BIRCH, Circuit Judge:
This interlocutory appeal addresses the qualified immunity status of a deputy sheriff relative to a passenger in a vehicle, which was stopped, and the other occupants were arrested. The passenger contends that her constitutional rights were violated during her detention by the officer pursuant to the stop of the vehicle, and as a result of her roadside abandonment. The district court denied the officer's summary judgment motion regarding his claim of qualified immunity, but granted him summary judgment on the state law claim of intentional infliction of emotional distress. Although we affirm summary judgment granted to the officer on the claim of intentional infliction of emotional distress, we reverse and remand the denial of summary judgment on the officer's claim of qualified immunity for proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of May 12, 1985, plaintiff-appellee Sharon Courson and two male companions were "four wheeling" in an all-terrain vehicle on a Walton County, Florida beach.
Their vehicle passed defendant-appellant Lieutenant Jim Roy, a deputy sheriff for Walton County, in a no passing area at a speed between 60 and 80 miles per hour in a 45 or 55 miles per hour zone. Roy, who had been conducting surveillance of marijuana fields, had noticed that evening a
Subsequently, the vehicle stopped on the side of the paved surface of the highway at a condominium construction site, located between two developments. One of the developments was townhouse rental property. The other, which had a guard house at the entrance to the property, was a resort with units available for rent and sale.
Roy stopped his patrol car behind the vehicle and, in a loud voice, requested the occupants to exit. When none of the occupants exited the vehicle, Roy reiterated his instruction. Thereafter, the male driver only left the vehicle. After Roy again repeated his order that all occupants exit, Courson and the other male exited.
Roy observed that each of the three individuals had difficulty getting out of the vehicle. As Courson and her male companions approached, Roy, who was alone, withdrew a shotgun from his patrol car. One of the males became and continued to be verbally abusive and belligerent;
Subsequently, a Florida highway patrolman arrived. Roy gave his shotgun to the patrolman to guard Courson and her male companions while he searched their vehicle by shining a flashlight into the interior. Thereafter, four Walton County deputy sheriffs arrived at the scene. In addition to Roy's patrol car, Courson's best recollection was that there were two or three patrol cars transporting the backup officers.
Both of the males were arrested, handcuffed, and taken to the Walton County sheriff's department for booking in separate patrol cars. The male driver was charged with driving under the influence of alcohol, speeding, and with fleeing and attempting to elude a law enforcement officer. The other male, who physically resisted arrest and injured one of the officers, was charged with resisting arrest with violence,
During the investigation and arrest of male companions, Courson was kept on the ground until both males were taken into custody. Including the wait for backup assistance with her companions, the total time that Courson remained on the ground was approximately thirty minutes; little traffic passed on the highway during that period. She was not directly interrogated, searched, touched, harmed in any way, or charged with any crime.
After Courson's male companions had been taken to the station for booking, Courson was told that she was free to go. Roy put his shotgun away. The officers assisted Courson in searching for her car keys, which she said were left in the vehicle in which the three individuals had been riding. The keys were not found, and the vehicle was towed away. Courson did not ask Roy or another officer to take her anywhere.
Courson lost no time from work as a result of this incident.
Courson initiated this action in the Walton County, Florida circuit court. Her four-count complaint alleged violation of her Fourth, Fifth and Fourteenth Amendment rights resulting from her detention, including excessive force, and abandonment as well as related state tort claims. Quinn A. McMillian, Sheriff of Walton County, originally was a defendant for allegedly allowing a policy of conduct by his officers permitting Roy's actions, and the sheriff's failure to supervise his deputies. Defendants McMillian and Roy removed the case to federal district court for the Northern District of Florida. Pursuant to defendants' motion to dismiss, the district court dismissed the complaint as to Sheriff McMillian in his individual and official capacities.
