Nevels et al v. City of Birmingham
MEMORANDUM OPINION re 41 Motion for Summary Judgment. Plffs' 45 MOTION to Strike Affidavits in Support of Defendants' Motion for Summary Judgment is DENIED. Signed by Judge Abdul K Kallon on 11/4/2015. (YMB)
2015 Nov-05 AM 07:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BERNADINE NEVELS, et al.,
CITY OF BIRMINGHAM, et al.,
Civil Action Number
Bernadine Nevels (“Bernadine”), Flarenzell Nevels (“Flarenzell”), and
Wendell Nevels (“Wendell”) (collectively “Plaintiffs”) bring this case against
Officers William Sipes (“Sipes”), Christopher R. Hays (“Hays”), Demarius
Jackson (“Jackson”), and Henry E. Higgins III (“Higgins”) (collectively
“Officers”), as well as Birmingham Police Department Chief A.C. Roper (“Chief
Roper”) and the City of Birmingham (“City”) (collectively “Defendants”). Doc.
17. Plaintiffs claim that the Officers, operating in their individual and official
capacities, subjected them to unreasonable search and seizure and excessive force
in violation of the Fourth, Fifth, and Fourteenth Amendments and 42 U.S.C. §
1983, and that Chief Roper and the City had implemented a custom or practice of
permitting such unconstitutional actions. Id. Plaintiffs accuse all Defendants of
violating Alabama common law by committing the torts of assault and battery,
Page 1 of 42
false light, and invasion of privacy, and they additionally accuse Chief Roper and
the City of negligent training and supervision. Id. Defendants assert a qualified
immunity defense under § 1983 and state-agent immunity defense under ALA.
CODE § 6-5-338 (1975) and now move for summary judgment. Doc. 41. Their
motion is fully briefed and ripe for review. Docs. 42, 46, and 47. Based on a
review of the evidence and the law, except as to the claims against Sipes in Counts
I and III related to the initial encounter with Flarenzell, the motion is due to be
STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” To support
a summary judgment motion, the parties must cite to “particular parts of materials
Plaintiffs have also filed a motion to strike affidavits that Defendants submitted in support of
their motion for summary judgment. Doc. 45. Because striking an affidavit under the sham
affidavit doctrine requires an “inherent inconsistency” between the affidavit and the prior
testimony, the court DENIES the motion insofar as it moves to strike Sipes’s affidavit regarding
Flarenzell’s hands, as Sipes’s affidavit does not directly conflict with his deposition testimony.
Van T. Junkins & Assocs. v. U.S. Indus., Inc., 736 F.2d 656, 658 (11th Cir. 1984). The court did
not reach the question of whether the altercation between Flarenzell and Sipes was excessive, so
to the extent the motion addresses Sipes’s testimony on those issues it is DENIED. Because the
court did not rely upon Sipes’s testimony regarding whether there was a crowd in front of the
Nevels’s house or whether the Nevels family members were using profanity, that motion as it
pertains to these grounds is DENIED. Additionally, Plaintiffs move to strike Defendants’
statements regarding their culpability as to the constitutional, state, and qualified immunity
claims on the basis that they are overly conclusory. The court DENIES this aspect of the motion
because the statements at issue do not ultimately change the court’s analysis.
Page 2 of 42
in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to
“go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (citation and internal quotation marks omitted). A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a court is not
Page 3 of 42
required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Furthermore, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
The plaintiffs in this case are a mother (Bernadine) and her sons (Flarenzell
and Wendell). Doc. 42-9 at 5. The Officers—Sipes, Hays, Higgins, and Jackson—
were police officers for the Birmingham Police Department (“BPD”) during the
relevant period. Docs. 42-2 at 2-3; 42-6 at 2-3; 42-4 at 2-3; 42-3 at 2-3.
A. Sipes’s Stop of Flarenzell
On the afternoon of December 22, 2011, Sipes was patrolling Beat 427, a
high crime neighborhood that experiences a number of burglaries, especially
during the Christmas holiday. Doc. 42-19 at 6, 12. While driving on Pearson
Avenue, Sipes saw Flarenzell and Isaac Bolden (“Bolden”) crossing the street. Id.
Page 4 of 42
at 7. According to Sipes, the two were “walking towards the direction of the
CITGO [gas station],” a popular place for drug deals and, at that time, the location
of a two-car accident. Id. at 7-8, 9. Because Flarenzell and Bolden had not engaged
in any suspicious conduct, Sipes drove past them and around a curve, where he lost
visual contact with the two men for about one minute. Id. at 8. When Sipes turned
and returned to the area by the CITGO, he saw the two men “just standing there
looking in the direction of the CITGO” towards the wreck. Id. at 8, 9.
Sipes’s suspicions were aroused because Flarenzell and Bolden were “kind
of standing there near a stop sign.” Id. at 9-10. In his deposition, Sipes explained
his decision to approach Flarenzell and Bolden as follows:
Q: What was—why did you stop?
[Sipes]: At that point, you know, my—it made me a little suspicious that,
you know, they had gone to the store—because like I said, when I first saw
them I figured, hey, they’re going to the store.
Q: Because, I mean, there a lot of people that go to the store—
[Sipes]: Exactly. Yeah.
Q: —in that neighborhood; right?
[Sipes]: Exactly. So that—that was not out of the ordinary. So when I drove
past the second time and they were standing across from the store that kind
of raised my suspicions just due to the—to describe the CITGO it’s—you
have a lot of—you know, I’ve made narcotics arrests. I’ve worked
shootings. There’s been drug raids actually on the—
Q: On the premises?
[Sipes]: Actually on the CITGO itself.
Page 5 of 42
Q: Ok. So you suspected that there was some sort of narcotic activity
[Sipes]: I’d say possible criminal activity.
Q: You had a hunch?
Id. at 10. Additionally, Sipes noted that because he “d[idn’t] remember seeing
anything in their hands that would say they had purchased anything from the
store,” he suspected they may have purchased narcotics, doc. 42-21 at 6-7, and
decided to conduct a “field interview,” doc. 42-19 at 10-11.
Flarenzell testified that he and Bolden came to the scene from Bernadine’s
home because they heard a “loud crash” and wanted to see if anyone was hurt.
Doc. 42-8 at 10-11. The accident had attracted as many as a dozen concerned
pedestrians, and a police officer was at the scene processing the wreck. Id. at 1011. While watching the aftermath of the accident, Flarenzell noticed that a different
police officer, later identified as Sipes, was looking at them. Id. at 10-11. Because
Flarenzell “didn’t see [Sipes] look at [anybody] else,” he grew concerned that
Sipes “look[ed] like he want[ed] to stop and mess with [them],” so he and Bolden
Later in his deposition, Sipes added:
Just a suspicion. And I won’t even say narcotic. It was just—you know, that
area—or that gas station is just a hub for, like I said, anywhere from shootings to
narcotics. . . . But what got my suspicion was when they went to the store—I can’t
remember if they purchased anything—and then walked across the street and then
just stayed there looking at the store. . . . I don’t know if they went to the store. I
just know they were on the store’s property.
Doc. 42-19 at 12.
Page 6 of 42
turned to return to Bernadine’s house. Id.at 11. Sipes approached the two shortly
thereafter. Doc. 42-9 at 1.
