Fuqua v. Hess et al

Filing 51

MEMORANDUM OPINION and ORDER that the 41 MOTION for Summary Judgment filed by R. Marshall Hess is GRANTED IN PART and DENIED IN PART as more fully set out. Signed by Magistrate Judge Herman N Johnson, Jr on 02/05/19. (SPT )

FILED
2019 Feb-05 AM 08:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
CHRISTOPHER FUQUA,
Plaintiff
vs.
R. MARSHALL HESS,
Defendant

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Case No. 3:16-cv-01510-HNJ

MEMORANDUM OPINION AND ORDER
This action proceeds on Defendant R. Marshall Hess’s Motion for Summary
Judgment on Plaintiff Christopher Fuqua’s 42 U.S.C. § 1983 unlawful seizure, false
arrest, and excessive force claims pursuant to the Fourth Amendment to the United
States Constitution, and state law claims of false arrest, false imprisonment, and assault
and battery. Hess prevails on Fuqua’s Fourth Amendment unlawful seizure and false
arrest claims, yet genuine issues of material fact preclude summary judgment on the
Fourth Amendment excessive force claim. Furthermore, state-agent immunity bars
Fuqua’s false arrest and false imprisonment claims, yet genuine issues of material fact
regarding the assault and battery claim preclude summary judgment.
Therefore, for the reasons set out herein the court GRANTS in part and
DENIES in part Defendant Hess’s motion.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment 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.” Fed. R. Civ. P. Rule 56(a). The party seeking summary judgment bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrates
the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
If the movant sustains its burden, a non-moving party demonstrates a genuine
issue of material fact by producing evidence by which a reasonable fact-finder could
return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263
(11th Cir. 2007) (citation omitted).

The non-movant sustains this burden by

demonstrating “that the record in fact contains supporting evidence, sufficient to
withstand a directed verdict motion.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993).

In the alternative, the non-movant may “come forward with

additional evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency.” Id. at 1116-17; see also Doe v. Drummond Co., 782 F.3d
576, 603-04 (11th Cir. 2015), cert. denied, 136 S. Ct. 1168 (2016).

2

The “court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.’” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus, although the court should review the
record as a whole, it must disregard all evidence favorable to the moving party that the
jury is not required to believe.” Reeves, 530 U.S. at 151 (citation omitted). “That is, the
court should give credence to the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is uncontradicted and unimpeached, at least
to the extent that that evidence comes from disinterested witnesses.’” Id. (citation
omitted).
Rule 56 “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, 477 U.S. at 322. “In such a
situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure
of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 322-23. In addition, a movant may prevail
on summary judgment by submitting evidence “negating [an] opponent’s claim,” that is,
3

by producing materials disproving an essential element of a non-movant’s claim or
defense. Id. at 323 (emphasis in original).
There exists no issue for trial unless the nonmoving party submits evidence
sufficient to merit a jury verdict in its favor; if the evidence is merely colorable or is not
significantly probative, the court may grant summary judgment. Anderson, 477 U.S. at
249. That is, the movant merits summary judgment if the governing law on the claims
or defenses commands one reasonable conclusion, but the court should deny summary
judgment if reasonable jurors could “differ as to the import of the evidence.” Id. at
250.
FACTS 1
On the afternoon of September 13, 2014, Plaintiff Christopher Fuqua and his
pregnant girlfriend, Luphelia McDade, hosted a football-watching party at their
residence in Sheffield, Alabama. (Doc. 43-1, Fuqua Dep. (“Fuqua Dep.”), at 42; Doc.
45-2, McDade Dep. (“McDade Dep.”), at 32-33).2 Fuqua’s sister, Tiffany Fuqua,
attended the party with three children: two teenaged daughters, approximately 15 and

1

Pursuant to the foregoing summary judgment standard, the following facts are undisputed or, if
disputed, taken in a light most favorable to the non-moving party.
Furthermore, the court entered an order contemporaneously with this opinion declining to deem
admitted Defendant’s Requests for Admissions due to Plaintiff’s tardy responses thereto. Therefore,
the facts reviewed herein do not emanate from the Plaintiff’s supposed admissions regarding the
Requests for Admissions.
2

The court cites to deposition page numbers rather than CM/ECF document page numbers.
4

16 years old at the time, and a five-year-old offspring. (Doc. 45-3, T. Fuqua Dep. (“T.
Fuqua Dep.”), at 10-13). At some point, McDade left and returned home with
groceries, and Fuqua and the guests assisted in taking the groceries inside the home.
(McDade Dep. at 34-35, 36, 38, 40, 172; Fuqua Dep. at 55, 61; T. Fuqua Dep. at 17-18,
20-21).
Contemporaneously with the foregoing events, Fuqua’s neighbor approximately
404 feet away, Dustin Tyler Roberts, observed and heard from his front porch what he
interpreted as an altercation at Fuqua’s home. 3 (Doc. 43-5, Roberts Decl.). He
3

Fuqua resided at 701 Milner Street and Roberts resided at 808 Milner Street. (Doc. 43-5, Roberts
Decl., ¶ 3; Fuqua Dep. at 40).

5

described a vehicle with approximately three African-American women arrive at the
home, and then the women proceeded inside. (Id., ¶ 3). Subsequently, he perceived
the women exit the home and apparently engage in an argument with Fuqua and
McDade. Roberts heard shouting, and the close proximity of the people to each other
contributed to his belief a fight occurred. (Id., ¶ 4). Roberts called 911 and reported a
domestic dispute involving a pregnant woman at a house with a black Chevrolet truck
and a Chrysler Pacifica parked outside. (Id., ¶ 5). Roberts’s description matched
Fuqua’s home. (Doc. 43-4, Hess Decl. (Hess Decl.”), ¶ 3; Doc. 43-3, Cantrell Dep.
(“Cantrell Dep.”), at 14-15).
During or shortly after Roberts’s 911 call, Fuqua went to his truck to retrieve
some cigarettes. (Fuqua Dep. at 55, 61-62, 91, 101). City of Sheffield Officers R.
Marshall Hess and Regina Cantrell received the 911 dispatch call and proceeded to
Fuqua’s residence. (Doc. 43-2, Hess Dep. (“Hess Dep.), at 12, 14; Hess Decl., ¶ 2;
Cantrell Dep. at 7-8). They encountered Fuqua next to his truck with a door open.
(Hess Dep. at 22; Hess Decl., ¶ 3; Cantrell Dep. at 10-11; Fuqua Dep. at 100-01, 114).
The officers informed Fuqua about the 911 call regarding the supposed
altercation.4 (Hess Dep. at 25; Cantrell Dep. at 15; Fuqua Dep. at 91-92, 170). Fuqua

4

According to the Alabama Uniform Incident/Offense Report Hess prepared, he believed Fuqua
intended to depart the premises in the truck. (Doc. 43-6 at 10; Doc. 43-7 at 11).
6

denied any knowledge of a confrontation.5 (Hess Dep. at 25, 78, 127; Cantrell Dep. at
21; Fuqua Dep. at 92, 120, 199, 207). Hess then asked Fuqua for his name and
identification. (Cantrell Dep. at 22). Fuqua gave his name6 and informed the officers
his identification was in his home. (Fuqua Dep. at 90, 92, 93, 99, 193; Cantrell Dep. at
27, 101).

