Ward v. Still et al

Filing 64

MEMORANDUM OPINION, the City of Bristol's motion for summary judgment, 39 , is GRANTED; Officer Camper's motion for summary judgment, 43 , is GRANTED; and Officer Still's motion for summary judgment, 47 is GRANTED; the suit against all "John Doe" defendants is DISMISSED on the court's own motion; and a Judgment dismissing plaintiff's suit will be filed.Signed by Magistrate Judge Dennis H Inman on 1/9/12. (KDO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

MELISSA DAWN WARD
V.
MICHAEL A. STILL, ETC., ET AL.

)
)
)
)
)

NO. 2:10-CV-7

MEMORANDUM OPINION
As the result of an encounter she had with officers of the Bristol Tennessee Police
Department on January 17, 2009, plaintiff has sued several officers, named and unnamed, for
an assortment of constitutional violations pursuant to 42 U.S.C. § 1983, as well as asserting
various state causes of action related to the incidents that occurred on January 17, 2009. She
has also sued the City of Bristol and its Chief of Police for failure to properly train and
supervise the city’s police officers. Lastly, she has sued named and unnamed police officers
for malicious harassment in the months following the January 17, 2009 events. All
defendants have filed motions for summary judgment.
Summary judgment is appropriate only if there are no genuine issues regarding any
material facts and, based upon those undisputed facts, the moving party is entitled to
judgment as a matter of law. F.R.Civ.P. 56(c). The moving party has the initial burden
of proving that there are no genuine issues of material facts and that the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 47 U.S. 317 (1986);
Street v. J.C.Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). If the moving party

meets that burden, the non-material moving party then has the burden of producing
evidence that demonstrates the existence of a fact, or a dispute concerning a material fact,
that precludes summary judgment. The court must draw all possible favorable inferences
in favor of, and construe the evidence in the light most favorable to, the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, the evidence in favor of
the non-moving party must be enough to support a jury verdict in that party’s favor. “The
mere existence of a scintilla of evidence in support of the [non-moving party’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, supra, at 2511.
A police officer should be held accountable for violation of a person’s constitutional
rights, and a suit for damages usually is the only way for the injured person to obtain
vindication. On the other hand, unrestricted damage suits can harass and intimidate police
officers, whether intentionally or unintentionally, the result of which is ineffective police
work.

The doctrine of qualified immunity was created to balance these competing

considerations. In Saucier v. Katz, 530 U.S. 194 (2001), the Supreme Court held that in a
suit for violation of a constitutional right against a police officer, the trial court must first
consider whether “the facts alleged show the officer’s conduct violated a constitutional
right.” Id. , at 201. If the plaintiff does establish that a constitutional violation occurred,
then the court should go further and determine “whether the right was clearly established in
. . . light of the specific context of the case, not as a broad proposition.” Id. In determining
whether or not the right was clearly established, the dispositive question is “whether it would
2

be clear to a reasonable officer that his conduct was unlawful in the situation he confronted
. . . . If the law did not put the officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropriate.” Id.
The majority of facts are undisputed; but where a fact is disputed, the version
favorable to the plaintiff has been adopted. Similarly, if two contrary inferences could have
been drawn from an otherwise undisputed fact, the court has relied upon the inference that
is favorable to the plaintiff.
Some time during the late evening hours of January 16, 2009, or the extremely early
morning hours of January 17, 2009, plaintiff and two friends, Amber McMurray and Joshua
Slate, “socialized.” That socializing consisted of ingesting a large amount of alcohol.
Ultimately, they patronized Machiavelli’s Bar in Bristol. Machiavelli’s Bar occupies the first
floor of a three-story building; the next two floors contain apartment dwellings, four on each
floor. Plaintiff lived in an apartment on the third floor. At approximately 2:00 a.m., plaintiff
and her two friends left the bar and went upstairs to her apartment.
Eric Crawford lived in a second floor apartment, and he was invited by Joshua Slate
to join him and the two women in plaintiff’s apartment. Once there, the drinking continued
apace. Around 4:00 a.m., the two women, both drunk, retired to plaintiff’s bedroom and
went to sleep.1
As plaintiff and Ms. McMurray slept, Slate and Crawford continued to drink in

1

Whether they “went to sleep,” or passed out, is a matter of semantics only. Regardless,
alcohol intoxication was the moving force in all that happened that night.
3

plaintiff’s kitchen. After a time, they got into a fight. Crawford left to return to his own
apartment on the floor below, and Slate followed. Slate resumed the battle on the second
floor, and he was the decided loser; Crawford “put him down as hard as [he] could.” Slate
bled on the carpeting in the hallway, and he smeared blood on the stair rail up to the third
floor. According to Crawford, Slate was extremely drunk.
Another resident of the building, later learned to be Candace Hackler, heard and saw
the fight, and she called 911.
Michael Still was the first officer on the scene, arriving at 5:35 a.m. He encountered
two people, a man and a woman, on the second floor landing. The woman was Candace
Hackler who of course had just called 911. The man was Eric Crawford.
Officer Still remotely activated his in-car recording equipment. Although the camera
was not able to record anything of significance, the microphone on Still’s body transmitted
his voice and the voices of others in proximity to him to the recording equipment in the car.
As a result, most of the significant events were audibly recorded by the device in Still’s car.
Still questioned Crawford, and Crawford related the circumstances of his two fights
with Joshua Slate. Crawford also told Still that Slate had entered into the apartment on the
third floor.
As Officer Still interviewed Crawford, another officer, Albert Overbey, had arrived
and was interviewing Ms. Hackler.
At this point, Officer Still knew that a fight had occurred in the apartment building
that was serious enough to prompt Ms. Hackler to call 911. He also knew, based on his
4

