Marshall did not have a concealed weapon permit, (Marshall Dep. 33:10-11.), but the 1

pistol did not belong to Marshall. The owner of the pistol had left it in Marshall’s car three or

four days earlier after receiving a ride. (Marshall Dep. 30:10-32:21.)

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICHARD MARSHALL, *

*

Plaintiff, *

*

v. * Civil Case No. 2:06-cv-701-ID-CSC

*

CHRIS WEST, in his individual capacity, *

LASHUN HUTSON, in his individual capacity *

*

Defendants.

PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

COMES NOW Plaintiff, in the above styled cause, by and through their counsel of

record, and respond to Defendants’ Motion for Summary Judgment as follows:

1. STATEMENT OF FACTS.

On the afternoon of June 28, 2005, Richard Marshall was driving his 1971 Chevrolet

Nova home on County Road 7 in Lowndes County. (Ex. 1, Marshall Dep. 27:15-17, 36:8-10,

Nov. 14, 2007.) Riding in the passenger seat was his cousin Kelvin Carmichael. (Ex. 2,

Carmichael Dep. 26:7-10, Nov. 14, 2007.) Marshall and Carmichael had spent the morning at

their aunt’s house pulling an engine with their cousins. (Marshall Dep. 23:23-24:11.) Inside the

car the two men sat on a bench-style seat and between them rested a 357 Magnum pistol. 

(Marshall Dep. 61:14-62:19.) Carmichael had neither seen the pistol nor seen Marshall with a

gun before but did not ask why the pistol was there. (Carmichael 29:8-31:2.) County Road 7 1

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 1 of 21
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was empty, and Marshall drove down the narrow and curvy rural road around thirty-five to forty

miles per hour in the hot afternoon with the windows down and the music playing loudly. 

(Marshall Dep. 45:10-46:6.) 

The only other car on the road Marshall saw that afternoon was a bluish or aquamarine

Lincoln Town Car that was traveling towards them in the opposite direction. (West Dep.

21:10-13, Jan. 21, 2008.) After the car passed by, Marshall glanced in his rearview mirror and

saw something strange: the passing car appeared to slam on its brakes and started veering off to

the side of the road. (Marshall Dep. 39:14-41:2.) Marshall thought that perhaps the driver was

drunk or the car’s tire had blown out, and he kept driving towards home. (Marshall Dep. 41:1-

10.)

Without warning, the aquamarine car suddenly appeared in the passing lane next to them. 

(Marshall Dep. 41:13-19.) Inside were two black males in black t-shirts that neither Marshall nor

Carmichael recognized. (Marshall Dep. 36:8-10; Carmichael Dep. 34:4-5.) The passenger

appeared to be motioning Marshall to pull over, but having been robbed before Marshall was not

about to simply pull over on a deserted country road for two unknown men crazily driving a

civilian car. (Marshall Dep. 46:13-47-23; 50:3-5.) Instead, Marshall yelled at the men, “What

the fuck y’all want.” (Marshall Dep. 50:1.) Unfortunately for Marshall, he had just unknowingly

cursed at Lieutenant Christopher West and Officer Lashun Hutson. (West Dep. 22:17-19;

Hutson Dep. 20:10-11, Jan. 21, 2008.)

Also unknown to Marshall, West and Hutson had been looking for him earlier that day. 

(West Dep. 14:17-20.) The officers had been following up on a tip from an anonymous source

claiming that Marshall had been selling drugs. (West Dep. 14:1-11.) The anonymous source was

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 2 of 21
Within the time frame allowed, the officers would have obtained a search warrant had

2

the anonymous source been reliable. (West Dep. 17:16-18:8.)

Factually, it is unclear whether West saw that Carmichael was not wearing his seatbelt. 3

West’s incident/offense report originally states that neither the driver nor passenger was wearing

a seat belt. (West Dep. 52:23-53:2, 56:17-21.) Subsequently, West states he saw that Marshall

was not wearing his seatbelt. (West Dep. 19:20-22.)

Although Marshall does not recall wearing his seatbelt, Carmichael recalls that Marshall 4

was wearing his and in fact told Carmichael to put his belt on. (Carmichael Dep. 27:18-28:5.)