As he turned and walked towards his home, Fuqua again denied any

knowledge about an altercation.7 (Cantrell Dep. at 21; Fuqua Dep. at 168). Fuqua
admits that during these events, he was angry, he raised his voice, and he used profanity,
yet he denies cursing specifically at Hess or that he was aggressive or threatening.
(Fuqua Dep. at 94, 95, 106, 120-21, 155, 156, 171-72, 179-80).
At some point, at either Fuqua’s request or the children’s behest, McDade and
Tiffany came onto the home’s porch to observe the encounter. (Fuqua Dep. at 6, 91,
94, 103, 104, 107, 180-81; McDade Dep. at 49, 60; T. Fuqua Dep. at 21-22). Tiffany
observed Fuqua walking toward the home with Hess close behind or at his side. (T.
Fuqua Dep. at 23, 25, 27, 58). She recounted Fuqua stating repeatedly he had not done
anything. (T. Fuqua Dep. at 23-24, 25). Tiffany does not recall Hess responding. (T.
5

Hess declares Fuqua responded to the question with profanity and a raised voice. (Hess Dep. at 28,
29, 127). Roberts declares he viewed the interaction from his porch, and Fuqua appeared to argue
with the officers and act in an agitated manner. (Roberts Decl., ¶ 5).

6

Hess and Cantrell testified Fuqua did not provide his name; rather, they said Fuqua remarked he did
not have to do so. (Hess Dep. at 30; Cantrell Dep. at 15, 21, 116-17, 119).

7

The officers testified Fuqua merely informed them he did not have anything to talk about and was
going to proceed into his home as he began walking towards the dwelling. (Hess Dep. at 29, 78, 127,
Hess Decl., ¶ ¶ 4, 5; Cantrell Dep. at 21).
7

Fuqua Dep. at 25). McDade described a confused look on Fuqua’s face rather than
anger.

(McDade Dep. at 64-65, 82, 155-56).

McDade recalls Fuqua possibly

expressing his belief he was going to jail, although Hess had not informed him he was
under arrest. (McDade Dep. at 76; Hess Dep. at 61, 100). Fuqua testified he believed
he was going to jail and told McDade so, though, again, Hess had made no specific
statement to that effect. (Fuqua Dep. at 94, 104, 105, 106, 116, 117, 119, 170).
At some point, Hess grasped Fuqua on the shoulder and instructed him to stop
walking. (Hess Dep. at 40; Fuqua Dep. at 94, 95-96, 100, 103). Fuqua stopped when
Hess placed his hand on his shoulder, and he then turned and talked to Hess, without
aggression or clenched fists.8 (Fuqua Dep. at 100, 114, 115, 116, 121-22, 123, 179).
Fuqua instructed Tiffany to record the encounter, prompting Tiffany to return inside
the home and retrieve her mobile telephone to record the events. (Fuqua Dep. at 100,
107, 117, 125; T. Fuqua Dep. at 26; McDade Dep. at 83, 167). Upon the door closing
behind her, Hess deployed his taser against Fuqua, without warning and without first
asking Fuqua to place his hands behind his back. (Fuqua Dep. at 100, 118, 119-20, 125,
171; McDade Dep. at 77). Neither Tiffany nor McDade recall Hess saying anything,
8

The officers attest that upon Hess placing his hand upon the shoulder, Fuqua turned toward Hess,
adopted an aggressive stance with clenched fists, and continued cursing loudly and repeatedly. (Hess
Dep. at 43, 44, 130, 133, 134, 137, 141, 161; Cantrell Dep. at 29-30, 75, 82, 85-86, 87, 96, 99, 101, 118;
Hess Decl., ¶ 8). The officers also testified that Fuqua refused commands to place his hands behind
his back. (Hess Dep. at 56, 57, 57, 58, 60; Cantrell Dep. at 97; Hess Decl., ¶ 9). Roberts declared
that from his viewpoint on his front porch, Fuqua did not appear to be following the officers’
instructions. (Roberts Decl., ¶ 5).
8

such as a directive, warning, etc., before he tased Fuqua the first time.9 (T. Fuqua Dep.
at 25; McDade Dep. at 93-94). The taser struck Fuqua on the side of his chest, and he
dropped to his knees. (Fuqua Dep. at 125, 127, 135; McDade Dep. at 77, 82, 84, 121,
160, 166; Doc. 43-9 at 20, 22).
Tiffany returned and captured two recordings of the incident, both of which
chronicled events after the afore-mentioned tasing.10 The first recording establishes
Fuqua’s repeated use of profanity in a raised voice.11

The audio recording also

establishes Hess and Cantrell commanded Fuqua to roll over several times. Tiffany
also recalled hearing the officers instruct Fuqua to roll over. (T. Fuqua Dep. at 50).
Fuqua objected to rolling over onto the taser barbs, which remained lodged in his
chest.12 (Fuqua Dep. at 125, 135, 172, 173). Hess then tased Fuqua a second time.13
9

According to the officers, after Hess grabbed the shoulder Fuqua pulled away at some point and
walked backwards several steps toward the home, explaining his identification was in the home.
(Cantrell Dep. at 23, 26, 27, 93-94, 99, 100, 101, 119; Hess Dep. at 29, 40, 127). They also testified
Fuqua in this movement assumed an aggressive stance, with fists clenched, and cursed profusely.
(Cantrell Dep. at 29-30, 75, 82, 86, 87, 96, 118; Hess Dep. at 43, 44, 130, 133, 134, 137, 141, 161; Hess
Decl., ¶ 8)
10

The recordings contain audio of the confrontation; however, the video portion primarily shows
Tiffany’s face during the incident and displays only a split second of the interaction between Fuqua
and the officers. The first recording begins at 15:27:58 and lasts 47 seconds. The second recording
begins at 15:29:23, approximately 38 seconds later, after the arrest and second tasing, and consists
primarily of interaction between Cantrell and Fuqua’s family members.
11

The officers testified the incident drew people out of their homes. (Cantrell Dep. at 48, 78; Hess
Dep. at 63-64). However, Fuqua and McDade testified only one home close to their residence
contained inhabitants. (Fuqua Dep. at 84, 11, 177; McDade Dep. at 81, 134-35).

12

Hess testified Fuqua attempted to stand up at this time, which Fuqua, Tiffany, and McDade dispute.
(Hess Dep. at 68, 123; Fuqua Dep. at 125, 126, 135; T. Fuqua Dep. at 50; McDade Dep. at 109, 121,
9

Fuqua ended on his stomach, with his hands behind his back for handcuffing. 14
(Fuqua Dep. at 126, 135; Hess Dep. at 70, 94, 98, 117).
Hess then pulled Fuqua to his feet and escorted him to a patrol car. Fuqua
testified the tasings rendered his gait wobbly. (Fuqua Dep. at 126). Hess pulled out a
stun gun to tase Fuqua a third time due to perceived noncompliance in walking, but
Fuqua told him there was no need to use it because he would comply with Hess’s
instructions.

(Fuqua Dep. at 127, 128-29).

Tiffany and McDade testified Hess

deployed the taser a third time in an effort to compel Fuqua to walk correctly as they
proceeded to the patrol car. (T. Fuqua Dep. at 52-53, 54, 65, 69; McDade Dep. at 127,
128, 129-30, 168-69, 176, 177, 180, 182). However, the taser did not deliver a charge.15
(T. Fuqua Dep. at 52-53, 54, 65, 70, 71; McDade Dep. at 127, 182). Fuqua testified
Hess tased him only twice during the entire incident. (Fuqua Dep. at 23, 134).

126, 127, 160, 166, 182).
13

Cantrell testified she had her hands on Fuqua at that point and would have felt the shock had the
taser operated correctly, contradicting Fuqua and Hess’s testimony that the taser fired correctly.
Cantrell opines a taser wire may have broken in the struggle to turn Fuqua over and place handcuffs on
him. (Cantrell Dep. at 38, 60, 67, 79-80).

14

Fuqua denies Hess instructed him to roll over; rather, he avers he rolled over voluntarily after Hess
deployed his taser the second time. (Fuqua Dep. at 126, 135).

