IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

RICHARD MARSHALL, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) CIVIL ACTION NO. 2:06-cv-701-ID-CSC 

 ) 

CHRIS WEST, in his individual capacity, ) 

LASHUN HUTSON, in his individual ) 

capacity, ) 

 ) 

 Defendants. ) 

REPLY BRIEF IN SUPPORT OF DEFENDANT CHRIS WEST’S 

MOTION FOR SUMMARY JUDGMENT

COMES NOW Lowndes County, Alabama, Deputy Sheriff Chris West, a Defendant in 

the above-referenced matter, and submits this Reply Brief in support of his Motion for Summary 

Judgment. 

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TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................................2

TABLE OF AUTHORITIES ............................................................................................4

INTRODUCTION..............................................................................................................6

REPLY FACTS..................................................................................................................6

I. LT. WEST’S ALLEGED “MISREPRESENTATIONS”.......................7

A. The Gun Is Relevant. .....................................................................7

B. Lt. West Has Not Claimed That The Plaintiff Threw A Baggy 

Containing Drugs Out Of The Window Of His Car...................7

C. The Plaintiff’s Remaining “Misrepresentations” Are Really 

Distinctions With No Difference.................................................10

II. REPLY TO THE PLAINTIFF’S STATEMENT OF FACTS.............13

A. The Plaintiff Has No Personal Knowledge Regarding the 

Initial Activation of the Defendant’s Portable Blue Light. ......13

B. Neither the Plaintiff Nor His Passenger Were Wearing Their 

Seatbelts. .......................................................................................15

C. The Plaintiff’s Labeling the Seatbelt Violation as a “Pretext” is 

Irrelevant. .....................................................................................16

ARGUMENT....................................................................................................................16

I. THE PLAINTIFF HAS FAILED TO MEET HIS BURDEN OF 

SHOWING THAT LT. WEST USED EXCESSIVE FORCE IN 

VIOLATION OF THE FOURTH AMENDMENT..............................17

A. The Force Used by Lt. West Was Reasonable Under Graham 

and Its Progeny. ...........................................................................17

1. The Crime the Plaintiff Was Suspected of Committing 

Was Severe. ........................................................................... 18

2. The Threat Posed by the Plaintiff Was Severe. ............... 19

3. The Plaintiff Fled and Resisted. ......................................... 21

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B. The Plaintiff’s Arguments Fails to Show Lt. West Used 

Excessive Force.............................................................................21

1. The Agents Identified Themselves..................................... 21

2. Warning Shots Do Not Constitute Deadly Force............. 22

3. The PIT Maneuver Was Reasonable Under the 

Circumstances.......................................................................24

4. The Alleged “Choke Hold” Was Reasonable................... 26

C. The Force Used by Lt. West Was De Minimis. .........................26

II. THE PLAINTIFF HAS FAILED TO PROVIDE THE COURT WITH 

CLEARLY ESTABLISHED LAW THAT PROVIDED LT. WEST 

WITH “FAIR WARNING” THAT HIS CONDUCT WAS 

UNLAWFUL. ...........................................................................................27

CONCLUSION ................................................................................................................28

CERTIFICATE OF SERVICE ......................................................................................29

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TABLE OF AUTHORITIES

Cases

Atwater v. City of Lago Vista, 532 U.S. 318 (2001).................................................................... 19 

Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005) ..................................................................... 16 

Graham v. Connor, 490 U.S. 386 (1989)...................................................................................... 17 

Greason v Kemp, 891 F.2d 829 (11th Cir. 1990) ......................................................................... 15 

Jenkins v. Talladega Bd. of Educ., 115 F.3d 821 (11th Cir. 1997) .............................................. 28 

Leslie v. Ingram, 786 F.2d 1533 (11th Cir. 1986) .................................................................. 18, 27 

Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1995)................................................................ 23 

Michigan v. Summers, 452 U.S. 692 (1981) .......................................................................... 20, 25 

Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000) ..................................................................... 26, 27 

Otey v. Marshall, 121 F.3d 1150 (8th Cir. 1997) ......................................................................... 23 

Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002)................................................................... 14 

Scott v. Harris, 127 S.Ct. 1769 (2007).............................................................................. 22, 25, 27 

Storck v. City of Coral Springs, 354 F.3d 1307 (11th Cir. 2003)................................................. 28 

U.S. v. Blake, 888 F.2d 795 (11th Cir. 1989)............................................................................... 22 

U.S. v. Jones, 239 F.3d 716 (5th Cir. 2001) ................................................................................. 12 

U.S. v. Taylor, 458 F.3d 1201 (11th Cir. 2006)............................................................................ 11 

U.S. v. Tobin, 923 F.2d 1506 (11th Cir. 1991)............................................................................. 12 

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)..................................................................... 26 

Whren v. U.S., 517 U.S. 806 (1996)............................................................................................. 16 

Statutes

Ala. Code § 13A-12-212............................................................................................................... 19 

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Ala. Code § 13A-12-231............................................................................................................... 19 

Ala. Code § 32-5A-192................................................................................................................. 19 

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INTRODUCTION

The Plaintiff has filed an opposition to Lt. West’s Motion for Summary Judgment. (Doc. 

38.) The Plaintiff’s Opposition fails to take issue with any of the Defendant’s arguments 

regarding his illegal traffic stop, false arrest, unlawful search, and malicious prosecution claims. 

(See generally Doc. 38.) Instead the Plaintiff focuses almost exclusively on alleged factual 

“misrepresentations” in Lt. West’s Motion for Summary Judgment and his excessive force claim. 

Id. With the Plaintiff apparently conceding his other claims and the legal arguments in his 

Opposition failing to save his excessive force claim, Lt. West is entitled to judgment in his favor 

as a matter of law. 

REPLY FACTS

The Plaintiff’s first line of attack in his Opposition is to accuse Lt. West of 

“misrepresentations of fact” and a “lack of candor”. (Doc. 38 at pp. 11, 12.) The alleged 

“misrepresentations” can be grouped into three areas. First, the Plaintiff amazingly asserts that 

the presence of a loaded gun in his car is irrelevant. Second, the Plaintiff falsely claims that Lt. 

