Opinion
No. 1:01-cv-182
October 16, 2003
MEMORANDUM
This suit arises out of an incident where police officers employed by the Sheriff's Department of Hamilton County, Tennessee, arrested plaintiff Christopher Cunningham ("Cunningham") for exceeding the speed limit while driving his automobile. The police searched Cunningham and his automobile incident to the arrest. Cunningham asserts federal civil rights claims under 42 U.S.C. § 1981 and 1983. He also has related tort claims under Tennessee law for false arrest, i.e. false imprisonment, and negligence per se.
Defendants move for summary judgment pursuant to FED. R. Civ. P. 56. [Court File No. 21], Cunningham opposes the motion arguing that there are genuine issues of material fact in dispute. In his response [Court File No. 29], Cunningham discusses the facts but does not bother to provide any meaningful legal analysis of his various federal and state causes of action.
After reviewing the record, the Court concludes that the defendants are entitled to summary judgment on all causes of action. The motion for summary judgment will be GRANTED, and the plaintiff's complaint will be DISMISSED WITH PREJUDICE in its entirety as to all defendants.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the defendants are entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court must view the facts in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to plaintiff Cunningham. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, determine the credibility of witnesses, or determine the truth of any factual matter genuinely in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249(1986).
Defendants bear the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, Cunningham must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough to defeat the summary judgment motion. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which an objective jury could reasonably find for Cunningham. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907. While the Court draws all reasonable factual inferences in the light most favorable to Cunningham, it may grant summary judgment if the record taken as a whole could not lead an objective, rational jury to find for Cunningham. Matsushita, 475 U.S. at 587; McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003). II. Facts
The Court has reviewed the record in the light most favorable to Cunningham and makes the following findings of fact. Cunningham is an African-American college student. His family resides in Lexington, Kentucky. At 3:30 a.m. on June 21, 2000, Cunningham was driving alone in a 1998 Ford Taurus automobile southbound on Interstate Highway 75 ("1-75") in Hamilton County, Tennessee. The Taurus had dark tinted windows. Cunningham was traveling from Kentucky to Florida A M University in Tallahassee, Florida, where he attends college.
Defendant Ken Sisk ("Sisk") is employed as a deputy sheriff by the Hamilton County Sheriff's Department. On June 21, 2000, at 3:30 a.m., Sisk was alone on duty and assigned to traffic patrol on 1-75 in Hamilton County. Sisk parked his marked police cruiser near mile marker 14 of 1-75 in a position where he could utilize a radar device to detect and monitor the speed of motor vehicles driving southbound on 1-75. According to Sisk, he "clocked" Cunningham's Taurus on radar as traveling 99 miles per hour in a 70 mile per hour zone.
Cunningham denies he was driving as fast as 99 miles per hour. However, Cunningham does not explicitly deny that he was exceeding the posted 70 mile per hour speed limit. In his affidavit, Cunningham merely says he was driving the same speed as other traffic on the highway without specifying his actual rate of speed. This is significant because Cunningham entered a guilty plea and was convicted in state court on a misdemeanor charge of speeding.
Cunningham was driving in the left lane of traffic on 1-75 when he looked into his rearview mirror and saw another automobile directly behind him. Cunningham proceeded to pass a slower truck that was in the right lane of traffic. After passing the truck, Cunningham pulled his Taurus into the right lane in front of the truck which then allowed the other automobile in the left lane to pass Cunningham.
After the other automobile passed by, Cunningham noticed that Sisk had activated the police cruiser's flashing blue lights indicating Sisk wanted him to stop. Cunningham could have stopped his Taurus on the highway's right shoulder or emergency lane. Instead, Cunningham chose to drive his Taurus into an unlighted rest area off 1-75. Cunningham contends he slowed down, put on the car's turn signal, and drove into the parking lot at the rest area. When Cunningham stopped, he remained seated in the Taurus wearing his seatbelt.
Sisk followed Cunningham into the rest area. Because Sisk was on patrol by himself and Cunningham had pulled into an unlighted rest area isolated from the main highway, Sisk was concerned for his own safety and the risk that one or more persons in the Taurus might attempt to flee. When Sisk initially stopped the Taurus for speeding, Sisk did not know how many persons might be inside the Taurus. Moreover, Sisk did not know whether the driver of the Taurus was African American or the member of another race. Sisk could not readily see in to the interior of the Taurus since the Taurus had dark tinted windows and the traffic stop occurred in the middle of the night at 3:30 a.m. The Taurus was parked in an unusual manner with one or both of its front tires resting on a sidewalk. Sisk observed that the Taurus had a "rocking motion" indicating some movement inside it.
Sisk called the police dispatcher for backup officers to assist him. While waiting for back-up, Sisk exited his police cruiser and cautiously approached the Taurus. Sisk used a flashlight and his handgun was drawn from its holster. Sisk pointed his handgun at Cunningham seated in the Taurus. Sisk ordered Cunningham to place his hands outside the open driver's side window of the Taurus so that Sisk could determine whether Cunningham was armed with a weapon. Sisk instructed Cunningham to remain seated inside the Taurus until another police officer could arrive to assist Sisk and provide additional security. Cunningham complied with these instructions. Sisk waited for backup with his handgun pointed in Cunningham's direction.
After approximately ten minutes elapsed, two backup police officers, defendants Bryan McDowell ("McDowell") and Charles Bryant ("Bryant"), arrived at the scene. McDowell and Bryant are employed as deputy sheriffs by the Hamilton County Sheriff's Department. McDowell is white (Caucasian) and Bryant is African American.
According to Cunningham, McDowell and Bryant exited their police cars and approached the Taurus on foot with their handguns drawn. Sisk then instructed Cunningham to get out of the Taurus. Cunningham moved his hands back inside the Taurus to unbuckle his seat belt. Movement of the hands caused Sisk to shout at Cunningham: "Stop! I'll shoot your ass." Sisk was standing close to the Taurus and Sisk pointed his handgun at Cunningham. Cunningham told Sisk it was necessary to unfasten the seatbelt before he could exit the Taurus.
It is estimated by Cunningham that fifteen minutes elapsed from the time he was initially stopped until he was allowed to exit the Taurus. It is alleged that Sisk, McDowell, and Bryant held Cunningham under arrest at gunpoint while they searched Cunningham's person including his pockets and wallet. It is not clear from Cunningham's version of events whether he is contending that the police conducted a full search of his body and clothing. Sisk and McDowell state that McDowell did a pat-down, "frisk" search on the outside of Cunningham's clothing to determine if Cunningham was carrying any weapons.
The police officers asked Cunningham whether he had any drugs inside the Taurus. Cunningham replied "No." Cunningham contends that McDowell searched the interior of the Taurus without Cunningham's consent or permission. McDowell did not find any illegal drugs, weapons, or other contraband inside the Taurus.
