McGlown v. Birmingham, City of et al

Filing 46

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 6/21/12. (KGE, )

FILED
2012 Jun-21 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HATTIE MCGLOWN, as guardian
of DANIEL MCGLOWN,

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Plaintiff,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

CIVIL ACTION NO.
10-AR-2326-S

MEMORANDUM OPINION
When Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012), was decided
and became the law of the Eleventh Circuit on February 27, 2012,
the already “iffy” chances of this plaintiff shrank to a virtual
zero.

Less than a month after Hoyt, its controlling principles

were reinforced in Doe v. Braddy, 673 F.3d 1313 (11th Cir. 2012).
Without the guidance of Hoyt, this court would have a real problem
deciding the motion for summary judgment filed in the above-styled
case

by

defendants,

City

of

Birmingham

(“City”),

(“Roper”), and Anthony Calloway (“Calloway”).

A.C.

Roper

Hoyt is the latest

and most clearly binding expression by the Eleventh Circuit on the
subject hereinafter being addressed, namely, “qualified immunity”
in the context of alleged excessive force in violation of the
Fourth Amendment.
INTRODUCTION
At all times relevant, Roper was chief of police of City, a
municipal corporation.

At all times relevant, Calloway was a

police officer of City.

All claims arise out of an incident that

occurred on August 29, 2008, in which Calloway, while performing
his discretionary duties and acting in the line and scope of his
employment, used mace during the arrest of Daniel McGlown (“D.
McGlown”), who is a mentally disabled adult, but who, at the time,
had no outward manifestation of being less than a normal black male
adult.

D. McGlown’s legal guardian, Hattie McGlown (“H. McGlown”

or “plaintiff”) is the plaintiff here.

The parties, in their

pleadings, motions and briefs, have sometimes erroneously described
H. McGlown as the “guardian ad litem” of D. McGlown, and sometimes
erroneously described her as the “attorney-in-fact” for D. McGlown.
The court will overlook these mistakes.

H. McGlown is, in fact,

the duly appointed guardian of D. McGlown, and as such she has
standing to complain on behalf of D. McGlown in this court.
In her complaint, H. McGlown primarily invokes 42 U.S.C. §
1983, claiming: (1) that Calloway, acting as an individual under
color of state law, wrongfully arrested D. McGlown after using
excessive force upon him during his arrest; (2) that Roper failed
properly to train Calloway on how to perform his duties under
circumstances like those hereinafter described, and that Roper’s
failure to do so constituted a § 1983 violation by Roper; and (3)
that City had a policy or practice of arresting and/or abusing
mentally disabled people without probable cause and without first
investigating their mental status.

2

Plaintiff has also invoked 42

U.S.C. §
theories

1985,
of

charging

liability.

a

conspiracy,

These

and

has

alternatives

pursued other

either

have

been

abandoned or are without colorable merit and will not be discussed.
STANDARD UNDER RULE 56, F.R.Civ.P.
In considering a motion for summary judgment, the court must
give the non-movant, here H. McGlown, the benefit of the doubt on
any dispute of material fact, including all inferences that can be
drawn from the evidence in non-movant’s favor.

In other words, a

party is entitled to summary judgment only if the facts in movant’s
favor are undisputed and dispositive.
of

the

evidence,

which,

in

this

The court must consider all

case,

does

not

include

the

affidavit of Casey Clark, previously stricken by the court on
defendants’ motion.
CITY OF BIRMINGHAM
City, as a municipal corporation, cannot be sued under § 1983
except for constitutional torts arising out of a City custom or
practice that allows or ratifies the conduct being complained of.
Monell v. Department of Social Services of City of New York, 436
U.S. 658, 690 (1978).
the

most

hopeful

Plaintiff has offered no evidence, even by

inference,

that

liability against City under Monell.

would

support

a

theory

of

The mere facts: (1) that D.

McGlown was maced while being arrested for allegedly disturbing the
peace; (2) that he was incarcerated; and (3) that his case was
later nolle prossed, are not enough, in and of themselves, to
3

support a jury’s finding of the existence of an unconstitutional
custom or practice by City.

It is undoubtedly true that City had

a custom or practice of dispatching its police officers to respond
to various emergencies, such as a claim of a theft in progress, as
in this case, but such a custom or practice crosses no bright line,
or even a fuzzy line, to reach the level of a constitutional tort.
There was no proof that City had ever before this incident been
called upon to establish protocol telling police officers how to
respond to a unique situation like this one.
POLICE CHIEF ROPER
H. McGlown concedes that Roper, the ultimate supervisor of
Calloway, cannot be liable under a theory of respondeat superior
for

Calloway’s

conduct,

unless

that

conduct

was

both

unconstitutional and was expressly directed or participated in by
Roper.

