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Jana Rodgers She needs to apologize to the citizen she had thrown out of the council meeting. Pending litigation perhaps?
Friday, August 17, 2018 at 6:23pm
Mike Nyden I guess anyone can sue over anything, but on what grounds?
Friday, August 17, 2018 at 6:48pm
Jana Rodgers 1st & 4th Amendment violations; GA Open Meetings violation. Lots of similarities between this situation and
Tisdale v. Gravitt, especially on the 4th Amendment piece:
"A `seizure' triggering the Fourth Amendment's protections occurs only when government actors have, `by means of physical force or show of authority,... in some way restrained the liberty of a citizen.'" Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Three types of encounters between police and citizens implicate the Fourth Amendment: "(1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests.... [A]n encounter that does not involve coercion or detention does not implicate Fourth Amendment scrutiny." Miller v. Harget, 458 F.3d 1251, 1257 (11th Cir.2006) (quoting Perez, 443 F.3d at 777) (internal quotation marks omitted). A show of authority can be a seizure if the subject yields to that authority. California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). "Whenever an officer restrains the freedom of a person to walk away, he has seized that person." West v. Davis, 767 F.3d 1063 (11th Cir.2014) (quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)) (internal modifications omitted). "If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." Miller, 458 F.3d at 1257 (quoting Perez, 443 F.3d at 777-78 (emphasis omitted)).
In determining whether a plaintiff has been seized, the Court considers the totality of the circumstances. Id. at 1258 (citing Perez, 443 F.3d at 778). "Certain circumstances might indicate a seizure, even where the person did not attempt to leave, including the display of a weapon by an officer or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. House, 684 F.3d 1173, 1199 (11th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1633, 185 L.Ed.2d 616 (U.S.2013) (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870) (internal quotations and modifications omitted).
The parties dispute whether Chief Tatum grabbed Plaintiff's wrist. (See Defs.' Resp. to Pl.'s SOMF, Dkt. [83-1] ¶ 9.) But even if Chief Tatum did not physically restrain Plaintiff, a show of authority may be sufficient to constitute a seizure. "Absent the use of physical force, a seizure requires both a show of authority and `submission to [that] assertion of authority.'" United States v. Dolomon, 569 Fed.Appx. 889 (11th Cir.2014) (quoting California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). At the City Council meeting, Police Chief Tatum was armed and in uniform when he approached Plaintiff. (Pl.'s SOMF, Dkt. [69-1] ¶ 9.) Chief Tatum told Plaintiff to leave the room and "escorted" her to the back of the room. (Id. ¶ 20; Defs.' SOMF, Dkt. [63-4] ¶ 25.) Accordingly, the inquiry is whether Chief Tatum's appearance, approach to, and contact with Plaintiff, combined with the directions given to Chief Tatum by Mayor Gravitt, would leave a reasonable person in Plaintiff's position feeling that she could terminate the encounter.
[51 F.Supp.3d 1397]
The Court finds that this inquiry presents a genuine issue of material fact and as such is not suitable for resolution by summary judgment. The Court now turns to the second prong of the Fourth Amendment inquiry: if the jury determines that Plaintiff was seized, whether that seizure was reasonable.
2. Reasonableness of Seizure
The Court next considers whether, if the jury determines that Plaintiff was in fact seized, such seizure was unreasonable and thus unconstitutional. "Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person, and the Fourth Amendment requires that the seizure be reasonable." U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (quoting Terry,392 U.S. at 16, 88 S.Ct. 1868) (internal quotations and modifications omitted). The level of Fourth Amendment scrutiny applied in the reasonableness inquiry depends on the category of the police-citizen encounter. U.S. v. Perkins, 348 F.3d 965, 969 (11th Cir.2003). Here, Plaintiff's encounter with Police Chief Tatum and Deputy Police Chief Cook falls within the second category: a brief seizure or investigatory detention that requires "an objective, reasonable suspicion of criminal activity." See Terry, 392 U.S. at 20, 88 S.Ct. 1868; U.S. v. Purcell, 236 F.3d 1274, 1277 (11th Cir.2001).
Defendants seem to concede an absence of reasonable suspicion. Police Chief Tatum testified that he believes Plaintiff was not violating any law at the time. Defendants cannot show that, even if Plaintiff was seized, the seizure was reasonable. Thus, Defendants are not entitled to summary judgment on the basis of the reasonableness of any seizure."
https://www.leagle.com/decision/infdco20141003950
Saturday, August 18, 2018 at 9:22am
