Poole et al v. Bell et al
Filing
68
ORDER GRANTING IN PART and DENYING IN PART 31 Motion for Summary Judgment with regard to Defendant Harold Lee Hartel and Defendant Jimmie Hartel and GRANTED with regard to Defendant Shasta Poole. Ordered by Judge Marc Thomas Treadwell on 3/29/2012. (tlh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
Shasta A. POOLE, et. al,
Plaintiffs,
v.
Alex BELL, et. al,
Defendants.
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CIVIL ACTION NO. 5:09-CV-233 (MTT)
ORDER
This matter is before the Court on the Defendants’ Motion for Summary
Judgment. (Doc. 31). For the following reasons, the Motion is GRANTED in part and
DENIED in part with regard to Plaintiffs Harold Lee Hartel and Jimmie Hartel and
GRANTED with regard to Plaintiff Shasta Poole.
I. FACTUAL BACKGROUND
This action arises from the arrest of Plaintiff Harold Lee Hartel and the placement
of Plaintiffs Shasta Poole and Jimmie Hartel into custody.1 On July 11, 2007, Lee and
his wife Jimmie invited their friend Poole over for a cookout. Lee “sipped” three beers
by the pool, but he claims the amount he consumed was equivalent to “one beer or less
than a beer.” (Doc. 37, Deposition of Lee Hartel, at 53). The Plaintiffs ate watermelon
around 6:30 pm while the charcoals were heating on the grill. Lee and Poole walked to
the street and threw the watermelon rinds into a ditch across the street near the Stille
home. Discarding watermelon rinds in this manner was the Plaintiffs’ usual practice.
1
Because the Parties disagree whether Poole and Jimmie were taken into “protective custody,”
the Court will use the terms “detention” or “custody.”
(Doc. 36, Deposition of Jimmie Hartel, at 21); (Doc. 35, Deposition of Shasta Poole, at
67). Usual practice or not, the Stilles considered this method of disposal littering, and
they reported the offense to the Twiggs County Sheriff’s Office. Defendant Deputy
Anthony Watson was dispatched to investigate the matter.
Watson first went to the Stille home to talk to them about their complaint. He
then walked over to the Hartel home. The front door was open, but the outer storm door
with a transparent opening at the top was closed. Poole went to answer the door and
Jimmie followed. Watson specifically asked to speak with Lee and Poole. Poole
opened the storm door and acknowledged herself. Watson told Poole that he was there
to speak about the watermelon rinds. Poole said she did not know discarding
watermelon rinds constituted littering, but she would pay a fine, if any. Watson told
Poole he only was going to give her a warning. After Watson finished speaking with
Poole, he asked to speak with Lee.
Watson asked Lee to step out on the porch, but Lee refused. Lee claims he did
not want to step outside because he did not want neighbors to know about his private
affairs. Lee told Watson he could come inside to discuss the matter. Watson did not
want to come inside and Lee said “you can write us a ticket and … be over with it.”
(Doc. 37, Deposition of Lee Hartel, at 74). Lee then walked toward the couch in the
“sunroom,” and told Poole and Jimmie to come inside.
At oral argument, Watson’s counsel acknowledged, properly, that at that point
Watson did not have probable cause to enter the Hartel home or to arrest Lee. Counsel
maintained, however, that Watson entered the home with Lee’s consent. Watson’s
testimony, however, is to the contrary:
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Q.
So why did you leave the porch to come in the front door?
A.
Because he would not - he was obstructing my investigation and he
was fixing to be arrested for littering and obstruction.
Q.
So my question was: You were coming in the house for the
purpose of arresting him?
A.
Yes, ma’am, at this point in time.
(Doc. 54, Deposition of Anthony Watson at 50). Indeed, Watson testified that he
announced his attentions either before or after he was entering the house:
Q.
But you did go in the house; correct?
A.
Yes, once I told him that I was going to arrest him because of his
actions.
(Id. at 49). As he entered the house, Watson had one hand on his handcuffs and the
other on his gun. He then began pulling his gun from its holster. At that point, the
Parties’ accounts of what happened inside the Hartel home differ wildly.
According to Watson, Lee picked up a pistol, pointed it at him, and said “take
your hand off that gun before I f***ing shoot you.” Id. at 50. Watson lifted his hand off
his gun and asked Lee to put his gun down, but Lee refused. When Watson took one
step backwards, Lee told him “If you try to run, I’m gonna to shoot you mother***er, do
you understand me?” Id. at 51. The two sat down, but Lee kept his pistol in his hand.
Watson then concluded it would be a good idea to listen to Lee’s complaints: “I’m sitting
there staring down the barrel of a gun so I’m going to be your best friend till that gun is
out of play.” Id. at 55. When the two moved to another room, Lee placed the gun on his
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coffee table. While Lee aired his grievances, Poole picked up the pistol and left the
room.
According to Lee, he picked up his pistol when he saw Watson reaching for his,
“showed” it to Watson, and said “please let’s don’t do this.” (Doc. 37, Deposition of Lee
Hartel, at 77). Lee denies that he pointed the pistol at Watson. Indeed, Lee claimed his
finger was never on the trigger and he was holding it sideways. Claiming that he didn’t
want any trouble, Lee told Watson to “just put your pistol up please.” Id. at 78. Lee
claims that he then told Watson that he was about to turn around and place the pistol
back on the table so “please don’t shoot me in the back.” Id. Lee then placed the pistol
on the table with the handle facing Watson. Poole picked up the pistol and moved it to
the Hartel’s bedroom.