The events that transpired next are in dispute. Sipes states that he
approached Flarenzell and Bolden and asked for permission to speak with them,
which Bolden granted. Doc. 42-19 at 10-11. Flarenzell purportedly did not respond
and instead stood still.3 Id. at 10; doc. 42-20 at 1. Sipes decided to pat Flarenzell
down because Flarenzell was “nervous when [Sipes] was walking up to him, with
his hands in his pockets.”4 Doc. 42-20 at 1. Apparently, Flarenzell’s nervousness
was unusual because citizens living in Beat 427 interacted frequently with police.
Id. Sipes also “became suspicious of Flarenzell . . . due to his behavior,” in part,
Sipes claims that Bolden gave him permission to talk to him, doc. 54 at 11, 12, and that he
interpreted assent from Flarenzell’s silence to his question: “[H]e didn’t do a verbal, but, like I
said, the body language—you know, you’ll kind of know with body language. He didn’t say. He
kind of just stood there,” docs. 42-19 at 12; 42-20 at 1.
Sipes’s deposition testimony regarding Flarenzell’s hands differs from his affidavit and his
police report, in which Sipes claims that Flarenzell’s hands were moving inside his pockets.
Docs. 42-2 at 5; 42-14 at 6. In his deposition, Sipes never included Flarenzell’s hands as a reason
for his stop or frisk. Docs. 42-19 at 10; 42-20 at 1; 42-21 at 6. Sipes had the opportunity to
review his police report—which did note that Flarenzell’s hands were moving—during his
deposition, doc. 41-21 at 4, and he still neglected to include this fact in his explanation for his
decision to search Flarenzell. By Defendants’ own admission, “any variations of testimony or
instances of failed memory go to the weight and credibility of the evidence.” Doc. 47 at 2
(referencing Stephens v. Broward Sherriff’s Office, 84 F. Supp. 3d 1327, 1332 n.1 (S.D. Fla.
2014)). Because on summary judgment the court is prohibited from making credibility
judgments or weighing evidence, whether Flarenzell’s hands were moving constitutes a triable
issue of fact for a jury to decide. See Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.
1986) (“A definite distinction must be made between discrepancies which create transparent
sham[ affidavits] and discrepancies which create an issue of credibility or go to the weight of the
Page 7 of 42
because when he asked Flarenzell if there was anything in his pockets, “[h]e did
not answer which further increased [Sipe’s] suspicion.” Doc. 42-2 at 5.
To no surprise, Flarenzell paints a different picture. Allegedly, Sipes “started
walking to [him] like real fast,” stating, “I need to search y’all and ask y’all some
questions. I’ve been hearing about some break-ins.” Doc. 42-9 at 1. Flarenzell
claims that he told Sipes that Sipes could not search him because “[he] ha[dn’t]
d[one] [any]thing,” and that “[Sipes] kept walking towards [him] and grabbed
[him] by [his] shorts . . . [and then] by [his] shirt.” Id. Flarenzell “tried to get away
because [he] was so scared,” but “[Sipes] ripped [his] shirt open and grabbed [him]
by [his] hair . . . punched [him] in the face, pulled [his] hair out and [m]aced
[him].” 5 Id.
Because the mace was “not effective,” Sipes turned next to his baton, but it
slipped from his hand before he could use it. Doc. 42-20 at 4. As Flarenzell stood
up, Sipes tried unsuccessfully to restrain him by grabbing his torn shirt. Doc. 42-9
at 2. Flarenzell fled to Bernadine’s house, id. at 2-3, with Sipes chasing him on
foot, and calling for backup. Docs. 42-3 at 4-5; 42-4 at 4-5; 42-6 at 4; 42-20 at 4-5.
Sipes maintains that he walked behind Flarenzell and, because Flarenzell’s hands were in his
pockets, grabbed Flarenzell’s wrists to “pull [Flarenzell’s] hands out” of his pockets. Doc. 42-20
at 2. When Sipes held Flarenzell’s wrists, “[a]t that point, [Flarenzell] started resisting . . . it was
more of a try to get away . . . initially.” Id. The altercation escalated from there.
Page 8 of 42
B. Bernadine’s First Encounter with the Police
Sipes approached Bernadine’s house with his gun drawn, and was “bamming
on the [front] door” and demanding with profanity-laced language that Flarenzell
exit the house. Doc. 42-9 at 6, 9. Shortly thereafter, more officers arrived and
surrounded the house. Id. When officers Jackson, Higgins, and Hays arrived, Sipes
relayed that he attempted a “field interview” and that, during the pat down,
Flarenzell resisted and fled. Docs. 42-2 at 7; 42-20 at 9. As they attempted to
secure the scene and apprehend Flarenzell, the officers noticed a crowd of
neighbors gathering in the vicinity. Doc. 42-3 at 4-5; 42-4 at 4-5; 42-6 at 5.
At some point, Bernadine stepped onto the front porch to talk to the officers.
Doc. 42-31 at 1. However, rather than answering her questions, the officers
directed a barrage of epithets at her: “F[uck] you. F[uck] you. I’m calling . . . DHR
to get your children. You ain’t going to have your children. We’ll burn this so and
so down.” Doc. 42-32 at 2. Also, a female police officer began shoving Bernadine
“forcefully” towards a patrol car, saying, “I want you to get in the car. You get in
the car.” Id. After initially refusing and demanding to know “what [was] going
on,” Bernadine eventually agreed to sit in the car and requested to speak to the
officer in charge. Id. Eventually, Hays, a BPD sergeant, arrived and spoke with
Bernadine. Doc. 42-31 at 3. Hays informed Bernadine that she needed to convince
Flarenzell to turn himself in because there was “no way around” his getting
Page 9 of 42
arrested. Id. at 5. Bernadine agreed to comply, but first used the encounter to
inform Hays that the officers were “off the chain” and behaving “very
unprofessional[ly].” Id. Once inside the house, Bernadine spoke with her lawyer,
and convinced Flarenzell to turn himself in. Id.
C. Flarenzell’s Arrest
Officers Hays, Higgins, and Jackson were on the porch when Flarenzell
exited the house. Docs. 42-3 at 6; 42-4 at 6; 42-6 at 7. As soon as Bernadine
opened the door, “the police slammed [her] door open, grabbed Flarenzell, and
pulled him out. And one of [the officers] got his hand around his neck[ and] slung
him down on the porch . . . .” Doc. 42-31 at 6. According to Flarenzell:
I’m thinking they’re just going to put my hands behind my back and put me
in handcuffs. The biggest [officer] out there like jumped on my back, and it
was three of them on me. And they [were] like put your hands behind your
back, but my hands [were] behind my back. And he was choking me. And I
was down there for a long time. . . . I put my hands behind my back. He was
still choking me. I was telling him I couldn’t breathe, but I couldn’t talk loud
enough because he was choking me. They put my—they put my hands in
handcuffs and grabbed me.
Id. at 2. Then, “two [officers] took [Flarenzell] to the car, and they slung [him] on
the trunk,” and then another “pushed [him] in . . . the backseat” of the police car.
Id. at 2-3. Allegedly, the Officers pulled multiple dreadlocks pulled from
Flarenzell’s head during the encounter. Docs. 42-17 at 2; 42-18 at 2; 42-18 at 5.
