Summers v. Martin

Filing 50

MEMORANDUM OPINION AND ORDER that the plaintiff's motion to strike is DENIED; plaintiff's motion for summary judgment is DENIED; and defendant's motion for summary judgment is DENIED; this case will be set for pretrial conference and trial by separate order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/11/2013. (AHI)

FILED
2013 Dec-11 PM 01:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SONNEY SUMMERS,
Plaintiff,
vs.
C. MARTIN,
Defendant.

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) Civil Action No. CV-12-S-1816-NE
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MEMORANDUM OPINION AND ORDER
Plaintiff, Sonney Summers, asserts claims against a former Madison County
Deputy Sheriff, Chris Martin, for an alleged illegal arrest and the use of excessive
force when effecting the arrest.1 All of plaintiff’s claims are asserted under 42 U.S.C.
§ 1983, and arise out of his arrest at the scene of a traffic stop involving his son.2 The
action is before the court on the parties’ cross-motions for summary judgment,3 and
on plaintiff’s motion to strike part of defendant’s evidentiary submissions.4 Upon
consideration of the pleadings, evidentiary submissions, and briefs, the court
concludes that all motions are due to be denied.
I. STANDARD OF REVIEW
1

See doc. no. 1 (Complaint).
See id. at 1-2.
3
Doc. no. 29 (Plaintiff’s Motion for Partial Summary Judgment); doc. no. 31 (Defendant’s
Motion for Summary Judgment).
4
Doc. no. 43 (Plaintiff’s Motion to Strike).
2

The Federal Rules of Civil Procedure state that “[t]he 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. 56(a) (alteration supplied). Thus, “the plain language of [that rule] 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) (alteration
supplied).
In making this determination, the court must review all evidence and
make all reasonable inferences in favor of the party opposing summary
judgment.
[However,] [t]he mere existence of some factual dispute will not
defeat summary judgment unless that factual dispute is material to an
issue affecting the outcome of the case. The relevant rules of
substantive law dictate the materiality of a disputed fact. A genuine
issue of material fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable [factfinder] to return a
verdict in its favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal
citations omitted, alterations and emphasis supplied).
When presented cross motions for summary judgment, “[t]he court must rule
on each party’s motion on an individual and separate basis, determining, for each
2

side, whether a judgment may be entered in accordance with the Rule 56 standard.”
10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2720, at
335-36 (1998) (footnote omitted, alteration supplied). As another court within this
Circuit has observed:
“Cross motions for summary judgment do not change the
standard.” Latin Am. Music Co. v. Archdiocese of San Juan of the
Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007).
“Cross motions for summary judgment are to be treated separately; the
denial of one does not require the grant of another.” Christian Heritage
Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1030
(10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431,
433 (10th Cir. 1979)). “Even where parties file cross motions pursuant
to Rule 56, summary judgment is inappropriate if disputes remain as to
material facts.” Id.; accord Monumental Paving & Excavating, Inc. v.
Pa. Mfrs.’ Ass’n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999) (“When
considering motions from both parties for summary judgment, the court
applies the same standard of review and so may not resolve genuine
issues of material fact. Instead, [the court must] consider and rule upon
each party’s motion separately and determine whether summary
judgment is appropriate as to each under the Rule 56 standard.”)
(citations omitted).
Ernie Haire Ford, Inc. v. Universal Underwriters Insurance Co., 541 F. Supp. 2d
1295, 1297-98 (M.D. Fla. 2008) (alteration in original). See also American Bankers
Insurance Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005) (“This court
reviews the district court’s disposition of cross-motions for summary judgment de
novo, applying the same legal standards used by the district court, viewing the
evidence and all factual inferences therefrom in the light most favorable to the non3

movant, and resolving all reasonable doubts about the facts in favor of the nonmoving party.”).
II. MOTION TO STRIKE
Plaintiff asks this court to strike portions of three affidavits submitted by
defendant in support of his motion for summary judgment.5 The affidavits contain
identical language, to the effect that plaintiff “shouted angrily” at defendant as he
approached the scene of the traffic stop.6 Plaintiff asserts that these statements should
be stricken because they directly contradict testimony given in the witnesses’ prior
depositions.7 In response, defendant contends that the affidavits do not “flatly
contradict,” nor are they “inherently inconsistent” with, the witnesses’ deposition
testimony and, as such, they are not due to be stricken.8
The Eleventh Circuit has held that “a party cannot give ‘clear answers to
unambiguous questions’ in a deposition and thereafter raise an issue of material fact
in a contradictory affidavit that fails to explain the contradiction.” Rollins v.
TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (quoting Van T. Junkins and
Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984)). The

5

Id. at 1.
See doc. no. 33-1 (Affidavit of Chris Martin) ¶ 7; doc. no. 33-2 (Affidavit of James Rives)
¶ 9; doc. no. 33-3 (Affidavit of Jeremy Hughes) ¶ 7.
7
Doc. no. 43 (Plaintiff’s Motion to Strike), at 1.
8
Doc. no. 47 (Response to Motion to Strike), at 1-2, 5.
6

4

Eleventh Circuit has cautioned, however, that this so-called “sham affidavit” rule
should be applied “‘sparingly because of the harsh effect it may have on a party’s
case.’” Allen v. Board of Public Education for Bibb County, 495 F.3d 1306, 1316
(11th Cir. 2007) (quoting Rollins, 833 F.2d at 1530). Indeed, courts are advised to
be careful to distinguish “between discrepancies which create
transparent shams and discrepancies which create an issue of credibility
or go to the weight of the evidence.” Tippens v. Celotex Corp., 805 F.2d
949, 953 (11th Cir. 1986).
[E]very discrepancy contained in an affidavit does not
justify a district court’s refusal to give credence to such
evidence. In light of the jury’s role in resolving questions
of credibility, a district court should not reject the content
of an affidavit even if it is at odds with statements made in
an early deposition.
Id. at 954 (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894
(5th Cir. 1980)) (alteration in original) (citation omitted).
Faulk v. Volunteers of America, 444 F. App’x 316, 318 (11th Cir. 2011).
As grounds for the motion to strike, plaintiff claims that statements to the effect
that he “shouted angrily” are in direct contradiction with specific portions of the
witnesses’ prior deposition testimony. Plaintiff is correct in his assertion that
defendant was questioned extensively during his deposition about what plaintiff
allegedly did and said that was perceived by the defendant as threatening behavior,
and that ultimately led defendant to arrest plaintiff, but “shouting angrily” was never

5

mentioned.9 Even so, plaintiff’s reliance on specific passages from the depositions
of Deputy Hughes and Deputy Rives for the contention that plaintiff “never yelled”
at defendant is misplaced.10 For example, plaintiff relies on Deputy Hughes’
testimony that plaintiff “never yelled anything to interfere with the traffic stop.”11
Hughes’ response, however, only indicates that plaintiff never yelled words that
interfered with the traffic stop, and not necessarily that plaintiff never “yelled
angrily” at defendant. Plaintiff also quotes the following exchange from Deputy
Rives’ deposition:
Q.

Well, do you recall anything that Mr. Summers said?

A. That’s my son, . . . or I’m here to get the truck. I can’t recall
exactly how it was stated, the first comment that came out of his mouth.
Q.

Something like that?

A.

Something in regards to that’s my son, I’m here to get the

Q.

Okay. And what did Deputy Martin say?

A.

Deputy Martin said for him to go back to his truck.

Q.

Okay, how did he say that?

truck.

