RICHARD W. STORY, District Judge.
This case comes before the Court on Motions for Summary Judgment from Defendants Chief Allan Johnston and the City of Statham [Dkt. 48] and from Defendant Officer Marc Lofton [Dkt. 50] as well as Plaintiffs' Motion for Leave to File Excess Pages [Dkt. 57] and Defendants' Motion to Exclude Declarations Submitted by Plaintiffs [Dkt. 61]. As a preliminary matter, Plaintiffs' Motion for Leave to File Excess Pages [Dkt. 57] is
This civil rights case stems from the allegedly unlawful arrests of Plaintiff Carrie Foster and her husband Plaintiff Tony Foster by Defendant Officer Marc Lofton. At the time of the arrests, Lofton was a police officer for the City of Statham under the supervision of Police Chief Allan Johnston. [Dkt. 48-1 at 1-2].
Before working for the City of Statham, Lofton worked for the City of Winder, where his performance reviews had been less than satisfactory [Dkt. 58-13], and where he had been put on probation for deficiencies in criminal procedure, particularly with regard to searches and seizures. [Dkt. 58-12]. Lofton was known for making a high number of DUI arrests involving alleged impairments due to drugs, rather than alcohol, even though he had not received the appropriate training to do so.
This time around, he arrested her, and when her husband approached the scene, Lofton tased him and arrested him too. Both spouses sued Lofton, his supervisor Chief Allan Johnston, and the City of Statham.
On a December afternoon in 2015, Lofton initiated a traffic stop of Ms. Foster while she was driving home from her work at the local Waffle House. [Dkt. 50-2 at ¶ 37]. Lofton informed Ms. Foster that he pulled her over for speeding. [
Lofton then told Ms. Foster that he was "noticing a couple of things," and asked Ms. Foster to step out of her vehicle. [Dkt. 48-2, ¶¶ 6-7]. Lofton again asked Ms. Foster what medications she had taken, and again she confirmed that she took Goody's powders in the morning and Coricidin at night. [
Lofton first performed the horizontal gaze nystagmus exercise ("HGN test"), instructing Ms. Foster to follow the tip of Lofton's pen with her eyes while not moving her head. [Dkt. 50-2, ¶ 51]. During the HGN test, Lofton allegedly observed three indicators that Ms. Foster was under the influence of drugs or alcohol: "(1) lack of smooth pursuit in both eyes, (2) distinct and sustained nystagmus at maximum deviation in both [] eyes, and (3) onset of nystagmus prior to 45 degrees in both eyes." [
Lofton then instructed Ms. Foster to perform the walk-and-turn exercise. [
Just after Ms. Foster completed the walk-and-turn exercise, Mr. Foster drove by the traffic stop on a lawnmower. [
Lofton then elected not to conduct a one-leg stand exercise due to Ms. Foster's expressed physical limitations. [
Upon completion of the field sobriety tests, Lofton returned to his patrol vehicle to review his dash cam footage of the exercises and determined that Ms. Foster was "driving under the influence of some substance and was less safe to drive." [
When Lofton's microphone came back on, he was in the middle of explaining to Ms. Foster that "what [he] was seeing" was "not normal." [
Lofton then initiated the arrest of Ms. Foster, instructing her to turn around and place her hands behind her back. [
As Ms. Foster was being placed in Lofton's patrol vehicle, Mr. Foster approached the scene of the stop and asked Lofton why Ms. Foster was being arrested. [Video 1 at 43:04-43:48]. Lofton told Mr. Foster that his wife was being arrested for a DUI and to "shut [his] mouth and leave my stop before [he goes] to jail with her." [
Lofton then instructed Mr. Foster to turn around and to get on the ground, to which Mr. Foster replied, "I haven't done nothing." [Video 1 at 44:16-44:27]. Lofton then tased Mr. Foster, but the taser did not make a good connection and was ineffective. [Dkt. 50-2, ¶¶ 78-79]. Lofton continued to instruct Mr. Foster to "get on the ground if you don't want to get lit up again" and then tased Mr. Foster a second time. [
Lofton allegedly placed his knee in Mr. Foster's back and radioed to dispatch. [Dkt. 46, T. Foster Dep. at 32:24; Video 1 at 45:44-46:15]. Mr. Foster allegedly struggled to breathe and began audibly gasping for air. [Dkt. 46, T. Foster Dep. at 34:3-9; Video 1 at 48:40]. Lofton told Mr. Foster to "keep talking to [him]" and asked Mr. Foster "how much have you had to drink?" [Video 1 at 49:20-49:38]. Mr. Foster responded that he had "one beer." [
An ambulance appeared on scene and began tending to Mr. Foster as Lofton described the incident to the paramedics. [
Ms. Foster, while represented by counsel, pled guilty to failure to maintain lane. [Dkt. 48-10, Ex. G]. Her remaining charges of DUI — drugs less safe and disorderly conduct were dismissed. [Dkt. 58-8, Ex. E]. Mr. Foster forfeited his bond for the public intoxication charge; his obstruction charge was dismissed. [Dkt. 48-13, Ex. J].
