Overby v. Square et al

Filing 46

AMENDED MEMORANDUM OPINION The court previously entered a memorandum opinion on the motion for summary judgment by Defendant Derrick Square. Because of a scrivener's error, the court VACATES the prior memorandum opinion and ENTERS the following in its place. Signed by Judge Annemarie Carney Axon on 2/5/2024. (RMM)

FILED
2024 Feb-05 AM 10:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FREDERICK OVERBY,
Plaintiff,
v.
DERRICK SQUARE, et al.,
Defendants.

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Case No.: 2:21-cv-1416-ACA

AMENDED MEMORANDUM OPINION
The court previously entered a memorandum opinion on the motion for
summary judgment by Defendant Derrick Square. Because of a scrivener’s error, the
court VACATES the prior memorandum opinion and ENTERS the following in its
place:
Officer Square, a Bessemer police officer, stopped a car driven by Plaintiff
Frederick Overby. During the stop, police officers removed Mr. Overby from his car
and restrained him in handcuffs. Mr. Overby contends that Officer Square kicked
Mr. Overby after he was handcuffed and asserts the following claims against Officer
Square:
(1)

excessive force in violation of the Fourth Amendment (“Count Four”);

(2)

false/unlawful arrest in violation of the Fourth Amendment (“Count
Eight”).

(Doc. 1 ¶¶ 23–25, 35–41; see also docs. 23, 28). Officer Square asserts that he is
entitled to qualified immunity on both claims and moves the court to enter summary
judgment in his favor on each claim. (Doc. 33).
Because Mr. Overby failed to rebut Officer Square’s qualified immunity
defense as to the false/unlawful arrest claim, the court WILL GRANT Officer
Square’s motion and ENTER SUMMARY JUDGMENT in Officer Square’s favor
as to that claim. The court WILL DENY Officer Square’s motion as to the excessive
force claim.
I.

BACKGROUND
When approaching a motion for summary judgment, the court “view[s] the

evidence and all factual inferences therefrom in the light most favorable to the nonmoving party, and resolve[s] all reasonable doubts about the facts in favor of the
non-movant.” Washington v. Howard, 25 F.4th 891, 897 (11th Cir. 2022) (quotation
marks omitted). Where the parties have presented evidence creating a dispute of fact,
the court’s description of the facts adopts the version most favorable to the
nonmovant. See id.; see also Cantu v. City of Dothan, 974 F.3d 1217, 1222 (11th
Cir. 2020) (“The ‘facts’ at the summary judgment stage are not necessarily the true,
historical facts; they may not be what a jury at trial would, or will, determine to be
the facts.”).

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On October 21, 2019, Officer Square initiated a traffic stop of a car driven by
Mr. Overby. (Doc. 34-2 at 8–9). When Officer Square approached the car, he told
Mr. Overby that the light bulb on his “tag light was out.” (Id. at 10). The parties
dispute what happened next.
According to Mr. Overby, he informed Officer Square that he would get the
light bulb fixed the following day. (Id.). He does not recall officers asking him for
his driver’s license, to identify himself, or to get out of the vehicle. (Id. at 10–11).
According to Officer Square, Mr. Overby “refused to identify himself” and “started
being aggressive.” (Doc. 34-3 at 10–11). Officer Square contends that Mr. Overby’s
car had an “odor of marijuana” and that Mr. Overby refused “to step out of the car.”
(Id. at 7, 9).
Ultimately, police officers removed Mr. Overby from his vehicle. (Doc. 34-2
at 11; accord doc. 34-3 at 11). Thereafter, the parties’ narratives materially diverge
again. Mr. Overby contends that he did not resist officers “in any way . . . [b]efore
or after being handcuffed.” (Doc. 34-2 at 12–13, 16, 30). Officer Square contends
that Mr. Overby refused instructions to “give [the officers] his arm” and otherwise
tried to prevent the officers from placing him in handcuffs. (Doc. 34-3 at 12, 15).
After officers placed Mr. Overby in handcuffs, Mr. Overby contends that Officer
Square stood above him and kicked him “[w]hile [he] was on the ground.” (Doc. 34-

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2 at 13). Officer Square contends that he never kicked Mr. Overby. (Doc. 34-3 at
17).
There is one video in evidence. (See doc. 34-1). Although Officer Square’s
body camera was activated at the time of the arrest, the footage is no longer available
and has “been deleted” (doc. 34-3 at 18), but a security camera captured the incident
(see doc. 34-1). The version of the security camera footage that Officer Square
submitted—without objection from Mr. Overby—appears to be a hand-held
recording of a computer monitor playing that video. (See doc. 34-1). The footage
reveals very few details about the incident because of the angle of the security
camera, its distance from the incident, and the position of Mr. Overby’s car.
II.

