initial brief

No. 13-15752-DD

United States Court of Appeals

For the Eleventh Circuit

Robert Valderrama ,

Plaintiff/Appellee,

—v.—

Officer Carl Rousseau,

Braulio Gonzalez, and

Yasmina Smith , f.k.a. Yasmina Elayacoubi,

Defendants/Appellants.

On Appeal from the United States

District Court for the Southern District of Florida

Initial Brief for the Appellants

R. A. Cuevas, Jr. Miami-Dade County Attorney Stephen P. Clark Center 111 N.W. 1st Street, Suite 2810 Miami, Florida 33128 (305) 375-5151

Michael B. Valdes Assistant County Attorney Counsel for Appellants

Case: 13-15752 Date Filed: 03/17/2014 Page: 1 of 57

C1 of 1

Certificate of Interested Parties

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh

Circuit Rule 26.1-1, Appellants certify that the following persons and

entities may have an interest in the outcome of this case:

1. Cooke, Honorable Marcia G. — U.S. District Judge

2. Cuevas, Jr., R.A. — Miami-Dade County Attorney

3. Garcia Petit, Michael Miro — Attorney for Appellee/Plaintiff

4. Gonzalez, Braulio — Appellant/Defendant

5. Gressman, Eric — Assistant County Attorney

6. Pastor, Bernard — Assistant County Attorney

7. Smith, Yasmina (f.k.a. Yasmina Elayacoubi) — Appellant/Defendant

8. Valderrama, Robert — Appellee/Plaintiff

9. Valdes, Michael B. — Assistant County Attorney

_/s/ Michael B. Valdes______ Michael B. Valdes Assistant County Attorney


i

Statement Regarding Oral Argument

Appellants—Detective Carl Rousseau,1 Sergeant Braulio Gonzalez,

and Sergeant Yasmina Smith—respectfully request oral argument.

This case concerns the denial of each officer’s motion for summary

judgment on claims relating to an officer-involved shooting. Those

motions for summary judgment and their related responses and replies

produced thousands of pages of exhibits. Det. Rousseau, Sgt. Gonzalez,

and Sgt. Smith contend that the district court made the same underlying

error as to each issue raised on appeal: it improperly credited a version

of events offered by Mr. Valderrama that was not properly supported by

the record. Thus, this appeal will be decided through an extensive review

of that voluminous record. Appellants believe that process would be

significantly aided by oral argument.

In addition, Det. Rousseau, Sgt. Gonzalez, and Sgt. Smith raised

qualified immunity from suit as the basis for their motions for summary

judgment and this subsequent appeal. Oral argument will also allow the

parties to address any questions the Court may have regarding the scope

of the immunity.

1 Although listed as “Officer Carl Rousseau” in the style of the case,

his official title is Detective.


ii

Table of Contents

Page

Certificate of Interested Parties ............................................................ C1

Statement Regarding Oral Argument ................................................. i

Table of Contents ..................................................................................... ii

Table of Citations ..................................................................................... iv

Statement of Jurisdiction ....................................................................... viii

Statement of the Issues ........................................................................... 1

Statement of the Case ............................................................................. 2

Standard of Review .................................................................................. 8

Summary of the Argument .................................................................... 9

Argument .................................................................................................... 13

I. The Officers are Entitled to Qualified Immunity on

Mr. Valderrama’s False Arrest Claim Because There was Probable Cause (or Arguable Probable Cause) to Arrest Him ....................................................................................... 15

A. Sgt Smith Had Probable Cause to Arrest Mr.

Valderrama Based on Her Own Observations ...................... 16

1. Mr. Valderrama Admitted that He Broke the Law in Sgt. Smith’s Presence .............................................. 18

2. Sgt. Smith Testified that She Saw Mr.

Valderrama Break the Law ................................................. 19

3. Mr. Valderrama’s Unwarranted Inferences Cannot Undo Those Facts ................................................. 20


iii

B. Even if Sgt. Smith Lacked Probable Cause, Gonzalez is Still Entitled to Qualified Immunity to Arrest Based on Information Supplied by Fellow Officer(s) ........................................................................ 24

II. The Officers are Entitled to Qualified Immunity on Mr. Valderrama’s § 1983 Deliberate Indifference Claim Because Any Unreasonable Delay in Medical Assistance Was Not Attributable to the Officers ...................................................... 29

A. The Record Does Not Support a Conclusion that the Officers were Deliberately Indifferent ............................. 30 1. Any Delay Before Calling for Medical

Assistance Was Reasonable Under the Circumstances ...................................................................... 30

2. Any Delay After the Call for Medical

Assistance is Not Attributable to Sgt. Smith .................... 34

3. Even if Sgt. Smith’s Response was Deliberately Indifferent, it Should Not be Imputed to Sgt. Gonzalez ................................................... 37

B. Even if the Record Supports a Claim for

Deliberate Indifference, that Violation Was Not Clearly Established at the Time of this Incident ................... 38

III. The Officers are Entitled to Summary Jugdment

on the State-Law Claims for False Arrest, Malicious Prosecution, Concert of Action, and Civil Conspiracy ......................................................................... 43

Conclusion ................................................................................................. 44

Certificate of Compliance ...................................................................... 46

Certificate of Service ................................................................................ 46


iv

Table of Citations

Cases Pages

Alexander v. Univ. of N. Fla., 39 F.3d 290 (11th Cir. 1994) ..................................................................... 13 Ashcroft v. al-Kidd, 563 U.S. ----, 131 S. Ct. 2074 (2011) ........................................................ 40 * Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ..................................................... 35 Barbosa v. Conlon, 2013 WL 2666521 (D. Mass. June 10, 2013) .......................................... 18 Bolanos v. Metropolitan Dade County, 677 So. 2d 1005 (Fla. 3d DCA 1996) ...................................................... 43 * Brousseau v. Haugen, 543 U.S. 194, 125 S. Ct. 596 (2004) ....................................................... 40 Brown v. City of Huntsville, Ala., 608 F.3d 724 (11th Cir. 2010) .................................................................. 15 Chathas v. Smith, 884 F.2d 980 (7th Cir. 1989) ..................................................................... 24 Craig v. Singletary, 127 F.3d 1030 (11th Cir. 1997) ................................................................ 17 Dalrymple v. Reno, 334 F.3d 991 (11th Cir. 2003) .................................................................. 13 Durruthy v. Pastor, 351 F.3d 1080 (11th Cir. 2003) ................................................................ 16 Gold v. City of Miami, 121 F.3d 1442 (11th Cir. 1997) ................................................................ 16


v

Table of Citations

Cases Pages Gray ex rel. Alexander v. Bostic, 485 F.3d 1295 (11th Cir. 2006) ................................................................ 11 Gray v. Ector, 541 F. App’x 920 (11th Cir. 2013) ........................................................... 44 * Harris v. Coweta County, 21 F.3d 388 (11th Cir. 1994) .................................................................. 33 * Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176 (11th Cir. 1994) ............................................................ 39-41 Holland v. State, 696 So. 2d 757 (Fla. 1997) .............................................................. vi-vii, 43 Hope v. Pelzer, 536 U.S. 730, 129 S. Ct. 2508 (2002) ....................................................... 13 Hudson v. Hall, 231 F.3d 1289 (11th Cir. 2000) ............................................................ vi, 43 Hunter v. Bryant, 502 U.S. 224, 229 (1991) ........................................................................... 16 Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999) ................................................................ 16 Lee v. Ferraro, 284 F.3d 1188, (11th Cir. 2002) ............................................................... 15 Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986) ....................................................... 14 McCullough v. Antolini, 559 F.3d 1201 (11th Cir. 2009) ................................................................ 13


vi

Table of Citations

Cases Pages McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999) ................................................................ 30 Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) ................................................................ 39 Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1985) ................................................... vi, 13 Ortega v. Christian, 85 F.3d 1521 (11th Cir. 1996) .................................................................. 15 Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002) .................................................................. 40 Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) ......................................................... 14 * Pourmoghani-Esfahani v. Gee, 625 F.3d 1313 (11th Cir. 2010) ........................................................ 41, 42 Ross v. David, 2011 WL 534044 (E.D. Cal. Feb. 11, 2011) ....................................... 35-36 * Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007) ................................................. vi, 14 Stanton v. Sims, --- U.S. ----, 134 S. Ct. 3 (2013) ................................................................ 40 Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) ................................................ 29, 38 Telfair v. First Union Mortg. Corp., 216 F.3d 1333 (11th Cir. 2000) ................................................................ 11


vii

Table of Citations

Cases Pages Terrell v. Smith, 668 F.3d 1244 (11th Cir. 2012) ................................................................ 38 United States v. Gonzalez, 969 F.2d 999 (11th Cir. 1992) .................................................................. 15 * Van T. Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656 (11th Cir. 1984) ................................................................ 21 Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598 (2008) ....................................................... 19 Von Stein v. Brescher, 904 F.2d 572 (11th Cir. 1990) .................................................................. 16 Voorhees v. State, 699 So. 2d 602 (Fla. 1997) ........................................................................ 24 * Wilkerson v. Seymour, 736 F.3d 974 (11th Cir. 2013) .......................................................... 27, 28 Williams v. Miami-Dade Police Dept., 297 F. App’x 941 (11th Cir. 2008) ..................................................... 24, 25

Other Authorities

28 U.S.C. § 1291 .......................................................................................... vi 42 U.S.C. § 1983 ..................................................................................... passim FLA. STAT. § 893.147(1) .............................................................................. 18 FLA. STAT. § 901.18 .................................................................................... 24


viii

Statement of Jurisdiction

This appeal deals with an order denying qualified immunity for Det.

