Burch v. City of Florence
Burch v. City of Florence
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Plaintiff, John Wesley Burch, who is proceeding pro se, filed this case on September 7, 2010.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment 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). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute -will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).
II. PROCEDURAL HISTORY
As a result of plaintiffs pro se status, this case has a somewhat unusual procedural history. A brief recitation of that history will be helpful to a complete understanding of this case.
Plaintiff did not submit any evidence, or a brief, in opposition to defendants’ motions for summary judgment. In fact, plaintiff has a history of missing court-ordered deadlines and disregarding the court’s procedures throughout this litigation. For example, on August 17, 2011, the court granted defendants’ motion to compel discovery and ordered plaintiff to serve defendants with his initial disclosures and responses to all of defendants’ written discovery requests.
On December 2, 2011, after approximately six months of unsuccessfully attempting to schedule plaintiffs deposition
Plaintiff later sought a further extension of the discovery deadlines,
If plaintiff makes any future special requests for late filings, he will be required to submit with the filing a detailed, sworn statement of the nature of his alleged emergency. If the court deems plaintiffs statement to be insufficient, plaintiff may be subject to sanctions, including having his pleading stricken from the record, for abuse of the court’s procedures. Forgetting a deadline or other lack of diligence will not be an acceptable excuse. Even though plaintiff is proceeding pro se, he still must be expected to comply with basic court rules and procedures.15
On May 25, 2012, plaintiff filed pages of briefing and evidence in support of a motion for joinder of this case with another lawsuit he filed in this district.
Defendants filed their motions for summary judgment on June 11, 2012.
Despite the court’s clear directives, plaintiff did not file a response to either motion for summary judgment before July 24. Indeed, the court heard nothing further from plaintiff until August 17, 2012, when he filed a “motion requesting leave to file out of time motion to strike with incorporated memorandum in excess of page limitation.”
Plaintiff never filed, or attempted to file, any response to defendants’ summary judgment motion that would have come even close to complying with the requirements of the Appendix to the Uniform Initial Order. With regard to the manner of stating facts in a summary judgment brief, the Appendix provides:
D. Manner of Stating Facts
All briefs submitted either in support of or opposition to a motion must begin with a statement of allegedly undisputed relevant material facts set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. All statements of fact must be supported by specific reference to evidentiary submissions.
1. Moving Party’s Initial Statement of Facts
The moving party shall list in separately numbered paragraphs each material fact the movant contends is true and not in genuine dispute, and upon which the moving party relies to demonstrate that it is entitled to summary judgment. Each such statement must be followed by a specific reference to those portions of the evidentiary record that the movant claims supports it.
2. Opposing Party’s Statement of Facts
Each party opposing a summary judgment motion also must submit a statement of facts divided as follows.
a. Response to Movant’s Statement
The first section must consist of only the non-moving party’s disputes, if any, with the moving party’s claimed undisputed facts. The non-moving party’s response to the moving party’s claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the moving party’s claimed undisputed facts. Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be admitted for summary judgment purposes unless controverted by the response of the party opposing summary judgment.
b. Additional Undisputed Facts
The second section may contain additional, allegedly undisputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The second section of the opposing party’s statement of facts, if any, shall be clearly designated as such. The opposing party should include only facts which the opposing party contends are true and not in genuine dispute.
The third section may contain additional, allegedly disputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The third section of the opposing party’s statement of facts, if any, shall be clearly designated as such. Each statement of allegedly disputed facts must be followed by specific reference to those portions of the evidentiary record which both support and contradict the alleged fact.
The Uniform Initial Order also clearly states that any briefs that do not strictly comply with the summary judgment requirements may be stricken.
Plaintiff did not state any proposed facts in separately numbered paragraphs, and he did not respond, paragraph-by-paragraph, to any of defendant’s proposed facts. Thus, as stated in the Uniform Initial Order, plaintiff is deemed to have admitted defendants’ factual assertions. Moreover, plaintiff did not submit any evidence to counter defendants’ assertions, so there may not be many (if any) factual discrepancies to construe in plaintiffs favor. Even so, because plaintiff is not represented by counsel, the court will take special care to ensure that all of the factual assertions in defendants’ briefs are supported by the record, and to determine whether there are any other relevant facts in the record that were not highlighted by defendants’ briefs.'
III. SUMMARY OF FACTS
A. Background and Plaintiffs History with the City of Florence Police Department
Plaintiff, John Wesley Burch, is a resident of Florence, Alabama. He does not have a permanent address, but he receives mail at his parents’ home in Florence, and he divides his time between staying in the homes of Florence friends and sleeping in
Burch has performed a variety of odd jobs, including sometimes working since 2004 as a freelance private investigator, or as an assistant to a private investigator.
The Florence Police have received several complaints from private citizens about plaintiffs photographic and other unusual activities. On February 12, 2004, for example, the police received a report that plaintiff had been parked in the parking lot of Weeden Middle School for a few days with a camera in his hands. When police approached plaintiff, he stated that he was assisting in a private investigation.
On February 15, 2008, an individual named Tom McClusky reported that he and his wife had noticed plaintiff taking photographs of the license plates of various vehicles, including McClusky’s own vehicle, and writing down information on a note pad.
On February 20, 2008, an individual named Brod Sheppard filed a complaint stating that plaintiff began taking photographs of him as he left home for work, and then followed Sheppard in his vehicle while continuing to take photographs of him.
On March 3, 2008, an individual named Homer Cheek reported that plaintiff took photographs of his twelve-year-old daughter and niece in a McDonald’s restaurant with a cellular telephone camera. Employees at the McDonald’s restaurant informed the officer investigating the report that other patrons had complained about plaintiff taking pictures of them in the past.
On July 9, 2008, a bank security officer reported that plaintiff had been photographing the bank while parked in a parking lot across the street.
On September 6, 2008, an individual named Adam Hudson reported that plaintiff took photographs of him and some friends outside the Rivertown Coffee Shop, and that plaintiff earlier had been following them around the town.
