Ruda v. Boisvert et al
MEMORANDUM OPINION AND ORDER: It is ORDERED that Defendants' motion for summary judgment (Doc. 58 ) is GRANTED in part and DENIED in part as follows: (1) GRANTED on the basis of qualified immunity on Plaintiff's 1983 claims that Office rs Bettencourt and Geiger violated his Fourth Amendment rights prohibiting an unlawful arrest; (2) DENIED on Plaintiff's 1983 claim that Officer Boisvert violated his Fourth Amendment rights prohibiting an unlawful arrest; (3) DENIED on Plaintif f's 1983 claims that Officers Boisvert, Bettencourt, and Geiger violated his Fourth Amendment rights prohibiting excessive force during the course of an arrest; and (4) GRANTED on the basis of State-agent immunity on all state law claims. It is further ORDERED that Plaintiffs motion for partial summary judgment (Doc. 54 ) is DENIED. Signed by Honorable Judge William Keith Watkins on 10/13/2020. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL ELIAS RUDA,
TOBIS BOISVERT, et al.,
) CASE NO. 3:19-CV-232-WKW
MEMORANDUM OPINION AND ORDER
Shortly after midnight on March 30, 2018, Plaintiff Michael Elias Ruda was
arrested in the parking lot of the Glory Days bar on multiple charges, including
driving under the influence.
Mr. Ruda alleges that three Phenix City police
officers—Tobias Boisvert, Michael Bettencourt, and Joshua Geiger—unlawfully
arrested him without probable cause and used excessive force to effectuate his
unlawful arrest. He sues the officers in their individual capacities for violating his
rights under the Fourth Amendment, as enforced by 42 U.S.C. § 1983, and his rights
under Alabama law. Before the court are the parties’ cross-motions for summary
judgment. Mr. Ruda moves for partial summary judgment on the issue of liability
on the § 1983 claims (Doc. # 54), and Defendants move for summary judgment,
arguing they are entitled to qualified immunity on the § 1983 claims and State-agent
immunity on the state law claims (Doc. # 58).
After careful consideration, the court finds that genuine disputes of material
fact preclude the entry of summary judgment for either side on the § 1983 Fourth
Amendment claims for unlawful arrest and excessive force against Officer Boisvert
and on the § 1983 Fourth Amendment claims against Officers Bettencourt and
Geiger for excessive force. The court further finds that Officers Bettencourt and
Geiger are entitled to qualified immunity on the § 1983 Fourth Amendment unlawful
arrest claim and that all Defendants are entitled to State-agent immunity on the state
I. JURISDICTION AND VENUE
Because this action arises under 42 U.S.C. § 1983, the court exercises subject
matter jurisdiction pursuant to 28 U.S.C. § 1331. As to the claims arising under state
law, the court exercises supplemental jurisdiction pursuant to 28 U.S.C. § 1367. The
parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate “that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views
the evidence, and all reasonable inferences drawn from it, in the light most favorable
to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir.
“The standard of review for cross-motions for summary judgment does not
differ from the standard applied when only one party files a motion, but simply
requires a determination of whether either of the parties deserves judgment as a
matter of law on the facts that are not disputed.” Ellison v. Hobbs, 334 F. Supp. 3d
1328, 1338 (N.D. Ga. 2018), aff’d, 786 F. App’x 861 (11th Cir. 2019). “[C]ross
motions for summary judgment may be probative of the nonexistence of a factual
dispute, but this procedural posture does not automatically empower the court to
dispense with the determination whether questions of material fact exist.” Ga. State
Conference of NAACP v. Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1345 (11th
Cir. 2015) (internal citation, alteration, and quotations omitted).
Finally, although the facts and reasonable inferences are drawn in the nonmovant’s favor, the Supreme Court has instructed the lower courts that, “when there
is a reliable video recording of disputed events,” the facts should be viewed “‘in the
light depicted by the video.’” Davidson v. City of Opelika, 675 F. App’x 955, 957
(11th Cir. 2017) (alterations added) (quoting Scott v. Harris, 550 U.S. 372, 381
The facts are drawn from the evidence submitted by the parties, including Mr.
Ruda’s affidavit, each officer’s deposition testimony, the dashcam videos, and the
limited stipulations. Because disputed material facts abound in this cross-motion
context, it is unnecessary to set out separately two versions of the parties’ respective
accounts. These are the facts for purposes of summary judgment. At the trial, these
facts may change, go away, or be added to or amplified.
It was half-past midnight on March 30, 2018, in Phenix City, Alabama; the
streets were soaked with precipitation, and it was drizzling rain. Officer Boisvert, a
patrol officer with the Phenix City Police Department, was in the middle of his
twelve-hour shift. (Doc. # 63-6, at 111 (Boisvert Dep.).) He had stopped for a cup
of coffee at the Circle K, which sits at the intersection of Highway 80 West and
Auburn Road in Phenix City, Alabama (Doc. # 63-6, at 66, 95, 111), when the police
department’s dispatch reported: “80 West near Auburn Heights Church, reference
to a possible intoxicated driver. Car involved, duty CPD officer, uh, is a white
pickup truck was swerving in and outta lanes, pulled up behind the church.” (Doc.
# 63-6, at 47 (Boisvert’s Dep.)); (Doc. # 55-20 (Dispatch Transcript).) Moments
later, Officer Boisvert, who was in close proximity to the location of the call,
observed a white pickup truck approaching from the direction the dispatcher had
announced. (Doc. # 63-6, at 95, 117.) The pickup truck “stopped short of the stop
light . . . in the middle of the road essentially.” (Doc. # 63-6, at 95–96.) This
maneuver caused Officer Boisvert to believe that the driver, who later turned out to
be Mr. Ruda, was under the influence of alcohol and that this was the truck described
by the dispatcher. (Doc. # 63-6, at 62.) Officer Boisvert got back into his patrol car
to follow the truck and watched it “inching forward toward the light.” (Doc. # 636, at 96.)
Officer Boisvert’s patrol car is equipped with a dashcam video camera. The
dashcam video recording begins as Officer Boisvert is driving out of the Circle K
parking lot south on Auburn Road.1 The following recounts what the dashcam video
depicts, supplemented by Officer Boisvert’s testimony as to events he contends the
dashcam video does not depict either due to the timing, its angle, or the nighttime,
Officer Boisvert testified that, when the light turned green at the intersection
of Auburn Road and Highway 80, the pickup truck “ma[d]e a left turn” onto
Highway 80 and “beg[a]n fishtailing nearly striking a vehicle that was in front of the
suspect vehicle.” (Doc. # 63-6, at 120, 123–24.) However, Officer Boisvert
testified that, because of his patrol car’s position in relation to the truck’s, the
Officer Boisvert testified that the dashcam video on his patrol car automatically starts
recording when he turns on the blue lights, and rewinds to include the thirty seconds preceding the
activation of the lights. Hence, the dashcam recording begins thirty seconds prior to Officer
Boisvert’s turning on the blue lights. (Doc. # 63-6, at 83.) The dashcam displays the date and
continuously display the time. (Doc. # 63-6, at 86, 97.)
