MITCHELL v. STEWART et al
Filing
86
ORDER granting in part and denying in part 33 Motion for Summary Judgment; granting in part and denying in part 37 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 06/12/2014. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
MEGAN E. MITCHELL and CLIFTON
JACKSON,
*
*
Plaintiffs,
*
vs.
CASE NO.
3:12-CV-132 (CDL)
*
HARVEY E. STEWART, DAVID
WHIRRELL, and MICHAEL MAXEY,
*
Defendants.
*
O R D E R
Lewis Grizzard, a Southern humorist and legendary columnist
for the Atlanta Journal-Constitution, observed that there’s a
big difference between the words “naked” and “nekkid”: “‘naked’
means you don’t have your clothes on.
‘Nekkid’ means you don’t
have your clothes on and you’re up to something.”1
In this case,
Plaintiffs claim that Defendants arrested and transported them
to the jail with their breasts, buttocks, and genitalia exposed.
Whether
Plaintiffs
were
“up
to
something”
arrived at their home is irrelevant.
before
Defendants
If a jury believes that
Plaintiffs were taken to jail substantially “naked,” that jury
would be authorized to find that Defendants violated Plaintiffs’
1
Lewis Grizzard, Baring it All to Get to the Nekkid Truth, Atlanta
Journal, Nov. 14, 1986, at C1.
clearly
established
Fourth
Amendment
rights.
Accordingly,
Defendants are not entitled to immunity.2
SUMMARY JUDGMENT STANDARD
Plaintiffs sued Defendants under 42 U.S.C. § 1983 and state
law, contending that Defendants violated their Fourth Amendment
rights by entering their home without a warrant, arresting them
without
probable
without
allowing
cause,
them
genitalia.
Defendants
federal
claims
law
and
to
cover
seek
based
transporting
on
their
summary
them
breasts,
judgment
qualified
to
the
buttocks,
jail
and
on
Plaintiffs’
immunity.3
Qualified
immunity is a legal issue that ultimately must be decided by the
Court as a matter of law, but any genuine factual disputes on
which that legal determination is based must be resolved by a
jury as the factfinder.
Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam).
As with any other summary judgment, summary judgment based
on qualified immunity may be granted only “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.”
Civ. P. 56(a).
In determining whether a
2
genuine
Fed. R.
dispute of
As explained in the remainder of this Order, Defendants are entitled
to qualified immunity on Plaintiffs’ claims based on their entry into
Plaintiffs’ home and their arrest of Plaintiffs, but not on
Plaintiffs’ claims based on the manner of the arrest, which involved
transporting Plaintiffs from their home to jail without allowing them
to cover their breasts, genitalia, and buttocks.
3
Defendants also seek summary judgment on Plaintiffs’ state law claims
based on official immunity under Georgia law.
2
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
In the
qualified immunity context, the Court must construe the factual
record in favor of the plaintiff and determine whether that
factual
record
would
support
a
finding
that
the
defendant’s
conduct violated clearly established law, thus depriving him of
qualified immunity.
Tolan, 134 S. Ct. at 1866.
Defendants seem to argue in their briefs that the Court
must act as the factfinder.
of
the
record,
facts
and
Defendants
Plaintiffs’
version
disputing
argue
of
the
Focusing primarily on their version
facts
that
facts
that
the
and
are
supported
by
the
Court
should
discount
grant
summary
judgment
based on Defendants’ version of what happened.4
To the extent
that Defendants imply that the Court at summary judgment must
4
Plaintiffs certainly could have done a better job of citing the
record. But Defendants denied several of Plaintiffs’ fact statements
simply because Plaintiffs were slightly off on some of their pinpoint
citations. The point of the Court’s local rule on fact statements is
to help the Court determine whether a genuine dispute exists to be
tried, not to provide counsel an opportunity to take tactical
advantage of sloppy record citation by the other side.
3
evaluate
which
facts
to
misunderstand Rule 56.
believe
or
disbelieve,
Defendants
Qualified immunity does not change the
Rule 56 summary judgment analysis.
The Court must still view
the facts in the light most favorable to Plaintiffs and “may not
resolve genuine disputes of fact in favor of the party seeking
summary judgment.”
Tolan, 134 S. Ct. at 1866.
FACTUAL BACKGROUND
Viewed
in
the
light
most
favorable
to
Plaintiffs,
the
record reveals the following.
Megan
Mitchell
and
Nikki
Beasley
together at Athens Technical College.
to
her
home
after
class
on
attended
GED
classes
Mitchell invited Beasley
October
14,
2010.
Jackson,
Mitchell’s boyfriend, picked up Mitchell and Beasley and drove
them to the home, where he lived with Mitchell.
After they
arrived at the home, Mitchell drove Beasley to a convenience
store called the Woodville Pantry, where Beasley purchased an
alcoholic beverage.
Beasley was sixteen years old, and Mitchell
knew it.