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not a reliable witness. (West Dep. 17:20-23.) Neither officer had any prior dealings with 2

Marshall. (West Dep. 16-18; Hutson Dep. 12:3-6.) Additionally, Marshall had never been

arrested for any drug related charges. (Marshall Dep. 17:8-23:4.) Thus, the officers had driven

out to Marshall’s home merely to do a “knock-and-talk.” (West Dep. 14:1-20.) 

After leaving Marshall’s home, the officers were driving their bluish or aquamarine

Lincoln Town Car on County Road 7 when they passed Marshall’s car and turned around to

pursue. (West Dep. 18:23-19:18.) Marshall was driving the speed limit. (West Dep. 20:16-17.) 

West coincidentally observed that neither Marshall nor Carmichael was wearing a seatbelt,3

which provided probable cause to stop Marshall so that West could question him about drugs. 

(West Dep. 56:17-57:2.) While Marshall does not dispute that he was not wearing his seatbelt,

(Marshall Dep. 28:22-23), Carmichael was wearing his. (Carmichael Dep. 27:16-17.) West

4

then pulled alongside Marshall’s car. (West 21:7-9.)

After Marshall cursed at them, West pulled the aquamarine car back behind Marshall’s

but did not activate either a siren or flashing blue lights. (Marshall Dep. 49:1-9.) Because

County Road 7 is wavy, Marshall could not speed up, and he continued to drive between thirtyfive and forty miles per hour toward Highway 21 and home. (Marshall Dep. 53:8-22.) Although

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 3 of 21
While both Marshall and West stated that they activated their flashing blue light and 5

showed their badges, both Marshall and Carmichael testified that the officers did not activate a

blue flashing light or show their badges. (Marshall Dep. 59:14-17; Carmichael Dep. 38:16-7,

55:5-16.)

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the aquamarine Lincoln Town Car was riding his bumper, Marshall did not try to speed away

because he was afraid of getting hurt on the wavy road. (Marshall Dep 53:23-54:5.) Moreover,

Marshall’s car could not run very fast anyway. (West Dep. 21:22-23.) Marshall stayed close to

the speed limit while on County Road 7. (Hutson Dep. 17:15-21.)

At the intersection of County Road 7 and Highway 21, Marshall performed a rolling stop

and then turned right onto Highway 21 towards home. (Marshall Dep. 52:4-10.) The

intersection does not have a stop sign; it has a yield sign with a flashing yellow light. (Marshall

Dep. 51:15-16; Carmichael Dep. 40:9-18.) Once on Highway 21, Marshall sped up a little. 

(West Dep. 48:6-7.) Marshall got his slow running car up to about fifty-five miles per hour when

the aquamarine car again pulled beside them. (Marshall Dep. 53:6-7.) As Marshall looked over

he again saw the unknown man waving him over but this time Marshall also saw a gun in the

man’s hand. (Marshall Dep. 54:9-23.) Carmichael also saw the man holding the gun and asked

5

who the men in the aquamarine car were. (Carmichael Dep. 41:16-22.) Marshall told

Carmichael that he did not know but he thought that they were out to rob them, and he was not

going to stop. (Marshall Dep. 57:3-7.) Carmichael then told Marshall not to let the unknown

men catch them. (Carmichael Dep. 41:16-22.)

The aquamarine car again fell behind Marshall’s car and rammed his car in the rear. 

(Marshall Dep. 60:2-4.) Marshall almost lost control and slowed from about fifty-five miles per

hour to around thirty-five to forty miles per hour. (Marshall Dep. 64:4-9) After about ten

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 4 of 21
At about this point in the chase, West and Hutson state that Marshall threw out a plastic

6

baggie containing drug evidence and that hit their windshield. (West 24:1:4; Hutson 22:21-

23:2.) The officers’ original statements omitted any mention of an object striking their

windshield. (West Statement, Ex. 5; Hutson Statement, Ex. 6.) This testimony is highly

disputed because lab tests on the baggie found neither fingerprints nor drug residue. (West Dep.

45:1-10; Forensic Reports, Ex. 8) Additionally, both Marshall and Carmichael deny that any

such baggie was thrown out of the window. (Marshall Dep. 74:17-21; Carmichael Dep. 48:9-

11.)

