Smith v. City of Montgomery, AL et al
MEMORANDUM OPINION AND ORDER that Defendants' Motion for Summary Judgment 40 is GRANTED in part and DENIED in part as further set out in order. Signed by Chief Judge William Keith Watkins on 11/2/2011. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CITY OF MONTGOMERY, et al.,
CITY OF MONTGOMERY, et al.,
) CASE NO. 2:10-CV-1007-WKW
) CASE NO. 2:10-CV-1008-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Antonio Haigler (“Mr. Haigler”) claims that Corporals Eric L. Morris
(“Cpl. Morris”) and Michael E. Mashburn (“Cpl. Mashburn”) of the Montgomery
Police Department used excessive force in arresting him, unlawfully arrested him,
falsely imprisoned him and filed a false report against him in violation of the Fourth
Amendment to the United States Constitution, as enforced by 42 U.S.C. § 1983 (“§
1983”). Plaintiff Carolyn Smith (“Mrs. Smith”)1 also asserts a Fourth Amendment
claim of excessive force against Cpls. Morris and Mashburn. Plaintiffs assert § 1983
supervisory liability claims against Defendants Mayor Todd Strange (“Mayor
Strange”), Police Chief Kevin Murphy (“Chief Murphy”) and the City of
Montgomery (“the City”).2 In addition to the above mentioned claims, Plaintiffs also
assert claims against all Defendants under 42 U.S.C. § 1985(2) and 42 U.S.C. §
1985(3) for conspiracy to interfere with civil rights and under Alabama law for fraud.3
Before the court is Defendants’ motion for summary judgment (Doc. # 40),
which is accompanied by a supporting brief and evidentiary submissions (Doc. # 41).
Plaintiffs filed a response in opposition. (Doc. # 43.) After careful consideration of
the arguments of counsel, the applicable law and the record as a whole, the court
finds that the motion is due to be granted in part and denied in part.
Mr. Haigler and Mrs. Smith will be referred to collectively as “Plaintiffs.”
Cpls. Morris and Mashburn, Mayor Strange, Chief Murphy, and the City will be
referred to collectively as “Defendants.”
Plaintiffs’ claims will be referred to as stated in Plaintiffs’ Amended Complaint (Doc. #
30): Excessive Force (Count A), Unlawful Arrest (Count B), Filing a False Report or Complaint
(Count C), Failure to Supervise Police Officers (Count D), Conspiracy to Interfere with Civil
Rights (Counts E & F), False Imprisonment/Wrongful Incarceration (Count G), and State Law
Fraud (Count H). Mr. Haigler is involved in all claims; Mrs. Smith is involved only in the claims
of Excessive Force and Failure to Supervise Police Officers.
II. JURISDICTION AND VENUE
The court properly exercises subject matter jurisdiction over this action,
pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil
rights jurisdiction), and 28 U.S.C. § 1367 (supplemental jurisdiction). Personal
jurisdiction and venue are adequately pleaded and not contested.
III. STANDARD OF REVIEW
On summary judgment, the evidence and the inferences from that evidence
must be viewed in the light most favorable to the nonmovant. See Jean-Baptiste v.
Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010). Hence, “‘facts, as accepted at the
summary judgment stage of the proceedings, may not be the actual facts of the case.’”
Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (quoting Priester v. City of
Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000)).
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam) (citation and internal quotation marks
omitted); see Fed. R. Civ. P. 56(a) (“The 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.”).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the record, including pleadings, discovery materials and
affidavits], which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this
burden by presenting evidence indicating there is no dispute of material fact or by
showing that the nonmoving party has failed to present evidence in support of some
element of its case on which it bears the ultimate burden of proof. Id. at 322–24.
If the movant meets its evidentiary burden, the burden shifts to the nonmoving
party to establish, with evidence beyond the pleadings, that a genuine issue material
to each of its claims for relief exists. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th
Cir. 2008); Fed. R. Civ. P. 56(c). When the nonmovant fails to set forth specific facts
supported by appropriate evidence sufficient to establish the existence of an element
essential to its case and on which the nonmovant will bear the burden of proof at trial,
summary judgment is due to be granted in favor of the moving party. Celotex Corp.,
477 U.S. at 323 (“[F]ailure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.”).
In the evening of August 7, 2010, Mr. Haigler and his friends came by the
apartment of Mrs. Smith, who is Mr. Haigler’s mother. Mr. Haigler had stopped by
to check on Mrs. Smith, who was having knee problems for which prescription pain
relief was prescribed. (C. Smith Dep. 19 (Doc. # 40, Ex. 4).) Mr. Haigler and several
of his friends, including Mrs. Smith’s husband Isaiah (“Mr. Smith”), were sitting in
chairs outside of apartment. Mrs. Smith was in her living room, speaking to her
mother on the phone. (Haigler Dep. 43 (Doc. # 40, Ex. 3); C. Smith Dep. 18.)
During this time, the Montgomery Police Department Crime Reduction Taskforce
(also known as “Jump Street”) was patrolling the area in a black unmarked SUV, after
having received tips regarding on-going drug and gun activity.5 (Morris Aff. (Doc.
# 40, Ex. 1); Mashburn Aff. (Doc. # 40, Ex. 2).) Mr. Haigler, upon seeing the police
vehicle pulling to a stop, walked inside to avoid the officers because he had five
outstanding capias warrants.6 (Haigler Dep. 42– 43.) Then, a black SUV pulled up
The actual facts may be different than those stated here. See Lee, 284 F.3d at 1190.
Mr. Haigler stated he has heard gunshots at Smith’s residence “maybe like every other
night.” (Haigler Dep. 78–79.) Mrs. Smith says she hears them on the weekends but not every
weekend. (C. Smith Dep. 107.)
Cpls. Morris and Mashburn both state that Mr. Haigler “fled” into the apartment.
(Morris Aff.; Mashburn Aff.)
behind Mrs. Smith’s truck, and Cpl. Morris, dressed in all black, ran up to Mrs.
Smith’s apartment door.7 (C. Smith Dep. 27.)
Cpl. Morris kicked in the door, went inside, and pushed Mr. Haigler against the
wall. Cpl. Morris put Mr. Haigler’s hands behind his back and said, “Don’t move,
where the mother------- drugs at?” (Haigler Dep. 45.) Then, Cpl. Mashburn came
into the house. Cpl. Morris told Cpl. Mashburn to handcuff Mr. Haigler because he
had seen the drug transaction. (Haigler Dep. 46–47.) Cpl. Morris pulled out his taser,
told Mr. Haigler not to move and kept asking where the drugs were. (Haigler Dep.
47–48.) Mr. Haigler was not moving or resisting during this time.8 (Haigler Dep.
48.) Mr. Haigler told Cpl. Morris that he did not sell drugs and that all he did was
work. (Haigler Dep. 48.) Cpl. Morris turned Mr. Haigler around and pointed his
taser at Mr. Haigler’s chest while repeatedly telling him not to move. (Haigler Dep.
48.) Then Cpl. Mashburn handcuffed Mr. Haigler.9 (Haigler Dep. 48, 52.) The other
Cpls. Morris and Mashburn state that, while they were observing the area from the
SUV, they saw Mr. Haigler, who was sitting in a chair in front of an apartment, reach into his
shirt pocket and pull out what they believed to be marijuana. (Morris Aff.; Mashburn Aff.) Mr.
Haigler insists he did not have drugs on him, did not pick up drugs, and did not see anyone with
drugs. (Haigler Dep. 79.) Other witnesses also state they never saw Mr. Haigler reach into his
pocket or pull anything out of it while on the front porch. (Brown Aff. 14 (Doc. # 30, Aff.
Attach.); Williams Aff 22 (Doc. # 30, Aff. Attach.).)
Cpls. Morris and Mashburn stated that Mr. Haigler was struggling with the officers
during the search. (Morris Aff.; Mashburn Aff.)
Corporal Morris states that he searched Mr. Haigler and did not find drugs so Cpl.
