Russell v. City of Magee, Mississippi et al
ORDER granting in part and deferring in part 25 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 3/26/2013. (AC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 3:11-CV-637-CWR-LRA
CITY OF MAGEE, MISSISSIPPI;
OFFICER JOE ANDREWS;
OFFICER BRAD WHITE
Before the Court is the defendants’ motion for summary judgment. Docket No. 25. The
plaintiff has responded, Docket No. 28, the defendants have replied, Docket No. 32, and the matter
is ready for review. The motion will be granted in part and deferred in part.
Factual and Procedural History
The facts of this case are largely undisputed. What follows is drawn from the briefs, the
municipal court proceedings, and two videos recorded by the defendants’ respective vehicle
On August 25, 2009, plaintiff Neil Russell and a friend finished lunch at the China Buffet
restaurant in Magee, Mississippi. They left the restaurant and got into Russell’s vehicle; Russell
began to drive away. While still in the parking lot, a City of Magee Police Department vehicle
activated its blue lights and stopped them.
Officer Brad White approached the passenger side, placed Russell’s friend under arrest, and
moved the friend into a patrol car. Meanwhile, Officer Joe Andrews approached the driver’s side
and took Russell’s driver’s license to run a search. Officer White, returning to the passenger side of
the vehicle, advised Russell that the friend had a warrant out for his arrest2 and started to question
Russell about whether he had ever been arrested. While they talked, Officer Andrews returned, again
to the driver’s side.
Unfortunately, the videos contain substantial gaps in the audio, such that most of the parties’ verbal
exchanges cannot be heard. Officer White speculated that the error could have been caused by interference from a
tractor-trailer parked next to the police vehicles, or perhaps was due to the Magee Police Department’s “not the most
up-to-date camera system.” Docket No. 28-1, at 17, 29.
The warrant was for failure to appear in court.
Officer White then asked Russell for proof of insurance. Upon learning that his firstproffered insurance card was expired, Russell reached over to open the glove compartment, arguably
to search for an updated insurance card.
The glove compartment also contained a handgun. When Russell opened the glove
compartment, Officer White saw the handgun and thought Russell was reaching for it. Officer White
grabbed Russell’s hand and shouted for assistance from Officer Andrews, who pulled Russell out
from the vehicle on the driver’s side, then stunned him with his taser.3 Both officers then fired taser
probes at Russell, causing him to fall to the ground.
The parties disagree about why Russell was tased. In his complaint, Russell claimed he was
still “trying to ascertain what was going on” when Officer Andrews stunned him, said he turned his
body in reaction to the stun, and was fired at with taser probes – needlessly, he implies. Docket No.
1, at 3-4. In contrast, the Officers have testified that Russell refused their orders to get on the ground,
tried to get Officer Andrews’ taser, and was tased because he was physically struggling with them.
Docket No. 25-1, at 7 (trial testimony of Officer White); id. at 14-15 (trial testimony of Officer
Regardless, Russell was arrested and charged with disorderly conduct and resisting arrest.
On June 15, 2010, the charges were dismissed at trial in the Municipal Court of Magee.4
On October 13, 2011, Russell filed this suit against the City of Magee, Officer Andrews, and
Officer White. Id. at 1. Russell alleged that the Officers lacked probable cause to detain him after
arresting his friend, used excessive force against him, and were not appropriately trained and
supervised by the City of Magee, among other theories of liability. Id. at 4. Russell’s specific causes
of action included 42 U.S.C. § 1983 and malicious prosecution. Id. at 5-8.
Standard of Review
Summary judgment is appropriate when “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.” Fed. R. Civ. P.
56(a). A party seeking to avoid summary judgment must identify admissible evidence in the record
Evidence reveals a distinction between using a taser to “stun” a person – that is, to provide an “immediate
shock” to the body for “compliance” – and using a taser to fire cartridges at a person. See Docket No. 28-1, at 13.
After the prosecution rested, the court dismissed the charges because the prosecutor failed to have either
of the arresting officers identify Russell in the courtroom. Docket No. 25-1, at 19-20.
showing a fact dispute. Id. at 56(c)(1). The Court views the evidence and draws reasonable
inferences in the light most favorable to the non-movant. Maddox v. Townsend and Sons, Inc., 639
F.3d 214, 216 (5th Cir. 2011) (citation omitted).
