Young v. Brady
Filing
47
ORDER denying Plaintiff's 5 , 19 Motions for Summary Judgment; denying Defendant's 21 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 3/19/2019. (ca)
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 1 of 31
3i^tl
?limteli ^totesc I9ts(trtct Court
for tfie ^outfiem IBtsitrtct of (f^eorsta
Prunsifotcft SBtlitseton
JOE T. YOUNG,
Plaintiff,
CV 2:18-022
V.
DAVID BRADY,
Defendant.
ORDER
Plaintiff filed
42 U.S.C. § 1983.
this
action
pro
se
seeking
Dkt. No. 1-1 at 12-14.
damages
under
Before the Court are
Plaintiff's First Motion for Summary Judgment, dkt. no. 5, and
Second Motion for Summary Judgment, dkt. no. 19, and Defendant's
Motion for Summary Judgment, dkt. no. 21.
These motions have been
fully briefed and are ripe for review.
For the reasons stated
below, factual disputes preclude summary judgment in favor of
either side.
The motions, at this time, are DENIED.
BACKGROUND
Plaintiff
had
an
encounter
with
Defendant
Sidney Lanier Park in Brunswick, Georgia.
David
Brady
at
Dkt. No. 21-1 SI 1.
Defendant David Brady is a Game Warden in the ""Law Enforcement
Division of the Georgia Division [sic] of Natural Resources (DNR)
in Region 7, based in Brunswick, Georgia."
Id. SI 2.
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 2 of 31
The Encoun-ber
On August 27, 2017, Plaintiff was sitting in his parked truck
with his windows up in a gravel parking lot in Sidney Lanier Park.
Dkt. No. 21-3 SI 8, 9; ''Officer Brady, Body Camera" (Video) at 0:13.
The gravel lot had no lines designating parking spots, and there
were no vehicles, other than Plaintiff's and Defendant's, parked
in
that
gravel
Defendant.
lot
at
the
time
Plaintiff
was
Video at 0:13-0:32; Video at 1:10.
approached
by
Defendant parked
his truck near Plaintiff's and walked to Plaintiff's driver-side
window.
Id.
at
0:12-0:23.
When
Plaintiff
was
approached
Defendant, he was relaxing in the driver's seat of his truck.
No. 21-5 at 28.^
by
Dkt.
When Defendant got to Plaintiff's window, he
asked plaintiff if he was "okay" and told him to "roll your window
down."
Video 0:21-0:24.
Plaintiff waived Defendant off and drove
forward, dkt. no. 21-5 at 29, video at 0:23-0:28; as soon as the
truck started moving. Defendant struck Plaintiff's window with his
^ Plaintiff was deposed by Defendant. Dkt. No. 21-5. During the
deposition. Plaintiff read portions of his complaint verbatim
after being asked to describe in his words what happened. Id. at
26-29.
While the Complaint is not evidence, the testimony that
Plaintiff gave in his deposition detailing under oath facts
relating to the incident in question is evidence that the Court
must consider at this stage in the proceeding, even if the factual
allegations in the deposition were repeated verbatim from the
Complaint. Darwin v. Nicholson, 221 F. App'x 918, 920 (11th Cir.
2007) ("Depositions generally are admissible provided that the
party against whom they are admitted was present, represented, or
reasonably noticed, pursuant to Rule 32(a) of the Federal Rules of
Civil Procedure.
Moreover, depositions are specifically allowed
in consideration of summary judgment." (citation omitted)).
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 3 of 31
hand, video at 0:24-0:25.
seconds)
that
Plaintiff's
the
brake
For the time period (approximately three
video
lights
showed
were
Plaintiff's
activated.
Id.
truck
at
moving.
0:25-0:27.
Defendant immediately returned to his truck and pursued Plaintiff.
Id. at 0:26-0:34.
The pursuit did not last long, less than thirty
seconds elapsed from the time Defendant put his truck in drive to
when he put it back into park, behind Plaintiff's truck.
0:35-1:03.
Id. at
At some point. Defendant activated his vehicle's blue
emergency lights.
Id. at 3:00-3:01 (showing that the vehicle's
blue emergency lights were activated).
Again,
Plaintiff.
Defendant
got
Id. at 1:09-1:26.
out
of
his
truck
and
approached
Immediately after Defendant exited
his truck. Plaintiff asked Defendant ''are you stopping this truck?"
Id. at 1:12.
Defendant responded, "yes sir, I am."
Id. at 1:13.
Defendant then walked toward Plaintiff's driver-side window.
at 1:13-1:25.
Id.
When Defendant was approaching Plaintiff, Plaintiff
stated that he "didn't want to talk" to Defendant, that he "ain't
done nothing," again that he did not "want to talk to" Defendant,
that he "remain[s] silent" and
has not "done
nothing," and
requested that Defendant "keep [his] hands off his weapon."
he
Id.
When Defendant got to Plaintiff's truck, he asked Plaintiff for
his driver's license.
what he had just said.
Id. at 1:29.
Plaintiff repeated much of
Id. at 1:29-1:44.
Defendant then requested
twice that Plaintiff step out of Plaintiff's vehicle.
Id. at 1:44-
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 4 of 31
1:47.
Plaintiff responded by asking why Defendant wanted to see
his driver's license,
and
Defendant
responded, ''because
you're
sitting over here sleeping" before he was cut off by Plaintiff,
who stated that "sleeping's not a crime."
Id. at 1:47-1:53.
Defendant finally got Plaintiff to step out of the vehicle:
Defendant opened Plaintiff s door, and Plaintiff exited his truck
on his own power, without any assistance from Defendant.
