Crosby v. Bell et al
Filing
34
ORDER granting 18 Motion for Summary Judgment; denying 20 Motion to Dismiss; granting 20 Motion for Summary Judgment. Signed by Honorable David C. Bramlette, III on July 23, 2015. (AA)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ZANE CROSBY
PLAINTIFF
VS.
CIVIL ACTION NO: 5:14-cv-49-DCB-MTP
BOBBY BELL, in his official capacity; CITY OF
BROOKHAVEN, MISSISSIPPI; JESSE LEGGETT, BARRY
HUFF, and GEORGE M. LAMBRIGHT, in their
individual capacities
DEFENDANTS
ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT
This cause is before the Court on Defendants’, Barry Huff and
Jesse Leggett, Motion for Summary Judgment [docket entry no. 18]
and Defendant’s, George M. Lambright, Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment [docket entry no. 20]. The
Court held a hearing on the motions, where all parties testified.
Having reviewed the motions and responses, testimony and other
evidence, applicable statutory and case law, and being otherwise
fully informed in the premises, the Court finds as follows:
I. Procedural and Factual Background
In the early morning hours of September 1, 2013, Plaintiff
Zane
Crosby
attended
a
party
at
a
friend’s
house
with
his
girlfriend, Ashley Walker. Crosby and his girlfriend had spent the
day together and decided to ride together and some other friends to
the party. Crosby and Walker left his vehicle in a parking lot in
Brookhaven where they got into another vehicle to carpool. Later
1
that evening, Walker left the party but returned with Crosby’s
mother, Sheila Bowman. Walker’s mother followed in a separate
vehicle. Crosby then left with Bowman and Walker, and Bowman drove
in her car towards Bowman’s and Crosby’s home, with Walker’s mother
behind them. Before they arrived, Crosby got out of the vehicle,
while it was still moving, and left on foot. Bowman, Walker, and
Walker’s mother then went to the store where Crosby had left his
own vehicle; Walker and Crosby had earlier met with friends to
carpool to the party. Bowman believed that Crosby would try to
drive
his
vehicle
home,
and
Walker
wanted
to
retrieve
her
belongings from Crosby’s vehicle. When Crosby did not appear,
Bowman “called 911 and told them [Crosby] had been drinking and due
to recent deaths of [four] Lincoln County teenagers who had been
drinking and driving that [she] did not want to run the risk of
[Crosby] driving a motor vehicle that night.” Resp. Ex. 1 (“Aff.
Sheila Bowman”) 2, ECF No. 23-1. Although the timeline of events as
testified to at the hearing is incomplete–there is a gap of
unexplained time between when Crosby exited his mother’s vehicle
and when Bowman called 911–, what happened then is irrelevant.
According to the investigation report, Defendants Barry Huff
and Jesse Leggett were dispatched at 1:41am in response to Bowman’s
call. When Officers Huff and Leggett arrived at the store parking
lot, Crosby had still not appeared. The officers testified that
they
spoke
with
Bowman,
following
2
up
on
her
call.
The
uncontroverted testimony shows that Bowman1 described her son as
intoxicated and indicated that he would “fight.” During this
conversation, Defendant George M. Lambright arrived in a separate
patrol car. While the officers were speaking with Bowman, one of
the officers noticed Crosby at a nearby gas station. Huff called
out to Crosby to come towards them. Instead, Crosby then entered a
wooded area near a fast food restaurant to avoid his mother,
girlfriend, and the officers. Crosby testified that he did not hear
Huff’s command because of the distance between them and the ambient
noise in the area. Huff and Lambright pursued Crosby into the
wooded area while Leggett moved his patrol car to a parking lot
closer to where the officers had seen Crosby. Officers Huff and
Lambright called out to Crosby, but he did not respond.2 Officer
Lambright then entered the wooded area and found Crosby and ordered
him out of the woods. Crosby testified that he had placed himself
in a prone position in the grass, trying to avoid detection.