interview with Crawford, that Mr. Slate was highly intoxicated; that he had been punched
twice in the face, rather hard, during the first fight in plaintiff’s kitchen; that Slate was drunk
enough that he did not have enough sense to remain in plaintiff’s apartment when Crawford
left; that he followed Crawford to the second floor, where he resumed the fight; and that
Crawford hit him several times with enough force that Slate went to the ground, where he
remained for a time. And, of course, there was evidence of Slate’s bleeding on the carpet and
the stair railing. Officer Still was concerned about Slate’s well-being in light of his
intoxication and the physical beating he sustained. He therefore went upstairs to the
apartment to conduct a “welfare check.” By this time, another officer, Jody Camper, had
arrived, and Still apprised him of all he knew to that point.
At 5:44 a.m., Still began knocking on plaintiff’s apartment door. It is important to
note at this point that Officer Still had no idea who lived in the apartment; he knew only that
Slate was in there, based on what Crawford had told him.
After three minutes of banging on the door, Officer Still returned downstairs and
asked Crawford if he knew how to contact anyone who would have keys to the apartment
because he was trying to avoid a forced entry. In response, Crawford told Officer Still that
Slate was in the apartment with two other people, and if the occupants did not hear the loud
knocking, “something [is] wrong with them ‘cause everybody else heard that.” This
information, coupled with the lack of any response from inside the apartment, heightened
Officer Still’s concern and his perceived need to perform a welfare check.
Officer Still and the other officers went back to the third floor apartment, and again
5

knocked on the door. They also knocked on the walls. Again, they received no response
from anyone inside the apartment.
The officers made several efforts to contact people who might have a key to the
apartment, but they were unsuccessful. Officer Overbey then contacted the shift supervisor,
Sergeant Smalling, who gave the officers authorization to enter the apartment by force.
Before resorting to forced entry, the officers knocked again, twice. Finally, Officer
Still gave two verbal warnings that he was going to kick in the door unless it was opened.
Receiving no response, he kicked in the door. As the officers entered the apartment, another
officer, Brandon Carter, arrived, bringing the total number of police officers to four. By this
time, there was an ambulance and four emergency medical technicians outside the building,
awaiting assurance from the officers that it was safe for them to enter.
The police officers first entered the apartment living room, and no one was there.
They then looked into the kitchen, and again no one was there. They then looked into the
bedroom, and saw two women passed out (or asleep) in the bed, both fully clothed. Again,
there was no sign of Mr. Slate. However, inside plaintiff’s bedroom, Officer Camper opened
a door that led into a small bathroom, and there he observed Mr. Slate slumped over the sink.
Blood covered the sink.2 According to Officer Camper, he tried to rouse Slate, but Slate was
only semi-conscious. Camper tried to move Slate out of the bathroom, but Slate struggled,

2

Photographs of the blood spatterings and smears in the hallway, on the railing, and on
the sink, were filed as Document 49-3. One of those photographs is of Mr. Slate’s face. It
would not be too much hyperbole to say that his nose looked like chopped liver.
6

causing both men to fall to the floor. Officer Camper ended up by handcuffing Slate for the
safety of both men. According to Camper, he did not then believe that Slate was resisting
arrest, but was merely “out of it,” and did not appreciate what was happening, which was a
reasonable conclusion in light of Slate’s intoxication and the physical beating he had
sustained.
Notwithstanding the hubbub then occurring in the bedroom, both plaintiff and Ms.
McMurray slept on.
ILLEGAL ENTRY
It is appropriate to pause here to discuss plaintiff’s claim that Still and the other
officers violated her right to be secure in her home as guaranteed by the Fourth Amendment.3
She argues that the officers made no attempt to obtain a warrant. She additionally argues
that there were no exigent circumstances justifying a warrantless entry since the information
relied upon by Officer Still was imparted to him by Crawford, who was an “unreliable
source.”
Plaintiff has sued both Still and Camper in their individual and official capacities for

3

Plaintiff apparently asserts in her complaint that the officers’ entry into her apartment
violated her First, Fourth, and Fourteenth Amendment rights. [Complaint, ¶ 43]. In her response
to the officers’ motions for summary judgment, she discusses only the Fourth and Fourteenth
Amendments. Regardless, the Fourth Amendment explicitly applies to, and proscribes, intrusive
conduct by government agents, as a result of which all claims that an officer used excessive force
during an arrest must be analyzed under the Fourth Amendment’s reasonableness standard,
Graham v. Conner, 490 U.S. 387, 395 (1989). The same rationale surely must apply to entries
into a citizen’s home by the police.
7