Ultimately, Flarenzell pleaded guilty to disorderly conduct. Doc. 42-16 at 4.
Page 10 of 42
The officers dispute Flarenzell’s version of the arrest, and maintain that
Flarenzell “lunged toward” them when he exited the house. Docs. 42-3 at 7; 42-4
at 6; 42-6 at 7. Moreover, when they took Flarenzell to the ground, he “continued
to resist by kicking and yelling profanity” until they handcuffed him. Docs. 42-3 at
7; 42-4 at 6; 42-6 at 7. The officers added that there was a sense of urgency
because “[a] crowd . . . had gathered and [Flarenzell’s yells from inside the house
were] causing alarm,”—indeed, as Flarenzell put it, “a lot of people [were]
outside,” including at least five of Flarenzell’s family members. Docs. 42-3 at 4;
42-4 at 4; 42-5 at 4; 42-6 at 4; 42-10 at 2.
D. Wendell’s Arrest
After Flarenzell’s arrest, Wendell exited the house through a side door and
asked the officers what they were doing.6 Doc. 42-26 at 3-4. In response, Officers
Orlando McKinley, Gerald Owens, and Jonathan Evans pulled their guns and
demanded that Wendell lie on the ground as they arrested him. Docs. 42-10 at 4;
42-26 at 3. The officers then threw Wendell to the ground and handcuffed him.
Docs. 42-10 at 4; 42-31 at 3. As the officers walked him to a squad car, “the head
supervisor” on the scene purportedly approached Wendell and relayed that “[t]his
is my street, this is my street.” Doc. 42-26 at 4, 7. The officers then “threw
The Officers, however, aver that Wendell exited the side door yelling, “Fuck the police. . . .
Man fuck y’all, I got something for y[’]all. . . . Y[’]all ain[’]t nothing but a bunch of bitch[e]s.”
Docs. 42-5 at 5-6, 42-6 at 6.
Page 11 of 42
[Wendell] on the trunk” of the car as they performed a search incident to his arrest.
Id. at 6.
E. Bernadine’s Second Encounter with the Police
During Wendell’s arrest, the female police officer on the scene approached
Bernadine and said, “I want you.” Doc. 42-31 at 9. The statement prompted Hays
to tell the officer to “shut up, [and to] get around the front” of the house. Id.
Another officer then “stuck his hands in the back of [Bernadine’s] pants and went
to pulling [her], trying to pull [her] out of the driveway to the front.”7 42-31 at 2, 9.
When the sergeant noticed the officer “yanking” Bernadine, id. at 2, the sergeant
“said, [‘G]et your hands off her, get around [to] the front[ of the house,’],” id. at 9.
Plaintiffs plead six counts, two claims under federal law and four under state
law. Under Count I, Plaintiffs allege violations of their Fourth, Fifth, and
Fourteenth Amendment rights against the Officers for (1) subjecting Flarenzell to
an unlawful search and seizure; and (2) subjecting all Plaintiffs to unlawful seizure
and excessive force. Doc. 17. Under Count II, Plaintiffs allege violations of their
Fourth, Fifth, and Fourteenth Amendment rights against Chief Roper, in his
Bernadine identifies this officer solely as: “The big guy, the big police [officer] that was on the
porch that threw Flarenzell down was behind me with his hands in my pants,” doc. 42-31 at 9,
and “The man police [officer who] was on the porch that had thr[own Flarenzell] down on the
porch,” id.at 2.
Page 12 of 42
individual and official capacity, and the City for a policy, practice, or custom of
using excessive force. 8 Id. Plaintiffs also allege a number of state law claims: (1)
assault and battery against all Defendants (Count III); (2) negligent supervision
and/or inadequate training against Chief Roper and the City (Count IV); (3) the tort
of false light against all Defendants (Count V); and (4) invasion of privacy against
all Defendants (Count VI). Id. As shown below, the court finds that summary
judgment is due to granted on all claims except as to Sipes in his individual
capacity for the Fourth Amendment claims under Count I and for the assault and
battery claims against him in Count III related to the initial encounter with
Although Plaintiffs plead violations of the Fifth and Fourteenth Amendments in Counts I and
II, they do not rely upon these grounds in opposing summary judgment. Therefore, the court will
grant summary judgment as to these claims. See, e.g., Edmondson v. Bd. of Trustees of Univ. of
Ala., 258 Fed. App’x 250, 253 (11th Cir. 2007) (“[T]he onus is upon the parties to formulate
arguments; grounds alleged in the complaint but not relied upon in summary judgment are
deemed abandoned.”); Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (noting
that the “district courts cannot concoct or resurrect arguments neither made nor advanced by the
parties”); Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (“A party cannot readily
complain about the entry of a summary judgment order that did not consider an argument they
chose not to develop for the district court at the time of summary judgment motions”) (citation
Page 13 of 42
A. Constitutional Claims Against the Officers 9
Plaintiffs assert that Sipes, Hays, Higgins, and Jackson have infringed upon
their constitutional rights in violation of 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and its laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding
for redress . . . .
The Officers deny that they have violated Plaintiffs’ constitutional rights.
Alternatively, they claim that they are entitled to qualified immunity.
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)); see also Mercado v. City of Orlando, 407
F.3d 1152, 1156 (11th Cir. 2005). “Qualified immunity allows government
employees to carry out their discretionary duties without fear of litigation,
‘protecting from suit all but the plainly incompetent or one who is knowingly
To the extent that the Plaintiffs allege a cause of action against the Officers in their official
capacity, summary judgment is due to be granted because the City remains a defendant in the
case. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (noting that “when an
officer is sued under Section 1983 in his or her official capacity, the suit is simply another way
of pleading an action against an entity of which an officer is an agent”).
Page 14 of 42
violating the federal law.’” Id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002)). “‘Qualified immunity balances two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.’” Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir.
2009) (quoting Pearson, 555 U.S. at 231). Relevant here, qualified immunity
protects officials from suit, not just from litigation; that is, if the claims against
them can be resolved at the summary judgment phase, the court must appropriately
do so. See Pearson, 555 U.S. at 231-32.
To invoke qualified immunity, officers “must first establish that [they were]
acting within the scope of [their] discretionary authority.” Case, 555 F.3d at 1325.
Plaintiffs do not contest this fact. Therefore, “[t]he burden shifts to the
[P]laintiff[s] to overcome the defense of qualified immunity.” Id. (citing Bates v.
Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008)). To do so, Plaintiffs must show that
(1) the Officers violated a constitutional right, and (2) this right was clearly
established at the time of the alleged violation. Pearson, 555 U.S. at 236; Hope v.
Pelzer, 536 U.S. 730, 736-39 (2002).
In this circuit, courts use “two methods to determine whether a reasonable
officer would know that his conduct is unconstitutional.” Fils v. City of Aventura,
647 F.3d 1272, 1291 (11th Cir. 2011). “The first method looks at the relevant case
Page 15 of 42
law at the time of the violation; the right is clearly established if a ‘concrete factual
context [exists] so as to make it obvious to a reasonable government actor that his
actions violate federal law.’” Id. (quoting Hadley v. Gutierrez, 526 F.3d 1324,
1333 (11th Cir. 2008)). “This method does not require that the case law be
‘materially similar’ to the officer’s conduct; ‘officials can still be on notice that
their conduct violates established law even in novel factual circumstances.’” Id.