West asserted as fact that he threw a baggie containing drugs out of his car during the chase. 

Third, the Plaintiff attempts to label a series of factual statements as “misrepresentations” based 

upon irrelevant “distinctions”. As will be made clear below, if there is a lack of candor 

regarding the facts in this case, it belongs to the Plaintiff and not Lt. West.1

 

1

 There is one factual issue that Lt. West concedes, albeit one that was not specifically addressed as a 

“misrepresentation” by the Plaintiff. In his brief, Lt. West stated there was a stop sign at the intersection of County 

Road 7 and Highway 21. (Doc. 32 at p. 10.) However, the Plaintiff did testify in his deposition that there was a 

yield sign at the intersection. (Marshall dep. at 51:12-17.) Accordingly, Lt. West withdraws, for purposes of 

summary judgment only, his argument that the Plaintiff ran a stop sign. 

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I. LT. WEST’S ALLEGED “MISREPRESENTATIONS”. 

A. The Gun Is Relevant. 

In what is probably the most baseless argument the Plaintiff makes in his brief, he claims 

that the loaded gun found in his car is not relevant. (Doc. 38 at p. 9.) Apparently, the Plaintiff 

has forgotten that he has made false arrest and malicious prosecution claims. (Doc. 16 at pp. 6-7, 

9-10.) More specifically, the Plaintiff appears to have forgotten that one of the charges he was 

allegedly illegally arrested and prosecuted for was “carrying a pistol without a license.” Id. at ¶ 

36. It is axiomatic that whether a gun was in the Plaintiff’s car is relevant, if not essential, in 

determining whether Lt. West had arguable probable cause to arrest the Plaintiff for and charge 

him with the crime of carrying a pistol without a license. Looked at from the perspective of the 

false arrest and malicious prosecution claims, the Plaintiff’s relevance argument borders on the 

absurd. 

More generally, the gun is relevant to every action taken by Lt. West after he became 

aware of its presence. The decision to search the Plaintiff, the decision to search the vehicle, the 

force used on the Plaintiff when he failed to comply with Lt. West’s commands after Lt. West 

saw the gun, are all directly impacted by the presence of the gun. Clearly, the Plaintiff would 

like to render the fact that he was illegally carrying a firearm under both state and federal law 

meaningless. However, in making the claims that he has made, the Plaintiff has given the gun 

particular relevance. He should not be allowed to sweep this inconvenient fact under the rug. 

B. Lt. West Has Not Claimed That The Plaintiff Threw A Baggy Containing 

Drugs Out Of The Window Of His Car. 

In his Opposition, the Plaintiff argues that the “Defendants’ allegations about Marshall 

throwing drug evidence out of his car window is not merely a disputed fact; it is a nonexistent 

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fact.” (Doc. 38 at p. 10.) The Plaintiff’s argument is correct in one respect, it is a “nonexistent 

fact” that Lt. West’s summary judgment facts include an averment that the Plaintiff threw drug 

evidence out of his car. Lt. West’s summary judgment submissions contain no such claim. 

The Plaintiff’s strawman argument is demonstrably false in two respects. First, Lt. West 

assumed for purposes of summary judgment that the Plaintiff did not throw a baggy out of the 

window. Second, Lt. West specifically informed the Court that there were no drugs in the baggy 

that was recovered after the pursuit. 

Lt. West expressly assumed, for purposes of summary judgment only, the truth of the 

Plaintiff’s testimony that he did not throw a baggy out of his car during the chase. Lt. West 

specifically informed the Court: 

Both Agents testified that they saw the Plaintiff throw the baggy. (West dep. at 

24:1-5; Hutson dep. at 22:20-23:5.) However, because the Plaintiff testified that 

all he threw out the window was a cigarette butt, Lt. West assumes for purposes 

of summary judgment only that he did not see the Plaintiff throw the baggy. 

Nonetheless, it remains undisputed that a baggy with a white powdery 

substance hit the agents’ windshield and that a baggy with some type of residue 

was later recovered near the area. 

(Doc. 32 at p. 31 n.11 (emphasis added).) Consequently, the Plaintiff’s claim that Lt. West’s 

summary judgment facts include his throwing a baggy out of the window is false. 

The Plaintiff also falsely claims that Lt. West asserted in his argument that the baggy 

contained illicit drugs. In fact, Lt. West specifically informed the Court: 

Approximately 50 to 75 yards out on Highway 21, a plastic baggy containing a 

white powder hit the Town Car’s windshield. (West dep. at 24:1-6; Hutson dep. 

at 22:20-23:5.) The Plaintiff testified that he did not throw a baggy out of his 

car, but may have thrown a cigarette out of his window. (Marshall dep. at 

74:15-75:2.) Lt. West made a mental note of the location because in his 

experience, drugs were kept in baggies like the one that hit his windshield and he 

believed that the baggy came from the Plaintiff’s car. (West dep. 24:4-9, 31:8-17; 

West dec. at ¶¶ 6-8.) 

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Lt. West later recovered a baggy containing residue near where his car was hit. 

Id. at 40:15-22. He submitted the baggy to the Department of Public Safety 

(hereinafter “DPS”) for fingerprint testing and later to the Department of Forensic 

Sciences (hereinafter “DFS”) for drug testing. Id. at 40:23-41:12, Ex. 1. 

However, on August 25, 2005, DPS returned the evidence with a letter indicating 

that no fingerprints were found. Id. at 41:4-8, Ex. 1, 8/25/05 Letter from DPS. 

DFS subsequently returned the evidence with a letter dated February 2, 2006, 

indicating that the baggy did not contain a controlled substance. Id. at 41:9-12, 

Ex. 1, 2/2/06 Certificate of Analysis from DFS. 

(Doc. 32 at pp. 10-11 (emphasis added).) 

What Lt. West stated as fact – and this is completely undisputed by any other facts in the 

record – is that a baggy containing a white powder hit his windshield during the chase. A baggy 

was later recovered near the same area where the baggy struck his car. The baggy was submitted 

to the Alabama Department of Forensic Sciences (hereinafter “DFS”) for testing. Testing 

revealed that the white powder in the baggy was not a controlled substance. All of these 

statements of fact are fully supported by the evidence in the record without contradiction. 

