IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICHARD MARSHALL, *

*

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

*

CHRIS WEST, in his individual capacity, *

LASHUN HUTSON, in his individual capacity *

Defendants. *

RESPONSE TO MOTION TO DISMISS

COMES NOW Plaintiff Richard Marshall, by and through his attorney, and would show

unto the Court as follows:

The defendants have moved this Court to dismiss the complaint against them pursuant to

Rule 12(b)(6), F.R.Civ.P., and they have submitted what purport to be reasons why the Court

should do so. The defendants’ motion should be denied.

The defendants travel under the following theories:

1. Heightened pleading

2. Qualified immunity

3. Failure to allege a violation of Fourth Amendment rights.

4. Failure to allege that the defendants subjected him to an unreasonable search.

5. Search incident to a lawful arrest.

6. Arguable probable cause for the arrest.

7. Plaintiff was dangerous and may gain control of weapons.

8. The force used in seizing Plaintiff’s vehicle by smashing into it was reasonable.

9. Firing a weapon in the direction of Plaintiff while he was standing still was

reasonable.

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10. Failure to allege that the defendants falsely arrested Plaintiff.

11. Failure to allege that the defendants maliciously prosecuted Plaintiff.

12. Failure to allege facts supporting a First Amendment claim.

13. Failure to allege facts supporting a Fourteenth Amendment claim.

14. Sovereign immunity (absolute variety).

15. Equitable and declaratory relief not available.

Plaintiff concedes one point – he has no First Amendment claim, and it was an error that

such was alleged in the “Jurisdiction and Venue” portion of his complaint; it should have read

“Fourteenth Amendment” as set forth in the ad damnum clause. Plaintiff vigorously opposes the

remainder of the motion.

Plaintiff properly invoked the Fourth and Fourteenth Amendments as well as 42 U.S.C. §

1983 as the bases for his federal claims and Alabama law as the basis for his state law claims. 

He has set forth in exhaustive detail sufficient facts to establish each and every claim.

Regarding the “heightened pleading” requirement in the Eleventh Circuit, Plaintiff is not

required to publish a book of facts in order to properly plead his case. On page 4 of their brief,

the defendants point to a number of facts that they claim might have been alleged, but weren’t. A

response follows:

1. “Whether the Defendants had reasonable suspicion supporting a Terry stop.” Not

only does Plaintiff not know what was going through the defendants’ heads, it

would have been the height of folly to speculate as to such. It is sufficient for

Plaintiff to claim – as he did in his Complaint – that he was “peacefully and

lawfully operating his motor vehicle” at the time of the events giving rise to this

action.

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2. “Whether the Plaintiff knew that Deputies West and Hutson were law

enforcement officers.” It is sufficient for Plaintiff to allege objective, rather than

subjective, facts as he did when he claimed in his Complaint that he did not know

either of the occupants of the defendants’ vehicle, that the defendants were clad,

as far as Plaintiff could see in black tee shirts, and that neither defendant

identified himself as a law enforcement officer.

3. “Whether [the defendants] had any badges or other law enforcement insignia on

their persons or vehicle.” Plaintiff described in his Complaint what he could see

of West and Hutson – black tee shirts – and the vehicle – a Lincoln Town Car –

but failed to specifically note that the vehicle had no law enforcement markings

on it. While Plaintiff can amend his Complaint to allege that fact, it is of no great

import to this case.

4. “What parts of the Plaintiff’s vehicle were searched.” This is a completely

irrelevant omission, as the fact that it was searched at all was part of the violation

alleged. Plaintiff understands that in a lawful, reasonable stop, police may make a

limited search for their own safety. This was not a lawful reasonable stop.

5. “Whether the Plaintiff had committed [the offenses alleged] and whether [the

defendants] were aware of (sic.) that he had committed these crimes.” The

legality of the defendants’ actions in this case are not dependent on what Plaintiff

may or may not have done, but whether the defendants had reasonable suspicion

for a Terry stop, whether this was the “brief, investigative stop” contemplated by

Terry, and whether the force used was reasonable and the consequent prosecution

supported by probable cause. The defendants are here asking for a pretrial

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determination of guilt or innocence, and pretending that it is relevant to the

allegations of the Complaint.

6. “Whether there was a firearm or other weapon in the car, in plain view or

otherwise.” Nothing the defendants learned later could be used as justification for

ramming Plaintiff’s car, sending it spinning into a ditch, firing a weapon in

Plaintiff’s direction, or assaulting and battering him. This “fact” is simply not

relevant to the claims in this case.

7. “Who arrested the Plaintiff and transported him to the Jail.” It was clearly set

forth in the Complaint that West was the one who assaulted Plaintiff, threw him to

the ground and handcuffed him. That pretty much qualifies as an arrest. Plaintiff

alleged that he was driven to the jail in “a deputy’s car”; more than that is

irrelevant, as there is no claim for unlawful transport.

8. “Who actually charged the Plaintiff with possession of controlled substances and

carrying a pistol without a license.” Again, the issue of who signed the paperwork

is irrelevant. While that person may be an additional defendant when his identity

is discovered, it is clear from the allegations of the Complaint that West and

Hutson “instituted a criminal proceeding” against Plaintiff. (Complaint, ¶ 54.)

9. “Who was responsible for not returning the alleged $400.00 the Plaintiff was

missing.” The Complaint properly alleges that West took $500.00 from Plaintiff

and that Plaintiff was credited at the jail with only $100.00, West having claimed

that was all the money that was in the wallet. Plaintiff agrees that some leap is

required here. West took $500.00, Plaintiff got back $100.00. A reasonable

inference from the facts alleged is that West was responsible for returning the

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money. Again, this is all irrelevant; the gravamen of the conversion claim is that

the money was unlawfully taken by West and that it was wrongfully kept. 

