IN THE SUPREME COURT OF FLORIDA. CASE NO. SC Second District Case No. 2D

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Second District Case No. 2D JARROD S. DOUDS, FRANKLIN M. DREES, VICTOR M. GOMEZ, SALVATORE S. MAZZA, KEVIN J. PETRY, CHARLES A. TRIGO, and JOHN WOMACK, v. Petitioners, JEANNETTE THOMPSON, as Plenary Guardian of ROBERT MAGYAR and CECILIA MAGYAR, Individually, Respondents. / ON REVIEW FROM THE DISTRICT COURT OF APPEAL, SECOND DISTRICT STATE OF FLORIDA PETITIONERS JURISDICTIONAL BRIEF DONALD A. SMITH, JR., ESQUIRE Florida Bar No GWENDOLYN R. HOLLSTROM, ESQUIRE Florida Bar No SMITH AND TOZIAN, P.A. 109 North Brush Street, Suite 150 Tampa, Florida (813)

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS...ii PRELIMINARY STATEMENT...iv JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 5 ISSUE STATEMENT: I. THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION BECAUSE THE SECOND DISTRICT COURT S DECISION EXPRESSLY CONSTRUED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION TO HOLD THAT THE USE OF FORCE IS EXCESSIVE WHERE THE DETAINEE IS NOT SUSPECTED OF COMMITTING A CRIME EVEN THOUGH AN OFFICER IS STATUTORILY REQUIRED TO DETAIN THE INDIVIDUAL AND THE DETAINEE RESISTS.. 5 II. THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION BECAUSE THE DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH DECISIONS OF THIS COURT AND OF THE OTHER DISTRICT COURTS OF APPEAL AS TO APPELLATE PROCEDURE AND SEPARATE REVIEW OF EACH OFFICER S ACTIONS TO DETERMINE ENTITLEMENT TO QUALIFIED IMMUNITY... 5 ARGUMENT ISSUE ONE... 5 ARGUMENT ISSUE TWO... 8 CONCLUSION...10 CERTIFICATE OF SERVICE... CERTIFICATE OF COMPLIANCE WITH RULE 9.210(A)(A)... v v i

3 TABLE OF CITATIONS CASES PAGE Bolanos v. Bain, 696 So. 2d 478 (Fla. 3d DCA 1997)...10 City of Hialeah v. Fernandez, 661 So.2d 335 (Fla. 3d DCA 1995)... 4 Evans v. St. Regis Paper Company, 287 So.2d 296 (Fla. 1973)... 9, 10 Hope v. Pelzer, 536 U.S. 730 (2002), 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)... 3, 4, 8 St. John v. Coisman, 799 So.2d 1110 (Fla. 5th DCA 2001)... 9, 10 Thompson v. Douds, 852 So.2d 299 (Fla. 2d DCA 2003)... 1 Tucker v. Resha, 648 So.2d 1187 (Fla. 1994)...10 FLORIDA CONSTITUTION Art. V, 3(b)(3)... 1 FLORIDA RULES OF APPELLATE PROCEDURE Fla.R.App.P (a)(2)(A)(ii)... 1 Fla.R.App.P (a)(2)(A)(iv)... 1 FLORIDA STATUTES Fla. Stat (1)...6, 7 ii

4 Fla. Stat (2) (a)(2)...6, 7 UNITED STATES CODE 42 U.S.C CONSTITUTION OF THE UNITED STATES First Amendment... 2 Fourth Amendment... 1, 2, 4 Fourteenth Amendment... 2 iii

5 PRELIMINARY STATEMENT The following abbreviations and symbols are used in this brief: App. = Appendix attached to the Brief. AB = Officers Answer Brief dated January 16, IB = Plaintiffs Initial Brief dated November 2, RB = Plaintiffs Reply Brief dated February 21, R = Record on Appeal. iv

6 JURISDICTIONAL STATEMENT The Officers request this Court invoke its discretionary jurisdiction to review the Second District Court of Appeal s decision in Thompson v. Douds, 852 So.2d 299 (Fla. 2d DCA 2003). The Court has jurisdiction pursuant to Art. V, 3(b)(3), Fla. Const; Fla.R.App.P (a)(2)(A)(ii)&(iv), because the Second District Court s decision expressly construed the Fourth Amendment to the United States Constitution and expressly and directly conflicts with decisions of other district courts of appeal and this Court on the same issues of law. STATEMENT OF THE CASE AND FACTS On October 18, 1998, Officer Mazza and Sargent Drees detained Robert Magyar. [R. at , , , ]. The Officers had observed Mr. Magyar to be incoherent, making paranoid and delusional statements, and wandering across Interstate 275 without regard for traffic. [R at , , 1951, ]. Officers Mazza and Drees determined that Mr. Magyar should be taken into custody because it appeared that there was a substantial likelihood that Mr. Magyar would cause serious bodily harm to himself or others. [R at , ]. Mr. Magyar had also told the Officers he was ill and wanted to go to the hospital. [R at 1090, 1909]. After initially 1

