FRIEDSON

v.

SHOAR

This case is before the Court on Defendant Deputy Ryan Wallace’s Motion for Summary Judgment, (Doc. 25), and Defendant Sheriff David Shoar’s Motion for Summary Judgment, (Doc. 26). Plaintiff Matthew Friedson filed a consolidated response in opposition. (Doc. 29).1 The Court heard oral argument on June 29, 2020, the record of which is incorporated by reference.

I. BACKGROUND

On February 27, 2015, Friedson, who is deaf, was driving to meet his daughter and ex-wife for bagels. (Doc. 25-1 at 5:1, 22:18–20, 26:22–24). Initially,

31:3–5, 32:9–15. Friedson realized he needed to go a different direction, so he pulled into the right lane and passed Wallace. Id. at 32:1–6. As he was passing Wallace, Friedson gave himself the middle finger, to say “‘Darn it,’ you know, ‘I went the wrong way.’” Id. at 33:9–10. According to Friedson, deaf people will sign to themselves in the same manner that hearing people talk to themselves. Id. at 34:2–17. Wallace then got behind Friedson and pulled him over, id. at 36:7–17, for following too closely, (Doc. 25-2 ¶ 4). According to Friedson, Wallace approached Friedson’s car with his gun drawn. (Doc. 25-1 at 39:8). At first, Wallace was talking on his radio behind Friedson and did not know Friedson was deaf. Id. at 39:4–7. Friedson knew that Wallace was telling him to open his door or window, id. at 39:22–40:2, but Friedson refused to comply, id. at 40:23–24. Friedson gestured to Wallace that he was deaf by putting “an open five hand against [his] ear and had [his] hands up . . . .” Id. at 40:14–15. Wallace again attempted to open the door and have Friedson put down the window, but he was unsuccessful. Id. at 40:16–19. Although Friedson has the ability to speak, he chooses not to and did not attempt to speak to Wallace. Id. at 16:13–17:6, 40:25–41:7. Friedson attempted to gesture that he and Wallace should write back and forth, “[a]nd [Friedson] was just trying to get [Wallace] to understand that [Friedson] was deaf . . . .” Id. at 41:7–12. Friedson did not attempt to use any other form of communication, such as his cell phone, a notepad, etc., to communicate with

Wallace. Id. at 42:22–43:7. Friedson contends that he gestured for Wallace to follow him to the nearby parking lot where his ex-wife and daughter were waiting. Id. at 47:6–9. At the second stop, Friedson handed Wallace his license and Wallace took it back to his patrol vehicle. (Doc. 25-1 at 49:22–23). Then Friedson got back out of his car to give his attorney’s business card to Wallace, id. at 49:23–25, but Wallace gestured for Friedson to get back in his car and Friedson complied. Id. at 50:1–2. Wallace then went back to Friedson’s car, told Friedson to get out,

and Wallace tripped Friedson, cuffed him, and put him in the back of his patrol car. Id. at 51:14–16, 63:18–19. At that point, another deputy arrived and had Friedson’s daughter translate for Friedson so he could tell the new deputy what had transpired. Id.

at 64:11–23. Friedson was issued a ticket for following too closely and paid the fine. Id. at 67:19–24. Throughout the entire situation, Friedson never asked for an interpreter. Id. 67:18–20. Of the three or four times Friedson has been arrested, he has never had a deputy trained in sign language. Id. at 74:6–11.

After the Court dismissed in part Friedson’s original complaint, he filed an Amended Complaint, alleging: a false arrest claim under 42 U.S.C. § 1983 against Wallace (Count I), violation of the Americans with Disabilities Act (“ADA”) against the Sheriff (Count II), violation of the Rehabilitation Act (“RA”) against the Sheriff (Count III), state law false arrest against Wallace (Count V),

and state law false arrest against the Sheriff (Count VI).² (Doc. 21). Both Wallace and the Sheriff have filed motions for summary judgment. (Docs. 25, 26).

II. STANDARD OF REVIEW

Where there is no genuine dispute of any material fact, a district court “shall” grant summary judgment. Fed. R. Civ. P. 56(a). Summary judgment is warranted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). As Friedson is the non-movant, the facts are construed in the light most favorable to him, and, as recounted above, are primarily his version of the events from his deposition. See Adickes v. S. H. Kress & Co., 398

U.S. 144, 157 (1970) (holding that the evidence must be viewed in the light most favorable to the nonmoving party).

