United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Const. amend. IV.
a case about the Fourth Amendment to the United States
Constitution. It arises from a takedown where Defendant
Officer Parker, an officer in Defendant City of Madison's
(the “City”) police department (the
“MPD”), used a leg sweep maneuver to put
Plaintiff Sureshbhai Patel, an elderly Indian male, on the
ground. As a result of this takedown, Patel suffered
injuries, including permanent partial paralyzation.
the Court are several motions for summary judgment by the
City (Doc. 99), Patel (Doc. 103), and Officer Parker (Doc.
104). Part of the City of Madison's motion was a motion
for judgment on the pleadings. (Doc. 99). All of the motions
are ripe for this Court's review.
reasons herein stated, the motions are
GRANTED in part and otherwise
DENIED, as set out herein.
Factual Background, 
Background Before the Takedown
three-month period from November 1, 2014, until February 6,
2015, there were 100 burglaries in the City, two-thirds of
which occurred between approximately 7:30 a.m. and 6:00 p.m.
(Doc. 100 at ¶5); (Doc. 115 at 20 ¶5). Officer
Parker initially worked as a patrol officer for the MPD,
serving for approximately two years in that position. He
began working as a field training officer about two months
before the events of February 6, 2015. (Doc. 100 at ¶8);
(Doc. 115 at 20, ¶8). Approximately four weeks prior to
February 6, 2015, Officer Parker was assigned to train new
MPD Officer Andrew Slaughter. Officer Slaughter had two days
left in his training with Officer Parker as of February 6,
2015. (Doc. 100 at ¶9); (Doc. 115 at 20, ¶9). Prior
to February 6, 2015, Officer Parker observed that Officer
Slaughter had difficulty in face-to-face interactions with
subjects or citizens and was sometimes nervous in these
encounters. (Doc. 100 at ¶ 10); (Doc. 115 at 20,
¶10). On the morning of February 6, 2015, Officer Parker
and Officer Slaughter began their patrol shifts at 6 a.m. At
the beginning of their shift, the two officers first drove
through neighborhoods, ran radar in school zones, and
conducted several traffic stops. They then traveled to an
abandoned house for a training exercise. (Doc. 100 at
¶11); (Doc. 115 at 20, ¶11).
February 6, 2015 - The Takedown
February 6, 2015, Jacob Maples called the MPD in Madison,
Alabama. He provided his name, address, and telephone number
to the dispatcher with whom he spoke. (Doc. 107 at ¶1);
(Doc. 115 at 13, ¶2); (see also Doc. 100 at
¶12). Maples reported seeing an individual in his
neighborhood, Hardiman Place Lane in Madison, who was
standing in driveways, going into people's yards, and
looking in garages and windows. Maples had lived in the
neighborhood for four years, and had never seen the person
before. He felt nervous leaving his wife and child at home
while the man was about the neighborhood. (Doc. 107 at
¶2); (Doc. 115 at 13, ¶2); (see also Doc.
100 at ¶12). Maples gave a description of the individual
to the dispatcher. He described the individual as a skinny
black male, wearing a white or light-colored sweater, jeans,
and a toboggan hat. (Doc. 107 at ¶3); (Doc. 115 at 13,
¶3); (see also Doc. 100 at ¶12).
Eric Parker was on duty for MPD that morning. He was working
as the field training officer (“FTO”) for Officer
Andrew Slaughter. (Doc. 107 at ¶4); (Doc. 115 at 13,
¶4). Officer Slaughter was driving Officer Parker's
patrol car. Over the MPD radio, they were informed of a
“check subject” call. (Doc. 107 at ¶5);
(Doc. 115 at 13, ¶5). The subject was described as a
skinny black male, wearing a white or light-colored sweater,
jeans, and a toboggan hat. The dispatcher also relayed the
suspect's activities of walking in yards, standing around
driveways, and looking in garages. Maples's name was
provided as well, making him a known caller. (Doc. 107 at
¶6); (Doc. 115 at 13, ¶6). Officer Spence also
responded to the dispatch call. (Doc. 100 at ¶13); (Doc.
