Dorothy Burse v. B. Hartzig, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11712
Non-Argument Calendar
____________________
DOROTHY BURSE,
Plaintiff-Appellant,
versus
B. HARTZIG,
Trooper ID #FHPT09PERA00033,
DIRECTOR OF THE FHP,
in official capacity,
Defendants-Appellees,
SHERIFF OF PINELLAS COUNTY,
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2 Opinion of the Court 22-11712
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-03104-SDM-SPF
____________________
Before W ILSON, L UCK , and LAGOA , Circuit Judges.
PER C URIAM :
Dorothy Burse appeals the district court’s summary judg-
ment for defendants Trooper Bobby Hartzig and Colonel Gene
Spaulding as to her false arrest claims. After careful review, we af-
firm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
These are the summary judgment facts viewed in the light
most favorable to Burse.
See Hardigree v. Lofton, 992 F.3d 1216,
1223 (11th Cir. 2021). Burse was a bus driver for Pinellas County
Schools. Early on the morning of January 3, 2017, Burse took a
dose of the antibiotic Bactrim, which a doctor had prescribed her
two days prior. That afternoon, she picked up children from the
intermediate school. While stopped at a red light on her route, her
bus was rear-ended.
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22-11712 Opinion of the Court 3
The first officer to arrive had Burse pull onto a side street
and—after finding no damage to the bus—told her she could leave.
But Burse’s dispatcher told her to remain at the scene until her su-
pervisor arrived.
Florida Highway Patrol Lieutenant Richard Benton then ar-
rived at the scene, as did Burse’s supervisor. Lieutenant Benton
spoke with Burse and observed signs of impairment: confusion and
lack of alertness, difficulty locating paperwork and answering ques-
tions, and dishevelment. He also spoke with the children on the
bus—who thought Burse was out of sorts—and overheard both
Burse’s dispatcher and supervisor say Burse had left “a bunch of
kids” at the school. According to Lieutenant Benton, Burse’s su-
pervisor also thought “something wasn’t right” and believed Burse
was drunk or impaired. So Lieutenant Benton called Trooper
Hartzig to the scene, shared these observations, and instructed him
to conduct a DUI investigation. Trooper Hartzig had both training
in conducting field sobriety exercises and a year’s experience in the
DUI Enforcement Division; Lieutenant Benton also had training
and significant experience investigating DUIs.
When Trooper Hartzig spoke with Burse, he observed that
she had a dry mouth and watery, glassy eyes with “extremely con-
stricted pupils”; she also appeared nervous, lethargic, confused, dis-
oriented, and unsteady on her feet (exhibiting balance problems
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4 Opinion of the Court 22-11712
and staggering rather than walking in straight lines).1 Based on his
observations, Trooper Hartzig told Burse he suspected she was un-
der the influence of narcotics and was going to investigate her for
a DUI.
Trooper Hartzig’s interactions with Burse—from when he
informed her of his DUI suspicions to her arrest—were captured
by dashboard camera. Burse licked her lips repeatedly throughout;
she was also slow to respond to questions, at times, and slow to
react when Trooper Hartzig asked her to stick out and lift her
tongue so he could examine it. Burse told Trooper Hartzig she
rarely drank and had taken only Bactrim that day. She also ex-
pressed concerns about the field sobriety exercises—saying at one
point, “I don’t know if I can hobble on one leg or not,” at another
point telling Trooper Hartzig “right now I am a nervous wreck”
and giving him a “heads up” that she couldn’t recite the alphabet
backwards. But she consented to the exercises, which Hartzig con-
ducted within his dashcam’s view.
1 Burse argues there’s a genuine dispute as to whether she was experiencing
vision or balance issues at the scene. We disagree because Burse relies on ev-
idence from long before the accident (testimony about how she felt upon ar-
riving at work at 4:45 a.m.) and from several hours after Trooper Hartzig’s
investigation (results from another DUI evaluation that evening) as contra-
dicting his observations. Burse’s argument is also contradicted by the video
from Trooper Hartzig’s dashboard camera.
See Scott v. Harris, 550 U.S. 372,
380–81 (2007) (on summary judgment, court must “view[] the facts in the light
depicted by the videotape”).
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22-11712 Opinion of the Court 5
During both field sobriety exercises, Trooper Hartzig had to
repeat his instructions to Burse. The first exercise—“walk and
turn”— involved taking a series of heel-to-toe steps along a painted
line. While listening to Trooper Hartzig’s instructions, Burse
struggled to maintain her balance in the starting position (standing
on the line, with her feet heel-to-toe), saying at one point “I’m not
ready because I’m wobbly.” While walking, Burse remained un-
stable: her legs shook, and she paused, took side steps, or raised
her arms numerous times to steady herself. She also failed to take
heel-to-toe steps.
The second field sobriety exercise—“one-leg stand”—in-
volved counting aloud while raising one leg off the ground with its
toe pointed. While performing this exercise, Burse wobbled,
leaned, and raised her arms to keep her balance; she also touched
her raised foot to the ground several times. Burse testified that she
felt nervous and upset about the field sobriety exercises but didn’t
feel impaired; she acknowledged, however, that she couldn’t per-
form the “walk and turn” exercise.
