Police, The Fourth Amendment, Qualified Immunity

17 March, 2019 11:40

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Written by Burgers Allday

March 17, 2019 at 11:10 am

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 4: Authority Of Police To Clear Public Spaces / Race

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Case: Townsend v. Coffee County, Ga., 854 F. Supp. 2d 1345 – Dist. Court, SD Georgia 2011

What happened:

On December 2, 2008, Plaintiff Tiffany Townsend, a black female, was driving with a passenger in Coffee County, Georgia. While stopped at a red light, Plaintiff observed a black male driver approaching the intersection with sparks coming from his vehicle. As he came to a stop, Plaintiff approached to inquire if the driver was safe and to advise him to move his vehicle from the roadway. The driver moved his vehicle to a parking lot across the street. Plaintiff followed him and exited her vehicle to inquire again whether he needed assistance. A white female motorist also pulled into the parking lot and proceeded toward the male driver.

At that time, law-enforcement officer Lieutenant Julie Phillips pulled into the parking lot and ordered Plaintiff to return to her vehicle. Plaintiff immediately headed back to her vehicle. As Plaintiff was walking, Coffee County Sheriff’s Deputy Wayne Grantham also pulled into the parking lot. Defendant Grantham ordered Plaintiff to stop. Plaintiff, confused as to which officer’s instructions she should follow, informed Grantham that Lieutenant Phillips had instructed her to return to her vehicle and that she was doing so.

As Plaintiff proceeded to her vehicle, Grantham unholstered his service revolver and told Plaintiff to place her hands on the back of his patrol car and to spread her legs. Grantham did not address the other female motorist who had stopped in the parking lot. Grantham approached Plaintiff, grabbed her arm, placed his weapon to her head, and handcuffed her. Plaintiff asked Defendant why he was treating her differently from the white female motorist. Plaintiff “recalls Defendant Grantham’s [response] being, “I don’t want her … I just want you.” Plaintiff began to weep in the parking lot while handcuffed. After leaving the scene, Plaintiff presented herself at Coffee Regional Medical Center, where her arm was placed in a sling, and she received pain medication and treatment for emotional distress.

Decision: “Viewing the totality of the circumstances, and taking the allegations in Plaintiff’s Complaint as true, the Court cannot say that Defendant did not possess at least arguable probable cause to detain and arrest Plaintiff for the misdemeanor offense of obstructing an officer.”


AUTHORITY OF POLICE TO CLEAR PUBLIC SPACES: One issue that the opinion does not address is whether either police officer had proper authority to order the plaintiff to do anything. First of all, no facts indicate when she was in way. Delving a little more deeply, there did not seem to be any particular need here for police involvement at at all. It seems like the police involvement with the driver of the vehicle, but, by the very logic of consent encounters, can a regular citizen ever be deemed to be interfering with a consent encounter? Do police officers have some kind of right to clear space around them in a public place, regardless of what they are doing. Even if the police were doing community caretaking in this case (and I see nothing to suggest that police were actually helping the community in any way here), does “community caretaking” give police some kind of plenary power to clear space without a particular, articulable reason as to why the public space needs to be cleared? To put it more coarsely, do police officers have a right to order people around outside the context of investigating a crime? Personally, I would hope not, but Juge Godbey Wood’s opinion in this case seems to think otherwise.

RACE: I will not be discussing race a lot in this series of blog posts about southern georgia, white judge Lisa Godbey Wood. However, as I read her decisions, there are little things that definitely make me wonder if race is a factor in specific decisions of hers, but also whether it colors her expansive view of QI and dim view of 4A in general. In this case, the lack of due consideration for Georgia’s history of race bias seems pretty clear to me, Burgers.

Written by Burgers Allday

March 10, 2019 at 10:58 am

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 3: Simpson v. Mason

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Case: Simpson v. Mason, Dist. Court, SD Georgia 2011

What happened:

On September 21, 2007, Plaintiff Kevin J. Simpson travelled to the McDonald’s Restaurant located at 4545 Altama Avenue in Brunswick, Georgia. Upon arrival at the restaurant, Plaintiff witnessed a disturbance involving several youths and observed a young boy lying unconscious in the parking lot. While his exact motivations for doing so are unclear, Plaintiff entered the restaurant and began dispersing the crowd of youths gathered therein. A short time later, the police arrived and also began dispersing the crowd in the restaurant. At one point, Plaintiff heard the discharge of a taser gun but did not observe who caused the discharge.