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seconds, Marshall’s car was again rammed from the rear. Carmichael then saw that one of the 6

men appeared to be talking on a radio and then told Marshall that he thinks they may be cops. 

(Carmichael Dep. 46:21-47:3.) Immediately after, the aquamarine car rammed Marshall’s car on

the rear driver’s side sending Marshall’s car off the road causing Marshall’s head to hit the

steering wheel. (Marshall Dep. 69:16-70:3.)

West and Hutson jumped from the car with their weapons drawn and yelled for Marshall

to get out of the car. (West Dep. 30:18-23.) At some point after exiting their car the officers

pulled their badges from under their shirts. (Carmichael 55:8-18.) Dazed from hitting his head

Marshall opened his door, stepped out of the car, and held his hands up. (Marshall Dep. 86:8-9.) 

West ordered Marshall to get on the ground. (West Dep. 32:1-18.) Marshall, dazed, confused,

and agitated, remained standing with his hands up asking what was going on. (Marshall Dep.

86:8-87:9.) West then fired his gun into the ground approximately six to eight feet from where

Marshall stood. (West Dep. 32:18-21; Hutson Dep. 25:14-15.)

Marshall stood frozen while West approached with his gun raised. (West Dep. 32:22-

33:7.) West then swept Marshall’s feet slamming him to the ground face first, put a foot in

Marshall’s back, and cuffed him. (Marshall Dep. 90:3-9.) After cuffing Marshall, West

approached Marshall’s car and saw the pistol in the seat for the first time. (West Dep. 33:15-21.) 

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 5 of 21
At this point if West’s version of the facts is to be believed, after West had just run 7

Marshall off the road, shot a gun in his direction, slammed him to the ground, and cuffed him,

West suddenly became concerned that Marshall, having just lost his pants, might feel humiliated

being seen in his boxer shorts; therefore, out of concern for Marshall, West forced him into the

backseat of the Nova. (West Dep. 34:3-19.)

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After West had cuffed Marshall, Hutson got Carmichael out of the car, cuffed him, and put him

on the ground. (Hutson Dep. 25:1-6.) Afterward, Hutson walked back to Marshall’s car and saw

the pistol in the seat for the first time. (Hutson Dep. 28:8-15.)

West then pulled Marshall off of the ground, set Marshall against the car, and began

asking why he did not pull over when they showed their badges. (Marshall Dep. 96:1-3.) 

Marshall stated that he did not see any badges, only a gun. (Marshall Dep. 96:3-4.) West then

grabbed Marshall’s pants, shoved him against the car, and searched him. (Marshall Dep. 96:5-8.)

During the search West removed Marshall’s wallet and threw it into the back seat. (Marshall

Dep. 96:8-11.) Marshall’s wallet contained five hundred dollars at that time. (Marshall Dep.

33:12-16.) West then told Marshall to get in the back of his Nova, but Marshall, because he is a

large man, stated he could not fit in the small back seat of his car. (Marshall Dep. 99:13-19.) 

Angered, West grabbed Marshall by the pants and slammed him against the car breaking the

zipper and button causing Marshall’s pants to fall to the ground. (Marshall Dep. 99:19-100:1;

Carmichael Dep. 69:21-23.) West then choked Marshall until he could not breathe and forced

him into the back of the Nova. (Marshall Dep. 101:19-102:36; Carmichael 69:18-70:3.) 7

By this time cars were driving by on Highway 21. (Marshall Dep. 100:5-6.) West then

walked over to the aquamarine car and put the blue light on roof of the aquamarine car. 

(Marshall Dep. 100:9-10.) At first the blue light would not work, and West had to bang on the

light three or four times before it started working. (Marshall Dep. 100:10-22.) After other

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 6 of 21
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officers arrived, Marshall was put in a patrol car and taken in for booking. (Marshall Dep. 118:3-

11.) At booking Marshall noticed most of his money was missing and called it to a deputy’s

attention, but West stopped him and told the deputy not to worry about it. (Marshall Dep. 123:7-

18.) Marshall received a courtesy warning for attempting to elude and a seatbelt violation. (Ex.