Lee’s then-tenant, his friend Melissa Thompson, and Thompson’s young
daughter entered the Hartel home while Watson was still there. Watson knew
Thompson from the magistrate judge’s office, and they spoke for about ten minutes.
Watson left the Hartel home shortly after he finished speaking with Thompson. Lee
“went back and checked [his] coals.” (Doc. 37, Deposition of Lee Hartel, at 92).
Thompson and company left the Hartel home about ten minutes after Watson left.
Watson immediately contacted his partner Defendant Scott Radebaugh and told
Radebaugh to meet him at Defendant William Stokes’, also a deputy, nearby home.
Defendant Lieutenant Robert Rodgers heard Watson on the sheriff’s office radio and
contacted Watson because he sensed something was wrong. Watson told Rodgers
that Lee had pulled a gun on him. Rodgers then conveyed Watson’s version of what
had happened at the Hartel home to Stokes, Defendant Deputy Alex Bell, Defendant
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Sheriff Darren Mitchum, and Defendant Chief Deputy Billy Boney. Rodgers also
contacted Twiggs County Magistrate Judge David Brown about procuring a search
warrant. Boney, Rodgers, and Bell joined Watson and Radebaugh at the Stokes home.
Watson recounted the facts of his encounter with Lee, and the deputies decided to go to
the Hartel home to arrest Lee.
The deputies arrived at the Hartel home2 before sunset3 and surrounded it. A
patrol vehicle blocked the road until the deputies could figure out what was going on.
Because it was getting dark outside, the deputies used spotlights. The deputies were
armed with handguns, shotguns, and Bell carried an M-16 rifle. As the Plaintiffs now
describe it, it looked like “Ruby Ridge” or “Waco.” Nevertheless, the Plaintiffs claim they
thought the deputies were there because of the discarded watermelon rinds.4 When the
deputies arrived, Thompson and company came out of the rental home to see what was
going on, and Radebaugh, who also recognized Thompson from the magistrate judge’s
office, told them to leave the premises for their safety.
Lee, unarmed, came to the porch where he “probably” shouted obscenities at the
deputies. (Doc. 37, Deposition of Lee Hartel, at 97). The deputies asked Lee to come
off the porch, but he refused and instead invited the deputies to come to the porch. The
2
Stokes met the officers at the Hartel home.
3
The Court takes judicial notice that sunset was at 8:50 pm on July 11, 2007, in Atlanta,
Georgia, which is approximately 90 miles from the Hartel home. Visit
http://www.timeanddate.com/worldclock/sunrise.html, select U.S.A. – Georgia – Atlanta, and
select July 2007.
4
Even Poole acknowledged this belief, given previous events and the magnitude of forces
arrayed before the Hartel home, was “naïve.” (Doc. 35, Deposition of Shasta Poole, at 102).
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deputies held their positions, and Lee repeatedly walked back and forth between the
porch and the inside of the home.
Boney directed the deputies to take the women – who also had been shouting at
the deputies – into custody, he claims, for their safety. When the Hartels’ deaf and
nearly blind dog slipped out of the home (perhaps exercising better judgment than all
other participants in the unfolding drama), Poole went to the porch to look for him.
Rodgers grabbed her off the porch, and Radebaugh handcuffed her behind her back
and pulled her by the handcuffs into the back of a patrol vehicle. Bell also was involved
with placing Poole into custody. Poole claims she told the deputies that they were
hurting her. (Doc. 35, Deposition of Shasta Poole, at 103). Jimmie also went on the
porch to look for the dog and was grabbed by Boney, handcuffed, and placed into the
vehicle with Poole. Jimmie did not convey feelings of pain, but she did ask the deputies
to pull down her top that rose while she was transported to the patrol vehicle. Lee
became “very upset” at the deputies for “manhandling” his wife. (Doc. 37, Deposition of
Lee Hartel, at 98).
At that point, Lee was the only one in the home. Sheriff Mitchum telephoned Lee
and told him to come outside to talk to the deputies and confirm that he did not have a
weapon on him.5 At first, Lee resisted this request because he had already conveyed
his message to the deputies “four or five times,” an apparent reference to what the
deputies described as Lee’s obscenity-laden taunts. (Doc. 37, Deposition of Lee Hartel,
at 101).
5
Sheriff Mitchum was familiar with Lee and had his number because Lee had called Mitchum
about signing someone’s bond a few weeks earlier.
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Nevertheless, Lee eventually walked outside to the porch to announce he was
not carrying a weapon, and Boney shot him with a TASER6 from the left side of the
porch. The probes went through Lee’s clothes, but did not pierce his skin. Lee, still
standing, removed the probes and yelled “it would take more than that ‘motherf***er’ to
take him.” (Doc. 32, Defendants’ Statement of Material Facts, at ¶ 81); (Doc. 44,
Plaintiffs’ Response to Defendants’ Statement of Material Facts, at ¶ 81). After Boney
tased Lee, Lee went back inside and received another call from Mitchum. Mitchum
asked Lee if he had a gun on him, and Lee replied in the negative. Mitchum told Lee he
would arrive at the home shortly, and Lee gave Mitchum permission to enter the home
when he arrived.
