laundry
she shared with Jones.
1 Although M.L. based his description of the perpetrator off the photograph of a known
sex offender, David Pemberton, he explicitly stated to authorities that Pemberton was not the
actual perpetrator, he just resembled the perpetrator. As a precautionary measure, Detective Butt
interviewed Pemberton and cleared him as a suspect.
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Detective Butt then created a lineup, which included a photograph of Jones,
to show to the victims. Two of the victims from the Bus Stop Incident positively
identified Jones as the perpetrator in that incident. On February 12, 2008,
Detective Butt arrested Jones without a warrant. Jones was charged with seven
counts of lewd and lascivious molestation and one count of lewd and lascivious
molestation on a victim under twelve. He was denied pre-trial release.2 On
January 26, 2010, the state attorney dropped all charges against Jones.
II.
We review the district court’s entry of summary judgment de novo. Skop v.
City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). “In making this
determination, we view the evidence and all factual inferences therefrom in the
light most favorable to [Jones], and resolve all reasonable doubts about the facts in
favor of [Jones].” Id. (internal quotation mark omitted).
“To establish a federal malicious prosecution claim under [42 U.S.C.] §
1983, a plaintiff must prove (1) the elements of the common law tort of malicious
prosecution, and (2) a violation of [his] Fourth Amendment right to be free from
unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th
2 The Court held an Arthur hearing in order to determine the sufficiency of the evidence
against Jones, and ultimately denied pretrial release. State v. Arthur, 390 So. 2d 717, 717 (Fla.
1980) (holding that when the State seeks to deny pretrial release to an accused charged with a
capital offense or one punishable by life imprisonment, it must carry the burden of demonstrating
“that proof of guilt is evident or the presumption great”).
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Cir. 2004). Under Florida law, a plaintiff must demonstrate each of the following
six elements in order to establish a claim of malicious prosecution:
(1) an original judicial proceeding against the present plaintiff was
commenced or continued; (2) the present defendant[s] w[ere] the legal
cause of the original proceeding; (3) the termination of the original
proceeding constituted a bona fide termination of that proceeding in
favor of the present plaintiff; (4) there was an absence of probable
cause for the original proceeding; (5) there was malice on the part of
the present defendant[s]; and (6) the plaintiff suffered damages as a
result of the original proceeding.
Id. (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002)).
Qualified immunity generally insulates government officials from liability
under § 1983. See Bashir v. Rockdale Cty., 445 F.3d 1323, 1327 (11th Cir. 2006).
To receive qualified immunity, a government official initially must show that he
was “engaged in a discretionary function” during the alleged violation. Skop, 485
F.3d at 1136. The burden then shifts to the plaintiff to “overcome the defendant’s
privilege” by proving that the defendant violated a federal constitutional or
statutory right that was “clearly established” at the time of the defendant’s conduct.
Douglas Asphalt v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008); see Skop,
485 F.3d at 1137.
Qualified immunity relates to probable cause in the § 1983 context. See
Rushing v. Parker, 599 F.3d 1263, 1265 (11th Cir. 2010) (per curiam). It is clearly
established that “an arrest without probable cause violates the right to be free from
an unreasonable search under the Fourth Amendment.” Kingsland, 382 F.3d at
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1232; see Skop, 485 F.3d at 1137 (“In Fourth Amendment terminology, an arrest is
a seizure of the person, and the ‘reasonableness’ of an arrest is, in turn, determined
by the presence or absence of probable cause for the arrest.” (citation omitted)). In
order to be entitled to qualified immunity from a Fourth Amendment claim, an
officer only need have arguable probable cause for a search or seizure—a “more
lenient standard” than traditional probable cause. See Knight v. Jacobson, 300
F.3d 1272, 1274 (11th Cir. 2002). The standard for arguable probable cause is not
whether a reasonable officer in the same circumstances would have believed that
probable cause existed, but whether such an officer could have found probable
cause. See Kingsland, 382 F.3d at 1232.
III.
Viewing the facts in the light most favorable to Jones, we hold there was
sufficient arguable probable cause for his arrest and, hence, Detective Butt is
entitled to qualified immunity. See id. at 1231. We also conclude that Officer
Burst’s emailed statements did not amount to initiating criminal proceedings
against Jones, as required by a claim for malicious prosecution under Florida law.