The remaining claims against Roy in his individual capacity were: a 42 U.S.C. § 1983 claim for unlawful arrest and detention and for the use of unreasonable force in violation of the Fourth, Fifth and Fourteenth Amendments; a Fourteenth Amendment claim for recklessly placing Courson in danger when Roy abandoned her at the scene; and Florida claims for false arrest and imprisonment,
"[A] district court's denial of qualified immunity is immediately appealable." Hudgins v. City of Ashburn, 890 F.2d 396, 402 (11th Cir.1989). The purpose for this exception to 28 U.S.C. § 1291, whereby we review final decisions of district courts, is to protect public officials entitled to qualified immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Hutton v. Strickland, 919 F.2d 1531, 1536 (11th Cir.1990). This entitlement to qualified immunity obviously would be lost if the case proceeded to trial erroneously. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Hutton, 919 F.2d at 1536.
Qualified immunity shields government officials executing discretionary responsibilities from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (emphasis added). Therefore, qualified immunity "turns on an issue of law," and our review is de novo. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817; Hutton, 919 F.2d at 1536; Hudgins, 890 F.2d at 403. Procedurally, qualified immunity must be pled by the defendant official as an affirmative defense. Harlow, 457 U.S. at 815, 102 S.Ct. at 2736; Hutton, 919 F.2d at 1536.
In this case, Roy pled qualified immunity as an affirmative defense. The legal issue for our determination is whether in May, 1985, it was unconstitutional for a law enforcement officer to detain a passenger of a vehicle, stopped for exceeding the lawful speed limit; to require that individual to lie on the ground with the other occupants of the vehicle while the officer held a shotgun on them during the time that he awaited assistance and conducted an investigation; and to leave the unarrested passenger alone without transportation home. Jurisdiction is appropriate in this case.
B. Summary Judgment Review
The Supreme Court has explained the scope of our review of a district court's denial of a summary judgment motion based on qualified immunity:
Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816 (footnote omitted). Following this Supreme Court guidance, our court requires a defendant to establish his entitlement to qualified immunity as a matter of law by showing that no genuine issues of material fact relating to the implicated legal questions exist. Hutton, 919 F.2d at 1536; see
To avoid summary judgment, an opposing plaintiff must show that the defendant is not entitled to qualified immunity legally or that there is a genuine issue of material fact regarding the defendant's conduct as being violative of the clearly established law governing the case. See Hutton, 919 F.2d at 1536. The Court has explained the meaning of a genuine factual dispute under Rule 56(c) of the Federal Rules of Civil Procedure: "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). Following discovery, the plaintiff opposing summary judgment may not rely on facts in the complaint, but must raise genuine issues of material fact to counter facts supporting the defendant's claim of qualified immunity. Hutton, 919 F.2d at 1537; Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
C. Qualified Immunity Analysis
The Supreme Court has developed an objective-reasonableness test for evaluating actions of a government official claiming qualified immunity: the official's action must be evaluated against "clearly established law," consisting of statutory or constitutional rights that a reasonable person should have known. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). The use of this test precludes the determination by district courts of subjective good faith in government officials' conduct in section 1983 actions. Hutton, 919 F.2d at 1537; see Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2736-39. This objective-reasonableness test provides qualified immunity protection to "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Hutton, 919 F.2d at 1537.
In Rich, this circuit derived a two-part analysis for applying the objective-reasonableness test to a qualified immunity defense:
Rich, 841 F.2d at 1563-64 (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per curiam)); Hutton, 919 F.2d at 1537. Under the Zeigler/Rich formulation of the objective-reasonableness test, a government official proves that he acted within his discretionary authority by showing "`objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.'" Rich, 841 F.2d at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. Unit A July 1981)); Hutton, 919 F.2d at 1537.
The second component of the Zeigler/Rich objective-reasonableness test is divided into two analytical subparts. Rich, 841 F.2d at 1563-64 (citing Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816); Hutton, 919 F.2d at 1538. First, the reviewing court must decide whether the applicable law
Courson has alleged that Roy violated her Fourth and Fourteenth Amendment protections against detention without probable cause. Personal encounters between law enforcement officers and citizens are "seizures" on occasions "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."