On November 17, 2008, an individual named Jason Robnett reported that plaintiff took a photograph of him inside the Rivertown Coffee Shop, and that plaintiff also followed Robnett outside the coffee shop and took a picture of Robnett’s car and tag.
On December 5, 2008, an individual named Stanley Goldstein reported that plaintiff had been taking photographs of his house, and also took pictures of him at Rivertown Coffee Shop. A witness also reported that plaintiff had been taking pictures of young ladies at the coffee shop. As a result, the owner of the coffee shop permanently banned plaintiff from the premises.
On May 22, 2009, an individual named Cynthia Berryhill reported that plaintiff snapped photographs of her, her daughter, and their vehicle.
On October 29, 2009, plaintiff was permanently barred from the Florence Nursing and Rehab Center premises due to “suspicious behavior.”
With the exception of the February 2004 incident at Weeden Middle School, plaintiff acknowledged that he was not performing an official private investigatory assignment during any of the incidents recounted above.
Defendant Luke McIntyre, an officer of the Florence Police Department, testified that plaintiff was generally known to him and other officers because of the numerous complaints that had been lodged against him. McIntyre and other officers were directed to either make contact with plaintiff, or to keep a close watch on him while
On July 18, 2008, plaintiff was at the Rivertown Coffee Shop for a poetry reading. He was sitting quietly, working on his computer, when Ira Davis, a plain clothes Florence Police Officer, sat in a chair across from plaintiff and began asking questions about plaintiffs use of his camera. Davis eventually identified himself as a police officer, but he refused to provide an explanation of why he was questioning plaintiff.
On July 21, 2008, plaintiff was again at the Rivertown Coffee Shop when he saw defendant Luke McIntyre park his patrol car in front of the shop in an abnormal manner that indicated he might be responding to an emergency. On that occasion, however, McIntyre did not speak to plaintiff or touch any of his possessions.
On August 13, 2008, at 4:30 a.m., plaintiff was driving on Court Street in Florence when McIntyre pulled him over, and asked to see his license and proof of insurance coverage. McIntyre did not tell plaintiff why he had made the traffic stop, but he did issue plaintiff a citation for failure to carry proof of insurance.
During the few weeks leading up to September 6, 2008, McIntyre learned that
B. The September 6, 2008 Incident
Most of plaintiffs allegations in this lawsuit arise out of an incident that occurred on September 6, 2008. Plaintiff was driving along a Florence street named “Dr. Hicks Boulevard” when he noticed a sport utility vehicle (“SUV”) driving close behind him. So, he moved into a turn lane to make a left turn onto Wood Avenue. The SUV moved into the turn lane behind plaintiff.
The SUV following plaintiff was, in fact, McIntyre’s personal vehicle. McIntyre had just completed a shift working for the Florence Police Department, and he was accompanied by Eddie Grissom, a passenger for whom he was providing a ride home. McIntyre was still wearing his police uniform. McIntyre testified that he was turning onto Wood Avenue from Dr. Hicks Boulevard because that was the proper route to Grissom’s home. While waiting at the traffic light for the turn onto Wood Avenue, McIntyre noticed that the car in front of him was being driven by an individual he believed to be plaintiff. McIntyre thought he noticed plaintiff making eye contact with him in his rear-view mirror. McIntyre observed plaintiff make the left turn onto Wood Avenue and the right turn into the credit union parking lot. McIntyre testified that plaintiff failed to use his turn signal when turning into the credit union parking lot,
McIntyre had contacted police dispatch at some unspecified point to report his location and situation, and other officers arrived on the scene sometime after McIntyre removed plaintiff from his car.
Eventually, McIntyre reached into plaintiffs car and grabbed plaintiffs camera.
It was significant to me that Mr. Burch had previously been reported photographing cheerleaders on school property at a time when he may well have been trespassing. The other incidents of which I was aware and in which Mr. Burch was allegedly involved in suspicious and unexplained photographing activity likewise were significant to me in forming the belief that Mr. Burch’s activities justified further investigation. I strongly suspected and anticipated, based upon previous reports, that Mr. Burch’s digital camera would contain photographs indicating that he had followed one or more persons and taken pictures while trespassing on private property, which would constitute the crime of criminal surveillance. Additionally, I was concerned for my own safety given the threats that existed against me, and given the unexplained and odd nature of Mr. Burch’s conduct in photographing my vehicle. Given all of the foregoing, I made a determination that I had probable cause to enter the vehicle in order to examine the contents of the digital camera, which I knew was in the vehicle.97
McIntyre spent several minutes looking through the photographs recorded in the software or on the hard drive of plaintiffs digital camera.
McIntyre eventually located the photograph that plaintiff had taken of the license plate on McIntyre’s car and deleted the picture.
Defendant Philip Moss witnessed McIntyre deleting the photograph from plaintiffs camera. In fact, he and McIntyre discussed the situation beforehand, and McIntyre informed Moss that he intended to enter plaintiffs vehicle, look at any photographs on plaintiffs camera, and delete any photograph he might have taken of McIntyre’s license plate. Moss attested that he believed McIntyre had probable cause to enter plaintiffs vehicle and search the camera for evidence of criminal activity, but he never stated that he believed McIntyre was justified in deleting the photograph. Neither McIntyre nor Moss testified that Moss advised McIntyre whether he should delete the photograph.
After McIntyre deleted the picture, he allowed plaintiff to leave the scene without being arrested.
C. The October 28, 2009 Search Warrant Affidavit
On October 28, 2009, plaintiff was pulled over in a traffic stop by Alabama State Trooper Jeremy Baker, who is the brother-in-law of defendant Luke McIntyre.
There is no deposition or affidavit testimony from Trooper Jeremy Baker in the record, but McIntyre testified that he had talked about plaintiff with his brother-in-law in a casual manner during family dinners. Specifically, McIntyre informed Baker that, sometime after the September 6, 2008 incident, he thought he observed plaintiff photographing him and his young daughter while he was pumping gas at a Florence gasoline station.
D. Facts Related to the City’s Liability
Plaintiff testified that he never filed a report about the September 6, 2008 incident with the Internal Affairs Division of the Florence Police Department or any other City agency.
