MITCHELL v. STEWART et al, No. 3:2012cv00132 - Document 86 (M.D. Ga. 2014)
Court Description: ORDER granting in part and denying in part 33 Motion for Summary Judgment; granting in part and denying in part 37 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 06/12/2014. (CGC)
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MITCHELL v. STEWART et al Doc. 86 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION MEGAN E. MITCHELL and CLIFTON JACKSON, * * Plaintiffs, * CASE NO. vs. 3:12-CV-132 (CDL) * HARVEY E. STEWART, DAVID WHIRRELL, and MICHAEL MAXEY, * Defendants. * O R D E R Lewis Grizzard, a Southern humorist and legendary columnist for the Atlanta Journal-Constitution, observed that there’s a big difference between the words “naked” and “nekkid”: “‘naked’ means you don’t have your clothes on. ‘Nekkid’ means you don’t have your clothes on and you’re up to something.”1 In this case, Plaintiffs claim that Defendants arrested and transported them to the jail with their breasts, buttocks, and genitalia exposed. Whether Plaintiffs were “up to something” arrived at their home is irrelevant. before Defendants If a jury believes that Plaintiffs were taken to jail substantially “naked,” that jury would be authorized to find that Defendants violated Plaintiffs’ 1 Lewis Grizzard, Baring it All to Get to the Nekkid Truth, Atlanta Journal, Nov. 14, 1986, at C1. Dockets.Justia.com clearly established Fourth Amendment rights. Accordingly, Defendants are not entitled to immunity.2 SUMMARY JUDGMENT STANDARD Plaintiffs sued Defendants under 42 U.S.C. § 1983 and state law, contending that Defendants violated their Fourth Amendment rights by entering their home without a warrant, arresting them without probable without allowing cause, them genitalia. Defendants federal claims law and to cover seek based transporting on their summary them breasts, judgment qualified to the buttocks, jail and on Plaintiffs’ immunity.3 Qualified immunity is a legal issue that ultimately must be decided by the Court as a matter of law, but any genuine factual disputes on which that legal determination is based must be resolved by a jury as the factfinder. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). As with any other summary judgment, summary judgment based on qualified immunity may be granted only “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.” Civ. P. 56(a). In determining whether a 2 genuine Fed. R. dispute of As explained in the remainder of this Order, Defendants are entitled to qualified immunity on Plaintiffs’ claims based on their entry into Plaintiffs’ home and their arrest of Plaintiffs, but not on Plaintiffs’ claims based on the manner of the arrest, which involved transporting Plaintiffs from their home to jail without allowing them to cover their breasts, genitalia, and buttocks. 3 Defendants also seek summary judgment on Plaintiffs’ state law claims based on official immunity under Georgia law. 2 material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. In the qualified immunity context, the Court must construe the factual record in favor of the plaintiff and determine whether that factual record would support a finding that the defendant’s conduct violated clearly established law, thus depriving him of qualified immunity. Tolan, 134 S. Ct. at 1866. Defendants seem to argue in their briefs that the Court must act as the factfinder. of the record, facts and Defendants Plaintiffs’ version disputing argue of the Focusing primarily on their version facts that facts that the and are supported by the Court should discount grant summary judgment based on Defendants’ version of what happened.4 To the extent that Defendants imply that the Court at summary judgment must 4 Plaintiffs certainly could have done a better job of citing the record. But Defendants denied several of Plaintiffs’ fact statements simply because Plaintiffs were slightly off on some of their pinpoint citations. The point of the Court’s local rule on fact statements is to help the Court determine whether a genuine dispute exists to be tried, not to provide counsel an opportunity to take tactical advantage of sloppy record citation by the other side. 3 evaluate which facts to misunderstand Rule 56. believe or disbelieve, Defendants Qualified immunity does not change the Rule 56 summary judgment analysis. The Court must still view the facts in the light most favorable to Plaintiffs and “may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S. Ct. at 1866. FACTUAL BACKGROUND Viewed in the light most favorable to Plaintiffs, the record reveals the following. Megan Mitchell and Nikki Beasley together at Athens Technical College. to her home after class on attended GED classes Mitchell invited