Schultz v. City of Brundidge et al

Filing 34

OPINION AND ORDER that: (1) Defendant City of Brundidge's motion to dismiss 9 and defendant Ronald Yohn's motion to dismiss 22 are granted to the extent that plaintiff Alfred F. Schultz's third claim (defendant Yohn failed to preven t defendant Arthur Lee Griffin's use of excessive force) and his fourth claim (defendant City of Brundidge had an illegal policy of permitting city councillors to direct law-enforcement officers) are dismissed. (2) Said motions are denied as to plaintiff Schultz's first claim (defendants Yohn and Griffin conducted an unlawful seizure) and his fifth claim (defendant City of Brundidge failed to train). Plaintiff's Schultz's second claim (defendant Griffin used excessive force) is not the subject of the motions. This case will therefore proceed as to these three claims. Signed by Honorable Judge Myron H. Thompson on 3/5/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ALFRED F. SCHULTZ,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF BRUNDIDGE, ARTHUR
LEE GRIFFIN, and RONALD
YOHN,
Defendants.

CIVIL ACTION NO.
2:11cv233-MHT
(WO)

OPINION AND ORDER
Plaintiff

Alfred

F.

Schultz

asserts

seizure

and

assault claims under the Fourth Amendment (based on the
Fourteenth

Amendment

and

enforced

through

42

U.S.C.

§ 1983) against the following defendants: the City of
Brundidge, Alabama; City Councillor Arthur Lee Griffin;
and Officer Ronald Yohn.

The jurisdiction of the court

is invoked pursuant to 28 U.S.C. § 1331.

The case is

currently before the court on separate motions to dismiss
filed by the city and Yohn.

For the reasons that follow,

both motions will be granted in part and denied in part.

I.

MOTION-TO-DISMISS STANDARD

In considering a motion to dismiss a complaint,

the

court accepts the plaintiff’s factual allegations as
true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984),
and

construes

the

complaint

in

his

favor,

Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).

Duke

v.

To survive,

the complaint need contain only “enough facts to state a
claim to relief that is plausible on its face”; it need
not make “detailed factual allegations,” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 570 (2007).

II.

BACKGROUND

According to Schultz’s complaint, he was driving in
heavy rain on Highway 231 in Pike County, Alabama, when
he spotted a female pedestrian crossing the street.

He

stopped his car to give her a ride and, as the two of
them departed, a blue truck pulled up and its driver,
later identified as City Councillor Griffin, exited the

2

vehicle with a shotgun in hand.

Schultz drove off and

proceeded south on Highway 231.
A few moments later, Schultz was pulled over by a
City of Brundidge police cruiser driven by Officer Yohn.
Yohn approached Schultz’s car with his gun drawn, ordered
him out of the vehicle, forced him to the ground, and
handcuffed him.

City Councillor Griffin then arrived on

the scene, where he trained his shotgun on Schultz and
directed Yohn to remove the passenger from Schultz’s
truck and place her in the police cruiser.

While Yohn

carried out that directive, Griffin struck Schultz (who
was still in handcuffs) with the butt of his shotgun.
The

attack

was

sufficiently

severe

that

Schultz

was

physically injured, incurred medical expenses, suffered
distress, and lost income.
Schultz subsequently brought suit against the City of
Brundidge, City Councillor Griffin, and Officer Yohn.
His complaint raises five separate claims for relief
Claim one is that Yohn and

under the Fourth Amendment.

3

Griffin conducted an unlawful seizure of Schultz.

Claim

two is that Griffin subjected Schultz to excessive force.
Claim three is that Yohn failed to prevent Griffin’s use
of excessive force.

Claim four is that the City of

Brundidge has an impermissible policy permitting city
councillors to direct law-enforcement officers.

Claim

five is that the city failed to train its law-enforcement
officers properly regarding how they should interact with
city councillors.

Yohn has moved to dismiss counts one

and three, while the city has moved to dismiss counts
four and five.

Yohn and the city do not challenge count

two.

III.
A.
The

four

DISCUSSION

Alleged Constitutional Violations
claims

at

issue

rely

on

violations

of

Schultz’s Fourth Amendment rights. Specifically, Schultz
alleges that the City of Brundidge and Officer Yohn
conducted an unreasonable seizure during which they used

4

excessive force.