illegal entry into her apartment4
An “exigent circumstance” is one that requires immediate action; time not only is of
the essence, it is critical. The Supreme Court has long recognized that there are exceptions
to the Fourth Amendment’s requirement for a warrant, and the presence of exigent
circumstances is one of those exceptions:
[W]arrants are generally required to search a person's home or his
person unless ‘the exigencies of the situation’ make the needs of law
enforcement so compelling that the warrantless search is objectively
reasonable under the Fourth Amendment.” Mincey v. Arizona, 437
U.S. 385, 393-394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
One exigency obviating the requirement of a warrant is the need to
assist persons who are seriously injured or threatened with such
injury. “ ‘ The need to protect or preserve life or avoid serious injury
is justification for what would be otherwise illegal absent an exigency
or emergency.’ ” Id., at 392, 98 S.Ct. 2408 (quoting Wayne v. United
States, 318 F.2d 205, 212 (C.A.D.C.1963) (Burger, J.)); see also
Tyler, supra, at 509, 98 S.Ct. 1942. Accordingly, law enforcement
officers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from
imminent injury. Mincey, supra, at 392, 98 S.Ct. 2408; see also
Georgia v. Randolph, ante, at 118, 126 S.Ct. 1515, 1525, 164
L.Ed.2d 208 (“[I]t would be silly to suggest that the police would
commit a tort by entering ... to determine whether violence (or threat
of violence) has just occurred or is about to (or soon will) occur”).

Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006).

4

Officers Overbey and Carter also entered the apartment. Presumably Overbey and
Carter are two of the “John Doe” officers also sued in their individual and official capacities.
In the Sixth Circuit, the substitution of a named party for a John Doe defendant is a
change in party, not a substitution of parties; thus, the naming of a John Doe defendant cannot be
used to circumvent the statute of limitations. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996).
An action under 42 U.S.C. § 1983 brought in a district court in Tennessee is governed by
Tennessee’s one-year statute of limitations, Rowe v. Board of Ed., 1985 WL 12898 (6th Cir.
1985). As a result, the suit against the John Doe defendants must be dismissed on the basis of the
running of the statute of limitations.
8

Crawford freely acknowledged that it was he who fought with Slate and perhaps
injured him badly. By so doing, he potentially exposed himself to both criminal and civil
liability. And, it may be asked, why would Crawford lie to the police about what he did, and
where Slate went? If the story he told to Officer Still was false, he exposed himself to
criminal liability, another indication of Crawford’s reliability, not the reverse. See, United
States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000).
Moreover, there was more than Crawford’s bare assertion that he had injured Slate in
a fight, and that Slate had entered plaintiff’s apartment. First, physical evidence of the fight
as described by Crawford was visible; blood was on the bannister and the carpet, both of
which substantiated Crawford’s assertions regarding the severity of the blows he landed to
Slate’s body. Second, the fight was long and loud enough that it prompted Ms. Hackler to
call the police in the first place. It is beyond argument that Officer Still had probable cause
to believe that there was a fight; that Slate was injured in that fight; and that he retreated into
plaintiff’s third floor apartment. Nevertheless, was Officer Still obliged to attempt to procure
a warrant? If the question was solely one involving evidence of a crime, arguably the officer
should have obtained a warrant. But the concern that night was Slate’s well-being. Repeated
pounding on the doors and walls of the apartment, and yelling, generated no response from
within the apartment, a circumstance which could only heighten the officers’ concern about
Slate’s health. At this juncture, analyzing the issue from Slate’s perspective might be
helpful. What if Slate had been so severely beaten that he was unconscious and bleeding in
the brain? What if he had passed out due to his intoxication, or the beating, and was choking
9

on his own blood? Literally every second would have been critical, and the time expended
in getting a warrant could have resulted in permanent brain injury, or death.
There is no evidence in this record to contradict Still’s assertion that he was motivated
to enter the apartment for the sole purpose of conducting a “welfare check.” The undisputed
exigencies of the situation demanded immediate action and excused the requirement for
procuring a warrant. There was no illegal entry.
PLAINTIFF’S ARREST
Plaintiff contends that her arrest violated her constitutional right to be free from fear,
danger, and intimidation as guaranteed by the First, Fourth, and Fourteenth Amendments to
the Constitution, and it deprived her of her liberty without due process of law in violation of
the Fifth and Fourteenth Amendments.5 She also asserts that her arrest violated her right to
equal protection and her right to substantive due process in violation of the Fifth and
Fourteenth Amendments to the Constitution.6 Lastly, she argues that her arrest violated her
right to be free from unreasonable seizure as guaranteed by the Fourth and Fourteenth
Amendments to the Constitution.7 The essence of plaintiff’s claim is that she was arrested
without probable cause.
Once again, the Fourth Amendment would seem to be the only one applicable to the
facts as alleged by plaintiff in her complaint since it unequivocally applies to seizures of the
5

Complaint, Doc. 1, ¶ 43.

6

Doc. 1, ¶ 45.

7

Doc. 1, ¶ 46.
10

person. Graham v. Conner, supra.
In determining whether an officer is liable under 42 U.S.C. § 1983 for false arrest, it
first must be determined whether the officer had probable cause to make the arrest. If he did,
then obviously there was no constitutional violation and the claim fails. If there was no
probable cause, however, then the inquiry proceeds one step further: would a reasonable
officer in the position of Still and Camper believe he had probable cause to make the arrest
under identical circumstances? If yes, then Still and Camper are entitled to qualified
immunity, Anderson v. Creighton, 483 U.S. 635, 638 (1987).
It was mentioned previously that plaintiff and Ms. McMurray did not awaken from
their sleep notwithstanding (1) the door to the apartment was kicked in; (2) four officers
entered the apartment; (3)at least two of those officers entered the small bedroom where the
women slept; and (4) one officer engaged in a struggle with Mr. Slate in the adjoining
bathroom, finally handcuffing him. This uproar notwithstanding, the women did not awaken.
Officer Still reasonably concluded that he had to talk to the women. First, he needed
to explain to them why the door to the apartment was kicked open.