Defendants, on the other hand, produced evidence to counter plaintiffs allegations. Melissa Beasley, the Commander of the Florence Police Department’s Criminal Investigations Division and the Office of Integrity and Compliance (which formerly was known as' the Internal Affairs Division), attested that the Department requires all officers to attend training on the Alabama State Standards for Law Enforcement, which includes instruction on Alabama laws and pertinent federal constitutional rights.
Officer Beasley also attested that the Department’s Office of Integrity and Compliance (“the Office”) is responsible for processing and investigating both internal and external complaints of officer misconduct, including allegations of constitutional violations. The Office has plenary authority to conduct its investigations, and all officers are required to fully comply.
Beasley also attested that it “is and has long been the policy and practice of the Office to maintain all files of officer complaints, and not to destroy those files.”
IY. DISCUSSION
A. Claims Against Individual Defendants McIntyre and Moss
Plaintiff sued Luke McIntyre and Philip Moss in their official and individual capacities.
1. Official capacity claims
Defendants assert that plaintiffs claims against them in their official capacities as police officers for the City of Florence should be dismissed because they are redundant of plaintiffs claims against the City itself. Defendants are correct that official-capacity suits
“generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon [v. Holt ], 469 U.S. [464], 471-472 [105 S.Ct. 873, 83 L.Ed.2d 878 (1985) ].
Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (alterations supplied). Accordingly, plaintiffs official capacity claims against McIntyre and Moss will be dismissed with prejudice.
2. Individual capacity claims
McIntyre and Moss assert that they each are entitled to qualified immunity from plaintiffs claims against them in their individual capacities. The doctrine of qualified immunity protects governmental officials who are sued under 42 U.S.C. § 1983 for money damages in their personal, or individual, capacities, but only so long as “their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Courts generally apply a two-part test for evaluating whether a defendant is entitled to qualified immunity. The “threshold question” for the district court to ask is whether the facts, viewed “in the light most favorable to the party asserting the injury,” show that “the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Plaintiff alleged the following in his amended complaint:
The Fourth Amendment prohibits police from stopping an automobile and detaining the driver unless they have a reasonable, articulable suspicious [sic] that the driver is violating or is about to violate the law. By stopping and detaining Mr. Burch for no legal reason and then refusing to tell him why he had been pulled over, or why he was dragged from his car and violently thrown to the ground and handcuffed, or why his car had been searched, or why his camera was examined, or why the photograph of Officer McIntyre’s SUV had been deleted, Officer Luke McIntyre deprived Mr. Burch of his right to be secure in his person and to be free from unreasonable searches and seizures as protected by the Fourth and Fourteenth Amendments of the United States Constitution.128
He also alleges that McIntyre’s actions deprived him of his “right to be free from an unlawful search of Plaintiffs ' vehiele[ and] the right to be free from- the unreasonable seizure, inspection, and deletion of photographs on the Plaintiffs camera by Officer Luke McIntyre.”
Insofar as this claim addresses the initial traffic stop, or the level of force McIntyre used in removing plaintiff from his vehicle, those issues are addressed below, in the sections on unlawful arrest and excessive, force. Insofar as the claim relates to McIntyre’s search of plaintiffs car, examination of plaintiffs camera, and deletion of a photograph, it warrants more discussion.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.. Const, amend. IV. This fundamental right is generally preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer upon a showing of probable cause. See Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999). There are, of course, exceptions to the general rule that a warrant must be secured before a search is undertaken, one of which is the automobile exception. Under the automobile exception, agents may conduct a warrantless search of a vehicle if (1) the vehicle is readily mobile (i.e., operational); and (2) agents have probable cause to believe the vehicle contains contraband or evidence of a crime. See Dyson, 527 U.S. at 466-67, 119 S.Ct. at 2014; United States v. Watts, 329 F.3d 1282, 1285 (11th Cir. 2003).
Accordingly, a vehicle , search will not violate the Fourth Amendment if it is authorized by the terms of a valid search warrant or, where agents conduct a warrantless search, if the vehicle is operational and “under the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found’” in the vehicle. United States v. Goddard, 312 F.3d 1360, 1363 (11th Cir. 2002) (quoting Illinois v.*1242 Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).
United States v. Tamari, 454 F.3d 1259, 1261-62 (11th Cir. 2006) (emphasis supplied). Moreover, for an officer to be entitled to qualified immunity from a Fourth Amendment claim for unlawful -search and seizure of the contents of'an automobile, the standard is even lower: the officer need only demonstrate that he had arguable probable cause to believe the vehicle contained contraband or evidence of a crime. See Cottrell v. Caldwell, 85 F.3d 1480,1485 n. 1 (1996) (“[W]hen the claim is that a search and seizure or arrest violated the Fourth Amendment, qualified immunity depends upon whether arguable probable cause existed.”). “Arguable probable cause exists if, under all of the facts and circumstances, an officer reasonably could — not necessarily would — have believed that probable cause was present.” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (emphasis supplied). “When performing our arguable probable cause analysis, we look at the information known to the officer at the time of the [search].” Bailey v. City of Miami Beach, 476 Fed.Appx. 193,197 (11th Cir. 2012) (citing Jones v. Cannon, 174 F.3d 1271, 1283 n. 4 (11th Cir. 1999)) (alteration supplied).
If an officer has probable cause (or arguable probable cause) to search a vehicle, then he also is permitted to search containers within the vehicle, even without a warrant. See California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”) (emphasis supplied). Thus, if plaintiffs camera can be considered a “container” for purposes of the automobile exception, McIntyre was permitted to search it as long as he had at least arguable probable cause to search plaintiffs vehicle in the first place.
