FOREMAN v. ST. LUCIE

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Docket Number

No. 08-12562, Non-Argument Calendar.

Attorney(S)

Harriet R. Lewis, Lewis Stroud Deutsch PL, Boca Raton, FL, for Plaintiffs-Appellants. Rhea Pincus Grossman, Esq., Ft. Lauderdale, FL, for Defendants-Appellees.

Judges

Stanley Marcus
Charles R. Wilson
Emmett Ripley Cox

Acts

Crimes — Weapons And Firearms — Field of regulation of firearms and ammunition preempted

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Smart Summary

Factual and Procedural Background

This case arises from a neighbor dispute in the City of Port St. Lucie involving Plaintiffs Leda and William Foreman. Police officers Brando and Mesiti responded to the scene after a neighbor's worker reported that Mrs. Foreman had argued with him and discharged a BB gun at a target in her backyard. Officer Brando searched the Foremans' property, found a BB gun, and pointed the unloaded BB gun at Mr. Foreman, pulling the trigger while Mrs. Foreman watched unaware the gun was empty. Brando applied for and obtained an arrest warrant against Mrs. Foreman under a city ordinance prohibiting discharge of air guns. Mrs. Foreman surrendered to authorities the following day. The State Attorney's office later declined to prosecute her.

The Foremans filed suit against the City of Port St. Lucie and the officers in their individual and official capacities, asserting seven claims including false arrest/imprisonment, assault, negligent training, intentional infliction of emotional distress, loss of consortium, and malicious prosecution. The district court dismissed all claims except the assault claim, holding that the ordinance was valid, probable cause existed for the arrest, and the emotional distress claim was insufficiently pleaded. The Foremans appealed the dismissals and the striking of their expert witnesses; the latter issue was not addressed on appeal due to affirmance of the dismissals.

Legal Issues Presented

Whether the district court erred in applying a heightened pleading standard in dismissing the Foremans’ claims.
Whether the Port St. Lucie Ordinance banning discharge of air guns is invalid due to preemption by Florida Statute § 790.33.
Whether probable cause existed for Mrs. Foreman’s arrest under the Ordinance.
Whether the Amended Complaint sufficiently stated a claim for intentional infliction of emotional distress.

Arguments of the Parties

Appellants' Arguments (Foremans)

The district court improperly applied a heightened pleading standard, leading to erroneous dismissal of all claims.
The Ordinance is invalid because Florida Statute § 790.33 preempts municipal firearm regulation.
There was no probable cause for Mrs. Foreman’s arrest, as the neighbor’s worker’s information was insufficient.
The Amended Complaint alleged sufficient facts to support a claim for intentional infliction of emotional distress.

Appellees' Arguments (City and Officers)

The Ordinance is valid as it regulates BB guns, which are not firearms under Florida law, and thus not preempted.
Probable cause existed based on an eyewitness report of a crime (discharge of a BB gun) under the Ordinance.
The facts alleged do not meet the high threshold required to sustain an intentional infliction of emotional distress claim.
The district court properly applied the pleading standards and dismissed the claims accordingly.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Petz v. State, 917 So.2d 381 (Fla.Dist.Ct.App. 2005)	BB guns are not firearms under Florida Statutes Chapter 790.	Supported the court’s conclusion that the Ordinance regulating BB guns is not preempted by state firearm laws.
Dade County v. Keyes, 141 So.2d 819 (Fla.Dist.Ct.App. 1962)	Severability of ordinances is presumed even if no severability clause is present.	Supported the court’s rejection of the argument that the Ordinance was invalid in whole due to lack of severability clause.
U.S. v. Bell, 457 F.2d 1231 (5th Cir. 1972)	Probable cause exists when an eyewitness reports witnessing a crime to police.	Supported the court’s finding that probable cause existed based on the neighbor’s worker’s eyewitness report.
Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc)	A court is not required to allow amendment of a complaint if no request is made.	Supported the court’s rejection of the Foremans’ contention that they could have amended to allege lack of probable cause.
Welding Servs., Inc. v. Forman, 509 F.3d 1351 (11th Cir. 2007)	An appellate court may affirm a district court’s ruling on any ground supported by the record.	Supported affirmance of dismissal of emotional distress claim on grounds other than those relied on by district court.
Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla. 1985)	Defines the high standard for outrageous conduct necessary to sustain intentional infliction of emotional distress claims.	Supported the court’s conclusion that the alleged conduct was not sufficiently outrageous to state a claim.

Court's Reasoning and Analysis

The court began by affirming the validity of the Port St. Lucie Ordinance banning discharge of air guns, reasoning that Florida Statute § 790.33 preempts municipal firearm regulation but does not extend to BB guns, which are not classified as firearms under Florida law. The absence of a severability clause in the Ordinance did not invalidate it because Florida law presumes severability.

