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McMullen v. City of Port Wentworth Georgia

United States District Court, S.D. Georgia, Savannah Division

September 26, 2019

MARCUS MCMULLEN and EMERY MAE MCMULLEN, Plaintiffs,
v.
CITY OF PORT WENTWORTH GEORGIA, OFFICER CHASSITY D. PELLEGRINO, SERGEANT BRIAN PHINNEY, and CHIEF OF POLICE BRIAN LIBBY, Defendants.

          ORDER

          WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT.

         Before 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[1] 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 GRANTED.

         BACKGROUND[2]

         This 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.[3](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.

         In the 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.[4] 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.

         After 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.)

         Plaintiffs 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).

         The 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.

         The 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.)

         The 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.)

         Based 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.)[5] 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."[6] (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.)

         Defendants 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.)

         Defendant 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.)

         STANDARD OF REVIEW

         According 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).

         As the 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 Cir. 1989).

         ANALYSIS

         I. DEFENDANTS CITY OF PORT WENTWORTH, PHINNEY, AND LIBBY'S MOTION FOR SUMMARY JUDGMENT

         A. Plaintiffs' Claims Against Defendant Phinney

         Defendants 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 consortium.

         1. Mr. McMullen's 42 U.S.C. § 1983 claims

         a. Unlawful arrest

         Mr. 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 Cir. 2002)}.

         Mr. 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 omitted).

         In this 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).

         Plaintiffs 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.

         Plaintiffs 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 Defendant Phinney.

         First, 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).

         In 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.

         In 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.[7] 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.

         b. Excessive force

         Mr. 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).

         We must 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).

         The 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.

         The 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 severity").

         The 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. McMullen ...


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