C. LYNWOOD SMITH, Jr., District Judge.
The second amended complaint of plaintiff, Mickale Hopkins, asserts federal and supplemental state-law claims against two uniformed police officers for the City of Huntsville, Alabama: Charles Nix and Brian Shockley. Plaintiff alleges three federal claims for alleged violations of the Fourth Amendment under 42 U.S.C. § 1983 — i.e., unlawful search and seizure (Count I), false imprisonment (Count II), and excessive force (Count III) — a fourth federal claim for conspiracy to violate plaintiff's civil rights, asserted under 42 U.S.C. §§ 1985(3) and 1986 (Count IV), and a fifth claim against the City of Huntsville, Alabama, the employer of both of the individual defendants, for all of the constitutional violations alleged in his second amended complaint (Count V).
The case presently is before the court on defendants' motion for summary judgment on all of plaintiff's claims,
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment 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." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").
Plaintiff's proposed "expert witness," Dr. William Gaut, is a former police officer for the City of Birmingham, Alabama. He held several positions during his twenty-four years with that department, including the Uniform Patrol Division, Police Academy Instructor, Detective Sergeant — Homicide Division, Lieutenant — Chief's Administrative Staff, Captain — Precinct Commander, and Captain of Detectives. He also served as the Administrator/Director of the Special Services Division of the Jefferson County Attorney's Office from 1992-1994. He taught Criminal Law, Homicide Investigation, Fundamentals of Criminal Investigation, and Fundamentals of Criminal Justice (Police Practices and Procedures) as an Adjunct Professor at Jefferson State Community College from 1997 to 1999.
Dr. Gaut holds an Associate's Degree in Law Enforcement from Jefferson State Community College, a Bachelor of Science Degree in Criminal Justice from the University of Alabama in Birmingham, a Masters Degree in Public and Private Management from Birmingham Southern College, and a Doctor of Philosophy in Criminal Justice from Northcentral University (a private, for-profit, but accredited university established in 1996 and offering degree coursework "online").
Dr. Gaut offered the following opinions in the expert report required by Federal Rule of Civil Procedure 26(a)(2)(B), each of which was stated to "a reasonable degree of professional certainty," and based on Dr. Gaut's "experience, documents reviewed, and industry standards," i.e.:
Plaintiff relied upon Dr. Gaut's report, and his corroborating deposition testimony, to support the following proposed facts, stated in his opposition to defendants' motion for summary judgment:
regarding the constitutionality of the conduct of Officers Nix and Shockley, or of the City of Huntsville's policies. This court agrees. Analysis of the issue must begin with Federal Rule of Evidence 702, which provides that:
Fed. R. Evid. 702 (emphasis supplied).
Here, Dr. Gaut's opinions as to the constitutionality of the individual defendants' actions and the City's policies will not assist the trier of fact, because it is the role of the judge, and not an expert witness, to instruct the jury on the applicable principles of law. As the Eleventh Circuit has stated: "`Domestic law is properly considered and determined by the court whose function it is to instruct the jury on the law; domestic law is not to be presented through testimony and argued to the jury as a question of fact.'" United States v. House, 684 F.3d 1173, 1209 (11th Cir. 2012) (quoting United States v. Oliveros, 275 F.3d 1299, 1306-07 (11th Cir. 2001)). In other words, "[a]n expert may not . . . merely tell the jury what result to reach," and "[a] witness also may not testify to the legal implications of conduct." Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (citations omitted, alterations and emphasis supplied). Instead, "the court must be the jury's only source of law." Id. (citations omitted, emphasis supplied).
As defendants point out, Dr. Gaut's testimony has been limited in previous cases for similar reasons. In United States v. Wilk, 572 F.3d 1229 (11th Cir. 2009), the Eleventh Circuit upheld the district court's decision to exclude testimony from Dr. Gaut "about whether the officers followed proper police procedure during entry into Wilk's residence." Id. at 1235. Specifically, Dr. Gaut had proposed to testify "that the entry team was improperly dressed in civilian clothing, had inadequate police markings, appeared to be armed invaders, and violated established procedure in raiding the residence," all of which would have would have supported Wilk's self-defense, justification, and imperfect self-defense claims. Id.