7 cooperating with the Officers while they summoned an ambulance, Mr. Magyar attempted to flee before the ambulance arrived. [R at , 1910, 2002]. In response, the Officers attempted to physically restrain him. [R at , 1911, 2002]. As Mr. Magyar forcefully resisted, Officer Mazza called for back-up assistance. [R. at 1093, 1911, 2002]. Ultimately Officers Womack, Douds, Trigo, Gomez and Petry arrived and, at various times, and in various ways, assisted in restraining Mr. Magyar. [R. at , , 2002]. When Mr. Magyar was finally handcuffed with his legs restrained by ropes, he was rolled over and appeared to be unconscious. [R at 1096, 1912, 2002]. At that moment, paramedics arrived and began attending to Mr. Magyar, who was intubated, re-handcuffed to a stretcher and placed in an ambulance accompanied by Officer Petry. [R. at 1096, 1912]. Mr. Magyar regained consciousness en route to the hospital and again forcefully resisted his restraint. [R. at 1097, 1912]. Mr. Magyar struggled all the way to the hospital. [Id.]. As the ambulance pulled into the hospital, Mr. Magyar collapsed and lost consciousness. [R. at 1098, 1912]. The emergency room physician found that Mr. Magyar had gone into cardiac and respiratory arrest. [R. at 1098]. Mr. Magyar remains in a comatose state. [R. at 1912]. The Plaintiffs filed the underlying action in the Circuit 2

8 Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, alleging claims against the Officers under 42 U.S.C [R at 27-42]. The Plaintiffs asserted that the Officers violated Mr. Magyar s civil rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution because of alleged excessive use of force in detaining Mr. Magyar and taking him into custody. The action includes state tort claims against the Officers for excessive force and battery. 1 The trial court granted the Officers motion for summary judgment based upon qualified and statutory immunity. The trial court made the following findings: (a) the Officers had met their burden of showing that they acted within the scope of their discretionary authority; (b) a reasonable officer under the circumstances could believe he had a duty to take Mr. Magyar into custody and thus Mr. Magyar s detainment was justified under Fla. Stat (2)(a)(2), and did not violate his constitutional rights; (c) the undisputed facts, taken in the light most favorable to the Plaintiffs, failed to establish that any of the Officers violated clearly established law because: (1) the facts of the Plaintiffs authorities materially differed 1 Plaintiffs also sued the City of Tampa. The City is not a party to this appeal. 3

9 from the facts of the Officers actions in this case and (2) the facts failed to show that any of the Officers used excessive force against Mr. Magyar [App. at 22]. The order was rendered May 22, [Id.] 2 On June 27, 2002, the Supreme Court rendered its decision in Hope v. Pelzer, 536 U.S. 730 (2002), specifically disapproving the standard employed by the Eleventh Circuit Court of Appeal to decide whether law was clearly established for purposes of qualified immunity. In Hope, the Supreme Court rejected the Eleventh Circuit Court s requirement that the facts of the case at issue be materially similar to the facts of other cases in order for law to be clearly established. Hope, 536 U.S. at 739. Florida courts frequently cite to Eleventh Circuit precedent with approval in addressing qualified immunity. See e.g., City of Hialeah v. Fernandez, 661 So.2d 335, (Fla. 3d DCA 1995). The Plaintiffs appealed the trial court s order. [R at ]. In part, the Plaintiffs argued that the trial court used the wrong standard in determining clearly established law 2 The trial court also found that the Plaintiffs had failed to meet their burden of showing that any of the Officers action were committed in bad faith or with malicious disregard of human rights, safety and property, and thus that the Officers were statutorily immune from suit for the state tort claims alleged by the Plaintiffs. [App. at 22]. 4