15

Cantrell testified that while Hess escorted Fuqua to the patrol car, a cursing Fuqua attempted to pull
away and turn around. (Cantrell Dep. at 39-40). At that point, Cantrell heard Hess activate the taser,
yet she testified it did not affect Fuqua. (Cantrell Dep. at 44, 60).
10

In subsequent judicial proceedings, the Sheffield municipal court convicted
Fuqua of disorderly conduct and resisting arrest on January 7, 2015. (Doc. 43-6 at 8;
Doc. 43-7 at 8). Fuqua appealed to the Colbert County Circuit Court, which dismissed
the charges on the City of Sheffield’s motion on June 8, 2015. (Doc. 43-6 at 26; Doc.
43-7 at 18).
Fuqua testified that he encountered Hess approximately two months before the
incident in question, at a convenience store. Hess approached Fuqua about leaving a
child in a car outside the store and gave him a warning. Fuqua claimed Hess told him
to stay out of Sheffield. (Fuqua Dep. at 71-74). Hess recalled talking to Fuqua at a
convenience store and giving him a verbal warning about illegally parking in an alleyway.
(Hess Dep. at 33-34, 36).
ANALYSIS
As stated previously, Fuqua claims Hess violated his Fourth Amendment right to
be free from unlawful seizures, false arrests, and excessive force. Hess argues he
deserves qualified immunity from Fuqua’s claims. As the following analyses portray,
Hess garners qualified immunity on the unlawful seizure and false arrest claims, yet
genuine, disputable issues of material fact preclude summary judgment on Fuqua’s
excessive force claim.
Qualified immunity protects government officials performing discretionary
functions in their individual capacity from civil suit and liability “insofar as their
11

conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Hill v. Cundiff, 797 F.3d 948, 978 (11th Cir.
2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When a court concludes
the defendant was engaged in a discretionary function, “‛the burden shifts to the
plaintiff to show that the defendant is not entitled to qualified immunity.’” Hill, 797
F.3d at 978 (citation omitted). There exists no dispute Hess performed discretionary
functions in these circumstances, so Fuqua bears the burden of persuasion on the
balance of the qualified immunity inquiry: Hess violated a constitutional right, and the
right was clearly established at the time of the alleged violation. Id. (citation omitted).
Courts retain discretion to adjudicate one prong without addressing the other. Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
The court will first determine whether Hess violated any of Fuqua’s
constitutional rights. Examining whether Hess violated a constitutional right rests
upon the standards applicable to the substantive doctrine at issue. In assessing
qualified immunity, a court may not resolve genuine disputes of fact in favor of the
party seeking summary judgment.
Applying the foregoing concepts demonstrates Fuqua may proceed under § 1983
only as to his excessive force claim.

12

I.

Hess Possessed Reasonable Suspicion to Initially Stop Fuqua
Fuqua’s Fourth Amendment unlawful seizure claim rests upon Hess’s initial stop

and detention in Fuqua’s front yard. The Fourth Amendment protects people against
unreasonable searches and seizures. A Fourth Amendment seizure occurs “when
there is a governmental termination of freedom of movement through means
intentionally applied.” County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (citations
and emphasis omitted). The Supreme Court delineates at least three categories of
police-citizen encounters meriting different levels of Fourth Amendment scrutiny:
“(1) brief, consensual and non-coercive interactions that do not require Fourth
Amendment scrutiny . . .; (2) legitimate and restrained investigative stops short of
arrests to which limited Fourth Amendment scrutiny is applied . . .; and (3) technical
arrests, full-blown searches or custodial detentions that lead to a stricter form of Fourth
Amendment scrutiny . . . .” United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003)
(citations omitted).
There exists no dispute Hess seized Fuqua during the encounter in the yard, as
Hess stopped Fuqua to question him about the reported domestic disturbance, and he
grasped Fuqua’s shoulder to prevent him from proceeding into his home. The inquiry
ensues whether these initial seizures, which manifest as investigative stops short of
arrest, were unreasonable.

13

The inquiry proceeds under the reasonable suspicion standard. The standard
established in Terry v. Ohio permits officers to detain citizens briefly to investigate “a
reasonable suspicion that such persons are involved in criminal activity.” United States
v. Pruitt, 174 F.3d 1215, 1219 (11th Cir. 1999); see also United States v. Hensley, 469 U.S. 221,
229 (1985) (“if police have a reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in or is wanted in connection with a
completed felony, then a Terry stop may be made to investigate that suspicion.”).
Reasonable suspicion exists as a “commonsense, nontechnical conception” for
examining “the factual and practical considerations of everyday life on which
reasonable and prudent” persons, “not legal technicians, act.” Ornelas v. United States,
517 U.S. 690, 695 (1996) (citations omitted). As a “fluid concept[]” that gathers
“substantive content from the particular context[] in which the standard[]” is assessed,
“one determination [under the reasonable suspicion standard] will seldom be a useful
precedent for another.” Id. at 696, 698 (citations omitted).
Nevertheless, courts have divined some precepts for the Terry standard.
“Although the reasonable suspicion must be more than an inchoate and
unparticularized suspicion or hunch, the likelihood of criminal activity need not rise to
the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” United States v. Bautista-Silva, 567 F.3d 1266,
1272 (11th Cir. 2009) (citing, inter alia, United States v. Arvizu, 534 U.S. 266, 274, (2002))
14

(other citations and internal alterations omitted). “The officer’s reasonable suspicion
must be based on ‘specific articulable facts, together with rational inferences from those
facts.’” Id. (citation omitted).
Courts must review the “totality of the circumstances” to determine whether an
officer possessed “a particularized and objective basis for suspecting legal wrongdoing.”
Id. (quoting Arvizu, 534 U.S. at 273). “This process allows officers to draw on their
own experience and specialized training to make inferences from and deductions about
the cumulative information available to them that might well elude an untrained
person.” Id. (quoting Arvizu, 534 U.S. at 273); see also United States v. Reed, 402 F. App’x
413, 415 (11th Cir. 2010) (“Reasonable suspicion analysis is not concerned with ‘hard
certainties, but with probabilities . . . .’ ‘[T]he determination of reasonable suspicion
must be based on commonsense judgments and inferences about human behavior.”)
(quoting United States v. Cortez, 449 U.S. 411, 418 (1981); Illinois v. Wardlow, 528 U.S. 119,
125 (2000)). Moreover, “[r]easonable suspicion is determined from the . . . collective
knowledge of all the officers involved in the stop.” United States v. White, 593 F.3d
1199, 1203 (11th Cir. 2010) (citations and internal quotation marks omitted).
In this case, the 911 call provided information indicating a possible domestic
dispute and sufficiently described Fuqua’s residence and the vehicles parked outside.
Therefore, on these undisputed facts no reasonable juror could deny the officers
possessed adequate, reasonable suspicion to initiate contact with Fuqua to conduct an
15

investigation. See Navarette v. California, 572 U.S. 393, 403-04 (2014) (911 call claiming
eyewitness knowledge of alleged illegal activity gave police reasonable suspicion to
perform investigative stop); Terry, 392 U.S. at 22 (“a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possible criminal behavior even though there is no probable cause to make
an arrest”); United States v. Sanders, 394 F. App’x 547, 549 (11th Cir. 2010) (officers’
corroboration of anonymous 911 call created reasonable, articulable suspicion to detain
suspect for an investigatory stop). Therefore, Hess deserves qualified immunity and
summary judgment on the unlawful seizure claim.
II.