Beasley drank the alcohol in Mitchell’s presence, and she
took a pill outside Mitchell’s presence.
sick,
so
she
and
Mitchell
called
Beasley began to feel
Beasley’s
aunt
for
help.
Beasley’s aunt met Beasley and Mitchell at the Woodville Pantry
and took Beasley home.
Beasley’s aunt decided that Beasley
4
needed medical attention, so she called 911, and Beasley was
transported to the hospital by ambulance.
Defendant Whirrell, a Greene County sheriff’s deputy, and
his
supervisor
Defendant
Stewart,
Beasley’s aunt at the hospital.
a
corporal,
interviewed
Beasley’s aunt told Stewart and
Whirrell that Beasley was “messed up” and had told the aunt that
“she done drank . . . some alcohol and smoked some blunts.”
Yearwood Dep. 30:23-31:11, ECF No. 46; accord id. at 36:5-12.
The aunt also told the officers that Beasley had consumed the
alcohol and smoked the blunts while she was at Plaintiffs’ home
in Mitchell’s care.
Id. at 41:24-42:7.
As far as the aunt
knew, Beasley was alone with Mitchell at the house.
44:14-19.
Id. at
The aunt told the officers that Beasley had been at
Plaintiffs’ house with Mitchell and that when Mitchell drove
Beasley to the convenience store to meet her, no one else was
with them.
that
Id. at 45:2-13.
Jackson
was
present
The aunt did not tell the officers
at
the
convenience
Jackson gave Beasley alcohol or drugs.
After
interviewing
went to eat.
Beasley’s
store
or
that
Id. at 31:14-24.5
aunt,
Stewart
and
Whirrell
Stewart called Defendant Maxey, another deputy
5
Defendants contend that Beasley herself told Stewart and Whirrell
that Mitchell and Jackson gave Beasley alcohol, marijuana, and Xanax.
Stewart Dep. 110:15-25, ECF No. 49. But there is a factual dispute on
this point.
According to Darren Harland, a captain in the sheriff’s
department, Defendants “never talked to the victim” before they went
to Plaintiffs’ house; rather, they went solely based on the aunt’s
statement, which implicated only Mitchell.
Harland Dep. 39:6-40:21,
ECF No. 52.
5
under Stewart’s supervision, and asked him to meet Stewart and
Whirrell at the Woodville Pantry to plan their next steps.
three
officers
decided
to
go
to
Plaintiffs’
The
residence
to
investigate a possible charge against Mitchell for contributing
to the delinquency of a minor.
Defendants did not have an
arrest warrant or a search warrant.
At the time of the incidents giving rise to this action,
Jackson
was
“consent
to
serving
search”
a
probation
condition:
sentence
“Defendant
that
shall
included
submit
a
to
a
search of his/her person, property, residence, or vehicle at any
time of the day or night with or without consent or search
warrant, whenever requested by a Probation Officer or any other
peace
officer
and
specifically
consents
to
the
use
contraband seized as evidence in any court proceeding.”
of
any
Stewart
Mot. for Summ. J. Ex. 8, Sentence in Case No. 08CR-376, Apr. 13,
2009, ECF No. 33-9; Stewart Mot. for Summ. J. Ex. 10, Sentence
in Case No. 09CR-807, Feb. 8, 2010, ECF No. 33-11.
contends
that
provision,
judge
he
but
asked
did
the
not
record
Jackson
if
knowingly
is
he
consent
undisputed
understood
provision, and Jackson said yes.
that
and
to
the
Jackson
the
search
sentencing
agreed
to
the
Stewart Mot. for Summ. J. Ex.
9, Guilty Plea Hr’g Tr. 5:7-12, Apr. 13, 2009, ECF No. 33-10.
Stewart
contacted
dispatch
and
learned
Defendants went to Plaintiffs’ home.
6
of
the
waiver
before
Stewart Dep. 129:15-25.
When Defendants arrived at Plaintiffs’ house, Stewart went
to secure the back of the house.
Whirrell went to the front
door and knocked and said, “Greene County Sheriff’s Department,
open the door.”
Mitchell Decl. ¶ 19, ECF No. 60-1.
said, “wait a minute, I’m putting on clothes.”
time, Jackson and Mitchell were both naked.
Jackson
Id.
At the
An officer demanded
that someone “come and open the door now” and “we’ll worry about
clothes
in
a
minute,”
so
Jackson
went
to
the
front
door.
Jackson Dep. 80:6-9, ECF No. 42; Arrest Video 23:10:36–23:10:48,
ECF No. 55.
When Jackson reached the front door and had his
hand on the knob, “the door just forcibly came open.”
Dep. 80:9-11.
Jackson was still naked.
Jackson
An officer told Jackson
to sit down on the couch in the living room, and he complied.
Mitchell was in the hallway when Defendants entered the
house.
Mitchell put on a sweater, but she did not have a chance
to button it, and her breasts and genital area were exposed.
Mitchell Decl. ¶¶ 20-22.
Mitchell asked Whirrell if she could
put on some clothes, but he said no and told Mitchell to sit on
the
couch.
