FERRY v. ZAINO 1225 (2025)

ORDER

Plaintiff Diana Ferry, a 58-year-old grandmother, was arrested for possession of cocaine during a traffic stop, but all charges against her were dropped. She has sued both the arresting officer, Defendant Jacob Zaino, and Zaino's supervisor—the Chief of Police of the Town of Jupiter—David England,¹ for violating her constitutional rights under 42 U.S.C. Section 1983. She has also brought state law claims against both defendants. Today the Court resolves each defendant's Motion for Summary Judgment. (DE [56] and [61]). The Court has considered the Motions, the Plaintiff's Responses (DE [72] and [73]), the Defendants’ Replies (DE [83] and [85]), and the supporting materials referenced in the pleadings. The Motions are therefore fully briefed and ripe for review, and the Court being fully advised in the premises determines that Defendant Zaino is not entitled to qualified immunity, so his motion is denied. As to Defendant England's Motion, the Court grants in part and denies in part.

I. BACKGROUND

On October 15, 2023, Ferry was driving home from visiting her daughter. (Zaino Body Worn Camera Video (“BWC”) (conventionally filed at DE [77]) at 1:38-40). Ferry was stopped by Officer Zaino, and she pulled her car over to the shoulder on the right-hand side of the road. BWC at 00:55. Zaino approached her passenger door, and he told her that he stopped her because her license plate light was out. BWC at 1:08-10. Zaino asked Ferry for her license and registration, which she provided. BWC at 1:18-59. Zaino then walked back to his car. BWC at 2:22-24. He next approached her driver side door, and he asked her to exit the vehicle and stand on the side of the road, so that he did not have to stand in the roadway while talking with her. BWC at 2:50-3:02. Ferry offered to pull the car further off the road, but Zaino declined, saying they could both stand on the grass and that he did not want to get hit. BWC at 3:01-07. He also said that he would “get [Ferry] in and out. It's not a big deal.” BWC at 3:21-23. After they walked over to the side of the road, Zaino told Ferry that she was “not in trouble or anything” and he was still getting her “information from her license.” BWC at 3:33-40. He said that he “want[ed] to get [her] out of here nice and easy.” BWC at 3:43-45. But “with [her] past of shoplifting and possession,” he asked her if she was okay with him “checking the car making sure there's no weapons before [he] g[o]t [her] out of here. No bazookas, grenade launchers.” BWC at 3:52-4:18. Ferry vehemently denied ever having shoplifted, but she consented to the search. BWC at 3:56 - 4:18. Zaino said that regarding her criminal background, there may have been a “mixup in the system,” and he told Ferry that he only intended to give her a warning. BWC at 4:11-20.

Zaino proceeded to search her vehicle. BWC at 5:08 – 7:28. While searching under her back passenger seat, Zaino found a small capsule full of white powder.² BWC at 7:18-8:03, 14:16-32. He then performed three tests on the powder. BWC at 8:36 (test 1); 10:52-11:00 (test 2); 13:00-04 (test 3). In between tests 2 and 3, he read the instructions for test 3. BWC at 11:20-12:15. After completing the tests, Zaino read Ferry her Miranda rights. BWC at 13:44-14:12. He then asked her if she had used cocaine before, which she denied. BWC at 14:12-15. Zaino told Ferry that he had found a capsule of white powder in her car that tested positive for cocaine. BWC at 14:17-32. Ferry denied knowledge of the cocaine or of knowing anyone in her family who used cocaine. BWC at 14:33-14:59. A few minutes later, Zaino arrested her. BWC at 18:38 – 20:10. Ferry posited that the capsule may have been a pill that she took for migraine headaches, but she could not remember the name of the pill. BWC at 32:30 – 33:21.

Eventually, after the capsule was tested at a lab the charges against her were dropped. See (Ferry's Depo. (DE [62-1]) pp. 130-31). But damage had already been done—Ferry temporarily lost her job at a preschool as a result of this arrest. (Ferry's Depo. (DE [62-1]) p. 20 ¶ 3). Ferry then sued Zaino and Chief England. (Ferry's Amend. Compl. (DE [36])). Both defendants filed motions for summary judgment, which are before the Court today. (England's M. Summ. Judg. (DE [56])); (DE [61]).