Tellingly, the Plaintiff has not cited the Court to any part of the record that would cast any doubt 

as to the existence of these facts. 

Also undisputed is Lt. West’s testimony regarding his belief – during the time of the 

chase – that the baggy came from the car and contained drug evidence. The Plaintiff may be 

entirely correct in his supposition (based on absolutely no evidence in the record) that the baggy 

was litter left over from someone’s lunch. However, given the information Lt. West had 

regarding the Plaintiff’s alleged drug activities, his years of experience as a narcotics agent, the 

Plaintiff’s (at the time) inexplicable flight, and the timing of the events, a reasonable officer 

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could reach the same conclusions Lt. West reached. A reasonable officer would not necessarily 

need to see the baggy thrown from the car he was chasing.2

C. The Plaintiff’s Remaining “Misrepresentations” Are Really Distinctions With 

No Difference. 

The Plaintiff has labeled six additional factual statements in Lt. West’s brief as 

“misrepresentations”. Each alleged “misrepresentation” will be addressed in its turn. 

1. Defendant West erroneously informs this Court that there is no 

evidence in the record that Marshall ever tried to tell Defendants he 

did not know they were police officers. (West Mem. Supp. Summ. J. 

10 footnote 4.) Marshall stated in his deposition, however, that he 

tried to tell West he thought they were trying to rob him. (Marshall 

Dep. 97:1-4.) 

The Plaintiff’s citation to his testimony does nothing to refute Lt. West’s statement. It is 

difficult to understand how the Plaintiff telling Lt. West that he thought he was trying to rob him 

equates to telling him, “I did not know you were a police officer.” This is particularly true given 

the Plaintiff’s claim that Lt. West took money from him. Despite knowing that Lt. West was a 

police officer at the time, the Plaintiff has, and continues, to claim that Lt. West robbed him. 

(Doc. 38 at pp. 6-7.) 

Even if “I thought you were trying to rob me” was synonymous with “I did not know you 

were a police officer”, the Plaintiff’s distinction is still irrelevant. The point at which the 

Plaintiff claims to have made this statement to Lt. West was after the pursuit was terminated, 

after the warning shot was fired, after the Plaintiff was put on the ground, after he was placed in 

handcuffs, and while he was being searched. The context of the statement in Lt. West’s brief 

 

2

 In his argument, the Plaintiff claims that Lt. West “testified that at the point the [alleged] baggie was thrown out 

the window there was no evidence that Marshall threw drugs out of his window or possessed drugs.” (Doc. 38 at p. 

10 citing West dep. 49:18-22.) Put in context, this is not what Lt. West said. The Plaintiff’s attorney had just 

finished questioning Lt. West about the lab results and was asking him about statements contained in the warrant 

deposition. (West dep. 44:11-49:16.) Put in context, “at this point” was clearly a reference to the time Lt. West 

submitted the deposition and not the time of the chase. 

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was the period of time encompassing the car chase. (Doc. 32 at p. 10.) There is no evidence in 

the record that the Plaintiff ever communicated any statement, no matter how tortured or remote, 

during the car chase, that he did not believe the Defendants were police officers. 

2. Defendant West incorrectly cites to his deposition as stating that both 

Marshall and Carmichael were not wearing seatbelts when the 

deposition only mentions Marshall. (West Mem. Supp. Summ. J. 8) 

(citing West Dep. 19:20.) 

The Plaintiff has provided the Court with only half of Lt. West’s citation to the record. 

The actual citation was “West dep. 19:20; Ex. 6 at p.1.” (Doc. 32 at p. 8 (emphasis added). As 

the Plaintiff well knows, Exhibit 6 to Lt. West’s deposition was his Statement Form (which was 

also attached as Exhibit G to Lt. West’s Evidentiary Materials). At page one, Lt. West’s 

statement reads “As we caught up with the vehicle I observed neither the driver or [sic] 

passenger were wearing seatbelts”. (West stmt. at p. 1 (emphasis added).) It is, to say the least, 

disingenuous for the Plaintiff to cite this as an example of a “misrepresentation” when he, in fact, 

knows it is not and has ignored half of the supporting citation. 

3. Defendant West states they received information that Marshall was 

selling drugs but avoids bringing a crucial fact to this Court’s 

attention. (West Mem. Supp. Summ. J. 8) West testified that the tip 

did not come from a reliable source and was insufficient to show 

probable cause. (West Dep. 17:20-23.) 

The Plaintiff’s “crucial fact” is irrelevant. Lt. West has never claimed he had a warrant. 

To the contrary, he expressly testified and noted in his summary judgment motion, that the 

information was used for purposes of deciding to do a “knock and talk”. (West dep. 14:1-20.) 

“Knock and talk” is a recognized exception to the warrant requirement that allows officers to 

walk up and knock on the door of “any man’s castle”, with the intent of asking him questions 

just like any other citizen may do. U.S. v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006). An 

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officer does not need probable cause or information from a reliable source to do a knock and 

talk. U.S. v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) (“Federal courts have recognized the 

‘knock and talk’ strategy as a reasonable investigative tool when officers seek to gain an 

occupant's consent to search or when officers reasonably suspect criminal activity.”) (citing U.S.

v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (en banc)). Consequently, the reliability of Lt. 

West’s source is irrelevant. 

4. Despite forensic tests and West’s testimony to the contrary, Defendant 

West erroneously states that a baggie with residue was subsequently 

found by Defendants. (West Mem. Supp. Summ. J. 26.) West 

testified that the lab tests prove there were neither drugs nor residue 

found in the baggie. (West Dep. 58:2-7.) 

Lt. West’s statement is neither “erroneous” nor a “misrepresentation”. The words used 

were chosen carefully. Lt. West did not say the baggy contained “drug residue”, as the Plaintiff 

implies. (Doc. 32 at p. 26.) 

5. Defendant West improperly states that Marshall admitted to fleeing 

from Defendants. (West Mem. Supp. Summ. J. 32). Marshall has not 

admitted to fleeing from Defendants; rather, he has admitted to not 

pulling over at the demand of two unknown and unidentified persons. 