Our initial determination is whether Roy was acting within the scope of his discretionary authority when he stopped and detained Courson and her companions. It is undisputed that Roy was on duty when he stopped the vehicle. Courson has neither challenged Roy's probable cause in making the stop, because she acknowledges that their vehicle was exceeding the lawful speed limit, nor questioned the arrests of her companions.
The burden thereafter shifts to Courson to show that Roy's conduct violated clearly established constitutional law. As opposed to the initial stop of the vehicle, Courson apparently objects to her requested exit from the vehicle and subsequent detention. We will limit our analysis of Courson's seizure to these issues. Under this aspect of the Zeigler/Rich analysis, we must determine whether the applicable law was clearly established when Roy detained Courson with her companions in May, 1985. Rich, 841 F.2d at 1563-64. Because probable cause for the stop existed for the male driver only, we find that our analysis regarding the law applicable to Courson is analogous to a warrantless investigatory stop under Terry rather than a custodial arrest.
"The Fourth and Fourteenth Amendments are implicated in this case because
Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (citations omitted); see INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) ("[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation.").
The Supreme Court has directed a balancing of competing interests in determining the unreasonableness of a seizure within the meaning of the Fourth Amendment:
United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983); see Prouse, 440 U.S. at 654, 99 S.Ct. at 1396 ("[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." (footnote omitted)). This court has determined that "[t]he distinction between an arrest and an investigatory stop depends upon the nature and degree of the intrusion under all the facts of the particular encounter," and has emphasized that "[t]he facts are important." Roper, 702 F.2d at 985 (emphasis added).
In Roper, an Atlanta police officer observed at approximately 7:00 P.M., a vehicle fitting the description of an automobile belonging to an individual wanted for prosecution for federal bail jumping. He recognized the vehicle from a bail bond company flyer. After confirming the license plate and requesting assistance, the officer stopped the vehicle in a restaurant parking lot, approached the driver with his pistol drawn and told the two occupants to place their hands on the dashboard. When another police officer arrived, the two occupants were told to exit the vehicle. After determining through radio communication that there was a probation violation warrant for Roper's arrest, the officer arrested him. The other occupant of the vehicle was detained until the officers determined that there were no charges pending against him.
This court determined that neither the officers' directing the two occupants to exit the vehicle, nor the fact that an officer's weapon was drawn during the encounter, converted the investigative stop into an arrest. Id. at 987. The court concluded that "it is clear that an investigative stop does not become an arrest merely because an officer directs the subject of an investigation out of a vehicle." Id.; see Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977)
The Supreme Court has instructed that the reasonableness of the duration of an investigative stop cannot be delineated exactly; although "a `bright line' rule would be desirable" guidance, "common sense and ordinary human experience must govern over rigid criteria."
470 U.S. at 686-87, 105 S.Ct. at 1575-76 (citations omitted) (emphasis added).
Finding a twenty-five minute investigatory detention to be reasonable under the circumstances and not an arrest, this court determined that "[a]lthough police delayed [the defendant's] return to his motel by twenty-five minutes, we cannot regard their asking him to remain at the point where he was stopped an arrest."
Moreover, the totality of circumstances determines when an encounter has become too intrusive to be classified as a seizure and has become an arrest, requiring probable cause.