In like manner, the district court in McIntyre v. Tallahassee Police Dept., No. 4:07cv282-RH/WCS, 2008 WL 2766057 (N.D. Fla. March 28, 2008), limited Dr. Gaut's testimony as follows:
Id. at *2 (emphasis supplied).
Finally, in Feliu v. Rundle, No. 05-20169-CIV, 2007 WL 4730885 (S.D. Fla. April 2, 2007), the district court denied a defendant's motion to strike the testimony of Dr. Gaut, who had been offered by the plaintiff as a "police practices expert," but did so only after the plaintiff had agreed that Gaut "would not be permitted to testify as a matter of law as to the presence or absence of probable cause . . . ." Id. at *1.
In like manner, Dr. Gaut will not be permitted in the present action to offer his opinion as to the ultimate issues of whether there was either probable cause or reasonable suspicion to justify the searches and arrest of plaintiff, whether either of the individual defendants used excessive force, or whether the City of Huntsville should be held liable for the officers' conduct.
That ruling does not mean, however, that Dr. Gaut would not be permitted to testify if the case proceeds to trial before a jury.
Id. at 722. That testimony was determined to be permissible, even though "McCrary's opinions had direct implications for applying legal standards such as probable cause . . . ." Id. at 721. That was because the effect "of [McCrary's] testimony depended on how the jury resolved conflicts among the testimony of other witnesses," and the testimony "would have helped the jury conclude that the departures from reasonable police practices were so important, severe, and numerous that they supported an inference that Bogucki acted deliberately to violate Jimenez's rights." Jimenez, 732 F.3d at 722 (alteration supplied).
Based on all of the above, defendants' motion to strike will be granted in part and denied in part. Dr. Gaut will not be permitted to testify regarding the ultimate issues of: whether there was probable cause or reasonable suspicion to justify the searches and arrest of plaintiff; whether either of the individual defendants used excessive force; or whether the City of Huntsville should be held liable for the officers' conduct. Consequently, and in like manner, this court will not consider such opinions in conjunction with its ruling on defendants' motion for summary judgment. The expert opinion of Dr. Gaut on the issue of whether defendants' actions and policies were consistent with reasonable, typical police practices and procedures is admissible, however, and will be considered by this court.
The Huntsville-Madison County 911 Call Center received a report at approximately 10:05 p.m. on Wednesday, March 7, 2012, that the "Captain D's restaurant" located at 402 Governors Drive in Huntsville, Alabama, had been robbed.
Defendant Brian Shockley, a uniformed patrol officer who was on duty that night, responded to the dispatch by driving to the area. He established a perimeter and looked for potential offenders.
It is undisputed that plaintiff is a black male, that he was 37 years of age on that date, that he is approximately six feet tall and weighed between 160 and 185 pounds, and that he was wearing jeans and a shirt with the name of the church and his first name on it. Plaintiff was not wearing a hoodie, but Officer Nix testified that he could not recall, when he first observed plaintiff walking across the parking lot, whether he could see what clothes he was wearing.
Plaintiff saw the officers parked nearby while walking to his automobile. When he reached the car, he opened the driver's door, sat down, cranked the engine, and remained sitting for about a minute while he endorsed his paycheck and placed it in the glovebox. In the meantime, Officer Nix pulled his police cruiser behind plaintiff's automobile, parked, exited his vehicle, approached plaintiff's car, and opened the driver's side door, which was unlocked. Officer Nix asked plaintiff if he worked at the church, and plaintiff responded that he did, saying that he was the night janitor. Officer Nix asked plaintiff to step out of his automobile. Plaintiff did not immediately comply, but instead asked what he had done wrong. Officer Nix responded that he would explain once plaintiff exited the vehicle.
Plaintiff stepped out of his automobile and, while he was doing so, Officer Nix observed a "gray hoodie" sweatshirt in plain view, bunched up on the front passenger seat.
Officer Nix then walked around plaintiff's automobile and illuminated the interior by shining his flashlight through the windows, in order to determine whether he could see any articles "that would be related to a robbery."