9

Doc. no. 43 (Plaintiff’s Motion to Strike), at 1 (citing doc. no. 30-1 (Deposition of Chris
Martin), at 103-10, 134-37).
10
See id. at 2.
11
Doc. no. 30-4 (Deposition of Jeremy Hughes), at 67.

6

A.

Just in a normal type voice at that time. . . .12

As defendant notes, however, the passage from Rives’ deposition refers to the manner
in which defendant spoke to plaintiff — that is, “in a normal voice” — and not the
manner in which plaintiff spoke to defendant.13 Thus, the passage is not relevant
when considering whether the three affidavit statements should be stricken.
In response to the motion to strike, defendant points to several passages from
the witnesses’ prior deposition testimony in which plaintiff was described as
“erratic,”14 “hostile,”15 “aggressive,”16 “irate,”17 “agitated,”18 “aggravated,”19 and
“angry.”20 Further, defendant points out that Deputy Hughes testified that plaintiff
questioned defendant Chris Martin “in a very hostile, aggressive voice.”21
This court concludes that there is no “inherent inconsistency” between the
affidavits and the deposition testimony. Accordingly, any conflicts or discrepancies
present an issue of credibility that should be considered by the trier of fact. Thus, the
motion to strike will be denied.
12

Doc. no. 30-5 (Deposition of James Rives), at 41-42.
Doc. no. 47 (Response to Motion to Strike), at 3-4.
14
Doc. no. 30-4 (Deposition of Jeremy Hughes), at 19.
15
Id. at 35.
16
Id. at 35, 64.
17
Doc. no. 30-5 (Deposition of James Rives), at 46, 50.
18
Doc. no. 30-1 (Deposition of Chris Martin), at 76.
19
Id. at 104, 157.
20
Id. at 104-06, 157.
21
Doc. no. 30-4 (Deposition of Jeremy Hughes), at 35.
13

7

III. SUMMARY OF FACTS
Defendant, Chris Martin, and two fellow Deputy Sheriffs, James Rives and
Jeremy Hughes, worked second shift for the Madison County Sheriff’s Department
on May 14, 2010.22 They were assigned to patrol a northern portion of the County.23
During a regular patrol, Deputy Rives initiated a traffic stop for a seat belt violation
at approximately 4:00 p.m. near the intersection of Charity Lane with Butter & Egg
Road in Hazel Green, Alabama.24 The driver of the vehicle was plaintiff’s son,
Sonney Summers, Jr. (“Junior”).25

The passenger in Junior’s vehicle had an

outstanding felony arrest warrant.26 Consequently, Deputy Rives called the Sheriff’s
Dispatch Operator and requested backup assistance.27 Defendant and Deputy Hughes
responded to the call.28
Deputy Hughes arrived first, and assisted Deputy Rives in removing Junior and
his passenger from their vehicle.29

22

Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 1; doc. no. 33-2 (Affidavit of James Rives) ¶
1; doc. no. 33-3 (Affidavit of Jeremy Hughes) ¶ 1.
23
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 1; doc. no. 33-2 (Affidavit of James Rives) ¶
1; doc. no. 33-3 (Affidavit of Jeremy Hughes) ¶ 1.
24
Doc. no. 33-2 (Affidavit of James Rives) ¶ 2.
25
Id.
26
Id. ¶ 4.
27
Id.
28
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 2; doc. no. 33-3 (Affidavit of Jeremy Hughes)
¶ 2.
29
Doc. no. 33-3 (Affidavit of Jeremy Hughes) ¶¶ 3, 5.

8

Defendant arrived on the scene as Deputy Hughes and Deputy Rives were
escorting the two individuals out of their vehicle.30 As defendant exited his patrol car
and began to approach the area of the traffic stop, a white truck, traveling south on
Butter & Egg Road, and containing two occupants, stopped at the scene.31 At the
time of the truck’s arrival, none of the deputies knew the identities of the persons
occupying the white truck, or the reason for their presence.32
After stopping, plaintiff exited the truck from the passenger side door, walked
around the front-end of the vehicle, and in the direction of defendant.33 As plaintiff
approached, Junior informed Deputy Hughes that the person was his father, and that
he was there to retrieve Junior’s vehicle.34
Defendant claims that plaintiff appeared aggravated and shouted angrily at
him.35 As noted in the discussion of plaintiff’s motion to strike, however, plaintiff
denies that allegation.36

30

Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 3; doc. no. 33-2 (Affidavit of James Rives) ¶
6; doc. no. 33-3 (Affidavit of Jeremy Hughes) ¶ 4.
31
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 5.
32
Id. ¶¶ 5-6; doc. no. 33-2 (Affidavit of James Rives) ¶¶ 6-7; doc. no. 33-3 (Affidavit of
Jeremy Hughes) ¶¶ 5-6.
33
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 7; doc. no. 30-1 (Deposition of Chris Martin),
at 63-64; doc. no. 30-4 (Deposition of Jeremy Hughes), at 68.
34
Doc. no. 33-3 (Affidavit of Jeremy Hughes) ¶ 7.
35
Doc. no. 30-1 (Deposition of Chris Martin), at 107.
36
Doc. no. 41 (Plaintiff’s Response in Opposition of Defendant’s Motion for Summary
Judgment), at 2-3 (citing doc. no. 42-3 (Criminal Complaint); doc. no. 30-7 (Deposition of Sonney
Summers), at 77-79).

9

As plaintiff drew near, defendant “fairly quickly” ordered him to return to his
truck and to leave the scene.37 Plaintiff claims that he attempted to state his identity
and explain why he had driven to the scene, both before and after defendant’s initial
order to leave.38 Defendant contends, however, that plaintiff ignored his first order,
and continued to shout and walk towards defendant.39 Plaintiff admits that he
continued to walk towards defendant, but denies shouting.40
Defendant then issued a second order for plaintiff to return to his truck and
leave the scene.41 Following defendant’s second command, plaintiff turned and began
to walk in the direction of his truck, but he uttered the words “Go to hell” as he did
so.42 Defendant contends that he then became concerned for his own safety, as well
as the safety of his fellow deputies, based upon plaintiff’s alleged “unusual
comments” and “unsettling demeanor.”43 For that reason, he began to follow
plaintiff, and issued two or three additional verbal commands to “stop” and/or “come

37

Doc. no. 30-1 (Deposition of Chris Martin), at 107; doc. no. 33-1 (Affidavit of Chris
Martin) ¶ 8.
38
Doc. no. 30-7 (Deposition of Sonney Summers), at 89-90.
39
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 8.
40
Doc. no. 41 (Response to Defendant’s Motion for Summary Judgment), at 2-3.
41
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 8.
42
Doc. no. 30-1 (Deposition of Chris Martin), at 126-27 (stating that plaintiff “told [him] to
go to hell, turned around, and threw his hand up”); doc. no. 30-6 (Deposition of Christine Summers),
at 36-38; doc. no. 30-7 (Deposition of Sonney Summers), at 77-79.
43
Doc. no. 30-1 (Deposition of Chris Martin), at 127; doc. no. 33-1 (Affidavit of Chris
Martin) ¶ 10.

