On September 19, 2018, the Eleventh Circuit Court of Appeals decided Alston v. City of Darien et al.[i], which serves as an excellent review of the law related to Fourth Amendment false arrest and excessive force claims and First Amendment retaliation claims. The relevant facts of Alston are as follows:
City of Darien Police Officer Anthony Brown conducted a traffic stop of a car he saw driving on the highway with a dark tint on its windows. As Brown approached the stopped car, he noticed that portions of its license plate were obstructed, including the county’s name, the expiration date, and part of the state’s name.
Brown tested the tint on the driver’s side windows to see if it violated Georgia’s statute prohibiting the application of light-darkening materials to a vehicle’s windshield or side windows. The windows were darker than allowed by law. After he completed the test, Brown asked Alston, the driver, to hand over his driver’s license, but Alston, who worked several contract jobs at the Federal Law Enforcement Training Center, gave Brown his work identification instead. When Brown told Alston that the work identification was not what he wanted, Alston handed over his driver’s license.
During the entirety of this interaction, Alston was on the phone with his wife. Alston recognized Brown because Brown previously had pulled over Alston’s wife—who was driving the same car Alston was driving during this incident—while Alston was a passenger. During that traffic stop, Alston’s wife had received a citation for violating Georgia’s window tint statute.
Brown went back to his police car with Alston’s license and wrote two citations, one for violating Georgia’s window tint statute and one for violating Georgia’s statute prohibiting the obstruction of a license plate. Brown returned to Alston’s car and handed him the citation for the window tint violation, which Alston signed. Alston, who was still on the phone with his wife, then said “This is the reason I don’t come to McIntosh County because it’s fucked up over here.” Brown asked Alston to whom he was speaking, and Alston replied only that he was on the phone. In response, Brown pulled out his taser, held it in front of Alston’s chest, and ordered him out of the car.
Alston got out of the car; Brown handcuffed him. As Brown adjusted the handcuffs, Alston told him that the handcuffs were too tight, but Brown continued to tighten them. Alston began to curse at Brown.
After Alston was handcuffed, Officer Robbie Gault arrived to take Alston to the McIntosh County jail. Alston overheard Brown tell Gault, “I’m getting him because of how he acted in the car with his wife, and he was cussing me so I will call his job and have him fired.” Gault and Brown spoke for a few minutes. Gault then drove Alston to the jail, which took three to four minutes. During the drive, Alston asked Gault if he would loosen the handcuffs; Gault refused.
When they arrived at the jail, it took Gault two to three minutes before he removed Alston’s handcuffs. As he removed them, Gault remarked that Alston was a “big guy” and that Brown “should have used two pair of cuffs.”
Alston testified that it felt as though Brown had placed the handcuffs over the metal bracelet on his right hand and across the face of the watch he was wearing on his left hand. He explained that his left hand was swollen and he had bruises and bleeding. Alston went to the hospital later that day. At a follow up appointment, he was diagnosed with radial sensory nerve damage, which causes numbness and tingling. The orthopedic surgeon who treated Alston testified that “to a reasonable degree of medical probability . . . the handcuffs caused [the] problem.”…
Shortly after Alston’s arrest, Brown called Alston’s employer at the Federal Law Enforcement Training Center to complain about Alston’s “misconduct” and “cursing” during the traffic stop. Alston was not disciplined as a result of the call.”[ii] [internal citations omitted]
Alston sued the City of Darien and Officer Brown and alleged a violation of his Fourth Amendment rights for excessive force for tight handcuffing and false arrest. He also alleged violations of his First Amendment rights for retaliation related to the officer calling his employer and for arresting him for exercising his rights under the First Amendment. Alston also alleged that the he was entitled to summary judgment on the excessive force claim because the City did not preserve the dash-cam video, thus he alleged spoliation of evidence. The district court granted summary judgment to the City and the officer and dismissed all claims. Alston appealed to the Eleventh Circuit Court of Appeals.
The court of appeals first noted that an officer is entitled to qualified immunity when he or she is undertaking a discretionary function, such as making an arrest, using force and handcuffing a suspect. For a plaintiff to defeat the officer’s qualified immunity, the plaintiff must show (1) that the officer violated a constitutional right, and (2) that the right was clearly established such that another reasonable officer in the same situation would have known the conduct was unlawful. Further, the law is considered “clearly established” when (1) there is court precedent similar enough to the case at hand to give fair warning to the officer or when (2) the conduct of the officer is so obviously a violation of the Fourth Amendment that it is readily apparent, even without court precedent.
The court first examined whether the officer violated the Fourth Amendment by arresting the plaintiff unlawfully. The court described the relevant legal principles as follows:
An arrest is lawful under the Fourth Amendment if the officer had probable cause to arrest. 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.” Lee, 284 F.3d at 1195 (internal quotation marks omitted). But in the context of § 1983, a police officer may be entitled to qualified immunity even if there was no actual probable cause for arrest; instead, an officer who raises a qualified immunity defense will prevail if there was arguable probable cause. Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003). “Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the Defendant could have believed that probable cause existed to arrest.”[iii] [emphasis added]
In this case, Alston was arrested for a violation of the Georgia window tint statute and a violation of the statute that prohibits obscuring the vehicles license plate. The court noted that Alston admitted that he violated the window tint statute. As such, the officer had actual probable cause to arrest Alston. Additionally, there was undisputable evidence that portions of Alston’s tag were in fact obscured, which provided probable cause to arrest for that charge.