Omissions in Russell’s briefing indicate that he has abandoned his claims against the City
of Magee, his state law claims, and some of his federal theories of relief. What remains is whether
Russell has sued the Officers in their individual capacities, and if so whether the Officers are entitled
to qualified immunity on Russell’s Fourth Amendment claims.
Official Versus Individual Capacity
“[I]f it is not clear from allegations of the complaint whether a defendant has been sued in
his official or individual capacity, the court must look to the substance of the claims, the relief
sought, and the course of the proceedings to determine in which capacity the defendant is sued.”
Senu-Oke v. Jackson State Univ., 521 F. Supp. 2d 551, 556 (S.D. Miss. 2007) (citations omitted).
In that case, although the complaint was “not particularly illuminating,” the court determined that
the plaintiff intended to sue the defendants in their individual capacities because the complaint
sought monetary relief, which was not available against the defendants in their official capacities
since Jackson State University is an arm of the State of Mississippi. Id. at 557.
Here, the substance of Russell’s complaint did not conclusively show that he brought
individual capacity claims. While Russell articulated a classic Fourth Amendment violation fact
pattern, he did not explicitly say that the Officers were sued in their individual capacities. Docket
The relief sought also did not clearly indicate an individual capacity claim. Unlike in SenuOke, where money damages could be sought only against individual-capacity defendants, Russell’s
request for monetary damages does not resolve the issue here because monetary damages were
available against the City of Magee. Of potential interest, however, is Russell’s prayer for damages
against the defendants “jointly and severally.” Docket No. 1, at 9. That is suggestive of individual
capacity liability because a judgment against the Officers in their official capacities would have
merged with the City’s own liability, making joint and several liability unnecessary.
As for the course of the proceedings, the defendants certainly anticipated that Russell’s
claims could have been brought against the Officers in their individual capacities, since their
artfully-worded answer included the following affirmative defense: “To the extent Plaintiff alleges
any claim against Joe Andrews and Brad White in their individual capacities, each is entitled to
qualified immunity.” Docket No. 3, at 1. The defendants obviously have not been prejudiced by
Russell’s ambiguous complaint. But the defendants should not be punished for preserving all
possible defenses at the earliest stage possible.
The Court will hear argument on this issue, requesting that the parties focus on whether the
rest of the proceedings adequately supported that Russell’s claims were brought against the Officers
in their individual capacities.
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quotation marks and citation omitted). “This immunity protects all but the plainly incompetent or
those who knowingly violate the law, so we do not deny immunity unless existing precedent must
have placed the statutory or constitutional question beyond debate.” Morgan v. Swanson, 659 F.3d
359, 371 (5th Cir. 2011) (quotation marks and citations omitted).
At the summary judgment stage, the Court must determine (1) “whether, viewing the
summary judgment evidence in the light most favorable to the plaintiff, the defendant violated the
plaintiff’s constitutional rights,” and (2) “whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in question.” Freeman v.
Gore, 483 F.3d 404, 410 (5th Cir. 2007) (citations omitted). In determining whether a defendant’s
actions were objectively unreasonable, the Court considers “the viewpoint of a reasonable official
in light of the information then available to the defendant and the law that was clearly established
at the time of the defendant’s actions.” Id. at 411.
Russell’s Fourth Amendment theories of liability are (1) whether he was unlawfully detained,
(2) whether he was subjected to excessive force, and (3) whether he was falsely arrested. There is
no doubt that in August 2009, the relevant law in each of these three areas was clearly established.
See, e.g., Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009). As a result, the below discussion
focuses on whether the Officers’ conduct was objectively unreasonable.
Russell claims he was unlawfully seized by the Officers in violation of the Fourth
Amendment when they refused to let him leave the parking lot after arresting his passenger. Docket
No. 29, at 7-11. The Officers had accomplished their goal, he says, by apprehending his friend and
placing the friend in a police vehicle. Russell further contends that the Officers lacked reasonable
suspicion or probable cause to detain him, and could not request his insurance card, because he had
committed no traffic violation and because the stop was not a “roadblock.” Id. at 9 (citing Miss.