10

here,” all of which were ignored.44 Plaintiff denies that he made any unusual
comments, or exhibited an “unsettling demeanor,” and contends that he would have
heard the alleged commands to “stop” and/or “come here,” if they actually had been
given.45
It is not surprising, therefore, that the parties present disputed versions of the
facts leading up to plaintiff’s arrest. Plaintiff, for example, contends that defendant
caught him from behind, beat his head against the frame of the truck, threw him to the
ground, and slammed a knee into the upper middle part of his back.46
Defendant’s version of the altercation is different. Due to plaintiff’s alleged
unusual comments and demeanor, defendant deemed it necessary to temporarily
detain plaintiff — both for the purpose of ensuring that he was not armed, and to
prevent him from obtaining a potential weapon from his vehicle.47 Defendant
contends that he first made physical contact with plaintiff outside the open door of

44

Doc. no. 30-1 (Deposition of Chris Martin), at 127; doc. no. 33-1 (Affidavit of Chris
Martin) ¶ 10.
45
See doc. no. 41 (Response to Defendant’s Motion for Summary Judgment), at 3-4 (citing
doc. no. 30-6 (Deposition of Christine Summers), at 38; doc. no. 30-7 (Deposition of Sonney
Summers), at 91).
46
Doc. no. 30-6 (Deposition of Christine Summers), at 39-42. See also doc. no. 30-7
(Deposition of Sonney Summers), at 93-95 (stating that the only thing he remembers was feeling the
pressure of the car door slamming into him); doc. no. 30-4 (Deposition of Jeremy Hughes), at 12-14
(stating that he saw the car door shake during the alleged altercation).
47
Doc. no. 33-1 (Affidavit of Chris Martin) ¶¶ 10-12; doc. no. 30-1 (Deposition of Chris
Martin), at 89-93, 121.

11

plaintiff’s truck by grabbing his arm.48 Plaintiff then allegedly attempted to pull his
arm away and refused to cooperate.49 In an effort to gain control of plaintiff,
defendant placed him in a “straight arm bar” and took him to the ground.50 Even
though plaintiff allegedly continued to resist, defendant was eventually able to secure
him with handcuffs.51
The remaining facts are not in dispute. Shortly after he was handcuffed,
plaintiff complained that his arm was injured and that he was having chest pains.52
For that reason, defendant removed the handcuffs, and requested ambulance
assistance.53 Defendant is a certified Emergency Medical Technician, and is trained
to provide emergency medical assistance to individuals in distress.54 Thus, upon
hearing plaintiff’s complaints of chest pain, defendant retrieved an automated
external defibrillator (an “AED”) from his patrol car and applied it to plaintiff.55
Because the device did not detect an abnormal heart rhythm, no shock was
administered.56 Upon arrival of the ambulance, plaintiff was taken to Huntsville

48

Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 13.
Id. ¶ 14.
50
Id.
51
Id. ¶¶ 15-16.
52
Id. ¶ 17.
53
Id.
54
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 18.
55
Id. ¶¶ 18-19; doc. no. 30-1 (Deposition of Chris Martin), at 41-45.
56
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 19.
49

12

Hospital where he underwent a series of tests.57 The tests revealed that plaintiff’s
blood sugar and blood pressure levels were elevated, but the x-ray results of his arm
were normal.58 Plaintiff was ultimately discharged from the hospital and transported
to the Madison County Jail.59

He was released on his own recognizance at

approximately 10:47 p.m. on the same date, May 14, 2013.60 Plaintiff testified in his
deposition that he did not suffer any serious injuries, and that his pain ceased within
approximately one week of the incident.61
Plaintiff was charged with disorderly conduct in violation of Alabama Code §
13A-11-7 (1975),62 and resisting arrest in violation of Alabama Code § 13A-10-41.63
At his trial in the District Court for Madison County, Alabama, plaintiff was found

57

Id. ¶ 20; doc. no. 30-7 (Deposition of Sonney Summers), at 30-33.
Doc. no. 30-7 (Deposition of Sonney Summers), at 99-100.
59
Doc. no. 33-1 (Affidavit of Chris Martin) ¶ 21.
60
Id.
61
Doc. no. 30-7 (Deposition of Sonney Summers), at 99-100, 102.
62
See doc. no. 1 (Complaint) ¶ 10. Section 13A-11-7 provides that “(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: (1) [e]ngages in fighting or in violent tumultuous or
threatening behavior; or (2) [m]akes unreasonable noise; or (3) [i]n a public place uses abusive or
obscene language or makes an obscene gesture; or (4) [w]ithout lawful authority, disturbs any lawful
assembly or meeting of persons; or (5) [o]bstructs vehicular or pedestrian traffic, or a transportation
facility; or (6) [c]ongregates with other person in a public place and refuses to comply with a lawful
order of the police to disperse. (b) Disorderly conduct is a Class C misdemeanor.” Ala. Code §
13A-11-7 (1975) (Replacement Vol. 2005) (alterations supplied).
63
See doc. no. 1 (Complaint) ¶ 10. Section 13A-10-41 states: “(a) A person commits the
crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from
affecting a lawful arrest of himself or of another person. (b) Resisting arrest is a Class B
misdemeanor.” Ala. Code § 13A-10-41 (1975) (Replacement Vol. 2005).
58

13

guilty of both offenses.64 Plaintiff appealed his conviction to the Circuit Court for
Madison County, Alabama, for trial de novo, but both offenses were ultimately
dismissed.65
IV. DISCUSSION
A.

Qualified Immunity
Plaintiff’s claims against defendant in his individual capacity for illegal seizure

and excessive force allegedly in violation of the Fourth and Fourteenth Amendments
to the United States Constitution are asserted pursuant to 42 U.S.C. § 1983.
Defendant has interposed the defense of qualified immunity.
The doctrine of qualified immunity protects governmental officials who are
sued under 42 U.S.C. § 1983 for money damages in their personal, or individual,
capacities, but only so long as “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts generally apply a two-part
test for evaluating whether a defendant is entitled to qualified immunity. The
“threshold question” for the district court to resolve is whether the facts, viewed “in
the light most favorable to the party asserting the injury,” show that “the officer’s

64
65

Doc. no. 30-7 (Deposition of Sonney Summers), at 114-15.
Id.

14

conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001).66
If the threshold question is answered in the affirmative, the court will proceed to
analyze the second part of the inquiry: i.e., “whether the right was clearly
established.” Id.67
In determining whether the unlawfulness of an official’s actions was clearly
established, “‘the salient question is whether the state of the law [at the time of the
unconstitutional act] gave respondents fair warning that their alleged treatment of [the
plaintiff] was unconstitutional.’” Williams v. Consolidated City of Jacksonville, 341
F.3d 1261, 1270 (11th Cir. 2003) (alterations in original) (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)). The Supreme Court has rejected the requirement that the
facts of previous cases must always be “materially similar” to those facing the
plaintiff. Hope, 536 U.S. at 739. Instead:

66

The defendant claiming immunity must also “prove that ‘he was acting within the scope
of his discretionary authority when the allegedly wrongful acts occurred.’” Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)).
Here, it cannot reasonably be disputed that defendant was acting within the scope of his discretionary
authority as a deputy sheriff during the events that serve as the basis of this suit. Hence, that
undisputed fact does not merit textual discussion.
67
The Supreme Court recently relieved lower courts from mandatory adherence to the order
of the two-part analysis articulated in Saucier. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(“On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth
there is often appropriate, it should no longer be regarded as mandatory.”). It is now within the
court’s discretion to, in appropriate cases, assume that a constitutional violation occurred for the
purpose of addressing, in the first instance, whether such a violation would be “clearly established.”
Id. That said, and under the circumstances of the present case, the tested sequence of analysis of
Saucier will be followed.

