Opinion
CIVIL ACTION FILE NO. 3:17-cv-134-TCB
2021-05-03
Tyler L. BRIENZA, Plaintiff, v. CITY OF PEACHTREE CITY; Adam C. Wadsworth; and Mark A. Williams, Defendants.
Lisa Catherine Lambert, Law Office of Lisa Lambert, Atlanta, GA, for Plaintiff. Alexandra M. Joseph, Harvey Scott Gray, Gray, Rust, St. Amand, Moffett & Brieske, LLP, Atlanta, GA, for Defendant City of Peachtree City, Georgia.
Lisa Catherine Lambert, Law Office of Lisa Lambert, Atlanta, GA, for Plaintiff.
Alexandra M. Joseph, Harvey Scott Gray, Gray, Rust, St. Amand, Moffett & Brieske, LLP, Atlanta, GA, for Defendant City of Peachtree City, Georgia.
ORDER
Timothy C. Batten, Sr., United States District Judge
This case comes before the Court on the motion [68] for summary judgment filed by Defendants the City of Peachtree City; Adam C. Wadsworth; and Mark A. Williams.
I. Background
The facts taken in the light most favorable to Plaintiff Tyler L. Brienza are as follows.
On September 25, 2015, a Peachtree City parent posted on Facebook that her fourteen-year-old daughter, while attending the homecoming dance at McIntosh High School, was given a flyer promising free alcohol to women the following night at a house party at "Walsh's" that would be "the shit." See [68-3] ¶ 4. Lieutenant Matt Myers of the Peachtree City police department saw the post and forwarded it to another Peachtree City police officer, Jamaal Greer, who was serving as the school resource officer at McIntosh.
After informing McIntosh's principal of the flyer, Greer identified a recent (2014) graduate of the school with the last name Walsh and contacted his mother. Though out of the country at the time, she asked him to shut down any party occurring at her home.
Greer called Defendant Williams, another Peachtree City police officer, who told him that he would have officers go to the residence to investigate whether an "illegal party" was taking place. [78] at 127:14-19. Williams later decided to investigate himself. Fellow Peachtree City police officer Defendant Wadsworth accompanied him.
Once at the residence, Williams and Wadsworth knocked on the door. Brienza and non-party Brian Walsh answered. Walsh identified himself and answered the officers’ questions, but Brienza refused to do so.
Williams subsequently arrested Brienza for obstruction under a city ordinance making it "unlawful for any person to make resistance to or knowingly or willfully obstruct or hinder or in any manner interfere with a city employee or any other official of the city in the discharge of such officer's or employee's official duty." PEACHTREE CITY , GA ., CODE OF ORDINANCES § 50-2 (2020). Williams instructed Wadsworth to prepare charges for a municipal code violation, and Brienza was taken to jail for a brief period.
Following Brienza's release, the Fayette County solicitor—independent of Williams or Wadsworth—upgraded Brienza's municipal violation to state charges for disorderly conduct and obstruction. The disorderly conduct charge was later dropped, and the state criminal case proceeded to trial on the obstruction charge alone.
While awaiting his criminal trial, Brienza filed this suit. He brings federal claims of retaliation, false imprisonment, false arrest, and malicious prosecution, as well as state law claims of false imprisonment, false arrest, and negligence. He seeks to recover damages and attorney's fees.
Brienza's civil matter in this Court was stayed during the pendency of his criminal case, the trial for which began on October 9, 2019. After the close of evidence, he sought a directed verdict. The trial judge denied his motion, finding that there was enough evidence to submit the obstruction charge to a jury. However, the judge also ruled that the exchange between Brienza and the officers was a so-called first-tier encounter and that while the officers could ask him for his identification, he was free to end the conversation without cooperating. After the ruling, the state elected to dismiss the criminal case.
On October 28, 2020, the parties jointly moved to reopen Brienza's civil suit. They subsequently engaged in discovery, and on November 23, Defendants moved for summary judgment.
II. Legal Standard
Summary judgment is appropriate when "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). There is a "genuine" dispute as to a material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Inv'r Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In making this determination, however, "a court may not weigh conflicting evidence or make credibility determinations of its own." Id. Instead, the court must "view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Id.