1
Bowman did not testify at the hearing. Walker, who did
testify, was present for the conversation between Bowman and the
officers but testified that she did not hear them.
2
The affidavits present differing accounts of what happened
during the search for Crosby. Crosby and Bowman aver that the
officers were merely shouting out Crosby’s name. Aff. Sheila
Bowman 2; Resp. Ex. 2 (“Aff. Zane Crosby”) 2, ECF No. 23-2. Huff,
however, states in his affidavit that Crosby “ignored [his]
verbal commands to come out from hiding.” Mot. Summ. J. Ex. D
(“Aff. Barry Huff”) ¶ 6, ECF No. 18-4. Officers Huff and
Lambright testified that they called out to Crosby and ordered
him to come out of the wooded area during the search. Crosby
testified that they only called out his name and that he knew
they were searching for him.
3
Lambright testified that he found Crosby by nearly stepping on him.
Crosby went unhandcuffed with Lambright to the gas station parking
lot. Lambright testified that he chose not to handcuff Crosby upon
finding him because it had been his observation through his years
of police work that a potential arrestee will be compliant up to
the
point
where
handcuffs
are
displayed,
at
which
time
the
individual in custody will quite often become hostile. The Court
notes a difference between the accounts of Lambright and Crosby.
Crosby testified that Lambright held Crosby’s hands behind
his
back as they walked whereas Lambright testified that Crosby walked
completely unrestrained.
The officers then handcuffed and arrested Crosby. Some of the
facts of the arrest are in dispute. Crosby testified that he and
Lambright arrived at the parking lot, and Huff immediately yelled
at Crosby two or three times to “Get the f--- on the ground!” In
response, Crosby turned his head and asked what he had done wrong.
Huff and Lambright testified that Huff asked Lambright if Crosby
was already handcuffed to which Lambright responded no. Then Huff
said that they should handcuff Crosby. When Huff placed his hand on
Crosby, Crosby threw up his arms. Huff and Lambright interpreted
this as physical resistance to the arrest.
In both accounts, Officer Huff then performed a takedown on
Crosby and
forced
him
to
the
ground. Officer
Lambright
held
Crosby’s legs, and Officer Leggett handcuffed Crosby’s wrists.
4
According to Crosby, Huff placed him in a choke hold, cutting
off his air supply, and any struggling on his part was a result of
trying to alert Huff to the fact that he could not breathe. Crosby
testified that he blacked out while being choked. According to the
officers, Huff did not choke Crosby, and Crosby fought the officers
kicking and moving his arms in an attempt to resist arrest. They
testified that Crosby did not lose consciousness.
Afterwards, the officers helped Crosby to his feet then placed
him in a patrol car to take him to the Lincoln County Jail. Crosby
was
charged
with
public
drunkenness,
disorderly
conduct,
and
resisting arrest. There is evidence that Crosby sustained injuries
during the arrest including “a ruptured ear drum in [his] right
ear[] and hematomas in both eyes.” Aff. Zane Crosby 2. Crosby was
later found not guilty by the Municipal Court of the City of
Brookhaven.
On June 23, 2014, Crosby filed suit against Huff, Leggett, and
Lambright in their individual capacities and Defendant City of
Brookhaven, Mississippi, and Defendant Bobby Bell in his official
capacity as the Chief of Police of Brookhaven. He brought claims
for excessive force and false arrest under the Fourteenth Amendment
Due Process Clause and various state law torts. Compl. 5-8. All
defendants answered. See Answer, ECF No. 9 (Leggett); Answer, ECF
No. 10 (Bell, City of Brookhaven, Mississippi, and Huff); Answer,
ECF No. 11 (Lambright). On November 21, 2014, Huff and Leggett
5
moved for summary judgment, arguing that they are qualifiedly
immune. Mot. Summ. J., ECF No. 18. On that same date, Lambright
moved to dismiss or alternatively for summary judgment also arguing
his qualified immunity. Mot. Dismiss, ECF No. 20. On January 27,
2015, the Court entered a Show Cause Order, ordering Crosby to
respond to the motions. Order Show Cause, ECF No. 22.