Code § 63-15-4). He adds that his handgun was lawfully present in his vehicle. Id. at 10 (citing Miss.
Code § 97-37-1).
The Officers argue that they had a right to question Russell after arresting his friend. Docket
No. 26, at 13-14. The cases they cite for that proposition, though, hold that law enforcement officers
may lawfully question a driver when the driver is pulled over for a traffic violation. E.g., United
States v. Brigham, 382 F.3d 500, 504 (5th Cir. 2004) (en banc) (driver pulled over for following too
closely); United States v. Grant, No. V-05-151, 2007 WL 677636, *4 (S.D. Tex. Feb. 28, 2007)
(driver pulled over for failure to maintain lane).
In this case, it is undisputed that Russell did not commit a traffic violation. Docket No. 28-1,
at 7 (testimony of Officer White). At Russell’s municipal court trial, for example, Officer White
testified that the only reason for the stop was to arrest Russell’s passenger. Id. Officer White
explained that he had questioned Russell “to make sure his insurance was valid and make sure he
wasn’t wanted.” Id. at 18. The Officer maintained that he had the authority to ask for the insurance
information because Russell “had been detained for the reason of arresting [the passenger].” Id. at
19-20. When pressed, Officer White then said Russell was pulled over for “reasonable suspicion,”
but could not articulate what Russell was suspected of doing. Id. at 20.
“Pursuant to Terry, the legality of police investigatory stops is tested in two parts. Courts
first examine whether the officer’s action was justified at its inception, and then inquire whether the
officer’s subsequent actions were reasonably related in scope to the circumstances that justified the
stop.” Brigham, 382 F.3d at 506 (citation omitted). “This is because a detention must be temporary
and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable
suspicion, supported by articulable facts, emerges.” Id. at 507 (citations omitted). Restated, “a traffic
detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including
the resolution of reasonable suspicion, supported by articulable facts within the officer’s
professional judgment, that emerges during the stop.” Id. at 512. “In a garden variety Terry stop, the
nature of the questioning during a later portion of the detention may indicate that the justification
for the original detention no longer supports its continuation.” United States v. Shabazz, 993 F.2d
431, 436 (5th Cir. 1993).
During this inquiry the Court is to focus on “reasonableness” under all the circumstances,
“giving due regard to the experience and training of the law enforcement officers.” Brigham, 382
F.3d at 507. “Reasonableness requires a balancing of the public interest with an individual’s right
to be free from arbitrary intrusions by law enforcement.” Id. (citation omitted).
There is no dispute that the Officers were entitled to stop Russell’s vehicle to arrest his
passenger. There is a dispute, however, as to whether the Officers’ subsequent actions went beyond
those reasonably necessary to effectuate the purpose of the stop. The Officers had successfully and
safely made their arrest without incident. Having accomplished their mission, it is not clear why they
needed to reapproach Russell. The Officers admitted that Russell had broken no laws and committed
no traffic violations. Nor was it appropriate to request proof of insurance, since Mississippi law
provides that “no driver shall be stopped or detained solely for the purpose of verifying that an
insurance card is in the motor vehicle unless the stop is part of such roadblock.” Miss. Code § 63-154(3). This was not a roadblock.
The videos show that Officer White was unsatisfied with Russell’s answers regarding his
arrest history, even though Russell admitted he had been arrested for DUI years ago.
Notwithstanding that response, Officer White then directed Officer Andrews to “run a 31,” saying,
“apparently he [Russell] can’t understand what I’m talking about here.” Officer Andrews then
relayed a radio message to “run a 31 on that.”5
It is not entirely clear on this record what “run a 31” means,6 but it is evident that the
detention was prolonged because of Officer White’s dissatisfaction with Russell’s answer. And yet
at the underlying criminal trial, Officer White could not articulate any reasonable suspicion
justifying prolonging Russell’s detention. See United States v. Ibarra-Sanchez, 199 F.3d 753, 758
This is shown on the second video, which may have been taken from Officer Andrews’ vehicle.
Officer Andrews’ testimony suggests that it was a criminal history search. Docket No. 25-1, at 14.