Judge Brown arrived at the home to issue the warrant after Lee had been tased.
Once Judge Brown realized he was at the Hartel home, he decided to use their
preexisting relationship to “get the situation ironed out where [Lee] would be safe to
come out.” (Doc. 64, Trial Testimony of Magistrate Judge David Brown at 244). Judge
Brown telephoned Lee, and Lee gave him permission to come inside. Lee did not
mention Watson pulling a gun to Judge Brown, but rather he was upset about an
incident that occurred a few weeks earlier when Stokes failed to act on a threat made by
Mr. Stille.7
6
“A ‘taser’ is a non-deadly weapon commonly carried by law enforcement. The taser
administers an electric shock to a suspect by shooting two small probes into the suspect's body.
The probes are connected to the firing mechanism via wires. Once fired, the probes lodge
under the suspect's skin and administer an electric shock. This type of taser permits the officer
to incapacitate a suspect from a modest distance.” Fils v. City of Aventura, 647 F.3d 1272,
1276 n.2 (11th Cir. 2011). Because the term refers to products from TASER International, Inc.,
the Court will refer to the device as a TASER.
7
According to Stokes, the altercation was related to Lee discarding food in the ditch. (Doc. 56,
Deposition of William Stokes, at 18-19).
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Approximately five to ten minutes after Judge Brown went inside, Mitchum,
Rodgers, and Stokes entered the home. Lee felt Stokes was the source of his
problems, and he asked Stokes to leave. Stokes walked away, and Lee surrendered to
Mitchum without further incident.
Poole and Jimmie then were released from the patrol vehicle. Poole was in
custody for approximately 45 minutes, and Jimmie was in custody for approximately 1520 minutes. After Jimmie was released, Mitchum brought her inside to retrieve the
pistol Lee “showed” to Watson. Mitchum also removed a shotgun he found inside for
the safety of the deputies and neighbors.
Lee was taken to Twiggs County Jail and later Laurens County Jail. Lee’s blood
alcohol content was not measured when he was taken into custody. Because Lee
experienced chest pains and vomited, he was taken to a hospital in Cochran, Georgia
between 11 pm and midnight. Jimmie posted Lee’s bond while he was at the hospital,
so he went home once he was released from the hospital around 1:30 pm on July 12,
2007.
Watson obtained an arrest warrant for felony obstruction of a peace officer,
O.C.G.A. § 16-10-24(b), the same day Lee was released. Lee was indicted in Twiggs
County for aggravated assault, terroristic threats, and false imprisonment. At trial, Lee
moved for a directed verdict of acquittal, but his motion was denied. The jury found him
not guilty on all charges. Neither Poole nor Jimmie was charged.
It is difficult to tell from the Plaintiffs’ Complaint exactly what claims they are
asserting. However, reading the Complaint in the most favorable light possible, and
with the aid of the Plaintiffs’ briefs, it seems the Plaintiffs are asserting federal and state
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claims for unreasonable search and seizure,8 false arrest, false imprisonment, malicious
prosecution, excessive force, and failure to intervene against all Defendants, and state
law claims for assault, battery, and free speech against all Defendants. The Plaintiffs
assert federal and state claims for inadequate training and supervision against Sheriff
Mitchum and Chief Deputy Boney.
Watson filed a counterclaim against Lee for aggravated assault, false
imprisonment, and intentional infliction of emotional distress pursuant to Georgia law.
The Defendants moved for summary judgment on the Plaintiffs’ claims, but
Watson did not move for summary judgment on his counterclaim.
II. DISCUSSION
A. Motion for Summary Judgment Standard
Summary judgment must be granted if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material facts and that the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). “A factual dispute is genuine only if ‘a reasonable jury could return a
verdict for the nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop.,
941 F.2d 1428, 1437 (11th Cir. 1991)). The burden rests with the moving party to prove
that no genuine issue of material fact exists. Info. Sys. & Networks Corp. v. City of
Atlanta, 281 F.3d at 1224. The district court must “view all evidence in the light most
8
The Court cannot read the Complaint to assert a Fourth Amendment claim by Poole for an
unreasonable search and seizure of the Hartel home.
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favorable to the nonmoving party, and resolve all reasonable doubts about the facts in
its favor.” Id.
B. Claim and Immunity Overview
Again, it is difficult to discern from the Complaint the precise claims the Plaintiffs
assert and against whom they are asserted. Giving the Plaintiffs the benefit of the
doubt, however, it appears they assert the following claims. Lee asserts claims for
federal and state constitutional violations against all Defendants for unreasonable
search and seizure, false arrest, malicious prosecution, false imprisonment, and
excessive force and against Mitchum and Boney for inadequate training and
supervision. Poole and Jimmie assert the same claims as Lee, except they do not
assert claims for malicious prosecution, and they assert claims for failure to “intervene”
against all Defendants. However, based upon discussion with counsel at oral
argument, it is probably more helpful to divide the Plaintiffs’ claims into two categories:
those based on conduct before Lee “showed” his pistol to Watson and those based on
conduct occurring after that event.