A hearing on
the motions was held on July 8, 2015, where all parties testified.
The motions are now ripe for decision.
II. Analysis
A. Motion to Dismiss
The Court will consider Lambright’s motion as a motion for
summary judgment and not as a motion to dismiss. A motion under
Federal
Rule
of
Civil
Procedure
12(b)
“must
be
made
before
pleading.” Fed. R. Civ. P. 12(b). Because Lambright answered, he
cannot now make a motion under Rule 12(b).3 Further, the motion
cannot be considered as a motion for judgment on the pleadings
under Rule 12(c), which would apply the same standard as Rule
12(b)(6), see Guidry v. Am. Public Life Ins. Co., 512 F.3d 177, 180
(5th Cir. 2007). A motion made under Rule 12(b)(6) or 12(c) that
asks the court to consider matters beyond the pleadings “must be
treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). Although the memorandum and motion largely refer to the
3
All references in this opinion are to the Federal Rules of
Civil Procedure unless otherwise noted.
6
complaint, there are several times in footnotes where Lambright
refers to matters outside the pleadings.
B. The Legal Standards
1. Summary Judgment Standard
Summary judgment is appropriate “if 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 fact is ‘material’ if its resolution in favor of one party might
affect the outcome of the lawsuit under governing law. An issue is
‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the non-moving party.” Ginsberg 1985 Real
Estate P’ship v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994)
(citations
omitted).
The
moving
party
bears
the
initial
responsibility of apprising the district court of the basis for its
motion and the parts of the record which indicate the absence of a
genuine issue of material fact. Celotex Corp. V. Catrett, 477 U.S.
317, 323 (1986).
“Once the moving party presents the district court with a
properly supported summary judgment motion, the burden shifts to
the
non-moving
party
to
show
that
summary
judgment
is
inappropriate.” Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
7
But the nonmovant must meet his burden with more than metaphysical
doubt, conclusory allegations, unsubstantiated assertions, or a
mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). A party asserting that a fact is
“genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record, including depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations . . . admissions, interrogatory answers,
or other materials . . . .” Fed. R. Civ. P. 56(c)(1)(A).
Summary judgment must be rendered when the nonmovant “fails to
make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322.
2. Qualified Immunity
“Qualified immunity balances two important interests–the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction,
and
liability
when
they
perform
their
duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “A
qualified immunity defense alters the usual summary judgment burden
of proof. Once an official pleads the defense, . . . [t]he
plaintiff bears the burden of negating the qualified immunity, but
all inferences are drawn in his favor.” Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). In assessing a claim of qualified
8
immunity, courts apply the two pronged analysis established in
Saucier v. Katz, 533 U.S. 194 (2001), but the court may address the
prongs in any order, Pearson, 555 U.S. at 225.
One prong asks “whether Plaintiff’s allegations establish a
constitutional violation.” Hope v. Pelzer, 536 U.S. 730 (2002). The
second prong asks “whether the right was clearly established.”
Saucier, 533 U.S. at 201. “[T]he contours of the right must be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987).
C. Fourteenth Amendment Claims
In his complaint, Crosby invokes the Fourteenth Amendment Due
Process Clause to support his claims for false arrest and excessive
force. Compl. 5. He cites to no other Constitutional provision. The
defendants correctly point out that the Fourteenth Amendment does
not guarantee rights against false arrest or excessive force.
Therefore, to the extent that Crosby attempts to make any due
process claims against Huff, Leggett, or Lambright, those claims
are dismissed. See Reynolds v. New Orelans City, 272 F. App’x 331,
338 (5th Cir. 2008); Graham v. Connor, 490 U.S. 386, 395 (1989)
(holding
the
Fourth
Amendment
is
the
exclusive
vehicle
for
analyzing claims of excessive force and false arrest).