"The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the nonmoving party would have the burden of proof at trial, there are two ways for the moving party to satisfy this initial burden. United States v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437–38 (11th Cir. 1991). The first is to produce "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id. at 1438 (citing Celotex Corp. , 477 U.S. at 331, 106 S.Ct. 2548 ). The second is to show that "there is an absence of evidence to support the nonmoving party's case." Id. (quoting Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548 ).
If the moving party satisfies its burden by either method, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Id. At this point, the nonmoving party must " ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 593–94 (11th Cir. 1995) (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
III. Discussion
A. Federal Claims: Counts I, II, and VII
1. Fourth Amendment Claims: Counts II (Detention and False Arrest) and VII (Malicious Prosecution)
Brienza contends that Williams and Wadsworth violated his Fourth Amendment rights when he was arrested for failing to provide his identification. Defendants argue that these claims are barred by the doctrine of qualified immunity.
"Qualified immunity offers complete protection for individual public officials performing discretionary functions ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Sherrod v. Johnson , 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
Brienza concedes that Williams and Wadsworth were acting within the scope of their discretionary duties when they arrested him. Thus, the burden shifts to him to show that qualified immunity should not apply, i.e., that "(1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation." Moreno v. Turner , 572 F. App'x 852, 855 (11th Cir. 2014) (quoting Whittier v. Kobayashi , 581 F.3d 1304, 1308 (11th Cir. 2009) ).
To overcome qualified immunity where, as here, a warrantless arrest has occurred, the plaintiff must show that under clearly established law, the officer lacked probable cause—or at least arguable probable cause—to arrest him. See Holmes v. Kucynda , 321 F.3d 1069, 1079 (11th Cir. 2003).
Probable cause is lacking when, in considering the totality of the circumstances, an arrest is not "objectively reasonable." McCormick v. City of Fort Lauderdale , 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Lee v. Ferraro , 284 F.3d 1188, 1195 (11th Cir. 2002) ). In other words, an officer must lack "facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime." United States v. Diaz-Lizaraza , 981 F.2d 1216, 1222 (11th Cir. 1993) (quoting United States v. Gonzalez , 969 F.2d 999, 1002 (11th Cir. 1992) ).
And even if probable cause is lacking, "a police officer is entitled to qualified immunity if he had only ‘arguable’ probable cause to arrest." Gates v. Khokhar , 884 F.3d 1290, 1298 (11th Cir. 2018) (quoting Ferraro , 284 F.3d at 1195 ). Arguable probable cause exists where "reasonable officers in the same circumstances and possessing the same knowledge as the [defendant] could have believed that probable cause existed to arrest." Id. (quoting Redd v. City of Enterprise , 140 F.3d 1378, 1383–84 (11th Cir. 1998) ) (alteration in original).
Here, Brienza argues that there was no probable cause or arguable probable cause to arrest him because a reasonable officer would know that an individual is not required to provide his identification during a first-tier encounter with police. He points to the Supreme Court's decision in Florida v. Bostick , 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), as affirmation that "a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure."
But in Bostick , officers randomly stopped a bus rider and arrested him when he refused to let them search his luggage. This Court has since distinguished cases such as Bostick from cases in which the officers conducted a stop based on reasonable suspicion that the suspect was committing or had committed a crime.
For instance, in Gainor v. Douglas County , 59 F. Supp. 2d 1259, 1282 (N.D. Ga. 1998), the plaintiff was arrested for obstruction after he refused to identify himself. This Court held that the officers had probable cause to arrest him because they were "investigating a matter for which the facts known to the officer supported the stop," as compared to a scenario where "the officer seemingly had no reason for stopping [the suspect]." Id. (internal citation omitted). The Court reasoned that "under Georgia case law dealing with the offense of obstruction, the standard for determining whether an officer was lawfully discharging his duties such that a refusal to provide identification would constitute obstruction is whether a reasonable suspicion existed to stop the individual charged with obstruction." Id. (citing Holt v. State , 227 Ga.App. 46, 487 S.E.2d 629 (1997), and Brooks v. State , 206 Ga.App. 485, 425 S.E.2d 911 (1992) ).
