                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-12637         ELEVENTH CIRCUIT
                                                      MAR 16, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                         CLERK

                 D.C. Docket No. 07-00955-CV-T-33-TBM

SCOTT R. RUSHING,

                                                     Plaintiff-Appellant,

                                  versus

SEAN R. PARKER, as Personal Representative
of the Estate of Ernest R. Mincey,
DAVID LAST,

                                                     Defendants-Appellees.

                       ________________________

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

                             (March 16, 2010)

Before BIRCH, HULL and COX, Circuit Judges.

PER CURIAM:
      Defendants Ernest R. Mincey and David Last, officers at the Polk County

Sheriff’s Office, misidentified and arrested Plaintiff Scott R. Rushing. The victim of

a crime, Richard Wickman, reported to the Sheriff’s office that a roofer he hired to

repair hurricane damage to his roof had victimized him. The Plaintiff was arrested

after an investigation. However, the state attorney’s office later dropped the charges

after it determined that the Plaintiff was misidentified and was not the perpetrator.

      The Plaintiff sued the Defendants, alleging that his false arrest violated his civil

rights under 42 U.S.C. § 1983. The district court granted the Defendants’ motion for

summary judgment based on the doctrine of qualified immunity. The Plaintiff

appeals the district court’s order. In sum, Rushing contends that the district court

erred in granting the Defendants’ summary judgment motion because the Defendants’

investigation of the Plaintiff was deficient, and therefore the Defendants are not

entitled to receive qualified immunity.

      Section 1983 provides individuals with a federal remedy for the deprivation of

rights protected by the U.S. Constitution. Von Stein v. Brescher, 904 F.2d 572, 578

(11th Cir. 1990). Law enforcement violates a person’s Fourth Amendment rights

when it arrests him or her without probable cause, and a claim arises under § 1983.

Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). Probable cause is

present “when law enforcement officials have facts and circumstances within their

                                           2
knowledge sufficient to warrant a reasonable belief that the suspect had committed

. . . a crime.” United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992)

(citation omitted). The “existence of probable cause at the time of arrest constitutes

an absolute bar to a section 1983 action for false arrest.” Case v. Eslinger, 555 F.3d

1317, 1326-27 (11th Cir. 2009) (quotations and citation omitted).

       Related to probable cause in this context is the issue of qualified immunity.

See Von Stein, 904 F.2d at 578. “[Q]ualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, ___ U.S. ___ , 129 S. Ct. 808, 815 (2009) (quotations

and citation omitted). In order to receive qualified immunity, a government official

must first demonstrate that he was engaged in a “discretionary function” when he

committed the alleged violations. Holloman ex rel. Holloman v. Harland, 370 F.3d

1252, 1263-64 (11th Cir. 2004). Assuming the government official demonstrates that

he was acting within his discretionary function, the plaintiff then bears the burden to

overcome qualified immunity. Case, 555 F.3d at 1325. In order to defeat the

government official’s qualified immunity defense, the plaintiff must prove that (1) the

official “violated her federal constitutional or statutory rights, and (2) that those rights




                                             3
were clearly established at the time the officer acted.” Douglas Asphalt Co. v. Qore,

Inc., 541 F.3d 1269, 1273 (11th Cir. 2008).

      “In determining whether qualified immunity exists, the issue is not probable

cause in fact but arguable probable cause.” Von Stein, 904 F.2d at 579 (quotations

and citations omitted); see also Case, 555 F.3d at 1327. A defendant need only

demonstrate that arguable probable cause existed in order to be protected by qualified

immunity. Savaiko, 117 F.3d at 1324; see also Kingsland v. City of Miami, 382 F.3d

1220, 1232 (11th Cir. 2004) (noting that “officers who make an arrest without

probable cause are entitled to qualified immunity if there was arguable probable cause

for the arrest.”); see also Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir.

1997). “Arguable probable cause exists where reasonable officers in the same

circumstances and possessing the same knowledge as the Defendant could have

believed that probable cause existed to arrest.” Case, 555 F.3d at 1327 (quotations

and citations omitted).

      With these principles in mind, the question before this court is whether

reasonable law enforcement officials “in the same circumstances and possessing the

same knowledge as [the Defendants] could have believed that probable cause existed

to arrest [the] Plaintiff.” (R.1-48 at 18, quoting Von Stein, 904 F.2d at 579.) We

answer this question in the affirmative.