But the lack of citation to the appropriate amendment is not
fatal to Crosby’s claims. District courts in the Fifth Circuit have
9
previously refused to dismiss pro se complaints for merely citing
to an inappropriate Constitutional Amendment. See Cross v. City of
Grand Prairie, 3:96cv0466L, 2000 WL 233295, at *4 (N.D. Tex. Feb.
28, 2000). And courts in other circuits have refused to dismiss
even when the plaintiff had the assistance of counsel. See Jones v.
Natesha, 151 F. Supp. 2d 938, 942 n.3 (N.D. Ill. 2001). And the
Supreme Court recently held that an “imperfect statement of the
legal
theory
supporting
the
claim
asserted”
does
not
allow
dismissal where the plaintiff has “informed the [defendant] of the
factual basis for the[] complaint.” Johnson v. City of Shelby,
Miss., 135 S. Ct. 346, 346-47 (2014). Further, it would seem the
height of
inefficiency
to
grant
summary
judgment
based
on a
“scrivener’s error” where the plaintiff would be allowed to amend
his complaint to incorporate the correct Amendment. See Jones, 151
F. Supp. 2d at 942 n.3 (finding incorrect citation was “a mere
scrivener’s error”). Even though Crosby has the aid of counsel, the
Court will, therefore, analyze Crosby’s claims as if they had been
brought under the appropriate Amendment.
D. False Arrest
To prevail on a claim for false arrest, Crosby must show that
the officers did not have probable cause to arrest him. Haggerty v.
Tex. So. Uni., 391 F.3d 653, 655 (5th Cir. 2004). “Probable cause
exists ‘when the totality of the facts and circumstances within a
police officer’s knowledge at the moment of arrest are sufficient
10
for a reasonable person to conclude that the suspect had committed
or was committing an offense.’” Id., at 655-56 (quoting Glenn v.
City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001)).
The defendants argue that probable cause existed to arrest
Crosby for all three of the crimes with which he was eventually
charged. Mem.
disorderly
Supp.
6-7,
conduct);
Mem.
ECF
No.
Supp.
21
(public
8-10,
ECF
drunkenness
No.
19
and
(public
drunkenness, disorderly conduct, and resisting arrest). Probable
cause for either public drunkenness or disorderly conduct would be
sufficient
to
support
Crosby’s
arrest.
The
Court
notes
that
resisting arrest fails as a defense against a claim of false arrest
because it requires an underlying lawful arrest, which requires
separate probable cause. See Miss. Code Ann. § 97-9-73 (2003).
The Court finds that the officers had probable cause to arrest
Crosby for disorderly conduct. In Mississippi, the elements of the
crime of disorderly conduct are (1) breach of the peace and (2)
failure to obey the lawful command of a law enforcement officer.
Miss. Code Ann. § 97-35-7(1) (2006).
As to the first element, breach of the peace, the statute
requires that the refusal to obey be done “with intent to provoke
a breach of the peace, or under circumstances as may lead to a
breach of the peace, or which may cause or occasion a breach of the
peace.” § 97-35-7(1). An overview of recent Mississippi case law on
this element reveals that it requires some level of threat by the
11
arrestee. See S.M.K.S. v. Youth Court of Union Cnty., 155 So. 3d
747, 750 (Miss. 2015) (finding breach of the peace element met
because “officers at the scene described the situation as ‘very
hostile’ and as ‘mass chaos’”); Smith v. Picayune, 701 So. 2d 1101,
1102 (Miss. 1997) (finding that the presence of a weapon “greatly
enhanced the possibility of grievous injury to the police officers
or others if the disturbance escalated” and that the officers acted
out of a need “to control conduct . . . which greatly increased the
potential for sudden violence”); Matthews v. City of Madison, 143
So. 3d 579, 585 (Miss. Ct. App. 2013) (upholding arrest and
conviction for disorderly conduct where the officer arrested the
defendant “for officer safety and the safety of everyone there”);
Sendelwick v. State, 101 So. 3d 734, 740-41 (Miss. Ct. App. 2012)
(finding that arrest for disorderly conduct was justified because
of an arrestee’s “combative conduct”); Bovan v. State, 706 So. 2d
254, 256-57 (Miss. Ct. App. 1997) (finding that “[t]he specter of
significant breaches of the peace loom[ed]” over allowing refusal
to obey command to allow police officer to enter home of arrestee
to execute felony arrest warrant on someone else). Here, Bowman’s
mother had told the officers that Crosby would likely fight them
when they encountered him. And they had been called to prevent a
potential drunk driving incident, which the Fifth Circuit and
Supreme Court have described as “an extremely dangerous crime.”
