Opinion
Civil Action 99-D-1443-S
July 19, 2001
Stephen D. Heninger, M. Jack Hollingsworth, Birmingham, Al., Attorneys for Plaintiffs.
Derel Kevan Kelly, Freddie Lenton White II, Doghan City Attorney's Office, Dothan, Al., Attorneys for Defendants.
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Motion For Summary Judgment, which was filed jointly by the City of Dothan and numerous Dothan officials and police officers May 29, 2001. Plaintiff Douglas Wade Price. Plaintiff filed a Response July 3 and, with leave of the court, a Supplemental Response July 16. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the motion is due to be granted in part, and Plaintiff'B state law claim is due to be dismissed without prejudice.
The defendants are referred to by their last names or collectively as "Defendants."
"Plaintiff" or "Price."
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction). The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
The court reviews the record and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The court does not "weigh the evidence and determine the truth of the matter," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986), but enters judgment only if "there is no genuine issue as to any material fact." FED. R. CIV. P. 56(c).
III. FACTUAL BACKGROUND
Douglas W. Price had prior convictions for DUI, leaving the scene of an accident, and other motor vehicle offenses when he led a legion of police officers on a 13-minute car chase around Dothan, Ala., the morning of March 4, 1999. Price's black pickup zoomed past Dothan police officer John E. Duhaime around 3:30 a.m. The truck, which was within city limits, was accelerating beyond 60 mph and made several erratic lane maneuvers. Duhaime activated his emergency lights and called for backup. Price and Duhaime soon came to a stop sign. From the window of his squad car, Duhaime ordered Price to stop the vehicle, but Price kept on trucking. Several squad cars were in hot pursuit by this point, and a video camera attached to Officer William E. Benny's vehicle captured some, but not all, of the ensuing melee.
Duhaime Aff. at 2 (Def. Ex. A).
The parties stipulate to the authenticity of the tape. (Doc. No. 32.)
Benny's car followed directly behind Price's truck, which was speeding as fast as 70 mph. Price states that he did not "attempt to harm any police officers." However, his affidavit does not dispute Benny's statement that when Benny pulled in front of Price's truck and tried to get Price to slow down, Price moved into the right-hand lane and swerved at Benny in an apparent attempt to avoid capture Several moments later, Price and at least four other squad cars came to an intersection, where Price stopped for a red light. An officer on foot approached the left side of Price's car with his hand up, but Price drove off once the light turned green. The chase continued, while other motorists passed by in the opposite direction.
Benny Aff. at 2 (Def. Ex. G).
Price Aff. at 1 (Pl. Ex. 2).
Benny Aff. at 1-2. Because the camera lens did not capture events unfolding off to the side of the squad car, the swerve is not seen on video.
Videotape at c. 23:54:30 to :54:40. It is unclear if the officer's gun was drawn.
Price and no less than four squad cars soon came to the intersection of East Main Street and Ross Clark Circle. Price stopped in the left turn lane on Ross Clark, and the police almost completely hemmed him in on all four sides, with two cars stopped several feet apart directly in front of him. The officers yelled at Price to exit his vehicle. Officer Duhaime started opening the driver's side door, and Officer Leslie Stover tried to open the passenger door. At this point, Price hit the gas and dragged Duhaime several feet into the intersection. Somehow, Price maneuvered between the two squad cars blocking his path. The truck was accelerating quickly, and it passed no more than several feet from Officer Brent Parrish, who was standing near the two cars with his gun drawn. Parrish fell to the ground. At this point, Parrish and Duhaime fired a total of three rounds into the vehicle.
Id. c. 23: 56:30 to :56:50; Duhaime Aff. at 2-3; Parrish Aff. at 2 (Def. Ex. B); Stover Aff. at 2 (Def. Ex. C).
Duhaime Aff. at 3; Stayer Aff. at 2; Parrish Aff. at 2.