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Tolan v. Cotton, 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));³ see also Alabama v. North Carolina, 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010). “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, 91 L.Ed.2d 202 (1986). An issue is “genuine” if a reasonable trier of fact, viewing all the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material” if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may properly be granted as a matter of law.” DA Realty Holdings, LLC v. Tenn. Land Consultants, 631 Fed. Appx. 817, 820 (11th Cir. 2015).

The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. SEC v. Monterosso, 756 F.3d 1326, 1333 (11th Cir. 2014). “[T]his, however, does not mean that we are constrained to accept all the nonmovant's factual characterizations and legal arguments.” Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994). To prevail on a motion for summary judgment, “the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).

III. DISCUSSION

Ferry raises federal constitutional claims against Zaino, England, and the Town of Jupiter, state constitutional claims against Zaino, and state law tort claims against both Zaino and the Town of Jupiter. The Defendants have moved for summary judgment on all claims.

A. Federal constitutional claims against Zaino

We start with the federal constitutional claims against Zaino. In four separate counts, Ferry alleges that Zaino violated her Fourth Amendment rights by unlawfully detaining her, illegally searching her vehicle, falsely arresting her, and maliciously prosecuting her.

When evaluating these federal constitutional claims, we must determine if Zaino is entitled to qualified immunity. “Qualified immunity protects municipal officers from liability in § 1983 actions as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (quotation omitted), cert. denied, 559 U.S. 936, 130 S. Ct. 1503, 176 L.Ed.2d 109 (2010). “To receive qualified immunity, the officer must first show that he acted within his discretionary authority.” Id. After making this showing, the burden shifts to the plaintiff, who must show that qualified immunity is inapplicable via a two-step test. Id. “Traditionally, a court first determines whether the officer's conduct amounted to a constitutional violation. Second, the court analyzes whether the right violated was ‘clearly established’ at the time of the violation.” Id. (internal citations omitted). For the second prong, “a plaintiff must show that a reasonable person in the defendant's position would have been on notice that his actions violated clearly-established law.” Maggio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000).

A traffic stop is within an officer's discretionary authority, Manners v. Cannella, 891 F.3d 959, 967-68 (11th Cir. 2018), so Zaino satisfies the first step, and the burden shifts to Ferry to prove that Zaino violated her clearly established constitutional rights. At the summary judgment stage, she may do that by showing facts by which a jury could find that Zaino violated those rights. See Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000).

1. Plaintiff's unlawful detainment claim

Taking the unlawful detainment claim first, Ferry must show that there is a genuine question of fact about whether Zaino unconstitutionally detained her. “A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.” Heien v. North Carolina, 574 U.S. 54, 60, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). It is clearly established that an officer must have reasonable suspicion to make a traffic stop. “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). For the qualified immunity analysis, courts will grant immunity if a reasonable officer would have believed there was a reasonable suspicion. See Jackson, 206 F.3d at 1165-66. But qualified immunity will be denied if plaintiffs put on evidence that “a reasonable police officer would have known that he lacked reasonable suspicion.” Id. at 1166.

Whether Zaino is entitled to qualified immunity on this claim hinges on whether it was reasonable for him to believe he had reasonable suspicion to stop Ferry. Zaino says he stopped Ferry because her license plate light was out. Ferry disputes this, asserting that her light was not out. The question of whether Zaino had sufficient reasonable suspicion that the light was out to justify the stop thus comes down to a question of fact.

Construing the evidence in favor of the non-movant, Ferry presents sufficient evidence that a jury could find that her light was operable at the time of the stop. Most importantly, the BWC does not show a faulty tag light. Zaino's argument that Ferry cannot state when she last checked her tag light is a complete red herring. It is akin to the water damage cases this Court handles wherein insurance companies seem to expect homeowners to make daily inspections of their roofs. A jury is free to determine the light was in fact working and that this traffic stop was completely pre-textual. Likewise, a jury is free to determine the tag light was not working. But the bottom line is that this is not a decision for the Court to make thereby depriving plaintiff of her right to jury trial.

