United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT.
the Court are Defendants City of Port Wentworth, Georgia
("City of Port Wentworth"), Sergeant Phinney
("Phinney"), and Chief Libby's
("Libby") Motion for Summary Judgment (Doc. 28) and
Defendant Etzel's Motion for Summary Judgment (Doc. 32). For
the following reasons, Defendants City of Port Wentworth,
Phinney, and Libby's Motion for Summary Judgment (Doc.
28) is GRANTED and Defendant Etzel's
Motion for Summary Judgment (Doc. 32) is
case stems from the arrest of Plaintiffs in April 2015. On
April 6, 2015, Defendant Etzel and Defendant Phinney of the
City of Port Wentworth Police Department responded to a call
involving a reported domestic dispute at the Sai Food Mart
convenience store. (Doc. 44 at 1.) Defendants Etzel and
Phinney were not provided the names or descriptions of the
persons involved in the reported domestic dispute.
(Id. at 2.) Defendants Etzel and Phinney arrived on
scene and saw Plaintiff Marcus McMullen ("Mr.
McMullen") in his car in the store's parking lot,
which was parked directly outside the front of the store.
(Id.) Plaintiff Emery Mae McMullen ("Mrs.
McMullen") and two nephews of Mr. and Mrs. McMullen were
inside the convenience store when Defendants Etzel and
Phinney arrived on scene. (Id.) Defendant Etzel
proceeded directly into the convenience store to investigate
the reported domestic dispute and performed a full sweep of
the inside of the store. (Id.) Defendant Phinney
approached Mr. McMullen and spoke with Mr. McMullen.
(Id. at 2-3.) Mr. McMullen stated that Defendant
Phinney asked whether he had witnessed the dispute, to which
Mr. McMullen responded in the negative.(Id. at
3; Doc. 28, Attach. 6 at 44.) Mr. McMullen then entered the
convenience store. (Doc. 44 at 4.) Defendant Phinney entered
the convenience store after Mr. McMullen and ordered Mr.
McMullen to exit the store. (Id.) During this time,
Defendant Etzel observed Mr. McMullen standing with Mrs.
McMullen and their nephews near the checkout counter and saw
Defendant Phinney was standing by Mr. McMullen. (Doc. 45 at
4.) As Defendant Etzel walked towards the door of the
convenience store, she heard Defendant Phinney tell Mr.
McMullen "I said outside, c'mon" as Defendant
Phinney holds the door open and gestures for Mr. McMullen to
leave the store. (Id.) Defendant Etzel approached
Mr. McMullen and Defendant Phinney and directed Mr. McMullen
to leave the store by telling Mr. McMullen "[h]e
[Defendant Phinney] said outside." (Id. at 5.)
During the time Defendant Etzel was responding to the
domestic disturbance call at Sai Food Mart, her body camera
was activated and recording.
video, Defendant Etzel approaches Mr. McMullen and tells him
"[h]e said outside. . . Go." (Doc. 28, Attach. 4 at
8:05-08.) Defendant Etzel, while holding a pen in her left
hand, then places her hands on Mr. McMullen. (Id.)
Plaintiffs allege that during this exchange, Defendant Etzel
"stabbed" Mr. McMullen with her pen. In the video,
Defendant Etzel can be seen holding a pen in her left hand
when she touches Mr. McMullen. However, at 8:07, the video
shows that Defendant Etzel's left hand is spread wide
across the left side of Mr. McMullen's back with the pen
laying flat against Mr. McMullen's back held in place by
Defendant Etzel's palm. (Doc. 28, Attach. 4 at 8:07.)
Thus, while this Court credits Mr. McMullen's account
that the pen "stabbed" him, the contention that
Defendant Etzel used her pen to intentionally stab him is not
supported by the body cam video. The video supports the facts
that the pen poking or stabbing Mr. McMullen in the arm was
incidental to Defendant Etzel placing her hands on Mr.
McMullen to guide him from the convenience store.
Defendant Etzel directs Mr. McMullen outside, both verbally
and with her hands on his body, Mr. McMullen turns around to
face her and says "[w]ait a minute." (Doc. 44 at
5.) Officer Etzel draws her taser, gestures towards the open
convenience store door, and tells Mr. McMullen "[g]o
outside right now. Go." (Id, ; Doc. 28, Attach.