Price's truck then made a hard left, jumped a curb, and slid down a grassy embankment into a Citgo gas station parking lot. Price then got the truck back onto the state highway, jumped a concrete median, and put his spinning and smoking tires to the road, heading left. As it exited the parking lot, Price's truck almost clipped a Houston County squad car, which had to slam on the brakes to avoid collision. Several officers then pursued Price down Main Street and some narrow two-lane roads. His car crossed the center line multiple times, and the videotape shows at least one car going along the highway in the opposite direction.
Videotape at c. 23:56:50 to :57:05; Mot. at 3-4.
Videotape at c. 23:57:04; Stover Aff. at 3.
Videotape at c. 23:59:25 to 00:04:00; Benny Aff. at 3.
The chase went into the town of Cowarts, Ala. The truck had a flat tire and was belching out smoke. Price got near the intersection of Cowarts Creek Road and Lucy Grade Road. Benny's dispatcher instructed him to hit the rear of Price's car in an attempt to force it to fishtail and come to a stop. Benny did so, and Price's car spun around, so that it was now facing Stover's oncoming squad car.
Wozniak Aff. at 2 (Def. Ex. F).
Stover pinned her car up against the front bumper of Price's truck. Price then rammed Stover's vehicle. Shortly thereafter, he put his truck in reverse and crashed into the driver's door of Benny's squad car while Benny was still inside. Stover then fired several rounds into Price's engine compartment. Because Price continued to ram Benny's car, Stover and Parrish fired several bullets into Price's driver's compartment. Price was hit. He slumped over, and his truck stopped moving. Stover and Duhaime administered first aid, and an ambulance arrived at the scene within one minute.
Parrish Aff. at 3; Stover Aff. at 3.
Stover Aff. at 4; Def. Ex. M at 3 (unnumbered).
An investigation showed that the Dothan police fired 41 shots at the vehicle during this entire incident. Five of those bullets entered the driver's compartment, and three of them hit Price in the face and neck. Price was treated at a local hospital. Medical records show that he was intoxicated and had detectable marijuana in his urine. Police charged him with one count of possession and two counts of attempted murder.
Def. ix. M at 3 (unnumbered).
Pl. Ex. 3 (Transfer Summary of Dr. Nichols) at 1; Id. (Patient Final Chart) at 629-002.
Duhaime Aff. Ex. 1-3.
IV. DISCUSSION
Price brings a state law claim and two Fourth Amendment excessive force claims against the City of Dothan and several of its officers, both in their official and individual capacities, under 42 U.S.C. § 1983. The state law claim will be dismissed without prejudice, the official capacity claims will be dismissed as redundant, and the individual capacity claims will be dismissed on the grounds of qualified immunity.A. Search and Seizure Clause
The Fourth Amendment protects against unreasonable searches and seizures. The Supreme Court has held that a seizure occurs only when a fleeing person is physically touched by police or when he submits to a show of authority. See California v. Hodari D., 499 U.S. 621, 626 (1991). A police officer who chases a fleeing suspect unsuccessfully has not seized that person. See County of Sacramento v. Lewis, 523 U.S. 833, 843-45 (1998); Parris v. Town of Alex City, 45 F. Supp.2d 1295, 1302 (M.D. Ala. 1999). Price's Response brief does not identify the precise point at which he believes he was seized. The undisputed evidence, however, is that no bullets hit Price, no officer laid hands on him, and no submission to a show of lawful authority was made by him until some time around when his car spun out of control at Cowarts Creek Road and Lucy Grade Road. The court finds that Price was not seized until that moment.
The issue, then, is whether the seizure was unreasonable. The Constitution limits the use of deadly force by police officers. See Tennessee v. Garner, 471 U.S. 1 (1985). The use of such force is reasonable if the officer is reasonably satisfied of three conditions precedent.
First, an officer must have probable cause to believe the suspect poses a threat of serious physical harm to the officer or to others. Probable cause of this sort exists where the suspect actually threatens the officer with a weapon or where there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. Second, deadly force must be necessary to prevent escape. Third, the officer must give some warning regarding the possible use of deadly force wherever feasible.Acoff v. Abston, 762 F.2d 1543, 1547 (11th Cir. 1985)
The court looks at the facts "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," and makes "allowance[s] for the fact that police officers are often called upon to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham v. Conner, 490 U.S. 386, 396-97 (1989). "The question is whether the officer's actions were objectively reasonable in light of the facts confronting the officer, regardless of the officer's underlying intent or motivation."Parris, 45 F. Supp.2d at 1302-03.