Rousseau, Sgt. Gonzalez, and Sgt. Smith at summary judgment.

Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1291

because an interlocutory order denying qualified immunity is

immediately appealable. See Scott v. Harris, 550 U.S. 372, 376 n.2, 127 S.

Ct. 1769, 1774 n.2 (2007) (“[A]n order denying qualified immunity is

immediately appealable even though it is interlocutory”); Mitchell v.

Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985) (“[A] district

court’s denial of a claim of qualified immunity, to the extent that it turns

on an issue of law, is an appealable ‘final decision’ within the meaning of

28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”).

The Court also has jurisdiction over the related state law claims under

the pendent appellate jurisdiction doctrine. See Hudson v. Hall, 231 F.3d

1289, 1294 (11th Cir. 2000). In this case, the state law claims against Det.

Rousseau, Sgt. Gonzalez, and Sgt. Smith for false arrest, malicious

prosecution, concert of action, and civil conspiracy are “inextricably

intertwined” with the federal claims for false arrest because the state law

claims are all premised upon allegations that there was no probable cause

to arrest Mr. Valderrama. Thus, probable cause would serve as an

absolute defense to these state and federal claims, and the standard for

probable cause is identical under state and federal law. See Holland v.


ix

State, 696 So. 2d 757, 759 (Fla. 1997) (holding that Article 1 Section 12

of the Florida Constitution binds Florida courts to follow the U.S.

Supreme Court’s interpretation of the Fourth Amendment).


1

Statement of the Issues

1. Did the district court err by relying upon Mr. Valderrama’s

unsupported inferences to create an issue of fact regarding

probable cause to arrest him for possession of drug

paraphernalia?

2. Even if Sgt. Smith did not have probable cause (or arguable

probable cause) to arrest, can Mr. Valderrama sustain a false arrest

claim against Sgt. Gonzalez when Sgt. Gonzalez arrived on the

scene after the incident occurred and did nothing more than write

an arrest report based upon the statements given to him by other

officers on the scene?

3. Did the district court err by not granting qualified immunity on

Mr. Valderrama’s claims of deliberate indifference to his medical

needs given that Sgt. Smith was reasonably prompt in calling for

medical assistance?


2

Statement of the Case

In the early morning hours of January 24, 2006, Det. Rousseau, Sgt.

Smith, Sgt. Gonzalez and other members of the Miami-Dade Police

Department’s Robbery Intervention Detail were patrolling a high-crime,

high drug-trafficking area of Miami, FL to surveil a vehicle potentially

linked to series of robberies. D.E. 80-1 at 6. At the start of this shift,

Det. Rousseau was parked outside of an apartment complex when

Timothy Burney mistook Det. Rousseau’s unmarked Volvo for a friend’s

and approached it with packages of cocaine in hand. Id. at 12-17; D.E.

77-1 at 12. Det. Rousseau arrested Mr. Burney, placed him in the back

seat of his vehicle, and continued his shift. Id. at 13-14; D.E. 80-1 at 21-

22.

At or around this same time, Roberto Valderrama had been loitering

outside a nearby Marathon gas station for approximately eight hours.

D.E. 75-1 at 32. A friend, Ricardo Garcia, approached the gas station in

a green Nissan Altima, bought a can of beer, and asked Mr. Valderrama

to accompany him. Id. at 10-11. The two left the gas station in the

Nissan Altima to meet with Mr. Garcia’s girlfriend. Id. at 10. While en

route, Mr. Garcia poured his recently purchased beer into a Kentucky

Fried Chicken soda cup so that he could drink it while driving. Id. at 11.

There was also a crack pipe inside the vehicle. Id. at 7.


3

These two stories converged at the intersection of NW 12th Street

and NW 2nd Avenue when Det. Rousseau’s unmarked Volvo pulled

over Mr. Garcia’s green Nissan Altima.2 D.E. 80-1 at 33. Det. Rousseau

then approached the vehicle with his weapon drawn, called for backup,

and directed Sgt. Smith via radio to position her vehicle in front of Mr.

Garcia’s. D.E. 93-18 at 9. After Sgt. Smith arrived at the scene, Mr.

Garcia handed the crack pipe to Mr. Valderrama and instructed him to

throw it out of the passenger-side window. D.E. 75-1 at 15. Mr.

Valderrama complied. Id.

Once Det. Rousseau reached Mr. Garcia’s driver-side window, he

gave multiple verbal commands to both passengers not to move. D.E.

80-1 at 40; D.E. 94-1 at ¶ 19. Within seconds of giving those commands,

Det. Rousseau fired his weapon and shot Mr. Valderrama. D.E. 75-1 at

48.3

2 The parties dispute Det. Rousseau’s basis for pulling over Mr.

Garcia’s vehicle. Det. Rousseau claims that he observed a black male approach Mr. Garcia’s vehicle and hand a metallic object to Mr. Valderrama that appeared to be a firearm. D.E. 80-1 at 26. Mr. Valderrama denies ever seeing a Black male approach his side of the vehicle or hand him any object. D.E. 75-1 at 16. Nevertheless, this dispute is immaterial as to the false arrest claims because Mr. Valderrama later committed a crime in the presence of both Det. Rousseau and Sgt. Smith.

3 The parties also dispute whether Mr. Valderrama was moving his hands or complying with Det. Rousseau’s order at the time. That factual dispute, however, is not at issue here because Det. Rousseau is not contesting the denial of summary judgment on the excessive force and state law battery claims.


4

Meanwhile, Sgt. Smith was moving towards the passenger-side of Mr.

Garcia’s vehicle. Id. at 40. Although she heard a loud noise, she was not

immediately aware that Det. Rousseau had discharged his firearm

because she suspected that the noise might have been a bystander

shooting at the officers or Det. Rousseau deploying his taser. D.E. 76-3

at 55. Sgt. Smith also had no initial indication from Mr. Valderrama that

he had been shot: he did not scream in pain, say anything to indicate that

he was injured, or request medical attention. D.E. 91 at ¶ 38. In fact, Mr.

Valderrama did not even realize at first that he had been shot. D.E. 75-1

at 4, 39.

When Sgt. Smith got to the passenger–side of the vehicle, she tried

but could not open the door. D.E. 76-3 at 64. She then asked Mr.

Valderrama to open the door, and he initially refused. D.E. 75-1 at 19.

Once the door was eventually opened, Sgt. Smith pulled Mr. Valderrama

out of the car and attempted to put handcuffs on him. Id.; D.E. 76-3 at

64. As Sgt. Smith was pulling Mr. Valderrama’s arm to restrain him, Mr.

Valderrama told Sgt. Smith to look at his pants because there was blood

in his groin area. D.E. 75-1 at 19. Sgt. Smith saw the blood. Id. She then

called dispatch to request medical assistance. D.E. 76-3 at 66. Only three

minutes and thirty-six seconds elapsed between the gunshot and Sgt.

Smith’s call for medical assistance. D.E. 93-18 at 9; D.E. 93-19 at 2.

During her call, Sgt. Smith originally informed dispatch that Mr.

Valderrama was in need of medical attention for lacerations. Id. Dispatch


5

then asked Sgt. Smith if only a routine rescue was required. Id. At that

point, Sgt. Smith clarified that rescue’s response was needed “on the

three,” which is the code for “as fast as you can.” Id.; D.E. 76-1 at 86-87.

Dispatch routed Sgt. Smith’s request to the City of Miami’s Fire Rescue.

D.E. 93-20 at 2.4

As everyone awaited Fire Rescue’s arrival, Mr. Valderrama was seated

on the sidewalk and asked for water and a cigarette. D.E. 75-1 at 6. He

was not provided water, but Sgt. Smith gave him a cigarette. Id. After

approximately ten minutes had passed since her first call for medical

assistance, Sgt. Smith made a second call to dispatch to request an

estimated time of arrival for Fire Rescue and emphasized that Mr.

Valderrama was bleeding. D.E. 93-19 at 2. City of Miami Fire Rescue

arrived on the scene within one minute of Sgt. Smith’s follow-up call. Id.;

D.E. 78-3 at 14. Paramedics evaluated Mr. Valderrama at the scene. D.E.