4 at 8:09-10.) Defendant Etzel then turns towards Mrs.
McMullen and points her hand, holding a pen, at her and says
"and you too, don't touch me." (Doc. 28,
Attach. 4 at 8:12-14.) Defendant Etzel then faces Mr.
McMullen again and tells him "[g]o outside . . . if an
officer asks you to go outside, you go outside." (Doc.
44 at 6; Doc. 28, Attach. 4 at 8:14-17.) Mr. McMullen replies
"[f]or what?" and Defendant Etzel responds
"[c]ause we're investigating something right now and
we don't roll up into a food mart and say 'hey, let
me talk to you right now.' " (Doc. 28, Attach. 4 at
8:18-25.) Mr. McMullen responds, "I'm not asking to
talk to anybody." (Id. at 8:26.) Defendant
Etzel points at the door being held open by Defendant Phinney
and repeats "[g]o outside right now." (Id.
at 8:26-27.) Mr. McMullen tells her "I got my family
here with me." Defendant Eztel repeats, while continuing
to gesture towards the door with her left hand, "Go
outside right now." (Id. at 8:28-29.) A female
voice is then heard on the video saying "[y]eah,
we're going out." (Id. at 8:30.) Defendant
Etzel repeats "Go outside." (Id. at 8:31.)
After this instruction, Mr. McMullen turns around to face the
checkout counter of the store, putting his back towards
Defendant Etzel, and says "[y]ou know what . . . ."
(Id. at 8:31-33.)
contend that Mr. McMullen was attempting to gather his family
when he turned his back to Defendant Etzel. (Doc. 44 at 7.)
According to Plaintiffs, Defendant Etzel then "forcibly
grabs, shoves, and without hesitation, tases Mr.
McMullen" and that "Officer Phinney joins in,
grabbing Mr. McMullen and slamming him to the ground."
(Doc. 45 at 3.) According to Defendants, after Mr. McMullen
turns away from Defendant Etzel, Defendant Etzel places her
hands on Mr. McMullen to direct him outside after which he
turns quickly towards her and "aggressively raised his
elbow." (Doc. 44 at 7.) Defendants contend that
Defendant Phinney, concerned about Mr. McMullen harming
Defendant Etzel, chose to physically take down Mr. McMullen.
(Doc. 32, Attach. 1 at 7).
video depicts Defendant Etzel approaching Mr. McMullen with
the pair coming so close together that the body cam is
obscured by Mr. McMullen's shirt. (Doc. 28, Attach. 4 at
8:33-38.} Defendant Etzel touches him and says "go
outside before . . . ." (Id.) In quick
succession, Mr. McMullen turns towards Defendant Etzel,
Defendant Etzel pushes him and then the taser is heard being
deployed. (Doc. 28, Attach. 4 at 8:33-38.) Additionally, the
Court credits Plaintiffs' account that Mr. McMullen did
not aggressively raise his elbow or fist because such facts
are not clearly contradicted by the body cam video.
video goes on to show Defendant Phinney and Mr. McMullen on
the floor of the convenience store with Defendant Phinney
instructing Defendant Etzel to "cuff him." (Doc. 45
at 10; Doc. 28, Attach. 4 at 8:40-44.) As Defendant Etzel has
her hand on Mr. McMullen's arm, who is still lying on the
floor, Mrs. McMullen approaches the two and reaches out her
arm. (Doc. 45 at 12; Doc. 28, Attach. 4 at 8:45-46.)
Defendant Etzel shouts at Mrs. McMullen to "get off
me!" (Doc. 44 at 8; Doc. 28, Attach. 4 at 8:47) and Mrs.
McMullen then stumbles into a drink container near the
checkout counter (Doc. 28, Attach. 4 at 8:47-48). According
to Plaintiffs, Defendant Etzel pushed Mrs. McMullen into the
cashier station and Mrs. McMullen never touched Defendant
Etzel. However, Defendants deny the contention that Mrs.
McMullen did not touch Defendant Etzel. (Doc. 44 at 8.) Mr.
McMullen is then handcuffed and Defendant Phinney asks Mr.
McMullen if "he was physically hurt" and Mr.
McMullen responds in the affirmative. (Id. at 9.)