Plaintiff testified that Officer Trista Kinsey also arrived at the scene shortly after he had stepped out of his automobile and asked for permission to search the vehicle. Plaintiff testified that he refused permission, but Officer Kinsey proceeded to search anyway. She opened the front passenger door and looked inside. She retrieved a black BB gun from underneath the front passenger seat, which plaintiff acknowledged he kept in the car for "protection."
Plaintiff asked Officer Nix if he was being arrested, and Nix responded that he was, but did not then state the offense for which he was being arrested.
After being placed in the back seat of Officer Shockley's patrol car, plaintiff asked Shockley why he was being arrested, but Shockley responded that he was only being detained for investigation related to the robbery.
After plaintiff was left alone in Officer Shockley's patrol car, he attempted to move his cuffed hands from behind his back to the front of his body by slipping them under his legs. He testified that the cuffs were hurting him, and that he attempted to bring his hands and arms to the front of his body in order to make himself more comfortable.
Officer Trista Kinsey was in her patrol car, preparing to leave the scene, when she saw plaintiff's attempt to "slip his cuffs." She blipped a short blast of the siren on her police cruiser in order to alert Officers Nix and Shockley.
Officer Shockley returned to his patrol car, grabbed plaintiff by the knee, and yanked him to the edge of the back seat. He then repositioned plaintiff, grabbed his upper body in a "choke hold," and lowered him to the ground. Plaintiff's knee hit the ground first, and he lay on the ground, face-first, for about ten seconds until he began straining his neck and gasping for breath.
While plaintiff was on the ground, he said that the handcuffs had been hurting him, and an unidentified officer responded: "They're hurting you more now, ain't they?"
Officer Nix then stood plaintiff up, removed his hands from the cuffs, repositioned his hands behind his back, and replaced the cuffs.
After plaintiff was pulled from the back seat of Officer Shockley's car, Officer Trista Kinsey told him that he was "under arrest," and that "[t]he charges are compiling as we speak."
Just before plaintiff attempted to reposition his handcuffs, Officer Nix was speaking over the radio with Michael Nelson, one of the robbery investigators. Nix told Nelson his location, and stated that he had observed a black male sitting in a car, described plaintiff's clothing, and added that a gray hoodie had been bunched up on the front passenger seat of the suspect's automobile. Nix also related that a black, hand-gun style, BB gun had been found under one of the car seats, and that plaintiff was wearing a shirt from the church as if he worked there.
Nix briefly terminated his conversation with Investigator Nelson when Officer Trista Kinsey sounded a short blast of her cruiser's siren, to alert Nix to the fact that plaintiff was attempting to move his handcuffed hands to the front of his body. Nix resumed the conversation with Investigator Nelson after the cuffs had been repositioned and plaintiff returned to Officer Shockley's patrol car.
Investigator Nelson instructed Nix to hold plaintiff until he could come to the scene.
While waiting for Nelson to arrive, Nix searched the passenger side and trunk of plaintiff' car.
In the meantime, plaintiff continued to express his displeasure. He repeated that he was employed as the nighttime janitor for the church's daycare facility, and worked from 2:00 to 10:30 p.m., Monday through Friday.
Officer Nix attempted to explain to plaintiff that the offenders who had robbed the Captain D's restaurant were black males, and that plaintiff matched their description: e.g., he was a black male with the same general height and weight, had a gray hoodie on the seat of his car, was wearing blue jeans, and that:
Plaintiff would accept no explanations, however, and continued to state that he was "[s]till pressing charges. Racial profile. Okay. (Inaudible). Just got off work. Racial profile. I don't care what you say."
When Investigator Michael Nelson arrived at the scene, he determined that plaintiff was not one of the robbery suspects. Officers Nix and Shockley wondered whether plaintiff still could be charged with any other offense, so Nix used his cellular telephone to call the magistrate on duty. The magistrate advised him not to assert a concealed weapons charge, because the BB gun had been found under the seat of the automobile and not on plaintiff's person. She did say, however, that plaintiff could be charged with obstructing governmental operations and resisting arrest, because he had to be removed from Officer Shockley's patrol after attempting to reposition his handcuffs.
Officer Shockley transported plaintiff to the Huntsville-Madison County Detention Center, where he was charged with obstructing governmental operations.
Plaintiff's car was impounded following his arrest.
