                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-10203         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 15, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                            D.C. Docket No. 6:09-cv-00506-GAP-KRS

JAMES R. SADA,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellant,

                                               versus

CITY OF ALTAMONTE SPRINGS,
ROBERT PELTON,
BRIAN LYPSEY,
ROBERT SHAPIRO,
KRISTOFFOR TOMICH,
TROY ANTOLIN,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees,

JOHN DOES #1,

llllllllllllllllllllllllllllllllllllllll                                     Defendant.
                                      ________________________

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

                                           (July 15, 2011)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:

       Plaintiff-Appellant Paul Sada (“Sada”) challenges the district court’s order

granting summary judgment on all of Sada’s claims in favor of Defendants-Appellees

City of Altamonte Springs (“City”), and Officers Robert Pelton (“Pelton”), Brian

Lypsey (“Lypsey”), Robert Shapiro (“Shapiro”), Kristoffor Tomich (“Tomich”), and

Troy Antolin (“Antolin”). Sada’s complaint, arising out of his arrest by the

Defendants, raised federal constitutional and state law causes of action against the

City of Altamonte Springs and the officers involved in his arrest. On appeal, Sada

argues that the district court erred in granting summary judgment to the Defendants

because: (1) his arrest was not supported by probable cause; (2) the affirmative

defense of Florida’s parental physical discipline privilege precluded the legality of

his arrest; and (3) he sustained damages from any negligence by the City in its

training of its police force. After thorough review, we affirm.1

       We review a district court’s order granting summary judgment de novo. Gitlitz

v. Compagnie Nationale Air France, 129 F.3d 554, 556 (11th Cir. 1997). Summary


       1
         Notwithstanding the “Statement of the Issues” in Sada’s brief, which lists only three
issues, Sada seems to challenge the district court’s decision as to most of his claims on appeal.
Any issue asserted by Sada which is not specifically addressed in this opinion is found to be
without merit.

                                                 2
judgment is appropriate where there is no genuine issue of material fact. Id. “All

evidence and reasonable factual inferences drawn therefrom are reviewed in the light

most favorable to the party opposing the motion.” Id. at 556-57 (quotations omitted).

We, however, are not required to accept all factual characterizations and legal

arguments of the nonmoving party. Beal v. Paramount Pictures Corp., 20 F.3d 454,

458-59 (11th Cir. 1994). “If no reasonable jury could return a verdict in favor of the

nonmoving party, there is no genuine issue of material fact and summary judgment

will be granted.” Id. at 459.

      The relevant facts, for purposes of summary judgment, are these. Sada and his

son were engaged in a confrontation in a Sears store. Sada, unsuccessfully trying to

convince his son to hang up his cellular phone, grabbed for the cellular phone,

unintentionally striking his son in the process. Sada then angrily threw down his own

cellular phone, exited the store, and remained in the Sears parking lot. His son

sustained no visual physical injuries.

      Thereafter, a Sears security guard called the police and communicated that

there had been an altercation between a man and his son within the store, during

which the man hit his son and threw a cellular phone in the direction of his son. The

security guard also communicated that several Sears customers were themselves

afraid of the father due to his aggressive behavior. Several Altamonte police officers

                                          3
were dispatched to the scene. The call was dispatched with priority status, meaning

“someone is being hurt.” Upon arrival, Officer Pelton was directed towards Sada by

several Sears employees. Sada, who was pacing in the Sears parking lot, screamed

obscenities at the identifying Sears employees.

      Officer Pelton approached Sada, who refused to stop pacing or speak about the

incident. Pelton recalls Sada telling him, “That is my son and I’m pissed. I’m going

to beat him down when I find him[, b]ut don’t worry, I live in the county not the city.”

The officers, which ultimately included Officers Pelton, Antolin, Tomich, Shapiro

and Lypsey, began an investigation of the incident.

