            Case: 14-10447   Date Filed: 07/07/2014    Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10447
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:12-cv-00325-MW-EMT

BRIAN MEAD,

                                                Plaintiff - Appellee,

versus

FRANK MCKEITHEN, et al.,

                                                Defendants,

DOUG PIERCE,

                                                Defendant - Appellant.

                       ________________________

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

                               (July 7, 2014)

Before PRYOR, MARTIN, and COX, Circuit Judges.

PER CURIAM:
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                                        I. Introduction

       On September 7, 2009, Brian Mead pulled into the driveway of his home

and was immediately accosted by off-duty sheriff’s deputy Doug Pierce. Pierce

identified himself as a law enforcement officer but wore no uniform and could

produce no identification supporting his claim. On top of his inability to produce

identification, it is undisputed that Pierce smelled of alcohol when he confronted

Mead. Consequently, when Pierce forcibly grabbed Mead and attempted to subdue

him, a struggle ensued and Mead pulled away from Pierce, escaping his grasp.

Pierce later represented to on-duty deputies who arrived at Mead’s home that Mead

had assaulted him. The on-duty deputies arrested Mead for assault on a law

enforcement officer.

       Mead then filed the present suit against Pierce and others. 1 The claim

against Pierce is that Pierce caused Mead to be seized in violation of the Fourth

Amendment.         Pierce moved for summary judgment, asserting a defense of

qualified immunity.        The district court denied Pierce’s motion for summary

judgment, saying that “the facts are very much in dispute as to what occurred




1
 Mead sued his neighbors, Kenneth and Tara Bibbs, and the Bay County Sherriff, Frank
McKeithen. The disposition of the case as to these defendants is not relevant to this appeal.

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between Mead and Pierce” and that Pierce was not entitled to qualified immunity.

(Doc. 85 at 3). Pierce appeals. We affirm.

                                      II. Facts

      The parties dispute the facts in this case. But the basic facts are well-known

to both parties.    Mead and the Bibbs are neighbors.         But they had limited

interaction prior to the incident giving rise to this suit. On September 7, 2009, the

Bibbs’ boston terrier escaped from their yard and encountered Mead’s two pit

bulls. The pit bulls killed the Bibbs’ dog. In response, Kenneth Bibbs, an off-duty

sheriff’s deputy, shot and killed the two pit bulls with his shotgun—continuing to

shoot the dogs even after it was apparent they were dead. After Kenneth finished

shooting the dogs, Tara Bibbs, his wife, emptied her handgun into the dogs as well.

In the wake of all these gunshots, Pierce, also an off-duty sheriff’s deputy, left his

own home down the street and walked to the Bibbs’ house. When he arrived, he

found the three dead dogs and the Bibbs.

      Shortly after Pierce arrived, Mead pulled into his own driveway next door to

the Bibbs’ house.      When Mead stepped out of his truck, Pierce immediately

approached him. Pierce was wearing civilian clothes with no indication of his law

enforcement status. Pierce forcibly grabbed Mead. Either immediately before or

simultaneously with grabbing Mead, Pierce identified himself as a law

enforcement officer.     Despite Mead’s repeated request for Pierce to produce
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identification confirming his status as a law enforcement officer, Pierce did not

produce any such identification because he did not have any on him. Pierce had

been drinking before arriving at the Bibbs’ house, and his breath smelled of

alcohol. When Pierce failed to produce any law enforcement identification, Mead

pulled away from Pierce and ran to the other side of his truck. Pierce then struck

Mead in the back of the head, knocking Mead to the ground. It is undisputed that

Mead did not ball up his fists or make any threatening gestures towards Pierce. 2

Pierce then retreated to the street to await the arrival of uniformed officers. Pierce

discussed the incident with the uniformed officers and filled out a probable cause

affidavit to arrest Mead for assault on a law enforcement officer—a charge on

which a uniformed officer then arrested Mead.

                       III. Issue on Appeal and Standard of Review

          The sole issue on appeal is whether the district court properly denied Pierce

qualified immunity. (Appellant’s Initial Br. at 2). We review a district court’s

denial of qualified immunity de novo, viewing the facts in the light most favorable

to the nonmoving party. Waldrop v. Evans, 871 F.2d 1030, 1032 (11th Cir. 1989).



                                 IV. Contention of the Parties


2
    Pierce conceded this fact for purposes of summary judgment. (Doc. 58 at 4 n.2).

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      Pierce contends that the district court erred by failing to find that he had

probable cause, or at least arguable probable cause, to arrest Mead for “some”

offense—even if it was not the offense for which Mead was actually arrested.

(Appellant’s Initial Br. at 7,8).

      Mead, on the other hand, contends that the district court correctly declined to

grant Pierce qualified immunity because there was not probable cause to arrest

Mead. And, Mead contends that qualified immunity on the basis that he could

have been arrested on a lesser charge is only available for a good-faith mistake by

Pierce.   Finally, Mead contends that arguable probable cause is not a lesser

standard as Pierce contends, but simply goes to whether a law was clearly

established at the time of the arrest—which is an objective standard.