15

For a constitutional right to be clearly established, its contours “must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in question has
previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,]
535, n.12, 105 S. Ct. 2806, 86 L. Ed. 2d 411; but it is to say that in the
light of pre-existing law the unlawfulness must be apparent.” Anderson
v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523
(1987).
Hope, 536 U.S. at 739 (emphasis supplied, alteration in original).
As the Eleventh Circuit has observed, an officer can receive “fair notice” that
his or her conduct in specific circumstances may be unlawful in various ways.
First, the words of the pertinent federal statute or federal
constitutional provision in some cases will be specific enough to
establish clearly the law applicable to particular conduct and
circumstances to overcome qualified immunity, even in the total
absence of case law. This kind of case is one kind of “obvious clarity”
case. For example, the words of a federal statute or federal
constitutional provision may be so clear and the conduct so bad that case
law is not needed to establish that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for
example, the Fourth Amendment on its face, we then turn to case law.
When looking at case law, some broad statements of principle in case
law are not tied to particularized facts and can clearly establish law
applicable in the future to different sets of detailed facts. See Marsh [v.
Butler County, Alabama], 268 F.3d [1014,] 1031-32 n.9 [11th Cir.
2001]. For example, if some authoritative judicial decision decides a
case by determining that “X Conduct” is unconstitutional without tying
that determination to a particularized set of facts, the decision on “X
Conduct” can be read as having clearly established a constitutional
principle: put differently, the precise facts surrounding “X Conduct” are
immaterial to the violation. These judicial decisions can control “with
16

obvious clarity” a wide variety of later factual circumstances. These
precedents are hard to distinguish from later cases because so few facts
are material to the broad legal principle established in these precedents;
thus, this is why factual differences are often immaterial to the later
decisions. But for judge-made law, there is a presumption against wide
principles of law. And if a broad principle in case law is to establish
clearly the law applicable to a specific set of facts facing a governmental
official, it must do so “with obvious clarity” to the point that every
objectively reasonable government official facing the circumstances
would know that the official’s conduct did violate federal law when the
official acted.
Third, if we have no case law with a broad holding of “X” that is
not tied to particularized facts, we then look at precedent that is tied to
the facts. That is, we look for cases in which the Supreme Court or we,
or the pertinent state supreme court has said that “Y Conduct” is
unconstitutional in “Z Circumstances.” We believe that most judicial
precedents are tied to particularized facts and fall into this category. . .
. When fact-specific precedents are said to have established the law, a
case that is fairly distinguishable from the circumstances facing a
government official cannot clearly establish the law for the
circumstances facing that government official; so, qualified immunity
applies. On the other hand, if the circumstances facing a government
official are not fairly distinguishable, that is, are materially similar, the
precedent can clearly establish the applicable law.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original,
alterations supplied). See also Ashcroft v. al-Kidd, – U.S. –, 131 S. Ct. 2074, 2083
(2011) (“We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.”).
1.

Illegal seizure

Plaintiff claims that defendant illegally arrested (“seized”) him in violation of
17

the Fourth Amendment because the arrest was “without probable cause or reasonable
suspicion and without a warrant.”68

To establish a violation of the Fourth

Amendment when making an arrest, the plaintiff must show that the arrest was
“unreasonable.” See, e.g., Brower v. County of Inyo, 489 U.S. 593, 599 (1989)
(“Seizure alone is not enough for § 1983 liability; the seizure must be unreasonable.”)
(internal quotation marks and citation omitted).
An arrest is unreasonable when it is not supported by probable cause. See, e.g.,
Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). “Probable cause
is defined in terms of facts and circumstances sufficient to warrant a prudent man in
believing that the suspect had committed or was committing an offense.” Id. (citing
Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). “If an officer has probable cause to
believe that an individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest the offender.”
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Therefore, “[t]o determine
whether an officer had probable cause to arrest an individual, [courts] 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.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United
68

See doc. no. 1 (Complaint) ¶ 14.

18

States, 517 U.S. 690, 696 (1996)) (alterations supplied).
Furthermore, actual probable cause is not required for purposes of claiming the
benefits of the doctrine of qualified immunity. Instead, that doctrine applies “when
there was arguable probable cause for an arrest even if actual probable cause did not
exist.” See Crosby, 394 F.3d at 1332 (emphasis supplied) (citing Jones v. Cannon,
174 F.3d 1271, 1283 n.3 (11th Cir. 1999)); see also, e.g., Cottrell v. Caldwell, 85
F.3d 1480, 1485 n.1 (11th Cir. 1996) (“[W]hen the claim is that a search and seizure
or arrest violated the Fourth Amendment, qualified immunity depends upon whether
arguable probable cause existed.”) (alteration and emphasis supplied).
“Arguable probable cause exists if, under all of the facts and circumstances, an
officer reasonably could — not necessarily would — have believed that probable
cause was present.” Crosby, 394 F.3d at 1332 (emphasis supplied). “Arguable
probable cause does not require an arresting officer to prove every element of a crime
or to obtain a confession before making an arrest, which would negate the concept of
probable cause and transform arresting officers into prosecutors.” Scarbrough v.
Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001) (footnote omitted).69 The pivotal
69

The omitted footnote from Scarbrough reads as follows:

Our inquiry in qualified-immunity analysis is whether the government actor’s
conduct violated clearly established law and not whether an arrestee’s conduct is a
crime or ultimately will result in conviction. Police officers are not expected to be
lawyers or prosecutors. See Lassiter [v. Alabama A&M University], 28 F.3d [1146,]

19

point in determining whether arguable probable cause existed is the question of
whether the information known by the officer at the time of the arrest was sufficient
to warrant a reasonable person in forming the belief that the suspect had committed
a crime. Gernstein v. Pugh, 420 U.S. 103, 111 (1975); Rankin v. Evans, 133 F.3d
1425, 1435 (11th Cir. 1998). Further, “[w]hen an officer makes an arrest, which is
properly supported by probable cause to arrest for a certain offense, neither his
subjective reliance on an offense for which no probable cause exists nor his verbal
announcement of the wrong offense vitiates the arrest.” United States v. Saunders,
476 F.2d 5, 7 (5th Cir. 1973)70 (citing United States v. Bowers, 458 F.2d 1045 (5th
Cir. 1972)) (alteration supplied); see also United States v. Brookins, 434 F.2d 41, 45
(5th Cir. 1972); Klingler v. United States, 409 F.2d 299, 304 (8th Cir. 1969).
Defendant argues that, at the time of the contested arrest, he had either actual
or arguable probable cause to arrest plaintiff for disorderly conduct and resisting
1152 n.8 [(11th Cir. 1994)] (recognizing that it is “‘unfair and impracticable’ to hold
public officials to the same level of knowledge as trained lawyers”) (quoting Davis
v. Scherer, 468 U.S. 183, 196 n.13, 104 S. Ct. 3012, 3020 n.13, 82 L. Ed. 2d 139
(1984)). The district judge focused on the arrestees instead of the arresting officer
in his decision to deny Hall qualified immunity. The issue should have been whether
Hall violated clearly established law in making the arrests based on the objective
factors that gave rise to his probable-cause determination and not whether the
arrestees’ actions actually constituted a crime.
Scarbrough, 245 F.3d at 1303 n.8 (alterations supplied).
70
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.

20

arrest.71 In the alternative, defendant contends that he had either actual or arguable
probable cause to arrest plaintiff for the additional, related offenses of obstruction of
governmental operations or violations of the Alabama Rules of the Road Act.72
“Whether a particular set of facts gives rise to probable cause or arguable probable
cause to justify an arrest depends . . . on the elements of the crime.” Crosby, 394 F.3d
at 1333. A brief analysis of the legal standards for each offense leads to the
conclusion that there are genuine issues of material fact precluding a conclusion that
defendant possessed either actual or arguable probable cause for arresting plaintiff.
a.