The particular facts of this case are significant. Courson and her male companions, traveling at excessive speed in a no passing zone late at night, passed Roy in a vehicle that was similar to one that he had noticed earlier in the evening in the vicinity of cultivated marijuana fields that he was watching. The vehicle did not respond initially to his siren and flashing blue light. After stopping at the side of the highway, Courson and her companions did not respond to Roy's loud instruction to exit the vehicle. The vehicle occupants appeared to have difficulty exiting, possibly indicating intoxication or drug use. All three walked toward Roy, who was alone. Roy called for assistance, withdrew his shotgun and approached the three individuals, one of whom became verbally abusive. Roy commanded them to lie on the ground while he trained his gun toward them awaiting assistance. Following the arrival of assistance, the two males were arrested, and
"[T]he facts [must] be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. Given the late hour, the fact that he was alone and walking toward three people whom he had stopped, and the unruliness of one of these individuals, we conclude that Roy's method of subduing and securing these people until assistance arrived was reasonable. He not only had to maintain order until help arrived, but also he had to protect himself. As a practical matter, he could not have interrogated them alone. Given the fact that he had to await assistance, and then interrogate the individuals, determining that the two males should be arrested, we find that Courson's detention was not unreasonable. See Gasner v. City of Garland, 864 F.2d 394, 400 (5th Cir.1989) ("A person who has been pulled over for committing a traffic violation, regardless of the circumstances surrounding the violation, simply does not have the right to leave the scene until the officer has completed an investigation that is reasonable under the circumstances." (footnote omitted)).
Even without probable cause to arrest Courson, Roy had sufficient reasonable suspicion to conduct an investigatory stop with respect to her. See Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989) ("`Seizure' alone is not enough for § 1983 liability; the seizure must be `unreasonable.'"). As discussed herein, we have determined that Supreme Court and Eleventh Circuit law was clearly established in May, 1985, to embrace Roy's actions concerning Courson as an investigatory stop. We further find that there is no genuine issue of material fact regarding Roy's conduct. Courson has failed to carry her burden of showing that Roy's conduct violated clearly established law. We, therefore, conclude that Roy's seizure of Courson did not abridge her Fourth and Fourteenth Amendment rights.
2. Unreasonable Force
Courson complains that Roy's requiring her to lie on the ground while he directed a shotgun toward her constituted excessive force, violating her Fourth, Fifth and Fourteenth Amendment rights. We essentially have addressed this claim in the context of our seizure analysis. The reasonableness of Roy's particular methods of executing this seizure, which included Courson, are governed by the conditions under which the seizure occurred, as we have discussed.
We have established that Roy was acting within the scope of his discretionary authority in seizing Courson with her male companions and that investigatory stop analysis is appropriate for Courson's claims. We additionally note that law enforcement officers on duty generally are armed. Roy, therefore, has met the first part of the Zeigler/Rich analysis. The burden shifts to Courson to show that Roy violated clearly established constitutional law in May, 1985, by requiring her to lie on the ground while directing his shotgun toward Courson and her companions.
"Regarding the drawn gun, this Court has indicated that an officer's display of weapons does not necessarily convert an investigatory stop into an arrest." United States v. Roper, 702 F.2d 984, 987 (11th Cir.1983); accord United States v. Pantoja-Soto, 768 F.2d 1235, 1236 (11th Cir.1985) (per curiam). This court also cited other circuit courts, which, prior to 1983, had "held that the use of a gun does not automatically convert an investigatory stop into an arrest." Roper, 702 F.2d at 987 (citations omitted) (emphasis in original). The lone police officer in Roper approached a vehicle, containing the defendant who subsequently was arrested and his son who
This court found guidance in a former Fifth Circuit case where the court approved following a high speed pursuit the approach of an agent with a gun pointed at a car containing three young males:
Id. (quoting United States v. Maslanka, 501 F.2d 208, 213 n. 10 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975)) (citing United States v. Worthington, 544 F.2d 1275 (5th Cir.1977) (holding that an investigatory stop is not an arrest because an officer draws a gun)). The Roper court also dispelled any contention that officers' drawing guns on stopped vehicle occupants is limited to situations when suspects reportedly are armed or seek to evade detention. That court found a District of Columbia Circuit case instructive. Roper, 702 F.2d at 988 (citing United States v. White, 648 F.2d 29 (D.C.Cir.1981)). Although the vehicle occupants in White were unarmed, two officers following an anonymous tip approached the vehicle with drawn guns. When the defendant did not comply with an order to exit the car, one of the officers repeated the order, told the defendant to place his hands on the dashboard, and pointed his revolver through the windshield at the defendant. The defendant was not arrested until he exited the vehicle and narcotics, that he was carrying on his person, fell to the ground. The second officer held his drawn gun on the passenger in his attempt to remove this individual from the car. The White panel held that the encounter was an investigatory stop rather than an arrest:
Roper, 702 F.2d at 988 (quoting White, 648 F.2d at 36 (footnotes omitted) (emphasis added)). In holding that the sole officer awaiting assistance and holding a gun on two vehicle occupants, only one of whom subsequently was arrested, was an investigative stop, this court recognized that "`the better view is that the use of guns in connection with a stop is permissible where the police reasonably believe they are necessary for their protection.'" Roper, 702 F.2d at 988 (quoting United States v. Merritt, 695 F.2d 1263, 1273 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983)). Clearly, this circuit condoned officers' having drawn weapons
Roy's requiring Courson along with her male companions to lie on the ground is the additional method that he used in conjunction with his drawn gun to subdue the three individuals while he awaited assistance for investigation and potential arrests.
In this case, Roy was alone late at night at a vacant construction site when he stopped the vehicle containing Courson and her companions. They appeared to be uncooperative in not all exiting the vehicle until Roy's third command. Upon their exit, the three individuals appeared to be intoxicated. Roy reasonably suspected that they might have been connected with cultivated marijuana fields that he had under surveillance. As he approached the three people, he could not have known if they were armed. In the middle of the night, it is not unusual for a law enforcement officer to have his weapon drawn, when approaching individuals suspected of drug involvement. One of the males became unruly and verbally abusive. Roy chose to maintain order by requiring the three individuals to lie on the ground while he directed his shotgun toward them. They complied without Roy's physical contact. Roy's actions with respect to Courson and her companions, who were not arrested until later, complied with established Supreme Court and Eleventh Circuit law in May, 1985.
The circumstances in this case constituted the extreme situation noted by this court in Roper, where we must view the situation from the perspective of a reasonable and cautious law enforcement officer. Whether one of the male detainees became verbally abusive upon his exit from the vehicle or after he was required to lie on the ground is not significant in Roy's requiring the three to lie on the ground while he held his shotgun toward them. Whenever the abusive verbal behavior occurred, it served to confirm the measures that Roy had taken to protect himself against hostile conduct from three individuals whom he had not yet investigated.
Roy was "acting under the exigencies of the immediate situation." Hutton, 919 F.2d at 1542. Officers react to circumstances that they encounter and the conduct of detainees may dictate a particular officer's response. In this situation, Roy, who was alone, had to handle the three individuals as a group with the same methods of maintaining order until assistance arrived. We cannot expect a lone officer to use different measures of restraint with multiple detainees, although a particular detainee is not arrested subsequently. Until an investigation is conducted, the officer cannot know the involvement of each detainee.
We find that there is no genuine issue of fact material to Roy's displaying his shotgun or requiring the individuals to lie on the ground. Courson has failed to carry her burden of establishing that Roy's conduct violated clearly established constitutional law. We conclude that Roy used no unreasonable force with respect to Courson and her companions.
Courson claims that Roy's leaving her alone at the side of a highway late at night without transportation home after he informed her that she was free to go violated her Fourteenth Amendment rights. Having established that Roy was acting within his discretionary authority when he stopped the vehicle in which Courson was a passenger and detained her in conjunction with his request for assistance and investigation of the vehicle occupants, we similarly find that he was engaged in his authorized responsibilities when he told Courson that she was free to go. Accordingly, Roy has satisfied the first part of the Zeigler/Rich analysis.