Id.
¶¶
23-24;
Whirrell
Dep.
32:17-22.
Once
Plaintiffs were seated in the living room, Stewart entered the
house.
Although the house lights were out, each Defendant had a
flashlight.
According
to
Mitchell,
Defendants
pointed
their
“high beam” flashlights at her body, moving the light “from
7
[Mitchell’s] genitals to [her] face,” and she “saw each of them
looking directly at [her] exposed body.”
Mitchell Decl. ¶ 26.
The officers questioned Plaintiffs about Beasley.
Mitchell
admitted that she had been with Beasley earlier in the day.
Mitchell
also
presence.
had
it
admitted
that
Beasley
drank
alcohol
in
her
Arrest Video 23:13:56-23:14-17 (“I mean, hell, she
with
her
so
I
couldn’t
stop
her
from
doing
it.”).
Stewart told Plaintiffs that he was going to take a look around
the house pursuant to the search clause in Jackson’s probation
sentence.
While Stewart was searching the residence, Mitchell
again asked for clothes because she was cold and felt “very
uncomfortable” because the officers “didn’t even give [her] time
to put on clothes.”
Arrest Video 23:16:34-23:17:08.
During his search of Plaintiffs’ bedroom, Stewart found an
ashtray containing a substance that he suspected was marijuana.
Stewart Dep. 143:8-13.
He placed the substance in a rubber
glove and turned it over to Whirrell.
Stewart then went into
the living room and reported that the substance “was in the
bedroom where [Plaintiffs] were at.”
Arrest Video 23:20:52-
23:21:23.
Stewart asked who would take responsibility for the
substance.
Id.
Id.
I smoke.”
Mitchell then said, “I’m not gonna let him go to jail for
nothing.
as
Mitchell said, “He don’t even smoke.
an
He don’t smoke.” Id.
admission
that
the
Stewart construed this statement
substance
8
was
marijuana.
Stewart
instructed Whirrell and Maxey to place Plaintiffs under arrest
for contributing to the delinquency of a minor and possession of
marijuana.
Whirrell handcuffed Mitchell, and Maxey handcuffed Jackson.
Defendants
contend
that
they
did
not
“notice
anything
compromising or revealing about the appearance of either Jackson
or Mitchell.”
No.
34.
Stewart’s Statement of Material Facts ¶ 43, ECF
Mitchell
asked
for
clothes
at
least
twice
while
Defendants were at the house, and she told them that she was
uncomfortable because she did not have on clothes.
Mitchell
also testified that although she was wearing a sweater, she did
not have on any undergarments and the sweater was unbuttoned.
And she testified that Defendants pointed their flashlights at
her and looked directly at her exposed body.
Several neighbors gathered when Mitchell and Jackson were
escorted from the house, and they saw that Mitchell did not have
on any clothes under her open sweater.
McCommons Decl. ¶ 8, ECF
No. 60-3 (“I could see Megan had on an open sweater. I could see
her breast and private area. I could see everything; she did not
have on any shoes or clothing underneath. She walked to the
police car with her head down.”); M. Jackson Decl. ¶ 5, ECF No.
60-4 (“When the officers brought Megan Mitchell out she was in a
sweater with nothing on underneath. I could see her breast.”);
Thomas Decl. ¶ 5(2), ECF No. 60-5 (“Megan had on an open jacket
9
with
buttons.
underneath
area.”).
Mitchell
Stewart
She
the
not
jacket.
I
have
on
could
see
any
bottoms
or
breast
and
her
anything
private
When Stewart’s supervisor questioned him about why
was
transported
callously
hiding.”
did
to
the
responded
“you
jail
in
are
just
riding
the
like
sweater,
you
are
Harland Dep. 46:7-23, ECF No. 52.
When Mitchell arrived at the jail, she was not immediately
given clothes, and at least two male inmates saw her exposed
body.
Megan
Davis Decl. ¶ 3, ECF No. 60-2 (“Through the window I saw
Mitchell
genitals
in
a
little
exposed.
I
saw
brown
her
shirt
standing
with
in
her
the
breast
area
you
and
are
searched at before you enter the jail. The other trustees and I
took turns looking out the window at Megan.”); Mallory Decl.
¶ 4, ECF No. 60-7 (“When I saw Megan Mitchell she was sitting in
the first holding cell inside the jail. I could see her breast
through the open sweater she had on.”).
From the time Defendants entered the house to the time
Maxey prepared to escort Jackson out of the house, Jackson was
completely
naked.
Jackson
Dep.
117:16-24.
When
Maxey
was
preparing to escort Jackson from the house, Jackson asked if he
could get some clothes and told Maxey that it was inappropriate
to take him out of his house naked.
Jackson
did
retrieve
a
jacket
and
Jackson Dep. 149:6-12.
put
it
on
before
Maxey
escorted him out of the house, but it was a short jacket that
10
left Jackson’s buttocks and genitals exposed.
Id. at 150:15-23.
