Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Copeny v. Prosser

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

September 20, 2018

MARCUS JAMES COPENY, Plaintiff,
v.
OFFICER BRIAN PROSSER, et al., Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         On August 10, 2018, the magistrate judge entered a report recommending the defendants' special report be treated as a motion for summary judgment. (Doc. 36). The report further recommended the motion be granted and that all claims against the three remaining defendants-Officer Brian Prosser, Officer Rutherford, and Sergeant Letson-be dismissed. (Id.). The plaintiff filed objections to the report and recommendation on August 24, 2018. (Doc. 37). The plaintiff's objections do not take issue with the recommended dismissal of Defendant Officer Letson, but focus exclusively on Officers Prosser and Rutherford. For the reasons that follow, the plaintiff's objections will be OVERRULED.

         The plaintiff's first objection contends Officers Prosser and Rutherford intentionally tased him in the neck: “an area in which these officers have been trained to avoid at all costs when it comes to making an attempt to subdue anyone.” (Doc. 37 at 1-2). No. evidence in the record supports the plaintiff's contention that the neck is an inappropriate location to apply a taser. Accordingly, this objection is OVERRULED.

         The plaintiff also argues Officers Prosser and Rutherford admitted in their declarations that they tased his neck for “no less than 3 minutes.” (Doc. 37 at 1). This objection is OVERRULED. Contrary to the plaintiff's contention, neither officer stated they tased him for three minutes. Instead, both officers testified they became winded “after about two minutes of struggling” to arrest the plaintiff. (Doc. 27-1 at 9; Doc. 27-2 at 6). During this struggle, Rutherford testified he “placed the Taser at the top of” the plaintiff's shoulders and warned the plaintiff he was going to be tased if he did not cease resisting arrest. (Doc. 27-2 at 5). When the plaintiff continued to resist, Rutherford “gave a loud verbal warning, ” but the plaintiff “continued to pull away and began to kick with his legs.” (Id. at 5-6). Rutherford then performed a “drive stun” on the plaintiff's neck. (Id. at 6).[1] Prosser echoes this testimony but describes the taser as being deployed to the “back of the [plaintiff's] lower neck area.” (Doc. 27-1 at 8).

         According to Rutherford, the plaintiff shouted and continued to “pull away and kick wildly” as the officers tried to gain control of him, so Rutherford again performed a drive stun to the top of the plaintiff's shoulders. (Doc. 27-2 at 6). The plaintiff continued yelling, kicking, and pulling away, and Rutherford applied a third drive stun cycle above his shoulders. (Id.). Prosser's testimony again echoes Rutherford's, except that he does not mention the location of the second and third drive stuns. (Doc 27-1 at 8-9).

         The body camera footage does not show precisely where Rutherford placed the taser. The audio recording reveals Rutherford tased the plaintiff three times. (Prosser, 22:32:37-42, 22:32:47-52, and 22:32:53-55).[2] The first and second cycles lasted five seconds; the last cycle lasted two seconds and immediately ended when the plaintiff acquiesced. (Id.). A total of eighteen seconds passed between the first and third tasing. (Id.). Thus, the record wholly contradicts the plaintiff's assertion that the officers tased him-or testified that they tased him-for three minutes.[3]

         The plaintiff further argues the body camera footage does not reveal the “complete story” because “it is inaudible and unviewable at crucial moments.” (Doc. 37 at 3). As an initial matter, the video and audio recordings of the entire event totally contradict the plaintiff's version of events. Even though darkness and movement hinders a clear view of the tasing, the body camera footage shows Prosser grappling with his handcuffs and his close proximity to the plaintiff. (Id. at 22:32:09-27). The second and third tasing events are also visible. (Id. at 22:32:47-55).