The court will address each claim in

turn.

1. Unlawful Seizure
The

Fourth

Amendment

protects

unreasonable searches and seizures.
IV.

people

from

U.S. Const. amend.

For Fourth Amendment purposes, a seizure occurs when

an officer, “by means of physical force or show of
authority, has in some way restrained the liberty of a
citizen.”

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

Forcing a suspect to stop his vehicle and then physically
restraining him at gunpoint undoubtedly constitutes a
“seizure,” see Delaware v. Prouse, 440 U.S. 648, 653
(1979) (driver seized during even brief traffic stop);
see also Brendlin v. California, 551 U.S. 249, 255-57
(2007) (“everyone in the vehicle” seized during stop),
but the Fourth Amendment is violated only by unreasonable
seizures, Terry, 392 U.S. at 9.

5

“Reasonableness”

turns

on

whether

an

objective

analysis of the circumstances surrounding the seizure
supports the level of government intrusion.
21.

Id. at 20-

On the motions to dismiss, those circumstances are

drawn from Schultz’s complaint, which, unsurprisingly,
identifies no objective reason for Officer Yohn’s pulling
over his vehicle, let alone for ordering him out of the
car,

handcuffing

him,

and

holding

him

at

gunpoint.

Indeed, Schultz explains that he “was not in violation of
any traffic laws and was obeying the rules of the road”
at the time he first encountered Yohn and that he obeyed
all

of

Yohn’s

suspiciously.

instructions

and

in

no

way

Compl. (Doc. No. 1) at ¶¶ 4-7.

acted
In sum,

the record currently before the court reveals absolutely
no

justification

Schultz’s

for

vehicle,

Yohn’s

let

decision

alone

for

to
the

pull

over

subsequent

detention.
Since the Fourth Amendment protects citizens from
being pulled over without justification, United States v.

6

Brignoni-Ponce, 422 U.S. 873, 882 (1975) (noting “that
officers must have a reasonable suspicion to justify
[such stops]”), and requires some objective reason for
police officers to order a person out of his vehicle and
detain him in handcuffs, see Terry, 392 U.S. at 20
(requiring that increasingly invasive police actions be
“reasonably related in scope to the circumstances which
justified the interference in the first place”), the
court easily concludes that the seizure at issue in this
case, at least for purposes of the motions to dismiss,
was unconstitutional.
Both Officer Yohn and the City of Brundidge challenge
that conclusion, insisting instead that the complaint
fails to allege a constitutional violation because one’s
imagination might conjure up potential justifications for
the seizure not detailed in Schultz’s complaint and not
foreclosed by the factual allegations that he has made.
Specifically, the city argues that the complaint ignores
“an obvious likely explanation” for Yohn’s behavior:

7

Schultz “had picked up a passenger who was wanted by the
police for some reason.”1

Brief in Support of Mot. to

Dismiss (Doc. No. 10) at 9.
possibility,
allegations

along
that

he

with
had

the
some

Yohn also submits that
equally
unidentified

unsupported
reason

to

conduct an investigatory stop2 and that he sought to
arrest Schultz for a crime committed outside of his
presence.3
Those arguments appear to rely on a misunderstanding
of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937

1. Later, “some reason” turns into “a serious
crime.” Brief in Support of Mot. to Dismiss (Doc. No.
10) at 9.
It is unclear whether the city has more
information than it has offered the court about that
“reason” or whether it simply forgot its previously
asserted justification for the alleged seizure.
2. The complaint contains no allegations that would
justify an investigatory stop, let alone the seizure that
allegedly took place, and Yohn does not even attempt to
explain why one would have been justified.
3. The court is unaware of any evidence that Schultz
committed a crime prior to the incident detailed in the
complaint.
8

(2009),

which

the

city

and

Yohn

read

to

encourage

district courts to disregard factual assertions made in
the complaint in favor of factual guesswork outside the
complaint.