Several neighbors saw that Jackson did not have any clothes on
under the short jacket.
McCommons Decl. ¶ 5 (“I could see Cliff
had on a white jacket with nothing underneath. He was naked. He
did not have on any shoes or pants.”); M. Jackson Decl. ¶ 4
(“When I arrived the officers were bringing [Jackson] out in
nothing but a white coat. I could see everything, including his
private area.”); Thomas Decl. ¶ 5(1) (“Cliff had on a jacket
with nothing underneath. I could see his genital area as he
walked to the police car parked on the street.”).
When Jackson
arrived at the jail, Maxey got him some pants and slipped them
onto Jackson before he exited the patrol car.
DISCUSSION
I.
Plaintiffs’ Fourth Amendment Claims
Plaintiffs
claim
that
Defendants
violated
the
Fourth
Amendment to the United States Constitution when they entered
and searched their home without a warrant, arrested them without
probable cause, and transported them to the jail with their
buttocks, breasts, and genitalia exposed.
defense
of
government
qualified
immunity.
officials
discretionary
authority
acting
Defendants assert the
Qualified
within
“‘from
the
liability
immunity
scope
for
protects
of
civil
their
damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
11
would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the law.”
Gennusa v. Canova, No. 12-13871, 2014 WL 1363541, at *2 (11th
Cir. Apr. 8, 2014).
Here, Plaintiffs do not dispute that Defendants were acting
within
the
scope
of
their
discretionary
authority
when
they
entered Plaintiffs’ home, searched it, and arrested Plaintiffs.
Plaintiffs thus “bear the burden of establishing that qualified
immunity
is
not
appropriate.”
Id.
To
meet
their
burden,
Plaintiffs must show that (1) Defendants violated the Fourth
Amendment, and (2) at the time of Defendants’ actions, “it was
clearly
established
unconstitutional.”
that
Id.
the
challenged
conduct
was
“[A] defendant 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.”
Plumhoff v. Rickard, No. 12-1117, 2014 WL 2178335, at *9
(U.S. May 27, 2014).
A.
Warrantless Entry Into and Search of Plaintiffs’ Home
Defendants
did
Plaintiffs’ home.
not
have
a
warrant
when
they
entered
Under the Fourth Amendment, “searches and
12
seizures
inside
unreasonable.”
a
home
without
a
warrant
are
presumptively
Welsh v. Wisconsin, 466 U.S. 740, 749 (1984).
One of the issues presented by Defendants’ motions is whether an
exception
to
the
warrant
requirement
applies
here.
Such
exceptions are “few in number and carefully delineated.”
Id.
(internal
the
quotation
marks
omitted).
“voluntary consent to enter exception.”
Defendants
rely
on
See Bashir v. Rockdale
Cnty., Ga., 445 F.3d 1323, 1328 (11th Cir. 2006) (explaining
exceptions to warrant requirement).6
Defendants did not directly seek consent from Plaintiffs
before entering their home.
Instead, they relied on a “consent
to search” provision which Plaintiff Jackson agreed to as part
of a previous criminal judgment against him.
Jackson argues
that he did not voluntarily consent to the Fourth Amendment
waiver, and Mitchell maintains that even if he did, Jackson’s
“consent” did not apply to her.
It is undisputed that a “consent to search” provision was a
condition of Jackson’s probation relating to a previous criminal
offense and that the condition was in effect when Defendants
6
Defendants do not seriously argue that the other exception, “exigent
circumstances,” applies. Application of that exception in the context
of a home entry is rarely sanctioned when there is probable cause to
believe that only a minor offense has been committed. See Welsh, 466
U.S. at 753.
Here, Defendants were investigating the misdemeanor
offense of contributing to the delinquency of a minor.
Moreover,
Defendants’ decision to go eat before devising a plan to enter
Plaintiffs’ home directly contradicts any suggestion that exigent
circumstances justified their failure to obtain a warrant.
13
entered Plaintiffs’ home.
It is also undisputed that Defendants
were aware of the provision and relied on it when they entered
Plaintiffs’ home without a warrant.
Relying on Fox v. State,
527 S.E.2d 847, 272 Ga. 163 (2000), Jackson argues that he never
voluntarily agreed to the consent to search/waiver of Fourth
Amendment
rights
misplaced.
In
Fourth
provision.
Fox,
Amendment
the
Jackson’s
Georgia
waiver
reliance
Supreme
provision
was
Court
on
found
invalid
Fox
is
that
because
a
the
probationer was not informed of the search provision until after
he was sentenced and therefore did not have an opportunity “to
consider whether prison was an acceptable alternative in light
of this condition of probation.”
Id. at 849, 272 Ga. at 165.
Here, the prosecutor disclosed the search condition to Jackson
before the sentencing.
Plea
Hr’g
Tr.
Stewart Mot. for Summ. J. Ex. 9, Guilty
2:14-24,
Apr.
13,
2009,
ECF
No.
33-10.
