Johnson v. Dekalb Cnty., CIVIL ACTION FILE NO. 1:17-CV-2601-TWT

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Writing for the Court: THOMAS W. THRASH, JR., United States District Judge
• Citation: 391 F.Supp.3d 1224
• Parties: Diane JOHNSON, et al., Plaintiffs, v. DEKALB COUNTY, GEORGIA, et al., Defendants.
• Docket Number: CIVIL ACTION FILE NO. 1:17-CV-2601-TWT
• Decision Date: 07 June 2019

391 F.Supp.3d 1224

Diane JOHNSON, et al., Plaintiffs,
v.
DEKALB COUNTY, GEORGIA, et al., Defendants.

CIVIL ACTION FILE NO. 1:17-CV-2601-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed June 7, 2019

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Jeffrey Filipovits, Filipovits Law, P.C., Zack Greenamyre, Mitchell & Shapiro, LLP, Atlanta, GA, for Plaintiffs.

Laura K. Johnson, Nikisha L. McDonald, Omari J. Crawford, Tiffany B. Harlow, DeKalb County Law Department, Decatur, GA, for Defendants.

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This is a civil rights action. It is before the Court on the Defendants' Motion for Summary Judgment [Doc. 42]. For the reasons set forth below, the Defendants' Motion for Summary Judgment [Doc. 42] is GRANTED in part and DENIED in part.

I. Background

This is an action for false arrest and malicious prosecution. On July 11, 2015, the Plaintiffs Diane and Andre Johnson, a married couple, went to Bigelow's Bar and Grill in DeKalb County to meet their friends, Charity and Anthony Chambers.¹ At some point during the night, Ms. Chambers had a disagreement with Shayla Johnson, Mr. Johnson's sister.² The Chambers then left the restaurant so that the dispute would not escalate, leaving before the Johnsons.³ They used a backdoor at the side of the restaurant to exit.⁴ Andre, Diane, and Shayla Johnson also left Bigelow's.⁵ They got into their car and began to exit the parking lot.⁶ However, as they were leaving the parking lot, they noticed that a police car had blocked the Chambers in their parking spot.⁷

The Defendant Officer Deron Fulton was working an extra job off-duty at Bigelow's that night.⁸ Officer Fulton was a police officer with the DeKalb County Police Department. While posted at the side door of Bigelow's, Officer Fulton observed the Chambers exit the restaurant.⁹ As the Chambers exited this side door, he overheard Ms. Chambers make a comment about Shayla Johnson to Mr. Chambers.¹⁰ Officer Fulton approached the Chambers to investigate the situation, and eventually decided to block their car in a parking spot with his patrol car.¹¹ After seeing the Chambers' car stopped by Officer Fulton, the Plaintiffs stopped their car, and Ms. Johnson exited the car out of concern for the Chambers.¹² Mr. Johnson and Shayla

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Johnson stayed in the car.¹³

Ms. Johnson then approached Officer Fulton.¹⁴ She identified herself as a friend of the Chambers, told him that they had just been in Bigelow's together, and asked what was happening.¹⁵ Officer Fulton told Ms. Johnson that Mr. Chambers had identified himself as a police officer, and that he was going to place Mr. Chambers under arrest.¹⁶ Ms. Johnson stated that she was going to record the arrest, returned to her car to retrieve her phone, and told Mr. Johnson what was occurring.¹⁷ The Plaintiffs then exited their car and returned to the area of the Chambers' arrest.¹⁸ Ms. Johnson attempted to film Officer Fulton on her phone.¹⁹ She asked him his name while she tried to film the encounter.²⁰ However, the Plaintiffs contend that Ms. Johnson did not interrupt Officer Fulton while he was speaking.²¹ They also contend that Ms. Johnson was standing eight feet away from Officer Fulton, and that she did not interfere with his investigation of the Chambers.²²

As Ms. Johnson tried to record Officer Fulton, he walked toward her.²³ He was visibly irritated by her questions and her filming.²⁴ She asked for his name again once he stood in front of her.²⁵ Officer Fulton refused to provide her with his name, and instead knocked the phone out of her hand.²⁶ After he knocked the phone out of her hand, Ms. Johnson stated "Is that what we're doing? We're knocking people's phones out of their hands for asking [for a] name?"²⁷ As Ms. Johnson picked her phone up off the ground, Officer Fulton ordered her to "get off his scene" and move to the front wall of Bigelow's.²⁸ While standing against the wall, Ms. Johnson again held her phone up to film, and asked Officer Fulton for his name.²⁹ Officer Fulton then said "that's it," and arrested Ms. Johnson.³⁰