Beasley October 14, 2010. Jackson, Mitchell’s boyfriend, picked up Mitchell and Beasley and drove them to the home, where he lived with Mitchell. After they arrived at the home, Mitchell drove Beasley to a convenience store called the Woodville Pantry, where Beasley purchased an alcoholic beverage. Beasley was sixteen years old, and Mitchell knew it. Beasley drank the alcohol in Mitchell’s presence, and she took a pill outside Mitchell’s presence. sick, so she and Mitchell called Beasley began to feel Beasley’s aunt for help. Beasley’s aunt met Beasley and Mitchell at the Woodville Pantry and took Beasley home. Beasley’s aunt decided that Beasley 4 needed medical attention, so she called 911, and Beasley was transported to the hospital by ambulance. Defendant Whirrell, a Greene County sheriff’s deputy, and his supervisor Defendant Stewart, Beasley’s aunt at the hospital. a corporal, interviewed Beasley’s aunt told Stewart and Whirrell that Beasley was “messed up” and had told the aunt that “she done drank . . . some alcohol and smoked some blunts.” Yearwood Dep. 30:23-31:11, ECF No. 46; accord id. at 36:5-12. The aunt also told the officers that Beasley had consumed the alcohol and smoked the blunts while she was at Plaintiffs’ home in Mitchell’s care. Id. at 41:24-42:7. As far as the aunt knew, Beasley was alone with Mitchell at the house. 44:14-19. Id. at The aunt told the officers that Beasley had been at Plaintiffs’ house with Mitchell and that when Mitchell drove Beasley to the convenience store to meet her, no one else was with them. that Id. at 45:2-13. Jackson was present The aunt did not tell the officers at the convenience Jackson gave Beasley alcohol or drugs. After interviewing went to eat. Beasley’s store or that Id. at 31:14-24.5 aunt, Stewart and Whirrell Stewart called Defendant Maxey, another deputy 5 Defendants contend that Beasley herself told Stewart and Whirrell that Mitchell and Jackson gave Beasley alcohol, marijuana, and Xanax. Stewart Dep. 110:15-25, ECF No. 49. But there is a factual dispute on this point. According to Darren Harland, a captain in the sheriff’s department, Defendants “never talked to the victim” before they went to Plaintiffs’ house; rather, they went solely based on the aunt’s statement, which implicated only Mitchell. Harland Dep. 39:6-40:21, ECF No. 52. 5 under Stewart’s supervision, and asked him to meet Stewart and Whirrell at the Woodville Pantry to plan their next steps. three officers decided to go to Plaintiffs’ The residence to investigate a possible charge against Mitchell for contributing to the delinquency of a minor. Defendants did not have an arrest warrant or a search warrant. At the time of the incidents giving rise to this action, Jackson was “consent to serving search” a probation condition: sentence “Defendant that shall included submit a to a search of his/her person, property, residence, or vehicle at any time of the day or night with or without consent or search warrant, whenever requested by a Probation Officer or any other peace officer and specifically consents to the use contraband seized as evidence in any court proceeding.” of any Stewart Mot. for Summ. J. Ex. 8, Sentence in Case No. 08CR-376, Apr. 13, 2009, ECF No. 33-9; Stewart Mot. for Summ. J. Ex. 10, Sentence in Case No. 09CR-807, Feb. 8, 2010, ECF No. 33-11. contends that provision, judge he but asked did the not record Jackson if knowingly is he consent undisputed understood provision, and Jackson said yes. that and to the Jackson the search sentencing agreed to the Stewart Mot. for Summ. J. Ex. 9, Guilty Plea Hr’g Tr. 5:7-12, Apr. 13, 2009, ECF No. 33-10. Stewart contacted dispatch and learned Defendants went to Plaintiffs’ home. 6 of the waiver before Stewart Dep. 129:15-25. When Defendants arrived at Plaintiffs’ house, Stewart went to secure the back of the house. Whirrell went to the front door and knocked and said, “Greene County Sheriff’s Department, open the door.” Mitchell Decl. ¶ 19, ECF No. 60-1. said, “wait a minute, I’m putting on clothes.” time, Jackson and Mitchell were both naked. Jackson Id. At the An officer demanded that someone “come and open the door now” and “we’ll worry about clothes in a minute,” so Jackson went to the front door. Jackson Dep. 80:6-9, ECF No. 42; Arrest Video 23:10:36–23:10:48, ECF No. 55. When Jackson reached the front door and had his hand on the knob, “the door just forcibly came open.” Dep. 80:9-11. Jackson was still naked. Jackson An officer told Jackson to sit down on the couch in the living room, and he complied. Mitchell was in the hallway when Defendants entered the house. Mitchell put on a sweater, but she did not have a chance to button it, and her breasts and genital area were