                                                   [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    ________________________              FILED
                                                 U.S. COURT OF APPEALS
                           No. 10-14046            ELEVENTH CIRCUIT
                       Non-Argument Calendar           MARCH 1, 2011
                     ________________________           JOHN LEY
                                                         CLERK
                D.C. Docket No. 2:08-cv-00806-JES-SPC

JAMES T. DEROSA,
KATHLEEN DEROSA,
LOUIS J. DEROSA,
MARY ELIZABETH DEROSA,


                                                   Plaintiffs - Appellees,

                               versus


SHERIFF OF COLLIER COUNTY, FLORIDA, et al.,


                                                             Defendants,


SHAUN M. GEORGE,


                                                  Defendant - Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (March 1, 2011)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Deputy Sheriff Shaun George appeals the denial of qualified immunity

against Kathleen DeRosa’s complaint of false arrest. The district court ruled that

George lacked arguable probable cause to arrest DeRosa. We affirm.

      Although there is little dispute about the events that led to and occurred

during the encounter between George and DeRosa, we view the facts in the light

most favorable to DeRosa, as we must do at this stage of the proceedings. See

Grider v. City of Auburn, 618 F.3d 1240, 1246 & n.1 (11th Cir. 2010). In 2005,

while Deputy George was on patrol on a remote road in Collier County, Florida,

he noticed a GMC Yukon vehicle driving on the opposite side of the road using its

high beam lights. When the vehicle failed to dim its lights as it drove by George’s

patrol car, George stopped the vehicle. James DeRosa was driving the car and

Kathleen DeRosa was riding in the back seat of the vehicle. Kathleen noticed that

George was shaking, agitated, and nervous.

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      George asked James for his driver’s license. Kathleen spoke to James three

times about the location of his license and, on each occasion, George told

Kathleen to “shut up.” Kathleen told George that he “really need[ed] to work on

[his] community service skills.” George cited James for failing to dim his

headlights, Fla. Stat. § 316.238, and James signed the citation using a pencil.

After George gave James a copy of the citation, James drove away.

      George activated his lights and siren and pursued the DeRosas. Kathleen

called “911” and stated that James would stop at a specific gas station two miles

away. Kathleen told the operator that she was afraid of George because he was

acting aggressively, and Kathleen requested that additional officers meet the

DeRosas at the gas station.

      After James stopped his vehicle, George instructed another officer to arrest

Kathleen. The officer grabbed Kathleen’s arm as she climbed out of the vehicle,

dragged her to a patrol car, pushed her against the hood to handcuff her, turned her

around and pushed her back against the hood, and then shoved her inside a patrol

car. Kathleen was charged with obstructing a law enforcement officer without

violence, id. § 843.02, but the charge was dismissed.

      George lacked arguable probable cause to arrest Kathleen. To support a

conviction for obstructing a police officer without violence, the officer must be

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“‘engaged in the lawful execution of a legal duty’” and the action of the defendant

must “‘constitute[] obstruction or resistance of that lawful duty.’” Jay v. State,

731 So. 2d 774, 775 (Fla. Dist. Ct. App. 1999) (quoting S.G.K. v. State, 657 So.

2d 1246, 1247 (Fla. Dist. Ct. App. 1995)). Although mere words can violate

section 843.02, the words must thwart an officer from performing his official

duties:

      [As a] general proposition[,] [i]f a police officer is not engaged in
      executing process on a person, is not legally detaining that person, or
      has not asked the person for assistance with an ongoing emergency that
      presents a serious threat of imminent harm to person or property, the
      person’s words alone can rarely, if ever, rise to the level of an
      obstruction.

D.G. v. State, 661 So. 2d 75, 76 (Fla. Dist. Ct. App. 1995). Florida courts have

long held that criticism cannot support a conviction for obstruction, even if the

criticism is insulting or defiant:

      “Conduct involving only verbal challenge of an officer’s authority or
      criticism of his actions . . . operates, of course, to impair the working
      efficiency of government agents . . . Yet the countervailing danger that
      would lie in the stifling of all individual power to resist—the danger of
      an omnipotent, unquestionable officialdom—demands some sacrifice of
      efficiency.”

S.D. v. State, 627 So. 2d 1261, 1262 (Fla. Dist. Ct. App. 1993) (quoting City of

Houston v. Hill, 482 U.S. 451, 464 n.12, 107 S. Ct. 2502, 2510 n.12 (1987)).

      Kathleen did not come close to obstructing George in the execution of his

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lawful duties. Kathleen’s criticisms of George, even if distracting, did not incite

others against, interfere with, or impede George from citing James for his traffic

infraction. See R.S. v. State, 531 So. 2d 1026, 1026–27 (Fla. Dist. Ct. App. 1988)

(refusal of juvenile to answer questions and instructions to companion not to

answer questions, though “frustrating and annoying” did not constitute

obstruction). In fact, the record does not suggest that Kathleen even questioned

George’s authority. See D.G., 661 So. 2d at 76–78 (“protesting loudly and

obnoxiously” to officers’ investigation, “encouraging his mother not to

cooperate,” and refusing to answer questions about an associate suspected of

burglary did not violate section 843.02); S.D., 627 So. 2d at 1262–63 (announcing

the presence of police officers in response to a warning from the officers not to

alert persons in the area about a sting operation did not obstruct official duty

because those persons already had been warned not to approach officers to

purchase drugs).

      George argues that he was entitled to arrest Kathleen based on his right to

“maintain ‘unquestioned command of the situation,’” Maryland v. Wilson, 519

U.S. 408, 414, 117 S. Ct. 882, 886 (1997), but we disagree. The Supreme Court

held in Wilson that an officer making a traffic stop may, in the interests of

personal safety, order passengers to exit a vehicle until the stop is complete, id. at

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413–15, 117 S. Ct. at 885–86, but Wilson is distinguishable. Kathleen’s remarks

were not so disruptive or alarming to warrant removing her from the vehicle to

complete the traffic stop.

      The denial of George’s motion for summary judgment based on qualified

immunity is AFFIRMED.




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