ORLANDO — A district court judge has granted a motion in favor of a Florida-based activist who routinely records encounters between police and citizens.

Judge Roy Dalton Jr. of the U.S. District Court for the Middle District of Florida ruled that an order striking an affirmative defense of sovereign immunity against claims of false arrest raised by Brevard County Sheriff Wayne Ivey and issued by U.S. Magistrate Judge Gregory Kelly was correct, and the defendant’s appeal was denied.

Plaintiff Jeffrey Marcus Gray alleges that in January while filming a police traffic stop Detective Brian Stoll unlawfully arrested him for trespassing and failing to leave private property after a warning from the property owner.

Gray, who works for the civil liberties website PINAC.com, said that when he was asked to leave the private property, he retreated to a public parking lot. Gray moved to sue in federal court on the grounds for false arrest under Florida law and Fourth Amendment violations of U.S. law. He has previously filed suit against other Florida law enforcement bodies.

Included as defendants in Gray's lawsuit were Stoll and his nominal superior Sheriff Wayne Ivey. Ivey then moved to have the complaint dismissed citing his protection under Florida's sovereign immunity laws.

On April 3, Kelly issued a motion to strike the sheriff’s affirmative defense saying “sovereign immunity is not a defense to a state law false arrest claim based solely on the assertion of lack of probable cause.” Ivey then appealed, moving the case to Dalton’s docket.

In his order, Dalton cited the holding in Lester v. City of Tavares, saying that for a defense of sovereign immunity to be valid, an officer must have the legal authority to make such arrest. A claim of unlawful arrest on its face means that in the eyes of the law the officer had no legal authority to make an arrest.

“In Florida, the tort of false arrest 'is defined as the unlawful restraint of a person against his will, the gist of which action the unlawful detention of the plaintiff and the deprivation of his liberty,'" the ruling states. "'A police officer is invested with discretion to decide whether to arrest, or not to arrest, a person who is properly the subject of an arrest', thus (f)or discretionary immunity to attach, the governmental agency must possess the requisite legal  authority to do the act. Pursuant to this distinction, it logically follows that, under Florida law, '(t)here is no sovereign immunity for false  arrest.' ... Under Florida law, a city is liable for a false arrest claim based upon the actions of its officers. A city may not rely on the defense of sovereign or qualified immunity under Florida law.”

Dalton remanded the case back to Kelly while limiting Gray’s false arrest claim strictly to the issue of whether probable cause existed to make the arrest.  

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