exposed. Mitchell Decl. ¶¶ 20-22. Mitchell asked Whirrell if she could put on some clothes, but he said no and told Mitchell to sit on the couch. Id. ¶¶ 23-24; Whirrell Dep. 32:17-22. Once Plaintiffs were seated in the living room, Stewart entered the house. Although the house lights were out, each Defendant had a flashlight. According to Mitchell, Defendants pointed their “high beam” flashlights at her body, moving the light “from 7 [Mitchell’s] genitals to [her] face,” and she “saw each of them looking directly at [her] exposed body.” Mitchell Decl. ¶ 26. The officers questioned Plaintiffs about Beasley. Mitchell admitted that she had been with Beasley earlier in the day. Mitchell also presence. had it admitted that Beasley drank alcohol in her Arrest Video 23:13:56-23:14-17 (“I mean, hell, she with her so I couldn’t stop her from doing it.”). Stewart told Plaintiffs that he was going to take a look around the house pursuant to the search clause in Jackson’s probation sentence. While Stewart was searching the residence, Mitchell again asked for clothes because she was cold and felt “very uncomfortable” because the officers “didn’t even give [her] time to put on clothes.” Arrest Video 23:16:34-23:17:08. During his search of Plaintiffs’ bedroom, Stewart found an ashtray containing a substance that he suspected was marijuana. Stewart Dep. 143:8-13. He placed the substance in a rubber glove and turned it over to Whirrell. Stewart then went into the living room and reported that the substance “was in the bedroom where [Plaintiffs] were at.” Arrest Video 23:20:52- 23:21:23. Stewart asked who would take responsibility for the substance. Id. Id. I smoke.” Mitchell then said, “I’m not gonna let him go to jail for nothing. as Mitchell said, “He don’t even smoke. an He don’t smoke.” Id. admission that the Stewart construed this statement substance 8 was marijuana. Stewart instructed Whirrell and Maxey to place Plaintiffs under arrest for contributing to the delinquency of a minor and possession of marijuana. Whirrell handcuffed Mitchell, and Maxey handcuffed Jackson. Defendants contend that they did not “notice anything compromising or revealing about the appearance of either Jackson or Mitchell.” No. 34. Stewart’s Statement of Material Facts ¶ 43, ECF Mitchell asked for clothes at least twice while Defendants were at the house, and she told them that she was uncomfortable because she did not have on clothes. Mitchell also testified that although she was wearing a sweater, she did not have on any undergarments and the sweater was unbuttoned. And she testified that Defendants pointed their flashlights at her and looked directly at her exposed body. Several neighbors gathered when Mitchell and Jackson were escorted from the house, and they saw that Mitchell did not have on any clothes under her open sweater. McCommons Decl. ¶ 8, ECF No. 60-3 (“I could see Megan had on an open sweater. I could see her breast and private area. I could see everything; she did not have on any shoes or clothing underneath. She walked to the police car with her head down.”); M. Jackson Decl. ¶ 5, ECF No. 60-4 (“When the officers brought Megan Mitchell out she was in a sweater with nothing on underneath. I could see her breast.”); Thomas Decl. ¶ 5(2), ECF No. 60-5 (“Megan had on an open jacket 9 with buttons. underneath area.”). Mitchell Stewart She the not jacket. I have on could see any bottoms or breast and her anything private When Stewart’s supervisor questioned him about why was transported callously hiding.” did to the responded “you jail in are just riding the like sweater, you are Harland Dep. 46:7-23, ECF No. 52. When Mitchell arrived at the jail, she was not immediately given clothes, and at least two male inmates saw her exposed body. Megan Davis Decl. ¶ 3, ECF No. 60-2 (“Through the window I saw Mitchell genitals in a little exposed. I saw brown her shirt standing with in her the breast area you and are searched at before you enter the jail. The other trustees and I took turns looking out the window at Megan.”); Mallory Decl. ¶ 4, ECF No. 60-7 (“When I saw Megan Mitchell she was sitting in the first holding cell inside the jail. I could see her breast through the open sweater she had on.”). From the time Defendants entered the house to the time Maxey prepared to escort Jackson out of the house, Jackson was completely naked. Jackson Dep. 117:16-24. When Maxey was preparing to escort Jackson from the house, Jackson asked if he could get some clothes and told Maxey that it was inappropriate to take him out of his house naked. Jackson did retrieve a jacket and Jackson Dep. 149:6-12. put it on before Maxey escorted him out of the house, but it was a short jacket that 10 left Jackson’s