Second, he

understandably wanted the women to be aware that the apartment was no longer secure; one
can only image the public uproar that would have ensued had the officers left two intoxicated
women asleep in bed, in an apartment with no door. Third, he needed to find out if Slate was
in the apartment with permission of either of the women.

11

Awaking the women was no easy task. In his first affidavit,8 Still remarks on the
difficulty, but says nothing further. In a later affidavit, he says that he shook plaintiff’s hand
and arm in an attempt to awaken her but, when that proved unsuccessful, he resorted to
“wrist compression,” a technique where the hand is bent downward in the direction of the
elbow. The pain produced by this maneuver is intended to cause stuporous persons to
awaken.9
According to Still, both plaintiff and Ms. McMurray were extremely intoxicated.
Nevertheless, in Still’s first affidavit,10 he says that he had no intention to arrest either of the
women. However, matters deteriorated when plaintiff demanded that he explain again to her
why he kicked in the door. At Still’s invitation, the two of them stepped out into the hallway
to look at the blood trail left by Slate. Plaintiff began speaking very loudly and both Officer
Still and Officer Camper told her to quieten down. Camper went so far as to warn plaintiff
that she was going to jail if she did not cease yelling. Both officers told her to step back
inside her apartment and she refused. The plaintiff ran away down the hallway, repeatedly
yelling “No!” McMurray then asked the plaintiff to come back into the apartment with her,
but plaintiff’s only response was to ask Officer Camper, for at least the second time, what
his name was. She then asked what was going on, to which Still responded, “You’re being
arrested.” Still told her that she was out in a hallway “screaming and hollering” and Camper
8

Doc. 50, ¶ 29.

9

Doc. 61-1, ¶¶ 6-14.

10

Document 50.
12

added that he had asked her to go back inside the apartment and she did not. At that point,
plaintiff said that she would go back inside the apartment, but Still said no.
Plaintiff’s version of what transpired in the hallway differs, but only in a few
inconsequential particulars. She testified in her deposition that it was she who wanted to go
back into her apartment, but she was blocked by Officer Still from doing so.11 When directly
asked if she knew whether she was “loud or not out in the hall” she testified that she could
not recall.12 Therefore, the affidavits of Officer Still and Camper are uncontradicted
regarding plaintiff’s loud talking and (ultimately) screaming in the hallway. Additionally,
a DVD containing the audio recording of the encounter between plaintiff and the officers,
including the events immediately leading up to her arrest was filed as Exhibit A to Still’s
affidavit.13 The defendants prepared a transcript of that recording, which is filed as Exhibit
B. The transcript was submitted to plaintiff and her attorney for review, and its accuracy has
not been questioned.14

That transcript, to the extent typewritten words can do so,

corroborates Officer Still’s version of the events that precipitated his arrest of plaintiff.
However, a written transcript has its limitations, especially when the basis of the arrest was
disorderly conduct and public intoxication.15 Therefore, the court listened to the audio

11

Deposition, Doc. 43-1, p. 54.

12

Doc. 43-1, p. 56.

13

Doc. 50.

14

See, Doc. 45, p. 3, fn.3.

15

Doc. 50, ¶ 50.
13

recording itself, and it confirms that plaintiff was loud, uncooperative, and did not heed
Still’s and Camper’s repeated instructions to be quiet and to go back into the apartment.
As noted earlier, the only disputed fact in those relating to her arrest is plaintiff’s
deposition testimony that she wanted to reenter her apartment but was prevented from doing
so by Officer Still, and that an unknown officer suddenly “put his foot on my back, pushed
me to the ground, and proceeded to handcuff me.”16 From this testimony it can be inferred
that plaintiff asserts that she would have reentered her apartment but for Still’s interference
and she was only arrested thereafter.
One could argue, albeit very weakly, that if plaintiff had been allowed to reenter her
apartment, the yelling and screaming which ultimately precipitated her arrest would not have
occurred, and therefore she would not have been arrested. That really begs the question,
since the fact remains that she did talk loudly, notwithstanding Still’s and Camper’s
instructions to her to quieten down. Thus, this issue of fact actually is not material to the
question regarding the legitimacy of plaintiff’s arrest.
But there is yet another reason to ignore this disputed “fact” in the summary judgment
analysis: “Under the physical facts rule, where the ‘palpable untruthfulness of plaintiff’s
testimony’ is evident, because the testimony is ‘obviously inconsistent with, contradicted by,
undisputed physical facts,’ . . . summary judgment is warranted notwithstanding testimony
offered by the plaintiff.”17 In this case, the “physical facts” are those in the undisputed
16

Depo., Doc. 49-4, p. 56.