Although it does not appear that the Eleventh Circuit has directly addressed the issue, other courts have held that electronic devices can be considered “containers” for purposes of the Fourth Amendment search and seizure analysis when they are located within a moving automobile. See, e.g., United States v. Runyan, 275 F.3d 449, 458 (5th Cir. 2001) (assuming, without deciding, that computer disks are “containers”). The most instructive line of cases concerns cellular telephones. The majority of district courts addressing the issue have held that cell telephones are “containers,” and they accordingly are subject to search when removed from an operational automobile, as long as there is probable cause to believe the telephone contained evidence of a crime. See United States v. Lujan, No. 2:11CR11-SA, 2012 WL 2861546, *11 (N.D.Miss. July 11, 2012) (“Although the Fifth Circuit has not extended the automobile exception to cover the warrantless searches of electronic devices, several district courts have allowed such warrantless searches as long as there is probable cause to believe the phone contained evidence of a crime.”) (citing United States v. Garcia-Aleman, No. L10-CR-29,; 2010 WL 2635071, *12 (E.D.Tex. June 9, 2010); United States v. Monson-Perez, No.4:09CR623-HEA, 2010 WL 889833, *6-8 (E.D.Mo. Mar. 8, 2010); United States v. James, No. 1:06CR134rCDP, 2008 WL 1925032, *3-9 (E.D.Mo. Apr. 29, 2008); United States v. Fierros-Alavarez, 547 F.Supp.2d 1206, 1213-14 (D.Kan. 2008)). See also United States v. Davis, 787 F.Supp.2d 1165, 1171 (D.Or. 2011) (“Cell phones may be searched for call records and other data pursuant to the automobile exception to the warrant requirement.”); U.S. v. Stringer, No. 10-05038-01-CR-SW-GAF, 2011 WL 3847026, *8 (W.D.Mo. July 20, 2011) (“[T]he majority position appears to favor a holding that cell phones and cameras
This court is persuaded by the reasoning of the decisions cited above. Furthermore, it is logical to conclude that, if cellular telephones — most of which not only contain cameras, but also store the user’s personal information — are “containers” subject to a warrantless search, then cameras also should be. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (observing that “cell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers”). For such reasons, this court concludes that plaintiffs camera was a “container” and, therefore, subject to search under the automobile exception, as long as McIntyre had probable cause (or, for the qualified immunity analysis, arguable probable cause) to believe the camera contained evidence of a crime.
McIntyre attested that he was aware of multiple past complaints about plaintiffs photographic activity, including taking photographs of cheerleaders while possibly trespassing on school property, taking pictures of other minor girls at a restaurant, and taking pictures of a school principal at his private residence. Because of plaintiffs suspicious activities, McIntyre had been instructed by his supervisors to be mindful of plaintiffs activities in the future. McIntyre also attested that, based on the totality of his knowledge of plaintiffs prior photographing activities, he suspected that plaintiffs camera would contain photographs indicating that he had followed individuals and/or taken photographs while trespassing on private property. Those activities could constitute evidence of the offense of criminal surveillance, in violation of Alabama Code § 13A-11-32. Moreover, McIntyre observed plaintiff attempting to conceal his camera inside his car after McIntyre pulled into the credit union parking lot. The court concludes that, based upon all of the preceding circumstances, McIntyre had at least arguable probable cause to believe plaintiffs camera might contain evidence of criminal activity. Therefore, McIntyre’s seizure of the camera and examination of its contents did not violate plaintiffs Fourth Amendment right to be free from unreasonable searches and seizures. Even if there was a violation, McIntyre is entitled to qualified immunity from suit for that violation.
The next question is whether McIntyre’s deletion of the photograph of his own license plate from the digital storage device of plaintiff’s camera constituted an unlawful seizure of plaintiffs property in violation of the Fourth Amendment. McIntyre does not even attempt to argue that his actions did not constitute a seizure under the Fourth Amendment. Instead, he asserts that,'even if there was a violation of plaintiffs Fourth Amendment rights, it is not actionable because it caused only de minimis injury. Indeed, the Supreme Court has acknowledged that there is “a de minimis level of imposition with which the Constitution is not concerned.” Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). McIntyre reliés upon three Fourth Amendment cases to support his argument that the deletion of plaintiffs photograph was only a de minimis violation.
First, in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court held that de
McIntyre asserts that his deletion of plaintiffs photograph was only a de minimis violation because there was no monetary value associated with the deleted photograph. He also asserts that the photograph had no non-monetary value, because plaintiffs sole purpose in taking it was to document that McIntyre was driving behind him on Dr. Hicks Boulevard, a fact that already has been established in this litigation. Finally, McIntyre relies upon plaintiffs acknowledgment, after being pressed during deposition, that he could recreate what was lost by following McIntyre to his house and taking another photograph of the license plate, but that he did not have any desire to do so.
The court is persuaded by McIntyre’s arguments. Deleting the photograph from plaintiffs camera amounted to no more than a de minimis violation. The photograph had little to no monetary value, no identifiable non-monetary value, and could easily have been recreated by plaintiff. Thus, McIntyre’s deletion' of the photograph was akin to the destruction of trace amounts of cocaine described in Jacobsen, and significantly less severe than the property damage described in Porter and Jewell. Because McIntyre’s deletion of a single photograph from plaintiffs digital camera constituted only a de minimis violation of plaintiffs Fourth Amendment rights, McIntyre cannot be held liable under the Fourth Amendment for his actions.
In any event, McIntyre is entitled to qualified immunity on this claim. To establish entitlement to qualified immunity, McIntyre must show that plaintiffs
[f]or a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411 [ (1985) ]; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Hope, 536 U.S. at 741, 122 S.Ct. 2508 (bracketed alterations in original).
An officer can receive “fair notice” of his or her unlawful conduct in various ways.
First, the words of the pertinent federal statute or federal constitutional provision in some cases will be specific enough to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity, even in the total absence of case law. This kind of case is one kind of “obvious clarity” case. For example, the words of a federal statute or federal constitutional provision may be so clear and the conduct so bad that case law is not needed to establish that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for example, the Fourth Amendment on its face, we then turn to case law. When looking at case law, some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable in the future to different sets of detailed facts. See Marsh [v. Butler County, Ala.], 268 F.3d [1014,] 1031-32 n. 9 [11th Cir.2001]. For example, if some authoritative judicial decision decides a case by determining that “X Conduct” is unconstitutional without tying that determination to a particularized set of facts, the decision on “X Conduct” can be read as having clearly established a constitutional principle: put differently, the precise facts surrounding “X Conduct” are immaterial to the violation. These judicial decisions can control “-with obvious clarity” a wide variety of later factual circumstances. These precedents are hard to distinguish from later cases because so few facts are material to the broad legal principle established in these precedents; thus, this is why factual differences are often immaterial to the later decisions. But for judge-made law, there is a presumption against wide principles of law. And if a broad principle in case law is to establish clearly the law applicable to a specific set of facts facing a governmental official, it must do so “with obvious clarity” to the point that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.
