Benson v. City of Atlanta et al

Filing 133

OPINION AND ORDER denying Defendants Motion in Limine 108 with respect to exclude any evidence of damages after the First Appearance Hearing. The Court will issue a separate Opinion and Order regarding the remainder of the parties motions in limine. Signed by Judge William S. Duffey, Jr on 4/14/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DAN J. BENSON,
Plaintiff,
v.

1:13-cv-595-WSD

OFFICER ANDRES FACEMYER,
in his individual capacity,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant Officer Andres Facemyer’s
(“Defendant”) Motion in Limine [108]. Also before the Court are Defendant’s and
Plaintiff Dan J. Benson’s (“Plaintiff”) additional memoranda [130], [131] filed
pursuant to the Court’s March 2, 2017, Order [128].
I.

BACKGROUND1
In Defendant’s Motion in Limine [108], Defendant asserts that, during a first

appearance hearing held on February 23, 2011 (“First Appearance Hearing”), a
Fulton County Judge independently found there was probable cause to arrest

1

The Court here briefly sets forth the facts pertinent to this Opinion and
Order. A more detailed explanation of the facts underlying this action is contained
in the Court’s September 30, 2015, Order [72].

Plaintiff. On this basis, Defendant seeks to exclude any evidence of damages after
the First Appearance Hearing. ([108.1] at 5). The Court found there was
insufficient evidence as to the nature of the First Appearance Hearing and what the
Fulton County Judge determined during it, and, on March 2, 2017, the Court issued
an order requiring the parties to file briefs and evidentiary materials regarding
whether the Fulton County Judge made an independent probable cause
determination that constituted a supervening event for purposes of damages
causation.
On March 17, 2017, Defendant filed his memorandum. In it, he explains
that, on February 23, 2011, the day after Plaintiff was arrested, Plaintiff was
brought before the Honorable James Altman in Fulton County Superior Court for a
First Appearance Hearing. During the hearing, Judge Altman found probable
cause existed for Plaintiff’s arrest. Plaintiff was then held without bond, pursuant
to Judge Altman’s order, until his March 9, 2011, preliminary hearing. Defendant
included with the memorandum a First Appearance Hearing form filled out and
signed by Judge Altman, in which Judge Altman checked the box stating “[t]he
Court found that probable cause exists to detain the defendant for the crimes
enumerated in the above referenced Complaint.” ([130.1]). Defendant argues that

2

Judge Altman’s independent probable cause determination broke the chain of
causation for damages stemming from Defendant’s arrest of Plaintiff.
On March 31, 2017, Plaintiff filed his response. Plaintiff argues that
Eleventh Circuit precedent shows that only an arraignment or indictment breaks
the causal chain. He argues that, even if Judge Altman’s probable cause finding
broke the causal chain of damages, Judge Altman’s probable cause finding was
void because it was based solely upon an ineffectively notarized affidavit. Plaintiff
notes that there are two copies of the “affidavit” Defendant submitted for the First
Appearance Hearing, one of which is not notarized, and the other which states it
was sworn to and subscribed telephonically. Plaintiff contends telephonic
notarization is not authorized under Georgia law. Finally, Plaintiff argues that the
issue of damages causation is an affirmative defense that Defendant waived by
failing to previously raise it.
II.

DISCUSSION
42 U.S.C. § 1983 “‘creates a species of torts liability,’ and damages are

determined by compensation principles of common-law tort.” Smith v. City of
Oak Hill, Fla., 587 F. App’x 524, 527 (11th Cir. 2014) (quoting Heck v.
Humphrey, 512 U.S. 477, 483 (1994)). “While defendants in § 1983 cases ‘are, as
in common law tort disputes, responsible for the natural and foreseeable

3

consequences of their actions,’ the § 1983 plaintiff must show causation.” Id.
(quoting Jackson v. Sauls, 206 F.3d 1156, 1168 (11th Cir.2000)). “Causation has
two required elements: cause-in-fact and legal or proximate cause.” Id. (citing
Jackson, 206 F.3d at 1168 n.16). “To show that the constitutional tort was a causein-fact of the injuries and damages claimed, the plaintiff must show that ‘except for
the constitutional tort, such injuries and damages would not have occurred.’” Id.
(quoting Jackson, 206 F.3d at 1168 n.16). “To show that the constitutional tort
was the legal or proximate cause of the injuries and damages claimed, a plaintiff
must show that ‘the injury or damage was a reasonably foreseeable consequence of
the [officer’s] act or omission.’” Id. (quoting Jackson, 206 F.3d at 1168 n.16).
The question here is whether, on a claim of a warrantless deprivation of
liberty, a state-court magistrate judge’s independent probable cause determination
at an initial detention hearing breaks the chain of damages stemming from the
warrantless arrest. The Court finds it does not. The facts in the Eleventh Circuit’s
decision in Jones v. Cannon, 174 F.3d 1271, 1287 (11th Cir. 1999) are similar to
those at issue here. In Jones, a plaintiff sued officers, under 42 U.S.C. § 1983, for
false arrest. On the evening of plaintiff’s arrest, one of the arresting officers
completed an affidavit for use at a state-court magistrate judge hearing to
determine the existence of probable cause for continuing to detain the plaintiff. Id.