(quoting Hope, 536 U.S. at 741). Indeed, “[t]he contours of the right” must be
appropriately articulated such that “a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). “But, where the law is stated in broad propositions, ‘a very high degree of
prior factual particularity may be necessary.’” Fils, 647 F.3d at 1291 (quoting
Hope, 536 U.S. at 740-41).
“The second method looks not at case law, but at the officer’s conduct, and
inquires whether that conduct ‘lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily apparent to
[the officer] notwithstanding the lack of fact-specific case law.’” Id. (alteration in
original) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002)). “This
method—termed ‘obvious clarity’—is a ‘narrow exception’ to the normal rule that
only case law and specific factual scenarios can clearly establish a violation.” Id.
(citations omitted) (citing Ferraro, 284 F.3d at 1198-99). “But, where the officer’s
Page 16 of 42
conduct is so outrageous that it clearly goes ‘so far beyond’ these borders,
qualified immunity will not protect him even in the absence of case law.” Id. at
1291-92 (quoting Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008)).
With this legal framework in mind, the court will now consider each
Plaintiff’s Fourth Amendment claims.
1. Illegal Search and Seizure—Flarenzell Only
Flarenzell argues that Sipes’s stop violated his “right to be free of
unreasonable searches and seizures as guaranteed by the Fourth . . . Amendment .
. . and protected under § 1983.” Doc. 17 at 8. “The Fourth Amendment, of course,
applies to all seizures of the person, including seizures that involve only a brief
detention short of a traditional arrest.” Brown v. Texas, 443 U.S. 47, 51 (1979)
(quotations and citations omitted). “[W]henever a police officer accosts an
individual and restrains his freedom to walk away, he has seized that person, . . .
and the Fourth Amendment requires that the seizure be reasonable.” Id. at 51
(quotations and citations omitted). “‘[W]hile ‘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.” Illinois v. Wardlow,
528 U.S. 119, 123 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).
Page 17 of 42
“The officer must be able to articulate more than an ‘inchoate and unparticularized
suspicion or hunch’ of criminal activity.” Wardlow, 528 U.S. at 123-24 (quoting
Terry v. Ohio, 392 U.S. 1, 27 (1968)).
“[W]hether reasonable suspicion exists must be determined on a case-bycase basis in view of the totality of the circumstances.” United States v. Gordon,
231 F.3d 750, 757 (11th Cir. 2000) (citing United States v. Powell, 222 F.3d 913,
917 (11th Cir. 2000)); see also Sokolow, 490 U.S. at 7. “[O]fficers are not required
to ignore the relevant characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further investigation,” and one
important factor may be “the fact that the stop occurred in a ‘high crime area.’” Id.
However, “[a]n individual’s presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable, particularized suspicion that
the person is committing a crime.” Wardlow, 528 U.S. at 124 (citations omitted).
Moreover, “although police have the right to approach individuals and ask
questions, the individual has no obligation to respond. The person may decline to
answer and simply go on his or her own way, and the refusal to respond, alone,
does not provide a legitimate basis for an investigative stop.” Id. at 122 (relying on
Florida v. Royer, 460 U.S. 491, 497-98 (1983)).
When determining whether a search was objectively legally reasonable, the
court “look[s] to see whether ‘the facts available to the officer at the moment of the
Page 18 of 42
seizure or the search ‘warrant a man of reasonable caution in the belief’ that the
action taken was appropriate.’” United States v Franklin, 323 F.3d 1298, 1301
(11th Cir. 2002) (citing Terry, 392 U.S. at 21-22); see also Creighton, 483 U.S. at
641. “A law enforcement official who reasonably but mistakenly concludes that
reasonable suspicion is present is still entitled to qualified immunity.” Jackson v.
Sauls, 206 F.3d 1156, 1165-66 (11th Cir. 2000). Therefore, an officer is entitled to
qualified immunity—and, thus, summary judgment—if he has “arguable”
reasonable suspicion to support an investigatory stop. Id. at 1166.
Because of the complicated nature of the incident here, the court must first
determine at what point Sipes “seized” Flarenzell for purposes of the Fourth
Amendment. As mentioned above, an individual is “seized” whenever an officer
restrains his freedom to walk away; further, “[i]t is only when an officer, ‘by
means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a seizure has occurred.’” See Terry, 392
U.S. at 19 n.16. Here, while Sipes maintains he “just kind of pull[ed] up along the
edge of the curb where they were standing,” got out of the car, and asked to speak
with Flarenzell and Bolden, doc. 42-19 at 11, the court must view the facts in the
light most favorable to Flarenzell, see Adickes, 398 U.S. at 157. In that regard,
according to Flarenzell, Sipes “started walking to [Flarenzell] like real fast,” stated
that he needed to search Flarenzell and Bolden and ask them some questions, and,
Page 19 of 42
although Flarenzell told Sipes he could not search him, Sipes still approached in a
fast, seemingly aggressive, manner. Doc. 42-9 at 1. Accepting Flarenzell’s version
as true—as it must at this juncture—because Sipes ignored Flarenzell’s response
and approached Flarenzell and Bolden aggressively, the court infers that Flarenzell
felt unable to leave and submitted to Sipes’s show of authority—and was therefore
seized—from the time of Sipes’s initial approach. See California v. Hodari D., 499
U.S. 621, 627-27 (1991) (“[A] person has been seized within the meaning of the
Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.”)
(quotations and citations omitted).
With regard to whether arguable reasonable suspicion existed for the stop,
again, viewing the facts in the light most favorable to Flarenzell, he and Bolden
engaged in normal law-abiding behavior. Specifically, they decided to watch the
aftermath of a wreck, stayed across the street from the wreck and out of the way of
the officer processing the wreck, and decided to leave after about three minutes
when they noticed Sipes watching them closely. As they did so, Sipes approached
them in a somewhat aggressive fashion, told Flarenzell he was going to search him,
ignored Flarenzell’s protest to the contrary, and grabbed him by his shirt and his
shorts. There is simply no reasonable suspicion for the stop and search under
Flarenzell’s version of the encounter.
Page 20 of 42
In fact, even under Sipes’s version of events, no arguable reasonable
suspicion existed for the stop. Sipes merely saw two men walking towards a gas
station known for drug deals, lost sight of the men when he rounded a corner, and
returned to find them standing across the street from the gas station one minute
later. As Sipes described it, based solely on the neighborhood, he had a hunch and
“just a suspicion”10 about Flarenzell and Bolden and decided to stop and frisk
them. Such a vague suspicion runs contrary to the rule set out in Terry that officers
“must be able to articulate more than an ‘inchoate and unparticularized suspicion
or hunch’ of criminal activity.” Terry, 392 U.S. at 27; see also Gordon, 231 F.3d at
756 (noting that when the defendants were “sighted standing, at night, within ten
feet of a parked car, surrounded by largely abandoned buildings, in an area
notorious for violent crime and drug trafficking [that] standing alone, these facts
would not have justified this [Terry] stop”) (emphasis added). Indeed, it is well
established that “[a]n individual’s presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable, particularized suspicion that
the person is committing a crime.” See Wardlow, 528 U.S. at 124.