Mr. Ruda argues repeatedly that the dashcam video taken from Officer Boisvert’s patrol
car is the best evidence of what transpired on March 30, 2018, and that Officer Boisvert’s
testimony about events that are not visible on the video cannot create a genuine dispute of material
fact. (See, e.g., Doc. # 57, at 10–15.) As discussed in Part IV.A., given the dashcam’s lack of
clarity at times, Officer Boisvert’s version of events, while providing fodder for cross examination,
does not present grounds for its exclusion. Cf. Scott v. Harris, 550 U.S. 372, 380 (2007) (holding
that the plaintiff’s version of the facts should not have been adopted for purposes of ruling on a
summary judgment motion because it was “blatantly contradicted” by a video).
dashcam did not capture the pickup truck as it made the left turn. (Doc. # 63-6,
at 121.) By the time that Officer Boisvert turned left onto Highway 80, the white
pickup truck had gained distance and was 1,000 feet ahead of him. (Doc. # 63-6,
On his police radio, Officer Boisvert reports that he has the white pickup truck
in sight and that he is travelling east on Highway 80. After he turns on his blue lights
(but not his siren), Officer Boisvert says over the radio: “Don’t look like it’s gonna
stop, looks like it’s gonna try to take off from me. [The truck is] [t]akin’ a right onto
280. Traffic light. Roads are obviously wet. Can’t get close enough to get the tag.
I keep fishtailin’.” (Doc. # 55-20.) Officer Boisvert testified also that he observed
the pickup truck, which was traveling “extremely fast,” hit a curb on the right side
of the road but that the dashcam video recording is “too fuzzy” to capture it. (Doc.
# 63-6, at 124–25.) Officer Boisvert testified that the pickup truck then came to a
stop at the traffic light on Highway 280 “after nearly striking several vehicles,” but
he admits that the pickup truck’s movement is “not visible” on the dashcam. (Doc.
# 63-6, at 147, 162.) While Mr. Ruda was stopped at this traffic light, Officer
Boisvert was directly behind Mr. Ruda’s truck, and he says that, looking through the
back rear window of the truck, he saw Mr. Ruda’s head, shoulders, and upper arms
moving, indicating to him that Mr. Ruda was reaching for something in his console.
Officer Boisvert admitted that he could not see Mr. Ruda’s hands. (Doc. # 63-6, at
At this point, Officer Boisvert activates his siren to accompany the blue lights
as he is turning right onto Highway 280 in an attempt to conduct a traffic stop of the
pickup truck. (See Doc. # 55-1, at 1 (Diagram).) Officer Boisvert still is pursuing
the truck, which is traveling in the right lane of the four-lane highway, when he
observes it “swerve over into the left lane,” but he admits that this is “difficult” to
see on the dashcam video “with all the rain,” but that the “tire marks” are visible.
(Doc. # 63-6, at 64–65.) He follows the truck, which turns into the Glory Days bar’s
gravel parking lot. (Doc. # 55-20); see also Doc. # 63-6, at 47–50).) Officer Boisvert
testified that, after the pickup truck pulled into the Glory Days parking lot, it abruptly
stopped and “almost ran into the building.” (Doc. # 63-6, at 190–91.)
Officers Bettencourt and Geiger did not participate in this pursuit of Mr. Ruda.
Officer Bettencourt had been listening to the police radio and turned around when
he passed Officer Boisvert, who was traveling in the opposite direction with his blue
(Doc. # 63-2, at 47, 48, 55 (Bettencourt Dep.); Bettencourt
Dashcam Video (Doc. # 59-11).) Officer Bettencourt and Officer Geiger first saw
the white pickup truck as it was making a right turn off Highway 280, which was
just prior to the truck pulling into Glory Days. (Doc. # 63-2 at 52; Doc. # 63-3, at
37 (Geiger Dep.).) By the time Officers Bettencourt and Geiger exited their patrol
cars at Glory Days, Officer Boisvert was walking toward Mr. Ruda, with his firearm
drawn and pointed at Mr. Ruda, who had stepped out of his truck. (Doc. # 63-3, at
33 (“[B]y the time I exited my vehicle, Corporal Boisvert was already up and
approaching the driver with his weapon out.”); see also Doc. # 63-3, at 35, 36, 38–
39; Doc. # 63-2, at 50.) Officer Geiger did not know why Officer Boisvert had
drawn his firearm; however, he, like Officer Bettencourt, was privy to the dispatch
communications and knew that Officer Boisvert had located the white pickup,
reported by a Columbus, Georgia police officer. (Doc. # 55-20; Doc. # 63-3, at 32,
Officer Boisvert’s pursuit of Mr. Ruda into the Glory Days parking lot lasted
approximately ninety seconds and covered three-quarters of a mile, during which
Officer Boisvert says that he maintained constant visual contact with Mr. Ruda’s
truck. (Doc. # 63-6, at 52, 59–60, 104, 117–18.) Concerning the quality of the
dashcam video for these first ninety seconds, waterdrops and streaks of water are
visible on the windshield of Officer Boisvert’s patrol car. There is a glare on the
video created by the combination of the accumulated water on the windshield,3 the
flashing blue lights, the headlights from oncoming vehicles, and the street lighting.
The patrol car’s windshield wipers are activated only once when Officer Boisvert first
started tracking Mr. Ruda’s truck.
Back to the scene, Officer Boisvert pulls into the Glory Days parking lot and
stops his patrol car so that it is angled to the rear and left of the white pickup truck.
Officer Boisvert is captured on the dashcam just after he steps out of his patrol
vehicle. He immediately draws his weapon, and quickly walks six to seven steps to
reach the driver’s door. The camera does not capture Mr. Ruda, who is blocked from
view by Officer Boisvert’s back. During his approach to the truck, Officer Boisvert
is yelling at Mr. Ruda. Officer Boisvert’s lights and siren are blinking and blaring,
as are those of at least one of the other police cars on the scene. The initial
commands are inaudible on the recording, but then Officer Boisvert, who is wearing
a microphone, is heard yelling multiple times for Mr. Ruda to “[g]et on the ground”
and show his hands. (Boisvert Dashcam Video, 12:28:39 to 12:29:53.)
