Opinion
Civil Action No. 2:05cv008-T (WO).
December 29, 2005
Eva Bullard, for Plaintiff, represented by Erik Stephen Heninger, Heninger Burge Vargo Davis, Birmingham, AL.
Stephen Don Heninger, Heninger Burge Vargo Davis, Birmingham, AL.
Jan McIntyre, for Plaintiff, represented by, Jan McIntyre, Pro se.
City of Andalusia, Alabama, for Defendant, represented by James H. Pike, Cobb Shealy Crum Derrick PA, Dothan, AL.
Roger Cender for Defendant, represented by James H. Pike, Steadman Stapleton Shealy, Jr., Cobb Shealy Crum Derrick PA Dothan, AL.
OPINION
In this lawsuit, plaintiff Eva Bullard claims that defendant Mike Finley, a police officer with the City of Andalusia, Alabama, violated the Fourth Amendment of the United States Constitution (as enforced through 42 U.S.C.A. § 1983) and Alabama law when he used excessive force and assaulted her during a crime-scene confrontation.
Based on representations of the parties at a pre-trial conference, the court issued an order on December 5, 2005 (Doc. No. 44) dismissing plaintiff Jan McIntyre and her claims, defendant Officer Roger Cender, and defendant City of Andalusia, Alabama.
Jurisdiction over Bullard's federal claim is proper pursuant to 28 U.S.C.A. §§ 1331 (federal question) and 1343 (civil rights); supplemental jurisdiction over the state-law claim is proper under 28 U.S.C.A. § 1367.
This case is before the court on Finley's motion for summary judgment. As explained below, the motion will be granted.
I. SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court's role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In doing so, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. BACKGROUND
The facts, presented in the light most favorable to Bullard, the non-moving party, are as follows:
The facts of this case are extensively set forth in the transcript of the state-court criminal trial of former plaintiff Jan McIntyre, who was convicted by a jury of obstructing governmental operations during the events in question. Exhibit 1 to brief in support of defendants' motion for summary judgment (Doc. No. 19), orders of June 15, 2005, and June 18, 2005, by Charles A. Short, Circuit Judge, in City of Andalusia v. McIntyre, Circuit Court of Covington County, Alabama, case no. CC-2004-175.
On January 17, 2004, Greg Palmer received a telephone call advising him that his sister's house was being burglarized; Palmer's sister and her husband were out of town. Palmer called the police and drove to his sister's house with his wife and several friends. Police officers arrived and ultimately arrested two burglary suspects.
Attachment 1 to brief in support of defendants' motion for summary judgment (Doc. No. 19), trial transcript of City of Andalusia v. McIntyre, Circuit Court of Covington County, Alabama, case no. CC-2004-175 ("Trial transcript"), p. 8.
Trial transcript, pp. 84, 120.
Finley, who had arrived on the scene after the initial arrests, agreed to stand guard in the nearly mile-long driveway leading up to the house as a search was conducted. Meanwhile, after hearing about police activity at the home, Bullard (who was the mother of the homeowner), her daughter, and her 17-year-old granddaughter arrived separately.
Id. , p. 173-174.
Finley was under orders that, because an investigation was underway, he was not to allow anyone to approach the house. In the driveway, Bullard and her daughter repeatedly insisted that they be allowed into the house, and Finley called for backup assistance. When the daughter tried to walk past Finley, he physically stopped her by grabbing her arm and stated that he was securing the scene, that he had no further information, and that he would be forced to arrest her if she continued to attempt to reach the house.
Id. , pp. 152-153.
Attachment 7 to brief in support of defendants' motion for summary judgment (Doc. No. 19), deposition of Eva Bullard ("Bullard deposition"), p. 63-64, 66; Trial transcript, p. 182.
Trial transcript, p. 186.
Id. , p. 182.
Id. , pp. 182-183.
While Finley spoke to Bullard, another officer arrived and began speaking to Bullard's daughter. The confrontation between the officer and the daughter escalated, and the officer attempted to place the daughter under arrest. Bullard's daughter twice evaded the officer's attempts to handcuff her in such a way that he fell to the ground. The daughter began moving towards her car, the officer sprayed her with pepper spray, and the daughter fell to the ground, where she was handcuffed.
Id. , pp. 188-189.
Attachment 6 to brief in support of defendants' motion for summary judgment (Doc. No. 19), deposition of Jan McIntyre ("McIntyre deposition"), p. 202.
Id. , p. 211.