1:58-2:07.
After
about
a
minute
of
back-and-forth
Defendant and Plaintiff, Defendant handcuffed Plaintiff.
2:07-3:10.
Id. at
between
Id. at
Defendant contended that he was putting Plaintiff in
handcuffs for Defendant's safety.
Id. at 3:06-3:10.
Defendant
retrieved Plaintiff's wallet from his pants pocket and removed his
driver's license from the
wallet.
Id. at 3:19-3:47.
called in the driver's license over his radio.
Defendant
Id. at 4:39-4:47.
Soon after. Defendant communicated to Plaintiff that he was "not
under arrest right now" but that he was only "being detained."
Id. at 5:10-5:13.
About a minute later. Defendant gave the second in a series
of
explanations
Plaintiff
because
that "the
you're
welfare."
for
his
encounter
reason
underneath
[he]
a
Id. at 6:20-6:25.
with
pulled
bridge.
I
Plaintiff,^
up
to
was
telling
[Plaintiff]
checking
on
was
your
Plaintiff interrupted Defendant at
2 The first explanation was that Plaintiff was "sitting over here
sleeping." Video at 1:47-1:53.
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 5 of 31
this
point,
vehicle.
before
Defendant
continued, ""I
You put it in drive and took off."
walked
up to the
Id. at 6:26-6:34.
A
little later. Defendant informed Plaintiff that his ''sleeping bag
was sitting on the back of the truck, too."
Plaintiff told
Defendant that
Defendant replied "okay."
after unhandcuffed.
he
Id. at 7:18-7:20.
was letting it dry off, and
Id. at 7:21-7:27.
Id. at 8:18-8:27.
Plaintiff was soon
Defendant then said, "if
you want to roll off that's fine, you might want to grab your
sleeping bag."
Id. at 8:48-8:52.
soon after drove away.
Plaintiff was free to go and
Id. at 10:14.
Throughout the encounter. Plaintiff's truck bed was covered
by a tarp.
Id. at 0:21.
The tarp did not sit down onto the
floorboard but was flat across the truck bed and even with the top
of the truck bed's siding; it appears that the tarp was laying on
top of a hard covering.
Id.
On top of the tarp was a sleeping
bag that was flat and unfurled, with the top of the sleeping bag
near the back window of the truck and the bottom near the truck's
tailgate.
Id. at 0:21, 2:45, 2:57.
Plaintiff s Injury Allegations
On August 21, 2017, six days prior to the encounter. Plaintiff
had a medical procedure to address a hernia.
Dkt. No. 21-1 S[ 33.
As part of the procedure. Plaintiff had sutures. Id. SI 34.
During
the encounter with law enforcement, at least some of the sutures
came out.
Id. SI 35.
Plaintiff testified that he suffered a week
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 6 of 31
or two of pain because the sutures pulled out during the encounter.
Dkt. No. 21-5 at 49.
Plaintiff did not know exactly when they
came out, but he testified that it was likely when he exited the
truck
at
Defendant's
insistence.
Id.
at
54.
Nevertheless,
Plaintiff exited his truck under his own power as Defendant did
not touch Plaintiff or aid him in anyway.
Dkt. No. 21-1 SI 16.
Plaintiff also testified that he suffered from emotional distress
due to the encounter.
Dkt. No. 21-5 at 52-53.
Plaintiff testified
that as a result of the encounter he was embarrassed, id. at 49,
traumatized, id. at 52, and shocked, id. at 57-58, and that during
the encounter he was afraid of getting shot, id. at 54.
Palmetto Berries
Brian Clavier is the Chief of Law enforcement for the Georgia
Forestry Commission.
Dkt. No. 44-2 SI 1.
One of his duties in
this role is to coordinate with the Georgia Department of Natural
Resources investigations into the unauthorized harvest of palmetto
berries in Georgia.
Id. SI 2.
Picking palmetto berries is not per
se illegal in Georgia; rather, unauthorized palmetto berry pickers
may violate Georgia's criminal trespass statute (O.C.G.A. § 16-721)
and
Georgia's
statute
(O.C.G.A. § 16-9-58).
for
Id. SI 3.
trespassing
on
DNR
property
Trespass and theft of berries on
state property primarily occurs in Waycross, Georgia, at Dixon
State Forest, which is several miles from Sidney Lanier Park in
Brunswick.
Id. SI 4.
Trespass and theft of berries on private
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 7 of 31
property occurs throughout the southeast region of Georgia.
Id.
Palmetto-berry-harvesting season is from August to October, and a
large amount of the theft occurs in August when the berries first
appear but before the authorized harvesters have begun to harvest.Id. 1 5.
The
Georgia
DNR
publishes
a
weekly
report
for
its
law
enforcement division that contains "a broad sampling of events
that have taken place in the past week."
Dkt. No. 44-4 at 2.
The
weekly report for the week of August 13—August 19, 2017, contains
a report of one ''palmetto berry bust." Id. at 8.
In Brantley/Ware
County, on August 14, 2017, a DNR officer contacted another DNR
officer and complained of illegal-palmetto-berry picking that was
taking place on state property.
Id. Two officers began patrolling
the area and came into contact with a passenger van that fit the
description given by the first officer.
Id.
The patrolling
officers initiated a traffic stop and found approximately 1800
pounds of palmetto berries.
Id.
The weekly report contains a
picture of large bags stuffed full of berries.
Id.
