source: Caselaw Access Project

author: SMITH, District Judge:

license: Public Domain

text:
    Harold FISH, Plaintiff-Appellant, v. Tim BROWN, et al., Defendants-Appellees.
    No. 15-12348
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/03/2016

      Marie A. Mattox, Marie A. Mattox, PA, Tallahassee, FL, for Plaintiff-Appellant.
    Before ED CARNES, Chief Judge, and JORDAN, Circuit Judge, and SMITH, District Judge. ‘

       Honorable C. Lynwood Smith, Jr„ United States District Judge for the Northern District of Alabama, sitting by designation.

      . See 42 U.S.C. § 1983, and 28 U.S.C. § 1331.

   SMITH, District Judge:

Two Holmes County, Florida, Deputy Sheriffs entered the home of appellant while accompanying his former lover to the residence for the purpose of retrieving personal belongings left there. The Deputies observed guns in the home and arrested appellant for violating an injunction prohibiting his possession of firearms. He filed suit in the state court system, claiming that the Deputies did not have permission to enter his home, or to proceed so far into the interior that they could see guns. He also alleged they lacked probable cause to arrest. The case was removed to the United States District Court based upon federal question jurisdiction over appellant’s Fourth Amendment claims, and supplemental jurisdiction over his state-law claims. On motion for summary judgment, the district court found that the Deputies were entitled to qualified immunity and dismissed the federal claims with prejudice. Appellant’s supplemental state-law claims were remanded. This appeal followed. After consideration of the parties’ briefs and with the benefit of oral arguments, we affirm.

I. STANDARD OF REVIEW

We review a “district court’s order granting summary judgment de novo, ‘viewing all the evidence, and drawing all reasonable inferences’ in favor of Plaintiff.” Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016) (quoting Vessels v, Atlanta Independent School System, 408 F.3d 763, 767 (11th Cir. 2005)). “Summary judgment is only proper if there are no genuine issues of material fact, and Defendant is entitled to judgment as a matter of law.” Id. (citing Vessels, 408 F.3d at 767).

II. FACTS

Heav’n has no Rage like Love to Hatred turn’d Nor Hell a Fury like a Woman Scorn’d

William Congreve, The Mourning Bride Act III, Scene viii (1697).

Harold Anthony Fish, generally known as “Tony,” is an unmarried man. There is no evidence that he ever read William Congreve’s play, but the events leading to this appeal demonstrate that he learned the painful truth of Congreve’s observation from his former lover, Margo Denise Ries-co. Fish began a sexual relationship with Riesco on some undisclosed date in 2008. Throughout their affair, Riesco resided in Alabama with her husband, but she periodically traveled to Fish’s home in a rural area near Bonifay, Florida, where she stayed with him -for as long as a week at a time. Fish asked Riesco to leave her husband in late 2010, but she declined to do so. Fish reacted by calling Riesco’s husband and disclosing their affair.- That not only ended the relationship, but unsurprisingly caused Riesco to develop “animosity or ill feelings toward Mr. Fish.”

On March 11, 2011, following the end of the affair, a Florida Circuit Court entered an injunction in favor of Fish’s-sister and brother-in-law, protecting them from acts of domestic violence by Fish. Among other things, he was prohibited from having any firearm in his “care, custody, possession or control.” Riesco learned of the injunction from Fish’s sister, with whom she had maintained a friendship.

Riesco called Fish on April 20, 2011, and announced that she was 'en route1 to his home for the purpose of retrieving personal items left there. Before driving all the way to his residence, however, she stopped by the office of the Holmes County, Florida, Sheriff to request an escort. The exact words spoken by Riesco are disputed, but it is clear that “she at least told the officers that she feared for her safety during the encounter....”

Deputy Tyler Harrison was instructed by a Departmental supervisor to escort Riesco, and Deputy Tom Loucks was separately directed to meet Riesco and Harrison at the residence, to provide “back up.” Harrison followed Ms. Riesco’s vehicle in his official cruiser. As they neared Fish’s residence, Harrison activated a video camera mounted on the dash of his vehicle, and Riesco’s maroon automobile can be clearly seen traveling on unpaved roads in a rural, heavily-wooded area. She drove her automobile to the rear of the house and parked next to Fish’s SUV.

Riesco exited her vehicle first, and confidently strode to the glass door opening into a sunroom located on the back side of the house, adjacent to a patio and swimming pool area. Deputies Harrison and Loucks followed.

Riesco opened the unlocked glass door and walked, without hesitation, into the sunroom. At the moment Deputy Harrison reached the threshold of the sunroom door, Riesco can be heard—by means of a microphone attached to Harrison’s uniform and linked electronically to the video camera on the dash of his cruiser—knocking on an interior wooden door that previously, prior to construction of the sunroom, had been the rear entrance to the residence. She then said loudly, “Tony?”; and when he responded “Yeah,” she announced “I’m here.”

When Fish opened the wood door, he saw Deputies Harrison and Loucks standing directly behind Riesco. Harrison was in uniform, but Loucks was dressed in street clothes. Even so, Loucks’s badge and sidearm were visible. Nevertheless, neither Deputy withdrew his weapon from its holster, and neither placed his hand on his pistol’s handle in a manner indicating that he intended to draw it. Harrison spoke first, saying:

HARRISON: Hey, Tony.
FISH: How you doing?
HARRISON: You doing all right?
FISH: Uh-huh.

DVD at 02:11 to 02:13. Ms. Riesco then stated:

RIESCO: I brought them to watch so I don’t steal nothing of yours, okay?
FISH: All right.
RIESCO: All Right.
LOUCKS: Doing all right, man?
FISH: I’m good.

DVD at 02:14 to 02:21.

It is obvious that Riesco, Harrison, and Loucks then walked into Fish’s home because, a few seconds after the foregoing exchange, Deputy Harrison can be heard asking Fish what personal items had been left in the house by Riesco—“What all she got here?”—and Fish responded: “It’s all in that drawer in there,” indicating the bedroom that adjoined the living room and kitchen area in which the parties then were standing. As Riesco searched the bedroom, she asked:

RIESCO: Where’s my helmet and my boots?
FISH: In that drawer.
RIESCO: What about my toiletries?
FISH: It’s in there in the bathroom.
RIESCO: My boots aren’t in here.
FISH: They’re on the floor.

DVD at 02:33 to 02:54.

At that juncture, Deputy Harrison observed through the bedroom door a large revolver hanging in its holster from one of the bedposts. He asked: “Tony, you still got that injunction against you for the firearms? ... Says you can’t have firearms in your possession.” Deputy Harrison filed an affidavit in support of summary judgment stating:

I had previously been advised by my supervisor at the Sheriffs Office that there was in place an injunction against domestic violence pertaining to the Plaintiff. I had also been told by Ms. Riesco that the Plaintiff was in possession of firearms. Although I did not have the domestic violence injunction in hand, I was familiar with injunctions of this nature and I am familiar with the form utilized by the court in Holmes County which generally contained a prohibition against the possession or control of firearms or ammunition.

N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶ 8.