Several days after his arrest, plaintiff noticed that his knee was stiff, and he experienced pain in his neck that made it difficult for him to swallow. He visited his doctor and received chiropractic treatment.
Plaintiff sued Officers Charles Nix and Brian Shockley in their individual and official capacities. Although defendants did not raise this issue, it is clear that plaintiff's claims against Nix and Shockley in their official capacities should be dismissed because they are redundant of plaintiff's claims against the City itself. That is because official-capacity suits
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (alterations supplied).
On the other hand, Officers Nix and Shockley rely upon the doctrine of qualified immunity as a defense to plaintiff's individual capacity claims. 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 (1982).
Courts generally apply a two-part test for evaluating whether a defendant is entitled to qualified immunity. The "threshold question" is 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 (2001).
In determining whether the unlawfulness of an official's actions was clearly established, "`the salient question is whether the state of the law [at the time of the unconstitutional act] gave respondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional.'" Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003) (alterations in original) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). 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. Instead,
Hope, 536 U.S. at 741 (alterations in original).
As the Eleventh Circuit has observed, there are various ways in which an officer can be placed on "fair notice" that certain conduct is unlawful.
Plaintiff asserts that his detention, and the search of his person and vehicle, violated his Fourth Amendment rights to be free from unreasonable searches and seizures.
Plaintiff challenges the officers' initial decision to "stop and frisk" him in the parking lot.
United States v. Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012) (emphasis supplied, alteration in original). Moreover,
Griffin, 696 F.3d at 1359 (first alteration supplied, other alterations in original).
Here, according to plaintiff's account of events, Officer Shockley did not conduct the initial questioning of plaintiff or the initial weapons pat-down, so he cannot be held liable for any Fourth Amendment violations that might have resulted from those actions.
Officer Nix's initial questioning of plaintiff was supported by a reasonable suspicion that plaintiff might have been one of the offenders involved in the Captain D's robbery. Officer Nix saw plaintiff, a black male, walking across the church parking lot, approximately one block west of the Captain D's restaurant, within thirty minutes of the robbery. At that time, the only information about the robbery suspects possessed by Nix had been provided by a police dispatcher: i.e., the offenders were two black males who left the scene on foot, wearing blue jeans and black and white bandanas on their faces, with one suspect wearing a black hoodie and the other wearing a gray hoodie. Both suspects were approximately 5'10" to 5'11" in height, one was of slim build, and the other was "chubby." Plaintiff, who stands six feet tall, was within an inch or two of the height reported by dispatch, and his weight of between 160 and 185 pounds could have placed him within the physical description of the suspects. Plaintiff also was wearing jeans.
Thus, even though plaintiff's physical characteristics and clothing were not exactly the same as the suspects, there is no credence to plaintiff's assertion that "his physical description bore absolutely no resemblance to the robbery suspects, other than the fact that he was a black male."
Officer Nix also had reasonable suspicion to support his initial "frisk" or "pat-down" search. Plaintiff did not immediately comply with Officer Nix's request to step out of his car. Instead, he demanded to know what he had done wrong. When plaintiff did step out of the automobile, Officer Nix spotted a gray sweatshirt in plain view on the front passenger seat. Even if that sweatshirt was bunched up, such that Officer Nix could not ascertain whether it had a hood, the mere presence of such a shirt, combined with plaintiff's other physical similarities to the suspects (at least one of whom had used a weapon during the robbery), and his proximity to the scene of the crime, could have caused a reasonably prudent person in Officer Nix's situation to believe that his safety, and that of others in the general vicinity, might be in jeopardy. Therefore, Officer Nix's decision to conduct a pat-down search for weapons was supported by reasonable suspicion, and did not violate plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures.
In summary, both officers are entitled to qualified immunity on this claim. There is no clearly established law to place Officer Shockley on fair warning that he could be held liable for a stop and search in which he did not participate. Further, for the reasons stated above, Officer Nix had at least arguable reasonable suspicion to initially detain plaintiff and conduct a weapons search, so he also is entitled to qualified immunity. See Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009) ("In the context of qualified immunity, this Court has stated `the issue is not whether reasonable suspicion existed in fact, but whether the officer had "arguable" reasonable suspicion.'" (quoting Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000)).