DISCUSSION
Mr. Overby contends that Officer Square violated his Fourth Amendment

rights because Officer Square arrested him without probable cause and used
excessive force. (See doc. 1 ¶¶ 23–25, 35–41). Officer Square moves for summary
judgment as to all claims against him. (Doc. 33). Summary judgment is appropriate
when a 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.” Fed. R. Civ. P. 56(a).
For both claims, Officer Square asserts that he is entitled to qualified
immunity. To be potentially eligible for this defense, Officer Square bears the initial
burden of “show[ing] that he was acting within his discretionary authority during the
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alleged wrongdoing.” Helm v. Rainbow City, 989 F.3d 1265, 1272 (11th Cir. 2021)
(quotation marks omitted). The parties do not dispute that Officer Square has carried
this burden. (Compare doc. 35 at 14, with doc. 40 at 12). So, “the burden shifts to
[Mr. Overby] to show (1) that the government official violated a constitutional right
and, if so, (2) that the constitutional right was clearly established at the time of the
wrongdoing.” Helm, 989 F.3d at 1272. The court dispenses with Mr. Overby’s
false/unlawful arrest claim first before turning to Mr. Overby’s excessive force
claim.
a. False/Unlawful Arrest (Count Eight)
In Count Eight, Mr. Overby asserts a false arrest claim, contending that
Officer Square arrested him without probable cause.

(See doc. 1 ¶¶ 35–41).

Although Mr. Overby acknowledges that he bears the burden of refuting Officer
Square’s entitlement to qualified immunity (see doc. 40 at 12), Mr. Overby’s
responsive brief does not mention his false arrest claim (see generally doc. 40; doc.
43 at 6–7). The court therefore concludes that Mr. Overby has forfeited any argument
as to this claim, see Christmas v. Harris Cnty., 51 F.4th 1348, 1354 & n.4 (11th Cir.
2022), and WILL GRANT Officer Square’s motion and WILL ENTER
SUMMARY JUDGMENT in his favor as to that claim.

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b. Excessive Force (Count Four)
In Count Four, Mr. Overby asserts that Officer Square’s use of force was
excessive in violation of the Fourth Amendment. (Doc. 1 ¶¶ 23–25). This claim is
based on Mr. Overby’s contention that Officer Square kicked him after arresting
officers had restrained Mr. Overby. (See doc. 34-2 at 14–17). 1
“The right to make an arrest necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.” Brooks v. Miller, 78 F.4th
1267, 1282 (11th Cir. 2023) (alterations accepted; quotation marks omitted). “But
the Fourth Amendment guarantees the right to be free from the use of excessive force
during an arrest.” Id. So, federal courts consider “whether the officer’s conduct is
objectively reasonable in light of the facts confronting the officer.” Id. (quotation
marks omitted).
Mr. Overby testified that after the arresting officers handcuffed him, Officer
Square stood above him and kicked him. (Doc. 34-2 at 13). Officer Square disputes
that he kicked Mr. Overby and testified that he did not “ever strike him in any way.”
(Doc. 34-3 at 17). “When opposing parties tell two different stories, one of which is
blatantly contradicted by” video footage, a court cannot indulge the “visible fiction”

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Mr. Overby also testified that his excessive force claim is based on another officer’s use
of pepper spray. (See doc. 34-2 at 17). Because Mr. Overby concedes that Officer Square did not
pepper spray him (see id.) and Mr. Overby’s sole claims are against Officer Square, see supra at
1–2; (see also docs. 23, 28), the court does not consider whether the use of pepper spray was
excessive.
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and must instead “view[] the facts in the light depicted by the videotape.” E.g., Scott
v. Harris, 550 U.S. 372, 380–81 (2007). But here, the security camera footage does
not favor either parties’ version of events. (See doc. 34-1). Accordingly, there is a
triable issue of fact regarding whether Officer Square kicked Mr. Overby.
And if that kick did occur (an issue the court cannot decide), it was clearly
established that gratuitous use of force against a suspect who is not resisting, secure,
and not posing a threat is excessive. (See doc. 40 at 21) (collecting cases); see also
e.g., Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (holding that an
officer who delivered a single punch to a handcuffed suspect was not entitled to
qualified immunity); Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000)
(denying qualified immunity to officers who kicked and hit a suspect while
handcuffed on the ground). Accordingly, the court WILL DENY Officer Square’s
motion as to Mr. Overby’s excessive force claim.
III.

CONCLUSION

The court WILL GRANT IN PART and DENY IN PART Officer Square’s
motion. (Doc. 33). This case will proceed to trial as to Mr. Overby’s excessive force
claim.

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DONE and ORDERED this February 5, 2024.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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