7.) Marshall was charged with possession of a controlled substance and carrying a pistol without

a permit. (Marshall Dep. 138:10-16.) All charges against Marshall were dropped. (Marshall

Dep. 139:2-4.)

II. STANDARD OF REVIEW.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is

appropriate when “the pleading, depositions, answers to interrogatories, and admission on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). The party requesting summary judgment “always bears the initial

responsibility of informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue

of material fact.” Id. at 323. The movant can meet this burden by presenting evidence showing

there is no dispute of material fact, or by showing the non-moving party has failed to present

evidence in support of some element of its case on which it bears the ultimate burden of proof. 

Id. at 322-23.

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to

go beyond the pleadings and by [its] own affidavits, or by the ‘depositions answers to

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interrogatories and admission on file,’ designate ‘specific facts showing that there is a genuine

issue for trial’”. Id at 324. To avoid summary judgment, the nonmoving party “must do more

than simply show that there si some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, a court

ruling on a motion for summary judgment must believe the evidence of the non-movant and must

draw all justifiable inferences from the evidence in the non-moving party’s favor. Anderson v.

Liberty Lobby , Inc., 477 U.S. 242, 255 (1986). After the nonmoving party has responded to the

motion for summary judgment, the court must gant summary judgment if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ.

P. 56(c).

“Under the established rule of law in this Circuit, a plaintiff can survive a motion for

summary judgment or for judgment as a matter of law simply by presenting evidence sufficient to

demonstrate a genuine issue of material fact as to the truth or falsity of the employer's legitimate,

nondiscriminatory reasons.” Evans v. McClain of Georgia, Inc., 131 F.3d 957, 964-65 (11th Cir.

1997).

III. ARGUMENT.

Under § 1983, police officers may be held accountable when their conduct violates

clearly established statutory or constitutional rights of which a reasonable person would have

known. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). A plaintiff can establish that

the law clearly provided notice to the officers that their conduct was unconstitutional by

submitting fact-specific precedents or demonstrating that the conduct “lies so obviously at the

very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was

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readily apparent.” See Id. at 1355. Here, the grossly disproportionate force used against

Marshall for a seatbelt violation is a clearly established constitutional violation because no

reasonable officer could have believed that Defendants’ actions were legal. Under the totality of

the circumstances, Defendants’ actions as a whole constituted an unreasonable breach of

Marshall’s Fourth Amendment rights.

A. Crucial Factual Distinctions.

Before proceeding to the legal argument, Plaintiff must address certain facts proffered by

Defendants in support of their motions. First, the pistol and bullets discovered in Marshall’s car

are not relevant. For evidence to be relevant it must be probative of a fact of consequence. Fed.

R. Evid. 401. The pistol and bullets are not relevant because, according to their own testimony,

Defendants did not know about the pistol or bullets until after Marshall was in handcuffs. (West

Dep. 33:15-21; Hutson Dep. 28:8-15.) Thus, Defendants may not justify their precursory actions

by the presence of the pistol.

The facts demonstrate that Marshall did not intend to use the pistol against Defendants. 

After his car was forced off of the road and Marshall was ordered out of his car, he complied. 

Marshall’s movements as he opened the car door, stepped out, and held his hands up clearly

distanced him from the pistol. While Hutson testified that he saw Marshall reaching back into

his car, and he believed that was the reason West fired his pistol, his testimony is not admissible. 

Testimony must be based on personal knowledge. Fed. R. Evid. 602. Here, Hutson’s testimony

attempts to express what was in West’s mind when West fired his gun, which is clearly beyond

the scope of Hutson’s personal knowledge.

West’s own testimony disputes Hutson’s allegation that Marshall attempted to reenter his

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car. West first testified that Marshall was out of his car, standing between the car and open door,

and was yelling and cussing. (West Dep. 32:11-14.) West then testified that he then fired his

weapon after Marshall did not get on the ground immediately. (West Dep. 32:14-21.) Thus,

West demonstrates that he did not see Marshall make an attempt to reach back into his car. 