buttocks and genitals exposed. Id. at 150:15-23. Several neighbors saw that Jackson did not have any clothes on under the short jacket. McCommons Decl. ¶ 5 (“I could see Cliff had on a white jacket with nothing underneath. He was naked. He did not have on any shoes or pants.”); M. Jackson Decl. ¶ 4 (“When I arrived the officers were bringing [Jackson] out in nothing but a white coat. I could see everything, including his private area.”); Thomas Decl. ¶ 5(1) (“Cliff had on a jacket with nothing underneath. I could see his genital area as he walked to the police car parked on the street.”). When Jackson arrived at the jail, Maxey got him some pants and slipped them onto Jackson before he exited the patrol car. DISCUSSION I. Plaintiffs’ Fourth Amendment Claims Plaintiffs claim that Defendants violated the Fourth Amendment to the United States Constitution when they entered and searched their home without a warrant, arrested them without probable cause, and transported them to the jail with their buttocks, breasts, and genitalia exposed. defense of government qualified immunity. officials discretionary authority acting Defendants assert the Qualified within “‘from the liability immunity scope for protects of civil their damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person 11 would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Gennusa v. Canova, No. 12-13871, 2014 WL 1363541, at *2 (11th Cir. Apr. 8, 2014). Here, Plaintiffs do not dispute that Defendants were acting within the scope of their discretionary authority when they entered Plaintiffs’ home, searched it, and arrested Plaintiffs. Plaintiffs thus “bear the burden of establishing that qualified immunity is not appropriate.” Id. To meet their burden, Plaintiffs must show that (1) Defendants violated the Fourth Amendment, and (2) at the time of Defendants’ actions, “it was clearly established unconstitutional.” that Id. the challenged conduct was “[A] defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard, No. 12-1117, 2014 WL 2178335, at *9 (U.S. May 27, 2014). A. Warrantless Entry Into and Search of Plaintiffs’ Home Defendants did Plaintiffs’ home. not have a warrant when they entered Under the Fourth Amendment, “searches and 12 seizures inside unreasonable.” a home without a warrant are presumptively Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). One of the issues presented by Defendants’ motions is whether an exception to the warrant requirement applies here. Such exceptions are “few in number and carefully delineated.” Id. (internal the quotation marks omitted). “voluntary consent to enter exception.” Defendants rely on See Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1328 (11th Cir. 2006) (explaining exceptions to warrant requirement).6 Defendants did not directly seek consent from Plaintiffs before entering their home. Instead, they relied on a “consent to search” provision which Plaintiff Jackson agreed to as part of a previous criminal judgment against him. Jackson argues that he did not voluntarily consent to the Fourth Amendment waiver, and Mitchell maintains that even if he did, Jackson’s “consent” did not apply to her. It is undisputed that a “consent to search” provision was a condition of Jackson’s probation relating to a previous criminal offense and that the condition was in effect when Defendants 6 Defendants do not seriously argue that the other exception, “exigent circumstances,” applies. Application of that exception in the context of a home entry is rarely sanctioned when there is probable cause to believe that only a minor offense has been committed. See Welsh, 466 U.S. at 753. Here, Defendants were investigating the misdemeanor offense of contributing to the delinquency of a minor. Moreover, Defendants’ decision to go eat before devising a plan to enter Plaintiffs’ home directly contradicts any suggestion that exigent circumstances justified their failure to obtain a warrant. 13 entered Plaintiffs’ home. It is also undisputed that Defendants were aware of the provision and relied on it when they entered Plaintiffs’ home without a warrant. Relying on Fox v. State, 527 S.E.2d 847, 272 Ga. 163 (2000), Jackson argues that he never voluntarily agreed to the consent to search/waiver of Fourth Amendment rights misplaced. In Fourth provision. Fox, Amendment the Jackson’s Georgia waiver reliance Supreme provision was Court on found invalid Fox is that because a the probationer was not informed of the search provision until after he was sentenced and therefore did not have an opportunity “to consider whether prison was an acceptable alternative in light of this condition of probation.” Id. at 849, 272 Ga. at 165. Here, the prosecutor disclosed the search