Sisk and McDowell have a slightly different version of the facts. Sisk and McDowell state that McDowell never got inside or physically entered the passenger compartment of the Taurus. Instead, Sisk and McDowell state that Sisk watched Cunningham while McDowell used his flashlight to perform a quick visual inspection through the windows of the Taurus. Defendants assert that McDowell merely stood outside the Taurus and shined his flashlight through the car windows to see whether there were any other persons or weapons visible in plain view inside the Taurus. Bryant states that when he arrived, no search was taking place inside the Taurus and Sisk was in the process of writing a traffic citation to Cunningham while McDowell stood nearby.
For purposes of ruling on the defendants' summary judgment motion, the Court accepts Cunningham's affidavit alleging that McDowell physically entered and searched inside the passenger compartment of the Taurus. Once McDowell finished searching the Taurus, the officers took Cunningham to the rear of the Taurus with their handguns still drawn. Sisk made a radio call to check the status of Cunningham's driver's license and the vehicle registration on the Taurus. The radio check did not yield any negative information, whereupon the officers bolstered their guns. Sisk issued a traffic citation to Cunningham for speeding at 99 miles per hour. Sisk did not display to Cunningham a computer printout or radar readout showing that the Taurus had been clocked going 99 miles per hour, but there is no proof that Cunningham ever requested to see one. Cunningham asked why Sisk felt it necessary to hold Cunningham so long at gunpoint. Sisk responded that he valued his life. Sisk indicated his actions were motivated by self-protection.
Cunningham was then free to leave and resume his trip to Florida. The entire incident lasted approximately 45 minutes. At no time did Sisk, McDowell, and Bryant make any racially derogatory or racially abusive statements, nor did they use racial epithets concerning Cunningham's race as an African American. Bryant, who is African American, states in his affidavit [Court File No. 25] that at no time did Bryant observe Sisk and McDowell act in a manner which could be described as racially motivated.
On February 20, 2001, the General Sessions Court of Hamilton County conducted a preliminary hearing at Cunningham's request to determine whether there was probable cause to proceed with a criminal prosecution. Sisk testified and was cross-examined by Cunningham's attorney. Cunningham was present but did not testify. The state judge determined there was probable cause to believe Cunningham committed the offense of speeding and ordered the matter bound over to the Hamilton County grand jury which returned an indictment on May 9, 2001.
Cunningham filed the instant suit in federal district court on June 20, 2001. On July 24, 2001, Cunningham entered a plea of guilty in the Criminal Court of Hamilton County to the misdemeanor offense of speeding. He was adjudged guilty and sentenced to one day in the county workhouse and probation for one month. Cunningham was also assessed a $10.00 fine and court costs.
III. Plaintiff's Causes of Action
Cunningham makes two claims under 42 U.S.C. § 1983. First, he claims that he was deprived of his right to be free from unreasonable search and seizure as guaranteed by the Fourth Amendment to the United States Constitution, made applicable to state actors under the Fourteenth Amendment. Cunningham contends he was falsely arrested and searched without probable cause. The second claim brought under § 1983 is that the defendants subjected Cunningham to racial profiling and selective enforcement of the law based on his race as an African American in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Cunningham amended his complaint to assert a claim under 42 U.S.C. § 1981 that the defendants' actions and the manner of the traffic stop were racially motivated. [Court File No. 15]. The § 1981 claim is closely intertwined factually with the selective enforcement of the law (racial profiling) claim asserted by Cunningham pursuant to 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment.
Cunningham also brings tort claims under Tennessee law for false arrest (false imprisonment) and negligence per se. A false arrest by a police officer is one means of committing a false imprisonment. In this case, the nature of the claims of false arrest and false imprisonment are the same since the alleged false imprisonment arises out of an alleged false arrest by the defendant police officers. Walker v. Schaeffer, 854 F.2d 138, 142 (6th Cir. 1988). The negligence per se claim is predicated on the contention that the defendants committed the criminal offense of official oppression in violation of TENN. CODE ANN. § 39-16-404.
IV. Analysis A. 42 U.S.C. § 1983
Cunningham brings suit under 42 U.S.C. § 1983 against Sisk, McDowell, and Bryant in their individual capacities and in their official capacities as deputy sheriffs employed by the Hamilton County Sheriff's Department. Cunningham sues defendant John Cupp ("Cupp") solely in Cupp's official capacity as the Sheriff of Hamilton County, Tennessee. By bringing suit against the defendants in their official capacities, Cunningham is in effect suing the governmental entity that employs them, Hamilton County. Hafer v. Melo, 502 U.S. 21, 23-25 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 68 (1989); Kentucky v. Graham, 473 U.S. 159, 165 (1985); Fox v. Van Oosterum, 176 F.3d 342, 347-48 (6th Cir. 1999); Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993).
The Hamilton County Sheriff's Department cannot be a defendant in this § 1983 action because it is not a "person" subject to being sued under 42 U.S.C. § 1983. The Sheriff s Department is not a suable entity under § 1983 separate from Hamilton County. See Cage v. Kent County Correctional Facility, 113 F.3d 1234 (Table, text at 1997 WL 225647 (6th Cir. May 1, 1997)); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Rhodes v. McDaniel, 945 F.2d 117, 120 (6th Cir. 1991); Damron v. Pfannes, 785 F. Supp. 644, 646 (E.D. Mich. 1992); Bradford v. Garner, 578 F. Supp. 382, 383 (E.D. Tenn. 1984); Williams v. Baxter, 536 F. Supp. 13, 16 (E.D. Tenn. 1981).
To prevail on a claim under 42 U.S.C. § 1983, Cunningham is required to prove two essential elements: (1) the defendants deprived Cunningham of a right, privilege, or immunity secured to him by the United States Constitution or other federal law; and (2) the defendants caused the deprivation while acting under color of state law. Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000).
There is no dispute that the defendants were acting under color of state law. The Court focuses its attention on the issue whether Cunningham can prove the defendants deprived him of a right guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution. To avoid summary judgment under FED. R. CIV. P. 56, Cunningham must show there is at least a genuine issue of material fact in dispute that should be decided at trial.
The Court concludes that Cunningham cannot prove he was deprived of a constitutional right secured to him under the Fourth and Fourteenth Amendments. Sisk, McDowell, and Bryant raise the affirmative defense of qualified immunity. It is unnecessary for the Court to reach and address the question of qualified immunity. The Court expresses no opinion whether these defendants are entitled to qualified immunity. 1. Fourth Amendment: Search and Seizure
The Fourth Amendment provides that the right of the people to be secure in their persons and effects against "unreasonable searches and seizures" shall not be violated. All arrests, whether formal or de facto, require probable cause. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). An arrest without probable cause constitutes an unreasonable seizure in violation of the Fourth Amendment. Ingram v. City of Columbus, 185 F.3d 579, 592-93 (6th Cir. 1999); Donovan v. Thames, 105 F.3d 291, 298 (6th Cir. 1997). A warrantless arrest does not violate the Fourth Amendment so long as there is probable cause to make the arrest. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); United States v. Dotson, 49 F.3d 227, 229 (6th Cir. 1995); Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988).
To prevail on his Fourth Amendment false arrest claim, Cunningham is required to prove he was arrested without probable cause. Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir. 1997). Cunningham cannot meet this burden because the issue of probable cause has previously been determined in the state court criminal proceedings. Cunningham is collaterally estopped from relitigating the issue of probable cause.