Regarding probable cause, the court held that the neighbor’s worker’s eyewitness report that Mrs. Foreman discharged a BB gun constituted sufficient probable cause for arrest under established precedent. The court rejected the Foremans’ argument that they should have been allowed to amend the complaint to challenge probable cause, noting no request for amendment was made.

On the claim for intentional infliction of emotional distress, the court applied Florida’s stringent standard requiring conduct "beyond all possible bounds of decency." The court found the alleged conduct—pointing an unloaded BB gun and pulling the trigger while Mrs. Foreman watched unaware it was unloaded—did not meet this threshold. Thus, the district court’s dismissal was affirmed, albeit on different grounds than originally stated.

Finally, the court rejected the Foremans’ claim that the district court applied a heightened pleading standard improperly. It found the dismissals were based on the sufficiency of the allegations rather than an improper standard.

Holding and Implications

The court AFFIRMED the district court’s dismissal of all claims brought by the Foremans, except for the assault claim which was not challenged on appeal.

The direct effect of this decision is that the Foremans’ claims against the City of Port St. Lucie and the officers for false arrest, malicious prosecution, negligent training, loss of consortium, and intentional infliction of emotional distress are dismissed and terminated in favor of the defendants. The court’s ruling confirms the validity of the municipal ordinance regulating BB guns and affirms the existence of probable cause based on eyewitness reports. No new legal precedent was established beyond application of existing law to the facts of this case.

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Leda FOREMAN, William Foreman, Plaintiffs-Appellants, v. CITY OF PORT ST. LUCIE, Dominick Mesiti, indi

PER CURIAM:

I. Factual Background

We review a dismissal for failure to state a claim; we summarize briefly the following relevant facts taken from the Plaintiffs' Amended Complaint. There was a dispute between neighbors in the City of Port St. Lucie ("Port St. Lucie"). When police officers Robert Brando and Dominick Mesiti arrived at the scene, one neighbor's worker told the officers that Leda Foreman had argued with him and used a BB gun at a target in her backyard. (R.2-67 at 3.)

Brando searched the Foremans' garage and backyard and found a BB gun. When Mr. Foreman approached Brando to discuss the incident, Brando pointed the empty BB gun at Mr. Foreman and pulled the trigger. Mrs. Foreman watched this incident but did not know the BB gun was empty. ( Id. at 3-4.) Brando then applied for a warrant for the arrest of Mrs. Foreman, which was issued by the magistrate. The warrant was based on a violation of Port St. Lucie Ordinance Section 130.01 ("Ordinance") which, prohibits the discharge of any air gun within the city limits. ( Id. at 4-5.)

Brando then called Mrs. Foreman on the phone and informed her that an Arrest Affidavit had been issued for her violation of the Ordinance, and Mrs. Foreman surrendered herself to the St. Lucie County jail the next day. (R.2-67 at 4-6.)

The St. Lucie County State Attorney's office eventually declined to prosecute Mrs. Foreman based on her violation of the Ordinance. ( Id. at 8.)

II. Procedural History

The Foremans brought suit against Port St. Lucie and also against Mesiti and Brando in their individual and' official capacities. The Amended Complaint seeks relief on seven claims (R.2-67 at 10-19): Count I is Mrs. Foreman's § 1983 claim for false imprisonment and false arrest against Mesiti and Brando; Count II is Mrs. Foreman's § 1983 claim against Port. St. Lucie for a policy of allowing false arrests under the Ordinance; Count III is Mr. Foreman's assault claim against Brando; Count IV is Mrs. Foreman's negligent training claim against Port St. Lucie; Count V is Mrs. Foreman's intentional infliction of emotional distress claim against Brando; Count VI is Mr. Foreman's loss of consortium claim against Port St. Lucie, Brando, and Mesiti; and Count VII is Mrs. Foreman's malicious prosecution claim against Brando and Mesiti.

The Defendants filed a motion to dismiss for failure to state a claim. The district court adopted the report and recommendation of the magistrate judge and dismissed all but the assault claim. (R.2-98 at 1-2.) The district court held that the Ordinance was valid (R.2-92 at 4), that the facts alleged in the Amended Complaint gave probable cause for the arrest ( id. at 4-9), and that the facts alleged in the Amended Complaint did not make out a claim for intentional infliction of emotional distress ( id. at 9-10).

The assault claim was dismissed on summary judgment and Mr. Foreman does not challenge that judgment. (R.2-101 at 3-4.)

The Foremans appeal the dismissal of their claims. They argue first that the district court erred in applying a heightened pleading standard to their motion to dismiss and thus erroneously dismissed all seven Counts. Second, they argue that the district court erred in holding that the Ordinance was valid, and accordingly erred in dismissing part of Count 1 and all of Count 2. Third, the Foremans argue that the district court erred in holding that probable cause existed, and thus erred in dismissing the remainder of Count 1, and all of Counts 4, 6, and 7. Finally, the Foremans argue that their complaint did allege sufficient facts to state a claim for intentional infliction of emotional distress, and so the district court erred in dismissing Count 5.