Disorderly conduct

The offense of disorderly conduct is statutorily defined by the Code of
Alabama in the following manner:
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:
(1) Engages in fighting or in violent tumultuous or
threatening behavior; or
(2) Makes unreasonable noise; or
(3) In a public place uses abusive or obscene
language or makes an obscene gesture; or

71

See doc. no. 32 (Defendant’s Brief in Support of its Motion for Summary Judgment), at

72

Id. at 17-23.

14.

21

(4) Without lawful authority, disturbs any lawful assembly
or meeting of persons; or
(5) Obstructs vehicular or pedestrian traffic, or a
transportation facility; or
(6) Congregates with other person in a public place and
refuses to comply with a lawful order of the police to disperse.
Ala. Code § 13A-11-7(a) (1975) (2005 Replacement Vol.) (emphasis supplied). The
words “abusive or obscene language” have been “interpreted narrowly to apply only
to ‘fighting words.’” Robinson v. State, 615 So. 2d 112, 113 (Ala. Crim. App. 1992)
(quoting Swann v. City of Huntsville, 455 So. 2d 944, 950 (Ala. Crim. App. 1984))73;
see also L.M.A.W. v. State, 611 So. 2d 497 (Ala. Crim. App. 1992); Mosley v. City of
Auburn, 428 So. 2d 165, 166 (Ala. Crim. App. 1982), superseded on other grounds
by Mason v. City of Vestavia Hills, 518 So. 2d 221 (Ala. Crim. App. 1987).
“Fighting words” are “those words which have a likelihood of causing
a violent response by the person to whom they are addressed. They are
words that by their very utterance provoke a swift physical retaliation
and incite an immediate breach of the peace.” Skelton v. City of
73

Each probable cause determination turns on an interpretation of Alabama state law. Where
the highest state court — here, the Alabama Supreme Court — has ruled on the issue, the federal
court will follow its rule. See, e.g., Molinos Valle Del Cibao, C., por A. v. Lama, 633 F.3d 1330,
1348 (11th Cir. 2011). Where the highest state court has not yet ruled on a precise issue; however,
a federal court must follow the decisions of state intermediate appellate courts, unless “persuasive
evidence demonstrates that the highest court would conclude otherwise.” Id.; accord Auto-Owners
Insurance Co. v. E.N.D. Services, Inc., 506 F. App’x. 920, 924 n.4 (11th Cir. 2013); Allstate Life
Insurance Co. v. Miller, 424 F.3d 1113, 1116 (11th Cir. 2005). Thus, absent “persuasive evidence”
to the contrary, where the Alabama Supreme Court has not spoken on an issue, this court must accept
the decisions of the Court of Criminal Appeals of Alabama as definitive authority on the
interpretation of Alabama criminal law.

22

Birmingham, 342 So. 2d 933, 936-37 (Ala. Crim. App. [1976]),
remanded, 342 So. 2d 937 (Ala. 1976). See also Swann[, 455 So. 2d at
950]. The words used by the alleged offender “‘must be calculated to
cause an immediate breach of the peace. It is not enough . . . they
merely arouse anger or resentment.’” Swann, 455 So. 2d at 950 (quoting
Skelton, 342 So. 2d at 937) (emphasis in original).
Robinson, 615 So. 2d at 113-14 (alterations supplied, emphasis in original). Further,
the mere fact that profanity is directed at a police officer does not transform it into
“fighting words.” Walker v. Briley, 140 F. Supp. 2d 1249, 1258-59 (N.D. Ala. 2001).
This fact is even more true when the “exchange is not heard by other members of the
public.” Id.; see also R.I.T. v. State, 675 So. 2d 97, 98-100 (Ala. Crim. App. 1992)
(statement of “fu** you” to police officer, spoken in front of only family members
and as juvenile was walking away from officer, did not constitute “fighting words”).
It is undisputed that plaintiff told defendant to “go to hell.”74 Even so, such a
comment, standing alone, does not constitute the crime of disorderly conduct under
Alabama law.75 Plaintiff’s statement clearly was not calculated to cause an immediate
breach of the peace and, therefore, did not rise to the level of “fighting words” under
Alabama Code § 13A-11-7. Accordingly, defendant did not have either actual or
arguable probable cause to arrest plaintiff for that offense.

74

Doc. no. 32 (Defendant’s Brief in Support of its Motion for Summary Judgment), at 5; doc.
no. 41 (Response to Defendant’s Motion for Summary Judgment), at 3.
75
Accord doc. no. 29 (Plaintiff’s Motion for Partial Summary Judgment), at 6; doc. no. 32
(Defendant’s Brief in Support of its Motion for Summary Judgment), at 16.

23

Even so, defendant alleges that the comment, when considered in conjunction
with plaintiff’s actions at the scene, does provide the requisite basis for actual or
arguable probable cause under § 13A-11-7.76 As noted in Part III, supra, there are
genuine issues of material fact concerning the manner in which plaintiff confronted
defendant about his son’s vehicle. At this stage of the case, however, all facts must
be viewed in the light most favorable to plaintiff. Therefore, construing the facts in
the light most favorable to plaintiff, this court concludes that exiting a vehicle, briefly
standing in the roadway and inquiring about his son’s vehicle, stating “go to hell,”
and walking back to his truck in compliance with defendant’s order to return to the
truck and depart the scene, does not provide the requisite basis for either actual or
arguable probable cause to arrest plaintiff for the crime of disorderly conduct. See
Crosby, 394 F.3d at 1332 (“Probable cause is defined in terms of facts and
circumstances sufficient to warrant a prudent man in believing that the suspect had
committed or was committing an offense.”) (citing Gerstein, 420 U.S. at 111); Von
Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990) (“[A]pplying the qualified
immunity test in the context of [p]laintiff’s alleged unlawful arrest, we must
determine whether reasonable officers in the same circumstances and possessing the
same knowledge as the [d]efendants could have believed that probable cause existed
76

Doc. no. 32 (Defendant’s Brief in Support of its Motion for Summary Judgment), at 16.

24

to arrest [p]laintiff . . . .”) (alterations supplied).
Even so, defendant also argues that, when plaintiff exited his vehicle and
entered the roadway during an active traffic stop, he made it reasonable for defendant
to conclude that plaintiff had “obstruct[ed] vehicular or pedestrian traffic” in violation
of Alabama Code § 13A-11-7(a)(5). Viewing the facts in the light most favorable to
plaintiff, it is clear that he stood briefly in the roadway; however, there is no
indication that plaintiff actually obstructed traffic. Therefore, defendant did not have
actual or arguable probable cause to arrest plaintiff under § 13A-11-7(a)(5).
b.

Resisting Arrest

A person commits the crime of resisting a lawful arrest under Alabama law if
“he intentionally prevents or attempts to prevent a peace officer from affecting [sic]
a lawful arrest of himself or of another person.” Ala. Code § 13A-10-41 (1975) (2005
Replacement Vol.). An arrest without a warrant, as here, may legally occur “if a
public offense has been committed or a breach of the peace threatened in the presence
of the officer.”77 Ala. Code § 15-10-3(1) (1975) (2011 Replacement Vol.).
Nevertheless, there is no Alabama law or practice that criminalizes resistance
of an unlawful arrest. See Shinault v. City of Huntsville, 579 So. 2d 696, 698 (Ala.
77

Ala. Code § 15-10-3 contains seven additional scenarios in which an arrest without a
warrant may be effected, including the commission or suspected commission of a felony, Ala. Code
§ 15-10-3(6), issuance of a protective order, § 15-10-3(7), and offenses involving domestic violence,
§ 15-10-3(8). None of those scenarios are applicable to the case at issue.