                                           4
        “The essence of qualified immunity analysis is the public official’s objective

reasonableness, regardless of his underlying intent or motivation.” Kingsland, 382

F.3d at 1231 (citation omitted). “The standard is an objective one, and therefore does

not include an inquiry in the officers’ subjective intent or beliefs.” Von Stein, 904

F.2d at 579 (citations omitted). In fact, the Defendants’ “subjective beliefs about the

matter, however induced, are actually irrelevant to the inquiry.” Sevigny v. Dicksey,

846 F.2d 953, 957 n.5 (4th Cir. 1988) (quotations and citation omitted). Although the

district court set forth the correct objective standard,1 it seemed to venture into an

analysis involving the Defendants’ states of mind.2 Nevertheless, the district court’s

look into the subjective intents of the Defendants does not alter our view that the

Defendants had at least arguable probable cause to arrest. See Case, 555 F.3d at

1327.

                                                   I.

        In Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir. 1993), officers

arrested a restaurant owner for allegedly violating the maximum occupancy code in

his restaurant. The officers counted people in excess of the restaurant’s maximum

        1
         The district court wrote: “[t]he Court is to apply an objective standard to determine whether
any officer could have found probable cause under the totality of the circumstances.” (R.1-48 at 11.)
        2
        For example, the district court wrote, “[i]n this case, Plaintiff has presented no evidence that
Mincey’s actions in failing to pursue certain leads was purposeful or that Mincey’s intent was to
conduct a biased investigation.” (R.1-48 at 16.)

                                                   5
capacity (twenty-two). However, there were less than twenty-two people in the

restaurant; so, there was actually no violation. The owner sued for false arrest, among

other claims. The officials put forth a qualified immunity defense. This court, in

affirming qualified immunity to the officers, wrote, “[h]ere, the issue is not whether

the [officers’] head counts were, in fact, correct; . . . [instead, t]he issue material to

qualified immunity is whether a reasonable officer in [the officers’] place–that is, in

these circumstances–could have believed that more than 22 customers were present.”

Id. at 1558.

      In Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), Joe Rodriguez, the

plaintiff, alleged that officers violated his constitutional rights by arresting him

pursuant to a warrant for the actual perpetrator who also used the name “Joe

Rodriguez.” Id. at 1343. The plaintiff and the other individual had many similar

physical features. Nevertheless, they had several distinguishing features, including,

most prominently, a difference in height: the plaintiff was 5'11", whereas the actual

perpetrator was 5'6". We held, “in the context of this case, a mistaken estimate of no

more than five inches does not equal a constitutional violation.” Id. at 1348.

      We agree with the Plaintiff that Rodriguez is not directly controlling to our

facts because that case “concerned the officer’s on-the-scene decision to arrest

someone he mistakenly thought was the subject of an active, valid warrant, while

                                            6
Mincey and Last had many months to determine the true identity of the perpetrator

of the crime, and objective exculpatory evidence.” (Appellant’s Reply Br. at 1.)

However, it is nevertheless accurate that “the principles set forth in Rodriguez still

apply to the case at bar in that the reasonableness of the officers’ decisions with

respect to probable cause must be viewed in light of the totality of the circumstances

surrounding the arrest.” (Appellee’s Br. at 29-30.)

      Despite the fact that the officers in Rodriguez “were in the field [and] not in a

police station,” Rodriguez, 280 F.3d at 1348, officers were given constructive notice

that they may be arresting the wrong person because of the height difference between

the plaintiff and the actual perpetrator. Similarly, in Cannon v. Macon County, 1 F.3d

1558 (11th Cir. 1993), modified, 15 F.3d 1022 (11th Cir. 1994), the court found that

the officer acted with indifference and was not entitled to qualified immunity. There,

the officer was on notice that the plaintiff may not be the perpetrator because the

plaintiff repeatedly maintained it was a case of mistaken identity and the description

from the fugitive report did “not accurately describe the plaintiff.” Id. at 1560.

                                          II.

      In contrast to Rodriguez and Cannon, where officers had some indication that

they may be arresting the wrong person, here “there is no proof that Mincey had

doubts as to Rushing’s identity when he completed the affidavit to obtain a warrant.”

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(R.1-48 at 14.) Just as we held in Post that “a ‘mistaken but reasonable count’ was

sufficient for [ ] agents to establish arguable probable cause,” Kingsland, 382 F.3d

at 1233 (quoting Post, 7 F.3d at 1558), we believe that Mincey’s arrest affidavit,

although mistaken, was such that “reasonable officers in the same circumstances and

possessing the same knowledge as the Defendant[s’ knowledge] could have believed

that probable cause existed to arrest.” Case, 555 F.3d at 1327 (quotations and

citations omitted). Mincey’s conduct here is the type that qualified immunity is

meant to protect: “a reasonable mistake in the legitimate performance of [an officer’s]

duties.” Kingsland, 382 F.3d at 1233.

