                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                FILED
                                                                   U.S. COURT OF APPEALS
                                            No. 11-13908             ELEVENTH CIRCUIT
                                        Non-Argument Calendar            APRIL 25, 2012
                                      ________________________            JOHN LEY
                                                                           CLERK
                                 D.C. Docket No. 1:10-cv-20998-JAL



CAROLYN BAILEY,
TRAVIS BAILEY,

llllllllllllllllllllllllllllllllllllllll                         Plaintiffs - Appellees,

                                              versus

CITY OF MIAMI BEACH, et al.,

llllllllllllllllllllllllllllllllllllllll                         Defendants,

OFFICER JOSE REINA,
Individually,
OFFICER DIMITRI GOTSIS,
Individually,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellants.

                                      ________________________

                            Appeal from the United States District Court
                                for the Southern District of Florida
                                  ________________________
                                         (April 25, 2012)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
     Police officers Dimitri Gotsis and Jose Reina appeal the district court’s

denial of their motion for summary judgment on two civil rights claims filed

against them by Travis Bailey and his mother, Carolyn Bailey. The officers argue

that they are entitled to summary judgment based on qualified immunity.

                                         I.

      Travis and Carolyn Bailey traveled to Miami, Florida, for vacation. After

checking in to a hotel, Ms. Bailey went to the room and her son went for a walk.

During Travis Bailey’s walk, Miami Police Officer Alexander Torres stopped him

and asked him about his identity, where he was from, and where he was staying.

During the stop, Officer Torres received notice over the radio that Travis Bailey

had an outstanding traffic warrant in North Carolina. Travis Bailey got scared and

ran away.

      Officer Torres called for backup, and several officers searched for Travis

Bailey by using his driver’s license and a hotel room key card that he left behind

when he fled. After an hour of searching, the officers went to the hotel where

Travis Bailey was staying with his mother. The hotel clerk confirmed that the key

was for room 603, which was registered to a guest named “Bailey.” Officers

Wayne Holbrook, Dimitri Gotsis, and Jose Reina then went to that room. Officer

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Gotsis also brought his police dog.1

       The officers knocked on the door to room 603, announced themselves as

police, and requested entry. Ms. Bailey opened the door with its chain still secured

and looked out to confirm who was there. Without incident or delay, Ms. Bailey

closed the door, removed the chain, and opened the door. The officers told her that

they were looking for Travis Bailey and asked where he was. Ms. Bailey raised

her hands and said “Duh” because her son was standing next to the bed, wearing

only his underwear, with his hands raised in surrender. Officers Reina and

Holbrook then rushed toward Travis Bailey and put him in handcuffs. One of the

officers screamed “Get that F’ing bitch out of this room now,” and Ms. Bailey was

pushed into the hallway.

       Officers Reina and Holbrook then beat Travis Bailey with a police baton for

two to three minutes, striking him fifteen times in the head, back, thighs, and legs.

Officer Gotsis stood inside the room the entire time, watching the beating and

holding his police dog. Although he had a clear and unobstructed view of the

entire incident, Officer Gotsis never told Officers Reina and Holbrook to stop,


       1
         The parties dispute what happened next, but when reviewing the denial of a motion for
summary judgment based on qualified immunity, “we make no credibility determinations or
choose between conflicting testimony, but instead accept [plaintiffs’] version of the facts
drawing all justifiable inferences in [their] favor.” Burnette v. Taylor, 533 F.3d 1325, 1330
(11th Cir. 2008).

                                               3
never attempted to physically stop them, and never used his radio to request

assistance.

      The three officers eventually removed Travis Bailey from the room and put

him in a police car. They then returned to the room and arrested Ms. Bailey for

obstruction of justice and resisting an officer without violence. The charges

against Ms. Bailey were later dropped.

                                          II.