25

Crim. App. 1991); see also id. at 699-700 (Bowen, J., concurring). Indeed, Alabama
law has historically permitted the use of reasonable force to resist an unlawful arrest.
See Ala. Code § 13A-3-28 Commentary (1975) (“Alabama law . . . allows a person
to use reasonable force to resist an unlawful arrest.”) (emphasis supplied) (citing
Spooney v. State, 217 Ala. 219, 225 (Ala. 1928); Brown v. State, 109 Ala. 70, 91 (Ala.
1895); Tarwater v. State, 75 So. 816, 817 (Ala. Crim. App. 1917)); see also, e.g.,
Brown, 109 Ala. at 91 (“It is not the duty of the citizen to submit to any other than a
lawful arrest. It has been said the duty ‘is found in the law side by side with the right
of resistance to an unlawful one . . . .’”) (emphasis supplied) (quoting Drennan v.
People, 10 Mich. 169, 186 (Mich. 1862)).
Defendant has not met his burden of showing that his warrantless arrest of
plaintiff was “lawful.” See, e.g., Celotex, 477 U.S. at 323. The lawfulness of that act
turns upon the predicate question of whether defendant had probable cause for
arresting plaintiff for disorderly conduct, or one of the related offenses alleged.
Accepting plaintiff’s version of events, no reasonable person in defendant’s position
could have believed the underlying arrest was lawful. Because a lawful arrest is the
prerequisite for the crime of resisting arrest, no reasonable person in defendant’s
position could have believed that probable cause to arrest existed for that offense.
See Ala. Code § 13A-10-41 (1975) (2005 Replacement Vol.). Therefore, defendant
26

is not entitled to summary judgment on the issue of qualified immunity on this
ground.
c.

Related offenses

Defendant argues in the alternative that, even if actual or arguable probable
cause did not exist to arrest plaintiff for either of the charged offenses of disorderly
conduct and resisting arrest, arguable probable cause existed to arrest him for
obstruction of governmental operations, and two violations of the Alabama Rules of
the Road Act.78
Even though plaintiff was never charged with those offenses, if arguable
probable cause existed for his arrest for any of those offenses, defendant would be
entitled to claim the defense of qualified immunity. See Duruthy v. Pastor, 351 F.3d
1080, 1090 n.6 (11th Cir. 2003) (An officer “is shielded by qualified immunity so
long as [he] had probable cause to arrest [the plaintiff] for any offense”) (alterations
and emphasis supplied); Lee, 284 F.3d at 1195-96 (“[T]he validity of an arrest does
not turn on the offense announced by the officer at the time of the arrest[.]”)
(alterations supplied) (internal citations and quotations omitted); Scarbrough, 245
F.3d at 1302 (“[A]ll that is required for qualified immunity to be applicable to an
arresting officer is ‘arguable probable cause to believe that a person is committing a
78

Doc. no. 32 (Defendant’s Brief in Support of its Motion for Summary Judgment), at 19-21.

27

particular public offense.’”) (quoting Redd v. City of Enterprise, 140 F.3d 1378, 1384
(11th Cir. 1998)) (alteration supplied).
Thus, if defendant had actual or arguable probable cause to arrest plaintiff for
any offense, the arrest will be deemed valid. Each offense raised by defendant as
having either an actual or arguable probable cause basis under the facts alleged by
plaintiff will be analyzed below.
Defendant first asserts that there was actual or arguable probable cause to arrest
plaintiff for obstruction of governmental operations. Alabama law defines that
offense as follows:
A person commits the crime of obstructing governmental
operations if, by means of intimidation, physical force or interference or
by any other independently unlawful act, he:
(1) Intentionally obstructs, impairs or hinders the
administration of law or other governmental function; or
(2) Intentionally prevents a public servant from performing
a governmental function.
Ala. Code § 13A-10-2 (1975) (2005 Replacement Vol.). A “governmental function”
is defined as “[a]ny activity which a public servant is legally authorized to undertake
on behalf of a government or the fire control activities of a member of a volunteer fire
department.” Ala. Code § 13A-10-1(3) (1975) (2005 Replacement Vol.) (alteration
supplied). A “public servant” is “[a]ny officer or employee of government, including
28

legislators and judges and any person or agency participating as an adviser,
consultant, or otherwise in performing a governmental function.” Ala. Code § 13A10-1(7) (1975) (2005 Replacement Vol.) (alteration supplied).
Defendant asserts that he had at least arguable probable cause to believe that
plaintiff obstructed governmental operations by interfering with his efforts to assist
the other deputies at the scene of the traffic stop. Specifically, defendant contends
that plaintiff diverted his (defendant’s) attention from the traffic stop by exiting his
vehicle, entering the roadway, and confronting him. The factual record, however,
does not support defendant’s argument. Plaintiff only drove to the scene of the traffic
stop to pick up his son’s vehicle. While defendant contends that plaintiff appeared
agitated and shouted angrily at him, plaintiff denies those allegations and, at this stage
of the litigation, this court must construe the facts in the light most favorable to
plaintiff. Further, the confrontation with defendant on the roadway was brief, and
there is no evidence indicating that plaintiff blocked the flow of traffic, or disrupted
the apprehension of the subjects at the scene.79 Even though plaintiff told defendant

79

See doc. no. 41 (Response to Defendant’s Motion for Summary Judgment), at 5 (citing doc.
no. 42-1 (Deposition of Brian Chaffin), at 40-41 (noting that it is not illegal to stop and try to talk
to a deputy sheriff about picking up a vehicle at the scene of a traffic stop); doc. no. 30-4 (Deposition
of Jeremy Hughes), at 34, 68 (stating that plaintiff did not interfere with the other deputies’
apprehension of the subjects at the scene); doc. no. 30-5 (Deposition of James Rives), at 70 (stating
that there was no concern that plaintiff would interfere with the deputies’ dealings with his son)).

29

to “go to hell,” he then attempted to comply with defendant’s repeated orders to leave
by walking towards the passenger side door of his truck.
No reasonable officer could have believed those actions to be so intimidating,
physically threatening, or interfering as to indicate that plaintiff was intentionally
obstructing, impairing, or hindering defendant from performing the governmental
function of investigating and assisting with the traffic stop. Thus, the record,
construed in the light most favorable to plaintiff, supports a finding that defendant did
not have actual or arguable probable cause to arrest plaintiff for obstruction of
governmental operations.
Defendant also alleges that he had actual or arguable probable cause to arrest
plaintiff for at least two violations of the Alabama Rules of the Road Act. See Ala.
Code § 32-5A-1 et seq. (1975) (2010 Replacement Vol.). One section of that Act
states that “[n]o person shall willfully fail or refuse to comply with any lawful order
or direction of any police officer . . . invested by law with the authority to direct,
control, or regulate traffic.” Ala. Code § 32-5A-4 (1975) (2010 Replacement Vol.)
(alteration supplied). A “police officer” is defined as “every officer authorized to
direct or regulate traffic or to make arrests for violations of traffic regulations.” Ala.
Code § 32-1-1.1(45) (1975) (2010 Replacement Vol.). Further, the duties of a sheriff
include those that are or may be imposed by law. See Ala. Code § 36-22-3 (1975)
30