115 at 20, ¶13). Based on the information received from
the dispatcher, Officer Parker believed the suspect's
activities were in sequence with burglary activities,
particularly someone checking out the area and casing the
houses, about which MPD had received several calls. (Doc. 107
dispatcher sent updates to the mobile data terminal located
in the patrol unit used by Officers Parker and Slaughter as
they were en route. Specifically, the information sent to the
mobile data terminal stated that the subject in question was
a skinny black male wearing a toboggan, blue jeans, and a
white or light colored sweater; that the subject was last
seen heading northbound on Hardiman Place Lane; that the
subject was walking into yards, standing in driveways, and
looking around garages; and that Mr. Maples advised that he
had lived there for four years, had never seen the subject,
and was nervous about leaving his wife and child at home with
the way the subject was acting. The information sent to the
mobile data terminal also provided Mr. Maples's name,
address, and phone number. (Doc. 100 at ¶14); (Doc. 115
at 20, ¶14). Officer Parker reviewed these details and
read them aloud as Officer Slaughter drove toward the
subject's reported location. (Doc. 100 at ¶15);
(Doc. 115 at 20, ¶15). Officer Parker testified that as
he reviewed the information sent by dispatch, he concluded
that the caller's decision to identify himself
contributed to reasonable suspicion that a crime may have
been in progress. (Doc. 100 at ¶17); (Doc. 115 at 21,
¶17). Officer Parker testified that under the MPD's
policies and pursuant to his training, when a known caller
gives articulable information that indicates a crime may be
in progress or have been committed, reasonable suspicion
exists to detain the subject and conduct an investigatory
stop to look into the situation further. (Doc. 100 at
¶18); (Doc. 115 at 21, ¶18). Officer Parker has
indicated that he believed this neighborhood was a high crime
area. (Parker Depo. at 316:2 to 316:14). From his experience
and training as a patrol officer, Officer Parker also
understood that burglars will sometimes case houses early in
the morning, when most people have left their houses for
work. (Doc. 100 at ¶22); (Doc. 115 at 21, ¶22).
Officer Spence testified that he independently concluded that
the subject in question might be involved in a burglary.
(Doc. 100 at ¶25); (Doc. 115 at 22, ¶25).
on the available information, Officer Parker testified that
he and Officer Slaughter agreed that Officer Slaughter would
stop the subject and find out his name, address, and reason
for being in the area. If the subject provided that
information, the plan of action was to write a
“miscellaneous” report describing the encounter
and then return to patrol duties. (Doc. 100 at ¶27);
(Doc. 115 at 22, ¶27).
officers arrived at Hardiman Place Lane, where they saw a
male individual wearing a white sweater, jeans, and a
toboggan hat, matching the given description. They also
recognized him as thin and dark-skinned. Officer Slaughter
parked the patrol car a few feet behind the individual, who
they later learned was plaintiff Sureshbhai Patel, as he was
walking down the sidewalk. (Doc. 107 at ¶8); (Doc. 115
at 13, ¶8). Officer Slaughter switched on the patrol
vehicle's dashboard COBAN video system on his belt, which
causes the system to begin recording audio from a microphone
on his person. (Doc. 100 at ¶32); (Doc. 115 at 22
officers got out of the patrol vehicle to speak with Patel.
At first, Patel waved at them, but continued walking. He had
one hand in his pocket. (Doc. 107 at ¶9); (Doc. 115 at
13, ¶9); (see also Doc. 100 at ¶33, 34).
Officer Slaughter called out to him, asking to talk to Patel
and for him to “come here.” Patel walked towards
where the officers were standing. (Doc. 107 at ¶10);
(Doc. 115 at 13, ¶10). Patel recognized the officers
were, in fact, police officers by the way they were dressed.
(Doc. 107 at ¶11); (Doc. 115 at 13, ¶11); (Doc. 100
at ¶35). Officer Slaughter asked plaintiff what was
going on. Patel responded by saying “India” and
“no English.” Patel then walked away from the
officers, taking two steps. (Doc. 107 at ¶12); (Doc. 115
at 13, ¶12). Officer Slaughter asked Patel to
“come here” again. Patel again responded with
“India” and “no English.” (Doc. 107
at ¶13); (Doc. 115 at 13, ¶13).