The burden shifts to Courson to show that Roy violated clearly established constitutional law in May, 1985, in leaving her alone beside the highway without transportation
In this circuit, however, "if the law is not clearly established, the official is entitled to summary judgment regardless of factual disputes." Ansley v. Heinrich, 925 F.2d 1339, 1348 (11th Cir.1991) (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738); see Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir.1990) ("If the law that the defendants allegedly violated was not clearly established, then the defendants are entitled to qualified immunity."); see, e.g., Edwards v. Gilbert, 867 F.2d 1271, 1275-77 (11th Cir.1989); Clark v. Evans, 840 F.2d 876, 882-84 (11th Cir.1988); Muhammad v. Wainwright, 839 F.2d 1422, 1424-25 (11th Cir.1987). No Supreme Court or Eleventh Circuit precedent existed in May, 1985, concerning a law enforcement officer's abandoning a passenger in a vehicle which was impounded and the other occupants arrested.
Our analytical result may be viewed as harsh from a humanitarian perspective.
The only issue before us on this interlocutory appeal is whether Roy is entitled to qualified immunity on Courson's constitutional claims of seizure, unreasonable force and abandonment. We remand this case to the district court with directions to grant summary judgment to Roy on the basis of qualified immunity on these constitutional claims and to resolve or remand to state court the pendent state claims.
R1-19-Affidavit of Jim Roy at 3-4, paras. 8-9 (emphasis added).
R1-19-Affidavit of Jim Roy at 5, 6, paras. 12-13, 15 (emphasis added).
R1-19-Deposition of Sharon Courson at 63 (emphasis added).
R1-19-Affidavit of Jim Roy at 5-6, paras. 14-15.
Courson testified that one of the other officers asked Roy if she could take the vehicle home, and Roy refused because the vehicle did not belong to her. According to Courson, Roy showed no interest in her transportation home, but she concedes that she did not ask him or any other officer to transport her anywhere.
R1-19-Deposition of Sharon Courson at 53 (emphasis added).
R1-19-Deposition of Sharon Courson at 63, 72. Although Courson does not appear to consider her headaches a physical ailment, we note that our review of the record indicates that the headache condition apparently occurred as a direct result of her detention and is not alleged to be a persisting or permanent condition resulting from this incident.
R2-34-16 (quoting Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985)). The district court concluded that "[e]ven under plaintiff's version of the facts, I find Roy's conduct does not meet this standard of outrageousness." R2-34-16.
Fla.Stat., § 901.15(1) (1985). Because Courson and her companions passed Roy at an excessive rate of speed, the speeding violation occurred in his presence. Traffic violations may constitute probable cause for arrest. See Lenard v. Argento, 699 F.2d 874, 885 (7th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983). The Florida Supreme Court has held that "[t]he facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based." Shriner v. State, 386 So.2d 525, 528 (Fla.1980) (per curiam), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). "The existence of probable cause ... is an absolute bar to a section 1983 action for false arrest." Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir.1990).
The possibility of flight, in addition to Roy's reasonable suspicion that the vehicle and its occupants might be related to the marijuana field and, thus, implicated in a drug offense, may have increased Roy's reasonable suspicion and incentive to ascertain whether the occupants were involved in marijuana cultivation. This suspicion was consistent with his flashlight search of the vehicle while the highway patrolman guarded Courson and her companions. The Supreme Court has held that an officer violates no Fourth Amendment right by shining a flashlight into a car because no legitimate expectation of privacy exists in a vehicle interior, which may be viewed by passersby or police officers. Texas v. Brown, 460 U.S. 730, 740-41, 103 S.Ct. 1535, 1542-43, 75 L.Ed.2d 502 (1983) (plurality opinion). We also note that even a search of the vehicle would have been valid because the Supreme Court has held that an investigative Terry stop can extend to the passenger compartment of an automobile in the absence of probable cause to arrest. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983); United States v. Aldridge, 719 F.2d 368, 372 (11th Cir.1983); see United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989) (The Supreme Court has found that "`innocent behavior will frequently provide the basis for a showing of probable cause,' and that `[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is `innocent' or `guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts.' That principle applies equally well to the reasonable suspicion inquiry." (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)).