17

Harris v. General Motors Corporation, 201 F.3d 800, 803 (6th Cir. 2000).
14

transcript of the audio recording. That transcript shows that Camper and Still repeatedly told
plaintiff to quieten down and she did not do so; that she was repeatedly asked by the officers
to go back inside her apartment, and she did not do so; that even her friend, Amber
McMurray, asked her to come inside the apartment, and she did not do so. It was only after
plaintiff was arrested that she attempted to reenter her apartment, and it was Still that
restrained her.
Plaintiff also argues that she was asleep in her own apartment, where she had a right
to be; that she suddenly was awakened from that sleep and was confronted by a “highly
charged atmosphere” created by the defendants; and that it was the defendants who took a
“disoriented” plaintiff into the hallway, thereby effectively creating the very situation for
which she ultimately was arrested.18 The problem with plaintiff’s argument is that the
exigencies of the situation required the officers to enter her apartment, and they had no
choice but to enter the apartment in the way they did because of the occupants’ failure to
respond to the officers’ knocking and yelling. Therefore, in reality, the “situation” was
created not by the officers, but by the plaintiff and her friends. Further, the officers were
required to talk to the residents of the apartment and notify them that the door was smashed
open and the reason it was smashed open. And, lastly, it must be remembered that Officer
Still took plaintiff into the hallway because it was plaintiff herself who demanded that Still
explain to her – not for the first time – why he had kicked her door in. Again, if plaintiff was

18

Doc. 58, pp. 16-17.
15

disoriented, it was of her own making.19
Thus, it is undisputed that plaintiff, while in the hallway of the apartment building,
was talking loudly, even yelling, and declined to heed the officers’ instructions to be quiet
and to reenter her apartment. The question then becomes, did these actions give rise to
probable cause to believe that plaintiff committed the offense of either public intoxication
or disorderly conduct?
As an initial matter, Officer Still was asked on his discovery deposition about his
definition of “probable cause.” He answered that probable cause is “a set of circumstances
that would lead a reasonable prudent person to believe that a crime had been, was being, or
was about to be committed.”20 Plaintiff’s attorney argues that his definition is erroneous.
The Supreme Court of the United States has been called upon in many cases to define,
in one context or another, probable cause. In 1925, the Supreme Court stated that probable
cause exists where “the fact and circumstances within [the officers’] knowledge, and of
which they had reasonably trustworthy information . . . [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that . . .” a crime has been or is being
committed. Carroll v. United States, 267 U.S. 132, 162 (1925). With all respect to
plaintiff’s counsel, this court cannot see any real difference between Officer Still’s definition
and that of the Supreme Court. See also, United States v. Beasase, 521 F.2d 1306 (6th Cir.

19

The transcript reveals that the officers continually talked to both women in calm,
measured tones, and did nothing (beyond their initial entry) to precipitate plaintiff’s reaction.
20

Doc. 60-2, p. 4.
16

1975): “The probable cause requirement . . . is satisfied if the facts and circumstances are such that
a reasonable prudent person would be warranted in believing that an offense had been

committed . . .” Id. , 1307.
Officer Still arrested plaintiff for public intoxication and disorderly conduct, both of
which are statutory misdemeanors in Tennessee.
The statute creating the offense of disorderly conduct is Tenn. Code Ann. § 40-7-103:
39-17-305. Disorderly conduct. – (a) A person commits an offense
who, in a public place and with intent to cause public annoyance or
alarm:
(1) Engages in fighting or in violent or threatening behavior;
(2) Refuses to obey an official order to disperse issued to
maintain public safety in dangerous proximity to a fire, hazard or
other emergency; or
(3) Creates a hazardous or physically offensive condition by
any act that serves no legitimate purpose.
(b) A person also violates this section who makes
unreasonable noise that prevents others from carrying on lawful
activities.
(c) A violation of this section is a Class C misdemeanor.

The statute that creates the offense of public intoxication, Tenn. Code Ann. § 39-17310, reads as follows:
39-17-310. Public intoxication. – (a) A person commits the offense
of public intoxication who appears in a public place under the
influence of a controlled substance or any other intoxicating
substance to the degree that:
(1) The offender may be endangered;

17

(2) There is endangerment to other persons or property; or
(3) The offender unreasonably annoys people in the vicinity.
(b) A violation of this section is a Class C misdemeanor.

Plaintiff was (1) under the influence of alcohol, by her own admission,21 and (2) she
was in a public place, viz., the apartment building hallway. The fact that she was in the
hallway at Still’s invitation is of no consequence since there is no suggestion that Still
enticed her into the hallway to ensnare her into the commission of a criminal offense.
Moreover, he and Camper asked her several times to go back into her apartment, and she did
not do so. Although plaintiff’s often-silly babbling was calculated to annoy neighbors had
she been allowed to continue her conduct, the more important consideration was her safety.
Up to the point she was arrested, her behavior was not altogether rational, and she chose to
run down the hallway rather than return to the relative sanctuary of her apartment.
As far as disorderly conduct is concerned, her behavior arguably constituted a
“physically offensive condition . . . that [served] no legitimate purpose.” However, there is
a serious question that she engaged in this conduct with the intent to cause public annoyance
or alarm.
But it is unnecessary to decide whether plaintiff’s conduct actually gave rise to
probable cause to believe that she committed either or both of the offenses for which Officer
Still charged her. At the very least, a reasonable officer in Still’s position, confronting the
facts as he describes, could have believed that there was probable cause to arrest plaintiff for
21

Complaint, ¶ 15.
18

public intoxication. That being so, under the authority of Anderson v. Creighton, supra, and
Devenpeck v. Alford, 543 U.S. 146 (2004), the defendants are entitled to qualified immunity
regarding plaintiff’s arrest.
Plaintiff also has advanced state law claims against the defendants for false arrest and
false imprisonment. Those claims have no substantive difference from her federal Fourth
Amendment claim. For precisely the same reasons as discussed with regard to the Fourth
Amendment claim, the defendants are entitled to qualified immunity regarding these two
state claims. The common law doctrine of qualified immunity applies to claims against
police officers based on state law. See, e.g., Cawood v. Booth, 2008 WL 4998408 (Tenn.
App. 2008), and Willis v. Neal, 247 Fed. Appx. 473, 477 (6th Cir. 2003).