The
sentencing judge specifically asked Jackson if the prosecutor
“went over this search provision,” and Jackson responded, “Yes,
sir.”
Id. at 5:7-10.
The judge also asked Jackson if he agreed
to the provision, and Jackson said yes.
these
reasons,
the
Court
concludes
that
Id. at 5:11-12.
Jackson
For
voluntarily
agreed to the Fourth Amendment waiver as a condition of his
probation.
The
next
issue
is
whether
the
consent
to
search/Fourth
Amendment waiver applies under the circumstances confronting the
14
Defendants when they entered Plaintiffs’ home without a warrant.
If a probationer voluntarily agrees to a “consent to search”
provision as a term of his probation and officers reasonably
suspect that the probationer is engaged in criminal activity,
the courts will uphold a search of the probationer’s residence.
United States v. Knights, 534 U.S. 112, 119-20 (2001) (finding
that
Fourth
Amendment
waiver
was
a
reasonable
term
of
probation); Allen v. State, 369 S.E.2d 909, 910, 258 Ga. 424,
424 (1988) (upholding Fourth Amendment waiver where probationer
agreed to the waiver as part of a plea bargain).
This rule is
rooted in the principle that “probationers do not enjoy the
absolute liberty to which every citizen is entitled” because “a
court granting probation may impose reasonable conditions that
deprive the offender of some freedoms enjoyed by law-abiding
citizens.”
Knights, 534 U.S. at 119 (internal quotation marks
omitted).
When the courts determine the reasonableness of a
search, they must assess, “on the one hand, the degree to which
it intrudes upon an individual’s privacy and, on the other, the
degree to which it is needed for the promotion of legitimate
governmental interests.”
Id.
On one side of the balance, a
probationer who accepts a search condition as a condition of
probation has a diminished expectation of privacy.
20.
On
the
other
side
of
the
balance
is
the
Id. at 119government’s
concern that a probationer “will be more likely to engage in
15
criminal conduct than an ordinary member of the community.”
Id.
at 121.
The
government
“may
therefore
justifiably
focus
on
probationers in a way that it does not on the ordinary citizen.”
Id.
“When
an
officer
has
reasonable
suspicion
that
a
probationer subject to a search condition is engaged in criminal
activity, there is enough likelihood that criminal conduct is
occurring that an intrusion on the probationer’s significantly
diminished privacy interests is reasonable.”
Id.
Thus, it is
clear that a probationer’s consent to search probation condition
extends
search
to
to
situations
monitor
where
whether
officers
the
(a)
probationer
are
conducting
is
complying
the
with
probation restrictions, id. at 119-20, or (b) have a reasonable
suspicion that the probationer is engaged in criminal activity,
id. at 121.
what
It is less clear whether these principles authorize
Defendants
did
here:
treat
a
probationer’s
consent
to
search provision as a complete waiver that permits a search of
the probationer’s house at any time, even when (1) the officers
are not conducting the search to monitor the probationer and (2)
the
officers
only
suspect
the
probationer’s
cotenant—not
probationer himself—may have committed a misdemeanor.
Court
does
not
need
to
determine
today
whether
conduct here actually violated the Fourth Amendment.
16
the
But the
Defendants’
To lose qualified immunity, an officer must violate clearly
established law.
For a right to be clearly established, the
constitutional question must be “beyond debate.”
Stanton v.
Sims, 134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation
marks omitted).
Plaintiffs pointed the Court to no authority
clearly establishing that a probationer’s consent to a search
provision is not a complete waiver of the probationer’s Fourth
Amendment rights.
Significantly, both the United States Supreme
Court and the Georgia Supreme Court have left this question
open.
that
In Knights, the United States Supreme Court emphasized
it
was
not
deciding
whether
acceptance
of
a
search
condition constituted consent in the “sense of a complete waiver
of” a probationer’s Fourth Amendment rights.
at 118.
Knights, 534 U.S.
In Brooks, the Georgia Supreme Court left “for another
day the question of whether a probation search must be supported
by
reasonable
grounds
despite
a
Fourth
Brooks, 677 S.E.2d at 68, 285 Ga. at 424.
Amendment
waiver.”
And at least two
Georgia Supreme Court justices would have concluded in Brooks
that a “consent to search” probation condition constitutes a
complete waiver of the probationer’s Fourth Amendment rights.
Brooks,
677
S.E.2d
at
70-71,
285
Ga.
at
427
(Melton,
J.,
concurring).
As previously explained, “a defendant cannot be said to
have violated a clearly established right unless the right’s
17
contours were sufficiently definite that any reasonable official
in
the
defendant’s
violating it.”
shoes
would
have
understood
that
Plumhoff, 2014 WL 2178335, at *9.
he
was
Even if a
probationer’s agreement to a consent to search condition does
not
constitute
a
complete
Fourth
Amendment
waiver,
that
principle was not clearly established at the time of the events
giving rise to this action.