Defendant Phinney calls for emergency medical services to
come to the scene and Defendant Etzel orders Mrs. McMullen to
go outside the store. (Id.) Once outside, Defendant
Etzel approaches Mrs. McMullen and asks her "was there
any reason you decided to touch me in there?" (Doc. 44
at 10; Doc. 28, Attach. 4 at 11:43-47.) Mrs. McMullen
responds, "[n]o, I just wanted to be with him."
(Doc. 44 at 10; Doc. 28, Attach. 4 at 11:50-51.) Defendant
Etzel then asks Mrs. McMullen if she had her own phone that
she could call someone .to come pick up the kids because Mrs.
McMullen was going to jail as well. (Doc. 44 at 10.) After
being informed that she would be arrested, Mrs. McMullen
denies having touched Defendant Etzel and states that she
"just wanted to touch him and then you pulled me
off." (Doc. 28, Attach. 4 at 12:31-32.) Defendant Etzel
then replies that "[a]nd I did. I pushed you away."
(Id. at 12:33-34.) Defendant Etzel then places Mrs.
McMullen in handcuffs and escorts her to her police car.
(Doc. 44 at 10.) Mr. McMullen was arrested and charged with
misdemeanor obstruction of a law enforcement officer and Mrs.
McMullen was arrested and charged with misdemeanor
obstruction of a law enforcement officer as well as simple
battery on a law enforcement officer. (Id. at 11.)
only other individual defendant, Defendant Libby, was not
present at the scene or otherwise directly involved in the
arrests of Mr. and Mrs. McMullen. (Id.) At the
preliminary hearing held in Municipal Court in Port Wentworth
following the incident, a judge found that probable cause
existed. (Id.) The charges against Plaintiffs were
ultimately dismissed. (Id.)
on the events surrounding their arrests, Plaintiffs filed a
complaint in this Court. (Doc. 1.) Both Plaintiffs have
brought state law claims for aggravated assault and battery,
false arrest and imprisonment, and loss of consortium against
Defendants Phinney and Etzel, in their individual capacities.
(Id.; Doc. 28, Attach. 10 at 1-3.) Plaintiffs have
also asserted claims against Defendants City of Port
Wentworth, Defendant Etzel, Defendant Phinney, and Defendant
Libby pursuant to 42 U.S.C. § 1983 for the "use of
improper police procedures, excessive force, and unlawful
arrest" contending that Defendants "violated the
civil rights of the Plaintiffs under the First, Fourth,
Fifth, and Fourteenth Amendments to the United States
Constitution." (Id. at 5.) Specifically, the
claims against Defendant City of Port Wentworth and Defendant
Libby under § 1983 allege that Plaintiffs'
constitutional rights violations were caused by these
Defendants' "implementation of customs, policies,
procedures, and official acts which reflected deliberate
indifference" to Plaintiffs' rights. (Id.
at 6.) Defendants Phinney, Etzel, and Libby have been sued in
their individual and official capacities on the § 1983
claims. (Id. at 1.) Plaintiffs also seek punitive
damages. (Id. at 7-8.)
City of Port Wentworth, Phinney, and Libby have filed a
Motion for Summary Judgment. (Doc. 28.) In the motion, these
Defendants argue all federal claims against Defendant Phinney
are barred by qualified immunity. (Id. at 7-14.)
Defendants contend that all federal claims against Defendant
Libby fail because Defendant Libby was not personally
involved or connected to the alleged constitutional
deprivations and, further, that the claims against him are
barred by qualified immunity. (Id. at 14-15.)
Defendants argue that the federal claims against Defendant
City of Port Wentworth fail because Plaintiffs have failed to
show any policy, practice, or custom that caused the alleged
constitutional violations. (Id. at 16- 17.)
Defendants also argue that the claims pursuant to the First
and Fifth Amendments of the United States Constitution are
without merit. (Id. at 17-18.) With regards to the
state law claims, Defendants argue that Plaintiffs have
asserted state law claims only as against Defendant Phinney,
in his individual capacity, and that these claims are barred
by official or qualified immunity. (Id. at 18-21.)
Defendants finally argue that Plaintiffs' request for
punitive damages fails because punitive damages may not be
asserted against Defendant City of Port Wentworth, Defendant
Libby, in his official capacity, or Defendant Phinney, in his
official capacity, and that, because Plaintiffs'
underlying claims fail, the request for punitive damages also
fails. (Id. at 21-22.) Plaintiffs have responded in
opposition to Defendants' motion. (Doc. 41.)