Plaintiff, acting pro se, filed this action to recover damages
and other compensation, which Plaintiff claims is owed to him under
42 U.S.C. § 1983.
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 8 of 31
LEGAL STANDARD
As an initial matter, it is well-settled that courts in this
circuit
must ''construe
pro
se
pleadings liberally."
Dixon
v.
Hodges, 887 F.3d 1235, 1237 (11th Cir. 2018).
Summary judgment is required where "the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
56(a).
the
Fed. R. Civ. P.
A fact is "material" if it "might affect the outcome of
suit
under
FindWhat.com,
the
658
governing
F.3d
1282,
law."
1307
FindWhat
(11th
Inv^r
Cir.
Grp.
v.
2011). (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
A
dispute is "genuine" if the "evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Id.
In
making this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.
Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
The movant must show the court
that there is an absence of evidence to support the nonmoving
party's case.
burden,
the
Id. at 325.
burden
If the moving party discharges this
shifts to
the
nonmovant to
go
beyond
the
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 9 of 31
pleadings and present affirmative evidence to show that a genuine
issue of fact does exist.
Anderson, 477 U.S. at 257.
The nonmovant may satisfy this burden in two ways.
First,
the nonmovant ^'may -show that the record in fact contains supporting
evidence, sufficient to withstand a directed verdict motion, which
was
^overlooked or ignored' by the moving party, who has thus
failed
to
meet
evidence."
the
initial
burden
of
showing
an
absence
of
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th
Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J.,
dissenting)).
additional
Second,
evidence
the
nonmovant ''may
sufficient
to
come
withstand , a
forward
directed
verdict
motion at trial based on the alleged evidentiary deficiency."
at 1117.
with
with
Id.
Where the nonmovant attempts to carry this burden instead
nothing
more
"than
a
repetition
of
his
conclusional
allegations, summary judgment for the [movant is] not only proper
but required."
Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir.
1981) (citing Fed. R. Civ. P. 56(e)).
DISCUSSION
"To
prevail
on
a
claim
under § 1983,
a
plaintiff
must
demonstrate both (1) that the defendant deprived her of a right
secured under the Constitution or federal law and (2) that such a
deprivation occurred under color of state law." Arrinqton v. Cobb
Cty., 139 F.3d 865, 872 (11th Cir. 1998), as amended (May 28,
1998).
Nevertheless, "the first step in any § 1983 analysis
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 10 of 31
requires identification of the precise right that is alleged to
have been violated.
Different rights prescribe different legal
analyses, so accurately diagnosing the right at issue is critical
to properly analyzing a § 1983 plaintiff's claims.
And correctly
diagnosing the precise right involved, in turn, demands careful
consideration of the alleged facts."
Alcocer v. Mills, 906 F.3d
944, 947 (11th Cir. 2018).
Plaintiff's Amended Complaint alleges that Defendant falsely
arrested
and
imprisoned
Plaintiff
in
violation
of
the
Fourth
Amendment, as incorporated by the Fourteenth Amendment, of the
United
States
applicable
to
Constitution.
the
States
''The
through
Fourth
the
Amendment,
Fourteenth
which
is
Amendment,
guarantees the right against unreasonable searches and seizures."
Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 n.l5 (11th
Cir. 2010) (citations omitted).
"There are three broad categories
of police-citizen encounters for purposes of our Fourth Amendment
analysis: (1) police-citizen exchanges involving no coercion or
detention; (2) brief seizures or investigatory detentions; and (3)
full-scale arrests.
With regard to the second category of police-
citizen encounters, the Fourth Amendment does not prohibit a police
officer in appropriate circumstances and in an appropriate manner
from approaching a person for purposes of investigating possible
criminal behavior, even though there is no probable cause to make
an arrest."
United States v. Partin, 634 F. App'x 740, 746 (11th
10
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 11 of 31
Cir. 2015) (citation omitted).
Recently, the Eleventh Circuit has
discussed a fourth category of police-citizen encounters: traffic
stops.
See United States v. Gibbs, 2019 WL 1050884, at *3 (11th
Cir. Mar. 6, 2019) (''Under the Fourth Amendment, a police officer
generally may lawfully detain an individual without a warrant if
(1) there is probable cause to believe that a traffic violation
has occurred (a traffic stop). . . ."))•
Because Defendant does
not argue, and the record contains no evidence, that a traffic
violation occurred, this category is not implicated in this case
(even though Plaintiff was pulled over while in his truck).
As described by the Eleventh Circuit, a full-scale arrest is
a different category of police-citizen encounter than a brief
seizure or investigatory detention, i.e., a Terry stop.
Ohio, 392 U.S.
1 (1968).
Terry v.
Each category requires a different
analysis for determining whether one's constitutional rights have
been violated.
Regarding the first category, i.e., a full-scale
arrest, a police officer violates the Constitution when he or she
arrests an individual without probable cause.
Jones v. Cannon,
174 F.3d 1271, 1283 (11th Cir. 1999) ("An arrest without probable
cause
is
officer
unconstitutional.").
violates
the
As
Constitution
to
the
when
individual without reasonable suspicion.
second
he
or
category,
she
detains
an
an
Jackson v. Sauls, 206
F.3d 1156, 1165 (11th Cir. 2000) ("[A]n officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop
11
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 12 of 31
when
the
officer
has
a
reasonable,
articulable
suspicion
that
criminal activity is afoot." (alteration in original) (quoting
Illinois V. Wardlow, 528 U.S. 119, 123 (2000))).
Here, Plaintiff
was told by Defendant that he was being stopped, so he was at the
very least detained.
The Court must determine, however, whether
he was arrested or not; this determination will shape the analysis
for whether Defendant violated Plaintiff's constitutional rights.