Mashburn looked under the living room sofa and found the marijuana there. They then placed
officers then searched the apartment.10 (Haigler Dep. 48.) During the search, the
officers pushed over Mrs. Smith’s sofa and loveseat, pulled everything out of the
closets, knocked all the cereal off the top of the refrigerator, pulled the flowers down,
and knocked over a lamp and pictures. (C. Smith Aff. 7 (Doc. # 30, Aff. Attach.).)
While Cpl. Mashburn handcuffed Mr. Haigler, Cpl. Morris went into Mrs.
Smith’s kitchen. (Haigler Dep. 52.) After Mr. Haigler was handcuffed, Cpl. Morris
came out of the kitchen, elbowed Mr. Haigler in the side, and said, “Where the
mother------- drugs at; you know where the drugs are at.” (Haigler Dep. 52–53.)
Then, another officer pushed Mr. Haigler. (Haigler Dep. 53.)
During Mr. Haigler’s arrest, Mrs. Smith kept telling the officers that Mr.
Haigler did not sell drugs, that he was lawfully employed and that she did not
understand why they were arresting Mr. Haigler. (C. Smith Dep. 57.) Cpl. Mashburn
pushed Mrs. Smith in the chest and told her to “shut the ---- up.”11 (C. Smith Dep.
57.) Mrs. Smith never touched, threw anything at or hit any of the officers. (C. Smith
Mr. Haigler under arrest. (Morris Aff.; Mashburn Aff.)
At least one other officer, Cpl. Davis, was also in the apartment; however he is not a
defendant in this suit.
Both Cpls. Morris and Mashburn stated that they never saw anyone strike or shove
Mrs. Smith. (Morris Aff.; Mashburn Aff.)
While Cpls. Morris and Mashburn were in Mrs. Smith’s apartment, no one was
allowed to go in or out. (C. Smith Aff. 7; I. Smith Dep. 20 (Doc. # 40, Ex. 5).) One
officer stayed outside with the men on the porch. (I. Smith Dep. 20.) The men on the
porch were searched and then told to leave after no contraband was found. (Brown
Dep. 23 (Doc. # 40, Ex. 6).) One of the men on the porch threw a cellophane bag of
marijuana on the ground before the officer searched him. (Brown Dep. 26.) The
officers did not see the bag until at least thirty minutes later.12 (Brown Dep. 26.)
Cpl. Morris brought Mr. Haigler outside in handcuffs and threw Mr. Haigler
to the ground. (Haigler Dep. 60.) Mr. Haigler was not resisting and had been
walking normally. (Haigler Dep. 60.) During this time, Mr. Smith told the officers
that their actions were not necessary and that they did not need to be so rough with
Mr. Haigler. (I. Smith Aff. ¶ 5. (Doc. # 43, Ex. 2).) Mr. Smith and another friend,
Ms. Lynne Williams, told the officers that Mr. Haigler took medicine for seizures and
that the force used could cause him to have a seizure. (Williams Aff. 22; I. Smith Aff.
¶ 6.) After Mr. Smith said this, Cpl. Mashburn pulled out his taser and pointed it at
Mr. Smith’s face saying, “Shut the ---- up or I’ll shoot you in your mother------- face!”
(I. Smith Aff. ¶ 5.) The officers made Mr. Haigler lie down on the ground for a
From the record, it is unclear which officer found the bag of marijuana on the ground
outside and at what point in the timeline.
minute until the “little short” officer said, “I got him.” (Haigler Dep. 60.) Then, the
officers picked up Mr. Haigler, threw him against the truck and threw him into the
truck. (Haigler Dep. 60–6; Haigler Aff. ¶ 4 (Doc. # 30, Aff. Attach.).) During this
time, Mr. Haigler stated that he heard the “little short” officer talking on the phone
and saying that Mr. Haigler had been arrested for no reason. (Haigler Dep. 61 (“We
just put one of the guys [away]; we don’t have nothing on him.”).) On the ride to the
station, the officers beat Mr. Haigler and poked his side and ribs with their clubs.
(Haigler Aff. ¶ 5.)
After being put in jail, Mr. Haigler complained of knee pain in his right knee
from being thrown to the ground. (Attach. A to Hopkins Aff. (Doc. # 40, Ex. 7).) He
was given ibuprofen for his pain. (Attach. A to Hopkins Aff.) In his Initial Inmate
Health Assessment, Mr. Haigler’s general appearance was marked as good but that
he walked with a limp from right knee pain and his left thumb was swollen at the
joint. (Attach. B to Hopkins Aff.) Mr. Haigler was charged with unlawful possession
of marijuana in the second degree. (Doc. # 30, Ex. 1.)13
On August 10, 2010, after he was released on bond, Mr. Haigler went to a
hospital emergency room for a thumb injury and back soreness. (Doc. # 40, Ex. 8.)
From the record, the outcome of Mr. Haigler’s charge of unlawful possession of
marijuana is unclear.
He was diagnosed with a sprained finger, for which he received a splint. Mr. Haigler
stated that he had cuts and bruises on his face and body and that he was sore all over.
(Haigler Aff. ¶ 7.)
Also on August 10, 2010, Mr. and Mrs. Smith filed a complaint with the City
of Montgomery Internal Affairs Department regarding the August 7, 2010 incident.
(I. Smith Aff. ¶ 8.) On September 20, 2010, Mr. and Mrs. Smith, along with their
friend Ms. Barbara Mays, spoke with then acting Chief Murphy regarding the
incident. (Mays Aff. ¶ 1 (Doc. # 30, Aff. Attach.).) During the meeting, Chief
Murphy expressed concerns about how the recent academy graduates “have no real
world experiences, and . . . sometimes are not prepared to deal with many of the
emotions, attitudes, and behaviors they face from the public on a daily basis.” (Mays
Aff. ¶ 3.) Chief Murphy explained that changing the colors of their uniforms can help
diffuse situations and that he will focus on this as the new Montgomery Police Chief.
(Mays Aff. ¶ 3.) Chief Murphy told the Smiths that he would send someone from the
city to repair their door and wall, and the door and wall were fixed that afternoon.
(Mays Aff. ¶ 4; I. Smith Aff. ¶ 10.)
During this meeting, Chief Murphy told the Smiths and Ms. Mays that the
department did not have a “solid case” against Mr. Haigler and that his officers did
not find drugs at the time of their search. (Mays Aff. ¶ 6.) He also performed a
demonstration to show them that the officers could not have seen what was in Mr.
Haigler’s hand. (Mays Aff. ¶ 6; I. Smith Aff. ¶ 9; see supra note 7.) Either at this
meeting or another (it is unclear when this event took place), Chief Murphy asked the
Smiths to have Mr. Haigler sign a release form stating that Mr. Haigler’s possession
of marijuana charge would be dismissed if Mr. Haigler would not sue or hold the city
liable for any claims. (I. Smith Aff. ¶ 11; Doc. # 30, Ex. 2.) Mr. Haigler did not sign
Since the incident, Mrs. Smith cannot sleep regularly because she has
nightmares about the incident and her knee hurts. (C. Smith Aff. 7–8.) She has to
take sleeping pills to sleep. (I. Smith Aff. ¶ 13.) The medicine she took for her knee
no longer helps with the pain after she was pushed by Cpl. Mashburn. Mrs. Smith
had to have surgery on her knee. (C. Smith Aff. 7–8.) Mr. Haigler also has had
trouble sleeping since the incident. (Haigler Aff. ¶ 8.)
Seeking redress, Mrs. Smith and Mr. Haigler filed separate actions on
November 29, 2010. The two cases were consolidated on December 28, 2010. (See
Doc. 17.) The governing Amended Complaint alleges § 1983 claims of excessive
force, unlawful arrest, filing a false report or complaint, failure to supervise police
officers and false imprisonment, § 1985 claims for conspiracy to interfere with civil
rights and a fraud claim under Alabama law against all Defendants in their individual
and official capacities.