Deputy Harrison testified that he was “able to observe portions of a number of other long guns under a bed in the bedroom.” Fish denied that the guns were in plain view, readily visible to Harrison, but his denial was proven false by his own recorded statements, which clearly establish through use of the plural pronouns “they,” “those,” and “them” that he and Deputy Harrison disputed the ownership of more than just the one revolver that was hanging from a bedpost in plain sight:

HARRISON: Tony, you still got that injunction against you for the firearms'!
FISH: Huh-uh.
HARRISON: Says you can’t have firearms in your possession?
FISH: Those aren’t mine.
HARRISON: Whose are they!
FISH: Jared’s [ie., Fish’s son].
HARRISON: Well, they’re out in the open.
FISH: They’re Jared’s.
HARRISON: Whose room is this?
FISH: Huh?
HARRISON: Whose room is this?
FISH: Well, I stay here sometimes, and Jared stays here sometimes.
HARRISON: They’re not locked up, though, is what I’m telling you.
FISH: Oh, okay. I’ll tell him to lock them up.
HARRISON: Naw. He’s going to have to see the judge about that.
FISH: Who?
HARRISON: Jared. We’re going to take them with us. And you’re going to —
FISH: You’re not taking those guns.
HARRISON: Yes, sir, I am.
FISH: No, you’re not.
HARRISON: Yes, sir.
FISH: No, you’re not.
HARRISON: (Inaudible.)
FISH: You’re not.
HARRISON: (Inaudible.)
FISH: You haven’t got a warrant. You’re in my house.’
HARRISON: They’re in plain sight, Tony. I don’t need one. It’s in plain view. Turn around.
FISH: No. No.
HARRISON: Tony, you’re under arrest. You can make it hard on yourself or easy.
FISH: Let me call Jared.
HARRISON: No, sir.
FISH: Let me call Jared.
HARRISON: (Inaudible.)

DVD at 03:03 to 04:04 (emphasis supplied). In any event, Fish did not deny that an urn full of ammunition was clearly visible in the bedroom.

After Harrison placed Fish under arrest, implicitly for violation of the state statute recited in the domestic violence injunction, Fish leaned against the kitchen sink with his hands behind his back in a vain attempt to prevent being placed in handcuffs, and Harrison added the charge of resisting an officer without violence.

Several minutes later, Riesco can be heard on the video whispering a statement to Officer Harrison that suggested her satisfaction over having manipulated a situation that resulted in trouble for the man who had spurned her affections: “Did that work out like a charm, or what?”

The criminal charges against Fish ultimately were dismissed, and he filed a complaint in a Florida Circuit Court, asserting claims against Holmes County Sheriff Tim Brown in his official capacity, and Deputies Harrison and Loucks in their individual capacities. Specifically, Fish asserted claims of: (1) state law false arrest and imprisonment against defendants Harrison and Loucks (Count I); (2) state law false arrest and imprisonment against the Holmes County Sheriffs Office (Count II); (3) state law malicious prosecution against defendants Harrison and Loucks (Count III); (4) Fourth Amendment illegal search and seizure claims against defendants Harrison and Loucks (Count IV); and (5) Fourth Amendment false arrest against the Holmes County Sheriffs Office (Count V). Defendants removed the case to the United States District Court for the Northern District of Florida, where Fish voluntarily dismissed his claims against the Holmes County Sheriff, leaving only his claims against Deputies Harrison and Loucks. The district court entered an order granting summary judgment in favor of both defendants on Fish’s federal constitutional claims, and remanded his supplemental state-law claims. This appeal followed.

III. DISCUSSION

The district court held that Deputies Harrison and Loucks were entitled to qualified immunity from Fish’s Fourth Amendment claims. The doctrine of qualified immunity protects governmental officials who are sued under 42 U.S.C. § 1983 for money damages in their personal, or individual, capacities, but only so long as “their conduct violates no 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, 73 L.Ed.2d 396 (1982). The doctrine requires that a defendant claiming immunity must initially “prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ ” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). If that threshold prerequisite is satisfied, courts generally apply a two-part test. The initial inquiry requires the court to determine whether the facts, viewed “in the light most favorable to the party asserting the injury,” show that “the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If that question is answered affirmatively, the court will proceed to analyze the second aspect of the two-part inquiry: i.e., “whether the right was clearly established.” Id. Strict adherence to the order of those two inquiries is not required, however. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”). Instead, in appropriate cases, it is within a district court’s discretion to assume that a constitutional violation occurred in order to address, in the first instance, the question of whether such a presumed violation was “clearly established” on the date of the incident leading to suit. Id.

When determining whether the unlawfulness of an official’s actions was “clearly established,” the pertinent question is whether the state of the law on the date of the defendant’s alleged misconduct placed defendants on “fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (alteration supplied); Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003) (same).

The Supreme Court has rejected the requirement that the facts of previous cases must always be “materially similar” to those facing the plaintiff. Hope, 536 U.S. at 739, 122 S.Ct. 2508. Instead, in order for a constitutional right to be deemed “clearly established,”

its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411 [ (1985) ]; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Hope, 536 U.S. at 741, 122 S.Ct. 2508 (alteration in original). An officer can receive “fair notice” of his or her unlawful conduct in various ways.

First, the words of the pertinent federal statute or federal constitutional provision in some cases will be specific enough to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity, even in the total absence of case law. This kind of case is one kind of “obvious clarity” case. For example, the words of a federal statute or. federal constitutional provision may be so clear and the conduct so bad that case law is not needed to establish that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for example, the Fourth Amendment on its face, we then turn to case law. When looking at case law, some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable in the future to different sets of detailed facts. See Marsh [v. Butler County, Ala.], 268 F.3d [1014,] 1031-32 n.9 [11th Cir. 2001]. For example, if some authoritative judicial decision decides a case by determining that “X Conduct” is unconstitutional without tying that determination to a particularized set of facts, the decision on “X Conduct” can be read as having clearly established a constitutional principle: put differently, the precise facts surrounding “X Conduct” are immaterial to the violation. These judicial decisions can control “with obvious clarity” a wide variety of later factual circumstances. These precedents are hard to distinguish from later cases because so few facts are material to the broad legal principle established in these precedents; thus, this is why factual differences are often immaterial to the later decisions. But for judge-made law, there is a presumption against wide principles of law. And if a broad principle in case law is to establish clearly the law applicable to a specific set of facts facing a governmental official, it must do so “with obvious clarity” to the point jdiat every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.
Third, if we have no case law with a broad holding of “X” that is not tied to particularized facts, we then look at precedent that is tied to the facts. That is, we look for cases in which the Supreme Court or we, or the pertinent state supreme court has said that “Y Conduct” is unconstitutional in “Z Circumstances.” We believe that most judicial precedents are tied to particularized facts and fall into this category.... When fact-specific precedents are said to have established the law, a case that is fairly distinguishable from the- circumstances facing a government official cannot clearly establish the law for the circumstances facing that government official; so, qualified immunity applies. On the other hand, if the circumstances facing a government official are not fairly distinguishable, that is, are materially similar, the precedent can clearly establish the applicable law.

Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original, alterations supplied). See also Ashcroft v. al- Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”)-

Although Fish’s claims for the defendants’ alleged Fourth Amendment violations comprised only one count of his complaint (⅛&, Count IV), it is clear that he asserted separate claims for an unlawful entry into and search of his home, and, for unlawful arrest.

A. Unlawful Entry

Fish first asserts that Deputies Harrison and Loucks violated his Fourth Amendment rights by entering his home without either a warrant or consent.

The Fourth Amendment guarantees people the right to be “secure in then-persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Without a warrant, “a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley v. California, 573 U.S.-,-, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014). One exception is that a warrantless search is lawful when a person with actual or apparent authority voluntarily consents to law enforcement officers conducting a search. United States v. Watkins, 760 F.3d 1271, 1279 (11th Cir. 2014); Bates v. Harvey, 518 F.3d 1233, 1243 (11th Cir. 2008).