10 based on the Supreme Court s decision in Hope v. Pelzer. [IB at 16-18]. The Second District Court agreed [App. at 7-8], but further determined, based upon the facts as developed by the record, [App. at 2], that: (a) Mr. Magyar was never taken into custody because he was not suspected of committing a crime [App. at 9-10]; (b) the Officers had violated Mr. Magyar s Fourth Amendment right to be free from illegal seizure and excessive force [App. at 9-11]; (c) Mr. Magyar s constitutional right to be free from excessive force was sufficiently clearly established for the officers to have had fair warning that their conduct was unlawful [App. at 11-14]; and (d) thus, the trial court erred in finding that the Officers were entitled to qualified immunity [App. at 14]. 3 Consequently, the Second District Court stripped each of the Officers of their immunity from suit. [Id.] Subsequently, the Second District Court denied the Officers motion for rehearing or clarification by order rendered August 26, [App. at 19]. SUMMARY OF THE ARGUMENT 3 The Second District Court also determined that genuine issues of material fact exist as to whether each of the Officers acted with wanton and willful disregard of Magyar s rights and safety [App. at 15-18] and thus concluded that the trial court erred in granting the Officers motion for summary judgment as to the Plaintiffs state law battery claims. [App. at 18]. 5

11 Issue One: THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION BECAUSE THE SECOND DISTRICT COURT S DECISION EXPRESSLY CONSTRUED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION TO HOLD THAT THE USE OF FORCE IS EXCESSIVE WHERE THE DETAINEE IS NOT SUSPECTED OF COMMITTING A CRIME EVEN THOUGH AN OFFICER IS STATUTORILY REQUIRED TO DETAIN THE INDIVIDUAL AND THE DETAINEE RESISTS. Issue Two: THIS COURT SHOULD INVOKE ITS DISCRETIONARY JURISDICTION BECAUSE THE DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH DECISIONS OF THIS COURT AND OF OTHER DISTRICT COURTS OF APPEAL AS TO APPELLATE PROCEDURE AND SEPARATE REVIEW OF EACH OFFICER S ACTIONS TO DETERMINE ENTITLEMENT TO QUALIFIED IMMUNITY. ARGUMENT ISSUE ONE The trial court expressly found that a reasonable officer in the Officers positions could find that he had a duty to take Mr. Magyar into custody and so the detainment was justified under Florida Statutes, section (2)(a)(2), also known as the Baker Act. [R. at ]. In its decision, the Second District Court failed to directly address this finding. Rather, the Second District Court indirectly reversed the finding as follows: [T]aking the evidence in the light most favorable to 6

12 Thompson, Magyar did not pose an immediate threat to either the officers or others. Clearly, when Magyar walked quickly away from the officers, he posed absolutely no threat to them. Further, there is no evidence that Magyar posed any immediate threat to others. While the individual officers asserted that Magyar might have been heading back onto the interstate where he might have caused an accident which might have injured others, this chain of speculation does not establish that Magyar posed an immediate threat to either others or himself. Further, the individual officers assertion that Magyar s health might have resulted in him falling into a diabetic coma on the side of the road cannot change the fact that their use of force was unreasonable. As noted in Graham, the officers good intentions cannot make the use of unreasonable force constitutional. [App. at 10](emphasis original). Florida Statutes section (1)and(2)(a)(2), however, states, in pertinent part: (1) A person may be taken to a receiving facility for involuntary examination if there is reason to believe that he/she is mentally ill and because of her mental illness: (a)(2) The person is unable to determine for himself or herself whether examination in necessary; and (b) There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future as evidenced by recent behavior.... (2)(a)(2) A law enforcement officer shall take a person into custody who appears to meet the criteria for involuntary examination into custody... (emphasis added). The Second District Court misapplied the statutory criteria used by law enforcement officers to determine when they must take an individual into custody for involuntary examination under the Baker Act. Although the Second District Court disapproved of considering the danger that might have 7

13 occurred, subsection (2)(a)(2) imposes a duty upon law enforcement to take an individual into custody whenever he appears to meet the criteria. A reasonable officer, in enforcing subsection (2)(a)(2) of the Baker Act must assess potential dangers that might occur if the individual was not taken into custody. Moreover, the Second District Court s decision leaves law enforcement officers in doubt as to whether they may constitutionally use any force in detaining individuals who appear to meet the criteria under the Baker Act. Florida Statutes section (1)&(2)(a)(2), require law enforcement officers to take individuals into custody when those individuals appear to meet the statutory criteria. However, the Second District Court s decision renders officers vulnerable to personal prosecution and liability for any injury such a detainee may incur if he resists the officer. This Court should invoke its discretionary jurisdiction to review this decision because law enforcement officers need clarification as to whether they may constitutionally use force to restrain a resisting detainee whom they are statutorily required to take into custody, but who is not suspected of committing a crime. ARGUMENT ISSUE TWO 8