But Iqbal merely reinforced that this court’s

obligation to “accept as true all of the allegations
contained

in

conclusions,”

a

complaint

id.

at

is

1949

inapplicable
(emphasis

to

legal

added),

and

encouraged judges to ensure that an “obvious alternative
explanation”

for

the

alleged

conduct

is

not

lurking

behind bare factual assertions, id. at 1951 (emphasis
added).

It did not override Federal Rule of Civil

Procedure 8’s “short and plain” standard, nor does it
prevent courts from crediting, for the purpose of a
motion

to

dismiss,

plausible

(even

if

improbable)

allegations supported by factual predicates that, if
proven true, would entitle the plaintiff to relief.
Moreover, the very nature of the litigation process
directs

this

existence

of

court
an

to

reject

alternative

9

the

argument

explanation

that

the

for

the

complained-of
claim

at

conduct

the

defeats

an

motion-to-dismiss

otherwise

plausible

stage.

Otherwise

virtually no constitutional claim would survive, since
the human mind’s imagination, unlimited by or grounded in
evidence, can almost always come up with at least one
other

plausible

explanation

for

conduct:

for

every

allegedly unconstitutional seizure the mind can still
imagine circumstances to support probable cause, and for
every claim of excessive force the mind can still imagine
circumstances

to

officer’s safety.

support

an

imminent

threat

to

the

The city and Yohn’s argument, if

credited, would require a plaintiff to dream up every
conceivable justification for a defendant’s behavior and
then

allege

in

his

complaint

factual

predicates

incompatible with those dreamed-up alternatives.

That

would not only place an virtually insurmountable burden
on a plaintiff who, prior to discovery, may lack evidence
of even the defendant’s version of the events (let alone
all imaginable versions), it would inundate courts with

10

unnecessarily lengthy complaints that go well beyond Rule
8’s “short and plain” standard.

2.

Excessive Force

The Fourth Amendment’s prohibition on unreasonable
seizures also protects individuals from being subjected
to excessive force during police encounters.

Fils v.

City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011).
An officer’s use of force violates that constitutional
protection if it is “objectively [un]reasonable in light
of the facts and circumstances.”

Graham v. Connor, 490

U.S. 386, 397 (1989) (internal quotation marks omitted).
The Eleventh Circuit Court of Appeals has explained
“that

unprovoked

force

against

a

non-hostile

and

non-violent suspect who has not disobeyed instructions”
is unreasonable and therefore “violates that suspect’s
rights under the Fourth Amendment.”
1289.

Fils, 647 F.3d at

Based on that premise, it has found constitutional

violations when, for example, a handcuffed and compliant

11

plaintiff was punched by a police officer, Hadley v.
Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008), when an
officer used a taser against a non-violent suspect, Fils,
647 F.3d at 1290, and when an officer struck a passive
suspect with a gun,

Walker v. City of Riviera Beach, 212

F. App’x 835, 838 (11th Cir. 2006).
Schultz
identified

alleges
in

precisely

Hadley

and

the

Walker.

kind

of

violation

According

to

the

complaint, Yohn handcuffed him as he “lay passively on
the ground.”

Compl. (Doc. No. 1) at ¶ 11.

approached

and

struck

shotgun.”

Id. ¶ 12.

him

“with

the

Griffin then

barrel

of

[a]

This is materially the same as

Hadley, where the defendant officer “punched Hadley in
the stomach while he was handcuffed and not struggling or
resisting.”

526 F.3d at 1330.

There, the court found

that the “gratuitous use of force when a criminal suspect
is not resisting arrest constitutes excessive force.”
Id.

And Schultz’s circumstances were also identical to

those in Walker where an officer struck a passive suspect

12

with a gun.

Walker, 212 F. App’x at 838.

Because

Schultz, like Hadley and Walker, was not resisting arrest
and because he, like Hadley and Walker, posed no danger
to the officers, Yohn was “not entitled to use any force
at that time.”

Hadley, 526 F.3d at 1330.

Therefore,

like the single punch in Hadley and the single strike
with a gun in Walker, the single strike with the shotgun
in

this

case

would

constitute

excessive

force

in

violation of the Fourth Amendment.
One additional issue must also be resolved. To state
a claim under § 1983 (the vehicle for a Fourth Amendment
claim), a plaintiff must show that the defendant acted
under color of state law.