While the testimony concerning Bullard's subsequent actions is conflicting, it is undisputed that as her daughter was being escorted to a police vehicle in handcuffs, Bullard approached and put her arms around her daughter. Her daughter testified in deposition:
"A. She touched me and grabbed me when he was taking me to the police car. I remember Mother coming up and holding me and trying to — she was in front of me not letting him — you know, she said, you don't — this is a mistake. You shouldn't do this. . . . She was in front of me. [Officer] Cender was behind me pushing. To my knowledge — I could not see — she never touched Cender, because she was in front of me holding me the whole time, because I couldn't breath[e]. . . .
"Q. Does she stand between you and the path Officer Cender is walking you on?
"A. Yes, sir.
"Q. In other words, she was blocking the path that he was trying to use to take you to the police car?
Id. , pp. 214-215.
Elsewhere in the record, Bullard's actions were described by her daughter similarly: "My mother was saying that she was not going to let them arrest me. . . . They were telling Mother to calm down or they were going to have to handcuff her also. . . . I felt my mother hugging me and pulling at me and telling me not to get in the car."
Attachment 13 to brief in support of defendants' motion for summary judgment (Doc. No. 19), Plaintiffs answer to 2nd request for admissions, p. 5.
Bullard denies that she blocked the officer's path, describing the scene in the following way: "And naturally when they maced [my daughter], she was crying. And I went to her and put my arms around her and trying to console her."
Bullard deposition, p. 34.
Officer Finley's response to these actions forms the crux of the matter before the court, and, although the precise chronology is somewhat muddied in the record, it is undisputed that Finley attempted to remove Bullard from the immediate vicinity as her granddaughter leapt onto his back. A third officer on the scene prepared to use pepper spray against Bullard. In Bullard's own words: "[Finley] said, I'll handcuff you. And I slung away from him. I said, no, you won't. He grabbed me, physically grabbed me and slung me into the board fence."
Trial transcript, p. 552.
Attachment 3 to notice of filing exhibits in support of defendants' reply to plaintiff's brief in opposition to defendants' motion for summary judgment (Doc. No. 27), deposition of Mike Finley ("Finley deposition"), p. 105.
Bullard deposition, p. 35.
Subsequently, as Bullard's daughter shouted from the police car for her mother to cross the police line, Bullard entered her vehicle and attempted to drive toward the house, finally stopping after pushing Finley, who had stepped in front of the vehicle, back several paces.
Trial transcript, p. 198.
Bullard deposition, p. 37; trial transcript, p. 201.
Bullard was never arrested. She claims to have sustained bruises and contusions on her arm from Finley's attempt to remove her. Later in the evening of the incident, she went to the emergency room. The next morning, she was told she had had a heart attack, and was hospitalized for a week. Bullard, however, has produced no medical evidence to sustain that she, in fact, had had a heart attack.
Id. , pp. 40-41.
III. FEDERAL CLAIM: EXCESSIVE FORCE
Bullard alleges that Finley used excessive force when he threw her into a fence. Bullard correctly asserts her claim under the Fourth Amendment to the United States Constitution: "All claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 394 (1989).Although Finley's actions were limited to physically removing Bullard from the immediate vicinity of an arrest-in-progress, did not result in further restraint or arrest, and did not stop Bullard from continuing her attempts to cross a police line, his actions nonetheless constituted a seizure. See California v. Hodari D., 499 U.S. 621, 626 (1991) ("application of physical force to restrain movement, even when it is ultimately unsuccessful," is sufficient to constitute a seizure); Yelverton v. Vargo, 386 F.Supp.2d 1224, 1228 (M.D. Ala. 2005) (Thompson, J.) (police officer's spraying of truck driver with pepper spray, as driver was taking vehicle out of parking lot of bar in violation of officer's order to stop, was "seizure" for Fourth Amendment purposes, even though spraying did not prevent driver from leaving scene).
Finley has raised the affirmative defense of `qualified immunity.' This doctrine insulates government agents from personal liability for money damages for actions taken in good faith pursuant to their discretionary authority. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). To be entitled to qualified immunity, a defendant must establish "that he or she acted within the scope of discretionary authority when the allegedly wrongful acts occurred." Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir. 1992). Once this is proven — and no one disputes that Finley acted within his discretionary authority — the burden shifts to the plaintiff to show that qualified immunity is not appropriate. Crosby v. Monroe County, 394 F. 3d 1328, 1332 (11th Cir. 2004).
The term `discretionary authority' includes all acts of a governmental official that are (1) undertaken pursuant to the performance of official duties and (2) within the scope of the official's authority. Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994). It is undisputed that, during the events in question, Finley was acting in his capacity as a police officer. Therefore, his acts were within the scope of his discretionary authority.
