United States District Court, N.D. Alabama, Northwestern Division
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE.
action proceeds on a Motion for Summary Judgment filed by
Defendants City of Florence, Alabama, Bennie Johnson, Jeff
Redcross, and Guy Lambert. Plaintiff Amanda Thompson advanced
42 U.S.C. § 1983 claims against the Defendants for
unlawful entry, unlawful arrest, and excessive force in
violation of the Fourth Amendment to the United States
Constitution, and state law claims for false arrest, false
imprisonment, and assault and battery.
to the review herein, Defendants Redcross and Johnson attain
qualified immunity on Thompson's Fourth Amendment claims.
Furthermore, state-agent immunity bars Thompson's
state-law claims. Finally, Thompson acceded to dismissal of
the remaining claims. Therefore, for the reasons set out herein,
the court GRANTS Defendants' summary
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). The party seeking summary judgment bears
the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrates the absence of a genuine issue
of material fact. Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
movant sustains its burden, a non-moving party demonstrates a
genuine issue of material fact by producing evidence by which
a reasonable fact-finder could return a verdict in its favor.
Greenberg v. BellSouth Telecomms., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (citation omitted).
The non-movant sustains this burden by demonstrating
“that the record in fact contains supporting evidence,
sufficient to withstand a directed verdict motion.”
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993). In the alternative, the
non-movant may “come forward with additional evidence
sufficient to withstand a directed verdict motion at trial
based on the alleged evidentiary deficiency.”
Id. at 1116-17; see also Doe v. Drummond
Co., 782 F.3d 576, 603-04 (11th Cir. 2015),
cert. denied, 136 S.Ct. 1168 (2016).
“court must draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000) (citations omitted). “‘Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.'” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). “Thus, although the court should review the
record as a whole, it must disregard all evidence favorable
to the moving party that the jury is not required to
believe.” Reeves, 530 U.S. at 151 (citation
omitted). “That is, the court should give credence to
the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.'”
Id. (citation omitted).
“mandates the entry of summary judgment, 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, 477 U.S. at 322. “In such a
situation, there can be ‘no genuine issue as to any
material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23. In addition, a movant may prevail on
summary judgment by submitting evidence
“negating [an] opponent's claim, ”
that is, by producing materials disproving an essential
element of a non-movant's claim or defense. Id.
at 323 (emphasis in original).
exists no issue for trial unless the nonmoving party submits
evidence sufficient to merit a jury verdict in its favor; if
the evidence is merely colorable or is not significantly
probative, the court may grant summary judgment.
Anderson, 477 U.S. at 249. That is, the movant
merits summary judgment if the governing law on the claims or
defenses commands one reasonable conclusion, but the court
should deny summary judgment if reasonable jurors could
“differ as to the import of the evidence.”
Id. at 250.
time of the events underlying this action, Plaintiff Amanda
Thompson resided in Florence, Alabama, in an apartment
below-street grade on the first floor of a building.
(Thompson Dep. at 12). The building consists of an entrance
adjacent to an alleyway, which remains locked and accessible
by key or by having a resident “buzz” a visitor
inside. (Thompson Dep. at 174-75, 190-91).
first floor apartments include outdoor patios that abut a
concrete retaining wall and sit several feet below street
level. The patio areas are visible from the sidewalk above.
(Doc. 28 at 55-58). Each first-floor apartment accesses the
patio area via their rear doors, and a resident or guest may
also access the patio area from the outside by traversing a
grassy area next to the building and proceeding through a
wooden, entry gate. (Thompson Dep. at 189-90). The gate
remained open during the night of the events at issue.
(Thompson Dep. at 168).
Individual Defendant Officers Patrol the 2015 W.C. Handy
W.C. Handy Festival is an annual, week-long festival that
occurs in downtown Florence. In 2015, the Florence Police
Department assigned Officers Bennie Johnson, Jeff Redcross,
Guy Lambert, and Danny Hines to patrol downtown Florence in
plainclothes during the festival to focus on minimizing and
eliminating public intoxication and public urination.