Plaintiffs seek compensatory and punitive damages;
employment termination of all officers who participated in the August 7, 2010
incident; restraining orders on the Montgomery Police Officers to protect Plaintiffs,
Plaintiffs’ witnesses, and Plaintiffs’ counsel; and attorney’s fees.
Plaintiffs concede that summary judgment is due to be entered in Defendants’
favor on their § 1985 conspiracy claims (Counts E and F) and their fraud claims under
Alabama law (Count H). (Pls.’ Resp. Br. 6 (Doc. # 43).) Additionally, at the October
19, 2011 pretrial hearing, Plaintiffs’ counsel agreed that Defendant Mayor Todd
Strange may be dismissed from this action. Thus, summary judgment will be entered
on all claims against Mayor Strange.
Plaintiffs have sued Defendants Kevin Murphy, Chief of Police of the City of
Montgomery; and Cpls. Morris and Mashburn, officers for the Montgomery Police
Department, in both their official and individual capacities. “Under the Eleventh
Amendment, state officials sued for damages in their official capacity are immune
from suit in federal court.” Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1575
(11th Cir. 1994); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (stating that
“an official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity”). Thus, the individual Defendants are entitled to absolute
immunity with regard to any claims for damages against them in their official
capacities. Similarly, the individual Defendants in their official capacities are not
“persons” for purposes of § 1983 monetary relief. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70–71 (1989).
Plaintiffs’ remaining claims against Defendants in their individual capacities
all arise under § 1983. To establish § 1983 individual liability, a plaintiff must
demonstrate that (1) he or she was deprived of a right secured by the United States
Constitution, and (2) the act or omission causing the deprivation was committed by
an individual acting under color of state law. Wideman v. Shallowford Cmty. Hosp.,
Inc., 826 F.2d 1030, 1032 (11th Cir. 1987).
Given the number of defendants and claims in this case, the opinion will be
broken up by defendant. Part V.B. will address Plaintiffs’ claims against Cpls. Morris
and Mashburn, including Cpls. Morris’s and Mashburn’s qualified immunity defense.
Part V.C. will address all of Plaintiffs’ claims against Chief Murphy. Finally, Part
V.D. will address all of Plaintiffs’ claims against the City, including the City’s
municipal liability defense.
Cpls. Morris and Mashburn in Their Individual Capacities
Cpls. Morris and Mashburn assert qualified immunity as a defense to Mr.
Haigler’s Fourth Amendment claims of excessive force, false arrest, and filing a false
report and Mrs. Smith’s Fourth Amendment claims of excessive force against them
in their individual capacities. First, general principles on the law governing qualified
immunity will be given, followed by an analysis as to whether the corporals are
entitled to qualified immunity on each § 1983 claim.
General Principles of Qualified Immunity
“The doctrine of qualified immunity provides that government officials
performing discretionary functions generally are shielded from liability for civil
damages” unless they have violated a clearly established constitutional right.
Townsend v. Jefferson Cnty., 601 F.3d 1152, 1157 (11th Cir. 2010) (citation and
internal quotation marks omitted). A qualified immunity determination requires the
application of a multi-part test. First, a defendant must establish that he or she was
acting within his or her discretionary authority as a public employee when the
conduct in question occurred. Id. at 1158. Next, a plaintiff must demonstrate “‘that:
(1) the defendant violated a constitutional right, and (2) this right was clearly
established at the time of the alleged violation.’” Id. (quoting Holloman v. Harland,
370 F.3d 1252, 1264 (11th Cir. 2004)).
In previous years, this two-step inquiry had to be conducted in order. That is,
the court had to decide whether a right existed (and whether it was violated) before
deciding whether it was clearly established. Now, courts may “‘exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first.’” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 236
(2009)). Here, the court proceeds in the sequence set forth in Townsend.
It is undisputed that Cpls. Morris and Mashburn were acting within their
discretionary authority as officers of the Montgomery police department at all times
material to this lawsuit. (Defs.’ Summ. J. Br. 22 (Doc. # 41).) Thus, the burden shifts
to Plaintiffs to show that Cpls. Morris and Mashburn are stripped of qualified
immunity based on their actions.
Fourth Amendment Claims for Unlawful Arrest and False
Imprisonment (Counts B & G)14
These claims relate only to Mr. Haigler. “There is no question that an arrest
without probable cause to believe a crime has been committed violates the Fourth
Amendment.” Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997) (citing
Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990)). “[I]f an arresting officer
does not have the right to make an arrest, he does not have the right to use any degree
of force in making the arrest.” Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1332
(11th Cir. 2006). Likewise, “the damages recoverable on an unlawful arrest claim
‘include damages suffered because of the use of force in effecting the arrest.’” Id.
(citing Williamson v. Mills, 65 F.3d 155, 158–59 (11th Cir. 1995)).
“Probable cause exists where the facts and circumstances within the collective
knowledge of the law enforcement officials, of which they had reasonably trustworthy
Because Mr. Haigler’s § 1983 claims of false arrest and false imprisonment are both
dependent on the absence of probable cause, the two claims will be analyzed together. See Case
v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009) (“Our precedents establish that a claim of false
imprisonment . . . depends on an absence of probable cause . . . . Where a police officer lacks
probable cause to make an arrest, the arrestee has a claim under section 1983 for false
imprisonment based on a detention pursuant to that arrest . . . .”); see also Sada v. City of
Altamonte Springs, No. 11-10203, 2011 WL 2749664, at *5 (11th Cir. July 15, 2011)
(“[B]ecause the officers had probable cause to arrest Sada for battery, the district court did not err
in granting summary judgment on Sada’s federal constitutional claims and state law false
arrest/false imprisonment claims.”); Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)
(stating that probable cause constitutes an absolute bar to § 1983 claims alleging false arrest).
information, are sufficient to cause a person of reasonable caution to believe an
offense has been or is being committed.” United States v. Jimenez, 780 F.2d 975, 978
(11th Cir. 1986) (per curiam) (internal quotation marks and citations omitted).
“Probable cause does not require the same type of specific evidence of each element
of the offense as would be needed to support a conviction.” Adams v. Williams, 407
U.S. 143, 149 (1972).
Qualified Immunity and Unlawful Arrest: Arguable Probable
“While an officer who arrests an individual without probable cause violates the
Fourth Amendment, this does not inevitably remove the shield of qualified
immunity.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007). For
qualified immunity on a claim of unlawful arrest, an officer need not have actual
probable cause, but only arguable probable cause. Holmes v. Kucynda, 321 F.3d
1069, 1079 (11th Cir. 2003). Arguable probable cause exists where “‘reasonable
officers in the same circumstances and possessing the same knowledge as the
[d]efendants could have believed that probable cause existed to arrest [the] [p]laintiff
. . . .’” Kingsland v. City of Miami, Fla., 382 F.3d 1220, 1232 (11th Cir. 2004)
(quoting Von Stein, 904 F.2d at 579). The plaintiff bears the burden to “demonstrate
that no reasonable officer could have found probable cause under the totality of the
circumstances.” Id. Thus, “even law enforcement officials who reasonably but
mistakenly conclude that probable cause is present are entitled to immunity.”
Holmes, 321 F.3d at 1079 (internal quotations marks and citations omitted).
Whether an officer possesses arguable probable cause depends on the elements
of the alleged crime and the operative fact pattern. Skop, 485 F.3d at 1137–38.
Arguable probable cause does not, however, require an arresting officer to establish
every element of a crime before making an arrest, because such a requirement “would
negate the concept of probable cause and transform arresting officers into
prosecutors.” Scarbrough v. Myles, 245 F.3d 1299, 1303 (11th Cir. 2001). Thus, the
inquiry is “whether [the defendant] violated clearly established law in making the
arrests based on the objective factors that gave rise to his probable-cause
determination and not whether the arrestees’ actions actually constituted a crime.”
Id. at 1303 n.8.