After conducting the exercises, Hartzig concluded he had
probable cause that Burse had driven the bus while impaired and
so arrested her for DUI and child neglect. He transported her to
the Pinellas County Jail, where she was evaluated by drug recogni-
tion expert Trooper William Smith. Trooper Smith—who tested
Burse’s autonomic responses and vital signs along with conducting
additional sobriety exercises—concluded Burse was not impaired.
Burse’s two breath samples tested at 0.000, and an eventual
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6 Opinion of the Court 22-11712
urinalysis detected no controlled substances. Burse was eventually
released and the charges against her dropped.
Burse sued in December 2020, asserting 42 U.S.C. section
1983 and state-law false arrest claims against Trooper Hartzig
(Counts I and III), as well as a claim (Count IV) seeking to hold
Colonel Gene Spaulding, in his official capacity as Florida Highway
Patrol Director, liable for Trooper Hartzig’s tortious conduct un-
der Florida Statutes section 768.28(9)(a).2
The defendants moved for summary judgment on all
counts, and the district court granted their motion in full. The dis-
trict court concluded that Trooper Hartzig had “at least” arguable
probable cause to arrest Burse and so was entitled to qualified im-
munity. The district court noted that Trooper Hartzig wasn’t re-
quired to investigate every innocent explanation, perform specific
tests, or consult a drug recognition expert before arresting some-
one who performed poorly on field sobriety exercises—which “af-
ford[] an objective standard that eliminates the need for an officer
to assess each proffered innocent explanation for exhibiting signs
of intoxication.” And the district court concluded that Burse’s
claim against Colonel Spaulding failed because Trooper Hartzig
was entitled to qualified immunity, because Colonel Spaulding en-
joyed Eleventh Amendment immunity as to section 1983 claims,
2 Burse also alleged a section 1983 claim against Pinellas County Sheriff Bob
Gualtieri but later stipulated to dismissal with prejudice of that claim.
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22-11712 Opinion of the Court 7
and because section 1983 doesn’t permit respondeat superior
claims. Burse now appeals.
STANDARD OF REVIEW
We review de novo a district court’s grant of summary judg-
ment, including on qualified immunity grounds.
Hardigree, 992
F.3d at 1223. Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
DISCUSSION
Trooper Hartzig is entitled to qualified immunity—and
therefore summary judgment as to Burse’s section 1983 false arrest
claim—if there was “arguable probable cause” to arrest her.3
Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)
(citation omitted),
abrogated on other grounds by Nieves v. Bart-
lett, 139 S. Ct. 1715 (2019). Arguable probable cause exists if a rea-
sonable officer, in the same situation and with the same knowledge
as Trooper Hartzig, could have believed under the totality of the
circumstances that probable cause existed to arrest Burse.
See id.
at 1232 (citations omitted).4
3 It is undisputed that Trooper Hartzig was acting within the scope of his dis-
cretionary authority when he arrested Burse.
4 Throughout the litigation, and even on appeal, the parties (and the district
court) have assumed that arguable probable cause was a defense to Burse’s
Florida state law false arrest claim, as it is under section 1983. Because no one
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8 Opinion of the Court 22-11712
Even viewing the facts in Burse’s favor, a reasonable officer
in Trooper Hartzig’s position could have concluded there was
probable cause to arrest Burse for a DUI. A person violates Flor-
ida’s driving under the influence statute when she drives a motor
vehicle while under the influence of alcohol or certain other chem-
ical substances “when affected to the extent that [her] normal fac-
ulties are impaired.” Fla. Stat. § 316.193(1)(a). Here, Trooper
Hartzig was summoned to the scene after Burse’s bus was rear-
ended while in traffic. He learned from Lieutenant Benton that
Burse was confused, disheveled, unalert, and had difficulties find-
ing paperwork and answering Lieutenant Benton’s questions.
Trooper Hartzig also learned that Burse had left the intermediate
school without all the children on her bus route, that the children
on the bus perceived her as out of sorts, and that Burse’s supervisor
thought “something wasn’t right.”
Trooper Hartzig then observed Burse with a dry mouth (the
dashcam video shows her licking her lips repeatedly), watery,
glassy eyes with constricted pupils, and an air of nervousness, leth-
argy, disorientation, and unsteadiness. During the interactions
has argued otherwise, we will make the same assumption for purposes of this
appeal.
Cf. Quince v. Crosby, 360 F.3d 1259, 1261 n.2 (11th Cir. 2004) (“This
case has been litigated on the assumption by all of the parties and the district
court that the pre-AEDPA law applies. For this reason . . . we decline to ad-
dress whether pre-AEDPA law or the AEDPA should have applied.”);
Gar-
wood v. Int’l Paper Co., 666 F.2d 217, 221 (5th Cir. Unit B 1982) (“We also
assume that Florida law is the applicable substantive law in this case because
both parties so argued, both in the district court and on appeal.”).
