McGlown v. Birmingham, City of et al
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 6/21/12. (KGE, )
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
HATTIE MCGLOWN, as guardian
of DANIEL MCGLOWN,
CITY OF BIRMINGHAM, et al.,
CIVIL ACTION NO.
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
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
(“Roper”), and Anthony Calloway (“Calloway”).
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
At all times relevant, Roper was chief of police of City, a
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
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.
Plaintiff has also invoked 42
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.
The court must consider all
affidavit of Casey Clark, previously stricken by the court on
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).
Plaintiff has offered no evidence, even by
liability against City under Monell.
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
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
unconstitutional and was expressly directed or participated in by
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.
what a better training program could have done to help Calloway
under the circumstances he faced on August 29, 2008, is anybody’s
Roper was not personally involved in the incident.
found out about it when he was sued.
ANTHONY CALLOWAY, ARRESTING OFFICER
If plaintiff has a legitimate § 1983 target, it is Calloway,
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.
Hoyt and McGlown
It would take a crowbar to separate them 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
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
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
Comparable Fact Number One
In Hoyt, the only eye witnesses to the arrest and to the
applications of force were the two defendant police officers
The victim died and was therefore not available as a
witness whose recollection would be important under a Rule 56
In McGlown, the only eye witness is Calloway, the defendant
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
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
Calloway went on to the Auto Zone store not knowing
exactly what to expect.
The manager confirmed the description of
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.
The officer therefore had no
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
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
In McGlown, as in Hoyt, the victim was
Both situations presented a dilemma for
any police officer.
Comparable Fact Number Five
In Hoyt, the police officers had probable cause to subdue and
to handcuff the victim.
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
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.
“pulling away” by D. McGlown suggested the possibility of flight,
and an objectively reasonable officer might well interpret it as
obviously recognized Calloway as
officer. His behavior, plus the crowd, could easily have suggested
a need to maintain control over D. McGlown in a volatile situation.
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).
officers themselves readily admitted that they used their tasers
more than once, just as Calloway admits he used mace one time.
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
contradict the officers, the probe mode was only used once as they
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
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
dangerous of these control devices.
In McGlown, the much less dangerous police weapon, mace, was
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
officer’s undertaking to question a person while the officer is
investigating a very recently committed nearby criminal act.
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.
As stated, there were no independent or thirdto
versions of the facts.
The Eleventh Circuit was able to reconcile
any such differences in favor of the defendants.
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
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 victim was administered CPR when no pulse was
detected, but the victim died.
In McGlown, the victim, as in Hoyt, was handcuffed during the
However, there is no evidence that a search of his person
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.
There are many more similarities between Hoyt and McGlown than
there are dissimilarities. Both fact situations called for an
valiantly attempted to distinguish Hoyt from McGlown.
resemblance to McGlown, and some not.
The court in Hoyt did not
need to hold, and did not hold, that the officers there used
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.
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
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.”
672 F.3d 972, 978.
recognized by the Eleventh Circuit in Hoyt as a serious factor to
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
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,
“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
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
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.
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.
For the foregoing reasons, the motions of the defendants for
summary judgment will be granted by separate order.
DONE this 21st day of June, 2012.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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