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                                                                 [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-14377
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 2:16-cv-00814-SPC-MRM



ANITA ANDREWS,

                                                                     Plaintiff-Appellee,

                                        versus

MIKE SCOTT,
in his official capacity as Sheriff of Lee County, et al.,

                                                                             Defendants,

DEPUTY BRANDON MARSHALL,
SERGEANT ROBERT KIZZIRE,

                                                               Defendants-Appellants.

                            ________________________

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

                                    (April 5, 2018)
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Before MARCUS, ROSENBAUM and HULL, Circuit Judges.

PER CURIAM:

      In this action under 42 U.S.C. § 1983, defendants Officer Brandon Marshall

and Sergeant Robert Kizzire, in their individual capacities, appeal from the district

court’s denial of their Rule 12(b)(6) motion to dismiss on the ground of qualified

immunity. Both Officer Marshall and Sergeant Kizzire work for the Sheriff’s

Department of Lee County, Florida. After careful review, we affirm.

                                I. BACKGROUND

      This action arises from a November 2012 incident in which plaintiff Anita

Andrews was arrested and detained for approximately two days. Given the Rule

12(b)(6) posture of this case, we first review the allegations of the complaint as if

all those allegations were true. See Cottone v. Jenne, 326 F.3d 1352, 1355 & n.1

(11th Cir. 2003).

A.    Traffic Stop and Arrest

      Late in the evening of November 6, 2012—an election day—Andrews and

her companion, driver Keith O’Bryant, a resident of Virginia, participated in a

post-election cleanup. They removed political signs from public roadways and

intersections and placed them in the bed of driver O’Bryant’s pickup truck. Both

were wearing “expensive semi-formal/formal” clothing.




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      At approximately 1:00 a.m. on the morning of November 7, 2012, while

Andrews and O’Bryant were collecting political signs, defendant Officer Marshall

pulled them over because O’Bryant’s truck had a nonworking headlight. Driver

O’Bryant gave his driver’s license and registration to Officer Marshall. He told

Officer Marshall that he was aware of the faulty headlight but had not had the

opportunity to have it fixed.

      Officer Marshall asked O’Bryant and Andrews where they were going, what

they were doing, how they knew each other, and what business O’Bryant had in

Florida. O’Bryant answered some of these questions, and he told Officer Marshall

both his name and Andrews’s name. However, O’Bryant declined to answer

questions about how he knew Andrews, where they were staying, and whether they

were staying together. Officer Marshall ran an identification check on Andrews

and O’Bryant.

      Plaintiff Andrews “advised [Officer Marshall] that she had certain privacy

guarantees protected under the U.S. Constitution.” Officer Marshall then asked

Andrews for identification. Andrews replied that she did not have identification,

but added that, as a passenger, she was not required to have any. Marshall told

Andrews that he was entitled to question and demand identification from anyone in

the vehicle.




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      According to the complaint, Officer Marshall acknowledged that he did not

suspect either Andrews or O’Bryant of having committed a crime. Marshall also

commented that Andrews’s and O’Bryant’s appearance discounted the possibility

that they were doing anything wrong. As noted earlier, both Andrews and

O’Bryant were wearing “expensive semi-formal/formal” clothing. Nevertheless,

Marshall summoned additional officers to the scene, telling passenger Andrews

that he could not “let go” of the matter because she refused to disclose her name.

However, Officer Marshall already knew Andrews’s name, because O’Bryant had

told him.

      Additional officers soon arrived, including defendant Sergeant Kizzire.

Under questioning, passenger Andrews told the officers that there were no drugs or

guns in the truck. Shortly thereafter, Sergeant Kizzire said, “I’m tired of this.”

Without asking Andrews to get out of the truck, Kizzire “aggressively pull[ed]

Andrews out of the vehicle,” “forcefully turn[ed] her around,” “slammed [her]

against the car door,” and “cuff[ed] her hands behind her back.” Andrews was

patted down, including on her breasts and crotch, and then placed in the back of

Officer Marshall’s police car.