The Defendants argue they are entitled to qualified immunity on all federal
individual capacity claims. “‘Qualified immunity shields government officials from liability
for civil damages for torts committed while performing discretionary duties unless their
conduct violates a clearly established statutory or constitutional right.’” Edwards v.
Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Hadley v. Gutierrez, 526 F.3d
1324, 1329 (11th Cir. 2008)). “There can be no doubt” that deputies effectuating an
arrest are performing discretionary duties. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002). “‘Once discretionary authority is established, the burden then shifts to the
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plaintiff to show that qualified immunity should not apply.’” Edwards, 666 F.3d at 1294
(quoting Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). To
evaluate claims of qualified immunity, the Court must determine “whether the officer's
conduct amounted to a constitutional violation” and “whether the right violated was
‘clearly established’ at the time of the violation.” Lewis, 561 F.3d at 1291. This two-step
process may be done in whatever order is deemed most appropriate for the case. Id.
(citing Pearson v. Callahan, 555 U.S. 223 (2009)).
With regard to federal official capacity claims, the Defendants argue they are
entitled to Eleventh Amendment immunity.
With regard to state individual capacity claims, the Defendants argue they are
entitled to official immunity. With regard to state official capacity claims, the Defendants
argue they are entitled to sovereign immunity.
C. Federal Individual Capacity Claims that Arose Before Lee “Showed” His
Pistol to Watson
“It is axiomatic that the ‘physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.’” Welsh v. Wisconsin, 466 U.S. 740,
748 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313
(1972)). As such, it is a “‘basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively unreasonable.’” Welsh,
466 U.S. at 748-49 (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). “The
presumption is rebutted, and the arrest lawful, only when some exception to the warrant
requirement—such as consent or exigent circumstances—exists.” Bates v. Harvey, 518
F.3d 1233, 1239 (11th Cir. 2008).
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Watson’s counsel conceded at oral argument that Watson did not have probable
cause to enter the Hartel home, but he argued Watson had consent to enter the home
without a warrant. However, there is, at best from Watson’s standpoint, a question of
fact whether the consent was still valid. While Lee initially asked Watson to come in to
discuss matters, Watson responded that he would not enter the home. Lee then said
Watson could write a ticket and be over with it, and instructed Jimmie and Poole to
come inside, clearly terminating the discussion. When Watson entered the home, his
intent was not to discuss the matter, but to arrest Lee for littering and obstruction.
Thus, the Plaintiffs have met their burden of establishing a constitutional
violation. Because it was clearly established that Watson could not make a warrantless
entry of the home absent consent, he is not entitled to qualified immunity at this posture.
Accordingly, the Motion is denied with regard to Lee and Jimmie’s federal
individual capacity claims that arose before Lee “showed” his pistol to Watson and
granted with regard to Poole’s federal individual capacity claims, if indeed she asserts
any, that arose before Lee “showed” his pistol to Watson.
D. Federal Individual Capacity Claims that Arose After Lee “Showed” His
Pistol to Watson
1. Lee’s False Arrest, Malicious Prosecution, and False Imprisonment
Claims
Lee’s claims for false arrest and malicious prosecution are relatively easy to
resolve, given one overarching fact: Lee picked up a gun and “showed” it to a law
enforcement officer as the officer was attempting to place him under arrest and ordered
Watson not to take his gun out of his holster. The Court accepts as true, for now, the
Plaintiffs’ assertion that Lee never pointed the pistol directly at Watson and
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acknowledges, as the Plaintiffs request, the fortunate fact that “Deputy Watson had left
the Hartels’ home unharmed.” (Doc. 48, at 12) (emphasis in original). However,
whether Lee pointed it at Watson or “showed” it to him makes no material difference.
“There is no question that an arrest without probable cause to believe a crime
has been committed violates the Fourth Amendment.” Madiwale v. Savaiko, 117 F.3d
1321, 1324 (11th Cir. 1997). In a 42 U.S.C. § 1983 action, the plaintiff has the burden
of establishing the absence of probable cause. Rankin v. Evans, 133 F.3d 1425, 1436
(11th Cir. 1998). False arrest is an “arrest under process of law, without probable
cause, when made maliciously.” O.C.G.A. § 51-7-1. For a malicious prosecution claim,
a plaintiff must establish: “(1) a criminal prosecution; (2) instigated without probable
cause; (3) with malice; (4) pursuant to a valid warrant, accusation, or summons; (5) that
terminated in the plaintiff's favor; and (6) caused the plaintiff damage.” Gibbs v. Loomis,
Fargo, & Co., 259 Ga. App. 170, 173-74, 576 S.E.2d 589, 592 (2003). A trial court’s
denial of a motion for a directed verdict of acquittal constitutes a “binding determination
of the existence of probable cause.” Monroe v. Sigler, 256 Ga. 759, 761, 353 S.E.2d
23, 25 (1987).
Pursuant to O.C.G.A. § 16-10-24(a), one commits the crime of misdemeanor
obstruction when he “knowingly and willfully obstructs or hinders any law enforcement
officer in the lawful discharge of his official duties.” If the individual offers or does
violence to the person of such law enforcement officer, he has committed the crime of
felony obstruction pursuant to O.C.G.A. § 16-10-24(b).9
9
The Plaintiffs do not argue that Lee could brandish his pistol and order Watson to holster his pistol
because Watson’s entry into the house to arrest Lee was not “lawful.” Rightly so, given the facts here Lee
had no right to use a firearm to resist arrest, lawful or unlawful.