(Lambert Dep. at 31:1-5). For the events at issue, their
shift commenced on Saturday, July 25, 2015, and ended once
the local bars closed at 2:00 a.m.
July 25, 2015
Saturday evening, July 25, 2015, Thompson and her friend Sara
Kilpatrick went out to dinner. (Thompson Dep. at 53:21-22).
Thompson and Kilpatrick returned to her apartment after
dinner and continued drinking. (Thompson Dep. at 56:15-22;
57:10-12). A couple of hours later, Thompson and Kilpatrick
walked to FloBama Bar and Restaurant, where Thompson was
employed but had the night off. (Thompson Dep. at 60 and 62).
While at FloBama, Thompson's boyfriend, Mason Kemp, and
his friend, Cody Sloas, agreed to stop by Thompson's
apartment after their shifts at FloBama ended. (Thompson Dep.
and Kilpatrick returned to her apartment around 11:00 p.m.,
and Kamp and Sloas arrived less than an hour later. (Thompson
Dep. at 65:6-11). Kamp and Sloas proceeded through the open
wooden gate and into Thompson's apartment via the rear
patio door. (Thompson Dep. at 67:5). Thompson could not
recall whether she consumed any additional alcohol that
evening, and Kamp had nothing to drink because he was only
twenty years old at the time. (Thompson Dep. at 73:1-12;
74:19-23). Sunday, July 26, 2015
2:00 a.m. on Sunday morning, Kilpatrick requested
Thompson's assistance in the bathroom to help her take
off her outfit. (Thompson Dep. at 75:14-19). While Thompson
and Kilpatrick were in the bathroom, Kamp went outside to the
patio, exposed his penis, and urinated. (Doc. 30-1 at 2).
Kamp stated in a declaration that he urinated in a corner
where the wooden gate abuts the concrete wall, and no one
could see his penis from the sidewalk above the patio.
(Id.) Thompson did not know Kamp had gone outside
until she exited the bathroom, and it was not a common
practice for guests to urinate on her patio. (Thompson Dep.
at 83-83, 86-87).
the conclusion of his shift, Officer Johnson walked on the
sidewalk that passed above Thompson's patio. (Johnson
Dep. at 31:5-32:5). As Johnson was walking, he peered down
and saw Kamp while he was urinating. (Johnson Dep. at
paused for Kamp to finish, and he pulled out his badge and
displayed it once Kamp looked up. (Johnson Dep. at 42:15-17).
Johnson then declared he was a police officer, (Johnson Dep.
at 44:10-13), and he informed Kamp that he could not urinate
in public. (Johnson Dep. at 43:1-2).
asked Officer Johnson for identification because he believed
Johnson may be posing as a police officer. (Exhibit 1-A,
Audio Recording of Mason Kamp).Subsequently, after some disputed
remarks, Kamp went back into Thompson's apartment through
the rear patio door. Kamp and Thompson both declared that upon
re-entering Thompson's apartment, Kamp informed Thompson
someone outside may be posing as a police officer, yet Kamp
did not relay anything else regarding his conversation with
Johnson. (Exhibit 1-A; Thompson Dep. at 81:7-11).