EXCESSIVE FORCE; ASSAULT AND BATTERY
Plaintiff’s complaint merely asserts that a “defendant officer” used excessive force
on January 17, 2009, in violation of the Eighth and Fourteenth Amendments,22 and that the
same acts constituted an assault and battery under state law (¶¶ 71-73). In her deposition,
she testified that while Officer Still stood in front of her and blocked her entry into her
apartment, an unknown officer came up behind her; put his foot in her back, pushed her to
the floor; and then handcuffed her.23 Presumably this unknown officer was one of the “John

22

Complaint, ¶ 47. Again, the Fourth Amendment is the appropriate constitutional
provision, Graham v. Conner, supra.
23

Depo., Doc. 43-1, pp. 54-56.
19

Does” named as defendants in the complaint. She testified that it was when her hands were
jerked behind her back that her right wrist was injured, for which she sought and obtained
medical treatment.24
But, since the filings of the motions for summary judgment, things have taken a
peculiar turn with respect to this aspect of the case. In Still’s affidavit filed in support of his
motion for summary judgment, he says that there was no “unknown officer” in the hallway,
a fact which he asserts is borne out by the transcript.25 Thus, at the point defendants filed
their motions for summary judgment, the plaintiff had testified in her deposition that it was
an unknown officer behind her who threw her to the floor and injured her wrist while
handcuffing her, as Still blocked her entry into her apartment, which was juxtaposed with
Officer Still’s version that there was no such officer, an assertion which seems to be
corroborated by the transcript.
But in plaintiff’s response to the motions for summary judgment, she asserts for the
first time (through her attorney only, it is noted), that it was Officer Still who took her to the
ground, put his knee in her back, and placed handcuffs on her.26
First, since this assertion is by plaintiff’s lawyer, as opposed to the plaintiff herself,
it is of no use to either the plaintiff or the defendants as far as summary judgment is
concerned. Second, even if the plaintiff in some manner could explicitly adopt this statement
24

Ward’s Depo. p 64.

25

Doc. 50, ¶ 48.

26

Plaintiff’s response, Doc. 58, p. 6.
20

as her own, it still is of no use as far as summary judgment is concerned; a party who has
been examined by deposition may not rely upon an affidavit (or a statement of counsel) to
contradict the deposition so as to create an issue of fact. Farrell v. Automobile Club, 870
F.2d 1129, 1132 (6th Cir. 1989). Therefore, there indeed is an issue of fact regarding who
used excessive force on the plaintiff. Plaintiff testified on her deposition that it was an
unknown officer, whereas Still says that there was no such officer.
To thoroughly confuse the matter even further, Officer Still testified on his pretrial
discovery deposition that he applied the “wrist compression” technique on the plaintiff in
order to awaken her, which was long before she was arrested. Plaintiff, however, has not
claimed in any document or pleading that she was injured by any means other than by having
her hands jerked behind her back as described in her deposition. Therefore, as far as facts
which this court may consider for purposes of summary judgment, the court must adopt those
advanced by the plaintiff, which is that an unknown officer pushed her down from the back,
and injured her wrist while handcuffing her. Looking no further than that, plaintiff has
presented a jury question. But to what practical effect? As discussed in footnote 4, supra,
plaintiff’s suit against the John Does must be dismissed.
There is no evidence in this record that Officer Still was the officer who shoved
plaintiff from behind and handcuffed her. For that reason, Officer Still’s motion for
summary judgment is granted on the excessive force claim. The assault and battery claim
must be dismissed for the same reason since it is premised on the same facts. Similarly,
Camper’s motion for summary judgment on the excessive force and assault and battery
21

claims is granted.
Even if plaintiff unequivocally blamed Officer Still and his use of the wrist
compression technique for the injury to her wrist, he nevertheless would be entitled to
qualified immunity. He swore in his second affidavit that he was taught two techniques to
be used to arouse an unconscious person. One technique involved a “sternal rub,” which
consisted of rubbing one’s fist on the unconscious person’s sternum to produce a pain that
will cause that person to awaken. The other technique was the wrist compression described
on page 12. Still opted for the second procedure because he did not feel comfortable in
rubbing his fist between plaintiff’s breasts, and because he had used the wrist compression
technique before without ever being told that it had caused an injury.27
Although an excessive force claim is analyzed under the Fourth Amendment’s
“objective reasonableness” standard, Graham v. Conner, supra, the issue of qualified
immunity nevertheless requires an independent analysis, Saucier v. Katz, supra. If it be
assumed for the sake of discussion that the wrist compression technique was objectively
unreasonable and thus a violation of the Fourth Amendment, the right was not sufficiently
clear that Officer Still would have understood that what he was doing violated that right.
See, Anderson v Creighton, supra, at 640.
MALICIOUS PROSECUTION
Officer Still arrested plaintiff for disorderly conduct and public intoxication. Officer