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Watson clearly had probable cause to believe that Lee had violated O.C.G.A.
§ 16-10-24. Given the circumstances, it is understandable that Watson did not arrest
Lee immediately. When Watson returned with reinforcements and notwithstanding the
Plaintiffs’ belief that the degree of reinforcement was unnecessary, the deputies still had
probable cause to arrest Lee.10 Further, Lee’s motion for directed verdict of acquittal at
his criminal trial was denied. Thus, because Lee has failed to establish a lack of
probable cause for his arrest, and thus has failed to demonstrate a constitutional
violation, Lee has not met his burden of removing the Defendants’ qualified immunity on
his false arrest and malicious prosecution claims.
The Defendants also are protected by qualified immunity on Lee’s false
imprisonment claim. “A § 1983 claim of false imprisonment requires a showing of
common law false imprisonment and a due process violation under the Fourteenth
Amendment.” Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). With regard to
the common law element, false imprisonment is the “unlawful detention of the person of
another, for any length of time, whereby such person is deprived of his personal liberty.”
O.C.G.A. § 51-7-20; Westbury v. Clanton, 136 Ga. 795, 72 S.E. 238, 238 (1911). “The
only essential elements of the action being the detention and its unlawfulness, malice
and the want of probable cause need not be shown.”11 Ferrell v. Mikula, 295 Ga. App.
326, 329, 672 S.E.2d 7, 10 (2008) (citations and quotations omitted). “‘[T]he defendant
10
The Plaintiffs also argue the Defendants needed a warrant to stand outside the home, but
there is no merit to this argument.
11
Many cases analyze false arrest and false imprisonment claims together. However, this
approach is improper because the lack of probable cause is an element of false arrest, but not
false imprisonment.
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in a false imprisonment case premised upon a warrantless arrest does not meet his
defensive burden merely by demonstrating the existence of probable cause but he must
go further and show that the arrest was also effectuated pursuant to one of the exigent
circumstances enumerated in O.C.G.A. § 17-4-20(a).’” Ferrell, 295 Ga. App. at 330,
672 S.E.2d at 11 (quoting Collins v. Sadlo, 167 Ga. App. 317, 319, 306 S.E.2d 390, 392
(1983)) (alteration in original). Section 17-4-20(a) allows an arrest to be made “if the
offense is committed in such officer's presence or within such officer's immediate
knowledge.” With regard to the due process violation element, the plaintiff must prove
the defendant acted with deliberate indifference, meaning the defendant had subjective
knowledge of a risk of serious harm and disregarded that risk by actions beyond mere
negligence. Campbell, 586 F.3d at 840.
Here, any “detention” inside the home was not unlawful because it was
effectuated pursuant to section 17-4-20(a) in that the offense took place in Watson’s
presence. Further, the Defendants did not act with deliberate indifference. Thus,
because Lee has failed to establish both common law false imprisonment and a due
process violation under the Fourteenth Amendment, the Defendants retain qualified
immunity on his false imprisonment claim.
2. Lee’s Excessive Force Claim
Lee claims Boney used excessive force when he tased him, albeit with no effect
because the probes stuck in his clothing. Lee claims he was unarmed at the time.
The fact that Lee was unarmed is not dispositive because a TASER typically is
used to subdue an unarmed suspect. In Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004), the suspect, later the plaintiff, also was unarmed. In Draper, a deputy pulled
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over a truck driver allegedly because his tag was not properly illuminated. The deputy
shined a light into the cab of the truck, and the driver politely asked the deputy not to
shine it in his eyes. The deputy asked the driver to walk behind the truck. The driver
complied, but shouted and complained about the light. The deputy requested the
driver’s license and proof of insurance. The driver did not retrieve the requested
documents, but rather paced back and forth and shouted at the deputy. After asking the
driver to retrieve the documents for the fifth time, the deputy discharged a TASER at the
driver’s chest. The driver fell to the ground and was arrested.
The Eleventh Circuit held that there was probable cause to arrest the driver
pursuant to Georgia’s misdemeanor obstruction statute. The Eleventh Circuit also held
that the deputy’s use of the TASER did not constitute excessive force. Given the
similarities between these cases, it is appropriate to quote the excessive force analysis
at length:
In the circumstances of this case, Reynolds's use of the taser gun to
effectuate the arrest of Draper was reasonably proportionate to the
difficult, tense and uncertain situation that Reynolds faced in this traffic
stop, and did not constitute excessive force. From the time Draper met
Reynolds at the back of the truck, Draper was hostile, belligerent, and
uncooperative. No less than five times, Reynolds asked Draper to retrieve
documents from the truck cab, and each time Draper refused to comply.
Rather, Draper accused Reynolds of harassing him and blinding him with
the flashlight. Draper used profanity, moved around and paced in
agitation, and repeatedly yelled at Reynolds. Because Draper repeatedly
refused to comply with Reynolds's verbal commands, starting with a verbal
arrest command was not required in these particular factual
circumstances. More importantly, a verbal arrest command accompanied
by attempted physical handcuffing, in these particular factual
circumstances, may well have, or would likely have, escalated a tense and
difficult situation into a serious physical struggle in which either Draper or
Reynolds would be seriously hurt. Thus, there was a reasonable need for
some use of force in this arrest.