      Officer Marshall spoke to Andrews while she was in the back of his police

car. Marshall asked: “So, Anita, are you going to tell us your name?” Marshall




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also told Andrews that it was “irrelevant that she did not break any laws,” because

she was being seized “to teach her a lesson.”

      Officer Marshall then asked Andrews additional questions about the political

signs in the back of the truck. Andrews told Marshall that she and driver O’Bryant

were discarding political signs after the election, and that they had performed this

civic service for decades.

      Officer Marshall informed Andrews of her Miranda 1 rights, and placed

driver O’Bryant in the back of the police car along with Andrews. Marshall made

it clear to Andrews that her cooperation would keep O’Bryant out of trouble.

Meanwhile, the officers discussed how to arrest Andrews legally. One officer said,

“we need to teach her a lesson.”

      Officer Marshall drove Andrews and driver O’Bryant to the police station.

On the way, Marshall told Andrews and O’Bryant they would be charged with

“Loitering and Prowling,” which, he explained, was a term officers used when they

were unable to tell whether a crime was committed but needed an excuse to bring

someone in. Marshall stated he did not know the specific justification for bringing

in Andrews, but said “we’re going to find something really good for her.”

      When Andrews arrived at the police station, her right arm was twice its

normal size due to the rough handling of the officers. Andrews was booked for


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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loitering and prowling. Around this time, O’Bryant observed an officer writing the

probable cause affidavit for Andrews’s arrest. O’Bryant saw the officer conferring

with other officers, including Marshall and Kizzire, as they “attempt[ed] to get

their story straight.”

       Andrews was then transported to the county jail’s psychiatric ward, where

she was held for observation until the following day. On the evening of November

8, 2012, Andrews was released. Ultimately, all charges against Andrews and

O’Bryant were dropped.

       Based on the foregoing allegations, plaintiff Andrews asserted claims under

§ 1983 against Officer Marshall individually for false arrest and imprisonment

(Count 1) and retaliation (Count 9), and against Sergeant Kizzire individually for

false arrest and imprisonment (Count 2), retaliation (Count 8), and excessive force

(Count 11). Andrews also asserted other claims against Officer Marshall, Sergeant

Kizzire, and other defendants, which are not at issue in this appeal.

       Defendants Marshall and Kizzire moved to dismiss the § 1983 claims

against them, contending they were entitled to qualified immunity. The district

court denied their motion to dismiss. Officer Marshall and Sergeant Kizzire now

appeal.2



       2
        The district court also denied the defendants’ motion to dismiss Andrews’s state law
claims. Those claims are not at issue in this appeal.
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                                  II. DISCUSSION

A.    Standard of Review

      We review de novo a district court’s denial of qualified immunity. Cottone

v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). At the motion to dismiss stage, the

determination of whether a complaint sufficiently alleges a constitutional violation

also is a question of law that we review de novo. Id. In reviewing a complaint,

“we accept all well-pleaded factual allegations as true and construe the facts in the

light most favorable to the plaintiff.” Id.

B.    Rule 12(b)(6) Motions

      A complaint is subject to dismissal under Rule 12(b)(6) when its allegations

on their face show that an affirmative defense bars recovery on the claim. Cottone,

326 F.3d at 1357. Once the defendants advance the affirmative defense of

qualified immunity, the complaint must be dismissed, unless the plaintiff’s

allegations “state a claim of violation of clearly established law.” Id. (quotation

omitted).

C.    Qualified Immunity Principles

      The affirmative defense of qualified immunity “completely protects”

government officials performing discretionary functions from suit in their

individual capacities, unless their conduct “violates clearly established statutory or

constitutional rights of which a reasonable person would have known.” Cottone,


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326 F.3d at 1357 (quotation omitted). Thus, to receive the benefit of qualified

immunity, a government official must first show that he was acting within his

discretionary authority. Id. Here, it is undisputed that Officer Marshall and

Sergeant Kizzire were performing their discretionary functions when they stopped

and arrested plaintiff Andrews.