3. Qualified Immunity
All of the officers raise the defense of qualified immunity. "A government official will be protected from suit if the rights that he allegedly violated were unclear at the time of his actions or he reasonably believed that what he was doing did not violate clearly established law." Schmelz v. Monroe County, 954 F.2d 1540, 1544 (11th Cir. 1992). The officers were acting within the scope of their discretionary authority; thus, Price bears the burden of showing that the officers violated a right that was "developed in such a concrete and factually defined context as to make it obvious to all reasonable government actors, in the defendant's place, that `what he is doing' violates federal law." Raspberry v. Johnson, 88 F. Supp.2d 1319, 1327 (M.D. Ala. 2000) (quoting Lassiter v. Alabama AM Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc)).
In this context, therefore, "probable cause" really means "arguable probable cause." Put another way, the officers are entitled to qualified immunity if facts and circumstances are such that they reasonably could have believed that the suspect posed a serious threat to the officer or to others. See Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).
The court finds that all of the individual officers are entitled to qualified immunity. It was nighttime when the police seized Price at the juncture of Cowarts Creek Road and Lucy Grade Road. While there is no evidence that the officers knew if Price was armed, Price had been erratically driving a pickup truck at high speeds while under the influence of alcohol and, probably, marijuana. He was in the process of smashing into occupied Dothan police cars. He had disregarded numerous warnings. Several minutes earlier, at the crossroads of East Main and Ross Clark, he barrelled through a grassy embankment and jumped over a concrete median in an attempt to avoid capture. He almost hit the officers inside several Dothan police and Houston County police vehicles. He also came within several feet of hitting Officer Parrish. The reckless wielding of an automobile can constitute felonious assault.See Manning v. State, 471 So.2d 1265, 1267 (Ala.Crim.App. 1985); Kelley v. State, 362 So.2d 1292, 1294 (Ala.Crim.App. 1978); ALA. CODE § 13A-6-20 (1975) Under these circumstances, the officers, at minimum, arguably had probable cause to believe that deadly force was necessary to prevent the escape of a fleeing felon who posed an imminent risk to himself and to others. See Parris, 45 F. Supp.2d 1303-04; Puglise v. Cobb County, 4 F. Supp.2d 1172, 1179-80 (N.D. Ga. 1998).
As noted in Part IV.A, the earlier use of force at East Main and Ross Clarke did not implicate the Fourth Amendment. But even assuming that it did, the officers nonetheless would be entitled to qualified immunity. Police can and should attempt to stop a drunk in a pickup truck, who has just dragged an officer into the middle of an intersection and accelerated through a roadblock in a somewhat menacing manner. Qualified immunity protects all but the plainly incompetent or those who knowingly break the law. The court need not determine the precise scope of the Search and Seizure Clause to find that Plaintiff has not carried his summary judgment burden. See Drevitt v. Pratt, 999 F.2d 774, 776 (4th Cir. 1993).
The court has considered Plaintiff's claims against the City of Dothan and Dothan Police Chief John White. Those claims are without merit. Accordingly, the court finds that White is entitled to qualified immunity, and the City's motion for summary judgment is due to be granted. See Battle v. City of Florala, 28 F. Supp.2d 1331, 1339-40 (M.D. Ala. 1998); Scott v. City of Lanett, 845 F. Supp. 815, 818-20 (M.D. Ala. 1995). Having disposed of Price's federal claims, the court declines to exercise jurisdiction over his claim of assault and battery.
Def. Ex. K-L.
V. ORDER
It is CONSIDERED and ORDERED that Defendants' Motion For Summary Judgment be and the same is hereby GRANTED on all federal claims. Plaintiff's supplemental state law claim be and the same is hereby DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall close this case. A judgment follows.