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Although being struck by a taser gun is an unpleasant experience, the
amount of force Reynolds used—a single use of the taser gun causing a
one-time shocking—was reasonably proportionate to the need for force
and did not inflict any serious injury. Indeed, the police video shows that
Draper was standing up, handcuffed, and coherent shortly after the taser
gun stunned and calmed him. The single use of the taser gun may well
have prevented a physical struggle and serious harm to either Draper or
Reynolds. Under the “totality of the circumstances,” Reynolds's use of the
taser gun did not constitute excessive force, and Reynolds did not violate
Draper's constitutional rights in this arrest.
Draper, 369 F.3d at 1278.
Here, as in Draper, Lee was pacing around, shouting obscenities at the deputies,
and refusing their commands to come outside. This conduct, of course, gave the
deputies probable cause to arrest Lee. Also, as in Draper, Boney only fired a single
shot, despite the Plaintiffs’ claim that Boney shot Lee “one or three times.” (Doc. 48, at
27); (Doc. 46, at 29); (Doc. 45, at 18). There is nothing in the record to support the
claim that Lee was tased more than once.
The factual differences between Draper and the situation here provides far
greater support for the conclusion that the force used was not excessive. Although it
turned out that Lee was was unarmed at the time he was tased, the officers knew he
could have had a pistol because he “showed” it to Watson a couple of hours earlier.
Also, unlike Draper, the TASER here did not knock the suspect down. In fact, Lee told
deputies they would have to tase him more than once to take him down. Despite Lee’s
invitation to use more force to subdue him, the deputies declined to do so. In short,
under these facts, a single shot from a TASER that failed to stun does not establish a
constitutional violation, and the Defendants are entitled to qualified immunity on his
excessive force claim.
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3. Lee’s Inadequate Training and Supervision Claims Against Mitchum
and Boney Claims
In “limited circumstances,” inadequate training or supervision can subject a
defendant to section 1983 liability. Gold v. City of Miami (Gold II), 151 F.3d 1346, 1350
(11th Cir. 1998). The plaintiff must prove that the inadequate training or supervision
constituted “deliberate indifference” to the rights of its inhabitants. Id. “To establish a
‘deliberate or conscious choice’ or such ‘deliberate indifference,’ a plaintiff must present
some evidence that the municipality knew of a need to train and/or supervise in a
particular area and the municipality made a deliberate choice not to take any action.”
Id. “[W]ithout notice of a need to train or supervise in a particular area, a municipality is
not liable as a matter of law for any failure to train and supervise.” Id. at 1351. This
burden is “intentionally onerous for plaintiffs” to prevent municipalities from being
subject to respondeat superior liability. Id. at 1351 n.10.
The Complaint and the Plaintiffs’ briefs are particularly inadequate with regard to
Lee’s claim for inadequate training. In a one-paragraph section of his brief headed “The
Officers Did Not Have Extensive Training,” Lee offers no specific evidence or argument
demonstrating that a lack of appropriate training caused the injuries he claims to have
suffered at the hands of Boney. He simply concludes that “arguably” there was a need
for “specific, additional training.” (Doc. 46, at 32). Lee does not directly attack Boney’s
qualifications or training to use a TASER. In fact, Boney was certified to use a TASER.
(Doc. 53, Deposition of Billy Boney, at 25).
Nor does Lee offer any understandable argument to support his inadequate
supervision claim. Apparently he believes that because Mitchum and Boney were
supervisors and were involved in the events, their supervision was inadequate. In other
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words, because the events happened, there must have been improper supervision.
Because Lee has failed to show a constitutional violation, his claim for inadequate
supervision fails.
Because Lee has failed to establish a constitutional violation for inadequate
training or supervision, Mitchum and Boney retain to qualified immunity on these claims.
4. Poole and Jimmie’s False Arrest and False Imprisonment Claims
Poole and Jimmie allege they were falsely arrested and imprisoned because they
were handcuffed and placed into a patrol vehicle during the standoff with Lee. The
Defendants argue Poole and Jimmie were not arrested and, in the alternative, they
could have been arrested for misdemeanor obstruction.
The threshold false arrest inquiry is whether Poole and Jimmie were arrested.
An individual is in custody if “under the totality of the circumstances, a reasonable man
in the suspect's position would feel a restraint on his freedom of movement fairly
characterized as that ‘degree associated with a formal arrest’ to such extent that he
would not feel free to leave.” United States v. Phillips, 812 F.2d 1355, 1360 (11th Cir.
1987) (quoting Minnesota v. Murphy, 465 U.S. 420, 430 (1984)). Here, Poole and
Jimmie were handcuffed and placed into a patrol vehicle. They were never told why
they were being placed into custody.12 A reasonable person in their position would
have felt they were not free to leave, and thus they likely were arrested.
12
According to Radebaugh, he did not tell Poole why she was being placed into custody
because “[w]ith her being irrational, [he] didn’t think it would make much of a difference. At the
time, she was hollering and screaming and cussing….” (Doc. 58, Deposition of Scott
Radebaugh, at 34).
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Assuming Poole and Jimmie were arrested,13 they cannot establish both a lack of
probable cause and malice to prevail on a false arrest claim. In a section 1983 action,
“an officer need not have actual probable cause but only ‘arguable probable cause,’ i.e.,
the facts and circumstances must be such that the officer reasonably could have
believed that probable cause existed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.
1997). “[B]ecause only arguable probable cause is required, the inquiry is not whether
probable cause actually existed, but instead whether an officer reasonably could have
believed that probable cause existed, in light of the information the officer possessed.”
Id. Here, there was arguable probable cause to arrest Poole and Jimmie for
misdemeanor obstruction because they were shouting at the deputies who were there
to arrest Lee and who found themselves in a tense standoff with a suspect thought to be
armed.
Further, the deputies did not act with malice. “Malice consists in personal spite
or in a general disregard of the right consideration of mankind, directed by chance
against the individual injured.” O.C.G.A. § 51-7-2. Here, the record establishes that the
deputies were concerned about safety. The sheriff’s office blocked a nearby road to
secure the area. Radebaugh told Thompson and company to leave the premises for
their safety. Significantly, Poole and Jimmie were released from custody once Lee was
secured. While Poole and Jimmie believe they would have been safer inside, it is clear
the deputies were directed by a desire to protect, not harm. Thus, because there was
13
Miranda warnings are not an issue in this action, as “failure to give Miranda warnings would
prevent use of statements in a criminal trial, but has no significance in an action against police
officers for deprivation of a plaintiff’s civil rights.” Jones v. Cannon, 174 F.3d 1271, 1291 (11th
Cir. 1999).
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probable cause and a lack of malice, Poole and Jimmie have failed to meet their burden
for removing the Defendants’ qualified immunity on their false arrest claims.
Additionally, Poole and Jimmie’s false imprisonment claims fail for the same
reason as Lee’s.
5. Poole and Jimmie’s Excessive Force and Failure to Intervene Claims
Poole and Jimmie claim being handcuffed and placed into a patrol vehicle during
a standoff between the deputies and Lee constitutes excessive force. “[A] minimal
amount of force and injury … will not defeat an officer’s qualified immunity in an
excessive force case.” Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000). “Painful
handcuffing, without more, is not excessive force in cases where the resulting injuries
are minimal.” Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir. 2002). In section
1983 cases, “[w]hat would ordinarily be considered reasonable force does not become
excessive force when the force aggravates (however severely) a pre-existing condition
the extent of which was unknown to the officer at the time.” Id. at 1353 (emphasis
added).
Whether an officer used excessive force turns on a number of factors,
such as “the severity of the crime, whether the suspect posed an
immediate threat, and whether the suspect was resisting or fleeing. Use
of force must be judged on a case-by-case basis....” Because of this lack
of a bright-line standard, ‘qualified immunity applies unless application of
the standard would inevitably lead’ a reasonable officer in the defendant's
position to conclude that the force was unlawful.
Gold v. City of Miami (Gold I), 121 F.3d 1442, 1446 (11th Cir. 1997) (quoting Post v.
City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)).
Here, a reasonable deputy would be entitled to use the force necessary to arrest
Poole and Jimmie for misdemeanor obstruction. The force applied to Poole and Jimmie
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consisted of handcuffing and pulling, which would be deemed de minimis in this Circuit.
Thus, the excessive force inquiry turns on the nature of the injuries.
Despite Lee claiming the deputies “manhandled” his wife, Jimmie did not tell the
deputies that she was in pain. Instead, Jimmie primarily was concerned with pulling her
top down. Jimmie later felt pain on the right side of her body, but she never received
treatment for injuries allegedly resulting from her detention.14 The pain to the right side
of her body is consistent with her surgery in 2005 to remove the top part of her right
lung, and there is no evidence the deputies knew about that surgery. Because the force
and injury to Jimmie were de minimis, she cannot defeat the Defendants’ qualified
immunity on her excessive force claim.
The injuries sustained by Poole arguably were more severe. First, unlike Jimmie,
Poole informed the deputies that she was in pain. Second, she testified that she
underwent surgery on her right wrist two months after the incident for an injury she
claims she suffered as a result of being handcuffed. However, she also testified she
had surgery on her right wrist in the early 1980s for a ganglion cyst,15 and, according to
medical records, she was given an injection in her right wrist for an inflammation in April
2007. (Doc. 31-6, at 2). There is no evidence the deputies were aware of these
preexisting conditions. Pursuant to Rodriguez, the actions of the deputies did not
constitute excessive force because Poole never told the deputies about her preexisting
14
Jimmie went to a doctor who took X-rays even though the doctor found no signs of bruising.
(Doc. 31-7, at 2).
15
A ganglion cyst is a tumor or swelling that most commonly occurs at the wrist join. One large
cyst or many smaller ones may develop. WebMD, Ganglion Cyst Symptoms, Causes, Tests,
and Treatment, http://www.webmd.com/a-to-z-guides/ganglion_cyst (last visited Mar. 29, 2012).
-22-
condition or that handcuffs could aggravate her condition. Thus, Poole has not met her
burden of removing the Defendants’ qualified immunity on her excessive force claim.