In their Complaint, the Fosters asserted various § 1983 claims: Unlawful Seizure, False Arrest, Malicious Prosecution, and First Amendment Retaliation on behalf of Ms. Foster (Counts I-IV); False Arrest, First Amendment Retaliation, and Excessive Force on behalf of Mr. Foster (Counts V-VII); and punitive damages (Count VIII). They also asserted tort claims under Georgia Law on behalf of both Plaintiffs (Count IX).
The Defendants moved jointly to strike three declarations [Dkts. 58-5, 58-7, 58-22] submitted by the Fosters in support of their Response to the Motion for Summary Judgment. But the reasons put forth by the Defendants for each of the three declarations do not warrant striking them. For Hilliard, [Dkt. 58-7], they argue that Plaintiffs failed to disclose him as a witness; but Hilliard was identified in the depositions, and so the Defendants should not be surprised by his inclusion. For both Ott [Dkt. 58-5] and Duffel [Dkt. 58-22], the Defendants argue that the Fosters did not properly identify them as expert witnesses. But Ott was so identified,
Accordingly, Defendants' Joint Motion to Exclude [Dkt. 61] is
The standard for summary judgment is well-established. Summary judgment must be granted "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). Summary judgment is improper, however, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
In conducting its review, the Court must "consider the record and draw all reasonable inferences in the light most favorable to the non-moving party."
Ms. Carrie Foster claims that Officer Lofton unlawfully detained her, falsely arrested her, and maliciously prosecuted her, all in violation of her Fourth Amendment rights.
"[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot."
However, "[a] law enforcement official who reasonably but mistakenly concludes that reasonable suspicion is present is still entitled to qualified immunity."
Here, Lofton argues that his stop of Ms. Foster was not an "unreasonable seizure" under the Fourth Amendment because he had reasonable suspicion—or at least arguable reasonable suspicion—to stop her for two different traffic violations: speeding, in violation of O.C.G.A. § 40-6-181, and failure to maintain her lane, in violation of § 40-6-48(1).
As for speeding, there is a very clear fact dispute about Ms. Foster's speed. Lofton claims she was driving at 50 mph in a 45-mph zone. That, he explained to her at the time, is why he stopped her. However, beginning with her initial discussion with Lofton during the stop, which is captured on video, and continuing through her argument here, Ms. Lofton maintains that she was driving 35 mph. And she reasonably argues that she was taking care to drive cautiously, because she was already on a limited permit and because she saw the police car trailing her. Further, after having reviewed the video, Lofton ultimately declined to cite her for speeding, even as he cited her for a separate traffic violation.
The video evidence is inconclusive based on the Court's review, it does not appear that Ms. Lofton is driving particularly fast, and she does not pass any cars before being pulled over.
The evidence for a failure to maintain lane is a closer call. Georgia law states that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." § 40-6-48(1). Lofton stated in his affidavit that he stopped Ms. Foster in part because she "crossed over" the fog line, that is, the white line that demarcates the edge of the right lane (or in this case, the only lane in that direction) from the shoulder. [Dkt. 50-3 at ¶ 88]. If Ms. Foster in fact crossed it, that would establish reasonable suspicion that she violated the statute.