      Once a defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show the defendant is not entitled to

qualified immunity. Id. at 1358. A defendant is not entitled to qualified immunity

if (1) his alleged conduct violated a constitutional right and (2) the right was

clearly established at the time of the violation. Id. at 1358-59. A right is “clearly

established” if “it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. at 1359 (quotation omitted). In

making this inquiry, the salient question is whether the state of the law gave the

officer “fair warning that [his] alleged [conduct] was unconstitutional.” Id.

(quotation omitted) (second alteration in original).

D.    Arguable Probable Cause

      A plaintiff asserting a claim for false arrest under § 1983 must show that she

was arrested without a warrant and without probable cause. Brown v. City of

Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). Therefore, the existence of




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probable cause at the time of arrest “is an absolute bar to a subsequent

constitutional challenge to the arrest.” Id.

      A police officer need not have actual probable cause, but only “arguable”

probable cause, to receive qualified immunity from a false arrest claim. Grider v.

City of Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010). Arguable probable

cause exists where “reasonable officers in the same circumstances and possessing

the same knowledge as the Defendants could have believed that probable cause

existed to arrest Plaintiff.” Id. (quotations omitted). Whether an officer had

arguable probable cause “depends on the elements of the alleged crime and the

operative fact pattern.” Id.

      The arguable probable cause standard is an objective one, and ordinarily

does not include an inquiry into the officer’s subjective intent or beliefs. Id. “[The

officer’s] subjective reason for making the arrest need not be the criminal offense

as to which the known facts provide probable cause.” Devenpeck v. Alford, 543

U.S. 146, 153, 125 S. Ct. 588, 594 (2004). Qualified immunity thus provides for

an “accommodation for reasonable error” in determining whether an arresting

officer had arguable probable cause. Hunter v. Bryant, 502 U.S. 224, 229, 112 S.

Ct. 534, 537 (1991) (quotation omitted). However, qualified immunity does not

protect an officer who is “plainly incompetent” or who “knowingly violate[s] the

law.” Id. (quotations omitted).


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E.      False Arrest against Marshall and Kizzire

        On appeal, the defendants argue—as they did in the district court—that they

had arguable probable cause to arrest Andrews for two offenses: loitering or

prowling, with which she was charged, and theft. But the problem for the

defendants is that at this Rule 12(b)(6) stage, we must accept plaintiff Andrews’s

version of the events. Under her version, the defendants effectively told her they

had no basis to arrest her but were doing so to teach her a lesson. 3

        According to the complaint, Officer Marshall told Andrews and O’Bryant

that he did not suspect them of committing any crime. Officer Marshall said it was

“irrelevant that [Andrews] did not break any laws,” because she was being seized

“to teach her a lesson.” On the way to the police station, Marshall told Andrews

and O’Bryant they would be charged with “Loitering and Prowling” because the

officers needed an excuse to bring them in. And Marshall admitted he did not have

a justification for bringing in Andrews, but said “we’re going to find something

really good for her.”

        Ordinarily, we do not look to an officer’s subjective state of mind when

determining whether he had arguable probable cause to make an arrest. Grider,


        3
         As noted above, because this appeal is from the denial of the defendants’ Rule 12(b)(6)
motion to dismiss, we accept plaintiff Andrews’s version of the facts, even if her version is
“hotly disputed.” See Vineyard v. Cty. of Murray, Ga., 990 F.2d 1207, 1209 n.1 (11th Cir. 1993)
(reciting the facts in the light most favorable to the plaintiff, in an appeal from the district court’s
denial of the defendants’ motion for a directed verdict, even though the plaintiff’s version was
“hotly disputed at trial”).
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618 F.3d at 1257. But this is not a case where the arresting officers mistakenly

believed they had probable cause where they had none, or believed they had

probable cause to arrest Andrews for one offense when another would have been

more appropriate. See, e.g., Devenpeck, 543 U.S. at 149-50, 155-56, 125 S. Ct. at