Place, 462 U.S. at 709 n. 10, 103 S.Ct. at 2646 n. 10.
United States v. Berry, 670 F.2d 583, 602 (5th Cir. Unit B 1982) (en banc).
United States v. Aldridge, 719 F.2d 368, 371-72 (11th Cir.1983) (citations omitted).
Graham v. Connor, 490 U.S. 386, 395-97, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989) (emphasis added). The facts of each case obviously are critical in determining when force is excessive. This court has recognized that "force that may be considered excessive in one setting may be considered necessary and reasonable under different circumstances." Popham v. City of Kennesaw, 820 F.2d 1570, 1576 (11th Cir.1987). The Fifth Circuit has distinguished between the use or the attempted use of a weapon and mere display by an officer in the line of duty. Hinojosa v. City of Terrell, 834 F.2d 1223, 1231 (5th Cir.1988). That court was unwilling to find that the display of weapons, "that only conditionally threatens actual force," was excessive force or even an unlawful assault under state law for an officer executing his responsibilities. Id.
Distinguishing state-imposed confinement or custody cases, the Hilliard court concluded that "it was not clearly established in 1988 that someone whose person was not under some degree of physical control by the state or who was not involved in a fourth amendment search or seizure would have a clearly established, constitutionally protected liberty interest." Id. at 1520; see Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (The Supreme Court recognized a substantive due process liberty interest of a mentally retarded child, who was involuntarily committed to a state institution, in being safe in his environment.); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (Prison officials who show deliberate indifference to a prisoner's serious illness or injury violate the Eighth Amendment.); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794 (11th Cir.1987) (en banc) ("We hold that a child involuntarily placed in a foster home is in a situation so analogous to a prisoner in a penal institution and a child confined in a mental health facility that the foster child may bring a section 1983 action for violation of fourteenth amendment rights."). Two other circuit courts have found a personal security right in abandonment situations, although the state had not restricted the movement of the complaining parties. Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), cert. denied, ___ U.S. ___, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990) (After the arrest of an intoxicated male driver and impoundment of the vehicle in which she was riding, the female passenger, who was left on the roadside late at night where she was raped, raised a genuine factual dispute concerning whether the officer deprived her of her security interest in personal security.); White v. Rochford, 592 F.2d 381 (7th Cir.1979) (Minor children, who were left alone on a cold night on a busy Chicago freeway, when the driver was arrested, and one of whom required hospitalization for a week, stated a section 1983 claim.). The Hilliard court found that the fact that two other circuits had found a constitutional duty on the part of officers who abandoned passengers in cars when the driver was arrested and the car impounded "represents the essence of a legal question whose answer is not `clearly established.'" Hilliard, 930 F.2d at 1520. Expressing concern in holding an officer responsible for unsettled constitutional law regarding abandonment, the Wood dissent stated:
Wood, 879 F.2d at 599-600, 604 (Carroll, J., dissenting).
Additionally, the Supreme Court has concluded that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Dept't of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989). The Hilliard court bolstered its conclusion that the law regarding abandonment of a passenger of a vehicle, which was impounded, was not clearly established by the Supreme Court's expressed reason for granting certiorari in DeShaney as being "`[b]ecause of the inconsistent approaches taken by the lower courts in determining when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual's due process rights.'" Hilliard, 930 F.2d at 1520 (quoting DeShaney, 489 U.S. at 194, 109 S.Ct. at 1002). DeShaney, therefore, acknowledges that, from the Supreme Court's perspective, the law concerning a duty to provide protective services by a state or local government was unsettled when the facts of this case occurred in 1985.