I.
Plaintiff was not Arrested, but was Briefly Seized as part of
an Investigatory Stop
The
Court
considers
four
nonexclusive
factors
when
determining whether a detention was a Terry stop or a full-scale
arrest: ''(1) the law enforcement purpose served by the detention;
(2)
the
diligence
investigation;
(3)
with
the
which
scope
the
and
officers
pursued
intrusiveness
investigation; and (4) the duration of the detention."
of
the
the
United
States V. Street, 472 F.3d 1298, 1306 (11th Cir. 2006) (citation
omitted).
''While restriction on freedom of movement is a factor
to be taken into account in determining whether a person is under
arrest, it alone is not sufficient to transform a Terry stop into
a de facto arrest."
United States v. Acosta, 363 F.3d 1141, 1147
(11th Cir. 2004).
The first factor is inconclusive because the law enforcement
purpose of the detention is unclear at this point in the record.
The reasons evolved well into briefing.
12
Throughout the detention,
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 13 of 31
Defendant
made
varying
Plaihtiff's detention.
sleeping.
Next,
statements
relating
to
the
purpose
of
First, Defendant stated that Plaintiff was
Defendant
stated
that
he
was
checking
on
Plaintiff s welfare and that when Defendant approached Plaintiff,
Plaintiff
drove
off.
Then,
Defendant
stated
that
Plaintiffs
''sleeping bag was sitting on the back of the truck, too."
at
7:18-7:20.
Defendant's
Later,
briefing
another
in
motive
opposition
to
has
been
Plaintiffs
Video
posited
motion
in
for
summary judgment and in support of Defendant's own motion for
summary judgment.
That is. Defendant now contends that he was
actually investigating whether Plaintiff was engaged in illegal-
palmetto-berry harvesting.
The last round of briefing indicates
that not long before the encounter with Plaintiff there was a
person arrested several miles away and a few counties over who
trespassed to pick such berries.
Given the ambiguity regarding
the law enforcement purpose of Plaintiff's detention, this factor
is, at best, inconclusive of whether the detention was a fullscale arrest or an investigatory stop.
Furthermore,
the
second
factor
is
inconclusive
because
without clarity as to the law enforcement purpose served by the
detention, the Court cannot determine the diligence with which
Defendant pursued the purpose of the investigation.
Even if the first two factors point to a full-scale arrest,
which they do not, the last two factors weigh heavily in favor of
13
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 14 of 31
an investigatory stop and thus require a finding of the same.
The
scope, intrusiveness, and duration of the detention make this a
Terry
stop
and
intrusiveness
intrusive
not
a
the
investigation
of
aspect
of
the
full-scale
arrest.
were
investigation
The
limited.
was
the
plate.
Plaintiff's driver's license
The
and
most
handcuffing
Plaintiff and removal of his wallet from his pants.
also radioed in
scope
of
Defendant
number and license
This was the limit of the investigation; Defendant did not
even ask Plaintiff if Defendant could search Plaintiff's truck or
sleeping bag.
Lastly, the entire encounter lasted around ten
minutes, and Plaintiff was only handcuffed for about five of these
minutes.
This is a short time frame, and the detention lasted as
long as necessary for Defendant to get back word on his radio that
Plaintiff
did
not
have
any
outstanding
warrants.
Thus,
the
detention was an investigatory stop and not a full-scale arrest.
II. Defendant is neither Entitled to Qualified Immunity nor Summary
Judgment at this Stage of the Case
Defendant argues that he is entitled to qualified immunity.
'"Qualified
immunity
protects
government
officials
performing
discretionary functions from suits in their individual capacities
unless their conduct violates 'clearly established statutory or
constitutional
known.'"
rights of
which
a
reasonable
person
would
have
Dalrymple v. Reno, 334 F.3d 991, 994 {11th Cir. 2003)
(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
14
For qualified
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 15 of 31
immunity to apply, the official must establish that ^^he was acting
within the scope of his discretionary authority when the allegedly
wrongful acts occurred."
McCullouqh v. Antolini, 559 F.3d 1201,
1205 (11th Cir. 2009) (citation omitted).
If Defendant shows he
was acting within the scope of his discretionary authority, then
the burden shifts to Plaintiff to ''show that: (1) the defendant
violated a constitutional right, and (2) this right was clearly
established at the time of the alleged violation."
Whittier v.
Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009) (quoting Holloman
V. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).
Also, the Court
is permitted to use its discretion to address the second qualifiedimmunity prong first, which it does here.
Poulakis v. Rogers, 341
F. App'x 523, 525 (11th Cir. 2009).
As
an
initial
matter.
Defendant
was
acting
within
his
discretionary authority throughout the encounter, and Plaintiff
has not argued otherwise.
Thus, the burden shifts to Plaintiff to
"show that: (1) the defendant violated a constitutional right, and
(2) this right was clearly established at the time of the alleged
violation."
Whittier, 581 F.3d at 1308.
The Court addresses the second prong, whether the right was
clearly established, first.
The second prong asks whether the law
enforcement officer had "arguable reasonable suspicion" to detain
the person as part of an investigatory stop; if the officer did
not,
then
the
officer
violated
15
clearly
established
law.
See
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 16 of 31
Poulakis V. Rogers, 341 F. App'x 523, 526 (11th Cir. 2009) (citing
Case
V.
wrongful
Eslinqer,
arrest
555
F.3d
cases,
we
established' prong as an
other
words,
we
have
1317,
1327
(11th
Cir.
have frequently framed
2009))
the
^clearly
^arguable probable cause' inquiry.
said
that
when
an
officer
("In
violates
In
the
Constitution because he lacked probable cause to make an arrest,
the officer's conduct may still be insulated under the second prong
of qualified immunity if he had ^arguable probable cause' to make
the
arrest.")).