                                      V. Discussion

      To determine whether an officer is entitled to qualified immunity, we engage

in a two-step analysis. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808,

818 (2009). First, we ask whether the facts alleged by a plaintiff show a violation

of a constitutional right.    Id.    Second, we ask whether the right was clearly

established at the time of an officer’s alleged misconduct. Id. A court may

exercise its sound discretion in determining which step of the analysis it should

first address. Id.

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      We first address the constitutional prong. Mead contends that Pierce caused

his arrest in violation of his Fourth Amendment right to be free from an

unreasonable seizure. An arrest of a person constitutes a seizure. Skop v. City of

Atlanta, GA, 485 F.3d 1130, 1137 (11th Cir. 2007). And a seizure by arrest is

“reasonable” only if probable cause exists. Kingsland v. City of Miami, 382 F.3d

1220, 1226 (11th Cir. 2004).      Probable cause exists when “law enforcement

officials have facts and circumstances within their knowledge sufficient to warrant

a reasonable belief that the suspect had committed or was committing a crime.”

United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). We determine

whether probable cause existed by looking at the totality of the circumstances. See

Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998).

      It is difficult to discern the basis for Mead’s Fourth Amendment claim from

the complaint in this case. (See Doc. 1-1). Count III (the relevant count) is part of

a “shotgun pleading” of the kind we have criticized for many years. See, e.g.,

Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117 (11th Cir. 2013). In this single

count—Count III—Mead asserts claims against Pierce, Sheriff McKeithen,

Kenneth Bibbs, and Bibb’s wife, Tara Bibbs.

      Count III does not allege that Pierce falsified an affidavit that resulted in

Mead’s arrest. But Pierce does not argue on appeal that this falsified affidavit was


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not the basis of Mead’s Fourth Amendment claim in Count III. And, the district

court and the parties litigated this case based upon a falsified affidavit. Our court

has encountered this issue before. “Pursuant to Fed. R. Civ. P. 15(b), ‘[w]hen

issues not raised by the pleadings are tried by express or implied consent of the

parties, they shall be treated in all respects as if they had been raised in the

pleadings.’ Although Rule 15 uses the word ‘tried,’ we accept Rule 15(b) as a

guide—by way of analogy, at the appellate level—for cases never tried, but

litigated on motions.” Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1023 n.4 (11th

Cir. 2001) (en banc), abrogated on other grounds by Bell Atl. Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955 (2007). In Marsh, we said that even though it was

clear from the face of the plaintiff’s complaint that she had not stated a claim

against a local sheriff in her individual capacity, we said that “we accept this case

and will decide this case as one in which the complaint purports to sue the Sheriff

in both her official and individual capacities. The reason is that, in the district

court, the parties and the district judge clearly litigated the case in that way.” Id.

We review this case as it was actually litigated by the parties before the district

court; thus, we need not consider whether count III in Mead’s complaint actually

states a claim because the parties and the district court assumed that it did.




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      Here, it is clear that viewing the facts in the light most favorable to the non-

moving party—Mead—there was not probable cause to arrest Mead for assault on

a law enforcement officer. See Fla. Stat. § 784.07 (2009). The fact that Pierce did

not actually make the arrest is irrelevant since we have held that where falsified

evidence provided by an officer is necessary to substantiate the probable cause for

a plaintiff’s arrest, that officer can be held liable. See Kingsland, 382 F.3d at 1232

(11th Cir. 2004) (citations omitted). And here, Pierce’s affidavit was necessary to

establish probable cause for Mead’s arrest since it was the only evidence

suggesting to the uniformed officers that Mead had in any way threatened Pierce.

      Even if probable cause did not exist to arrest Mead, Pierce does not

automatically lose qualified immunity. Instead, we next examine whether the law

regarding what constituted probable cause was clearly established at the time of

Mead’s arrest. “In wrongful arrest cases, we have frequently framed the ‘clearly

established’ prong as an ‘arguable probable cause’ inquiry. In other words, we

have said that when an officer violates the Constitution because he lacked probable

cause to make an arrest, the officer’s conduct may still be insulated under the

second prong of qualified immunity if he had ‘arguable probable cause’ to make

the arrest.” See Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009). In other

words, would it “be clear to a reasonable officer this conduct was unlawful in the


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situation he confronted”? Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151,

2156 (2001).

      Again, viewing the facts in the light most favorable to Mead, it is clear that

Pierce’s conduct has long been prohibited. Falsifying facts to establish probable

cause is clearly unconstitutional and has been “clearly established” long before

Mead’s arrest. Kingsland, 382 F.3d at 1232 (11th Cir. 2004).

      Lastly, we agree with the district court’s analysis that even if probable cause

existed for Pierce to cause Mead to be arrested for “some” offense, even if not for

the offense actually charged, Pierce is not entitled to qualified immunity. The

district court’s opinion properly analyzes and rejects this argument.       (District

Court’s Opinion, Doc. 85 at 8–9).

                                     VI. Conclusion

      Accordingly, we agree with the district court that Pierce has not

demonstrated entitlement to qualified immunity.

      AFFIRMED.




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