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22-11712 Opinion of the Court 9
captured on video, Burse was, at times, slow to respond to Trooper
Hartzig’s questions—and slow to react to his instructions. Most
importantly, she performed poorly on both field sobriety exercises
Trooper Hartzig administered, requiring repeated instructions and
struggling significantly with balance and precision. In short, these
facts show Trooper Hartzig had arguable probable cause to con-
clude that Burse’s normal faculties were impaired. The district
court did not err in granting summary judgment in favor of
Trooper Hartzig.
Colonel Spaulding is also entitled to summary judgment be-
cause a state official sued in his official capacity is not a “person”
within the meaning of section 1983,
Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989), and because Trooper Hartzig’s de-
fense to Burse’s state-law claim shields Colonel Spaulding from lia-
bility as well,
cf., e.g.,
Fernander v. Bonis, 947 So. 2d 584, 589 (Fla.
Dist. Ct. App. 2007) (affirming dismissal of state-law false arrest
claim against arresting officer’s employing entity because officer
had valid probable cause defense);
Metro. Dade Cnty. v. Norton,
543 So. 2d 1301, 1301–02 (Fla. Dist. Ct. App. 1989) (same). As a
result, the district court also did not err in granting summary judg-
ment in his favor.
Burse makes two arguments on appeal, but neither are avail-
ing. She argues, first, that disputed facts regarding whether she was
impaired by a chemical or controlled substance—that is, by a sub-
stance triggering criminal liability under Florida Statutes section
316.193—precluded summary judgment. She says later testing
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10 Opinion of the Court 22-11712
(and Trooper Smith’s opinion) confirmed that any impairment
wasn’t caused by either alcohol or a controlled substance, and
Trooper Hartzig had no evidence otherwise. Burse argues that the
district court, viewing the evidence in her favor, should’ve ignored
Trooper Hartzig’s observations, assumed Burse wasn’t impaired
by a chemical or controlled substance, and thus concluded that
Trooper Hartzig lacked even arguable probable cause.
Burse’s argument fails because what matters for arguable
probable cause purposes are the facts and circumstances at the time
of arrest—not those available to an officer only in hindsight.
Jones
v. Cannon, 174 F.3d 1271, 1283 & n.4 (11th Cir. 1999). And “[a]rgu-
able probable cause does not require an arresting officer to prove
every element of a crime.”
See Scarbrough v. Myles, 245 F.3d 1299,
1302–03 (11th Cir. 2001). So neither Trooper Smith’s report nor
Burse’s breath or urine test results—nor the fact that Trooper
Hartzig lacked evidence of a specific substance causing Burse’s im-
pairment—undermines the arguable probable cause that Burse was
driving under the influence.
Burse urges us to overturn
Scarbrough and hold that an of-
ficer can’t arrest a DUI suspect without “evidence that [she] is un-
der the influence of alcohol, [a] controlled substance, or [a] chemi-
cal substance” (as opposed to fatigue, speech impediments, medical
conditions, or other innocent explanations). But the prior panel
precedent rule binds us to
Scarbrough “unless and until [its] hold-
ing is overruled by the [c]ourt sitting en banc or by the Supreme
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22-11712 Opinion of the Court 11
Court.”
See, e.g.,
Scott v. United States, 890 F.3d 1239, 1257 (11th
Cir. 2018).
Second, Burse argues, citing
Rankin v. Evans, 133 F.3d 1425
(11th Cir. 1998), that Trooper Hartzig isn’t entitled to qualified im-
munity because clearly established law required him to investigate
“readily available exonerating evidence” before arresting her. She
says Trooper Hartzig should have followed up on the effects of
Bactrim and Burse’s innocent explanation for her poor perfor-
mance on the field sobriety exercises (a past bicycle accident), con-
ducted another “core” field sobriety exercise (horizontal gaze nys-
tagmus), and reached out for the opinion of a drug recognition ex-
pert.
We disagree. Even if Trooper Hartzig had investigated the
effects of Bactrim, he was not required to take Burse’s word that
she took nothing else on the day of the accident.
Cf. Washington
v. Howard, 25 F.4th 891, 902 (11th Cir. 2022) (noting, in context of
unlawful detention claim, that officer wasn’t obligated to either be-
lieve suspect’s statement recanting photo identification of plaintiff
as co-conspirator or “weigh the evidence in such a way as to con-
clude that probable cause did not exist”) (citing
District of Colum-
bia v. Wesby, 138 S. Ct. 577, 588 (2018)). The same is true of
Burse’s bicycle explanation—which, we note, Burse didn’t actually
tell Trooper Hartzig during the duration of the dashcam video.
Even if conducting a horizontal gaze nystagmus exercise or calling
a drug recognition expert to the scene of a DUI investigation were
considered a best practice, Burse hasn’t shown that she had a
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12 Opinion of the Court 22-11712
clearly established right to either one of them—such that Trooper
Hartzig did not have arguable probable cause for the arrest.
See id.
at 899 (“Probable cause does not require conclusive evidence and
is not a high bar.”) (quotation omitted).
AFFIRMED.
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