Slaughter attempted to begin the investigation, asking Patel
where he was headed, for his address, and generally where he
lived. Patel told the officers, “my house, my house,
148, walking.” He also pointed off in the opposite
direction of the officers. Then, Patel walked away a second
time, taking seven steps this time. (Doc. 107 at ¶14);
(Doc. 115 at 14, ¶14); (see also Doc. 100 at
Slaughter ordered Patel to stop walking. This time, the
officers had to walk over to reach Patel, as he did not walk
back to them as before. (Doc. 107 at ¶15); (Doc. 115 at
14, ¶15).Officer Slaughter asked Patel for
identification. Patel responded “no
English” and “India.” (Doc. 107 at
¶16); (Doc. 115 at 14, ¶16); (see
also Doc. 100 at ¶48). Officer Slaughter asked
Patel again if he lived in the neighborhood. In response,
Patel raised his right arm and pointed off in the distance.
(Doc. 107 at ¶17); (Doc. 115 at 14, ¶17).
Patel's hands can be seen moving at his midsection and by
his sides on the video. (Doc. 107 at ¶18); (Doc. 115 at
14, ¶18). Patel then walked away from the officers a
third time, taking nine steps away this time. He did so
despite knowing that the officers had told him to stop. (Doc.
107 at ¶19); (Doc. 115 at 14, ¶19). Each time Patel
walked away from the officers, his whole body turned away
from them. (Doc. 107 at ¶20); (Doc. 115 at 14,
Parker testified that he then took over as the lead
investigating officer for the encounter. (Doc. 100 at
¶63); (Doc. 115 at 26, ¶63). The officers then both
pursued Patel, with Officer Parker saying, “Sir. Sir.
Come here.” (Doc. 100 at ¶64); (Doc. 115 at 26,
¶64). After Officer Parker told him to “come here,
” Patel stopped and turned towards the officers. (Doc.
100 at ¶65); (Doc. 115 at 26, ¶65).
parties vigorously dispute whether Patel ever put his hands
in his pockets. (See Doc. 100 at ¶66); (Doc.
115 at 26 ¶66). There are two police dashcam videos in
evidence. However, the Parker dashcam video is too
poor-quality to ascertain with a high level of certainty
whether Parker's hands were in his pockets. (See
Parker Dashcam Video at 1:00-2:16). Further, the angle of the
video makes it such that the viewer cannot see totally what
was going on. (See id.). The Spence dashcam video is
higher quality than the Parker dashcam video. (See
generally Spence Dashcam Video). However, it only shows
the later part of the encounter. (See Id. at
00:00-17:52). Further, the positioning of Officer Parker
obstructs a view of Patel's hands. (See Id. at
00:00-00:16). In short, neither video provides an indication
that Patel's hands were in his pockets, but the videos do
not tell the entire story because of the viewpoint
the officers stopped Patel from walking away for the third
time, Patel stopped walking, facing away from the road and
toward the houses along the street. (Doc. 100 at ¶67);
(Doc. 115 at 26, ¶67). Officer Slaughter asked whether
Patel had been looking at houses, but got no response. (Doc.
100 at ¶68); (Doc. 115 at 26, ¶68).
Officer Slaughter, a police officer trainee, permitted Patel
to continue to walk away from them, Officer Parker took over
the investigatory stop. (Doc. 107 at ¶21); (See
Doc. 115 at ¶21). The parties dispute the relative size
difference between Patel and Officer Parker. (See
Doc. 107 at ¶22); (Doc. 115 at ¶22). There is
evidence from hospital records that Patel weighed around 115
pounds. (Doc. 116-2 at 1). Parker described himself as
weighing around 150 pounds. (Parker Depo. at 88:23 to
parties dispute whether Patel was acting suspiciously. (Doc.
107 at ¶23); (Doc. 115 at 15 ¶23). Officer Parker
was concerned that Patel was armed. (See Doc. 107 at
¶23). Officer Parker decided to conduct a
pat-down of Patel to determine whether he was armed. (Doc.
