11^th Circuit Court of Appeals

DID OFFICERS USE EXCESSIVE FORCE IN REMOVING OCCUPANT FROM HER CAR AS SHE ATTEMPTED TO DRIVE IT OFF A TOW TRUCK?

Charles called 9-1-1 when she saw a tow truck driver attempting to repossess her car from a parking lot. Officers Robert Greene and Christopher Scuderi, with the Warner Robins Police Department, responded to the scene. Officer Greene’s bodycam footage documented Charles’ attempt to remove her vehicle from the tow truck while it was still hooked to the truck. The footage showed “the rear of the car bouncing as the tires spun[.]”

After being asked to exit the vehicle by the officers and refusing, Charles “placed the car in drive and floored the accelerator” in an attempt “to drive [the car] off the bed of the truck.” When the officers then attempted to remove her from the car, Charles resisted and struggled against the officers’ attempts to place her in handcuffs, resulting in Officer Greene sustaining a hand injury. Charles was subsequently tased by one of the officers when she persisted in resisting their efforts to remove her from the vehicle.

Charles brought suit against Officers Greene and Scuderi, among others, in the U.S. District Court for the Middle District of Georgia. As to Greene and Scuderi, Charles claimed: (1) that the officers unlawfully arrested her and used excessive force in doing so; and (2) the officers were unlawfully involved in the repossession of her vehicle.

The officers moved for summary judgment based on qualified immunity, and the district court granted the motion. On appeal to the Eleventh Circuit Court of Appeals (“11^th Circuit” or “Court”) Charles argued that the officers were not entitled to a qualified immunity defense because:

they violated her clearly established Fourth Amendment rights against unlawful arrest and excessive force by arresting her without probable cause, tasing her when she was not resisting arrest, pushing her against her car while wrenching her arm behind her back, and assisting with a repossession in violation of Eleventh Circuit law and Georgia repossession law.

Probable Cause, Reckless Conduct, and Obstruction

In determining whether the officers arrested Charles without probable cause, the Court cited 11^th Circuit precedent, which noted that “[p]robable cause exists when the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.”

Georgia law states that a person is guilty of misdemeanor reckless conduct when that person:

causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his or her act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation[.] (O.C.G.A. § 16-5-60 (b))

The Court reviewed Officer Greene’s bodycam footage and determined that Charles’ attempt to drive her vehicle off the tow truck “while it was still attached” jeopardized the safety of other people in the vicinity “because the tires were turning, and the car was bouncing[,]” and “[T]he vehicle could easily have broken free and hit the stores in front of it.” Therefore, the Court reasoned, “the district court was correct in finding that there was probable cause to arrest Charles for reckless conduct.”

The Court also found, as did the district court, that Officers Greene and Scuderi had probable cause to arrest Charles for obstruction “based on her conduct when the officers tried to remove her from the vehicle.” Georgia law states that a person commits felony obstruction when she “knowingly and willfully resists, obstructs, or opposes any law enforcement officer . . . in the lawful discharge of his or her official duties by offering or doing violence to the person of such officer [.]”

(O.C.G.A. § 16-10-24 (b))

 

The Court wrote:

 

Charles refused the officers’ requests to exit the vehicle, and when the officers tried to remove her, she placed the car in drive and floored the accelerator. She also resisted and struggled against the officers when they tried to place handcuffs on her. The interaction resulted in injury to Officer Greene’s hand.

Based on its analysis, the Court affirmed the district court’s ruling in favor of the officers “on Charles’ Fourth Amendment claim of unlawful arrest.”

Excessive Force Determination regarding Use of Taser on Charles

Next, in weighing whether the officers used excessive force while arresting Charles, the Court turned to 11^th Circuit precedent, which explained that “[a] particular use of force is unconstitutional if it is objectively unreasonable ‘under the facts and

circumstances of a specific case,’ judged from the perspective of a reasonable officer on the scene.”

After finding that, based on precedent, Charles’ being tased during the encounter was not “categorically unconstitutional”, the Court then evaluated whether the force used was excessive. Eleventh Circuit precedent from 2022 enumerated the following factors for a court to examine when deciding whether the amount of force used was excessive:

 

(1) the severity of the suspect’s crime,

(2) whether the suspect poses an immediate threat of harm to others, (3) whether the suspect is actively resisting arrest or trying to flee, (4) the need for the use of force, (5) the relationship between the need for force and the amount of force used, and (6) how much injury was inflicted.