Alston, however, argued that the arrest was unlawful because a Georgia statute, particularly OCGA § 17-6-11, requires that an officer release a driver on a copy of the citation when he or she signs the signs citation. Thus, Alston stated that based on Georgia law, his arrest was unlawful. In response, court stated
Alston’s argument fails. Assuming, without deciding, that Alston is correct that after he signed the citation, Georgia law did not permit his arrest, “[t]here is no federal right not to be arrested in violation of state law.” Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002). Although “the violation of state law may (or may not) give rise to a state tort claim, it is not enough by itself to support a claim under [§] 1983.” Id. So even if Alston’s arrest violated the procedures established by Georgia law, it does not follow that the arrest violated the United States Constitution. Because there is no dispute that Brown had probable cause to arrest Alston for violating O.C.G.A. § 40-8-73.1(b), the arrest was lawful under the Fourth Amendment.[iv] [emphasis added]
Because there was probable cause to arrest Alston for window tint violation and the obscured tag violation, the arrest did not violate the Fourth Amendment, even if it violated a procedural state statute. Therefore, the officer is entitled to qualified immunity on this claim.
Second, the court examined whether the officer violated the Fourth Amendment’s prohibition against unreasonable force when he handcuffed Alston, allegedly too tightly.
Alston acknowledged, if the arrest was lawful, the officer could legally handcuff him. However, he alleged that the handcuffs were over his bracelet and watch and caused nerve damage because they were too tight. He attempted to assert that the law was clearly established because any reasonable officer would have known that it was a Fourth Amendment violation to handcuff someone in that manner. The court first stated
[T]he right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). We previously have held that a painful handcuffing, during which the plaintiff “fell to his knees screaming that [the defendant] was hurting him,” followed by a 10 minute trip to the police station, was not unconstitutionally excessive force, even though the handcuffing loosened the plaintiff’s internal surgical hardware from a preexisting injury, leading to 25 subsequent surgeries and amputation of the plaintiff’s arm. Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002). Additionally, “a police officer need not credit everything a suspect tells him,” especially “when the officer is in the process of handcuffing [the] suspect.” Rodriguez v. Farrell, 294 F.3d 1276, 1278 (11th Cir. 2002).[v] [emphasis added]
Thus, the court stated that it would not be “readily apparent” to a reasonable officer that tightening the handcuff’s over Alston’s bracelet and watch as he complained about the handcuffs being too tight, would violate the Fourth Amendment. Therefore, the officer is entitled to qualified immunity on this claim.
Third, the court examined whether the officer violated the First Amendment by calling Alston’s employer in retaliation for complaining on the officer. The court stated
To state a claim for retaliation under the First Amendment, a plaintiff must demonstrate that (1) he engaged in protected speech; (2) the defendant’s conduct adversely affected the protected speech; and (3) a causal connection exists between the speech and the defendant’s retaliatory actions.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). A defendant “adversely affects protected speech if his alleged retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Id. at 481 (internal quotation marks omitted).[vi] [emphasis added]
The court then noted that Alston failed to meet the third element listed above. This is because the evidence showed that the officer called Alston’s employer before Alston filed the complaint. Therefore, the officer’s phone call could not be in retaliation for a complaint that he had not yet received. As such, the officer was entitled to qualified immunity on this claim.
Fourth, the court examined whether the officer violated the First Amendment when he arrested him for his constitutionally protected speech when he was in his car during the traffic stop. The court stated
At the time of Alston’s arrest, there was no clearly established “right to be free from a retaliatory arrest that [was] otherwise supported by probable cause.” Reichle v. Howards, 566 U.S. 658, 665 (2012).[vii] [emphasis added]
Since there was probable cause to arrest Alston, this claim fails and the officer is entitled to qualified immunity.
Lastly, the court examined whether the district court abused its discretion for failing to sanction the defendants for spoliation of evidence for destroying or not preserving the dash-cam footage of the incident. Regarding “spoliation of evidence, the court stated
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). In determining the propriety of spoliation sanctions, courts consider the following factors:
(1) whether the [moving party] was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) practical importance of the evidence; (4) whether the [spoiling party]acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.
Flury, 427 F.3d at 945.10 “In the Eleventh Circuit, an adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Mann v. Taser Int’l., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (internal quotation marks omitted). As such, “mere negligence in losing or destroying records is not sufficient to draw an adverse inference.” Id.[viii] [emphasis added]
In this case, the court stated that Alston failed to show that he was prejudiced by the lack of video, and he conceded that the video could either exonerate the officer or show unlawful behavior. Further, Alston failed to show the video was destroyed intentionally or in bad faith. Since Alston failed to meet the elements for spoliation of evidence, the court of appeals held that the district court did not abuse its discretion for failing to sanction the defendants.
Therefore, the court of appeals affirmed the decision of the district court.
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CITATIONS:
[i] No. 17-15692 (11th Cir. Decided September 19, 2018 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 9
[iv] Id. at 10
[v] Id. at 13
[vi] Id. at 14-15
[vii] Id. at 16
[viii] Id. at 16-17