There is no proof, except by the fact that Roper was chief

at the time of this arrest, of the degree of responsibility Roper
had in training Calloway, much less that City’s training program
was so grossly deficient as to be laid at Roper’s feet.

Exactly

what a better training program could have done to help Calloway
under the circumstances he faced on August 29, 2008, is anybody’s
guess.

Roper was not personally involved in the incident.

He

found out about it when he was sued.
ANTHONY CALLOWAY, ARRESTING OFFICER
If plaintiff has a legitimate § 1983 target, it is Calloway,

4

the arresting officer.

Calloway has interposed as a defense the

doctrine of “qualified immunity”, a defense that is not available
to City, and not needed by Roper.
SIMILARITIES BETWEEN HOYT AND MCGLOWN
No two sets of circumstances are identical, but where the
similarities greatly outweigh the differences between a case under
consideration and an earlier binding case, distinctions between the
two become less important.
are two peas-in-a-pod.
their

essential

Hoyt and McGlown

It would take a crowbar to separate them in

facts.

Calloway’s favor.

Precedent controls.

In

fact,

the

distinctions

tilt

in

In other words, H. McGlown has not produced a

distinction that makes a difference.

A fair comparison of the

pertinent facts in Hoyt and in McGlown makes Hoyt dispositive of
McGlown.

In Hoyt, the Eleventh Circuit found that the arresting

officers enjoyed qualified immunity, despite the holding of the
trial court that the officers were not immune.

In the instant

case, Calloway, like the defendants in Hoyt, seeks protection under
qualified immunity.
The following rendition of the relevant evidence in Hoyt and
McGlown may not be in the order of their relative importance, but
the similarities place McGlown so close to Hoyt, that Hoyt is
controlling.
Comparable Fact Number One
In Hoyt, the only eye witnesses to the arrest and to the
5

applications of force were the two defendant police officers
themselves.

The victim died and was therefore not available as a

witness whose recollection would be important under a Rule 56
examination.
In McGlown, the only eye witness is Calloway, the defendant
police officer.

The victim, although living, has not testified,

even by affidavit, apparently because he is not competent to do so.
Comparable Fact Number Two
In Hoyt, the first police officer on the scene had been called
by a radio dispatcher, who sent him to investigate a man who was
acting delusional and who had called 911.

The victim was never

charged with a crime, although he might have been guilty of
disturbing the peace, that is, if he had known what he was saying
and doing.
In McGlown, Calloway was informed by his dispatcher that a
complaint had just been received from the Auto Zone at 6661 First
Avenue North, Birmingham, Alabama, that a theft was in progress.
The Auto Zone manager had reported that a black male wearing a
bright purple shirt, dark baggy pants, and a hat had walked out of
his store with a sander/polisher in his pants.

On his way to the

site, Calloway noticed a black male outside of a Conoco station at
6820 First Avenue North, Birmingham, Alabama. Calloway thought the
man

roughly

dispatcher.

fit

the

description

he

had

been

given

by

the

Calloway went on to the Auto Zone store not knowing

6

exactly what to expect.

The manager confirmed the description of

the thief.
Comparable Fact Number Three
In Hoyt, the officers were uniformed.

They clearly were

identifiable as police officers.
In McGlown, the investigating officer was in uniform and was
clearly identified as a police officer.
Comparable Fact Number Four
In Hoyt, the first responding officer knew the victim by
sight, having dealt with him before.
problem

identifying

the

person

The officer therefore had no
being

investigated.

From

experience, the officer could anticipate bizarre behavior like that
he observed when he arrived.

He called for backup because of a

logically perceived need to subdue the victim, who was obviously
disturbed.

The victim was alternatively aggressive and compliant.

In McGlown, there was no backup officer to assist Calloway.
The victim was not known by Calloway, except by the called-in
description that did not perfectly fit the victim, but that a
reasonably trained police officer on an emergency call might
reasonably conclude described D. McGlown, the man he had previously
seen two blocks away.

A crime of theft had been committed nearby,

and the officer was on the lookout for a person with the Auto Zone
manager’s description.

In McGlown, as in Hoyt, the victim was

mentally incapacitated.