Plaintiff next challenges the initial search of his vehicle by Officer Trista Kinsey, who found a BB gun under his front passenger seat. According to plaintiff, Officer Kinsey retrieved that object from under the front passenger seat of his automobile, even though he had refused her request to search the vehicle. Officers Nix and Shockley cannot be held liable for a search in which they did not participate, and plaintiff did not name Officer Kinsey as a defendant in this case. Accordingly, summary judgment is due to be granted on this claim.
Plaintiff also asserts in his brief that "subsequent searches" of his vehicle also violated the constitution, but he does not specify the searches to which he refers, or explain why he thinks those unspecified searches were illegal.
The only other searches discussed in the record — besides Officer Nix's spotting of plaintiff's sweatshirt in plain view, and Officer Kinsey's retrieval of the BB gun from underneath plaintiff's front passenger seat — were: (i) Officer Nix's search of the passenger side and trunk of plaintiff's car (which occurred after plaintiff's attempt to "slip his cuffs" had been thwarted, and plaintiff reseated in Officer Shockley's patrol car); and (ii) Officer Shockley's close inspection of the gray sweatshirt to determine whether it had an emblem on it. Defendants assert that those searches were proper because they occurred after plaintiff had been placed under arrest, and after it had become apparent that plaintiff's automobile would have to be impounded. Inventory searches of impounded vehicles pursuant to reasonable, consistent police policies are legal. See South Dakota v. Opperman, 428 U.S. 364, 369-76 (1976).
Plaintiff does not dispute defendants' legal argument that an impound search after plaintiff's arrest would have been permissible. Instead, he simply challenges whether he actually was under arrest when the additional searches of his automobile were conducted. The evidence on that issue is in conflict. On one hand, plaintiff testified that Officer Nix told him he was under arrest as soon as Officer Kinsey retrieved the BB gun from underneath the front passenger seat of his automobile. On the other hand, Officer Shockley testified that, when plaintiff was first placed in the back seat of his patrol car, plaintiff was not then under arrest, but only being detained for investigation. That inconsistency thus presents an unusual circumstance: that is, the plaintiff's testimony actually is more harmful to his case than the testimony of one of the defendants. While the court is required to construe all facts in the light most favorable to plaintiff for purposes of summary judgment, that duty does not extend to rejecting the plaintiff's own testimony when it is harmful to his case. As the Eleventh Circuit has stated:
Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (emphasis in original).
Thus, the court will accept plaintiff's testimony that he was placed under arrest after Officer Kinsey retrieved his BB gun. As such, any subsequent searches of plaintiff's automobile and the close inspection of his sweatshirt would have been incident to an impoundment search and, therefore, constitutionally permissible.
Plaintiff also claims that his arrest for the offense of obstructing government operations violated the Fourth Amendment. To establish a violation of that amendment when making an arrest, the plaintiff must show that his arrest was "unreasonable." See, e.g., Brower v. County of Inyo, 489 U.S. 593, 599 (1989) ("Seizure alone is not enough for § 1983 liability; the seizure must be unreasonable.") (internal quotation marks and citation omitted). An arrest is unreasonable 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 (1975)).
Courts have recognized that "[t]he probable-cause standard [often] is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371 (2003) (alterations supplied). See also Illinois v. Gates, 462 U.S. 213, 232 (1983) ("[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.") (alteration supplied).
The best that can be said is this: probable cause to effect an arrest exists if, at the moment the arrest was made, "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that the person arrested either had committed, or was in the process of committing, an offense. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) (alteration and emphasis supplied). See also Devenpeck v. Alford, 543 U.S. 146, 152 (2004) ("Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.").
Therefore, "[t]o determine whether an officer had probable cause to arrest an individual, [courts] examine the events leading up to the arrest, and then decide `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Pringle, 540 U.S. at 371 (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)) (alterations supplied).
At the same time, courts must refer to the elements of the charge on which a person was arrested, because the question of "[w]hether a particular set of facts gives rise to probable cause . . . to justify an arrest for a particular crime depends, of course, on the elements of the crime." Crosby, 394 F.3d at 1333 (alteration supplied).