The Plaintiff’s distinction here would be laughable were the situation not so serious. It is 

beyond dispute that the Defendants were the two “unknown and unidentified persons”, so that 

portion of the Plaintiff’s distinction is mere semantics.3

 Also semantical is the distinction the 

Plaintiff tries to make between “fleeing” and “not pulling over”. In the context of an automobile 

chase, the two are synonymous. 

 

3

 In addition, the portion of Lt. West’s brief cited by the Plaintiff does not state that the Plaintiff admitted fleeing 

from the Defendants, instead it specifically refers to the Plaintiff’s “admitted flight”, without referencing the 

Defendants at all. (Doc. 32 at p. 32.) 

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6. Defendant West states that West “conceded” there was a high speed 

chase when clearly this point is not his to concede. (West Mem. Supp. 

Summ. J. 32.) However, Defendant avoids mentioning that West 

testified that Marshall’s 1973 Nova could not run very fast. (West 

Dep. 21:22-23.) 

Lt. West actually testified that the Plaintiff’s car “doesn’t run that fast”. (West dep. 

21:22-23.) Later in his deposition, Plaintiff’s counsel specifically asked Lt. West if he had a 

sense that he was in a high speed chase and Lt. West responded in the affirmative. Id. at 48:20-

22. In fact, Plaintiff’s counsel specified that he wanted to “clarify” Lt. West’s testimony 

regarding the speed of the vehicles. Id. at 48:11-21. It is therefore difficult to see either how this 

statement is a “misrepresentation” or the point the Plaintiff is attempting to make in highlighting 

it for the Court. 

II. REPLY TO THE PLAINTIFF’S STATEMENT OF FACTS. 

A. The Plaintiff Has No Personal Knowledge Regarding the Initial Activation of 

the Defendant’s Portable Blue Light. 

 Without any evidence, the Plaintiff claims the Defendants did not activate their blue light 

until after the PIT. (Doc. 38 at p. 3 citing Marshall dep. 49:1-9.) The cited passage does not 

support the Plaintiff’s claim as it refers to the period of time after the Defendants had already 

pulled up alongside of the Plaintiff’s car and dropped back. (Marshall dep. 48:8-49:9.) The 

Plaintiff has no personal knowledge of what the Defendants did from the time they initially 

slammed on the brakes until they came up alongside his car on County Road 7. 

Q. Other than slamming on the brakes and veering off the road, did they do 

anything else unusual? 

A. That’s all I know is right then. 

Q. You say right then. Did they do anything else after that? 

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A. Yeah. Next thing I know is they were upside my car. 

Q. So from the time – Let me make sure I got your testimony right. From the 

time you saw them slam on brakes and veer off the road until they were 

next to you, you didn’t see them. Is that what you’re telling me? 

A. Yes, sir. 

(Marshall dep. 43:5-19.) The Plaintiff did not see what the Defendants were doing, and cannot 

tell this Court that the Defendants did not activate their portable blue light. Pace v. Capobianco, 

283 F.3d 1275, 1280-81 (11th Cir. 2002) (rejecting affidavit testimony that was not based upon 

personal knowledge and holding that such testimony could not establish a genuine issue of 

material fact on summary judgment). Consequently, all that remains is the Defendants’ 

testimony that they activated their light at the beginning of the pursuit. (West dep. 19:20-20:10; 

Hutson dep. 17:22-18:16.) 

 Moreover, the Plaintiff testified that at other points during the pursuit, he never did more 

than “glance” at the Defendants’ and/or their car. (Marshall dep. 43:5-19 (initial encounter), 

44:3-46:11(“brief glance” the first time the Defendants’ car pulled alongside), 48:21-49:14 

(another “quick glance” when the Defendants pulled back behind the Plaintiff up to Highway 

21), 54:6-11 (another “glance” when the Defendants pulled up alongside the Plaintiff on 

Highway 21), 59:23-60:14 (did not see the Defendants at all between the second time they fell 

behind the Plaintiff until the ramming began – the Plaintiff admitted he did not know what the 

Defendants were doing), 66:8-14 (another “glance” after the first ram, but could not see what the 

Defendants were doing).) By his own testimony, the Plaintiff does not have the requisite 

personal knowledge to testify that the Defendants did not activate their blue light. He is certainly 

entitled to an inference that he did not see it or, at best that it was simply not working. He is not, 

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however, entitled to an inference that the Defendants did not take the actions necessary to 

activate the light. 

B. Neither the Plaintiff Nor His Passenger Were Wearing Their Seatbelts. 

 The Plaintiff initially asserts that it was “unclear” whether he and his passenger were 

wearing their seatbelts. (Doc. 38 at p. 3 n. 3.) He goes on to state that he does not recall wearing 

his seatbelt, but his passenger recalls that both of them were wearing their seatbelts. Id. at n. 4 

citing Carmichael dep. 27:18-28:5.) The record is quite clear. By the Plaintiff’s own admission, 

neither he nor his passenger were wearing their seatbelts. The Plaintiff has specifically admitted 

in response to a request for production that he was not wearing his seatbelt. (RFA at ¶ 6.) The 

Plaintiff testified in his deposition that neither he nor his passenger were wearing their seatbelts 

that day. (Marshall dep. 28:22-29:2.) 

 The Plaintiff’s citation to Mr. Carmichael’s contrary testimony does not, even on 

summary judgment, entitle the Plaintiff to adopt Mr. Carmichael’s version of the facts. In short, 

the Plaintiff is not entitled to have this Court believe that he lied in his deposition. The Plaintiff 

is entitled to have the evidence construed to his benefit. Greason v Kemp, 891 F.2d 829, 831 

(11th Cir. 1990). However, the Eleventh Circuit has held that this standard does not mean the 

Plaintiff’s testimony can be discounted if it hurts him on summary judgment: 

As we said in Draper v. Reynolds, 369 F.3d 1270, 1272 (11th Cir.2004), and 

Rowe v. Ft. Lauderdale, 279 F.3d 1271, 1279 n.9 (11th Cir. 2002), we accept the 

nonmovant’s version of the events when reviewing a decision on summary 

judgment. When the nonmovant has testified to events, we do not (as urged by 

Plaintiffs’ counsel) pick and choose bits from other witnesses’ essentially 

incompatible accounts (in effect, declining to credit some of the nonmovant’s 

own testimony) and then string together those portions of the record to form the 

story that we deem most helpful to the nonmovant. Instead, when conflicts arise 

between the facts evidenced by the parties, we credit the nonmoving party’s 

version. Our duty to read the record in the nonmovant’s favor stops short of not 

crediting the nonmovant’s testimony in whole or part: the courts owe a 

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nonmovant no duty to disbelieve his sworn testimony which he chooses to 

submit for use in the case to be decided.

Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (footnote omitted, emphasis added). 

The Plaintiff testified that neither he nor Mr. Carmichael wore their seatbelts, therefore neither 

the Plaintiff nor Mr. Carmichael were wearing their seatbelts. 

C. The Plaintiff’s Labeling the Seatbelt Violation as a “Pretext” is Irrelevant. 

The Plaintiff asserts that the seatbelt violation observed by Lt. West was a pretext for 

questioning the Plaintiff about drugs. (Doc. 38 at p. 15.) The Plaintiff points to Lt. West’s 

testimony where he admitted this fact. Id. at n. 12 citing West dep. 56:17-57:2. However, the 

United States Supreme Court has held that whatever emotional value the Plaintiff may believe 

the word “pretext” has, it simply has no constitutional significance. Whren v. U.S., 517 U.S. 

806, 813 (1996) (unanimously holding ““[s]ubjective intentions play no role in ordinary, 

probable-cause Fourth Amendment analysis.”) 

ARGUMENT

 As noted previously, the Plaintiff’s legal argument in his brief appears to be solely 

oriented towards the excessive force claim. The Plaintiff likewise has not taken issue with Lt. 

West’s assertion that he acted within his discretionary authority for purposes of qualified 

immunity. (See generally Doc. 38.) It therefore appears that the Plaintiff has abandoned all of 

his claims except those for excessive force and has conceded that Lt. West was acting within his 

discretionary authority. Accordingly, the remainder of this brief will address the Plaintiff’s 

failure to meet his two burdens under the qualified immunity analysis. 

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I. THE PLAINTIFF HAS FAILED TO MEET HIS BURDEN OF SHOWING THAT 

LT. WEST USED EXCESSIVE FORCE IN VIOLATION OF THE FOURTH 

AMENDMENT. 

 The Plaintiff cast his excessive force argument as a comparison between his “reasonable” 

actions, the purportedly “unreasonable” actions of the Defendants. (Doc. 38 at pp. 12-21.) The 

problem for the Plaintiff is that half of his argument is irrelevant. For purposes of determining 

whether Lt. West used excessive force, the analysis turns not on whether the Plaintiff’s actions 

were reasonable, but whether Lt. West’s actions were reasonable. Graham v. Connor, 490 U.S. 

386, 395 (1989).4

 The parties appear to be in agreement that there are four discrete uses of force 

which must be analyzed: (1) the PIT maneuver; (2) the warning shot; (3) the foot sweep; and (4) 

the “full nelson choke”. 

 The record does not support a finding that any of these uses of force were constitutionally 

excessive. First, all of the Graham factors weigh in Lt. West’s favor. Second, none of the 

arguments contained in the Plaintiff’s Opposition support a finding of excessive force. Third, the 

lack of any injury whatsoever to the Plaintiff entitles Lt. West to judgment in his favor as a 

matter of law. 

A. The Force Used by Lt. West Was Reasonable Under Graham and Its 

Progeny. 

 As noted in Lt. West’s principle brief, the United States Supreme Court has established a 

non-exhaustive list of factors for courts to use in analyzing excessive force claims. The Supreme 

Court identified three common factors in Graham: (1) the severity of the crime involved; (2) the 

threat posed by the subject to the officers and others; and (3) whether the subject is resisting or 

fleeing. 490 U.S. at 394. The extent of any injury inflicted is another factor commonly 

 

4

 By this argument, Lt. West is by no means conceding the Plaintiff’s actions were reasonable. In the unlikely event 

this matter goes to trial, Lt. West reserves the right to challenge the reasonableness of the Plaintiff’s actions. 

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considered in the Eleventh Circuit. Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986). The 

force used by Lt. West was objectively reasonable when viewed through the lens of Graham and 

Leslie. 

1. The Crime the Plaintiff Was Suspected of Committing Was Severe.

 As an initial matter, the aim of the Plaintiff’s attack on the “misrepresentations” in Lt. 

West’s summary judgment materials seems to be a desperate attempt to avoid the obvious 

conclusion that the Plaintiff was suspected of committing a serious crime at the time of his 

encounter with Lt. West. The Plaintiff wants to cast this as no more than a mere seatbelt 

violation. (Doc. 38 at p. 15.) However, the aspersions of the Plaintiff notwithstanding, the 

uncontroverted facts in the evidence show that: 

1. The DTF had received information that the Plaintiff was selling drugs. 

2. The Plaintiff fled (or, in the Plaintiff’s parlance, “failed to pull over”) when the 

Agents attempted to stop them. 

3. During the chase, a baggy with a white powdery substance struck the Agents’ 

windshield. 

4. A baggy with residue was subsequently found near the location where the baggy 

hit the Agents’ windshield. 

5. In Lt. West’s experience, drug sellers and users carried drugs in baggies like the 

one that was recovered. 

 The Plaintiff has, in essence, admitted 1 and 2 (although he would word the factual 

statements differently). (Doc. 38 at pp. 11-12.) However, the arguments in his brief 

notwithstanding, the Plaintiff has not cited the Court to any evidence in the record that refutes 3-

5. (See generally Doc. 38.) These facts exist irrespective of whether the Court credits the 

Plaintiff’s testimony that he did not throw the baggy out of the window. Accordingly, for 

purposes of analyzing each use of force, the facts known to Lt. West include those that would 

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lead a reasonable officer to suspect that he was dealing with a felony drug suspect. Ala. Code §§ 

13A-12-212, 13A-12-231. 

 Additionally, no matter how fine a hair the Plaintiff seeks to split, his failure to “pull 

over”, when viewed from the perspective of what the Defendants knew at the time, constituted 

“Fleeing or Attempting to Elude a Police Officer.” Ala. Code § 32-5A-192. Section 192 

provides: 

Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to 

a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, 

when given a visual or audible signal to bring the vehicle to a stop, shall be guilty 

of a misdemeanor. The signal given by the police officer may be by hand, voice, 

emergency light or siren. 

