Toole v. City of Atlanta, 122619 FED11, 19-11729

Docket Nº:19-11729
Opinion Judge:PER CURIAM
Party Name:COREY TOOLE, Plaintiff - Appellee, v. CITY OF ATLANTA, et al., Defendants, OFFICER ZORN, Defendant-Appellant.
Judge Panel:Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
Case Date:December 26, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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COREY TOOLE, Plaintiff - Appellee,

v.

CITY OF ATLANTA, et al., Defendants,

OFFICER ZORN, Defendant-Appellant.

No. 19-11729

United States Court of Appeals, Eleventh Circuit

December 26, 2019

DO NOT PUBLISH

Appeal from the United States District Court No. 1:16-cv-02909-CAP for the Northern District of Georgia

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM

Aaron Zorn, a sergeant in the Atlanta Police Department, was sued by Corey Toole for violating his First and Fourth Amendment rights, after Zorn arrested Toole for disorderly conduct during a protest march. Zorn appeals the denial of his motion for summary judgment on these claims, specifically challenging the district court's determination that he was not entitled to qualified immunity. Reading the facts in the light most favorable to Toole-as we must-we affirm.

I

A

Toole was involved in a protest march through the streets of downtown Atlanta following a grand jury's decision not to indict the officer involved in the shooting of Michael Brown in Ferguson, Missouri. The Atlanta Police Department (APD) used a "leapfrogging" technique to block off the protesters' route, which involved rolling closures of streets as the protesters reached them-rather than shutting down the entire protest route all at once-to minimize the march's impact on traffic. Although many of the protesters were peaceful, some individuals engaged in violence and vandalism as the protest progressed-there's no evidence that Toole was involved in these activities. Worrying that the protesters might vandalize businesses or breach a highway, the APD ordered that the protesters should be dispersed. At the time this order was issued, Toole was near the intersection of Ivan Allen Boulevard and Peachtree Street. APD officers at the intersection directed the protesters to clear the street, and the officers-including Zorn-were instructed to arrest individuals who did not comply.

Toole heard officers ordering people to get out of the street, and he says that he got on the sidewalk immediately in response. He also claims that he heard other protesters saying that the APD was arresting people who were filming the event. Toole alleges that Zorn pulled him off of the sidewalk and into the street, throwing him to the ground and causing several injuries, including a chipped tooth-Zorn thereafter placed flex cuffs on Toole's wrists, arrested him, and escorted him to an APD paddy wagon. Zorn, by contrast, claims that Toole was not on the sidewalk when he was arrested, but rather that he was still in the street.

In the moments before his arrest, Toole had been recording a video of APD officers telling the protesters to disperse-he zoomed in on an Officer Turner, getting a shot of his name embroidered on his jacket and saying his name out loud. As an officer begins to grab him, Toole can be heard in the video protesting that he was on the sidewalk. Toole's phone continued to record during his arrest, and in a second video he can be heard repeating to officers that he had been on the sidewalk when he was arrested. His phone was returned to him before he entered the paddy wagon, and he recorded a brief video once inside documenting his facial injuries. Toole's videos do not clearly show whether he was on the sidewalk or the street when he was arrested, but they do show that many APD officers and vehicles were in the street, that he was seized after filming Officer Turner's name and face, and that he consistently contended that he had been on the sidewalk at the time of his arrest. Zorn says that he had no idea that Toole was filming on his phone at the time of his arrest.

Zorn cited Toole for disorderly conduct under Atlanta City Ordinance § 106-81(9), which states: It shall be unlawful for any person within the corporate limits of the city to engage in any conduct described in the following subsections; provided, however, that no person shall be convicted of any of the following sections upon a showing that the predominant intent of such conduct was to exercise a constitutional right to: . . .

(9) Stand or remain in or about any street, sidewalk, overpass or public way so as to impede the flow of vehicular or pedestrian traffic, and to fail to clear such street, sidewalk, overpass or public way after being ordered to do so by a police officer or other lawful authority . . . .

This citation was ultimately dismissed, and Toole was not prosecuted.

B

Toole sued the City of Atlanta and a group of APD employees in their individual capacities on a number of federal and state law claims. We limit our discussion here to the district court's decision to deny summary judgment on the two claims against Zorn at issue on...

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