                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

FLORIDA FISH AND WILDLIFE            NOT FINAL UNTIL TIME EXPIRES TO
CONSERVATION COMMISSION              FILE MOTION FOR REHEARING AND
and BENJAMIN G. JOHNSON,             DISPOSITION THEREOF IF FILED
individually,
                                     CASE NO. 1D15-1406
      Petitioners,

v.

TIMOTHY JEFFREY,

      Respondent.

___________________________/

Opinion filed October 15, 2015.

Petition for Writ of Certiorari.

Pamela Jo Bondi, Attorney General, and Antony D. Constantini, Assistant Attorney
General, Tallahassee, for Petitioner Florida Fish and Wildlife Conservation
Commission.

Heath R. Stokley and Kerry A. Parsons of Nabors, Giblin & Nickerson, P.A.,
Tallahassee, and Edward A. Dion, Nabors, Giblin & Nickerson, P.A., Ft.
Lauderdale, for Petitioner Benjamin G. Johnson.

Marie A. Mattox and Lisa Lambert of Marie A. Mattox, P.A., Tallahassee, for
Respondent.



WETHERELL, J.

      The Florida Fish and Wildlife Conservation Commission (FWCC) and FWCC

officer Benjamin Johnson petition for certiorari review of the order denying their
motions for summary judgment based on sovereign immunity and qualified immunity,

respectively. We dismiss FWCC’s petition because it failed to establish the irreparable

harm necessary to obtain certiorari review, but we grant Officer Johnson’s petition in

part and quash the challenged order insofar as it denied him qualified immunity from

the false arrest claim asserted by Respondent under 42 U.S.C. § 1983.

                      I. Factual and Procedural Background

      This case stems from a dropped cup. Although there is conflicting evidence as

to what kind of cup it was 1 and how it was dropped, 2 it is undisputed that Respondent

dropped the cup on the side of a road; that Officer Johnson told him several times to

pick it up; and that Respondent refused to pick up the cup, cursed at Officer Johnson,

and walked away. It is also undisputed that when Officer Johnson attempted to grab

Respondent’s arm to stop him from walking away so he could issue him a citation for

littering, Respondent pushed Officer Johnson’s hand away and started fighting with

him. Respondent claimed that he did not know that Officer Johnson was a law

enforcement officer because he is blind and Officer Johnson did not identify himself as




1
  Respondent testified in his deposition that the cup was a styrofoam coffee cup from
McDonald’s, whereas Officer Johnson testified that the cup was “a red cup, white
inside, plastic cup.”
2
  Respondent testified in his deposition that he accidentally dropped the cup when he
slipped and fell as he was walking along the road and that he was unable to find the
cup when the wind blew it away because he is blind. By contrast, Officer Johnson
testified in his deposition that Respondent intentionally “flung [the cup] to the curb of
the road” as he was walking.
                                           2
an officer until the physical altercation was well underway. 3 Respondent was arrested

and charged with battery on a law enforcement officer and resisting an officer with

violence, but the criminal charges were subsequently nol prossed.

      After the criminal charges were dropped, Respondent filed suit against FWCC

and Officer Johnson, asserting common law claims for negligence (against FWCC),

battery (against FWCC and Officer Johnson), false arrest (against FWCC and Officer

Johnson), malicious prosecution (against Officer Johnson), and intentional infliction of

emotional distress (against Officer Johnson). The suit also included a § 1983 claim

against Officer Johnson alleging two separate Fourth Amendment violations: false

arrest and excessive use of force. FWCC and Officer Johnson asserted various

defenses in their answers, including sovereign immunity and qualified immunity,

respectively.

      FWCC and Officer Johnson filed motions for summary judgment. FWCC

asserted that it was entitled to judgment as a matter of law on the battery and false

arrest claims based on the facts asserted by Respondent in his deposition, and it argued

that the denial of its motion would be “a denial of sovereign immunity.” Officer

Johnson asserted that he was entitled to qualified immunity from the § 1983 claims and

that the other claims against him failed as a matter of law.