Additionally, qualified immunity will protect officers who make good faith
mistakes. Post v. City of Fort Lauderdale, Fla., 7 F.3d 1552, 1558 (11th Cir. 1993)
(granting qualified immunity on the basis of arguable probable cause where the
officers erroneously counted people in excess of a restaurant’s maximum capacity),
modified, 14 F.3d 583 (11th Cir. 1994) (per curiam). However, it will not protect
officers whose conduct “creates factual issues as to their honesty and credibility.”
Kingsland, 382 F. 3d at 1233; see also Holmes, 321 F.3d at 1083–84 (reversing the
grant of qualified immunity and summary judgment because factual questions existed
whether officers filed a recklessly false application for an arrest warrant).
On the offense of unlawful possession of marijuana in the second degree for
which Mr. Haigler was arrested, Alabama Code § 13A-11-7 provides that:
(a) A person commits the crime of unlawful possession of marihuana in
the second degree if, except as otherwise authorized, he possesses
marihuana for his personal use only.
(b) Unlawful possession of marihuana in the second degree is a Class A
The key for this crime is possession of marijuana by the arrestee. Thus, the
inquiry is whether Cpls. Morris and Mashburn had arguable probable cause that Mr.
Haigler possessed marijuana.
Whether Cpls. Morris and Mashburn Had Arguable Probable
Cause to Arrest Mr. Haigler for Possession of Marijuana
Defendants’ argument focuses on arguable probable cause for Cpls. Morris’s
and Mashburn’s warrantless entry into Mrs. Smith’s apartment. Defendants argue
they had arguable probable cause to arrest Mr. Haigler for this offense because Cpl.
Morris thought he saw Mr. Haigler pull marijuana out of his shirt pocket while Mr.
Haigler was sitting outside Mrs. Smith’s apartment and Mr. Haigler was in an area
known for drug dealing and where gunfire could often be heard. (Defs.’ Summ. J. Br.
8–9.) According to Defendants, these facts provided a hot pursuit justification for
entering Mrs. Smith’s apartment when Mr. Haigler went inside. However, Mr.
Haigler’s unlawful arrest claim is not based on Cpls. Morris’s and Mashburn’s
warrantless entry into Mrs. Smith’s apartment.15 (See Pls.’ Resp. Br. 2 (Doc. # 43).)
Instead, Mr. Haigler’s basis for the unlawful arrest claim is that Cpls. Morris and
Mashburn falsified facts to gain probable cause to justify the warrantless entry and
Mr. Haigler points to Cpl. Morris’s report, which states that Cpl. Mashburn
found marijuana under the couch in Mrs. Smith’s apartment before arresting Mr.
Haigler. (Doc. # 30, Ex. 1.) However, Mrs. Smith and Mr. Haigler (who were both
inside the apartment when the marijuana was allegedly found under Mrs. Smith’s
couch) submitted affidavits stating that the officers never found marijuana under the
couch or even in Mrs. Smith’s apartment. In addition, Mr. Haigler submitted
Plaintiffs’ brief states that “[e]ven if the Defendants did mistakenly believe so, that
would entitle them to pursue and detain Mr. Haigler inside the residence, but not to
subsequently arrest him.” (Doc. # 43 at 2.) Defendants’ reliance on United States v.
Echevarria, 238 F. App’x 424 (11th Cir. 2007), is misplaced. In Echevarria, the Eleventh
Circuit found that the warrantless entry into a defendant’s trailer and the subsequent search came
within the exigent circumstances exception to the warrant requirement. Id. at 425. However,
Echevarria dealt with whether the officers’ entry into defendant’s residence was valid, not with
whether the officers had probable cause to arrest the defendant. Probable cause to arrest is the
disputed issue in this case.
evidence that Chief Murphy indicated the officers did not find drugs in the apartment
or on Mr. Haigler’s person.
Cpls. Morris and Mashburn are not entitled to qualified immunity if their
conduct violates Mr. Haigler’s clearly established rights. It is clearly established that
“[f]alsifying facts to establish probable cause is patently unconstitutional . . . .”
Kingsland, 382 F.3d at 1232; see also Williams v. Miami-Dade Police Dep’t, 297 F.
App’x 941, 946 (11th Cir. 2008). It must then be determined if there is evidence
creating a genuine issue of material fact that, under the totality of the circumstances,
the officers’ initial observations of Mr. Haigler as he sat outside his mother’s
apartment were objectively reasonable.
Based on the totality of the circumstances, a reasonable officer could not have
objectively believed that Mr. Haigler possessed marijuana. Under Plaintiffs’ version
of the events, the only facts known to Cpls. Morris and Mashburn at the time of Mr.
Haigler’s arrest were that Mr. Haigler was hanging out with friends in an area known
for guns and drugs, and he walked into an apartment upon seeing Jump Street’s
vehicles. Under these facts, “a link between the suspected criminal activity and [Mr.
Haigler]” is missing. Williamson, 65 F.3d at 158. Mr. Haigler’s activities of hanging
out on a porch with friends and walking inside is a “facially innocent act.” Id.
(holding that “[t]aking photographs at a public event is a facially innocent act” and
that “[t]he mere fact that [these] photographs could have been used for unlawful
activity . . . [was] not enough to establish even arguable probable cause” for arresting
Mr. Haigler raises a question of fact as to whether arguable probable cause
existed to believe that from the officers’ vantage point they objectively could have
ascertained that Mr. Haigler pulled marijuana out of his shirt pocket. (See supra note
7; see also Mays Aff. ¶ 6; I. Smith Aff. ¶ 9.) Moreover, whether Cpls. Morris and
Mashburn found marijuana under Mrs. Smith’s couch, after having found no
marijuana on Mr. Haigler, is a question of fact for the jury to decide. Thus, qualified
immunity must be denied at this time on Mr. Haigler’s Fourth Amendment claims of
unlawful arrest and false imprisonment. See Kingsland, 382 F.3d at 1226–27.
Fourth Amendment Claim for Excessive Force (Count A)
This claim is brought by both Plaintiffs. As will be seen, because Mrs. Smith
was not arrested, the analysis for excessive force in her case differs from the analysis
for excessive force in the case of Mr. Haigler, who was arrested.
The Fourth Amendment’s “objective reasonableness” standard governs whether
a use of force is excessive. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.
2008); see also Lee 284 F.3d at 1197. The reasonableness inquiry requires the court
to “carefully balance ‘the nature and quality of the intrusion on the individual’s
Fourth Amendment interests’ against ‘the countervailing governmental interests at
stake.’” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)).
First, to determine whether the force applied was reasonable, the court looks
“at the fact pattern from the perspective of a reasonable officer on the scene with
knowledge of the attendant circumstances and facts, and balance[s] the risk of bodily
harm to the suspect against the gravity of the threat the officer sought to eliminate.”
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). The quantum of force
used should be measured against “the severity of the crime at issue; whether the
suspect poses an immediate threat to the safety of the officers or others; and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Oliver, 586
F.3d at 905 (citing Lee, 284 F.3d at 1197–98); see also McCullough, 559 F.3d at
Second, the court considers “‘(1) the need for the application of force, (2) the
relationship between the need and the amount of force used, [and] (3) the extent of
the injury inflicted.’” Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986),
abrogated in part by Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000)
(recognizing that Leslie’s fourth factor, the subjective inquiry into the officer’s
motive, was invalidated by Graham); see also Lee, 284 F.3d at 1198 n.7 (discussing
the continuing validity of the other three Leslie factors). However, “the application
of de minimis force, without more, will not support a claim for excessive force in
violation of the Fourth Amendment.” Nolin, 207 F.3d at 1257.
Third, “[F]ourth Amendment jurisprudence has long recognized that the right
to make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396.
Furthermore, “[n]ot every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers” violates the Fourth Amendment. Id. (citation and
internal quotation marks omitted). “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.” Id. Hence, “[u]se of
force must be judged on a case-by-case basis from the perspective of a reasonable
officer on the scene, [instead of] with the 20/20 vision of hindsight.” Vinyard v.
Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (citation and internal quotation marks
Finally, in conducting the reasonableness inquiry based on Plaintiffs’ facts, the
Eleventh Circuit has recognized that an officer’s use of force is more likely to be
unlawful when it occurs “after the arrest [has] been fully effected, the arrestee
completely secured, and all danger vitiated.” Lee, 284 F.3d at 1199–1200.
Qualified Immunity and Mr. Haigler’s Excessive Force Claim
Assuming for purposes of this analysis that his arrest was legal, Mr. Haigler
asserts claims of excessive force in violation of the Fourth Amendment against Cpls.
Morris and Mashburn.16 The corporals have asserted qualified immunity on this
claim. Under Plaintiffs’ version of the events on August 7, 2010, Mr. Haigler can
establish that Cpls. Morris and Mashburn violated his clearly established Fourth
Amendment right to be free from excessive force. Because there are genuine issues
of material fact surrounding the incident, Cpls. Morris and Mashburn are not entitled
to qualified immunity at this time.
Whether Cpls. Morris and Mashburn Violated Mr.
Haigler’s Right to Be Free from Excessive Force Under
the Fourth Amendment
Under Fourth Amendment law, a distinction is made between the type of force
allowed to effectuate arrest and the type of force allowed after arrest. Cpls. Morris
and Mashburn arrested Mr. Haigler for unlawful possession of marijuana, a Class A
As mentioned previously, if Mr. Haigler was arrested without probable cause, his
excessive force claim would be subsumed by his unlawful arrest claim. See Bashir, 445 F.3d at
misdemeanor in Alabama. See Ala. Code § 13A-11-7. Not only has Fourth
Amendment jurisprudence long recognized that the right to make an arrest
“necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it,” Graham, 490 U.S. at 396, but the Eleventh 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.”
Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003). “In the Eleventh Circuit,
[courts] recognize that the typical arrest involves some force and injury.” Rodriguez
v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002). For even minor offenses, police
officers are authorized to use physical restraint, handcuffs, and to push suspects. See,
e.g., Nolin, 207 F.3d at 1257 (no constitutional violation to grab suspect, push him
against a van, search his groin in an uncomfortable manner, and place him in
handcuffs); Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997) (per
curiam) (no constitutional violation to slam plaintiff against wall, kick plaintiff’s legs
apart, and require plaintiff to raise arms above his head); Gold v. City of Miami, 121
F.3d 1442, 1446–47 (11th Cir. 1997) (per curiam) (no constitutional violation for
affixing handcuffs too tightly on disorderly conduct arrestee); Post, 7 F.3d at
1559–60 (not excessive force to arrest a plaintiff for building code violation by
pushing him against a wall, applying a chokehold, and handcuffing him even though
plaintiff was not resisting); cf. Lee, 284 F.3d at 1191, 1198 (finding a constitutional
violation for the defendant’s unreasonable use of force after the plaintiff was arrested
and secured, but making no such finding on the defendant’s use of force in subduing
and securing the plaintiff by pulling her out of her car by her wrist, shoving her
against the car, throwing her hands on top of the hood, and then handcuffing her).
To effectuate the arrest of Mr. Haigler, Cpl. Morris pushed Mr. Haigler against
a wall, put Mr. Haigler’s hands behind his back, and pulled out his taser and pointed
it toward Mr. Haigler’s chest.17 Against the legal backdrop set out above, these facts
are insufficient to establish that the force used to effectuate Mr. Haigler’s arrest
violated the Fourth Amendment. Thus, no Fourth Amendment violation has been
demonstrated by Mr. Haigler regarding the force used by Cpls. Morris and Mashburn
to make his arrest.
However, after an arrest is effectuated and the arrestee is secured, the use of
force is more likely to be unlawful. Lee, 284 F.3d at 1199–1200. After Mr. Haigler
was arrested, there is evidence that Mr. Haigler was elbowed in the side, pushed,
thrown on the ground, forced to stay on the ground, then picked up and thrown
against a truck, thrown into the truck, and beaten and poked in his side and ribs with
There is no evidence that Cpl. Mashburn touched Mr. Haigler or activated the taser
prior to handcuffing him. Thus, Cpl. Mashburn cannot be found liable on an excessive force
claim for actions that occurred prior to the arrest.
the officers’ clubs on the way to the station. Each Graham factor will be analyzed in
turn to decide whether the force used by Cpls. Morris and Mashburn after Mr.
Haigler’s arrest was reasonable.18
The first factor is the severity of the crime at issue. Graham, 490 U.S. at 396.
Mr. Haigler was arrested for unlawful possession of marijuana, which is a Class A
misdemeanor in Alabama. (Ala. Code 1975 § 13A-12-214(b); Ex. 1, Pls.’ Am.
Compl.) As a general rule, “more force is appropriate for a more serious offense and
less force is appropriate for a less serious one.” Lee, 284 F.3d at 1198. Because this
is a misdemeanor, less force is generally appropriate.
The second factor is whether Mr. Haigler posed an immediate threat to the
safety of the officers or others. See Graham, 490 U.S. at 396. Defendants argue that
there was an immediate threat to their safety because they were in an area known for
illegal drug and weapons activities and were inside an unfamiliar home. (Def.’s
Summ. J. Br. 16.) While this may have been true before the arrest, after the officers
had effectuated the arrest, there is no evidence that Mr. Haigler was a threat to their
safety. Mr. Haigler had already been searched, and no weapons or drugs were found
on him. Mr. Haigler was not trying to flee or struggling. He was also in handcuffs
From the record, it is unclear which officer did what to Mr. Haigler. The only clear
action taken by a specific officer is that Cpl. Morris elbowed Mr. Haigler in the side after he was
and being watched by another officer. Finally, Mr. Haigler and Mrs. Smith were the
only ones in the apartment with at least three officers. Thus, on the summary
judgment facts, Mr. Haigler did not pose a threat to the safety of Cpls. Morris and
The third factor is whether Mr. Haigler was actively resisting arrest or
attempting to evade by flight. See Graham, 490 U.S. at 396. If Mr. Haigler’s version
of the events is credited, as it must be, he was not struggling or resisting arrest. Cpls.
Mashburn and Morris say that Mr. Haigler was struggling during the arrest.
However, all accounts from Plaintiffs indicate that there were no signs of struggle by
Mr. Haigler. While Mr. Haigler did walk inside upon seeing Jump Street’s SUV, he
did not run nor did he try to escape once the officers were inside Mrs. Smith’s
Because of the lack of severity of the crime and the fact that Mr. Haigler was
not resisting arrest and did not pose a danger to the officers because he was arrested
and secured, there was no need to use post-arrest force on Mr. Haigler. Throwing Mr.
Haigler on the ground, against the truck, and into the truck, as well as continuing to
poke and hit him with clubs on the way to the station, would be excessive in light of
Mr. Haigler being in handcuffs and not resisting arrest.
However, even if the force used is found to be unnecessary, the de minimis
principle may apply. Nolin, 207 F.3d at 1257 (reaffirming that after Graham, the de
minimis principle still applies).19 Under the de minimis principle, “a minimal amount
of force and injury . . . will not defeat an officer’s immunity in an excessive force
case.” Id. at 1258. Thus, even if the force was unnecessary, if “the actual force used
and the injury inflicted were both minor in nature[,] . . . the application of the
excessive force standard would not inevitably lead an official in [the defendant’s]
position to conclude that the force was unlawful.” Id. at 1256–57 (discussing and
quoting Jones, 121 F.3d at 1460–61).
Mr. Haigler was walking with a limp from pain to his right knee after being
thrown on the ground and had a swollen left thumb joint. He was given ibuprofen.
Three days later, he went to the emergency room for back soreness and swelling of
his thumb. He was diagnosed with a sprained thumb, and his thumb was splinted.
Mr. Haigler also attests that he had bruising and cuts on his face and body. The
Eleventh Circuit has classified minor bruising, skin abrasions, and pain experienced
during the search or arrest that required minor medical treatment as minor injury.