Defendant Kevin Mason, one of the police officers at the scene, instructed Plaintiff to “get back” three times. Plaintiff replied, “I am getting back” and complied with Officer Mason’s request. Plaintiff claims that following his reply, Officer Mason instructed Defendant Roderick Nohilly, another officer at the scene, to “get” Plaintiff. Plaintiff further alleges that Officer Nohilly slammed him to the ground and handcuffed him, while he was being attacked by Officer Mason’s police dog. The Magistrate Court of Glynn County subsequently issued an arrest warrant on the charge of obstruction of an officer, which was later dismissed and expunged.

Decision: There was not “arguable probable cause” for the arrest on obstruction, so no QI for the police officer. The opinion does not explain why the procurement of the arrest warrant from a court did not excuse any lack of probable cause on the part of the police officers (I think the warrant normally let’s police off the hook unless they lied to get it, but the opinion does not go in to that, sadly).

I, Burgers, agree that the police officers did not deserve Qi here, but I think this was a deficient legal opinion for issues that it did not explain or address. The omissions identified below make me think that the facts of this case may have been a lot more sinister than they first appear to be.

First, what was the “disturbance” and was it the cause or effect of the unconsciousness of the young boy? The way the opinion describes this, it leaves the reader with the impression that a wilding youth knocked out a young boy. That would be consistent with the description of the incident that lead to the police presence. So would a simple fainting spell on the part of the young boy.  Which was it, and what did police know about the disturbance? Drawing on personal experience, I can recall three times that someone in close proximity to me has fainted in public. Once was at a relative’s wedding where the maid of honor fainted from the heat. Once was in eighth grade when a fellow student waited in line ahead of me to buy ice cream in the school cafeteria at lunch time. Once was at a crowded gym, where a man on a treadmill fainted — as he was going down he grasped for the arm of a woman on the treadmill next to his. The woman yelled “rape!,” but quickly saw that she was mistaken as the man crumpled and slid off the back of his treadmill. In none of these cases did police show up an disperse everybody, upon pain of arrest for not stepping lively enough. In fact, only in the treadmill case did the police show up at all, and they stayed in the background, allowing a gymful of people to watch the stricken man be walked out to the ambulance by the paramedics. The point is, the degree of reasonableness of the police depends upon what they were responding to, and the extremely vague description of the “disturbance” makes me think that the police conduct would appear even worse if the readers of the opinion knew the full story.

Second, and this omission is the most egregious both factually and legally, what the hell (pardon my French) was up with releasing the dog?!?!? The opinion explains why there was no qualified immunity for the arrest for obstruction, but it does not explain the reasoning behind denying QI on the excessive force claim. This omission is glaring when one stops to ponder that they let a police dog loose in a McDonald’s just to disperse a “crowd” (also known as customers and staff) of people who had presumably done nothing wrong. This is speculation, but I think Judge Godbey Wood did this to: (i) avoid drawing attention to the worst of the police behavior here; and/or (ii) avoid making additional “clearly established law” on the point that police are not rightfully empowered to release dogs to disperse crowds. If this was her motivation for omitted a discussion of the dog release, then she is a bad judge methinks.

Third, the race of those in the McDonald’s is not mentioned. It probably should have been. If the customers in the McDonald’s and the plaintiff were white, or mostly white, then releasing the dog was wrong. However, if this is a case where a white police officer released a dog to disperse a black crowd, then this is highly reminiscent of an ugly part of America’s history that I thought we left behind. I normally try to leave race out of these things, but this seems like a case where there may have been a moral duty to acknowledge — or at least say enough so that readers won’t suspect that Southern cops have reverted to siccing dogs on black men the way they used to.

Fourth and finally, let’s dissect this little gem: “While his exact motivations for doing so are unclear, Plaintiff entered the restaurant and began dispersing the crowd of youths gathered therein.” I can think of a reason why plaintiff might do this. He might have realized that the Brunswick police were out of control and might show up and start siccing police dogs on unfortunate customers caught in the restaurant and/or leaving through the lot. The reason I think that this is a strong possibility for plaintiff’s motivation is because that is exactly the awful thing the police did here when they did show up.

Written by Burgers Allday

January 23, 2019 at 9:31 am

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 2: Turner v. Jones

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We now get to Judge Godbey Wood’s first police 4A QI case acting as a district court judge (a trial judge writing from a pre-trial posture), which will be how she will have been procedurally positioned in the vast majority of the police 4A QI decisions that we are going to march through.

In this discussion, I am going to quote the recitation of facts at length. This is not laziness — statements of facts in police 4A QI opinions are often as important for what they don’t say as what they do say, and exactly which words they use to characterize what they do choose to mention as far as the the operative (presumed) facts of the case. These concerns are especially acute in Judge Godbey Wood’s opinions, as I, Burgers, have found in my limited review this far. So, on with . . .