Moreover, two days after she was arrested, Ferry took her vehicle to a mechanic for the light to be inspected, and the mechanic found the license plate light was working properly. (Affid. Donald B. Doyle (DE [74-8])). Ferry also took a photograph of the working light a few days after the stop. (DE [74-5]). Ferry presents evidence that the light was not out, while Zaino has no evidence other than his own statements that the light was indeed out.⁴ That is a classic jury question. And here, in the Court's view, after viewing the BWC as required by Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the BWC hurts, not helps resolution of this motion in Defendant's favor. Thus, the record contains sufficient facts that a jury could find that there was no reasonable suspicion justifying the stop.⁵ Likewise, based on this evidence a jury could also find that Zaino could not have reasonably believed he had reasonable suspicion. See Jackson, 206 F.3d at 1165-66. Since there are questions of fact about whether Zaino should have known he did not have reasonable suspicion to stop Ferry, Zaino is not entitled to qualified immunity on this claim and summary judgment is denied.

2. The illegal search claim

Next, Zaino is not entitled to summary judgment on Ferry's claim that Zaino illegally searched her vehicle under the Fourth Amendment. Zaino claims the search did not violate the Fourth Amendment because Ferry consented to the search, but there are questions of fact as to whether her consent was freely and voluntarily given.

One of the recognized exceptions to the Fourth Amendment's prohibition of warrantless searches is when law enforcement obtains consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When law enforcement relies on consent to justify a search, they have the burden to prove the consent was “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The question of voluntariness is a “question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. Relevant factors that courts consider when deciding if consent is voluntary include the coercive nature of law enforcement's questions, id. at 229, 93 S.Ct. 2041; whether the person being searched was free to leave, United States v. Lopez-Pages, 767 F.2d 776, 779-80 (11th Cir. 1985); the vulnerable state of the person being questioned; Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041; whether law enforcement indicates that the investigation has focused on that individual person, United States v. Chemaly, 741 F.2d 1346, 1353 (11th Cir. 1984); and whether the person was aware that they do not have to consent, United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001).

Another important factor is whether the subject of the search gave consent after being illegally seized. Fla. v. Royer, 460 U.S. 491, 507-08, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“Because we affirm the Florida Court of Appeal's conclusion that Royer was being illegally detained when he consented to the search of his luggage, we agree that the consent was tainted by the illegality and was ineffective to justify the search.”); Hudson v. Hall, 231 F.3d 1289, 1294 n.4 (11th Cir. 2000) (“In other words, to decide whether every reasonable officer in Officer Hall's position would have known that Plaintiffs had not consented voluntarily to a search of their persons, we must consider, among other things, whether Plaintiffs’ consent (if any) was tainted by an illegal traffic stop and, more important, whether every reasonable officer would have been aware of such taint.”); United States v. Waksal, 709 F.2d 653, 663 (11th Cir. 1983).

Here, after initially approaching from the passenger side—off the side road—Zaino came up to Ferry's driver door—along the road—and asked her to exit the vehicle so that he did not get hit by a car while speaking with her. BWC at 00:57-1:03; 2:56-3:02. Even though Ferry offered to pull the car farther off the road, Zaino declined and asked her to exit the car. BWC at 3:02-07. Once she was out of the car, he told her that she was not in trouble and he was still confirming her information from her license. BWC at 3:35-38. He also said he wanted to “get [her] out of here nice and easy.” BWC at 3:44-46. But “with [her] past of shoplifting and possession,” BWC at 3:54-56, Zaino asked her if she was okay with him “checking the car, making sure there's no weapons before you get out of here?” BWC at 4:13-18. Ferry was shocked by the accusation of a criminal past, but she assented to the search, saying, “Sure, sure.” BWC at 3:56-4:12, 4:18-19.

Ferry alleges that her consent was involuntary because Zaino coerced her via manipulation. (DE [36] ¶¶ 38-39). Ferry points to Zaino's contradictory explanations for why he asked her to step out of the car as evidence that he intended to search her car the whole time. (Zaino Depo. (DE [62-2] pp. 34 ¶ 17 – 38 ¶ 3; 49 ¶ 15 – p. 51 ¶ 2). Ferry also argues that Zaino's assurances that she could soon be on her way, sandwiched around his accusation that she had a criminal record, were attempts to coerce her into consenting to the search. (DE [73] pp. 12-13). And curiously, Zaino in procuring consent from the 58-year-old grandmother he had stopped, wasn't concerned with a handgun, but with “bazookas, grenade launchers.” BWC at 3:52-4:18. Also significant in the total calculus, when Zaino began his search for the bazooka, it would no longer have been readily accessible to Ferry.