Alabama law defines the offense for which plaintiff was arrested as follows:
Ala. Code § 13A-10-2 (1975). A "governmental function" is defined as "[a]ny activity which a public servant is legally authorized to undertake on behalf of a government or the fire control activities of a member of a volunteer fire department." Ala. Code § 13A-10-1(3) (1975) (alteration supplied). A "public servant" is "[a]ny officer or employee of government, including legislators and judges and any person or agency participating as an adviser, consultant, or otherwise in performing a governmental function." Ala. Code § 13A-10-1(7) (1975) (alteration supplied). The term "government" includes a municipality. Ala. Code § 13A-10-1(2) (1975).
Officers Nix and Shockley assert that they had probable cause to arrest plaintiff for obstructing governmental operations because he attempted to "slip his cuffs" while the officers were investigating whether he was one of the persons involved in the Captain D's robbery.
This court agrees that plaintiff's physical act of "slipping his cuffs" was disruptive of their investigation into the Captain D's robbery, although any disruption was minimal at best. Even so, as defendants acknowledge, there is no evidence — and there was no indication at the time of the arrest — that plaintiff intended to interfere with the robbery investigation. That is not material to the probable cause determination, however. While the elements of the offense must be taken into consideration in evaluating probable cause, it is not necessary for the arresting officer to produce "`the same type of specific evidence of each element of the offense as would be needed to support a conviction.'" Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003) (quoting Adams v. Williams, 407 U.S. 143, 149 (1972)). Considering the totality of the facts and circumstances within the knowledge of Officers Nix and Shockley at the time of plaintiff's arrest, this court concludes that they had sufficient information to reasonably believe that plaintiff had committed the offense of obstructing governmental operations.
Specifically, because the magistrate on duty informed Officer Nix that an arrest for either obstructing governmental operations or resisting arrest would be proper under the circumstances, the officers had "reasonably trustworthy information" to support their belief that plaintiff had committed the offense of obstructing governmental operations. See Hunter, 502 U.S. at 228.
Moreover, plaintiff's arrest was supported by at least arguable probable cause, which is all that is required for Officers Nix and Shockley to be entitled to qualified immunity from plaintiff's false arrest claim. See Crosby, 394 F.3d at 1332 ("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).
Plaintiff also claims that both individual defendants violated his right to be free from the use of excessive force. "The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest." Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 394-95 (1989)). The reasonableness inquiry is an objective one: "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397 (citations omitted). In other words, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id. (citations omitted) (alteration supplied).
The court may consider a number of factors when determining whether the force applied was "reasonable" under the circumstances, including: (1) the "severity, or lack of severity, of the alleged crime in issue," id. at 396; (2) "whether the person against whom the force was used posed an immediate threat to the safety of the police or others," id.; (3) "the need for the application of force," Jackson v. Sauls, 206 F.3d 1156, 1170 n.18 (11th Cir. 2000); (4) "the relationship between the need and the amount of force used," id.; (5) "the extent of the injury inflicted," id.; (6) "whether the force was applied in good faith or maliciously and sadistically," id.; (7) "the possibility that the persons subject to the police action are themselves violent or dangerous," id.; (8) "the possibility that the suspect may be armed," id.; (9) "the number of persons with whom the police officers must contend at one time," Jackson, 206 F.3d at 1170 n.18; and (10) "whether the suspect was resisting or fleeing." Id.
The reasonableness of the force applied also is measured as of the precise moment it is administered; events that occurred before that moment, though perhaps giving factual context to the use of force, are not probative of the reasonableness of the decision to use force. See Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991). Additionally, "[u]se of force must be judged on a case-by-case basis `from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (quoting Graham, 490 U.S. at 396) (alteration supplied). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97.
Plaintiff contends that excessive force was used when he was yanked from the patrol car and subdued on the ground in a choke hold after he attempted to move the handcuffs from behind his back to the front of his body.
As an initial matter, it is undisputed that only Officer Shockley removed plaintiff from the patrol car. Accordingly, Officer Nix is entitled to summary judgment on plaintiff's claim for excessive force.