Begay v. United States, 553 U.S. 137, 141 (2008); United States v.
12
Marquez, 626 F.3d 214, 219 (5th Cir. 2010) (quoting Begay). At the
hearing, Officer Huff testified that he was concerned for his own
safety and the safety of the public. The Court finds that the
breach of peace element is satisfied.
As to the second element, disobedience, the Court finds that
Crosby disobeyed a direct and lawful command issued by Huff. Huff
yelled out to Crosby to come to where the officers were, but Crosby
instead absconded into the wooded area. Further, while Crosby was
hiding from the officers, Huff and Lambright ordered him to come
out, which he refused to do. Crosby testified that he never heard
any of these commands but that he knew the officers were looking
for him. The commands were lawful because they were issued during
the course of the officers’ investigation into Bowman’s 911 call.
Even if Crosby did not hear the commands, it was reasonable for the
officers to believe that Crosby had heard their commands and had
intentionally disobeyed them. “A police officer who reasonably but
mistakenly concludes that he has probable cause to arrest a suspect
is entitled to qualified immunity for the arrest.” Tarver v. City
of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citing Hunter v.
Bryant, 502 U.S. 224, 227 (1991)). The disobedience element is met.
Therefore, the officers had probable cause to arrest Crosby.
Because there was probable cause to arrest Crosby, there was
no violation of Crosby’s Fourth Amendment rights. Because there was
no constitutional violation, the defendants are entitled to summary
13
judgment based on qualified immunity on the claim for false arrest.
The Court, therefore, finds that Huff, Leggett, and Lambright are
entitled to summary judgment on this claim.
E. Excessive Force
“[T]o state a violation of the Fourth Amendment prohibition on
excessive force, the plaintiff must allege: (1) an injury that (2)
resulted directly and only from the use of force that was excessive
to the need, and (3) the use of force that was objectively
unreasonable.” Bush v. Strain, 513 F.3d 492, 500-01 (5th Cir.
2008). “What constitutes an injury in an excessive force claim is
. . . subjective–it is defined entirely by the context in which the
injury arises.” Williams v. Bramer, 180 F.3d 699, 704 (5th Cir.
1999).
“[T]he
requirement
of
amount
‘some
of
injury
injury’
and
necessary
to
establish
a
satisfy
[the]
constitutional
violation is directly related to the amount of force that is
constitutionally permissible under the circumstances.” Ikerd v.
Blair,
101
F.3d
430,
434
(5th
Cir.
1996).
“The
objective
reasonableness of the force, in turn, depends on the facts and
circumstances of the particular case, such that the need for force
determines how much force is constitutionally permissible.” Bush,
513 F.3d at 501. Courts determine the reasonableness of force based
on (1) “the severity of the crime at issue,” (2) “whether the
suspect poses an immediate threat to the safety of the officer or
others,” and (3) “whether he is actively resisting arrest or
14
attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
“[I]n determining whether the use of force was clearly excessive
and clearly unreasonable, [the court] evaluate[s] each officer’s
actions separately, to the extent possible.” Poole v. City of
Shreveport, 691 F.3d 624, 628 (5th Cir. 2012).