What happened:

On June 6, 2007, Lieutenant John T. Jones of the Baxley Police Department initiated a traffic stop after allegedly observing Plaintiff’s vehicle make an improper lane change.[3] After examining Plaintiff’s driver’s license and vehicle registration, Jones issued Plaintiff a traffic citation and informed him that he had failed to use his turn signal before changing lanes. Throughout the traffic stop, Plaintiff was admittedly disrespectful toward Lieutenant Jones and facetiously observed that he had often witnessed police officers “not using their turn signals.” (Turner Dep. 34, 44.,) As Jones started to return to his vehicle, Plaintiff asked the officer whether he was going to return Plaintiff’s driver’s license. Jones informed Plaintiff “in a sarcastic tone” that he was going to keep the license, to which Plaintiff replied, also sarcastically, that Lieutenant Jones “was about the nicest police officer [he] ever met.” (Id. at 34.)

Jones turned and started walking back toward his police cruiser. Plaintiff then exited his own vehicle and followed behind Lieutenant Jones for several feet, carrying a pen and the traffic citation in his hand. At some point, Plaintiff asked Lieutenant Jones for his name. Jones, whose back was turned toward Plaintiff at all times, did not answer. Jones reached the door of his squad car about the same time that Plaintiff reached the front driver’s side of the vehicle. As the officer started to open the car door, Plaintiff leaned over the hood of the police car so that he would be in a position to write Jones’s name on the citation. Seconds later, Jones grabbed Plaintiff’s arms, pushed him against the hood of the police car, and placed him in handcuffs.

Plaintiff was arrested and transported to the Appling County Detention Center, where Jones issued Plaintiff a citation for misdemeanor obstruction pursuant to O.C.G.A. § 16-10-24. (Dkt. No. 18 Ex. 2.) That statute provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Jones deposed that he believed the arrest and citation were warranted because Plaintiff hindered him from completing his duties and “posed a threat . . . by approaching a law enforcement officer from the rear.” (Jones Dep. 20, 32.)

Decision: QI for Officer Jones on the excessive force and false arrest claims.

Plaintiff’s willful acts arguably hindered Jones’s efforts toward an orderly conclusion of a routine traffic stop. Accord Lawyer v. City of Counci]. Bluffs, 361 F.3d 1099, 1107 (8th Cir. 2004) (applying Iowa obstruction law). While it may be true that “asking for an officer’s badge number” or name would not ordinarily constitute obstruction, see Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006) (applying Florida obstruction law), Plaintiff’s willful act of positioning himself over the front of Jones’s police car after an admittedly acrimonious exchange could have caused a reasonable officer in the same circumstances and possessing the same knowledge as Jones to believe that probable cause existed to arrest Plaintiff for misdemeanor obstruction. See Case, 555 F.3d at 1327. Because the Court finds that there was arguable probable cause to arrest Plaintiff for misdemeanor obstruction . . .
. . .
The fact that Plaintiff allegedly sustained a significant shoulder injury as a result of the handcuffing does not change the analysis. . . . Although Plaintiff’s injury is unfortunate, Plaintiff simply has not shown that Lieutenant Jones “proceeded any differently than a reasonable officer would under similar circumstances.” Secondo, 327 F. App’x at 133.

Discussion: Placed against her recitation of facts, Judge Godbey Wood’s conclusions are nonsense. A police officer was apparently threatening to drive off with a driver’s driver license to punish him for a disrespectful attitude, although the one sarcastic comment by the plaintiff that Judge Godbey Wood actually quotes seems pretty mild — version of the Southerner’s “have a blessed day.” What did she think the driver was supposed to do? Drive away without a license? Call a tow truck and a taxi?

Understandably, at least under the recited facts, plaintiff chose to follow the officer to try to get his info, presumably so that he could eventually get his driver’s license back from the police department. Cogitate for a moment on this gem: “positioning himself over the front of Jones’s police car after an admittedly acrimonious exchange could have caused a reasonable officer in the same circumstances and possessing the same knowledge as Jones to believe that probable cause existed to arrest Plaintiff for misdemeanor obstruction.” Nonsense! This is not obstruction. This is completely reasonable behavior on the part of someone who is facing a threat that his driver’s license is about to be stolen. This was not a threat to Officer Jones. This was consistent with an orderly exchange of necessary info at the scene of an unfolding legal dispute.

In the opinion, Judge Godbey Wood calls Officer Jones’ threat to steal the driver’s license as “sarcastic.” Doesn’t sound like sarcasm to me. Sounds like an out of control police officer who had his illegal conduct approved by Judge Godbey Wood.