United States v. Thomas, 818 F.3d 1230, 1239-40 (11th Cir. 2016).

1. Entry into the sunroom

The district court correctly found that Deputies Harrison and Loucks were entitled, under the facts of this case, to qualified immunity on Fish’s claim for unlawful entry into his sunroom. We will assume, like the district court, that “the sunroom was not a place where the public would be expected to go” and, therefore, was entitled to the same level of Fourth Amendment protection as the home itself. See United States v. Noriega, 676 F.3d 1252, 1262 (11th Cir. 2012) (“A home’s curtilage, ‘[t]he private property immediately adjacent to a home[,] is entitled to the same protection against unreasonable search and seizure as the home itself.’ ”) (quoting United States v. Taylor, 458 F.3d 1201, 1206 (11th Cir. 2006)) (alterations in original).

Even so, like the district court, we need not determine whether defendants violated Fish’s Fourth Amendment rights by stepping into his sunroom without his explicit consent, because we find that they are entitled to qualified immunity on any such claim. Defendants followed Riesco, whom they knew was familiar with Fish’s home. She parked her automobile in the rear of the house, next to Fish’s SUV. No vehicles were parked in front of the house. Riesco walked confidently from her auto to and through the sunroom door without knocking, or checking to see if it was locked (as though she expected it to be unlocked). She proceeded to walk straight through the sunroom to the interior wood door and knocked. Reisco’s authoritative demeanor caused Deputies Harrison and Loucks to conclude that was the customary-route taken by guests entering the house, and they followed her lead.

Those facts lead to a finding of qualified immunity for two reasons. First, the Deputies could reasonably have relied upon a variation of the “consent-once-removed” doctrine, “which permits a war-rantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view.” Pearson v. Callahan, 555 U.S. 223, 229, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). At the time of the seizure that led to the alleged Fourth Amendment violation in Pearson, only courts from a few federal Circuits (not including the Circuit in which the case arose) had considered the doctrine, but all courts that had considered it had adopted it. Id. at 244, 129 S.Ct. 808. In the absence of law from their own Circuit, the officers who conducted the seizure were entitled to rely upon cases from other Circuits that allowed the “consent-once-removed” doctrine; and, accordingly, they were entitled to qualified immunity. Id. at 244-45, 129 S.Ct. 808. This court does not appear to have addressed the “consent-once-removed” doctrine after the Supreme Court’s 2009 decision in Pearson. Therefore, the doctrine is no more settled today than it was in. 2009. Thus, if the Deputies were entitled to rely upon the doctrine in Pearson, they also were entitled to rely upon it here.

Second, the Deputies reasonably could have believed that the sunroom was “impliedly open to use by the public” for the purpose of gaining access to the principal, interior areas of the house. Coffin v. Brandau, 642 F.3d 999, 1012 (11th Cir. 2011) (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(c) (4th ed. 2004)). See also, e.g., United States v. Garcia, 997 F.2d 1273, 1279-80 (9th Cir. 1993) (“If the front and back of a residence are readily accessible from a public place, like the driveway or parking area here, the Fourth Amendment is not implicated when officers go to the back door reasonably believing it is used as a principal entrance to the dwelling.”). Stated differently, Deputies Harrison and Loucks reasonably could have believed under the circumstances of this case that their entry into the sunroom was lawful. See Jackson v. Sauls, 206 F.3d 1156, 1165 (11th Cir. 2000) (“[A] police officer :is entitled to qualified immunity if a reasonable police officer could have believed his or her actions were lawful in light of clearly established law and the information possessed by the officer at the time the conduct occurred”) (citing Stewart v. Baldwin County Bd. of Education, 908 F.2d 1499, 1503 (11th Cir. 1990)) (alteration supplied).

In summary, the law was not sufficiently clearly established at the time of the alleged violation to give Harrison and Loucks. fair warning that their entry into Fish’s sunroom under the circumstances of this case would violate his Fourth Amendment rights. See Carroll v. Carman, — U.S.-, 135 S.Ct. 348, 349, 190 L.Ed.2d 311 (2014) (holding that police officers should have been entitled to qualified immunity when they entered onto a ground-level deck on the back of a home to knock on a sliding-glass door, believing the door to be a “customary entryway”).

2. Entry into the residence from the sunroom

The district court also correctly found that Harrison and Loucks were enti-tied to qualified immunity on Fish’s claim for unlawful entry into his home from the sunroom. Fish consented to the deputies’ entry by responding “All right” when Ries-co' said she had brought Harrison and Loucks with her “to" watch so I don’t steal nothing of yours, okay?” As the district court found, “[b]y responding affirmatively to Riesco’s introduction of the officers, Fish gave what any reasonable person would have considered explicit verbal consent for the officers to enter his home.”

Plaintiff alternatively argues that if he is deeméd to have given consent, his “consent” was not effective because it was prompted by a “show of official authority.” See United States v. Ramirez-Chilel, 289 F.3d 744, 751 (11th Cir. 2002) (“A suspect does not consent to a search of his residence when his consent to the entry into his residence is prompted by a show of official authority.”) (citing United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986)). Here, however, plaintiffs consent was not prompted by any showing of official authority by the Deputies. Neither Harrison nor Loucks brandished his weapon, and neither demanded entry. Instead, the Deputies simply followed Riesco inside after plaintiff said it was “All right.” Cf. Ramirez-Chilel, 289 F.3d at 751 (finding that consent was not coerced by a show of official authority when the number' of officers was small,' their guns were not drawn, and the occupant of the home voluntarily yielded the right-of-way).

B. Unlawful Search and Seizure of Firearms

The district court correctly found that Harrison and Loucks did not violate Fish’s constitutional rights when they seized firearms within his home, because the firearms were in plain view.

The “plain view” doctrine permits a war-rantless seizure where (1) an officer is lawfully located in the place from which the seized object could be plainly viewed and must have a lawful right of access to the object itself; and (2) the incriminating character of the item is immediately apparent.

United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)); United States v. Hromada, 49 F.3d 685, 690 n. 11 (11th Cir. 1995).

After lawfully entering Fish’s home, Deputy Harrison almost immediately asked Fish where Riesco’s belongings were located in the home: “What all she got here?” Fish responded that her property was located “in that drawer in there,” indicating his bedroom. Thus, Fish’s consent to the officers’ presence extended to the bedroom, where Harrison saw the revolver hanging from the bedpost, the guns under the bed, and a large quantity of ammunition openly displayed in an urn. That is so, regardless of exactly where Harrison was standing when he saw the weapons and ammunition, because Harrison had Fish’s consent to enter the bedroom if he needed to so in order to fulfill his peacekeeping purpose, and he unquestionably would have seen those items once he was in the room.

Moreover, the incriminating nature of the weapons in Fish’s bedroom was immediately apparent. Harrison was familiar with the standard terms of the pre-printed domestic violence injunctions normally entered by the courts in Florida’s Fourteenth Judicial Circuit, and knew that they explicitly prohibited Fish’s mere possession of firearms and ammunition. Additionally, when Harrison directly asked Fish if he still had an injunction against him, Fish’s immediate, defensive response- of “Those aren’t mine!” could have led a reasonable officer to conclude that Fish was acknowledging the existence of the injunction, as well as the presence of multiple firearms in his bedroom.

