Benson v. Facemyer, 1:13-cv-595-WSD
| Decision Date | 21 August 2014 |
| 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 Summary Judgment [17] ("Motion") and Plaintiff Dan J. Benson's ("Plaintiff," and, together with Defendant, the "Parties") Motion for Summary Judgment [19] ("Cross Motion").
On February 22, 2011, Plaintiff, a sixty-five-year-old man, was walking in Chastain Park (the "Park") in Atlanta.1 (Pl. Statement of Material Facts [19-1] ("SOMF") at ¶¶ 1-3). Plaintiff had at least one encounter with Amy Wood("Wood"),2 who was walking in the Park with her two-and-a-half-year-old daughter ("Daughter"),3 during which Plaintiff made some comment on Daughter's dress. (Id. at ¶ 6-7; Def. Statement of Material Facts [17-2] ("SOMF") at ¶ 6).4 Plaintiff also asked or commented to Daughter about her panties. (Pl. SOMF at ¶ 17; Def. SOMF at ¶ 7). Exactly what was said, and what prompted it, is disputed.
After the encounter with Plaintiff, Wood called the Atlanta Police Department to report Plaintiff's conduct. (Pl. SOMF at ¶ 20; Def. SOMF at ¶ 5). Defendant, a City of Atlanta police officer, responded and arrested Plaintiff, charging him with child molestation and possession of a firearm during the commission of a felony.5 (Pl. SOMF at ¶¶ 24, 31-32; Def. SOMF at ¶¶ 2, 9).
On March 9, 2011, a Preliminary Hearing was held by Judge Karen Woodson of the Superior Court of Fulton County. Defendant was the only witnesscalled to testify on behalf of the state at the Preliminary Hearing.6 After considering the testimony presented, the Superior Court concluded that no probable cause existed for the arrest, dismissed the charges and ordered Plaintiff to be released from detention. (Am. Com. at ¶¶ 33-34; Transcript of Preliminary Hearing [18-2] ("Trans.") at p. 36).
A grand jury subsequently indicted Plaintiff on the same child molestation and possession of a firearm charges on which he initially was arrested. The prosecutor offered to dismiss the charges and make them eligible to be expunged if Plaintiff agreed to participate in a pretrial diversion program. Plaintiff agreed to the program, successfully completed it, and the charges returned against him were dismissed. (Am. Com. at ¶¶ 33-34).
On April 22, 2013, Plaintiff filed his Amended Complaint [4] against Defendant.7 Plaintiff asserts 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 is suing Defendant in his individual capacity.
On January 8, 2014, Defendant filed his Motion seeking summary judgment on the grounds that he has qualified immunity from the claims asserted in the Amended Complaint. On January 31, 2014, Plaintiff filed his Response in Opposition [18] to the Motion, and filed his Cross Motion8 seeking summary judgment that Defendant violated Plaintiff's Fourth Amendment right and thus is liable under § 1983.9 The issue raised by the Parties in their respective motions center on whether Defendant had arguable probable cause to arrest Plaintiff.
Plaintiff asserts that on February 22, 2011, he was walking in the Park for exercise. (Pl. SOMF at ¶¶ 2-3). After his walk was done, Plaintiff rested on an empty set of swings. (Id. at ¶ 5). No one else was on the swings or in the vicinity of them when Plaintiff arrived. (Id.). After resting on the swings for a while, Plaintiff began walking back to his vehicle, and when doing so he encounteredWood and Daughter. (Id. at ¶ 6). Plaintiff asserts that he did not recognize Wood or Daughter from any previous encounter. (Id. at ¶ 7).
Plaintiff asserts he waved hello to Wood and Daughter and that Wood responded by waving back, but Daughter did not. (Id. at ¶ 8-9). Wood then turned towards Plaintiff and told Daughter to "waive [sic] hello to the nice man." (Id. at ¶ 9). Plaintiff, a few feet away from Wood and Daughter, turned towards Wood and Daughter, and he and Daughter waved to each other. (Id. at ¶ 10). Plaintiff then said that Daughter was wearing a very beautiful pink dress. (Id. at ¶ 11). Plaintiff asserts that Daughter pinched the top of her dress, raised it slightly, showing her pink underwear, and exclaimed "panties." (Id. at ¶ 12).
Plaintiff claims the incident reminded him of his own daughter's outfits when she was a child, and how she often became excited about wearing matching outfits and underwear. (Id. at ¶ 16). Plaintiff asserts that he recalls saying something like "my daughter had panties just like yours" or "my daughter used to wear matching panties." (Id. at ¶ 17). Plaintiff turned and continued on his walk in the opposite direction of Wood and Daughter. (Id. at ¶ 19). He did not follow them while he was in the Park. (Id.).
After this encounter, Wood borrowed a cell phone from a person she passed by the name of Royce Horne ("Horne"). (Pl. SOMF at ¶ 20; Trans. at p. 9). Woodused the phone to call the Atlanta Police Department. (Pl. SOMF at ¶ 20; Trans. at p. 9). Wood reported that a man in the Park had asked Daughter about the color of her panties. (Pl. SOMF at ¶ 23; Trans. at p. 4). The Atlanta Police Department dispatched Defendant to investigate. (Pl. SOMF at ¶ 24; Trans. at p. 4).