      An analogy to the case at hand can also be drawn from Post. There, we held

that the defendants had arguable probable cause to arrest the restaurant owner, despite

the fact that the exonerating evidence was right before their eyes–officers simply had

to correctly count the number of patrons at the restaurant. They could have counted

more carefully, and conferred with management in order to find out which individuals

were employees (and therefore should not have been counted). Nevertheless, we

found that their mistake was reasonable even though the exonerating evidence was

in front of them. Drawing from similar reasoning, while Mincey could have

conducted a more thorough investigation by using the perpetrator’s address and

phone number from the roofing contract in order to confirm his identity, it was

                                          8
reasonable for him to assume that the Plaintiff was the perpetrator. After the victim

filed his complaint, Mincey took “appropriate steps to investigate the claim by

interviewing [the victim] and [requesting] a fingerprint report regarding the prints on

the back of the check produced by [the victim].” (R.1-48 at 14-15.) The victim

admitted that he filed his complaint against Scott Rushing instead of J. Scott Rushing,

and that he believed the name of the perpetrator was Scott Rushing. In addition,

Mincey (1) obtained evidence that Scott Rushing d/b/a Roofing by Rushing was not

a licenced contractor in Florida; (2) obtained arrest records for Scott Rushing; and (3)

had the victim identify Rushing from a photo line-up. Mincey had no reason to

believe that the Plaintiff was not indeed the perpetrator, especially in light of the fact

that the victim filed the complaint against “Scott Rushing” and identified the Plaintiff

as the perpetrator in the photo line-up. Throughout the investigation, the victim never

expressed doubt that the Plaintiff was the perpetrator.

      The fingerprint analysis appears to have provided proof that the Plaintiff was

not the perpetrator. The analysis was complete on June 2, 2005–after Mincey

completed the arrest affidavit. Although the individual who performed the analysis

said the information was sent to Mincey “around June 2nd,” the Plaintiff has

produced no evidence which establishes the date on which Mincey received it. In

fact, there is no evidence regarding whether Mincey actually received the analysis at

                                            9
all; he went on medical leave on June 21, 2005 and “the Certification of Health Care

Provider submitted by Mincey reflected that he was suffering from ‘severe underlying

lung disease requiring oxygen’ (emphysema) that commenced on June 3, 2005.”

(R.1-48 at 17-18.)

       Although by no means perfect, Mincey’s investigation was not “plainly

incompetent.” Kingsland, 382 F.3d at 1231 (quotations and citation omitted). Nor

did the Plaintiff produce evidence that Mincey “knowingly violated the law.” Id.

(quotations and citation omitted). There is no evidence that Mincey had reason to

believe the perpetrator was anyone other than the Plaintiff, given the victim’s

complaint and identification. Most importantly, we believe that a reasonable officer

in Mincey’s situation could have followed a similar course of action and believed that

probable cause existed. In order to “defeat summary judgment because of a dispute

of material fact, a plaintiff facing qualified immunity must produce evidence that

would allow a fact-finder to find that no reasonable person in the defendant’s position

could have thought the facts were such that they justified the defendant’s acts.” Post,

7 F.3d at 1557. The Plaintiff has not met his burden. Accordingly, we find that

Mincey had, at minimum, arguable probable cause to issue the arrest affidavit of the

Plaintiff.

                                         III.

                                          10
      We also believe that Last acted reasonably given his limited involvement in the

investigation. In January 2006, the state attorney’s office contacted Last and “told

him that the investigation had been completed, that there was already a charge based

on the affidavit, and that all they needed was a photo-pack identification from the

victim.” (R.1-48 at 20.) It is true that the fingerprint analysis, which may have

exonerated the plaintiff, was in the nineteen-page file when Last conducted the photo-

pack identification. However, Last’s failure to conduct a review of all evidence in

the case was not unreasonable. Other reasonable officers could have followed the

same course of action as Last. See Case, 555 F.3d at 1327. We agree with the district

court that the Plaintiff has not shown a reason for Last to have questioned the

thoroughness of the previous investigation. (R.1-48 at 21.) Nor has the Plaintiff

shown any reason for Last “to believe that [the victim’s] identification of Plaintiff

was unreliable.” Id. If we were to determine that the district court erred by granting

summary judgment for Last, an unwanted and inefficient precedent would be created,

requiring officers, no matter how minimal their involvement in the case, to second

guess the previous work of officers, and to conduct overlapping and inefficient

investigations. Accordingly, this court agrees with the district court that, given Last’s

limited involvement in the case, he acted as a reasonable officer would in securing

the identification of the Plaintiff by the victim, despite his failure to review the

                                           11
Plaintiff’s file that was assembled by Mincey. The trial court correctly granted the

Defendants’ summary judgment motion.

      AFFIRMED.




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