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Bell v. Norwood

United States District Court, N.D. Alabama, Southern Division

August 28, 2014

CORNELIUS BELL, Plaintiff,
v.
JEFFERY NORWOOD, et al., Defendants.

MEMORANDUM OPINION

R. DAVID PROCTOR, District Judge.

Pending before the court is Defendants Jeffery Norwood's ("Officer Norwood" or "Norwood"), and Tim Cater's ("Officer Cater" or "Cater") Motion for Summary Judgment filed on October 17, 2013. (Doc. #37). On November 7, 2013, Plaintiff Cornelius Bell filed his opposition to summary judgment. (Docs. #39). Defendants replied on November 19, 2013. (Doc. #40). After careful review, the court concludes the motion is due to be granted.

I. BACKGROUND

Plaintiff has asserted various claims against Defendants Norwood and Cater, two Birmingham City Police Officers, [1] related to his arrests in May and July 2010 for allegedly failing to register as a convicted sex offender. (Doc. #1 at ¶ 8). Plaintiff's underlying conviction from 1998 was for indecent exposure. (Doc. #1 at ¶ 9; 38 at p. 3 ¶ 4). However, during the relevant time frame, a conviction for indecent exposure would not subject a criminal defendant to registration under the Alabama Community Notification Act. To trigger application of the Act, a person must have been convicted of a criminal sexual offense listed in Alabama Code § 15-20-21(4), and indecent exposure is not listed as a criminal sexual offense in that statutory provision. It follows (and it is not disputed by any party) that Plaintiff's conviction for indecent exposure does not warrant application of the Alabama Community Notification Act.[2]

II. FACTS[3]

For the most part, the facts of this case are not genuinely disputed. On March 25, 1998, Bell was convicted of indecent exposure in Birmingham Municipal Court, Case Number 00680755; accordingly, he is convicted as a sex offender. (Doc. #38 at p. 3 ¶ 4). When Bell entered a guilty plea to the charge of indecent exposure in 1998, no one told him that he had to register as a sex offender. (Doc. #39 at p. 7 ¶ 1). Nevertheless, ten years later, Bell was arrested in September 2008 for failing to register. ( Id. at ¶ 2). But that charge was later dismissed for lack of probable cause. (Doc. #39 at p. 7 ¶ 2).

During the relevant time period, Alabama law imposed some registration requirements on persons convicted of indecent exposure. In particular, Alabama law required that:

any person, ... residing in Alabama, [who] has heretofore been convicted, ... shall, upon his or her release from legal custody, register with the sheriff of the county of his or her legal residence within seven days following such release[.] Any person having been so convicted shall upon moving his legal residence from one county to another register with the sheriff of the county to which

he has moved within seven days after such removal. ALA. CODE 1975 § 13A-11-200(b)-(c). Thus, Bell had no obligation to register any other address with the local sheriff unless he moved out of Jefferson County. And there is no allegation in this case that Plaintiff moved from Jefferson County after his initial registration or even after his re-registration in 2008. (Doc. #39 at p. 10 ¶ 34; Doc. #40 at p. 5).

After his September 2008 arrest, Bell registered as a sex offender with the Jefferson County Sheriff's Office on October 7, 2008. (Doc. #39 at p. 7 ¶ 3). At that time, he notified the sheriff that he was residing at 110 Redstone Way, Birmingham, Alabama 35215. ( Id. ). Therefore, by all indications in the record, Bell was in full compliance with Alabama law.

In 2010, Norwood and Cater were serving as members of a collaborative effort of a multi-jurisdictional task force involving the United States Marshals Service Gulf Coast Regional Fugitive Task Force. (Doc. #37-5 at p. 5; 37-7 at p. 5). This task force effort, known as "Operation Clean Slate, " was comprised of members of the United States Marshals Service, the Jefferson County Sheriff's Office, and the Birmingham Police Department. (Doc. #37-5 at p. 5). The purpose of the operation was to verify the current residence of convicted sex offenders in Jefferson County, Alabama. (Doc. #37-7 at p. 5). Each day, as part of their duties, members of the task force were given files by their supervisors on registered sex offenders and were directed to verify that the sex offender still resided at the address they had registered as their residence. ( Id. ).

On April 29, 2010, Norwood and Cater were given a file on Plaintiff Bell, and tasked with verifying that he still lived at 110 Redstone Way in Birmingham, Alabama (the address Bell had given as his residence when in 2008 he registered with Jefferson County as a sex offender). (Doc. #39 at p. 7 ¶ 3). Neither Norwood nor Cater had previously performed any sex offender address verifications before. (Doc. #39 at p. 7 ¶ 9). They had attended a single training session conducted jointly by the United States Marshals Service, Jefferson County Sheriff's Office, and the Birmingham Police Department. ( Id. at ¶ 10). While there, the officers received some limited direction, but that instruction did not address what types of notification were required of different types of sex offenders ( e.g., a criminal defendant convicted of rape as compared to one convicted of indecent exposure). ( Id. at p. 6 ¶ 19).

It does appear that the relevant Alabama Code materials were available at the session, but were not referenced as part of the training. (Doc. #39-4 at 19:1-19). Although Plaintiff does not dispute that Norwood and Cater were never instructed on the distinction between the reporting requirements of adult sex offenders' underlying convictions, Plaintiff alleges that the Defendants should have known that Bell's underlying sex offense did not impose a duty on him to notify the local sheriff's department of his address changes within the county limits because "the learning materials on the sex offender law were made available to them." (Doc. #39 at p. 6 ¶ 3). Again, the record reflects that the "Learning Materials" referenced were actually the Alabama Code. In any event, in a different context, the Supreme Court in Connick v. Thompson noted that "legal training is what differentiates attorneys from average public employees" and "attorneys, unlike police officers, are equipped with the tools to find, interpret, and apply legal principles" 131 S.Ct. 1350, 1361, 1363-64 (2011) (observing that an "injury or accident could have been avoided if an [employee] had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct will not suffice.") (internal quotation marks omitted).[5]

Norwood and Cater were provided Bell's file and then went to the residence, but it appeared to be vacant. (Doc. #38 at p. 4 ¶¶ 8-9). Norwood spoke with several neighbors who stated it had been about a year since they had seen anyone living at the home. ( Id. at ¶ 9). Norwood then posted a notice on the front door, "Urgent Sex Offender Verification Attempt." ( Id. at ¶ 10). The notice provided Norwood's name and phone number, and informed Bell to contact Norwood immediately. ( Id. ). No one responded to the notice. ( Id. ). When Norwood checked the residence again, he found the notice was still in place. ( Id. ).

After investigation, if a task force officer was unable to verify that the sex offender resided at the address they were registered, that officer was to prepare an Incident/Offense Report and provide the District Attorney ("DA") with all of the documentation that had been gathered. (Doc. #38 at pp. 4-5 ¶ 11). The record indicates that this was the only information presented to the DA in advance of the DA's review. (Doc. #37-6 at p. 64:6-11). In turn, the DA would determine whether probable cause existed to request a warrant. ( Id. at 63:10-14). After Norwood completed an affidavit and submitted his report to the DA, an arrest warrant was issued. (Doc. #38 at p. 5 ¶ 12).

Bell was arrested on May 27, 2010 for failing to register as a sex offender. (Doc. #18 at ¶ 13). On or about June 1, 2010, Bell was released on bond and registered with the Jefferson County Sex Offender Unit. ( Id. at ¶ 15). In his registration, he stated that he resided at 2813 23rd ...


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