Officer Jerk Would Rather Arrest People Than Move His Car, For Which He'll Pay

SKOP v. CITY OF ATLANTA, USCA-11 No. 06-14294, 2007 U.S.App. LEXIS 10341, on appeal from USDC-GAND, before USCJs Hull, Marcus, U.S. Court of International Trade Judge Barzilay by designation, opinion by Marcus, filed 03 May 2007.

LONG STORY SHORT: When a citizen reasonably requested an officer to move his car so that she could enter her own driveway, the officer then illegally arrested her without probable cause and would be denied pretrial qualified immunity. Binding in AL, FL, GA.

FACTS: Defendant, an Atlanta PD officer, was doing some paperwork and observing the scene while parked in his patrol car on a residential street where an afternoon thunderstorm had knocked down a large tree 110 feet away from him. At the other end of the block were some downed power lines. Plaintiff drove home from work and saw that the rear quarter of Defendant's patrol car was blocking her driveway. Defendant did not respond to her turn signal or horn. Plaintiff walked up to Defendant's window and tapped, whereupon Defendant lowered the window and yelled that Plaintiff was in a dangerous area. Defendant closed his window before Plaintiff had a chance to ask him to move his car a little bit. Plaintiff tapped again, with the same result. Defendant later testified that he told Plaintiff to park her car at the curb and walk to her house, but Plaintiff never heard him say that, and if he had said it, Plaintiff would have obeyed.

Plaintiff mouthed a request for Defendant's name and badge number, and at last Defendant jumped out of his patrol car. As Plaintiff explained that this was her home and Defendant only needed to move up a foot, Defendant threatened "Do you realize I can arrest you for obstruction?" and then did exactly that, as Plaintiff called for help from a neighbor. Defendant cuffed Plaintiff and installed her in the back of his patrol car. While he was awaiting a tow truck to impound Plaintiff's car (and refused to let a neighbor take custody of her car), Defendant kept yelling at Plaintiff, claiming she had obstructed him. Defendant also conferred with the shift sergeant, who suggested that Defendant also charge Plaintiff with refusing to obey an officer directing traffic. Another neighbor approached Defendant to ask about Plaintiff's abandoned car, and Defendant said "I may arrest you next." Defendant later admitted that he had the discretion to let Plaintiff go with a citation, but that he believed it was in his own self-interest to keep her under arrest for departmental liability reasons.

When the tow truck arrived, Defendant pulled his patrol car into Plaintiff's driveway--though he would later testify that he believed it was unsafe for Plaintiff to pull her own car into the same spot--and then took Plaintiff to jail, where she stayed until 3:00 in the morning. Charges were dropped over a year later, but Plaintiff lost her job because of the arrest record. Plaintiff suffered two herniated disks and a torn rotator cuff from being restrained during arrest. Atlanta PD investigated the incident and suspended Defendant for two days without pay, and entered a written reprimand against him for abusing his authority as to Plaintiff, and another written reprimand for discourtesy to the neighbor whom he had threatened to arrest.

PROCEDURE: Plaintiff sued Defendant, his supervisor, and Atlanta in U.S. District Court for the Northern District of Georgia per 42 U.S.C. § 1983 for arresting her without probable cause and for malicious prosecution, violating the Fourth Amendment. After discovery and mediation, Defendant moved for summary judgment on qualified immunity grounds, arguing that he had probable cause to arrest Plaintiff for obstruction and failure to obey. The trial court agreed, finding that Defendant did not know he was blocking Plaintiff's driveway, and also found no basis for any claim that Defendant and his supervisor had conspired to suggest the failure to obey charge in order to cover lack of probable cause for obstruction. QUALIFIED IMMUNITY GRANTED; case dismissed. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: The first step in qualified immunity analysis is to determine whether there was some constitutional violation. Arresting someone without probable cause is illegal, but not suable if the officer made a good faith mistake. The Georgia obstruction statute requires willful obstruction of a law enforcement officer in the lawful discharge of his official duties. Here, far from obstructing Defendant, Plaintiff was only asking Defendant to discharge his duties, to wit, assisting stranded motorists. Defendant's claim that Plaintiff's request to help, made politely and not while Defendant was in a threatening situation, amounted to obstruction was utterly devoid of merit and without foundation in the law. Plaintiff's criticism of Defendant was classic First Amendment protected speech and as a matter of law was not a crime. No probable cause or arguable probable cause existed to arrest Plaintiff for obstruction.

Failing to obey the order of an officer directing traffic was a matter still in factual dispute. Plaintiff said she never heard Defendant tell her to park her car and walk, which a jury could credit as evidence that Defendant in fact never told her any such thing but instead later concocted it as a defense. Defendant's claim that he arrested her to protect her from going down the block toward the downed power lines was inconsistent with his claim that he told her to park her car and walk down the block--toward the downed power lines. A reasonable jury could find that Defendant had no probable cause to arrest Plaintiff for failing to obey traffic directions.

The second part of qualified immunity analysis is whether a reasonable officer in Defendant's place would have recognized that his conduct was violating the Constitution. Arresting someone without arguable probable cause is illegal according to clearly established law. Also, such an arrest will support a claim for unconstitutional malicious prosecution in the Eleventh Circuit. Plaintiff was entitled to a jury, and the trial court erred in denying her the same. GRANT OF QUALIFIED IMMUNITY REVERSED.

EDITORIAL: Good gravy, this knucklehead is a dumbass, a smartass, and an asshole all at once! Boy, would I take this case on contingency. Black mark on the district judge, who either completely misread the record, or completely misread the record. Mention in Despatches to this poor lady's appellate lawyer, and I wish I knew who s/he was; too bad they didn't put counsel's names in the opinion. I'll find out later. Anyway, this is NOT why police officers are allowed to have power. Police are supposed to serve and protect, not snarl and snap at people to make them Respect Mah Authori-ta. This officer needs seeeerious anger management counseling, and if that doesn't work (and it probably won't) he needs to change careers. I hope he goes to a collection agency and cops that same attitude with one of MY clients, and then I'll get to sue him good.