Therefore, Defendants cannot be
deemed to have known that their reliance on Jackson’s consent to
search provision violated Plaintiffs’ clearly established Fourth
Amendment
rights.
qualified
immunity
Consequently,
as
to
claims
Defendants
based
on
are
entitled
to
their
reliance
on
Jackson’s consent to search probation condition.
The final issue is whether Jackson’s consent applies to his
cohabitator, Mitchell.
one
resident
sufficient
to
of
It is well established that “consent by
jointly
justify
a
occupied
premises
warrantless
search.”
California, 134 S. Ct. 1126, 1133 (2014).
is
generally
Fernandez
v.
There is a narrow
exception:
“a physically present inhabitant’s express refusal
of
to
consent
a
police
search
is
dispositive
regardless of the consent of a fellow occupant.”
as
to
him,
Georgia v.
Randolph, 547 U.S. 103, 122-123 (2006); accord Fernandez, 134 S.
Ct. 1134 (emphasizing that Randolph does not extend to cases
where the objector is not present and objecting).
18
Mitchell has
pointed to no evidence that she refused consent when Defendants
entered the house.
Even
if
the
Fourth
Amendment
did
not
authorize
the
application of Jackson’s consent to Mitchell, the Court finds
that
such
Defendants
a
principle
entered
the
was
not
home.
clearly
established
Accordingly,
when
Defendants
are
entitled to qualified immunity as to Plaintiffs’ claims that the
warrantless entry into their home violated the Fourth Amendment.
B.
Plaintiffs’ Arrest
Plaintiffs also maintain that even if Defendants lawfully
entered
their
Plaintiffs.
home,
A
they
lacked
warrantless
probable
arrest
cause
without
to
probable
arrest
cause
violates the Fourth Amendment, “‘but the existence of probable
cause at the time of arrest is an absolute bar to a subsequent
constitutional challenge to the arrest.’”
Morris v. Town of
Lexington, Ala., No. 13-10434, 2014 WL 2111081, at *5 (11th Cir.
2014) (quoting Brown v. City of Huntsville, 608 F.3d 724, 734
(11th Cir. 2010)).
Probable cause exists “‘when the facts and
circumstances within the officer’s knowledge . . . would cause a
prudent person to believe, under the circumstances shown, that
the suspect has committed, is committing, or is about to commit
an offense.’”
Id. (quoting Durruthy v. Pastor, 351 F.3d 1080,
1088 (11th Cir.2003)) (alteration in original).
“For an officer
to be entitled to qualified immunity, however, he need not have
19
actual probable cause; ‘arguable’ probable cause will suffice.”
Id.
An officer has arguable probable cause if “‘reasonable
officers
in
the
same
circumstances
and
possessing
the
same
knowledge as the Defendants could have believed that probable
cause existed to arrest Plaintiff.’”
Id. (quoting Kingsland v.
City of Miami, 382 F.3d 1220, 1232 (11th Cir.2004)).
Defendants
delinquency
marijuana
of
arrested
a
possession
Plaintiffs
minor
under
under
for
contributing
O.C.G.A. §
O.C.G.A. §
16-12-1
16-13-30.
to
the
and
for
Georgia
law
makes it “unlawful for any person to possess, have under his or
her
control,
manufacture,
deliver,
distribute,
dispense,
administer, purchase, sell, or possess with intent to distribute
marijuana.”
O.C.G.A. § 16-13-30(j)(1).
When Stewart searched
the house, he found a substance in an ashtray in Plaintiffs’
bedroom that he believed was marijuana.
Plaintiffs argue that
it was unreasonable for Stewart to suspect that the substance
was marijuana and note that the substance was later tested and
found not to be marijuana.
Plaintiffs, however, have failed to
point to persuasive evidence that Stewart’s suspicion at the
time of their arrest was unreasonable.
Mitchell’s own statements bolstered Stewart’s belief that
the substance was marijuana: when Stewart asked who would take
responsibility for the substance, Mitchell said, “He don’t even
smoke.
I smoke.”
Arrest Video 23:20:52-23:21:23.
20
She then
said, “I’m not gonna let him go to jail for nothing.
smoke.”
Id.
He don’t
After the arrest, Mitchell explained that when she
took responsibility for the substance, she was referring to a
tobacco cigarette.
Mitchell Dep. vol. II 12:5-18, ECF No. 84;
id. at 87:15-18 (stating that Mitchell knew that Stewart found
something
but
did
not
know
what
it
was);
id.
at
88:22-89:3
(stating that Mitchell did not know whether the deputies were
investigating
subjective
suspected
beliefs
were
marijuana).
when
she
Whatever
made
statements
Mitchell’s
about
the
substance, a reasonable officer in Stewart’s position certainly
could have believed that Mitchell was taking responsibility for
an illegal substance, such as marijuana, because Mitchell said
that she did not want Jackson to go to jail for it.
And
because
the
both
Plaintiffs
lived
at
the
house
and
shared
bedroom where Stewart found the suspected marijuana, an officer
in
Stewart’s
position
could
reasonably
Plaintiffs possessed marijuana.
believe
that
both
See, e.g., United States v.
Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (“Constructive
possession exists where the defendant had dominion or control
over
the
drugs
located.”).
or
over
the
premises
where
the
drugs
were
The Court thus finds that Defendants had arguable
probable cause to arrest Plaintiffs for marijuana possession.
Given this finding, the Court does not need to decide whether
Defendants
also
had
arguable
probable
21
cause
to
believe
that
Plaintiffs
had
violated
Georgia’s
delinquency of a minor statute.
qualified
immunity
on
contributing
to
the
Defendants are entitled to
Plaintiffs’
claims
that
Defendants
violated their Fourth Amendment rights by arresting them.
C.
The Manner of the Arrests
Plaintiffs
entered
their
maintain
home
and
that
even
arrested
if
them,
Defendants
they
violated
lawfully
clearly
established law when they took Plaintiffs out of their home
without sufficient covering and without a legitimate reason for
doing so.
The Court agrees.
If an officer has probable cause to arrest a person, the
seizure must still be reasonable.
1, 8 (1985).
Tennessee v. Garner, 471 U.S.
“To determine the constitutionality of a seizure,”
the Court must “balance the nature and quality of the intrusion
on
the
individual’s
Fourth
Amendment
interests
against
the
importance of the governmental interests alleged to justify the
intrusion.”
Id.
(internal
quotation
marks
omitted).
The
reasonableness of a seizure “depends on not only when a seizure
is made, but also how it is carried out.” Id.
Defendants argue that they were unaware of the extent to
which Plaintiffs’ bodies were exposed during the arrest.
there
is
plenty
of
evidence
in
the
record
that
But
contradicts
Defendants’ contention, particularly when the evidence is viewed
in the light most favorable to Plaintiffs as required at this
22
stage
of
the
litigation.
See
Tolan,
134
S.
Ct.
at
1866
(emphasizing that a court “may not resolve genuine disputes of
fact in favor of the party seeking summary judgment”).
The
evidence viewed in the light most favorable to Plaintiffs shows
that (1) Mitchell was naked except for a sweater that did not
cover her private areas; (2) Jackson was naked except for a
jacket that did not cover his private areas; (3) before the
officers arrested Plaintiffs and escorted them from the house,
the officers pointed their flashlights directly at Plaintiffs
and looked at their exposed bodies; (4) each Plaintiff asked
Defendants
for
clothes
at
least
twice;
and
(5)
Plaintiffs’
neighbors and jail inmates could see Plaintiffs’ exposed bodies.
These facts must be accepted when deciding Defendants’ motion
for summary judgment.
The
next
established
question
is
constitutional
whether
right
Plaintiffs
to
had
bodily
a
clearly
privacy
that
Defendants violated when they escorted Plaintiffs out of their
house
nearly
naked.
Plaintiffs
may
“demonstrate
that
the
contours of the right were clearly established” by showing “that
a
materially
similar
case
has
already
been
decided”
by
the
United States Supreme Court, the United States Court of Appeals
for the Eleventh Circuit Court, or the Georgia Supreme Court.
Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (internal
quotation marks omitted).
Plaintiffs “also may show that a
23
constitutional right was clearly established through a broader,
clearly established principle [that] should control the novel
facts
[of
the]
situation.”
Id.
at
1256
original) (internal quotation marks omitted).
(alterations
in
“[T]he principle
must be established with obvious clarity by the case law so that
every
objectively
reasonable
government
official
facing
the
circumstances would know that the official’s conduct did violate
federal law when the official acted.”
marks omitted).
defense
by
Plaintiffs may also defeat a qualified immunity
showing
obviously
at
prohibits
that
Id. (internal quotation
the
the
that
very
“the
core
of
unlawfulness
official’s
what
of
the
the
conduct
Fourth
conduct
lies
so
Amendment
was
readily
apparent to the official, notwithstanding the lack of case law.”
Id. at 1257 (internal quotation marks omitted).
Here, Plaintiffs point to the well established principle
that even incarcerated prisoners “retain a constitutional right
to bodily privacy.”
(11th Cir. 1993).7
Fortner v. Thomas, 983 F.2d 1024, 1030
The Eleventh Circuit emphasized that “most
7
Defendants contend that Fortner “den[ies] that a prisoner has any
right to bodily privacy.”
Stewart’s Reply to Jackson’s Resp. Br. 9,
ECF No. 80.
The Eleventh Circuit in Fortner did grant officers
qualified immunity because, as of 1993, neither the Eleventh Circuit
“nor the Supreme Court had recognized that a prisoner retains a
constitutional right to bodily privacy.”
Fortner, 983 F.3d at 1028.
Defendants apparently stopped reading there. Had Defendants read the
rest of Fortner, they would have learned that although the officers
received qualified immunity, the court also addressed the prisoners’
claim for injunctive relief and squarely held “that prisoners retain a
constitutional right to bodily privacy.” Id. at 1030.