C. Unlawful Arrest

Finally, the district court correctly found that defendants had at least arguable probable cause to arrest Fish. An arrest is unreasonable and, therefore, violates the Fourth Amendment, when it is not supported by probable cause. See, e.g., Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). “Probable cause is defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” Id. (citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).

Even if an officer has effected an arrest without probable cause (and without a warrant), he still will be entitled to qualified immunity if. the arrest was supported by arguable probable cause. See Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (“Qualified immunity applies when there was arguable probable cause for an arrest even if actual probable cause did not exist.”) (emphasis supplied) (citing Jones v. Cannon, 174 F.3d 1271, 1283 n. 3 (11th Cir. 1999)); Cottrell v. Caldwell, 85 F.3d 1480, 1485 n.1 (11th Cir. 1996) (“[W]hen the claim is that a search and seizure or arrest violated the Fourth Amendment, qualified immunity depends upon whether arguable probable cause existed.”) (alteration supplied). “Arguable probable cause exists if, under all of the facts and circumstances, an officer reasonably could—not necessarily would—have believed that probable cause was present.” Crosby, 394 F.3d at 1332 (emphasis supplied).

Fish was arrested for the offenses of possessing firearms and ammunition in violation of a domestic violence injunction (Fla. Stat. § 790.233(1)), and resisting an officer without violence to his or her person (Fla. Stat. § 843.02). The first statute states that “[a] person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts , of domestic violence.” Fla. Stat. § 790.233(1) (alteration supplied). Because Harrison and Loucks had adequate knowledge of the injunction, and they lawfully viewed the firearms and ammunition in Fish’s residence, it is clear that they had, at the very least, arguable probable cause to arrest him for that offense. -It is not necessary to consider whether there was arguable probable cause to arrest for the second offense, because “[i]f the arresting officer had arguable probable cause to arrest for any offense, qualified immunity will apply.” Brown v. City of Huntsville, 608 F.3d 724, 735 (11th Cir. 2010) (citing Skop v. City of Atlanta, 485 F.3d 1130, 1137-38 (11th Cir. 2007)) (alteration supplied).

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s decision to grant summary judgment on Fish’s federal claims and to remand his supplemental state-law claims to the state court from which they were removed.

AFFIRMED.

      . See 28 U.S.C. § 1367.

      . See N.D. Fla. doc. no. 49-13 (Riesco Deposition), at ECF 5 (“Q. Describe for me the nature of that relationship. A. Sexual.”); id. at ECF 6 (testifying that the affair with Fish lasted "[fjrom 2008 until 2011”) (alteration supplied). But see Appellant’s Brief, at 3 (stating that the relationship began "[a]round 2009”) (alteration supplied).
      Note: "ECF” is an acronym formed from the initial letters of the name of a filing system that allows parties to file and serve documents electronically (i.e., "Electronic Case Filing”). Bluebook Rule 7.1.4 allows citation to page numbers generated by the ECF header. The Bluebook: A Uniform System of Citation, at 21 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). Even so, the Bluebook recommends against citation to ECF pagination in lieu of original pagination. Consequently, unless stated otherwise, this court will cite to the original pagination in the parties’ pleadings. When the court cites to pagination generated by the ECF header, it will, as here, precede the page number(s) with the letters "ECF.”

      . N.D. Fla. doc. no. 41-4 (Riesco Deposition), at ECF 7.

      . Compare N.D. Fla. doc. no. 48 (Fish’s Statement of Facts), ¶ 13 (Riesco’s “visits were anywhere from six to eight weeks apart”) with. N.D. Fla, doc. no, 49-13 (Riesco Deposition), at ECF 5 (“Q. How often would you-all see each other? A.' Once every couple of weeks.”).

      . N.D. Fla. doc. no. 48 (Fish’s Statement of ' Facts), ¶ 13 (“Ms. Riesco never stayed longer than one week at a time.”).

      . Id., ¶ 14 (“In or around late 2010, Plaintiff ended the relationship with Ms. Riesco.”). But see N.D. Fla. doc, no. 49-13 (Riesco Deposition), at ECF 6 (testifying that her relationship with Fish lasted "until 2011”).

      . N.D. Fla, doc. no. 49-13 (Riesco Deposition), at ECF 6.

      . See N.D. Fla. doc. no. 41-2, at ECF 5 (James & Tabitha Wichowski vs. Harold Anthony Fish, No. 11-69DR, slip op. at ¶ 3 (14th Judicial Circuit, Holmes Co., Fla. Mar. 11, 2011)). The full text of the pertinent provision reads as follows: .

        3. Firearms. Unless paragraph a. is initialed below [and it was not], Respondent shall not have in his or her care, custody, possession or control any firearm or ammunition. It is a violation of section 790.233, Florida Statutes, and a first degree misdemeanor, for the respondent to have in his or her care, custody, possession or control any firearm or ammunition. [Boldface in original, alteration supplied.]

      . See N.D. Fla. doc. no. 41-4 (Riesco Deposition), at ECF 18; see also N.D. Fla. doc. no. 41-1 (Fish Deposition), at ECF 24 (testifying that Riesco learned of the injunction "[e]ither through my sister or through me or whatever”) (alteration supplied).

      . N.D. Fla. doc. no. 41-1 (Fish Deposition), at ECF 23 ("She called and told me she was coming to pick up her stuff.”); id. at ECF 25 (“I left work, left my son at the shop, went home.”).

      . N.D. Fla. doc. no. 54 (District Court Order Granting Summary Judgment), at 3 (citing N.D. Fla. doc. no. 40 (Defendants' Statement of Facts), at 4 ("Margo Riesco also, on that date, contacted the Holmes County Sheriff's Office in order to request assistance while she recovered her property from the home of Plaintiff, Ms. Riesco told representatives at the Sheriff’s Office that she was concerned about the manner in which Plaintiff might react to her presence and that she knew Plaintiff to be in possession of firearms.”)).

      . N.D. Fla. doc. no. 54 (District Court Order Granting Summary Judgment), at 4 (citing N.D. Fla. doc. no. 40 (Defendants’ Statement of Facts), at 4; and N.D. Fla. doc. no. 48 (Plaintiff’s Statement of Facts), at 9-10), See also N.D. Fla. doc. no. 41-4 (Riesco Deposition), at ECF 9 (testifying that Fish had "hit me before and gotten violent and I didn't want that to happen again”).
      The omitted portion of the sentence from the District Court’s opinion quoted in text stated that Ms. Riesco "told the officers ... that Fish had guns in his home.” Fish denied that assertion. See N.D. Fla. doc. no. 48 (Plaintiff's Statement of Facts), ¶ 2, at 2; id. V 18, at 9-10. His denial was based upon Ms. Riesco's testimony that she could not "recall” telling the Deputies that Fish had firearms in his home. Compare N.D, Fla. doc. no. 41-4 (Riesco Deposition), at ECF 9-10 with N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison) 11 3 ("Ms. Riesco told representatives at the Sheriff’s office that she was concerned about the manner in which Plaintiff might react to her presence and that she knew plaintiff to be in the possession of firearms.”) (emphasis supplied).

      . N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶¶ 3-4.

      . See N.D. Fla. doc. no. 49-8 (Plaintiff's Ex. 8: DVD Disc containing video and audio recorded on Apr. 20, 2011 by the dash camera on Deputy Harrison’s cruiser), at time counter numbers 00:00 to 01:00 (hereafter “DVD”).

      . Id. at 01:00 to 01:31.