Etzel also filed a Motion for Summary Judgment. (Doc. 32.) In
regards to the federal law claims asserted against her,
Defendant Etzel argues that she is entitled to qualified
immunity. (Id. at 9-20.) In regards to the state law
claims asserted against her, Defendant Etzel argues that the
claims are barred by official immunity because there is no
evidence in the record of malice or actual intent to injure
Mr. or Mrs. McMullen. (Id. at 20-24.) Plaintiffs
have responded in opposition to Defendant Etzel's motion
arguing that Defendant Etzel does not have qualified immunity
because her actions violated clearly established law and
that, with regards to the state law claims, actual malice
could be found when viewing the facts of the case. (Doc. 42.)
to Fed.R.Civ.P. 56(a), "[a] party may move for summary
judgment, identifying each claim or defense-or the part of
each claim of defense-on which summary judgment is
sought." Such a motion must be granted "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." Id. The "purpose of
summary judgment is to 'pierce the pleadings and to
assess the proof in order to see whether there is a genuine
need for trial.' " Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986) (quoting
Fed.R.Civ.P. 56 advisory committee notes). Summary judgment
is appropriate when the nonmoving party "fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The substantive law governing
the action determines whether an element is essential.
DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887
F.2d 1499, 1505 (11th Cir. 1989).
Supreme Court explained:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.
Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The
burden then shifts to the nonmoving party to establish, by
going beyond the pleadings, that there is a genuine issue
concerning facts material to its case. Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmoving party. Matsushita, 475
U.S. at 587-88, 106 S.Ct. at 1356. However, the nonmoving
party "must do more than simply show that there is some
metaphysical doubt as to the material facts."
Id. 475 U.S. at 586, 106 S.Ct. at 1356. A mere
"scintilla" of evidence, or simply conclusory
allegations, will not suffice. See, e.g.,
Tidwell v. Carter Prods., 135 F.3d 1422,
1425 (11th Cir. 1998). Nevertheless, where a reasonable fact
finder may "draw more than one inference from the facts,
and that inference creates a genuine issue of material fact,
then the Court should refuse to grant summary judgment."
Barfield v. Brierton, 883 F.2d 923, 933-34 (11th
DEFENDANTS CITY OF PORT WENTWORTH, PHINNEY, AND
LIBBY'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs' Claims Against Defendant Phinney
City of Port Wentworth, Phinney, and Libby argue in their
motion for summary judgment that Defendant Phinney is
entitled to qualified immunity on all of Plaintiff's
federal claims brought pursuant to 42 U.S.C. § 1983.
(Doc. 28 at 7.) In order to be entitled to qualified
immunity, the officers first must "establish that they
were acting within their discretionary authority during the
incident." Manners v. Cannella, 891 F.3d 959,
967 (11th Cir. 2018). If it is shown that the officers acted
within their discretionary authority, the burden shifts to
the plaintiff(s) to demonstrate that qualified immunity is
not appropriate. Id. at 968. Here, Plaintiffs do not
contest Defendant Phinney's assertion that he was
exercising his discretionary authority while assisting in an
investigation and arrest. (Doc. 41 at 13-14 (arguing that
Defendant Phinney is not entitled to qualified immunity
because his conduct caused constitutional violations that
were clearly established at the time of incident).} Thus, to
overcome qualified immunity, the plaintiff(s) must "show
the officer's conduct violated a constitutional right,
" and that right "was clearly established" at
the time of the alleged conduct. Saucier v. Katz,
533 U.S. 194, 201, 102 S.Ct. 2151, 2156, 150 L.Ed.2d 272
(2001) . We do not have to consider the Saucier
prongs in sequential order. Pearson v. Callahan, 555
U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). As
against Defendant Phinney, Plaintiffs each assert that they
suffered two constitutional violations. Plaintiffs also
assert state law claims against Defendant Phinney for false
arrest, aggravated assault and battery, and loss of
Mr. McMullen's 42 U.S.C. § 1983 claims
McMullen contends that Defendant Phinney violated his Fourth
Amendment right to be free of unreasonable searches and
seizures by subjecting him to an unlawful arrest. "A
warrantless arrest is constitutional under the Fourth
Amendment only when it is made with probable cause."