Both situations presented a dilemma for
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any police officer.
Comparable Fact Number Five
In Hoyt, the police officers had probable cause to subdue and
to handcuff the victim.
In

McGlown,

Calloway

had

probable

cause

to

question

D.

McGlown, who blurted out “you’ve got the wrong man” even before any
questions were asked.

To an investigating officer, this response

could reasonably be construed as an indication either that the
victim was lying, or that he knew the thief, or both, thus calling
for interrogation. Several other people were observing the episode
at Conoco.
D. McGlown.

There is nothing to indicate they knew or did not know
In Hoyt, there were no bystanders, persons who might

need police protection at an arrest scene.

Thus, as distinguished

from McGlown, Hoyt presented no need to maintain crowd control or
to assess risk to persons other than the officers themselves, and
to the victim.

D. McGlown jerked or pulled away from Calloway

during the incident. There is nothing to suggest that Calloway was
engaging in sadistic pleasure, or that he realized that D. McGlown
was less than capable of answering pertinent questions.

The

“pulling away” by D. McGlown suggested the possibility of flight,
and an objectively reasonable officer might well interpret it as
such.

D.

McGlown

obviously recognized Calloway as

a police

officer. His behavior, plus the crowd, could easily have suggested
a need to maintain control over D. McGlown in a volatile situation.
8

Comparable Fact Number Six
In Hoyt, the officers used their tasers as many as eighteen
times (using the number of deployments or downloads indicated by
the police records and referred to by the Eleventh Circuit).

The

officers themselves readily admitted that they used their tasers
more than once, just as Calloway admits he used mace one time.

In

Hoyt, the officers disagreed with each other on who used tasers, in
what order, how many times, and in what mode.

There is nothing in

the police headquarters’ records in Hoyt to reflect the activation
download indicating exactly how many times the tasers were employed
in the probe mode, and how many in the dry stun mode, but the
Eleventh Circuit

found

that

because

there

was

no

witness

to

contradict the officers, the probe mode was only used once as they
testified.

In other words, the officers’ statements on this

crucial point were taken as true.

A taser in the probe mode is

powerful, hurtful, and serious, and is not often used during an
arrest.

The degree of force applied in Hoyt was found by the

Eleventh Circuit to be reasonable under the circumstances, although
whatever the level of force, it caused or contributed to the death
of the victim.

There was no evidence in Hoyt of an autopsy of the

victim that, if it had been undertaken, might have shown the actual
number of probes used.

Neither a taser probe, nor a taser stun,

nor a discharge of mace, nor a discharge of pepper spray, is
pleasant for its target, but the taser is the most unpleasant and
9

dangerous of these control devices.
In McGlown, the much less dangerous police weapon, mace, was
employed.

Only

one

application

was

made

during

the

arrest.

Although the mace resulted in pain, and in a relatively short
incarceration without medical attention except for treatment for D.
McGlown’s reaction to the mace, it did not result in permanent
injury.

There

is

nothing

unusual

or

unreasonable

about

an

officer’s undertaking to question a person while the officer is
investigating a very recently committed nearby criminal act.

D.

McGlown “resisted”, although he obviously did so in a way that did
not call for a taser if Calloway had a taser.
Comparable Fact Number Seven
In Hoyt, there were some discrepancies in the testimonies of
the arresting officers, but none of them were found by the Eleventh
Circuit to be severe enough to call for questioning the credibility
of the officers.
party

witnesses

As stated, there were no independent or thirdto

rebut

versions of the facts.

the

officers’

somewhat

inconsistent

The Eleventh Circuit was able to reconcile

any such differences in favor of the defendants.
In

McGlown,

Calloway’s

early

statement

to

his

police

department investigator does not jive in all respects with his much
later responses to deposition questions, but the differences are
immaterial, or are certainly less material than those in Hoyt.
This court has no problem finding Calloway to be more credible in

10

his recollection of the pertinent facts than no witness at all.
Comparable Fact Number Eight
In Hoyt, the victim was handcuffed during his arrest. This is
customary police practice, and does not constitute excessive force
unless the cuffs are deliberately made so tight as to cause injury.
The officers in Hoyt searched the victim’s home without a warrant
in order to secure the premises before they departed with the
handcuffed and groggy or unconscious victim.

How long this search

took before the victim was taken to the station is not reflected in
the record.

The victim was administered CPR when no pulse was

detected, but the victim died.
In McGlown, the victim, as in Hoyt, was handcuffed during the
arrest.

However, there is no evidence that a search of his person

was conducted.