Lofton argues that the video shows conclusively that she crossed the line. Not so. In the video, the critical moment occurs at 0:22-24 seconds. There, for a brief moment as the road bends to the right, Ms. Foster's right tires approach and perhaps touch the right edge of the road. But upon careful review of the video, a few key facts emerge: first, the white "fog line," which is clearly present on the earlier stretch of road, stops before that point, at approximately 0:20. That means where her tires draw near to the edge, there is no highly-visible fog line against which to measure her car's position. Second, it is not conclusive that she actually touches the edge at 0:23, when she is farthest to the right. Pausing the video reveals that there is a sliver of road visible between her tires and the edge both immediately before, at 0:22, and immediately after, at 0:24. Further, at 0:24, it appears that the spot where it looks like she touched just a second before is actually draped in shadow, so that the edge of the road is not clearly visible. Thus, a jury could reasonably conclude from the video that she did not actually touch—much less cross—the fog line.
Even if the Court were to find conclusively that the tires did touch the line, still that may not be enough. Courts in this district addressing similar stops have said that simply touching the edge of a lane, on its own, is not enough for reasonable suspicion.
But, there remains yet one piece of evidence that cuts against the rest: Ms. Foster's guilty plea and subsequent conviction for failure to maintain her lane. In Georgia, a guilty plea is considered "an admission against interest and prima facie evidence of the facts admitted."
Ms. Foster does not dispute that the plea agreement submitted by Officer Lofton bears her signature. But she maintains that she did not agree to plead to (McFadden, J., dissenting). To use a sports metaphor, it is not apparent whether we are playing football, where the line is out, or baseball, where the line is in. anything. She argues that she signed a blank piece of paper when her defense lawyer told her that everything would go away, and that he filled in the rest. She argues further that state and municipal records show that she was not actually convicted of failure to maintain lane: first, because the conviction does not appear on her driving record, and second, because the charge listed in the municipal court disposition records shows that the charge was for a county ordinance and the notes show the record was reopened at a later date. [
Despite these objections, however, the Court finds that the plea agreement, which refers to failure to maintain a lane, combined with the disposition records referring to a guilty plea, preclude a factual dispute on this issue. Whatever her lawyer told her, the record shows that Ms. Foster pled guilty, and the Court must accord respect to the outcome of the state criminal proceedings. Thus, the Court considers as evidence Ms. Foster's admission that she failed to maintain her lane.
Of course, even when the underlying conduct is admitted, such an admission does not automatically wipe away potential Fourth Amendment violations. The basis for a valid conviction does not necessarily depend on what the officer knew at the time of the stop.
Despite some significant evidence to the contrary—evidence which would otherwise create a genuine dispute of material fact—given her admission of the underlying conduct, it cannot also be said that Officer Lofton lacked arguable reasonable suspicion to stop Ms. Foster. Therefore, he is entitled to qualified immunity for her claim of unlawful detention.
For a claim of unlawful arrest under the Fourth Amendment, the law in this Circuit is clear: the key question is whether, at the time of the arrests, Lofton had (1) probable cause, (2) arguable probable cause, or (3) neither. If he had probable cause, the arrest did not violate the Fourth Amendment.
The video shows clearly that the arrest here was for DUI, though of course, Lofton notes correctly that his immunity follows if he can show arguable probable cause for any crime. Thus, he contends he had probable cause to arrest her not only for DUI, but also for obstruction and for the traffic violation(s) that led to the stop.
As an initial matter, his arguments about obstruction are unavailing, because the only conduct related to obstruction—namely, Ms. Foster's yelling to her husband to "get Jake"—occurred after the arrest. Her yelling probably did not rise to the level of obstruction, but even if it had, it would not justify a prior arrest.
So, the Court turns to the main crime at issue: DUI. And it is particularly problematic—if the stop was questionable, the arrest on this basis is even more so. In other cases where DUI arrests have been upheld, there are typically other factors that give the officer probable cause for the arrest: for example, a 911 report, evidence of erratic driving, driving at an unusual time of day, or some indication after the stop that alcohol had been consumed.