Taken all together, Ferry shows sufficient evidence that the question of whether her consent was free and voluntary should go before the jury. First, he asked for her consent to search the car after she had exited the vehicle and was standing on the side of the road, where she would be more vulnerable. Right after she exited the vehicle, he told her that he wanted to get her in and out, and later he said that he only intended to give her a warning. If so, he could have approached her vehicle from the passenger side, like he had before and where he would have been safer, and there asked for her consent to search the car. That would have been simplest if he was trying to get her on her way. But instead, he asked her to step out of the car and move to the side of the road, where a jury could find she felt like she had no choice but to consent. Vulnerability is an established factor when determining if consent was voluntary. See Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041. Zaino should have known that her vulnerability might have made her consent involuntary. See Long v. Michigan, 463 U.S. 1032, 1050-51, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (permitting search of area of vehicle accessible to detainee during the stop).

Importantly, Zaino accused Ferry of having a criminal record that she did not have. After assuring Ferry that she was not in trouble and that he would get her out of there “nice and easy,” Zaino told her that she had a past of shoplifting and possession, which Ferry vehemently denied. Zaino said that he had run her license plate, but that it may have been a mix-up in the system. It turns out that Ferry does not have a criminal past. (DE [62-1]) pp. 33 ¶ 17 – 34 ¶ 1). A false accusation falls squarely under “subtly coercive police questions” that undermine voluntary consent. See Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041. Not only did this accusation likely intimidate Ferry, but it also would also have indicated that Zaino was specifically investigating her because of her alleged past, which would have made her feel like she was not free to leave. See Chemaly, 741 F.2d at 1353 (questioning that indicates the person is an individualized target of an investigation may make consent involuntary). This false accusation provides significant support for the conclusion that her consent was not voluntary. By searching her car after making this accusation, Zaino may have violated her clearly established constitutional rights. See Chemaly, 741 F.2d at 1353.

Further indicating that Zaino may have violated her clearly established constitutional rights, Zaino may have known that she did not have a criminal record, in which case, he would have known he was intimidating her and her consent was involuntary. There is no evidence other than Zaino's statements that the database indicated that Ferry had been convicted of shoplifting and drug possession. (DE [62-2] p. 41 ¶¶ 14-16). This Court does not question Zaino's credibility lightly. But Zaino—like any other person—s subject to the same human frailties and ability to get things wrong. Considering that Zaino was wrong about her criminal record and wrong that the capsule contained cocaine, this Court recognizes that Zaino's credibility is in question. And since there are facts that could show he knew he was intimidating her and thus violating clearly protected rights, Bumper, 391 U.S. at 548, 88 S.Ct. 1788, the totality of the circumstances continues to weigh against granting qualified immunity.

Adding further pressure on Ferry, at the same time that Zaino accused of her having a criminal record, he asserted multiple times that he would get Ferry on her way soon. He also told her that he only intended to give her a warning. The tandem of these promises of a quick release with the fearful accusations of prior criminal activity would have subtly pressured most people to give the officer what he wanted—permission to search the car. This conduct amounted to the “subtly coercive police” activity forbidden in Schneckloth. See 412 U.S. at 229, 93 S.Ct. 2041. Ferry has presented significant evidence that these promises, sandwiched with the accusation, tainted her consent, and that Zaino should have known this conduct violated her established constitutional right to be free from unreasonable searches.

Ferry may have also not felt free to decline because she was not free to leave, since Zaino still had her registration, BWC at 3:35-38, and she was not informed that she did not have to consent. Although not dispositive, these do counsel against her consent being free and voluntary. Lopez-Pages, 767 F.2d at 779-80; Purcell, 236 F.3d at 1281. That Zaino makes a practice of not telling people they can refuse to consent because they are more likely to decline would point to Zaino knowing that her consent was not voluntary. See (DE [62-2] p. 44 ¶ 21 – p. 45 ¶ 2).