The use of handcuffs during an arrest is customary

police practice and does not constitute excessive force unless the
cuffs are made so tight as to cause injury.
THE ISSUE
There are many more similarities between Hoyt and McGlown than
there are dissimilarities. Both fact situations called for an
exercise
Plaintiff,

of
H.

police

judgment

McGlown,

and

under

her

very

stressful

circumstances.

competent

counsel,

valiantly attempted to distinguish Hoyt from McGlown.
primarily

employed

pre-Hoyt

cases,

resemblance to McGlown, and some not.
11

some

of

them

have

They have
bearing

a

The court in Hoyt did not

need to hold, and did not hold, that the officers there used
perfect judgment.

In the heat of battle, and not by hindsight, a

police officer can act “reasonably”, while still being accused of
exercising “poor judgment”. A § 1983 violation and “poor judgment”
are not the same thing.

Not every police officer would have

reacted in precisely the same way Calloway did, but well-trained
police officers are human beings, and they have an important,
dangerous and difficult job to do.

This court is not prepared to

say that Calloway used either good judgment or bad judgment,
because that is not the question before the court any more than it
was in Hoyt.
ANALYSIS
This court has endeavored, just as H. McGlown has endeavored,
to find a meaningful distinction that would take her case out of
the Hoyt handcuffs, but this court has been unable to find such a
distinction.
Hoyt is the most recent § 1983 case by the Eleventh Circuit
dealing with an alleged use of excessive force.

It is the latest

in a long line of cases that continue to illustrate the expansive
embrace of “qualified immunity”.

The Hoyt court could well be

describing the instant case when it said: “In this case, there is
no precedent that staked out a bright line.”
(emphasis

added).

Also,

the

“balancing

672 F.3d 972, 978.
of

interests”

was

recognized by the Eleventh Circuit in Hoyt as a serious factor to
12

be considered.

In the balancing act before this court, this court

topples in favor of Calloway.

Hoyt may not have created a bright

line for Calloway or for this court, but it teaches a meaningful
lesson.

It is a rare case today in which a § 1983 plaintiff,

although he is given the benefit of the doubt under Rule 56, can
overcome the somewhat incongruous and competing, but ever present,
“benefit of

the

doubt”

due

law

enforcement

officers

under

a

“qualified immunity” analysis of their actions.
If further proof of the dispositive effect of Hoyt on McGlown
were needed, both this court and the Eleventh Circuit are bound by
the June 4, 2012 opinion of the Supreme Court of the United States
in Reichle v. Howards, ____ U.S. ____, 132 S.Ct. 2088 (2012), which
was not available to the parties when they filed their briefs in
this case.

Reichle is more distinguishable from McGlown on its

facts than is Hoyt, but it reaffirms and expands the breadth and
force of the defense of “qualified immunity”, a doctrine expressly
designed to protect law enforcement officials from suit, unless the
performance of the act complained of, is, by unequivocal and well
understood precedent, so obviously beyond the constitutional pale,
as to stop any reasonable law enforcement officer in his or her
tracks.

Reichle requires that a “clearly established standard” be

proven by the plaintiff, and that the said standard was violated
before the plaintiff can reach a trial on the merits.
cannot

find

any

“clearly

established

13

standard”

This court

that

Calloway

violated.

This

court

shares

H.

McGlown’s

feeling

that

this

situation could have been handled better, but this court cannot say
how exactly it should have been handled.

A police officer cannot

pause to reflect upon all of the alternatives that might be
effective, but that might expose him or her to § 1983 liability.
Walking on eggshells can be dangerous.
In Florence v. Board of Chosen Freeholders, ____ U.S. ____,
132 S.Ct. 1510 (2012), decided shortly before Reichle, the Supreme
Court predicted Reichle by emphasizing the “risk” factor inherent
in a decision whether to detain or not to detain a person when law
enforcement officials, operating under volatile conditions, have
competing pulls upon them.

All risk cannot be eliminated while

persons are discharging their duties as law enforcement officials.
It is lamentable that Calloway, Roper, and/or City did not try
to explain to McGlown’s family why Calloway did what he did on
August 29, 2008, and to apologize for any harm done.

This may be

deplorable, but the court knows it is impossible in today’s world
to expect an apology for an act that the actor may thereafter be
called upon to defend in court.

This is the world we live in.

CONCLUSION
For the foregoing reasons, the motions of the defendants for
summary judgment will be granted by separate order.

14

DONE this 21st day of June, 2012.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

15