(emphasis added). Although a misdemeanor, the crime of Fleeing or Attempting to Elude a 

Police Officer is punishable by up to six months in jail. Id.

 As a final note on the crimes involved, the Plaintiff has made an incorrect statement of 

law in his brief. Specifically, he asserts that a seatbelt violation is “a non-arrest matter for which 

only a traffic ticket could be issued.” (Doc. 38 at p. 15.) While this may be true as a matter of 

state law (assuming the Plaintiff signed his ticket), it is not true as a matter of federal law. 

Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001) (holding that it was not a violation of 

the Fourth Amendment to arrest motorist for a seat belt violation). 

2. The Threat Posed by the Plaintiff Was Severe.

 There can be little doubt that the Plaintiff presented a threat at varying levels throughout 

his encounter with the Defendants. The Plaintiff has attempted to minimize the threat he posed. 

In fact, he incredibly claims that he “did not pose a threat to anyone’s safety”. (Doc. 38 at p. 15.) 

At various times during his encounter with the Defendants, the Plaintiff posed a threat to the 

officers, the general public, Mr. Carmichael, and himself. 

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 There is no dispute that the Plaintiff failed to pull over for the Defendants at any time. 

Regardless of whether he saw a blue light or was able to identify the Defendants as law 

enforcement officers, he was still driving a two-ton vehicle at speeds that, by his own admission, 

reached somewhere around 55 miles per hour. (Marshall dep. 53:6-7) Practically, the Plaintiff’s 

flight was a danger to himself, his passenger, and anyone that he happened to encounter on the 

road. As a matter of law, taking into account the evidence of a possible drug felony, the Plaintiff 

was an obvious risk to engage in sudden violence against the officers. Michigan v. Summers, 

452 U.S. 692, 703 (1981). 

 The risk posed by the Plaintiff was increased exponentially by the Plaintiff’s behavior 

after the PIT. The Plaintiff has admitted that when he exited his car after the PIT, he knew the 

Defendants were law enforcement officers. Nonetheless, he refused to obey Lt. West’s 

commands even with guns pointed at him. This level of near suicidal refusal under the 

circumstances increased the danger to both his passenger and himself. Having had to PIT the 

Plaintiff to stop him, and now confronting a belligerent and uncooperative narcotics suspect, a 

reasonable officer would have perceived the Plaintiff to be a grave threat. 

 After the Plaintiff was taken down, Lt. West saw the gun. Now, in addition to a 

belligerent and uncooperative narcotics suspect, Lt. West had to deal with the possibility that the 

Plaintiff was armed. Even with handcuffs on, the Plaintiff could have attempted to obtain 

another weapon that Lt. West had not yet discovered. Given the Plaintiff’s continued 

belligerence and uncooperative attitude, a reasonable officer could have continued viewing the 

Plaintiff as a threat. 

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3. The Plaintiff Fled and Resisted.

 This case involved an automobile pursuit. There is simply no way for the Plaintiff to 

deny the fact that from the Defendants’ perspective – the only perspective that is relevant for 

purposes of Graham – they were pursuing a fleeing suspect. The Plaintiff also refused verbal 

commands from Lt. West and refused to get in his vehicle when ordered to do so. The evidence, 

therefore, indisputably shows that the Plaintiff fled and resisted. 

B. The Plaintiff’s Arguments Fails to Show Lt. West Used Excessive Force. 

 In his Opposition, the Plaintiff has proffered four arguments as to why the force used by 

Lt. West was excessive. First, he claims that the Defendants did not do anything to identify 

themselves as police officers. (Doc. 38 at p. 15.) Second, the Plaintiff argues that firing a 

warning shot is deadly force. Id. at pp. 16-17. Third, the Plaintiff asserts that the PIT was 

inappropriate for a mere seat belt violation. Finally, using a wholly inapplicable case, the 

Plaintiff argues that the force used by Lt. West to get the Plaintiff into the back of the car was 

excessive. None of these arguments save the Plaintiff’s excessive force claims. 

1. The Agents Identified Themselves.

 The Plaintiff’s initial argument is that the Defendants did not “adequately identify 

themselves” as police officers. (Doc. 38 at p. 15.) As noted in the statement of facts, the 

Defendants did activate their blue light, and the Plaintiff does not have the requisite personal 

knowledge to claim otherwise. However, there is another crucial fact left out of the Plaintiff’s 

analysis – both Lt. West and Agent Hutson tried to show the Plaintiff their badges during the 

pursuit. (West dep. 21:21-22:9 (describing badge as “a pretty good size badge”), 23:19-24:15; 

Hutson dep. 19:1-9, 19:22-20:13.) The Plaintiff has never testified that the Defendants did not 

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show him their badges during the pursuit. (See generally Marshall dep.) This is no doubt due to 

his only casting “glances” at the Defendants. (Marshall dep. at 43:11-46:11 (first attempt to get 

the Plaintiff to pull over), 52:23-56:23 (second attempt).) Consequently, the undisputed 

evidence in the record shows that the Agents showed the Plaintiff their badges but, for whatever 

reason, the Plaintiff did not see them. 

 The Eleventh Circuit has noted that officers can identify themselves by showing their 

badges. U.S. v. Blake, 888 F.2d 795, 797 (11th Cir. 1989) (“The officers, dressed in plainclothes, identified themselves as deputy sheriffs to Blake and Eason by showing their badges”). 

Therefore, either alone or with the additional evidence of the portable blue light, the Agents 

more than adequately to steps to identify themselves as police officers. 

2. Warning Shots Do Not Constitute Deadly Force.

 Second, the Plaintiff attempts to show that firing a warning shot is deadly force by citing 

inapplicable law and ineffectively distinguishing the law cited by Lt. West in his principle brief. 

The Plaintiff begins his attack by citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985) for the 

proposition that Lt. West’s firing a warning shot was excessive force. The Plaintiff’s argument 

fails ab initio because it assumes, arguendo, that a warning shot is deadly force. (Doc. 38 at pp. 

