Opinion
CIVIL ACTION NO. 1:99CV178-SAA.
February 9, 2001.
MEMORANDUM OPINION
On September 11, 2000, the present action was tried before the undersigned without a jury to determine the merits of the plaintiffs' claims filed pursuant to 42 U.S.C. § 1983. The plaintiffs initially named the City of Aberdeen as a defendant along with Tim Howell and Quinell Shumpert but voluntarily dismissed any claims against Aberdeen before trial. Consequently, the claims remaining were against only Howell and Shumpert.
I. FINDINGS OF FACT
At approximately 7:00 p.m. on February 5, 1998, Aberdeen Police Officers, Bobby McFarland and Nate Wilson, pursued a vehicle into the parking lot of a barbecue restaurant in Aberdeen, Mississippi. The plaintiff Maurice Howard was one of four occupants in the car being chased. When the car stopped in the parking lot, Howard and the other occupants fled on foot into a nearby woodlot. The police officers shouted for the occupants of the vehicle to return, and only Maurice Howard did so. Howard had fresh blood stains on his t-shirt when he surrendered to the officers.
During the initial pursuit, Officers McFarland and Wilson had called for back-up. Shortly after Howard surrendered to McFarland and Wilson, Officer Tim Howell arrived. When Officer Howell arrived, he was given the details of the stop and proceeded to question Howard who had yet to be searched. Officer Howell attempted to search Howard, but Howard began acting in an uncooperative manner. Howard repeatedly removed his hands from the hood of the car while Officer Howell attempted to pat him down. Officer Howell was forced to place Howard's hands back on the car. After failing to remain still for some time, Howard eventually brought his elbow back toward Officer Howell in a threatening manner. At this point, Officer Howell forced Howard to the ground and placed him under arrest for resisting the attempts to search him. Howard was subsequently released at the scene to his grandfather.
Howard sued Officer Howell for unreasonable seizure and use of excessive force under the Fourth and Fourteenth Amendments to the United States Constitution. As a result of his scuffle with Officer Howell, Howard suffered an injury to his right shoulder, elbow, hip, and knee. Howard also suffered cuts to his hands from falling onto the gravel parking lot. On the night of the arrest, Howard was treated at the local emergency room, and his arm was placed in a sling. Howard was also treated the following day at the North Mississippi Medical Center in Tupelo, Mississippi. Howard's damages include medical bills, pain and suffering, fear, humiliation, and distress.
While the above described actions were taking place a crowd began to form both in the barbecue restaurant's parking lot and across the street at a local recreation center. Officer Shumpert traveled to the scene after hearing the sounds of the angry crowd during attempted radio transmissions from the scene by other officers. Officer Shumpert arrived after Howard had been released to his grandfather. Shumpert testified that shortly after his arrival he saw the plaintiff Everett Jackson arrive and then immediately leave. Shortly thereafter Officer Shumpert saw Jackson return to the scene and slide to a stop. Officer Shumpert said he saw Jackson speak to his son Maurice Howard who pointed out Officer Howell. Jackson then went to Howell and began cursing and waiving his arms. Shumpert then told Jackson to leave. Jackson got into his car and began to leave, but rolled down his window and shouted again at the police officers. Officer Shumpert had seen enough. Shumpert felt that Jackson was inciting the crowd, and thus, he ordered that Jackson be arrested.
After his arrest, Jackson was taken to the police station where his demeanor improved dramatically. Officers Shumpert, Howell, Wilson, and McFarland all testified that Jackson was calm and apologetic at the police station. Jackson was subsequently released. He then filed the present lawsuit against Officer Shumpert for ordering his arrest, which he claims was a violation of his rights provided by the First, Fourth and Fourteenth Amendments to the United States Constitution. It was unclear at trial precisely what damages are being alleged. Jackson did testify that his reputation in the community has not been damaged. In light of this court' disposition of this case, it need not reach the issue of Jackson's damages.
II. CONCLUSIONS OF LAW
A defendant acting in his individual capacity may invoke the doctrine of qualified immunity to shield himself from liability. Owen v. City of Independence, Mo., 445 U.S. 622 (1980). Often referred to as the qualified immunity defense, the doctrine of qualified immunity is not a defense at all, but is essentially a right not to be sued under certain circumstances. Thornhill v. Breazeale, 88 F. Supp.2d 647, 653 (S.D.Miss. 2000). The doctrine of qualified immunity does not insulate from liability a governmental entity or a person acting in his official capacity. Owen, 445 U.S. at 622. It can only protect a person acting under color of law in his individual capacity. In the present case, the plaintiffs have named Officers Howell and Shumpert in their individual capacities.