93-15. He was found to be alert and exhibiting normal vital signs (pulse,

respiration, blood pressure, skin temperature, lung sounds). Id. at 3. City

of Miami Fire Rescue then transported Mr. Valderrama to the Ryder

Trauma Center at Jackson Memorial Hospital. Id. at 4-5. D.E. 78-3 at 15.

Sgt. Smith followed Fire Rescue to the hospital. D.E. 76-3 at 73.

4 The dispatch failed to communicate to the City of Miami’s Fire

Rescue that Sgt. Smith had requested an emergency Code Three response time.


6

Back at the scene, Sgt. Gonzalez—who arrived after the gunshot—

was instructed by his superior officer, Sergeant Manuel Malgor, to write

the Offense-Incident Report and Arrest Affidavit for Mr. Valderrama

because Sgt. Smith was a witness to the shooting and would need to be

interviewed by the Miami-Dade Police Department’s Homicide Bureau.

D.E. 76-1 at 49. Sgt. Gonzalez then spoke to Sgt. Smith after she

returned to the scene to complete the report. Id. Sgt. Smith informed

him that she had seen Mr. Valderrama toss a crack pipe out of the

vehicle’s passenger-side window. Id. at 55-56. Accordingly, Sgt. Gonzalez

relied on Sgt. Smith’s statement to write out an Arrest Affidavit stating

that Mr. Valderrama was being arrested for possession of drug

paraphernalia and possession of cocaine. D.E. 93-12.

On January 25, 2010, Mr. Valderrama filed a complaint in Florida

state court asserting only state-law claims against Det. Rousseau, Sgt.

Smith, and Sgt. Gonzalez. D.E. 1-3 at 3-45, 48.5 When Mr. Valderrama

obtained leave of court to file a third Amended Complaint, which

included—for the first time—federal claims under 42 U.S.C. § 1983,

Det. Rousseau, Sgt. Smith, and Sgt. Gonzalez timely removed this case

to the United States District Court for the Southern District of Florida

on December 29, 2011. D.E. 1. After considering the officers’ joint

Motion to Dismiss, the district court dismissed four claims, which

5 The original state court Complaint also included claims against

Officer Anthony Prieto. Those claims have been dropped.


7

winnowed Mr. Valderrama’s Amended Complaint to seventeen separate

counts relating to the events of January 24, 2006:

Count Claim Officer

1 Battery Rousseau

2, 4, 7 State-Law False Arrest All Officers

3, 5, 8 State-Law Malicious Prosecution All Officers

9 State-Law Concert of Action All Officers

10 State-Law Civil Conspiracy All Officers

11, 14, 16 § 1983 False Arrest All Officers

12 § 1983 Excessive Force Rousseau

13, 15, 17 § 1983 Deliberate Indifference All Officers

D.E. 38.

On August 8, 2013, Det. Rousseau, Sgt. Smith, and Sgt. Gonzalez

filed separate Motions for Summary Judgment asserting their entitlement

to qualified immunity on all federal claims and official immunity on all

state law claims. D.E. 72-74. The district court granted summary

judgment as to the state-law false arrest claim against Sgt. Gonzalez and

as to the state-law malicious prosecution claim against all officers; it

denied summary judgment as to all other claims. D.E. 135. This

interlocutory appeal followed. D.E. 137.


8

Standard of Review

This Court “review[s] de novo a district court’s denial of summary

judgment based on qualified immunity, viewing the evidence in a light

most favorable to the opposing party.” Gray ex rel. Alexander v. Bostic, 485

F.3d 1295, 1303 (11th Cir. 2006). In addition, a district court’s failure to

discredit an affidavit as a “sham” is reviewed for an abuse of discretion.

See Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1342-43 (11th Cir.

2000).


9

Summary of the Argument

By design, summary judgment places a considerable burden for

moving parties to obtain judgment without having to go to trial. They

must show that they would prevail even when the record and all

reasonable inferences are taken in the light most favorable to the non-

moving party. That standard, however, becomes insurmountable for all

practical purposes if non-moving parties are permitted to rely on

mischaracterizations of the record and unsupported inferences to defeat

an otherwise properly supported motion for summary judgment.

In this case, the district court erroneously denied summary judgment

for Det. Rousseau, Sgt. Gonzalez, and Sgt. Smith on Mr. Valderrama’s

federal false arrest claims, federal deliberate indifference claims, and their

related state law claims. It did this by adopting Mr. Valderrama’s version

of events even when many of his purported facts were not supported by

the citations he provided or were purely speculative. In addition, the

district court compounded that error by misapplying relevant case law

relating to qualified immunity.

On the false arrest claim, there is no dispute in the record that Mr.

Valderrama—by his own admission—committed a criminal offense

under Florida law when he took possession of a crack pipe from Mr.

Garcia and threw it out of the passenger-side window after he was

stopped by Det. Rousseau. In his deposition, Mr. Valderrama further


10

admitted that he threw out the crack pipe after both Det. Rousseau and

Sgt. Smith had arrived on the scene. Sgt. Smith also provided sworn

testimony that she saw Mr. Valderrama throw out the crack pipe. Those

undisputed facts should suffice to establish probable cause. But Mr.

Valderrama changed his story in response to the motions for summary

judgment. Now, he was asserting—despite his prior admission and

without explanation—that Sgt. Smith was no longer on the scene when

he threw out the crack pipe, and thus, she could not have known that he

committed a crime. And the district court erroneously credited this new

version of events even though it had no proper support in the record.

But, even if Mr. Valderrama’s revised, personal observations can

create a genuine material dispute as to what Sgt. Smith saw, the district

court still erred by not properly analyzing the separate argument

advanced by Sgt. Gonzalez—who arrived after the incident took place

and simply wrote an arrest report based on statements from other

officers at the scene. Principally, the court erroneously held that Sgt.

Gonzalez was not entitled to the protection of the “fellow officer rule”

because there was some material conflict between the statements that

Sgt. Gonzalez received from Sgt. Smith and Det. Rousseau, through a

proffer, that somehow nullified probable cause. That ruling, however,

misapplied this Court’s most recent published decision regarding the

fellow officer rule which held that an officer in Sgt. Gonzalez’s position

is not required to doubt his fellow officer and instead can fill in any gaps


11

in the account with reasonable inferences premised on the fellow officer

acting in a constitutional manner and in good faith.

On the deliberate indifference claim, the district court’s error was

three-fold. First, it determined that the officers were deliberately

indifferent to Mr. Valderrama’s medical needs when the record showed

that medical assistance was called no more than three-minutes-and-

thirty-six-seconds after the gun shot was fired and there were a number

of undisputed events (including Mr. Valderrama’s own actions) that

delayed the officers from being able to attain subjective awareness that

Mr. Valderrama had a serious medical need. Second, the district court

improperly attributed an additional delay to the officers even though the

record shows that it was dispatch that was responsible. This was

especially problematic because qualified immunity is intended to ensure

that government officials are only held liable for their own actions.

Third, the district court misapplied the relevant case law when

determining whether the law surrounding these circumstances was

clearly established. In fact, the case it primarily relied upon was

significantly distinguishable, only espoused a very general principle

(which is ordinarily insufficient for purposes of qualified immunity), and

offered no guidance as to how its analysis should be applied in the

context of a situation sufficiently similar to this case. Moreover, the

district court also attempted to distinguish a case that was considerably


12

more applicable and had recently held that the law under more similar

circumstances was not clearly established.

If this Court reverses the denial of summary judgment on Mr.

Valderrama’s federal false arrest claims, Det. Rousseau, Sgt. Gonzalez,

and Sgt. Smith also ask that this Court exercise its pendent appellate

jurisdiction and reverse the denial of summary judgment on Mr.

Valderrama’s state-law claims for false arrest, malicious prosecution,

concert of action, and civil conspiracy. All of these claims are premised

upon allegations that Det. Rousseau, Sgt. Gonzalez, and Sgt. Smith did

not have probable cause to arrest Mr. Valderrama, and that premise no

longer holds if there is a ruling that summary judgment is appropriate on

the federal false arrest claim.


13

Argument

“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.’” Dalrymple v.

Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S.

730, 739, 129 S. Ct. 2508, 2515 (2002)). The purpose of giving

government officials that immunity is to protect them from the chilling

effect that a fear of personal liability would create in carrying out their

discretionary duties. See McCullough v. Antolini, 559 F.3d 1201, 1205 (11th

Cir. 2009). Importantly, it is “an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effectively lost if a

case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S.