Finally, the question of consent cannot be considered in a vacuum—as we discussed above, there is a question of fact as to the lawfulness of the stop. If the initial stop was illegal, then that is further evidence that her consent was tainted and not voluntary. See Royer, 460 U.S. at 507-08, 103 S.Ct. 1319. If a reasonable officer would know the stop was unreasonable and that it impacted the voluntariness of her consent, then that counsels against giving Zaino qualified immunity. See Hudson v. Hall, 231 F.3d 1289, 1294 n.4.

All told, there is sufficient evidence in the record that Ferry's consent may have not been given freely. This evidence could also show that Zaino should have known her consent was not voluntary. He asked her to get out of her car, accused her of a criminal past but promised to get her on her way quickly, intentionally did not inform her that she could refuse, and all while she was not free to leave. A jury could certainly find under those facts Zaino knew that Ferry would have no choice but to consent. Of course, Zaino also presents evidence that her consent was freely given, but it is not our job to decide the facts. The question before us is whether, viewing the facts in the light most favorable to Ferry, we can grant Zaino qualified immunity as a matter of law. Because the facts in the record could support a finding that Zaino knowingly coerced Ferry into consenting to the search, we cannot grant qualified immunity, so we deny summary judgment.

3. Unlawful arrest

Next the Court turns to Ferry's claim that Zaino unlawfully arrested her. An officer must have probable cause that the suspect has committed a crime before making a warrantless arrest. D.C. v. Wesby, 583 U.S. 48, 56, 138 S.Ct. 577, 199 L.Ed.2d 453 (2018). Here, Zaino lacked probable cause.

After receiving Ferry's consent, Zaino searched her car. Under her passenger seat, he found a capsule full of white powder. BWC at 14:16-32. That capsule was full of magnesium, (DE [62-1] p. 41 ¶ 25 – p. 42 ¶ 8, p. 130), but according to Zaino, it tested positive for cocaine. BWC at 14:30-32. Zaino performed three tests on the capsule, all of which he claimed returned positive for cocaine. But in the BWC video, it is not possible to see the tests change color to blue, BWC at 8:36 (test 1); 10:52-11:00 (test 2); 13:00-04 (test 3), like they would if they indicated the presence of cocaine. Zaino Dep. p. 74, ln. 15-17, BWC at 32:06-18 (test 1); p. 77, ln. 23 – p. 78, ln. 2 (test 2); p. 79, ln. 2-22 (test 3). In fact, the tests do not appear to change color at all. BWC at 8:36 (test 1); 10:52-11:00 (test 2); 13:00-04 (test 3). After completing the tests, Zaino read Ferry her Miranda rights. BWC at 13:42-14:13. Based on these tests, Zaino arrested Ferry for possession of cocaine. BWC at 20:07-10.

Ferry argues, and we agree, that there is sufficient evidence that Zaino lacked probable cause to deny qualified immunity. First, there are questions of fact whether the initial stop and the search were lawful. Probable cause to arrest cannot be justified solely on evidence obtained through an unlawful stop and search. See Royer, 460 U.S. at 507-08, 103 S.Ct. 1319; Waskal, 709 F.2d at 663. Since there are pressing questions of fact as to whether the initial stop and search are lawful, we cannot as a matter of law find that Zaino had probable cause to arrest Ferry.

But even if the stop and search were lawful, there are still questions of fact regarding probable cause to arrest. Ferry points to facts suggesting that the tests Zaino performed actually did not indicate the presence of cocaine. (DE [36] ¶ 42). The video does suggest that none of the tests turned the required blue color. It is not our task here to decide whether the tests registered positive for cocaine—rather, we recognize that there are sufficient facts in the record that a jury could find that the tests did not return positive. And if the tests did not return positive, then there would be no basis for probable cause to arrest Ferry.

Not only is there evidence that Zaino lacked probable cause to arrest Ferry, but also based on the evidence currently before the Court, Zaino should have known he lacked probable cause. So, he is not entitled to qualified immunity and summary judgment is denied.

4. Malicious prosecution

We now turn to Ferry's last federal constitutional claim against Zaino—that he maliciously prosecuted her. To satisfy a claim of malicious prosecution under section 1983, Ferry must prove the following elements: “(1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff accused's favor; and (4) caused damage to the plaintiff accused[;] ․ (5) ‘that the legal process justifying [her] seizure was constitutionally infirm’ and (6) ‘that [her] seizure would not otherwise be justified without legal process.’ ” Butler v. Smith, 85 F.4th 1102, 1111-12 (11th Cir. 2023) (internal citations omitted).