1. Officers Leggett and Lambright
The Court finds that Crosby has not shown any injury resulting
from the force applied by Officers Leggett or Lambright. Lambright
held Crosby’s legs, and Leggett placed the handcuffs on Crosby.
Crosby has not shown any injury to either his legs and feet or his
arms and hands after his arrest. Crosby cannot show “an injury that
. . . resulted directly and only from the use of force” by either
officer. Bush, 513 F.3d at 501. His demonstrated injuries are only
to his eyes and ear. Therefore, the Court will grant summary
judgment based on qualified immunity on the excessive force claims
against Lambright and Leggett.
2. Officer Huff
Before discussion of the Graham factors, the Court notes that
the injuries Crosby suffered were not conclusively shown to be a
result of the force used by Huff against Crosby or as a result of
the two men hitting the ground. The Court carefully reviewed the
intake photograph which was taken at 2:21am when Crosby was booked
into custody at the Brookhaven Police Department. The photograph
indicates some possible redness around the neck area, and inasmuch
15
as the photograph is a frontal view, the area around the right ear
is not clearly shown. There is no noticeable injury to either eye.
The Court has also observed the photograph which was taken on
September 2nd, the day after the incident, and although there are
no cuts or abrasions, there is dried blood just below Crosby’s
right ear, as well as some discoloration of both eyes. As stated
above, Crosby must show “an injury that . . . resulted directly and
only from the use of force” by Huff. Bush, 513 F.3d at 501. There
is evidence of redness in the neck area, a discolored and possibly
swollen eye, together with an injury to the right ear in the
medical report taken the next day. It is impossible to determine
whether these injuries occurred as a result of pressure applied to
the neck area or as a result of the fall to the ground by two men,
Crosby weighing 190 pounds and Officer Huff weighing 215 pounds.
The Court could grant summary judgment on this ground alone, as it
did as to Lambright and Leggett, but even assuming that Crosby’s
injuries are a direct and exclusive result of the force applied by
Huff, the result is the same.
As stated above, to determine whether the force applied is
reasonable the Court looks to the severity of the crime at issue,
whether the suspect is an immediate threat to the officers or
others, and whether the suspect is resisting arrest or trying to
escape. Graham, 490 U.S. at 396. Officer Huff focuses his argument
16
on whether the force used was reasonable.4 He argues: (1) that the
crime at issue, drunk driving, was severe; (2) Crosby posed a
danger to himself and others; and (3) Crosby attempted to flee and
resisted arrest. Mem. Supp. 12, ECF No. 19. Crosby disputes all
three factors. Resp. 3-4.
First, the Court analyzes the crime at issue at the time of
Crosby’s arrest. Although the courts in this circuit often appear
to treat the crime at issue as synonymous with a crime for which
the defendant was arrested, one court has described “the relevant
inquiry [a]s what a reasonable officer on the scene would have
believed the crime at issue to be.”5 Chacon v. City of Austin,
4
Huff argued in his briefs and at the hearing that the use
of a choke hold is not in itself legally impermissible. Mem.
Supp. 8 n.4, ECF No. 21 (citing Stogner v. Sturdivant, 515 F.
App’x 280, 281 n.1 (5th Cir. 2013)). But this footnote in an
unpublished opinion simplifies the rule. The Fifth Circuit has
held that choke holds are not “objectively-unreasonable conduct
where the suspect physically resisted arrest.” Wagner v. Bay
City, Tex., 227 F.3d 316, 324 (5th Cir. 2000) (emphasis added);
see also Gassner v. City of Garland, Tex., 864 F.2d 394, 400 (5th
Cir. 1989), abrogated on other grounds, Devenpeck v. Alford, 543
U.S. 146, 153-54 (2004), (“Given [the suspect]’s resistance to
the arrest, the [choke hold] used by [the officer] in this case
was reasonable. . . .”); Raley v. Fraser, 747 F.2d 287, 290 (5th
Cir. 1984) (“[T]he [district] court’s findings indicate that each
of the four choke holds came in response to resistance by [the
suspect].”). In the version of events put forth by Crosby, he
offered no physical resistance to the arrest, but in the version
put forth by the defendants, Crosby did physically resist. It is
beyond dispute that Crosby fled from the police.