      The officers interviewed witnesses at the scene, obtaining five sworn witness

statements. One eye witness recounted that Sada angrily “went after” and “socked”

his son. A Sears employee reported that he saw Sada throw a cellular phone towards

“a kid.” Another employee said that Sada angrily shouted at his son, and that she saw

Sada’s son running out of the store with Sada running in pursuit. This employee also

recalled that a customer had told her that Sada hit his son. Two Sears loss prevention

associates reported that they had responded to a call about a man creating a

disturbance and hitting his son. Two of the witnesses, a customer and an employee,

told officers that they were afraid to leave the store on account of their recent




                                           4
personal encounters with Sada. Further, that Sada was pacing, yelling, and cursing

outside scared these two witnesses.

      During the investigation, Sada mentioned to the officers that he knew the chief

of police. Officer Lypsey privately indicated to Officer Torres, Sada’s friend who

was arranging the return of Sada’s son to the Sears parking lot, that he was teaching

Sada a lesson for “name dropping.” Officer Antolin then arrested Sada in the Sears

parking lot for battery and disorderly conduct. Sada was charged with disorderly

conduct by the State Attorney, but was never charged with battery.

      After all criminal charges against Sada were dismissed, Sada filed this suit in

district court, alleging federal constitutional claims, and state claims for wrongful

arrest, battery, slander, negligence, and intentional infliction of emotional distress.

Upon motions by the Defendants for summary judgment, the district court agreed,

rejecting Sada’s federal constitutional claims and false imprisonment/false arrest and

battery claims because there was both actual and arguable probable cause to arrest.

The court found that even if probable cause was absent, Sada’s claim of intentional

infliction of emotional distress was not warranted, as the officers’ actions were not

sufficiently outrageous. Finally, the court found that Plaintiff “provided no evidence

that the City’s training policies, its supervision of the individual Defendants, or its




                                           5
retention of Officer Lypsey caused [Sada] to suffer a false arrest or ill effect.” This

timely appeal followed.

      First, we find no merit to Sada’s claims that the arresting officers were not

entitled to qualified immunity because (1) the totality of the circumstances did not

yield probable cause or arguable probable cause that Sada’s contact with his son was

intentional and that (2) the officers were required to consider Florida’s parental

physical discipline privilege in their probable cause assessment, which should have

precluded probable cause. The qualified immunity defense “balances two important

interests -- the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officers from harassment, distraction, and liability

when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 129

S. Ct. 808, 815 (2009). To be eligible for qualified immunity, the Deputies must

demonstrate that they were acting in the scope of their discretionary authority.

O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004). “To determine whether

an official was engaged in a discretionary function, we consider whether the acts the

official undertook are of a type that fell within the employee’s job responsibilities.”

Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (quotation omitted).

      Because it is undisputed that the arresting officers acted within their

discretionary authority when they arrested Sada, the burden shifts to Sada to show

                                           6
that qualified immunity should not apply. Lewis v. City of West Palm Beach, Fla.,

561 F.3d 1288, 1291 (11th Cir. 2009). “In analyzing the applicability of qualified

immunity, the Court has at its disposal a two-step process. Traditionally, a court first

determines whether the officer’s conduct amounted to a constitutional violation.

Second, the court analyzes whether the right violated was clearly established at the

time of the violation.” Id. (citations omitted). Under Pearson, 129 S. Ct. at 818,

however, courts are no longer required to conduct the qualified immunity analysis in

this order; rather, we are “permitted to exercise [our] sound discretion” in deciding

which prong of the inquiry to address first.

      In analyzing whether a right was clearly established, we consider whether

pre-existing law at the time of the alleged acts provided fair warning to Defendants

that their actions were unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739-41

(2002). If it would be clear to any reasonable officer in the same situation that his

actions were unconstitutional, then qualified immunity is not available, but if

“officers of reasonable competence could disagree on th[e] issue, immunity should

be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court has

declared that the test of “clearly established” law cannot apply at a high level of

generality; instead, to deny qualified immunity, “the right the official is alleged to

have violated must have been ‘clearly established’ in a more particularized, and hence

                                           7
more relevant, sense.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In

applying the “clearly established” test, we turn to the precedent of the United States

Supreme Court, the precedent of this Court, and to the highest court of the relevant

state in interpreting and applying the law in similar circumstances. See Jenkins by

Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 827 n.4 (11th Cir. 1997).