Likewise, Flarenzell’s purported nervousness was insufficient to substantiate
the stop. Nervousness is a natural reaction to an approaching police officer, see
Indeed, the court believes that a reasonable officer would have similarly factored the two-car
wreck and the crowd that had gathered as a result into his “totality of the circumstances” analysis
when determining whether he believed his suspicion of the two men was reasonable or not. See
Gordon, 231 F.3d at 757.
Page 21 of 42
United States v. Perkins, 348 F.3d 965, 970-71 (11th Cir. 2003) (noting that a
“nervous driver is not itself suspicious”), 11 and this court will not ignore this
established law simply because Sipes believes people in high crime areas who are
used to dealing with law enforcement are generally not nervous around officers.
Flarenzell’s purported silence to Sipes’s request to search him also does not create
reasonable suspicion, as he had “no obligation to respond” to Sipes’s questions.
See Wardlow, 528 U.S. at 124. Moreover, the court finds that merely because
Flarenzell was standing with his hands in his pockets is also not sufficient to justify
a stop. 12 Viewing these facts in combination, as this court must, the facts simply
fall short of establishing reasonable suspicion for Sipes’s actions. See Sokolow, 490
U.S. at 9 (requiring courts to view a defendant’s actions “taken together” because
“there could, of course, be circumstances in which wholly lawful conduct might
justify” reasonable suspicion) (quotations and citations omitted).
See also United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (“Nervousness is a common
and entirely natural reaction to a police presence[.]”) (alteration in original); United States v.
Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir. 2002) (noting that courts “often give little or
no weight to an officer’s conclusional statement that a suspect appeared nervous”).
The only Eleventh Circuit case this court could find upholding an investigative stop based
significantly on a plaintiff having his hands in his pockets is Clark v. City of Atlanta, 544 Fed.
App’x 848 (11th Cir. 2013). Clark is distinguishable, however, because the police had arguable
reasonable suspicion for the seizure because “the officers were aware that there had been a rash
of burglaries in the area, that vacant properties were often targeted for burglaries, and that the
property where the [plaintiffs] were standing appeared to be vacant.” 544 Fed. App’x at 853.
Unlike the plaintiff in Clark, Flarenzell was not standing on the doorstep of an abandoned home,
and Sipes has presented no such similarly condemning fact to the court.
Page 22 of 42
In light of the court’s finding that Sipes violated Flarenzell’s constitutional
right, the court must next address the second part of Sipes’s qualified immunity
defense, i.e., whether the constitutional right was clearly established. See Pearson,
555 U.S. at 236. The case law relevant here has clearly stated that officers cannot
stop and frisk citizens for the reasons Sipes articulates in this case. Therefore, the
court rejects Sipes’s qualified immunity defense and finds that a reasonable police
officer would have known that he lacked reasonable suspicion to stop Flarenzell
and that he was violating clearly established law in doing so. Accordingly,
summary judgment as to the Fourth Amendment claim against Sipes in his
individual capacity for an unlawful investigative stop is due to be denied.
The motion is, however, due to be granted for Hays, Jackson, and Higgins
because they were not present at the initial stop and only came to the scene after
Flarenzell fled. Finally, because a material dispute exists as to whether Sipes’s
initial stop of Flarenzell was legal, the court will similarly deny summary judgment
under the Fourth Amendment as to the force Sipes used against Flarenzell during
the initial stop.13 See Williamson v. Mills¸65 F.3d 155, 158-59 (11th Cir. 1995)
Defendants assert that, because Flarenzell pleaded guilty to disorderly conduct, this action is
barred. This situation has already been addressed at length by the Supreme Court in Heck v.
Humphrey, 512 U.S. 477 (1994), and by the Eleventh Circuit in Hadley. In Heck, the Supreme
Court noted, “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of
his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at 487.
Page 23 of 42
(holding that a claim that any force used during a false arrest is excessive is
subsumed in the false arrest claim itself because damages for false arrest include
damages for use of force to effect that false arrest); see also Jackson, 206 F.3d at
1170-71 (noting that “Williamson’s rule makes sense because if a stop or arrest is
illegal, then there is no basis for any threat or any use of force, and an excessive
force claim would always arise . . . .”).
2. Excessive Force—All Plaintiffs
With respect to the encounter at Bernadine’s house, all three Plaintiffs allege
the Officers subjected them to excessive force. The Fourth Amendment’s
guarantee against “unreasonable searches and seizures,” U.S. Const. amend. IV,
“encompasses the plain right to be free from the use of excessive force in the
course of an arrest[, investigatory stop, or other ‘seizure’ of his person],” Graham
v. Connor, 490 U.S. 386, 395-96 (1989). If “the nature and quality of the intrusion
on the [plaintiff’s] Fourth Amendment interests” outweigh “the countervailing
government interests at stake,” the seizure has violated the plaintiff’s constitutional
rights. Tennessee v. Garner, 471 U.S. 1, 8 (1985); see also Graham, 490 U.S. at
Faced with a plaintiff who had pled guilty to resisting arrest but who was advancing a § 1983
claim for excessive force for that same encounter, the Eleventh Circuit in Hadley noted that,
although the plaintiff had taken a guilty plea to resisting arrest, “the question [on summary
judgment] becomes . . . whether a jury could conclude that at some point [the police officer]
punched [the plaintiff] when he was not resisting? If so, there is a constitutional violation not
barred by Heck.” 526 F.3d at 1331. Therefore summary judgment is not inevitable here because,
even though Flarenzell pleaded guilty to disorderly conduct, the question remains for the jury
whether Sipes used excessive force against him before he was acting disorderly.
Page 24 of 42
388. However, the right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat thereof. Brown v.
City of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010) (citations omitted). As a
result, claims alleging that an officer used excessive force during the course of an
arrest or other “seizure” are analyzed under an objective reasonableness standard.
Graham, 420 U.S. at 388; see also Hadley, 526 F.3d at 1329. That is, the officer’s
actions “must be judged from the perspective of a reasonable officer on the scene,
rather than the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
Courts determine whether the “nature and quality of the intrusion” on Fourth
Amendment interests surpasses the government interests at stake by considering
“1) the need for the application of force, 2) the relationship between the need and
the amount of force used, and 3) the extent of the injury inflicted.” Vinyard, 311
F.3d at 1347 (citing Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)). To
evaluate the need for the application of force, courts follow the factors laid out in
Graham—“the severity of the crime, the danger to the officer, and the risk of
flight.” Ferraro, 284 F.3d at 1198. The guiding principle in excessive force cases
is that “gratuitous use of force when a criminal suspect is not resisting arrest
constitutes excessive force.” Hadley, 526 F.3d at 1330; see also Huntsville, 608
F.3d at 738. However, courts are instructed to remember that “[t]he calculus of
reasonableness must embody allowance for the fact that police officers are often
Page 25 of 42
forced to make split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving—about the amount of force that is necessary . . . .” Graham,