In reversing a district court’s ruling to the contrary, Nolin reaffirmed the de minimis
principle and three circuit opinions that applied it after Graham to reverse district courts that
denied qualified immunity. 207 F.3d at 1257–58. According to Nolin, one of those cases,
“Post[,] refined Graham by concluding that in making the highly fact-intensive excessive force
inquiry, a court may conclude that an officer retains qualified immunity when the facts show a
minimal amount of force combined with a minor or nonexistent injury.” Id. at 1257 n.3.
See, e.g., Vinyard, 311 F.3d at 1349 n.13 (noting a strong argument that “minor
bruising” is de minimis injury); Nolin, 207 F.3d at 1258 n.4 (finding de minimis force
when “minor bruising” along with minimal force); Jones, 121 F.3d at 1460 (finding
that the plaintiff’s pain from lifting his arms because of a prior stroke, and his pain
from an arthritic knee after having his legs kicked apart, which required minor
medical treatment three days later, was “minor” injury); Gold, 121 F.3d at 1446
(describing “skin abrasions” as a minor injury, though they were “skin abrasions for
which [the plaintiff] did not seek medical treatment”). While Mr. Haigler did need
medical attention, his injuries were minor under the controlling law. He did not have
any broken bones or open wounds, was not prescribed any medication other than
ibuprofen and only needed a splint put on his thumb.
However, minor injuries do not automatically make the force used de minimus.
Lee, 284 F.3d at 1200.
“[O]bjectively unreasonable force does not become
reasonable simply because the fortuity of the circumstances protected the plaintiff
from suffering more severe physical harm.” Id. In the cases where the de minimus
principle was applied, the force and injury sustained were in effectuating an arrest.
See Rodriguez, 280 F.3d at 1345 (injury occurred during handcuffing); Nolin, 207
F.3d at 1255–57 (plaintiff grabbed, thrown against van, and handcuffed before
arrest); Jones, 121 F.3d at 1458, 1460–61 (plaintiff slammed against wall and
searched as officers carried out arrest); Gold, 121 F.3d at 1446–47 (minor injury
caused solely by tight handcuffs); Post, 7 F.3d at 1556, 1559–60 (arrestee pushed
against wall when continuing to speak despite being ordered by officer to stop
talking). Here, the force that caused the injuries occurred after the arrest.
In Lee, the Eleventh Circuit found that slamming an arrestee’s head into a car
trunk after the “arrest ha[d] been fully secured and any potential danger or risk of
flight vitiated” was severe and unnecessary force, even though the arrestee’s injuries
were only bruises, aching wrists, and bilateral wrist trauma. 284 F.3d at 1200.
Similarly, in Vinyard, the Eleventh Circuit found an excessive force violation when
an officer grabbed “the arrested, secured and handcuffed [plaintiff] forcibly enough
to bruise her arm and breast and then us[ed] pepper spray” on her while she was in
the back of the police car. 311 F.3d at 1349.
Like in Vinyard and Lee, Mr. Haigler had been arrested, secured and
handcuffed when the officers inflicted further force on him. In addition, he was in
the presence of at least three officers and never resisted arrest or attempted to flee
once secured. Despite these facts, the officers dragged him outside in handcuffs,
threw him on the ground, picked him up and threw him against the truck, threw him
inside the truck, and then beat him with their clubs on the way to the station house.
This force does not become de minimus simply because Cpls. Mashburn and Morris
were fortunate that Mr. Haigler did not suffer more severe injuries. See Lee, 284 F.3d
Based on the facts viewed in the light most favorable to Mr. Haigler, he has
raised a genuine issue of material fact as to whether Cpls. Morris and Mashburn
violated his Fourth Amendment right to be free from excessive force. Having shown
that the corporals “violated a constitutional right,” Townsend, 601 F.3d at 1157, Mr.
Haigler has satisfied the first prong of the qualified immunity defense. The analysis
now turns to the second prong of the qualified immunity defense.
Whether the Right Violated by Cpls. Morris and
Mashburn Was Clearly Established
In order to overcome qualified immunity, Plaintiffs must also demonstrate that
as of August 7, 2010, the law was clearly established that the force used by Cpls.
Morris and Mashburn was excessive. See Saucier v. Katz, 533 U.S. 194, 201 (2001),
abrogated by Pearson, 555 U.S. at 236 (holding that judges may decide which prong
of the Saucier qualified immunity test to address first). “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202. Put another way, did the state of the law in
2010 provide Cpls. Morris and Mashburn with fair warning that their treatment of Mr.
Haigler after he was arrested was unconstitutional? See Hope v. Pelzer, 536 U.S. 730,
Plaintiffs cite Lee and Vinyard in defending Mr. Haigler’s excessive force
claim against qualified immunity. These cases are similar to Mr. Haigler’s claim
because, as stated supra in Part V.B.2.a.i., Cpls. Morris and Mashburn used
unnecessary force against Mr. Haigler after he was arrested, secured and handcuffed.
Lee and Vinyard were both issued by the Eleventh Circuit in 2002. In 2010, the
officers would have had fair warning that throwing and beating an arrestee who was
arrested for a misdemeanor and not resisting arrest would violate that arrestee’s
Fourth Amendment rights. Thus, Cpls. Morris and Mashburn are not entitled to
qualified immunity because there is a genuine issue of material fact as to whether Mr.
Haigler offered any resistance once handcuffed, and the right to be free from
excessive force on these facts was clearly established in 2010. See Smith v. Mattox,
127 F.3d 1416, 1420 (11th Cir. 1997) (denying summary judgment on the issue of
qualified immunity where it was unclear if the arrestee continued to resist arrest).
Mrs. Smith’s Excessive Force Claim
Mrs. Smith also claims excessive force in violation of the Fourth Amendment
against Cpl. Mashburn.20 Cpl. Mashburn has asserted qualified immunity on this
claim. Cpl. Mashburn is not entitled to qualified immunity because Mrs. Smith can
show that he violated her clearly established Fourth Amendment right to be free from
excessive force and there is a genuine issue of material fact as to whether Mrs. Smith
Whether Cpl. Mashburn Violated Mrs. Smith’s Fourth
Amendment Right to Be Free from Excessive Force
A claim of excessive force under the Fourth Amendment requires a seizure.
Graham, 490 U.S. at 394 (“In addressing an excessive force claim brought under §
1983, analysis begins by identifying the specific constitutional right allegedly
infringed by the challenged application of force. . . . In most instances, that will be
either the Fourth Amendment’s prohibition against unreasonable seizures of the
person, or the Eighth Amendment’s ban on cruel and unusual punishments . . . .”).
The Supreme Court in Graham noted that “[a] ‘seizure’ triggering the Fourth
Plaintiffs’ Amended Complaint makes a general allegation of excessive force.
However, the Amended Complaint states that Cpl. Mashburn was the one who pushed Mrs.
Smith, and there is no evidence to the contrary. Thus summary judgment is due to be entered in
Cpl. Morris’s favor on Mrs. Smith’s Fourth Amendment excessive force claim.
Amendment’s protections occurs only when government actors have, ‘by means of
physical force or show of authority, . . . in some way restrained the liberty of a
citizen.’” Id. at 395 n.10 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Put
another way, an individual is seized if, “in view of all the surrounding circumstances,
a reasonable person would believe that he was not free to leave.” United States v. De
La Rosa, 922 F.2d 675, 678 (11th Cir. 1991) (citing Michigan v. Chesternut, 486 U.S.
567, 573 (1988)).
Here, the evidence raises a genuine issue of material fact that Mrs. Smith was
seized. An officer kicked in Mrs. Smith’s apartment door, while yelling, proceeded
to search her home, told her she could not leave, and did not allow anyone to enter
or exit the apartment. On these facts, a reasonable person would believe she was not
free to leave.
The evidence also raises a genuine issue of material fact as to whether the force
used by Cpl. Mashburn was excessive. According to Mrs. Smith, she was not yelling
at the officers nor did she touch, hit or throw anything at the officers. She simply told
the officers that Mr. Haigler did not sell drugs, that he worked for a living and that
she did not understand why they were arresting him. Mrs. Smith also was not being
arrested and was not a suspect. Despite her nonaggressive behavior, Cpl. Mashburn
pushed Mrs. Smith in the chest and told her to “shut the ---- up,” causing her to
almost fall into a table and twist her knee to prevent the fall. This amount of force
is unreasonable. See Payton v. City of Florence, 413 F. App’x 126, 133 (11th Cir.
2011) (finding excessive force where officers pulled plaintiff out of a doorway,
grabbed her thumb and pulled it up behind her back past her shoulder, where the
plaintiff was not being arrested, was not “being belligerent and made no aggressive
movement toward the officers”); see also Jones v. Buchanan, 325 F.3d 520, 531 (4th
Cir. 2003) (finding excessive force where the plaintiff voluntarily came to the
sheriff’s department and was never under arrest or suspected of any crime and an
officer knocked the plaintiff to the floor, jumped on him, crushed his nose, lacerated
his nose and lips, and bruised his ribs to quiet the drunk plaintiff down); Ikerd v.
Blair, 101 F.3d 430, 435 (5th Cir. 1996) (finding excessive force where a 300-pound
officer violently jerked a ten-year-old child out of her living room chair and dragged
her into another room, where the child was not under arrest and did not pose a threat
to anyone); McDonald III v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (allowing an
excessive force claim to go forward where the officer held his gun to the head of a
nine-year-old child and threatened to pull the trigger, where the child was not a
suspect, not attempting to evade the officers, nor posing a threat).
Defendants argue that Mrs. Smith cannot show that Cpl. Mashburn’s push
caused injury to her knee because Mrs. Smith had a preexisting knee injury. (Defs.’
Summ. J. Br. 15.) “[R]easonable force does not become excessive force when the
force aggravates (however severely) a preexisting condition . . . unknown to the
officer at the time.” Lee, 284 F.3d at 1200 (quotation marks and citation omitted).
No one disputes that Cpl. Mashburn had no reason to know of Mrs. Smith’s knee
injury. However, whether a plaintiff had a preexisting injury is not dispositive on an
excessive force claim. De minimus force and injury will not defeat an excessive force
claim where the officer had no probable cause to effectuate an arrest on an arrestee.
See Reese v. Herbert, 527 F.3d 1253, 1272–73 (11th Cir. 2008) (finding in the
absence of probable cause, the officer was not entitled to use any force on the
arrestee). Thus, by even more compelling reasoning, an excessive force claim would
not be defeated where the officer did not attempt to arrest the plaintiff and did not
suspect her of any crime.
Thus, when the facts are taken in the light most favorable to Mrs. Smith, she
demonstrates a Fourth Amendment violation of her right to be free from excessive
force. Having shown that Cpl. Mashburn “violated a constitutional right,” Townsend,
601 F.3d at 1157, Mrs. Smith has satisfied the first prong of the qualified immunity
defense. The analysis now turns to the second prong of the qualified immunity
Whether Cpl. Mashburn Violated a Clearly Established
Mrs. Smith’s right to be free from excessive force is clearly established.
Incorporating the words of Payton, “no objectively reasonable police officer could
believe that, consistent with the dictates of the Constitution, he could [push a woman
hard enough that she would almost fall into a table,] who was suspected of no crime,
who verbally objected to the search of her home in a non-belligerent manner and
made no aggressive movements . . . .” 413 F. App’x at 133. Thus, the facts here
indicate that the force used by Cpl. Mashburn was “so far beyond the hazy border
between excessive and acceptable force [that every objectively reasonable officer]
had to know he was violating the Constitution without case law on point.” Vinyard,
311 F.3d at 1355 (citation and internal quotation marks omitted).
Because Cpl. Mashburn denies shoving Mrs. Smith, there is a genuine issue of
material fact that must be resolved by a jury, and qualified immunity is due to be
denied at this time.
Filing a False Report or Complaint (Count C)
All Defendants are entitled to summary judgment on Mr. Haigler’s § 1983
claim for filing a false report or complaint. Plaintiffs cite no authority that filing a
false report or complaint is a viable claim under § 1983. While the alleged
misrepresentation in the report is relevant to Mr. Haigler’s claims of unlawful arrest
and false imprisonment as discussed supra in Part V.B.2, it is not a separate claim.
See Koch v. Austin, No. 1:03-CV-5021, 2006 WL 403818, at *5 (E.D. Cal. Feb. 16,
2006) (finding that “a complaint alleging that an officer filed a false report, by itself,
fails to state a claim upon which relief can be granted); Webb v. Abolt, No. CV406209, 2007 WL 39714, at *3 (S.D. Ga. Jan. 4, 2007); Pratt v. Rowland, 769 F. Supp.
1128, 11234 (N.D. Cal. 1991) (filing a false report will state a claim if in retaliation
for exercising a constitutional right).
Section 1983 requires that the plaintiff name the constitutional deprivation.
Mr. Haigler does not demonstrate which constitutional right is violated when false
information is included in a police report. If it is assumed that Mr. Haigler is
claiming a Fourth Amendment violation of his right against unreasonable seizure, Mr.
Haigler cannot show that the filing of the false report caused a seizure. Cpl. Morris
did not fill out this report until after Mr. Haigler had already been arrested and
imprisoned. The report did not lead to Mr. Haigler being incarcerated; his alleged
unlawful arrest did.
Furthermore, Mr. Haigler’s claim cannot be construed as a malicious
prosecution claim under § 1983. A claim for malicious prosecution requires “that the
prior proceeding end in favor of the present plaintiff.”21 Delchamps, Inc. v. Bryan,
738 So. 2d 824, 831–32 (Ala. 1999). Plaintiffs present no evidence about the result
of Mr. Haigler’s state trial.21 Thus, all Defendants are entitled to summary judgment
as a matter of law on Mr. Haigler’s § 1983 claims predicated on the filing of a false
Plaintiffs contend that Chief Murphy is also liable on their § 1983 claims of
excessive force, false arrest, false imprisonment and filing a false report based upon
a supervisory liability theory.22 As stated above, all Defendants have been granted
summary judgment on Mr. Haigler’s claim of filing a false report. Thus, the
remaining supervisory claims against Chief Murphy relate to the Fourth Amendment
“To establish a federal malicious prosecution claim under § 1983, the plaintiff must
prove a violation of his Fourth Amendment right to be free from unreasonable seizures [and] the
elements of the common law tort of malicious prosecution.” Wood v. Kesler, 323 F.3d 872, 881
(11th Cir. 2003) (emphasis omitted). Under Alabama law, the following are required to make a
claim of malicious prosecution: “(1) that a prior judicial proceeding was instituted by the present
defendant, (2) that in the prior proceeding the present defendant acted without probable cause
and with malice, (3) that the prior proceeding ended in favor of the present plaintiff, and (4) that
the present plaintiff was damaged as a result of the prior proceeding.” Delchamps, Inc., 738 So.
2d at 831–32.
Plaintiffs’ counsel argued at the pretrial hearing held October 19, 2011, that Mr.
Haigler was acquitted of the unlawful possession of marijuana charge. Because no evidence of
this acquittal was submitted, it cannot be considered. See Fed. R. Civ. P. 56(c).
On these facts, there can be no liability solely on the underlying alleged constitutional
violations because there is no evidence of personal involvement by Chief Murphy, as discussed
violations for excessive force, false arrest, and false imprisonment. See Gish v.
Thomas, 516 F.3d 952, 955 (11th Cir. 2008) (“There can be no supervisory liability
. . . if there was no underlying constitutional violation . . . .”).
The law is well settled that a defendant cannot be held liable in an action
brought pursuant to § 1983 under a theory of respondeat superior or on the basis of
vicarious liability. Gray v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006); Belcher v.
City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994); Brown v. Crawford, 906 F.2d
667, 671 (11th Cir. 1990); Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986).