      A warrantless arrest without probable cause violates the Fourth Amendment

and provides the basis for a Section 1983 claim. See Marx v. Gumbinner, 905 F.2d

1503, 1505 (11th Cir. 1990). The existence of probable cause, however, is an

absolute bar to such a claim. Id. at 1505-06. The standard for determining the

existence of probable cause is the same under both Florida and federal law. Rankin

v. Evans, 133 F.3d 1425, 1433 (11th Cir. 1998). Probable cause exists where “a

reasonable man would have believed probable cause existed had he known all of the

facts known by the officer.” Id. (quotation and brackets omitted). “[T]he subjective

belief of the arresting officer plays no role in a probable cause analysis under either

Florida or federal law.” Id. at 1434 n.11.

      In this case, the officers had probable cause to arrest Sada for battery. Under

Florida law, the crime of battery occurs when someone (1) actually and intentionally

touches or strikes another person against the will of the other; or (2) intentionally

causes bodily harm to another person. Fla. Stat. § 784.03. At the time of Sada’s

                                          8
arrest, the officers were aware of several pieces of information that suggested that he

had committed battery, including five sworn witness statements describing the contact

or Sada’s temperament. For example, one witnesses claimed Sada had threatened his

son, then angrily went after his son and “socked” him. And another swore to police

that he had responded to an incident where a father had hit his son in the face and

then thrown his cell phone across the store. Further, it is undisputed that Sada’s son

sprinted out of the Sears store after the incident. The five statements provide

overlapping accounts of what occurred in the Sears stores, effectively corroborating

each other. The only statements indicating that Sada had not committed a battery

came from Sada himself and his son, the potentially intimidated victim of the

purported battery. Sada’s claim that the district court made credibility determinations

in reaching this conclusion is baseless; even though their statements may have been

conflicting, they are not sufficient to refute the officers’ probable cause, which exists

where “a reasonable man would have believed probable cause existed had he known

all of the facts known by the officer.” Rankin, 133 F.3d at 1433 (quotation and

brackets omitted).

      Moreover, contrary to Sada’s suggestion, the officers’ failure to seek video

footage of the incident before the arrest and failure to ask a certain witness her

opinion regarding Sada’s intent does not render the investigation unreasonably

                                           9
lacking. In Rankin, officers arrested a teacher after a young student alleged she was

sexually molested by that teacher and medical evidence indicated the young girl had

been sexually molested. Id. at 1437. The plaintiff argued that the arresting officer

should have examined the area where the molestation allegedly occurred and should

have interviewed other teachers at the school. Id. Because the arresting officer

interviewed the alleged victim’s mother, her doctor, a psychologist who had been

speaking with alleged victim, and the plaintiff himself, and because of the quality of

the information, the court found the investigation reasonable. Id.2 So too here -- the

officers interviewed various witnesses, whose statements were corroborative, giving

the officers more than enough for probable cause.

       We also are unpersuaded by Appellant’s claim that the arresting officers should

have considered Florida’s parental discipline privilege in their probable cause

calculation. Florida law privileges parental battery against a child so long as the

contact is intended to be disciplinary and does not rise to the level of abuse. State v.

McDonald, 785 So. 2d 640, 647 (Fla. 2d DCA 2001). However, “drawing a line




       2
        This case is unlike City of St. Petersburg v. Austrino, 898 So. 2d 955 (Fla. 2d DCA
2004). There, the officer had relied on the statement of one witness who had no direct
knowledge of, or involvement in, the purported crime. Here, however, the officers relied on the
statements of numerous eye witnesses, there was little reason to doubt the eye witness statements,
and other statements corroborated the eye witness statements.

                                               10
between prohibited child abuse and permissible disciplinary corporal punishment is

not an easy task.” Id.

       It does not appear, however, that officers are required to consider affirmative

defenses in their probable cause calculations. Indeed, in Pickens v. Hollowell, we

found probable cause when officers sought and executed an outstanding arrest

warrant even though they were aware that there was a question as to whether the

statute of limitations barred prosecution for the offense. 59 F.3d 1203, 1207 (11th

Cir. 1995) (“Whether the statute of limitations bars a prosecution is a question of law.