The Supreme Court has thus far declined to expressly hold that an officer conducting a search supported by reasonable suspicion may arrest a suspect for obstruction. As a result, circuit courts have generally concluded that the law is not clearly established for qualified immunity purposes. See Risbridger v. Connelly , 275 F.3d 565, 570 (6th Cir. 2002) (granting qualified immunity because "the Supreme Court has expressly left open the question of whether it violates the Fourth Amendment to punish an individual for violating state or local laws by refusing to identify himself during a lawful Terry stop"); Albright v. Rodriguez , 51 F.3d 1531, 1537 (10th Cir. 1995) (pointing out that the Supreme Court has twice "refused to determine whether an individual can be arrested for refusing to identify himself in the context of a lawful investigatory stop"); Gainor v. Rogers , 973 F.2d 1379, 1386 n.10 (8th Cir. 1992) ; Tom v. Voida , 963 F.2d 952, 959 n.8 (7th Cir. 1992) (finding that "[d]espite repeated references to this problem, the Supreme Court has never resolved it") (internal citations omitted).
Because it has not been clearly established that it would violate Brienza's Fourth Amendment rights to be arrested for obstruction during the course of a lawful stop, qualified immunity applies unless Brienza can show that Williams and Wadsworth lacked reasonable suspicion to conduct the stop.
Reasonable suspicion requires that the officers, "based on the totality of the circumstances, had a particularized and objective basis for suspecting the particular person[ ] [searched] of criminal activity." Justice v. City of Peachtree City , 961 F.2d 188, 193 (11th Cir. 1992) (quoting United States v. Vargas , 643 F.2d 296, 298 (5th Cir. Unit B 1981) ) (alterations in original).
Here, Williams and Wadsworth suspected that criminal activity was occurring because of (1) the flyer advertising a party involving free alcohol; (2) the dissemination of that flyer to a minor at a high school event; and (3) the Facebook post alerting Peachtree City residents to the event. In response to that evidence and in reliance upon their experience policing underage drinking in Peachtree City, the officers initiated an investigation. Based on the record, there was reasonable suspicion to initiate the stop. Brienza nonetheless argues that "[a]ny reasonable articulable suspicion the officers had ... evaporated within minutes of [the officers’] arrival at the residence" because "they observed absolutely no evidence of a party – no excessive amount of people, cars, golf carts, loud music, lights, cups or beer bottles." [84] at 13.
But even if reasonable suspicion dispelled once the officers began their investigation, qualified immunity applies unless Brienza can show that a reasonable officer would know that it would violate a suspect's Fourth Amendment rights to arrest him for obstructing an investigation initially supported by reasonable suspicion that a crime was occurring. He has not done so. And because the law regarding arrests for obstruction following a lawful stop remains uncertain, it would be objectively unreasonable to go a step further by requiring an officer to know that an arrest following a stop initially supported by reasonable suspicion would violate the Fourth Amendment. Accordingly, qualified immunity bars Brienza's Fourth Amendment claims.
2. First Amendment Claim: Count I (Retaliatory Arrest)
In Brienza's remaining federal claim, he argues that Williams and Wadsworth violated his First Amendment rights by arresting him in retaliation for his refusal to respond to their questions. Defendants again claim qualified immunity.
Generally speaking, a plaintiff's First Amendment retaliatory arrest claim is barred by qualified immunity unless he can show that a reasonable officer would know that he lacked probable cause to arrest him. As noted above, whether there was probable cause for Brienza's arrest for obstruction is an area of law so unsettled that he cannot meet his burden of showing a violation of his clearly established constitutional rights.
The wrinkle to Brienza's First Amendment claim is that the Supreme Court has modified its approach to First Amendment retaliatory arrest claims in recent years. In 2019, after a period of considerable turbulence in this area, the Court elucidated that a First Amendment retaliatory arrest claim can proceed even if the arrest was supported by probable cause if the plaintiff "presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." Nieves v. Bartlett , ––– U.S. ––––, 139 S. Ct. 1715, 1727, 204 L.Ed.2d 1 (2019).
Brienza argues that he was treated differently from other partygoers, even if his arrest was supported by probable cause. He points, for instance, to a party the night before involving underage individuals. At that event, reports of underage drinking prompted Williams and Wadsworth to arrive at a residence where it was apparent that a party was occurring. A parent subsequently arrived and refused to cooperate with their investigation, but he received only a citation for obstruction and was not arrested.