From the video, the evidence is weak. As discussed above, there is very little to quibble with about Ms. Foster's driving. Once stopped, she does not appear to be impaired. She is nervous—justifiably, particularly since she knew that Lofton had previously stopped and arrested her—but otherwise calm. She explained that she had come directly from work, and there was no reason to doubt her. And she appears to perform reasonably well with the various tests he set before her: she appears to walk in a straight line, despite her protests about hip problems; she appears to correctly touch her nose each time except once; and she quickly states the alphabet letters Lofton requested of her. Even the most ostensibly incriminating evidence—her statements that she took too much of the medicine—can be reasonably understood, like her many apologies, as merely attempting to get the encounter over with, rather than as expressions of fact.
Officer Lofton primarily relied upon his application of the field sobriety test. And, even putting aside her performance, his administration of it is plagued with problems: the evidence shows that Lofton did not have the requisite training to test for drug impairment, that he had previously been put on notice that his knowledge in the areas of search and seizure was deficient, and that his administration of the test was incompetently performed. Under these circumstances, that she failed the test is no guarantee that even arguable probable cause existed. The test results, in this instance, are inconclusive.
Taking together all the evidence—or the lack thereof—and construing it in Ms. Foster's favor, the Court concludes that a jury could find facts warranting the conclusion that Officer Lofton lacked arguable probable cause to arrest for DUI.
There remains, however, the traffic violations. And here, the result is the same as with her claim for the unlawful stop: Ms. Foster's admission in her guilty plea that she failed to maintain her lane removes any contention that Lofton lacked probable cause, much less arguable probable cause, to arrest her for it. Indeed, the case here is even stronger than for the stop, because Lofton went back and reviewed the video before the arrest. [Dkt. 50-3 at ¶ 88]. Thus, despite evidence to the contrary, Officer Lofton is entitled to qualified immunity on Ms. Foster's claim of unlawful arrest.
Malicious prosecution is "a violation of the Fourth Amendment and [a] viable constitutional tort under § 1983."
Ms. Foster claims that Lofton maliciously prosecuted her by issuing to her three citations: for failure to maintain lane, for DUI, and for obstruction. She claims that, unlike with false arrest, he must have probable cause for each of those crimes to issue a citation. And there is some authority for that proposition.
However, malicious prosecution does not apply in cases of warrantless arrests because the seizure is related to the arrest, not to the issuance of the citations.
Under Georgia law, an officer is immune "from personal liability arising from his performance of official functions as long as the officer did not act with actual malice or actual intent to cause injury."
Ms. Foster argues that the evidence here allows for an inference of actual malice because the arrests were without probable cause. The Court concluded above that due to Ms. Foster's admission in her guilty plea, Lofton did have probable cause, which would defeat her contention. But even if he did not, the mere lack of probable cause would not suffice to establish actual malice. Ms. Foster points to the case of
So, the Court concludes that Officer Lofton did not act with actual malice. The facts in the record do not create a jury question concerning whether he had actual malice toward or an actual intent to injure Ms. Foster. Therefore, Lofton is entitled to official immunity for her claims under state law.
Based on the foregoing, the Court concludes that Officer Lofton is entitled to immunity for both the federal
Mr. Tony Foster claims that Officer Lofton arrested him in violation of his Fourth and First Amendment rights and used excessive force during the arrest. He also makes the same state law claims as does his wife. Officer Lofton raises the same defenses: he contends that his conduct was lawful, and, even if not, the claims still fail because he is still entitled to immunity and because Mr. Foster is barred from bringing these claims.
Officer Lofton contends that he had arguable probable cause to arrest Mr. Foster for both public intoxication and obstruction.
Based on the audio evidence from the video,
Lofton again raises the issue of the preclusive effect of Mr. Foster's conviction. But the argument is unavailing here. Again, the rule in Georgia is that a guilty plea is "an admission against interest and prima facie evidence of the facts admitted."
Unlike with Ms. Foster's plea, however, Mr. Foster's admission does not retroactively give rise to arguable probable cause for the arrest. That is because the evidence of the admission is rebutted by the other evidence, which shows that the key information concerning public intoxication—Mr. Foster's statement—arose after Lofton had arrested him. Therefore, the Court cannot conclude as a matter of law that Officer Lofton had arguable probable cause to arrest Mr. Foster for public intoxication.