511, 526, 105 S. Ct. 2806 (1985). For that reason, this court has

explained that “qualified immunity for government officials is the rule,

liability and trials for liability the exception.” Alexander v. Univ. of N. Fla.,

39 F.3d 290, 291 (11th Cir. 1994).

In this case, Det. Rousseau, Sgt. Gonzalez, and Sgt. Smith asserted

their entitlement to qualified immunity and moved for summary

judgment on all claims, including the federal false arrest and deliberate

indifference claims.6 To decide the qualified immunity issue, the district

6 As noted before, Det. Rousseau also moved for summary judgment

on Mr. Valderrama’s federal excessive force claim, but the district


14

court was required to resolve two threshold questions: First, do the facts

show that the officers violated a constitutional right? Second, was that

right clearly established at the time of this incident? See Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). Because qualified immunity

was being decided at the summary judgment stage, the district court was

also required to “view the facts and draw reasonable inferences in the

light most favorable to [Mr. Valderrama].” Scott, 550 U.S. at 378 (internal

quotation omitted). But that does not empower (or authorize) the

district court to adopt wholesale Mr. Valderrama’s interpretations of the

record evidence. See id. at 380 (“When opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of

the facts for purposes of ruling on a motion for summary judgment.”).

Under this standard, Det. Rousseau, Sgt. Gonzalez, and Sgt. Smith

carried their burden at summary judgment and demonstrated that the

record undisputedly supported their entitlement to qualified immunity

on Mr. Valderrama’s false arrest and deliberate indifference claims. Mr.

Valderrama then presented a version of events that offered nothing

more than “some metaphysical doubt as to the material facts” relating to

those claims, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87, 106 S. Ct. 1348 (1986). Nevertheless, the district court

court’s disposition of that claim is not being challenged on this interlocutory appeal.


15

erroneously credited Mr. Valderrama’s version of events and denied

summary judgment. That decision was an error of law and merits

reversal by this Court.

I. The Officers are Entitled to Qualified Immunity on Mr.

Valderrama’s § 1983 False Arrest Claim Because There

was Probable Cause (or Arguable Probable Cause) to

Arrest Him

The existence of probable cause is an absolute bar to any claim for

false arrest. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th

Cir. 2010); Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996).

“Probable cause to arrest exists when law enforcement officials have

facts and circumstances within their knowledge sufficient to warrant a

reasonable belief that the suspect had committed or was committing a

crime.” United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992).

Thus, there is no constitutional violation—and the officer is thereby

entitled to qualified immunity—if an objectively reasonable basis existed

to arrest the plaintiff for any criminal offense, no matter how minor. See

Lee v. Ferraro, 284 F.3d 1188, 1194-95 (11th Cir. 2002) (“[I]f an officer

has probable cause to believe that an individual has committed even a

very minor criminal offense in his presence, he may, without violating

the Fourth Amendment, arrest the offender.”).

Furthermore, qualified immunity also applies “if there was arguable

probable cause, i.e., if a reasonable police officer . . . could have believed


16

there was probable cause for the warrantless arrest.” Jones v. Cannon, 174

F.3d 1271, 1283 (11th Cir. 1999). “The qualified immunity standard

gives ample room for mistaken judgments.” Hunter v. Bryant, 502 U.S.

224, 229 (1991) (quotations omitted). “Indeed, it is inevitable that law

enforcement officials will in some cases reasonably but mistakenly

conclude that probable cause is present, and in such cases those officials

should not be held personally liable.” Von Stein v. Brescher, 904 F.2d 572,

579 (11th Cir. 1990) (quotations and alternations omitted). “This

accommodation for reasonable error exists because officials should not

err always on the side of caution because they fear being sued.” Gold v.

City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997) (quotations omitted).

No claim for false arrest can overcome qualified immunity if a

reasonable officer could have believed that there was probable cause to

arrest for any offense. See Durruthy v. Pastor, 351 F.3d 1080, 1090 n.2

(11th Cir. 2003); Von Stein, 904 F.2d at 579.

Simply put, the district court erred in denying summary judgment on

the false arrest claims against Det. Rousseau, Sgt. Gonzalez, and Sgt.

Smith because the record evidence in this case meets either standard.

A. The Officers Had Probable Cause to Arrest Mr.

Valderrama Based on Sgt. Smith’s Observations

The record shows that Mr. Valderrama admitted that he was handed

a crack pipe by Mr. Garcia and proceeded to toss it out of the passenger-


17

side window after being pulled over by Det. Rousseau. See D.E. 75-1 at

15. Sgt. Smith also provided testimony that she saw Mr. Valderrama do

this. See D.E. 76-3 at 44-45. These facts should have established

probable cause for Sgt. Smith to arrest Mr. Valderrama and entitled her

to qualified immunity. And, if Sgt. Smith had probable cause to make an

arrest, then Det. Rousseau and Sgt. Gonzalez should have also been

entitled to qualified immunity because any action that they took would

be in furtherance of a lawful arrest. See, e.g., Craig v. Singletary, 127 F.3d

1030, 1042 (11th Cir. 1997) (stating that an officer can attain probable

cause to arrest based upon the collective knowledge of other officers in

the field).

But the district court denied summary judgment because it found

that—under Mr. Valderrama’s version of events—Sgt. Smith did not

actually witness his possession of drug paraphernalia. See D.E. 135 at 12-

15. This factual dispute, however, was not created by inconsistencies in

Sgt. Smith’s testimony; instead, it came primarily from Mr. Valderrama’s

own subjective assessment of what Sgt. Smith could have seen. See D.E.

91 at ¶ 25 (citing his own deposition testimony and affidavit). This was

error because when these unsupported assertions are properly

disregarded what remains in the record is support for probable cause.


18

1. Mr. Valderrama Admitted that He Committed

a Crime in Sgt. Smith’s Presence

Under Florida law, it is unlawful for a person to possess drug

paraphernalia. See FLA. STAT. § 893.147(1). Here, there is no dispute in

the record that Mr. Valderrama committed this criminal offense after

being stopped by Det. Rousseau on January 24, 2006. In his deposition,

Mr. Valderrama admitted that Mr. Garcia handed him a glass pipe used

to smoke crack cocaine and Mr. Valderrama proceeded to throw it out

of the vehicle’s passenger-side window. See D.E. 75-1 at 15 (“And then

[Mr. Garcia] said to me, Throw this [crack pipe] away . . . So then I

grabbed it like this. I threw the pipe out . . .”). See also D.E. 91 at ¶ 23

(“As to ¶23, admitted [Mr. Valderrama] threw a crack pipe out the

window.”). In that same deposition, Mr. Valderrama also admitted that

he did this as “[Sgt. Smith was] stopped in front of us in the car, also

getting out of the car.” D.E. 75-1 at 15. Therefore, Mr. Valderrama’s

own sworn testimony indicates that he attempted to discard drug

paraphernalia after being stopped by Det. Rousseau and after Sgt. Smith

had arrived on scene. That admission, ordinarily, should suffice to defeat

any claim of false arrest. See, e.g., Barbosa v. Conlon, ___ F. Supp. 2d ___,

2013 WL 2666521, *14 (D. Mass. June 10, 2013) (“[Plaintiffs] have

admitted to sufficient facts to establish that they committed crimes in

connection with the incident at their home. Therefore, they cannot now

claim that the police did not have probable cause to arrest them.”).


19

2. Sgt. Smith Testified that She Saw Mr.

Valderrama Commit a Crime

But Sgt. Smith did not rely exclusively on Mr. Valderrama’s own

admissions at summary judgment because her entitlement to qualified

immunity was further supported by her deposition testimony. There, Sgt.

Smith stated that she had a “direct line of vision” to Mr. Garcia’s vehicle

when she arrived on scene. D.E. 76-3 at 36. And, from this vantage

point, she also saw Mr. Valderrama toss the crack pipe out of the

passenger window. Id. at 44-45.

Thus, the record shows that Sgt. Smith had facts within her

knowledge sufficient to warrant a reasonable belief that Mr. Valderrama

had committed a crime. Indeed, it is axiomatic that an arrest is

reasonable “when an officer has probable cause to believe a person

committed even a minor crime in [the officer’s] presence.” Virginia v.

Moore, 553 U.S. 164, 171, 128 S. Ct. 1598, 1604 (2008) (citing a long line

of Supreme Court decisions upholding same principle) (emphasis

added). Here, Mr. Valderrama committed a crime in Sgt. Smith’s

presence. That undisputed fact—standing alone—establishes that

probable cause (or the less exacting standard of arguable probable cause)

was met in this case, and therefore, the district court erred by denying

qualified immunity to all of the officers on Mr. Valderrama’s false arrest

claims.


20

3. Mr. Valderrama’s Unwarranted Inferences

Cannot Undo Those Facts

Undeterred by his prior sworn admissions, Mr. Valderrama argued

below that there still remained a dispute as to probable cause because,

under his version of events, “[Sgt.] Smith was not in a position to

observe [Mr. Valderrama] throw out the pipe . . . .” D.E. 91 at ¶ 25. To

support that conclusion, Mr. Valderrama cited to three exhibits to rebut

his own admissions: (1) his affidavit, (2) the testimony of Mr. Burney,

and (3) the transcript of TASK 3 recordings.7 See D.E. 92 at 10. As

explained below, those three exhibits, however, cannot create a genuine

issue of material fact as to whether Sgt. Smith had probable cause to

arrest Mr. Valderrama for possession of drug paraphernalia.