3
  Although Officer Johnson testified in his deposition that he identified himself as a
law enforcement officer when he first told Respondent to pick up the cup (and several
times thereafter), we present the facts as the trial court was required to view them: in
                                            3
      The trial court held a hearing on the motions for summary judgment, and at the

conclusion of the hearing, the court orally granted the motions. 4 However, before the

court memorialized its ruling in a written order, Respondent filed a motion for

reconsideration in which he argued that summary judgment should be denied because

there was a factual dispute as to whether Officer Johnson identified himself as a law



the light most favorable to Respondent.
4
  The trial court explained its ruling as follows:

             [U]nder the circumstances here, there was probable cause to
             do that initial stop, to inquire with [Respondent] regarding
             why he left that cup on the side of the road. [Respondent]
             admitted he left the cup on the side of the road. His only
             beef is he could not go back and pick it up.

             The law enforcement officer had the ability to stop and
             inquire and investigate . . . whether there was a basis for that
             action and whether it could be remedied or whether it
             should be sanctioned by the civil . . . infraction. Once that
             stop occurs, [Respondent]’s actions create a scenario that
             resulted in actions by the law enforcement officer
             responding to [Respondent] which the law enforcement
             officer acted completely reasonable in protecting himself
             and [Respondent], frankly. Because if [Respondent] is
             getting into a fight on the side of the road with a law
             enforcement officer, there's the potential for somebody
             stumbling into the road and getting into a much worse
             injury than would ever result from a fight.

             The facts are that this law enforcement officer in looking at
             the facts through his eyes as stated by [Respondent] in his
             own deposition . . . is that the law enforcement officer had
             probable cause for his actions and did, in fact, act
             appropriately when confronted with the threat resulting
             from the physical altercation that was arising.
                                            4
enforcement officer before he attempted to detain Respondent as required by section

901.17, Florida Statutes. 5 The trial court treated the motion as supplemental argument

in opposition to the motions for summary judgment, and after a hearing, the court

entered an order denying the motions for summary judgment. The order stated in

pertinent part:

             Defendant Johnson had the right to take action to stop
             [Respondent] and cite him for littering. However, he was
             required to do so in a manner which was consistent with the
             law, including the requirement that he identify himself as a
             law enforcement officer prior to initiating a physical
             detention of a potential defendant. The undisputed facts do
             not establish that Defendant Johnson acted within those
             parameters, and his failure to do so may ultimately be
             determined to have caused damage to [Respondent].

             Summary Judgment is not appropriate because of the
             presence of disputed issues of fact which must be resolved
             at trial.

      FWCC appealed the order to this court and Officer Johnson filed a notice of

joinder in the appeal. Respondent filed a motion to dismiss the appeal in which he

argued that the order was not appealable under Florida Rules of Appellate Procedure

9.130(a)(3)(C)(vii) and (xi) because the immunity claims asserted in the motions for

summary judgment were not denied “as a matter of law.” After considering the

responses filed by FWCC and Officer Johnson, we converted the appeal to a certiorari




5
   This statute provides: “A peace officer making an arrest without a warrant shall
inform the person to be arrested of the officer’s authority and the cause of arrest except
                                            5
proceeding. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the

case shall be treated as if the proper remedy had been sought . . . .”). FWCC and

Officer Johnson thereafter filed separate petitions for writ of certiorari seeking review

of the trial court’s order denying their motions for summary judgment.

                                     II. Analysis

      “Certiorari is the proper remedy, in limited circumstances, to review a non-final

order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130.”

AVCO Corp. v. Neff, 30 So. 3d 597, 601 (Fla. 1st DCA 2010). However, certiorari is

“an extraordinary remedy and should not be used to circumvent the interlocutory

appeal rule which authorizes appeal from only a few types of non-final orders.”

Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987).

      To obtain a writ of certiorari, the petitioner must establish “(1) a departure from

the essential requirements of the law, (2) resulting in material injury for the remainder

of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood

Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v.

Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)); see also Keck v. Eminisor, 104 So.

3d 359, 364 (Fla. 2012). The latter two elements – which are often collectively

referred to as “irreparable harm” – are jurisdictional and must be considered first. See

Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); Elms v. Castle Constructors Co.,



when the person flees or forcibly resists before the officer has an opportunity to inform
                                            6
109 So. 3d 1274, 1275 (Fla. 1st DCA 2013); Parkway Bank v. Ft. Myers Armature

Works, Inc., 658 So. 2d 646, 648-49 (Fla. 2d DCA 1995).