Hess Possessed Probable Cause to Question and Arrest Fuqua
Fuqua’s second Fourth Amendment claim avers Hess perpetrated a false arrest

under the circumstances of this case. An arrest without probable cause constitutes an
unreasonable seizure that violates the Fourth Amendment. Brown v. City of Huntsville,
608 F.3d 724, 734 (11th Cir. 2010). Conversely, an arrest buttressed by probable cause
constitutes an absolute bar to a Fourth Amendment claim for false arrest. See Gurrera v.
Palm Beach Cnty. Sheriff’s Office, 657 F. App’x 886, 889 (11th Cir. 2016) (citing Marx v.
Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990)); Case v. Eslinger, 555 F.3d 1317, 1326-27
(11th Cir. 2009). Therefore, to preclude qualified immunity on a false arrest claim, a
plaintiff must “show a lack of probable cause” for the arrest. Gurrera, 657 F. App’x at
889 (citation omitted).
16

Law enforcement officers may effect warrantless arrests “where there is probable
cause to believe that a criminal offense has been or is being committed.” Devenpeck v.
Alford, 543 U.S. 146, 152 (2004) (citations omitted). “Probable cause exists when ‘the
facts and circumstances within the officers’ knowledge, of which he or she has
reasonably trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed . . . an offense.’” Miller v. Harget,
458 F.3d 1251, 1259 (11th Cir. 2006) (citing Rankin v. Evans, 133 F.3d 1425, 1435 (11th
Cir. 1998)). For probable cause to exist, “an arrest [must] be objectively reasonable
under the totality of the circumstances,” Bailey v. Board of Cnty. Comm’rs of Alachua Cnty.,
Fla., 956 F.2d 1112, 1119 (11th Cir. 1992), and an officer’s subjective intentions play no
role in determining the existence of probable cause. See Rankin, 133 F.3d at 1433-34.
The “substance of all the definitions of probable cause is a reasonable ground for
belief of guilt . . . particularized with respect to the person to be searched or seized.”
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citations omitted); see also United States v.
$242,484.00, 389 F.3d 1149, 1160 (11th Cir. 2004) (“Probable cause in this context is a
‘reasonable ground for belief of guilt, supported by less than prima facie proof but more
than mere suspicion—the same standard used to determine the legality of arrests,
searches, and seizures in criminal law.’”) (citations omitted). “All we have required is
the kind of ‘fair probability’ on which ‘reasonable and prudent people, not legal
technicians, act.’” Florida v. Harris, 568 U.S. 237, 243 (2013) (citations and internal
17

alterations omitted). Although “not a high bar,” probable cause “requires . . . a
probability or substantial chance of criminal activity, not an actual showing of such
activity.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018).
Indeed, in qualified immunity determinations, assessing probable cause
commands a relaxed assessment.

To obtain qualified immunity on a Fourth

Amendment unlawful seizure claim, an officer need only sustain “arguable” probable
cause, not actual probable cause. Brown, 608 F.3d at 735. Arguable probable cause
exists where “reasonable officers in the same circumstances and possessing the same
knowledge as [a defendant] could have believed that probable cause existed to arrest [a
§ 1983 complainant].” Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)
(quotation marks omitted). “Indeed, it is inevitable that law enforcement officials will
in some cases reasonably but mistakenly conclude that probable cause is present, and in
such cases those officials should not be held personally liable.” Von Stein v. Brescher, 904
F.2d 572, 579 (11th Cir. 1990) (quotation marks and ellipses omitted).
Assessing arguable probable cause rests upon the elements of the alleged crime
and the operative fact pattern. Skop v. City of Atlanta, 485 F.3d 1130, 1137-38 (11th Cir.
2007); Crosby v. Monroe Cnty., Ala., 394 F.3d 1328, 1333 (11th Cir. 2004). However,
determining arguable probable cause does not require proof of every element of a
crime. Brown, 608 F.3d at 735; Scarbrough v. Myles, 245 F.3d 1299, 1302-03 (11th Cir.

18

2001). If the arresting officer had arguable probable cause to arrest for any offense,
qualified immunity will apply. Skop, 485 F.3d at 1138.
The authorities charged Fuqua with disorderly conduct based upon the
circumstances that prevailed in the front yard. Alabama law defines disorderly conduct
in pertinent part as follows:
(a) A person commits the crime of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a
risk thereof, he or she does any of the following: . . .
(2) Makes unreasonable noise. . . .
Ala. Code § 13A-11-7(a).
Several court decisions delineate circumstances where probable cause exists to
effect a disorderly conduct arrest for making an unreasonable noise. See Redd v. City of
Enterprise, 140 F.3d 1378, 1382–83 & n.4 (11th Cir. 1998) (officers had probable cause to
arrest plaintiff for unreasonable noise based upon plaintiff’s admission he attempted to
be heard over traffic and spoke loudly enough to be heard across the street, and
passers-by complained of the loudness); Windham v. City of Fairhope, 597 F. App’x 1068,
1072 (11th Cir. 2015) (plaintiff’s repeated yelling at officers and to truck driver on a busy
road, even if ultimately insufficient to sustain a conviction under the statute, provided
arguable probable cause for officers to arrest her for disorderly conduct by making
unreasonable noise); Lewis v. Blue, 774 F. Supp. 2d 1164, 1180–81 (M.D. Ala. 2011)
(arguable probable cause that plaintiff violated disorderly conduct statute by “recklessly
19

creating a risk” of “public annoyance” by “making unreasonable noise”; although
plaintiff was on private property, she admitted she was loud in the use of “profane
language that could also be heard on the street, by neighbors, and by anybody passing
by”); Hutchins v. City of Alexander City, 822 So.2d 459, 461–62 (Ala. Crim. App. 2000)
(affirming a defendant’s disorderly conduct conviction pursuant to the unreasonable
noise prong based upon his screaming in a police station); Sterling v. State, 701 So. 2d 71
(Ala. Crim. App. 1997) (probable cause supporting a disorderly conduct arrest existed
when a defendant in a courthouse made unreasonable noise by loudly asking why the
sheriff had denied defendant’s application for a pistol permit.); c.f. Walker v. Briley, 140 F.
Supp. 2d 1249 (N.D. Ala. 2001) (fact issues existed as to probable cause for disorderly
conduct arrest where plaintiff denied being loud or using profanity).
Based upon the preceding caselaw and the undisputed facts reviewed previously
in the light most favorable to Fuqua, no reasonable juror can find Hess lacked arguable
probable cause to arrest Fuqua for disorderly conduct by making unreasonable noise.16
Fuqua argues the ultimate termination of the criminal proceedings in his favor establishes that
Hess lacked probable cause to arrest him. In contrast, Hess contends Fuqua’s conviction in the
municipal court proceedings satisfies the probable cause requirement, notwithstanding that the
charge was dismissed on appeal.
16

Hess basically relies upon the following principle discussed in the Restatement (Second) of Torts
§ 667(1): “the conviction of the accused by a magistrate or trial court, although reversed by an
appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was
obtained by fraud, perjury or other corrupt means.” Several pertinent decisions modify this principle:
where a conviction in a lower tribunal is vacated or overturned on appeal, the conviction represents
only prima facie evidence of probable cause, subject to a rebuttal by any competent evidence which
clearly overcomes the presumption. See Ex parte City of Gadsden, 718 So.2d 716, 718 (Ala. 1998); Gunter
20

Fuqua admitted he was angry, raised his voice, and used profanity during the
confrontation in his front yard. The officers corroborated Fuqua’s admission, stating
that he exhibited loud speech, cursing, and aggravation. A reasonable officer in the
circumstances may believe that Fuqua recklessly created a risk of public inconvenience,
annoyance, or alarm by making unreasonable noise. See Ex parte Thomas, 666 So. 2d
855, 857 (Ala. 1995) (probable cause for disorderly conduct arrest does not depend
upon whether residence is located in an urban or rural area).