(5th Cir. 1999) (“Officers must base their reasonable suspicion on specific and articulable facts, not
merely inarticulate hunches of wrongdoing. Moreover, the facts giving rise to reasonable suspicion
must be judged against an objective standard.”). Officer White’s questions to Russell reinforce that
there was no articulable reason to detain Russell after his passenger had been arrested, and may
instead suggest that the Officers were looking for a reason to arrest Russell. E.g., United States v.
Valadez, 267 F.3d 395, 398 (5th Cir. 2001) (“there is simply no evidence to support a claim of
reasonable suspicion beyond that which led to the initial stop. Further detention was not lawful after
the point at which the purposes of the stop was resolved”). That will depend on how the evidence
at trial falls out.
Under all these circumstances, the Court cannot conclude that the detention of Russell was
objectively reasonable or unreasonable. Summary judgment will therefore be denied on this claim,
if and only if Russell is determined to have brought individual capacity claims against the Officers.
It is “well settled that if a law enforcement officer uses excessive force in the course of
making an arrest, the Fourth Amendment guarantee against unreasonable seizure is implicated.”
Hunter v. Town of Edwards, 871 F. Supp. 2d 558, 564 (S.D. Miss. 2012) (quotation marks and
citation omitted). “In order to succeed on a § 1983 claim that the defendants violated his Fourth
Amendment right against excessive force, a plaintiff must show that he was seized and that he
suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to
the need and that (3) the force used was objectively unreasonable.” Ballard v. Burton, 444 F.3d 391,
402 (5th Cir. 2006) (quotation marks and citations omitted). Here, because the parties’ briefing
suggests no dispute as to element one, the Court focuses on the second and third elements of the
excessive force standard.
“To gauge the objective reasonableness of the force, we must balance the amount of force
used against the need for force.” Carnaby v. City of Houston, 636 F.3d 183, 187-88 (5th Cir. 2011)
(quotation marks and citation omitted). “The reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Ballard, 444 F.3d at 402 (quotation marks and citation omitted). “The test for
‘reasonableness’ on a Fourth Amendment excessive force claim requires careful attention to the facts
and circumstances of each particular case, including the severity of the crime at issue, whether the
subject poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Hunter, 871 F. Supp. 2d at 564 (quotation
marks and citation omitted). Whether the force used was objectively reasonable is a question of law
for the Court to resolve. Carnaby, 636 F.3d at 188; see Kinney v. Weaver, 367 F.3d 337, 346 (5th
Cir. 2004) (en banc).
The Court has reviewed the videotapes of the stop in accordance with the Supreme Court’s
admonition to “view the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372,
381 (2007); see Carnaby, 636 F.3d at 187 (“we assign greater weight, even at the summary
judgment stage, to the facts evident from video recordings taken at the scene”).
The videos show that the Officers used force in approximately three stages. The first was
when Officer White pushed and Officer Andrews pulled Russell out of his vehicle, in response to
his perceived attempt to reach for a handgun in the glove compartment. The second stage was when
Officer Andrews used his taser to stun Russell in the small of Russell’s back. The third and final
stage was when the Officers each fired taser cartridges, or probes, at Russell, causing him to fall to
Considering the first stage, the Officers’ use of force to distance Russell from his handgun
is entitled to qualified immunity. We will never know whether Russell intentionally reached for his
firearm or instead merely failed to disclose that a firearm was in a compartment he was about to
open, which may have prevented this situation from developing at all.7 It does not matter. The
Officers’ pushing and pulling of Russell to get him out of his vehicle was neither excessive nor
Regarding the second stage, the videos cast doubt on the propriety of Officer Andrews’ use
of a taser to stun Russell upon his removal from the vehicle. The videos show Russell standing next
to his truck bed, so it is true that Russell was not on the ground, contrary to the Officers’8 commands
According to one of the videos, when Russell is being pushed/pulled out of his vehicle, he says, “hell, I
didn’t even know . . . .” The excited utterance may suggest that he did not knowingly reach for his firearm. But
whether Russell knew there was a gun in his glove compartment is not material to whether the Officers’ were
entitled to use reasonable force to separate him from that weapon, for their own safety. They were.