Cunningham contested and actually litigated the issue of probable cause at his preliminary hearing on February 20, 2001, in the General Sessions Court of Hamilton County. The state court found there was probable cause and bound the case over to the Hamilton County grand jury. Cunningham does not contend, and offers no proof to show, that he was deprived of a full and fair opportunity to contest the issue of probable cause at the preliminary hearing. Furthermore, Cunningham entered a plea of guilty and was convicted in state court on the misdemeanor charge of speeding. A judgment of conviction was entered against him.
A state court proceeding is accorded preclusive effect in a later § 1983 suit in federal court so long as the state court proceeding met minimal standards of due process. Stemler, 126 F.3d at 871 n. 13. Cunningham does not identify any reason to believe that he suffered a deprivation of due process in the state court criminal proceedings.
Issues decided in state court criminal proceedings may preclude relitigation of the same issues in a subsequent action brought in federal court under 42 U.S.C. § 1983. Allen v. McCurry, 449 U.S. 90, 94-96 (1980); Hinchman v. Moore, 312 F.3d 198, 202 (6th Cir. 2002); Donovan, 105 F.3d at 293. Application of the doctrine of collateral estoppel in this context is mandated by 28 U.S.C. § 1738 which provides that judicial proceedings of any court of any State "shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." See Donovan, 105 F.3d at 293. Generally, federal courts must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered. This federal district court looks to Tennessee law on collateral estoppel in determining what preclusive effect should be given the prior state court decision regarding Cunningham's criminal case. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75 (1984); Allen, 449 U.S. at 97; Hinchman, 312 F.3d at 202; Ingram, 185 F.3d at 593; Stemler, 126 F.3d at 871.
Tennessee law provides that once an issue has been actually or necessarily determined by a court of competent jurisdiction, the doctrine of collateral estoppel renders that determination conclusive on the parties and their privies in subsequent litigation, even when the claims or causes of action are different. Gibson v. Trant, 58 S.W.3d 103, 113 (Tenn. 2001); Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Beaty v. McGraw, 15 S.W.3d 819, 824 (Tenn.Ct.App. 1998). To invoke the Tennessee doctrine of collateral estoppel, the defendants must demonstrate that: (1) the factual or legal issue sought to be precluded is identical to the issue decided in the earlier suit; (2) the issue sought to be precluded was actually litigated and decided on its merits in the earlier suit; (3) the judgment in the earlier suit has become final; (4) the party [here Cunningham] against whom collateral estoppel is asserted was either a party or is in privity with a party to the earlier suit; and (5) the party [here Cunningham] against whom collateral estoppel is asserted had a full and fair opportunity in the earlier suit to litigate the issue now sought to be precluded. Beaty, 15 S.W.3d at 824-25. In applying defensive collateral estoppel in Tennessee, different parties are in privity if they stand in the same relationship to the subject matter of the litigation. Trinity Industries v. McKinnon Bridge Co., 77 S.W.3d 159, 185 (Tenn.Ct.App. 2001); Phillips v. General Motors, 669 S.W.2d 665, 669 (Tenn.Ct.App. 1984).
All the elements of the Tennessee doctrine of collateral estoppel are met here. The Tennessee doctrine of defensive collateral estoppel gives preclusive effect to the prior state-court determination that there was probable cause to arrest Cunningham for speeding, and to Cunningham's guilty plea and judgment of conviction on the speeding charge.
It is well settled in the Sixth Circuit that where a party has had a full and fair opportunity to litigate the probable cause issue in earlier state court proceedings, he is collaterally estopped from relitigating the same issue in a subsequent federal lawsuit. Griffin v. Eidson, 2001 WL 1299265, ** 2 (6th Cir. Aug. 10, 2001); Utley v. Bell, 187 F.3d 639 (Table, text in 1999 WL 617957 (6th Cir. Aug. 12, 1999)); Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir. 1998); Stemler, 126 F.3d at 871; Donovan, 105 F.3d at 297-98; Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987) ( abrogated on other grounds Albright v. Oliver, 510 U.S. 266 (1994)). Because the State of Tennessee afforded Cunningham a full and fair opportunity to contest probable cause at a preliminary hearing in the criminal proceeding, the finding of probable cause by the state judge forecloses relitigation of that finding in a subsequent action brought in federal district court under 42 U.S.C. § 1983. Smith, 136 F.3d at 1077; Coogan, 820 F.2d at 175. This federal court is bound by the state court determination that there was probable cause to arrest Cunningham.
Cunningham's guilty plea and judgment of conviction on the speeding charge in state court also collaterally estops him from claiming he was falsely arrested without probable cause in violation of the Fourth Amendment. Walker v. Schaeffer, 854 F.2d 138, 142-43 (6th Cir. 1988); White v. v. Tamlyn, 961 F. Supp. 1047, 1055 (E.D. Mich. 1997); see also Hemphill v. Haglund, 2002 WL 31074581 (6th Cir. Sept. 16, 2002); Mason v. Louisville Police Dept., 2001 WL 278185 (6th Cir. March 16, 2001); McCartt v. Keyes, 194 F.3d 1313 (Table, text in 1999 WL 1000829, ** 4-5 (6th Cir. Oct. 25, 1999); Sandul v. Larion, 52 F.3d 326 (Table, text in 1995 WL 216919 (6th Cir. April 11, 1995)).
Defensive collateral estoppel is proper under Tennessee law where Cunningham pleads guilty to the criminal charge and is convicted but then demands damages in civil litigation concerning precisely the same transaction by asserting that he did not commit the criminal act. Application of the doctrine of collateral estoppel prevents Cunningham from repudiating his guilty plea and attacking the validity of his state-court judgment of conviction. "Particularly galling is the situation where a criminal convicted on his own guilty plea seeks as plaintiff in a subsequent civil action to claim redress based on a repudiation of the confession. The effrontery, or as some might say it, chutzpah, is too much to take. There certainly should be an estoppel in such a case." Gibson, 58 S.W.3d at 114 (quoting Geoffrey C. Hazard, Revisiting the Second Restatement of Judgments; Issue Preclusion and Related Problems, 66 Cornell L. Rev. 564, 578 (1981)).
Another separate but related reason for dismissing Cunningham's Fourth Amendment claim of false arrest is that under common law principles, Cunningham's conviction on the misdemeanor speeding charge gives the defendants a complete defense to this cause of action brought under § 1983. Where police officers have made an arrest, the resulting conviction is a defense to a § 1983 action claiming the arrest was made without probable cause. Walker, 854 F.2d at 143; Cameron v. Fogarty, 806 F.2d 380, 387 (2nd Cir. 1986); White, 961 F. Supp. at 1055.