24
people have a special sense of privacy in their genitals, and
involuntary exposure of them in the presence of people of the
other sex may be especially demeaning and humiliating.”
1030 (internal quotation marks omitted).
Id. at
Therefore, a prison
regulation that impinges on the prisoners’ constitutional right
to bodily privacy must pass a “reasonableness test.”8
Id.
After
it decided Fortner, the Eleventh Circuit “reaffirmed the privacy
rights of prisoners emphasizing the harm of compelled nudity.”
Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006).
The Court is satisfied that
Fortner
and the cases that
follow it confirm a broad, clearly established principle that
individuals
who
have
been
placed
in
constitutional right to bodily privacy.
police
custody
have
a
If convicted prisoners
retain a constitutional right to bodily privacy while in jail,
then
they
must
have
had
that
right
before
they
were
incarcerated, which means that free citizens enjoy at least the
same right to bodily privacy.
legitimate
privacy,
reason
then
an
for
And if a prison guard must have a
impinging
arresting
an
officer
inmate’s
right
certainly
to
must
bodily
have
a
legitimate reason for violating the bodily privacy rights of an
arrestee.
8
In Fortner, male prisoners sought “injunctive relief prohibiting
female correctional officers from assignments that allow the officers
to view the [prisoners] nude in their living quarters.” Fortner, 983
F.3d at 1026.
25
Defendants
purpose
for
did
not
escorting
offer
any
Plaintiffs
legitimate
out
of
law
their
enough clothes to cover their private areas.
enforcement
home
without
Defendants simply
contend that they did not notice that Plaintiffs were unclothed.
While that argument may rescue them at trial (if a jury believes
them),
Defendants’
summary judgment.
fact-based
argument
cannot
save
them
at
If a jury believes Plaintiffs’ version of
what happened, it would be authorized to find that Defendants
knew that Plaintiffs were exposed yet escorted them out of the
house without any reasonable belief that it would have been
unsafe
clothes
or
impracticable
first.
Under
have known better.
to
allow
these
Plaintiffs
circumstances,
to
put
on
Defendants
some
should
Defendants are not entitled to qualified
immunity on Plaintiffs’ Fourth Amendment claims relating to the
manner of their arrests.
II.
State Law Claims
Defendants
claim
that
they
are
entitled
immunity on Plaintiffs’ state law claims.
to
official
Official immunity
under Georgia law protects public agents from personal liability
“for their discretionary acts unless they are done with malice
or intent to injure.”
City of Atlanta v. Shavers, 756 S.E.2d
204, 206 (Ga. Ct. App. 2014) (internal quotation marks omitted).
“A
showing
quotation
of
actual
marks
malice
omitted).
is
required.”
“[A]ctual
26
Id.
malice
(internal
requires
a
deliberate intention to do wrong.”
marks
omitted).
In
Shavers,
the
Id.
(internal quotation
Georgia
Court
of
Appeals
concluded that an officer was not entitled to official immunity
on the plaintiff’s false imprisonment claim because the evidence
viewed in the light most favorable to the plaintiff established
that the officer arrested the plaintiff even though he knew
there was no probable cause for the arrest.
Id. at 207.
Here, under Plaintiffs’ version of the facts, a jury could
conclude that Defendants knew that Plaintiffs were nearly naked
and that there was no legitimate purpose for parading them in
front
of
their
Defendants
did
neighbors
it
and
anyway.
to
the
Thus,
a
jail
jury
that
could
way,
but
reasonably
conclude that Defendants deliberately intended to do a wrongful
act.
Id.
Defendants are therefore not entitled to official
immunity on Plaintiffs’ state law claims.
For similar reasons, Defendants are not entitled to summary
judgment
on
O.C.G.A. §
Georgia
law
misconduct,
entire
want
Plaintiffs’
51-12-5.1(b)
where
“the
malice,
of
care
claims
for
punitive
damages.
See
(permitting
punitive
damages
under
defendant’s
fraud,
which
actions
wantonness,
would
raise
showed
oppression,
the
willful
or
that
presumption
of
conscious indifference to consequences.”).9
9
Plaintiffs’ punitive damages claims related to their federal §1983
manner of arrest claims also survive summary judgment.
See Smith v.
27
CONCLUSION
As discussed above, Defendants’ summary judgment motions
(ECF Nos. 33 & 37) are granted in part and denied in part.
Summary judgment is granted in favor of Defendants based on
qualified and official immunity as to Plaintiffs’ claims arising
out of Defendants’ entry into Plaintiffs’ home and the decision
to arrest them.
Summary judgment is denied as to Plaintiffs’
§ 1983 Fourth Amendment and state law claims that relate to the
manner of Plaintiffs’ arrests, including Plaintiffs’ claims for
punitive damages.
IT IS SO ORDERED, this 12th day of June, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
Wade, 461 U.S. 30, 56 (1983) (holding that a jury may assess punitive
damages in a 42 U.S.C. § 1983 action “when the defendant’s conduct is
shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of
others”).
28
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