III. DISCUSSION

A. Wallace’s Motion for Summary Judgment

Friedson alleges two claims against Wallace: false arrest under 42 U.S.C. § 1983 and false arrest under Florida common law. For the federal claim, Wallace asserts he is entitled to qualified immunity because he had arguable probable cause to arrest Friedson. Under the state law claim, Wallace similarly contends that because he had probable cause to arrest Friedson, the claim must be dismissed. Qualified immunity protects public officials from suit so long as their actions do not violate clearly established constitutional or statutory rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity applies to police officers partly because the law recognizes that they do an important and necessary—but sometimes dangerous—job on the public’s behalf. An officer’s duties often require her to rely on imperfect information to make snap judgments that can sometimes be the difference between life and death. See, e.g., Graham v. Connor, 490 U.S. 386, 396–97, 109 S. Ct. 1865, 104 L.Ed.2d 443 (1989). But those snap judgments must be reasonable to fall within qualified immunity’s ambit. See id. at 396, 109 S. Ct. 1865; see also Saunders v. Duke, 766 F. 3d 1262, 1266 (11th Cir. 2014). So when we consider whether an officer is entitled to qualified immunity, we balance “the need to hold [officers] accountable when they exercise power irresponsibly and the need to shield [them] from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Patel v. City of Madison, 959 F. 3d 1330, 1337–38 (11th Cir. 2020) (alterations in original).

“An arrest made without probable cause is an unreasonable seizure,” Paez v. Mulvey, 915 F. 3d 1276, 1285 (11th Cir. 2019), and unreasonable seizures violate the Fourth Amendment,³ U.S. Const. amend. IV. “Simply stated, [the probable cause] standard requires that an arrest be objectively reasonable under the totality of the circumstances.” Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F. 2d 1112, 1119 (11th Cir. 1992). “This standard is met ‘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.’” Alston v. Swarbrick, 954 F. 3d 1312, 1318 (11th Cir. 2020) (quoting Skop v. City of Atlanta, 485 F. 3d 1130, 1137 (11th Cir. 2007)). “[W]hat counts for qualified immunity purposes relating to

F. App’x 745, 748–49 (11th Cir. 2014) (“The existence of a traffic violation can provide an officer with arguable probable cause to make an arrest, even though the offense is minor or normally punishable by a monetary citation, and even if the officer had no knowledge of that violation at the time.”). Contrary to

Friedson’s argument at the hearing, it makes no difference if the traffic violation is considered a noncriminal traffic violation. See Durruthy v. Pastor, 351 F. 3d 1080, 1089 (11th Cir. 2003) (finding that defendant-officer was entitled to qualified immunity because she had probable cause to arrest plaintiff for violating Florida statute § 316.130, a non-criminal violation); see also, e.g., United States v. Burrows, 566 F. App’x 889, 892 (11th Cir. 2014) (holding that officers could legally detain the plaintiff where he stopped in the middle of a crosswalk in violation of a Florida traffic law); Jeanty v. City of Miami, 876 F. Supp. 2d 1334, 1344 (S.D. Fla. 2012) (“Regardless of whether probable cause existed to arrest Jeanty for the stated offense of driving with an expired registration, probable cause did exist to arrest Jeanty for parking in a crosswalk, parking within twenty feet of a crosswalk at an intersection, or parking within thirty feet of a stop sign.” (citations omitted)). Therefore, Wallace did not violate the Constitution when he arrested Friedson. The parties spent most of their energy on whether Wallace had probable cause to arrest Friedson for obstructing an officer without violence under

Florida Statute § 843.02. But Wallace evinced no intent at the time to base his detention of Friedson on a violation of § 843.02. And, because Wallace indisputably had probable cause to arrest Friedson for the traffic violation, the Court need not address whether Wallace could have arrested Friedson for obstructing an officer. Because Wallace had probable cause to arrest Friedson for his traffic violation, he is entitled to summary judgment on Friedson’s federal and state false arrest claims.⁴

B. Shoar’s Motion for Summary Judgment Friedson brings three claims against the Sheriff: violation of the ADA, violation of the RA, and state law false arrest claim. As Wallace had probable cause to arrest Friedson, the false arrest claim against the Sheriff also fails. See

Davis v. City of Apopka, 734 F. App’x 616, 621 (11th Cir. 2018) (stating that actual probable cause is a complete bar to a Florida false arrest claim against municipality). Thus, the Court turns to Friedson’s ADA and RA claims.5

Bircoll v. Miami–Dade Cty., 480 F. 3d 1072, 1084–85 (11th Cir. 2007). Under the ADA’s implementing regulations, public entities shall furnish auxiliary aids,