The language of § 1983 requires proof of an affirmative causal connection between
the actions taken by a defendant and the alleged constitutional deprivation. Zatler,
802 F.2d at 401.
Although supervisory officials cannot be held liable under § 1983 for the
unconstitutional actions of their subordinates based on respondeat superior liability,
Gray, 458 F.3d at 1308, supervisors can be held liable for subordinates’ constitutional
violations on the basis of supervisory liability under § 1983. Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003). Supervisory liability under § 1983 occurs “either
when the supervisor personally participates in the alleged unconstitutional conduct
or when there is a causal connection between the actions of the supervising official
and the alleged constitutional deprivation.” Id. A causal connection may be
established when: (1) a “history of widespread abuse” puts the responsible supervisor
on notice of the need to correct the alleged deprivation, and he or she fails to do so;
(2) a supervisor’s custom or policy results in deliberate indifference to constitutional
rights; or (3) facts support an inference that the supervisor directed subordinates to
act unlawfully or knew that subordinates would act unlawfully and failed to stop them
from doing so. Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007); Cottone,
326 F.3d at 1360. Deprivations that constitute widespread abuse sufficient to
constitute notice to the supervising official must be “obvious, flagrant, rampant and
of continued duration, rather than isolated occurrences.” Brown v. Crawford, 906 F.
2d 667, 671 (11th Cir. 1990).
Plaintiffs have presented no evidence that Chief Murphy participated
personally in any of the events surrounding the August 7, 2010 incident. Thus, in
order to survive summary judgment, Plaintiffs must have provided evidence of a
causal connection. Plaintiffs have not presented any evidence that Chief Murphy had
a custom or policy that resulted in deliberate indifference. In fact, Chief Murphy was
not the Chief of Police when these incidents occurred but was the Deputy Chief of
Police. (Pls.’ Am. Compl. 10–11 (Doc. # 30).) Additionally, Plaintiffs have not
presented any evidence that would support an inference that Chief Murphy, in his
former position as deputy chief, directed Cpls. Morris and Mashburn to act the way
they did or that Chief Murphy knew that Cpls. Morris and Mashburn would act
unlawfully. Plaintiffs have submitted affidavits stating that Chief Murphy told Mrs.
Smith in a meeting that many of the young officers “have no real life experiences, and
. . . sometimes are not prepared to deal with many of the emotions, attitudes, and
behaviors they face from the public on a daily basis.” (Mays Aff. ¶ 3.) Chief Murphy
went on to say that changing the officers’ shirt colors and uniforms may help diffuse
situations and that he is focusing on this as the new chief of police. (Mays Aff. ¶ 3.)
However, these comments came after the incident, when Chief Murphy had become
Montgomery’s Chief of Police. These comments do not show that Chief Murphy
knew Cpls Morris and Mashburn would act unlawfully.
Plaintiffs argue that there is a “widespread pattern of police abuse and
misconduct in Montgomery, Alabama [that] has been fostered and, thus, sanctioned
by [Chief Murphy].” (Pls.’ Am. Compl. 17.) Plaintiffs point to three newspaper
articles detailing misconduct by Montgomery police officers. Assuming these articles
would be admissible and are acceptable means of providing notice to Chief Murphy,
which is dubious at best,23 they are not enough to show a history of widespread abuse.
Newspaper articles generally are considered hearsay under Rule 801(c) when offered
for the truth of the matter asserted. See United States v. Baker, 432 F.3d 1189, 1211 (11th Cir.
2005) (“The Miami Herald articles are . . . inadmissible hearsay, as they are relevant primarily to
establish the truth of their contents – the identity of the gunmen.”). Indeed, statements in
newspapers often present hearsay within hearsay problems. Id. at 1211 n.23 (“[T]he articles are
likely a reporter’s account of what eyewitnesses reported; in other words, double hearsay
Two of the articles were published in October 2010, more than two months after the
date of the incident at issue. Another article reports that a Montgomery police officer
was caught pulling over cars and stealing possessions inside. This article would not
put Chief Murphy on notice that there was a problem of excessive force within the
Because Plaintiffs cannot show that Chief Murphy personally participated in
or otherwise caused the constitutional deprivations to Mr. Haigler and Mrs. Smith,
summary judgment is due to be granted on all claims against Chief Murphy.
City of Montgomery
Plaintiffs assert the same claims against the City as they do against Chief
Murphy. For similar reasons granting summary judgment on all claims against Chief
Murphy, summary judgment is due to be granted on all claims against the City.
It is well established that a municipality cannot be held liable for a § 1983
violation based upon the theory of respondeat superior; it must have itself caused the
constitutional violation at issue. Skop, 485 F.3d at 1145 (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694–95 (1978)). Thus, Mrs. Smith and Mr. Haigler can
forbidden by Rule 805.”). And, “[t]he general rule is that inadmissible hearsay ‘cannot be
considered on a motion for summary judgment.’” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th
Cir. 1999) (citation and internal footnote omitted).
only succeed on their § 1983 claims against the City of Montgomery by showing:
“(1) that his constitutional rights were violated; (2) that the municipality had a custom
or policy that constituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283,
1289 (11th Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
The Eleventh Circuit has “emphasized that, to establish a policy or custom, ‘it is
generally necessary to show a persistent and wide-spread practice.’” Turner v. Jones,
415 F. App’x 196, 202 (11th Cir. 2011) (per curiam) (quoting Depew v. City of St.
Marys, 787 F.2d 1496, 1499 (11th Cir. 1986)).
Here, Plaintiffs have presented no evidence that the City of Montgomery itself
caused Mrs. Smith’s and Mrs. Haigler’s constitutional deprivations due to excessive
force, false arrest and false imprisonment. These claims against the City are founded
on the basis of respondeat superior, which cannot be a basis for establishing liability
on the city. See Skop, 485 F.3d at 1145. In addition, Plaintiffs have not identified
any policy or custom promoted by the City that would have caused these violations.
Thus, the City is due to be granted summary judgment on these claims.
Failure to Supervise (Count D)
A plaintiff may prove that a failure to supervise is a city policy by
demonstrating that the city’s failure “evidenced a ‘deliberate indifference’ to the
rights of its inhabitants.” Gold, 151 F.3d at 1350. Deliberate indifference requires
proof that “the municipality knew of a need to train and/or supervise in a particular
area and the municipality made a deliberate choice not to take any action.” Id.
“[W]ithout notice of a need to train or supervise in a particular area, a municipality
is not liable as a matter of law for any failure to train and supervise.” Id. at 1351.
As stated above, Plaintiffs have not submitted any evidence that would put the
City on notice of a need to supervise the Jump Street team. Assuming, for argument
only, that the newspaper articles would be admissible, the three newspaper articles
alone are not enough “to show a persistent and widespread practice.” There is no
evidence that the City was aware that this unit had engaged in previous similar
patterns of abuse.
For the foregoing reasons, it is ORDERED that Defendants’ Motion for
Summary Judgment (Doc. # 40) is GRANTED in part and DENIED in part as
Summary judgment is GRANTED on (1) all claims against Mayor
Strange, (2) the § 1985(2) claims against all Defendants, (3) the §
1985(3) claims against all Defendants, (4) the fraud claims under
Alabama law against all Defendants, (5) Mrs. Smith’s § 1983 Fourth
Amendment excessive force claim against Cpl. Morris, (6) Mr. Haigler’s
§ 1983 false report claims against all Defendants, and (7) all claims
against Chief Murphy, and (8) all claims against the City of
Summary judgment is DENIED with respect to (1) Mrs. Smith’s § 1983
Fourth Amendment excessive force claim against Cpl. Mashburn, (2)
Mr. Haigler’s § 1983 Fourth Amendment excessive force claims against
Cpls. Mashburn and Morris for force used after his arrest, and (3) Mr.
Haigler’s § 1983 Fourth Amendment false arrest/false imprisonment
claims against Cpls. Mashburn and Morris.
DONE this 2nd day of November, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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