100 at ¶89); (Doc. 115 at 30 ¶89). Officer Parker
walked around Patel, stopping when he was behind Patel's
left shoulder. (Doc. 100 at ¶90); (Doc. 115 at 30
¶90). Officer Parker took hold of Patel and placed
Patel's hands in a reverse prayer position, with
Patel's knuckles touching each other and his palms facing
out. Officer Parker held onto Patel's index fingers with
his right hand. (Doc. 107 at ¶24); (Doc. 115 at 15,
¶24); (see also Doc. 100 at ¶91-92).
Officer Slaughter then began patting down Patel's right
leg. (Doc. 100 at ¶93); (Doc. 115 at 31 ¶93).
parties vigorously dispute the actual events directly leading
up to the takedown. Again, the Court notes that while there
is a dashcam video, that video is not the end-all be-all of
this case. There is much that the video does not show the
viewer because of the video quality and the vantage point.
Parker claims that Patel jerked his left hand free while he
was beginning to perform the patdown. (Doc. 107 at ¶
26). Patel disputes this fact. (Doc. 115 at 17 ¶ 26);
(see also Patel Depo. at 60-61); (but cf.
Patel Depo. at 106-07) (not remembering if there was a
“tiny bit” of movement). The parties agree that
Officer Parker told Patel to stop jerking away. (Doc. 107 at
¶26); (Doc. 115 at 17 ¶28). Officer Parker also
warned Patel that he would put him on the ground if he kept
jerking. (Doc. 100 at ¶98); (Doc. 115 at 32 ¶98).
However, the parties disagree whether Patel was actually
“jerking” away. (Doc. 107 at ¶26-28); (Doc.
115 at 16¶26). The parties dispute whether Patel's
hand ever came free during the patdown. (Doc. 100 at
¶99); (Doc. 115 at 32 ¶99). The Court has viewed
the dash cam videos and notes that they provide scant
evidence that Patel moved during the patdown. (See
Parker Dashcam Video at 00:00-02:19). For example, when
Officer Parker tells Patel to stop jerking away the first
time, there is virtually no movement that can be seen from
his dash cam video. (See Id. at 01:59). That does
not mean there was no movement, because the video does not
tell all. There is some visible evidence of movement right
before the takedown, as Patel turned his head and moved his
left foot. (See Id. at 02:00-02:20); (see
also Spence Dashcam Video at 00:00-00:17).
point, Officer Parker took Patel to the ground. (Doc. 100 at
¶123); (Doc. 115 at 37 ¶ 123). Despite Officer
Parker's never having been taught how to perform a leg
sweep, it appears that is what he attempted to do. (Doc. 100
at ¶ 117) (citing Parker Depo. at 25,
37-38); (Doc. 115 at 36 ¶ 117). Patel landed
on the grass,  and Officer Parker landed on top of him.
(Doc. 100 at ¶ 126); (Doc. 115 at 39 ¶126).
Parker immediately radioed for a supervisor to come to the
scene. The officers noticed Patel's nose was bleeding,
and Officer Parker radioed for paramedics as well. (Doc. 107
at ¶ 33); (Doc. 115 at 18, ¶33). The video evidence
shows one of the officers putting a shoe back on Patel's
foot after the takedown. (Spence Dashcam Video at
01:00-01:22). Over the next several minutes, Officer Parker
and the other officers on the scene attempted to help Patel
stand up. (Doc. 100 at ¶ 34); (Doc. 115 at 41
¶134). Officer Parker contends that Patel continued to
resist being handcuffed, even after the takedown. (Doc. 107
at ¶32). The video does not support that claim. (Spence
Dashcam Video at 00:20-00:47); (see also Doc. 115 at
Officer Parker removed Patel's handcuffs. (Doc. 115 at
¶135); (Doc. 115 at 41 ¶135). Officer Parker spoke
to both Officer Spence and Corporal Clint Harrell, the
supervisor who responded. He confirmed with both that Patel
continued to jerk away from him during the
patdown. (Doc. 107 at ¶34); (Doc. 115 at 18,
¶34). Patel was transported to Madison Hospital by
ambulance, where he was initially treated. (Doc. 107 at
¶35); (Doc. 115 at 18, ¶35); (Doc. 100 at
to Officer Parker at the time, Patel suffered from
pre-existing severe multilevel degenerative conditions of the
spine, including cervical spinal canal stenosis attributed to
disc bulging, hypertrophy of the ligamentum flavum, and,
acutely, to spinal cord edema at one section of his spine.