v. Pemco Aeroplex, Inc., 646 So.2d 1332, 1333 (Ala. 1994); Brown v. Parnell, 386 So. 2d 1137 (Ala. 1980);
Johnston v. Byrd, 279 Ala. 491, 494, 187 So. 2d 246, 249 (1966); Jordan v. Wilson, 83 So. 2d 340, 341 (1955);
Long v. Dietrich, No. 1:10–cv–02859–HGD, 2012 WL 4478802 (N.D. Ala. Sept. 20, 2012); Lawrence v.
City of Fairhope, No. 09-0050-WS-C, 2010 WL 1658786 (S.D. Ala. April 22, 2010); Ruffino v. City of
Hoover, No. CV 08-B-0002-S, 2009 WL 10687946 (N.D. Ala. March 4, 2009).
Although it is not necessary to resolve the parties’ dispute, the court notes that the presumption may
not apply to this case’s circumstances. The Restatement section and all of the afore-cited cases, save
one, apply the presumption to complaints raising malicious prosecution claims, not false arrest claims.
This is appropriate, as the evidence garnered at trial on a criminal charge may not reflect the facts
available to an officer effecting an arrest based upon arguable probable cause. Indeed, the
presumption flatly contradicts Eleventh Circuit precedent, as the court unequivocally declares that
evaluating whether an officer had arguable probable cause to arrest a plaintiff rests upon “the
information known to the defendant officers or officials at the time of their conduct, not the facts
known to the plaintiff then or those known to a court later.” Wilkerson v. Seymour, 736 F.3d 974, 978
(11th Cir. 2013) (quotation omitted). More recently, the Supreme Court unequivocally foreclosed use
of the presumption for false arrest determinations. District of Columbia v. Wesby, 138 S. Ct. 577, 586
(2018) (“To determine whether an officer had probable cause for an arrest, ‘we examine the events
leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of
an objectively reasonable police officer, amount to’ probable cause.’”) (quoting Maryland v. Pringle, 540
U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996))).
21

Because Hess had arguable probable cause to arrest Fuqua, the law affords Hess
qualified immunity as to Fuqua’s Fourth Amendment false arrest claim. 17
III.

Genuine Issues of Material Fact Preclude Summary Judgment on
Plaintiff’s Fourth Amendment Excessive Force Claim

Hess claims qualified immunity on Fuqua’s Fourth Amendment excessive force
claim. Based upon the genuine dispute of material facts whether Hess’s tasing violated
a clearly established constitutional right, the court will deny Hess summary judgment on
this claim.
A.

A Reasonable Jury May Determine Hess Used Excessive Force

“’The Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the plain right to be free from the use of excessive force in the course of
an arrest.’” Glasscox v. City of Argo, 903 F.3d 1207, 1213–14 (11th Cir. 2018) (quoting Lee
v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)). A court assesses the excessive force
inquiry by determining “’whether a reasonable officer would believe that this level of
force is necessary in the situation at hand.’” Id. (citation omitted). “[A] pretrial
detainee must show only that the force purposely or knowingly used against him was
17

The existence of arguable probable cause for at least one charge suffices to grant Hess qualified
immunity on Fuqua’s Fourth Amendment false arrest claim. See Lee v. Ferraro, 284 F.3d 1188, 1195-96
(11th Cir. 2002); Whittington v. Town of Surfside, 490 F. Supp. 2d 1239, 1251 (S.D. Fla. 2007), aff’d, 269 F.
App’x 918 (11th Cir. 2008) (“[S]o long as probable cause existed to arrest Plaintiff for any offense, the
arrest and detention are valid even if probable cause was lacking as to some offenses. . . .”).
Nevertheless, arguable probable cause existed for the resisting arrest charge based upon Fuqua’s
conduct after the first tasing. His refusal to turn over and submit to handcuffing, regardless of his
reasons for doing so, portrays probable cause for a resisting arrest charge.
22

objectively unreasonable”; a court does not take into account a defendant’s state of
mind. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). “Fourth Amendment
jurisprudence has long recognized that the right to make an arrest . . . necessarily carries
with it the right to use some degree of physical coercion or threat thereof to effect it.”
Id.
“Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal
quotation marks omitted). In conducting this examination, the court should evaluate
“‘(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat
to the safety of the officers or others; and (3) whether the suspect is actively resisting
arrest or attempting to evade arrest by flight.” Fils v. City of Aventura, 647 F.3d 1272,
1288 (11th Cir. 2011) (citations omitted); see also Glasscox, 903 F.3d at 1214 (applying
same factors).
Analyzing Fuqua’s claims pursuant to the foregoing standard, the court denies
summary judgment because genuine issues of material fact exist whether Hess’s first use
of the taser was excessive. As for the first factor, the severity of the crime at issue, the
evidence is nearly in equipoise on a summary judgment assessment, yet it prevails
slightly in Fuqua’s favor. The disorderly conduct by unreasonable noise offense
23

represents a relatively minor crime, as using profanity in a loud voice does not constitute
a serious offense. See Fils, 647 F.3d at 1288 (“Disorderly conduct is not a serious
offense.”) (citing Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)).

Even

“resisting arrest without force does not connote a level of dangerousness that would
justify a greater use of force.” Fils, 647 F.3d at 1288.
However, Hess responded to a domestic violence call at Fuqua’s residence,
which is an offense commanding a heightened degree of seriousness. Fuqua and his
family members deny any domestic altercation occurred at the residence, yet Hess’s
caution in the assessment of such claims is reasonable given the dispatch he received
about the circumstances. Nevertheless, Fuqua exhibited only disorderly conduct at the
time of the first tasing, which represents a less serious offense as discussed previously.
The second factor assesses whether Fuqua posed an immediate threat to the
officers’ or others’ safety. Although Fuqua admits he was angry and used a loud voice
with profanity, he testified he did not curse at Hess. Fuqua declares he gave his name
to Hess, and he asserts he did not refuse to produce identification; rather, he informed
the officers he would have to retrieve his identification from his home. According to
Fuqua and his family members, Fuqua was not aggressive or combative in his
interaction with Hess, and he did not clench his fists. And, viewing the facts in the
light most favorable to Fuqua, the officers did not provide any warning, directives, or
declarations that he was under arrest, and thus, Fuqua did not disobey any orders.
24

Third, according to Fuqua’s version of the circumstances, he did not resist arrest.
As recounted, he believed the officers were going to arrest him, yet they had not said as
much before Hess tased him. Fuqua stopped when Hess grabbed his shoulder, and he
was not combative or aggressive upon Hess’s grasp. Hess immediately tased Fuqua
upon Fuqua’s directive to his sister to retrieve her mobile telephone to record the
events. These facts do not indicate Hess resisted arrest.
The conflicting allegations in this case create a genuine issue of material fact
whether Fuqua was non-hostile, non-violent, and cooperative, or whether he acted
hostile, belligerent, and uncooperative.

If the former circumstances manifested,

existing case law establishes Hess may have used excessive force in tasing Fuqua the
first time; if the latter, Hess may have been justified in his use of a taser.
This conclusion comports with Eleventh Circuit caselaw on claims of excessive
force.

As the court held in Fils, “unprovoked force against a non-hostile and

non-violent suspect who has not disobeyed instructions violates that suspect’s rights
under the Fourth Amendment.” 647 F.3d at 1289. In Fils, as police officers arrested a
suspect outside of a night club with a crowd of onlookers present, the plaintiff
commented to an associate that “’they’re overreacting, these motherfuckers are
overreacting’—‘they’ presumably meaning the police.” Id. at 1288. One of the
defendant-officers approached the plaintiff; asked, “what you said, motherfucker?”;
pulled out his taser; and tased the plaintiff with no verbal warning as the plaintiff was
25

backing up with his hands in the air. Id. The Court determined these circumstances
warranted a trial on the claim, reasoning that “[o]ther cases confirm that non-violent
suspects, accused of minor crimes, who have not resisted arrest . . . are victims of
constitutional abuse when police used extreme force to subdue them.” Id. at 1289
(citing Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (the defendant-officer
used excessive force when he punched the plaintiff in the stomach while the plaintiff
was handcuffed and not resisting arrest); Priester v. City of Riviera Beach, Florida, 208 F.3d
919 (11th Cir. 2000) (the court held that the defendant-officer used excessive force when
he released his police dog to attack the plaintiff, who was accused of a minor,
non-violent offense, who had obeyed every police command, and who was lying still on
the ground when the defendant-officer released his dog)). The Court declared that
although none of its cited cases involved tasers, it saw “no meaningful distinction under
the[] circumstances.” Fils, 647 F.3d at 1289.
Hess argues that his initial deployment of the taser did not constitute excessive
force, particularly highlighting the officers’ testimony that Fuqua was combative,
repeatedly cursed in a loud voice, clenched his fists, turned aggressively towards the
officers, backed away from them, and disobeyed commands to place his hands behind
his back. Hess argues it was reasonable for him to conclude the use of a taser was
necessary, given the foregoing facts as buttressed by the nature of the alleged domestic