27

Doc. 61-1, ¶¶ 6-14.
22

Camper had nothing to do with filing the formal charges against plaintiff.
To maintain a suit for malicious prosecution, the plaintiff must prove that (1) the
underlying judicial proceeding was instituted without probable cause, (2) that the defendant
brought that prior action with malice, and (3) the underlying action was finally terminated
in plaintiff’s favor.28 Roberts v. Federal Express Corp., 842 S.W.2d 246 (Tenn. App. 1992).
Plaintiff has come forward with no facts to contradict Officer Camper’s assertion that
he had nothing to do with procuring her prosecution for public intoxication and disorderly
conduct. Therefore, his motion for summary judgment is granted.
As far as Officer Still is concerned, as discussed earlier in this opinion, he reasonably
believed that he had probable cause to arrest plaintiff for public intoxication and disorderly
conduct, as a result of which he is entitled to qualified immunity on her claims that he
arrested her without probable cause. It logically follows that he also is entitled to qualified
immunity on his decision to prosecute her for the offenses for which he arrested her. Just as
importantly, the actual decision to prosecute was made by an assistant district attorney.29
Still’s motion for summary judgment is likewise granted.
CONSPIRACY CLAIMS
In paragraph 50 of her complaint, plaintiff alleges that Still, Camper, and the John
Does conspired on January 17, 2009, to deprive her of her constitutional rights. She does not

28

Still’s affidavit, Doc. 50, ¶ 50; Camper’s affidavit, Doc. 46, ¶ 11. The General Sessions
Court judge dismissed the case based on a finding of improper entry; it never went to trial.
29

Still’s affidavit, Doc. 50, ¶ 50.
23

specifically name those constitutional rights, nor does she describe any particular event. It
is assumed that she is generally referring to her claims of illegal entry into her apartment,
false arrest, and the excessive force used upon her during the arrest.
Plaintiff has not responded to the defendants’ motions for summary judgment on this
particular claim, so it is presumed that she concedes that she has no evidence that Camper
and Still conspired to deprive her of her constitutional rights in general, or her right to equal
protection under the law in particular, and she is obliged to come forward with such
evidence, if she has it; see, Royal Oak Entertainment, LLC v. City of Royal Oak Michigan,
205 F.Appx. 389, 399 (6th Cir. 2006).
In paragraph 51 of her complaint, she contends that Officer Still, Officer Brown, and
the John Does conspired with one another to deprive her of her constitutional rights by their
harassment of her after November 11, 2009.
As mentioned in footnote 27, supra, the General Sessions Court judge dismissed the
charges against plaintiff on the basis that Still and the other officers illegally entered
plaintiff’s apartment. She testified on her deposition that she thereafter was targeted by
Officer Still, presumably to retaliate for that dismissal. She testified that she was stopped for
speeding Officer Still, and given a ticket; she testified that another officer stared fixedly at
her; that yet another officer followed her to the gym where she worked out. The defendants
devoted considerable documentation in their motions for summary judgment that neither Still
nor any other officer harassed plaintiff. Plaintiff did not address this aspect of the
defendants’ motions for summary judgment in her response, either by argument or
24

contradictory evidence. Therefore, the defendant’s motions for summary judgment on this
claim is granted.
OUTRAGEOUS CONDUCT AND INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
Plaintiff also seeks to recover for the tort of outrageous conduct, otherwise
known as intentional infliction of emotional distress. Bain v. Wells, 936 S.W.2d 618,
622 n. 3 (Tenn.1997). * * * The Tennessee Supreme Court has summarized the
elements of an outrageous conduct claim as follows:
[U]nder Tennessee law, there are three essential elements to [an
outrageous conduct] cause of action: (1) the conduct complained of
must be intentional or reckless; (2) the conduct must be so outrageous
that it is not tolerated by civilized society; and (3) the conduct
complained of must result in serious mental injury. Id.
With regard to whether actions are “outrageous,” Tennessee adheres to the
following standard:
It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
“malice” or a degree of aggravation which would entitle the plaintiff
to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character and so
extreme in degree, as to go beyond all bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, “Outrageous.”
Id. at 623 (quoting Medlin v. Allied Inv. Co., 217 Tenn. 469, 398
S.W.2d 270, 274 (Tenn.1966) ( abrogated on other grounds by
Camper v. Minor, 915 S.W.2d 437, 444-46 (Tenn.1996)).

Northern v. Chase Scientific Glass, Inc., 207 WL 3286803 (E.D. Tenn. 2007).
The outrageous conduct for which plaintiff sues was the smashing of her door without
a warrant; injuring her wrist in an effort to awaken her; threatening to take her to jail if she
would not wake up; handcuffing her in her living room; taking her out into the hallway and
25

then arresting her for being intoxicated in a public place; arresting her for actions that the
officer thinks she would commit; and arresting her without probable cause.30
An act for which a police officer is granted qualified immunity cannot, by definition,
constitute “outrageous conduct.” If it could, then the doctrine of qualified immunity would
be meaningless. Also, plaintiff has come forward with no evidence that she has sustained
any “serious mental injury.” Accordingly, the defendants’ motions for summary judgment
regarding this claim are granted.