Nonetheless, the district court erroneously credited Mr. Valderrama’s

conclusory version of events. See D.E. 135 at 13 (“Although admitting to

throwing a pipe out of the window, this act was done prior to either Det.

Rousseau or Sgt. Smith exiting their vehicles to witness such action.”).8

That ruling, however, is not based on a reasonable reading of the record.

7 TASK 3 refers to the radio channel that the members of the Miami-

Dade Robbery Intervention Detail were using to communicate with one another during the events in this case.

8 The district court did not indicate which, if any, of Mr. Valderrama’s exhibits was used to support its finding. As a result, the officers will treat the district court’s order as if all exhibits were credited and address each one in turn.


21

First, Mr. Valderrama contended that his affidavit creates an issue of

fact because it states that he threw out the crack pipe “as [Det.]

Rousseau got out of the car, which was before [Sgt.] Smith repositioned

her car,” Id. But that is not an accurate description of what is said in his

affidavit. Mr. Valderrama’s affidavit simply states, “Mr. Garcia said a

pipe was in the car. I threw it out the window, away from the car.” D.E.

94-1 at ¶ 14. That clause has no mention of Det. Rousseau, Sgt. Smith,

or their relative positions at the pivotal moment. Although the affidavit

indicates Det. Rousseau and Sgt. Smith’s arrival in later clauses, there is

no attempt to explain how these paragraphs function chronologically so

that a plausible inference could be drawn that Mr. Valderrama threw out

the crack pipe before Sgt. Smith repositioned her car. See id. at ¶ 14-17.

Furthermore, to whatever extent that Mr. Valderrama’s affidavit

invites that inference, the district court should not have credited his

affidavit for that proposition because it directly contradicts—without

explanation—his prior deposition testimony where he unambiguously

stated that Sgt. Smith was on the scene when he threw out the crack

pipe. See D.E. 75-1 at 15 (“Q: Where was the female office [when you

threw the pipe out of the window]? A. Stopped in front of us in the

car, also getting out of the car.”). If anything, this is the type of sham

affidavit that this Court has held cannot defeat summary judgment. See,

e.g., Van T. Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656,

657-58 (11th Cir. 1984) (“When a party has given clear answers to


22

unambiguous questions which negate the existence of any genuine issue

of material fact, that party cannot thereafter create such an issue with an

affidavit that merely contradicts, without explanation, previously given

clear testimony.”). Given the clarity of Mr. Valderrama’s deposition

answer, the unambiguous nature of the question, the lack of an

explanation provided for the changed testimony, and the fact that the

district court’s desire to overlook Mr. Valderrama’s own deposition

testimony caused the effective loss of qualified immunity, which is

supposed to be an immunity from suit, the district court abused its

discretion when it credited Mr. Valderrama’s affidavit to infer “that Sgt.

Smith did not and could not have witnesses[sic] the possession.” D.E.

135 at 15.

Second, Mr. Valderrama argues that Mr. Burney’s deposition

supports his false arrest claims because Mr. Burney testified that “he did

not see [Mr. Valderrama] throw anything out the window.” D.E. 92 at

10. But Mr. Burney’s lack of observation does not change reality. There

is no dispute that Mr. Valderrama threw a crack pipe out of the

passenger-side window. And, more importantly, probable cause is

assessed through the perspective of the officer. So, it is Sgt. Smith’s—

not Mr. Burney’s—observations that are relevant. Consequently, Mr.

Valderrama cannot rely on Mr. Burney’s testimony to create an issue of

material fact as to what Sgt. Smith observed given that Mr. Burney’s

testimony does not actually contradict Sgt. Smith’s contention that she


23

saw Mr. Valderrama throw out a crack pipe from the vehicle’s passenger-

side window.

Third, the TASK 3 recordings do not support Mr. Valderrama’s

position. Those recordings only show that Sgt. Smith told Ofr. Prieto,

“Hey Tony, I see, I mean, I see . . .” approximately two seconds before

the gunshot is heard. D.E. 93-18 at 9. But there are no statements by any

officer immediately preceding or following Sgt. Smith’s statement to

explain what she was telling Ofr. Prieto that she had seen. See id. at 8-9.

In fact, those same recordings show that Det. Rousseau previously asked

Sgt. Smith to pull in front of Mr. Garcia’s vehicle before the gunshot was

fired, which, if anything, suggests that she was on the scene and in close

enough proximity to witness Mr. Valderrama toss a crack pipe out of the

passenger-side window. See id. at 9. For that reason, the TASK 3

recordings do not dispute Sgt. Smith’s sworn testimony that she saw Mr.

Valderrama throw out the crack pipe or Mr. Valderrama’s own

admission that he threw out the crack pipe as Sgt. Smith was exiting her

vehicle.

Accordingly, these exhibits do not create a material issue of fact.

Under the officers’ version of events, Sgt. Smith was on scene before

Mr. Valderrama threw out the crack pipe. See D.E. 76-3 at 44-45. Under

Mr. Valderrama’s version of events, Sgt. Smith was on scene before Mr.

Valderrama threw out the crack pipe. See D.E. 75-1 at 15. As a result, the

officers are entitled to qualified immunity on Mr. Valderrama’s § 1983


24

false arrest claims, and the district court’s denial of summary judgment

should be reversed.

B. Even if Sgt. Smith Lacked Probable Cause, Sgt.

Gonzalez is Still Entitled to Qualified Immunity to

Arrest Based on Information Supplied by Fellow

Officer(s)

“A police officer need not personally witness the behavior giving rise

to the probable cause . . . and can rely on another officer’s direction.”

Chathas v. Smith, 884 F.2d 980, 987 (7th Cir. 1989). Indeed, under

Florida’s “fellow officer rule,” an officer is entitled to rely on the

representations—including the misrepresentations—of other officers in

making an arrest or otherwise performing his duties. See FLA. STAT. §

901.18 (“A person commanded to aid a peace officer shall have the same

authority to arrest as that peace officer and shall not be civilly liable for

any reasonable conduct in rendering assistance to that officer.”). Thus,

“when an arresting officer was absent for a significant portion of events

giving rise to probable cause, the arresting officer may rely upon his

fellow officer’s judgment about probable cause.” Williams v. Miami-Dade

Police Dept., 297 F. App’x 941, 946 (11th Cir. 2008). “The fellow officer

rule allows an arresting officer to assume probable cause to arrest a

suspect from information supplied by other officers.” Voorhees v. State,

699 So. 2d 602, 609 (Fla. 1997) (emphasis added).


25

In this case, the record shows that Sgt. Gonzalez arrived on the scene

after Det. Rousseau fired his weapon, and therefore, he did not

personally observe Mr. Valderrama toss the crack pipe from the

passenger-side vehicle. Nevertheless, Sgt. Gonzalez admits that he

authored Mr. Valderrama’s Arrest Affidavit by relying on statements that

he received from Sgt. Smith, who professed to have personally witnessed

Mr. Valderrama commit a crime. See D.E. 76-1 at 55-56. Because writing

the report was Sgt. Gonzalez’s sole connection to Mr. Valderrama’s

arrest, the fellow officer rule should have shielded him from any false

arrest claims. See Williams, 297 F. App’x at 946.

The district court, however, held that the fellow officer rule was

inapplicable in this context because “[Sgt. Gonzalez] had reason to know

that there was no arguable probable cause” and, when drafting his

report, he also “ignore[d] an obvious conflict in Det. Rousseau’s proffer

and the events as told by Sgt. Smith.” D.E. 135 at 14. In so doing, it

erroneously adopted Mr. Valderrama’s mischaracterizations and

speculations as fact. Moreover, this conclusion is unsupported by the

record and in conflict with recent case law from this Court.

First, the district court erred when it found that Sgt. Gonzalez should

have known that probable cause was lacking based on his awareness of

what was said over the TASK 3 communications. See id. On its face, the

transcript of TASK 3 communications does not show any statements

that relate directly to Mr. Valderrama or any suggestions that Sgt. Smith


26

fabricated probable cause. See D.E. 93-18. And neither the district court

nor Mr. Valderrama provided any indication as to what, if anything, was

said over the TASK 3 communications that should have given Sgt.

Gonzalez reasonable cause to doubt Sgt. Smith. See, e.g., D.E. 92 at 7-8.

If anything, the TASK 3 communications lend credence to Sgt. Smith’s

statement because they show that Det. Rousseau asked Sgt. Smith to pull

in front of Mr. Garcia’s vehicle before the gunshot was fired, which

would suggest that she was in close enough proximity to witness Mr.

Valderrama toss a crack pipe out of the passenger-side window. See D.E.

93-18 at 9.

Second, the district court also erred when it found that there was “an

obvious conflict in Det. Rousseau’s proffer and the events as told by Sgt.