*1246 Third, if we have no case law with a broad holding of “X” that is not tied to particularized facts, we then look at precedent that is tied to the facts: That is, we look for cases in which the Supreme Court or we, or the pertinent state supreme court has said that “Y Conduct” is unconstitutional in “Z Circumstances.” We believe that most judicial precedents are tied to particularized facts and fall into this category.... When fact-specific precedents are said to have established the law, a case that is fairly distinguishable from the circumstances facing a government official cannot clearly establish the law for the circumstances facing that government official; so, qualified immunity applies. On the other hand, if the circumstances facing a government official are not fairly distinguishable, that is, are materially similar, the precedent can clearly establish the applicable láw.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original).
McIntyre asserts that
[t]here was no materially similar, binding decisional authority clearly establishing that the deletion of the photographs would violate the Constitution under the unique and compelling circumstances of this case, ie., when the officer had active death threats against him and when the plaintiff was admittedly acting suspiciously on the day in question in taking pictures of the officer, and had in the past engaged in a course of taking suspicious, and some likely illegal, photographs.131
The court agrees that McIntyre did not have “fair warning” that his deletion of. a single photograph of his own license plate from plaintiffs digital camera would violate plaintiff’s Fourth Amendment rights, especially considering that the deletion constituted only a de minimis violation. Therefore, even if plaintiff did have a viable Fourth Amendment claim against McIntyre for the deletion of the photograph, McIntyre would be entitled to qualified immunity on that claim.
b. Excessive force — McIntyre
Plaintiff also alleged in his amended complaint that McIntyre “used excessive and wholly unwarranted force in his apprehending of Burch on the afternoon of August 6, 2008, and inflicted significant pain upon Burch as he slammed him down to the concrete on his stomach and chest.”
“The Fourth Amendment’s freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The reasonableness inquiry is an objective one: “the question 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, 109 S.Ct. 1865 (citations omitted). In other words, “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreason
The court may consider a number of factors when determining whether the force applied was “reasonable” under the circumstances, including: (1) the “severity, or lack of severity, of the alleged crime in issue,” id. at 396, 109 S.Ct. 1865; (2) “whether the person against whom the force was used posed an immediate threat to the safety of the police or others,” id.; (3) “the need for the application of force,” Jackson v. Sauls, 206 F.3d 1156, 1170 n. 18 (11th Cir. 2000); (4) “the relationship between the need and the amount of force used,” id.; (5) “the extent of the injury inflicted,” id.; (6) “whether the force was applied in good faith or maliciously and sadistically,” id.; (7) “the possibility that the persons subject to the police action are themselves violent or dangerous,” id.; (8) “the possibility that the suspect may be armed,” id.; (9) “the number of persons with whom the police officers must contend at one time,” id.; and (10) “whether the suspect was resisting or fleeing.” Id.
The reasonableness of the force applied also is measured as of the precise moment it is administered; events that occurred before that moment, though perhaps giving factual context to the use of force, are not probative of the reasonableness of the decision to use force. See Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991). Additionally, “[u]se of force must be judged on a case-by-case basis ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865) (alteration supplied). “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.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.
Here, considering the facts to be as stated by plaintiff in his deposition, McIntyre yanked plaintiff from his car, threw him to the ground, handcuffed him, and patted him down in search of weapons.
In summary, the level of force employed by McIntyre during his investigatory detention of plaintiff
c. Unlawful arrest — McIntyre
Plaintiff alleged in his amended complaint that McIntyre’s
excessive force was directed toward securing Officer McIntyre’s unlawful arrest of the Plaintiff, an arrest clearly sparked by the Plaintiffs lawful use of his camera, rather than upon a legitimate probable cause basis (arguable or real) to believe that the Plaintiff had just committed' or was about to commit a criminal act.136
He also alleged that McIntyre’s actions deprived him of his “right to be free from false arrest, or a right to be free from an arrest without probable cause.”
As an initial matter, there is no evidence that plaintiff actually was placed under arrest on September 6, 2008.
“In determining ‘when’ an investigative stop ripens into an arrest, no bright-line rule exists. Instead, in determining whether an investigative detention is unreasonable, ‘common sense and ordinary human experience must govern over rigid criteria.’ ” Hastamorir, 881 F.2d at 1556 (quoting United States v. Espinosar-Guerra, 805 F.2d 1502, 1509 (11th Cir. 1986) (in turn quoting United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985))). The court must
Here, the intrusion on plaintiffs freedom was relatively brief, as the only evidence before the court..addressing the length of plaintiffs detention indicates that the entire incident lasted only approximately ten minutes. Moreover, there is no evidence that McIntyre did anything more than temporarily detain plaintiff for the purpose of securing him, and stabilizing the situation, so that he could question plaintiff and determine whether to search his car. See United States v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir. 1985) (“Police may take reasonable action, based upon the circumstances, to protect themselves during [investigative detentions], or to maintain the status quo.”) (citations omitted). The evidence addressing the question of whether plaintiff was handcuffed at any point during the incident is disputed, but even if he was handcuffed, that would not necessarily transform the detention into an “arrest” in the constitutional sense of that term. See Blackman, 66 F.3d at 1576 (“[T]he fact that police handcuff the person or draw their weapons does not, as a matter of course, transform an investigatory stop into an arrest.”) (alteration supplied), (citing Kapperman, 764 F.2d at 790 n. 4; Hastamorir, 881 F.2d at 1556). Finally, plaintiff was not taken into police custody and transported to the municipal jail, or even issued a written citation.