Bingham v. Thomas, 654 F.3d

1171, 1175 (11th Cir. 2011).

Citing no cases, the city

argues that Griffin’s behavior cannot constitute state
action because he is merely a city councillor and not a
law-enforcement officer.

The court is not persuaded.

Even assuming that Griffin would not be considered a
state actor despite his position on the city council and

13

the role that city councillors play in Brundidge law
enforcement, his participation in a joint police endeavor
is sufficient to meet the state-action requirement in
this case.

The Supreme Court has explained: “[T]o act

‘under color of’ state law for § 1983 purposes[, it is
enough that [the defendant] is a willful participant in
joint action with the State or its agents.

Private

persons, jointly engaged with state officials in the
challenged action, are acting ‘under color’ of law for
purposes of § 1983 actions.”

Dennis v. Sparks, 449 U.S.

24, 27-28 (1980); see also Harvey v. Harvey, 949 F.2d
1127, 1133 (11th Cir. 1992).
Schultz alleges precisely the kind of coordinated
behavior

identified

in

Dennis.

According

to

the

complaint, Yohn and Griffin worked together during the
encounter.

In fact, Griffin is alleged to have both

assisted in seizing Schultz and to have directed Yohn’s
actions at the scene.

Specifically, Griffin is alleged

to have trained his shotgun on the handcuffed Schultz,

14

informed

Yohn

that

he

“had”

Schultz

covered,

and

instructed Yohn to “go get” the female passenger in
Schultz’s vehicle and transfer her to a police cruiser.
Compl. (Doc. No. 1) at ¶¶ 11-12.

In effect, Schultz

alleges that Griffin was, for all material purposes,
acting

as

an

authorized

police

officer

during

the

incident and that he coordinated his efforts with Yohn,
who

is

unquestionably

a

state

actor.

These

are

sufficient allegations to withstand a motion to dismiss
on a state-action ground.
Moreover, Schultz alleges that the City of Brundidge
had a policy authorizing city councillors to direct lawenforcement officers and therefore that Griffin acted
under municipal authority in carrying out those duties at
the scene of Schultz’s arrest.

That allegation would

provide an independent reason to find state action in
this case.

15

B.

Claim-by-Claim Analysis

As stated, the City of Brundidge and Officer Yohn
have moved to dismiss four of the five counts alleged in
Schultz’s complaint.

1.

They are discussed in turn below.

Count One: Unlawful Seizure

In count one, Schultz claims that both Yohn and
Griffin are liable for the allegedly unlawful seizure.
Yohn has moved to dismiss this count on the qualifiedimmunity ground.
Qualified immunity protects a defendant government
official from the chilling effect that might accompany
personal liability for carrying out discretionary duties,
McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.
2009), by affording him immunity from suit, “unless the
law

preexisting

the

...

supposedly

wrongful

act

was

already established to such a high degree that every
objectively
defendant’s

reasonable
place

would

official
be

16

on

standing

notice

that

in

the

what

the

defendant official was doing would be clearly unlawful
given the circumstances,” Pace v. Capobianco, 283 F.3d
1275,

1282

(11th

Cir.

2002).

Where,

as

here,

the

defendant officer was acting within the scope of his
discretionary authority, the plaintiff must “establish
that the officer violated [his] constitutional right[ and
then] must also show that the right involved was ‘clearly
established’ at the time of the putative misconduct.”
Terrell v. Smith, ___ F.3d ___, ___, 2012 WL 255327, at
*3 (11th Cir. 2012) (citing Pearson v. Callahan, 555 U.S.
223, 232 (2009)).
As explained above, Schultz has sufficiently alleged
a

constitutional

violation,

and

therefore

the

only

question is whether his right was clearly established at
the time of the incident.

This is fundamentally a

question of fair notice: If the law does not make the
officer

aware

that

his

“conduct

would

be

clearly

unlawful,” then he is protected by qualified immunity,
Saucier v. Katz, 533 U.S. 194, 202 (2001); however, if

17

the plaintiff can show that “a materially similar case
has already been decided” in his favor, then fair notice
exists and qualified immunity does not attach.