Moreover, the court concludes that Officer Shockley's use of force was reasonable under the circumstances. The action of plaintiff that precipitated Officer Shockley's use of force — "slipping his cuffs" — was not very severe, but the armed robbery the officers were attempting to investigate was severe and, at the time force was used, plaintiff was still considered a possible suspect. See Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) ("This circuit has made clear that some use of force by a police officer when making a custodial arrest is necessary and altogether lawful, regardless of the severity of the alleged offense.") (emphasis supplied) (citations omitted). Officer Shockley knew that plaintiff was not armed, because a weapons search had already been conducted, but he did not know at the time the force was applied whether plaintiff was attempting to escape his handcuffs in order to flee or do possible harm to the officers, or whether he was merely adjusting the cuffs for comfort. Officer Shockley did know that plaintiff had not complied with all of the directives that he and the other officers had issued since they first encountered him. On the other hand, the need for the use of force was not that great, considering that plaintiff remained in handcuffs, and had the chain of the handcuffs awkwardly positioned between his legs after attempting to move the cuffs to the front of his body. The choke hold caused plaintiff to gasp for breath, but only for about ten seconds. See Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008) ("[U]sing an uncomfortable hold to escort an uncooperative and potentially belligerent suspect is not unreasonable.") (alteration supplied).
Plaintiff also asserted in his Second Amended Complaint that Officers Nix and Shockley, motivated by a racially-discriminatory animus, "agreed and acted together to initiate an unlawful Terry stop," resulting in a seizure and search of plaintiff "in violation of his right to equal protection under the law, which lead [sic] to his wrongful arrest and imprisonment . . . ."
Plaintiff also states that Nix and Shockley "had actual knowledge of their agreement to wrongfully stop Hopkins, had the power to stop the conspiracy, yet both refused to prevent the Terry stop."
Plaintiff cannot prevail on this claim because of the intracorporate conspiracy doctrine. Under that doctrine,
Dickerson v. Alachua County Commission, 200 F.3d 761, 767 (11th Cir. 2000) (alteration in original, footnote omitted). As defendants point out, both Nix and Shockley are employees of the same governmental entity, the Huntsville Police Department, and there is no evidence that any non-Police Department employees were on the scene during the events that led to this lawsuit. Accordingly, it is a legal impossibility for Nix and Shockley to have conspired together to violate plaintiff's constitutional rights, and summary judgment is due to be granted on plaintiff's claims under 42 U.S.C. §§ 1985(3) and 1986.
Plaintiff's Second Amended Complaint alleges that the City of Huntsville "maintained a policy or custom by which it failed to adequately train or supervise its police officers in making Terry stops, and said policy or custom was the moving force causing the violation of Plaintiff's rights," including his "right to be free from unreasonable searches and seizures, his rights against false arrest and imprisonment, and his right to be free from the use of excessive force by police . . . ."
Because the court already has found that Nix and Shockley did not commit constitutional violations, or that they at the very least are entitled to qualified immunity from plaintiff's claims, there is no basis for holding the City liable. See McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) ("[T]o impose § 1983 liability on a municipality, a plaintiff must show[, among other things,] that his constitutional rights were violated") (alterations supplied).
The only remaining claims are plaintiff's state law claims against Nix and Shockley for assault and battery and false arrest/imprisonment.
28 U.S.C. § 1367(c) (emphasis supplied). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988) (alteration supplied).
Here, plaintiff's federal claims have been eliminated. Accordingly, this court declines supplemental jurisdiction over the remaining state law claims, and exercises its discretion to dismiss those claims.
In accordance with the foregoing, defendants' motion to strike is GRANTED in part and DENIED in part. The court did not consider any testimony from plaintiff's expert witness, Dr. William Gaut, regarding the ultimate issues of whether probable cause was present to justify the searches and arrest of plaintiff, whether either of the individual defendants used excessive force, or whether the City of Huntsville should be held liable for the officers' conduct. To the extent Dr. Gaut offered testimony regarding whether defendants' actions and policies were consistent with reasonable, typical police practices and procedures, that testimony has been considered.
Defendants' motion for summary judgment is GRANTED in part and DENIED in part. All of plaintiff's federal claims (Counts I-V) are DISMISSED with prejudice. His state law claims (Counts VI-VII) are DISMISSED without prejudice to plaintiff's right to reassert those claims in an appropriate state forum, if he chooses.
Costs are taxed to plaintiff. The Clerk is directed to close this file.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations and internal quotation marks omitted).