This level of stenosis, though not outwardly apparent, was
unusually high compared to what one would expect to find in
an average man of his age. This preexisting condition
predisposed Patel to spinal injury. (Doc. 100 at ¶ 129);
(Doc. 115 at 40 ¶ 129).
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 2265 (1986) (“[S]ummary judgment is proper 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.”) (internal quotation marks omitted).
The party requesting summary judgment always bears the
initial responsibility of informing the court of the basis
for its motion and identifying those portions of the
pleadings or filings that it believes demonstrate the absence
of a genuine issue of material fact. Celotex, 477
U.S. at 323, 106 S.Ct. at 2553. Once the moving party has met
its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings in answering the movant. Id.
at 324, 106 S.Ct. at 2553. By its own affidavits - or by the
depositions, answers to interrogatories, and admissions on
file - it must designate specific facts showing that there is
a genuine issue for trial. Id.
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d. 202 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the
non-movant. Chapman v. AI Transport, 229 F.3d 1012,
1023 (11th Cir. 2000). Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A
dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the
non-movant to rebut the moving party's evidence is merely
colorable, or is not significantly probative, summary
judgment may still be granted. Id. at 249, 106 S.Ct.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citing United States
v. Four Parcels of Real Property, 941 F.2d 1428, 1438
(11th Cir. 1991)). Once the moving party makes such an
affirmative showing, the burden shifts to the non-moving
party to produce “significant, probative
evidence demonstrating the existence of a triable
issue of fact.” Id. (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 2183, 135
L.Ed.2d 606 (1996). The second method a movant in this
position may use to discharge its burden is to provide
affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
there are cross-motions for summary judgment, each side must
still establish the lack of genuine issues of material fact
and that it is entitled to judgment as a matter of law.
See Chambers & Co. v. Equitable Life Assur. Soc. of
the U.S., 224 F.2d 338, 345 (5th Cir. 1955) (“Both
parties filed and argued motions for summary judgment, but
this does not warrant the granting of either motion if the
record reflects a genuine issue of
fact.”). “When there are cross-motions for
summary judgment, the court must consider each motion
separately, drawing all inferences in favor of each
non-moving party in turn.” D & H Therapy
Associates, LLC v. Boston Mut. Life Ins. Co., 640 F.3d
27, 34 (1st Cir. 2011); see also, Byce v. Pruco Life Ins.
Co., 1:09-CV-1912-RWS, 2011 WL 233390 (N.D.Ga. Jan. 21,
2011) (“[T]he filing of cross-motions for summary
judgment does not give rise to any presumption that no
genuine issues of material fact exist. Rather,
‘[c]ross-motions must be considered separately, as each
movant bears the burden of establishing that no genuine issue
of material fact exists and that it is entitled to judgment
as a matter of law'”) (quoting Shaw
Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d
533, 538-39 (5th Cir.2004)).
court will consider each motion independently, and in
accordance with the Rule 56 standard. See U.S. v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (“On
summary judgment the inferences to be drawn from the
underlying facts contained in such materials must be viewed
in the light most favorable to the party opposing the
motion.”). “The fact that both parties
simultaneously are arguing that there is no genuine issue of
fact, however, does not establish that a trial is unnecessary
thereby empowering the court to enter judgment as it sees
fit.” Wright, Miller & Kane, Fed. Practice &
Proc. § 2720, at 327-28 (3d ed. 1998).
