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Ruch v. McKenzie

United States District Court, N.D. Georgia, Atlanta Division

March 28, 2019

John Ruch, Plaintiff,
v.
Sergeant Michelle McKenzie, individually, Defendant.

          OPINION AND ORDER

          MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

         Plaintiff John Ruch sued Atlanta Police Sergeant Michelle McKenzie for violating his constitutional rights and for false arrest after she arrested him for disorderly conduct during a protest in downtown Atlanta. For the reasons below, the Court grants Defendant McKenzie's Motion for Summary Judgment (Dkt. 122).

         I. Factual Background

         On November 24, 2014, a crowd gathered in downtown Atlanta to march and protest the police shooting of a young man in Ferguson, Missouri. Plaintiff John Ruch, a freelance reporter, traveled to the downtown area “to find breaking news in Atlanta about spontaneous protests that were happening nationwide, relating to the Ferguson, Missouri police controversy.” (Dkt. 124-2 at 42:3-6.) Plaintiff photographed protest activity, police officer response to the same, and posted those photos to Twitter from 8:48 P.M. until 11:04 P.M. without interference from police. (Dkt. 122-1 at ¶ 2.)

         Shortly before midnight, a crowd of protesters moved toward the Atlanta Police Department's (“APD”) Zone 5 Precinct downtown. (Id. at ¶ 3.) Some protestors began striking the Precinct windows and a large fight broke out. (Id. at ¶ 4.) Officers began arresting people. (Id.) Major James Whitmire, who was outside the Precinct, radioed other APD officers, including Defendant, for help stopping the fight. (Id. at ¶ 5; Dkt. 124-7 at 36:1-4.) He also used a bullhorn to order the protestors to clear the area around the fight and to leave the vicinity.[1] (Dkt. 122-1 at ¶ 6.)

         Defendant was on the same city block as the fight. (Dkt. 124-7 at 38:2-3; 38:9.) She saw the group of protestors fighting on the sidewalk outside of the Precinct. (Id. at 36:19-21.) She also saw protesters crowding around the police officers who were arresting the individuals involved in the fight. (Id. at 42:1-2.) She saw and heard Major Whitmire tell everyone in the area to disperse and clear away from the area around the fight. (Id. at 31:22-32:3.) Defendant and other officers tried to secure the area where the officers were making arrests to ensure none of the protestors attacked the officers while making those arrests. (Dkts. 122 at 15; 124-6 at 47:2-8.) Apparently, that “happens a lot” during protests. (Dkt. 124-6 at 47:2-8.) Defendant faced the street with her back to the arresting officers. (Dkt. 124-7 at 40:4-5.)

         Plaintiff walked directly toward the area that APD was trying to secure. (Dkts. 122-1 at ¶ 7; 124-7 at 34:21-23.) Defendant McKenzie spotted him.[2] (Dkt. 124-7 at 42:21-22.) Defendant perceived Plaintiff's presence in the restricted area as hazardous to the arresting officers' safety and an obstacle to the arresting officers' access to the booking teams inside the Precinct.[3] (Id. at 78:6.) She stepped directly in front of Plaintiff's path. (Dkt. 122, Ex. L at minute mark 3:59.) She intercepted Plaintiff, preventing him from moving any closer toward the group of officers arresting the protestors who had been involved in the fight. Defendant grabbed Plaintiff on his left wrist or forearm area with some force, causing him to take a step backward. (Dkt. 124-2 at 151:6-7.)

         Major Whitmire also saw Plaintiff approaching the area where officers were making arrests. (Dkt. 122, Ex. L at minute mark 3:58.) At about the time Plaintiff withdrew from Defendant's initial grasp, Major Whitmire tapped Plaintiff on the shoulder and said, “Take this one.”[4](Dkts. 122-1 at ¶ 8; 124-2 at 151:13-16.) Defendant told Plaintiff that he was under arrest and to put his phone away. (Dkt. 124-2 at 152:2-5.) She ordered him to lie on the ground and put his hands behind his back. (Dkt. 129-2 at ¶ 10.) Plaintiff complied without argument. (Dkt. 124-2 at 152:7-8.)

         In his complaint, Plaintiff claims he was standing still on the sidewalk and “remained there” prior to his arrest. (Dkt. 32 at ¶ 16.) He says he stayed on the sidewalk and merely “shifted his body slightly” to get a better camera angle just before his arrest. (Id. at ¶ 20.) But video shot by a drone that night shows otherwise. (Dkt. 122, Ex. L.) The video footage shows Plaintiff step off the sidewalk in one location, walk around a group of people watching and filming the fight, and step back onto the sidewalk - directly into the area where Defendant stood protecting the officers making arrests. (Id. at minute mark 3:58.) Contrary to Plaintiff's allegations, he was not standing still at the time of his arrest. He was moving toward the area Defendant was trying to secure. Plaintiff also claims she arrested him while he was shooting video of the police action. (Dkt. 32 at ¶¶ 16-17, 20, 24.) But other people were taking photos or shooting video, and police did not arrest them. (Dkt. 122, Ex. L at minute mark 3:33-3:50.)

