Cornelius v. City of Andalusia
| Citation | 600 F.Supp.2d 1209 |
| Decision Date | 26 February 2009 |
| Docket Number | Case No. 2:06-CV-312-WKW [WO]. |
| Parties | Randy CORNELIUS, et al., Plaintiffs, v. CITY OF ANDALUSIA, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
John Scott Hooper, The Hooper Law Firm, PC, Montgomery, AL, for Plaintiffs.
Michael Steven Burroughs, Michael S. Burroughs, Tuscaloosa, AL, William Adams Gunter, IV, Alabama Dept. of Conservation & Natural Resources, Montgomery, AL, for Defendants.
Before the court are two motions for summary judgment, one filed by Defendant Keith Kipp ("Officer Kipp") (Doc. # 71), and the other by Defendant Andy Willis ("Willis") (Docs. # 79). Each motion is accompanied by a brief. (Docs. #72 & 80.) Plaintiff Randy Cornelius ("Cornelius") filed a response to Officer Kipp's motion. (Doc. #82.) The motions are thus ripe for resolution. Based upon careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the motions for summary judgment are due to be granted.
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1367(a). The parties do not contest personal jurisdiction or venue, and there are allegations sufficient to support both.
Cornelius is suing Willis, a private citizen, and Officer Kipp, a game warden,1 for incidents that occurred the night of November 13, 2004, when the police and Officer Kipp stopped Cornelius on his way back into town after a day of hunting.2 Cornelius was bow hunting on property he leased outside the City of Andalusia, Alabama.3 With him was Casey Johnston ("Johnston"), the son of a longtime customer of Cornelius's barber shop. Cornelius and Johnston were hunting separately that day. When it was almost dark, Cornelius turned off a public road and onto a road that ran along a sewer-line on the leased property, picked Johnston up, and drove back out toward the public road.4
On their way back out, Cornelius and Johnston confronted a pick-up truck positioned near the intersection of the sewer-line right-of-way and the public road. Willis was driving the truck.5 In his deposition, Cornelius testified that the truck was blocking the right-of-way. (Cornelius Dep. 18-19, Oct. 9, 2008 (Mot. Summ. J. Br. Kipp Ex. 1).) In his words,
I went to pick [Johnston] up, come back out to the road, and there was a car that had me blocked in where I couldn't get out.
....
It was a truck, I believe. And it was—had the driveway blocked. I rolled my window down and said, Hey, man what are you doing?
He said, what you doing?
I said I'm hunting; why? He didn't say nothing. I sit there a little while, and he didn't never move or anything. So I just pulled down in the ditch and around him. And I got out of the—I stopped the car, and I got out of the car. I was going to walk back there and ask him what was going on, and he just backed further down the road.
(Cornelius Dep. 18, 19-20.) Cornelius then returned to his car and headed back to town.
Once inside the city limits, the police and Officer Kipp pulled Cornelius over. How he was pulled over is unclear. During his deposition, Cornelius at first testified that he could not remember if the police stopped him by pulling in front or in back of his car. (Cornelius Dep. 96.) After reading an affidavit attached to his notice of claim and executed on December 13, 2004, however, Cornelius recalled that when he was driving back into town, the police cars were blocking the road and facing him. (Cornelius Dep. 113-16.) Cornelius claims that after stopping his car, the police ran up to his car window, pointed a gun at him, told him to get out of the car and to put his hands above his head.6 (Cornelius Dep. 22.) He asked one officer, who was holding the gun and pointing it to his head, to remove the gun from his face. (Cornelius Dep. 22-23.) Cornelius testified that the officer was shaking his gun.7 (Cornelius Dep. 22-23.) Cornelius testified that the officers also asked Johnston to get out of the car (Cornelius Dep. 24), though Johnston claims he was never ordered out of the car (Johnston Aff. ¶ 11 (Resp. Ex. 4)). According to Cornelius's version of events, Officer Kipp then asked Cornelius to step to the back of the car (Cornelius Dep. 25), laid him over the trunk, put his hands behind him, and handcuffed them (Cornelius Dep. 119). After Cornelius asked why he was being arrested, Officer Kipp told him that he was not being arrested but being detained for poaching. (Cornelius Dep. 25-26.) Cornelius then asked how one could poach on his own land, and told Officer Kipp about his lease to hunt there. (Cornelius Dep. 26.) Officer Kipp made a phone call, and found out that the land was leased to Cornelius. (Cornelius Dep. 27.) He unclasped Cornelius's handcuffs, apologized to Cornelius, and allowed him to leave the scene of the stop. (Cornelius Dep. 29.) Thusly, the encounter ended.