Second, Defendants’ allegations about Marshall throwing drug evidence out of his car

window is not merely a disputed fact; it is a nonexistent fact. Defendant West improperly

proffers that “[a]s the undisputed facts show, Lt. West did not execute the PIT maneuver until

after a baggy containing a white powdery substance hit his windshield.” (West Mem. Supp.

Summ. J. 31) (emphasis added). He then went on to improperly claim that the baggie contained

illicit drugs. (West Mem. Supp. Summ. J. 31.) These statements are improper and deceptive for

the three following reasons: 1) a baggie being thrown from Marshall’s window is a disputed fact;

2) the existence of white powder or any drugs in the alleged baggie is a disputed fact; and 3) a

baggie containing illicit drugs is a nonexistent fact. 

An undisputed fact is an uncontested or admitted fact. Black’s Law Dictionary 269 (2nd

pocket ed. 2001). Here, both Marshall and Carmichael expressly deny that any baggie was

thrown out of the window. (Marshall Dep. 74:17-21; Carmichael Dep. 48:9-11.) Additionally,

West even 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. (West Dep. 49:18-

22.) Therefore, these facts are clearly disputed and Defendant’s attempt to classify them

otherwise in order to influence this Court is clearly improper.

No factual evidence exists that demonstrates Marshall had illicit drugs in his possession. 

Defendants presented a baggie to the lab for forensic testing; however, the tests found neither

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 10 of 21
However, contrary to the laboratory tests, West testified that he still believes the baggie 8

contained residue. (West Dep. 58:8-10.)

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fingerprints nor drug residue. (West Dep. 45:1-10; Forensic Reports, Ex. 8.) Instead, the only 8

“evidence” that supports Defendants’ allegations is their subjective belief contrary to forensic

results and a discarded sandwich bag from somebody’s lunch.

B. Additional Misrepresentations of Fact

In addition to the factual errors noted above, the Memorandum Brief in Support of

Defendant Chris West’s Motion for Summary Judgment proffers more misrepresentations of fact

to this Court. 

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.)

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)).

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.)

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.

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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.)

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. 

Finally, 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.)

Plaintiff has addressed Defendant’s factual misrepresentations and errors as well as

possible. However, because West’s motion misrepresents numerous facts to this Court, Plaintiff

requests this Court summarily deny Defendant West’s motion due to the lack of candor and

reliability of the brief. Defendant Hutson’s motion does not contain similar factual

misrepresentations. However, due to Defendant Hutson’s express adoption of “any and all

arguments made by Chris West,” (Hutson Mem. Supp. Summ. J. 4.), Plaintiff requests denial of

Hutson’s motion on the same grounds.

C. Defendants’ unreasonable actions taken as a whole resulted in a violation of

Marshall’s Fourth Amendment Rights.

The touchstone of a court’s “analysis under the Fourth Amendment is always ‘the

reasonableness in all the circumstances of the particular governmental invasion of a citizen's

personal security.’” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977). “Reasonableness, of

course, depends ‘on a balance between the public interest and the individual's right to personal

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 12 of 21
Defendants aver that they deployed the flashing blue lights by plugging it into the 9

cigarette lighter (West Dep. 19:22-21:2); however, in the light most favorable to the nonmoving

party and for the purposes of this motion, Defendants did not deploy the flashing blue light. 

(Marshall Dep. 49:1-9)

Additionally, West’s deposition states that he activated a flashing blue light, honked his 10

horn, and flashed his lights, but omits any mention of siren. (West Dep. 19:20-21:9.) In absence

of evidence to the contrary under this motion’s standard of review, stating that Defendants used

no siren is proper.

13 of 21

security free from arbitrary interference by law officers.’” Id. at 109. Here, Marshall’s actions

were reasonable; conversely, Defendants’ actions were not.

Marshall’s actions were reasonable. Under the Alabama Code § 32-5A-193, in order to

flee or attempt to flee from a police officer, the driver must “willfully” fail to stop his car or flee

when given a visual or audible signal. Although his greeting to Defendants when they pulled up

beside him was less than ideal, Marshall had no reason to know that Defendants were police

officers. First, Defendants’ car did not look like a police car. Defendants drove a bluish

aquamarine Lincoln Town Car. Defendant West even testified that their car did not look much

like a police car. (West Dep. 21:14-15.) Second, Defendants were not dressed in uniform. 