condition to Jackson before the sentencing. Plea Hr’g Tr. Stewart Mot. for Summ. J. Ex. 9, Guilty 2:14-24, Apr. 13, 2009, ECF No. 33-10. The sentencing judge specifically asked Jackson if the prosecutor “went over this search provision,” and Jackson responded, “Yes, sir.” Id. at 5:7-10. The judge also asked Jackson if he agreed to the provision, and Jackson said yes. these reasons, the Court concludes that Id. at 5:11-12. Jackson For voluntarily agreed to the Fourth Amendment waiver as a condition of his probation. The next issue is whether the consent to search/Fourth Amendment waiver applies under the circumstances confronting the 14 Defendants when they entered Plaintiffs’ home without a warrant. If a probationer voluntarily agrees to a “consent to search” provision as a term of his probation and officers reasonably suspect that the probationer is engaged in criminal activity, the courts will uphold a search of the probationer’s residence. United States v. Knights, 534 U.S. 112, 119-20 (2001) (finding that Fourth Amendment waiver was a reasonable term of probation); Allen v. State, 369 S.E.2d 909, 910, 258 Ga. 424, 424 (1988) (upholding Fourth Amendment waiver where probationer agreed to the waiver as part of a plea bargain). This rule is rooted in the principle that “probationers do not enjoy the absolute liberty to which every citizen is entitled” because “a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Knights, 534 U.S. at 119 (internal quotation marks omitted). When the courts determine the reasonableness of a search, they must assess, “on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. On one side of the balance, a probationer who accepts a search condition as a condition of probation has a diminished expectation of privacy. 20. On the other side of the balance is the Id. at 119government’s concern that a probationer “will be more likely to engage in 15 criminal conduct than an ordinary member of the community.” Id. at 121. The government “may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.” Id. “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Id. Thus, it is clear that a probationer’s consent to search probation condition extends search to to situations monitor where whether officers the (a) probationer are conducting is complying the with probation restrictions, id. at 119-20, or (b) have a reasonable suspicion that the probationer is engaged in criminal activity, id. at 121. what It is less clear whether these principles authorize Defendants did here: treat a probationer’s consent to search provision as a complete waiver that permits a search of the probationer’s house at any time, even when (1) the officers are not conducting the search to monitor the probationer and (2) the officers only suspect the probationer’s cotenant—not probationer himself—may have committed a misdemeanor. Court does not need to determine today whether conduct here actually violated the Fourth Amendment. 16 the But the Defendants’ To lose qualified immunity, an officer must violate clearly established law. For a right to be clearly established, the constitutional question must be “beyond debate.” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation marks omitted). Plaintiffs pointed the Court to no authority clearly establishing that a probationer’s consent to a search provision is not a complete waiver of the probationer’s Fourth Amendment rights. Significantly, both the United States Supreme Court and the Georgia Supreme Court have left this question open. that In Knights, the United States Supreme Court emphasized it was not deciding whether acceptance of a search condition constituted consent in the “sense of a complete waiver of” a probationer’s Fourth Amendment rights. at 118. Knights, 534 U.S. In Brooks, the Georgia Supreme Court left “for another day the question of whether a probation search must be supported by reasonable grounds despite a Fourth Brooks, 677 S.E.2d at 68, 285 Ga. at 424. Amendment waiver.” And at least two Georgia Supreme Court justices would have concluded in Brooks that a “consent to search” probation condition constitutes a complete waiver of the probationer’s Fourth Amendment rights. Brooks, 677 S.E.2d at 70-71, 285 Ga. at 427 (Melton, J., concurring). As previously explained, “a defendant cannot be said to have violated a clearly established right unless the right’s 17 contours were sufficiently definite that any reasonable official in the defendant’s violating it.” shoes would have understood that Plumhoff, 2014 WL 2178335, at *9. he was Even if a probationer’s agreement to a consent to search condition does not constitute a complete Fourth Amendment waiver, that principle was not clearly established at the time of