      Ms. Bailey and her son filed suit against Officers Holbrook, Reina, Torres,

Gotsis, and the City of Miami Beach, making various civil rights claims under 42

U.S.C. § 1983, a common law claim of battery, and a common law claim of false

arrest. The officers moved for partial summary judgment on most of the claims on

the basis of qualified immunity, though they conceded only for summary judgment

purposes that there was sufficient evidence to establish that Officers Holbrook and

Reina used excessive force when arresting Travis Bailey. The district court

granted the summary judgment motion on some of the claims, but denied it with

respect to (1) Travis Bailey’s claim against Officer Dimitri Gotsis for failure to

intervene during the beating; and (2) Ms. Bailey’s claim against Officer Jose Reina

for unlawful arrest. The court reasoned that summary judgment was inappropriate

for those two claims because the evidence, when construed in the light most


                                          4
favorable to Ms. Bailey and her son, could establish that the officers violated

clearly established constitutional rights. The officers then filed this interlocutory

appeal.

                                          III.

      “We review de novo the denial of a motion for summary judgment based on

qualified immunity.” Roberts v. Spielman, 643 F.3d 899, 902 (11th Cir. 2011).

“Summary judgment is appropriate when the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

      The doctrine of qualified immunity shields from civil liability police officers

and other government officials performing discretionary functions “insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known” at the time of the alleged

misconduct. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738

(1982). To determine whether the doctrine applies, we consider “(1) if the facts,

construed in the light most favorable to the plaintiff, show that a constitutional

right has been violated; and (2) whether the right violated was clearly established.”

Roberts, 643 F.3d at 904 (quotation marks and alteration omitted). “[W]e are free


                                           5
to consider these elements in either sequence . . . .” Youmans v. Gagnon, 626 F.3d

557, 562 (11th Cir. 2010) (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct.

808, 818 (2009)).

                                          A.

      Officer Gotsis argues that he is entitled to qualified immunity on Travis

Bailey’s failure to intervene claim because he did not have a reasonable

opportunity to stop Officers Holbrook and Reina from using excessive force. It is

clearly established in this Circuit “that an officer who is present at the scene and

who fails to take reasonable steps to protect the victim of another officer’s use of

excessive force, can be held liable for his nonfeasance.” Velazquez v. City of

Hialeah, 484 F.3d 1340, 1341–42 (11th Cir. 2007) (quotation marks omitted).

“But it must also be true that the non-intervening officer was in a position to

intervene yet failed to do so.” Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir.

2008).

      The facts of this case are similar to the facts in Priester v. City of Riviera

Beach, Florida, 208 F.3d 919 (11th Cir. 2000). There, two officers chased a

burglary suspect to a canal, where the suspect surrendered, lying down on the

ground. Id. at 923. Even though the suspect had fully complied with the officers’

commands, one of the officers ordered his police dog to attack the suspect. Id. at

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923–24. The second officer watched the incident from the top of the canal and did

nothing to stop the attack. Id. at 925. When the arrestee brought suit against the

second officer for failing to intervene, we held that the officer was not entitled to

qualified immunity because “the dog’s attack on Plaintiff may have lasted as long

as two minutes . . . [, which] was long enough for a reasonable jury to conclude

that [the officer] had time to intervene and to order [the first officer] to restrain the

dog.” Id. at 925 (emphasis in original). The officer violated the arrestee’s clearly

established rights by watching “the entire event” while “in voice contact” with the

first officer and doing nothing to stop the dog attack. Id.

      The same thing happened here, except it is alleged that officers directly,

instead of indirectly through a police dog, did the attacking. Officer Gotsis

watched for two to three minutes as Officers Holbrook and Reina attacked Travis

Bailey, violating his constitutional rights. Just like the second officer in Priester,

Officer Gotsis “observed the entire attack and had the time and ability to intervene,

but he did nothing.” Id. at 927. Officer Gotsis was “in voice contact” with the

other officers and had plenty of time to order them to stop the attack, but he instead

chose to stand by and watch them hit Travis Bailey with a baton fifteen times. “No

particularized case law was necessary for a reasonable police officer to know that,




                                            7
on the facts of this case and given that the duty to intervene was clearly

established, he should have intervened.” Id.

        Officer Gotsis argues, however, that he had no reasonable opportunity to

intervene because he was too occupied controlling his agitated police dog.