490 U.S. at 396-97.
a. Bernadine’s Excessive Force Claim
Bernadine’s claim against the Officers is based on her contention that (1) a
female officer pushed her from her home and into a police car, and later
approached Bernadine threateningly until Hays chastised the officer and instructed
her to leave the area; and (2) “the big guy, the big police [officer]” placed his
hands in her pants until Hays chastised him by telling him to “get his hands off
[B]ernadine.” Doc. 42-31 at 9. The court can quickly dispense of the claims
regarding the conduct of the non-defendant female officer. While “an officer who
is present at the scene and who fails to take reasonable steps to protect the victim
of another officer’s use of excessive force can be held liable for his nonfeasance,”
Hadley, 526 F.3d at 1330 (quoting Velazquez v. City of Hialeah, 484 F.3d 1340,
1341 (11th Cir. 2007)), Bernadine does not allege that Sipes, Hays, Higgins, and
Jackson—the defendants she seeks to hold liable for the female officer’s conduct—
were near this officer when she pushed Bernadine from the house and into the
police car. To the contrary, as far as the court can discern, Hays arrived after the
Page 26 of 42
incident,14 doc. 42-40 at 10; the BPD had removed Sipes from the house by the
time the incident occurred, doc. 42-31 at 1-3; and although Plaintiffs claim that
there were many officers on the front porch, doc. 42-9 at 8, they do not explicitly
place Higgins and Jackson on the porch, nor do they argue that these two officers
were already at the house by the time of the incident involving Bernadine and the
female officer. Therefore, none of the Officers may be held liable for the unnamed
female officer’s behavior.
Next, as to “the big guy, the big police [officer]” who purportedly placed his
hands in Bernadine’s pants, Bernadine does not identify this officer as being one of
the Defendants in the case. Moreover, she does not state that the defendant Officers
observed the behavior and failed to correct it. In fact, to the contrary, she states that
Hays instructed the unnamed officer to stop. Doc. 42-31 at 9 (“[G]et your hands
off of her, get around to the front.”). In short, Bernadine has failed to provide any
basis for this court to hold the Officers liable for the conduct of “the big guy, the
big police [officer].” Alternatively, the claim for the conduct of the “big guy, the
big police [officer]” also fails because “the application of force, without more, will
not support a claim for excessive force.” Nolin v. Isbel, 207 F.3d 1253, 1257 (11th
Cir. 2000). Bernadine has simply failed to present sufficient facts to support her
After Wendell’s arrest, Hays disciplined the female officer and stopped her behavior. Doc. 4231 at 9.
Page 27 of 42
b. Flarenzell’s Arrest
Flarenzell also asserts a claim of excessive force related to his subsequent
arrest at the residence. See doc. 17 at 6-10. As a threshold matter, Sipes is entitled
to summary judgment on this excessive force claim because he was not at the
scene and did not participate in Flarenzell’s arrest. See doc. 42-20 at 10. As to the
other defendants, viewing the evidence in the light most favorable to Flarenzell, he
fled to his mother’s house, watched an officer approach with his gun drawn, waited
inside while his mother spoke with Hays, decided to voluntarily turn himself in,
non-threateningly opened the burglar door, and stepped calmly onto the front
porch. At that point, Hays, Higgins, and Jackson threw Flarenzell to the ground,
Jackson climbed on top of his back, and an officer choked Flarenzell until the
others handcuffed him. The officers then threw Flarenzell against the back of the
Unfortunately for Flarenzell, the events he describes are insufficient to
sustain his excessive force claim, in part, because Hays, Higgins, and Jackson
reached the scene after Sipes called for backup to arrest a fleeing suspect. Their
background knowledge consisted of only what Sipes had told them about the
incident: that he had stopped Flarenzell, that Flarenzell fought back when Sipes
tried to pat him down, and that Flarenzell fled and barricaded himself in a house.
While Flarenzell may believe Sipes stopped him unjustifiably, “[h]eadlong flight . .
Page 28 of 42
. is the consummate act of evasion” and is “certainly suggestive of [wrongdoing].”
Wardlow, 528 U.S. at 124. More problematically for Flarenzell, he ran inside, out
of the officers’ sight, and refused to exit for about ten minutes. As far as the
officers were concerned, Flarenzell may have armed himself while inside the
house. To add further to the tense standoff, the parties agree that a crowd had
gathered outside to watch the commotion. In light of the potential threat to the
crowd and to the officers, it was prudent for Hays, Higgins, and Jackson to
immediately seize control by arresting Flarenzell. In short, from the reasonable
officer’s perspective on the scene, Hays, Higgins, and Jackson were justified in
aggressively taking Flarenzell to the ground when handcuffing him.
Flarenzell’s claim that the officers used excessive force when they pushed
him against the police car after he was handcuffed and offering no resistance is
similarly unavailing. While this court recognizes that the Eleventh Circuit has
denied summary judgment on some excessive force claims by handcuffed
plaintiffs, see, e.g., Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000)
(handcuffed plaintiff who did not struggle or resist, and the officers beat his head
into the sidewalk until he was unconscious), here, Flarenzell fails to assert
appropriate evidence to substantiate an excessive force claim. Namely, he presents
no evidence—beyond stating that he was “slung” and that he thought the officers’
behavior was unnecessary—to establish the amount of force actually used against
Page 29 of 42
him. This lack of evidence counsels against a finding of excessive force here. See
Huntsville, 608 F.3d at 740 (“For even minor offenses, permissible force includes
physical restraint, use of handcuffs, and pushing into walls.”); Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1559-60 (11th Cir.1993) (finding no excessive force for
arresting an unresisting plaintiff for a building code violation by pushing him
against a wall and applying a chokehold while affixing handcuffs).
Under these facts, Hays, Higgins, and Jackson’s use of force in the arrest
and the walk to the car was reasonable. Consequently, the Officers’ motion as to
the claim of excessive force in Flarenzell’s arrest is due to be granted.
c. Wendell’s Arrest
Wendell similarly asserts an excessive force claim for his arrest and for his
treatment when handcuffed. Docs. 17 at 8-10; 42-26 at 6. However, Wendell fails
to identify Sipes, Higgins, Jackson, or Hays as the officers who arrested him or
who allegedly threw him against the trunk of the police car. See docs. 42-25; 4226; 42-27. In fact, Officer Evans attests that he, McKinley, and Owens were the
officers who took Wendell to the ground, arrested him, and took him into custody.
Doc. 42-5 at 6. Significantly, Wendell does not challenge this fact, see doc. 46,
even though he has the burden of proving his claims. The defendant Officers’
motion is due to be granted because vague allegations are insufficient to support a
claim, especially where, as here, the BPD has identified three other officers as the
Page 30 of 42
responsible parties (none of whom are defendants in this case). See doc. 17 at 3-5;
see also Huntsville, 608 F.3d at 736-37 (granting summary judgment for the
defendants because the plaintiff failed to sue the officer who had actually arrested
and handcuffed her). Additionally, although Wendell claims that the supervisor on
the scene—who conceivably could have been Hays, a defendant in this case—
mocked him and declared that this was “his street,” doc. 42-26 at 4, 7, he does not
assert, and this court cannot find authority establishing, that this behavior violates
clearly established federal law. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th
Cir. 1993) (“Mere allegations of verbal abuse do not present actionable § 1983
claims. . . . [A]s a rule, mere threatening language and gestures of a custodial
officer do not, even if true, amount to a constitutional violation.”) (quotations and
citations omitted). Because Wendell fails to establish that any of the defendant
Officers actually subjected him to excessive force and because an officer’s taunting
behavior cannot sustain a constitutional violation here, the motion for summary
judgment as to Wendell’s claims against Sipes, Hays, Jackson, and Higgins is due
to be granted.