With regard to Cunningham's allegation of selective enforcement (racial profiling), the subjective intentions and motives of the arresting police officers are immaterial to a proper analysis of Cunningham's Fourth Amendment claim of false arrest without probable cause. The possibility of a discriminatory motive is irrelevant to the inquiry into the objective reasonableness of an arrest for purposes of the Fourth Amendment. Stemler, 126 F.3d at 872. Subjective intentions of police officers play no role in ordinary, probable-cause analysis under the Fourth Amendment. The subjective intentions and motives of the arresting police officers are immaterial to a proper analysis of a Fourth Amendment claim of false arrest without probable cause. Whren v. United States, 517 U.S. 806, 813 (1996); Scott v. United States, 436 U.S. 128, 137-38 (1978); United States v. Herbin, ___ F.3d ___, 2003 WL 22118350 (6th Cir. Sept 15, 2003); McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 517 (6th Cir. 2001); United States v. Ferguson, 8 F.3d 385, 391-92 (6th Cir. 1993); Criss, 867 F.2d at 262.
From beginning to end, the constitutionality of a traffic stop under the Fourth Amendment depends solely on the objectively reasonable justifications for the police officers' actions, not their subjective intentions. Herbin, 2003 WL 22118350; see also Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (per curiam) (custodial arrest for traffic violation and search incident to arrest do not violate the Fourth Amendment just because the police officer had an improper subjective motivation for making the traffic stop).
Cunningham's claim that he was subjected to an unreasonable search in violation of the Fourth Amendment fails. There was probable cause for the traffic stop and arrest. A lawful arrest justifies the contemporaneous search without a warrant of the person arrested and the passenger compartment of his automobile incident to the arrest. A search of the automobile incident to the arrest is lawful and does not violate the Fourth Amendment, even if the person arrested has been removed and separated from the automobile prior to the search. New York v. Belton, 453 U.S. 454, 457 (1981); United States v. Hudgins, 52 F.3d 115, 118-19 (6th Cir. 1995); United States v. Thomas, 11 F.3d 620, 628 (6th Cir. 1993); United States v. Mans, 999 F.2d 966, 968-69 (6th Cir. 1993); United States v. White, 871 F.2d 41, 44 (6th Cir. 1989).
2. Fourteenth Amendment Equal Protection Clause: Racial Profiling and Selective Enforcement
We now turn to Cunningham's claim of racial profiling, i.e. selective enforcement, brought under § 1983 As the Sixth Circuit explains in Futernick v. Sumpter Tp., 78 F.3d 1051, 1056 (6th Cir. 1996), there is no right under the United States Constitution to have the law go unenforced against you, even if you believe or can prove that you are not as culpable as some other persons who have gone unpunished. "The law does not need to be enforced everywhere to be legitimately enforced somewhere. . . ."
In our criminal justice system, the government retains broad discretion in deciding whom to arrest and prosecute. United States v. Armstrong, 517 U.S. 456, 464 (1996); Wayte v. United States, 470 U.S. 598, 607 (1985); Gardenhire, 205 F.3d at 319. There is a strong presumption that the state actors — Sisk, McDowell, and Bryant — properly discharged their official duties as police officers without intentional race discrimination directed against Cunningham. In the absence of clear evidence to the contrary, the Court must presume that the police officers properly discharged their duties. To overcome this presumption and make out a claim for selective law enforcement under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Cunningham is required to present clear evidence. The standard is a demanding one. Gardenhire, 205 F.3d at 319-20; Stemler, 126 F.3d at 873.
Although the government's discretion to enforce the criminal laws is broad, it is not unfettered. Selectivity in the enforcement of criminal laws is subject to constitutional restraint. Armstrong, 517 U.S. at 464; Gardenhire, 205 F.3d at 319. Sometimes the enforcement of an otherwise valid law can be a means of violating an individual's constitutional rights by invidious discrimination, e.g. race discrimination. To address this problem, the courts have developed the doctrine of selective enforcement. Selective enforcement of the criminal law based on intentional race discrimination is grounds for relief under 42 U.S.C. § 1983. Gardenhire, 205 F.3d at 318-19; Futernick, 78 F.3d at 1056-57.
The targeting of a criminal suspect solely by reference to his race violates the Equal Protection Clause of the Fourteenth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Farm Labor Organizing Comm. v. Ohio State Highway, 308 F.3d 523, 533-34 (6th Cir. 2002). The basic premise of the Equal Protection Clause is that all similarly situated persons should be treated alike by state actors. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).
Probable cause to arrest and search Cunningham under the Fourth Amendment does not dispose of his Fourteenth Amendment equal protection claim. The Equal Protection Clause of the Fourteenth Amendment provides citizens with a degree of protection from unequal treatment independent of the Fourth Amendment protection against unreasonable searches and seizures. Farm Labor, 308 F.3d at 533; United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997); Stemler, 126 F.3d at 872-73. The constitutional basis for objecting to selective enforcement and intentionally discriminatory application of the laws by state actors is the Equal Protection Clause of the Fourteenth Amendment, not the Fourth Amendment. Whren v. United States, 517 U.S. 806, 813 (1996); Farm Labor, 308 F.3d at 533. If Cunningham can show he was subjected to unequal treatment and selective enforcement of the law based on his race, that would be sufficient to demonstrate a violation of the Equal Protection Clause, even though there was probable cause for the arrest and search. Farm Labor, 308 F.3d at 533; Stemler, 126 F.3d at 873.
The subjective intentions and motives of the police officers are material to the equal protection claim alleging selective enforcement based on intentional race discrimination. Whren, 517 U.S. at 813; High v. Fuchs, 2003 WL 22017534, * 3 (6th Cir. Aug. 25, 2003); Farm Labor, 308 F.3d at 533-34. A plaintiff alleging selective enforcement of a facially neutral criminal law (here driving an automobile in excess of the posted speed limit) must demonstrate that the challenged law enforcement practice had both a discriminatory effect and it was motivated by a discriminatory purpose. Wayte, 470 U.S. at 608; Farm Labor, 308 F.3d at 533-34. Selective enforcement claims are judged according to ordinary equal protection standards which require a plaintiff to show both a discriminatory effect and a discriminatory purpose. Gardenhire, 205 F.3d at 318.
The Sixth Circuit has adopted a three-part test for determining if selective enforcement has occurred. Cunningham must show: (1) a government official singled Cunningham out as belonging to an identifiable group (African-American race) for criminal prosecution even though the same government official decided not to prosecute other similarly situated persons who do not belong to Cunningham's race; (2) the official initiated the prosecution of Cunningham with a discriminatory purpose in mind; and (3) the prosecution of Cunningham had a discriminatory effect upon the racial group to which he belongs. Gardenhire, 205 F.3d at 319; Stemler, 126 F.3d at 873; United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991).
With regard to the first and third elements, it is required that Cunningham make a prima facie showing that similarly situated persons outside his race were not arrested, searched, and/or given traffic citations for speeding under comparable circumstances. Gardenhire, 205 F.3d at 319-20; Farm Labor, 308 F.3d at 534; Stemler, 126 F.3d at 873. This Cunningham has failed to do. One way Cunningham might seek to demonstrate discriminatory effect is by identifying a similarly situated person of a different race who was subjected to more favorable treatment by the police compared to Cunningham. Farm Labor, 308 F.3d at 534. Cunningham has not produced any such proof of a discriminatory effect.