591-92, 594-95 (concluding that an arresting officer may be entitled to qualified

immunity even if the offense actually establishing probable cause is not “closely

related” to the offense identified by the officer); Rushing v. Parker, 599 F.3d 1263,

1265, 1268-69 (11th Cir. 2010) (holding that officers were entitled to qualified

immunity after arresting a person they mistakenly believed was the subject of an

arrest warrant). Rather, Officer Marshall made clear he did not believe there was

any basis to arrest Andrews, but the officers arrested her anyway. In short, the

officers here did not make a “reasonable error.” See Hunter, 502 U.S. at 229, 112

S. Ct. at 537. Instead, they “knowingly violate[d] the law.” Id.

      Accordingly, the defendants are not entitled to qualified immunity at the

Rule 12(b)(6) stage. Id. We need not determine at this stage whether “reasonable

officers in the same circumstances and possessing the same knowledge as the

Defendants could have believed that probable cause existed to arrest Plaintiff.”

See Grider, 618 F.3d at 1257 (quotations omitted). As the district court noted,

evidence may emerge through discovery to show that the officers had arguable

probable cause to make the arrest. And it may be that the officers said none of


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what Andrews alleged. But the district court did not err in denying the defendants’

motion to dismiss based on the allegations in the complaint at this Rule 12(b)(6)

stage.

F.       Excessive Force against Sergeant Kizzire

         “In an excessive force case arising out of an arrest, whether a constitutional

violation occurred is governed by the Fourth Amendment’s ‘objective

reasonableness’ standard.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.

2008). Among the factors that are “instructive” in determining whether an

officer’s use of force was objectively reasonable are “(1) the need for the

application of force, (2) the relationship between the need and the amount of force

used, (3) the extent of the injury inflicted and, (4) whether the force was applied in

good faith or maliciously and sadistically.” Id. (quotation omitted). The amount

of force used by an officer in carrying out an arrest “must be reasonably

proportionate to the need for that force, which is measured by the severity of the

crime, the danger to the officer, and the risk of flight.” Lee v. Ferraro, 284 F.3d

1188, 1198 (11th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.

Ct. 1865, 1872 (1989)).

         A claim of excessive force “presents a discrete constitutional violation

relating to the manner in which an arrest was carried out.” Bashir v. Rockdale

Cty., Ga., 445 F.3d 1323, 1332 (11th Cir. 2006). The claim is “independent of


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whether law enforcement had the power to arrest” in the first place. Hadley, 526

F.3d at 1329. Accordingly, “where an excessive force claim is predicated solely

on allegations the arresting officer lacked the power to make an arrest, the

excessive force claim is entirely derivative of, and is subsumed within, the

unlawful arrest claim.” Bashir, 445 F.3d at 1332. An excessive force claim that is

predicated on the unlawfulness of the underlying arrest “fails as a matter of law.”

Id.

      Here, Andrews does not predicate her excessive force claim solely on the

allegation that Officer Marshall and Sergeant Kizzire lacked the authority to arrest

her. Because her excessive force claim against Kizzire is discrete from her false

arrest claims, we discuss the excessive force claim without regard to the propriety

of the underlying arrest. See Hadley, 526 F.3d at 1329.

      According to the complaint, at the time Andrews was arrested, she was

sitting in O’Bryant’s truck actually answering the officers’ questions, except for

the question about her name. She was not fleeing or resisting the officers. She

was not asked to get out of the truck. Yet Sergeant Kizzire announced that he was

“tired of this,” “aggressively pull[ed] Andrews out of the vehicle,” “forcefully

turn[ed] her around,” “slammed [her] against the car door,” and “cuff[ed] her

hands behind her back.” As a result of Sergeant Kizzire’s actions, Andrews’s right

arm swelled to twice its normal size.