To summarize, as to Count I, only the claims against Sipes related to the
initial encounter at the CITGO survive.
Page 31 of 42
B. Constitutional Claims Against Chief Roper and the City15
In Count II, Plaintiffs assert a cause of action against Chief Roper and the
City for the violation of their Fourth, Fifth, and Fourteenth Amendment rights.
Doc. 17 at 10. Allegedly, Chief Roper and the City failed to “instruct, supervise,
control and discipline” the Officers regarding their alleged penchant to conduct
illegal searches, impose excessive force, illegally arrest and prosecute, and
conspire to violate civilians’ constitutional rights. Id. at 12. In these circumstances,
Section 1983 also creates a cause of action against municipalities; indeed:
Local governing bodies . . . can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy . . . officially adopted and
promulgated by that body’s officers[ or where the] constitutional
deprivations visited [are] pursuant to governmental ‘custom[.]’”
Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978). In other
words, a municipality is responsible for its own acts but not the acts of its
employees. Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1986); see also
Monell, 436 U.S. at 691 (concluding that “a municipality cannot be held liable
solely because it employs a tortfeasor”) (emphasis in original). Thus, a
municipality is liable under § 1983 only “when execution of a government’s policy
or custom . . . inflicts the injury . . . .” Monell, 436 U.S. at 694. “‘A policy is a
To the extent that Plaintiffs allege a cause of action against Chief Roper in his official
capacity, summary judgment is due to be granted because the City remains a defendant in the
case. See Busby, 931 F.2d at 776.
Page 32 of 42
decision that is officially adopted by the municipality, or created by an official of
such rank that he or she could be said to be acting on behalf of the municipality.’”
Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (quoting Sewell v. Town of
Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)). “‘A custom is a practice that
is so settled and permanent that it takes on the force of law.’” Id. (quoting Sewell,
117 F.3d at 489). “In order for a plaintiff to demonstrate a policy or custom, it is
generally necessary to show a persistent and wide-spread practice.” McDowell v.
Brown, 392 F.3d 1283, 1290 (11th Cir. 2004) (quotations and citations omitted).
But see Pembaur, 475 U.S. at 480 (holding that a municipality may, under certain
circumstances, be held liable under § 1983 for a single decision). Therefore, to
establish § 1983 liability against a municipality, the plaintiff must show the
individual carried out the alleged actions pursuant to (1) a policy, ordinance,
regulation or decision officially adopted and promulgated by the municipal’s dulyauthorized policymakers, or (2) a custom, even though such a custom has not
received formal approval through the municipal’s official decision-making
channels. Monell, 436 U.S. at 690-91.
Plaintiffs seem to assert that BPD has a policy or custom of conducting
illegal searches and exerting excessive force. Doc. 17 at 10. However, Plaintiffs
seemingly rely on their own experience as proof that the City has promulgated a
policy or custom of unconstitutional behavior: “The fact that the precise conduct
Page 33 of 42
complained of in this very case was treated so routinely as to warrant zero
attention, evidences the apparent pervasiveness of the conduct and the cause and
effect of the allegations Plaintiffs make.” Doc. 46 at 23. This contention is
unavailing because Plaintiffs’ encounter with the police, without more, cannot
establish a finding of a custom or policy tolerant of illegal searches or excessive
force. See Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986)
(“Normally, random acts or isolated incidents are insufficient to establish a custom
or policy.”). Additionally, although Plaintiffs include the BPD’s training
instructions for investigative stops and frisks, doc. 46-1 at 2-3, they fail to
articulate how this policy violates citizens’ constitutional rights. They also fail to
present evidence regarding the BPD’s use of force policies. Without additional
evidence of alleged illegal stops or excessive force, Plaintiffs cannot meet the bar
requiring that, “to demonstrate a policy or custom, [plaintiffs] generally must show
a persistent and wide-spread practice” of violations. See McDowell, 392 F.3d at
Next, as to the negligent training and failure to supervise claims, these
claims are only actionable under § 1983 when the municipality “inadequately
trains or supervises its employees, this failure to train or supervise is a city policy,
and that city policy causes the employees to violate a citizen’s constitutional
rights.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Failure to
Page 34 of 42
train or supervise is only a policy when the plaintiff can establish “deliberate
indifference” to those the police encounter. City of Canton v. Harris, 489 U.S. 378,
388 (1989). To establish deliberate indifference, “a plaintiff must present some
evidence that the municipality knew of a need to train and/or supervise in a
particular area and that the municipality made a deliberate choice not to take
action.” Gold, 151 F.3d at 1350.
Here, however, Plaintiffs assert no evidence of prior incidents of excessive
force or harassment involving the Officers, or that Chief Roper or the City had
notice of these alleged incidents prior to December 22, 2011. Indeed, the
disciplinary action reports against the Officers that Plaintiffs have submitted do not
present evidence of substantiated claims of excessive force or inappropriate
stops.16 Plaintiffs present no further proof of excessive force issues in BPD, nor, as
already mentioned, do they present the BPD’s training policies on use of force.
Plaintiffs seem to submit the BPD training manual regarding its policy on
investigative searches and stop-and-frisks as proof of inadequate or improper
training, doc. 46-1 at 2-3, but they fail to establish how the training on reasonable
As of December 22, 2011, Sipes had one formal disciplinary action taken against him for a
comment Sipes made to a defendant as he was sitting in the back of a patrol car. Doc. 46-3 at 5.
Hays’s disciplinary record similarly has one incident; he was censured for failing to respond to a
domestic incident. Id. at 2. Jackson had two disciplinary actions on his record as of December
22, 2011: for insubordinate and disrespectful behavior towards a superior officer and for telling a
student, “This is why kids like you can’t learn . . . because of ignorant parents like your mom.”16
Id. at 4. Finally, Higgins had in his file a suspension for fifteen days and a letter of reprimand for
violations in serving civil court subpoenas. Id. at 3.
Page 35 of 42
suspicion and stop-and-frisks indicate improper training and supervision. Overall,
Plaintiffs fail to allege what specific kind of training or supervision was in place
regarding force, what events or incidents occurred that would put the City on
notice of the need for more or different training or supervision on excessive force
or unlawful searches, or how the training and supervision at the time caused the
alleged deprivation of Plaintiffs’ rights. Without such a showing, Plaintiffs cannot
establish negligent training or supervision. See Gold, 151 F.3d at 1350-51.
Therefore, summary judgment is due to be granted on all claims against
Chief Roper and the City, including the claim for punitive damages against the
City which, as Plaintiffs concede, doc. 46 at 25 n.16, municipalities are immune
from unless authorized by statute. See City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 271 (1981).
C. State Claims
The court now turns to the state law claims. Plaintiffs allege assault and
battery (Count III), false light (Count V), and invasion of privacy (Count VI)
against all Defendants, and negligent supervision and/or inadequate training
(Count IV) against only Chief Roper and the City.