When Officer Boisvert reaches the open door of the white pickup truck, the
camera shows Mr. Ruda stepping out of the truck, with his hands raised and palms
open. Officer Boisvert holsters his firearm on his right hip. Officer Boisvert is still
shouting at Mr. Ruda. While much of it is inaudible or jumbled, one command, “Put
your hands in the air,” is clear on the audio. With his hands still raised, Mr. Ruda
turns toward the truck and appears to place both hands, palms open, on the edge of
the toolbox, which is mounted in the bed of the truck. Officer Boisvert forcefully
grabs Mr. Ruda’s arm, pushes Mr. Ruda away from the truck, and yells “get the f--on the ground.” (Boisvert Dashcam Video, 12:28:50–51.) When Officer Boisvert
grabbed Mr. Ruda’s arm, he smelled the “odor of alcoholic beverage.” (Doc. # 636, at 251–52.) At this juncture, Officer Boisvert deemed Mr. Ruda to be under arrest
for DUI. (Doc. # 63-6, at 252–53.) Officer Boisvert and Mr. Ruda begin to struggle;
both lunge forward for several steps as Officer Boisvert is trying to push him to the
During this initial struggle between Mr. Ruda and Officer Boisvert, Officers
Bettencourt and Geiger appear on the dashcam video, one running toward Officer
Boisvert from the left and the other from the right. In the initial seconds after Officer
Boisvert grabs Mr. Ruda’s arm and is trying to force him to the ground, Officers
Bettencourt and Geiger join in. All three officers, while standing and surrounding
Mr. Ruda, are trying to physically force Mr. Ruda to the ground. The dashcam video
shows the officers grabbing Mr. Ruda’s head, kicking, and kneeing him continually
for six seconds until Mr. Ruda falls face forward toward the gravel ground and
attempts to break the fall with his hands. The officers end up on top of him.
The ensuing scrum will not be set out here blow by blow. It is difficult to
make out every movement because the three officers are crouched over and on top
of Mr. Ruda, who appears to be trying to turn over on his back. Suffice it to note,
during the next fifty-four seconds, the officers, collectively, delivered no less than
nine blows, some in rapid succession, to Mr. Ruda in his back and head area.
Whenever Mr. Ruda tried to lift or turn his face from the ground, an officer forced
Mr. Ruda’s head back into the gravel, with either a blow by the knee or by the hand
or by forcefully holding his head to the ground with a hand.4 Between the officers’
blows, Officer Bettencourt pulls a taser from a holster on his right side and applies
it to Mr. Ruda’s back area twice, for a total of seventeen seconds, and presses his
knee on the back of Mr. Ruda’s head.5 (Boisvert Dashcam Video, 12:29:11–
12:29:28); (Doc. # 55-45, at 6 (Supplemental Incident Report).) Finally, Ruda is
handcuffed, and the officers stand up and step away. Mr. Ruda then is able to turn
over and sit up with his hands cuffed behind his back. Mr. Ruda was not armed, and
the officers did not pat him down for weapons at that time. (Boisvert Dep., at 263;
Dashcam Video, 12:29:50.)
A total of seventy-two seconds elapsed from the moment Mr. Ruda opened
his truck door, after pulling into the parking lot at Glory Days, until he was
handcuffed on the ground. During this time, the officers did not ask Mr. Ruda any
Officer Boisvert admits that the officers kept striking Mr. Ruda with their fists and hands
after he was face down on the ground, but he says that Mr. Ruda was trying to pull his hands
around to his front, and the officers were trying to handcuff his hands behind his back. (Doc. # 636, at 286–87.)
Officer Bettencourt testified that he applied the taser to Mr. Ruda in the drive-stun mode.
(Doc. # 63-2, at 289–90.) When a taser is used in the “‘drive stun mode,’ the prongs are not used;
instead, the taser is pressed directly against a person’s skin.” Cantu v. City of Dothan, Alabama,
No. 18-15071, 2020 WL 5270645, at *4 (11th Cir. Sept. 3, 2020) (citation omitted). “That mode
can be used in an attempt to obtain compliance by causing pain, but it generally does not
incapacitate a person as the prong mode is designed to do. Drive stun mode tasing does not cause
serious physical injury.” Id. (citations omitted). (See also Doc. # 63-6, at 329.)
questions, and the sirens from two of the patrol cars blared continuously with the
blue lights flashing.
Mr. Ruda offers his perspective as to what occurred during these seventy-two
seconds in the Glory Days parking lot. (Doc. # 55-19 (Pl.’s Aff.).) His account is
more in the nature of an explanation for his actions. He says that he first noticed
Officer Boisvert’s patrol car when it stopped directly behind him at the traffic light
at the intersection of Highway 280 and Thirteenth Street. Mr. Ruda heard the siren
and, from his rear view mirror, saw the blue lights. Mr. Ruda says that, while he
was not certain that the patrol car was signaling him, he looked for the first
opportunity to pull over, which was the Glory Days parking lot. When he started to
get out of his truck, he could see an officer pointing a firearm at him from about
twenty- or twenty-five feet away. However, he could not hear what the officer was
saying because multiple police cars had arrived, and the sirens were blaring.
Because he was not asked any questions—or asked to provide his driver’s license—
he was confused why three officers were trying to push him down onto the rocky
gravel of the parking lot. He further attests that he “did nothing during the whole of
this event to resist” and that he “never struck or attempted to strike or injure” the
officers. (Doc. # 55-19, at 2.) Rather, his “movements and actions were all taken in
an attempt to ward off their blows and assaults and minimize [his] injuries.” (Doc.
# 55-19, at 2.)
Officer Bettencourt transported Mr. Ruda to the hospital for treatment for his
injuries. (Doc. # 63-2, at 84–85; Doc. # 55-45, at 6.) Those injuries included a
broken elbow, contusions, and abrasions to Mr. Ruda’s face, chest, and stomach.
(Doc. # 55-19, at 2; Doc. # 55-17 (medical records); Doc. # 63-2, at 84–85).) After
Mr. Ruda was treated and released, Officer Bettencourt booked Mr. Ruda in the
Russell County Jail on charges for DUI,6 attempting to elude a law enforcement
officer, resisting arrest, and criminal mischief in the third degree.7 (Doc. # 55-45,
at 6.) At a non-jury trial in the City of Phenix City Municipal Court, Mr. Ruda was
found not-guilty on the charges of DUI, attempting to elude, and criminal mischief,
but he was convicted on the charge of resisting arrest. (Doc. # 91 (Stipulated Facts);
Doc. # 63-6, at 364–65, 371–73.)
Seeking to hold Defendants accountable for his injuries, Mr. Ruda brought
this action in April 2019. In the operative amended complaint (Doc. # 50), Mr. Ruda
alleges that Officers Boisvert, Bettencourt, and Geiger violated his Fourth
Amendment rights by arresting him without probable cause and by using excessive
force against him. He brings his claims against the officers in their individual
capacities under § 1983. Mr. Ruda also brings state law claims under Alabama law
The Alabama Uniform Traffic Ticket charges Mr. Ruda with driving “[u]nder the
Influence of any Substance which impairs the Mental or Physical Facilities.” (Doc. # 55-46); see
Alabama Code § 32-5A-191(5).
The criminal mischief charge was brought because Officer Boisvert’s Apple watch was
broken during the scrum. (Doc. # 55-45, at 4.)
for false imprisonment, false arrest, unlawful restraint of freedom, assault and
battery, and malicious prosecution. The parties filed cross motions for summary
judgment to which the discussion turns.
