Brown v. Gilmore

• Citation: 278 F.3d 362
• Decision Date: 23 January 2002
• Docket Number: No. 01-1749.,01-1749.
• Parties: Tara Simone BROWN, Plaintiff-Appellee, v. Robert GILMORE, individually and in his capacity as a police officer of the City of Myrtle Beach, South Carolina; Brian Pina, individually and in his capacity as a police officer of the City of Myrtle Beach, South Carolina, Defendants-Appellants, and City of Myrtle Beach, South Carolina, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

278 F.3d 362

Tara Simone BROWN, Plaintiff-Appellee, v. Robert GILMORE, individually and in his capacity as a police officer of the City of Myrtle Beach, South Carolina; Brian Pina, individually and in his capacity as a police officer of the City of Myrtle Beach, South Carolina, Defendants-Appellants, and City of Myrtle Beach, South Carolina, Defendant.

No. 01-1749.

United States Court of Appeals, Fourth Circuit.

Argued December 3, 2001.

Decided January 23, 2002.

COPYRIGHT MATERIAL OMITTED

ARGUED: Cynthia Graham Howe, Van Osdell, Lester, Howe & Jordan, P.A., Myrtle Beach, South Carolina, for Appellants. Joshua Norris Rose, Rose & Rose, P.C., Washington, D.C., for Appellee. ON BRIEF: James B. Van Osdell, Van Osdell, Lester, Howe & Jordan, P.A., Myrtle Beach, South Carolina, for Appellants. John R. Harper II, John R. Harper II Attorney At Law, P.A., Columbia, South Carolina, for Appellee.

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Reversed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge GOODWIN joined.

OPINION

WILKINSON, Chief Judge.

Plaintiff Tara Brown brought a 42 U.S.C. § 1983 action alleging false arrest and use of excessive force in violation of the Fourth Amendment during her arrest for violating the City of Myrtle Beach's disorderly conduct ordinance. The district court denied the officers' motion for summary judgment based on qualified immunity. Because the record reveals no violation of Brown's Fourth Amendment rights, we hold that the district court erred in denying summary judgment. Any other ruling would undermine the ability of local governments to maintain civil peace.

I.

Plaintiff Tara Brown went to visit her relatives in Myrtle Beach, South Carolina during Memorial Day weekend 1998. That weekend was the Atlantic Beach Biker Festival. The Festival draws numerous bikers and others to Myrtle Beach. The City of Myrtle Beach requests an extraordinary law enforcement presence for the weekend and the State of South Carolina assigns personnel from various law enforcement agencies to assist the City with crowd control and other issues. Defendant Officer Pina was a patrol officer with the Myrtle Beach Police Department at the time of the alleged incident. Defendant Officer Gilmore was a patrolman first class.

On the evening of May 23, 1998, Brown, accompanied by four female friends and relatives, was driving her car in downtown Myrtle Beach. At approximately 10:40 p.m., Brown was stopped in traffic when a car backed into her vehicle and caused an accident. Officer Pina and Officer Travis Norris (a Department of Natural Resources officer), were on patrol in the area and arrived within minutes. Officers Pina and Norris first confirmed that no one needed immediate medical attention and then remained at the accident site until a traffic officer arrived to handle the accident. Officer Gilmore was on traffic duty that evening and was dispatched to the accident at 11:19 p.m. He arrived at the scene at 11:23.

Officer Gilmore and Brown, not surprisingly, describe the ensuing events in different terms. As Officer Gilmore describes the incident, the two cars were blocking the entire north lane of a "main artery into the downtown area of Myrtle Beach." Officer Gilmore made sure that no one was hurt and then obtained drivers licenses, registration and insurance information from the two drivers. Thereafter, Officer Gilmore asked both drivers to move their cars off the main street onto a side street. The other driver immediately responded and moved her car. Officer Gilmore claims that Brown ignored him and instead asked Officer Pina why he could not handle the accident. Officer Gilmore asked Brown two more times to move her car, but she continued to ignore him. Officer Gilmore thus asked again, more loudly. Brown began to yell and curse and stated "I'll move my car when I'm damn good and ready." Officer Gilmore then asked Officer Pina to place Brown under arrest for disorderly conduct. Officer Pina asked Brown to turn around and put her hands behind her back. He then escorted her to his patrol cruiser. Officer Pina handcuffed Brown and asked her to get in the cruiser. Brown refused and put up such a scuffle that she kicked off one of her sandals. Officer Pina went around to the other side of the cruiser and pulled Brown through the back seat to get her into the cruiser.