Moving along to the excessive force aspect, even if the arrest had been justified, why would Officer Jones, in the recited circumstances of this case, go hands on without giving plaintiff a verbal warning and a fair opportunity to submit to a more orderly sort of handcuffing that would have avoided an expensive (and probably painful) injury. By verbal warning, I, Burgers, mean three things here: (i) if Officer Jones felt threatened by plaintiff following him back to the vehicle, then he should have ordered plaintiff to go back to his vehicle instead of suddenly making a surprise arrest; (ii) if Officer Jones felt threatened by plaintiff trying to write down his badge number, then he should have ordered plaintiff to stop trying to write down his badge number instead of suddenly making a surprise arrest; and (iii) if Officer Jones was dead set on making an unlawful arrest for obstruction here, then he should, in light of the particular circumstances of this case, said “you are under arrest for obstruction, put your hands behind your back so I can handcuff you,” rather than going hands on without warning. This was an arrest by ambush, which may be appropriate in some circumstances, but was clearly and obviously unreasonable here.

Written by Burgers Allday

January 13, 2019 at 6:18 am

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12 January, 2019 15:30

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Written by Burgers Allday

January 12, 2019 at 3:00 pm

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 1: Coffin v. Brandau

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So we embark upon the Fourth Amendment (4A), qualified immunity (QI) related decisions of Judge Lisa Godbey Wood, who was appointed as a federal district court judge for the Southern District of Georgia in early 2007. I have chosen to do a series on her 4A QI decisions because I noticed that some of her more recent ones were, in my humble opinion, really bad. So I decided to do this series that will march from the beginning to the end, documenting, and commenting on, Judge Godbey Wood’s 4A QI jurisprudence, case by case.

Even though Judge Godbey would started her judicial service in early 2007, I cannot find any opinions that fit within the scope of this series earlier than 2010. However, the pace picks up after that, so this series should go on for a couple months at least. Plan to try to knock off about two a week. I don’t know how many cases there are at this point, and I have not read most of them. Maybe Judge Godbey Wood used to be better on 4A QI issues, but has gotten worse over time — or, maybe she has always had a restrictive view of 4A rights and an expansive view of QI — so join me, Burgers, as I take a deep dive into the last nine years of Judge Godbey Wood’s Fourth Amendment odyssey through the domain of civil suits by citizens against law enforcement personnel.

Our starting point is a bit atypical in that Judge Godbey Wood is sitting on an appellate court panel (11th Circuit). Also, her opinion is a dissent, and, surprisingly to me at this early point in time, she would have found both a violation of a citizen’s 4A rights as well as an absence of qualified immunity!

Case: Coffin v. Brandau, 609 F. 3d 1204 – Court of Appeals, 11th Circuit 2010

What happened: The facts of the case are most fully stated in a later court opinion that Judge Godbey Wood was not involved in:

. . . Deputy Brandau stepped inside the Coffins’ [that is the plaintiff’s] garage, triggering the sensor to stop the door from closing, Deputy Lutz followed her into the garage, and Mrs. Coffin was told she was going to be arrested for obstruction of justice. Mrs. Coffin’s “offense” consisted of refusing the officers’ warrantless entry into her home, a right guaranteed to her by the Fourth Amendment. She told the officers she was “baffled” as her husband had already been served, and attempted to enter her hallway to get the papers to show to the deputies. Unbelievably, at that point, Brandau grabbed her left arm and Lutz grabbed her right arm, standing on her bare foot and fracturing her toe. In pain, Mrs. Coffin screamed and fell to the floor. Lutz then twisted Mrs. Coffin’s right arm behind her back and attempted to handcuff her, tearing her rotator cuff. Hearing his wife scream, Mr. Coffin entered the garage, to find his wife in pain, with Lutz’s foot on her chest and her arm twisted behind her back.