Discriminatory purpose may be shown by demonstrating that the decisionmaker selected or reaffirmed a particular course of action against Cunningham at least in part because of, not merely in spite of, its adverse effects upon African Americans as a race. Wayte, 470 U.S. at 610; Farm Labor, 308 F.3d at 534. Determining whether the police action against Cunningham was motivated by intentional race discrimination "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Farm Labor, 308 F.3d at 534 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266(1977)).
In short, Cunningham bears the burden of proving by clear direct, circumstantial, or statistical evidence that he was the target of selective enforcement of the laws based on his race. Farm Labor, 308 F.3d at 534; United States v. Saucedo, 226 F.3d 782, 790 (6th Cir. 2000). The Court finds that Cunningham has not come forward with sufficient direct, circumstantial, and statistical evidence showing there is a genuine issue of material fact in dispute on this issue. Cunningham cannot prove that the defendants' conduct had a discriminatory effect and that the defendants acted with a discriminatory purpose.
Cunningham's basic contention seems to be that the police had no logical reason to stop, arrest, and search him, so the police must have been motivated by racial animus. However, the police did have a logical reason for stopping, arresting, and searching Cunningham based on his speeding violation. Cunningham's selective enforcement claim is based only on very slight circumstantial evidence, namely that Cunningham is an African American and Sisk and McDowell are white. Cunningham has no direct or statistical evidence.
Cunningham wants the Court and a jury to infer that the conduct of Sisk and McDowell was motivated by race discrimination, but this is nothing more than rank speculation and conjecture. Mere speculation and conjecture are inadequate to prove a claim of selective enforcement under the Equal Protection Clause. The circumstantial evidence that Cunningham is a member of a different race from two of the police officers is insufficient. A rational jury could not reasonably infer from this mere scintilla of circumstantial evidence that Cunningham has proved a selective enforcement claim under the demanding standard of clear evidence. See Gardenhire, 205 F.3d at 320.
There is no probative evidence that Bryant and McDowell engaged in selective enforcement against Cunningham motivated by race discrimination Bryant and McDowell were not involved in the decision by Sisk to stop the speeding Taurus driven by Cunningham. Bryant and McDowell were backup officers who responded to Sisk's request for assistance after Sisk had already stopped the Taurus. Sisk was the arresting officer. Once they arrived on the scene in the rest area, Bryant and McDowell did not make any derogatory statements about Cunningham's race. Moreover, Bryant is himself an African American. No rational jury could find that Bryant had any racial animus against Cunningham.
The officers searched Cunningham's person, including his pockets and wallet. McDowell also searched inside the Taurus for drugs and weapons. These searches were properly conducted by the officers incident to a lawful arrest with probable cause. There is no clear evidence offered by Cunningham to show that the lawful arrest and searches amount to unconstitutional selective enforcement motivated by intentional race discrimination against Cunningham.
The Court is well aware that police officers who stop speeding motor vehicles in the middle of the night on interstate highways routinely search the drivers and vehicles for drugs and weapons, regardless of the driver's race. Cunningham offers no evidence to the contrary. There is no proof that Cunningham was subjected to disparate treatment in comparison with similarly situated of a different race. There is no proof that the defendants engaged in a pattern of race discrimination against African American automobile drivers concerning traffic stops for speeding, arrests, the issuance of traffic citations, and searches of the drivers and their vehicles.
When Sisk made his decision to stop Cunningham for driving in excess of the speed limit, Sisk did not engage in racial profiling or selective enforcement on the basis of race. Sisk did not know the race of the person who was driving the Taurus. The traffic stop occurred at 3:30 a.m. in a dark area and the Taurus had dark tinted windows. There is no proof that Sisk was able to see inside the speeding Taurus and determine that the driver, Cunningham, was an African American before Sisk made the decision to stop the Taurus.
When the Taurus stopped in the unlighted rest area, Sisk approached the Taurus and instructed the unknown driver to show his hands outside the driver's window. At the time Sisk initially walked up to the Taurus with his handgun drawn from its holster, Sisk did not know that the driver of the Taurus (Cunningham) was African American.
This leaves Cunningham with only the bare fact that he is an African American, and deputies Sisk and McDowell are white. This is simply not clear evidence to show that the actions of Sisk, McDowell, and/or Bryant were motivated by an intent to discriminate against Cunningham due to his race. Accordingly, the selective enforcement claim brought under § 1983 will be DISMISSED.
3. Hamilton County Not Liable Under 42 U.S.C. § 1983
There is an additional reason why the claims brought against Hamilton County under § 1983 must be dismissed. Cunningham has not presented any proof showing that Hamilton County is liable under § 1983 for the alleged misconduct of its employees, Sisk, McDowell and Bryant. Assuming arguendo that deputy sheriffs Sisk, McDowell, and Bryant violated Cunningham's constitutional rights as guaranteed by the Fourth and Fourteenth Amendments (which they did not), Cunningham has no proof that Hamilton County is liable for alleged constitutional violations committed by its employees and agents.
In his complaint [Court File No. 1, p. 4, Section VI], Cunningham avers that Sheriff Cupp is responsible for the proper supervision and policies of the Sheriff's Department, as well as the training and control of the behavior of his deputy sheriffs. Cunningham contends the Sheriff's Department did not have in place a formal policy prohibiting racial profiling, or, if such a policy did exist, it was not stressed and enforced among the deputy sheriffs so as to prevent selective enforcement of the law based on intentional race discrimination. The complaint further alleges that the informal non-enforcement of a policy within the Sheriff's Department prohibiting racial profiling is itself a policy or procedure under which Cunningham's constitutional rights were violated. The last sentence in section VI of the complaint [Court File No. 1, p. 4], states: "Allowing this to exist as well as policies under which the improper arrest and detention could take place are violations of Plaintiff's Civil Rights as guaranteed by 42 U.S.C. § 1983."
Cunningham does not offer any proof to support his pleading that the Hamilton County Sheriff's Department has a policy or custom of racial profiling. There is a dearth of evidence from Cunningham on the issues alleged in Section VI of his complaint regarding the liability of Hamilton County under § 1983. In the absence of any probative evidence showing there is at least a genuine issue of material fact in dispute, the Court can only conclude that Cunningham is unprepared and unable to prove that Hamilton County is liable under § 1983.
Cupp submits his affidavit [Court File No. 23]. Cupp states that the Sheriff's Department has adopted an official written manual of policies, rules, and procedures regarding the use offeree and firearms. Section 9.50 of the manual provides: "Weapons shall only be unholstered with intention of their use, based upon the circumstances or investigations of any felonious activity, such as a building search." Cupp says that because the safety of police officers and citizens is the foremost concern, there are circumstances in which an officer must unholster and handle his firearm if he perceives that the circumstances require use of a firearm. In addition to the formal written policies contained in the manual, the Sheriff's Department regularly conducts in-service training for patrol officers. The training includes instructions and admonitions regarding the use of firearms. Cunningham does not have any proof to dispute or refute Cupp's affidavit.