§ 1983 Fourth Amendment Claims and Qualified Immunity
Qualified Immunity: Generally
Defendants move for summary judgment on the § 1983 Fourth Amendment
claims, arguing they are entitled to qualified immunity.
completely “protects government officials performing discretionary functions from
suits in their individual capacities unless their conduct violates ‘clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536
U.S. 730, 739 (2002)). A Government official raising a qualified immunity defense
“bears the initial burden of showing ‘he was acting within his discretionary
authority.’” Glasscox v. Argo, City of, 903 F.3d 1207, 1213 (11th Cir. 2018)
(quoting Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007)). If the
official satisfies this showing—which is undisputed here (see Doc. # 91 (Stipulated
Facts)—“the burden shifts to the plaintiff to show that ‘(1) the defendant violated a
constitutional right, and (2) this right was clearly established at the time of the
alleged violation.’” Glasscox, 903 F.3d at 1213 (quoting Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).
Fourth Amendment Law on Traffic Stops and Arrests: Reasonable
Suspicion and Probable Cause
Mr. Ruda’s § 1983 unlawful arrest claim arises from a traffic stop. Officer
Boisvert says he stopped Mr. Ruda and had probable cause to arrest him for driving
under the influence (“DUI”), in violation of Alabama law. Defendants contend that
they are entitled to qualified immunity because there was probable cause or, at least,
arguable probable cause to arrest Mr. Ruda for DUI.8 (Doc. # 61, at 24.) Mr. Ruda
contends that he is entitled to summary judgment on the issue of liability based on
Officer Boisvert’s dashcam video, which he says conclusively establishes that there
was no probable cause, actual or arguable, for his arrest.
Mr. Ruda faced multiple charges, but the summary judgment arguments focus on the DUI
charge; thus, the court does the same. Alabama Code § 32-5A-191 defines DUI as follows:
(a) A person shall not drive or be in actual physical control of any vehicle while:
(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
(2) Under the influence of alcohol;
(3) Under the influence of a controlled substance to a degree which renders
him or her incapable of safely driving;
(4) Under the combined influence of alcohol and a controlled substance to
a degree which renders him or her incapable of safely driving; or
(5) Under the influence of any substance which impairs the mental or
physical faculties of such person to a degree which renders him or her incapable of
Ala. Code § 32-5A-191.
Genuine disputes of material fact preclude summary judgment for Officer
Boisvert on his qualified immunity defense and for Mr. Ruda on liability. Because
the arrest occurred nearly simultaneously with the stop, whether Officer Boisvert
had reasonable suspicion (actual or arguable) to conduct the traffic stop and whether
Officer Boisvert thereafter developed probable cause (actual or arguable) to arrest
Mr. Ruda are inextricably intertwined; hence, both the initial stop and arrest are
addressed. As to Officers Bettencourt and Geiger, they are entitled to qualified
immunity on the Fourth Amendment unlawful arrest claim.
The Fourth Amendment protects people from “unreasonable searches and
seizures” by government officials. “Its protections extend to brief investigatory
stops of persons or vehicles . . . .” United States v. Arvizu, 534 U.S. 266, 273 (2002).
“Under the Fourth Amendment, a police officer generally may lawfully detain an
individual without a warrant if (1) there is probable cause to believe that a traffic
violation has occurred (a traffic stop), or (2) there is reasonable suspicion to believe
the individual has engaged or is about to engage in criminal activity (an investigative
or Terry stop).” United States v. Gibbs, 917 F.3d 1289, 1294 (11th Cir. 2019) (citing
United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008)). “While there are
obvious differences between a traffic stop and a Terry stop, the Supreme Court has
recognized that the two are ‘analogous’ both in their ‘duration and atmosphere.’” Id.
(citing Berkemer v. McCarty, 468 U.S. 420, 439 n.29 (1984)). The Gibbs court
explained: “In evaluating both traffic and Terry stops, we examine (1) whether the
officer’s action was justified at its inception—that is, whether the officer had
probable cause or reasonable suspicion to initiate the stop, and (2) whether the stop
was reasonably related in scope to the circumstances that justified it in the first
“[A]n officer may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” Jackson v. Sauls, 206 F.3d 1156, 1165 (11th Cir. 2000).
“While ‘reasonable suspicion’ is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective justification for making
the stop.” Id. But “when an officer asserts qualified immunity, the issue is not
whether reasonable suspicion existed in fact, but whether the officer had ‘arguable’
reasonable suspicion to support an investigatory stop.” Id. at 1166.
“For probable cause to arrest to exist, an arrest must be objectively reasonable
based on the totality of the circumstances.
This standard is met when law
enforcement officials have facts and circumstances within their knowledge sufficient
to warrant a reasonable belief that the suspect had committed or was committing a
crime.” Alston v. Swarbrick, 954 F.3d 1312, 1318 (11th Cir. 2020) (citations
omitted). Even where an officer lacks probable cause for a traffic stop, he is entitled
to qualified immunity if he had arguable probable cause to make an arrest. Id.
“Arguable probable cause exists if reasonable officers in the same circumstances and
possessing the same knowledge as the defendants could have believed that probable
cause existed to arrest the plaintiff.” Id. (cleaned up).
Officer Boisvert’s arguments focus on probable cause for the arrest for DUI.
Officer Boisvert argues that there was probable cause, or at least arguable probable
cause, to arrest Mr. Ruda for DUI based upon the information relayed by the
dispatcher, his observations of Mr. Ruda’s erratic driving prior to the traffic stop,
and the smell of alcohol on Mr. Ruda’s breath. (Doc. # 61, at 32.) Disagreeing, Mr.
Ruda contends that arguable probable cause does not support the arrest. First, he
argues that the officer’s “tip” of a “possibly intoxicated” suspect driving a white
pickup truck is “insubstantial” based upon the legion of white pickup trucks in the
Phenix City area. (Doc. # 65, at 13.) Second, Mr. Ruda contends that the best
evidence of Mr. Ruda’s driving is Officer Boisvert’s dashcam video, which does not
substantiate Officer Boisvert’s testimony of his allegedly erratic driving. Third,
because Mr. Ruda pinpoints the arrest as occurring when Officer Boisvert drew his
weapon on Mr. Ruda in Glory Days parking lot, he argues that Officer Boisvert’s
alleged smell of alcohol cannot factor into the probable cause analysis but that, even
if it could, that fact is conspicuously absent in Officer Boisvert’s incident report
made contemporaneously with the arrest. (Doc. # 65, at 13–14.)
The parties agree that Mr. Ruda was seized for Fourth Amendment purposes
when Officer Boisvert exited his vehicle with his firearm drawn and yelled for Mr.
Ruda, who had exited his truck, to get on the ground. See United States v. Street,
472 F.3d 1298, 1310 (11th Cir. 2006) (“[A] person is seized when a reasonable
person would [not] feel free to terminate the encounter with the police.”) (internal
quotation marks omitted). This initial seizure was lawful if there was reasonable
suspicion to believe that Mr. Ruda was driving under the influence of alcohol, and
Officer Boisvert is entitled to qualified immunity if that reasonable suspicion is only
arguable. Against this backdrop, summary judgment is not appropriate for either
Mr. Ruda or Officer Boisvert because whether arguable or actual reasonable
suspicion existed for this seizure depends upon which version of events a jury
believes. In other words, Mr. Ruda’s and Officer Boisvert’s versions conflict at all
If the jury credits Officer Boisvert’s version of events preceding the stop, then
the facts go something like this. Shortly after the dispatcher reported that an offduty police officer had observed a white pickup truck “swerving in and outta lanes”
in an area near his location at the Circle K, Officer Boisvert saw a white pickup truck
traveling from that same direction. (Doc. # 63-6, at 62.) The truck “stopped short”
of the “stop bar,” not “anywhere near the stop light” (Doc. # 63-6, at 95–96), which
Officer Boisvert described as erratic driving. Officer Boisvert began following Mr.
Ruda. While trailing Mr. Ruda, Officer Boisvert observed the white pickup truck
(1) “swerve” and fail “to maintain [its] lane” (Doc. # 63-6, at 62), (2) take a left
turn onto Highway 80 and fishtail, nearly striking the vehicle in front of it (Doc.
# 63-6, at 120, 123–24), (3) hit a curb while traveling “extremely fast” (Doc. # 636, at 124–25), (4) stop at a traffic light on Highway 280 “after nearly striking several
vehicles” (Doc. # 63-6, at 147, 162), and (5) “almost r[un] into” the Glory Days
building when parking (Doc. # 63-6, at 190–91). This information, if credited,
supplies reasonable suspicion or at least arguable reasonable suspicion to stop Mr.
Ruda for DUI. See Jenkins v. Gaither, 543 F. App’x 894, 897 (11th Cir. 2013)
(officer had reasonable suspicion to stop a driver for DUI based on a dispatch “that
[the driver] was driving at an unusual speed and weaving across the road” and where
the off-duty officer who reported “the erratic driving identified Jenkins’s vehicle”);
United States v. Johnson, 136 F. App’x 279, 282 (11th Cir. 2005) (holding that
whether the officer’s determination that the driver violated the lane-swerving statute
was erroneous was inconsequential because the officer’s concern that the driver was
sleeping or intoxicated was “sufficient justification to stop a motorist”).
Mr. Ruda does not argue that Officer Boisvert’s observations about his
driving, if believed, would not justify the initial stop based on a reasonable suspicion
of DUI. Rather, Mr. Ruda argues that the dashcam video proves that Officer
Boisvert is lying because most, if not all, of Officer Boisvert’s reported observations
about Mr. Ruda’s erratic driving are not visible on Officer Boisvert’s dashcam video.
Hence, Mr. Ruda contends that Officer Boisvert’s testimony must be rejected.
No doubt, Officer Boisvert’s dashcam video is critical evidence. See Cantu
v. City of Dothan, Ala., No. 18-15071, 2020 WL 5270645, at *6 (11th Cir. Sept. 3,
2020) (observing that the dashcam video “is the most important piece of evidence in
the case not only because of its unquestioned objectivity but also because the critical
events happened quickly, and with a video recording, it is possible to freeze frame
the images of them”). Notwithstanding that many of Officer Boisvert’s reported
observations about Mr. Ruda’s allegedly erratic driving are not depicted on the
dashcam video, the video does not solidify the facts as undisputed. Officer Boisvert
testified that his first observation of the white pickup truck’s erratic driving occurred
prior to the start of the dashcam recording (Doc. # 63-6, at 63, 117) and that
otherwise the inclement, nighttime weather conditions obscured the range and clarity
of the dashcam video. (See Doc. # 63-6, at 63–64, 88–89 (testifying that the “field
of vision” on the dashcam is “blurry from all the rain”); Doc. # 63-6, at 63-64
(testifying that on the dashcam it is “difficult to see” Mr. Ruda’s truck “swerve”
because of the rain); Doc. # 63-6, at 125 (testifying that the video is “too fuzzy” to
capture Mr. Ruda’s truck hit the curb on the right side of Highway 80); Doc. # 6321
6, at 145 (testifying that the video is “too blurry” because of the rain); Doc. # 63-6,
at 147 (testifying that, although he saw Mr. Ruda’s truck “nearly strik[e] several
vehicles” when it came to a stop at a traffic light on Highway 280, this is “not visible
“on the dashcam video)).
On one hand, a jury could credit Officer Boisvert’s testimony. A jury could
find that his testimony supplements the dashcam video and that Mr. Ruda’s allegedly
erratic driving is obscured on the video due to the rain, the darkness, and the glare
created by the patrol car’s blue lights, the streetlights, and the headlights from
oncoming vehicles. On this record, Officer Boisvert’s story about what occurred is
not “‘blatantly contradicted’” by the dashcam video so as to require its rejection.
Singletary v. Vargas, 804 F.3d 1174, 1183 (11th Cir. 2015) (quoting Harris v. Scott,
550 U.S. 372, 380 (2007)). To borrow from Cantu,
[T]here are ambiguities and lack of clarity about some of the details,
including important ones which, when considered against the account
[Officer Boisvert] gave in h[is] deposition, present material factual
issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.
2020 WL 5270645, at *6 (cleaned up).
On the other hand, a reasonable jury could reject Officer Boisvert’s story. A
reasonable jury could view the dashcam video in light of Officer Boisvert’s
testimony and find it unbelievable that little to none of what Officer Boisvert says
he saw is visible through the lens of the dashcam. Moreover, a reasonable jury could
credit Mr. Ruda’s testimony over Officer Boisvert’s: that he did not violate any laws
or “do anything wrong” (Doc. # 59-1, at 153, 163) and that, as soon as he realized
the patrol car was behind him, he pulled off immediately into the Glory Days parking
lot. (Doc. # 59-1, at 163; Doc. # 55-19, at 1.)
Assuming arguendo that arguable reasonable suspicion existed for a DUI
traffic stop and to be thorough, the court will address the issue of whether there was
probable cause or arguable probable cause to arrest Mr. Ruda for DUI. There is no
talismanic test for assessing when a lawful stop turns into an arrest. “[T]he totality
of circumstances determines when an encounter has become too intrusive to be
classified as a seizure and has become an arrest, requiring probable cause.” Courson
v. McMillian, 939 F.2d 1479, 1492 (11th Cir. 1991).
The parties agree that Mr. Ruda was arrested; however, they disagree as to the
timing of the arrest. Mr. Ruda argues, without citation to authority, that the stop
escalated to an arrest without probable cause when Officer Boisvert brandished his
weapon as he approached Mr. Ruda. However, the Eleventh Circuit has “said many
times before that ‘the fact that police . . . draw their weapons does not, as a matter
of course, transform an investigatory stop into an arrest.’” Clark v. City of Atlanta,
Ga., 544 F. App’x 848, 854 (11th Cir. 2013) (quoting United States v. Blackman, 66
F.3d 1572, 1576 (11th Cir. 1995)); see also United States v. Gibbs, 917 F.3d 1289,
1297 (11th Cir. 2019) (“We have repeatedly held that the mere fact that an officer
drew his weapon does not transform an otherwise lawful stop into an unlawful
detention.”) (citations omitted); Jackson, 206 F.3d at 1166 (holding that a Terry stop
occurred when “the three police officers, with guns pointed, ordered with profanity
that Plaintiffs lie on the floor”); United States v. Roper, 702 F.2d 984, 987 (11th Cir.
1983) (“[A]n officer’s display of weapons does not necessarily convert an
investigatory stop into an arrest.”). Mr. Ruda has not demonstrated that this case
falls outside the usual “matter of course.” Clark, 544 F. App’x at 854.
Officer Boisvert says that, after he holstered his weapon and grabbed Mr.
Ruda’s arm, he detected the odor of alcohol on Mr. Ruda’s breath and, at that
moment, Mr. Ruda was under arrest for DUI. (Doc. # 63-6, at 251–53.) Even if
Officer Boisvert’s timing of the arrest is accepted, he would not be entitled to
qualified immunity at this stage. First, the timing of his statement that he smelled
alcohol on Mr. Ruda’s breath raises a credibility issue for the jury.
Boisvert’s incident report, which he prepared on the day of Mr. Ruda’s arrest, omits
the significant fact that he smelled alcohol on Mr. Ruda’s breath. (Doc. # 55-45,
Doc. # 63-6, at 111.) It was not until his deposition, which took place some fifteen
months after Mr. Ruda’s arrest, that Officer Boisvert recalls the odor of alcohol on
Second, as previously analyzed, all of Officer Boisvert’s observations of Mr.
Ruda’s erratic driving, which can be neither squarely rejected nor accepted by the
dashcam video, present genuine disputes of material fact for trial, and Officer
Boisvert has relied on these observations to corroborate his probable cause
determination. Third and relatedly, while in this circuit the smell of alcohol on a
driver supplies reasonable suspicion that the driver is driving under the influence of
alcohol, additional corroboration is required to establish probable cause for a DUI
arrest. See Miller v. Harget, 458 F.3d 1251, 1261 (11th Cir. 2006) (“[T]he smell of
alcohol was sufficient to give Officer Harget reasonable suspicion that Mr. Miller
had been driving under the influence of alcohol. As Officer Harget engaged in a
reasonable investigation, including requesting that Mr. Miller submit to a
breathalyzer test, Mr. Miller refused to cooperate. This refusal gave Officer Harget
probable cause to arrest Mr. Miller.”). Hence, the smell of alcohol alone would not
entitle Officer Boisvert to qualified immunity for a DUI arrest.
Fourth, even if it is assumed that Mr. Ruda’s driving behavior, as reported by
Officer Boisvert, justified the traffic stop under suspicion that Mr. Ruda might be
driving under the influence, Officer Boisvert did not conduct a reasonable
investigation of his suspicion. His investigation for a possible DUI was non-existent.
He did not attempt to ask Mr. Ruda a single question to discern whether Mr. Ruda
was unlawfully inebriated while driving.
He did not ask for his license or
registration. He did not conduct a field sobriety test or invite Mr. Ruda to take a
breathalyzer test. Rather, with his weapon drawn, he charged toward a suspect who
was standing by his vehicle with his hands raised and palms open and wrestled him
to the ground.
In sum, based on the evidence, construed in the light most favorable to Mr.
Ruda, no reasonable police officer could have believed that there was arguable
probable cause to arrest Mr. Ruda for DUI based only on Officer Boisvert’s whiff of
alcohol on Mr. Ruda’s breath. Qualified immunity cannot be resolved at the
summary judgment stage.
Based on the material factual disputes, Mr. Ruda also is not entitled to
summary judgment on the Fourth Amendment unlawful arrest claim against Officer
Officers Bettencourt and Geiger
Officers Bettencourt and Geiger, though, are entitled to qualified immunity
on the Fourth Amendment unlawful arrest claim. They did not participate in the
events leading up to the allegedly unlawful arrest of Mr. Ruda, and, on the facts of
this case, Mr. Ruda cites no clearly established law that would give Officers
Bettencourt and Geiger “fair warning” that they could be held liable for assisting
Officer Boisvert with the arrest. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950,
953 (11th Cir. 2003) (citation and internal quotation marks omitted).
Reasonable suspicion and probable cause are assessed based on the collective
knowledge of the officers involved and the totality of the circumstances, and that
knowledge does not have to be firsthand. See United States v. Acosta, 363 F.3d
1141, 1145 (11th Cir. 2004) (reasonable suspicion was based on a totality of the
circumstances from the collective knowledge of the officers involved in the stop);
United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016) (Probable cause is
based on the “facts and circumstances within the collective knowledge of the law
enforcement officials.”) (citation and internal quotation marks omitted); Hartsfield
v. Lemacks, 50 F.3d 950, 956 (11th Cir. 1995), as amended (June 14, 1995) (denying
qualified immunity to a deputy sheriff because he failed to take reasonable steps to
identify the proper residence for a search, but granting the assisting deputies
qualified immunity because “nothing in the record indicate[d] that these officers
acted unreasonably in following [the deputy sheriff’s] lead, or that they knew or
should have known that their conduct might result in a violation of the [plaintiffs’]
Fourth Amendment rights”). Furthermore, “[t]he fellow officer rule allows an
arresting officer to assume probable cause to arrest a suspect from information
supplied by other officers.” Windsor v. Eaves, 614 F. App’x 406, 410 (11th Cir.
2015) (quoting Terrell v. Smith, 668 F.3d 1244, 1252 (11th Cir. 2012)).
Officers Bettencourt and Geiger responded as backup for Officer Boisvert and
arrived on the scene at Glory Days as Officer Boisvert, with his weapon drawn, was
walking toward Mr. Ruda.
Under the circumstances of this case, Officers
Bettencourt and Geiger could reasonably rely on the police radio transmissions that
Officer Boisvert was pursuing and closing in on a DUI suspect and reasonably could
have believed that there was probable cause to arrest Mr. Ruda for DUI. (Doc. # 633, at 40.) Officer Bettencourt and Geiger did not have the benefit of time for a
debriefing from Officer Boisvert. They had to react on what information they knew
at the time and what they saw at the scene. Because reasonable officers arriving at
Glory Days as backup officers could have believed that there was probable cause to
arrest Mr. Ruda for DUI, Officer Bettencourt and Geiger are entitled to qualified
immunity on Mr. Ruda’s unlawful arrest claim.
See Duran v. Sirgedas, 240 F.
App’x 104, 116 (7th Cir. 2007) (holding that the officer who was not present at the
scene when the initial dispute began but arrived in response to a call for backup was
entitled to qualified immunity for false arrest; “a reasonable officer witnessing the
scene and seeing other officers move to arrest Gonzalo could believe that those
officers were acting on probable cause, and assist in effectuating the arrest,” even if
“the other officers may not have expressly told Officer Peslak that probable cause
existed . . . .”); Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997) (“[T]he actions
of a police officer acting in reliance on what proves to be the flawed conclusions of
a fellow police officer may be reasonable nonetheless and thus protected by the
doctrine of qualified immunity.”); Phelps v. City of New York, No. 04 CIV. 8570
(DLC), 2006 WL 1749528, at *3 (S.D.N.Y. June 27, 2006) (responding officer was
entitled to summary judgment for false arrest claims; “police officers called upon to
aid other officers in making an arrest are entitled to assume that the officers
requesting aid have acted properly”). Mr. Ruda has not pointed to any clearly
established law that would strip Officers Bettencourt and Geiger of qualified
immunity on the Fourth Amendment false arrest claim.
In sum, Officers Bettencourt and Geiger are entitled to qualified immunity on
the unlawful arrest claim because not every reasonable officer on the scene would
have believed that a constitutional violation had occurred—i.e., an unlawful arrest.
Therefore, they would not have known that it was unlawful to assist Officer Boisvert
in effectuating the arrest. Accordingly, Defendants’ motion for summary judgment
on the Fourth Amendment unlawful arrest claim against Officers Bettencourt and
Geiger on qualified immunity grounds is due to be granted.
Excessive Force in Effectuating an Arrest
In the Eleventh Circuit, “a claim that any force in an illegal stop or arrest is
excessive is subsumed in the illegal stop or arrest claim and is not a discrete
excessive force claim.” Alston, 954 F.3d at 1319–20 (citing Bashir v. Rockdale
Cnty., 445 F.3d 1323, 1331 (11th Cir. 2006)). Hence, Mr. Ruda cannot “support an
excessive force claim on the theory that any force is excessive if the underlying arrest
was illegitimate.” Id. He is correct, though, that if the jury finds his arrest is
unconstitutional and if qualified immunity is averted, “the damages recoverable on
[his] unlawful arrest claim [against Officer Boisvert] include damages suffered
because of the use of force in effecting the arrest.” Bashir v. Rockdale Cty., Ga.,
445 F.3d 1323, 1332 (11th Cir. 2006) (citation and internal quotation marks omitted)
(alterations added); (Doc. # 57, at 72–73.)
Mr. Ruda does not predicate his Fourth Amendment excessive force claim
“solely on allegations [that] the arresting officer lacked the power to make an arrest.”
Bashir, 445 F.3d at 1331 (citation omitted). He also contends that, even if his arrest
is found to be lawful, the amount of force used to effectuate the arrest was unlawful.
(Doc. # 57, at 53.) This claim “relates to the manner in which an arrest was carried
out, independent of whether law enforcement had the power to arrest.” Hadley v.
Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). The court, thus, turns to this
discrete claim of excessive force against Officers Boisvert, Bettencourt, and Geiger.
Officers Boisvert, Bettencourt, and Geiger
“The Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the plain right to be free from the use of excessive force in the course
of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). “Fourth
Amendment jurisprudence has 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.” Id.
In Hadley, the Eleventh Circuit delineated the following factors as “instructive
in determining whether an officer’s use of force was objectively reasonable,
including (1) the need for the application of force, (2) the relationship between the
need and the amount of force used, (3) the extent of the injury inflicted and,
(4) whether the force was applied in good faith or maliciously and sadistically.” 526
F.3d at 1329. Additional factors include “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.’” Lee,
284 F.3d at 1197 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Furthermore, because the Fourth Amendment’s excessive force standard
“established no bright line, qualified immunity applies unless application of the
standard would inevitably lead every reasonable officer in [defendant’s] position to
conclude the force was unlawful.” Post v. Fort Lauderdale, 7 F.3d 1552, 1559 (11th
Cir. 1993), modified on other grounds, 14 F.3d 583 (11th Cir. 1994). In the Eleventh
Circuit, it is clearly established that the “gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive force.” Hadley, 526 F.3d at 1330.
It is undisputed that, during the seventy-two second scrum to handcuff Mr.
Ruda, all three officers used force against him. Officer Boisvert employed “hard
and soft hand techniques,” including “hard palm strikes,” against Mr. Ruda. (Doc.
# 55, at 3.) Officer Geiger struck Mr. Ruda with his fists. (Doc. # 63-3, at 62.)
Officer Bettencourt deployed his taser twice on Mr. Ruda when he was “lying down
in the parking lot, face down.” (Doc. # 63-2, at 166); (see also Doc. # 63-2, at 167–
68 (testifying that “I took out my taser, I took the cartridge off of the taser, and I
drive stunned him in his . . . upper back area” in order to “get to his hands” and to
“immobilize those muscles” in the back and that, with the second drive stun, we
“were able to get his arm”).) Officer Bettencourt also “knee struck” Mr. Ruda once
and possibly twice. (Doc. # 63-2, at 103–04.)
Whether this level of force, which resulted in abrasions to Mr. Ruda’s face,
chest, and stomach and in a broken elbow, was excessive again depends upon
whether Mr. Ruda’s or Defendants’ version of events is credited.
According to the officers, they were involved in a dangerous, rapidly
escalating encounter, with a resistant arrestee whom they believed to be armed and
under the influence of alcohol or another substance. Officer Boisvert claims that
Mr. Ruda resisted: Mr. Ruda grabbed him in the groin, tried to pull Officer
Bettencourt’s “legs out from under him,” and refused to put his hands behind his
back. (Doc. # 63-6, at 234–35; Doc. # 55-3.)
Officer Bettencourt believed Mr.
Ruda was armed because Mr. Ruda jumped out of his truck “without being told to
do so,” he did not comply with the commands to get on the ground, and, during the
scrum, he kept reaching his hands “toward his waistband.” (Doc. # 63-2, at 119–
20.) Officer Bettencourt also suspected that Mr. Ruda was under the influence of
alcohol because “[h]is body odor was offensive with an alcoholic beverage, he was
slurring his speech . . . , and he was unsteady on his feet.” (Doc. # 63-2, at 198.)
Additionally, Officer Bettencourt opined that Mr. Ruda had “unusual strength,” and,
in his experience, “people who are usually unnecessarily strong are under the
influence of some narcotic.” (Doc. # 63-2, at 128.) Officer Geiger shared Officer
Bettencourt’s concerns that Mr. Ruda was armed. (See, e.g., Doc. # 63-71–72
(testifying that he was concerned that Mr. Ruda was armed because he was reaching
“towards his waistline”).) In sum, the officers contend that the application of force
was necessary because Mr. Ruda continuously failed to comply with their commands
and violently resisted the officers’ attempts to handcuff him.
Mr. Ruda offers a different picture. He attests that he offered no resistance
and that he never struck any of the officers. He contends that all of his “movements
and actions were all taken in an attempt to ward off their blows and assaults” and to
avoid being cut by the sharp gravel in the parking lot. (Doc. # 57, at 21.) Mr. Ruda
also emphasizes that, because the blaring sirens drowned out Officer Boisvert’s
commands, he immediately raised his hands over his head to show his submission.
He resisted initially being forced on the ground but only because he feared getting
cut from the sharp gravel in the parking lot. (Doc. # 55-19.)
On this record, the pertinent factors for measuring whether the use of force
was objectively reasonable weigh clearly in Mr. Ruda’s favor. First, although DUI
is a serious crime, there are significant factual disputes as to whether there were
grounds to stop and arrest Mr. Ruda for DUI. In other words, probable cause for the
arrest, at this stage, could be viewed as suspicious. Second, with all three officers
bent down and on top of Mr. Ruda, and with Mr. Ruda’s body largely obscured, it is
difficult to make out on the dashcam video whether Mr. Ruda was a resistant suspect
refusing to surrender his hands or whether the officers’ blows and tasing were
inflicted “maliciously and sadistically” on an unresisting suspect. Hadley, 526 F.3d
at 1329. Furthermore, on the question of resistance, the dashcam video also raises
issues of whether a reasonable officer would have considered whether Mr. Ruda
could even hear his initial commands over the multiple blaring sirens and whether
Officers Bettencourt and Geiger actually interfered with what Officer Boisvert was
trying to accomplish—getting Mr. Ruda face down on the ground. Third, Mr.
Ruda’s injuries were more than superficial; among other significant injuries, his
elbow was broken. Fourth, as to whether Mr. Ruda was an immediate threat, the
officers outnumbered Mr. Ruda three to one; Mr. Ruda was fully visible outside his
truck with raised empty hands (after which Officer Boisvert felt safe enough to
holster his firearm); and Mr. Ruda in fact was unarmed.
In short, the disputed material facts and the opposing but reasonable
inferences that can be derived from the evidence readily reveal that this is a classic
case requiring jury resolution of the factual disputes undergirding the excessive force
claim. Accordingly, the cross-motions on summary judgment will be denied on the
excessive force claim and the defense of qualified immunity.
State law Claims: State-Agent Immunity
Mr. Ruda does not move for summary judgment on his state law claims.
Defendants, though, move for summary judgment on grounds that State-agent
immunity defeats Mr. Ruda’s state law claims against them in “Counts III, IV, and
V of Plaintiff’s First Amended Complaint” (Doc. # 61, at 29), which encompass
claims for false imprisonment, false arrest, unlawful restraint of freedom, assault and
battery, and malicious prosecution. (Doc. # 50, at ¶¶ 31–38.)
The Alabama Supreme Court “has established a burden-shifting process when
a party raises the defense of State-agent immunity.” Ex parte Estate of Reynolds,
946 So. 2d 450, 452 (Ala. 2006) (citation and internal quotation marks omitted). “In
order to claim State-agent immunity, a State agent bears the burden of demonstrating
that the plaintiff’s claims arise from a function that would entitle the State agent to
immunity.” Id. (citations omitted). In this case, if Defendants “make such a
showing, the burden then shifts to [Mr. Ruda] to show that [Defendants] acted
willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.” Ex
parte Kennedy, 992 So. 2d 1276, 1282 (Ala. 2008) (citation and internal quotation
marks omitted). “One of the ways in which a plaintiff can show that a State agent
acted beyond his or her authority is by proffering evidence that the State agent failed
to discharge duties pursuant to detailed rules or regulations, such as those stated on
a checklist.’” Id. at 1282–83 (citation and internal quotation marks omitted).
Defendants have met their burden of showing that “they were engaged in lawenforcement functions” for which State-agent immunity applies. Id. at 1283. First,
the parties have stipulated that, “[o]n the night of March 29, 2018 and during the
morning hours of March 30, 2018 Defendants Boisvert, Bettencourt and Geiger, all
of whom were Phenix City police officers, were acting in the line and scope of their
duties as police officers and under color of state law in regard to their arrest of
Plaintiff Ruda.” (Doc. # 91 (Stipulated Facts).) Second, prior to entering into this
stipulation, Defendants argued, and Mr. Ruda did not counter their argument (see
Doc. # 65), that “Boisvert, Bettencourt, and Geiger were police officers whose duties
included the enforcement of criminal laws” and that “the conduct made the basis of
Plaintiff’s claims against them are based on their exercise of judgment in pursuing
and[/]or arresting Ruda.” (Doc. # 61, at 30.) The evidence supports Defendants’
uncontested argument. Namely, as already discussed, Officer Boisvert pursued and
arrested Mr. Ruda in order to enforce the criminal DUI laws of the state of Alabama,
and Officers Bettencourt and Geiger, in assisting with completing the arrest, also
were within “the line and scope of their law-enforcement duties.” Ex parte Kennedy,
992 So. 2d at 1283; see also Downing v. City of Dothan, 59 So. 3d 16, 20 (Ala. 2010)
(finding “no question” that defendant municipality’s “police officers were exercising
a discretionary function in deciding whether to arrest Farmer for driving under the
Based on the stipulations and evidence, the burden shifts to Mr. Ruda to show
that each Defendant “acted willfully, maliciously, fraudulently, in bad faith, or
beyond his . . . authority.” Ex parte Kennedy, 992 So. 2d at 1282 (internal quotation
marks and citation omitted). Mr. Ruda has failed to sustain his burden. In his brief
filed in opposition to Defendants’ motion for summary judgment (Doc. # 65), Mr.
Ruda focuses solely on Counts I and II, which are the § 1983 Fourth Amendment
claims. His brief is silent regarding the State-agent immunity issues. Mr. Ruda does
not address State-agent immunity or his burden to defeat it as to each officer and
each claim. There are three officers and five state law claims embedded in three
counts. Each officer’s conduct requires separate examination for each of the five
state law claims. Yet, Mr. Ruda’s brief does not set forth what is required to prove
each claim,9 include any analysis of State-agent immunity, or point to what evidence
Mr. Ruda contends defeats each officer’s entitlement to State-agent immunity as to
each claim. For these reasons, Defendants are entitled to summary judgment on the
state law claims, and these claims are due to be dismissed.
Mr. Ruda’s jury instructions also do not include proposed charges for each state law claim
(see Doc. # 96), and Mr. Ruda’s contentions in the pretrial order merely reference “state law
claims,” without elaboration (see Doc. # 85, at 3–4).
Based on the foregoing, it is ORDERED that Defendants’ motion for
summary judgment (Doc. # 58) is GRANTED in part and DENIED in part as
GRANTED on the basis of qualified immunity on Plaintiff’s § 1983
claims that Officers Bettencourt and Geiger violated his Fourth Amendment rights
prohibiting an unlawful arrest;
DENIED on Plaintiff’s § 1983 claim that Officer Boisvert violated his
Fourth Amendment rights prohibiting an unlawful arrest;
DENIED on Plaintiff’s § 1983 claims that Officers Boisvert,
Bettencourt, and Geiger violated his Fourth Amendment rights prohibiting excessive
force during the course of an arrest; and
GRANTED on the basis of State-agent immunity on all state law
It is further ORDERED that Plaintiff’s motion for partial summary judgment
(Doc. # 54) is DENIED.
DONE this 13th day of October, 2020.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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