Mercado

v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).
The Supreme Court’s decision in United States v.
Brignoni-Ponce, 422 U.S. 873 (1975), is such a case.
There, police officers seeking to identify and arrest
illegal immigrants stopped a vehicle and questioned its
occupants.

Id. at 876.

The officers justified the stop

based solely on the occupants’ apparent Mexican ancestry.
Id.

In considering the constitutionality of the stop,

the Court reasoned that, despite the “legitimate needs of
law enforcement” and “[f]or the same reasons that the
Fourth Amendment forbids stopping vehicles at random to
inquire if they are carrying aliens who are illegally in
the

country,”

it

also

forbids

stopping

or

detaining

persons for questioning about their citizenship on less
than a reasonable suspicion that they may be aliens.”
Id. at 882-84.

Put another way, Brignoni-Ponce holds

18

that the police need some legitimate justification for a
traffic stop.

See Delaware v. Prouse, 440 U.S. 648, 655,

663 (1979) (relying heavily on Brignoni-Ponce for its
holding that “except in those situations in which there
is at least articulable and reasonable suspicion that a
motorist is unlicensed or that an automobile is not
registered, or that either the vehicle or an occupant is
otherwise

subject

to

seizure

for

violation

of

law,

stopping an automobile and detaining the driver in order
to check his driver’s license and the registration of the
automobile are unreasonable under the Fourth Amendment”).4
Therefore, at the time of this incident, the Supreme
Court

had

clearly

established

that,

at

a

minimum,

individualized suspicion is required for a vehicle stop.

4. See also, e.g., Brendlin v. California, 551 U.S.
249, 254 n.2 (2007) (“California conceded that the police
officers lacked reasonable suspicion to justify the
traffic stop.”); Illinois v. Caballes, 543 U.S. 405, 407
(2005) (traffic stop lawful when based on probable
cause); City of Indianapolis v. Edmond, 531 U.S. 32, 44
(2000) (absent special circumstances, “individualized
suspicion” required for traffic stops).
19

The complaint here reveals no individualized suspicion on
Yohn’s

part

and

no

evidence

justifying

the

further

restraint on Schultz’s freedom that occurred when he was
removed from the vehicle, handcuffed, and detained at
gunpoint.

Yohn is therefore not entitled to qualified

immunity at this stage in the litigation.
For his part, Yohn cites to four Eleventh Circuit
cases that he argues justify his actions.
are inapposite.

Those cases

In Jackson v. Sauls, 206 F.3d 1156, 1166

(11th Cir. 2000), the court found that, if the officers
had drawn their guns and ordered the plaintiffs to the
ground, then they could be liable under § 1983 for an
unlawful seizure.5 It therefore supports Schultz’s claim,
rather than undermines it.

5. Perhaps Yohn is citing this case for the
principle that, during a legal investigatory stop, the
mere act of drawing a weapon does not constitute
excessive force. Jackson, 206 F.3d at 1171-72. But, as
discussed above, the complaint sufficiently alleges an
illegal stop and Schultz submits that he was actually
beaten. Jackson is therefore easily distinguished.
20

The other three cases all dealt with stops predicated
on individualized suspicion.
the

court

found

that

In Courson v. McMillian,

a

passenger

had

not

been

unconstitutionally detained after the police pulled over
the vehicle she was riding in.
(11th Cir. 1991).

939 F.2d 1479, 1492-93

However, in that case (and unlike in

this case), there were ample grounds to justify both the
traffic stop, id. at 1492 (The plaintiff “and her male
companions, traveling at excessive speed in a no passing
zone late at night, passed [the officer] in a vehicle
that was similar to one that he had noticed earlier in
the

evening

in

the

vicinity

fields that he was watching.

of

cultivated

marijuana

The vehicle did not respond

initially to his siren and flashing blue light.”), and
the brief detention.

Id. (Because the officer conducting

the investigatory stop was alone and the suspects had
been “verbally abusive” and “walked toward [him],” the
officer was justified, given the real concern for his own
safety, in detaining all of the vehicle’s passengers

21

until back up arrived.).

Moreover, unlike Schultz, the

plaintiff was neither handcuffed nor “touched physically”
once her vehicle was stopped.

Id.