Cozzi v. City of Birmingham, 892 F.3d 1288, 1293
(11th Cir. 2018), cert, denied sub nom. Thomas v.
Cozzi, 139 S.Ct. 395, 202 L.Ed.2d 289 (2018) (citing
Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13
L.Ed.2d 142 (1964}). However, in the context of § 1983
actions, "an officer may be entitled to qualified
immunity even if there was no actual probable cause for the
arrest; instead, an officer who raises a qualified immunity
defense will prevail if there was arguable probable
cause." Id. " 'Arguable probable cause
exists where reasonable officers in the same circumstances
and possessing the same knowledge as the [d]efendant could
have believed that probable cause existed to arrest.'
" Id. (quoting Rushing v. Parker, 599
F.3d 1263, 1266 (11th Cir. 2010)). "Probable cause
exists 'when the facts and circumstances within the
officer's knowledge, of which he or she has reasonably
trustworthy information, 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.' " Cozzi, 892 F.3d at 1293
(quoting Lee v. Ferraro, 284 F.3d 1188, 1195 (11th
McMullen contends that Defendant Phinney did not have
probable cause to arrest him for obstruction because he was
only questioning the officers and because his failure to
immediately respond to the commands is insufficient grounds
to support an obstruction charge. (Doc. 41 at 8-9.) In
Georgia, "a person who knowingly and willfully obstructs
or hinders any law enforcement officer . . . in the lawful
discharge of his or her official duties shall be guilty of a
misdemeanor." O.C.G.A. § 16-10-24(a). "The
essential elements of O.C.G.A. § 16-10-24(a) obstructing
or hindering law enforcement officers are: that the act
constituting obstruction or hindering was knowing and willful
and that the officer was lawfully discharging his official
duties." Taylor v. State, 349 Ga.App. 185, 186,
825 S.E.2d 552, 554 (2019) (internal citations and quotations
case, Defendants contend that there was at least arguable
probable cause to arrest Mr. McMullen for obstruction because
he refused to obey the officers' multiple commands to
leave the convenience store. (Doc. 28 at 13.) Under Georgia
law, refusal to comply with an officer's commands is
sufficient to form the basis of an obstruction charge.
Townsend v. Coffee Cty., Ga., 854 F.Supp.2d 1345,
1358 (S.D. Ga. 2011); Council v. State, 291 Ga.App.
516, 517-18, 662 S.E.2d 291, 293 (2008) ("Officers are
authorized, for their own safety, to request that an
individual remain in a vehicle until their investigation is
complete, and a refusal to comply with an officer's
lawful demand to remain in a vehicle will sustain a
conviction for misdemeanor obstruction."}; Arsenault
v. State, 257 Ga.App. 456, 457, 571 S.E.2d 456, 458
(2002); Harris v. State, 276 Ga.App. 234, 236, 622
S.E.2d 905, 907 (2005).
argue that the "McMullens never refused to leave the
store or do anything the officers commanded." (Doc. 41
at 10.) However, the body cam video in this case contradicts
this contention. It is undisputed that Mr. McMullen was
ordered outside the store at least seven times and that he
did not exit the store. (Doc. 28, Attach. 4.) Plaintiffs also
argue that "[t]here was no obstruction in his asking why
he was being forced to leave . . . and he had actually turned
to gather his family in order to leave when he was attacked
by Pellegrino [Etzel] and Phinney." (Doc. 41 at 10.)
However, this contention is also contradicted by the body cam
video. Mr. McMullen did at one point ask why he was being
ordered outside and Defendant Etzel responded "[c]ause
we're investigating something right now and we don't
roll up into a food mart and say 'hey, let me talk to you
right now.' " (Doc. 28, Attach. 4 at
8:18-25.) Mr. McMullen responds, "I'm not asking to
talk to anybody." (Id. at 8:26.) Officer Etzel
then points towards the open door and repeats the command to
go outside. (Id. at 8:26-27.) Defendant Etzel
repeats the command to exit the store two more times.
(Id. at 8:28-31.) After asking why he was being
asked to leave the store and being told that there was an
active police investigation on scene, Mr. McMullen was
ordered out of the store three times. Thus, even accepting
Plaintiffs' facts as true that he was gathering his
family when he was tased and arrested for obstruction, he had
been directly and explicitly told to leave the store no less
than three times after being told that police were there
investigating a matter.
cite to WBY, Inc. v. Dekalb Cty., Ga., 695
F.App'x 486, 493 (11th Cir. 2017), Harris v.
State, 314 Ga.App. 816, 820 (2012), and Reese v.
Herbert, 527 F.3d 1253 (11th Cir. 2008) to support their
position that there was no probable cause to arrest Mr.
McMullen for obstruction because he was merely questioning
the officers' actions and had simply failed to
immediately respond to the officers' orders. (Doc. 41 at
8-9.) These cases are insufficient to demonstrate that the
law surrounding unlawful arrest was clearly established as of
April 6, 2015 to operate as a bar of qualified immunity to
Defendants are correct in their contention that WBY,
Inc. cannot be used to show that the law surrounding
unlawful arrest was "clearly established" as of
April 6, 2015 because WBY was decided in 2017.
Plaintiffs, however, claim that the Eleventh Circuit reached
the "same conclusion" in Reese. (Doc. 41
at 10.) In Reese, the Eleventh Circuit summarized
the operative facts surrounding the plaintiff's claims
that there was no probable cause to arrest him for
obstruction as follows:
[t]en minutes had elapsed since the alleged aggressor in the
domestic violence dispute had been handcuffed and placed in
Deputy Geddie's patrol car. Herbert was standing outside
the building to prevent others from entering the apartment
where Deputy Geddie was interviewing the alleged victim.
After approaching Herbert, Reese patiently waited for a few
minutes before making his request that the law enforcement
vehicles be moved. He then requested to speak with the
officer in charge. Throughout this exchange, Reese maintained
a calm voice and demeanor. Reese did not impede or hinder
Herbert in the performance of his police duties.
527 F.3d at 1272-73. After Reese asked Herbert whether it was
necessary for the vehicles to remain at the scene, Herbert
told Reese it was necessary for the vehicles to remain and
told Reese to leave or he would go to jail. Id. at
1258. Reese turned to walk towards Trooper Geddie's
vehicle and Herbert grabbed Reese and arrested him with
force. Id. at 1258-59. The Eleventh Circuit, quoting
Woodward v. Gray, 241 Ga.App. 847, 527 S.E.2d 595,
599 (2000}, noted that an "arrest for obstruction cannot
be predicated upon such a refusal to obey 'a command to
clear the general area entirely beyond the zone of
police operation.' "
Id. at 1273 (emphasis added).
Reese, the alleged aggressor in the domestic dispute
had been secured in an officer's patrol car and the
plaintiff approached an officer that was standing outside the
building to prevent individuals from entering the active
police scene where another officer was interviewing the
alleged victim. Id. at 1272. The officers ordered
the plaintiff to leave an area outside of the active scene.
Here, Defendant Phinney and Defendant Etzel were called to
the convenience store regarding a domestic dispute. (Doc. 28,
Attach. 1 at 1.) Defendants Phinney and Etzel did not have a
description of the individuals in the dispute and arrived at
the scene to investigate. (Id. at 2.) Thus, when Mr.
McMullen was ordered from the scene approximately seven
times, he was in the "zone of police operation" and
no suspect or aggressor had been secured. Furthermore, this
Court notes that Woodward has been explicitly
disapproved of by the Court of Appeals of Georgia in
Stryker v. State, 297 Ga.App. 493, 495 n.l, 677
S.E.2d 680, 682 n.l (2009), to the extent that it found that
misdemeanor obstruction still requires proof of forcible
resistance or threat of violence.
Harris, the Georgia Court of Appeals found that it
"[had] found no case upholding an obstruction conviction
based solely upon a defendant's act of speaking to,
remonstrating with, or even criticizing an officer during the
performance of his duties." 314 Ga.App. at 819.
Plaintiffs cite Harris to argue that Mr.
McMullen's "conduct constitutes mere hesitation to
responding in a confusing and threatening experience"
and that Mr. McMullen was merely questioning the
officers' actions. (Doc. 41 at 8; 10.) As discussed
above, the body cam video contradicts these contentions.
Furthermore, Harris does not support an argument
that there is no probable cause to arrest an individual for
obstruction where the individual refuses to comply with an
officer's command. In fact, the Court of Appeals went on
to state that "cases upholding misdemeanor obstruction
convictions involve words plus something more."