Marshall saw two unknown men wearing black t-shirts. West testified that they were wearing

street clothes. (West Dep. 60:18-22.) Third, Defendants had not activated a flashing blue light

or a police siren. Rather, Defendants did not activate the flashing blue light until after Marshall 9

was already in handcuffs and even were unable to activate the light until West banged on it a few

times. (Marshall Dep. 100:10-22.) Defendants did not expressly state that they did not activate a

police siren; however, because the Lincoln Town Car had been confiscated and acquired through

a condemnation proceeding, it likely was not equipped with a siren. (West Dep. 13:13-21.) 10

While Defendants blew the horn and flashed the headlights, (West Dep. 21:7-9), those actions

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 13 of 21
Plaintiff is using the word “chase” rather loosely and does not concede that an actual 11

chase indeed took place but is merely using the word to describe the incident.

14 of 21

would alone would not reasonably identify Defendants as police officers. Had the Defendants

actually activated a blue flashing light and siren, blowing the horn and flashing the headlights

would not have served any purpose.

Marshall’s belief that Defendants posed a threat was reasonable. While Marshall’s fear

was likely motivated in part because he had previously been robbed, his belief that Defendants

posed a threat was not irrational. First, as noted above, Defendants did not adequately identify

themselves as police officers. Second, this incident occurred on a deserted country road. Third,

Defendants were strangers to Marshall. Finally, Defendants’ behavior, objectively viewed by

someone unaware that they were police officers would be charitably described as erratic. Due to

Defendant West’s turn-around maneuver, Marshall at first thought either the driver was drunk or

had a flat tire. The next time Marshall saw Defendants they had pulled beside him on the narrow

country road, were waving their arms at him, and were yelling out the window at him. 

Defendants then followed him, honked their horn, flashed their lights, and stayed right on his

bumper.

Under the circumstances, Marshall’s actions were reasonable. While Defendants have

framed this incident as a high speed pursuit where Marshall attempted to elude them, the facts

demonstrate a rather average speed chase where Marshall simply did not pull over. West even

testified that Marshall’s car could not run very fast. (West Dep. 21:22-23.) The majority of the

so called “chase” took place on County Road 7. While on County Road 7, it is undisputed that 11

Marshall did not exceed the speed limit. (Hutson Dep. 17:15-21; West Dep. 19:12-20:17.) 

Case 2:06-cv-00701-ID-CSC Document 38 Filed 03/12/2008 Page 14 of 21
West admits that he wanted to use the seatbelt violation for the purpose of pulling 12

Marshall over to question him about drugs. (West Dep. 56:17-57:2) 

15 of 21

While the speed limit was approximately forty-five miles per hour, Marshall was driving between

thirty five to forty miles per hour, and did not speed even while Defendants rode his bumper. 

(Marshall Dep. 45:10-46:6; 48:15-17.) Once Marshall turned onto Highway 21, he simply

continued driving toward home until he was run off of the road by Defendants.

Conversely, Defendants’ actions were unreasonable. What began as a pretextual seatbelt

stop, led to Defendants ramming Marshall’s car numerous times, running his car off the road, 12

discharging a weapon in his direction, manhandling, strangling, arresting him, and stealing his

money. The test for determining whether officers have acted reasonably under the Fourth

Amendment is an objective reasonableness test. Graham v. Connor, 490 U.S. 386, 396 (1989.) 

While Defendants’ pretextual justification for pulling Marshall over may have been objectively

reasonable under Defendants’ version of the facts at the start of this encounter, that same

justification cannot overcome Marshall’s reasonable expectation that Defendants would at least

adequately identify themselves before running him off the road, shooting at him, manhandling,

and then arresting him.

Whether officers’ actions are objectively reasonable “requires careful attention to the

facts and circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. 

Here, the severity of Marshall’s crime was very low: a seatbelt violation, a non-arrest matter for

which only a traffic ticket could be issued. Marshall also did not pose a threat to anyone’s safety. 

