                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 12-10224         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 27, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 2:10-cv-14348-DLG

ANDREW JOYCE,
RAQUEL CASTIEL,
TIARA FALK,
KATHERINE SAUCIER,

llllllllllllllllllllllllllllllllllllllll                      Plaintiffs - Appellees,

                                              versus

SHERIFF ROBERT CROWDER,

lllllllllllllllllllllllllllllllllllllllll                     Defendant,

SGT. JASON WARD,
OFFICER, MCSO R. ROMERO,
DET. CONRAD,

llllllllllllllllllllllllllllllllllllllll                      Defendants - Appellants.

                                     ________________________

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

                                            (June 27, 2012)
Before CARNES, HULL, and MARTIN, Circuit Judges.

PER CURIAM:

      Officers of the Martin County Sheriff’s Office Chris Conrad, Ruben

Romero, and Jason Ward (collectively, “the arresting officers”) appeal a district

court order denying them qualified immunity from 42 U.S.C. § 1983 claims

against them alleging First and Fourth Amendment violations as well as a state

law claim for false arrest. At a January 2009 protest, the officers arrested eleven

environmental activists, four of whom are plaintiffs in this case, and charged them

with trespassing. The plaintiffs allege that there was no probable cause for their

arrest because they had no notice that they were trespassing on private property.

The district court concluded that the arresting officers did not see for themselves

anything that could have put the plaintiffs on notice that they were trespassing.

For that reason, the court held that the arresting officers lacked arguable probable

cause to arrest the plaintiffs and thus were not entitled to qualified immunity.

                                          I.

      About 25 to 40 protestors demonstrated against Florida Power & Light’s

“pollution and contamination” of the Barley Barber Swamp, and the sheriff’s




                                          2
office sent at least 23 deputies to the demonstration.1 During the demonstration,

11 protestors swam across a publicly owned canal to its west side and congregated

there. The canal appeared to be at least a few yards wide. A sheriff’s captain

ordered Sergeant Daniel Cunningham to go to the west side of the canal in his

patrol car “just to stand by to see what was going on.”

       On the west side of the canal there was a cleared, grassy area that had a

heavily wooded, uncultivated brush just a few feet behind it. The owner of the

land behind the west side of the canal was the Camayen Cattle Company. No

signs, posts, or fences denoting the company’s ownership were visible from the

east side of the canal where the officers were stationed.

       The protestors eventually left the canal bank and entered the brush on the

west side of the canal. Due to the thickness of the brush, from the perspective of

the officers on the east side of the canal, some of the protestors occasionally were

not visible with the naked eye (or, at times, with the aid of a telephoto lens).2 No



       1
         In our de novo review of an interlocutory appeal from the denial of qualified immunity,
we “accept[] the plaintiff’s version of the facts and then answer[] the legal question of whether
the defendants are entitled to qualified immunity under that version of the facts.” Kjellsen v.
Mills, 517 F.3d 1232, 1236 (11th Cir. 2008). The arresting officers’ version of events are
discussed insofar as they are necessary to understand the district court’s summary judgment order
and the unresolved factual determinations in this case.
       2
         The plaintiffs provided the district court with a video from the January 2009 protest shot
by a sheriff’s detective, illustrating these details.

                                                 3
person warned the protestors that they were entering private property. When the

sheriff’s captain saw that they had entered the brush, he had another officer

contact the owner of the land about pressing trespassing charges against the

protestors. Around or at the same time, Sergeant Cunningham reached the west

side of the canal in his patrol car, got out, and entered the brush on foot, but at an

unspecified location. Traveling west, he crossed over a barbed wire fence to enter

the company’s property, and while there he noticed “multiple individuals walking

around.” He then crossed back over that barbed wire fence to head east toward the

canal, again at an unspecified location. There, he met with a co-owner of the

property. The co-owner told Cunningham that he wanted the protestors charged

with trespassing on his property. Before the arrests were made, Cunningham told

the arresting officers that the protestors were on the west side of the fence, on the

Camayen Cattle Company property.3

       The sheriff’s captain then ordered the arresting officers to arrest those

protestors for trespassing.4 After the protestors swam east back across the canal,




       3
          The record is unclear how he communicated that information, but the arresting officers
assert that they heard it over the police radio.
       4
        The record suggests that the captain’s order to arrest the protestors for trespassing was
based on Sergeant Cunningham’s report.

                                                 4
the arresting officers followed their captain’s order and arrested them.5

       The plaintiffs then filed a § 1983 complaint against the sheriff, in his

official capacity, and the arresting officers, in their individual capacities, alleging

a number of claims, including violations of their rights under the First and Fourth

Amendments and a state law claim for false arrest. The plaintiffs asserted that the

officers arrested them to stop their protest against Florida Power & Light and to

dissuade future protestors.6

       Both sides filed motions for summary judgment. The arresting officers

argued, among other things, that they were entitled to qualified immunity because,

at the time of the arrest, they had arguable probable cause to arrest the protestors

for trespassing. Although they did not witness the trespass, they argued that they

relied on observations of their fellow officer, Sergeant Cunningham. The arresting

officers submitted copies of the original arrest affidavits that charged the plaintiffs

with trespass. One of those affidavits stated that Cunningham had “observed that

all eleven individuals had accessed the property described as belonging to the



       5
        The state attorney’s office later dismissed the charges against the protestors because it
“could not prove that [the protestors] actually trespassed on Cattle Company property.”
       6
          During discovery the plaintiffs learned that the arresting officers had all been previously
paid by Florida Power & Light to provide private security detail, and the sheriff’s office had sent
at least one undercover officer to a meeting of an environmental group that was planning the
January 2009 protest.

                                                  5
[Camayen] Cattle Company and had arrived on the west side of the

aforementioned barbed-wire fence.” The arresting officers also submitted

Cunningham’s incident report. His report stated:

      I drove my patrol car around to the west bank of the canal where the
      individuals entered the woods. Upon arrival I walked up to and had to
      cross a barb[ed] wire fence to enter [the Camayen] Cattle Company
      Property. While on [Camayen] Cattle Company property I observed
      multiple individuals walking around.

      The plaintiffs responded that the arresting officers were not entitled to

qualified immunity because any belief that they had that probable cause existed

was eviscerated by their own observations or lack thereof. From the east side

of the canal, the arresting officers saw no fence. The plaintiffs also provided

sworn declarations and deposition testimony that they themselves had neither

crossed nor seen a fence on the Camayen Cattle Company property. The

arresting officers replied that barbed wire fence Cunningham saw was within

the tree line of the brush and therefore not visible from the east side of the

canal where they were. They also included a photograph showing what they

argued was that fence, but it was not clear where the photograph was taken,

when, or whether the fence in the photograph existed in January 2009. So,

there was a dispute in the evidence about whether there was a fence and

whether the plaintiffs crossed it, but there was no dispute in the evidence that

                                         6
Cunningham, who was not named as a defendant in the present case, did tell

the arresting officers that there was a fence and the protestors were on the

private property side of it.

      The district court first addressed whether actual probable cause existed

for the plaintiffs’ trespassing arrest. It held that there was a genuine issue of

material fact about whether Sergeant Cunningham had told the arresting

officers that the plaintiffs had crossed a barbed wire fence to enter the Camayen

Cattle Company property. According to the court, Cunningham’s incident

report stated only that he crossed a fence and then observed several individuals

walking around, not that he saw the protestors cross a fence. The district court

thought that: “[a] reasonable juror could find that the disparity between

Sergeant Cunningham’s written report and the statements attributed to him [by

the arresting officers] support Plaintiffs’ allegations [of officer bias and

intimidation through a fabricated arrest]. Alternately, a juror could conclude

the discrepancy was merely an oversight.”

      The district court then considered whether the arresting officers had

reasonably believed at the time of the arrest that probable cause existed, which

would entitle them to qualified immunity. It held that regardless of what

Sergeant Cunningham told them, the arresting officers lacked arguable

                                         7
probable cause at the time of the arrest because they did not personally see any

fence or postings from the east side of the canal and they were not aware of

anything else that had alerted the plaintiffs that they were on private property.

The district court ruled that the arresting officers were not entitled to qualified

immunity.

      The district court then denied the plaintiffs’ motion for partial summary

judgment and granted, in part, the arresting officers’ and the sheriff’s motions

for summary judgment on other grounds for some other claims, but left

standing the state law false arrest claim and the § 1983 First and Fourth

Amendment violation claims against the arresting officers. The arresting

officers filed an interlocutory appeal with this Court challenging the district

court’s denial of qualified immunity.

                                        II.

      We have jurisdiction over an interlocutory appeal of a denial of qualified

immunity “to the extent that it involves issues of law rather than challenges to

the sufficiency of the evidence.” Kirkland ex rel. Jones v. Greene Cnty. Bd. of

Educ., 347 F.3d 903, 904 (11th Cir. 2003); accord Ortiz v. Jordan, —U.S.—,

—, 131 S.Ct. 884, 891 (2011) (“We clarified in Johnson v. Jones, 515 U.S. 304,

115 S.Ct. 2151 (1995), that immediate appeal from the denial of summary

                                         8
judgment on a qualified immunity plea is available when the appeal presents a

‘purely legal issue’ . . . .” (citation omitted)); Cottrell v. Caldwell, 85 F.3d

1480, 1485 (11th Cir. 1996) (“Accordingly, under Johnson, we lack

interlocutory appellate jurisdiction over the denial of summary judgment on

qualified immunity grounds where the sole issues on appeal are issues of

evidentiary sufficiency. However, as clarified by Behrens[ v. Pelletier, 516

U.S. 299, 116 S.Ct. 834 (1996)], Johnson does not affect our interlocutory

jurisdiction in qualified immunity cases where the denial is based even in part

on a disputed issue of law.”). Moreover, the “Jones decision did not affect this

Court’s authority to decide, in the course of deciding the interlocutory appeal,

those evidentiary sufficiency issues that are part and parcel of the core

qualified immunity issues, i.e., the legal issues.” Cottrell, 85 F.3d at 1486.

                                         III.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities as long as their conduct violates no clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012). “In

order to receive qualified immunity, the public official must first prove that he

was acting within the scope of his discretionary authority when the allegedly

                                          9
wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(quotation marks omitted). In this case, it is not disputed that the arresting

officers were acting within their discretionary authority.

      Under our precedent, arrests made without “arguable probable cause”

violate clearly established constitutional rights. Skop v. City of Atlanta, Ga.,

485 F.3d 1130, 1143 (11th Cir. 2007). However, “[q]ualified immunity applies

when there was arguable probable cause for an arrest even if actual probable

cause did not exist.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir.

2004). “Arguable probable cause exists if, under all of the facts and

circumstances, an officer reasonably could—not necessarily would—have

believed that probable cause was present.” Id. “Whether an officer possesses

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

operative fact pattern. Showing arguable probable cause does not, however,

require proving every element of a crime.” Grider v. City of Auburn, Ala., 618

F.3d 1240, 1257 (11th Cir. 2010) (citations omitted). “[I]t 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.” Id.

      “[T]o convict for violating [Florida’s trespassing] statute, the State must

                                        10
prove four elements: (1) the defendant willfully entered or remained on

property; (2) other than a structure or conveyance; (3) without being

authorized, licensed, or invited; (4) when notice against entering or remaining

had been given to the defendant.” K.M.B. v. State, 69 So. 3d 311, 314 (Fla. 4th

Dist. Ct. App. 2011). In Florida, “[a] law enforcement officer may not make a

warrantless arrest for a misdemeanor, such as this trespass, unless every

element of the crime is committed in his presence.” Smith v. State, 778 So. 2d

329, 330 (Fla. 2d Dist. Ct. App. 2000). However, “both the United States

Supreme Court and the Florida Supreme Court have allowed the collective

knowledge of the investigating officers to be imputed to each participating

officer.” Terrell v. Smith, 668 F.3d 1244, 1252 (11th Cir. 2012) (noting the

“fellow officer rule”).

      In the present case, notice is the only contested issue for arguable

probable cause purposes on the qualified immunity question. Under Florida

law, “notice . . . is given[] either by actual communication to the offender or by

posting, fencing, or cultivation as described in [Florida Statutes] . . . .” Fla.

Stat. § 810.09(1)(a)(1) (emphasis added). The district court found that no

arguable probable cause existed for the plaintiffs’ arrest because regardless of

what, if anything, Sergeant Cunningham told the arresting officers about the

                                         11
protestors crossing a barbed wire fence on the west side of the canal, the

arresting officers “acknowledge that they did not see any fence, signs, or

postings nor hear any warnings [from the east side of the canal] notifying [the]

Plaintiffs that they were entering private property.” Relying on Kingsland v.

City of Miami, 382 F.3d 1220 (11th Cir. 2004), the district court stated “[a]n

officer may not establish arguable probable cause by selectively ignoring facts

that are readily available.” In sum, the district court found that unless the

arresting officers could see from the east side of the canal a fence on the west

side of the canal they could not have reasonably believed that the plaintiffs

crossed a fence (and thus received notice) before entering private property

without permission.

      But the inability to see a barbed wire fence through a heavily wooded

brush is not selectively ignoring facts. And there is no dispute that the

protestors entered that heavily wooded brush where they were, at times, not

visible from the east side of the canal. And it was within that heavily wooded

brush that Sergeant Cunningham reported to the arresting officers that he had

seen a barbed wire fence. Therefore, the fact that the arresting officers could

not see a barbed wire fence from their vantage point did not establish that they

could not reasonably have believed that Cunningham had seen a barbed wire

                                        12
fence from his vantage point on the west side of the canal. And the arresting

officers were not under any obligation to drive (or swim) to the other side of

the canal to verify what Cunningham told them. See Kingsland, 382 F.3d at

1229 (“We recognize . . . that a police officer is not required to explore and

eliminate every theoretically plausible claim of innocence before making an

arrest.”).

       For these reasons, if Sergeant Cunningham told the arresting officers that

he had seen the plaintiffs on the private property side of a barbed wire fence,

the arresting officers would not have lacked arguable probable cause to arrest

the plaintiffs simply because they could not see the fence through the brush on

the west side of the canal. The district court noted that the arresting officers

asserted that Cunningham had told them the plaintiffs crossed a fence, while

Cunningham’s later written report did not mention that the protestors had

crossed the fence, only that he had.

       These two accounts, however, do not conflict. One of the arresting

officer’s sworn arrest affidavits stated that “Cunningham was present . . . and

observed that all eleven individuals . . . had arrived on the west side of the




                                        13
aforementioned barbed-wire [sic] fence.”7 Cunningham’s report stated that he

crossed a fence to gain access to the Camayen Cattle Company property and

that “[w]hile on [Camayen] Cattle Company property[,] I observed multiple

individuals walking around.” (Emphasis added.) This report indicates that the

protestors, like Cunningham, were on the Camayen Cattle Company property

side of the fence. He did not have to see the protestors actually cross the fence

to see that they were on the western, or private property, side of it. Thus,

Cunningham’s report does not conflict with nor contradict the arresting

officers’ statement.

       There was a genuine dispute of material fact about whether the plaintiffs

crossed a fence—the plaintiffs introduced affidavits saying they did not—but

there was no dispute in the evidence that Cunningham told the arresting

officers that he saw the plaintiffs on the private property side of the fence. No

one disputes that the arresting officers were told that. That fact establishes at

least arguable probable cause for the arresting officers to believe that the

protestors who swam across the canal from the east crossed the fence that was

west of the canal and that marked private property.



       7
         And the sheriff’s captain testified at deposition that Cunningham provided the arresting
officers with the “information . . . to establish probable cause” before the protestors’ arrest.

                                             14
      The arresting officers therefore had arguable probable cause to arrest the

plaintiffs for trespassing. The arresting officers are entitled to qualified

immunity. The district court’s decision is REVERSED, and we REMAND to

the district court to enter a judgment in favor of the arresting officers on the

plaintiffs’ claims.




                                         15