Furthermore,
because
arguable
reasonable
suspicion is a lower standard than reasonable suspicion, if an
officer
did
not
have
arguable
reasonable
suspicion,
then
the
officer necessarily did not have reasonable suspicion.
Before determining whether Defendant had arguable reasonable
suspicion to detain Plaintiff, the Court must determine at what
point Plaintiff was detained, or "seized."
It is at that point in
time that Defendant must have had arguable reasonable suspicion
for the detention to be constitutional.
"Whether a
seizure
has
occurred depends on whether a reasonable person, in light of the
totality of the circumstances, would have believed that he was not
free to leave."
(11th
Cir.
United States v. Brown, 700 F. App'x 976, 978
2017).
As
the
United
States
Supreme
Court
has
recognized, the subjective intention of an officer to detain a
person had that person attempted to leave "is irrelevant except
insofar as that may have been conveyed to the [person]."
16
U.S. v.
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 17 of 31
Mendenhall, 446 U.S. 544, 554 n.6 (1980).
Likewise, the inquiry
is not whether Plaintiff believed he was free to leave but whether
a
reasonable
person
circumstances.
would
have
such
belief
under
the
same
Here, a reasonable person would not believe that
he is free to leave when a police officer approaches the person's
vehicle, hits the driver-side window of the vehicle when the person
drives away, immediately pursues the vehicle with the officer's
blue, emergency lights activated, exits the police vehicle, and
affirmatively answers that he is stopping the person's vehicle.
Thus,
when
Defendant
exited
his
vehicle
the
second
time
and
confirmed to Plaintiff that he was being stopped. Plaintiff was
^'seized" within the meaning of the Fourth Amendment.
Turning
analysis,
to
the
here,
established
at
second
the
the
prong
right
time
of
allegedly
of
the
the
qualified
violated
alleged
was
violation.
immunity
clearly
''A
law
enforcement official who reasonably but mistakenly concludes that
reasonable suspicion is present is still entitled to qualified
immunity.
When an officer asserts qualified immunity, the issue
is not whether reasonable suspicion existed in fact, but whether
the
officer
had
^arguable'
investigatory stop."
reasonable
suspicion
to
support
an
Jackson v. Sauls, 206 F.3d 1156, 1165-66
(11th Cir. 2000).
To
determine
suspicion
to
whether
conduct
an
an
officer
investigatory
17
had
arguable
stop,
reasonable
courts '"analyze
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 18 of 31
whether a reasonable officer could have believed that the [seizure]
comported with the Fourth Amendment."
Brent v. Ashley, 247 F.3d
1294, 1303 (11th Cir. 2001) (internal quotation marks and citation
omitted).
In other words, ^^[a]rguable reasonable suspicion exists
if a reasonable officer in the same circumstances and possessing
the same information could have believed that reasonable suspicion
existed."
Dowlinq v. City of Fort Lauderdale, Fla., 2013 WL 76301,
at *3 (S.D. Fla. Jan. 4, 2013) (citing Lee v. Ferraro, 284 F.3d
1188,
1195
(11th
Cir.
2002)).
^'In
undertaking
the
arguable
reasonable suspicion inquiry, this Court must examine the totality
of
the
circumstances
to
determine
whether
an
officer
had
a
^particularized and objective' basis to support his suspicion.
Whether
the
officer's
suspicion
ends
immaterial so long as it was reasonable."
up
being
mistaken
is
Whittier, 581 F.3d at
1309 (11th Cir. 2009) (citations omitted). ''Because the objective-
reasonableness
test
applies
to
Fourth
Amendment,
qualified-
immunity analysis, courts do not speculate as to what government
officials
subjectively
thought
but
assess
their
actions
for
objective reasonableness under established constitutional law."
United States v. Lewis, 674 F.3d 1298, 1315 (11th Cir. 2012).
Defendant,
in
his
supplemental
brief,
argues that
he
had
arguable reasonable suspicion that Plaintiff had trespassed to
pick palmetto berries based on "the time of year (a very short
harvesting season when DNR officers are specifically patrolling
18
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 19 of 31
for illegal harvesting), the location of the encounter (a region
of
the
State
that
is
specifically
patrolled
for
illegal
harvesting), the presence of what appeared to be a ^large cloth
bag sticking up from the bed of his pickup truck, which appeared
to be the type of bag that is used in the illegal harvesting,' and
then also [Plaintiff]'s flight upon
approach."
noticing
Defendant Brady's
Dkt. No. 44 at 4 (quoting Dkt. No. 21-3 SI 10).
According to the Defense, anyone in Southeast Georgia with a
bag in their pickup truck during palmetto-berry-picking season can
be stopped.
10:18:02.
Motions Hearing on February 19, 2019, at 10:16:44Wrong.
The Court is well aware of just how low a
standard ^^arguable reasonable suspicion" is.
However, a
walk
through all of the factors shows that law enforcement are not
immune from detaining anyone in Southeast Georgia who has a bag in
a pickup truck.
First, the observance of an unfurled, flattened sleeping bag
in the bed of a parked truck in a public park in the middle of the
day is
not a
particularized
and objective
basis establishing
reasonable suspicion of criminal activity—no matter what berry-
picking
season
it
is.