Judgment on the Pleadings
12(c) of the Federal Rules of Civil Procedure provides that
“[a]fter the pleadings are closed--but early enough not
to delay trial--a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). As the Eleventh Circuit
has explained the Rule 12(c) standard:
Judgment on the pleadings is appropriate when there are no
material facts in dispute, and judgment may be rendered by
considering the substance of the pleadings and any judicially
noticed facts. See Bankers Ins. Co. v. Florida
Residential Property and Cas. Joint Underwriting
Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998) (citing
Hebert Abstract Co. v. Touchstone Properties, Ltd.,
914 F.2d 74, 76 (5th Cir. 1990)); see also Rule
12(c), Fed.R.Civ.P. When we review a judgment on the
pleadings, therefore, we accept the facts in the complaint as
true and we view them in the light most favorable to the
nonmoving party. See Ortega, 85 F.3d at 1524 (citing
Swerdloff v. Miami Nat'l Bank, 584 F.2d 54, 57
(5th Cir. 1978)). The complaint may not be dismissed
“‘unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'”
Slagle, 102 F.3d at 497 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2
L.Ed.2d 80 (1957) & citing Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17,
125 L.Ed.2d 612 (1993)).
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367,
1370 (11th Cir. 1998).
“[w]hether the court examine[s] [a pleading] under Rule
12(b)(6) or Rule 12(c), the question [remains] the same:
whether the [complaint] stated a claim for relief.”
Sampson v. Washington Mut. Bank, 453 Fed.Appx. 863,
865 n.2 (11th Cir. 2011) (first alteration supplied; all
other alterations in original) (quoting Strategic Income
Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305
F.3d 1293, 1295 n.8 (11th Cir. 2002)); Sampson, 453
Fed.Appx. at 865 n.2 (applying Strategic Income and
concluding that court's error in granting a dismissal
under Rule 12(c) instead of Rule 12(b)(6) was harmless).
Officer Parker's Motion for Summary Judgment Is Due To Be
Granted in Part and Otherwise Denied.
defense of qualified immunity completely protects government
officials performing discretionary functions from suit in
their individual capacities unless their conduct violates
‘clearly established statutory or constitutional rights
of which a reasonable person would have known.'”
Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.
2003) (internal quotation marks omitted) (quoting
Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir.
2003)). “To receive qualified immunity, the government
official must first prove that he was acting within his
discretionary authority.” Id. at 1234 (citing
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.
a two-part test. Under the first step, “the defendant
must [prove that he or she was] performing a function that,
but for the alleged constitutional infirmity, would have
fallen with[in] his legitimate job description.”
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
1266 (11th Cir. 2004). Next, the defendant must prove that he
or she was “executing that job-related function-that
is, pursuing his job-related goals-in an authorized
manner.” Id. at 1267. “Once a defendant
establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that
the defendant is not entitled to qualified immunity.”
Cottone, 326 F.3d at 1358.
2009, the Supreme Court had required a two-part inquiry to
determine the applicability of qualified immunity, as
established by Saucier v. Katz, 533 U.S. 194, 201,
121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001), modified in
application by Pearson v. Callahan, 555 U.S. 223, 227,
129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009) (holding that
“Saucier procedure should not be regarded as
an inflexible requirement”). Under the Saucier
test, “[t]he threshold inquiry a court must undertake
in a qualified immunity analysis is whether [the]
plaintiff's allegations, if true, establish a
constitutional violation.” Hope v. Pelzer, 536
U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).
under the plaintiff's allegations, the defendants would
have violated a constitutional right, “the next,
sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358
(quoting Saucier, 533 U.S. at 201, 121 S.Ct. at
2156). The “clearly established” requirement is
designed to assure that officers have fair notice of the
conduct which is proscribed. Hope, 536 U.S. at 739,
122 S.Ct. at 2515. This second inquiry ensures “that
before they are subjected to suit, officers are on notice
their conduct is unlawful.” Saucier, 533 U.S.
at 206, 121 S.Ct. at 2158.
“unlawfulness must be apparent” under preexisting
law. Anderson v. Creighton, 483 U.S.
635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct.