Cir. 2005) (citing Cash v. Smith, 231 F. 3d 1301, 1305 & n.2 (11th Cir. 2000)). 6 An ADA plaintiff may proceed on theories of intentional discrimination, disparate treatment, or failure to make reasonable accommodations. See Schwarz v. City of Treasure Island, 544 F. 3d 1201, 1212 n.6 (11th Cir. 2008). Here, Friedson states his claim is for failure to make reasonable accommodations. (Doc. 29 at 11). including qualified interpreters, where necessary to afford disabled persons equal opportunity. 28 C.F.R. § 35.160(b)(1). However, “[t]he ADA’s ‘reasonable modification’ principle . . . does not require a public entity to employ any and all means to make auxiliary aids and services accessible to persons with disabilities, but only to make ‘reasonable modifications’ that would not fundamentally alter the nature of the service or activity of the public entity or impose an undue burden.” Bircoll, 480 F. 3d at 1082 (quoting Tennessee v. Lane, 541 U.S. 509, 531–32 (2004)). Therefore, the “question is whether, given criminal activity and safety concerns, any modification of police procedures is reasonable before the police physically arrest a criminal suspect, secure the scene, and ensure that there is no threat to the public or officer’s safety.” Id. at 1085. In Title II cases, the reasonable modification inquiry is highly factspecific. The Eleventh Circuit notes that “terms like reasonable are relative to the particular circumstances of the case . . . [and] must be decided case-by-case

. . . .” Id. Normally, ADA and RA violations only entitle a plaintiff to injunctive relief. Silberman v. Miami Dade Transit, 927 F. 3d 1123, 1134 (11th Cir. 2019). “To get damages—as [Friedson] seeks here—a plaintiff must clear an additional hurdle: he must prove that the entity that he has sued engaged in intentional discrimination, which requires a showing of ‘deliberate indifference.’” Id. (quoting Liese v. Indian River Cty. Hosp. Dist., 701 F. 3d 334, 348 (11th Cir. 2012)). To show deliberate indifference, a plaintiff must prove that “the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” Id. (alteration adopted) (quotation marks omitted) (quoting Liese, 701 F. 3d at 344). Where the defendant is a municipal entity—as the Sheriff is here—“the plaintiff must demonstrate that an ‘official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the entity’s behalf’ had ‘actual knowledge of discrimination in the entity’s programs and failed adequately to respond.’” Id. (alterations adopted) (quoting Liese, 701 F. 3d at 349).

Friedson’s ADA and RA claims seek only damages. See Doc. 21. Therefore, Friedson must demonstrate that the Sheriff—the only defendant named in the ADA and RA claims—“had actual knowledge of discrimination in the entity’s programs and failed adequately to respond.” Id. (citations and quotation marks omitted). Despite asserting his ADA and RA claims against only the Sheriff, Friedson’s entire response focuses on Wallace’s actions. (Doc. 29). But nothing in the record demonstrates that under the ADA or RA Wallace qualifies as an “official,” i.e., “someone who enjoys substantial supervisory authority within an organization’s chain of command so that, when dealing with the complainant, the official had complete discretion at a ‘key decision point’ in the administrative process.” Liese, 701 F. 3d at 350. And, nothing in the record demonstrates that the Sheriff had “actual knowledge of discrimination,” never mind “fail[ing] to adequately respond.” Silberman, 927 F. 3d at 1134. In fact, the

Sheriff attached his policy on communicating with deaf individuals to his motion (without discussing it); it prohibits employees from discriminating against individuals based upon their disability. (Doc. 26-1 ¶ 4). Thus, there is not even an inference that the Sheriff had knowledge of prior acts of discrimination; instead, he had policies in place prohibiting it.⁷ The Court has also considered whether Friedson’s ADA and RA claims against the Sheriff could be premised on vicarious liability. Whether a Title II ADA or RA claim can proceed based on vicarious liability remains an open question in the Eleventh Circuit. Silberman, 927 F. 3d at 1134 n.6 (“[T]he availability of respondeat superior for Title II and the § 504 claims remains an open question.”);8 see also Welch v. City of Hartselle, 423 F. Supp. 3d 1277,

1082. Simply stated, because Wallace was able to communicate with Friedson— though not perfectly—there is an absence of evidence demonstrating Wallace made the “deliberate choice” to violate Friedson’s ADA and RA rights.⁹ See McCullum, 768 F. 3d at 1147–48; Bircoll, 480 F. 3d at 1082.

The Court realizes the challenges that Friedson faces in encounters such as he had with Deputy Wallace. But on this record, no reasonable jury could find that Wallace acted with deliberate indifference to Friedson’s ADA or RA rights; therefore, the Sheriff is not vicariously liable for Wallace’s actions and is entitled to summary judgment on Friedson’s ADA and RA claims.10 Accordingly, it is hereby ORDERED: 1. Defendant Deputy Ryan Wallace’s Motion for Summary Judgment,

(Doc. 25), is GRANTED.

TIMOTHY J. CORRIGAN

United States District Judge jjb Copies to: Counsel of record