         Defendant turned Plaintiff over to APD's booking team. (Dkt. 122-1 at ¶ 11.) The arrest citation states that Plaintiff “refused to clear the area when officers were in-gaged [sic] in a fight. The accused remained in the path of officer [sic] and refused to comply, blocking officers from each other.” (Dkt. 122-2, Ex. A.) Police took him to the Atlanta Detention Center but released him before placing him in a cell. (Dkt. 122-1 at ¶ 12.) The police later dropped all charges. (Id. at ¶ 13.)

         A. Procedural History

         Plaintiff filed his initial complaint alleging violations of the First, Fourth, and Fourteenth Amendments of the United States Constitution, 41 U.S.C. § 2000aa, and Georgia state law. (Dkt. 1.) He asserted these claims against the City of Atlanta and various members of APD. (Id.) He then filed an amended complaint, again naming the City of Atlanta and several police officers. (Dkt. 32.) After the Court dismissed some charges and other procedural steps, the parties jointly agreed to dismiss with prejudice all claims against the City of Atlanta and all individual defendants except Defendant Sergeant Michelle McKenzie. (Dkt. 121). She became to sole defendant. In Count One, Plaintiff alleges Defendant McKenzie violated his Fourth Amendment rights when she arrested him without justification for simply trying to photograph the police. (Dkt. 32 at ¶¶ 86-90.) In Count Two, he alleges Defendant McKenzie violated his First Amendment right to constitutionally protected free speech when she arrested him while he was filming the police. (Id. at ¶¶ 91-94.) He filed Counts One and Two under 42 U.S.C. § 1983. In Count Four, [5] he asserted a claim under Georgia law for unlawful detention (Ga. Code Ann. § 51-2-70), [6] assault and battery (§ 51-1-13, -14), and malicious prosecution (§ 51-7-44). (Id. at ¶¶ 98-103.)

         Defendant McKenzie moved for summary judgment on all counts. (Dkt. 122 at 10.) She claims she is entitled to qualified immunity on Plaintiff's Fourth and First Amendment claims and official immunity on his Georgia state-law claims.[7] (Id. at 10, 20.)

         II. Legal Standard

         Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment 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.” Fed.R.Civ.P. 56(a).

         A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it is “a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

         The party moving for summary judgment bears the initial burden of showing a court, by reference to materials in the record, that there is The Court is not required to “investigate the record in search of an unidentified genuine issue of material fact to support a claim or defense.” See Reese v. Hebert, 527 F.3d 1253, 1268 (11th Cir. 2008) (quoting Libel v. Adventure Lands of Am., 482 F.3d 1028, 1032 (8th Cir. 2007)). That is Plaintiff's job. Even so, the Court “conduct[ed] an assiduous review of the record” before concluding Defendant is entitled to summary judgment. Id. at 1271 (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)). no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A moving party meets this burden merely by “ ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. The movant, however, need not negate the other party's claim. Id. at 323. In determining whether the moving party has met this burden, a court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).

         Once the movant has adequately supported its motion, the nonmoving party then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, there is no “genuine [dispute] for trial” when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. The court, however, resolves all reasonable doubts in the favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

         As mentioned above, a drone recorded much of the action relevant to Plaintiff's claims. Under Eleventh Circuit precedent, “in cases where a video in evidence obviously contradicts the nonmovant's version of the facts, [a court] accept[s] the video's depiction instead of the nonmovant's account and view[s] the facts in the light depicted by the videotape.” Shaw v. City of Selma, 884 F.3d 1093, 1098 (2018) (citations omitted) (alterations accepted). Neither party has disputed the accuracy or authenticity of the video nor suggested that it is untrustworthy. As a result, the Court “accept[s] facts clearly depicted in a video recording even if there would otherwise be a genuine issue about the existence of those facts.” Id. at 1097 n.1.

         III. Discussion

         A. Federal Claims & Qualified Immunity

          “Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (internal quotation marks omitted). So “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). Qualified immunity allows officials to “carry out their discretionary duties without the fear of personal liability or harassing litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). When properly applied, qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.” al-Kidd, 563 U.S. at 743 (internal quotation marks omitted).

         Qualified immunity may attach only when the officer is “acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Grider v. City of Auburn, 618 F.3d 1240, 1254 n.19 (11th Cir. 2010). A public official acts within the scope of his discretionary authority where the acts complained of were “undertaken pursuant to the performance of his duties and within the scope of his authority.” See Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988). “Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194. The parties agree Defendant acted within the scope of her discretionary authority when arresting Plaintiff. (Dkts. 122 at 11; 130 at 5 n.3.) See, e.g., Wate v. Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016) (holding that officers acted within discretionary authority when arresting suspect). Plaintiff, thus, has the burden of showing that qualified immunity is unavailable to Defendant.

         The qualified immunity analysis presents two questions: first, whether the allegations taken as true establish the violation of a constitutional right; and second, if so, whether the constitutional right was clearly established when the violation occurred. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). These distinct questions “do not have to be analyzed sequentially; if the law was not clearly established, [the court] need not decide if the [d]efendants actually violated the [plaintiff's] rights, although [the court is] permitted to do so.” Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011).

         A constitutional right is only clearly established for qualified immunity purposes if “every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks omitted) (alteration adopted). Put differently, “existing precedent must have placed the statutory or constitutional question beyond debate” to give the official fair warning that his conduct violated the law. Id.; Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (“The critical inquiry is whether the law provided [defendant officers] with ‘fair warning' that their conduct violated the Fourth Amendment.”). The Supreme Court has explained that the question is “whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he ...


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