Moody v. Ferguson, Civ. A. No. 3:89-154-16.

• Decision Date: 20 November 1989
• Docket Number: Civ. A. No. 3:89-154-16.
• Citation: Moody v. Ferguson, 732 F.Supp. 627 (D. S.C. 1989)
• Court: U.S. District Court — District of South Carolina
• Parties: Joseph MOODY, Plaintiff, v. J.G. FERGUSON, III, Individually, Defendant.

732 F. Supp. 627

Joseph MOODY, Plaintiff, v. J.G. FERGUSON, III, Individually, Defendant.

Civ. A. No. 3:89-154-16.

United States District Court, D. South Carolina, Columbia Division.

November 20, 1989.

Evert Comer, Denmark, S.C. and Chris Mills, Columbia, S.C., for plaintiff.

Joseph C. Coleman, Columbia, S.C., for defendant.

HENDERSON, District Judge.

Plaintiff Joseph Moody ("Moody") brought this action seeking damages from defendant J.G. Ferguson, III ("Ferguson") for deprivation of his federal constitutional rights in violation of 42 U.S.C. § 1983 and for the state-law tort of assault.¹ Moody alleges Ferguson violated his fourth amendment rights by using unreasonable force following a traffic stop and by charging him with assault with intent to kill without probable cause. Moody further asserts the use of unreasonable force constitutes assault under South Carolina law. The case was tried before the Court² on September 7 and September 8, 1989. On the evidence presented, the Court holds Ferguson liable on all three claims and awards Moody actual damages of $15,000 and punitive damages of $10,000. In compliance with Federal Rule of Civil Procedure 52, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. The primary witnesses to the events giving rise to Moody's claims were Moody himself, his cousin O'Dell Archie ("Archie") and Ferguson. Ferguson's version of those events is in many respects inconsistent with that of the other two witnesses. Where material facts are in dispute, the Court has for the most part adopted the version of events related by Moody and Archie,³ finding their testimony generally more credible based on the witnesses' courtroom demeanor and on Ferguson's memory lapses at trial and inconsistent descriptions of the events at various times since they occurred.⁴

2. While driving west on South Carolina Highway 78 near Denmark, South Carolina, around 8:30 or 9:00 p.m. on Saturday, January 24, 1987, Ferguson, a trooper with the South Carolina Highway Patrol,⁵ passed a car driven by Moody heading east and another car, following Moody's, driven by Archie. According to Ferguson's testimony, the two cars were traveling "spit close." Ferguson made a "U-turn" to investigate and, while turning, observed Archie's car pull into the left lane as if to pass Moody's. At that point, according to Ferguson, Moody's car accelerated and the two were traveling side by side when they entered a no passing zone at the town of Denmark. Both Moody and Archie deny that Moody's car sped up or that Archie was still attempting to pass when they entered the no passing zone. In any event, Archie's car was traveling in front of Moody's as they turned into the town of Denmark. After turning, Archie looked behind and saw Ferguson's patrol car, with blue light flashing, passing Moody's car. Archie pulled off the street onto the right shoulder and Ferguson pulled up behind him in an intersection. When Moody drove up, Ferguson yelled for him to "pull over" and Moody stopped his car behind Ferguson's patrol car on the street.⁶ Ferguson then walked to the driver's side of Moody's car. After a brief exchange,⁷ Moody put his car in reverse, at which point Ferguson reached inside and turned the ignition off. Unable to remove the keys because the car was still in gear, Ferguson withdrew his hand and moved it toward his right side where his revolver was located.⁸ Moody then turned the ignition back on, shifted into reverse and stepped down hard on the accelerator.⁹ He backed the car the length of the block and around a corner, then shifted into drive. Ferguson ran after him with revolver drawn and, when Moody's car first began moving forward, fired the gun, hitting the rim of one of Moody's wheels.

3. After leaving the scene, Moody drove, "scared and shaking," to his girl-friend's house. After a couple of hours, he left in her car and went looking for Archie. He found Archie at a convenience store, where a Denmark police officer arrived and told Moody the highway patrol was looking for him. Ferguson then drove up to the store, arrested Moody and took him to the county jail in Bamberg, South Carolina. En route, Ferguson told Moody that nobody "gets away" from him and commented that black people believe they all look alike to whites. When they arrived at the county jail, Ferguson cited Moody for reckless driving.¹⁰ Bond was set at $200 and Moody was jailed.