1092, 1097-98, 89 L.Ed.2d 271 (1986)). Therefore, a temporal
requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public
officer would not have believed her actions to be lawful in
light of law that was clearly established at the time of the
purported violation. See Anderson, 483 U.S. at 639,
107 S.Ct. at 3038 (“[W]hether an official protected by
qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the
‘objective legal reasonableness' of the action[, ]
assessed in light of the legal rules that were ‘clearly
established' at the time it was taken[.]”)
(emphasis added) (citation omitted); Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed.
2D 583 (2004) (“If the law at that time did
not clearly establish that the officer's conduct would
violate the Constitution, the officer should not be subject
to liability or, indeed, even the burdens of
litigation.”) (emphasis added); Brosseau, 543
U.S. at 198, 125 S.Ct. at 599 (“Because the focus is on
whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct.”)
(emphasis added); see also Johnson v. Clifton, 74
F.3d 1087, 1093 (11th Cir. 1996) (“We know of no
[preexisting] case which might have clearly told Clifton that
he could not take the disciplinary action indicated by an
investigation which was initiated before he even knew about
the allegedly protected speech, and in circumstances where
the public concern implication was doubtful.”).
the Saucier framework was made non-mandatory by the
Supreme Court in Pearson, 555 U.S. at 236, 129 S.Ct.
at 818, in which the Court concluded that, “while the
sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as
mandatory.” Thus, “judges of the district courts
and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
the Supreme Court's modification of
Saucier's analytical process, the substantive
analysis remains unchanged; an officer is entitled to
qualified immunity protection as long as he “could have
believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116
L.Ed.2d 589 (1991). Therefore, to deny immunity, a plaintiff
must affirmatively demonstrate that “no reasonably
competent officer would have” acted as the public
official did. Malley, 475 U.S. at 341, 106 S.Ct. at
Officer Parker argues that there was reasonable suspicion to
stop Patel and that the Court should determine the question
as a matter of law. (See Doc. 107 at 15).
is only when an officer, ‘by means of physical force or
show of authority, has in some way restrained the liberty of
a citizen may we conclude that a ‘seizure' has
occurred.'” Jackson v. Sauls, 206 F.3d
1156, 1166 (11th Cir. 2006) (citing other sources). The
Eleventh Circuit has further explained the principles behind
a Terry stop:
To have reasonable suspicion, an officer conducting a stop
must “have a reasonable, articulable suspicion based on
objective facts that the person has engaged in, or is about
to engage in, criminal activity.” United States v.
Powell, 222 F.3d 913, 917 (11th Cir.2000) “The
‘reasonable suspicion' must be more than ‘an
inchoate and unparticularized suspicion or hunch.'
” Id. (quoting Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)).
“While ‘reasonable suspicion' is a less
demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence, the
Fourth Amendment requires at least a minimal level of
objective justification for making the stop.”
Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673,
675-76, 145 L.Ed.2d 570 (2000). Also, “[a] reasonable
suspicion of criminal activity may be formed by observing
exclusively legal activity, ” United States v.
Gordon, 231 F.3d 750, 754 (11th Cir.2000), even if such
activity is “seemingly innocuous to the ordinary
citizen.” United States v. Smith, 201 F.3d
1317, 1323 (11th Cir.2000).
We examine “the totality of the circumstances” to
determine whether the police had “a particularized and
objective basis for suspecting legal wrongdoing.”
United States v. Arvizu, 534 U.S. 266, 122 S.Ct.
744, 750, 151 L.Ed.2d 740 (2002) (citation and internal
quotation marks omitted). We also recognize that the police
may “draw on their own experience and specialized
training to make inferences from and deductions about the
cumulative information available to them that might well
elude an untrained person.” Id. at 750-51
(citation and internal quotation marks omitted). To have
reasonable suspicion based on an anonymous tip, the tip must
“be reliable in its assertion of illegality, not just
in its tendency to identify a determinate person.”
J.L., 120 S.Ct. at 1379. “The issue is whether
the tip, as corroborated by independent police work,
exhibited sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory stop.”
Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412,
2414, 110 L.Ed.2d 301 (1990).