the events giving rise to this action. Therefore, Defendants cannot be deemed to have known that their reliance on Jackson’s consent to search provision violated Plaintiffs’ clearly established Fourth Amendment rights. qualified immunity Consequently, as to claims Defendants based on are entitled to their reliance on Jackson’s consent to search probation condition. The final issue is whether Jackson’s consent applies to his cohabitator, Mitchell. one resident sufficient to of It is well established that “consent by jointly justify a occupied premises warrantless search.” California, 134 S. Ct. 1126, 1133 (2014). is generally Fernandez v. There is a narrow exception: “a physically present inhabitant’s express refusal of to consent a police search is dispositive regardless of the consent of a fellow occupant.” as to him, Georgia v. Randolph, 547 U.S. 103, 122-123 (2006); accord Fernandez, 134 S. Ct. 1134 (emphasizing that Randolph does not extend to cases where the objector is not present and objecting). 18 Mitchell has pointed to no evidence that she refused consent when Defendants entered the house. Even if the Fourth Amendment did not authorize the application of Jackson’s consent to Mitchell, the Court finds that such Defendants a principle entered the was not home. clearly established Accordingly, when Defendants are entitled to qualified immunity as to Plaintiffs’ claims that the warrantless entry into their home violated the Fourth Amendment. B. Plaintiffs’ Arrest Plaintiffs also maintain that even if Defendants lawfully entered their Plaintiffs. home, A they lacked warrantless probable arrest cause without to probable arrest cause violates the Fourth Amendment, “‘but the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.’” Morris v. Town of Lexington, Ala., No. 13-10434, 2014 WL 2111081, at *5 (11th Cir. 2014) (quoting Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010)). Probable cause exists “‘when the facts and circumstances within the officer’s knowledge . . . would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’” Id. (quoting Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir.2003)) (alteration in original). “For an officer to be entitled to qualified immunity, however, he need not have 19 actual probable cause; ‘arguable’ probable cause will suffice.” Id. An officer has arguable probable cause if “‘reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest Plaintiff.’” Id. (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.2004)). Defendants delinquency marijuana of arrested a possession Plaintiffs minor under under for contributing O.C.G.A. § O.C.G.A. § 16-12-1 16-13-30. to the and for Georgia law makes it “unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” O.C.G.A. § 16-13-30(j)(1). When Stewart searched the house, he found a substance in an ashtray in Plaintiffs’ bedroom that he believed was marijuana. Plaintiffs argue that it was unreasonable for Stewart to suspect that the substance was marijuana and note that the substance was later tested and found not to be marijuana. Plaintiffs, however, have failed to point to persuasive evidence that Stewart’s suspicion at the time of their arrest was unreasonable. Mitchell’s own statements bolstered Stewart’s belief that the substance was marijuana: when Stewart asked who would take responsibility for the substance, Mitchell said, “He don’t even smoke. I smoke.” Arrest Video 23:20:52-23:21:23. 20 She then said, “I’m not gonna let him go to jail for nothing. smoke.” Id. He don’t After the arrest, Mitchell explained that when she took responsibility for the substance, she was referring to a tobacco cigarette. Mitchell Dep. vol. II 12:5-18, ECF No. 84; id. at 87:15-18 (stating that Mitchell knew that Stewart found something but did not know what it was); id. at 88:22-89:3 (stating that Mitchell did not know whether the deputies were investigating subjective suspected beliefs were marijuana). when she Whatever made statements Mitchell’s about the substance, a reasonable officer in Stewart’s position certainly could have believed that Mitchell was taking responsibility for an illegal substance, such as marijuana, because Mitchell said that she did not want Jackson to go to jail for it. And because the both Plaintiffs lived at the house and shared bedroom where Stewart found the suspected marijuana, an officer in Stewart’s position could reasonably Plaintiffs possessed marijuana. believe that both See, e.g., United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (“Constructive possession exists where the defendant had dominion or control over the drugs located.”). or over the premises where the drugs were The Court thus finds that Defendants had arguable probable cause to arrest