At the Park, Defendant spoke with Horne, who identified Plaintiff as the person Wood referred to in her call to the Atlanta Police Department. (Pl. SOMF at ¶ 25).10 Defendant drove towards Plaintiff and, getting out of his patrol car, ordered Plaintiff to stop. (Id. at ¶ 26). Plaintiff stopped and turned to ask Defendant if he was speaking to him. (Id. at ¶ 27). Defendant confirmed he was speaking to Plaintiff, and Plaintiff crossed the street to speak with Defendant. (Id. at ¶¶ 27-28).
Defendant asked Plaintiff if he was carrying a weapon. (Id. at ¶ 29). Plaintiff responded that he was carrying a pistol for which he had a permit. (Id.). Defendant ordered Plaintiff to keep his hand away from his front pant pocket and instructed him to walk with him. (Id. at ¶ 30). Plaintiff was told by Defendant that he was being detained and Plaintiff claims Defendant said if Plaintiff tried to leave he would be tackled and injured. (Id.). Defendant placed Plaintiff in handcuffs, and removed Plaintiff's firearm and other personal effects from him. (Id. at ¶ 31).
Defendant asked Plaintiff what he said to Daughter. (Id. at ¶ 35). Plaintiff asked to whom Defendant was referring and Defendant responded "the little girl in the pink dress." (Id.). Plaintiff then recounted his conversation with Wood. (Id. at ¶ 37).
Defendant left and was gone for approximately an hour while he interviewed Wood. (Id. at ¶¶ 39-40). Wood told Defendant she encountered Plaintiff twice while she was in the Park. (Pl. SOMF at ¶ 42; Trans. at p. 5, 10). The first time Plaintiff said "hello" and she did not respond. (Pl. SOMF at ¶ 42; Trans. at p. 10-11). Wood said the first encounter made her nervous. (Pl. SOMF at ¶ 42; Trans. at p. 10). Wood claims she next encountered Plaintiff at a swing set in the Park. (Pl. SOMF at ¶ 42; Trans. at p. 11). When Wood arrived at the swings, Plaintiff's back was towards her. (Pl. SOMF at ¶ 42; see also Witness Statement [19-1] at p. 1). Plaintiff turned and said hello to Wood, and complimented Daughter on wearing a pretty dress. (Pl. SOMF at ¶ 42; Trans. at p. 13). Wood reported that Plaintiff then asked Daughter whether she was wearing panties to match her dress, at which point Daughter lifted her dress, said "pink," and pointed at her underwear. (Pl. SOMF at ¶ 42; Trans. at p. 13-14). Wood stated that Plaintiff continued walking and did not interact with Wood or Daughter again. (Pl. SOMF at ¶ 42).
Defendant claims that, on February 22, 2011, he was told that a man, later identified as Plaintiff, while at the Park had asked a two-and-a-half-year-old girl about the color of her panties. (Def. SOMF at ¶ 2). When he arrived at the Park to investigate, Horne identified Plaintiff to Defendant. (Id. at ¶ 3). Defendant made contact with Plaintiff and asked him if he had any weapons. (Id. at ¶4). Plaintiff stated that he had a gun in his pocket. (Id.).
Defendant detained Plaintiff, secured his weapon, and made contact with Wood. (Def. SOMF at ¶ 5; Trans. at p. 3). The record is not clear whether Defendant placed Plaintiff in handcuffs at this point. (Def. Res. to Pl. SOMF [21] at ¶ 31).11 Defendant stated that Plaintiff remained in the custody of other officers while Defendant questioned Wood. (Id. at ¶ 58). Defendant claims Wood identified Plaintiff as the person she encountered while she and Daughter were at the swings. (Def. SOMF at ¶ 6). Defendant is unsure whether Plaintiff wasalready at the swings when Wood arrived, or if he went to the swings after they arrived. (See Trans. at pp. 11-12). Wood told Defendant she and Daughter were approached by Plaintiff, who told Daughter that her dress was pretty. (Def. SOMF at ¶ 6). Wood said Daughter responded by stating that her dress was pink. (Id. at ¶ 6). Plaintiff then asked Daughter if her panties were pretty and if they matched her dress, and Daughter pulled up her dress, touched her panties, and stated "pretty panties." (Id. at ¶ 7).
Defendant said he discussed Wood's account with Plaintiff, who claimed he told Daughter that her dress was pretty and Daughter responded by saying the dress was pink. (Id. at ¶ 8). Defendant said that when Daughter pulled her dress up, Plaintiff admitted he commented that she was wearing pretty pink panties. (Id.). Defendant cannot recall being told how far Daughter pulled up her dress. (Trans. at p. 14).
Based upon Wood's testimony and Plaintiff's admission that he commented on Daughter's underwear, Defendant believed that probable...
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