Page 36 of 42
1. Claims Asserted Against All Defendants (Counts III, V, and VI)
The defendant Officers contend that they are entitled to state-agent
immunity under ALA. CODE § 6-5-338(a). The court agrees with the Officers
Under Alabama law:
“A State agent shall be immune from civil liability in his or her personal
capacity when the conduct made the basis of the claim against the agent is
based upon the agent’s . . . exercising judgment in the enforcement of the
criminal laws of the State, including, but not limited to, law-enforcement
officers’ arresting or attempting to arrest persons, or serving as peace
officers under circumstances entitling such officers to immunity pursuant to
§6-5-338(a), Ala Code 1975.” 17
Ex parte City of Midfield, 161 So. 3d 1158, 1163 (Ala. 2014) (emphasis in
original) (quoting Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006)).
Plaintiffs do not appear to dispute that the Officers were acting within the scope of
their law enforcement duties. Therefore, to prevail, Plaintiffs must present
evidence that the Officers fall into one of the exceptions to state-agent immunity.
See Midfield, 161 So. 3d at 1164 (citing Hollis, 950 So. 2d at 309). The only
potential exception in this case provides that “‘a State agent shall not be immune
from civil liability in his or her personal capacity . . . when the State agent acts
willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or
Section 6-5-338(a) provides peace officers with “immunity from tort liability arising out of his
or her conduct in performance of any discretionary function within the line and scope of his or
her law enforcement duties.”
Page 37 of 42
under a mistaken interpretation of the law.’” Id. at 1163 (emphasis in original)
(quoting Ex parte Cranman, 792 So. 2d 392, 405) (Ala. 2000)). The court finds no
evidence of willfulness or maliciousness by Officers Hays, Higgins, and Jackson
with respect to the alleged assault and battery claim (Count III) against them, or
that the Officers willfully, maliciously, or fraudulently sought to place Plaintiffs in
a false light (Count V) or to invade their privacy (Count VI). Summary judgment is
therefore due to be granted on Counts V and VI for the Officers, and to Hays,
Higgins, and Jackson as to Count III. However, because, as discussed above, there
are disputed issues of material fact regarding whether Sipes properly seized,
searched, and used force against Flarenzell in his initial stop, the court declines to
award immunity under state law to Sipes for Count III regarding the search and
altercation with Flarenzell.
Turning next to Plaintiffs’ claims against Chief Roper and the City in Counts
III, V, and VI, the relevant state law provides that:
No city or town shall be liable for damages for injury done to or wrong suffered
by any person or corporation, unless such injury or wrong was done or suffered
through the neglect, carelessness, or unskillfulness of some agent, officer, or
employee of the municipality engaged in work therefor and while acting in the
line of his or her duty . . . .
Ala. Code § 11-47-190 (1975). Thus, “under § 11-47-190, a city is liable for
negligent acts of its employees within the scope of their employment, but not
intentional torts of its employees.” Huntsville, 608 F.3d at 743. Furthermore, a city
Page 38 of 42
is not liable for willful, reckless, or wanton acts of its employees. See Altmayer v.
City of Daphne, 613 So. 2d 366, 369 (Ala. 1993) (affirming summary judgment as
to claims of willful and reckless misrepresentation by noting that § 11-47-190 only
imposes liability on a municipality for neglect, carelessness, or unskillfulness of an
agent); Hilliard v. City of Huntsville, 585 So. 2d 889, 892 (Ala. 1991) (holding that
§ 11-47-190 does not include an action for wanton conduct).
Therefore, to hold the City liable, Plaintiffs must show that (1) the Officers
acted within the scope of their employment; and (2) their actions were negligent,
careless, or unskillful. See Huntsville, 608 F.3d at 743. As discussed above, only
the second requirement is at issue here, as Plaintiffs do not deny that the Officers
were acting within their discretionary authority. As such, to prevail against the
City, Plaintiffs must show that the Officers’ conduct was not intentional. Plaintiffs
cannot make this showing because, under Count III, they allege that the Officers
acted “intentionally,” doc. 17 at 14, as well as pursuant to “neglect, carelessness or
unskillfulness,” id. at 15, 16. For Counts V and VI, Plaintiffs similarly assert that
the Officers were acting “negligently, willfully, recklessly, and/or maliciously.” Id.
at 19, 20. Significantly, Plaintiffs fail to provide evidence to support their
contentions. Instead, construing the facts in the light most favorable to Plaintiffs,
Sipes’s search and seizure of Flarenzell, as well as the unnamed “big guy, the big
police [officer’s]” and the female officer’s seizures of Bernadine, appear
Page 39 of 42
intentional. Plaintiffs have failed to show that Sipes or the unknown big officer and
female officer acted negligently, carelessly, or unskillfully. Additionally, the City’s
policies, which it trains its officers on, require officers to comply with
constitutional requirements. Doc. 42-7 at 4-5. If, in fact, Flarenzell and Bernadine
are correct about the conduct of Sipes, the female officer, and the unknown officer,
this is hardly conduct that seems negligent or careless. To the contrary, as Plaintiffs
frame the facts, the alleged conduct was intentional, wanton, or reckless. As such,
because liability does not attach to municipalities for intentional, wanton, or
reckless acts of its employees, summary judgment is due to be granted on Counts
III, V, and VI as they pertain to Chief Roper and the City.
2. Claims Against Only Chief Roper and the City (Count IV)
Finally, Plaintiffs assert in Count IV that Chief Roper and the City
“negligently, carelessly or unskillfully failed to adequately train and supervise its
police officers in the areas of excessive force, arrest procedures, investigatory
stops, and detainments.” Doc. 17 at 16, 17. Because Count IV advances a claim of
negligent supervision and training, Plaintiffs are not seeking to show that Chief
Roper, in his capacity as Chief of Police and ultimately in charge of the
supervision and training of the BPD police officers, id. at 17, acted willfully or
wantonly. As such, Chief Roper is entitled to immunity for his negligent actions
unless he falls into an applicable exception to § 6-5-338(a). The only applicable
Page 40 of 42
exception here involves willful or wanton conduct; however, by the very terms of
the tort for negligent supervision and training, this exception cannot apply. Chief
Roper is therefore entitled state-agent immunity under § 6-5-338(a).
Under Ex parte City of Tuskegee and other established Alabama precedent,
because Chief Roper is entitled to immunity for the claim of negligent supervision
and training, the City is similarly entitled to immunity. See 932 So. 2d 895, 910
(Ala. 2005). Additionally, even if Plaintiffs were to pursue a claim against the City
under § 11-47-190, which holds municipalities responsible for the neglect,
carelessness, or unskillfulness of its employees, see, e.g., Huntsville, 608 F.3d at
742-43, such a claim would fail because they have not presented the required
showing: “affirmative proof that the employee’s incompetence was actually or
constructively known by the master,” Borton v. City of Dothan, 734 F. Supp. 2d
1237, 1259 (M.D. Ala. 2010) (relying on Voyager Ins. Cos. v. Whitson, 867 So. 2d
1065, 1073 (Ala. 2003)). The summary judgment record lacks any “affirmative
proof” that the City was on notice as to as to failures in its training and supervisory
protocols. As such, Chief Roper and the City’s motions for summary judgment on
this claim are appropriately due to be granted.
Page 41 of 42
In sum, except for the claims against Sipes related to Counts I (Fourth
Amendment only) and III for the initial encounter with Flarenzell, Defendants’
motion for summary judgment is due to be granted. The court will enter a separate
order granting in part and denying in part the motions for summary judgment.
DONE the 4th day of November, 2015.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
Page 42 of 42
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?