      . Id. at 01:32 to 02:02

      . Id. at 02:03 to 02:05. On some undisclosed date after Fish ended the affair, he converted a portion of the back patio of his home into a sunroom. The room was temperature-controlled and had tile floors, full exterior walls with cedar paneling on the interior, and windows with blinds that usually remained closed. The room was furnished with a television, radio, desk, chairs, table, and lamp. The glass door that opened into the sunroom was furnished with a lock, but on the date of the events discussed in text the door was not bolted.

      . Id. at 02:05 to 02:10.

      . N.D. Fla. doc. no. 41-1 (Fish Deposition), at ECF 25.

      . Id. at ECF 35; N.D. Fla. doc. no. 48 (Fish's Statement of Facts), ¶ 23 (stating that Fish "was surprised to see Defendant Harrrison, in full uniform, directly behind Ms. Riesco and then Defendant Loucks immediately behind him, in plain clothes with a badge and a firearm visible”).

      . N.D, Fla. doc. no. 41-1 (Fish Deposition), at ECF 35-36; N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶ 6.

      . DVD at 02:28 to 02:31.

      . See N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶ 7 ("Upon entering the home, from the vantage point of the living room, I was able to observe a revolver style firearm in a holster hanging from a bedpost. I was also able to observe portions of a number of other long guns under a bed in the bedroom.”). Fish acknowledged during his deposition that anyone who walked into his bedroom would have seen the revolver hanging from his bedpost. N.D, Fla. doc. no, 41-1 (Fish Deposition), at ECF 39 (“Anybody that walked into the bedroom could have saw it [szc].”).

      . DVD at 03:03 to 03:08 (ellipsis supplied).

      . See supra note 10 for the text of the standard language of the pre-printed, form injunction utilized in Holmes County, and stating that it was a violation of Florida law for the subjects of such injunctions to possess a firearm or ammunition.

      . N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶ 8; N.D. Fla. doc. no, 41-1 (Fish Deposition), at ECF 39 ("Q: Okay. Where were the other weapons? A; Under the bed. Q: All of the other weapons were under the bed? A. Uh-huh.”).

      . See, e.g., Appellant’s Brief, at 8 ("No other firearms were visible.... [A]ny firearms that were under the bed were not visible.”) (ellipsis and alteration supplied).

      . N.D. Fla. doc. no. 41-1 (Fish Deposition), at ECF 66.

      . See supra note 10 ("It is a violation of section 790.233, Florida Statutes, and a first degree misdemeanor, for the respondent to have in his or her care, custody, possession or control any firearm or ammunition.”) (boldface in original).

      . N.D. Fla. doc. no. 41-1 (Fish Deposition), at ECF 55 ("And I backed up to the kitchen sink and I told him that he wasn’t taking the guns. And they turned—they turned me around and put the handcuffs on me, and I guess I was on my way to jail.”); N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶ 10.

      . DVD at 8:10-12.

      . N.D. Fla. doc. no. 1-1 (Complaint), at ECF 2.

      . Id. at ECF 2-1:4.

      . N.D. Fla. doc. no. 8. See also Appellant's Brief, at 2; Appellees’ Brief, at 4.

      . See N.D. Fla. doc. nos. 54 (District Court Opinion) and 55 (Judgment).

      . No other exceptions to the warrant requirement, such as exigent circumstances, have been asserted here.

      . N.D. Fla. doc. no. 54 (District Court Opinion),-at 11.

        . See id. (“However, I need not decide whether the officers violated Fish’s constitutional rights by crossing into the sunroom before he had given explicit permission. The officers, in entering the sunroom, were at least entitled to qualified immunity.”).

      . See, e.g., N.D. Fla. doc. no. 41-3 (Affidavit of Tyler Harrison), ¶ 5 ("Assuming this was the manner in which individuals entered and exited the residence, Deputy Loucks and I followed Ms. Riesco.”).

      . DVD at 02:14 to 02:18. Fish denies that he gave verbal consent, before the deputies entered his home, but the audio statements recorded on the DVD produced by the dash camera mounted on Deputy Harrison’s cruiser establish that he did so. See, e.g., Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("When opposing parties tell two different stories, one -of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”); Beshers v. Harrison, 495 F.3d 1260, 1262 n.1 (11th Cir. 2007) (refusing to adopt an appellant's version of facts when reviewing a district court’s order granting summary judgment in favor of the defendant police officers on the issue of qualified immunity in an excessive force case because the appellant's factual allegations were "clearly contradicted” by videotape evidence "such that no reasonable jury could believe it”).

      . N.D. Fla. doc. no. 54 (Order), at 9 (alteration supplied); see also id. at 16-20.

      . See Appellant’s Brief, at 15.

      . Fish asserts that the Deputies were required by Florida law to independently verify the accuracy of the information about the injunction by running an official check of his record before coming to his house, or at least before searching for weapons. That assertion holds no water here, however, because "[t]here is no federal right not to be arrested in violation of state law.” Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002) (alteration supplied) (citations omitted).


author: .PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Albert TAKHALOV, Isaac Feldman, Stanislav Pavlenko, Defendants-Appellants.
    No. 13-12385
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/03/2016

      Kathleen Mary Salyer, John C. Shipley, Assistant U.S. Attorney, Wifredo A. Ferrer, Richard Daniel Gregorie, Daren Grove, Emily M, Smachetti, Michael Eric Thakur, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.,
    Howard M. Srebnick, Black Srebnick Kornspan & Stumpf, PA, John E. Bergen-dahl, Law Offices of John E. Bergendahl, Richard Carroll Klugh, Jr., Law Offices of Richard C. Klugh, Richard Docobo, Richard Docobo, PA, Miami, FL, Marcia Jean Silvers, Marcia J. Silvers, PA, Coral Gables, FL, Myles H. Malman, Malman Mal-man & Rosenthal, Fort Lauderdale, FL, for Defendants-Appellants.
    Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and THAPAR, District Judge.

       Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by'designation.

   .PER CURIAM:

In July 2016, this Court reversed all of Stanislav Pavlenko’s wire-fraud convictions—except one. See Op. at 41 (July 11, 2016). That was his conviction for Count 21 of the indictment, which charged Pavlenko with lying in an email to American Express (“AMEX”). [DE 953 at 15]. Though the district judge erred in failing to provide the defense’s requested fraud instruction, the Court found that error harmless as to Count 21. See Op. at 36-37.

Both Pavlenko and the government have moved for panel rehearing. They bring the same argument—that Count 21 should not be an outlier—but from opposite directions. Pavlenko argues that, since the error was not harmless as to the other counts, it was not harmless as to Count 21. See Pavlenko Pet. for Reh’g at 2-6 (Aug. 1, 2016). The government argues that, since the error was harmless as to Count 21, it was harmless as to the other counts, too. See Gbvernment Pet. for Reh’g at 5-10 (Aug. 1,2016).

We need not address the harmless-error issue, however, because Pavlenko also argues that the government failed to give the jury sufficient evidence to convict him under Count 21, and we are now convinced that argument has merit. See Pavlenko Pet. for Reh’g at 6-13; see also Pavlenko Initial Br. at 40 (Sept. 26,2014).

When a convicted defendant challenges the sufficiency of the evidence, we look at the evidence “in the light most favorable to the verdict.” United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). And we will affirm the verdict “if a reasonable juror could conclude that the evidence establishes guilt beyond a reasonable doubt.” Id.