As Brown describes the incident, she was speaking with officers Pina and Norris when Officer Gilmore came up behind her. She turned around and noticed that he was yelling and waving his arms, although she did not have a chance to focus on what he was saying. As he drew near, she realized Officer Gilmore was talking to her. Brown asked Officer Gilmore why he was yelling and if he could stop yelling. Officer Gilmore responded by asking Officer Pina to "take her to jail." Brown claims she did not understand what he was saying and was not aware that he directed her to move her car. After her arrest, Brown was upset. She was handcuffed by Officer Pina, dragged into a cruiser, and was charged with violating the local disorderly conduct ordinance. Brown contends she kicked off her shoe to avoid falling because it had become tangled while she was being dragged by Officer Pina.

It is undisputed that Brown was booked on the disorderly conduct charge and was released on bond shortly after her arrest. Specifically, Brown was charged with violating the City of Myrtle Beach Ordinance § 14-61 which provides that:

It shall be unlawful for any person to commit any breach of the peace, conduct himself in a disorderly manner, be publically drunk or under the influence of intoxicating beverages, be loud and boisterous or conduct himself in such a manner as to disturb the peace and quiet of the public.

On May 23, 2000, Brown sued Officers Gilmore and Pina as well as the City of Myrtle Beach based upon her May 23, 1998 arrest. Brown alleged violations of 42 U.S.C. § 1983 and several state law claims. The defendants denied the allegations and moved for summary judgment. The officers asserted that they had probable cause to arrest Brown for disorderly conduct and that they were entitled to qualified immunity as to the § 1983 claims.

On May 31, 2001, the district court issued an order denying the defendants' motion for summary judgment on Brown's Fourth Amendment claims.¹ The court acknowledged that the excessive force claim had not been clearly pled, but thought the officers had been placed on notice of the claim from factual averments in the amended complaint. The court then went on to consider whether the officers had qualified immunity as to the false arrest claim. The court recognized that if the facts of the case were undisputed, it would "apply[] the clearly established law to determine whether a reasonable person in the officers' position would have known that his actions violated the right alleged by the plaintiff." However, since there were facts in dispute, including whether Brown had in fact violated a direct order from Officer Gilmore, the district court found that the case was inappropriate for summary judgment and denied the officers' motion on the false arrest claim. The officers appeal.²

II.

Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The legal principles governing the analysis of qualified immunity claims in this context are quite clear. As an initial matter, courts must decide "whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2155, 150 L.Ed.2d 272 (2001); see also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Anderson v. Creighton, 483 U.S. 635, 638-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Milstead v. Kibler, 243 F.3d 157, 161-62 (4th Cir.2001). Next, assuming that the violation of the right is established, courts must consider whether the right was clearly established at the time such that it would be clear to an objectively reasonable officer that his conduct violated that right. Saucier, 121 S.Ct. at 2156; see also Wilson, 526 U.S. at 609, 614-15, 119 S.Ct. 1692; Anderson, 483 U.S. at 638-41, 107 S.Ct. 3034; Milstead, 243 F.3d at 161-62.

III.

We first address Brown's allegations of false arrest. And to do so we consider this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 121 S.Ct. at 2156. Because, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquires concerning qualified immunity." Id.

To establish an unreasonable seizure under the Fourth Amendment, Brown needs to show that the officers decided to arrest her for disorderly conduct without probable cause. Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); see also Taylor v. Waters, 81 F.3d 429, 434 (4th Cir.1996); United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir.1995). Probable cause is determined from the totality of the circumstances known to the officer at the time of the arrest. United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir.1988). For probable cause to exist, there need only be enough evidence to warrant the belief of a reasonable officer that an offense has been or is being committed; evidence sufficient to convict is not required. Wong Sun v United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Two factors govern the determination of probable cause in any situation: "the suspect's conduct as known to the officer, and the contours of the offense thought to be committed by that conduct." Pritchett v....