Smith.” D.E. 135 at 14. But there was no such conflict. Det. Rousseau

proffered that he approached Mr. Garcia’s vehicle and told the

occupants to put their hands up. See D.E. 93-9 at 2. After he reached the

driver-side door, Det. Rousseau saw Mr. Valderrama “leaning forward

with his hands down below his seat” and continued yelling for him to

put his hands in view. Id. Mr. Valderrama then “suddenly brought his

hands up, which contained a silver object, causing [Det. Rousseau] to

shoot . . . into the car.” Id. There was no mention of Mr. Valderrama

throwing out a crack pipe in this proffer. See id. On the other hand, Sgt.


27

Smith told Sgt. Gonzalez that she witnessed Mr. Valderrama throw a

crack pipe out of the passenger-side window. See D.E. 76-1 at 55-56.9

That distinction—standing alone—does not create an actual conflict.

Indeed, there is a very legitimate reason why Det. Rousseau’s proffer

would have focused on the specific events leading up to the shooting

and Sgt. Smith’s statement would have been focused on the crack pipe:

Det. Rousseau was offering his proffer to Homicide Bureau detectives

that were investigating his officer-involved shooting, see D.E. 93-9 at 2,

while Sgt. Smith was speaking to Sgt. Gonzalez so that he could

complete Mr. Valderrama’s arrest affidavit for possession of drug

paraphernalia, see D.E. 76-1 at 55-56. Therefore, there was nothing for

Sgt. Gonzalez to reconcile. Those were simply two statements given by

two different officers for two different reasons detailing observations

from two different vantage points at two different times.

Third, the district court misapplied the holding in this Court’s

recently published opinion relating to the fellow-officer rule, Wilkerson v.

9 In his Statement of Material Facts, Mr. Valderrama expanded his

version of what Sgt. Smith told Sgt. Gonzalez by referring to details provided in her sworn statement and deposition. See D.E. 91 at ¶ 53. He does not, however, provide any proof in the record that all of these details were also communicated to Sgt. Gonzalez before he wrote the Arrest Affidavit. As a result, they should not be relied upon to determine whether there was any conflict between Det. Rousseau and Sgt. Smith’s testimony that Sgt. Gonzalez would have needed to reconcile before writing the Arrest Affidavit.


28

Seymour, 736 F.3d 974 (11th Cir. 2013).10 In Wilkerson, this Court held

that an officer who arrives on the scene after the events allegedly giving

rise to probable cause may not only “rely on [a fellow officer’s] account

of the arrest” but may also “fill in any gaps in the account with

reasonable inferences premised on [the fellow officer] acting in a

constitutional manner and in good faith.” Id. at 980. This decision

would appear to rule out the district court’s contention that Sgt.

Gonzalez was required to resolve any apparent conflict between Det.

Rousseau’s proffer and Sgt. Smith’s statements in favor of Mr.

Valderrama. But the district court found that Wilkerson was inapplicable

because, in this case, Sgt. Gonzalez apparently “knew [Sgt. Smith] had

no reasonable basis for arguable probable cause . . . .” D.E. 135 at 14. As

discussed above, there is no support in the record for a finding that Sgt.

Gonzalez had actual knowledge that Sgt. Smith lacked probable cause.

Consequently, Wilkerson applies, and Sgt. Gonzalez is entitled to

qualified immunity on the §1983 false arrest claim.

10 This decision was published after the officers’ Motions for Summary

Judgment were fully briefed. Sgt. Gonzalez, however, filed a Notice of Supplemental Authority shortly after the opinion’s publication, see D.E. 118, and the district court specifically addressed this case in its order.


29

II. The Officers are Entitled to Qualified Immunity on Mr.

Valderrama’s § 1983 Deliberate Indifference Claim

Because Any Unreasonable Delay in Medical Assistance

was Not Attributable to the Officers

In order for Mr. Valderrama to withstand summary judgment on his

claims of deliberate indifference against Det. Rousseau, Sgt. Gonzalez,

and Sgt. Smith, the record—taken in the light most favorable to him—

had to establish: “[1] an objectively serious medical need, [2] an

objectively insufficient response to that need, [3] subjective awareness of

facts signaling the need, and [4] an actual inference of required medical

action from those facts which would demonstrate deliberate

indifference.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).

There is no dispute that the record on summary judgment shows that

Mr. Valderrama’s gunshot wound is an objectively serious medical need.

But the district court erred in concluding that the record also

demonstrated that the officers provided an objectively insufficient

response once they became subjectively aware of that fact. In addition,

the case law relied upon by Mr. Valderrama—and adopted by the district

court’s order—failed to show that it was clearly established that the

officers’ response violated the Constitution. For either of these reasons,

the district court’s denial of summary judgment on Mr. Valderrama’s

deliberate indifference claims should be reversed.


30

A. The Record Does Not Support a Conclusion that the

Officers were Deliberately Indifferent11

The district court determined that there were two bases for its denial

of summary judgment on Mr. Valderrama’s deliberate indifference

claims. First, it found that “there was an inexplicable three-minute delay

before [the officers] even call[ed] for medical attention.” D.E. 135 at 21.

Second, it found that any additional delay by Fire Rescue was

attributable to Sgt. Smith. See id. at 20. Neither of these conclusions,

however, is borne out by the record.

1. Any Delay Before Calling for Medical

Assistance was Reasonable Under the

Circumstances

The record indicates that Mr. Valderrama was shot at 06:30:42 AM,

see D.E. 93-18 at 10, and Sgt. Smith called dispatch and requested

medical assistance by 06:34:18 AM, see D.E. 93-19 at 2. This shows that

no more than three minutes and thirty-six seconds passed between

those two events. But, for purposes of analyzing the deliberate

indifference claims, the officers’ response should not be gauged by that

three-minute-and-thirty-six-second time frame. Instead, the law requires

11 This subsection primarily conducts the deliberate indifference

analysis from the perspective of Sgt. Smith because she was the first officer to approach Mr. Valderrama and, if her actions are deemed to be objectively sufficient, there would be no need for Det. Rousseau and/or Sgt. Gonzalez to provide any additional response.


31

that their response must be assessed from the time that they acquired

subjective awareness that Mr. Valderrama had a serious medical need. Cf.

McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (“[S]ummary

judgment must be granted for the defendant official unless the plaintiff

presents evidence of the official’s subjective knowledge.”).

Mr. Valderrama, however, argued below that those two standards

should be indistinguishable because, in his view, all of the officers

obtained subjective awareness the moment that the gunshot was fired.

For example, Mr. Valderrama inferred that Sgt. Smith must have been

immediately aware of Mr. Valderrama’s medical needs because she

“heard a gunshot and knew it was a gunshot.” D.E. 92 at 15. And he

purportedly based this assertion on Sgt. Smith’s own testimony. See id.

(citing Sgt. Smith’s deposition and sworn statement). Yet, the citations

that he relied upon—when read in their proper context—do not support

his claim. On the contrary, Sgt. Smith stated in her deposition that her

“first reaction [to the sound] was [that] somebody [might be] shooting at

[them]”—not that Det. Rousseau had fired his weapon at Mr.

Valderrama. D.E. 76-3 at 55. Furthermore, in both her deposition and

sworn statement, Sgt. Smith also stated that she thought that the sound

might have been Det. Rousseau deploying his taser. Id. See also D.E. 95-4

at 10. And, although Sgt. Smith did admit that Det. Rousseau told her

that he fired his weapon, Mr. Valderrama omitted the portion of Sgt.

Smith’s statement where she explicitly stated that she did not become


32

privy to that information until after she had already called for fire rescue.

See D.E. 95-4 at 13 (“After I asked for rescue, I asked [Det. Rousseau],

‘Carl did you tase him?’ He said no, he shot.”) (emphasis added). The

officers also brought these mischaracterizations of the record to the

district court’s attention in their replies. See, e.g., D.E. 114 at 5-6.

Nevertheless, the district court credited Mr. Valderrama’s unsupported

assertion on the officers’ subjective awareness without providing any

citation in the record to support that conclusion. See D.E. 135 at 20

(“[A]ll defendants . . . were aware, prior to the unexplained three-minute

delay, that [Mr.] Valderrama had been shot and was bleeding . . .”).

This ruling was erroneous because there are a number of undisputed

events that occurred between the moment that Det. Rousseau fired his

weapon and the instance that any officer could have reasonably obtained

subjective awareness that Mr. Valderrama was in need of medical care.

In fact, even under Mr. Valderrama’s version of events, all of the

following occurred after the gunshot was fired and before Sgt. Smith—

the first officer to approach Mr. Valderrama—had subjective knowledge

of Mr. Valderrama’s medical needs: (1) Sgt. Smith approached the

passenger-side of the vehicle, see D.E. 94-1 at ¶ 37, 41; (2) she instructed

Mr. Valderrama to open the door, see id. at ¶ 44; (3) Mr. Valderrama

refused to open the door, see D.E. 75-1 at 19 (“And then I said to her,

No you open the door.”); (4) Sgt. Smith then opened the passenger-side

door herself, see D.E. 94-1 at ¶ 44; (5) she pulled Mr. Valderrama out of


33

the car, see id. at ¶ 45; (6) she began to place handcuffs on Mr.