A two-step analysis ensues: "The threshold inquiry is whether plaintiff's assertions, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736 (2002). If the court determines that the plaintiff has not alleged a deprivation of a constitutional right, then the inquiry ends. County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998). However, if the court determines that the plaintiff has, in fact, alleged a deprivation of a constitutional right, then further inquiry is needed as to "whether that right allegedly implicated was clearly established at the time of the events in question." Id. Even if a constitutional violation occurred, public employees are shielded from liability if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. In sum, "[i]n order to demonstrate that the official is not entitled to qualified immunity, the plaintiff must show two things: (1) that the defendant has committed a constitutional violation and (2) that the constitutional right the defendant violated was `clearly established' at the time he did it." Crosby, 394 F.3d at 1332.
In analyzing an excessive-force claim, the key inquiry "is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397. It is well established that the government's 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." Id. at 396. The court must be mindful to judge an officer's acts "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. Moreover, the court must allow for the fact that police officers "must often 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. at 397.
From this perspective, the court must also balance several factors in evaluating the proper application of force, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. The force used by the officer must be reasonably proportionate to the need for force in light of these factors. Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002).
A. Legitimacy of the Use of Force: Bullard appears to argue that, because Finley did not arrest her, his use of force by definition was a constitutional violation. In Jones v. City of Dothan, 121 F.3d 1456 (11th Cir. 1997), the appellate court found no constitutional violation when officers `slammed' the plaintiff against a wall and kicked his legs apart (later requiring the plaintiff to seek medical treatment for his arthritic knee), but did not ultimately arrest the plaintiff. Implicit in Jones is the understanding that an officer's decision not to arrest a person against whom force has been applied does not render the application of that force per se excessive.
Here, although Bullard was not a suspect in a crime, Finley and the other officers at the scene certainly had the authority to assert some level of control over her actions. "A police officer performing his lawful duties may direct and control — to some extent — the movements and location of persons nearby, even persons that the officer may have no reason to suspect of wrongdoing." Hudson v. Hall, 231 F.3d 1289, 1297 (11th Cir. 2000); see also Michigan v. Summers, 452 U.S. 692, 702-703 (1981) ("The risk of harm to both the police and the occupants [of a house during a search] is minimized if the officers routinely exercise unquestioned command of the situation."). The simple fact that Bullard was not arrested does not revoke the otherwise legitimate status of the force used against her.
Bullard also asserts that she posed no threat and that this should have been apparent because Finley is both younger and larger than she is. Yet the undisputed facts show that Bullard physically interjected herself in the on-going arrest of her daughter, who had actively resisted that arrest. That a reasonable officer would have believed some degree of force would be required to control Bullard's actions is not only self-evident, it is supported by the fact that another officer at the scene was preparing to use pepper spray against her.
Plaintiff's brief in opposition to defendants' motion for summary judgment (Doc. No. 23), p. 11.
Even giving full credence to Bullard's assertion that her only intent was to comfort her daughter and disregarding evidence that Bullard verbalized her intent to prevent the arrest of her daughter, the court must still hold that the only reasonable conclusion, from the perspective of a reasonable officer on the scene, is that some force was necessary. Such an officer would have observed Bullard challenging the officer's instructions to stay away from the crime scene, Bullard's daughter vigorously and physically resisting a lawful arrest, and Bullard physically attaching herself in some way to her daughter as her daughter was led away in handcuffs. Any reasonable officer could have interpreted Bullard's interference as an attempt to prevent the arrest of her daughter.
Attachment 13 to brief in support of defendants' motion for summary judgment (Doc. No. 19), plaintiffs' answer to 2nd request for admissions, p. 5.
B. Proportionality of Force: While Finley acted well within his authority in applying some level of force when separating Bullard from her daughter and the arresting officer, the court must review whether the amount of force used was reasonably proportionate to the need: Finley slung Bullard away from the scene, and she hit a fence.
As discussed above, a reasonable officer could have interpreted Bullard's actions as interfering with an arrest during which the arrestee had already physically resisted the arresting officer. Finley was then required to make a `split-second' decision about the amount of force necessary to separate Bullard from her daughter. He made this decision in the context of Bullard's own resistance ("I slung away from him. I said, no, you won't."), as well as the interference of Bullard's granddaughter, who by this time had leaped onto Finley's back. Indeed, Finley confronted precisely the type of tense, uncertain, and rapidly evolving situation envisioned in Graham.
Bullard deposition, p. 35.
It is certainly regrettable that Bullard sustained injuries from this unfortunate confrontation, but "government officials are not required to err on the side of caution." Marsh v. Butler County, 268 F.3d 1014, 1031 n. 8 (11th Cir. 2001) (en banc). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers . . . violates the Fourth Amendment." Graham, 490 U.S. at 396.