The undisputed facts likewise do not support the conclusion that Officer Lofton had arguable probable cause to arrest Mr. Foster for obstruction. Mr. Foster did not obstruct Lofton's arrest of Ms. Foster in any way.
Lofton fails to distinguish
Second, Lofton's comparison overlooks a much more comparable encounter in the same case. In
Considering these authorities and construing the facts of this case most favorably to Mr. Foster, the Court cannot conclude that Officer Lofton had arguable probable cause to arrest him for obstruction either. Accordingly, without justification to arrest for either crime, Lofton is not entitled to qualified immunity for that claim.
Mr. Foster also claims that he was arrested not for any crime, but because he called Officer Lofton a "dickhead." He argues that the arrest was unlawful retaliation in violation of his First Amendment right to free speech. "To establish a First Amendment claim, a plaintiff must show first, that his speech or act was constitutionally protected; second, that the defendant's retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech."
Those elements appear to be easily satisfied here. Plaintiff called Officer Lofton a "dickhead," and given that he was arrested immediately after for no apparent criminal conduct, there is evidence that it was the statement that caused the arrest.
Instead, the parties chiefly disagree about whether probable cause—or arguable probable cause—bars this First Amendment claim. Lofton argues that arguable probable cause bars this claim just like the last one. Mr. Foster argues that, even if Lofton had arguable probable cause to arrest him, still his arrest could violate the First Amendment. As it happens, the Supreme Court recently answered this very question: it held that, barring one exception which does not apply here, the plaintiff is required to show that the officer lacked probable cause.
In any event, though Lofton correctly identifies the contours of the First Amendment claim, it is for him no defense, because the Court has already established that he lacked arguable probable cause. Because of that, and because the elements of the First Amendment claim are met, he is not entitled to qualified immunity on the First Amendment claim either.
Mr. Foster claims that Officer Lofton used excessive force when he tased him multiple times while arresting him. A claim of excessive force "presents a discrete constitutional violation relating to the manner in which an arrest was carried out."
Of course, when an arrest is made in the absence of probable cause, an officer is not justified in using any force.
But in such a case, the "claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim."
So, although the evidence shows that Officer Lofton lacked arguable probable cause to arrest Mr. Foster, the Court assumes for the purposes of this claim that he did have probable cause and considers whether his repeated use of the taser to subdue Mr. Foster while arresting him for obstruction and public intoxication would nevertheless be excessive.
In an excessive force case arising out of an arrest, whether a constitutional violation occurred is governed by the Fourth Amendment's `objective reasonableness' standard."
So considered, the Eleventh Circuit has clearly established that when a suspect arrested for minor crimes resists an officer without violence, the use of a taser is excessive.
Construing the evidence most favorably to Mr. Foster, it does not appear that he was acting in a violent manner. Foster contends that he "began complying with Officer Lofton's order" right away and he was "in the process of reaching his hands behind him" when Lofton put a knee in his back and then, without warning, tased him. [Dkt. 58 at 38-39]. The audio supports his position that he was walking away from Officer Lofton and that he was tased before he had a proper opportunity to comply with his commands.
Therefore, in light of the evidence presented and clearly-established precedent set out by the Eleventh Circuit, Officer Lofton is not entitled to qualified immunity on Mr. Foster's excessive force claim at this stage.
Because Officer Lofton is not entitled to qualified immunity for Mr. Foster's § 1983 claims, the Court now turns to Lofton's other defense. He also argues that the Supreme Court's rule from
512 U.S. 477, 487 (1994). Lofton argues that Mr. Foster's § 1983 action would necessarily imply the invalidity of his conviction for public intoxication, and so the claims must be dismissed. Mr. Foster argues in response that his bond forfeiture does not constitute a "conviction" under the rule. In fact, neither is correct.
First, while Mr. Foster is correct that some methods of terminating criminal proceedings do not count as a conviction,
But the question of Mr. Foster's "conviction" operating as a potential bar points to a larger, deeper issue—namely, that
This Court believes that the correct approach is to limit
Similar to the state law preclusion analysis, the
This case illustrates what the Eleventh Circuit meant when it said, "a successful § 1983 action for search and seizure violations does not necessarily imply that a conviction is invalid."