In Count 21, the government indicted Pavlenko .for an email he sent to AMEX on April 21, 2010. [DE 953 at 15]. To sustain a wire-fraud conviction, that email must have furthered a fraud scheme, i.e., tricked AMEX into parting with money it would not otherwise have let go. See Pp. at 7-14. Here, the scheme allegedly worked like this: a B-girl lured a man into Pavlenko’s bar, where the. man proceeded to use his AMEX card. Looking back on the encounter from the clearer light of day, the customer decided he had' been defrauded and contested the charge with AMEX. On April 19, 2010, however, AMEX determined that :the charge was not fraudulent and sent its customer a letter saying so. See [DE Doc. 1142 at 67, 85, 88 (citing Defense Exh. ,SP 50) ]. On April 21, for whatever reason, Pavlenko sent AMEX an email covering up his relation with the B:girl. But by then, he had nothing left to gain: AMEX had already upheld the charge. In doing so, AMEX did not—and, of course, could not—rely on the April 21 email. [Id. at 88]. And since AMEX had already approved the charge, no reasonable juror could have concluded that Pavlenko defrauded AMEX of that money through the April 21 email, which was the sole basis for Count 21.

This is not to say the government had no evidence that Pavlenko defrauded AMEX. The April 19 letter shows that AMEX considered “documented company records”—specifically, some documents and a photo that Pavlenko emailed to AMEX on April 16—in determining that the charge was not fraudulent. [Id.]. The government could have indicted Pavlenko for the April 16 email. But it didn’t. The government also could have argued that the April 21 email constituted “fraud after the fact.” See United States v. Ross, 131 F.3d 970, 980 (11th Cir. 1997) (noting that a defendant can commit wire fraud by concealing the illegality of the transaction after it occurred). But the government didn’t. See, e.g., United States v. Elkins, 885 F.2d 775, 782 (11th Cir. 1989) (“This Court cannot affirm a criminal conviction based on a theory not contained in the indictment or not presented to thé jury.” (internal citation omitted)).

After considering both petitions for rehearing, we revise our opinion filed on July 11, 2016, and published at 827 F.3d 1307, in the following respects:

We reverse Pavlenko’s conviction as to Count 21 because the government failed to provide sufficient evidence to support the charge, and we remand to the district judge for further proceedings.

The first and second full paragraphs of page 1323 are deleted. The word “however,” in the sentence spanning pages 1323-24, is deleted.

The final sentence of the opinion is deleted, and the following sentence is substituted in its place:

Finding no other errors that would justify reversal on Count 38, we reverse on all but Count 38, and remand to the district court for further proceedings consistent with this opinion.

In all other respects, the petitions for rehearing are DENIED.


author: WILLIAM PRYOR, Circuit Judge:

text:
    IN RE: David A. FAILLA, Donna N. Failla, Debtors. David A. Failla and Donna N. Failla, Plaintiffs-Appellants, v. Citibank, N.A., Defendant-Appellee.
    No. 15-15626
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/04/2016

      Peter David Ticktin, Ticktin Law Group, PA, DEERFIELD BEACH, FL, Michael E. Zapin, Law Offices of Michael E. Zapin, BOCA RATON, FL, for PlaintiffsrAppel-lants.
    John Robert Chiles, Burr & Forman, LLP, FORT LAUDERDALE, FL, Jonathan Michael Sykes, Burr & Forman, LLP, ORLANDO, FL, for Defendant-Ap-pellee.
    Before MARCUS and WILLIAM PRYOR, Circuit Judges, and LAWSON, District Judge.

       Honorable Roger ' H. Lawson, Jr., United States District Judge for the Middle District of Georgia, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a person who agrees to “surrender” his house in bankruptcy may oppose a foreclosure action in state court. David and Donna Failla filed for bankruptcy in 2011 and agreed that they would surrender their house to discharge their mortgage debt. But the Faillas continued to oppose a foreclosure proceeding in state court. Citibank then filed a motion to compel surrender in the bankruptcy court and argued that the Faillas had breached their duty to surrender the property. The bankruptcy court granted the motion, and the district court affirmed. Because the word “surrender” in the bankruptcy code, 11 U.S.C. §>-521(a)(2), requires that debtors relinquish their right to possess the property, we affirm.

I. BACKGROUND

David and Donna Failla own a house in Boca Raton, Florida. They financed their purchase with a $500,000 mortgage. The Faillas defaulted on that mortgage in 2009. Citibank, the owner of the mortgage and the promissory note, filed a foreclosure action in a Florida court. The Faillas are opposing-that foreclosure action.

The Faillas filed for bankruptcy in 2011. During the bankruptcy proceedings, the Faillas admitted that they own the house, that the house is collateral for the mortgage, that the mortgage is valid, and that the balance of the mortgage exceeds the value of the house. They also filed a statement of intention, 11 U.S.C. § 521(a)(2), to surrender the house. Because the house had a negative value, the trustee “abandoned” it back to the Faillas, 11 U.S.C. § 554. The Faillas continue to live in the house while they contest the foreclosure action.

Citibank filed a.motion to compel surrender in the bankruptcy court. Citibank argued that the Faillas’ opposition to the foreclosure action contradicted their statement of intention to surrender the house. The Faillas argued that their opposition to the foreclosure action is not inconsistent with surrendering the house.

The bankruptcy court granted Citibank’s motion to compel surrender and ordered the Faillas to stop opposing the foreclosure, .action. See In re Failla, 529 B.R. 786, 793 (Bankr. S.D. Fla. 2014). The bankruptcy court explained that if the Faillas do not comply with its order, it may “enter an order vacating [their] discharge.” Id. The district court- affirmed on appeal. See Failla v. Citibank, N.A., 542 B.R. 606, 612 (S.D. Fla. 2015).

The Faillas now appeal to this Court. After the parties filed their briefs, Citibank filed a motion to strike portions of the Faillas’ briefing that were raised for the first time on appeal. The disputed sections argue that the only remedy available to the bankruptcy court was lifting the automatic stay for Citibank, which would allow Citibank to foreclose on the house in the ordinary course. This Court ruled that the motion to strike should be carried with the case.

II. STANDARD OF REVIEW

“Because the district court functions as an appellate court in reviewing bankruptcy court decisions, this court is the second appellate court to review bankruptcy court cases.” In re Glados, Inc., 83 F.3d 1360, 1362 (11th Cir. 1996). We “assess the bankruptcy court’s judgment anew, employing the same standard of review the distinct court itself used.” In re Globe Mfg. Corp., 567 F.3d 1291, 1296 (11th Cir. 2009). “Thus, wé review the bankruptcy court’s factual findings for clear error, and its legal conclusions de novo.” Id.

III. DISCUSSION

We divide our discussion in two parts. First, we explain that section 521(a)(2) prevents debtors who surrender them property from opposing a foreclosure action in state court. Second, we explain that the bankruptcy court had the authority to order the Faillas to stop opposing them foreclosure action.

A. Debtors Who Surrender Their Property in Bankruptcy May Not Oppose a Foreclosure Action in State Court.

Section 521(a)(2) states a bankruptcy debtor’s responsibilities when his schedule of assets and liabilities includes mortgaged property:

(a) The debtor shall ...
(2) if an individual debtor’s schedule of assets and liabilities includes debts which are secured by property of the estate—
(A) within thirty days after the date of the filing of a petition under chapter 7 of this title or on or before the date of the meeting of creditors, whichever is earlier, or within such additional time as the court, for cause, within such period fixes, file with the clerk a statement of his intention with respect to the retention or surrender of such property and, if applicable, specifying that such property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to reaffirm debts secured by such property; and
(B) within 30 days after the first date set for the meeting of creditors under section 341(a), or within such additional time as the court, for cause, within such 30-day period fixes, perform his intention with respect to such property, as specified by subparagraph (A) of this paragraph;
except that nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor’s or the trustee’s rights with regard to such property under this title, except as provided in section 362(h).