However, Brienza was arrested in 2015, four years before the Court issued its Nieves decision in 2019 and clarified the probable cause requirement. Prior to that decision, it had not been clearly established that a retaliatory arrest claim might proceed even if the officers had probable cause to arrest. See Quick v. Geddie , 763 F. App'x 909, 914 (11th Cir. 2019) (affirming a finding of qualified immunity because "[i]t was not clearly established at the time of [the plaintiff's] arrest that an officer who had arguable probable cause nevertheless could be liable for acting with an unconstitutional motivation"); Alston v. City of Darien , 750 F. App'x 825, 835 (11th Cir. 2018) ; see also Turner v. Williams , No. 3:19-cv-641-J-32PDB, 2020 WL 1904016, at *9 (M.D. Fla. Apr. 17, 2020) (concluding that "at the time of [the plaintiff's] arrest, it was not clearly established that an arrest made with probable cause could nonetheless subject a government actor to liability for First Amendment retaliation") (internal citations omitted).
Under such circumstances, Brienza's arrest was objectively reasonable. Accordingly, Williams and Wadsworth are likewise entitled to qualified immunity on Brienza's First Amendment retaliatory arrest claim. Summary judgment will be granted as to Brienza's federal claims (counts I, II, and VII).
B. State Claims: Counts III–VI
1. False Arrest and False Imprisonment Claim Against Wadsworth and Williams
In count III, Brienza avers that Williams and Wadsworth are liable for false imprisonment. Defendants contend that official immunity bars this claim.
Although Brienza claims both false arrest and false imprisonment in count III (and again in count IV as to Peachtree City), these claims are mutually exclusive. See Wilder v. Fisher , No. 5:20-cv-143-TES, 2020 WL 5790403, at *3 (M.D. Ga. Sept. 28, 2020) (acknowledging that "[i]t makes sense for a plaintiff to be reluctant to put all his eggs in the basket of one cause of action; but, things almost always get messy when he tries to put one egg into three baskets"). In other words, "[f]alse arrest is detention under process of law, meaning detention pursuant to a warrant." Id. (citing Sheffield v. Futch , 354 Ga.App. 661, 839 S.E.2d 294, 300 (2020) ). Because there was no warrant here, the Court will treat Brienza's "false arrest/false imprisonment" claims as ones for false imprisonment only.
The doctrine of official immunity bars suits against public officials in their individual capacity "where the public official has engaged in discretionary acts that are within the scope of his or her authority, and the official has not acted in a willful or wanton manner; with actual malice; or with the actual intent to cause injury." Brown v. Penland Constr. Co. , 281 Ga. 625, 641 S.E.2d 522, 523 (2007) (internal citations omitted).
"Under Georgia law, the decision to make a warrantless arrest ‘is considered a discretionary act within the scope of the officer's official functions.’ " Grant v. Manning , No. 7:19-cv-146 (HL), 2021 WL 1214502, at *7 (M.D. Ga. Mar. 30, 2021) (quoting Mercado v. Swoope , 340 Ga.App. 647, 798 S.E.2d 291, 294 (2017) ). There is no dispute that Williams and Wadsworth were acting in the scope of their discretionary duties. The burden therefore shifts to Brienza to show that they acted with actual malice or the intent to cause injury.
Brienza argues that a jury could find that the officers acted with actual malice because his arrest was made without probable cause.
This does not suffice. Actual malice requires "[a] deliberate intention to do wrong." Murphy v. Bajjani , 282 Ga. 197, 647 S.E.2d 54, 60 (2007) (quoting Merrow v. Hawkins , 266 Ga. 390, 467 S.E.2d 336, 337 (1996) ). It is not enough to show that an officer relied on "misguided" evidence in the record but nonetheless made a "considered decision to proceed with arrest." Marshall v. Browning , 310 Ga.App. 64, 712 S.E.2d 71, 75 (2011) (quoting Todd v. Kelly , 244 Ga.App. 404, 535 S.E.2d 540, 543 (2000) ). And "[t]he absence of reasonable suspicion for the stop by itself does not amount to actual malice." Rojas-Carreno v. Ariemma , No. 1:08-cv-2839-LTW, 2010 WL 11601219, at *12 (N.D. Ga. Mar. 31, 2010) (citing Bashir v. Rockdale Cnty. , 445 F.3d 1323, 1333 (11th Cir. 2006), and Selvy v. Morrison , 292 Ga.App. 702, 665 S.E.2d 401, 405 (2008) ). Instead, Brienza would have to show that the officers were "motivated by a personal animus," "manufactur[ed] evidence," or "knowingly present[ed] perjured testimony." Marshall , 712 S.E.2d at 74. But at best he shows only that the officers felt "frustration, irritation, and possibly even anger." Selvy , 665 S.E.2d at 406 (quoting Tittle v. Corso , 256 Ga.App. 859, 569 S.E.2d 873, 877 (2002) ). This is "not sufficient to penetrate official immunity." Id. (quoting Tittle , 569 S.E.2d at 877 ). Because the record contains no evidence that Williams and Wadsworth acted with a "wicked or evil motive," id. at 405 (quoting Kidd v. Coates , 271 Ga. 33, 518 S.E.2d 124, 125 (1999) ), summary judgment will be granted as to count III.