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He did not try to outrun the Defendants; instead, he drove the speed limit and merely did not pull

over because he did not know that Defendants were police officers. Conversely, Defendants’

actions were unreasonable from the start because they failed to adequately identify themselves

and drove behind Marshall in an aggressive manner. Eventually Defendant West executed a

dangerous and destructive PIT maneuver even though Marshall was only driving thirty-five miles

per hour at the time. (West Mem. Supp. Summ. J. 32.)

Additionally Marshall did not resist or attempt to evade. While driving, Marshall did not

attempt to leave the road or lead Defendants on a path through the woods. (West. Dep. 49:9-13.)

After Defendant West executed the PIT maneuver, Marshall exited his car and held his hands up. 

(Marshall Dep. 86:8-9.) While he did not get on the ground, and was vociferous because

Defendants had just run him off the road, Marshall did not make a violent move against

Defendants, never attempted to hit Defendants, and never attempted to run away. (West Dep.

59:6-12.) Even so, Defendant West fired his weapon into the ground a mere six to eight feet

away from where Marshall stood. (West Dep. 32:16-21.) Subsequently, West threw Marshall to

the ground, choked him, and arrested him all because of a seat belt violation.

West’s warning shot was constitutionally unreasonable. The Supreme Court has provided

guidelines for determining when it is constitutionally reasonable for a police officer to use deadly

force when firing a gun at a suspect. Acoff v. Abston, 762 F.2d 1543, 1547 (11th Cir. 1985)

(citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985)). The Garner standard contains the three

following elements: 1) the officer must have probable cause to believe the suspect poses a threat;

“[p]robable cause of this sort exists where the suspect actually threatens the officer with a

weapon or where there is probable cause to believe that the suspect has committed a crime

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involving the infliction or threatened infliction of serious physical harm” 2) deadly force must be

necessary to prevent escape, and 3) the officer must give fair warning if possible. Acoff, 762 F.2d

at 1547.

Under the Garner standard, West firing his gun in Marshall’s direction is clearly

unreasonable because Marshall was not armed, was not threatening Defendants with a weapon,

and was not attempting to escape. (West Dep. 32:14-21.) Arguably, West did not use deadly

force because he was aiming at the ground. However, Garner is a reasonableness standard; thus,

the determination cannot rest purely on whether the bullet actually hit its mark. Additionally, at

least one court has acknowledged that firing a warning shot could possibly constitute a use of

deadly force. See Madrid v. Gomez, 889 F. Supp. 1146, 1184 (N.D. Cal. 1995). Here, Marshall

was subjected to potential deadly force because West aimed and fired his weapon within a mere

six to eight from where Marshall stood. (West Dep. 32:18-21.)

Contrary to Defendant West’s argument, the Eighth Circuit did not expressly hold that

firing warning shots in the air near a crowd does not violate anyone’s constitutional rights. (Def.

Marshall Mot. Summ. J. 33 (citing Otey v. Marshall, 121 F.3d 1150, 1156 (8th Cir. 1997)). 

Rather, Defendant manufactured that holding out of whole cloth. In Otey, the court held that a

police chief did not violate a well establish right for failing to properly train a subordinate officer

who fired the warning shots into the air. Otey, 121 F.3d at 1156. Analyzing the facts, the Eight

Circuit discussing the facts reasoned that the subordinates officer’s warning shots in a crowd did

not violate anyone’s rights because there was no evidence that anyone was seized,

unconstitutionally or otherwise, because afterward the crowd dispersed and there were no arrests. 

Id. Thus, Otey is highly distinguishable from this case and frankly not even on point.

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West executing PIT maneuver on Marshall’s car was unreasonable. In Scott v. Harris,

police officers clocked a driver going seventy-three in a fifty-five mile per hour zone. __ U.S.__,

127 S. Ct. 1769, 1772 (2007). During the chase the driver went at speeds over eighty-five miles

per hour on the freeway, through a parking lot, and even collided with one police car. Id. at

1773. After being given permission by his supervisor, an officer employed a PIT maneuver. Id. 

As a guidepost for determining whether the officer acted reasonably in executing a PIT

maneuver, the Supreme Court stated “[w]e think it appropriate . . . to take into not only the

number of lives at risk, but also their relative culpability. Id. at 1778. The Court noted that the

facts showed the driver’s actions had put the lives of the police officers and other drivers at risk,

had ignored multiple police cars with sirens and flashing lights, and drove recklessly at high

speeds. Id.