Defendant
offers
no
basis
for
why
Defendant's sleeping bag appeared ""to be the type of bag used by
illegal palmetto harvesters,"
dkt. no. 21-2 at 10, except for the
fact that it was large enough to hold berries.
Along this line,
even if it were common knowledge that palmetto-berry harvesters
19
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 20 of 31
store illegally harvested berries in sleeping bags (which it is
not), Defendant has not stated why he had a particularized and
objective
basis
for
flattened
sleeping
believing
bag
that
harbored
Plaintiff's
illegally
unfurled
harvested
and
palmetto
berries.
In fact, Defendant implicitly admitted at oral argument that,
other than the fact that the sleeping bag could hold berries, there
was nothing suspicious about the sleeping bag.
difficult
changing
to
evaluate
reasons
were
Defendant's
offered
for
position
the
Notably, it is
because
stop.
so
many
Nevertheless,
Defendant's counsel stated at oral argument that the traffic stop
was terminated because Defendant did not see any berries or twigs
that might signify that berries were stored in the sleeping bag.
The sleeping bag, as shown by the video, was in the same position
when Defendant first approached Plaintiff and observed—from an
arms-length away (as evidenced by Defendant hitting Plaintiff's
^window)—Plaintiff drive forward.
Therefore, Defendant's purported
justification for investigating should have been dispelled when he
initially approached Plaintiff's truck and saw no evidence of berry
picking.
Under these facts. Defendant's observation of a sleeping
bag during palmetto-berry-picking season in Southeast Georgia was
not
a
particularized
and
objective
criminal activity was afoot.
20
basis
for
believing
that
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 21 of 31
Second, Defendant argues that the sleeping bag in the truck
bed during palmetto-berry-picking season in Southeast Georgia in
conjunction
with
approached
Plaintiff
him
driving
establishes
away
arguable
when
Defendant
reasonable
first
suspicion.^
Defendant's position places citizens between a rock and a hard
place and cuts against the Fourth Amendment's guarantee of freedom
from
unreasonable
searches
and
seizures.
Again,
Defendant's
argument is that during the month of August any person with a bag
and a pickup truck is subject to being stopped by police if they
choose to
drive
Amendment
and
within
clearly
two
counties
established
of
law
Waycross.
The
interpreting
it
Fourth
do
not
support such a breathtaking intrusion by law enforcement.
The
fact
that
Plaintiff
drove
away
from
Defendant
when
Defendant walked up to Plaintiff's driver-side window is not enough
^ Defendant states that Plaintiff ''abruptly drove away" when
Defendant first approached him. Dkt. No. 21-2 at 4. When asked
at
oral
argument
to
explain
the
reasoning
behind
this
characterization. Defendant stated that when Plaintiff was pulling
away there was a loud noise consistent with somebody pulling away
very quickly.
While the video does contain a loud noise when
Plaintiff moved forward, the loud
noise is
not from Plaintiff
driving over an unidentifiable object, but from Defendant smacking
Plaintiff's window with his hand.
Further, the video shows that
Plaintiff drove away at an insignificant pace: Plaintiff's truck
did not lurch forward; his tires did not squeal; nor was there any
other indication that Plaintiff drove away "abruptly."
Rather,
Plaintiff's brake lights were on for the three seconds that the
video showed Plaintiff driving off, which is consistent with
someone driving away at a non-significant speed.
21
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 22 of 31
to establish arguable reasonable suspicion.
See Fla. v. Bostick,
501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991)
(''We have consistently held that a refusal to cooperate, without
more, does not furnish the minimal level of objective justification
needed for a detention or seizure.''); Fla. v. Royer, 460 U.S. 491,
498 (1983) (plurality opinion) (stating that a person approached
by a police officer "need not answer any question put to him;
indeed, he may decline to listen to the questions at all and may
go on his way," and that the person approached "may not be detained
even momentarily without reasonable, objective grounds for doing
so; and his refusal to listen or answer does not, without more,
furnish those grounds"); WBY, Inc. v. DeKalb Cty., Georgia, 695 F.
App'x 486, 493 (11th Cir. 2017) ("Georgia law clearly provides
that citizens have no freestanding obligation to comply with a
police officer's requests when the officer is not discharging a
lawful duty.
without
For example, when an officer detains an individual
reasonable
suspicion,
the
citizen
is
free
to
ignore
requests and/or to walk away, and ... no charge of obstruction
[will]
lie."
(internal
quotation
(alteration in original));
marks
and
citation
omitted)
U.S. v. Marcelino, 736 F. Supp. 2d
1343, 1348-51 (N.D. Ga. 2010) (finding no reasonable suspicion
when defendant was walking in a well-known, high-crime gang area
and
immediately
walked
enforcement agents).
away
when
approached
by
federal
law
Defendant did not have arguable reasonable
22
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 23 of 31
suspicion to detain Plaintiff at that point in time, nor at any
other point during the encounter.
could
find
that
Defendant
Accordingly, a reasonable jury
violated
Plaintiff's
constitutional
right to be free from unreasonable seizures.
Defendant's initial brief cites two cases for the proposition
that
Plaintiff's
detention
materially distinguishable.
was
constitutional.
cases
323 F.3d 1298 {11th Cir.
Thus, the Eleventh Circuit viewed the facts in the light
most favorable to the government.
defendant
was
in
''a
problem
There, the court found that the
area,
at
night,
underneath
loitering sign" and took flight when approached by officers.
at 1301.
are
First, U.S. v. Franklin was an appeal
of a denial of a motion to suppress.
2003).
Both
a
no
Id.
