Garrett v. Athens-Clarke County, Ga.

• Citation: 378 F.3d 1274
• Decision Date: 30 July 2004
• Docket Number: No. 03-11264.,03-11264.
• Parties: Pamela GARRETT, individually, f.n.a. Eric William Irby, f.n.a. Valerie Nicole Irby, Plaintiff-Appellee, v. ATHENS-CLARKE COUNTY, GEORGIA, Athens-Clarke County Police Department, et al., Defendants, Raymond Von Anderson, II, individually, and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Donald Eckert, individually and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Ryan McGee, individually and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Lloyd Nash, individually and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

378 F.3d 1274

Pamela GARRETT, individually, f.n.a. Eric William Irby, f.n.a. Valerie Nicole Irby, Plaintiff-Appellee, v. ATHENS-CLARKE COUNTY, GEORGIA, Athens-Clarke County Police Department, et al., Defendants Raymond Von Anderson, II, individually, and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Donald Eckert, individually and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Ryan McGee, individually and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Lloyd Nash, individually and in his official capacity as a Police Officer with the Athens-Clarke County Police Department, Defendants-Appellants.

No. 03-11264.

United States Court of Appeals, Eleventh Circuit.

July 30, 2004.

Michael C. Pruett, McLeod, Benton, Begnaud & Marshall, Watkinsville, GA, Andrew H. Marshall, McLeod, Benton, Begnaud & Marshall, LLP, Athens, GA, for Defendants-Appellants.

Eric Keith Krasle, Athens, Ga, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before EDMONDSON, Chief Judge, and BIRCH and FARRIS^*, Circuit Judges.

PER CURIAM:

Four police officers of the Athens-Clarke County, Georgia, Police Department — Raymond Von Anderson, Donald Eckert, Ryan McGee, and Lloyd Nash — appeal the denial of their motion for summary judgment on claims for excessive force under the Fourth Amendment made against them in their individual capacities. We reverse and remand for further proceedings.

Facts¹

At approximately 4:00 a.m. on 19 June 1997, Officer Cleveland², of the Franklin Springs Police Department, was on routine patrol when he noticed a red pick-up truck with a burned-out taillight. Eric William Irby was driving the truck; Roy C. Hutchinson was in the passenger seat. Cleveland began to follow the truck and noticed that the truck was weaving between lanes and having trouble negotiating curves in the roadway. At this point, Cleveland suspected the driver was under the influence. He followed the truck for three-quarters of a mile and tried to get to a lighted area to stop the truck. The truck slowed down as if to stop but did not. Cleveland then turned on his lights and siren. Cleveland signaled the truck to pull over and radioed the dispatcher to say he was making a traffic stop.

Irby did not pull over. Instead, Irby led Cleveland on a highspeed chase at speeds of up to 75 miles per hour. The chase eventually covered 30 miles and went through Franklin, Madison, and Athens-Clarke counties. Officers Buffington (of Royston Police Department), Phillips (of Franklin County Sheriff's Department), and Carr (of Madison County Sheriff's Department) joined in the chase.

The officers attempted to end the pursuit by using rolling roadblocks and other maneuvers, but Irby avoided all of those devices. Irby continued to weave over the road to prevent the officers from passing. At one point, Irby turned off Highway 29 onto Highway 174, lost control of his truck, hit a mailbox, and ran into a ditch. This incident did not end the chase. Irby drove on. Officer Phillips joined the chase as the vehicles were approaching him. Phillips got in front of the truck to attempt to slow it down. When he saw Irby try to turn onto another road, Phillips bumped him with the left front corner of the police car to get Irby to spin out, but that failed.

Irby continued to lead the chase until Officer Phillips again got in front of the truck. Phillips slowed down in an effort to get Irby to stop. Irby wove across the road in an attempt to get around the police car. Irby tried to pass Phillips on the right-hand side in a ditch but spun out and went backwards in the opposing lane of traffic before going back into the ditch on Highway 106. Irby's truck came up out of the ditch and rammed Phillips's patrol car. Ramming the patrol car knocked Irby's truck back down into the ditch.

In the ditch, the motor vehicle chase finally ended, around 5:00 a.m., in Athens-Clarke County. Officer Cleveland got out of his car and ran to the passenger side of the truck. He tried to open the door, but it was locked. Cleveland ordered the passenger Hutchinson to exit the truck, but Hutchinson protested and refused to comply. Cleveland reached inside the truck, unlocked the door, and pulled Hutchinson out. Cleveland struggled with and handcuffed Hutchinson.³

Non-defendant Officer Carr approached the driver's side of the truck, gun drawn. Irby was still attempting to get his truck out of the ditch, spinning the tires. The back tires were in a rut in the bottom of the ditch, and the truck lacked traction to come up the hill. Officer Carr told Irby five or six times to turn off the truck's motor. Irby finally complied. Carr then told Irby to get out of the truck, but Irby refused. After repeating his commands several times, Carr opened the driver's side door and ordered Irby to get out of the truck and to let Carr see Irby's hands to ensure Irby had no weapons. Irby neither freely showed his hands nor obeyed Carr's commands to get out of the truck.

