Frederick v. Brown, CV 113-176

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Decision Date10 August 2015
Docket NumberCV 113-176
PartiesDAVID FREDERICK, Plaintiff, v. DEMOND BROWN, individually and in his capacity as an officer with the Augusta-Richmond County Sheriff's Department, et al., Defendants.

DEMOND BROWN, individually and in his capacity
as an officer with the Augusta-Richmond County Sheriff's Department, et al., Defendants.

CV 113-176


August 10, 2015


Plaintiff David Frederick alleges Augusta, Georgia1 and eight named officers of the Richmond County Sheriff's Office ("RCSO"), among others unnamed, deprived him of his First, Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights and violated various state laws when he was arrested, purportedly upon falsified evidence and with excessive force, for violating the local juvenile curfew ordinance. AUGUSTA-RICHMOND COUNTY CODE § 3-1-2. Three groups of defendants now move for complete or partial dismissal: (1) Augusta, Georgia, through Deke Copenhaver, individually and in his official capacity as Mayor (Doc. 21); (2) Ronald Strength, who formerly held

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the office of Sheriff (Doc. 12); and (3) the RCSO Defendants, which include Sheriff Richard Roundtree and his deputies (the "deputy Defendants" or "RCSO deputies") (Doc. 35). The Court will consider each motion in turn in Part III, infra.


A. The Augusta Juvenile Curfew Ordinance

In 2008, "to deter juvenile delinquency and juvenile victimization," the Augusta-Richmond County Commission enacted a juvenile curfew ordinance ("the Ordinance") that makes it unlawful for "any minor under the age of eighteen (18) years to loiter, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds or other public grounds, public places, public buildings, places of amusement, eating places, vacant lots or any other place in Augusta-Richmond County, unsupervised by an adult" between the hours of midnight and 5:00 AM on Fridays and Saturdays,2 subject to certain exceptions. AUGUSTA-RICHMOND COUNTY CODE § 3-1-2. Among those exceptions is "[w]hen a minor is accompanied by his or her parent, guardian or other adult person having the lawful care and custody of the minor." Id. § 3-1-2(a). The Ordinance further exempts attendance or direct travel to and from "an activity involving the exercise of first amendment rights of free speech, freedom of assembly or free exercise of religion." Id. § 3-1-2(d). Adults are also subject to regulation, as the

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Ordinance makes it "unlawful for the parent, guardian, or other person having custody or control of any child under the age of eighteen (18) to permit, or by insufficient control, to allow, such a child to be in or upon the public streets" during the controlled hours. Id. § 3-1-3.

B. Mr. Frederick's Arrest & Suit

According to the Complaint, Mr. Frederick received permission from his mother to attend Augusta's First Friday event, a monthly arts festival, in June 2010 with his cousin, Brad Tucker, who was 18-years-old. (Compl. ¶¶ 26-28, 38.) Mr. Frederick was 16 on the night of the incident. (Id. ¶ 36.) During the previous month's First Friday event, African-American youths "were involved in illegal activity that damaged property and caused personal injury." (Id. ¶ 29.)

While walking on Broad Street after midnight, thereby triggering the Ordinance, several RCSO deputies began to pursue a group of "black male subjects" who were "yelling and chanting." (Id. ¶¶ 39, 41, 42, 46.) Deputy Demond Brown reported that a fellow deputy put the group under a spotlight, and he witnessed Mr. Frederick attempt "to separate himself." (Id. ¶¶ 48-50.) Defendant Brown also purportedly saw Mr. Frederick throw something on the ground. (Id. ¶ 55.) Moreover, Mr. Frederick appeared to be a minor to the deputy Defendants. (Id. ¶ 44.) Thus, "[u]nder color of authority of enforcing the County's curfew ordinance,"

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"one or more" RCSO deputies confronted Mr. Frederick and Mr. Tucker. (Id. ¶¶ 42, 51-54, 56.) Defendant Brown first grabbed Mr. Tucker, learned that he was over 18, and "used profane language to try to get [him] . . . to leave." (Id. ¶¶ 51, 53, 54.) After asking Mr. Frederick's age, Defendant Brown "told [Mr. Frederick] that there was a curfew and that he was going to jail." (Id. ¶ 57, 59.) Mr. Tucker then informed Defendant Brown "that he was an adult and that he was with [Mr. Frederick] and he was in charge of [Mr. Frederick]," but Defendant Brown "refused to listen." (Id. ¶¶ 60, 61.) Another deputy "grabbed" Mr. Tucker and told him to "[g]et the f*** back unless you want to go to jail." (Id. ¶ 62.) Officer Brown proceeded to search Mr. Frederick's person, to place him in handcuffs, and to transfer custody to Deputy Rachel Hardin for transport. (Id. ¶¶ 63, 64, 67, 69, 71.)