11 U.S.C. § 521(a)(2). Subsection (A) requires the debtor to file a statement of intention about what he plans to do with the collateral for his debts. See Fed. R. Bankr. P. 1007(b)(2). The statement of intention must declare one of four things: the collateral is exempt, the debtor will surrender the collateral, the debtor will redeem the collateral, or the debtor will reaffirm .the debt. See In re Taylor, 3 F.3d 1512, 1516 (11th Cir. 1993). After the debt- or issues his statement of intention, subsection (B) requires him to perform the option he declared. Id.

The question here is whether the Faillas satisfied their declared intention to surrender their house under section 521(a)(2)(B). To answer that question, we must decide to whom debtors must surrender then-property and whether surrender requires debtors to acquiesce to a creditor’s foreclosure action. The district court and the bankruptcy court correctly concluded that the Faillas violated section 521(a)(2) by opposing Citibank’s foreclosure action after filing a statement of intention to surrender their house.

We agree with both the district court and the bankruptcy court that section 521(a)(2) requires debtors who file a statement of intent to surrender to surrender the property both to the trustee and to the creditor. Even if the trustee abandons the property, the debtors’ duty to surrender the property to the creditor remains. The text and the context of the statute compel this interpretation.

Reading “surrender” to refer only to the trustee of the bankruptcy estate renders section 521(a)(2) superfluous with section 521(a)(4). Under the surplusage canon, no provision “should needlessly be given an interpretation that causes it to duplicate another provision.” Antonin Sca-lia & Bryan A. Garner, Reading Law 174 (2012). See also Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883) (“It is the duty of the court to give effect, if possible, to every clause and word of a stat-ute_”). Section 521(a)(4) states that “[t]he debtor shall ... surrender to the trustee all property of the estate.” 11 U.S.C. § 521(a)(4). Because section 521(a)(4) already requires the debtor to surrender all of his property to the trasteé so the trustee can decide, for example, whether to liquidate it or abandon it, section 521(a)(2) must refer to some other kind of surrender.

When the bankruptcy code means a debtor must surrender his property either to the creditor or the trustee, it says so. On the one hand, section 1325(a)(5)(C) states that “the debtor surrenders the property securing such claim to such holder,” which clearly contemplates surrender to a creditor. 11 U.S.C. § 1325(a)(5)(C) (emphasis added). Congress did not use that language here. On the other hand, section 521(a)(4) states that “[t]he debtor shall ... surrender to the trustee all property of the estate,” which clearly contemplates surrender to the trustee. Id. § 521(a)(4) (emphasis added). Congress did not use that language either.

What Congress did say in section 521(a)(2) is “surrender,” without specifying to whom the surrender is made. But the lack of an object makes sense because a debtor who decides to surrender his collateral must surrender it to both the trustee and the creditor. The debtor first surrenders it to the trustee, id. § 521(a)(4), who decides whether to liquidate it, id. § 704(a)(1), or abandon it, id. § 554. If the trustee abandons it, then the debtor surrenders it to the creditor, id. § 521(a)(2).

The word “surrender” in section 521(a)(2) is used with reference to the words “redeem” and “reaffirm,” and those words plainly refer to creditors. A debtor “redeems” property by paying the creditor a particular amount, and he “reaffirms” a debt by renegotiating it with the creditor. See Taylor, 3 F.3d at 1514 n.2; see also 11 U.S.C. §§ 524(c), 722. Because “[context is a primary determinant of meaning,” Sealia & Garner, supra, at 167, the word “surrender” likely refers to a relationship with a creditor as well. We said as much in dicta in Taylor. See 3 F.3d at 1514 n.2 (“Surrender provides that a debtor surrender the collateral to the lienholder who then disposes of it pursuant to the requirements of state law.” (emphasis added)).

Other provisions of the bankruptcy code that provide a remedy to creditors when a debtor violates section 621(a)(2) suggest that the word “surrender” does not refer exclusively to the trustee. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 305, 119 Stat. 23, added two sections to the bankruptcy code that provide remedies for creditors with respect to personal property. 11 U.S.C. §§ 362(h), 521(d). Section 362(h) punishes a debtor who violates section 521(a)(2) by lifting the automatic stay, which allows the creditor to pursue other remedies against the debtor immediately. 11 U.S.C. § 362(h)(1). Section 362(h) allows the trustee of the bankruptcy estate to- override this remedy, but only if the trustee moves the court to “order[ ] appropriate adequate protection of the creditor’s interest.” Id. § 362(h)(2). And section 521(d) allows a creditor to consider the debtor in default because he declared bankruptcy if the debtor violates section 521(a)(2). See id. § 521(d).

That these remedies apply only to personal property is irrelevant. Section 521(a)(2) uses the generic word “property” and draws no distinction between real and personal property. Congress provided additional remedies for creditors secured by personal property, but the contextual clue remains the same. These remedies for creditors reflect an obvious point about section 521(a)(2): it is a provision that affects and protects the rights of creditors.

We also agree with the bankruptcy court and the district court that “surrender” requires debtors to drop their opposition to a foreclosure action. The bankruptcy code does not define the word “surrender,” so we give it its “contextually appropriate ordinary meaning.” Scalia & Garner, supra, at 70; see also In re Piazza, 719 F.3d 1253, 1261 (11th Cir. 2013) (applying this canon to the bankruptcy code). One meaning of “surrender” is “to give or deliver up possession of (anything) upon compulsion or demand.” Surrender, Webster’s New International Dictionary 2539 (2d ed. 1961); see also Surrender, Oxford English Dictionary (online ed.) (“To give up (something) out of one’s own possession or power into that of another who has or asserts a claim to it.”) (all Internet materials as visited Sept. 15, 2016, and available in Clerk of Court’s case file). But this meaning is not contextually appropriate. When the bankruptcy code means “physically turn over property,” it uses the word “deliver” instead of “surrender.” See, e.g., 11 U.S.C. §§ 542(a), 543(b)(1); see also id. § 727(d)(2) (using the phrase “deliver or surrender,” which suggests they are different). The presumption of consistent usage instructs that “[a] word or phrase is presumed to bear the same meaning throughout a text” and that “a material variation in terms suggests a variation in meaning.” Scalia & Garner, supra, at 170; see also Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983).

' Another meaning of “surrender” is “[t]he giving up of a right or claim.” Surrender, Black’s Law Dictionary (10th ed. 2014); see also Surrender, Webster's New International Dictionary 2639' (“To give up completely; to resign; relinquish; as, to surrender a right, privilege, or advantage.”). This meaning describes a legal relationship, as opposed to a physical action, which makes sense in the context of section 521(a)(2)—a provision that describes other legal relationships like “reaffirmation” and “redemption.” This definition' is in line with existing authorities. See In re Pratt, 462 F.3d 14, 18-19 (1st Cir. 2006) (“[T]he most sensible connotation of ‘surrender’ in the ... context [of section 521(a)(2)] is that the debtor agreed to make the collateral available to the secured creditor—viz., to cede his possesso-ry rights in the collateral.... ”); In re White, 487 F.3d 199, 205 (4th Cir. 2007) (“[T]he word ‘surrender’ [in section 1325(a)(5)(C)] means the relinquishment of all rights in property, including the posses-sory right, even if such relinquishment does not always require immediate physical delivery of the property to another.”); In re Plummer, 513 B.R. 135, 143-44 (Bankr. M.D. Fla. 2014); 8 Collier on Bankruptcy § 1325.06[4] (16th ed.) (“Surrender in th[e] context [of section 1325(a)(5)(C)] means simply the relinquishment of any rights in the collateral.”).