Because the September 6th incident was only an investigatory detention, as opposed to an “arrest,” it need only be justified by a reasonable suspicion of criminal activity. “Reasonable suspicion requires more than a hunch; it requires that the totality of the circumstances create, at least, some minimal level of objective justification for the belief that the person engaged in unlawful conduct.” Blackman, 66 F.3d at 1576 (citing United States v. Diaz-Lizaraza, 981 F.2d 1216, 1221 (11th Cir. 1993)). Here, McIntyre personally observed plaintiff.turn into the credit union parking lot without using his turn signal. Therefore, McIntyre had, at least, a reasonable suspicion .that plaintiff had engaged in unlawful conduct, even if such conduct was a minor driving infraction. See United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009) (holding that an officer had probable cause, a higher standard than reasonable suspicion, to make a traffic stop when he personally observed the driver throw a piece .of paper out the window in violation of an anti-littering law). It is irrelevant whether McIntyre may have had other subjective motivations for stopping plaintiff, or whether he suspected plaintiff may have engaged in other criminal activity. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis-.”).
In summary, the September 6, 2008 encounter between plaintiff and McIntyre was an investigative detention that never matured into an actual arrest. Because that detention was supported by McIntyre’s reasonable suspicion that plaintiff had engaged in criminal activity, summary judgment is due to be granted in McIntyre’s favor on plaintiffs claim for unlawful arrest.
Plaintiff alleged in his amended complaint that McIntyre’s actions violated his “right to be free from malicious prosecution” under both federal and state law.
The Eleventh Circuit recognizes malicious prosecution as “a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983.” Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003) (citations omitted).
To establish a federal malicious prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution. See Uboh [v. Reno ], 141 F.3d [1000,] 1002-04 [(11th Cir. 1998)]; Whiting [v. Traylor], 85 F.3d [581,] 584-86 [(11th Cir. 1996) ]; Kelly [v. Curtis], 21 F.3d [1544,] 1553-55 [ (11th Cir. 1994) ]. As to the constituent elements of the common law tort of malicious prosecution, this Court has looked to both federal and state law and determined how those elements have historically developed. Uboh, 141 F.3d at 1002-04; Whiting, 85 F.3d at 584-86.
Wood, 323 F.3d at 881 (emphasis in original). A claim for malicious prosecution requires proof of the following elements under Alabama law:
(1) that a prior judicial proceeding was instituted by the present defendant, (2) that in the prior proceeding the present defendant acted without probable cause and with malice, (3) that the prior proceeding ended in favor of the present plaintiff, and (4) that the present plaintiff was damaged as a result of the prior proceeding.
Delchamps Inc. v. Bryant, 738 So.2d 824, 831-32 (Ala. 1999) (citations omitted).
Plaintiff cannot’ succeed on his malicious prosecution claim under either federal or state law because he cannot establish that McIntyre instituted a prior judicial proceeding against him. Setting aside the ’question of whether obtaining a search warrant is the institution of a judicial proceeding under Alabama law, the evidence indicates that Baker, not McIntyre, obtained the search warrant. The affidavit Baker submitted bore only the signatures of Baker and the issuing judge, not McIntyre’s signature. In fact, there is no evidence that McIntyre had anything whatsoever to do with the warrant. By his own, uncontradicted testimony, he did not ask Baker to obtain a warrant or take any other action with regard to plaintiff. He did not even know that Baker had included any information about him in the search warrant affidavit. The one sentence in the search warrant affidavit that referenced McIntyre — i.e., “Burch has also taken pictures of Florence Police Officer Luke McIntyre and his daughter”
“Alabama law permits recovery for malicious prosecution only from those who are directly responsible for that prosecution.” Escoffier v. Anderson, 557 So.2d 844, 844 (Ala.Civ.App. 1990) (citing Cutts v. American United Life Insurance Co., 505 So.2d 1211 (Ala. 1987)). “Furthermore, merely providing, or negligently failing to
Because plaintiff has not presented any evidence that Baker instituted a criminal proceeding against him after obtaining a search warrant from the state court judge, summary judgment is due to be granted in defendant’s favor on plaintiffs malicious prosecution claim under both federal and state law.
e. First Amendment retaliation— McIntyre
Plaintiff alleged in his amended complaint that McIntyre’s actions violated his “right to be free from physical retaliation for reasonably exercising his freedom of speech.”
To succeed on his claim for retaliation in violation of the First Amendment, plaintiff must demonstrate that: (1) his speech was constitutionally protected; (2) defendants’ conduct adversely affected the protected speech; and (3) there is a causal connection between defendants’ actions and the adverse effect on plaintiffs speech. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005) (citations omitted). Even assuming that plaintiffs announcement of Officer Davis’s status as an undercover officer constituted speech protected by the First Amendment,
f. Unlawful search and seizure— Officer Philip Moss
Plaintiff alleged in his amended complaint that, “[b]y personally giving Offi
B. Claims Against the City of Florence
Plaintiff asserted the following against the City in his Amended Complaint:
81. The City of Florence is directly responsible for such behavior [of Moss and McIntyre] as it maintains an internal affairs department empowered and encouraged to destroy evidence of police officer malfeasance.
82. Due to having been relieved of their duties on account of criminal involvement in child pornography, illegal drug use, and various other crimes of moral turpitude, at least four different officers have held the role of supervisor/Chief of the Florence Police Department Internal Affairs division over the last five years or so. Due to this clear lack of continuity at the helm of Internal Affairs, the practice of destroying complaints of police officer misconduct is not only deliberately indifferent to the well-being of those who might encounter these officers at a later time, but is also clearly a self-serving practice intended to shield the City of Florence as well as Florence Police Department officers for liability for their misconduct.
83. At the time that the allegations in this complaint occurred, no Florence Police Department officer had ever been disciplined on account of misconduct reported to the Internal Affairs division, an interesting statistic given the fact that the Florence Police Department is approximately one-hundred officers strong.
