Benson v. Facemyer
| Decision Date | 30 September 2015 |
| Docket Number | 1:13-cv-595-WSD |
| Court | U.S. District Court — Northern District of Georgia |
| Parties | DAN J. BENSON, Plaintiff, v. OFFICER ANDRES FACEMYER, Defendant. |
This matter is before the Court on Defendant Andres Facemyer's ("Defendant") Motion for Judgment as a Matter of Law [61] ("Motion for Judgment") and Motion to Alter or Amend the Judgment or, in the Alternative, for a New Trial [62] ("Motion to Amend"). Also before the Court is Plaintiff Dan J. Benson's ("Plaintiff," and, together with Defendant, the "Parties") First Motion for Attorney's Fees [60] ("First Motion for Attorney's Fees") and Second Motion for Attorney's Fees [68] ("Second Motion for Attorney's Fees").
On April 22, 2013, Plaintiff filed his Amended Complaint [4] againstDefendant.1 Plaintiff asserted a Fourth Amendment claim under 42 U.S.C. § 1983, arguing that Defendant violated Plaintiff's Fourth Amendment right to be free from "unreasonable searches and seizures" by arresting Plaintiff without probable cause. Plaintiff sued Defendant in his individual capacity.
Defendant arrested Plaintiff for child molestation under O.C.G.A. § 16-6-4,2 and possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106,3 based on an encounter Plaintiff had with a minor child and her mother in Chastain Park, Atlanta, Georgia (the "Park"). (August 21, 2014, Order [23], at 1-2).
On January 8, 2014, Defendant filed his Motion for Summary Judgment [17], on the grounds that he has qualified immunity from the claims asserted in the Amended Complaint. On January 31, 2014, Plaintiff filed his Motion for Summary Judgment [19], seeking summary judgment that Defendant violatedPlaintiff's Fourth Amendment right and thus is liable under Section 1983. The issue raised by the Parties in their respective summary judgment motions center on whether Defendant had arguable probable cause to arrest Plaintiff.
On August 21, 2014, the Court denied [23] the Parties' respective summary judgment motions.4 The Court noted that arguable probable cause is evaluated by determining whether "reasonable officers in the same circumstances and possessing the same knowledge as Defendant could have believed that probable cause existed to arrest." (August 21, 2014, Order, at 15). The Court, in determining whether arguable probable cause to arrest exists, must assess the information known to the arresting officer at the time of arrest, not what the officer learned afterward. (Id. at 15-16).
The Court concluded, based on the record evidence presented with the summary judgment motions, that it could not determine at what point during the encounter Defendant "arrested" Plaintiff. (Id. at 19-20). The Court also concluded this was an issue that was required to be resolved at trial. (Id. at 20). The Court noted further that, once the time of arrest was determined, the jury would have to determine what was known to Defendant at the time the arrest occurred. (Id.). OnDecember 22, 2014, the Court set trial for February 2, 2015. (December 22, 2014, Order [29], at 1).
Five witnesses were called during the trial: (1) Plaintiff; (2) Defendant;5 (3) Ms. Lea Benson;6 (4) Ms. Amy Wood; and (5) Sgt. Scott Ormond. Because the versions of events differ in significant ways, the Court summarizes each witness's testimony separately.
Plaintiff testified that, at the time of trial, he was a sixty-nine-year old chiropractor living in Stone Mountain, Georgia. (Trial Tr. [55-58] at 132:7-12). On February 22, 2011, Plaintiff went to the Park to walk around it for exercise. (Id. at 134:1-13). After beginning his walk, Plaintiff encountered Ms. Wood and her two-and-a-half-year-old daughter ("Daughter"). (Id. at 137:21-25). Plaintiff waved at Daughter and Ms. Wood. (Id. at 138:4-5). Ms. Wood, who saw Plaintiff wave, told Daughter to "wave at the nice man." (Id. at 138:4-9).
Daughter was wearing a pink dress and, when Plaintiff was in earshot of them, he said: "That's a beautiful pink dress you have on." (Id. at 138:18-20). Daughter then "grabbed her bodice, yanked it up about a half an inch and yell[ed], Panties." (Id. at 138:21-22). Plaintiff testified that this reminded him of how, when his daughter was that age, she seemed to enjoy wearing matching dresses and underwear. (Id. at 138:23-139:7). Plaintiff responded by saying that his "daughter used to wear panties just like yours." (Id. at 139:13-14). Plaintiff testified that Daughter then said "pee," Ms. Wood picked her up, and they started walking in the opposite direction of each other. (Id. at 139:15-18).