As Mr. Coffin reached for his wife’s hand, Brandau shoved him back into the kitchen and threatened to shoot him with a Taser. Lutz released Mrs. Coffin, followed Brandau into the kitchen, and urged her to Taser Mr. Coffin. Worried that a Taser could kill her husband, since he had undergone a five-way bypass surgery, Mrs. Coffin rushed inside and held onto her husband, pleading with the deputies not to Taser him. Ignoring that plea, Brandau shot Mr. Coffin with the Taser. Lutz then grabbed Mrs. Coffin and threw her into the adjacent laundry room, causing her to fall on her hip. Mrs. Coffin got up to reenter the kitchen as Mr. Coffin was retreating towards the laundry room because Brandau, having already shot him with her Taser, was hitting him in the stomach with her baton. Stumbling back, Mr. Coffin fell into Lutz, who in turn fell back into Mrs. Coffin, causing all three to fall in a pile on top of one another in the laundry room. For the next several minutes, Brandau stood over Mr. Coffin and continued to swing her baton at him, inadvertently striking Lutz in the head. Mr. Coffin, who had his hands up trying to protect himself, eventually managed to separate Brandau from her baton, at which point Brandau left and went into the garage. Mr. Coffin walked into the kitchen, placed the baton on the counter, and sat down on the floor. Lutz then got to his feet and stood over Mrs. Coffin in the laundry room and, with “fire in his eyes,” put his gun to her head and cocked it. Hearing the door open again, Mrs. Coffin yelled, “he’s got a gun! He’s got a gun!” Another officer entered the room, said “hey, hey, hey,” to Lutz, and took the gun from Lutz’s hands. Other officers arrived on the scene and the Coffins were both arrested.

Dissenting opinion: In her dissenting opinion as part of the Eleventh Circuit panel, Judge Godbey Wood stated:

I agree with the majority that the right of the Coffins to recover turns on whether the garage constituted part of their home. I dissent because I conclude that the Coffins’ garage was a part of their home and that the warrantless entry into the home violated clearly established Fourth Amendment rights such that qualified immunity does not shield the Defendants.

. . .

The majority concludes that the Defendants are entitled to qualified immunity because no Supreme Court, Eleventh Circuit, or Florida Supreme Court case has ruled that a garage with an open door is part of the home or curtilage as opposed to an open field. I would deny qualified immunity because the Supreme Court has ruled that an attached garage is part of the home. Accordingly, a warrant is required to enter the home, even if the activities therein are not strictly intimate and even if the door has not completely closed.

Comments: Good for Judge Godbey Wood. This case seems like a no brainer to me, Burgers, and the only surprising thing is how badly the Eleventh Circuit botched this (first on the panel decision and then, later, en banc). One aspect that came out in the dissents of the en banc opinion is that there really was no probable cause to arrest Mrs. Coffin for obstruction even if she had left her home and started walking down the sidewalk — refusing to let police inside of your home to serve process, which Mrs. Coffin admittedly did, cannot possibly be considered as a form of obstruction due to one’s Fourth Amendment rights in one’s home.

Written by Burgers Allday

January 5, 2019 at 8:33 am

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Did Arkansas trooper Anthony Todd Quick realize that the driver may have suspected that he was a fake cop?

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Last post before I get to the new series here on the 4A QI opinions of Judge Lisa Godbey Wood.

Case: MOORE-JONES v. Quick, Court of Appeals, 8th Circuit 2018

What happened: Arkansas State Police trooper Anthony Todd Quick tried to pull over a vehicle for expired tags. It was after dark, and the woman driving the car drove as if she wasn’t sure that Trooper Quick was a real police officer. Won’t go into details here, but click on the decision if you want to see what I mean. The plainiff’s vehicle and Trooper Quick’s vehicle so ended up in a slow speed “chase” on the highway. So Trooper Quick crashed the woman’s car off the road* causing minor injuries to the plaintiff and her daughter. Probably caused significant mental trauma to the child as well, if not the plaintiff.

Decision: Qualified immunity for Trooper Quick on the 4A claim.

Criticism for Trooper Quick: Crashing into a vehicle to catch someone with expired tags seems unreasonably destructive and violent, especially because the plaintiff was clearly not trying to get away.

Criticism of the opinion: There is a reasonable explanation of why the plaintiff engaged in the slow speed chase — specifically, she probably was not sure that Trooper Quick was a real police officer in a real police vehicle. Astoundingly, the opinion never mentions this possibility, even though it seems hugely relevant. To be more specific about the legal relevance, it probably does not matter whether this was plaintiff’s subjective motivation for engaging in the slow speed chase. Rather, what matters is how the situation would have appeared to Trooper Quick, and the situation presented him strongly suggests that plaintiff was trying to find a well lighted and populated place to pull over. This is a thought that should have crossed his mind, and it is a thought that made his purposely crashing the plaintiff’s vehicle off the road even less reasonable than it would have been in broad daylight. On a related note, the opinion does not mention how well Trooper Quick’s vehicle was marked, which also seems relevant to how Trooper Quick reasonably should have interpreted the slow speed chase while deciding how much violence to use to end it. Bottom line: I think the court got this case very badly wrong and that this opinion will embolden police officers to make bad decisions that will hurt innocent people in the future.


* Like many people, the court refers to this as a PIT maneuver, but I think that name is a harmful euphemism that tends to obscure the violence and invasiveness of the act.

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January 1, 2019 at 11:49 am

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