There is a dispute in the papers about whether one or both Officers made the specific command. Although
the videos are not conclusive, it appears that only Officer White, who was farthest away from Russell, shouts to
Russell to get on the ground. Officer Andrews, who was standing immediately next to Russell, does not appear to
to “get on the ground.” And it is well-established that “Officers may consider a suspect’s refusal to
comply with instructions during a traffic stop in assessing whether physical force is needed to
effectuate the suspect’s compliance.” Deville, 567 F.3d at 167 (citations omitted).
On the other hand, it also is relevant that when Russell was tased, the videotape shows he
was standing still, with his back toward Officer Andrews in a non-aggressive posture, and with his
arms behind his back in anticipation of handcuffs being placed on his wrists. That pose suggests
compliance, not ongoing danger or willful disobeyance of an Officer’s command. But he was tased
in the small of his back while in that pose. As a result, there may be a fact dispute about whether,
given the nature of Russell’s resistance, and viewing “the facts in the light most favorable to
plaintiffs, a jury could reasonably find that the degree of force the officers used in this case was not
justifiable under the circumstances,” specifically because the Officer failed to “assess not only the
need for force, but also the relationship between the need and the amount of force used,” as required
by the Fourth Amendment. Id. at 167-68 (quotation marks and citations omitted). It is appropriate
to take oral argument on whether this incident is sufficient to overcome qualified immunity.
To round out the record, however, the Court will press on and summarize “stage three” of
the Officers’ use of force. It continues from the point where Russell is standing in a “cuff me”
It is evident that Russell was not looking at the taser and may not have been aware that an
electric shock was coming. Upon being stunned he reacted instinctively, turned his body, and moved
his arms out from behind his back.
The Officers quickly moved to either side of Russell. Officer Andrews pulled Russell’s left
arm while Officer White grabbed Russell’s neck in an attempt to bring him to the ground. The
problem is that the Officers pulled Russell in opposite directions and canceled out each other’s
efforts; Russell remained standing. Then, after a momentary entanglement of limbs, all three
separated. In a moment of audio, someone is heard asking “why are you . . . .” The Officers drew
their tasers against Russell, who backed up several steps and leaned backward toward his truck bed.
The Officers then fired taser cartridges at Russell, who fell to the ground.
The Court will also hear argument on how this use of force influences the qualified immunity
have made a similar command.
Finally, Russell argues, albeit in a rather summary fashion, that his arrest for disturbing the
peace and resisting arrest violated the Fourth Amendment because the Officers lacked probable
cause. Docket No. 29, at 12.
“In order to prevail in a § 1983 claim for false arrest, a plaintiff must show that he was
arrested without probable cause in violation of the Fourth Amendment.” Parm v. Shumate, 513 F.3d
135, 142 (5th Cir. 2007) (citation omitted). “Probable cause exists when the totality of the facts and
circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was committing an offense.”
Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th Cir. 2004) (quotation marks and citation
omitted). “If there was probable cause for any of the charges made . . . then the arrest was supported
by probable cause, and the claim for false arrest fails.” Deville, 567 F.3d at 164 (quotation marks,
citation, and emphasis omitted).
When the defense of qualified immunity is asserted in a false arrest case, “the plaintiff must
show that the officers could not have reasonably believed that they had probable cause to arrest the
plaintiff for any crime.” Good v. Curtis, 601 F.3d 393, 401 (5th Cir. 2010) (citations omitted).
“[L]aw enforcement officials who reasonably but mistakenly conclude that probable cause is present
are entitled to [qualified] immunity.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009)
(quotation marks and citation omitted).
Mississippi law provides that a person has committed a misdemeanor when he, “under such
circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the
peace, fails or refuses to promptly comply with or obey a request, command, or order of a law
enforcement officer.” Miss. Code § 97-35-7(1).
Given this definition, and considering the videos, the Officers likely reasonably believed they
had probable cause to arrest Russell for breaching the peace by disobeying their commands.
Although the Court is inclined to grant the Officers qualified immunity on this claim, it is prudent
to wait for the hearing, in the event that part of the video or additional argument persuasively shows
facts sufficient to overcome qualified immunity on this theory of recovery.
The motion for summary judgment is granted as to the City of Magee and many of Russell’s
theories. The remainder of the motion is deferred for resolution at a hearing.
SO ORDERED, this the 26th day of March, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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