The court noted that the defendant took """flight" which
was ""particularly suspicious" because he ""ran away at full speed
as soon
as
he saw
the officers."
Id. at 1302.
Further, the
""duration" of the flight was also significant: the defendant ran
behind a building, ""climbed a fence, sprinted across a parking lot
and began to scale a second fence."
Id.
The distinctions present
in this case are clear.
The second case. United States v. Willis, is also materially
distinguishable.
759 F.2d 1486 (11th Cir. 1985).
There, law
enforcement had reason to believe that a private plane landing
late at night at a small airport in a rural area used primarily by
private aircraft was loaded with substantial quantities of drugs.
23
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 24 of 31
Id. at 1490-91.
The defendant approached the small, rural airport
late at night in a taxi cab.
Id. at 1492.
The defendant stepped
out of the cab, saw police officers and police cars around the
private
plane,
made
eye
contact
with
a
police
officer,
immediately got back in the cab and left the airfield.
1492.
Here, Plaintiff's exit was notably different.
and
Id. at
Further, the
circumstances surrounding the defendant's flight in Willis were
very suspicious.
Here, they were not.
Plaintiff was sitting in
a parked truck, in a public park, in the middle of the day.
As
detailed earlier. Defendant had no reason to believe that Plaintiff
was engaged or about to be engaged in illegal activity.
In his supplemental brief. Defendant sets forth one more case
in an attempt to establish arguable reasonable suspicion, Hargis
V. City of Orlando, Fla., 586 F. App'x 493 {11th Cir. 2014).
There
an officer was on patrol along International Drive in Orlando,
Florida.
Id. at 4 94.
The patrol was part of an operation to
address a recent string of commercial burglaries that were taking
place along International Drive in the early morning hours.
Id.
At approximately 1:00 a.m. or 2:00 a.m., the officer observed the
plaintiff drive slowly from the back of a closed restaurant on
International Drive to the front of the restaurant and then turn
around and head back the way he had come.
Id.
After observing
these actions, the officer activated his lights and pulled the
plaintiff
over.
Id.
The
Eleventh
24
Circuit
found
arguable
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 25 of 31
reasonable suspicion based on the facts that: ^^Officer Springer
observed a
car driving slowly from
behind a
closed commercial
building to the front of the building in the early morning hours
in
an
area
burglaries.
he
knew
to
have
experienced
a
recent
string
of
Hargis also changed direction and headed back the way
he had come, essentially making a full lap of the parking lot."
Id. at 499.
The present facts stand in sharp contrast to those in Hargis.
Plaintiff here was many miles away from the one berry incident of
record.
A flattened sleeping bag in a truck bed, without more,
does not indicate that the driver trespassed on land to illegally
pick berries.
In short, Hargis is materially distinguishable.
For these reasons. Defendant's Motion for Summary Judgment
with respect to qualified immunity is due to be DENIED.
Ill. Plaintiff and Defendant are not Entitled to Summary Judgment
To state a claim under 42 U.S.C. § 1983, Plaintiff must prove:
''(1) that the conduct complained of was committed
by a
person
acting under color of state law; and (2) that the conduct deprived
a person of rights secured by the Constitution or law of the United
States."
(11th
Morrison v. Washington Cty., Ala., 700 F.2d 678, 682
Cir.
1983).
In
addition,
the
causation
and
damages
requirements of common law tort claims apply to § 1983 claims.
''The Constitution is the substantive fuel powering § 1983, but its
mechanical structure is similar to the common law
25
of Torts.
As
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 26 of 31
with any common law tort, Plaintiff must establish an adequate
causal link
conduct."
between the
alleged
harm and the
alleged
unlawful
Dixon v. Burke Cty., Ga., 303 F.3d 1271, 1274-75 (11th
Cir. 2002) (citations omitted).
F.3d 1156, 1168 (11th
See also Jackson v. Sauls, 206
Cir. 2000)
(''[W]e are guided
by certain
common law tort principles of damages and causation which apply in
this § 1983 context.").
""For damages to be proximately caused by
a constitutional tort, a plaintiff must show that, except for that
constitutional tort, such injuries and damages
occurred
and
reasonably
further
that
foreseeable
omissions in issue."
such
injuries
consequences
of
and
the
Jackson, 206 F.3d at 1168.
would
damages
tortious
not
have
were
acts
the
or
Even if Plaintiff
cannot establish actual damages. Plaintiff ""may recover nominal
damages."
Kelly v. Curtis, 21 F.3d 1544, 1557 (11th Cir. 1994).
Turning to the issues of causation and damages, neither side
is entitled
to
summary judgment at this
point.
The Eleventh
Circuit has recognized that ^^[i]n addition to damages based on
monetary loss or physical pain and suffering, under the law a
§ 1983 plaintiff also may be awarded compensatory damages based on
demonstrated
mental
and
emotional
distress,
reputation, and personal humiliation."
F.3d 1225, 1231 (11th Cir. 2000).
impairment
of
Slicker v. Jackson, 215
Here, Plaintiff testified that
he suffered physical pain and suffering from his sutures coming
out
during
the
encounter.
Plaintiff
26
also
testified
that
he
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 27 of 31
suffered
emotional
distress
as
a
result
of
the
encounter.
In
response. Defendant argues that Plaintiff cannot establish that
Defendant was the proximate cause and cause-in-fact of Plaintiff s
physical and emotional distress damages.
record,
a
reasonable
jury
could
find
Because, based on this
for
either
Defendant
or
Plaintiff on the issue of causation regarding the alleged physical
pain and suffering damages and on the issues of the existence and
amount of emotional distress damages, neither party is entitled to
summary judgment on these issues.