26

violence, the lack of an opportunity to conduct a pat down, and the lack of knowledge
whether other violent suspects occupied the dwelling.
The Supreme Court’s decision in Tolan v. Cotton, 572 U.S. 650 (2014), sets forth
the proper disposition as to the disputed issues of fact in this case. In Tolan, the Court
reversed the affirmance of summary judgment dismissing the plaintiff’s excessive force
claim because the lower court “failed to view the evidence . . . in the light most favorable
to [plaintiff] with respect to the central facts of this case.” Id. at 657. “By failing to
credit evidence that contradicted some of its key factual conclusions, the court
improperly ‘weighed the evidence’ and resolved disputed issues in favor of the moving
party.” Id. (citations omitted).
In Tolan, an officer pulled over plaintiff and his cousin in a vehicle the officer
mistakenly believed was stolen because he had miskeyed the vehicle’s license plate
number into a database. The stop occurred in front of plaintiff’s home, and his parents
came outside and pleaded with the officers that they owned the vehicle and the home.
Plaintiff and his cousin lay on the ground at the direction of the officer and plaintiff’s
father. The defendant-officer responded to the call, and the defendant’s handling of
plaintiff’s mother resulted in a response that occasioned the defendant’s shooting of
plaintiff and the ensuing § 1983 lawsuit. Id. at 651-54.
The Court declared the lower court erred in resolving four factual disputes at
summary judgment. First, the defendant asserted the home’s front porch was dimly lit,
27

but plaintiff’s father testified the light was illuminating and there existed
motion-activated floodlights on the driveway. Id. at 657-58. Second, the defendant
stated plaintiff’s mother was very agitated and refused orders to keep calm and quiet,
but the mother testified she was neither aggravated nor agitated. Id. at 658.
Third, the defendant testified the plaintiff was shouting and verbally threatening
the defendant. Although all parties agree the plaintiff told the defendant, “get your
fucking hands off my mom,” the Court found “a jury could reasonably infer that his
words, in context, did not amount to a statement of intent to inflict harm” because a
“jury could well have concluded that a reasonable officer would have heard [the
plaintiff’s] words not as a threat, but as a son’s plea not to continue any assault of his
mother.” Id. at 658, 659.
Finally, the defendant testified the plaintiff moved to intervene in the officer’s
altercation with the mother as he was in a crouch or in a charging position, but the
plaintiff, corroborated by his mother, testified he was on his knees, did not jump up,
and was not going anywhere. Id. at 659.
Based upon the foregoing disputed issues of fact, the Court reasoned “the court
below credited the evidence of the party seeking summary judgment and failed properly
to acknowledge key evidence offered by the party opposing that motion.” Id. As
acknowledged by the Court, witnesses for the parties in an excessive force case “come
. . . with their own perceptions, recollections, and even potential biases. It is in part for
28

that reason that genuine disputes are generally resolved by juries in our adversarial
system.” Id. at 660. “By weighing the evidence and reaching factual inferences
contrary to [the plaintiff’s] competent evidence, the court below neglected to adhere to
the fundamental principle that at the summary judgment stage, reasonable inferences
should be drawn in favor of the nonmoving party.” Id.
At this summary judgment stage of the case at bar, the court cannot give
credence to Hess’s evidence that Fuqua was aggressive, combative, and disobeyed
commands, notwithstanding Fuqua’s admitted loud cursing and anger. A reasonable
jury may conclude that Fuqua’s behavior did not constitute a threat to Hess, but rather
as consternation regarding an impending arrest for a crime (domestic violence) that
allegedly did not occur according to Fuqua and his family members.

These

circumstances substantially correspond to the circumstances in Tolan as to the court’s
proper resolution of the disputed issues of fact. “[C]ourts must take care not to define
a case’s ‘context’ in a manner that imports genuinely disputed factual propositions.”
Tolan, 572 U.S. at 657.
As to the second tase, Hess prevails on his summary judgment argument. The
officers repeatedly commanded Fuqua to roll over and lie down on the ground. Fuqua
has stated he refused the command because of the presence of taser barbs in his chest.
Therefore, the evidence portrays Fuqua failed to comply with the officers’ commands,
resulting in Hess’s second tasing to gain compliance. Under these circumstances, the
29

court finds Hess’s second use of the taser did not violate Fuqua’s Fourth Amendment
rights. See Anthony v. Coffee Cnty., 579 F. App’x 760, 765 (11th Cir. 2014) (finding use of
taser not excessive when plaintiff was uncooperative by refusing to turn and place his
hands behind his back).
B.

Clearly Established Law Proscribed Hess’s Alleged Excessive
Force

As foreshadowed in the previous section, clearly established law proscribes
Hess’s tasing of Fuqua under the alleged circumstances. Determining whether a
constitutional right was clearly established may proceed in three guises. A right may be
clearly established by “(1) case law with indistinguishable facts clearly establishing the
constitutional right; (2) a broad statement of principle within the Constitution, statute,
or case law that clearly establishes a constitutional right; or (3) conduct so egregious that
a constitutional right was clearly violated, even in the total absence of case law.” Hill,
797 F.3d at 979 (citation omitted). Under the second, afore-cited method, “every
objectively reasonable government official facing the circumstances would know that
the official’s conduct did violate federal law when the official acted.” Id. (citation
omitted).
The “clearly established right must be defined with specificity.” City of Escondido,
Cal. v. Emmons, No. 17-1660, 2019 WL 113027, at *2 (U.S. Jan. 7, 2019) (per curiam).
“’Use of excessive force is an area of the law in which the result depends very much on
30

the facts of each case, and thus police officers are entitled to qualified immunity unless
existing precedent squarely governs the specific facts at issue. . . . An officer cannot be
said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.’” Id. (quoting Kisela v. Hughes, 584 U.S. ___, ___,
138 S. Ct. 1148, 1153 (2018) (per curiam)).
A right is clearly established if a defendant acted on “fair warning” that his
conduct violated the constitutional rights of the plaintiff. Hope v. Pelzer, 536 U.S. 730,
739 (2002) (citing United States v. Lanier, 520 U.S. 259 (1997)). As elaborated, “fair
warning” may emanate either from factually similar case law or where the right is one of
‘obvious clarity’- i.e., where the officer’s conduct “lies so obviously at the very core of
what the [constitutional provision] prohibits that the unlawfulness of the conduct was
readily apparent to [the official], notwithstanding the lack of fact-specific case law” on
point. Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009)). To establish the narrow
obvious-clarity exception, “a plaintiff must show that the official’s conduct was so far
beyond the hazy border between excessive and acceptable force that the official had to
know he was violating the Constitution even without caselaw on point.” Glasscox, 903
F.3d at 1218 (citation omitted). “This test entails determining whether application of
the excessive force standard would inevitably lead every reasonable officer in the