Zaino only challenges what would amount to the second and fifth elements—that the prosecution was initiated with malice and without probable cause and that the legal process was constitutionally infirm. Those two elements essentially blend into one. Id. at 1112. “If a plaintiff establishes that a defendant violated his Fourth Amendment right to be free from seizures pursuant to legal process, he has also established that the defendant instituted criminal process against him with malice and without probable cause.” Luke v. Gulley, 975 F.3d 1140 (11th Cir. 2020).

Ferry has satisfied that blended element. As discussed above, she has produced evidence that a jury could find Zaino violated her Fourth Amendment right to be free from seizures. She has introduced evidence that Zaino should have known he lacked reasonable suspicion to stop her, that he unlawfully searched her vehicle, and that he lacked probable cause to arrest her. Ferry satisfies this element.

She also satisfies the other elements. Zaino recommended charges be brought against her based on the evidence he found when he searched and seized her, the charges were dropped because there was no evidence, and Ferry lost her job as a result of her arrest. See (DE [62-1]) p. 20 ¶ 3, p. 130-31). Not only does Ferry provide evidence to support her malicious prosecution claim, but also viewing that evidence in her favor, Zaino should have known that he was violating her clearly established rights by prosecuting her. See Butler, 85 F.4th at 1111-12. Zaino is not entitled to qualified immunity on this claim, so we deny summary judgment.

B. State law claims against Zaino

Having addressed the federal constitutional claims against Zaino, we next turn to Ferry's state law claims against him, beginning with the constitutional claims. In separate claims, Ferry alleges that Zaino unlawfully seized and unlawfully searched her under Article I, Section 12 of the Florida Constitution. Because Florida interprets its constitutional search and seizure provision in “conformity” with the Fourth Amendment, see art. I, § 12, Fla. Const., our “analysis of [Ferry]’s claims under the Fourth Amendment therefore applies equally to [Ferry]’s claims under the Florida Constitution.” State v. Peterson, 739 So. 2d 561, 564 (Fla. 1999). Since we determined that Ferry has presented sufficient facts to support her federal unlawful seizure and unlawful search claims going to a jury, we likewise deny summary judgment on her state unlawful seizure and unlawful search claims.

We now address Ferry's state law tort claims, beginning with her claim of false arrest or imprisonment. Under Florida law, “[f]alse imprisonment is the unlawful restraint of a person against his will, the gist of which action is the unlawful detention of the plaintiff and deprivation of his liberty.” Johnson v. Weiner, 155 Fla. 169, 19 So. 2d 699, 700 (1944). “A plaintiff must show that the detention was unreasonable and unwarranted under the circumstances.” Rivers v. Dillards Dep't Store, Inc., 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997). Proof of probable cause is an affirmative defense against claims of false imprisonment, but the plaintiff only needs to prove that she was unlawfully restrained. See Jackson v. Navarro, 665 So. 2d 340, 342 (Fla. 4th DCA 1995). Since Ferry has presented evidence that she was unlawfully restrained as well as arrested without probable cause, she has more than enough evidence to present her false imprisonment case to the jury, and summary judgment is denied.

For Ferry's state tort malicious prosecution claim, the elements are slightly different than for her federal constitutional claim. To survive summary judgment on her state law claim, Ferry must show facts supporting the following six elements:

(1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action.

Burns v. GCC Beverages, Inc., 502 So. 2d 1217, 1218 (Fla. 1986) (quoting Buchanan v. Miami Herald Publishing Co., 230 So.2d 9, 11 n. 3 (Fla. 1969)).

Zaino only challenges the fourth and fifth elements—lack of probable cause and the presence of malice. As discussed above, Ferry has produced sufficient evidence to support her argument that Zaino lacked probable cause.

As far as malice, the record contains enough evidence that a jury could make such a finding. In Florida, legal malice “requires only ‘proof of an intentional act performed without legal justification or excuse’ and ‘does not require proof of evil intent or motive.’ ” Coleman v. Hillsborough Cnty., 41 F.4th 1319, 1326 (11th Cir. 2022) (quoting Reed v. State, 837 So. 2d 366, 369 (Fla. 2002)). There is evidence that Zaino unlawfully stopped, unlawfully searched, and unlawfully arrested Ferry. This is sufficient to show malice. We deny summary judgment on this claim too.