Hamilton County cannot be held vicariously liable pursuant to 42 U.S.C. § 1983 for constitutional torts committed by its employees and agents based on the doctrine of respondeat superior. There is no respondeat superior liability under § 1983 for governmental entities. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 387, 403 (1997); Collins v. Barker Heights, 503 U.S. 115, 121 (1992); Monell v. New York Department of Social Services, 436 U.S. 658, 694(1978); Gregory, 220 F.3d at 441; Fox, 176 F.3d at 348; Doe v. Claiborne County, Tenn., 103 F.3d 495, 507 (6th Cir. 1996). Hamilton County may not be sued under § 1983 solely on the basis that an injury has been inflicted by its police officers.
"Instead, it is when the execution of a government's policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. 658, 694 (1978); see also Brown, 520 U.S. at 403-04; Gregory, 220 F.3d at 441; Fox, 176 F.3d at 348; Soya v. City of ML Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Stemler, 126 F.3d at 865; Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir. 1994). Cunningham is required to demonstrate that Hamilton County, through its deliberate conduct, was the "moving force" behind the alleged deprivation of his federal constitutional rights and injury. Brown, 520 U.S. at 405; Gregory, 220 F.3d at 442.
Cunningham must also show there is a direct causal link between the policy or custom and the deprivation of his federal constitutional rights. Cunningham is required to prove that his particular injury was incurred because of the execution of the policy or custom. Brown, 520 U.S. at 405; Gregory, 220 F.3d at 442; Claiborne County, 103 F.3d at 508; Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993). This is necessary to avoid de facto respondeat superior liability which is explicitly prohibited by Monell. Claiborne County, 103 F.3d at 508.
A "custom" must "be so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691; Claiborne County, 103 F.3d at 507. It must reflect a course of action deliberately chosen from among various alternatives. Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); Claiborne County, 103 F.3d at 508.
There are several basic means by which Cunningham may seek to establish a government policy or custom for purposes of § 1983. First, there can be an official policy promulgated and formally adopted by the Hamilton County government's lawmakers with the intention of governing the future conduct of its employees and agents. Monell, 436 U.S. at 690. Second, there can be a pervasive custom or practice of which the county lawmakers either know or reasonably should know. Oklahoma City, 471 U.S. at 823-24. An act performed pursuant to a custom or practice that has not been formally approved by an appropriate government decisionmaker or policymaker may fairly subject Hamilton County to § 1983 liability on the theory that the custom or practice is so widespread and commonly accepted as to in effect have the force of law. Brown, 520 U.S. at 404; Monell, 436 U.S. at 690-91; Gregory, 220 F.3d at 441-42; Claiborne County, 103 F.3d at 507-08; Berry v. City of Detroit, 25 F.3d 1342, 1345(6th Cir. 1994). Third, there can be a single act taken by a county official who, as a matter of state law, has final policymaking authority with respect to the particular subject matter or area in which the action was taken. City of St. Louis v. Paprotnik, 485 U.S. 112, 127 (1988); Pembauer v. City of Cincinnati, 475 U.S. 469, 480-81 (1986).
Cunningham has no proof that any of these circumstances exist in his case, especially with regard to his allegation of an established policy or custom of racial profiling. There is no proof that the Hamilton County Sheriff's Department has a custom or policy that allows racial profiling and selective enforcement of the law based on intentional race discrimination. There is also no proof that the Hamilton County Sheriff's Department has a custom or policy allowing its police officers to make false arrests without probable cause, conduct searches in violation of federal law, and misuse firearms.
In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court recognized that a governmental entity can also be held liable under § 1983 for its failure to properly train and supervise its employees. But liability will exist for Hamilton County only if Cunningham can prove that the county's failure to train evidences deliberate indifference to the rights of its inhabitants such that the failure to train in effect constitutes a governmental custom or policy within the Monell framework. Id.; Stemler, 126 F.3d at 865; Berry, 25 F.3d at 1345. A showing of simple or even heightened negligence will not suffice. Deliberate indifference is a stringent standard of fault requiring proof that the county government disregarded a known or obvious consequence of its action. Brown, 520 U.S. at 410; Stemler, 126 F.3d at 865. A plaintiff ordinarily cannot demonstrate that a governmental entity acted with deliberate indifference without showing it was aware of prior unconstitutional actions of its employee and failed to respond. City of Canton, 489 U.S. at 390-91; Stemler, 126 F.3d at 865. Moreover, it is not enough for a plaintiff in a § 1983 case to merely show that his specific injury could have been prevented or avoided with more or better training. City of Canton, 489 U.S. at 390-91; Mayo v. Macomb County, 183 F.3d 554, 558 (6th Cir. 1999); Soya, 142 F.3d at 904; Lewis v. City of Irvine, Kentucky, 899 F.2d 451, 455 (6th Cir. 1990).
Cunningham has not come forward with any proof showing that Hamilton County and its Sheriff's Department failed to properly train and supervise its police officers. There is no proof that Hamilton County was deliberately indifferent to the federal constitutional rights of its inhabitants protected under the Fourth and Fourteenth Amendments. Cunningham offers no proof to demonstrate that Hamilton County acted with deliberate indifference because it was aware of prior unconstitutional actions of its employees and failed to respond.
Hamilton County is entitled to summary judgment to dismiss the § 1983 claims. Cunningham cannot prove that Hamilton County has liability under § 1983. B. 42 U.S.C. § 1981 42 U.S.C. § 1981 proscribes intentional discrimination based on race. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982); Chapman v. Higbee Co., 319 F.3d 825, 832-33 (6th Cir. 2003), petition for cert. filed 71 USLW 3725 (U.S. May 6, 2003). Section 1981(a) provides in relevant part that all persons within the jurisdiction of the United States "shall have the same right in every State . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." Section 1981(c) provides that these rights "are protected against impairment by nongovernmental discrimination and impairment under color of State law."
To establish a viable claim under the "equal benefits" and "like punishments" clauses in § 1981(a), Cunningham must prove three elements: (1) he is a member of a racial minority; (2) the defendant acted with intent to discriminate against Cunningham on the basis of Cunningham's race; and (3) the defendant's intentional race discrimination concerned one or more of the protected activities enumerated in § 1981(a). Morris v. Office Max, Inc., 89 F.3d 41 1, 413-14 (7th Cir. 1996); Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994); Mian v. Donaldson, Lufkin Jenrette Securities, 7 F.3d 1085, 1087 (2nd Cir. 1993); see also Chapman, 319 F.3d at 832-33 (explaining the meaning and scope of the "equal benefits" clause in § 1981(a)).
There is no dispute that Cunningham is a member of a racial minority. The Court concludes he cannot prove the second and third elements of his prima facie case.
Although § 1981 is most often invoked in the setting of race discrimination in the making and enforcing of contracts, some federal courts have held that the "equal benefits" and "like punishments" language in § 1981(a) extends to encompass racially motivated arrests and searches made in the absence of probable cause. Mahone v. Waddle, 564 F.2d 1018, 1028 (3rd Cir. 1977); Stewart v. Harrah's Illinois Corp., 2000 WL 988193, ** 16-17 (N.D. Ill. July 18, 2000); Conway v. City of Philadelphia, 1997 WL 129024 (E.D. Pa. March 20, 1997); Bradford v. LaMunyon, 1989 WL 73650, *2 (D. Kan. June 28, 1989); Scott v. Rieht, 690 F. Supp. 368, 371(E.D. Pa. 1988); Mendez v. Rutherford, 687 F. Supp. 412, 416 (N.D. Ill. 1988); Spriggs v. City of Chicago, 523 F. Supp. 138, 146-47 (N.D. Ill. 1981); See also Campbell v. Morrison, 97 F.3d 1451 (Table, text in 1996 WL 511579, **8 (6th Cir. Sept. 9, 1996)). Section 1981 may reach racially motivated arrests and searches where there is a lack of probable cause in violation of the Fourth Amendment.