31

Defendants’ position to conclude the force was unlawful.” Id. at 1218 (citation
omitted).
In determining whether a right was clearly established, the court refers to binding
decisions of the United States Supreme Court, the Eleventh Circuit, and the highest
court of the relevant state. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007);
Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th Cir. 2003).
As presaged, Fils, a 2011 case, provided clearly established law placing Hess on
fair notice that the alleged excessive force violated the Fourth Amendment. As the
Eleventh Circuit explained, clearly-established caselaw prohibited the use of a taser
when the suspect “committed at most a minor offense; . . . did not resist arrest; . . . did
not threaten anyone; and . . . did not disobey any instructions (for none were given).”
Fils, 647 F.3d at 1292. The Fils decision relied upon two prior cases for its proposition,
finding that, although not identical, or even “materially similar,” they provided fair
warning “such force is excessive where the suspect is non-violent and has not resisted
arrest.” Id. (citing Priester, 208 F.3d at 927 (in a case where plaintiff-suspect had
allegedly burglarized a dwelling, “the defendant-officer set his attack dog on the plaintiff
even though the plaintiff had submitted to the defendant-officer’s every command and
was laying flat on the ground”); Vinyard, 311 F.3d at 1347-48 (plaintiff verbally accosted
officer with insults and screaming, and “the defendant-officer sprayed pepper spray into

32

the eyes of [the] non-violent plaintiff, who was handcuffed safely in the back seat of the
defendant-officer’s police car, and had threatened no one.”)).
Furthermore, the Fils decision held that the circumstances merited the “obvious
clarity” exception of the clearly-established analysis. Accepting the facts as true, the
Court determined the line was not hazy, as the plaintiff “showed no hostility to the
Defendants, did not disobey any orders, and did not make any menacing gestures.
Assuming these facts, no reasonable officer could ever believe that it was appropriate to
shoot taser probes into” the plaintiff. Fils, 647 F.3d at 1292.
The same result manifests in this case on the clearly-established analysis. Taking
the facts in the light most favorable to Plaintiff, Hess tased Fuqua the first time
unprovoked, as Fuqua did not resist arrest, did not threaten anyone, did not disobey any
instructions, and committed the minor offense of disorderly conduct by unreasonable
noise. True, genuine disputes of material fact sharply divide the parties on the
foregoing description, and if the officers’ proffered facts are true, Hess merits judgment
in his favor. See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (an officer
reasonably deploys a taser against a “hostile, belligerent, and uncooperative” suspect
during a “difficult, tense and uncertain situation”); Zivojinovich v. Barner, 525 F.3d 1059,
1073 (11th Cir. 2008) (officers may tase an arrestee when they reasonably believe the
suspect intentionally sprayed blood from his mouth onto them); Buckley v. Haddock, 292
F. App’x 791 (11th Cir. 2008) (the use of a taser to effect an arrest does not constitute
33

excessive force when a subject is actively resisting arrest). Yet the ultimate resolution
of the disputed facts must occur at trial, not at this summary judgment stage of the
proceedings when the court must take Fuqua’s facts as true. Tolan, 572 U.S. at 657
(“courts must take care not to define a case’s ‘context’ in a manner that imports
genuinely disputed factual propositions.”).
For the foregoing reasons, the court denies summary judgment on Plaintiff
Fuqua’s Fourth Amendment excessive force claim against Defendant Hess.
IV.

State Agent Immunity Bars Fuqua’s State Law Claims for False Arrest
and False Imprisonment, But Not for Assault and Battery

Hess contends state agent immunity bars liability for Fuqua’s state law claims for
false arrest, false imprisonment, and assault and battery. The court finds Hess’s
argument bears merit as to the false arrest and false imprisonment claims, but not the
assault and battery claim.
Under Alabama law, Hess, as a city police officer, enjoys immunity from tort
liability “arising out of his [ ] conduct or performance of any discretionary function
within the line and scope of his [ ] law enforcement duties.” Ala. § 6–5–338(a). The
Alabama Supreme Court described this immunity doctrine in Ex parte Cranman, 792 So.
2d 392 (Ala. 2000), and later revised it in Hollis v. City of Brighton, 950 So. 2d 300 (Ala.
2006). In relevant part:
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
34

based upon the agent’s . . . (4) 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.
Hollis, 950 So.2d at 309. However, “a State-agent shall not be immune from civil
liability” in his individual capacity either: (1) when required by law; or (2) “when the
State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law.” Cranman, 792 So.2d at 405.
Courts employ a burden-shifting analysis when determining whether state-agent
immunity applies. Howard v. City of Atmore, 887 So. 2d 201, 205 (Ala. 2003). The peace
officer initially bears the burden of establishing a plaintiff’s “claims arise from a
function that would entitle [the defendant] to immunity.” Id.; see also Walker v. City of
Huntsville, 62 So. 3d 474, 496-98 (Ala. 2010). To carry that burden, a defendant must
establish (i) he or she was a peace officer on the date of the incident in question
(ii) performing law enforcement duties at the time of the circumstances in question and
(iii) exercising judgment or discretion when doing so. Howard, 887 So. 2d at 204.
“The burden then shifts to the plaintiff to show that one of the two categories of
exceptions . . . recognized in Cranman is applicable.” Ex parte Kennedy, 992 So. 2d 1276,
1282 (Ala. 2008).
For all of the state law claims, there exists no dispute as to the first element as
Hess qualifies as a “peace officer.” See Borders v. City of Huntsville, 875 So.2d 1168, 1178
35

(Ala. 2003) (“As a police officer, [the defendant] qualifies as a peace officer for purposes
of [discretionary-function immunity].”); Howard, 887 So.2d at 204 (“It is undisputed that
[the defendant] was a law enforcement officer at the [relevant time] . . . . The first
element is, therefore, satisfied.”).
Hess also satisfies the second element because he engaged in law enforcement
duties while investigating and apprehending plaintiff. See Cranman, 792 So.2d at 405
(“arresting or attempting to arrest persons” included within actions garnering
immunity); House v. State, 380 So. 2d 940, 941 (Ala. 1979) (holding that for immunity
purposes law enforcement duties include the “detection and apprehension of
criminals”).
Hess also satisfies the third element, as he was exercising judgment or discretion
in investigating the 911 call and arresting Fuqua. Enforcement of the criminal laws
qualifies as a discretionary function. See Grider v. City of Auburn, Ala., 618 F.3d 1240,
1268 (11th Cir. 2010) (“Police investigations and arrests usually are considered
‘discretionary function[s] within the line and scope of . . . law enforcement duties’ for
the purposes of discretionary-function immunity.”) (quoting Swan v. City of Hueytown,
920 So. 2d 1075, 1078–79 (Ala. 2005)); Sheth v. Webster, 145 F.3d 1231, 1238–39 (11th Cir.
1998) (police officers’ use of force and arrest of plaintiff qualify as discretionary
functions under Alabama law).

36

However, Fuqua contends Hess acted in derogation of law or acted willfully,
maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken
interpretation of the law.