                                A. Irreparable Harm

      The mistaken denial of a motion for summary judgment asserting qualified

immunity – whether based on a determination of law or an erroneous belief that

material issues of fact preclude summary judgment on the issue – results in irreparable

harm because qualified immunity is an immunity from suit that is effectively lost if a

case is erroneously permitted to go to trial. See Stephens v. Geoghegan, 702 So. 2d

517, 525 (Fla. 2d DCA 1997) (explaining that the gravity of a mistaken denial of

immunity from suit is the same irrespective of the ground on which the denial was

based); see also Tucker v. Resha, 648 So. 2d 1187, 1189 (Fla. 1994) (explaining that

“an order denying qualified immunity is effectively unreviewable on appeal from a

final judgment as the public official cannot be re-immunized if erroneously required to

stand trial or face the other burdens of litigation”) (citation and internal quotations

omitted). Accordingly, because the challenged order in this case denied Officer

Johnson’s claim of qualified immunity, he has established the jurisdictional

prerequisite of irreparable harm necessary to obtain review of the order. However, as

discussed below, Officer Johnson’s entitlement to relief from the order depends on

whether the order departs from the essential requirements of law.



the person or when giving the information will imperil the arrest.”
                                        7
      By contrast, any harm resulting from the erroneous denial of FWCC’s motion

for summary judgment is not irreparable because, by virtue of the waiver of sovereign

immunity in section 768.28, Florida Statutes, FWCC has only limited immunity from

the liability that may result from Respondent’s suit, not immunity from the suit itself.

See Dep’t of Educ. v. Roe, 679 So. 2d 756, 759 (Fla. 1996) (explaining that “forcing

the state to wait until a final judgment before appealing the issue of sovereign

immunity does not present the same concerns that exist in the area of qualified

immunity” because “although the state will have to bear the expense of continuing the

litigation, the benefit of immunity from liability, should the state ultimately prevail on

the sovereign immunity issue, will not be lost simply because review must wait until

after final judgment”); Stephens, 702 So. 2d at 527 (dismissing certiorari petition

challenging denial of immunity claim by officers sued in their official capacity because

such a suit was actually a suit against the municipality that employed the officers and

“[t]he material harm, irreparable on postjudgment appeal, that impelled us to exercise

our certiorari jurisdiction with regard to the individual defendants . . . is simply not

present in a suit against a municipality”). Absent irreparable harm, we lack certiorari

jurisdiction to review the order denying FWCC’s motion for summary judgment and

we must dismiss its petition for writ of certiorari. See Elms, 109 So. 3d at 1276 n.*

(citing Bared & Co. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996)).




                                            8
      In reaching this conclusion, we have not overlooked the decision in O’Brien v.

Esposito, 824 So. 2d 954 (Fla. 3d DCA 2002), relied on by FWCC. However, that

case is distinguishable. First, the trial court in O’Brien “deferred ruling” on the

defendant’s immunity claim, id. at 955, whereas the trial court in this case expressly

denied the motion for summary judgment in which FWCC asserted its claim of

sovereign immunity. Second, the immunity claim on which the trial court deferred

ruling in O’Brien was a claim of qualified immunity by an individual, id., not a claim

of sovereign immunity by an agency as is the case with FWCC’s claim.

              B. Departure from the Essential Requirements of Law

       As the Second District explained in Stephens,

             when a public official moves for summary judgment on the
             ground that he or she enjoys immunity from suit arising
             under either state or federal law, and the record conclusively
             demonstrates that the public official is entitled to immunity,
             it is a departure from the essential requirements of law to
             deny it.

702 So. 2d at 525. However, “when a court denies summary judgment in the face of

disputed issues of material fact, it commits no legal error, let alone a departure from

the essential requirements of law.” Id. at 525 n.4 (“In those instances, the denial of

immunity prior to trial is unavoidable and irremediable.”); see also Ondrey v.

Patterson, 884 So. 2d 50, 55 (Fla. 2d DCA 2004) (denying certiorari petition because

there was a genuine issue of material fact regarding correctional officer’s entitlement to

qualified immunity from § 1983 suit alleging a violation of prisoner’s rights under the

                                            9
Eighth Amendment); Butler v. Dowling, 750 So. 2d 674 (Fla. 4th DCA 1999) (denying

certiorari petition because, under the arrestee’s version of the facts, police officer was

not entitled to qualified immunity from excessive use of force claim under § 1983).