C. Chief of Police England's motion for summary judgment

Having addressed Zaino's motion for summary judgment, we now examine Chief of Police England's motion for summary judgment. Ferry sued Chief England in both his official and individual capacities, raising three claims: a Monell claim under Section 1983 against England in his professional capacity (referred to as the Town of Jupiter); a failure to train claim under Section 1983 against England in his individual capacity; and what amounts to a respondeat superior claim under Section 768.28, Florida Statutes, against the Town of Jupiter.

1. The Monell claim

Beginning with the Monell claim, to sustain a Section 1983 claim against a municipality or its employees in their official capacity, the plaintiff must show that “a government's policy or custom ․ inflicts the injury.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This requires satisfying three elements: “(1) that [the plaintiff's] constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). When a plaintiff is alleging that a municipality improperly trained its police officers, the Supreme Court has provided the following standard:

The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.

City of Canton, Ohio v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Here, Ferry cannot point to evidence of such a glaring lack of training that the Town of Jupiter would have been aware it has a “policy” of inadequate training. Ferry claims that the Town of Jupiter should have known that its lack of formal training program would lead to false arrests. (DE [36] ¶ 53-56). Except that Ferry cannot point to any other false arrests made by Jupiter officers, and England testified that he is not aware of any other drug tests that returned a false positive. (England's Depo. (DE [58-5] p. 28 ¶ 9-12)).

The Town of Jupiter also has an established drug training program for its new officers. (DE [58-5] p. 16 ¶ 8-21). If no opportunity presents itself during field training, the field training officer will require the new officers to demonstrate proficiency in performing drug tests before the field training officer signs off on the training. (DE [58-5] p. 18 ¶ 12-24). And Zaino was trained and did perform drug tests during training. (Counihan Depo. (DE [58-6] p. 86 ¶ 17 – p. 88 ¶ 12)). The drug test packet also includes instructions for one of the tests, which Zaino read. BWC at 11:20-12:00.

Ferry argues that a single violation of constitutional rights—her rights—and a municipality's failure to train employees to avoid such obvious constitutional violations is sufficient under Section 1983. (DE [72]) p. p-.5-6 (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997))). But failure to train claims based on a single violation have been recognized as a “narrow range of cases.” Id. And such a claim requires that the lack of training be so poor that it was predictable the officer would violate constitutional rights. Id. But instead, there is evidence that there have been no similar constitutional violations. (DE [58-5] p. 28 ¶ 9-12). For something as common and regularly occurring as drug testing, there should be more instances of constitutional violations if the lack of training made such violations predictable.

The Eleventh Circuit has held that “a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Ferry has not done that. She argues that the confusing nature of the instruction sheet as well as officers’ use of drug tests as sole evidence for probable cause should have put the Town of Jupiter on notice that more training was required. (DE [72] p. 8). But asserting that the training could have been better does not actually mean that it should have been better. She cannot point to any other instances of false positive drug tests. She cannot point to evidence that the Town of Jupiter should have known it needed to better train its officers.

The training that the Town of Jupiter does provide, combined with the lack of similar constitutional violations, is dispositive. The Town of Jupiter is entitled to summary judgment on this claim.⁶

2. Claims against Chief England personally

Similarly, when suing England personally, Ferry fails to demonstrate England did not properly train or supervise his officers. To prove individual liability against a supervisor under Section 1983, “a plaintiff must show that the supervisor either directly participated in the unconstitutional conduct or that a causal connection exists between the supervisor's actions and the alleged constitutional violation.” Keith v. DeKalb Cnty., Georgia, 749 F.3d 1034, 1047-48 (11th Cir. 2014). And a causal connection can be established when:

(1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails to do so; (2) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew that subordinates would act unlawfully and failed to stop them from doing so.

Myrick v. Fulton Cnty., Georgia, 69 F.4th 1277, 1298 (11th Cir. 2023) (quoting Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007)).