CLAIMS FOR MALICIOUS HARASSMENT AND CLAIMS UNDER THE
TENNESSEE HUMAN RIGHTS ACT
Plaintiff has withdrawn these claims; see, response, Document 58, page 30.
SUIT AGAINST THE CITY OF BRISTOL
There is no separate legal entity known as the “Bristol, Tennessee Police
Department;” the police department is but an agency of the City of Bristol.
All claims lodged against any officer in his official capacity is a claim against the cityemployer, Kentucky v. Graham, 473 U.S. 159, 165 (1985).
To be liable under § 1983, a city must be guilty of some act or omission that amounts
to deliberate indifference to the rights of the plaintiff, Monell v. New York City Dept. of
Social Services, 436 U.S. 658 (1978). A city cannot be liable on the basis of respondeat
superior; a city can be liable only for its actions, manifested by some municipal “custom or

30

Response, Doc. 58, p. 29-30.
26

policy,” Monell, supra.
A “failure to train,” or inadequate training, or a failure to supervise, will support a
claim of municipal liability under § 1983, but “only where the failure to train [or supervise]
amounts to deliberate indifference to the rights of persons with whom the policy come into
contact.” City of Canton v. Harris, 489 U.S. 378 (1989).
Blaine Wade, Chief of the Bristol Police Department, filed an affidavit in support of
the city’s motion for summary judgment in which he states that all four officers – Still,
Camper, Overbey, and Carter – had received all training required by the Peace Officer
Standards Training Commission of the State of Tennessee, and were certified law
enforcement officers in the State of Tennessee; and that he had no knowledge or information
prior to January 17, 2009 that would have alerted him or the city of Bristol that any of these
officers required further training or supervision.31
In 1981, the Tennessee legislature created the Peace Officers Standards Training
(“POST”) Commission, Tenn. Code Ann. § 38-8-101, et. seq. That Commission was and
is charged with the responsibility of developing, planning, and implementing law
enforcement training programs for all local law enforcement officers in the state of
Tennessee.32 Further, the Commission is required to establish unified standards for the
employment and training of police officers, and to establish minimum standards and
curriculum requirements offered by any political subdivision or agency for the purpose of
31

Doc. 42.

32

38-8-104.
27

training police recruits or officers.33 The minimum standards for police officers established
by the Commission are binding on all governmental entities.34 The Commission issues a
certificate of compliance to any person “who meets the qualifications for employment and
satisfactorily completes an approved recruit training program.”35
If Still and the other police officers were certified by the POST Commission, then the
issue of the adequacy vel non of their training is resolved. If the training was inadequate,
then it necessarily follows that the standards established by the POST Commission was
inadequate or, alternatively, that the facility at which these officers received their training,
approved by the POST Commission, provided inadequate education and training, which
again necessarily implicates the inadequacy of the POST Commission’s requirements for
training police officers in this state.
If it be assumed for the sake of discussion that the POST Commission’s minimum
requirements were deficient in some particular, or that a Commission-approved training
facility rendered inadequate instruction notwithstanding that it was a facility approved by the
Commission, either circumstance could not make the City of Bristol liable. The POST
Commission is the agency charged by the Tennessee legislature with establishing approved
facilities for the training of all police officers in this state.
Of course, even though the training program itself is adequate, it is possible that the
33

Id.

34

38-8-105.

35

38-8-107(a).
28

student, i.e., the police officer, forgot – or chooses to ignore – the training he received, as a
result of which he violates someone’s constitutional rights. That circumstance, of course,
implicates a “failure to supervise.” But a city cannot be deliberately indifferent for failing
to supervise if nothing has occurred to put the city on notice that an officer needs additional
training or discipline, Gibson v. City of Clarksville, TN, 860 F.Supp. 450 (M.D. Tenn. 1993).
Referring once again to Chief Wade’s affidavit, he had no knowledge or information prior
to the events in plaintiff’s apartment in January 2009 that Officer Still required further
training or supervision.
In her response to the City’s motion for summary judgment, plaintiff argues that
Officer Still’s lack of knowledge of the proper definition of probable cause is an indication
of his lack of training. As previously discussed, Officer Still’s definition of probable cause
was substantially correct.
Plaintiff argues that the Bristol Police Department had a “practice of allowing officers
to enter into a citizen’s home without securing a warrant,” and she refers to Sergeant
Smalling’s verbal authorization to Officer Still to kick in plaintiff’s door as evidence of that
custom or practice. All other considerations aside, a one-time authorization to kick in a door
does not a custom or practice make. More importantly, for reasons previously discussed, a
forced warrantless entry into plaintiff’s apartment was justified by the exigencies of the
situation.
Lastly, plaintiff argues that Officer Still’s deposition testimony that he does not need
a warrant to arrest a person, but only an affidavit, is a manifestation of the inadequacy of his
29

training. The colloquy between Officer Still and plaintiff’s attorney during Still’s deposition
does not remotely suggest that Officer Still was or is ignorant of what is required before an
arrest may be made. Under appropriate circumstances warrantless arrests in Tennessee are
valid, and the commission of a misdemeanor in the sight and presence of a police officer will
support a warrantless arrest; see, Tenn. Code Ann. § 40-7-103.
There is no evidence in this record from which a jury could conclude that the city was
deliberately indifferent to plaintiff’s rights, as a result of which the city’s motion for
summary judgment should be granted.
CONCLUSION
(1) The City of Bristol’s motion for summary judgment,(Doc. 39), is GRANTED;
(2) Officer Camper’s motion for summary judgment, (Doc. 43), is GRANTED;
(3) Officer Still’s motion for summary judgment, (Doc. 47), is GRANTED;
(4) The suit against all “John Doe” defendants is DISMISSED on the court’s own
motion; and
(5) A judgment dismissing plaintiff’s suit will be filed.
ENTER:

s/ Dennis H. Inman
United States Magistrate Judge

30