(2001 Replacement Vol.). Therefore, as a deputy sheriff, defendant clearly had the
authority to “direct, control, or regulate traffic.” Ala. Code § 32-5A-4 (1975).
Defendant argues that, when plaintiff did not obey his order to “stop” and/or
“come here,” he had arguable probable cause to arrest plaintiff under § 32-5A-4.80
Even so, there is a genuine issue of material fact as to whether that order was ever
given. For instance, plaintiff’s wife, Christine Summers, stated in her deposition that
“nobody said a word” after plaintiff told defendant to “go to hell” and before the
physical altercation occurred.81 In addition, plaintiff testified in his deposition that
“he never heard a word out of [defendant’s mouth]” after he (plaintiff) told defendant
to “go to hell.”82 Therefore, construing the record in the light most favorable to
plaintiff, this court finds that defendant did not have actual or arguable probable
cause to arrest plaintiff for violating a traffic-related order pursuant to Alabama Code
§ 32-5A-4.
Defendant additionally alleges that there was probable cause to arrest plaintiff
for violating Alabama Code § 32-5A-58, which states: “[t]he driver of any vehicle
other than one on official business shall not follow any authorized emergency vehicle
traveling in response to an emergency call closer than 500 feet or stop such vehicle
80

See doc. no. 32 (Defendant’s Brief in Support of its Motion for Summary Judgment), at

81

Doc. no. 30-6 (Deposition of Christine Summers), at 38.
Doc. no. 30-7 (Deposition of Sonney Summers), at 91 (alteration supplied).

21-22.
82

31

within 500 feet of any authorized emergency vehicle stopped in answer to an
emergency call.”83 Ala. Code § 32-5A-58 (1975) (2010 Replacement Vol.) (alteration
supplied). In response, plaintiff contends that he was the passenger in, and not the
driver of, the vehicle in which he was transported to the scene. Thus, this court
concludes that § 32-5A-58 does not apply, and that defendant lacked either actual or
arguable probable cause to arrest plaintiff under that statute.
d.

Reasonable suspicion or arguable reasonable suspicion to
temporarily detain plaintiff

Despite all that has been said above, a law enforcement officer may, “consistent
with the Fourth Amendment, conduct a brief, investigatory stop when the officer has
a reasonable, articulable suspicion that criminal activity is afoot.” Jackson v. Sauls,
206 F.3d 1156, 1165 (11th Cir. 2000) (quoting Illinois v. Wardlow, 528 U.S. 119, 120
(2000) (in turn citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). “While ‘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.”
Wardlow, 528 U.S. at 123 (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)); see
also Jackson, 206 F.3d at 1165. Therefore, “the officer must be able to articulate
83

See doc. no. 32 (Defendant’s Brief in Support of its Motion for Summary Judgment), at

22.

32

more than an inchoate and unparticularized suspicion or hunch of criminal activity.”
Wardlow, 528 U.S. at 123-24 (internal quotations omitted) (citing Terry, 392 U.S. at
27).
Further, when an officer asserts the defense of qualified immunity in the
context of an investigatory stop, “the issue is not whether reasonable suspicion
existed in fact, but whether the officer has ‘arguable’ reasonable suspicion to support
an investigatory stop.” Jackson, 206 F.3d at 1165-66; see also Whittier v. Kobayashi,
581 F.3d 1304, 1308 (11th Cir. 2009); Williamson v. Mills, 65 F.3d 155, 157 (11th
Cir. 1995); Swint v. The City of Wadley, Alabama, 51 F.3d 988, 996 (11th Cir. 1995);
Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993). “In undertaking
the arguable reasonable suspicion inquiry, this [c]ourt must examine the totality of
the circumstances to determine whether an officer had a ‘particularized and objective’
basis to support his suspicion.” Kobayashi, 581 F.3d at 1309 (citing Brent v. Ashley,
247 F.3d 1294, 1303 (11th Cir. 2001)) (alteration supplied). A finding that the
officer’s suspicion was in fact mistaken is immaterial so long as the officer’s
suspicion was reasonable. See id.; Brent, 247 F.3d at 1303; Jackson, 206 F.3d at
1165.
Viewing the facts in the light most favorable to plaintiff, arguable reasonable
suspicion for an investigatory stop did not exist. According to plaintiff’s evidence,
33

he arrived at the scene of an active traffic stop, exited his vehicle, briefly stood in the
roadway to inquire about his son’s vehicle, was told to leave the scene, and then
became upset and told defendant to “go to hell.” As this court explained in Part
IV.A.1.a, supra, telling an officer to “go to hell” does not provide either probable
cause or reasonable suspicion to stop that individual. Plaintiff testified in his
deposition that, as he was returning to his vehicle after defendant’s repeated
commands to leave the scene, he was then grabbed from behind by defendant and
eventually detained. There is a genuine issue of material fact as to whether defendant
commanded plaintiff to “stop” and/or “come here”; however, at this stage, all facts
must be viewed in the light most favorable to plaintiff. Further, the Supreme Court
has held that when, an officer approaches an individual without a reasonable
suspicion of criminal activity, that person has the right to ignore the police and go
about their own business, unmolested. Florida v. Royer, 460 U.S. 491, 498 (1983);
see also Florida v. Bostick, 501 U.S. 429, 437 (1991) (A “refusal to cooperate,
without more, does not furnish the minimal level of objective justification needed for
a detention or seizure.”). Thus, viewing the facts in the light most favorable to
plaintiff, a reasonable police officer would have known that he lacked arguable
reasonable suspicion for stopping plaintiff, and that he was violating clearly
established law in doing so.
34

2.

Excessive force

Plaintiff also claims that defendant violated his Fourth Amendment right to be
free from the use of excessive force by assaulting and battering him.84 Specifically,
plaintiff alleges that defendant grabbed him from behind, beat his head against his
truck, slammed him to the ground, kneed him in the back, and then handcuffed him.85
Plaintiff argues that, because there was no probable cause for an arrest, there was no
basis for the use of any force. In the alternative, plaintiff contends that, even if there
was an arguable basis for detaining him, the force used by defendant remains
excessive.
The court will first address plaintiff’s allegation that no force was lawful
because there was no probable cause for an arrest. “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.” Lee, 284 F.3d at 1197
(citing Graham v. Connor, 490 U.S. 386, 394-95 (1989)). The reasonableness inquiry
is an objective one: “the question is whether the officer[‘s] actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting [him], without regard
to [his] underlying intent or motivation.” Graham, 490 U.S. at 397 (citations omitted)

84
85

See doc. no. 1 (Complaint) ¶ 12.
Doc. no. 41 (Response to Defendant’s Motion for Summary Judgment), at 6.