Again, for the claims brought under state law, Officer Lofton would be entitled to immunity unless the plaintiffs could show he acted with "actual malice or actual intent to cause injury."
Unlike with the stop and arrest of Ms. Foster, the evidence of Officer Lofton's treatment of Mr. Foster, construed in Mr. Foster's favor, is enough. Lofton was clearly provoked by being called a "dickhead;" his repeated and excessive use of the taser, despite Mr. Foster's repeated claims that he had done nothing wrong, and no apparent threat of harm against Officer Lofton, could be viewed as the product of an actual intent to harm Mr. Foster. A jury may well review the evidence and determine that he acted with the requisite state of mind. Accordingly, Officer Lofton is not entitled to official immunity at this stage.
Accordingly, his Motion for Summary Judgment is
In addition to the claims against Officer Lofton, both Tony and Carrie Foster also sued Chief Allan Johnston in his individual capacity.
In their Response to Summary Judgment, the Fosters narrow the scope further, focusing nearly exclusively on the claim concerning Ms. Foster's arrest for DUI. As they put it, "the question for . . . supervisory liability . . . is whether Johnston was deliberately indifferent to a serious risk of harm posted by Lofton's DUI practices in light of his training." [Dkt. 58 at 49 (emphasis added)]. Indeed, proceeding from there, the argument raises numerous issues about Lofton's DUI arrest practices, of which Chief Johnston was allegedly aware.
The supervisor cannot be liable under § 1983 if the arresting officer had actual or arguable probable cause to arrest.
As for the remaining, unaddressed claims for which Chief Johnston is a defendant, the necessary causal connection is lacking. "To hold a supervisor liable a plaintiff must show that the supervisor either directly participated in the unconstitutional conduct or that a causal connection exists between the supervisor's actions and the alleged constitutional violation."
As a result, Chief Johnston cannot be held liable for any of the claims. His Motion is therefore
Finally, there are the claims against the City of Statham. As with the Chief, the City is not a defendant to all claims. In particular, as with the Chief, the City is not a defendant for Mr. Foster's claims of First Amendment retaliation or of excessive force (Counts VI and VII). Additionally, whereas the Chief was a defendant to the punitive damages claim (Count VIII,) the city is not;
As for the federal claims, the parties correctly recognize that the liability for a municipality is governed by
The state law claims can also be disposed of quickly. The City argues both that the Fosters waived those claims against the City by not addressing them in their Response and that, even if treated on the merits, the City still prevails, because Georgia law precludes such a claim against it. It is right on both accounts. Under Georgia statutory law, "A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law." O.C.G.A. § 36-33-3. Perhaps because the law is straightforward, the Fosters did not respond to this particular argument raised by the City. Accordingly, the state law claims against the City cannot be maintained.
Therefore, the City of Statham's Motion is
Defendants Johnston and City of Statham's Motion for Summary Judgment [Dkt. 48] is
On December 24, 2008, Tabor pulled over Merenda's daughter in the parking lot of the nursing home in Perry, Georgia where Merenda worked and wrote her a ticket for wearing her seatbelt improperly. Merenda came outside and attempted to convince Tabor not to write the ticket. The video recorder from Tabor's squad car recorded most of the exchange between Merenda and Tabor. Merenda observed that wearing a seatbelt under one arm was a minor infraction, but Tabor persisted. Merenda then said, "this sucks," and, as he was turning to walk away from Tabor, said, "You're a fucking asshole." The verbal exchange between Merenda and Tabor was picked up on the patrol car's recorder, but Merenda's epithet is barely audible, either because he was turned away from the microphones as he said it, because he spoke softly, or both.
As Merenda walked quickly away from Tabor, Tabor attempted to stop him, twice telling him "come here." When Merenda did not stop, Tabor left his patrol car to catch up with him. Tabor said, "sir," and Merenda turned around. Tabor instructed Merenda to put his hands behind his back. Merenda repeatedly asked why. As Tabor pulled Merenda's hands behind his back, Merenda held his arms stiffly, which Tabor considered threatening. Tabor put Merenda in a choke hold and bent him over the trunk of the car. He handcuffed Merenda and put him in the back of his patrol car.
506 F. App'x at 866.