Conversely, Marshall’s culpability did not rise to anywhere near the level of Scott. First,

Marshall was unaware that Defendants were police officers. Second, Marshall drove neither

recklessly nor at excessive speeds. Third, Marshall’s driving was not putting anyone’s safety at

risk. Finally, Marshall’s sole offense was a pretexual seat belt violation.

West choking Marshall and forcing him into the back seat of the Nova was unreasonable. 

In Vinyard v. Wilson, a police officer was sued for excessive force when he stopped his patrol

car, roughly grabbed his handcuffed prisoner, pulled her by the hair, and then sprayed her in the

face with pepper spray. 311 F.3d 1340, 1343-44 (11th Cir. 2002). Factors determining whether

such use of force is constitutional include the severity of the crime, whether the suspect poses an

immediate threat to safety, and whether she is actively resisting arrest. Graham v. Connor, 490

U.S. 386, 396 (1989). In Vinyard, the Eleventh Circuit ruled in the plaintiff’s favor and found

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the factors from Graham heavily favored the plaintiff because she was "under arrest for offenses

of minor severity, handcuffed, secured in the back of a patrol car, and posing no threat to [the

officer], herself or the public." Vinyard, 311 F.3d at 1348-49. Similarly, Marshall was

handcuffed, posed no threat to Defendants, and had been arrested for a minor offense. 

Additionally, Marshall was not posing a threat when West threw him on the ground face first.

While Defendant Hutson’s actions did not rise to the level of West’s, he is not excused

because he participated in the entire encounter without any determination of probable cause. 

When asked about their purpose for pulling Marshall over Hutson stated “I don’t know. 

Whatever Lieutenant West told you his probable cause was for stopping him.” (Hutson Dep.

15:15-19.) Hutson further testified that he did not see probable cause, was not looking for

probable cause, and any such determination was made solely by West. (Hutson Dep. 15:20-

16:21.) Thus, while West was running Marshall off the road, shooting at him, manhandling, and

arresting him, Hutson acted as wing man without an inkling of probable cause and apparently

without questioning or voicing any reservations to West. Additionally, Hutson held Marshall and

gun point and participated in his arrest.

Unfortunately for Hutson, there is no “just following orders” defense. O’Rourke v.

Hayes, 378 F.3d 1201, 1210 n.5 (11th Cir. 2004). In O’Rourke, the Eleventh Circuit found that

other officers’ unconstitutional behavior did not relieve a defendant officer from the

responsibility of deciding for himself whether to violate clearly established constitutional rights. 

Id. at 1210. The court further noted that even when the offending officer was a superior,

subordinate officers may be subject to liability under § 1983 if there is a “reason why any of them

should question the validity of that order.” Id. at 1210 n.5. Here, Hudson should have

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questioned West’s behavior based on his belief that no probable cause existed, or he at least

should have made the effort to ask.

IV. CONCLUSION

WHEREFORE, the premises considered, Plaintiff prays this Court will deny Defendants’

motions for summary judgment.

RESPECTFULLY SUBMITTED on this the 12th day of March, 2008.

/s/ FRED CLEMENTS 

Fred Clements

Law Offices of Jay Lewis, LLC

P.O. Box 5059

Montgomery, AL 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

FredClements@JayLewisLaw.com

ASB-5682-R39C

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CERTIFICATE OF SERVICE

I hereby certify that I have 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 parties or

counsel, or by hand delivery, or by facsimile, or by placing a copy of the same in the United

States mail, properly addressed and first-class postage prepaid on this 12th day of March, 2008.

Gary Willford Rick Howard

Daryl Masters Alex Holtsford

Webb & Eley April McKay

P.O. Box 240909 Nix Holtsford Gilliland Higgins & Hitson

Montgomery, AL 36124 P.O. Box 4128

Montgomery, AL 36103-4128

/s/ FRED CLEMENTS 

Fred Clements

Law Offices of Jay Lewis, LLC

P.O. Box 5059

Montgomery, AL 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

FredClements@JayLewisLaw.com

ASB-5682-R39C

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