To determine whether a defendant is entitled to qualified immunity, the court performs a following two-part test, determining (1) whether the plaintiff has alleged a violation of a clearly established constitutional right, and (2) if so, whether the defendant's conduct was objectively reasonable in light of the clearly established law at the time of the incident. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). In the present action, the plaintiffs allege separate violations of their constitutional rights. The court will address each of these separately.
1. Maurice Howard/Officer Howell
Maurice Howard contends that Officer Howell's actions violated his constitutional rights because Howell used excessive force and committed an unreasonable seizure when he arrested Howard by forcing him to the ground and injuring him. It is clear that the plaintiff has alleged violations of clearly established rights. A constitutional guarantee exists under the Fourth Amendment against unreasonable seizure through the use of excessive force by a law enforcement officer in the course of making an arrest. Harper v. Harris Co., 21 F.3d 597, 600 (5th Cir. 1994). However, the plaintiff's claim fails when the court looks to the second part of the two-part test set out in Hare. After hearing all the testimony and examining the facts surrounding the incident at issue, the court is convinced that Officer Howell's actions were objectively reasonable in light of clearly established law. As mentioned, the plaintiff's claim for excessive force must be determined according to Fourth Amendment standards because "all claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1985). The issue of reasonableness centers on whether the officer's actions are "objectively reasonable" in light of the facts and circumstances with which he is faced, without regard to the officer's underlying intent or motivation. Id. at 397. Whether the use of force is reasonable "must be judged from the perspective of a reasonable officer on the scent, rather than with the 20/20 vision of hindsight." Id. at 396. In applying Graham, the Fifth Circuit has used a three-part test for § 1983 excessive force claims, requiring a plaintiff to show (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992).
In the present case, the plaintiff put on evidence that he was indeed injured. However, Officers Bishop, McFarland, and Wilson all testified that Officer Howell forced the plaintiff to the ground only after the plaintiff became uncooperative and eventually moved in a threatening manner. While the plaintiff is a minor, the court notes that the plaintiff is exceptionally large for his age. The court also finds that testimony of the officers to be more credible than that of either Billy Blanchard, Scotty Broyles, or J.T. Strodder, all of whom testified that Howard had not been uncooperative in any way. Because the court finds the witnesses for the defense to be more credible, the court believes the actions of Officer Howell were completely within reason based on the situation he faced at the time. Accordingly, judgment shall be entered for the defendant Howell.
2. Everett Jackson/Quinell Shumpert
Everett Jackson sued Quinell Shumpert for ordering his arrest, which he claims to be an unreasonable seizure under the Fourth and Fourteenth Amendments. Jackson also alleges that his arrest violated the First Amendment. As with Howard, Jackson does allege the violation of a clearly established constitutional right. There is a clearly established right not to be subjected to an unreasonable seizure under the Fourth Amendment to the United States Constitution. Therefore, as directed by the Hare decision, the court looks to determine whether Officer Shumpert's conduct was objectively reasonable in light of the clearly established law at the time of the incident. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). The major difference in the analysis regarding Jackson's claim as opposed to Howard's claim is that Howard's claim involved an allegation of unreasonable seizure with excessive force. Jackson has not alleged excessive force, and thus, the court will look to determine whether probable cause existed to make the arrest.
Under the Fourth Amendment, an arrest must be based on probable cause, which exists "when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996). In the present action, it is clear to the court that Officer Shumpert believed that Mr. Jackson's behavior was potentially placing the police on the scene in danger. Shumpert testified that Jackson's behavior was inciting the crowd, and in his opinion it was necessary to arrest Jackson to prevent further incitement of the already angry crowd. Shumpert's conclusion in this regard was based on the fact that after Jackson left the first time, the crowd began to calm, and the crowd did not get rowdy again until Jackson returned. Section 97-35-3 of the Mississippi Code provides that it is indeed a crime to provoke a breach of the peace. After considering Officer Shumpert's testimony and finding Officer Shumpert to be an exceedingly credible witness, the court is convinced that it was reasonable for Officer Shumpert to arrest Mr. Jackson. Clearly, it was reasonable for Officer Shumpert to believe that Mr. Jackson was committing a crime.
As for his First Amendment claim, Jackson fails the first part of the two-part test set out in Hare. Jackson has not alleged a violation of a clearly established constitutional right. Hare, 135 F.3d at 325. In order to establish a violation of the First Amendment free speech clause, Jackson first had to show that his speech was constitutionally protected. Where "advocacy of the use of force or of law violation . . . is directed to inciting or producing imminent lawless action and is likely to incite or produce such action," the First Amendment offers the speaker no protection. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). In the present action, the plaintiff cannot prevail on his claim that his arrest was made in violation of the First Amendment because the speech that led to his arrest was not protected. Accordingly, the plaintiff Jackson fails on each of his claims, and judgment shall be entered for the defendant Shumpert.