Because “surrender” means “giving up of a right or claim,” debtors who surrender their property can no longer contest a foreclosure action. When the debtors act to preserve their rights to the property “by way of adversarial litigation,” they have not “relinquishfed] ... all of their legal rights to the property, including the rights to possess and use it.” White, 487 F.3d at 206 (emphasis ■ omitted). The “retention of property that is legally insulated from collection is inconsistent with surrender.” Id. ■ at 207. Ordinarily, when debtors surrender property to a creditor, the creditor obtains it immediately and is free to sell it. Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 962, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). Granted, a creditor must take some legal action to recover real property—namely, a foreclosure action. See Fla. Stat. Ann. §§ 702.01-702.11. Foreclosure proceedings ensure that debtors do not have to determine unilaterally issues of priority if there are multiple creditors or surplus if the value of the property exceeds the liability. See Plummer, 513 B.R. at 144. Debtors who surrender property must get out of the creditor’s way. “[I]n order for surrender to mean anything in the context of § 521(a)(2), it has to mean that ... debtor[s] ... must not contest the efforts of the lienholder to foreclose on the property.” In re Elowitz, 550 B.R. 603, 607 (Bankr. S.D. Fla. 2016). Otherwise, debtors could obtain a discharge in bankruptcy based, in part, on their sworn statement to surrender and “enjoy possession of the collateral indefinitely while hindering and prolonging the state court process.” Id. (quoting In re Metzler, 530 B.R. 894, 900 (Bankr. M.D. Fla. 2015)).

The hanging paragraph in section 521(a)(2) also does not give the debtor the right to oppose a foreclosure action. The hanging paragraph states that “nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor’s or the trustee’s rights with regard to such property under this title, except as provided in section 362(h).” 11 U.S.C. § 521(a)(2). The key words for purposes of this dispute are “under this title.” The hanging paragraph means that section 521(a)(2) does not affect the debtor’s or the trustee’s bankrupt cy rights. Section 521(a)(2) does not affect the trustee’s bankruptcy -rights because a debtor must first surrender property to the trustee—who liquidates it or abandons it—before surrendering it to the creditor. See id. § 521(a)(4). And section 521(a)(2) does not affect the debtor’s bankruptcy rights because a creditor is still subject to the automatic stay and cannot foreclose on the property until the trustee decides to abandon it. The hanging paragraph spells out an order of operations. It does not mean that a debtor who declares he will surrender his property can then undo his surrender after the bankruptcy is over and the creditor initiates a foreclosure action.

Concerns about fairness are not in tension with this outcome. During the bankruptcy proceedings, the Faillas declared that they would surrender the property, that the mortgage is valid, and that Citibank has the right to foreclose. Compelling them to stop opposing the foreclosure action requires them to honor that declaration. The Faillas may not say one thing in bankruptcy court and another thing in state court:

The concern here is that'the Debtor is making a mockery of the legal system by taking inconsistent positions. In an effort to obtain her chapter 7 discharge, the Debtor swears—under the penalty of perjury—an intention to “surrender” her property. In other words, the Debt- or is representing to the Court that she will make her property available to the Bank by refraining from taking any overt act that impedes the Bank’s ability to foreclose its interest in the property. Yet, once she receives her discharge, the Debtor in fact impedes the Bank’s ability to foreclose its mortgage.

In re Guerra, 544 B.R. 707, 710 (Bankr. M.D. Fla. 2016). In bankruptcy, as in life, a person does not get to have his cake and eat it too.

Section 521(a)(2) requires a debtor to either redeem, reaffirm, or surrender collateral to the creditor. Having chosen to surrender, the debtor must drop his opposition to the creditor’s subsequent foreclosure action. Because the Faillas filed a statement of intention to surrender their house, they cannot contest the foreclosure action.

B. The Bankruptcy Court Had the Authority to Order the Faillas to Stop Opposing the State Foreclosure Action.

For the first time on appeal, the Faillas argue that even if they breached their duty to surrender under section 521(a)(2), the only remedy available to the bankruptcy court was to lift the automatic stay for Citibank, which would allow Citibank to foreclose on the house in the ordinary course. Citibank asked us to strike this portion of the Faillas’ briefs in their May 25 motion to strike, which was carried with the case. The Faillas concede that they did not raise this argument below. They ask us to excuse their forfeiture because their argument is an important, unsettled question of law. This argument is not forfeited, but fails on the merits, rendering Citibank’s motion to strike moot.

The Faillas’ new argument falls within exceptions to the general rule that a circuit court will not consider an issue not raised in the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (quoting Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001)). It is a “pure question of law” and its “proper resolution is beyond any doubt.” Id. Moreover, the Faillas’ argument is intertwined with their other arguments. For instance, part of the reason the Faillas contend the bankruptcy court cannot order them to stop opposing the foreclosure action is that section 521(a)(2) is merely a “notice statute” that does not affect substantive property rights.

On the merits, however, bankruptcy courts are not lirhited to lifting the automatic stay. Bankruptcy courts have broad powers to remedy violations of the mandatary duties section 521(a)(2) imposes on debtors. See Taylor, 3 F.3d at 1516. Section 105(a) states that bankruptcy courts can “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title,” 11 U.S.C. § 105(a), which includes section 521(a)(2). Bankruptcy judges also have “broad authority ... to take any action that is necessary or appropriate ‘to prevent an abuse of process.’” Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007) (quoting 11 U.S.C. § 105(a)). A debtor who promises to surrender property in bankruptcy court and then, once his debts are discharged, breaks that promise by opposing a foreclosure action in state court has abused the bankruptcy process. See Guerra, 544 B.R. at 710.

If a bankruptcy court could only lift the automatic stay, then debtors could violate section 521(a)(2) with impunity. The automatic stay is always lifted at the end of the bankruptcy proceedings, see 2 Bankruptcy Law Manual § 10:7 (5th ed.), so this remedy does nothing to punish debtors who lie to the bankruptcy court about their intent to surrender property. While a creditor may be able to invoke the doctrine of judicial estoppel in state court to force debtors to keep a promise made in bankruptcy court, its availability does not affect the statutory authority of bankruptcy judges to remedy abuses that occur in their courts. And there is nothing strange about bankruptcy judges entering orders that command a party to do something in a nonbankruptcy proceeding. Bankruptcy courts “regularly exercise jurisdiction to tell parties what they can or cannot do in a non-bankruptcy forum.” In re Lapeyre, 544 B.R. 719, 723 (Bankr. S.D. Fla. 2016). Just as the bankruptcy court may “order[ ] creditors who violate the automatic stay to take corrective action in the non-bankruptcy litigation,” the bankruptcy court may “order the Debtors to withdraw their affirmative defenses and dismiss their counterclaim in the Foreclosure Case.” Id. The bankruptcy court had the authority to compel the Faillas to fulfill their mandatory duty under section 521(a)(2) not to oppose the foreclosure action in state court.

IY. CONCLUSION

We, AFFIRM the order compelling the Faillas to surrender their home to Citibank. We DENY AS MOOT the motion to strike.