84. Employees of the City of Florence who would be considered the final policy-makers for the Florence Police Department are familiar with Internal Affairs’ practice of destroying reports of police misconduct. These final policymakers know that such a practice could only hold police officers less accountable for their misconduct, and only increase the potential for citizens to experience abuse at the hands of the police officers.
85. Plaintiff believes that the violation of his rights by Officer’s [sic] McIntyre and Moss would not have taken place were it not [for] the impotent and corrupted state of the Internal Affairs division.148
Essentially, plaintiff seeks to hold the City liable for the constitutional violations allegedly committed by McIntyre and Moss. Because the court already has found that McIntyre and Moss did not commit violations, or that they at the very least are entitled to qualified immunity from plaintiffs claims, there is no basis for holding the City liable. Summary judgment is due to be granted on plaintiffs claim against the City of Florence.
In accordance with the foregoing, all motions for summary judgment are GRANTED, and all of plaintiffs claims against all defendants are DISMISSED with prejudice. ■ Costs are taxed to plaintiff. The Clerk is directed to close this file.
. See doc. no. 1 (Complaint).
. Doc. no. 5 (Amended Complaint).
. Id. ¶¶ 3-5.
. Doc. no. 18 (memorandum opinion and order on motion to dismiss), at 6.
. Doc. no. 52.
. Doc. no. 54.
. Doc. no. 29.
. See id. at 1-2.
. Doc. no. 35.
. Doc. no. 36.
. See doc. nos. 37, 40.
. Doc. no. 41, at 1-2.
. Doc. no. 46.
. Doc. no. 48.
. Id. at 2-3.
. See doc. no. 49 (motion for joinder); doc. no. 50 (memorandum and evidence in support of motion for joinder). The other lawsuit is Civil Action No. CV-11-S-3770-NW, and it is styled John Wesley Burch v. Jeremy Keith Baker, et al.
. See doc. no. 57.
. Id. at 2.
. Id.
. See doc. no. 52; doc. no. 54.
. See text orders entered on June 11, 2012.
. See Clerk's notes of July 5, 2012.
. See doc. no. 59.
. Doc. no. 60.
. Id. at 1-2.
. Id. at 2.
. Id. at 3.
. Doc. no. 63.
. Doc. no. 64.
. Doc. no. 65.
. Doc. no. 66.
. Doc. no. 9 (Uniform Initial Order), at 14-16 (all emphasis in original) (footnotes omitted).
. See id. at 12 ("This exhibit contains specific, mandatory instructions regarding the preparation and submission of briefs and evidentiary materials in support of and in opposition to potentially dispositive motions. These instructions must be followed explicitly. Except for good cause shown, briefs and evidentiary materials that do not conform to the following requirements may be stricken.”), 16 ("The court reserves the right sua sponte to STRIKE any statements of fact or responsive statements that fail to comply with these requirements.”) (all emphasis in original).
. Defendants’ evidentiary submission, Exhibit 1 (Deposition of John Wesley Burch), at 12-13.
. Id. at 16.
. Id. at 16-17.
. Id. at 21-25.
. Id. at 152, 213-15, 223.
. Id. at 206-09, 212-13, 300.
. Burch Deposition, at 18, 213, 266.
. Id. at 23.
. Defendant's evidentiary submission, Exhibit 3 (Affidavit of Luke McIntyre), at Exhibit B (February 12, 2004 Alabama Uniform Incident/Offense Report).
. McIntyre Affidavit, at Exhibit A (Record ID Number 5623, describing plaintiffs trespass from Weeden Middle School).
. Burch Deposition, at Exhibit D (February 15, 2008 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 191-200.
. Burch Deposition, at Exhibit E (February 20, 2008 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 201-05.
. Burch Deposition, at Exhibit F (March 3, 2008 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 225-26.
. Burch Deposition, at Exhibit G (July 9, 2008 Alabama • Uniform Incidenl/Offense Report).
. Burch Deposition, at 227-28.
. Burch Deposition, at Exhibit C (September 6, 2008 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 187-89.
. Burch Deposition, at Exhibit H (November 17, 2008 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 231-33.
. Burch Deposition, at Exhibit I (December 5, 2008 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 235-40.
. Burch Deposition, at Exhibit J (May 22, ' 2009 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 241-44.
. Burch Deposition, at Exhibit K (October 29, 2009 Alabama Uniform Incident/Offense Report).
. Burch Deposition, at 244-48.
. Id. at 239.
. McIntyre Affidavit ¶ 5.
. Burch Deposition, at 63-65.
. Id. at 68.
. Id. at 69-70.
. Id. at 72-74. Plaintiff testified that he had “extremely strong circumstantial evidence’’ that Davis discussed the incident with McIntyre, because the two men are neighbors and undercover officers, because both men were interested in his camera, and because he had never seen either of the men before July 18, 2008. Id. at 73-74. He acknowledged, however, that his "evidence” actually was mere speculation. Id. at 74.
. McIntyre Affidavit ¶ 15.
. Id.
. Burch Deposition, at 55-56, 76-79.
. Id. at 79-83. Plaintiff later provided proof of insurance, and his ticket was nolle prossed. Id. at 83.
. Id. at 84.
. McIntyre Affidavit ¶ 9.
. Burch Deposition, at 85-88.
. Id. at 89-90.
. Id. at 90-93.
. Id. at 93-94, 96, 100-01.
. McIntyre Affidavit ¶ 10.
. Burch Deposition, at 131-32.
. Burch Affidavit ¶ 11.
.Id.
. Burch Deposition, at 110-12.
. McIntyre Affidavit ¶ 11; Burch Deposition, at 112-15.
. Burch.Deposition, at 115.
. Id. at 122-25.
. Id. at 117-19.
. Id. at 120, 133, 136. McIntyre disputes that he yanked plaintiff from the vehicle and threw him onto the ground. Instead, McIntyre states that, once plaintiff exited the vehicle on his own, he escorted plaintiff to the back of his automobile and asked him to place his hands on the trunk and spread his legs so he could conduct a routine, non-invasive, protective pat-down. McIntyre Affidavit ¶ 12. The video recording of the incident does not begin until after plaintiff already had exited his car, so there is no irrefutable evidence contradicting plaintiff’s testimony, and it must be taken as true. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
. Burch Deposition, at 138-39.