Plaintiff testified that he had walked about a quarter of a mile when he had to rest because of his asthma. (Id. at 140:7-12). Plaintiff turned and walked towards a swing and some benches to sit down. (Id. at 140:14-141:2). After sitting a while, Plaintiff, realized it was 2:45 p.m., and, because he had to drive to Stone Mountain, Georgia, he decided to leave the Park. (Id. at 141:11-15). As Plaintiff was walking towards the parking lot, he saw a police car about fifty (50) yards from where he had his conversation with Ms. Wood. (Id. at 141:19-22). As he was walking, Defendant, a police officer, yelled to him: (Id. at 142:5-8, 184:10-21). Plaintiff pointed at himself and Defendant said: "You, get over here."(Id. at 142:9-10). Defendant further yelled: (Id. at 142:12-13). Plaintiff held up his hands and said "yes, with a permit," and pointed at his right front pocket. (Id. at 142:14-15). Defendant told Plaintiff to (Id. at 142:17). When he did, Defendant grabbed Plaintiff's right arm and "slung it back around [Plaintiff]." (Id. at 142:18-19). Defendant said to Plaintiff "[i]f you run, I am going to chase you down, I am going to tackle you, and I'm going to really hurt you." (Id. at 143:1-2). Defendant told Plaintiff he was being detained, and handcuffed him. (Id. at 143:3-7, 144:4-5).
After Plaintiff was handcuffed, Plaintiff testified, as follows, about what happened and his conversation with Defendant:
So I don't know what's going on, I'm lost. And [Defendant] said, What did you say to the little girl? And I said, What little girl? [Defendant] said, What did you say to the little girl? And I said, I don't know what little girl you are talking about. [Defendant] says, The little girl that was with her mother. And I said, Oh, you mean the little girl in the pink dress? [Defendant] said, Yes. What did you say? So I told him just exactly what I told [during his trial testimony].
(Id. at 144:10-20). Defendant then searched Plaintiff, took his wallet out, asked him if he was from Stone Mountain, Georgia, and disarmed him. (Id. at 145:1-3, 19-25, 146:1-7).
Two other officers then approached, and a police wagon arrived. (Id. at 146:8-10). Defendant spoke with the other two officers and Defendant then left. (Id. at 146:12-14). Plaintiff was questioned by the two arriving officers, and ultimately placed in the police wagon. (Id. at 146:24-148:8).
Plaintiff was in the police wagon for approximately one hour before Defendant returned to speak with him. (Id. at 148:10-13). Defendant stated that, "[a]ccording to the FBI's code on felony child molestation, any adult who uses the word 'panty' in a sentence with a minor under 17 years of age has committed felony child molestation." (Id. at 148:24-149:2). Defendant told Plaintiff that he was "going to jail for felony child molestation," and Plaintiff was transported to the police station jail. (Id. at 149:6-9). On cross-examination, Plaintiff acknowledged he was driving a borrowed van,7 but denied there were two encounters at the Park that day. (Id. at 181:23-182:5). He testified that Ms. Wood's version of events is different from his and that her version is mistaken. (Id. at 182:18-20).8
At no point in his encounter with Defendant was he told he was under "arrest." (Id. at 189:13-15).
On February 22, 2011, Defendant responded to a 911 call from the Park. (Id. at 300:22-25). Defendant was told by the 911 operator there was, in the Park, a man in his sixties wearing a black hat with gold letters, blue jeans, and sunglasses who was talking to a little girl about her panties. (Id. at 301:8-13).
When Defendant arrived at the Park, a woman pointed at Plaintiff and said: "[t]here is the man, that's him."10 (Id. at 210:23-25, 303:21-25). Defendant saw aman fitting Plaintiff's description walking along the pedestrian path at the Park. (Id. at 211:1-2, 304:1-3). Plaintiff was walking away from Defendant. (Id.). Defendant got out of his police vehicle and called for Plaintiff to come over to him. (Id. at 304:5-7). As Plaintiff approached, Defendant asked him if he was armed. (Id. at 304:11-13). Plaintiff stated that he had a pistol in his pocket. (Id. at 304:15). Defendant testified that he immediately handcuffed Plaintiff and secured the weapon. (Id. at 18-22).
Defendant explained to Plaintiff why he stopped him. (Id. at 305:5-12). Plaintiff told his version of events, stating he had "a conversation with a two-year-old girl and the subject of her panties was brought up." (Id. at 305:10-17).
After this conversation, Defendant left Plaintiff "secured" with Sgt. Ormond, and went to speak with Ms. Wood. (Id. at 305:21-306:3). When Defendant spoke to Ms. Wood, she told him that a man had attempted to say hello to her and her daughter. (Id. at 201:5-13). She told Defendant that she felt uncomfortable that Plaintiff had walked up to her and her daughter and tried to start a conversation with Daughter by saying hello. (Id. at 201:17-202:3). This was the first encounterMs. Wood claims to have had with Plaintiff that day. Ms. Wood told Defendant that she encountered Plaintiff a second time. (Id. at 203:19-21)....
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