Viewing the evidence in the light most favorable to Travis Bailey, however,

Officer Gotsis was able to do something to stop the alleged beating, even if he also

had to restrain his dog. The beating lasted for two to three minutes. Controlling

the dog may have prevented Officer Gotsis from physically stopping the attack, but

he could have demanded that the other two officers stop or, viewing the evidence

in the light most favorable to the plaintiff, he could have used his radio to call for

help. At the very least, Officer Gotsis’ claim that he could do nothing because he

was holding the dog creates a dispute of material fact that should be resolved by a

jury.

                                           B.

        We now turn to Officer Reina’s argument that the district court should have

granted summary judgment in his favor on Ms. Bailey’s wrongful arrest claim

because he had arguable probable cause to make the arrest. It is clearly established

that “an arrest without probable cause violates the right to be free from an

unreasonable search under the Fourth Amendment.” Durruthy v. Pastor, 351 F.3d

                                           8
1080, 1088 (11th Cir. 2003). A police officer is entitled to qualified immunity for

making an arrest if he had “arguable probable cause” to make the arrest.

Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (emphasis and

quotation marks omitted); see also Jones v. Cannon, 174 F.3d 1271, 1283 (11th

Cir. 1999). “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.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332

(11th Cir. 2004). When performing our arguable probable cause analysis, we look

at the information known to the officer at the time of the arrest. Jones, 174 F.3d at

1283 n.4.

      Accepting as true Ms. Bailey’s version of the facts, as we must at this stage

of proceedings, Officer Reina did not have arguable probable cause to arrest her.

When the three officers arrived at room 603, they knew only that the room was

registered to “Bailey” and that Travis Bailey might be inside. The officers did not

know Ms. Bailey was in the room until she opened the door, and when she opened

the door, she complied with all of the officers’ instructions and left the room

without resistance. Those alleged facts establish only that she was in a room with

someone suspected of committing a crime elsewhere, which is not enough to create

arguable probable cause for arrest. See Holmes v. Kucynda, 321 F.3d 1069, 1081


                                          9
(11th Cir. 2003) (“This circuit’s case law has clearly established that mere

presence at the scene of a crime, without more, does not support a finding of

probable cause to arrest.” (quotation marks and alteration omitted)); cf. Ybarra v.

Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342 (1979) (“[A] person’s mere

propinquity to others independently suspected of criminal activity does not,

without more, give rise to probable cause to search that person.”).

      Officer Reina argues that he had arguable probable cause to believe that Ms.

Bailey was helping her son escape capture because she knew that her son was

running from the police, and yet she failed to call the police to report his

whereabouts and was found harboring him in a hotel room. Those assertions,

however, assume that Ms. Bailey knew her son was running from the police, and

the record is clear that, when he arrested her, Officer Reina did not know whether

she was aware that her son had been chased by the police. Here again, we are left

only with the fact that Ms. Bailey was in a room with her son about an hour after

his encounter with Officer Torres, and that fact alone did not create arguable

probable cause for her arrest.

      Officer Reina also asserts that he had arguable probable cause to arrest Ms.

Bailey because she had helped her son avoid arrest by initially opening the door

with the latch engaged. He argues that “there is no plausible reason for Carolyn to


                                          10
have kept the latch engaged in initially opening the door,” and even describes her

“latching the door” as “unlawful conduct.” Ms. Bailey, however, testified in her

deposition that she kept the door latched until confirming the identity of the men

who were banging on the door and yelling “open this F-ing door now,” and once

she confirmed that the men banging on the door were police officers, she

immediately removed the latch and let the officers inside. Assuming that her

testimony is true, nothing about that chain of events gave Officer Reina arguable

probable cause to arrest Ms. Bailey.

      Finally, Officer Reina claims he had arguable probable cause to arrest Ms.

Bailey because she lied about whether her son was in the hotel room and because

she attempted to obstruct the officers when they tried to enter the room. She has

testified to the contrary, however, and at this stage of proceedings we must accept

her version of events. Given her testimony, and viewing the evidence in the light

most favorable to Ms. Bailey, Officer Reina did not have arguable probable cause

to arrest her for any offense.

      AFFIRMED.




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