Mr. Johnson also exited the car.³¹ He approached the scene and stood eight feet from Officer Fulton and the Chambers.³² As he approached Officer Fulton, Mr. Johnson had his hands raised.³³ He asked Officer Fulton what was happening.³⁴ Officer Fulton approached Mr. Johnson,

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pushed him, and told him to turn around.³⁵ Mr. Johnson immediately turned and began to walk away.³⁶ As he began to walk away, he said to Officer Fulton that he had "no right to put your hands on me."³⁷ This statement upset Officer Fulton.³⁸ Mr. Johnson continued to walk away, and said "this is some bullshit."³⁹ Officer Fulton then told Mr. Johnson that he could not use that word.⁴⁰ Mr. Johnson responded by stating "I can say whatever I want to say. It's called freedom of speech, motherfucker."⁴¹ He then continued to walk away.⁴² At this point, the Plaintiffs contend that Mr. Johnson was twenty feet away from Officer Fulton.⁴³ Officer Fulton and Officer John Bowe then ran up behind Mr. Johnson and placed him in handcuffs.⁴⁴ Mr. Johnson was then placed under arrest.⁴⁵

Officer Fulton later obtained arrest warrants against the Plaintiffs.⁴⁶ In the arrest warrant for Ms. Johnson, Officer Fulton charged her with misdemeanor obstruction in violation of O.C.G.A. § 16-10-24(a).⁴⁷ In his affidavit for this warrant, Officer Fulton swore that Ms. Johnson committed this offense "by continuously invading my private space, walking directly behind me while holding her cell phone near my head as I attempted to handcuff Mr. Andre Johnson and by ignoring my lawful order which instructed her to leave the scene and to record with her cell phone from a distance."⁴⁸ In the arrest warrant for Mr. Johnson, Officer Fulton charged him with disorderly conduct in violation of O.C.G.A. § 16-11-39.⁴⁹ In his affidavit seeking this warrant, Officer Fulton swore that Mr. Johnson acted "in a violent and tumultuous manner toward me ... which placed me in reasonable fear of my safety by refusing to leave the scene and by stating in a loud and boisterous manner which caused nearby patrons to take notice ‘man this some bullshit, Yall some bitches, It's called freedom of speech motherfuckers.’ "⁵⁰ The charges against the Plaintiffs were dismissed by the DeKalb Solicitor General's Office.

On July 11, 2017, the Plaintiffs filed this action. They assert claims for false arrest, retaliatory arrest, and malicious prosecution under 42 U.S.C. § 1983, as well as state law claims for false imprisonment, false arrest, malicious prosecution, and battery, against Officer Fulton and Officer Bowe. They also assert a claim for municipal liability under § 1983 against DeKalb County. Finally, they seek a court order declaring that the DeKalb County's disorderly conduct ordinance is unconstitutional

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and enjoining its enforcement. The Defendants now move for summary judgment.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.⁵¹ The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant.⁵² The party seeking summary judgment must first identify grounds to show the absence of a genuine issue of material fact.⁵³ The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists.⁵⁴ "A mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party."⁵⁵

III. Discussion

A. Officers Fulton and Bowe

The Defendants first argue that Officer Fulton and Officer Bowe are not liable under 42 U.S.C. § 1983 because they are entitled to qualified immunity.⁵⁶ Qualified immunity exempts an officer from section 1983 liability under certain circumstances.⁵⁷ To be entitled to qualified immunity in the Eleventh Circuit, an officer must show that he was acting within the scope of his discretionary authority at the time of the alleged wrongful acts.⁵⁸ Once the officer has proved that he was within the scope of his discretionary authority, a plaintiff must show that the officer violated "clearly established statutory or constitutional rights of which a reasonable person would have known."⁵⁹ In order to establish that a reasonable officer would have known of a right, a plaintiff must show development of law in a "concrete and factually defined context" such that a reasonable officer would know that his conduct violated federal law.⁶⁰ Two questions are central to the qualified immunity defense. First, the Court must determine whether there was a violation of a constitutional right.⁶¹ Second, the Court must then determine whether the right was clearly established.⁶² The Court will address this analysis as to each...