Tara Simone Brown v. Robert Gilmore, et al.

Plaintiff Tara Brown brought a 42 U.S.C. S 1983 action alleging
false arrest and use of excessive force in violation of the Fourth
Amendment during her arrest for violating the City of Myrtle Beach's
disorderly conduct ordinance. The district court denied the officers'
motion for summary judgment based on qualified immunity. Because
the record reveals no violation of Brown's Fourth Amendment rights,
we hold that the district court erred in denying summary judgment.
Any other ruling would undermine the ability of local governments
to maintain civil peace.

I.

Plaintiff Tara Brown went to visit her relatives in Myrtle Beach,
South Carolina during Memorial Day weekend 1998. That weekend
was the Atlantic Beach Biker Festival. The Festival draws numerous
bikers and others to Myrtle Beach. The City of Myrtle Beach requests
an extraordinary law enforcement presence for the weekend and the
State of South Carolina assigns personnel from various law enforce-
ment agencies to assist the City with crowd control and other issues.
Defendant Officer Pina was a patrol officer with the Myrtle Beach
Police Department at the time of the alleged incident. Defendant Officer Gilmore was a patrolman first class.

On the evening of May 23, 1998, Brown, accompanied by four
female friends and relatives, was driving her car in downtown Myrtle
Beach. At approximately 10:40 p.m., Brown was stopped in traffic
when a car backed into her vehicle and caused an accident. Officer
Pina and Officer Travis Norris (a Department of Natural Resources
officer), were on patrol in the area and arrived within minutes. Offi-
cers Pina and Norris first confirmed that no one needed immediate
medical attention and then remained at the accident site until a traffic
officer arrived to handle the accident. Officer Gilmore was on traffic
duty that evening and was dispatched to the accident at 11:19 p.m. He
arrived at the scene at 11:23.

Officer Gilmore and Brown, not surprisingly, describe the ensuing
events in different terms. As Officer Gilmore describes the incident,
the two cars were blocking the entire north lane of a "main artery into
the downtown area of Myrtle Beach." Officer Gilmore made sure that
no one was hurt and then obtained drivers licenses, registration and
insurance information from the two drivers. Thereafter, Officer Gil-
more asked both drivers to move their cars off the main street onto
a side street. The other driver immediately responded and moved her
car. Officer Gilmore claims that Brown ignored him and instead
asked Officer Pina why he could not handle the accident. Officer Gil-
more asked Brown two more times to move her car, but she continued
to ignore him. Officer Gilmore thus asked again, more loudly. Brown
began to yell and curse and stated "I'll move my car when I'm damn
good and ready." Officer Gilmore then asked Officer Pina to place
Brown under arrest for disorderly conduct. Officer Pina asked Brown
to turn around and put her hands behind her back. He then escorted
her to his patrol cruiser. Officer Pina handcuffed Brown and asked her
to get in the cruiser. Brown refused and put up such a scuffle that she
kicked off one of her sandals. Officer Pina went around to the other
side of the cruiser and pulled Brown through the back seat to get her
into the cruiser.

As Brown describes the incident, she was speaking with officers
Pina and Norris when Officer Gilmore came up behind her. She
turned around and noticed that he was yelling and waving his arms,
although she did not have a chance to focus on what he was saying.
As he drew near, she realized Officer Gilmore was talking to her.
Brown asked Officer Gilmore why he was yelling and if he could stop
yelling. Officer Gilmore responded by asking Officer Pina to "take
her to jail." Brown claims she did not understand what he was saying
and was not aware that he directed her to move her car. After her
arrest, Brown was upset. She was handcuffed by Officer Pina,
dragged into a cruiser, and was charged with violating the local disor-
derly conduct ordinance. Brown contends she kicked off her shoe to
avoid falling because it had become tangled while she was being
dragged by Officer Pina.

It is undisputed that Brown was booked on the disorderly conduct
charge and was released on bond shortly after her arrest. Specifically,
Brown was charged with violating the City of Myrtle Beach Ordi-
nance S 14-61 which provides that:

It shall be unlawful for any person to commit any breach of
the peace, conduct himself in a disorderly manner, be publi-
cally drunk or under the influence of intoxicating beverages,
be loud and boisterous or conduct himself in such a manner
as to disturb the peace and quiet of the public.

On May 23, 2000, Brown sued Officers Gilmore and Pina as well
as the City of Myrtle Beach based upon her May 23, 1998 arrest.
Brown alleged violations of 42 U.S.C. S 1983 and several state law
claims. The defendants denied the allegations and moved for sum-
mary judgment. The officers asserted that they had probable cause to
arrest Brown for disorderly conduct and that they were entitled to
qualified immunity as to the S 1983 claims.

On May 31, 2001, the district court issued an order denying the
defendants' motion for summary judgment on Brown's Fourth
Amendment claims.1 The court acknowledged that the excessive force
claim had not been clearly pled, but thought the officers had been
placed on notice of the claim from factual averments in the amended
complaint. The court then went on to consider whether the officers
had qualified immunity as to the false arrest claim. The court recog-
nized that if the facts of the case were undisputed, it would "apply[ ]
the clearly established law to determine whether a reasonable person
in the officers' position would have known that his actions violated
the right alleged by the plaintiff." However, since there were facts in
dispute, including whether Brown had in fact violated a direct order
from Officer Gilmore, the district court found that the case was inap-
propriate for summary judgment and denied the officers' motion on
the false arrest claim. The officers appeal.

II.

Qualified immunity is "an entitlement not to stand trial or face the
other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). The legal principles governing the analysis of qualified immu-
nity claims in this context are quite clear. As an initial matter, courts
must decide "whether a constitutional right would have been violated
on the facts alleged." Saucier v. Katz, 121 S. Ct. 2151, 2155 (2001);
see also Wilson v. Layne, 526 U.S. 603, 609 (1999); Anderson v.
Creighton, 483 U.S. 635, 638-41 (1987); Milstead v. Kibler, 243 F.3d
157, 161-62 (4th Cir. 2001). Next, assuming that the violation of the
right is established, courts must consider whether the right was clearly
established at the time such that it would be clear to an objectively
reasonable officer that his conduct violated that right. Saucier, 121
S. Ct. at 2156; see also Wilson, 526 U.S. at 609, 614-15; Anderson,
483 U.S. at 638-41; Milstead, 243 F.3d at 161-62.

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Click the case caption above for the full text of the Court's opinion.

We recognize that encounters such as this one come charged with
emotion. The parties generally arrive at court with different versions
of events, reflecting the different vantage points of those involved.
Without minimizing the dignitary concerns of those arrested and
without granting carte blanche to those making the arrest, the
Supreme Court has mandated that we respect the objectively reasonable conduct of those charged with the duty of maintaining public
peace. "[J]udged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight," the actions in
this case pass constitutional muster. Graham, 490 U.S. at 396. The
officers here did not have the option of delaying decision in order to
determine what a fact finder months or years later might make of the
situation. They had to get traffic moving on the spot. They did so with
a minimum of force, and they committed no constitutional infraction.

Reversed.

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