5
The Fifth Circuit, in an unpublished opinion, favorably
discussed the Chacon court’s analysis of this factor. See Chacon
v. Copeland, 577 F. App’x 355, 360-61 (5th Cir. 2014) (per
curiam).
17
Tex., No. A12CA226, 2013 WL 2245139, at *11 (W.D. Tex. May 21,
2013); see also Mayfield v. Brewer, No. 2:13cv73, 2014 WL 5392464,
at *6 (S.D. Miss. Oct. 22, 2014) (discussing the crimes the
defendant was suspected of committing and the crimes the defendant
was actually arrested for in analysis of the first Graham factor).
But even using this broader interpretation of crime at issue, the
Court finds that no reasonable officer could reasonably believe the
crime at
issue,
when
Huff
performed
the
takedown,
was
drunk
driving. The potential for drunk driving certainly motivated the
officers in their investigation of Bowman’s call and in their
search for Crosby, but at some point when three police officers, a
mother, a girlfriend, and the girlfriend’s mother stand between a
suspect and his vehicle, the potential to drive while intoxicated
reduces to zero. In fact, no account of the events places Crosby in
the same parking lot as his vehicle at any point. The crimes at
issue were: (1) public drunkenness, (2) disorderly conduct, and (3)
resisting arrest, the crimes for which Crosby was arrested. These
three crimes together “are not particularly heinous.” Shelton v.
City of Laurel, NO. 2:06cv111, 2007 WL 1141501, at *5 (S.D. Miss.
Apr. 17, 2007). Therefore, this factor weighs in favor of Crosby’s
“Fourth Amendment right to be free [from] the use of excessive
force.” Id.
Second,
the
Court
determines
whether
Crosby
posed
“an
immediate threat to the safety of the officers or others.” Graham,
18
490 U.S. at 396. Huff argues that Crosby posed a threat because
[h]is mother reported he was drunk and disorderly, she
was unable to control him, he got out of her car and
started walking the streets in the middle of the night,
he was attempting to retrieve and drive his vehicle
despite his intoxication, he initially ran and hid from
officers, he refused to comply with officers’s [sic]
verbal command to come out of the bushes, and he refused
to allow officers to put his hands in cuffs.
Mem. Supp. 12, ECF No. 19. Further, Huff testified that Bowman told
him that Crosby would fight because he had been drinking and that
Crosby had a problem with figures of authority. And Huff had
previously been called to the home of Bowman and Crosby to quell
some type of disturbance caused by Crosby. The details of that
encounter are unclear. As stated above, Huff testified that he was
concerned not only for his own safety, but the safety of the
citizens of Brookhaven as a result of Crosby’s behavior. Also, it
is
clear
that
Crosby
was
under
the
influence
of
alcohol
as
indicated in the medical records, as described by his mother, and
as evidenced by his actions, all of which leads to the ineludible
conclusion that this man was under the influence of alcohol.
Therefore, this factor weighs in favor of finding that the force
applied by Huff was reasonable.
Third, the Court determines whether Crosby attempted to flee
or to resist arrest. Graham, 490 U.S. at 396. Crosby had already
attempted
to flee
upon
first
sighting
of
the
officers.
Even
assuming Crosby could not hear the officers calling out to him,
Crosby admitted at the hearing that he knew the officers were
19
searching for him and that he intentionally sought to evade them
through concealment. Crosby had fled once, behaved irrationally,
and
could
flee
again.