U.S. v. Lindsey, 482 F.3d 1285, 1290-91 (11th Cir.
series of events started with a phone call from a concerned
citizen, Jacob Maples. He called the Madison emergency
services, said that Patel was wandering around people's
driveways, said that he was worried about leaving his family
at home, noted that he had not seen Patel until recently,
described Patel's physical appearance, gave his name,
gave his phone number, and said generally where he lived.
(See Jacob Maples 911 Call at 00:00-02:21). It is
significant that Maples identified himself. See U.S. v.
Martinelli, 454 F.3d 1300, 1307 (11th Cir. 2006) (citing
Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th
Cir.1985)) (“The courts have traditionally viewed
information drawn from an ordinary witness or crime victim
with considerably less skepticism than information derived
from anonymous sources.”). The police were dispatched
to the scene and found a man substantially matching the known
informant's description, and in the general area that the
known informant said he would be in. Even though Officer
Parker did not witness immediately apparent suspicious
activity (i.e. looking at people's garages), the known
informant did. Adams v. Williams, 407 U.S. 143, 148
(1972) (“[W]e reject respondent's argument that
reasonable cause for a stop and frisk can only be based on
the officer's personal observation, rather than on
information supplied by another person. Informants' tips,
like all other clues and evidence coming to a policeman on
the scene, may vary greatly in their value and
reliability.”). Further, Patel has not adequately
disputed the evidence that the area in which Patel was in was
known for burglaries. This too would play into what a
reasonable officer would consider in determining reasonable
suspicion. Here the Court finds that this is enough to
provide at least arguable reasonable suspicion to make the
initial (Terry) stop. For that reason, Officer
Parker is entitled to qualified immunity on this
“[t]he principles of Terry permit a State to
require a suspect to disclose his name in the course of a
Terry stop.” Hiibel v. Sixth Judicial
Dist. Court of Nevada, Humboldt County, 542 U.S. 177,
187 (2004) (noting that “[a] state law requiring a
suspect to disclose his name in the course of a valid
Terry stop is consistent with Fourth Amendment
prohibitions against unreasonable searches and
seizures”). “The reasonableness of a seizure
under the Fourth Amendment is determined ‘by balancing
its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate government
interests.'” See Id. at 187-188 (citing
Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct.
1391, 59 L.Ed.2d 660 (1979)). Under Alabama law, police
officers can demand answers to certain questions.
See Ala. Code § 15-5-30.
argues that any reasonable suspicion evaporated when the
police got to the scene. (See Doc. 115 at 58).
However, Officer Parker arguably had reasonable suspicion to
start the Terry stop, and the reasonable suspicion
did not go away because the officers did not obtain basic
answers under Alabama law and because Patel attempted to walk
away several times. Accordingly, the Court
GRANTS Officer Parker QUALIFIED
IMMUNITY on the Terry seizure claim.
Officer Parker argues that there was “reasonable,
articulable suspicion that [Patel] was armed and
dangerous.” (See Doc. 107 at 15). For that
reason, Officer Parker believes that Patel has no
“unlawful search” claim. (See Id. at
initial matter, the Court has to determine what Patel pled in
his unlawful search claim. The facts of the Complaint lead
the Court to infer that the focus of the unlawful search
claim was the Terry frisk. (Doc. 58 at ¶ 17,
18, 33). The Complaint did not allege that Officer Parker
took actions (i.e. going inside Patel's pockets) that
would take this from a Terry frisk that requires a
fear that the suspect is armed and dangerous, to a search
requiring probable cause. (See id.). Further,
Officer Parker moved for summary judgment on the search claim
(Doc. 107 at 15-23). In response, Patel talks only about a
Terry frisk aspect. (See Doc. 115 at
55-60). Patel references Officer Parker going inside his
pockets in the section alleging false arrest. (See
Doc. 115 at 72). For that reason, the Court reads Patel to be
arguing that when Officer Parker emptied Patel's pockets,
this is a factor to be considered regarding the illegal
seizure. The Court further determines that any claim that
Officer Parker illegally searched Patel via emptying his
pockets was abandoned as insufficiently argued. “The
parties bear the burden of formulating arguments before the