The Court analyzed these factors as follows:

 

We agree with the district court’s analysis of the factors. Even interpreting all facts in favor of Charles***, her actions posed an immediate risk of harm to the people in the building in front of her, the tow truck driver, and the police officers. She refused the officers’ request to exit the vehicle after trying to drive it off the bed of the truck, requiring the police to use some force to remove her from the vehicle, and she sustained minor injuries. Therefore, even if Charles was tased, the tasing was not excessive and was not, therefore, unconstitutional.

 

***(Eleventh Circuit precedent requires that, in deciding whether a party/parties have met the burden required for a court (here, the district court) to grant summary judgment, the reviewing court (here, the 11^th Circuit) must “view the evidence in the light most favorable to the non-movant [i.e., Charles].”)

Excessive Force Determination regarding the “pushes, pulls and shoves” used to Remove Charles from her Vehicle

Eleventh Circuit precedent has determined that “[d]uring an arrest, ‘the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.’” In its review of the pushing, pulling, and shoving by the officers to remove Charles from the vehicle, the Court wrote:

 

We agree with the district court that the pushes, shoves, and pulls that the police utilized to remove Charles from the car, including pushing her against the car and moving her arm behind her back, were de minimis and therefore constitutional.

Finally, in determining whether the officers violated Georgia’s self-help repossession law, the Court distinguished the facts of the present case with the cases cited by Charles. The record shows that law enforcement officers responded to Charles’ 9-1-1 call and therefore they did not accompany the repossessor to the scene of the tow. Furthermore, the officers’ presence did not intimidate Charles because the record shows that she did everything she could to resist arrest. The Court held that the officers “did not assist with a self-help repossession in violation of ‘clearly established law.’” Charles v. Chambers et. al., No. 23-11636, 2024 WL 4266842

(11^th Cir., Sept. 23, 2024)

 

Georgia Court of Appeals

 

WHAT CONSTITUTES A SECOND-TIER ENCOUNTER?

On November 30, 2020, at approximately 02:30 a.m., Sergeant Smith and Officer Mitchell, with the Polk County Police Department, were patrolling with their K-9 Unit when they decided to stop at a convenience store to get something to drink and to make “consensual encounters” with customers.

Upon arrival at the convenience store, the officers observed a small passenger car with fogged windows and two occupants. The officers neither activated any lights or sirens on their patrol car nor drew their weapons. The officers approached the vehicle and Smith made contact with Shumate on the driver’s side of the vehicle. Shumate opened the door, advising Smith that he was trying to fix the vehicle’s broken door handle.

Smith then asked Shumate where he and his passenger had been before being stopped by the police. Shumate said that they had been at “the passenger’s mother’s home in Alabama[.]” Next, Smith asked for Shumate’s driver’s license, which he provided. Upon inspection of the license, Smith believed that the person in the photo was not Shumate. Although Sergeant Smith’s initial interaction with Shumate was voluntary, Smith testified “that once he recognized Shumate was not the person pictured in the driver’s license, Shumate was no longer free to leave or ignore his requests—though he did not say this to Shumate.” While Smith finished verifying the validity of the driver’s license Shumate produced,        Mitchell observed through the rear-passenger window that Shumate was holding a screwdriver.   Mitchell ordered Shumate to put down the screwdriver, and Shumate complied. Smith then ordered Shumate to step out of the vehicle. After exiting the car, Shumate was handcuffed (for officer safety) and escorted to the side of the convenience store. The officers then separately spoke to Shumate and his female passenger. Shumate and his passenger gave conflicting statements about their itinerary, after which the officers asked for consent to search the vehicle. Shumate declined.

Smith then conducted a K-9 free-air search of the vehicle, without Shumate’s consent, based on the conflicting statements given by Shumate and his passenger; the late hour; concern for officer safety; and the fact that the license Shumate gave Officer Smith showed a photo of someone other than Shumate. After “[t]he K-9 alerted to the front passenger tire-well of the car[,]” the officers searched inside the vehicle.