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      Applying the Hadley factors and accepting Andrews’s version, there was no

apparent need or provocation for this alleged degree of force. See Hadley, 526

F.3d at 1329. Andrews had answered some questions except for her name, and

was non-threatening. And as a result of Sergeant Kizzire’s use of aggressive force,

Andrews was injured. These factors all suggest that Sergeant Kizzire’s use of

force was not objectively reasonable. Id. Under the facts alleged, it would be clear

to a reasonable officer that Sergeant Kizzire’s conduct was unlawful. See Cottone,

326 F.3d at 1359.

      As with Andrews’s false arrest claim, facts may emerge in discovery to

show that Sergeant Kizzire’s use of force was objectively reasonable in light of the

totality of circumstances. But under the allegations of the complaint, the district

court did not err in denying the motion to dismiss as to the excessive force claim

against Kizzire.

G.    Retaliation against Marshall and Kizzire

      A § 1983 claim for retaliation requires a plaintiff to establish that (1) her

speech was constitutionally protected, (2) the defendant’s retaliatory conduct

adversely affected the protected speech, and (3) there is a causal connection

between the retaliatory actions and the adverse effect on speech. Bennett v.

Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). Retaliatory conduct adversely

affects protected speech if the conduct “would likely deter a person of ordinary


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firmness from the exercise of First Amendment rights.” Id. at 1254. “[S]ince there

is no justification for harassing people for exercising their constitutional rights [the

adverse effect] need not be great in order to be actionable.” Id. (quotation

omitted). However, where the alleged retaliatory conduct is an arrest, the existence

of probable cause or arguable probable cause is a complete bar to liability. Dahl v.

Holley, 312 F.3d 1228, 1236 (11th Cir. 2002).

      The First Amendment “protects a significant amount of verbal criticism and

challenge directed at police officers.” City of Houston, Tex. v. Hill, 482 U.S. 451,

461, 107 S. Ct. 2502, 2509 (1987). Individuals are free “verbally to oppose or

challenge police action without thereby risking arrest.” Id. at 462-63, 107 S. Ct. at

2510. Similarly, a person may ask reasonable questions of a police officer without

giving rise to probable cause or arguable probable cause for obstruction of justice.

Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1139 (11th Cir. 2007).

      Regarding the first prong of her retaliation claim, Andrews alleges that she

engaged in the following speech: (1) she “advised [Officer Marshall] that she had

certain privacy guarantees protected under the U.S. Constitution”; and (2) she told

Marshall she was not required to provide identification as a passenger in

O’Bryant’s truck. When Andrews engaged in this speech, she was not obstructing

Officer Marshall from carrying out the traffic stop: she knew that O’Bryant had

already given Marshall her name, and that Marshall had already run background


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checks on her and O’Bryant. Rather, her assertion of her right to privacy was a

criticism and challenge of Officer Marshall’s action, and, as such, is protected

speech. Hill, 482 U.S. at 461, 107 S. Ct. at 2509; see Skop, 485 F.3d at 1139.

      As to the other two prongs of a retaliation claim, it is obvious that when

Andrews was arrested, her protected speech was adversely affected. Indeed, even

the threat of arrest would likely deter a person of ordinary firmness from the

exercise of First Amendment rights, at least to some degree. See Bennett, 423 F.3d

at 1254-55.

      Accordingly, at this Rule 12(b)(6) stage, Andrews has stated a claim for

retaliation under § 1983. Id. at 1250. And it would be clear to a reasonable officer

that it was unlawful to arrest Andrews for engaging in constitutionally protected

speech. See Cottone, 326 F.3d at 1359. Therefore, Officer Marshall and Sergeant

Kizzire are not entitled to qualified immunity from Andrews’s retaliation claim,

and the district court did not err in denying their motion to dismiss based on the

facts alleged in the complaint.

                                  III. CONCLUSION

      For all the foregoing reasons, we conclude that at this Rule 12(b)(6) stage

the district court did not err in denying defendants Officer Marshall and Sergeant

Kizzire’s motion to dismiss plaintiff Andrews’s § 1983 claims on the basis of




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qualified immunity. Accordingly, we affirm the district court’s denial of the

defendants’ motion to dismiss.

      AFFIRMED.




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