Viewing the evidence in the light most favorable to Defendant,
Plaintiff has not shown as a matter of law that Defendant was the
cause-in-fact of Plaintiffs sutures being pulled out.
First,
Plaintiff does not know when the sutures got pulled out.
Second,
Defendant had limited physical contact with Plaintiff.
handcuffing and
Other than
unhandcuffing Plaintiff and taking Plaintiffs
wallet from Plaintiffs pocket. Defendant did not have physical
contact with Plaintiff.
Viewing the evidence in the light most
favorable to Defendant, then, a reasonably jury could find that
Plaintiff s sutures were naturally pulled out at some point during
the encounter and that the sutures more likely than not would have
been pulled out whether or not the encounter with Defendant had
occurred.
In other words, because a reasonable jury could find
that Defendant did not force Plaintiff to do anything out of the
ordinary, a reasonable jury could also find that it was more likely
27
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 28 of 31
than not that the sutures were so loose that they would have been
pulled out with or without the encounter with Defendant.
Furthermore, viewing the evidence in the light most favorable
to Defendant, based on this record a reasonable jury could find
that
Plaintiff
damages.
has
not
adequately
proven
emotional
distress
Other than Plaintiff's testimony that he was embarrassed,
traumatized, shocked, and afraid of getting shot. Plaintiff has
not
provided
evidence
of
mental
or
emotional
distress.
In
addition, the Court is unable to award Plaintiff emotional distress
damages as a matter of law, because Plaintiff has not proven the
amount of these damages as a matter of law.
Accordingly, whether
Plaintiff is entitled to emotional distress damages, and if so,
how much compensation Plaintiff is entitled to, are matters to be
determined by a jury.
Turning
to
Defendant's
Motion
for
Summary
Judgment,
a
reasonable jury could find that Defendant was the cause-in-fact
and proximate cause of physical pain and suffering stemming from
Plaintiff's sutures being pulled out.
First, a reasonable jury
could determine that Defendant forcing Plaintiff out of his truck
caused
Plaintiff
to
sutures to pull out.
exit
his
truck
in
a
manner
that
caused
the
Plaintiff testified that the sutures likely
got pulled out when Plaintiff exited his truck; a reasonable jury
could agree with this testimony.
And although Plaintiff had to
exit his truck at some point (he was not going to spend the rest
28
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 29 of 31
of his life in it), a reasonable jury could find that without
Defendant forcing Plaintiff out of the truck, it is more likely
than not that Plaintiff would
have exited the truck in a manner
that would not have pulled out the sutures.
Thus, a reasonable
jury could find that Defendant was the cause-in-fact of Plaintiff's
sutures
being
pulled
out.
Turning
to the
emotional
distress
damages, a reasonable jury could believe Plaintiff's testimony
that
he
suffered
emotional
distress
because
of
Defendant's
unlawful actions.
Further, a reasonable jury could find that Defendant was the
proximate
cause
of
Plaintiff's
sutures
being
pulled
out
and
Plaintiff's emotional distress (if Plaintiff suffered any).
To
establish proximate cause, the plaintiff must show that ^'the injury
or damages was a reasonably foreseeable consequence of the act or
omission."
Jackson, 200 F.3d at 1168 n.l6.
jury could
find
that forcing
someone
aggravate that person's injuries.
Defendant's
reasonable
ability
to
suspicion
do
that
his
out
First, a reasonable
of
a
vehicle
could
Such a finding does not impact
job,
Plaintiff
because
was
if
engaged,
Defendant
or
about
had
to
engage, in criminal activity, then Defendant would be immune from
liability for aggravating injuries when forcing suspects out of
vehicles.
But
here.
Defendant
is
not
entitled
to
qualified
immunity and a reasonable jury could find that Defendant's actions
could foreseeably aggravate pre-existing medical conditions.
29
The
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 30 of 31
situation was tense, and Plaintiff testified that Defendant had
his
hand
on or
Plaintiff
near
from
the
his gun at many points prior to ordering
truck.
Under
these
circumstances,
it
is
reasonable to infer that a person would not exit his or her vehicle
as cautiously as he or she normally would, causing injuries to be
aggravated.
Thus, a reasonable jury could find proximate cause
regarding Defendant's actions and Plaintiff's physical pain and
suffering.
with
Second, a reasonable jury could find proximate cause
regard
Plaintiff.
to
any
emotional
or
mental
distress
suffered
by
A reasonable jury could find that a foreseeable result
of detaining a person without reasonable suspicion is that the
person may suffer emotional or mental distress.
Finally,
a
reasonable
jury
could
believe
Plaintiff's
testimony that he suffered pain and suffering as a result of his
sutures being pulled out and that he suffered emotional distress
from the encounter.
If a reasonable jury finds either of these
things, then it could also reasonably award Plaintiff compensatory
damages.
Because neither Plaintiff nor Defendant can prove causation,
or the lack thereof, and damages, or the lack thereof, as a matter
of law, both parties' motions for summary judgment are due to be
DENIED.
30
Case 2:18-cv-00022-LGW-BWC Document 47 Filed 03/19/19 Page 31 of 31
CONCLUSION
For these reasons. Plaintiff's motions for summary judgment,
dkt. nos. 5, 19, and Defendant's Motion for Summary Judgment, dkt.
no. 21, are DENIED.
SO ORDERED, this 19th day of March, 2019.
HON.^ISA^ GOBBE^ WOOD," JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN
A0 72A
(Rev. 8/82)
31
DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?