the dispute regarding the remarks exchanged between Johnson
and Kamp, Johnson decided to apprehend Kamp for the alleged
urination on the patio. Johnson did not know how to access
Thompson's patio area from the sidewalk, so he spent a
few minutes looking for the main entrance. (Johnson Dep. at
44-45). He encountered Officer Redcross during his search,
and Johnson informed Redcross that he was attempting to
arrest a male subject for urinating in public view. (Johnson
Dep. at 45:6-8). After searching the building for an
entrance, Johnson and Redcross discovered the open wooden
gate leading to Thompson's patio. (Johnson Dep. at
52:1-5). The two officers proceeded through the gate before
knocking on Thompson's patio door. (Johnson Dep. at
the knocking on the patio door, Plaintiff Thompson opened it
and observed Redcross and Johnson in plainclothes standing at
her entrance. (Thompson Dep. at 87:3-15; 192:18-20). Thompson
remained unaware that Kamp had urinated outside. (Thompson
Dep. at 82:1-3). Both officers informed Thompson they needed
to speak with the “gentleman” that was recently
outside her apartment. (Thompson Dep. at 87:18-21; Johnson
Dep. at 54:14-16). Thompson responded, “this is my
apartment, what's going on?” (Thompson Dep. at
87:23-88:1). Thompson remembered no further exchanges at the
door except Redcross asking her again to see the
“gentleman” that was just outside. (Thompson Dep.
hearing Redcross's request to speak with the
“gentleman” who was just outside, Kamp appeared
from behind Thompson where the officers could see him.
(Thompson Dep. at 88:20-89:1; Johnson Dep. at
55:15-19). In an attempt to seize Kamp, the officers
bumped Thompson with the door as Redcross followed Kamp when
he receded into the apartment. (Thompson Dep. at 91:11-13).
As Johnson followed Redcross, Thompson testified that
“everything kind of went chaotic.”(Thompson Dep. at
89:3-4). The officers and Kamp engaged in an altercation as
they attempted to arrest Kamp. As the scrum ensued between
the two officers and Kamp, Sloas joined the encounter when he
saw the two officers “get on” Kamp. (Thompson
Dep. at 97:9-11; 97:21-98:3). Thompson declared to the
officers they were not allowed in her apartment and had no
right to be there. (Thompson Dep. at 96:9-12).)
urged Thompson to call 911 and grab her gun for self-defense.
(Thompson Dep. at 98; Exhibit 1-A). Thompson reached into her
purse and grabbed a loaded 9mm Ruger handgun. (Thompson Dep.
at 99:11-16; 108:9-10). She pointed the gun towards the floor
and called 911 with her free hand. (Thompson Dep. at
12:15-16; 108:9-10). Thompson alleged that she had not seen a
badge from either of the officers by this point in the
evening. (Thompson Dep. at 105:5-11).
audio recording of her 911 call, Thompson informed the
operator that two black men “posing as police
officers” (Johnson and Redcross are African-American)
were in her apartment; that both men had Kamp and Sloas down
on the floor; they had placed someone in handcuffs; and they
“ha[d] broken half of [her] shit in [her] apartment for
no reason.” (Exhibit E, Amanda Thompson 911 Call
Audio). During the call, backup officers arrived on the
scene, and thus, Thompson informed the operator she saw a
uniformed police officer in her apartment. (Id.)
Officers Lambert and Danny Hines arrived as backup. (Lambert
Dep. at 67-68; 74). Lambert testified that shortly after he
arrived, he recalled Redcross declaring,
“[Thompson's] got to go.” (Lambert Dep. at
107:6-8). The 911 recording identifies Thompson remarking,
“you're not putting me in handcuffs.”
(Exhibit E). Lambert testified he saw Thompson back away
quickly, and subsequently Redcross hauled her to the floor.
(Lambert Dep. at 68:8-15). Thompson alleged that Redcross
tackled her to the floor while she was on the telephone with
the 911 operator. (Thompson Dep. at 109:10-13). The 911 audio
also recorded Thompson screaming before the call cuts off.
gun flew out of her hands as she fell. (Thompson Dep. at
115:17-19; 116:3-5). Hines yelled “gun” when he
saw the firearm, and Lambert retrieved the weapon and
unloaded it. (Lambert Dep. at 67-68; 74).
testified she resisted Redcross because she did not know he
was a law enforcement officer attempting to arrest her.