The Foremans also appeal the district court's order striking their expert witnesses. Because we affirm the dismissal of all the Foremans' claims, we do not address this issue.

III. Discussion

A. The Ordinance is valid in its regulation of BB guns.

Mrs. Foreman argues Fla. Stat. § 790.33 preempts the Ordinance banning the discharge of an air gun in the city' limits of Port St. Lucie. Specifically, Mrs. Foreman argues that the Ordinance is void because Fla. Stat. § 790.33 preempts the whole field of firearm and ammunition regulation, and states that any city, county, or other municipal ordinance regulating firearms and ammunition is void.

While it is true that Fla. Stat. § 790.33 does preempt municipal regulation of firearms, a BB gun is not a firearm under Chapter 790 of the Florida Statutes. Petz v. State, 917 So.2d 381, 383 (Fla.Dist.Ct.App. 2005).

The Foremans also argue that because the Ordinance does regulate some firearms, the preemption provision of Fla. Stat. § 790.33 renders the entire Ordinance invalid since the Ordinance does not contain a severability clause. Florida law, however, allows severability absent a severability clause. Dade County v. Keyes, 141 So.2d 819, 821-822 (Fla.Dist.Ct.App. 1962).

Section 790.33 of the Florida Statutes does not preempt a municipal ordinance regulating BB guns. Accordingly, the district court did not err in holding that the Ordinance is valid and dismissing part of Count 1 and all of Count 2.

B. Defendants had probable cause to arrest Mrs. Foreman.

The Foremans argue that probable cause for the arrest of Mrs. Foreman did not exist. In particular, the Foremans argue that the information regarding Mrs. Foreman's use of a BB gun provided by a neighbor's worker was insufficient to create probable cause for her arrest.

Probable cause for an arrest exists when an eyewitness reports witnessing a crime to police. U.S. v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972).

Here, the Foremans' Amended Complaint alleges that "Both officers were informed by a worker at the a[sic] neighbor's home that LEDA FOREMAN had started a verbal dispute with him and used a BB gun at a target displayed in her backyard." (R.2-67 at 3.) Because the Amended Complaint alleges that an eye witness reported the discharge of a BB gun, which is a crime under the Ordinance, probable cause existed to arrest Mrs. Foreman. Accordingly, the district court did not err in holding that probable cause existed and dismissing the remainder of Count 1, and all of Counts 4, 6, and 7.

The Foremans argue that had they been given an opportunity to amend the Amended Complaint, they could have alleged facts that would have shown no probable cause existed. A court is not required to allow a party to amend when the party does not request leave to amend. Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).

C. The Amended Complaint did not state a claim for intentional infliction of emotional distress.

Mrs. Foreman next argues that the district court erroneously dismissed her claim for intentional infliction of emotional distress. Specifically, Mrs. Foreman contends that her Amended Complaint adequately alleges that Brando acted with intent to cause emotional distress.

While the district court dismissed Mrs. Foreman's claim for intentional infliction of emotional distress based on her failure to properly allege that Brando acted with the necessary intent, we are free to affirm the ruling of a district court on any ground. Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1355 (11th Cir. 2007). Here, Mrs. Foreman alleges the following facts in support of her claim for intentional infliction of emotional distress: that Brando pointed an unloaded BB gun at Mr. Foreman's chest and pulled the trigger, and that Mrs. Foreman watched this incident without knowing the BB gun was unloaded. (R.2-67 at 16-17.) Florida courts use a very high standard in evaluating whether the facts alleged are sufficiently outrageous to support a claim for intentional infliction of emotional distress. Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla. 1985). Although Florida case law does not discuss the viability of an intentional infliction of emotional distress claim based on facts similar to those of this case, we conclude that the conduct alleged here is not "beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 279 (quoting Restatement (Second) of Torts § 46 (1965)).

Because Mrs. Foreman has not alleged facts sufficiently outrageous to satisfy the outrageous conduct element of a claim for intentional infliction of emotional distress, the district court did not err in dismissing her claim.

D. The district court did not rely on a heightened pleading standard in dismissing the Foremans' claims.

The Foremans argue the district court erred in applying a heightened pleading standard to their case, and accordingly erred in dismissing all counts. We disagree. The district court dismissed all claims except the intentional infliction of emotional distress claim based on what was included in the Amended Complaint. While the district court may have demanded too much of the Amended Complaint in its dismissal of the intentional infliction of emotional distress claim, we affirm that dismissal on another ground.

IV. Conclusion

We rfind no error in the district court's dismissal of all claims.

AFFIRMED.