The Eleventh Circuit in Jones v. City of Dothan, 121 F.3d 1456 (11th Cir. 1997), where the plaintiff was forced to seek medical attention after officers `slammed' him into a wall and kicked his legs apart, found that "the actual force used and the injury inflicted were both minor in nature." Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997). Similarly, the court here finds that, in the specific context of the circumstances faced by Finley, his use of force in slinging Bullard away from the scene, with the result that she hit a fence, was reasonably proportionate to the need for force in light of the Graham factors.
The possibility that Bullard may have suffered a heart attack subsequent to the events in question does not change the analysis. "What would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre-existing condition the extent of which was unknown to the officer at the time." Rodriguez v. Farrell, 280 F.3d 1341, 1353 (11th Cir. 2002) (finding no constitutional violation when arrest resulted in amputation of arrestee's arm because of serious pre-existing injuries of which officers were unaware); see also Silverman v. Ballantine, 694 F.2d 1091 (7th Cir. 1982) (concluding that force used was not, as a matter of law, excessive even though arrestee died of heart attack during arrest).
Indeed, because Bullard has presented no admissible medical evidence to support her statement that she suffered a heart attack, Finley objects to the statement as inadmissible hearsay. The court need not resolve this objection.
Even if not the result of a pre-existing condition, Bullard has failed to show that her claimed injury — a heart attack — was a `likely consequence' of the method of force used by Finley. Absent such a showing, the injury remains irrelevant to the constitutional inquiry. Garrett v. Athens-Clarke County, 378 F.3d 1274 (11th Cir. 2004) (finding no constitutional violation in plaintiff's death by asphyxiation after being `hog-tied' during an arrest, when use of force was otherwise reasonable and no evidence was presented that death was a likely consequence).
Because Bullard's assertions fail to state a constitutional violation, the analysis of Finley's qualified-immunity defense ends, and summary judgment will be granted in favor of Finley on Bullard's federal claim.
IV. STATE-LAW CLAIM: ASSAULT AND BATTERY
Bullard asserts a claim of assault and battery against Finley under Alabama common law. Finley responds that he is immunized from such a claim by state law, 1975 Alabama Code § 6-5-338(a), which grants statutory immunity from tort liability to police officers for "conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties." The immunity, however, does not protect conduct that is "so egregious as to amount to willful or malicious conduct or conduct engaged in bad faith." Couch v. City of Sheffield, 708 So. 2d 144, 153 (Ala. 1998).To apply discretionary-function immunity, the court must first determine whether the police officer was performing a discretionary function when the alleged wrong occurred. If so, "the burden shifts to the plaintiff to demonstrate that the defendant acted in bad faith, with malice or willfulness in order to deny [him] immunity." Scarbrough v. Myles, 245 F.3d 1299, 1303 n. 9 (11th Cir. 2001) (alteration in original) (applying Alabama law and quoting Sheth v. Webster, 145 F.3d 1231, 1239 (11th Cir. 1998) (per curiam)).
Bullard asserts that, because "it is not proper for a police officer to assault and batter citizens," Finley was not performing a discretionary function during the events in question. In addition to assuming the fact that the argument seeks to establish — that an assault occurred — this argument misapprehends the concept of discretionary function under state law: "Simply stated, the statute shields every defendant who (1) is a `peace officer,' (2) is performing `law enforcement duties,' and (3) is exercising judgment or discretion." Howard v. City of Atmore, 887 So. 2d 201, 204 (Ala. 2003). It is undisputed that Finley qualifies as a peace officer, and for reasons stated above, it was within the scope of proper law-enforcement duties for him to assert some level of control over Bullard's actions at the scene, even though Bullard herself was not a criminal suspect.
Brief in opposition to defendants' motion for summary judgment (Doc. No. 23), p. 13.
There is no evidence of the malice, willfulness, or bad faith required to overcome the immunity granted by statute. Bullard seems to argue that such evidence can be gleaned from the fact that she was not arrested. Although believed he could have arrested Bullard for obstructing a governmental operation, disorderly conduct, and resisting arrest, he did not do so because he felt that Bullard had not precipitated the confrontation. Therefore, his decision not to arrest her indicates, if anything, that he acted entirely without malice or bad faith in his interactions with Bullard. Summary judgment is appropriate on Bullard's state-law assault-and-battery claim.
Finley deposition, pp. 133-135.
Finley testified as follows:
"Q. Why wasn't [Bullard] arrested?
"A. Because it was my judgment, opinion, and I felt that Ms. McIntyre [Bullard's daughter] caused the situation."Id., p. 135.
V. CONCLUSION
For the foregoing reasons, the court concludes that summary judgment in favor of Finley is due on Bullard's federal and state-law claims. An appropriate judgment will be entered.