Plaintiffs for marijuana possession. Given this finding, the Court does not need to decide whether Defendants also had arguable probable 21 cause to believe that Plaintiffs had violated Georgia’s delinquency of a minor statute. qualified immunity on contributing to the Defendants are entitled to Plaintiffs’ claims that Defendants violated their Fourth Amendment rights by arresting them. C. The Manner of the Arrests Plaintiffs entered their maintain home and that even arrested if them, Defendants they violated lawfully clearly established law when they took Plaintiffs out of their home without sufficient covering and without a legitimate reason for doing so. The Court agrees. If an officer has probable cause to arrest a person, the seizure must still be reasonable. 1, 8 (1985). Tennessee v. Garner, 471 U.S. “To determine the constitutionality of a seizure,” the Court must “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. (internal quotation marks omitted). The reasonableness of a seizure “depends on not only when a seizure is made, but also how it is carried out.” Id. Defendants argue that they were unaware of the extent to which Plaintiffs’ bodies were exposed during the arrest. there is plenty of evidence in the record that But contradicts Defendants’ contention, particularly when the evidence is viewed in the light most favorable to Plaintiffs as required at this 22 stage of the litigation. See Tolan, 134 S. Ct. at 1866 (emphasizing that a court “may not resolve genuine disputes of fact in favor of the party seeking summary judgment”). The evidence viewed in the light most favorable to Plaintiffs shows that (1) Mitchell was naked except for a sweater that did not cover her private areas; (2) Jackson was naked except for a jacket that did not cover his private areas; (3) before the officers arrested Plaintiffs and escorted them from the house, the officers pointed their flashlights directly at Plaintiffs and looked at their exposed bodies; (4) each Plaintiff asked Defendants for clothes at least twice; and (5) Plaintiffs’ neighbors and jail inmates could see Plaintiffs’ exposed bodies. These facts must be accepted when deciding Defendants’ motion for summary judgment. The next established question is constitutional whether right Plaintiffs to had bodily a clearly privacy that Defendants violated when they escorted Plaintiffs out of their house nearly naked. Plaintiffs may “demonstrate that the contours of the right were clearly established” by showing “that a materially similar case has already been decided” by the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit Court, or the Georgia Supreme Court. Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (internal quotation marks omitted). Plaintiffs “also may show that a 23 constitutional right was clearly established through a broader, clearly established principle [that] should control the novel facts [of the] situation.” Id. at 1256 original) (internal quotation marks omitted). (alterations in “[T]he principle must be established with obvious clarity by the case law so that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.” marks omitted). defense by Plaintiffs may also defeat a qualified immunity showing obviously at prohibits that Id. (internal quotation the the that very “the core of unlawfulness official’s what of the the conduct Fourth conduct lies so Amendment was readily apparent to the official, notwithstanding the lack of case law.” Id. at 1257 (internal quotation marks omitted). Here, Plaintiffs point to the well established principle that even incarcerated prisoners “retain a constitutional right to bodily privacy.” (11th Cir. 1993).7 Fortner v. Thomas, 983 F.2d 1024, 1030 The Eleventh Circuit emphasized that “most 7 Defendants contend that Fortner “den[ies] that a prisoner has any right to bodily privacy.” Stewart’s Reply to Jackson’s Resp. Br. 9, ECF No. 80. The Eleventh Circuit in Fortner did grant officers qualified immunity because, as of 1993, neither the Eleventh Circuit “nor the Supreme Court had recognized that a prisoner retains a constitutional right to bodily privacy.” Fortner, 983 F.3d at 1028. Defendants apparently stopped reading there. Had Defendants read the rest of Fortner, they would have learned that although the officers received qualified immunity, the court also addressed the prisoners’ claim for injunctive relief and squarely held “that prisoners retain a constitutional right to bodily privacy.” Id. at 1030. 24 people have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.” 1030 (internal quotation marks omitted). Id. at Therefore, a prison regulation that impinges on the prisoners’ constitutional right to bodily privacy must pass a “reasonableness test.”8 Id. After it decided Fortner, the Eleventh Circuit “reaffirmed the privacy rights of prisoners emphasizing the harm of compelled nudity.” Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006). The Court is satisfied that Fortner and the cases that follow it confirm a broad, clearly established principle that individuals who have been placed in constitutional right to bodily privacy. police custody have a If convicted prisoners retain a constitutional right to bodily privacy while in jail, then they must have had that right before they were incarcerated, which means that free citizens enjoy at least the same right to bodily privacy. legitimate privacy, reason then an for And if a prison guard must have a impinging arresting an officer inmate’s right certainly to must bodily have a legitimate reason for violating the bodily privacy rights of an arrestee. 8 In Fortner, male prisoners sought “injunctive relief prohibiting female correctional officers from assignments that allow the officers to view the [prisoners] nude in their living quarters.” Fortner, 983 F.3d at 1026. 25 Defendants purpose for did not escorting offer any Plaintiffs legitimate out of law their enough clothes to cover their private areas. enforcement home without Defendants simply contend that they did not notice that Plaintiffs were unclothed. While that argument may rescue them at trial (if a jury believes them), Defendants’ summary judgment. fact-based argument cannot save them at If a jury believes Plaintiffs’ version of what happened, it would be authorized to find that Defendants knew that Plaintiffs were exposed yet escorted them out of the house without any reasonable belief that it would have been unsafe clothes or impracticable first. Under have known better. to allow these Plaintiffs circumstances, to put on Defendants some should Defendants are not entitled to qualified immunity on Plaintiffs’ Fourth Amendment claims relating to the manner of their arrests. II. State Law Claims Defendants claim that they are entitled immunity on Plaintiffs’ state law claims. to official Official immunity under Georgia law protects public agents from personal liability “for their discretionary acts unless they are done with malice or intent to injure.” City of Atlanta v. Shavers, 756 S.E.2d 204, 206 (Ga. Ct. App. 2014) (internal quotation marks omitted). “A showing quotation of actual marks malice omitted). is required.” “[A]ctual 26 Id. malice (internal requires a deliberate intention to do wrong.” marks omitted). In Shavers, the Id. (internal quotation Georgia Court of Appeals concluded that an officer was not entitled to official immunity on the plaintiff’s false imprisonment claim because the evidence viewed in the light most favorable to the plaintiff established that the officer arrested the plaintiff even though he knew there was no probable cause for the arrest. Id. at 207. Here, under Plaintiffs’ version of the facts, a jury could conclude that Defendants knew that Plaintiffs were nearly naked and that there was no legitimate purpose for parading them in front of their Defendants did neighbors it and anyway. to the Thus, a jail jury that could way, but reasonably conclude that Defendants deliberately intended to do a wrongful act. Id. Defendants are therefore not entitled to official immunity on Plaintiffs’ state law claims. For similar reasons, Defendants are not entitled to summary judgment on O.C.G.A. § Georgia law misconduct, entire want Plaintiffs’ 51-12-5.1(b) where “the malice, of care claims for punitive damages. See (permitting punitive damages under defendant’s fraud, which actions wantonness, would raise showed oppression, the willful or that presumption of conscious indifference to consequences.”).9 9 Plaintiffs’ punitive damages claims related to their federal §1983 manner of arrest claims also survive summary judgment. See Smith v. 27 CONCLUSION As discussed above, Defendants’ summary judgment motions (ECF Nos. 33 & 37) are granted in part and denied in part. Summary judgment is granted in favor of Defendants based on qualified and official immunity as to Plaintiffs’ claims arising out of Defendants’ entry into Plaintiffs’ home and the decision to arrest them. Summary judgment is denied as to Plaintiffs’ § 1983 Fourth Amendment and state law claims that relate to the manner of Plaintiffs’ arrests, including Plaintiffs’ claims for punitive damages. IT IS SO ORDERED, this 12th day of June, 2014. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE Wade, 461 U.S. 30, 56 (1983) (holding that a jury may assess punitive damages in a 42 U.S.C. § 1983 action “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others”). 28
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