Ferry does not point to any evidence that England was involved in the alleged unconstitutional conduct, nor that England was causally connected with Zaino's conduct. As discussed above, Ferry has no evidence of similar constitutional violations nor does she show that the training resulted in the officers treating constitutional rights with indifference. Neither does she show that England knew his officers would act unlawfully and not properly administer tests. Again, the evidence is the opposite—this was the only instance of a false positive that England could remember. Ferry fails to show that England did not properly train his officers. Granting summary judgment is appropriate on this claim.

3. Florida Statutes Section 768.28 claim against the Town of Jupiter

Finally, we come to Ferry's claim against the Town of Jupiter under Section 768.28 (Florida Statutes) for Zaino's tortious actions. Section 768.28(1) waives sovereign immunity “for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment.” The Town of Jupiter argues Zaino's tortious acts were made in bad faith, so the city is not liable under subsection (9)(a): “The state or its subdivisions are not liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” § 768.28(9)(a).

However, the Town of Jupiter does not prove that Zaino's conduct was in bad faith or malicious. Just as whether Zaino actually violated Ferry's constitutional rights depends on findings of fact and must go to a jury, so too the question of whether Zaino acted maliciously and in bad faith under Section 768.28 or only acted negligently is a question for the jury. See McGhee v. Volusia Cnty., 679 So. 2d 729, 733 (Fla. 1996) (“In sum, the question must be put to the fact-finder whether [the officer] acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or wil[l]ful disregard of human rights, safety, or property.”).

As to the Town's argument that Ferry cannot plead alternatively in this count that Zaino was not acting wantonly when she alleged the opposite in other counts, Federal Rule of Civil Procedure 8(d)(2)-(3) expressly allows such alternative pleading, even when the claims are inconsistent.

Lastly, the Town of Jupiter argues that if this Court does accept Ferry's alternative arguments, Zaino did have probable cause and did not violate Ferry's rights, so the Town is not liable under Section 768.28. But for the reasons discussed above, there is sufficient evidence that Zaino did violate Ferry's clearly established rights, so we cannot grant sovereign immunity or summary judgment on this claim.

IV. CONCLUSION

For the reasons discussed above, it is ORDERED AND ADJUDGED that:

1. Zaino's Motion for Summary Judgment (DE [61]) is DENIED;

2. England's Motion for Summary Judgment (DE [56]) is GRANTED in part and DENIED in part. Summary Judgment is granted as to Ferry's Count V against England in his official capacity (DE [36] ¶¶ 52-60) and Ferry's Count VI against England in his personal capacity (DE [36] ¶¶ 61-70). Summary judgment is denied as to Ferry's Count XI under Section 768.28 (Florida Statues) against England in his official capacity (DE [36] ¶¶ 92-98).

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 6th day of November 2025.

FOOTNOTES

1.   Ferry has sued England both in his individual and official capacities. The suit against England in his official capacity essentially amounts to a suit against the Town of Jupiter, his employer at the time. We refer to England in his individual capacity as “England” and in his professional capacity as the “Town of Jupiter.”

2.   Before getting too far into the weeds, the Court would note the following common knowledge: a bazooka is about 60 inches in length, a grenade launcher about 18 inches, a medicine capsule one inch or less.

3.   The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for the former “ ‘genuine issue’ of any material fact.”

4.   It is not possible to see whether the license plate light was working in the BWC video, because Zaino's headlights are shining on the back of Ferry's vehicle, fully illuminating her license plate. See BWC at 00:55-59).

5.   Zaino asserts no reason for the stop other than the allegedly faulty light.

6.   The law on this issue is clear, but it has been developed over years largely by a body of judges who did not handle cases as criminal defense lawyers or 1983 litigators. For that reason, there is no accommodation for the very real situation wherein defendants will plead guilty even if they are not. Clearly, proper training would include having officers test both illegal substances and legal substances during training until they established proficiency. And in 35 years of handling cocaine cases, this Court has never seen cocaine contained in a capsule as described. In fact, this Court has seen cases where individuals swallowed a quantity of cocaine for transportation purposes, only to end up at the morgue. Common sense would suggest that the one-inch capsule here was neither a bazooka, nor a grenade launcher, nor a vessel for cocaine. But from a legal standpoint, the law allows the Department to somewhat place their heads in the sand.

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE