Benson v. City of Atlanta et al
Filing
72
OPINION AND ORDER that Defendant Andres Facemyer's Motion for Judgment as a Matter of Law 61 is DENIED. IT IS FURTHER ORDERED that Motion to Alter or Amend the Judgment or, in the Alternative, for a New Trial 62 is GRANTED IN PART and DENIED IN PART. The Court will conduct a new trial on the issues of damages, subject to the Court's initial consideration of whether the development of arguable probable cause after the arrest and before Defendant advised Plaintiff of the charges for which he was arrested and was ordered to be transported to the police station jail, entitles Defendant to claim qualified immunity for events occurring after that point. IT IS FURTHER ORDERED that the Parties shall submit legal memoranda on the is sue of whether the establishment of arguable probable cause after the arrest entitles Defendant to claim qualified immunity at that point. Because Defendant has the burden to establish qualified immunity, he shall file his memorandum on this issue o n or before October 30, 2015. Initial and further briefing of this issue, including the briefing schedule, shall be governed by the Court's Local Rules. IT IS FURTHER ORDERED that Plaintiff Dan J. Benson's First Motion for Attorney's Fees 60 and Second Motion for Attorney's Fees 68 are DENIED WITHOUT PREJUDICE. Plaintiff may, within thirty (30) days after the conclusion of litigation in this Court, refile his motion for attorneys' fees and costs. Signed by Judge William S. Duffey, Jr on 9/30/2015. (anc)
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,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Andres Facemyer’s
(“Defendant”) Motion for Judgment as a Matter of Law [61] (“Motion for
Judgment”) and Motion to Alter or Amend the Judgment or, in the Alternative, for
a New Trial [62] (“Motion to Amend”). Also before the Court is Plaintiff
Dan J. Benson’s (“Plaintiff,” and, together with Defendant, the “Parties”) First
Motion for Attorney’s Fees [60] (“First Motion for Attorney’s Fees”) and Second
Motion for Attorney’s Fees [68] (“Second Motion for Attorney’s Fees”).
I.
BACKGROUND
A.
Procedural History
On April 22, 2013, Plaintiff filed his Amended Complaint [4] against
Defendant.1 Plaintiff asserted a Fourth Amendment claim under 42 U.S.C. § 1983,
arguing that Defendant violated Plaintiff’s Fourth Amendment right to be free from
“unreasonable searches and seizures” by arresting Plaintiff without probable cause.
Plaintiff sued Defendant in his individual capacity.
Defendant arrested Plaintiff for child molestation under O.C.G.A. § 16-6-4,2
and possession of a firearm during the commission of a felony under O.C.G.A.
§ 16-11-106,3 based on an encounter Plaintiff had with a minor child and her
mother in Chastain Park, Atlanta, Georgia (the “Park”). (August 21, 2014, Order
[23], at 1-2).
On January 8, 2014, Defendant filed his Motion for Summary Judgment
[17], on the grounds that he has qualified immunity from the claims asserted in the
Amended Complaint. On January 31, 2014, Plaintiff filed his Motion for
Summary Judgment [19], seeking summary judgment that Defendant violated
1
On February 22, 2013, Plaintiff filed his initial complaint [1], alleging
claims against both the City of Atlanta and Defendant. The Amended Complaint
raises a claim against only Defendant, and provides greater factual detail regarding
Plaintiff’s claim. Plaintiff voluntarily dismissed [6] the City on April 30, 2013.
2
O.C.G.A. § 16-6-4 states: “A person commits the offense of child
molestation when such person . . . [d]oes any immoral or indecent act to or in the
presence of or with any child under the age of 16 years with the intent to arouse or
satisfy the sexual desires of either the child or the person . . . .” O.C.G.A.
§ 16-6-4(a)(1).
3
Plaintiff’s arrest for possession of a firearm during the commission of a
felony under O.C.G.A. § 16-11-106 was premised on the actual commission of the
felony at issue—child molestation. (August 21, 2014, Order, at 16 n.14).
2
Plaintiff’s Fourth Amendment right and thus is liable under Section 1983. The
issue raised by the Parties in their respective summary judgment motions center on
whether Defendant had arguable probable cause to arrest Plaintiff.
On August 21, 2014, the Court denied [23] the Parties’ respective summary
judgment motions.4 The Court noted that arguable probable cause is evaluated by
determining whether “reasonable officers in the same circumstances and
possessing the same knowledge as Defendant could have believed that probable
cause existed to arrest.” (August 21, 2014, Order, at 15). The Court, in
determining whether arguable probable cause to arrest exists, must assess the
information known to the arresting officer at the time of arrest, not what the officer
learned afterward. (Id. at 15-16).
The Court concluded, based on the record evidence presented with the
summary judgment motions, that it could not determine at what point during the
encounter Defendant “arrested” Plaintiff. (Id. at 19-20). The Court also concluded
this was an issue that was required to be resolved at trial. (Id. at 20). The Court
noted further that, once the time of arrest was determined, the jury would have to
determine what was known to Defendant at the time the arrest occurred. (Id.). On
4
The Court’s August 21, 2014, Order, addresses the factual background of
this case, as it was understood at the time the summary judgment motions were
filed. Additional facts and evidence were elicited at trial, and are addressed in this
Order.
3
December 22, 2014, the Court set trial for February 2, 2015. (December 22, 2014,
Order [29], at 1).
B.
Trial
Five witnesses were called during the trial: (1) Plaintiff; (2) Defendant;5
(3) Ms. Lea Benson;6 (4) Ms. Amy Wood; and (5) Sgt. Scott Ormond. Because the
versions of events differ in significant ways, the Court summarizes each witness’s
testimony separately.
1.
Plaintiff’s Version of the Encounter
Plaintiff testified that, at the time of trial, he was a sixty-nine-year old
chiropractor living in Stone Mountain, Georgia. (Trial Tr. [55-58] at 132:7-12).
On February 22, 2011, Plaintiff went to the Park to walk around it for exercise.
(Id. at 134:1-13). After beginning his walk, Plaintiff encountered Ms. Wood and
her two-and-a-half-year-old daughter (“Daughter”). (Id. at 137:21-25). Plaintiff
waved at Daughter and Ms. Wood. (Id. at 138:4-5). Ms. Wood, who saw Plaintiff
wave, told Daughter to “wave at the nice man.” (Id. at 138:4-9).
5
Defendant testified during Plaintiff’s case-in-chief and Defendant’s case-in-
chief.
6
Ms. Lea Benson is Plaintiff’s adult daughter. She testified about the changes
in Plaintiff’s personality and well-being that resulted from his arrest and
confinement. Ms. Benson’s testimony relates to damages only, and is not relevant
to the Court’s determination of the pending motions.
4
Daughter was wearing a pink dress and, when Plaintiff was in earshot of
them, he said: “That’s a beautiful pink dress you have on.” (Id. at 138:18-20).
Daughter then “grabbed her bodice, yanked it up about a half an inch and yell[ed],
Panties.” (Id. at 138:21-22). Plaintiff testified that this reminded him of how,
when his daughter was that age, she seemed to enjoy wearing matching dresses and
underwear. (Id. at 138:23-139:7). Plaintiff responded by saying that his “daughter
used to wear panties just like yours.” (Id. at 139:13-14). Plaintiff testified that
Daughter then said “pee,” Ms. Wood picked her up, and they started walking in the
opposite direction of each other. (Id. at 139:15-18).
Plaintiff testified that he had walked about a quarter of a mile when he had
to rest because of his asthma. (Id. at 140:7-12). Plaintiff turned and walked
towards a swing and some benches to sit down. (Id. at 140:14-141:2). After
sitting a while, Plaintiff, realized it was 2:45 p.m., and, because he had to drive to
Stone Mountain, Georgia, he decided to leave the Park. (Id. at 141:11-15). As
Plaintiff was walking towards the parking lot, he saw a police car about fifty (50)
yards from where he had his conversation with Ms. Wood. (Id. at 141:19-22). As
he was walking, Defendant, a police officer, yelled to him: “You. Hey, you, I
want to talk to you. Get over here. Get over here now.” (Id. at 142:5-8,
184:10-21). Plaintiff pointed at himself and Defendant said: “You, get over here.”
5
(Id. at 142:9-10). Defendant further yelled: “Are you armed? Are you armed?
Are you armed?” (Id. at 142:12-13). Plaintiff held up his hands and said “yes,
with a permit,” and pointed at his right front pocket. (Id. at 142:14-15). Defendant
told Plaintiff to “[g]et over here. Get over here now.” (Id. at 142:17). When he
did, Defendant grabbed Plaintiff’s right arm and “slung it back around [Plaintiff].”
(Id. at 142:18-19). Defendant said to Plaintiff “[i]f you run, I am going to chase
you down, I am going to tackle you, and I’m going to really hurt you.” (Id. at
143:1-2). Defendant told Plaintiff he was being detained, and handcuffed him.
(Id. at 143:3-7, 144:4-5).
After Plaintiff was handcuffed, Plaintiff testified, as follows, about what
happened and his conversation with Defendant:
So I don’t know what’s going on, I’m lost. And [Defendant] said,
What did you say to the little girl? And I said, What little girl?
[Defendant] said, What did you say to the little girl? And I said, I
don’t know what little girl you are talking about. [Defendant] says,
The little girl that was with her mother. And I said, Oh, you mean the
little girl in the pink dress? [Defendant] said, Yes. What did you say?
So I told him just exactly what I told [during his trial testimony].
(Id. at 144:10-20). Defendant then searched Plaintiff, took his wallet out, asked
him if he was from Stone Mountain, Georgia, and disarmed him. (Id. at 145:1-3,
19-25, 146:1-7).
6
Two other officers then approached, and a police wagon arrived. (Id. at
146:8-10). Defendant spoke with the other two officers and Defendant then left.
(Id. at 146:12-14). Plaintiff was questioned by the two arriving officers, and
ultimately placed in the police wagon. (Id. at 146:24-148:8).
Plaintiff was in the police wagon for approximately one hour before
Defendant returned to speak with him. (Id. at 148:10-13). Defendant stated that,
“[a]ccording to the FBI’s code on felony child molestation, any adult who uses the
word ‘panty’ in a sentence with a minor under 17 years of age has committed
felony child molestation.” (Id. at 148:24-149:2). Defendant told Plaintiff that he
was “going to jail for felony child molestation,” and Plaintiff was transported to
the police station jail. (Id. at 149:6-9). On cross-examination, Plaintiff
acknowledged he was driving a borrowed van,7 but denied there were two
encounters at the Park that day. (Id. at 181:23-182:5). He testified that
Ms. Wood’s version of events is different from his and that her version is
mistaken. (Id. at 182:18-20).8
7
Plaintiff testified that on February 22, 2011, he borrowed a friend’s white
work van because his car needed to be repaired. (Trial Tr. at 133:10-21). This is
the vehicle Plaintiff had with him at the Park.
8
The remainder of Plaintiff’s direct and cross-examination testimony relates
to events that occurred after his arrest at the Park. Plaintiff’s testimony regarding
these post-arrest events is not relevant to the Court’s determination of the pending
7
At no point in his encounter with Defendant was he told he was under
“arrest.” (Id. at 189:13-15).
2.
Defendant’s Version of the Encounter 9
On February 22, 2011, Defendant responded to a 911 call from the Park.
(Id. at 300:22-25). Defendant was told by the 911 operator there was, in the Park,
a man in his sixties wearing a black hat with gold letters, blue jeans, and sunglasses
who was talking to a little girl about her panties. (Id. at 301:8-13).
When Defendant arrived at the Park, a woman pointed at Plaintiff and said:
“[t]here is the man, that’s him.”10 (Id. at 210:23-25, 303:21-25). Defendant saw a
motions. After Plaintiff finished his direct examination, the Court instructed the
jury that:
Evidence has been presented regarding events that occurred after the
arrest of the plaintiff. This evidence may be considered by you only
for the limited purpose of determining if the plaintiff suffered an
actual injury as a result of the defendant’s conduct. And, if he did,
you may consider this evidence to determine any damages that
plaintiff claims he suffered as a result of the defendant’s arrest of him
provided that you find the arrest was not lawful. This evidence may
not be used by you to determine if the arrest was proper when it
occurred. That is a separate determination you must make using
evidence regarding what was known to the defendant at the time of
the arrest.
(Id. at 165:13-166:2). Defendant did not object to this limiting instruction.
(Id. at 168:9). During Plaintiff’s testimony, Defendant objected to several
questions on the grounds of hearsay or because they were leading. The
objections were all sustained by the Court.
9
Defendant was called as a witness in Plaintiff’s case-in-chief for the purpose
of cross-examination, and was called again during Defendant’s case-in-chief.
8
man fitting Plaintiff’s description walking along the pedestrian path at the Park.
(Id. at 211:1-2, 304:1-3). Plaintiff was walking away from Defendant. (Id.).
Defendant got out of his police vehicle and called for Plaintiff to come over to him.
(Id. at 304:5-7). As Plaintiff approached, Defendant asked him if he was armed.
(Id. at 304:11-13). Plaintiff stated that he had a pistol in his pocket. (Id. at
304:15). Defendant testified that he immediately handcuffed Plaintiff and secured
the weapon. (Id. at 18-22).
Defendant explained to Plaintiff why he stopped him. (Id. at 305:5-12).
Plaintiff told his version of events, stating he had “a conversation with a
two-year-old girl and the subject of her panties was brought up.” (Id. at
305:10-17).
After this conversation, Defendant left Plaintiff “secured” with Sgt. Ormond,
and went to speak with Ms. Wood. (Id. at 305:21-306:3). When Defendant spoke
to Ms. Wood, she told him that a man had attempted to say hello to her and her
daughter. (Id. at 201:5-13). She told Defendant that she felt uncomfortable that
Plaintiff had walked up to her and her daughter and tried to start a conversation
with Daughter by saying hello. (Id. at 201:17-202:3). This was the first encounter
10
Defendant identified the woman as Ms. Royce Horne, the woman who
loaned her cell phone to Ms. Wood to make the 911 call. (August 21, 2014, Order,
at 8).
9
Ms. Wood claims to have had with Plaintiff that day. Ms. Wood told Defendant
that she encountered Plaintiff a second time. (Id. at 203:19-21). During the second
encounter, Plaintiff approached Daughter and “made a comment about her dress
being pink or pretty. (Id. at 204:8-11). “[Daughter] responded saying it was a
pretty pink.” (Id. at 204:11-12). Defendant testified further about the second
encounter:
And then [Ms. Wood] specifically stated that upon hearing this,
Mr. Benson then continued to her daughter and said something in
regards of, Do your panties match your dress? This caused her
daughter to lift up her dress, show Mr. Benson her panties, and her
daughter said, Panties. This was on the second time Mr. Benson tried
to talk to her.
(Id. at 204:13-19). Ms. Wood did not tell Defendant that Plaintiff attempted to
touch Daughter, or expose himself to her, and that Plaintiff stood approximately
three feet away from Ms. Wood and Daughter during the interaction. (Id. at
205:7-14, 206:18-22). Plaintiff did not attempt to look up Daughter’s dress and he
did not attempt to follow Ms. Wood or Daughter. (Id. at 207:22-208:2, 209:4-7).
Defendant testified that it was only after he had “gathered all the facts and
all the evidence” that he decided to make an arrest. (Id. at 306:11-13). Defendant
testified that he spoke with Sgt. Ormond and the two investigators at the scene.
10
(Id. at 306:21-307:14).11 Defendant explained to them the facts of which he was
aware, and stated that he believed probable cause existed. (Id. at 308:3-7). They
agreed. (Id. at 308:7).
Detective Nixon, an investigator from the sex crimes unit, called the Fulton
County District Attorney’s Office Crimes Against Women and Children Unit, and
spoke with one or more of the assistant district attorneys, who agreed that probable
cause existed. (Id. at 308:8-13). It was at that point that Defendant decided
Plaintiff was, in fact, under arrest and would be charged. (Id. at 308:16-18). In
deciding whether probable cause existed, Defendant said he looked at the “totality
of the circumstances,” which included that Ms. Wood had called 911 and believed
something, possibly a crime, had occurred, that Plaintiff’s statements were similar
to Ms. Wood’s account, that Plaintiff traveled far from his home to the Park, that
he had a borrowed vehicle, was armed, and attempted twice to make contact with
Daughter. (Id. at 309:1-23).
Defendant testified that, under Georgia law, any indecent or immoral act
which results “in the sexual gratification of a person or the child basically results in
child molestation.” (Id. at 208:14-17). Defendant testified to his belief that
11
Plaintiff objected to this testimony, arguing that it was hearsay. The Court
overruled this objection, concluding that the issue in this case was what
information Defendant had available to him at the time and whether he acted
reasonably. (Id. at 307:15-20).
11
“asking about a two-year-old girl’s panties is very wrong, very indecent.” (Id. at
208:22-23). Defendant testified that his basis for believing Plaintiff’s question to
Daughter was for sexual gratification was because “it is not reasonable for any man
to ask any female about her underwear unless he’s trying to get some kind of
excitement out of it.” (Id. at 208:24-209:3). Defendant arrested Plaintiff because
he asked about Daughter’s “panties, which is a clear violation of Georgia law.”
(Id. at 216:1-3).
3.
Ms. Amy Wood
Ms. Wood testified about the two encounters she asserts she had with
Plaintiff at the Park. The first occurred when Ms. Wood was walking with her
Daughter along a path at the Park. (Id. at 258:7-13). Ms. Wood saw Plaintiff
sitting on a bench and, as she approached, Plaintiff said “hello” to Ms. Wood. (Id.
at 258:14-18). Ms. Wood responded with “hello” and continued on her walk. (Id.
at 258:14-20).
Towards the end of her walk, Ms. Wood sat with Daughter on a set of
swings, located near some benches. (Id. at 260:12-17). After Ms. Wood sat down,
she again saw Plaintiff. (Id. at 260:17-18). He was facing away from Ms. Wood
and Daughter. (Id. at 260:18-19). When Ms. Wood began to leave the area,
Plaintiff stood up and began talking to Daughter. (Id. at 262:16-263:10).
12
Ms. Wood testified: “[Plaintiff] made a comment, Oh, what a pretty pink dress. I
bet you have panties that match. And she showed him her panties.” (Id. at
263:21-23). Ms. Wood said that she was alarmed by this encounter and “picked up
[her] daughter, turned [her] back towards [Plaintiff], and walked away.” (Id. at
264:20, 265:1-2). Ms. Wood was concerned that Plaintiff might follow her home
if she left, and she decided she should contact the police. (Id. at 265:14-17).
Ms. Wood did not have a cell phone with her, and asked another woman,
Royce Horne, if she could use hers. (Id. at 265:3, 265:19-22). Using it, Ms. Wood
called 911. (Id. at 23).
When asked about what she told the 911 operator, Ms. Wood testified:
[Ms. Wood]. That a man had approached my daughter and I in the
park and made inappropriate comments to my daughter, and I gave
them a description of what he looked like.
[Counsel]. Did you say what the comments were?
[Ms. Wood]. Yes.
[Counsel]. And what -[Ms. Wood]. That he had asked her if she had panties that matched
her dress.
(Id. at 265:24-266:8). After calling 911, Ms. Wood went to a youth center at the
Park. (Id. at 266:17-24). Approximately forty-five (45) minutes later, she was told
that the person she described to 911 was being questioned. (Id. at 267:2-6).
Ms. Wood ultimately spoke with Defendant about the encounters. (Id. at
267:9-10).
13
Ms. Wood prepared a written statement for the police that contained as much
information as she could remember about what she told the 911 operator. (Id. at
267:16-21). In her statement, Ms. Wood stated that, during the first encounter, she
“saw [a] man on [the] park swing near the water fountain. He said hi. We kept
walking and did not respond. It felt strange. I didn’t want to have [Daughter]
swing with him.” (Id. at Def.’s Ex. 3). Ms. Wood, in her statement, stated about
the second encounter that she
saw [the] same man sitting on park swing on the other side of the park
on Lake Forest side. We sat on a park swing closest to [the]
Northside Youth Organization fields. I could see the man[,] but his
back was too [sic] us. When we finished swinging[,] he got up and
said hello to us. [Daughter] said hi. The man told my daughter she
had a pretty dress on. She responded and said it was pink. The man
asked her if her panties were pretty and matched her dress. My
daughter placed both of her hands on her panties and said [“]panties
pretty[.”]
I was very uncomfortable. I picked up my daughter and carried her
towards our parked car in the NYO lot. I stopped . . . a woman
walking to use her phone to call 911.
(Id. at Def.’s Ex. 3). Ms. Wood gave her statement to Defendant. (Id. at
268:23-269:5, 271:3-5). Ms. Wood repeated to Defendant what she had told
the 911 operator. (Id. at 288:1-17).
14
4.
Sgt. Scott Ormond12
Sgt. Ormond is a City of Atlanta police officer. (Id. at 292:18-24).
Sgt. Ormond, a patrol supervisor, responded to a “child molestation call that came
over the radio” on February 22, 2011. (Id. at 293:2-14). When Sgt. Ormond
arrived, Plaintiff was in handcuffs. (Id. at 293:15-17). Two other detectives were
at the Park, Barry, a general investigator, and Nixon, an investigator from “Sex
Crimes.” (Id. at 293:23-294-4). Sgt. Ormond testified that he, Defendant, and the
two investigators discussed what had occurred and decided to charge Plaintiff. (Id.
at 294:16-295:7). Sgt. Ormond testified that probable cause to arrest Plaintiff
existed. (Id. at 296:6-8).
When asked who placed Plaintiff “under arrest,” Sgt. Ormond testified that
Defendant “was the officer that encountered [Plaintiff] and placed him in
handcuffs, yes.”13 (Id. at 298:2-5).
5.
Defendant’s Rule 50 Motions
At the conclusion of Plaintiff’s case-in-chief, Defendant moved, under Rule
50 of the Federal Rules of Civil Procedure, for judgment as a matter of law.
12
Sgt. Ormond was called as a witness by Defendant.
Sgt. Ormond, during direct-examination, testified that a person can, for the
safety of the officer, be detained while an investigation is being conducted. (Id. at
293:18-20). Sgt. Ormond did not testify that Plaintiff was handcuffed for an
investigatory purpose.
13
15
Defendant argued that Plaintiff’s testimony established that Defendant did not
“arrest” Plaintiff at the beginning of the police encounter, and that it was only after
he was in the police wagon and transported to the police station that he was under
arrest. (Id. at 226:3-24). Defendant argued that, because the evidence established
that he had arguable probable cause to believe a crime had been committed, he was
entitled to qualified immunity. (Id. at 227:10-17, 231:1-8). Plaintiff, in response
to the Court’s questions, argued that Defendant’s decision to arrest Plaintiff was
not reasonable based on the facts he knew at the scene, and that arguable probable
cause did not exist. (Id. at 235:13-236:17). The Court reserved on Defendant’s
motion.
At the close of Defendant’s case-in-chief, Defendant renewed his Rule 50
motion for judgment as a matter of law. (Id. at 320:2-3). The Court granted
Defendant’s motion on Plaintiff’s claim for punitive damages, finding that there
was not sufficient evidence to support a jury finding that Plaintiff’s arrest was
motivated by an evil motive or intent, or done recklessly or with callous
indifference to Plaintiff’s federally-protected rights. (Id. at 330:6-14). The Court,
declining to rule on the renewed motion, allowed the issue of liability and
16
compensatory damages to go to the jury.14
6.
Jury Charges and Questions
The Court held a charge conference with counsel for the Parties. After
closing arguments, the Court charged the jury. (Id. at 365:3-385-21). The charges
included instructions on probable cause, Georgia law on child molestation, and
compensatory and nominal damages.
The Court instructed the jury, in pertinent part, as follows:
It is an offense for any person to commit the crime of child
molestation, which is defined as any immoral or indecent act to, or in
the presence of, or with any child under the age of 16 with the intent
to arouse or satisfy the sexual desires of either the child or the person.
Child molestation is a felony.
...
It is also a criminal offense for any person to commit the crime of
possession of a firearm during the commission of a felony when such
person has a firearm during the commission of any felony against or
involving the person of another.
...
14
The Eleventh Circuit has noted that, in all but the plainest cases, there are
cogent reasons of judicial economy to submit cases to jury verdict subject to
reserved rulings on motions for judgment as a matter of law, primarily to avoid the
need for a new trial should the district court erroneously grant the motion and be
reversed by the appellate court. Therrell v. Georgia Marble Holdings Corp., 960
F.2d 1555, 1569 (11th Cir. 1992) (citing 9 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 2533, at 586 (1971)).
17
A seizure under the Fourth Amendment occurs when the officer by
means of physical force or a show of authority terminates or restrains
a person’s freedom of movement through means intentionally applied.
A seizure, however, is not necessarily an arrest. Law enforcement
officers may seize a suspect for a brief investigatory stop where, one,
the officers have a reasonable suspicion that the suspect was involved
in or is about to be involved in criminal activity, and, two, the stop
was reasonably related in scope to the circumstances which justify the
interference in the first place.
In determining at what point Mr. Benson was arrested, you should
note that the particular use -- I’m sorry, in determining at what point
Mr. Benson was arrested, you should note that the use of a particular
method to restrain a person’s freedom of movement does not
necessarily turn a seizure into an arrest.
Police officers are entitled to take reasonable actions based upon the
circumstances to protect themselves or maintain the status quo. The
fact that a police officer handcuffs a suspect and places them into a
police car does not as a matter of course transform an investigatory
stop into an arrest. Further, a detention of an hour does not in and of
itself transform an investigatory stop into an arrest.
An investigatory stop is not an arrest despite the fact that a reasonable
person would not believe he was free to leave. No bright-line test
separates an investigatory stop from an arrest. Instead whether a
seizure has become too intrusive to be an investigatory stop and must
be considered an arrest depends upon the degree of intrusion
considering all the circumstances.
Whether a seizure constitutes an arrest depends upon the law
enforcement purpose served by the seizure, the diligence with which
they pursue their investigation, the scope and intrusiveness of the
intrusion, and the duration of the detention.
(Id. at 373:11-21, 377-24-379:10). Neither Party objected to the Court’s
18
jury charges as proposed at the charge conference or as given. (Id. at
332:19-340:8, 385:24-386:1). The Court recessed to allow the jury to
deliberate.
The Court later reconvened to address several questions asked by the
jury. The jury first asked the Court to “[p]lease provide again the Georgia
Code 6-4 definition of child molestation” and they asked how “does the law
define an immoral or indecent act.” (Id. at 388:10-14). The Court told the
Parties it intended to reread the instructions on the child molestation statute.
(Id. at 388:15-20). Neither Party objected to rereading these portions of the
instructions. (Id. at 389:6-7).
The jury next asked: (1) “Is it illegal to say the word ‘panties’ to a
minor,” and (2) “at what time was Dr. Benson actually placed under arrest.”
(Id. at 389:15-18). The Court stated it intended to instruct the jury that they
had to answer these questions themselves but that the Court would reinstruct
the jury on the difference between seizure and arrest. (Id. at 389:19-390:3).
Neither Party objected to answering the questions in this way, and neither
Party objected to the statement and instructions as given by the Court to the
jury. (Id. at 390:5-6, 394:9-11).
19
The Court later reconvened to address a further question. In it the jury
asked if the Court could define the word “intentionally.” (Id. at 395:10-12).
The Court advised the Parties it intended to send a written response to the
question which stated:
Members of the jury, the instructions you have been given explain the
law regarding the claim over which you are deliberating, and you
should consider the instructions and the words within them according
to your common experience and understanding.
(Id. at 395:13-21). Neither Party objected to this written response and it was
delivered to the jury. (Id. at 395:22-23).
The Court reconvened the Parties to address a note the jury sent to the Court
that stated “[w]e are having extreme difficulty reaching a unanimous decision. (Id.
at 396:10-12). Because it was late in the afternoon, the Court stated it intended to
dismiss the jury for the day. (Id. at 396:12-17). Neither Party objected to this
decision and the jury was instructed to return the following day to continue their
deliberations. (Id. at 396:19-20).
The jury continued their deliberations on February 5, 2015. The Court
reconvened to address a note from the jury that stated that they have been unable to
reach a unanimous decision. (Id. at 402:9-12). In response, the Court advised the
Parties it intended to read a civil Allen charge to the jury. (Id. at 402:17-20).
Neither Party objected to this response. (Id. at 402:21-23). The Court read the
20
Allen charge to the jury and instructed them to continue their deliberations. (Id. at
403:2-405:5).
The Court reconvened the Parties again to address a further question from
the jury. The jury asked: “[c]an we award general terms such as attorneys’ fees for
nominal damages, or do we have to decide on a specific amount.” (Id. at 406:6-9).
The Court stated it intended to respond by sending the jury another note that said
“[i]f nominal damages are awarded, you should enter a specific amount of nominal
damages.” (Id. at 406:10-12). Neither Party objected to the note response and it
was delivered to the jury. (Id. at 406:13-15).
7.
Verdict
The jury ultimately reached their unanimous verdict. They found that
Plaintiff had proved by a preponderance of the evidence that Defendant
intentionally violated Plaintiff’s rights by arresting him without probable cause,
and that this arrest caused injury to Plaintiff. (Id. at 408:13-19). The jury found
that Plaintiff was entitled to compensatory damages in the amount of $472,000.
(Id. at 408:20-25). The jury did not award nominal damages. (Id. at 409:6-8). The
jury was polled, and each juror confirmed that the verdict as published was the
same verdict they reached in the jury room, and that the verdict was freely and
voluntarily entered into by them. (Id. at 409:11-412:16). On February 6, 2015, the
21
Court entered judgment in favor of Plaintiff and against Defendant in the amount
of $472,000. (Id. at 412:21-23).
C.
Pending Motions15
On February 18, 2015, Defendant filed his timely Motion for Judgment
under Rule 50 of the Federal Rules of Civil Procedure, arguing that Defendant is
entitled to judgment as a matter of law because Defendant had arguable probable
cause to arrest Plaintiff based on the “totality of the circumstances.” (Def. Mot. for
Judgment at 14, 16). Defendant argues that Plaintiff was merely detained for an
hour while Defendant investigated the incident reported, and that this detention did
not “ripen into an arrest” until the investigation was completed and he was
transported to the police station.16 (Reply [64] in Support of Mot. for Judgment at
15
On February 17, 2015, Plaintiff filed his First Motion for Attorney’s Fees.
Plaintiff stated that he has incurred approximately $70,000 in attorney’s fees
litigating this case, and that he would provide a detailed itemization within thirty
(30) days. On March 19, 2015, Plaintiff filed a Second Motion for Attorney’s Fees
[68], requesting an award of $74,910 in attorney’s fees to Mr. Filipovits and
$6,630 to Mr. Yates. Plaintiff stated that, because this matter is ongoing, Plaintiff
would supplement this second motion to the extent that his attorneys incur
additional time for which compensation is appropriate under 42 U.S.C. § 1988.
Because Plaintiff has filed a superseding motion for attorneys’ fees, the Court will
deny his First Motion for Attorney’s Fees as moot. The Court also denies
Plaintiff’s Second Motion for Attorney’s Fees but allows Plaintiff to refile his
attorneys’ fees motion within thirty (30) days of the conclusion of the litigation in
this Court.
16
Defendant limits his Motion for Judgment to his defense of qualified
immunity. Defendant raised his defense of qualified immunity when he moved the
22
6-7).
On February 27, 2015, Defendant filed his timely Motion to Alter under
Rule 59(a) and (e) of the Federal Rules of Civil Procedure. Defendant argues,
based on the questions raised by the jury during their deliberations, that the jury
was confused about their role and what they were required to find in reaching a
verdict. (Mot. to Alter at 14-15). Defendant argues that the jury appears to have
been focused on whether Plaintiff was guilty beyond a reasonable doubt of child
molestation, rather than focusing on whether Defendant had probable cause to
arrest Plaintiff. (Id. at 15). Defendant argues, based on their question about
nominal damages, that the jury was also confused about how to assess Plaintiff’s
damages. (Id. at 16). Defendant argues that the jury’s verdict is not supported by
the weight of the evidence. (Id. at 21-25). Defendant argues, in the alternative,
that he is entitled to a new trial because of the jury’s confusion. (Id. at 25-29).
Defendant argues also that the jury’s verdict was the result of jury nullification,
caused by Plaintiff’s request in his closing argument that the jurors ignore “what
Court for judgment as a matter of law at the conclusion of Plaintiff’s case-in-chief
and the close of evidence. Because Defendant has renewed his motion, this Order
addresses whether Defendant is entitled to judgment as a matter of law based on
qualified immunity. Plaintiff does not argue that Defendant cannot raise his
qualified immunity argument in the pending Rule 50 motion.
23
Officer Facemyer thought or [] what the other police officers on the scene thought”
when assessing what a reasonable police officer would have done. (Id. at 29-30).
II.
DISCUSSION
A.
Legal Standard for Motion for Judgment
Rule 50(a) of the Federal Rules of Civil Procedure provides:
If a party has been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the
party on a claim or defense that, under the controlling law, can
be maintained or defeated only with a favorable finding on that
issue.
Fed. R. Civ. P. 50(a)(1). “If the court does not grant a motion for judgment as a
matter of law made under Rule 50(a), the court is considered to have submitted the
action to the jury subject to the court’s later deciding the legal questions raised by
the motion.” Fed. R. Civ. P. 50(b).
To grant a motion under Rule 50, the Court must find “‘there is no legally
sufficient evidentiary basis for a reasonable jury to find’ for the non-moving
party.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007) (quoting
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.
2001)). In considering a Rule 50 motion, the Court focuses on the sufficiency of
the evidence. Id. The Court must “review all of the evidence in the record and
24
must draw all reasonable inferences in favor of the nonmoving party.”
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192–93 (11th Cir.
2004). Credibility determinations, the drawing of inferences, and the weighing of
competing evidence are functions for the jury, not the Court. Id. at 1193.
Where the case has been submitted to the jury, the Court must deny the
motion and affirm the jury verdict “unless there is no legal basis upon which the
jury could have found for [the prevailing party].” Nebula Glass Int’l,
Inc. v. Reichhold, Inc., 454 F.3d 1203, 1210 (11th Cir. 2006).
B.
Legal Standard for Motion to Alter
A motion under Rule 59(e), which permits a party to move for relief from a
judgment, is granted only under certain limited circumstances. “[T]here are three
primary grounds for reconsideration of a judgment: an intervening change in
controlling law, the availability of new evidence, or the need to correct clear error
or prevent manifest injustice.” United States v. Battle, 272 F. Supp. 2d 1354, 1357
(N.D. Ga. 2003). The decision whether or not to grant a Rule 59(e) motion is
“committed to the sound discretion of the district judge.” Am. Home Assurance
Co. v. Glenn Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir. 1985).
Rule 59(a)(1) of the Federal Rules of Civil Procedure provides:
The Court may, on motion, grant a new trial on all or some of the
issues—and to any party—as follows: (A) after a jury trial, for any
25
reason for which a new trial has heretofore been granted in an action
at law in federal court; or (B) after a nonjury trial, for any reason for
which a rehearing has heretofore been granted in a suit in equity in
federal court.
Fed. R. Civ. P. 59(a)(1). Generally, a motion for a new trial may be granted where
“the verdict is against the weight of the evidence, . . . the damages are excessive,
or . . . for other reasons, the trial was not fair to the moving party; and may raise
questions of law arising out of alleged substantial errors in admission or rejection
of evidence or instructions to the jury.” Montgomery Ward & Co. v. Duncan,
311 U.S. 243, 251 (1940).
C.
Analysis: Motion for Judgment as a Matter of Law
Defendant argues that he is entitled to judgment notwithstanding the verdict
because the evidence established at trial proves that he is entitled to qualified
immunity.
1.
Qualified Immunity
If a law enforcement officer makes an arrest without probable cause, he may
still retain the defense of qualified immunity. “Qualified immunity offers
complete protection for government officials sued in their individual capacities if
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Wood v. Kesler, 323 F.3d 872,
877 (11th Cir. 2003) (citations and quotations omitted). To be eligible for
26
qualified immunity, the official must first establish that he was performing a
“discretionary function” at the time the alleged violation of federal law occurred.
Crosby v. Monroe, 394 F.3d 1328, 1332 (11th Cir. 2004).17 Once the official has
established that he was engaged in a discretionary function, the plaintiff bears the
burden of demonstrating that the official is not entitled to qualified immunity. Id.
To demonstrate that the official is not entitled to qualified immunity, a plaintiff
must show two things: (1) that the defendant has committed a constitutional
violation and (2) that the constitutional right the defendant violated was “clearly
established” at the time he did it.18 Id.
The standard to determine if an arrest constitutionally violates a person’s
rights sufficient to support a claim under § 1983 is whether there was “arguable
probable cause” to make the arrest.19 Lee v. Ferraro, 284 F.3d 1188, 1195 (11th
Cir. 2002). Arguable probable cause is evaluated by determining whether
“reasonable officers in the same circumstances and possessing the same knowledge
17
The Parties do not dispute that Defendant was performing a “discretionary
function” when he arrested Plaintiff on February 22, 2011.
18
The Fourth Amendment’s requirement that a warrantless arrest must be
made with probable cause is clearly established. Kingsland v. City of Miami,
382 F.3d 1220, 1226 (11th Cir. 2004); Marx v. Gumbinner, 905 F.2d 1503, 1505
(11th Cir. 1990).
19
At the Preliminary Hearing, Judge Woodson concluded that Defendant did
not have probable cause to arrest Plaintiff. (August 21, 2014, Order, at 9). The
standard to determine if Defendant is entitled to qualified immunity from the claim
is the lower arguable probable cause standard.
27
as the Defendant[] could have believed that probable cause existed to arrest.” Id.
“What counts for qualified immunity purposes relating to probable cause to arrest
is the information known to the defendant officers or officials at the time of their
conduct, not the facts known to the plaintiff then or those known to a court later.”
Jones v. Cannon, 174 F.3d 1271, 1283 n.4 (11th Cir. 1999); see also
Brienza v. Gee, 307 F. App’x 352, 354 (11th Cir. 2009); Skop v. City of Atlanta,
Georgia, 485 F.3d 1130, 1143 (11th Cir. 2007).
Where a case is fully tried and the defendant did not request special
interrogatories, the court must “resolve all disputed factual issues for the question
of qualified immunity by viewing the evidence in the light most favorable to
Plaintiff.” Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir.
2000).
To determine whether a reasonable police officer, knowing what Defendant
knew at the time of arrest, would have reasonably believed that probable cause
existed to arrest Plaintiff, the Court must determine when during the police
encounter Defendant arrested Plaintiff.
2.
Time of Plaintiff’s Arrest
Plaintiff contends that Defendant arrested Plaintiff before he interviewed
Ms. Wood, by placing Plaintiff in handcuffs, searching his personal effects,
28
threatening to tackle and hurt him if he tried to leave the scene, and interrogating
him. (Pl.’s Res. [63] to Mot. for Judgment at 20). Defendant contends that he did
not arrest Plaintiff until after he interviewed Ms. Wood and consulted with
Sgt. Ormond and the other two investigators. (Reply [64] in Support of Mot. for
Judgment at 5). In other words, Defendant contends that Plaintiff was not arrested
until Defendant informed him that he was being charged with child molestation,
and had Plaintiff transported to the police station jail.
“A ‘seizure’ under the Fourth Amendment occurs ‘when the officer, by
means of physical force or show of authority, terminates or restrains [a person’s]
freedom of movement, through means intentionally applied.’” Chandler v. Sec’y
of Florida Dep’t of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (citing
Brendlin v. California, 551 U.S. 249, 254 (2007)); see also Proescher v. Bell,
966 F. Supp. 2d 1350, 1363 (N.D. Ga. 2013). A threat to injure Plaintiff if he fled,
and handcuffing of Plaintiff, if true, can constitute a seizure of Plaintiff for Fourth
Amendment purposes. See Chandler 695 F.3d at 1199.
A “seizure,” however, is not necessarily an “arrest.” “[L]aw enforcement
officers may seize a suspect for a brief, investigatory . . . stop where (1) the
officers have a reasonable suspicion that the suspect was involved in, or is about to
be involved in, criminal activity, and (2) the stop ‘was reasonably related in scope
29
to the circumstances which justified the interference in the first place.’”
United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (citing
Terry v. Ohio, 392 U.S. 1, 19-20 (1968)).
An “investigatory stop is not an arrest despite the fact that a reasonable
person would not believe he was free to leave.” United States v. Blackman,
66 F.3d 1572, 1576 (11th Cir. 1995). “No brightline test separates an investigatory
stop from an arrest. Instead, whether a seizure has become too intrusive to be an
investigatory stop and must be considered an arrest depends on the degree of
intrusion, considering all the circumstances.” Id. “[T]he fact that police handcuff
the person or draw their weapons does not, as a matter of course, transform an
investigatory stop into an arrest.” Id.; see also United States v. Gil, 204 F.3d 1347,
1350 (11th Cir. 2000) (detainment of handcuffed defendant in back of police car
for 75 minutes a Terry stop and not an arrest).
The Court must look at the “totality of the circumstances” to determine if an
investigatory stop has ripened into a full scale arrest. Gil, 204 F.3d at 1351. The
Court considers several factors, “including the law enforcement purposes served by
the detention, the diligence with which the police pursue the investigation, the
scope and intrusiveness of the detention, and the duration of the detention.” Id.
(quoting United States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988)).
30
Defendant testified that he was told by the 911 operator there was a man in
his sixties wearing a black hat with gold letters, blue jeans, and sunglasses in the
Park talking to a little girl about her panties. (Trial Tr. at 301:8-13). When he
arrived at the Park, he spoke with a woman who pointed at Plaintiff and said
“[t]here is the man, that’s him.” (Id. at 210:23-25, 303:21-25). Defendant saw a
man fitting Plaintiff’s description walking away from Defendant along the
pedestrian path at the Park. (Id. at 211:1-2, 304:1-3). Defendant got out of his
police vehicle and called out for Plaintiff to come over to him. (Id. at 304:5-7).
Plaintiff testified that Defendant, during their initial encounter, yelled to
him: “You. Hey, you, I want to talk to you. Get over here. Get over here now.”
(Id. at 142:5-8, 184:10-21). As Plaintiff approached, Defendant yelled: “Are you
armed? Are you armed? Are you armed?” (Id. at 142:12-13). Plaintiff held up
his hands and said “yes, with a permit,” and pointed at his right front pocket. (Id.
at 142:14-15). Defendant told Plaintiff to “[g]et over here. Get over here now.”
(Id. at 142:17). When he did, Defendant grabbed Plaintiff’s right arm and “slung it
back around [Plaintiff].” (Id. at 142:18-19). Defendant said to Plaintiff “[i]f you
run, I am going to chase you down, I am going to tackle you, and I’m going to
really hurt you.” (Id. at 143:1-2). Defendant told Plaintiff he was being detained,
and handcuffed him. (Id. at 143:3-7, 144:4-5). After Plaintiff was told that he
31
would be hurt if he ran, Defendant interrogated Plaintiff and disarmed him.20 (Id.
at 144:10-20, 145:1-3, 19-25, 146:1-7). Plaintiff, when questioned about
Daughter, told Defendant (id. at 144:20), that Daughter was wearing a pink dress,
and Plaintiff said: “That’s a beautiful pink dress you have on.” (Id. at 138:18-20).
Daughter then “grabbed her bodice, yanked it up about a half an inch and yell[ed],
Panties.” (Id. at 138:21-22). Plaintiff responded by saying that his “daughter used
to wear panties just like yours.” (Id. at 139:13-14).21 Plaintiff was then
interrogated by two other police officers and placed in a police wagon for
approximately one hour. (Id. at 146:24-148:13).
As our Circuit has noted, there is no “brightline test [that] separates an
investigatory stop from an arrest.” Blackman, 66 F.3d at 1576. The Court,
20
Defendant’s version of what occurred after he got out of his vehicle is
different from Plaintiff’s version. Defendant stated that he called out to Plaintiff to
come over to him and asked if he was armed. (Id. at 304:5-7, 304:11-13).
Defendant testified that he immediately handcuffed Plaintiff, secured the weapon,
and then explained why he had stopped him. (Id. at 304:15, 18-22, 305:5-12).
Plaintiff then told his version of events. (Id. at 305:11-12). Plaintiff’s version of
this initial encounter is more aggressive and accusatory than Defendant’s version.
The Court, however, on a motion under Rule 50 of the Federal Rules of Civil
Procedure, must “review all of the evidence in the record” and “draw all
reasonable inferences” in favor of Plaintiff—the non-moving party. See
Cleveland, 369 F.3d at 1192-93. Credibility determinations, the drawing of
inferences, and the weighing of competing evidence are functions for the jury, not
the Court. Id. at 1193.
21
This, Plaintiff claims, reminded him of how, when his daughter was that age,
she seemed to enjoy wearing matching dresses and underwear. (Trial Tr. at
138:23-139:7).
32
viewing the evidence in favor of Plaintiff, the non-moving party, considers the
factors discussed in Gil to determine if Defendant’s initial investigatory stop
ripened into an arrest before he spoke with Ms. Wood and the other officers. In
considering the law enforcement purpose served by the detention, the most
important aspect “is whether the police detained [the individual] to pursue a
method of investigation that was likely to confirm or dispel their suspicions
quickly, and with a minimum of interference.” Gil, 204 F.3d at 1351 (quoting
Hardy, 855 F.2d at 759).
Defendant knew, based on the 911 call and Plaintiff’s statement, that the
incident with Daughter was a non-violent one and he knew Plaintiff’s name and
address. Grabbing Plaintiff’s right arm and pulling it behind him, threatening a
sixty-five-year-old man with violence should he attempt to run, handcuffing him
after he was disarmed, and continuing to detain him while Defendant investigated a
non-exigent matter was not the minimal amount of interference Defendant could
have applied to complete his investigation. See id. In Gil, the defendant was
handcuffed and placed in a police car for over an hour. Id. This detention was,
under the facts of that case, necessary to prevent the defendant from jeopardizing
an investigation by the police officers into her residence by interfering with it. Id.
That is not the case here where there is no evidence Plaintiff could interfere with or
33
otherwise jeopardize the investigation Defendant and the other officers present
would conduct. The only other evidence Defendant sought in determining what
occurred was Ms. Wood’s statement, which Defendant could have obtained
whether Plaintiff was present or not. The first factor, thus, suggests that Plaintiff’s
detention ripened into an arrest before Defendant talked with Ms. Wood.
The record evidence supports that Defendant did not detain Plaintiff for an
overly long time or beyond the time that was necessary for him to complete his
investigation. Plaintiff was interrogated by Defendant and the other two officers,
and then held in the police wagon for approximately an hour. Defendant appears
to have held Plaintiff only as long as was needed for him to interview Ms. Wood
and discuss with the other officers the facts of the case to decide if charges should
be pressed.
The scope of the intrusiveness of the detention weighs in favor of
concluding that the arrest occurred earlier in the police encounter. In Gil, the
Eleventh Circuit noted that being handcuffed and placed in the back of a police car
was a “severe form of intrusion . . . .” Id. The Court in Gil concluded, in that case,
that the intrusion was necessary because the defendant, a woman, could not be
searched at the scene because a female officer was not available to conduct the
search. Id. Here, Defendant, at the start of the encounter, disarmed Plaintiff, and
34
the record does not show that handcuffing Plaintiff and detaining him in the back
of a police wagon, a “severe form of intrusion,” was necessary for officer safety or
for Defendant to complete his investigation.
The time of the arrest was the issue upon which the Court denied summary
judgment in this case, noting that it needed to be resolved at trial.
(August 21, 2014, Order, at 19-20).22 Plaintiff, in support of his motion for
summary judgment and in opposition to Defendant’s motion for summary
judgment, asserted the same facts as the ones discussed here regarding his initial
encounter with Defendant. “When the evidence produced at trial mirrors the
evidence presented on summary judgment, ‘the same evidentiary dispute that got
the plaintiff past a summary judgment motion asserting the qualified immunity
defense will usually get that plaintiff past a Rule 50(a) motion asserting the
defense, although the district court is free to change its mind.’”
Bennett v. Hendrix, 325 F. App’x 727, 736 (11th Cir. 2009) (quoting
Johnson v. Breeden, 280 F.3d 1308, 1317–18 (11th Cir. 2002)).
22
The Eleventh Circuit has repeatedly stressed that the “facts” accepted at the
summary judgment state of the proceedings may not be the “facts” established at
trial. Priester, 208 F.3d at 926 n.3. The Court’s previous opinion on the time of
arrest being a significant unresolved issue at the summary judgment stage is,
nevertheless, instructive in this case.
35
At trial, the Court gave detailed instructions to the jury on the law of seizure
and arrest, to which neither Party objected. (Trial Tr. at 377:24-379:10,
385:24-386:1). Where, as here, the case was fully tried and Defendant did not
request special interrogatories, the Court must “resolve all disputed factual issues
for the question of qualified immunity by viewing the evidence in the light most
favorable to Plaintiff.” Priester, 208 F.3d at 926 n.3;23 Wilkerson v. Seymour, No.
15-11226, 2015 WL 5254856, at *2 (11th Cir. Sept. 10, 2015) (citing Priester); see
also Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999) (“When a qualified
23
In Priester, the Eleventh Circuit considered an appeal chiefly about qualified
immunity and the deference due the implicit fact findings contained in a jury
verdict. Priester, 208 F.3d at 922. The plaintiff in Priester was bitten by a police
dog and brought suit for excessive force against two police officers, Wheeler and
Cushing. Id. at 922-23. The jury returned a verdict in favor of the plaintiff, and
the defendants moved for judgment as a matter of law and, in the alternative, for a
new trial. Id. at 923. The district court denied the defendants’ motion for a new
trial, denied Wheeler’s motion for judgment as a matter of law, and granted
Cushing’s motion for judgment as a matter of law. Id. The Priester Court noted
that, in reaching the conclusion that Cushing was entitled to judgment as a matter
of law, the district court “mistakenly relied upon [the defendants’] version of the
facts, rather than [the plaintiff’s] version of the facts, as it was required to do.” Id.
at 925. The Priester Court concluded that, based on the plaintiff’s version of
events, the grant of judgment as a matter of law for Cushing was error. Id.
The Priester Court also addressed the defendants’ assertion of qualified
immunity. The Priester Court noted that when the Eleventh Circuit “review[s] a
district court’s denial of a defendant’s motion for summary judgment on qualified
immunity grounds, we take the ‘facts’ in the light most favorable to the plaintiff.”
Id. at 926 n.3. The Priester Court concluded that, after “defer[ring] to the jury’s
implicit fact finding,” the defendants were not entitled to judgment as a matter of
law on the grounds of qualified immunity. Id. at 927-28. In Priester, there was not
alternative times when the alleged excessive force occurred.
36
immunity defense is pressed after a jury verdict, the evidence must be construed in
the light most hospitable to the party that prevailed at trial.”); Frazell v. Flanigan,
102 F.3d 877, 886 (7th Cir. 1996) (court bound by jury’s determination of disputed
facts); Acosta v. City and County of San Francisco, 83 F.3d 1143, 1147 (9th Cir.
1996) (court bound by jury’s implicit fact findings as discernible from verdict).
Having concluded that Plaintiff’s detainment was a “severe form of
intrusion” that was not the minimal amount of interference Defendant could have
applied to complete his investigation, the Court concludes that Defendant arrested
Plaintiff during their initial encounter. This was before Defendant spoke with
Ms. Wood or the other officers. This conclusion is supported by the jury’s implicit
fact findings24 in the absence of special interrogatories25 and the Court’s obligation
to review the record evidence in favor of the non-moving party. See Priester,
208 F.3d at 926 n.3; Cleveland, 369 F.3d at 1192-93. The Court now evaluates
24
Defendant testified that it was only after he had “gathered all the facts and
all the evidence” that he decided to make an arrest. (Trial Tr. at 306:11-13). The
jury was entitled to disregard this testimony and decide, based on their
determination of the facts, the arrest had occurred during the initial police
encounter.
25
Plaintiff asserts that Defendant, by failing to request special interrogatories
on the issue of the time of the arrest, waived his right to assert qualified immunity.
Plaintiff acknowledges that the Eleventh Circuit has not reached such a holding.
The Court declines to reach such a holding here and instead will construe, as
required by the Eleventh Circuit’s case authority, the facts established at trial in
favor of Plaintiff.
37
what Defendant knew at the time of arrest and whether, at that time, arguable
probable cause existed.
3.
Defendant’s Knowledge and Arguable Probable Cause
Arguable probable cause is evaluated by determining whether a reasonable
officer, possessing the same knowledge as the arresting officer at the time of the
arrest, would have believed probable cause to exist. See Lee, 284 F.3d at 1195;
Jones, 174 F.3d at 1283 n.4; Brienza, 307 F. App’x at 354; Skop, 485 F.3d at 1143.
Defendant, at the time of arrest, knew that a 911 caller had reported that a
man in his sixties, wearing a black hat with gold letters, blue jeans, and sunglasses,
was in the Park talking to a little girl about her panties. (Trial Tr. at 301:8-13).
Defendant also knew that Plaintiff was a sixty-five-year-old man visiting the Park
from Stone Mountain, Georgia, and that Daughter was wearing a pink dress, and
that Plaintiff had said to Daughter: “That’s a beautiful pink dress you have on.”
(Id. at 138:18-20, 145:2-4). Defendant knew that Daughter then “grabbed her
bodice, yanked it up about a half an inch and yell[ed], Panties.” (Id. at 138:21-22).
Defendant knew that Plaintiff responded by saying that his “daughter used to wear
panties just like yours.” (Id. at 139:13-14). Defendant knew that Plaintiff carried a
pistol for which he had a permit. (Id. at 145:5-6).
38
The Court evaluates whether a reasonable police officer, knowing the
above-referenced facts, would have believed that there was probable cause to arrest
Plaintiff. See Lee, 284 F.3d at 1195. The only relevant offense for which Plaintiff
was charged was child molestation under O.C.G.A. § 16-6-4. 26 The Court, thus,
evaluates whether a reasonable police officer would have believed that probable
cause existed to arrest Plaintiff for child molestation.
O.C.G.A. § 16-6-4 states: “A person commits the offense of child
molestation when such person . . . [d]oes any immoral or indecent act to or in the
presence of or with any child under the age of 16 years with the intent to arouse or
satisfy the sexual desires of either the child or the person . . . .” O.C.G.A.
§ 16-6-4(a)(1). The “immoral or indecent” acts proscribed by O.C.G.A. § 16-6-4
are those that “offend against the public’s sense of propriety” as well as “acts more
suggestive of sexually oriented misconduct to a child’s body than simply assaultive
in nature.” Chapman v. State, 318 S.E.2d 213, 214 (Ga. App. Ct. 1984). “The
focus is on the adult’s action toward the child in relation to the motive for the
action[.]” Stroeining v. State, 486 S.E.2d 670, 671 (Ga. App. Ct. 1997). An “act
26
Plaintiff was also charged with possession of a firearm during the
commission of a felony under O.C.G.A. § 16-11-106. This offense is premised on
the actual commission of the felony at issue—child molestation—and the validity
of this arrest must stand or fall in conjunction with the underlying felony upon
which the arrest was based. Cf. State v. Ray, 510 S.E.2d 361, 361 (Ga. App. Ct.
1998).
39
generally viewed as morally and sexually indelicate, improper and offensive” can
constitute child molestation. Chapman, 318 S.E.2d at 215. There is no
requirement that the act must involve physical contact with the child. “A child’s
mind may be victimized by molestation as well.” Smith v. State, 342 S.E.2d 769,
771 (Ga. App. Ct. 1986).
A reasonable police officer, knowing only what Defendant knew at the time
he arrested Plaintiff, would not have believed probable cause existed to arrest
Plaintiff for child molestation.27 At the time of arrest, Defendant knew only that
Plaintiff had, according to Plaintiff, a brief conversation with a child, whose
mother, the 911 caller, was present, where the child’s underwear was mentioned.
A reasonable police officer would not have believed, without further investigation,
that Plaintiff’s conversation with Daughter was “sexually oriented misconduct” or
conduct that “offend[ed] . . . the public’s sense of propriety” done with the intent
to arouse his or the child’s sexual desires, such that probable cause to arrest
existed. See O.C.G.A. § 16-6-4(a)(1); Chapman, 318 S.E.2d at 214. This
27
The Court notes that Sgt. Ormond and the two investigators, after discussing
Ms. Wood’s statement, agreed that probable cause existed. (Trial Tr. at 308:3-7).
Even if true, this assessment would only be relevant if the arrest had not yet
occurred. If the arrest occurred before Defendant spoke with Ms. Wood, the other
officers had the benefit of additional information not available to Defendant when
he arrested Plaintiff. Their opinions about the existence of probable cause after the
arrest are not relevant.
40
assessment of what a reasonable police officer would have concluded is supported
by the jury’s implicit fact findings in the absence of special interrogatories and the
Court’s obligation to resolve all factual disputes on the question of qualified
immunity by viewing the evidence in the light most favorable to Plaintiff. See
Priester, 208 F.3d at 926 n.3; Cleveland, 369 F.3d at 1192-93. Having concluded
that Defendant did not have arguable probable cause to arrest Plaintiff, the Court
concludes that Defendant is not entitled to qualified immunity for the arrest that
occurred at the time Plaintiff was detained and handcuffed.
The Court must “affirm the jury verdict unless there is no legal basis upon
which the jury could have found for [the prevailing party].” Telecom Technical
Servs. Inc. v. Rolm Co., 388 F.3d 820, 830 (11th Cir. 2004); Carter v. City of
Miami, 870 F.2d 578, 581 (11th Cir. 1989). A motion for judgment as a matter of
law should be granted only if “facts and inferences point overwhelmingly in favor
of one party, such that reasonable people could not arrive at a contrary
verdict . . . .” Carter, 870 F.2d at 581.
Having concluded that Defendant is not entitled to qualified immunity for
the arrest that occurred at the time Plaintiff was detained and handcuffed, and
viewing the evidence presented at trial in the light most favorable to Plaintiff, the
Court cannot conclude that “there is no legally sufficient evidentiary basis for a
41
reasonable jury to [have found]” for Plaintiff based upon the arrest at the time
Plaintiff was detained and handcuffed. See Chaney, 483 F.3d at 1227 (quoting
Lipphardt, 267 F.3d at 1186). Defendant’s Motion for Judgment is required to be
denied.
The trial evidence about Plaintiff’s detention, however, does not conclude
here. This is a unique case where the Parties contend that an arrest occurred at two
different times, separated by the span of only about an hour. The facts at trial were
undisputed that Defendant had more information and engaged in consultation with
others, including other law enforcement officers, when Plaintiff was told he was
being charged with child molestation and transported to the police station jail. The
trial was ordered to resolve the factual dispute regarding when the arrest occurred.
Having determined an arrest, without arguable probable cause, occurred when
Plaintiff was handcuffed, the question remains whether Defendant’s further
investigation and consultation with other police officers developed arguable
probable cause requiring a reevaluation of Plaintiff’s detention after the additional
information was developed and the consultations were completed. Specifically,
would the development of arguable probable cause when Defendant believed he
arrested Plaintiff and had him transported to the police station jail, require
42
Defendant to be granted qualified immunity after that point. It is against this
backdrop that the Court now considers Defendant’s Motion to Alter.
D.
Analysis: Motion to Alter or Amend the Judgment or, in the
Alternative, for a New Trial
Defendant argues that the Court should, under Rule 59 of the Federal Rules
of Civil Procedure, alter the jury’s verdict and enter judgment in favor of
Defendant or, in the alternative, grant Defendant a new trial. Defendant raises
several grounds for the relief he seeks.
Defendant first argues that he is entitled to qualified immunity. (Mot. to
Alter at 18-21). The Court, for the same reasons it denied Defendant’s Motion for
Judgment, necessarily must deny Defendant’s Motion to Alter based on the arrest
of Plaintiff when he was detained and handcuffed. Defendant did not have
qualified immunity for this arrest. The issue is whether qualified immunity arose
later.
After Defendant arrested Plaintiff, he engaged in further investigation of the
incident reported to 911. This investigation included the interview of Ms. Wood
about what occurred at the Park. (Trial. Tr. at 308:3-7). Defendant also discussed
with Sgt. Ormond and the two investigators at the scene, one from the sex crimes
unit, facts Defendant had developed during his investigation. (Id. at
306:21-307:14). He sought from them their input on whether there was probable
43
cause to arrest. (Id. at 306:21-307:14). The officers also consulted at least one
attorney from the Fulton County District Attorney’s Office Crimes Against
Women and Children Unit. (Id. at 308:8-13). The other officers at the scene, and
the attorney, all agreed that probable cause to arrest existed. (Id.). It was at this
time that Defendant believed he arrested Plaintiff because he believed his further
investigation established that there was probable cause to arrest. (Id. at
308:16-18). Based on these investigatory steps, the Court concludes that, at this
point, a reasonable police officer, knowing what Defendant knew at that time,
would have believed that probable cause to arrest existed.
The legal issue that remains, and which can now be considered, the time of
arrest having been determined, is whether the development of arguable probable
cause for the arrest allows Defendant to claim qualified immunity even though
there was an absence of arguable probable cause at the time the Court found, and
the jury implicitly found, the arrest occurred.28 That is, where arguable probable
cause becomes known to an arresting officer after the initial arrest is the arresting
officer entitled to qualified immunity for events occurring after arguable probable
cause is established. If Defendant is allowed to claim that arguable probable cause
supports an arrest at a later point and Defendant is, at that time, entitled to qualified
28
The Court’s research on this issue suggests, at least in this Circuit, that this
issue may be one of first impression.
44
immunity, this finding would limit Plaintiff’s compensable damages for the
violation of his Fourth Amendment right to only those he suffered from the time he
was handcuffed, detained, and arrested, to when Defendant concluded his
investigation and had arguable probable cause to continue to detain Plaintiff.
Defendant, in seeking a new trial, asserts that “the jury’s questions presented
during deliberations highlight (1) the jury’s confusion about [their] role in this case
and the relevant law; (2) no evidence exists of an intentional constitutional
violation; and, (3) the jury’s award was tainted by [their] consideration of
attorney’s fees as an element of damages.” (Mot. to Alter at 25).
“Generally, a motion for a new trial may be granted where ‘the verdict is
against the weight of the evidence, . . . the damages are excessive, or . . . for other
reasons, the trial was not fair to the moving party; and may raise questions of law
arising out of alleged substantial errors in admission or rejection of evidence or
instructions to the jury.’” Vig v. All Care Dental, P.C., No. 1:11-CV-4487-WSD,
2014 WL 129408, at *3 (N.D. Ga. Jan. 14, 2014) (quoting Duncan, 311 U.S. at
251).
Defendant argues that the jury was confused about their role and the relevant
law. (Mot. to Alter at 26-27). Defendant argues that, based on the jury’s
questions, they were focused on the legality of Plaintiff’s actions and not whether
45
Defendant intentionally violated Plaintiff’s rights. Defendant argues that the jury
reached their verdict based on their conclusion that Plaintiff was innocent of the
crimes charged. (Id.). Defendant argues further that, based on their question about
the meaning of the word “intentionally,” the jury was confused about this standard
as well. (Id. at 27). Defendant asserts he is entitled to a new trial because of this
alleged jury confusion. The Court also concludes that Defendant continues to
contend, even if inartfully, he is entitled to litigate whether Defendant is entitled to
qualified immunity when after his investigation and consultations, he decided he
had probable cause to arrest Plaintiff.
Although the Court may not agree with Defendant’s basis for the claimed
jury confusion, the Court also accepts that the jury was confused about their role,
may well have reached an unjust result and may have awarded damages that are
not supported by the law. The issue of the scope of damages allowed and the
evidence that should be admitted in support of damages arose at the eleventh hour
in this case, beginning with evidentiary issues raised on the morning of trial. (See
Trial Tr. at 8:22-27:16). The Court ultimately allowed significant evidence to be
introduced to permit Plaintiff to support his damages claimed to be the result of his
treatment after his arrest. The Court was then, and is still now, unsure if this
evidence, in whole or in part, should have been admitted. The Court sought to
46
address the claimed prejudicial effect on Defendant by giving appropriate limiting
instructions, which the Court concludes may well have lead to jury confusion.
This confusion, the Court concludes, warrants a new trial on damages.
As a prerequisite to a new trial, the Court must first consider whether
Defendant is entitled to qualified immunity when arguable probable cause was
developed after Defendant was arrested by being put in handcuffs.
If Defendant is entitled to qualified immunity from the point after which he
completed his investigation, the scope of damages may well be limited to those
Plaintiff alleges to have suffered based on his detention from the time he was
handcuffed and detained, to the time he was transported to the police station jail.
Even if Defendant is not entitled to qualified immunity after arguable probable
cause is established, the Court concludes that the damages awarded by the jury in
this case were excessive and a new trial on damages is warranted for this reason
alone.29
The Court is allowed to grant a new trial where the trial was not fair to the
moving party, when there are alleged errors in admission of evidence or
instructions, or when damages are excessive. Duncan, 311 U.S. at 251. Here, the
29
Because the Court concluded that Defendant did not have arguable probable
cause to arrest Plaintiff when he did, and because it concludes that a new trial on
the issue of damages is required, it is not necessary to consider the other grounds
upon which Defendant requests a new trial.
47
Court considers that a fundamental legal issue was not required to be addressed
and in not doing so, Defendant was not treated fairly, evidence the Court admitted
likely confused or misled the jury, and the verdict here was excessive. For these
reasons, the Court exercises its discretion to grant a new trial and to require the
Parties to address whether Defendant may claim qualified immunity based on the
arguable probable cause he developed after the arrest but upon which he relied in
advising Plaintiff of the charges for which he was arrested and ordered to be
transported to the police station jail.
III.
CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Andres Facemyer’s Motion for
Judgment as a Matter of Law [61] is DENIED.
IT IS FURTHER ORDERED that Motion to Alter or Amend the Judgment
or, in the Alternative, for a New Trial [62] is GRANTED IN PART and DENIED
IN PART. The Court will conduct a new trial on the issues of damages, subject to
the Court’s initial consideration of whether the development of arguable probable
cause after the arrest and before Defendant advised Plaintiff of the charges for
which he was arrested and was ordered to be transported to the police station jail,
48
entitles Defendant to claim qualified immunity for events occurring after that
point.
IT IS FURTHER ORDERED that the Parties shall submit legal
memoranda on the issue of whether the establishment of arguable probable cause
after the arrest entitles Defendant to claim qualified immunity at that point.
Because Defendant has the burden to establish qualified immunity, he shall file his
memorandum on this issue on or before October 30, 2015. Initial and further
briefing of this issue, including the briefing schedule, shall be governed by the
Court’s Local Rules.
IT IS FURTHER ORDERED that Plaintiff Dan J. Benson’s First Motion
for Attorney’s Fees [60] and Second Motion for Attorney’s Fees [68] are DENIED
WITHOUT PREJUDICE. Plaintiff may, within thirty (30) days after the
conclusion of litigation in this Court, refile his motion for attorneys’ fees and costs.
SO ORDERED this 30th day of September, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
49
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