During the interior search, the officers found “a small amount of methamphetamine in the center console and THC cartridges in the glove box.” The K-9 then alerted once more, this time to the passenger tire-well. Officer Smith then removed the glove compartment, behind which a plastic bag of methamphetamine was located.

After the vehicle search, Officer Smith told Shumate what the officers found and once again confronted Shumate about the driver’s license he had furnished earlier. At this point, Shumate “provided his real name and date of birth before both he and Washington were arrested.”

Shumate was indicted on charges of trafficking methamphetamine, possessing methamphetamine with intent to distribute, possession of methamphetamine, possession of tools for the commission of a crime, and giving false information to a law-enforcement officer.

Shumate filed a motion to suppress his statements and the evidence during the vehicle search. After the trial court denied his motion, Shumate argued on appeal that:

• “the officers were not authorized to arrest him for the offense of giving a false name during a voluntary, first-tier encounter because they were not engaged in ‘official duties’ at that time.”
• “the officers unlawfully detained him to conduct a drug investigation, asserting that they lacked reasonable, articulable suspicion to warrant such a detention. In the alternative, [Shumate] argue[d] the officers unlawfully prolonged the ”

The United States Supreme Court recognizes three tiers of police-citizen encounters: “’(1) communication between police and citizens involving no coercion or detention, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.’”

The Court of Appeals affirmed the trial court’s finding that the officers were engaged in “official duties” during a first-tier encounter when they first interacted with Shumate and his passenger. Relevant caselaw noted “that an officer’s lawful official duties during a voluntary first-tier encounter include asking a person for identification.” Because the first-tier encounter was entirely voluntary, “Shumate could have declined or even completely ignored Smith’s request to see his driver’s license.” However, the Court explained, “it is not permissible to respond to such an encounter by providing a false name, address, or date of birth with the intent of misleading an officer who is lawfully engaged in the discharge of his official duties – e.g., asking for identification during a voluntary first-tier encounter.” Therefore, when Smith determined that the person depicted in the driver’s license photo was not Shumate, he “had an objective, particularized basis for further investigating why Shumate handed him what appeared to be another person’s driver’s license.”

Shumate argued that he was unlawfully detained while the officers conducted the drug investigation because the officers lacked reasonable, articulable suspicion to justify the detention. Shumate also argued, in the alternative, that “the officers unlawfully prolonged the detention.”

The Court considered the following factors to determine whether the officer’s words or conduct rose to the level of a second-tier encounter: (1) “whether there were several officers present, creating a threatening atmosphere; (2) whether any weapon was displayed; (3) whether any physical touching occurred; or (4) whether any language or tone of voice indicated that the defendant was compelled to comply with the officer’s request.”

The Court concluded that Shumate’s encounter with the officers shifted from a first-tier encounter to a second-tier encounter when Smith ordered him to exit his vehicle after seeing a screwdriver in Shumate’s hand. As a result, the Court of Appeals next analyzed “whether the officers had reasonable, articulable suspicion of criminal activity so as to warrant the detention.”

The Court found that there was reasonable, articulable suspicion for the officers to further investigate Shumate’s furnishing “a driver’s license that appeared to belong to someone else[.]” However, the Court noted, “that is not what the officers proceeded to investigate after removing Shumate from the car.” Rather, the Court stressed:

The record shows Smith never asked Shumate for his name, date of birth, or social-security number prior to asking for consent to search the vehicle during the detention. He also did not ask Washington [the female passenger] to identify Shumate or inquire as to why Shumate provided the wrong identification. Instead, at the point Washington was removed from the vehicle and handcuffed, the investigation had already turned into a drug investigation.

 

Officer Smith himself testified that “he was no longer investigating the false-identification issue at the time Shumate was removed from the vehicle, because he grabbed the screwdriver and ‘no reasonable person is going to try to harm a police officer over a fake ID or giving … the wrong ID.’”

Therefore, the Court concluded, “[B]ecause the officers lacked reasonable, articulable suspicion of a crime other than the provision of a false identification (which they did not investigate), the trial court abused its discretion by denying Shumate’s motion to suppress the evidence collected as a result of his detention.” Consequently, the Court of Appeals reversed the trial court’s denial of Shumate’s motion to suppress. Shumate v. State, No. A24A0862, 2024 WL 4248833 (Ga. Ct. App., Sept. 20, 2024).