Of course, because there was no excessive force, there can be no constitutional
violation for the failure to intervene. Crenshaw v. Lister, 556 F.3d 1283, 1293-94 (11th
Cir. 2009). Thus, Poole and Jimmie’s failure to intervene claims fail as a matter of law.
6. Poole and Jimmie’s Inadequate Training and Supervision Claims
Against Mitchum and Boney Claims
The discussion above with regard to Lee’s inadequate supervision claim also
applies to Poole and Jimmie’s inadequate supervision claims. Whereas Boney’s
TASER training was the focus of Lee’s inadequate training claim, the deputies’ training
on arrests and the use of force is the focus of Poole and Jimmie’s inadequate training
claims. The Plaintiffs concede the deputies testified that they received training on
arrests, but they claim the deputies did not testify to receiving training on the use of
force. Not only have the Plaintiffs failed to present evidence of a need to train on
making arrests, the record contradicts their assertion that the deputies did not testify to
receiving such training. (Doc. 58, Deposition of Scott Radebaugh, at 12); (Doc. 57,
Deposition of Robert Rodgers, at 21); (Doc. 56, Deposition of Williams Stokes, at 7);
(Doc. 55, Deposition of Alex Bell, at 20); (Doc. 53, Deposition of Billy Boney, at 9); (Doc.
52, Deposition of Darren Mitchum, at 9). Thus, Poole and Jimmie have failed to
establish a constitutional violation for inadequate training or supervision, and Mitchum
and Boney retain qualified immunity on these claims.
Accordingly, the Motion is granted with regard to all federal individual capacity
claims that arose after Lee “showed” his pistol to Watson.
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E. The Plaintiffs’ Federal Official Capacity Claims
The Plaintiffs concede the Eleventh Amendment bars federal claims seeking
monetary relief against Sheriff Mitchum in his official capacity. However, Mitchum
would also be entitled to Eleventh Amendment immunity on injunctive relief claims
because the Plaintiffs do not seek prospective relief for continuing violations of federal
law. Badillo v. Thorpe, 158 Fed. Appx. 208, 212 n.6 (11th Cir. 2005).16 The Plaintiffs
have failed to show that Eleventh Amendment immunity has been waived. Thus, the
Motion is granted on all federal official capacity claims against Mitchum.
The Plaintiffs argue the remaining Defendants are not entitled to Eleventh
Amendment immunity. However, Judge Royal of this District recently held that a
“sheriff's deputies are entitled to the same Eleventh Amendment immunity against
official capacity claims as the sheriff.”17 Howell v. Houston County, Ga., 2011 WL
3813291, at *27 (M.D. Ga.). Even if the deputies are not entitled to Eleventh
Amendment immunity, as stated above, the Plaintiffs have not established a federal
constitutional violation once Lee “showed” his pistol.18 Thus, the Motion is granted on
all federal official capacity claims against the remaining Defendants.
16
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
17
The Court acknowledges that the Eleventh Circuit has not decided whether Eleventh
Amendment immunity applies to a sheriff’s deputies. Jordan v. Mosley, 487 F.3d 1350, 1354
n.3 (11th Cir. 2007).
18
The Court understands that the analysis for individual capacity and official capacity claims is
not the same, and merely asserts that, as a practical matter, the deputies acted properly.
-24-
F. The Plaintiffs’ State Claims
With the exception of their claims for assault, battery, and free speech, the
Plaintiffs’ state claims are the same as their federal claims. State employees may only
be sued for performing their discretionary functions if they acted with “actual malice or
with actual intent to cause injury in the performance of their official functions.” Ga.
Const. Art. 1, § 2, ¶ IX(d). Georgia courts recognize that arrests by deputies are
discretionary functions. Selvy v. Morrison, 292 Ga. App. 702, 665 S.E.2d 401 (2008);
Reed v. DeKalb County, 264 Ga. App. 83, 589 S.E.2d 584 (2003). Also, the Georgia
Court of Appeals “has consistently held that the operation of a police department,
including the degree of training and supervision to be provided its officers, is a
discretionary governmental function as opposed to a ministerial, proprietary, or
administratively routine function.” Russell v. Barrett, 296 Ga. App. 114, 121, 673 S.E.2d
623, 629 (2009) (citation omitted). Official immunity applies even when there is no
probable cause for an arrest. Selvy, 292 Ga. App. at 706, 665 S.E.2d at 405; Reed,
264 Ga. App. at 86, 589 S.E.2d at 587.
Here, the Plaintiffs have failed to show any actual malice by the Defendants to
defeat official immunity. With regard to Lee, the Plaintiffs allege the Defendants were
seeking revenge, but they only went to the Hartel home because Lee “showed” a gun to
a deputy who tried to place him under arrest. If the deputies really wanted revenge,
they would have roughed him up once he was in custody.
With regard to Poole and Jimmie, there was no actual malice because the
deputies placed them into custody for their own safety.
-25-
Additionally, the Plaintiffs have failed to show sovereign immunity has been
waived on their state official capacity claims.
Accordingly, summary judgment is granted on the Plaintiffs’ state claims.
III.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment is GRANTED in
part and DENIED in part with regard to Lee and Jimmie and GRANTED with regard to
Poole.
SO ORDERED, this the 29th day of March, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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