United States District Court, N.D. Georgia, Atlanta Division
DAN J. BENSON, Plaintiff,
OFFICER ANDRES FACEMYER, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Andres Facemyer's ("Defendant") Motion for Summary Judgment  ("Motion") and Plaintiff Dan J. Benson's ("Plaintiff, " and, together with Defendant, the "Parties") Motion for Summary Judgment  ("Cross Motion").
On February 22, 2011, Plaintiff, a sixty-five-year-old man, was walking in Chastain Park (the "Park") in Atlanta. (Pl. Statement of Material Facts [19-1] ("SOMF") at ¶¶ 1-3). Plaintiff had at least one encounter with Amy Wood ("Wood"),  who was walking in the Park with her two-and-a-half-year-old daughter ("Daughter"),  during which Plaintiff made some comment on Daughter's dress. ( Id. at ¶ 6-7; Def. Statement of Material Facts [17-2] ("SOMF") at ¶ 6). Plaintiff also asked or commented to Daughter about her panties. (Pl. SOMF at ¶ 17; Def. SOMF at ¶ 7). Exactly what was said, and what prompted it, is disputed.
After the encounter with Plaintiff, Wood called the Atlanta Police Department to report Plaintiff's conduct. (Pl. SOMF at ¶ 20; Def. SOMF at ¶ 5). Defendant, a City of Atlanta police officer, responded and arrested Plaintiff, charging him with child molestation and possession of a firearm during the commission of a felony. (Pl. SOMF at ¶¶ 24, 31-32; Def. SOMF at ¶¶ 2, 9).
On March 9, 2011, a Preliminary Hearing was held by Judge Karen Woodson of the Superior Court of Fulton County. Defendant was the only witness called to testify on behalf of the state at the Preliminary Hearing. After considering the testimony presented, the Superior Court concluded that no probable cause existed for the arrest, dismissed the charges and ordered Plaintiff to be released from detention. (Am. Com. at ¶¶ 33-34; Transcript of Preliminary Hearing [18-2] ("Trans.") at p. 36).
A grand jury subsequently indicted Plaintiff on the same child molestation and possession of a firearm charges on which he initially was arrested. The prosecutor offered to dismiss the charges and make them eligible to be expunged if Plaintiff agreed to participate in a pretrial diversion program. Plaintiff agreed to the program, successfully completed it, and the charges returned against him were dismissed. (Am. Com. at ¶¶ 33-34).
On April 22, 2013, Plaintiff filed his Amended Complaint  against Defendant. Plaintiff asserts a Fourth Amendment claim under 42 U.S.C. § 1983, arguing that Defendant violated Plaintiff's Fourth Amendment right to be free from "unreasonable searches and seizures" by arresting Plaintiff without probable cause. Plaintiff is suing Defendant in his individual capacity.
On January 8, 2014, Defendant filed his Motion seeking summary judgment on the grounds that he has qualified immunity from the claims asserted in the Amended Complaint. On January 31, 2014, Plaintiff filed his Response in Opposition  to the Motion, and filed his Cross Motion seeking summary judgment that Defendant violated Plaintiff's Fourth Amendment right and thus is liable under § 1983. The issue raised by the Parties in their respective motions center on whether Defendant had arguable probable cause to arrest Plaintiff.
B. Plaintiff's Version of Events
Plaintiff asserts that on February 22, 2011, he was walking in the Park for exercise. (Pl. SOMF at ¶¶ 2-3). After his walk was done, Plaintiff rested on an empty set of swings. ( Id. at ¶ 5). No one else was on the swings or in the vicinity of them when Plaintiff arrived. (Id.). After resting on the swings for a while, Plaintiff began walking back to his vehicle, and when doing so he encountered Wood and Daughter. ( Id. at ¶ 6). Plaintiff asserts that he did not recognize Wood or Daughter from any previous encounter. ( Id. at ¶ 7).
Plaintiff asserts he waved hello to Wood and Daughter and that Wood responded by waving back, but Daughter did not. ( Id. at ¶ 8-9). Wood then turned towards Plaintiff and told Daughter to "waive [sic] hello to the nice man." ( Id. at ¶ 9). Plaintiff, a few feet away from Wood and Daughter, turned towards Wood and Daughter, and he and Daughter waved to each other. ( Id. at ¶ 10). Plaintiff then said that Daughter was wearing a very beautiful pink dress. ( Id. at ¶ 11). Plaintiff asserts that Daughter pinched the top of her dress, raised it slightly, showing her pink underwear, and exclaimed "panties." ( Id. at ¶ 12).
Plaintiff claims the incident reminded him of his own daughter's outfits when she was a child, and how she often became excited about wearing matching outfits and underwear. ( Id. at ¶ 16). Plaintiff asserts that he recalls saying something like "my daughter had panties just like yours" or "my daughter used to wear matching panties." ( Id. at ¶ 17). Plaintiff turned and continued on his walk in the opposite direction of Wood and Daughter. ( Id. at ¶ 19). He did not follow them while he was in the Park. (Id.).
After this encounter, Wood borrowed a cell phone from a person she passed by the name of Royce Horne ("Horne"). (Pl. SOMF at ¶ 20; Trans. at p. 9). Wood used the phone to call the Atlanta Police Department. (Pl. SOMF at ¶ 20; Trans. at p. 9). Wood reported that a man in the Park had asked Daughter about the color of her panties. (Pl. SOMF at ¶ 23; Trans. at p. 4). The Atlanta Police Department dispatched Defendant to investigate. (Pl. SOMF at ¶ 24; Trans. at p. 4).
At the Park, Defendant spoke with Horne, who identified Plaintiff as the person Wood referred to in her call to the Atlanta Police Department. (Pl. SOMF at ¶ 25). Defendant drove towards Plaintiff and, getting out of his patrol car, ordered Plaintiff to stop. ( Id. at ¶ 26). Plaintiff stopped and turned to ask Defendant if he was speaking to him. ( Id. at ¶ 27). Defendant confirmed he ...