Whether
Crosby
offered
any
physical
resistance to the arrest prior to the takedown is uncertain. Crosby
testified that he did not; the officers testified that he did. It
is uncontested that Huff and Crosby ended up on the ground, with
Huff restraining Crosby with his arms around Crosby’s neck. It is
impossible for this Court or for that matter, a jury, to determine
the degree of pressure applied by the officer. What is clear,
however, is that once on the ground, Crosby resisted, struggling
and kicking, as one officer attempted to hold his legs while
another attempted to place the cuffs. This is uncontested. The
Court therefore finds that this factor weighs in favor of Huff.
“[T]he
right
to
make
an
arrest
or
investigatory
stop
necessarily carries with it the right to use some degree of
physical
coercion
or
threat
thereof
to
effect
it,”
and
the
reasonableness of that force is a fact-intensive inquiry. Id. Huff
used no weapon–no firearm, no baton or nightstick, and no taser,
nor was there any striking with hands or fists. It is reasonable
that a well trained officer would place restraints on Crosby. Based
on the foregoing analysis, the Court will grant summary judgment in
favor of Huff based on his qualified immunity.
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
. . . “Not every push or shove, even if it may later seem
20
unnecessary in the peace of a judge’s chambers” violates
the Fourth Amendment. The calculus of reasonableness must
embody allowance for the fact that police officers are
often
forced
to
make
split-second
judgments–in
circumstances that are tense, uncertain, and rapidly
evolving–about the amount of force that is necessary in
a particular situation.
Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973))
(internal citations omitted). The force Huff used may have been
more than was absolutely necessary to effectuate Crosby’s arrest
but it was not excessive to the need created by Crosby’s behavior
and the information Huff possessed. It is this level of force that
qualified immunity protects.
F. State Law Claims
In his Response, Crosby concedes that his state law claims
against Lambright are subject to the Mississippi Tort Claims Act
(“MTCA”) and that he cannot sue on them in this case. Resp. 4.; see
also Miss. Code Ann. § 11-46-7 (1993) (exclusiveness of remedy).
Because Crosby never alleges that either Huff or Leggett were
acting outside the scope of their employment, the Court finds that
the state law claims against them, if any, are also subject to the
MTCA. See Miss. Code Ann. § 11-46-5(1) (1992). Therefore, the Court
finds that summary judgment is appropriate on these claims in favor
of Huff, Leggett, and Lambright.
Crosby also concedes that the claims against Lambright in his
official capacity are duplicative of those asserted against the
City of Brookhaven, Mississippi. Resp. 4; see also Shaidnagle v.
21
Adams Cnty., Miss., — F.3d —, —, No. 5:13cv112, 2015 WL 365820, at
*3 (S.D. Miss. Jan. 27, 2015) (quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989)) (“[A] suit against an official in
his official capacity ‘is no different from a suit against’ a
governmental entity. . . .”). The Court finds that the official
capacity claims against Huff and Leggett, if any, are similarly
duplicative of those against the City of Brookhaven, Mississippi.
Therefore, the Court finds that summary judgment is appropriate on
these claims in favor of Huff, Leggett, and Lambright.
III. Conclusion
Officers
Huff,
Leggett,
and
Lambright
moved
for
summary
judgment on all of the claims made against them, including false
arrest, excessive force, and various torts. The Court finds that
there was probable cause to arrest Crosby for disorderly conduct,
so
that
summary
judgment
should
be
granted
in
favor
of
the
officers. The Court further finds that summary judgment should be
granted in favor of the officers on the excessive force claims.
Lastly, the Court finds that Crosby had conceded his state law and
official capacity claims against the officers.
IV. Order
IT IS HEREBY ORDERED THAT Defendants’, Barry Huff and Jesse
Leggett, Motion for Summary Judgment is GRANTED.
FURTHER ORDERED THAT Defendant’s, George M. Lambright, Motion
to Dismiss, or in the Alternative, For Summary Judgment is GRANTED.
22
SO ORDERED this the 23rd day of July 2015.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
23
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