Valderrama’s wrist, see id. at ¶ 47; (7) Mr. Valderrama then told her that

he had been shot, see id. at ¶ 48; (8) Sgt. Smith looked down at Mr.

Valderrama’s jeans and saw that he was bleeding, see id. at ¶ 50.

Additionally, the record also shows that Mr. Valderrama did not scream

in pain, say anything to indicate that he was injured, or request medical

attention while any of these events transpired. See D.E. 91 at ¶ 38.

Because all of these events (including Mr. Valderrama’s own

obstructions) delayed Sgt. Smith attaining subjective awareness that Mr.

Valderrama had a serious medical need, the district court erred in

concluding that there was an “inexplicable three-minute delay before

[the officers] even call[ed] for medical attention.” D.E. 135 at 21

(emphasis added). In this case, the facts explain that it would have taken

some non-negligible amount of time after the gunshot was fired to

determine both the nature of Mr. Valderrama’s injuries and the need for

medical assistance. Thus, it is not unreasonable that there would be

approximately three minutes from the time of the gunshot to the call for

medical assistance. See Harris v. Coweta County, 21 F.3d 388, 393-94 (11th

Cir. 1994) (“The tolerable length of delay in providing medical attention

depends on the nature of the medical need and the reason for the

delay.”) (emphasis added).


34

2. Any Delay After the Call for Medical Assistance

is Not Attributable to Sgt. Smith

The record also shows that City of Miami Fire Rescue arrived on

scene at 06:45:55 AM, approximately 11 minutes after Sgt. Smith first

called for medical assistance. See D.E. 93-15 at 5. The district court held

that it was reasonable to conclude—under Mr. Valderrama’s version of

events—that this response was unreasonably delayed and, more

importantly, that the delay was attributable to Sgt. Smith. See D.E. 135 at

20. In reaching that conclusion, the district court focused on the fact

that Sgt. Smith originally told the dispatcher that medical assistance was

needed to treat a “laceration.” Id. at 7. In addition, Mr. Valderrama

offered evidence that the City of Miami Fire Rescue had designated the

request from dispatch as a “21 Alpha,” which signifies a low-priority

incident. See D.E. 91 at ¶ 46.

But both Mr. Valderrama and the district court overlooked what, in

actuality, led to that low-priority designation. First, although Sgt. Smith

originally classified Mr. Valderrama’s wound as a “laceration” when

speaking to dispatch, the record also shows that dispatch asked Sgt.

Smith during that same conversation if she “want[ed] a routine”

response, and Sgt. Smith then clarified that Fire Rescue was being asked

to arrive “on the three.” D.E. 93-19 at 2. Second, it is undisputed that

“on the three” is used by the Miami-Dade Police Department to signify

“Code Three. Come as fast as you can.” D.E. 76-1 at 87. See also D.E. 91


35

at ¶ 42. And there was also unrebutted testimony from Sgt. Gonzalez

that Sgt. Smith’s designation of the wound as a laceration should have

been immaterial to the requested response time because “even if she said

‘male shot three times in the chest send rescue on a three,’ it would have

come at the same speed that it came for a laceration on a three.” D.E.

76-1 at 88 (emphasis added). Third, as shown by Mr. Valderrama’s own

evidence, the dispatcher told City of Miami Fire Rescue that “one of [its]

units [was] requesting the fire rescue . . . reference lacerations” and then

erroneously stated, “I don’t know anything else besides that.” D.E. 93-20

at 2. Importantly, dispatch neglected to tell Fire Rescue that Sgt. Smith

had indicated that the incident was a Code Three and that the fastest

possible response time had been requested. See D.E. 93-19 at 2.

Thus, it was dispatch, and not Sgt. Smith, Det. Rousseau, or Sgt.

Gonzalez, whose inadvertence resulted in the delayed response by Fire

Rescue. There is also no evidence in the record to suggest that any of the

officers were aware that this miscommunication occurred. From their

perspective, dispatch had been informed that this incident was not

routine and the fastest possible response time had been requested.

Accordingly, the district court erred when it concluded that “over 18

minutes elapsed [before] paramedics physically reached [Mr.] Valderrama

because Sgt. Smith incorrectly reported the reason for medical

attention, causing a delay.” D.E. 135 at 20 (emphasis added). That

finding improperly attributed facts outside of the officers’ knowledge or


36

control to assess whether they were deliberately indifferent, which is not

permitted for purposes of liability under § 1983. Cf. Ashcroft v. Iqbal, 556

U.S. 662, 676, 129 S. Ct. 1937, 1948 (2009) (“Because vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official's own individual

actions, has violated the Constitution.”) (emphasis added). Accord Ross v.

David, No. CIV S-09-0984-KJM-CMK-P, 2011 WL 534044, at *9 (E.D.

Cal. Feb. 11, 2011) (“[I]ndividuals can only be responsible for their own

actions in a § 1983 action . . . .”).

In fact, the record, if anything, refutes any possible inference that Sgt.

Smith’s request was deliberately intended to delay Fire Rescue’s

response: Approximately ten minutes after Sgt. Smith had made her

request for medical assistance to arrive “on the three,” she made a

second call to dispatch to ask if there was an estimated time of arrival for

Fire Rescue and emphasized that Mr. Valderrama was bleeding. See D.E.

93-19 at 2. That is hardly the type of inquiry that a police officer alleged

to be intentionally delaying the arrival of Fire Rescue would make.

Instead, it suggests that Sgt. Smith exhibited an appropriate level of

concern for Mr. Valderrama’s medical needs and expected Fire Rescue

to arrive sooner based on her earlier statements to dispatch.

Taken together, these facts show that Mr. Valderrama’s contention

and the district court’s ruling that any of the officers deliberately delayed

calling for medical assistance is unsupported by the record. First, Sgt.


37

Smith called within a reasonably expedient amount of time after

becoming subjectively aware of Mr. Valderrama’s serious medical need.

Second, she requested the fastest possible response time and was

unaware that dispatch failed to accurately communicate her request.

Finally, she made a follow-up call to dispatch requesting an estimated

time of arrival after Fire Rescue had not arrived within ten minutes of

her initial request. Nothing in that undisputed sequence of events leads

itself to a reasonable inference that the officers callously disregarded Mr.

Valderrama’s medical needs. Accordingly, the district court erred in

denying summary judgment on Mr. Valderrama’s deliberate indifference

claims and it should be reversed.

3. Even if Sgt. Smith’s Response was

Deliberately Indifferent, it Should Not Be

Imputed to Sgt. Gonzalez

As previously discussed, Sgt. Gonzalez only became aware of the

shooting and Mr. Valderrama’s need for medical attention after he

arrived on the scene. See supra I(B). And, even under Mr. Valderrama’s

version of events, Sgt. Gonzalez did not arrive at the scene until

approximately 6:33:10 AM. See D.E. 91 at ¶ 51. This only leaves sixty-

eight seconds between Sgt. Gonzalez’s possible arrival and Sgt. Smith’s

call for medical assistance at 6:34:18 AM. Notwithstanding that it would

have taken some of those sixty-eight seconds for Sgt. Gonzalez to attain

subjective awareness of Mr. Valderrama’s medical needs, it is not


38

reasonable to infer that any failure by him to act before Sgt. Smith called

for medical assistance was objectively insufficient. Moreover, there is no

evidence that Sgt. Gonzalez was aware that Sgt. Smith had misclassified

Mr. Valderrama’s injuries or that dispatch miscommunicated the

requested response time. So, Sgt. Gonzalez would not have had any

subjective knowledge of a need for further action after Sgt. Smith called

Fire Rescue. See Taylor, 221 F.3d at 1258 (requiring that defendant draw

“an actual inference of required medical action” before he or she can be

liable for deliberate indifference). Accordingly, the district court’s denial

of summary judgment on the deliberate indifference should be reversed

even if this Court affirms as to Det. Rousseau and Sgt. Smith.

B. Even if the Record Supports a Claim for Deliberate

Indifference, that Violation Was Not Clearly

Established at the Time of this Incident

Although this record shows that qualified immunity applies because

there was no constitutional violation for deliberate indifference, there is

a separate ground for this Court to find that the officers are entitled to

qualified immunity: there was no binding case law that existed at the

time of this incident that would have put a reasonable officer in similar

circumstances on notice that their conduct violated clearly established

law. See, e.g., Terrell v. Smith, 668 F.3d 1244, 1255-57 (11th Cir. 2012)

(analyzing how the plaintiff failed to carry his burden of showing that

law—at the time—was clearly established). There are three ways that this


39

burden could have been met. First, it could have been shown that “a

materially similar case ha[d] already been decided”. Mercado v. City of

Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citation omitted). Second,

there could be a “broader, clearly established principle [that] should

control the novel facts [of the] situation.” Id. Third, the conduct in this

case could “so obviously violate[] the Constitution that prior case law is

unnecessary.” Id. And, under any of these approaches, that burden is

only met by relying on case law from the United States Supreme Court,

the Florida Supreme Court, or published decisions from this Court. Id.