This line of precedent does not support Cunningham's § 1981 claim. To the extent Cunningham asserts a racially-motivated false arrest claim under § 1981, such a claim must be dismissed since there was probable cause for the traffic stop and to arrest him for speeding. There was not a false arrest without probable cause. Cunningham is collaterally estopped from relitigating the issue of probable cause. Because Cunningham cannot prove a lack of probable cause for the traffic stop and his arrest, he cannot prevail upon a false arrest theory under 42 U.S.C. § 1981. Moreover, the police had a right to search inside the Taurus and to search Cunningham personally incident to the arrest. The bottom line is that Cunningham cannot prove that the defendants violated his Fourth Amendment right to be free from unreasonable search and seizure.
Based on the proof in the record, no rational jury could find that the traffic stop, arrest, and search of Cunningham was motivated by an intent to discriminate against Cunningham on account of his race. In Alexis v. McDonald's Restaurants of Massachusetts, 67 F.3d 341, 348-49 (1st Cir. 1995), the First Circuit decided that although there existed probable cause to arrest a plaintiff, a defendant police officer's comment made during the arrest which could be interpreted as racist was sufficient to withstand dismissal of the plaintiff's § 1981 claim on summary judgment. Alexis does not afford any relief to Cunningham. Alexis is distinguishable from the present case because there is no proof that Sisk, McDowell, and Bryant made any racially abusive or derogatory statements, or used racial epithets during the traffic stop, arrest, and searches involving Cunningham. Unlike Alexis, there is no direct evidence in the present case from which a rational jury could find that the actions of Sisk, McDowell, and Bryant were motivated by racial animus.
The § 1981 claim fails because Cunningham cannot prove, either through direct or circumstantial evidence, that the defendants intentionally discriminated against him due to his race. Cunningham only makes vague, conclusory allegations that he is victim of racial profiling and selective enforcement by the police officers without any clear, probative evidence of selective enforcement and intentional race discrimination. Proving intentional race discrimination under § 1981 involves a high threshold of proof. Chapman, 319 F.3d at 832-33.
As discussed supra with regard to the Fourteenth Amendment selective enforcement claim, Cunningham only presents the bare fact that he is an African American and defendants Sisk and McDowell are white. This is not enough circumstantial evidence to show that the actions of Sisk, McDowell, and/or Bryant were motivated by an intent to discriminate against Cunningham on account of his race. The facts are insufficient to sustain a § 1981 claim. Campbell, 1996 WL 511579, at **8) (The mere fact that plaintiff is black and defendants are white is insufficient to prove a § 1981 claim of intentional race discrimination by police officers.); McKenzie v. City of Milpitas, 738 F. Supp. 1293, 1301-02 (N.D. Cal. 1990). A rational jury could not reasonably infer that the defendants' actions were motivated by racial animus merely because Sisk and McDowell are white.
In sum, the traffic stop, arrest, and searches of Cunningham and his automobile did not violate the Fourth Amendment. There is no legal or factual basis for Cunningham to maintain a claim under § 1981 on the theory that he was falsely arrested without probable cause and subjected to an unconstitutional search. There is no direct evidence that the defendants engaged in intentional race discrimination. The only circumstantial evidence Cunningham offers to show intentional race discrimination is that he is African American and deputies Sisk and McDowell are white. This is insufficient to defeat the defendants' summary judgment motion to dismiss the § 1981 cause of action. Cunningham has failed to present adequate proof from which a rational jury could find that the defendants' conduct was motivated by intentional race discrimination. There are no genuine issues of material fact in dispute and the defendants are entitled to summary judgment as a matter of law.
Accordingly, the 42 U.S.C. § 1981 claim will be DISMISSED.
C. False Arrest and False Imprisonment Under Tennessee Law
Under Tennessee law, false imprisonment is the intentional restraint or detention of another without just cause. To prevail on his claim of false arrest/false imprisonment, Cunningham must prove two elements: (1) he was restrained or detained against his will by a defendant; and (2) the restraint or detention was unlawful. Bryant-Bruce v. Vanderbilt University, Inc., 974 F. Supp. 1127, 1145 (M.D. Tenn. 1997); Raines v. Shoney's, Inc., 909 F. Supp. 1070, 1082 (E.D. Tenn. 1995); Coffee v. Peterbuilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990); Roberts v. Essex Microtel Associates, 46 S.W.3d 205, 213 (Tenn.Ct.App. 2000); Newsom v. Thalhimer Brothers, Inc., 901 S.W.2d 365, 367-68 (Tenn.Ct.App. 1995); Brown v. SCO A Industries, Inc., 741 S.W.2d 916, 919-20 (Tenn.Ct.App. 1987). Cunningham is required to prove that he was arrested without probable cause. Id. at 920; Mclaughlin v. Smith, 412 S.W.2d 21, 26-27 (Tenn.Ct.App. 1966).
The tort claim for false arrest brought under Tennessee common law must be dismissed as to all defendants. Cunningham cannot prove that he was stopped, detained, and arrested by the defendants without probable cause. Cunningham is collaterally estopped from relitigating the issue of probable cause which was determined in the state-court criminal proceeding. The existence of probable cause is a complete defense to the false arrest claim.
Hamilton County has sovereign immunity from suit on this tort claim. The doctrine of sovereign immunity, acknowledged in Tennessee's common law for over a century, provides that suit may not be brought against a governmental entity unless it consents to be sued. Doyle v. Frost, 49 S.W.3d 853, 857 (Tenn. 2001); Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997); Fortenberry v. George, 2002 WL 1446675, *3 (Tenn.Ct.App. July 3, 2002).
The liability of Hamilton County for torts committed by its employees and agents is governed by the Tennessee Governmental Tort Liabilities Act ("GTLA"), TENN. CODE ANN. ¶¶ 29-20-101-29-20-407. In 1973, the General Assembly of Tennessee enacted GTLA which codifies the common law rule of sovereign immunity for counties, municipalities, and other governmental entities. See TENN. CODE ANN. § 29-20-201; Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 79 (Tenn. 2001). GTLA affirms that counties in Tennessee are immune from suit with certain narrow exceptions set forth in GTLA. Doyle, 49 S.W.3d at 857-58. The limited waiver of sovereign immunity in GTLA is in derogation of Tennessee common law and must be strictly construed. Limbaugh, 59 S.W.3d at 83-84; Doyle, 49 S.W.3d at 858; Ezell v. Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995); Fortenberry, 2002 WL 1446675, at *3.