16-17.) This argument puts the proverbial cart before the horse. Furthermore, Garner is no 

longer the standard for when deadly force may be used – Graham is the standard. Scott v. 

Harris, 127 S.Ct. 1769, 1777 (2007). In Scott, the Supreme Court relegated Garner to its facts 

stating: 

Garner did not establish a magical on/off switch that triggers rigid preconditions 

whenever an officer’s actions constitute “deadly force.” Garner was simply an 

application of the Fourth Amendment's “reasonableness” test, Graham, supra, at 

388, 109 S.Ct. 1865, to the use of a particular type of force in a particular 

situation. 

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127 S.Ct. at 1777. Accordingly, the Plaintiff’s Garner argument fails because (1) it presupposes 

a warning shot is deadly force; and (2) Garner is no longer the standard under which deadly force 

applications are analyzed. 

 The Plaintiff next claims that “at least one court has acknowledged that firing a warning 

shot could possibly constitute a use of deadly force”. (Doc. 38 at p. 17 citing Madrid v. Gomez, 

889 F.Supp. 1146, 1184 (N.D. Cal. 1995).) Leaving for a later portion of this brief the question 

of whether a California District Court case can clearly establish the law in the Eleventh Circuit, 

Madrid does not say what the Plaintiff wants the Court to infer that it says. Madrid does not say 

that warning shots could be deadly force under the Fourth Amendment, but rather as the term 

was defined by the prison regulations at issue in the case. Id. (“the intentional firing of a gun, 

even as a warning shot, appears to constitute a use of “deadly force,” see DOM § 55050.3”). The 

reference “DOM” is to the “Department Operations Manual”, and not the Fourth Amendment. 

Id., 889 F.Supp. at 1283. Consequently, Madrid is of no utility whatsoever in determining 

whether a warning shot is deadly force for purposes of the Fourth Amendment. 

 The Plaintiff’s third line of attack is a futile attempt to distinguish the one case that has 

passed on whether the firing of warning shots can be violative of constitutional rights. (Doc. 38 

at p. 17 citing Otey v. Marshall, 121 F.3d 1150, 1156 (8th Cir. 1997).) The Plaintiff asserts that 

Lt. West made up the quoted statement in Otey “out of whole cloth”. Id. In full relevant part, 

the Eighth Circuit stated: 

In this case, the appellee has pointed to two pieces of evidence that Chief Smith 

had received notice that Officer Marshall was prone to using excessive force. 

Officer Marshall had once fired warning shots to quell a disturbance at a dance 

hall, an action that directly violated Elaine Police Department procedure. In 

addition, Rosie Cooper alleged in an affidavit that her two children had 

complained of Officer Marshall using excessive force and that Chief Smith knew 

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of these complaints. The appellee alleges that in neither of these cases did Chief 

Smith discipline or counsel Officer Marshall. 

Assuming that these allegations are true, we conclude that they fail to state a 

violation by Chief Smith of Otey’s constitutional rights. Officer Marshall’s use 

of warning shots did not put Chief Smith on notice that Officer Marshal 

engaged in a pattern of unconstitutional acts. While prohibited by Elaine Police 

Department policy, Officer Marshall’s use of warning shots simply did not 

violate anyone's constitutional rights. Although it may be an unwise practice to 

fire gunshots into the air to quell an unruly crowd, there is no evidence that 

Officer Marshall seized anyone-unconstitutionally or otherwise-when he fired 

warning shots at the dance hall. 

121 F.3d 1155-56 (emphasis added). 

 While Otey is not in the same type of case as the one at bar, it nonetheless necessarily 

reached the issue of whether warning shots violate the Constitution. In order to prevail on the 

question of whether the police chief had notice that his officer needed training, the plaintiff had 

to identify prior unconstitutional acts. The plaintiff tried to do so by, inter alia, citing the quoted 

example of the officer firing warning shots. A necessary part of the Otey Court’s holding that 

the chief did not have notice of prior unconstitutional acts is the finding that firing warning shots 

did not violate the Constitution. Otey then is on point and is not distinguishable in any important 

way from the case at bar. 

3. The PIT Maneuver Was Reasonable Under the Circumstances.

 The Plaintiff’s argument with respect to the PIT maneuver is based entirely upon Scott. 

(Doc. 38 at p. 18.) Like the plaintiff in Scott attempted to do, the Plaintiff seeks to minimize his 

egregious conduct to nothing more than a mere minor traffic violation. Id. As in Scott, neither 

the facts nor the law support the Plaintiff’s argument. 

 Scott does not stand for the proposition that a PIT maneuver is acceptable only under the 

conditions it describes. To the contrary, the Supreme Court took great pains to point out that “in 

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the end we must still slosh our way through the factbound morass of ‘reasonableness.’” 127 

S.Ct. at 1778. Under the facts of the case, the Supreme Court had little trouble, however, 

discounting the plaintiff’s claims of a peaceable chase through the countryside and finding the 

defendant’s actions reasonable. Id. at 1778-79. 

 Similarly, the uncontroverted evidence in the record shows that the Plaintiff was not 

simply engaged in a casual drive. Viewed from the perspective of the Agents, the Plaintiff was 

behaving like the drug dealer their information indicated he was. He refused to pull over despite 

their display of a blue light and badges. He turned away from a built-up area and took them out 

into the rural area of Lowndes County when he got on Highway 21. A baggy containing a white 

powdery substance exploded on their windshield during the chase. Lt. West’s extensive 

experience had taught him that drugs were often kept in baggies like the one that struck his 

windshield. Under these facts, any reasonable officer would have concluded that the Plaintiff 

was fleeing and attempting to destroy evidence. Summers, 452 U.S. at 703. 

 It should also not escape the Court’s notice that Lt. West tried to avoid having to PIT the 

Plaintiff. It is undisputed that Lt. West pulled up alongside the Plaintiff’s car twice in an attempt 

to allow Officer Hutson to identify them as police officers and get the Plaintiff to stop. He also 

tried bumping the Plaintiff’s car twice. Only when all of this proved futile did he initiate the PIT 

maneuver. 