As reflected previously, Fuqua bears the burden of

establishing this exception to state agent immunity. See Brown, 608 F.3d at 741.
Because the court previously determined in the federal qualified immunity
analysis that Hess sustained arguable probable cause to arrest Fuqua for disorderly
conduct, Fuqua cannot satisfy his burden as to his false arrest and false imprisonment
claims. A false arrest claim requires proof “‛the defendant caused [plaintiff] to be
arrested without probable cause.’” Ex parte Harris, 216 So. 3d 1201, 1213 (Ala. 2016)
(quoting Walker v. City of Huntsville, 62 So. 3d 474, 493 (Ala. 2010)). As described
previously, “’probable cause exists where the facts and circumstances within the
officer’s knowledge and of which he has reasonable trustworthy information are
sufficient to warrant a man of reasonable caution in the belief that an offense has been
or is being committed.’” Harris, 216 So.3d at 1213 (quoting Walker, 62 So.3d at 492)
(internal alteration omitted). Thus, “‛for a detention to be valid, the officer must
reasonably, and in good faith, suspect the individual detained of being involved in some
form of criminality.’” Harris, 216 So.3d at 1213 (quoting Walker, 62 So.3d at 493)
(internal alteration omitted). Establishing “probable cause does not require evidence
or information sufficient to support a conviction.” Harris, 216 So.3d at 1213 (citing
Dixon v. State, 588 So.2d 903 (Ala. 1991)).
37

“False imprisonment consists in the unlawful detention of the person of another
for any length of time whereby he is deprived of his personal liberty.” Ala. Code § 6–5–
170. A false arrest will support a claim for false imprisonment. Harris, 216 So.3d at
1213 (citing Upshaw v. McArdle, 650 So.2d 875 (Ala. 1994)).
Notably, the Alabama Supreme Court applies the same arguable probable cause
standard elucidated earlier in determining whether an officer receives state-agent
immunity for his role in an arrest. Brown, 608 F.3d at 741 (citing Borders v. City of
Huntsville, 875 So.2d 1168, 1180 (Ala. 2003); see also Harris, 216 So.3d at 1213 (“Arguable
probable cause exists ‘when an officer makes an arrest lacking probable cause if officers
of reasonable competence in the same circumstances and with the same knowledge
would disagree as to whether probable cause existed.’”) (quoting Borders, 875 So.2d at
1179); (citing Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)). That is,
establishing arguable probable cause for an arrest and detention forestalls a finding that
a defendant-officer acted willfully, maliciously, fraudulently, in bad faith, beyond
authority, or under a mistaken interpretation of the law. “Whether a police officer
possesses probable cause or arguable probable cause to arrest an individual depends on
the elements of the alleged offense and the operative set of facts.” Harris, 216 So.3d at
1213 (citing Brown, 608 F.3d at 735).
As held above, Hess receives qualified immunity for his conduct in arresting
Fuqua because the facts, construed in the light most favorable to Fuqua, demonstrate
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Hess possessed arguable probable cause to arrest Fuqua for disorderly conduct. Hess
thus receives state-agent immunity from Fuqua’s false arrest and false imprisonment
claims. See Brown, 608 F.3d at 741-42.
The assault and battery claim garners a different outcome. A battery occurs
when: (1) the defendant touched the plaintiff; (2) the defendant intended to touch the
plaintiff; and (3) the touching was conducted in a harmful or offensive manner. Wood
v. Cowart Enters., Inc., 809 So. 2d 835, 837 (Ala. Civ. App. 2001) (citation omitted). “A
battery consists in an injury actually done to the person of another in an angry or
revengeful or rude or insolent manner, as by spitting in the face, or in any way touching
him in anger, or violently jostling him out of the way, or in doing any intentional
violence to the person of another.” Surrency v. Harbison, 489 So. 2d 1097, 1104 (Ala.
1986). 18

Most Alabama court decisions lump assault and battery claims together. See, e.g., Hinson v. Holt, 776
So. 2d 804, 810 (Ala. Civ. App. 1998) (“At common law, ‘any touching by one person of the person of
another in rudeness or in anger is an assault and battery.’”) (quoting Seigel v. Long, 53 So. 753, 754 (Ala.
1910) (citing Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala. 1986)). However, there exists a
conceptual distinction. A person commits an assault by “an intentional, unlawful, offer to touch the
person of another in a rude or angry manner under such circumstances as to create in the mind of the
party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent
present ability to effectuate the attempt, if not prevented.” Wood v. Cowart Enters., Inc., 809 So. 2d 835,
837 (Ala. Civ. App. 2001) (citations omitted). Yet, one may commit an assault without committing a
battery, and vice versa. See Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts
§ 38 (2d ed. June 2018 Update) (“Newspapers and even judges and lawyers sometimes use the term
assault to mean a battery. More technically, assault is a quite different tort, although it often precedes
a battery. . . . [I]f the plaintiff apprehends that she is about to be battered, her assault claim is in no
way diminished by the fact that the battery was completed and that she also has a claim for that. On
the other hand, if the plaintiff never apprehended that a battery was forthcoming, the defendant may
be liable for a battery but not an assault.”) (footnotes omitted).
39
18

As for the second tasing, Fuqua has not proffered sufficient evidence that Hess
acted willfully, maliciously, or in bad faith. Rather, Hess used his taser to gain Fuqua’s
compliance with commands to put his hands behind his back to allow the officers to
place handcuffs on him.
However, the denial of summary judgment on the Fourth Amendment excessive
force claim as to the first tasing likewise commands a jury trial on the assault and battery
claim, particularly whether Hess acted willfully, maliciously, or in bad faith in tasing
Fuqua the first time. See Wright v. Wynn, 682 So. 2d 1, 2 (Ala. 1996) (“Because the
record indicates that a fact question was presented as to whether Wright used excessive
and illegal force in arresting Wynn, we cannot agree that the doctrine of discretionary
Pursuant to the foregoing standard, no reasonable juror can find that Hess assaulted Fuqua. Taking
the facts in the light most favorable to Fuqua, he did not have any indication Hess intended to tase him
the first time. As reflected previously, Fuqua asserts the tasing occurred without any warning.
Therefore, Fuqua could not have formed a “well-founded fear of an imminent battery” based upon
those assertions because he did not perceive Hess’s attempt to use the taser before actual deployment.
See Restatement (Second) of Torts § 22 (1965) (“An attempt to inflict a harmful or offensive contact or
to cause an apprehension of such contact does not make the actor liable for an assault if the other does
not become aware of the attempt before it is terminated.”).
To the extent the second and threatened third tasing could constitute an assault, Hess enjoys state
agent immunity because no reasonable juror could conclude Hess acted willfully, maliciously, or out of
bad faith given the previous findings Hess administered the second tasing, or threatened the third
tasing, due to Fuqua’s non-compliance with directives.
Nevertheless, as discussed, Alabama decisions link assault and battery claims together, presumably
because “an attempt to commit a battery will establish an assault, [and thus,] every battery necessarily
includes an assault because a battery is the very consummation of the assault.” 6 Am. Jur. 2d Assault
and Battery § 3 (citing Lakin v. Rund, 896 N.W.2d 76 (Mich. App. Ct. 2016), appeal denied, 894 N.W.2d
53 (Mich. 2017)). Although this conclusion may be logically incoherent if a victim fails to discern an
imminent battery, the undersigned will proceed with the accepted designation of the claim as “assault
and battery” as the distinction does not affect any substantive outcomes.
40

function immunity precludes Wynn’s assault and battery claim.”), abrogation on other
grounds implicitly recognized in Ex parte City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005)); see
also Jones v. Daniel, 41 So. 2d 627, 629 (Ala. Ct. App. 1949) (“The duty thus imposed on
the officers to make the arrest did not arm them with the right to use more force than
was reasonably necessary to accomplish this purpose.”) (citing Evans v. Walker, 187 So.
189 (Ala. 1939); Patterson v. State, 8 So. 756 (1891)).
Furthermore, Fuqua testified that he encountered Hess at a convenience store
approximately two months before the events at issue. Hess approached Fuqua about
leaving a child in a car outside the store and gave him a warning, and Fuqua claims Hess
told him to stay out of Sheffield. These facts may indicate Hess’s first use of the taser
constituted willful, malicious, or bad faith conduct based upon the prior interaction.
Therefore, the assault and battery claim will proceed to trial.
CONCLUSION
Based on the foregoing analyses, the court GRANTS Hess’s Motion for
Summary Judgment as to Fuqua’s 42 U.S.C. § 1983 unlawful seizure and false arrest
claims, his § 1983 excessive force claim as to the second tasing, and his state law false
arrest and false imprisonment claims.

The court DENIES Hess’s Motion for

Summary Judgment as to Fuqua’s § 1983 excessive force claim as to the first tasing and
his associated state law assault and battery claim.

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DONE and ORDERED this 5th day of February, 2019.

____________________________________
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE

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