Under GTLA, Hamilton County is generally subject to suit for civil claims sounding in negligence. Limbaugh, 59 S.W.3d at 79; Doyle, 49 S.W.3d at 858. TENN. CODE ANN. § 29-20-205(2) provides in pertinent part that immunity from suit of all governmental entities is removed (waived) for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of false imprisonment, false arrest, or civil rights. Hamilton County is immune from suit for claims listed in the exceptions in TENN. CODE ANN. § 29-20-205(2). TENN. CODE ANN. § 29-20-310(a) of the GTLA provides that before a governmental entity may be held liable in damages, a court must determine: (1) the acts of the employee were negligent and the proximate cause of the plaintiff's injury; (2) the employee was acting within the scope of his employment; and (3) none of the exceptions provided in § 29-20-205 apply.
This Court concludes that Hamilton County is immune from suit under GTLA on Cunningham's tort claim of false arrest or false imprisonment. False arrest and false imprisonment are intentional torts and do not sound in negligence. See Coffee, 795 S.W.2d at 660. TENN. CODE ANN. § 29-20-205(2) expressly provides that governmental entities are immune from suit for injuries "arising out of false arrest and false imprisonment. To the extent Cunningham asserts a tort claim against Hamilton County for false arrest or false imprisonment, said claim must also be dismissed on the ground that Hamilton County is immune from suit under GTLA. Fortenberry, 2002 WL 1446675, at *6.
The tort claim for false arrest or false imprisonment brought under Tennessee common law will be DISMISSED as to all defendants.
D. Negligence Per Se: Official Oppression TENN. CODE ANN. § 39-16-403
With regard to the cause of action for negligence per se, Cunningham contends the defendants committed official oppression in violation of TENN. CODE ANN. § 39-16-403. Official oppression can occur in two different ways. Section 39-16-403(a)(1) provides that a public servant acting under color of law or employment commits official oppression if he "[i]ntentionally subjects another to mistreatment or to arrest, detention, stop, frisk, halt, search seizure . . . when the public servant knows the conduct is unlawful." Section 39-16-403(a)(2) provides that a public servant acting under color of law or employment commits official oppression if he "[i]ntentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, when the public servant knows the conduct is unlawful."
The negligence per se claim fails and must be dismissed on summary judgment for several reasons. Cunningham cannot prove that the defendants intentionally subjected him to "mistreatment" knowing that their conduct was unlawful. There is no proof that Cunningham was subjected to mistreatment by the defendants that amounts to official oppression under § 39-16-403(a)(1). Based on the proof in the record, a rational jury could not find that the police officers took advantage of their position as employees of the Hamilton County Sheriff s Department to intentionally subject Cunningham to mistreatment and oppression knowing their conduct was illegal.
Cunningham appears to primarily be upset that the police officers unholstered their handguns and detained him at gunpoint. Based on the facts and circumstances in this case, no rational jury could find that the conduct of Sisk, McDowell, and Bryant constitutes intentional mistreatment and official oppression. When Cunningham stopped his automobile in the secluded and unlighted rest area at 3:30 a.m., it was reasonable for the police officers to exercise caution for their own safety and unholster their handguns while they investigated to determine whether Cunningham was armed with a weapon and whether there were any other passengers inside the Taurus.
Cunningham cannot prove under § 39-16-403(a)(1) that the defendants intentionally stopped, detained, arrested, and searched both him and his automobile knowing their conduct was unlawful. The proof shows that the defendants' conduct was lawful. Cunningham's claim of false arrest lacks merit. Cunningham is collaterally estopped from relitigating the issue whether there was probable cause for the traffic stop and arrest. Consequently, Cunningham cannot prove that the traffic stop and arrest were unlawful. The police had a right to search Cunningham's person and search inside his automobile incident to the lawful arrest. Moreover, Cunningham cannot prove through clear evidence that the traffic, stop, arrest, and searches were motivated by intentional race discrimination and constitute selective enforcement of the law in violation of the Equal Protection Clause in the Fourteenth Amendment. Because the defendants' conduct was lawful, there is no basis to maintain a viable claim for official oppression under § 39-16-403(a)(1).
Likewise, Cunningham cannot prove official oppression under § 39-16-403(a)(2). The same basic analysis applies. The traffic stop, arrest, and searches were entirely lawful. The police did not engage in selective enforcement of the law motivated by intentional race discrimination. Therefore, Cunningham cannot prove that the defendants intentionally denied or impeded him in the exercise and enjoyment of a right, privilege, power or immunity when the defendants knew their conduct was unlawful. In sum, Cunningham cannot establish official oppression because he prove that the defendants knowingly acted in an unlawful manner.
Accordingly, the negligence per se claim will be DISMISSED as to all defendants including Hamilton County.
There is an alternative reason why the negligence per se claim against Hamilton County must be dismissed. Hamilton County is immune from suit on the negligence per se claim under GTLA. TENN. CODE ANN. § 29-20-205(2) provides immunity from suit for injury proximately caused by a negligent act or omission of an employee of a governmental entity committed within the scope of employment if the injury "arises out of false arrest or civil rights. The negligence per se claim concerning alleged official oppression under § 39-16-403 is essentially based on two theories: (1) Cunningham was falsely arrested and searched without probable cause; and (2) the police violated Cunningham's federal civil rights by engaging in selective enforcement of the law motivated by an intent to discriminate against Cunningham due to his race as an African American. The official oppression theory flows from and depends upon the existence of a false arrest without probable cause and selective enforcement. If there is no false arrest and no selective enforcement, then the official oppression theory fails.
The contention that Sisk, McDowell, and Bryant committed official oppression "arises out of the allegations that they made a false arrest without probable cause, conducted an unlawful search, and engaged in racially discriminatory selective enforcement of the law. Pursuant to TENN. CODE ANN. § 29-20-205(2) of GTLA, Hamilton County is immune from suit for any and all negligence claims arising out of alleged false arrest and alleged violation of civil rights. The Court construes the term "civil rights" in § 29-20-205(2) to mean and include claims arising under federal civil rights laws and the United States Constitution.
E. No Individual Liability for Sheriff Cupp on State-Law Tort Claims
As the Court reads the complaint, Cunningham is suing Cupp solely in his official capacity as Sheriff of Hamilton County. Assuming arguendo that Cunningham is seeking to assert tort claims against Cupp in his individual capacity under Tennessee law, Cupp cannot be held individually liable for torts committed by his deputies. TENN. CODE ANN. § 8-8-301 provides: "No sheriff, whether elected or appointed, . . . shall be liable for any wrongs, injuries, losses, damages, or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by the sheriff, whether the deputy is acting by virtue of office, under color of office or otherwise."
V. Conclusion
The defendants' motion for summary judgment [Court File No. 21] will be GRANTED pursuant to FED. R. CIV. P. 56. The plaintiff's complaint will be DISMISSED WITH PREJUDICE in its entirety as to all causes of action and all defendants. A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the defendants' motion for summary judgment [Court File No. 21] is GRANTED pursuant to FED. R. CIV. P. 56. The plaintiff's complaint is DISMISSED WITH PREJUDICE. Costs of this action are assessed against the plaintiff. The Clerk of Court shall close the record in this case. This is a FINAL JUDGMENT.
SO ORDERED.