 Slogging through the morass of reasonableness, and examining the uncontroverted, 

admitted, and undisputed facts in the record leads to only one conclusion – the PIT maneuver 

executed by Lt. West was reasonable under the circumstances. 

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4. The Alleged “Choke Hold” Was Reasonable.

 The Plaintiff’s attack on the alleged “choking” of the Plaintiff is based exclusively on 

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002). (Doc. 38 at p. 18.) However, the facts of 

Vinyard are clearly distinguishable. Vinyard involved minor crimes – disorderly conduct and 

obstruction. 311 F.3d at 1347. The instant Plaintiff was reasonably suspected of committing a 

narcotics felony. The plaintiff in Vinyard was already secured in the back of the patrol car

when the defendant officer assaulted her. Id. at 1343-44. Mr. Marshall was actively resisting 

being placed into the back of the car. (Marshall dep. 101:15-102:21.) Ms. Vinyard never 

resisted arrest or fled. 311 F.3d at 1347-48. Mr. Marshall both fled and resisted. By his own 

admission he was resisting immediately prior to being placed in the back of his car. (Marshall 

dep. 101:15-102:21 (stating “I wouldn’t get in the car”, “I wouldn’t obey what he was doing”).) 

Consequently, as Vinyard is clearly distinguishable, the Plaintiff has failed to establish the 

alleged “choke hold” violated his federally protected rights. 

C. The Force Used by Lt. West Was De Minimis.

 The de minimis nature of the Plaintiff’s alleged injuries also mandates judgment in Lt. 

West’s favor as a matter of law. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (holding 

that the application of de minimis force will not support a claim for excessive force in violation 

of the Fourth Amendment.) In Nolin, the defendant officer grabbed the plaintiff from behind by 

the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back, 

pushed his head into the side of the van, searched his groin area in an uncomfortable manner, and 

placed the plaintiff in handcuffs. 207 F.3d at 1255. The plaintiff allegedly suffered bruising to 

his forehead, chest, and wrists. Id.

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 Conspicuously absent from the Plaintiff’s statement of facts is any reference whatsoever 

to any injury he suffered. (Doc. 38 at pp. 1-7.) To be sure, he claims he was “dazed from hitting 

his head” during the PIT. Id. at p. 7. However, neither the Plaintiff’s brief nor any evidence in 

the record even suggests that the Plaintiff was injured, received medical treatment, or suffered 

any adverse affect whatsoever from any of the various applications of force he received. Even 

the Plaintiff’s claim of bumping his head is belied by the pictures taken immediately after the 

incident which clearly show no injury to the Plaintiff’s head. (Marshall dep. Exs. 10, 11.) 

 The extent of any injury is, of course, a factor for the Court to take into account in 

making its reasonableness analysis under Graham. Leslie, 786 F.2d at 1536. However, in cases 

such as the case at bar where there is absolutely no injury whatsoever, judgment in the 

Defendants’ favor is appropriate. Nolin, 207 F.3d at 1257. 

II. THE PLAINTIFF HAS FAILED TO PROVIDE THE COURT WITH CLEARLY 

ESTABLISHED LAW THAT PROVIDED LT. WEST WITH “FAIR WARNING” 

THAT HIS CONDUCT WAS UNLAWFUL. 

 The Plaintiff’s Opposition fails to specifically address this prong of the qualified analysis. 

The Plaintiff has failed to provide the Court with any authority whatsoever regarding any claim 

other than his excessive force claim. The authority he has offered with respect to the excessive 

force claim, however, does not satisfy his qualified immunity burden. This is especially fatal to 

an excessive force claim where the fact intensive nature of the analysis makes it difficult if not 

impossible to show an officer’s actions were unconstitutional with “obvious clarity”. See, e.g., 

Scott, 127 S.Ct. at 1778. 

This is perhaps no more clear than in the context of the warning shot Lt. West fired. 

While the Plaintiff takes issue with Lt. West’s characterization of the Eighth Circuit’s Otey

decision, the Plaintiff proffers no case law from the United States Supreme Court, Eleventh 

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Circuit Court of Appeals, or the Alabama Supreme Court holding that warning shots are 

unconstitutional. (See generally Doc. 38; see also Jenkins v. Talladega Bd. of Educ., 115 F.3d 

821, 827 (11th Cir. 1997) (en banc) (holding “In this circuit, the law can be ‘clearly established’ 

for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit 

Court of Appeals, or the highest court of the state where the case arose.”)) Consequently, even if 

this Court were to be the first one in the nation to explicitly hold that firing a warning shot can be 

violative of the Fourth Amendment, Lt. West would nonetheless be entitled to qualified 

immunity. Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) 

The Plaintiff’s other excessive force claims suffer the same fate. It was by no means 

clear on the day of the underlying incident that a PIT under the conditions perceived by Lt. West 

was unconstitutional. The Plaintiff has failed to provide the Court with any case law that putting 

a belligerent and uncooperative narcotics suspect on the ground with a foot sweep following a 

vehicle pursuit was excessive. Finally, as noted previously, the only case law provided by the 

Plaintiff regarding the “choking” claim is so factually distinguishable that it could not have 

provided Lt. West with any guidance. 

Accordingly, as the Plaintiff has failed to meet his second burden under the qualified 

immunity analysis, Lt. West is entitled to judgment in his favor as a matter of law. 

CONCLUSION

Based on the foregoing and the materials previously submitted, Defendant Chris West 

requests that this Honorable Court enter an Order granting him judgment in his favor as a matter 

of law.

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Respectfully submitted this the 19th day of March, 2008. 

s/Gary L. Willford, Jr. 

DARYL L. MASTERS Bar No. MAS018 

GARY L. WILLFORD, JR. – Bar No. WIL198 

Attorneys for Defendant Chris West 

WEBB & ELEY, P.C. 

7475 Halcyon Pointe Drive (36117) 

P.O. Box 240909 

Montgomery, Alabama 36124 

Telephone: (334) 262-1850 

Fax: (334) 262-1889 

E-mail: gwillford@webbeley.com

CERTIFICATE OF SERVICE

 I hereby certify that on March 19, 2008, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to the 

following: Jay Lewis, Esq., Rick Howard, Esq.

 s/Gary L. Willford, Jr. 

 OF COUNSEL 

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