See Durkin, 814 So. 2d at 1248.
A. Detective Butt
Whether Detective Butt had probable cause to arrest Jones is central to both
Jones’s malicious prosecution claim and Detective Butt’s defense of qualified
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immunity.3 After our review of the record and circumstances surrounding the
investigation, we are satisfied that, in light of the information Detective Butt
possessed, a reasonable officer could have believed there was sufficient probable
cause to arrest Jones for both the Apartment Complex Incident and the Bus Stop
Incident. See, e.g., Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).
Consequently, Detective Butt is eligible for the defense of qualified immunity
because Jones failed to demonstrate a violation of his Fourth Amendment rights.
See Douglas Asphalt, 541 F.3d at 1273.
When combined with “temporal and geographic proximity,” resemblance to
“a description by witnesses of a suspect may provide a sufficient basis for arresting
an individual who closely resembles the description.” Cf. Shriner v. Wainwright,
715 F.2d 1452, 1454 (11th Cir. 1983) (finding such evidence sufficient to meet
traditional probable cause standard); accord Shriner v. Florida, 386 So. 2d 525,
528 (Fla. 1980) (per curiam). As the district court stated, even Jones
acknowledges that he resembles the composite sketch. Moreover, he lived in the
Jacaranda Complex at the time the Apartment Complex Incident took place, and
had been investigated in the past as a suspect in numerous peeping tom incidents.
Therefore, we conclude that a reasonable officer, knowing this information, could
3 As a police detective taking witness statements, investigating and clearing potential
suspects, and compiling a photo lineup during the course of a criminal investigation, Detective
Butt was acting squarely within his discretionary authority, making him eligible for a qualified
immunity defense. See Eubanks v. Gerwen, 40 F.3d 1157, 1160 (11th Cir. 1994).
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have found there was probable cause to arrest Jones in connection with the
Apartment Complex Incident. See Montoute, 114 F.3d at 184.
Similar information provided arguable probable cause for Jones’s arrest in
connection with the Bus Stop Incident. Two victims of that incident identified
Jones out of a lineup as the perpetrator. Jones also lived less than a half–mile from
the bus stop at the time the incident took place. This information, together,
constitutes sufficient evidence to meet the lower standard of arguable probable
cause. See id.
Because Detective Butt had arguable probable cause to arrest Jones for both
the Apartment Complex Incident and the Bus Stop Incident, he is entitled to the
defense of qualified immunity. When the qualified immunity defense applies to a
malicious prosecution claim, we must affirm the district court’s grant of summary
judgment. Kingsland, 382 F.3d at 1231. Accordingly, we affirm the district
court’s entry of summary judgment in favor of Detective Butt.
B. Officer Burst
Jones argues that Officer Burst’s email to Detective Butt during the course
of the investigation contained statements that were knowingly false and, therefore,
Officer Burst is liable for maliciously initiating the criminal prosecution.
Making statements to a detective in the context of a larger criminal
investigation does not mean that individual initiated a criminal prosecution. See
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Eubanks v. Gerwen, 40 F.3d 1157, 1160–61 (11th Cir. 1994). Viewing Officer
Burst’s statements in the context of the entire investigation and sequence of events,
he neither was responsible for the decision to prosecute Jones nor did he
improperly influence the decision to prosecute. Cf. id.; see Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993), modified, 14 F.3d 583 (1994).
Rather, his statement merely conveyed information about his prior experience
investigating Jones and a recent conversation with Van Brock. Therefore, Officer
Burst cannot be said to be the “legal cause of the original proceeding,” as required
under Florida’s malicious prosecution claim. See Durkin, 814 So. 2d at 1248.4
Accordingly, the district court properly granted summary judgment in favor of
Officer Burst.
IV.
The district court did not err in granting summary judgment in favor of the
Defendants. Therefore, we AFFIRM.
4 Whether Officer Burst’s statements were false does not change their relevance to our
determination that Officer Burst did not initiate or influence initiation of the criminal action.
Hence, this factual dispute cannot defeat summary judgment because it is not material to the
legal outcome. See Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259–60 (11th Cir.
2004) (“An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the
outcome of the case.”).
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