Accordingly, Officer Johnson’s entitlement to relief in this case turns on whether the

record conclusively establishes that he is entitled to qualified immunity from the false

arrest and excessive use of force claims asserted by Respondent under § 1983.

      A law enforcement officer is entitled to qualified immunity from a false arrest

claim under § 1983 if the evidence establishes that the officer had probable cause to

make the arrest. See Vermette v. Ludwig, 707 So. 2d 742, 746 (Fla. 2d DCA 1997)

(“An arrest without probable cause violates the Fourth Amendment and establishes a

cause of action under § 1983. On the other hand, the existence of probable cause is an

absolute bar to a § 1983 claim.”) (citation omitted). A law enforcement officer is

entitled to qualified immunity from an excessive use of force claim under § 1983 if the

evidence establishes that the officer’s actions “are ‘objectively reasonable’ in light of

the facts and circumstances confronting them, without regard to their underlying intent

or motivation.” Brown ex rel. Brown v. Jenne, 122 So. 3d 881, 885 (Fla. 4th DCA

2012) (quoting Graham v. Conner, 490 U.S. 386, 397 (1989)).

       Here, as the trial court initially ruled (see note 4, supra), the material undisputed

facts establish that Officer Johnson had probable cause to arrest Respondent for

resisting an officer with violence because Officer Johnson was lawfully in the process


                                            10
of attempting to detain Respondent so he could issue him a citation for littering when

Respondent pushed Officer Johnson’s hand away and fought with him. The fact that

the criminal charges against Respondent were later dropped has no bearing on the

question of whether Officer Johnson had probable cause to arrest Respondent. See

Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 668 (Fla. 3d DCA 2012); Fla. Game &

Freshwater Fish Comm’n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996).

Accordingly, because Officer Johnson had probable cause to arrest Respondent, he was

entitled to qualified immunity from the false arrest claim asserted by Respondent under

§ 1983, and the trial court departed from the essential requirements of law in denying

his motion for summary judgment on that claim.

      In reaching this conclusion, we have not overlooked the trial court’s

determination that there are disputed issues of fact concerning Officer Johnson’s

compliance with section 901.17, Florida Statutes. However, we agree with Officer

Johnson that the trial court’s reliance on that statute is misplaced. First, the plain

language of the statute only requires the officer to identify himself as a law

enforcement officer prior to making an “arrest” and, here, Officer Johnson was only

attempting to detain Respondent in order to issue him a civil citation for littering when,

according to Respondent, he failed to identify himself as a law enforcement officer.

Second, it is undisputed that Officer Johnson identified himself as a law enforcement

officer during the physical altercation that occurred prior to, and was the grounds for,


                                           11
Respondent’s arrest. Third, an officer’s failure to comply with section 901.17 does not

render the arrest illegal; it is merely a fact the jury can consider in the defendant’s

criminal case in evaluating the reasonableness of the defendant’s actions. See Albury

v. State, 910 So. 2d 930, 933 (Fla. 2d DCA 2005).

      Unlike the false arrest claim, there are disputed issues of fact as to what

precisely occurred during the physical altercation between Respondent and Officer

Johnson – including when and how many times Respondent was pepper sprayed – that

preclude us from determining as a matter of law that the force used by Officer Johnson

in effectuating Respondent’s arrest was objectively reasonable under the

circumstances. For example, Respondent testified in his deposition that Officer

Johnson “sucker punched” him at the outset of the altercation and that the altercation

had effectively ended before he was pepper sprayed the first time, whereas Officer

Johnson testified in his deposition that he did not punch Respondent and that

Respondent was actively resisting arrest each time that he was pepper sprayed.

Because of these factual disputes, the trial court did not depart from the essential

requirements of law in denying Officer Johnson’s motion for summary judgment on

the excessive use of force claim under § 1983.

                                   III. Conclusion

      For the reasons stated above, we grant Officer Johnson’s petition for writ of

certiorari in part and quash the trial court’s order insofar as it denied his motion for


                                          12
summary judgment on the false arrest claim under § 1983, but we deny Officer’s

Johnson’s petition in all other respects. And, because any harm resulting from the

denial of FWCC’s motion for summary judgment asserting sovereign immunity can be

remedied on post-judgment appeal, we dismiss FWCC’s petition for writ of certiorari.

      GRANTED in part; DENIED in part; DISMISSED in part.

LEWIS and MAKAR, JJ., CONCUR




                                        13