Similarly, in United

States v. Pantoja-Soto, the initial stop was predicated
on reasonable suspicion and the officers were justified
in drawing their weapons because they had been “advised
that the occupants of the vehicle to be stopped could be
armed and dangerous.”
1985).

768 F.2d 1235, 1236-37 (11th Cir.

Finally, the stop in United States v. Roper was

also based on reasonable suspicion, since the officer had
recently seen a wanted poster depicting the plaintiff and
his vehicle.
in

702 F.2d 984, 985 (11th Cir. 1983).

Unlike

Courson, Pantoja-Soto, and Roper, the initial stop in

this case appears to have been unjustified, and therefore
those cases provide no support for Yohn’s qualifiedimmunity defense.
Put simply, the Supreme Court precedent is clear and
unambiguous:

Police

must

have

some

individualized

suspicion before they may pull over a vehicle and conduct

22

an investigatory stop.
individualized

Thus far, there is no evidence of

suspicion,

and

it

would

therefore

be

inappropriate to dismiss count one of Schultz’s complaint
on a qualified-immunity ground.

2. Count Three: Failure to
Prevent Griffin’s Use of Excessive Force
Count three charges that Officer Yohn failed to
prevent City Councillor Griffin’s unconstitutional use of
force against Schultz.

“[A]n officer who is present at

the scene and who fails to take reasonable steps to
protect the victim of another officer’s use of excessive
force,

can

be

held

liable

for

his

nonfeasance.”

Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th
Cir. 2007) (internal quotation marks omitted).

However,

in cases such as this one, where the allegations of
excessive

force

are

limited

to

a

single

blow,

the

plaintiff must show that the defendant officer “could
have anticipated and then stopped” the other officer from
striking the plaintiff.

Hadley, 526 F.3d at 1331; Riley
23

v. Newton, 94 F.3d 632, 635 (11th Cir. 1996).

Yohn is

entitled to the dismissal of this count because Schultz
fails to allege facts tending to show that Yohn could
have anticipated and prevented Griffin’s conduct.
Schultz’s complaint alleges only that Yohn could have
prevented the use of excessive force by ordering Griffin
not to interfere with the situation.

But nothing in the

complaint indicates that Yohn should have suspected that
Griffin

might

behave

inappropriately:

There

are

no

allegations that Griffin had previously used excessive
force in Yohn’s presence or that Griffin had in anyway
made Yohn aware that he planned to hit Schultz with his
shotgun.
of

That omission is particularly striking in light

Schultz’s

inserted
implies

allegation

himself
that

in

Griffin

that

Griffin

law-enforcement
had

done

so

had

previously

activity,
without

as

it

incident.

Moreover, since Griffin is alleged to have struck Schultz
only once, this is a not a case where the defendant’s
inaction enabled an assault to continue.

24

Under these

circumstances, Schultz alleges no more than that Yohn
“did nothing to stop” the assault, and that allegation is
insufficient to make Yohn liable for Griffin’s actions.
Hadley, 526 F.3d at 1330-31.

3.

Claims Against the City

Section 1983 provides a remedy against “any person”
who, under color of state law, deprives another of his
constitutionally protected rights.

42 U.S.C. § 1983.

In

Monell v. Department of Social Services, the Supreme
Court held that municipalities and other local government
entities are included among those persons to whom § 1983
applies.

436 U.S. 658, 690 (1978).

Nevertheless, for a

municipality to be liable for the actions of one of its
officers,

that

officer

must

have

acted

“pursuant

to

official municipal policy of some nature” and that policy
must have “caused [the] constitutional tort.”
691.

25

Id. at

The Eleventh Circuit has distilled Monell’s holding
into three parts: “to impose § 1983 liability on a
municipality,
constitutional

a

plaintiff
rights

were

must

show:

(1)

that

his

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).
Since this court has already concluded that Schultz’s
complaint sufficiently alleges that his Fourth Amendment
rights were violated, only the second and third elements
are at issue here.

Each will be addressed as applied to

the two claims against the City of Brundidge.
Count Four: The City’s Policy of Permitting City
Councillors to Direct Law-Enforcement Officers:

Schultz

alleges that the City of Brundidge had a policy of
allowing Griffin to direct law-enforcement officers.

He

further asserts that Griffin had previously acted under
that authority, meaning that this was not an isolated

26

incident, but rather an example of a broader course of
conduct that the city knew of and authorized.

But for

this policy, Schultz submits, Griffin could not have
participated in the encounter and would have therefore
been unable to violate the Constitution.

While that

sufficiently alleges that the city had a policy that
caused

the

rights,

it

deprivation
fails

to

of

show

Schultz’s
the

constitutional

requisite

“deliberate

indifference” necessary for municipal liability under
§ 1983.
The Supreme Court has explained that a municipality’s
“continued adherence to an approach that [it] knew or
should

[have

known]

conduct

by

employees

disregard

for

the

has

failed

to

prevent

may

establish

consequence

of

the

their

tortious
conscious

action--the

‘deliberate indifference’--necessary to trigger municipal
liability.”

Bd. of County Comm’rs v. Brown, 520 U.S.

397, 407 (1997).

But in this case, Schultz does not

allege that Griffin, or any other City Councillor, had

27

previously committed a constitutional violation as a
result of this policy.

Absent any allegation “that city

officials were aware of past police misconduct,” Brooks
v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987), or that
the

natural

constitutional

consequences

of

violations,

this

see

policy

Anderson

would

be

City

of

v.

Atlanta, 778 F.2d 678, 685-86 (11th Cir. 1985), the jury
could

not

reasonably

find

deliberate indifference.

that

the

city

acted

with

Count four should therefore be

dismissed.
It is one

Count Five: The City’s Failure to Train:

thing to permit city councillors to participate in a
police

action

and

quite

another

to

do

so

without

providing adequate training. Indeed, that distinction is
why

Schultz’s

policy

claim

in

count

four

must

be

dismissed, while his failure-to-train claim in count five
can proceed.
“A municipality can ... be held liable under § 1983
when its employees cause a constitutional injury as a

28

result of the municipality’s policy- or custom-based
failure to adequately train or supervise its employees.”
Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of
Miami, 637 F.3d 1178, 1188 (11th Cir. 2011).

One way for

liability to attach is if “the need for more or different
training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that
the policy makers of the city can reasonably be said to
have been deliberately indifferent to the need.”
v. Newton, 94 F.3d 632, 638 (11th Cir. 1996).

Riley

Schultz’s

complaint sufficiently alleges that this is such a case.
Schultz submits that the City of Brundidge had a
policy of permitting untrained civilians to act as and to
give orders to police officers.
obvious

need

to

train

police

Just as there is an
officers

in

the

basic

contours of the Constitution, lest they act in ways that
violate

it,

civilians

there

is

participating

also
in

a

need

police

either

actions

to
in

train
how

to

behave or to train the police in how to manage those

29

civilians

properly

during

encounters

with

suspects.

According to Schultz, no such training took place.
the

city

had

a

policy

of

permitting

untrained,

If
yet

heavily armed, civilians to conduct police work and did
nothing
maintain

to

prepare

order

its

during

law-enforcement

police

actions

in

officers
which

to

those

civilians participated, then a reasonable jury could find
it liable for the foreseeable constitutional violations
that result.

***

For the forgoing reasons, it is ORDERED that:
(1) Defendant City of Brundidge’s motion to dismiss
(doc.

no.

9)

and

defendant

Ronald

Yohn’s

motion

to

dismiss (doc. no. 22) are granted to the extent that
plaintiff Alfred F. Schultz’s third claim (defendant Yohn
failed to prevent defendant Arthur Lee Griffin’s use of
excessive force) and his fourth claim (defendant City of

30

Brundidge

had

councillors

to

an

illegal

direct

policy

of

law-enforcement

permitting
officers)

city
are

dismissed.
(2) Said motions are denied as to plaintiff Schultz’s
first claim (defendants Yohn and Griffin conducted an
unlawful seizure) and his fifth claim (defendant City of
Brundidge failed to train). Plaintiff’s Schultz’s second
claim (defendant Griffin used excessive force) is not the
subject of the motions.

This case will therefore proceed

as to these three claims.
DONE, this the 5th day of March, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE