                                                      [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 06-11208                   SEPT 27, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                        ________________________               CLERK


                    D. C. Docket No. 04-20707-CV-CMA

BENTLEY KILLMON,
JARED ALDRIDGE,
PAUL BAME,
STEFANO BLOCH,
STEVEN DIAMOND, et al.,

                                                           Plaintiffs-Appellees,

     versus

THE CITY OF MIAMI, A municipal entity, et al.,

                                                                   Defendants,

M. NEILLY, Officer,
N. MANDERA, Broward Sheriff's Office,
LLOYD BINGHAM,

                                                        Defendants-Appellants.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                            (September 27, 2006)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Three officers of the Broward County Sheriff, Manfreth Neilly, Nancy

Mandera, and Lloyd Bingham (the Officers), appeal the denial of their motion to

dismiss based on qualified immunity. Bentley Killmon, Caleb Selman, and

Lawrence Winawer (the Protesters) complain that they were wrongfully arrested by

the Officers, without probable cause, in violation of the Fourth Amendment. We

affirm.

                                I. BACKGROUND

      We take as true the factual allegations of the third amended complaint. In

late November 2003, Killmon, Selman, and Winawer traveled to Miami to protest

the economic policies of Free Trade Area of the Americas, the member countries

of which were meeting in Miami. On November 20, they participated in a lawful,

permitted rally and march organized by the AFL-CIO. Law enforcement officials

had prohibited all chartered buses from picking up their passengers at the

amphitheater where the march ended.

      After completing the march, Protester Bentley Killmon, a 71-year old retiree

and Korean war veteran, and Protester Caleb Selman, a student at Florida State

University, attempted to find their buses for the return trip home. Protester



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Lawrence Winawer, an employee of the association of retirees to which Killmon

belonged, accompanied Killmon. Killmon and Winawer asked a lieutenant from

the Miami-Dade Police Department in which direction they should disperse and

were told to proceed down a set of railroad tracks.

      After following the lieutenant’s instructions, the Protesters were arrested.

When they were arrested, Killmon, Selman, and Winawer were more than a mile

from the amphitheater, walking peacefully in a group of 15 to 20 people. A

contingent of police officers from the Broward Sheriff’s Office commanded by

Captain John Brooks stopped the group and arbitrarily arrested some of its

members while letting others go free.

      For two of the three arrests, the charges were dropped. Killmon was arrested

by Officer Neilly and charged with engaging in an unlawful assembly, but all

charges against him were dismissed at his initial bond hearing. Selman was

arrested by Officer Bingham and pleaded no contest to a misdemeanor after being

told that if he had no money for bail, he could be held in jail for up to three weeks.

Winawer was arrested by Officer Mandera and charged with disorderly conduct,

which was reduced to a charge of failure to obey before being dismissed nolle

prosequi.

      The Protesters, along with several other Plaintiffs allegedly subjected to



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warrantless misdemeanor arrests, filed a complaint against numerous municipal

entities, public officials, and law enforcement officers. The district court denied

the Officers’ motion to dismiss based on the defense of qualified immunity. The

district court rejected the argument of the Officers that probable cause existed

because the Protesters were trespassing upon the railroad tracks in violation of

Florida Statute section 810.09. It held that two of the elements of trespassing

under section 810.09–entering the property willfully and doing so despite notice

against entering–did not exist under the facts alleged in the complaint. The court

also rejected the argument that the Officers had probable cause because they were

following orders. It stated that this Court has been generally hostile to the

“following orders” defense and noted that we have credited the defense only when

there were independent reasons the officer could have believed a search or seizure

was reasonable.

                           II. STANDARD OF REVIEW

      An order denying a motion to dismiss is reviewed de novo, “accepting the

factual allegations in the complaint as true and drawing all reasonable inferences in

the plaintiff’s favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11 th Cir. 2003).

                                 III. DISCUSSION

      Two issues are presented for our consideration: whether we have jurisdiction



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to review the district court’s denial of the motion to dismiss based on qualified

immunity, and, if so, whether the district court correctly denied the motion to

dismiss. We answer both questions in the affirmative. Each issue is discussed in

turn.

               A. This Court Has Jurisdiction To Review the Denial of
                the Officers’ Qualified Immunity Defense Because the
                         Denial Turns on a Question of Law.

        To overcome a defense of qualified immunity, a plaintiff must establish that

the defendant violated a constitutional right that was clearly established when the

violation occurred. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156

(2001). Whether a complaint alleges a violation of a clearly established right is a

question of law. Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th

Cir. 1997); Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793 (1991). To

the extent that “a district court’s denial of a claim of qualified immunity...turns on

an issue of law, [that denial] is an appealable ‘final decision’ within the meaning of

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

Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985). We have jurisdiction to

review a denial of qualified immunity that turns on whether the complaint alleges a

violation of a clearly established right.

        The Protesters’ argument that we lack jurisdiction fails. We have



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jurisdiction over this appeal, because the denial of the Officers’ defense of

qualified immunity turns on whether the complaint of the Protesters alleges a

violation of a clearly established right. The complaint alleges that the Officers

were ordered by their commander to arrest the Protesters who were walking

peacefully on the railroad tracks as instructed by other police officers. The

Officers argue that these allegations require a finding of probable cause, and the

Protesters respond that the complaint adequately alleges an arrest without probable

cause. The dispute then does not turn on the sufficiency of the evidence, which

would foreclose our jurisdiction, Koch v. Rugg, 221 F.3d 1283, 1296 (11th Cir.

2000); instead, this appeal turns on whether the facts alleged in the complaint

establish that the Protesters were arrested without probable cause.

                 B. The District Court Properly Denied the Officers’
                           Defense of Qualified Immunity.

      The evaluation of a defense of qualified immunity involves three steps. A

public official who asserts a defense of qualified immunity “must first prove that

he was acting within the scope of his discretionary authority when the wrongful

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

then shifts to the plaintiffs, who must establish that the defendants’ conduct

violated the Constitution. Hope v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508,

2513 (2002). In the final step, the plaintiffs must establish that the constitutional

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right was clearly established when the violation occurred. Saucier v. Katz, 533

U.S. at 201. This appeal turns on the second step.

      The Officers do not dispute that it was clearly established, under the Fourth

Amendment, that the arrests of the Protesters had to be supported by probable

cause. The dispute is whether the relevant level of probable cause existed. A

police officer charged with unlawful arrest is entitled to qualified immunity if there

was arguable probable cause to make the arrest. Durruthy v. Pastor, 351 F.3d

1080, 1089 (11th Cir. 2003). “Arguable probable cause exists when an officer

reasonably could have believed that probable cause existed, in light of the

information the officer possessed.” Id. (internal quote omitted). The Officers

argue that they had arguable probable cause, and the Protesters deny it. We must

resolve that dispute by reviewing the allegations of the complaint.

      Taking its allegations as true, the complaint establishes that the Protesters

were arrested without arguable probable cause. Killmon, Selman, and Winawer

were arrested hours after and more than a mile away from where the march had

ended. The complaint alleges that neither the arresting officers nor Captain Brooks

saw the Protesters violate any law.

      The Officers make two arguments about the existence of arguable probable

cause, but both arguments fail. First, they assert that they were following orders,



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and that the “fellow-officer” rule, Fla. Stat. Ann. § 901.18, allows an officer to rely

on the probable cause determination of another. They argue that it was reasonable

for the Officers to assume that their commanding officer, Captain Brooks, had

probable cause to order the arrest of the Protesters.

       The problem with this first argument is that the Officers were with Captain

Brooks the entire time. They saw what he saw. When an officer is present with a

fellow officer and both observe the same course of events, it is unreasonable for an

officer to rely upon the fellow-officer rule to determine that probable cause exists.

      Florida courts apply the fellow-officer rule when the arresting officer was

absent for a significant portion of the events that gave rise to probable cause. See,

e.g., Voorhees v. State, 699 So.2d 602 (Fla. 1997); State v. Boatman, 901 So.2d

222 205 (Fla. 2d DCA 2005); Huebner v. State, 731 So.2d 40 (Fla. 4th DCA

1999); State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990). It is reasonable for

an officer in that situation to rely upon his fellow officer’s judgment about

probable cause. The rule typically requires that the fellow officer actually

communicate to the arresting officer the basis for probable cause. See Voorhees,

699 So.2d at 609 (“The fellow officer rule allows an arresting officer to assume

probable cause to arrest a suspect from information supplied by other officers.”

(emphasis added)). When the arresting officer observed the same events as his



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fellow officer, the fellow-officer rule does not apply. As the district court

acknowledged and we have explained, “the ‘just following orders’ defense has not

occupied a respected position in our jurisprudence, and officers in such cases may

be held liable under § 1983 if there is a ‘reason why any of them should question

the validity of that order.’” O’Rourke v. Hayes, 378 F.3d 1201, 1210 n.5 (11th

Cir. 2004).

      Second, the Officers argue that, because walking on railroad tracks is a

criminal trespass under Florida law, arguable probable cause existed to arrest the

Protesters. This argument also fails. As the district court explained, the complaint

alleges the absence of at least one element of the offense of trespass as defined by

Florida law–that a person “willfully enter[] upon or remain[] in any property other

than a structure or conveyance.” Fla. Stat. Ann. § 810.09(1)(a). The Protesters

allege that they were directed, even “herded,” onto the railroad tracks by police

officers. They also allege that the law enforcement operation that day was highly

coordinated. It is reasonable to infer that the Officers and their commander were

aware that the dispersing protesters had been directed onto the railroad tracks by

other police officers, which means that the Officers should have known that the

Protesters were not on the tracks willfully. The complaint adequately alleges that

the Protesters were arrested in violation of their clearly established Fourth



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Amendment rights.

      We do not address the argument of the Officers, which is raised for the first

time on appeal, in a footnote of their initial brief, that Selman is barred from

complaining about the absence of probable cause for his arrest, because he pleaded

no contest to his misdemeanor charge. See generally Heck v. Humphrey, 512 U.S.

477, 114 S. Ct. 2364 (1994). Ordinarily we will not address an argument that was

not raised in the district court. Ochran v. United States, 117 F.3d 495, 502 (11th

Cir. 1997). This issue is best addressed, in the first instance, by the district court.

                                 IV. CONCLUSION

      The denial of the Officers’ motion to dismiss is

      AFFIRMED.




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