Carr finally reached into the truck to pull Irby out. But Irby leaned backwards towards the passenger side, making it hard for Carr to grab his hands. After several tries, Carr was able to grab Irby and to pull him out of the truck, grabbing Irby's right wrist with his left hand while Carr kept his gun in his right hand close to his chest.

Irby started screaming as Carr pulled him out of the truck. (Carr describes Irby as screaming as if Irby were trying to pump himself up to get his adrenaline flowing.) Irby's left hand grabbed the slide on Carr's pistol, and Irby tried to pull Carr's pistol away from Carr, pushing the officer down the ditch with significant strength. Carr has said he felt overpowered. But Carr was finally able to twist his own arm and get the police weapon away from Irby. Carr, feeling his life was in danger, hit Irby on the top of the head with the butt of his gun one time.⁴ Carr then took a defensive stance and drew down on Irby. Irby did not freeze. Irby looked at Carr, screamed again (in the pumping-up manner similar to that previously described by Carr), and ran into the grassy field behind the truck.

When Irby ran up the hill, Carr saw Irby had no weapon in his hands; so Carr holstered his gun and pulled out his baton and chased after Irby. Carr yelled to Irby to stop and to get on the ground. Irby said, "You're not going to catch me, old man," and continued running. Irby would not stop; so Carr hit him in the upper backside of one of Irby's thighs. Carr hit Irby three times, before Irby fell to the ground. Carr dove on top of Irby to keep him from getting up. At this point, Officer Phillips showed up and helped Carr to handcuff Irby. Even after being handcuffed, Irby continued to resist. Irby yelled that the officers were going to have to kill him to take him.

As the officers got Irby to his feet to walk him out of the field, Irby kept kicking, swinging, yelling, and fighting, trying to push and drag the officers. Carr hit Irby on the back of the thigh again to get Irby to go down, to no avail. Officer Buffington came over to help. Buffington gave Phillips a second pair of handcuffs. One of the cuffs was put on Irby's wrist and Phillips pulled on the open cuff, trying to lead Irby away from the field. Phillips put his flashlight in the empty part of the second cuff to get more control, but Irby still resisted. Then, Irby kicked Officer Phillips in the chest; and both Irby and Phillips fell to the ground: Irby on top of Phillips. Then, the officers dove on top of Irby to hold him to the ground. Irby got control of Phillips's flashlight, but the officers stopped him from attacking with it. Irby continued his resistance with further fighting and kicking.

At this point, defendant officers Von Anderson, Eckert, McGee, and Nash arrived on the scene. Officer Eckert brought a nylon strap (hobble cord) he had with him;⁵ when Officer Eckert arrived on the scene, Officer Nash told Eckert that police officers were in the field, the suspect (Irby) was still fighting, and the officers were requesting leg restraints. Officer Eckert retrieved the hobble cord and brought the strap over to Irby's location and attempted to apply the restraint. Irby violently resisted by kicking. He bruised Officer Eckert in the process.

Officer Buffington then gave Irby a verbal warning to stop kicking or Irby would be sprayed with pepper spray ("OC spray"). Irby did not stop kicking. After attempting to get control over Irby's legs and failing because of Irby's kicks, Eckert told Buffington to go ahead and pepper spray Irby. Buffington applied the OC spray to Irby and helped Carr overpower Irby. Irby moaned and at this point became compliant. Without delay, the officers helped Eckert fetter Irby: his ankles were tied together, his hands were cuffed together behind his back, and his hands and feet were strapped together so that the distance between Irby's wrists and ankles was fewer than 12 inches, causing his body to be bowed.⁶ The officers carried Irby to a place behind Officer Cleveland's car. The car was running, and Irby was on his chest near its exhaust pipe. Von Anderson turned Irby's head to the side and made sure that Irby had a pulse (which he did). Irby did not complain about the OC spray, and no one decontaminated him with water.

An ambulance was immediately called and arrived minutes later. Paramedics found Irby fettered and lying in a prone position. The paramedics detected no pulse. Irby was taken to Athens Regional Medical Center where he was declared dead. Dr. Koponen, the Deputy Chief Medical Examiner at the Georgia Bureau of Investigations, performed an autopsy and listed the cause of death as "positional asphyxia." The autopsy said the injury to Irby's head was "very superficial." The report found methamphetamine and amphetamine in...