35

(alterations supplied).
Under the law of the Eleventh Circuit, however, a “claim that any force in an
illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and
is not a discrete excessive force claim.” Lee, 284 F.3d at 1193 (quoting Jackson, 206
F.3d at 1171 (in turn citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir.
1995))). The logic of the rule is clear: if an arrest was illegal, i.e., lacking in
probable cause, then any force used in effecting the arrest is excessive. See Jackson,
206 F.3d at 1171; see also Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000)
(reaffirming that any force used while effectuating an arrest lacking probable cause
is excessive); Sheth v. Webster, 145 F.3d 1231, 1238 (11th Cir. 1998); Thornton v.
City of Macon, 132 F.3d 1395, 1398 (11th Cir. 1998). Further, any potential damages
recoverable from the excessive force claim would be recovered in a successful suit
for a false arrest. See Williamson, 65 F.3d at 159 (“[D]amages recoverable on
[plaintiff’s] false arrest claim include damages suffered because of the use of force
in effecting the arrest.”) (alterations supplied). Thus, plaintiff’s claim for excessive
force on the basis that the arrest was unlawful is subsumed under plaintiff’s illegal
seizure or arrest claims. See Jackson, 206 F.3d at 1171 (“The correct analysis is that
the excessive force claim is subsumed in the illegal stop or arrest claim, as recognized
in Williamson, where a plaintiff contends the force was excessive because there was
36

no basis for any force.”) (emphasis in original).
Because a claim for excessive force during a lawful arrest is an independent
claim, the court now turns to plaintiff’s claim that, even if there was an arguable basis
for detaining him, the force used was excessive. The court may consider a number
of factors when determining whether the force applied was “reasonable” under the
circumstances, including: (1) the “severity, or lack of severity, of the alleged crime
in issue,” Graham, 490 U.S. at 396; (2) “whether the person against whom the force
was used posed an immediate threat to the safety of the police or others,” id.; (3) “the
need for the application of force,” Jackson, 206 F.3d at 1170 n.18; (4) “the
relationship between the need and the amount of force used,” id.; (5) “the extent of
the injury inflicted,” id.; (6) “whether the force was applied in good faith or
maliciously and sadistically,” id.; (7) “the possibility that the persons subject to the
police action are themselves violent or dangerous,” id.; (8) “the possibility that the
suspect may be armed,” id.; (9) “the number of persons with whom the police officers
must contend at one time,” id.; and (10) “whether the suspect was resisting or
fleeing.” Id.
The reasonableness of the force applied also is measured as of the precise
moment it is administered. Events that occurred prior to that moment, though perhaps
giving factual context to the use of force, are not probative of the reasonableness of
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the decision to use force. See Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991).
Additionally, “[u]se of force must be judged on a case-by-case basis ‘from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.’” Post, 7 F.3d at 1559 (quoting Graham, 490 U.S. at 396) (alteration
supplied). “The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments — in circumstances
that are tense, uncertain, and rapidly evolving — about the amount of force that is
necessary in a particular situation.” Graham, 490 U.S. at 396-97.
Looking at the facts known to defendant at the moment when he used force on
plaintiff, but accepting plaintiff’s version of the facts as true for purposes of summary
judgment, defendant grabbed a man from behind, slammed his head against the truck
frame, threw him to the ground, and kneed him in the back, all because that individual
had arrived at the scene of a traffic stop, confronted defendant about picking up his
son’s vehicle, told him to “go to hell” after being twice ordered to leave the scene,
and walked back to his vehicle. Plaintiff was handcuffed shortly after being knocked
to the ground.
Although the level of force defendant used was not particularly high, and did
not cause plaintiff any lasting physical injuries (plaintiff’s pain ceased after one
week), the majority of the remaining factors weigh in plaintiff’s favor. The alleged
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crimes at issue — disorderly conduct, obstructing governmental operations, and
violations of the Alabama Rules of the Road Act — were not severe. Under
plaintiff’s version of events, no reasonable officer could have concluded that
grabbing plaintiff from behind, slamming his head against a truck, throwing him to
the ground, and kneeing him in the back were necessary for the protection of the
deputy sheriffs at the scene or to prevent plaintiff from fleeing. In fact, plaintiff had
been twice ordered to leave. Plaintiff’s only resistance was in telling defendant to “go
to hell” after numerous attempts to explain why he was at the scene, and allegedly
attempting to pull his arm away after being grabbed from behind. Even if throwing
plaintiff to the ground and kneeing him in the back were necessary to subdue
plaintiff, given his alleged attempt to pull his arm away, slamming his head against
the frame of the vehicle multiple times was certainly not. Further, there were three
deputies at the scene, and defendant was not one of the deputies questioning and
apprehending the actual subjects of the traffic stop.
Upon the arrival of a pair of unknown individuals at the scene of an active
traffic stop, a reasonable officer would have asked the reason for their presence, and
then given them the opportunity to explain before immediately ordering them to leave
the scene. A reasonable officer might fear that a person who had just told an officer
to “go to hell” was returning to his vehicle to obtain a weapon, but he would have
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asked that person to step away from the vehicle and to show his hands, to demonstrate
the absence of a weapon, before grabbing him from behind, slamming his head
against the vehicle, and throwing him to the ground. Further, no reasonable officer
would have concluded that such actions were an appropriate response to that person
telling him to “go to hell.” Simply put, considering the facts in the light most
favorable to plaintiff, there was no reason for defendant to believe that plaintiff posed
a threat, was armed, or was resisting the order to leave the scene. Thus, plaintiff has
presented sufficient facts to support his claim for excessive force.
Moreover, the court concludes that defendant is not entitled to qualified
immunity on plaintiff’s excessive force claim. “A law enforcement officer receives
qualified immunity for use of force during an arrest if an objectively reasonable
officer in the same situation could have believed the use of force was not excessive.”
Brown v. City of Huntsville, Alabama, 608 F.3d 724, 738 (11th Cir. 2010) (citations
omitted). It is true that plaintiff has not identified a case with identical facts. Even
so, no reasonable officer in defendant’s position would have believed that defendant’s
use of force was not excessive. The Eleventh Circuit has long held “that gratuitous
use of force when a criminal suspect is not resisting arrest constitutes excessive
force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008); see also Lee, 284
F.3d at 1198 (holding that slamming an individual’s head onto the hood of her car
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when she was handcuffed, not posing a threat to the officer, and not posing a flight
risk constituted excessive force). Under plaintiff’s verison of the facts, no reasonable
officer could have concluded that plaintiff posed a threat to their safety. Even if a
reasonable officer might have worried that plaintiff was walking back to his vehicle
to retrieve a weapon, he would have asked plaintiff to step away from the vehicle and
raise his hands into the air before grabbing plaintiff from behind, slamming his head
against a vehicle, and throwing him to the ground. Even if a reasonable officer might
have concluded that plaintiff resisted arrest by attempting to pull his arm away, he
certainly would not have slammed plaintiff’s head against the frame of his vehicle
multiple times. Under the circumstances presented here, defendant’s use of force
must be characterized as wantonly “gratuitous,” and, thus, he is not entitled to
qualified immunity on plaintiff’s excessive force claim.
B.

Plaintiff’s Motion for Summary Judgment
Plaintiff seeks summary judgment as to his false arrest claim, but not as to his

excessive force claim.86 Plaintiff alleges that defendant lacked either actual or
arguable probable cause to arrest him and, as such, he is entitled to summary
judgment on that claim.87 As discussed in Part IV.A.1.a, supra, the court agrees with

86
87

See doc. no. 29 (Plaintiff’s Motion for Partial Summary Judgment).
See id. at 4.

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the parties that merely telling a police officer to “go to hell,” standing alone, does not
constitute actual or arguable probable cause for an arrest for disorderly conduct.
Even so, this court found that genuine issues of material fact exist concerning
plaintiff’s alleged “unusual comments and unusual demeanor” upon arriving at the
scene of the traffic stop and in confronting defendant. Thus, when viewing the facts
in the light most favorable to defendant, the nonmoving party, plaintiff is not entitled
to summary judgment as to his false arrest claim.
V. CONCLUSION
In accordance with the foregoing, the plaintiff’s motion to strike is DENIED;
plaintiff’s motion for summary judgment is DENIED; and defendant’s motion for
summary judgment is DENIED. The case will be set for pretrial conference and trial
by separate order.
DONE and ORDERED this 11th day of December, 2013.

______________________________
United States District Judge

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