4

at 1278. The probable cause hearing was held the next day. Approximately three
weeks later, a grand jury indicted the plaintiff. 2 The Eleventh Circuit stated “that
the grand jury indictment broke the chain of causation for the detention from the
alleged false arrest and [the plaintiff] may recover damages only for his detention
prior to the grand jury indictment.” Id. The Court did not find that the initial
probable cause hearing similarly broke the causal chain.
This Court’s prior decision in Love v. Oliver, 450 F. Supp. 2d 1336 (N.D.
Ga. 2006) is also instructive. In Love, the Court articulated the difference between
a cause of action for false arrest and one for malicious prosecution. The Court
stated that “[t]ypically, a warrantless deprivation of liberty from the moment of
arrest to the time of arraignment will find its analog in the tort of false arrest, while
the tort of malicious prosecution will implicate post-arraignment deprivations of
liberty.” Id. at 1341n.5 (quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117
(2d Cir. 1995)) (internal quotation marks omitted). The Court further explained
that, “[i]n the case of a warrantless arrest, the judicial proceeding does not begin
until the party is arraigned or indicted. Thus, the plaintiff’s arrest cannot serve as
2

Though the evidence in the record did not show the result of the probable
cause hearing, it appears that the plaintiff continued to be detained after the hearing
and thus it is reasonable to assume that the judge found probable cause to detain
the plaintiff.

5

the predicate deprivation of liberty [for a malicious prosecution claim] because it
occurred prior to the time of arraignment, and was not one that arose from
malicious prosecution as opposed to false arrest.” Id. at 1340-41 (quoting
Kingsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir. 2004)).
The only Eleventh Circuit precedent Defendant relies on to support his
argument that Judge Altman’s probable cause determination cut off the chain of
damages is Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989). In Barts, the plaintiff
was arrested, after which she was tried and convicted of second degree murder. Id.
at 1189. The plaintiff served eight months of a twenty-five year sentence, before
being released on appellate bond. She was granted a new trial, which resulted in
an acquittal. The plaintiff brought an action under Section 1983 against her
arresting officers. The Eleventh Circuit held that the plaintiff was not entitled to
damages for her criminal trials, conviction, and subsequent incarceration, because
“the intervening acts of the prosecutor, grand jury, judge and jury each broke the
chain of causation.” Id. at 1195.
It is undisputed here that the grand jury indictment broke the chain of
causation, and Barts is thus not useful in determining the question before the
Court: whether an initial probable cause determination by a state-court magistrate

6

judge is an intervening act that breaks the chain of causation. Defendant does not
provide any binding authority to show that it does.3
Based on the Eleventh Circuit’s decision in Jones and this Court’s reasoning
in Love, the Court finds that a state-court magistrate judge’s independent probable
cause determination at an initial detention hearing does not break the chain of
damages stemming from a warrantless arrest, although a jury may consider that it
impacts the scope of damages suffered. Ordinarily, a cause of action stemming
from a warrantless deprivation of liberty encompasses the time between the initial
arrest through the arraignment or indictment. See Love, 450 F. Supp. 2d at
1341n.5 (quoting Singer, 63 F.3d at 117). Under the facts of this case, Defendant’s
arrest of Plaintiff was the but-for cause of his detention, and the detention was a
reasonably foreseeable consequence of the arrest. See Smith, 587 F. App’x at
527.4
3

This case is unlike those in which an officer procures a valid arrest warrant
from a magistrate judge before making an arrest. In such cases, it is the magistrate
judge’s independent determination that provides the basis for the initial arrest, and
the warrant insulates the arresting officer from a charge of false arrest. See Deville
v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009). That is not the case where, as
here, an officer conducts a warrantless arrest.
4
Even if Judge Altman’s probable cause determination could have cut off the
chain of damages, it is unclear whether Judge Altman’s determination was valid
under Georgia law, because it appears that Defendant did not properly notarize
either of the affidavits he submitted to Judge Altman. A notary is not authorized to

7

III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion in Limine [108] is

DENIED with respect to Defendant’s request to exclude any evidence of damages
after the First Appearance Hearing. The Court will issue a separate Opinion and
Order regarding the remainder of the parties’ motions in limine.

SO ORDERED this 14th day of April, 2017.

give an oath telephonically. See Sambor v. Kelley, 518 S.E.2d 120, 120 (Ga.
1999). Under Georgia law, an individual wrongfully arrested under a void warrant
may maintain an action for false imprisonment. See Reese v. Clayton Cty., 363
S.E.2d 618, 619 (Ga. Ct. App. 1987).

8