. Id. at 142.
. Id. at 142-43.
. Id. at 143-44.
. See defendant’s evidentiary submission, Exhibit 4 (Affidavit of Phil Moss), at Exhibit A (Video and Audio Recording). See also Moss Affidavit ¶¶ 3-4 (describing the process of recording and retaining video with the dashboard camera, and attesting that the video exhibit filed with the court represents a fair and accurate portrayal of the events it purports to record); Scott, supra note 85.
. Burch Deposition, at 148-49.
. Id. at 150.
. McIntyre Affidavit ¶ 15.
. Burch Deposition, at 151.
. McIntyre Affidavit ¶ 14.
. Burch Deposition, at 151.
. McIntyre Affidavit ¶ 16. That statute provides that "[a] person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.” AIa.Code § 13A-ll-32(a) (alteration supplied).
. Burch Deposition, at 152; McIntyre Affidavit ¶ 16.
. McIntyre Affidavit ¶ 16.
. McIntyre Affidavit ¶ 16; Burch Deposition, at 153.
. Burch Deposition, at 153-54.
. Moss Affidavit ¶ 9.
. Burch Deposition at 155-56; McIntyre Affidavit ¶ 17.
. Burch Deposition, at 139, 142.
. Id. at 144.
. Moss Affidavit ¶ 10.
. Burch Deposition, at 252; McIntyre Affidavit ¶ 19. Plaintiff believes that the traffic stop was part of a conspiracy in which McIntyre was involved, but he is not asserting a claim in this case based upon that alleged conspiracy. Burch Deposition, at 253-54.
. Id. at 255.
. Mat255-57.
. See Burch Deposition, at Exhibit L (Affidavit for Search Warrant).
. Id. at 2; Burch Deposition, at 259.
. Burch Deposition, Exhibit L, at 2.
. McIntyre Affidavit ¶¶ 18-19.
. M ¶¶ 19-20.
. Burch Deposition, at 309, 321.
. Id. at 308-317.
. Id. at 319-20. Plaintiff testified during his deposition that he had documentation of the fact that no officer had ever been disciplined as the result of an Internal Affairs complaint, and he promised to produce it to opposing counsel. Id. There is no indication, however, that plaintiff ever did so, and there is no such evidence in the record before this court.
. Defendants’ evidentiary submission, Exhibit 5 (Affidavit of Melissa Beasley) ¶¶ 1, 4.
. Id. ¶ 5.
. Id. ¶ 6.
. Id. ¶ 7. See also id. ¶ 8 for specific examples of investigations conducted and disciplinary actions taken.
. Id. ¶ 9 (emphasis in original).
. Id.
. The defendant claiming immunity must also "prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ ” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). Here, it cannot reasonably be disputed that both McIntyre and Moss were acting within the scope of their discretionary authority as police officers when they stopped and questioned plaintiff on September 6, 2008.
. The Supreme Court recently relieved lower courts from mandatory adherence to the order of the two-part analysis articulated in Saucier. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ("On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”). It is now within this court’s discretion
. Amended Complaint ¶ 76 (alteration supplied).
. IdA 79(c).
. The automobile exception only applies to vehicles that are in motion or are at least operational. It cannot reasonably be disputed that McIntyre observed plaintiff's vehicle in motion immediately prior to the-traffic stop in the credit union parking lot, or that the vehicle was operational at the time.
. Doc. no. 55 (defendants' summary judgment brief), at 41 (emphasis in original, alteration supplied).
. Amended Complaint ¶ 77. See also id. ¶ 79(b) (alleging that McIntyre’s actions deprived plaintiff of his “right to be free from the use of excessive force”).
. The dashboard camera recording does not show plaintiff in handcuffs, and it does not show McIntyre forcibly removing plaintiff from his car or throwing him to the ground. The court will, however, give plaintiff the benefit of assuming that these actions may have occurred before Moss arrived on the scene and his patrol car's camera began to record.
. See the discussion in the following subsection, explaining why the traffic stop was an investigatory detention, and not an arrest.
. Because it already has been determined that there is no evidence to support plaintiffs excessive force claim, the court need not move on the second step of the qualified immunity analysis, i.e., to evaluate whether the rights violated were clearly established.
. Amended Complaint ¶ 78.
. Id. ¶ 79(a).
. The record contains evidence that plaintiff has been arrested for other offenses on other dates, but it is clear that his unlawful arrest claim against McIntyre arises out of the September 6, 2008 incident.
. Because it already has been determined that there is no evidence to support plaintiffs unlawful arrest claim, the court need not move on the second step of the qualified immunity analysis, i.e., to evaluate whether the rights violated were clearly established.
. Amended Complaint ¶ 79(d).
. Burch Deposition, at 41-44.
.See Burch Deposition, at Exhibit L (Affidavit for Search Warrant); Burch Deposition, at 159.
. Because it already has been determined that there is no evidence to support plaintiff's malicious prosecution claim, the court need not move on the second step of the qualified immunity analysis, i.e., to evaluate whether the rights violated were clearly established.
. Amended Complaint ¶ 79(e).
.Id.
. This assumption is a tenuous one. The First Amendment does not protect speech that obstructs government operations. Haig v. Agee, 453 U.S. 280, 308-09, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). Other district courts have applied this general principle to exclude from the First Amendment’s protection statements disclosing the identity of undercover police officers. See United States v. Twinn, 369 F.Supp.2d 721, 724-25 (E.D.Va. 2005).
. Amended Complaint ¶ 80. Plaintiff clarified during his deposition that this is the only claim he is asserting against Moss. Burch Deposition, at 28-33.
. Amended Complaint ¶¶ 81-85 (alterations supplied).
Reference
- Full Case Name
- John Wesley BURCH v. CITY OF FLORENCE, ALABAMA, Luke McIntyre, and Philip Moss
- Cited By
- 1 case
- Status
- Published