4. On Sunday, January 25th, when Moody tried to make bail, he was told he could not be released until Monday because Ferguson had "put a hold" on his ticket. Later that day Archie went to visit Moody. When he emerged from the jail, he saw Ferguson in a patrol car parked behind his car and blocking its egress. Ferguson waved Archie over to the patrol car and told him to have a seat. Ferguson then asked Archie what he and "that little S.O. B." had been up to the night before and whether Moody was on drugs. When Archie said Moody had not used drugs, Ferguson responded Moody had to be on something to be "laughing and grinning." Ferguson then said he did not want Archie, only Moody, and that he would teach Moody "this is not a laughing matter."¹¹

4. On Monday morning Ferguson met with the local magistrate to obtain a warrant on a more serious charge against Moody. When the magistrate could not suggest a charge, Ferguson called the solicitor's office to ask what charge he could bring against Moody who had "tried to back over" him. He later received a call from the solicitor's office suggesting the charge of assault with intent to kill.¹²

6. On Monday, Moody was charged with assault with intent to kill and bond was set at $50,000. Unable to pay that bond, he remained incarcerated until March 2, 1987, when he was tried and convicted on the reckless driving charge. He was sentenced to thirty days in prison or a $200 fine, and he elected the thirty days, with credit for time already served. Following his conviction, Moody was returned to confinement to await trial on the assault with intent to kill charge. On March 9, 1987, the solicitor "nol prossed" the assault charge with leave to indict on a lesser offense. On March 10, Ferguson obtained a warrant for failure to stop for a blue light, bond was set at $1,000 and Moody was released. On May 11, 1987, Moody was tried on the new charge which was then dismissed on the ground of double jeopardy.

7. The Court finds the plaintiff suffered substantial injury as a result of the defendant's acts. He suffered a degree of fear and emotional distress when Ferguson shot at his car. In addition, because of the $50,000 bond set on the assault charge, he was unable to obtain his release from the time of the arrest on January 24, 1987, until the lesser charge was filed and lower bond set on March 10, 1987, a period of approximately six weeks. Before his incarceration, Moody was employed by a heating and air conditioning company and earned $280 per week, excluding overtime. During his six-week incarceration, the plaintiff was prevented from working and also suffered the customary privations of imprisonment including separation from his children, other family members and friends. During his absence, his employer replaced him with a new employee and Moody was unable to find other employment for two weeks following his release. In addition, while he was incarcerated, Moody's electricity and telephone service were disconnected for unpaid bills. Finally, shortly after his release Moody was evicted from his apartment for past due rent.

CONCLUSIONS OF LAW

1. The defendant is liable under 42 U.S.C. § 1983 for depriving the plaintiff of his fourth amendment right not to be subjected to excessive force.

"Where an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protection of the Fourth Amendment, which guarantees citizens the right `to be secure in their persons ... against unreasonable ... seizures' of the person." Graham v. Connor, ___ U.S. ___, ___, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443, 454 (1989). "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of `"the nature and quality of the intrusion on the individual's Fourth Amendment interests"' against the countervailing governmental interests at stake." Id. ____ U.S. at ____, 109 S.Ct. at 1871, 104 L.Ed.2d at 455 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699-1700, 85 L.Ed.2d 1 (1985) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983))). Assuming that Ferguson had an articulable suspicion to stop Moody, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and, further, that he had probable cause to arrest him for reckless driving when Moody sped away, the Court nevertheless finds Ferguson's use of his revolver was unreasonable under the fourth amendment standard set forth in Graham v. Connor.

In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the United States Supreme Court held that the use of deadly force is not reasonable under the fourth amendment "unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." 471 U.S. at 3, 105 S.Ct. at 1697 (emphasis added). Neither prong of this test has been met here. First, there was no reason for Ferguson to believe deadly force was necessary to prevent Moody from escaping. He had known Moody for years and should have anticipated little difficulty in locating him later, as in fact he did.¹³ More importantly, Ferguson had no reasonable ground to believe Moody posed a threat to anyone's physical safety. Moody was, to all appearances, neither armed nor dangerous. As Ferguson himself admitted, Moody's...