Below, the district court relied on Hill v. Dekalb Reg’l Youth Det. Ctr.,

40 F.3d 1176 (11th Cir. 1994), to hold that it was clearly established that

“an obvious life threatening injury establishes the right to immediate

emergency care.” See D.E. 135 at 20. But Hill should not have dictated

the outcome of this case because the district court’s interpretation of it

significantly broadened the holding.

As an initial matter, Hill did not involve an obvious life threatening

injury, immediate emergency care, or even the denial of qualified

immunity. Instead, it granted qualified immunity and found that a four-

hour delay “is not an excessive delay breaching the Eighth Amendment

for a reasonably apparent, nonemergency medical condition.” Id. at

1190. Moreover, its only discussion as to the proper response for life

threatening injuries was to state that delay in treatment can state a

constitutional claim depending on the seriousness of the medical need,


40

whether delay worsened the medical condition, and the reason for the

delay. See id. 1187-88. There was, however, no guidance as to how those

factors should be applied in the context of a situation sufficiently similar

to this case. See id.

Under existing case law, that is insufficient to overcome qualified

immunity. See Ashcroft v. al-Kidd, 563 U.S. ----, 131 S. Ct. 2074, 2083

(2011) (explaining that the law in a particular area can only be clearly

established if existing precedent “place[s] the statutory or constitutional

question beyond debate”) (emphasis added). Accord Stanton v. Sims, ---

U.S. ----, 134 S. Ct. 3, 5 (2013). In fact, the Supreme Court has held that

reliance on such general principles to find clearly established law was

improper under analogous circumstances. In Brousseau v. Haugen, the

Supreme Court reversed the Ninth Circuit’s denial of qualified immunity

because the Ninth Circuit mistakenly “proceeded to find fair warning in

the general tests [for Fourth Amendment objective reasonableness] set

out in Graham [v. O’Connor] and [Tennessee v.] Garner.” 543 U.S. 194, 198-

99, 125 S. Ct. 596 (2004). Accord Pace v. Capobianco, 283 F.3d 1275, 1283

(11th Cir. 2002) (explaining that “when we look at decisions such as

Garner and Graham, we see some tests to guide us in determining the law

in many different kinds of circumstances; but we do not see the kind of

clear law . . . that would apply” to the situation at hand).

The district court’s reliance on Hill is further misplaced because

several factors distinguish this case from Hill. First, the need for medical


41

assistance in this case arose from an officer-involved shooting following

a stop in a high-crime, high-drug trafficking area with a second officer

arriving on scene with limited information. See generally D.E. 80-1. The

need for medical assistance in Hill arose in a correctional facility and

hospital where the plaintiff was fully within the facility’s care and

custody and medical providers were nearby. See Hill, 40 F.3d at 1179-81.

Second, any purported delay in this case would have to be measured in

minutes. The delay in Hill (and the other cases it cited) was measured in

hours (or days/months). See Hill, 40 F.3d at 1187 n.21. Third, the

officers in this case had no prior history with Mr. Valderrama. The guard

in Hill had personal knowledge of Mr. Hill’s prior medical condition. See

Hill, 40 F.3d at 1179-81. For purposes of qualified immunity, those

distinctions are critical because “[q]uestions of deliberate indifference to

medical needs based on claims of delay are complicated questions . . .; a

change in even one fact from a precedent may be significant

enough to make it debatable among objectively reasonable officers

whether the precedent might not control in the circumstances later

facing an officer.” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1318

(11th Cir. 2010) (emphasis added).

Lastly, the district court also failed to give appropriate weight to this

Court’s published decision in Gee, 625 F.3d 1313, when determining

whether the officers violated clearly established law. In Gee, this Court

reversed a district court’s denial of summary judgment on qualified


42

immunity because “[n]o preexisting case law clearly established that an

approximately two-to-five-minute delay of medical care . . . is a

constitutional violation.” 625 F.3d at 1318-19.12 In light of its apparent

applicability to this case, the district court attempted to distinguish Gee

by finding that it was non-analogous because the delay in this case was

longer than two-to-five minutes. See D.E. 135 at 20. However, as

previously explained, the applicable time period in this case is within that

two-to-five-minute range because medical assistance was requested

within three-minutes-and-thirty-six-seconds and any delay following that

call is not attributable to the officers. The district court had no reason

(or prior case law) to suggest that the entire time from the gunshot to

Mr. Valderrama’s treatment by paramedics should be imputed to Sgt.

Smith. In addition, the district court failed to cite to any cases that were

more analogous. See id. Thus, even if this case is distinguishable from

Gee, the fact that there is not a more appropriate analogue only supports

the notion that the law under these factual circumstances remains

unsettled.

12 Although Gee was decided in 2010, the events in this case actually

precede those events by approximately eleven months. See id. at 1315 (stating that relevant events occurred in November of 2006). Therefore, if the law regarding delays in medical care was unsettled in November of 2006, Det. Rousseau, Sgt. Gonzalez, and Sgt. Smith could not have been on sufficient notice on January 24, 2006.


43

Accordingly, the officers are entitled to qualified immunity on Mr.

Valderrama’s deliberate indifference claims and the district court should

be reversed.

III. The Officers are Entitled to Summary Judgment on the

State-Law Claims for False Arrest, Malicious Prosecution,

Concert of Action, and Civil Conspiracy

“Under the pendent appellate jurisdiction doctrine, [this court] may

address [otherwise] nonappealable orders if they are ‘inextricably

intertwined’ with an appealable decision or if ‘review of the former

decision [is] necessary to ensure meaninguful review of the latter.’”

Hudson, 231 F.3d at 1294. Here, Mr. Valderrama’s state-law claims for

false arrest, malicious prosecution, concert of action, and civil conspiracy

are all premised upon allegations that Det. Rousseau, Sgt. Gonzalez, and

Sgt. Smith did not have probable cause to arrest him. First, probable

cause is an absolute bar to Mr. Valderrama’s state-law false arrest claim,

and the standard for probable cause is identical under Florida law and

federal law. See Bolanos v. Metropolitan Dade County, 677 So. 2d 1005 (Fla.

3d DCA 1996); Holland, 696 So. 2d at 759 (holding that the Florida

Constitution binds Florida courts to follow the U.S. Supreme Court’s

interpretation of the Fourth Amendment). Second, the basis for Mr.

Valderrama’s state-law malicious prosecution claim is that the officers

“acted maliciously by resorting to fraud and perjury to falsely arrest,

imprison, and prosecute him.” D.E. 92 at 24 (emphasis added). Third,


44

Mr. Valderrama’s state-law concert of action claim relies on an allegation

that “[a]ll three officers acted pursuant to a common plan or design to

falsely arrest [him].” D.E. 92 at 28 (emphasis added). Fourth, as to his

state-law civil conspiracy claim, Mr. Valderrama argues that the purpose

of the alleged civil conspiracy was to commit[ ] fraud and perjury, and

falsely arrest[] citizens . . . .” Id. at 23 (emphasis added). Therefore, if

this Court finds that any of the officers had probable cause to arrest Mr.

Valderrama, it should also reverse the district court’s denial of summary

judgment on the officer(s) respective state-law false arrest, malicious

prosecution, concert of action, and civil conspiracy claims and remand

with instructions to grant summary judgment on those claims. See, e.g.,

Gray v. Ector, 541 F. App’x 920, 926 (11th Cir. 2013) (“Simply put, the

underlying premise for each of these [state-law] claims cannot hold

based on our prior ruling that there was probable cause.”).

Conclusion

For the reasons set forth above, the district court’s order denying

summary judgment should be reversed as to Mr. Valderrama’s federal

claims for false arrest and deliberate indifference and his state law claims

for false arrest, malicious prosecution, concert of action, and civil

conspiracy.


45

Respectfully submitted, R. A. CUEVAS, JR. Miami Dade County Attorney

Stephen P. Clark Center 111 N.W. 1st

Street, Suite 2810

Miami, Florida 33128

By: /s/ Michael B. Valdes

Michael B. Valdes Assistant County Attorney Florida Bar No. 93129 Phone: (305) 375-5151 Fax: (305) 375-5634

E-Mail: [email protected]


46

Certificate of Compliance

This brief complies with the typeface requirements of FED. R. APP. P.

32(a)(5) and the type-volume limitation of FED. R. APP. P. 32(a)(7)(A)

because it has been prepared in a proportionally based typeface using

Microsoft Office Word 2007, 14-point Garamond for text, 14-point

Source Sans Pro for headings, and contains 11,165 words.

/s/ Michael B. Valdes Michael B. Valdes Assistant County Attorney

Certificate of Service

I hereby certify that a true and correct copy of the foregoing was

served on Michael Miro Garcia Petit, counsel for Appellee, via Appellate

ECF, on March 17, 2014.

/s/ Michael B. Valdes Michael B. Valdes

Assistant County Attorney


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