At some point during the detention, the police officers or Officer Kipp searched the car even though Cornelius told them he and Johnston had no guns.8 (Cornelius Dep. 29.) Cornelius stated that the search involved opening doors and looking in the car with flashlights, but that the officers did not get into the car or look under the seats, open the glove compartment, or open the trunk. (Cornelius Dep. 30-31.) Cornelius testified that the detention lasted fifteen to twenty minutes, though "[m]aybe longer[,] ... like two hours[,]" but that he "didn't know how long it was to be honest." (Cornelius Dep. 28.)9
The stop and detention were initiated by a series of phone calls Willis made to Officer Kipp that evening. Officer Kipp and Willis are, in Officer Kipp's words, "good friends." (Kipp Dep. 72, Oct. 9, 2008 (Mot. Summ. J. Br. Kipp Ex. 2).) They have hunted together in the past, but Officer Kipp testified that he and Willis did not hunt together in the 2004 hunting season on the property near Cornelius's leased land. (Kipp Dep. 16.)
On November 13, 2004, Willis was hunting on property across the road from the sewer-line right-of-way. When he finished hunting and was driving away, he noticed a car turning left onto the sewer-line road.10 (Willis Dep. 25, Oct. 9, 2008 (Mot. Summ. J. Br. Willis Ex. 4).) The car he observed drove around a curve and out of sight. (Willis Dep. 28.) Willis then called Officer Kipp and told him that a suspicious car had turned onto the right-of-way.11 (Willis Dep. 28, 42.) Willis testified that he was suspicious because it was a car he did not recognize, turning onto a private right-of-way, the land's lessor had told Willis earlier that year that no one was supposed to be on the land, and Willis had observed other illegal activities, such as dumping, in that area before and had reported them. (Willis Dep. 32-34.)
Willis remained on the main road near the intersection and the right-of-way. When the car came back around the curve, Willis testified that he noticed a light shining out of the passenger side window.12 (Willis Dep. 35-36.) He confronted Cornelius. Willis testified that his truck, though near the right-of-way, was not "obstructing [Cornelius's] exit" and that Cornelius "pulled right beside [him]" in his car so that the driver's side doors of both cars were side by side. (Willis Dep. 37.) They had their conversation,13 Cornelius drove off, and Willis followed him. (Willis Dep. 40-41.) Willis drove in the same direction behind Cornelius (Willis Dep. 40) and called Officer Kipp again, giving him a description of the car (including the shining light), the direction in which it was traveling, and the encounter between Willis and Cornelius. (Willis Dep. 54, 57.) Officer Kipp testified that he took Willis's statement to be "trustworthy." (Kipp Dep. 72.) In Willis's version, about three quarters of a mile later, where the dirt road turns to pavement, Cornelius stopped his car and started walking toward Willis's truck. (Willis Dep. 41.) Willis testified that he drove his truck in reverse to avoid confronting Cornelius, who returned to his car and continued to drive. (Willis Dep. 41.)
Officer Kipp and the police officers then stopped Cornelius. Officer Kipp's version of the stop differs from Cornelius's. Officer Kipp testified that the police officers approached from the rear of Cornelius's vehicle and activated their lights. (Kipp Dep. 31.) In a statement he earlier wrote out about the incident and read at the deposition, Officer Kipp stated that he pulled in front of Cornelius's car, which was traveling at a "very slow speed," and activated his lights as well. (Kipp Dep. 59.) Willis confirmed that he observed a police car turn around to drive behind Cornelius and turn on its lights, and Officer Kipp's truck pull in front of Cornelius's car "kind of simultaneously." (Willis Dep. 41-42.)
Officer Kipp acknowledges that during the stop, he pointed his gun at Cornelius in the "ready" position (Kipp Dep. 36),14 but claims that his weapon was not drawn until after Cornelius was stopped (Kipp Dep. 59-60).15 Officer Kipp observed that Cornelius "appeared to be fumbling with something below [Officer Kipp's] line of sight," and based upon that, and his experience, Officer Kipp suspected Cornelius of having a weapon. (Kipp Dep. 59.) Officer Kipp then exited his vehicle and ordered Cornelius to put his hands where Officer Kipp could see them. (Kipp Dep. 59.) Officer Kipp claims that Cornelius's hands were not on the steering wheel. (Kipp Dep. 41.) Cornelius "continued to fumble and started to quickly exit the vehicle," so Officer Kipp drew his weapon, as did another officer (Kipp Dep. 60.) After more orders to put his hands up, Cornelius finally complied. (Kipp Dep. 60.) Johnston claims, however, that Cornelius had his hands "up or on the steering...
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...findings of recently spent rifle casings and a suspicious playhouse that seemed too small for bow hunting); Cornelius v. City of Andalusia, 600 F.Supp.2d 1209, 1224 (M.D.Ala.2009) (“If an unfamiliar car enters and exits private hunting property in the evening hours, out of full hunting seas......