The officers properly deferred legal decisions to the district attorney.”) (quotation

omitted). Similarly, in Jordan v. Mosley, we held that officers need not consider the

application of the apparent-authority affirmative defense in deciding whether to seek

an arrest warrant. 487 F.3d 1350, 1356-57 (11th Cir. 2007) (“[W]e are not convinced

-- and we need not decide -- that what must be seen as some kind of

apparent-authority defense would have provided Plaintiff with a complete defense to

the pertinent crime under Georgia law. Under the law of probable cause, no police

officer had a duty to resolve this legal question before seeking out Plaintiff’s arrest.”).

       Sada cites our unpublished decision in Williams v. Sirmons, 307 F. App’x 354

(11th Cir. 2009) (unpublished), where we held that, while “[g]enerally, in determining

probable cause an arresting officer does not have to consider the validity of any

                                            11
possible defense . . . , [a]n exception to the general rule exists . . . when the arresting

officer actually has knowledge of facts and circumstances conclusively establishing

an affirmative defense.” Id. at 359. In Sirmons, we concluded that the officers there

did not have probable cause to arrest the plaintiff for eluding police officers in her car

because the officers, knowing that the plaintiff was pregnant, bleeding, and in

distress, should have known that the affirmative defenses of necessity or duress

would have precluded criminal liability. Id.

       But even if we assume that officers are required to consider affirmative

defenses in their probable cause calculations, the application of Florida’s parental

discipline privilege was not sufficiently established in this case. As the record shows,

based on the eye witnesses’ accounts of the altercation, in which one eye witness

communicated that Sada had “socked” his son, prevented the conclusiveness of the

parental physical discipline privilege. And in any event, given the absence of binding

precedent holding that affirmative defenses must be considered in a probable cause

determination, we cannot say that the law regarding affirmative defenses was so

clearly established as to have provided fair warning to the Defendants that their

actions were unconstitutional. See Hope, 536 U.S. at 739-41. Thus, the district court

did not err in holding that the possible application of Florida’s parental discipline

privilege did not preclude probable cause as a matter of law.

                                            12
      Finally, because the officers had probable cause to arrest Sada for battery, the

district court did not err in granting summary judgment on Sada’s federal

constitutional claims and state law false arrest/false imprisonment claims. See

Rankin, 133 F.3d at 1435 (stating that probable cause constitutes an absolute bar to

both state and §1983 claims alleging false arrest); Dahl v. Holley, 312 F.3d 1228,

1236 (11th Cir. 2002) (“[T]he existence of probable cause to arrest Dahl defeats her

First Amendment claim.”). In addition, because any contact with Sada, and any

injury therefrom, was incidental to a lawful arrest, the district court did not err in

granting summary judgment on Sada’s battery and intentional infliction of emotional

distress claims. See Fla. Stat. § 768.28(9)(a) (providing immunity for officers in tort

unless they “acted in bad faith or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights, safety, or property.”); Von Stein v.

Brescher, 904 F.2d 572, 584 (11th Cir. 1990) (“[T]he conduct is privileged and the

actor is never liable where he does no more than insist upon his legal rights in a

permissible way, even though the actor is well aware that such insistence is sure to

cause emotional distress.”).     Further, because Sada was not deprived of any

constitutional or statutory rights, the City is not municipally liable for claims of

negligence for any insufficient training under §1983. City of Los Angeles v. Heller,

475 U.S. 796, 799 (holding that if a person has suffered no constitutional injury at the

                                          13
hands of the individual police officer, the fact that the departmental regulations might

have authorized a constitutional deprivation is immaterial). And lastly, because there

was probable cause to arrest for battery, the district court properly concluded that the

question of whether there was probable cause to arrest for disorderly conduct is moot.

See Lee v. Ferraro, 284 F.3d 1188, 1195-96 (11th Cir. 2002) (holding that when an

arrest is properly supported by probable cause as to any offense, neither the officer’s

subjective reliance on an offense for which no probable cause exists nor his verbal

announcement of the wrong offense vitiates the arrest). Accordingly, we affirm.3

       AFFIRMED.




       3
         Nevertheless, the Defendants-Appellees’ motion for recovery of damages, double costs
and attorneys’ fees for frivolous appeal is DENIED.

                                              14