(Thompson Dep. at 116-17). In addition, she did not
understand Redcross was arresting her until he had her fully
handcuffed on the floor. (Thompson Dep. at 197:11-17).
officers transported Thompson, Kamp, and Sloas to jail
without incident. (Thompson Dep. at 119-120). Johnson
proceeded to a hospital for treatment of injuries inflicted
by Kamp and Sloas. (Johnson Dep. at 19).
authorities charged Kamp with assault in the second degree,
resisting arrest, and public lewdness. (Doc. 28 at133). He
pleaded guilty to the lesser included offense of assault in
the third degree. (Doc. 28 at 134). Local authorities charged
Sloan with assault in the second degree and resisting arrest,
and he eventually pleaded guilty to the lesser included
offense of assault in the third degree. (Doc. 28 at 135-36).
charged Thompson with resisting arrest regarding her alleged
interference with the arrests of Kamp, Sloas, and/or herself.
(Doc. 28 at 137). The state court nolle prossed
Thompson's criminal case with leave to reinstate in
exchange for her agreement to give truthful testimony against
Kamp and Sloas if their felony cases proceeded to trial.
(Doc. 28 at 138).
testified that she incurred bruising on her arms and thighs
that remained visible for a few weeks after the incident.
(Thompson Dep. at 160:10-15). In December 2015, approximately
five months after the incident, Thompson began seeing a
therapist. (Thompson Dep. at 129). She informed her therapist
she had anxiety because there was a concert at FloBama that
brought a lot of black customers, and they reminded her of
Officers Johnson and Redcross. (Thompson Dep. at 132:3-7).
She experienced panic attacks and struggles from anxiety as a
result of the incident. (Thompson Dep. at 130:2-5;
136:12-21). However, she had not experienced a panic attack
in the year preceding her deposition. (Thompson Dep. at
claims Johnson and Redcross violated Fourth Amendment rights
prohibiting unlawful entry, false arrest, and excessive
force. Johnson and Redcross argue they deserve qualified
immunity from Thompson's claims. As the following
analyses portray, Johnson and Redcross merit qualified
immunity on all claims.
immunity protects government officials performing
discretionary functions in their individual capacity from
civil suit and liability “insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Hill v. Cundiff, 797 F.3d 948, 978 (11th
Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “When a court concludes [an official]
was engaged in a discretionary function, “‛the
burden shifts to the plaintiff to show that the defendant is
not entitled to qualified immunity.'”
Hill, 797 F.3d at 978 (citation omitted). There
exists no dispute Johnson and Redcross performed
discretionary functions in these circumstances, so Thompson
bears the burden of persuasion on the balance of the
qualified immunity inquiry: Johnson and Redcross violated a
constitutional right, and the right was clearly established
at the time of the alleged violation. Id. (citation
omitted). Courts retain discretion to adjudicate one prong
without addressing the other. Pearson v. Callahan,
555 U.S. 223, 236 (2009).
whether a constitutional right was clearly established may
proceed in three guises. A right may be clearly established
by “(1) case law with indistinguishable facts clearly
establishing the constitutional right; (2) a broad statement
of principle within the Constitution, statute, or case law
that clearly establishes a constitutional right; or (3)
conduct so egregious that a constitutional right was clearly
violated, even in the total absence of case law.”
Hill, 797 F.3d at 979 (citation omitted). Under the
second, afore-cited method, “every objectively
reasonable government official facing the circumstances would
know that the official's conduct did violate federal law
when the official acted.” Id. (citation
omitted). The “clearly established right must be
defined with specificity.” City of Escondido, Cal.
v. Emmons, No. 17-1660, 2019 WL 113027, at *2 (U.S. Jan.
7, 2019) (per curiam).
a right is clearly established if a defendant acted on
“fair warning” that his conduct violated the
constitutional rights of the plaintiff. Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (citing United
States v. Lanier, 520 U.S. 259 (1997)). As elaborated,
“fair warning” may emanate either from factually
similar case law or where the right is one of ‘obvious
clarity'- i.e., where the officer's conduct
“lies so obviously at the very core of what the
[constitutional provision] prohibits that the unlawfulness of
the conduct was ...