2. Claims Against Peachtree City: Counts IV and V
In counts IV and V, Brienza asserts that Peachtree City is liable pursuant to the doctrine of respondeat superior for the acts of Williams and Wadsworth. In count IV he claims that the City is liable for false imprisonment; in count V, he argues it is liable for negligence. Defendants contend that summary judgment is appropriate as to both claims, in part because the City is protected by sovereign immunity.
Sovereign immunity in Georgia is broad. It generally protects the state, its counties, and municipalities from suit. See Moncus v. Lasalle Mgmt. Co. , No. 7:19-cv-75 (HL), 2020 WL 4430390, at *3 (M.D. Ga. July 31, 2020). While a state or municipality may waive its sovereign immunity, such instances are rare. See id.
That said, a state may waive its sovereign immunity if it purchases liability insurance that "covers the exact type of occurrence for which the defense of sovereign immunity is being asserted," and then only to the extent of the policy's limits. Butler v. City of Douglas , No. cv 514-055, 2016 WL 5661203, at *15 (S.D. Ga. Sept. 29, 2016). The burden is on the party seeking to defeat sovereign immunity to show that it has been waived. See id. (citing Doss v. City of Savannah , 290 Ga.App. 670, 660 S.E.2d 457, 462 (2008) ).
Brienza argues that Peachtree City waived its sovereign immunity by purchasing liability insurance during the relevant period that covered the actions of law enforcement up to a specified dollar amount. As evidence of such, he attaches to his briefing a document containing the renewal terms for Peachtree City's insurance policy. But he does not attach the actual policy, and the disclaimer on the renewal terms provides that "[t]hese terms are not to be construed as an exact or complete analysis of the coverage agreement, nor as legal evidence of coverage. The provisions of the actual coverage document will prevail." [84-2] at 5.
Defendants do not dispute the document's authenticity.
Without the coverage agreement itself, the Court cannot determine whether, for instance, Defendants preserved their sovereign immunity by including an express no-waiver provision in the agreement. See Rogers v. City of College Park , No. 1:16-cv-1556-MLB, at 46, 2019 WL 4168797 (N.D. Ga. Sept. 3, 2019) (citing GA. CODE ANN. § 36-33-1(a), which authorizes a municipality to waive sovereign immunity by purchasing insurance that "covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy "). Accordingly, the Court requires supplemental briefing to determine whether Peachtree City has waived its sovereign immunity and can therefore be held liable on respondeat superior grounds.
3. Count VI: Attorney's Fees Pursuant to O.C.G.A. § 13-6-11
Because count VI is derivative of Brienza's substantive claims, the Court will reserve ruling on his request for attorney's fees until after supplemental briefing on the sovereign immunity issue.
IV. Conclusion
For the foregoing reasons, Defendants’ motion [68] for summary judgment is granted in part. Summary judgment is granted as to Brienza's federal claims (counts I, II, and VII) as well as his state law claims against Williams and Wadsworth (count III). Williams and Wadsworth are dropped as parties, and the Clerk is directed to terminate them as Defendants on the docket.
Three of Brienza's claims remain: counts IV and V, as well as the derivative claim for attorney's fees in count VI. With respect to counts IV and V, the parties are ordered to provide supplemental briefing as follows: Brienza, bearing the burden of establishing that sovereign immunity has been waived, is ordered to, within fourteen days of the date of this order, file a brief on this issue of eight pages or less. Peachtree City, the sole remaining Defendant in this action, will have fourteen days from the date of Brienza's filing in which to respond with a brief of eight pages or less. There will be no reply.
IT IS SO ORDERED this 3rd day of May, 2021.