Id. at 821. After citing a few cases for support,
the Court of Appeals noted in Harris, that
"[the plaintiff] did not refuse to comply with an
officer's directive or command. No. officer ever asked to
enter his house. No. officer ever asked him to produce the
child. [The plaintiff] was not threatening or violent."
Id. Thus, Harris is factually distinct from
the case at bar and cannot be found to have placed Defendant
Phinney on notice that it is impermissible to arrest a person
for obstruction under Georgia law for refusing numerous
commands from law enforcement to exit the scene of an active
police investigation. Therefore, the Court finds that Defendant
Phinney had at least arguable probable cause to arrest Mr.
McMullen for obstruction and that, accordingly, Defendant
Phinney is entitled to qualified immunity on Mr.
McMullen's § 1983 claim for unlawful arrest. As a
result, Defendants' Motion for Summary Judgment as to
Defendant Phinney on Mr. McMullen's § 1983 claim for
unlawful arrest is GRANTED.
McMullen alleges that Defendant Phinney used excessive force
against him in violation of the Fourth Amendment. (Doc. 1 at
5-6.) However, in their response to Defendants' Motion
for Summary Judgment, Plaintiffs assert that "Pellegrino
[Etzel] and Phinney inexplicably escalated a routine request
to clear an area by using excessive force [u]nder these
circumstances, Pellegrino [Etzel] is not entitled to
qualified immunity" because "there are genuine
disputes of material fact surrounding Pellegrino's
conduct." (Doc. 41 at 14.) Despite not specifically
stating that Defendant Phinney is not entitled to qualified
immunity, Plaintiffs' still maintain that Defendant
Phinney used excessive force (Doc. 41 at 11-13) and that his
conduct violated clearly established law at the time of the
incident (Id. at 13-14).
determine whether the facts, taken in the light most
favorable to Mr. McMullen, show that Defendant Phinney's
conduct violated a constitutional right and, if so, whether
this constitutional right was clearly established at the time
of the alleged conduct-April 6, 2015. The right to make an
arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat
thereof to effect it, however, the Fourth Amendment protects
individuals from the use of excessive force during the arrest
or stop. Graham, 490 U.S. at 396, 109 S.Ct. at
1871-72. The gratuitous, unwarranted use of force during the
course of an arrest is excessive. Manners, 891 F.3d
at 973. The Eleventh Circuit has repeatedly ruled that a
police officer violates the Fourth Amendment, and is denied
qualified immunity, if he or she "uses gratuitous and
excessive force against a suspect who is under control, not
resisting, and obeying commands." Saunders v.
Duke, 766 F.3d 1262, 1265 (11th Cir. 2014).
determination of whether the force used was reasonable is
viewed from the perspective of a "reasonable officer on
the scene, rather than with the 20/20 vision of
hindsight." Graham, 490 U.S. at 396. Qualified
immunity applies unless the application of the reasonable
officer standard would "inevitably lead every reasonable
officer to conclude the force was unlawful." Nolin
v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000) . To
balance the reasonableness of the force used, a court must
evaluate several factors, including: (1} the severity of the
crime at issue, (2) whether the suspect poses an immediate
threat to the safety of the officers or others, and (3)
whether the suspect is actively resisting arrest or
attempting to evade arrest. Graham, 490 U.S. at 396,
109 S.Ct. at 1872.
first Graham factor, the severity of the crime at
issue, weighs in favor of Mr. McMullen. Mr. McMullen was
arrested for obstruction after he refused to leave the
convenience store despite being told to do so approximately
seven times. See Vinyard v. Wilson, 311 F.3d 1340,
1347 (11th Cir. 2002) (describing the crimes of disorderly
conduct and obstruction as crimes of "minor
second Graham factor, whether the suspect poses an
immediate threat to the safety of the officers or others,
weighs in favor of Defendant Phinney. Although we take
Plaintiffs' facts as true at this stage in the
proceedings, we evaluate those facts from the perspective of
a reasonable officer on the scene to determine whether the
force used was objectively reasonable. Manners, 891
F.3d at 973. Here, Mr. McMullen refused to obey two
officers' multiple commands to leave the scene and then
turned away after being told for a seventh time to exit the
store. The body cam video shows that there was a scuffle
between Defendant Etzel and Mr. McMullen. (Doc. 28, Attach. 4
at 8:33-38.) Defendant Phinney became involved with Mr.