         In addition, the audio recording is more than clear. It reflects the plaintiff continued to actively resist arrest after Rutherford warned he would be tased. (Prosser, 22:32:15). The plaintiff resisted through the second tasing and ceased resisting during the third tasing. (Id. at 22:32:37-55). During the eight-second period while the plaintiff was tased a second and third time, the plaintiff's passenger, Greg Harris-captured on video standing behind Prosser's police unit and in close proximity to the fracas-can twice be heard telling the plaintiff to put his hands behind his back. (Prosser, 22:31:12-20, 22:32:49-50 and 22:32:53-56). Also audible during this time is a woman-one of the bystanders who witnessed the arrest-twice telling the plaintiff to put his hands behind his back. (Id.). Once the plaintiff stated his hands were behind his back, the officers ceased all force. (Id. at 22:32:56-57). Throughout the event, both officers can be heard breathing heavily and repeatedly ordering the plaintiff to stop resisting and place his hands behind his back. The only reasonable inference from this evidence is that the plaintiff was actively resisting arrest until after the third tasing.

         The video and audio recordings then show Mr. Harris did not understand why the plaintiff was continuing to behave unreasonably and he repeatedly encouraged the plaintiff to allow the officers to search him. (Heflin, 22:46-55). At no time did Mr. Harris make any comment suggesting the plaintiff was not resisting during the tasings or that the officers' continued use of force was unreasonable. Likewise, the gathered bystanders supported the police officers' efforts and chided the plaintiff for his behavior. (Heflin, 22:46-55; Renshaw 22:47-49). When all of the video and audio recordings are considered, no reasonable jury would believe the plaintiff's version of events as to the officers' use of force, including use of the taser.

         Next, the plaintiff points to the portion of the magistrate judge's report stating that his Decatur General Hospital blood test yielded “normal results” to argue the officers dishonestly and maliciously charged him with DUI. (Doc. 37 at 4). The plaintiff's objections are OVERRULED. In addition to driving with a suspended license, the plaintiff never has denied driving erratically or failing to stop at a stop sign immediately before Prosser initiated the traffic stop. Furthermore, records from Decatur General Hospital reveal medical professionals diagnosed him as “intoxicated” upon admission. (Doc. 27-7 at 3-4). The hospital lab report shows the plaintiff's blood alcohol content was .131, well over the legal limit. (Id. at 22).

         The plaintiff also argues the charge for trafficking in synthetic cannabinoids “was completely bogus” on legal grounds-not because he did not actually possess the substance-and that he was “extorted into a best interest plea” to possession. (Doc. 36 at 2-3). This argument is immaterial and irrelevant to the claims in this action.

         The plaintiff requests the court allow him to present the testimony of Greg Harris, his passenger on the night of the incident. (Doc. 37). The court DENIES the plaintiff's request. The magistrate judge afforded the plaintiff an opportunity to obtain and present the evidence he desired prior to considering the defendants' motion for summary judgment. The plaintiff did not offer any testimony from Mr. Harris. Instead, the only non-documentary evidence the plaintiff offered was a declaration making the type of “sovereign citizen” arguments the Eleventh Circuit routinely finds frivolous. See United States v. Sterling, 739 F.3d 228, 233, n.1 (11th Cir. 2013); (see Doc. 32 at 1).

         Finally, the plaintiff requests the court review photographs of his neck to “serve as evidence of the brutal and excessive force” used against him during the unlawful search, charging, and arrest. (Doc. 37 at 4). Until his objections, the plaintiff never has claimed the defendants' unlawfully searched, charged, or arrested him for trafficking or driving under the influence of alcohol. No. allegations in the complaint could be construed as supporting these claims. Accordingly, those claims are not before the court.[4]

         As for the photographs, the plaintiff has not identified which photographs show his neck. The photographs are taken so close to the plaintiff's body that, other than those of his arms, hands, and ear, discerning the body part photographed or any evidence of injury is impossible. (Doc. 34 at 21-29). Three of the photographs appear to show an unusual mark that could be the result of a taser burn. (Id. at 21 (both photos); id. at 29 (last photo)). These photographs are irrelevant. The defendants do not dispute they tased the plaintiff three times in the shoulder or neck area. The disputed issue is why, how, and when the officers used the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.