On the way to the police car, Defendant Hardin "began to yell loudly," and "one or more Defendants" then "tackled" Mr. Frederick to the ground. (Id. ¶¶ 72-74.) "The Defendants" punched, kicked, and hit him. (Id. ¶ 76.) Mr. Frederick received several blows to his head, and "one or more of the Defendants" "ground [his] head into the pavement," causing a permanent scar. (Id. ¶¶ 79, 85, 86.) Mr. Frederick thereafter spent time in an outdoor holding area (id. ¶ 87), but it is unclear whether he was issued a citation of any sort or was convicted of any misconduct. "There were other young African American males taken to the [same] holding area[,]" and "[t]here were arrest and seizures of many minors that night, who

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were taken to a holding area without proof or evidence that the minor was not accompanied by an adult[.]" (Id. ¶¶ 88, 91.)

Mr. Frederick maintains that none of the deputies on the scene asked him whether he was accompanied by an adult or otherwise conducted a "reasonable inquiry" into whether Mr. Tucker was an "authorized adult." (Id. ¶¶ 45, 58, 59, 94, 97, 100.) He further expresses that he "had the right to self-defense" and the "right to resist" in response to Defendants' unlawful arrest and use of force. (Id. ¶¶ 80, 81, 83, 84.)

Mr. Frederick turned 18 on September 23, 2011, and filed suit on September 22, 2013, one day before the expiration of the limitations period. (Id. ¶¶ 9, 10.) As a result of this incident, he alleges that he "has suffered and will with reasonable certainty continue to suffer physical and emotional pain." (Id. ¶ 104; see also id. ¶¶ 86, 189.) Accordingly, Mr. Frederick seeks compensatory, special, and punitive damages, as well as "[d]amages for injuries caused by deprivation of Constitutional rights." (Id. at 24, ¶¶ a, b, d, e.) He also requests "[i]njunctive and declaratory relief finding the [O]rdinance unconstitutional on it its [sic] face or that its application was unconstitutional, and order prospective relive [sic] against whoever is the Sheriff and Commission to comply with the constitution and laws of the State of Georgia, to prohibit arbitrary deprivation of freedoms guaranteed all without regard to race, or in violation of due process and equal protection." (Id. at 24, ¶ g.)

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Mr. Frederick's Complaint garnered three motions to dismiss (Doc. 12, 21, 35), consideration of which was stayed to facilitate the parties' request that Mr. Frederick's facial constitutional challenge to the Ordinance be litigated first. (Doc. 33; see also Doc. 31.) The parties, however, took no action for over a year: they did not engage in any discovery specific to the facial challenge, nor did they file any motions upon which the Court could act. After undertaking a review of the docket, the Court inquired sua sponte into whether the facial challenge to the Ordinance is justiciable at all — more specifically, whether Mr. Frederick has standing under each of the theories of invalidation he presented in brief (Doc. 34) and whether his claims are moot because he turned eighteen approximately two years prior to filing this suit. With the benefit of oral argument (Doc. 45), the Court declined to address the merits of Mr. Frederick's facial challenge, finding that it could not determine from the evidence before it — the pleadings — whether Mr. Frederick, now 21-years-old, suffered or imminently will suffer an injury under the Ordinance sufficient to ensure that the Court would not be rendering an advisory opinion on the Ordinance's constitutionality. (Doc. 46.) Accordingly, the Court lifted the stay and directed the parties to finalize briefing of the motions to dismiss, all of which are now ripe for review. (Id.)

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A. Motion to Dismiss on Jurisdictional Grounds

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be either a "facial" or "factual" attack. Morrison v. Amway Corp., 323 F.3d 920, 924-25 n.5 (11th Cir. 2003). Defendants' motions, as they relate to immunity, are facial attacks on the Complaint because the Court's resolution of the immunity question does not depend on adjudicating the merits of the case. Haven v. Bd. of Trs. of Three Rivers Reg'l Library Sys., No. CV 213-090, 2014 WL 5872671, at *3 (S.D. Ga. Nov. 12, 2014) ("In the Eleventh Circuit, the defense of sovereign immunity is not merely a defense on the merits. An assertion of Eleventh Amendment sovereign immunity essentially challenges a court's subject matter jurisdiction.")(citations and internal quotation marks...

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