14 The trial court granted the Officers motion for summary judgment because the Plaintiffs had failed to meet their burden of proving that the Officers actions violated clearly established law in that the facts of the Plaintiffs authorities materially differed from the facts as to the Officers actions in this case. [R. at ]. Shortly after the trial court rendered its order, the Supreme Court specifically disapproved of the Eleventh Circuit Court of Appeal s test for deciding whether a right is clearly established, in Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). On appeal, the Plaintiffs argued that the trial court s order should be reversed because the court did not apply the standard set forth in Hope. While the Second District Court of Appeal agreed, it stated the following: In granting the individual officers summary judgment on the qualified immunity issue, the trial court found that the cases cited by Thompson in opposition to the motion had facts materially different from the facts herein. Therefore, the trial court found that Thompson had failed to prove that the law was clearly established. However, as the Supreme Court recently held, whether cases exist with materially similar facts is not the dispositive legal inquiry. In Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), the Supreme Court specifically rejected any requirement that the facts of previous cases be materially similar to those of the case before the Court.... To be fair, the Hope decision was released one month after the trial court granted the individual officers summary judgment in this case.... Usually when the trial court applies the 9

15 incorrect legal standard, we reverse and remand for a new hearing at which the trial court must reconsider its decision in light of the proper legal standard. However, because it is clear from the record that the individual officers are not entitled to qualified immunity as a matter of law at this stage of the proceedings, we simply reverse on this issue. [App. at 7-8]. An appellate court must apply the law that exists at the time of the appeal. St. John v. Coisman, 799 So.2d 1110, 1116 (Fla. 5th DCA 2001). However, the Second District Court s decision to deprive the trial court of the opportunity to apply the new standard directly conflicts with this Court s decision in Evans v. St. Regis Paper Company, 287 So.2d 296, 297 (Fla.1974) and the Fifth District Court s decision in Coisman, 799 So.2d at In both cases, the courts acknowledged applicable law had changed while the case was pending on appeal. These are referred to as pipeline cases. Id. Rather than applying the new law, this Court and the Fifth Circuit Court remanded the cases to afford the lower courts the first opportunity to apply the new law. Evans, 287 So.2d at 297; Coisman, 799 So.2d at Deciding the issue of qualified immunity using the new standard rather than remanding with directions to apply the new standard deprived the individual Officers of the opportunity to assert their entitlement to immunity under the new standard. 10

16 The Second District Court found the Officers, as a group, violated Mr. Magyar s clearly established constitutional rights, but did not make individual findings as to each Officer s liability. [App. at 1-18]. These seven Officers, some of whom had limited involvement in the incident, must now each go to trial. [App. at 18]. Had the Second District Court remanded the matter to the trial court to apply the new law, any Officer denied qualified immunity would have the opportunity for interlocutory appellate review of the standard as applied to his specific actions. Bolanos v. Bain, 696 So.2d 478, (Fla. 3d DCA 1997)(separately analyzing each officer s entitlement to qualified immunity based on his individual actions); Tucker v. Resha, 648 So.2d 1187, (Fla.1994)(concluding that orders denying summary judgment based upon claims of qualified immunity must be subject to interlocutory review to the extent that the order turns on an issue of law). The Second District Court s decision directly and expressly conflicts with the method of reviewing interlocutory decisions as to qualified immunity used in Bolanos v. Bain and Tucker v. Resha. This Court should resolve the conflict that exists between the Second District Court of Appeal s appellate procedure as to pipeline cases and the prior decisions of this Court and the v

17 Fifth Circuit Court of Appeal in Evans, 287 So.2d at 297; Coisman, 799 So.2d at 1116 and resolve conflict as to the Second District s methodology in reviewing summary judgment orders as to qualified immunity from that used by this Court and the Third District Court. CONCLUSION For all of the foregoing reasons, this Court should invoke its discretionary jurisdiction. Respectfully Submitted, DONALD A. SMITH, JR., ESQUIRE Fla. Bar No.: GWENDOLYN H. HINKLE, ESQUIRE Fla. Bar No SMITH & TOZIAN, P.A. 109 N. Brush Street, Suite 150 Tampa, Florida (813) Attorney for Defendants Douds, Drees, Mazza, Trigo, Womack, Petry and Gomez CERTIFICATE OF COMPLIANCE The undersigned counsel does hereby certify that this Jurisdictional Brief uses Courier New 12-point font and complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Civil Procedure. DONALD A. SMITH, JR., ESQUIRE vi

18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Notice to Invoke Discretionary Jurisdiction has been furnished by U. S. Mail this day of October, 2003, to: Daniel Mitchell, Esquire, Attorney for Appellants, Gray, Harris, Robinson, Shackleford, Farrior, 201 N. Franklin Street, Suite 2200, Tampa, Florida 33602; and Peter M. Walsh, Esquire, Assistant City Attorney, 696 First Avenue North, Suite 304, St. Petersburg, Florida DONALD A. SMITH, JR., ESQUIRE vii