10. “Whether the vehicles were traveling over 35 miles per hour at the time the PIT

was executed.” That, too, is irrelevant except for the arbitrary determination by

most law enforcement agencies that executing a PIT at speeds over 35 mph

constitutes deadly force. While Plaintiff can easily amend his Complaint, if

granted leave to do so, to allege the approximate speed achieved, there is no

question that – whatever the speed – the force used was at least unreasonable,

even if not deadly.

The assertion of the defendants that the lack of the above assertions constitutes a violation

of the “heightened pleading” requirement is nothing but a red herring, as the complaint is

sufficiently specific without any of them.

The defendants’ brief then meanders through the general law of qualified immunity for

several pages before lighting on they consider to be particularized reasons why this compliant

should be dismissed.

The defendants first assert that Plaintiff has failed to allege that the defendants subjected

his vehicle to an unreasonable search. If, as the Complaint alleges, Plaintiff was operating his

vehicle lawfully, and if the officers failed to identify themselves and merely waved a gun at

Plaintiff, and if they slammed into his car spinning it off the road, then there was no lawful arrest

and no grounds for a search. Plaintiff has properly alleged that there was no probable cause for

the battery of his vehicle or his person ( ¶¶ 45, 48, 52, 53, 54). It is up to the defendants to

establish probable cause to counter the objective facts presented by Plaintiff that the fact and

manner of the arrest were unreasonable. If there was no probable cause, there was no lawful

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arrest. Plaintiff assures the Court that he did fail to pull over after being accosted by two

gunslinging persons in black tee shirts driving a Lincoln Town Car. Doubtless the Court would

have done the same in the absence of some evidence that the assailants were actually law

enforcement officers. Even a misdemeanor requires scienter, some objective reason to believe

that Plaintiff knew he was violating the law. Failing to stop for what looked to be highwaymen is

not a crime. The Complaint certainly does not “on its face” establish that Plaintiff was guilty of a

misdemeanor. The search of the car was not lawful as a search incident to arrest.

The defendants then drop into punt formation by alleging that “the search was based on,

at least, probable cause.”

There was nothing in the Complaint to indicate that “Plaintiff had attempted to evade the

Deputies.” The Complaint properly alleges that Plaintiff was not fleeing, but attempting to get to

a populated area. (Complaint, ¶ 20). At the time West shot at him, Plaintiff was standing next to

his vehicle, dazed from having hit his head, and the shot frightened him into freezing in place. 

As the Complaint alleged, Plaintiff was simply not moving as quickly as West wanted. Nothing

about that brings this case within the scope of Ray v. U.S., 206 F.2d 796 (10th Cir. 1953).

In fact, this case is more akin to the Tenth Circuit case that distinguished Ray. As the

court said in Price v. U.S.:

When tested for probable cause to justify the making of the search and seizure

without a search warrant, the evidence immediately brings, into focus certain

significant features of weakness. The evidence relating to appellant's reputation

for being a dealer in contraband liquor was scant and somewhat indirect. There

was no evidence that he owned or operated a still. There was no evidence that he

was a professional liquor runner. There was no direct evidence that he ever sold or

agreed to sell contraband liquor. There was no evidence that the automobile had

ever been used on previous occasions for the transportation of contraband liquor.

There was no evidence that the automobile appeared to be lower at the rear end

than at the front. There was no evidence that the road being traveled by appellant

was a well-known route from a well-known source of supply to a well-known

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source of outlet for contraband liquor. There was no evidence of speeding in an

effort to escape. There was evidence of a change in course of the automobile, but

that was occasioned to avoid a collision with the car of the investigators. And

until appellant's car had been stopped, until the announcement had been made that

appellant was under arrest, until an effort had been made to enter appellant's car,

and until the window in the car had been broken or was being broken as a part of

such effort, none of the investigators saw anything in the car which they identified

by color, smell, label, or otherwise as being contraband liquor. These facts and

circumstances distinguish the case from the landmark cases of Carroll v. United

States, supra; and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93

L.Ed. 1879. And similarly, they distinguish the case from Ray v. United States, 10

Cir., 206 F.2d 796; Fowler v. United States, 10 Cir., 239 F.2d 93; United States v.

McCall, supra; decided by this court. We think that the facts and circumstances

surrounding the search and seizure without a search warrant were not sufficient to

constitute probable cause, and that therefore motion to suppress the liquor as

evidence should have been sustained.

Price v. U.S. 262 F.2d 684, *686 -687 (C.A.10 1959).

There was no arguable probable cause for the arrest. Without arguable probable cause for

the arrest, there could have been none for the search.

The defendants then hopefully assert that the search was lawful based on their reasonable

belief that Plaintiff was dangerous and could grab a weapon. There are a couple of problems

with that. First, there is no question that Plaintiff was already out of the vehicle, flat on the

ground, and in handcuffs at the time the search took place. Odds are against his grabbing a

weapon. Second, there were no specific and articulable facts from which an inference could be

drawn that Plaintiff was dangerous and that he could gain immediate control of weapons. 

Despite the defendants’ attempts to recast the allegations of the Complaint in a light more

favorable to them, there is no evidence that “Plaintiff had attempted to evade the deputies” or

that he “had refused orders of the deputies to get on the ground.” Without those facts, no

inference could be drawn as to the dangerousness of Plaintiff.

The Court is asked by the defendants to simultaneously believe (as a result of the their

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1

 There may be law enforcement agencies in Lowndes County that utilize Lincoln Town

Cars as police cruisers, but Plaintiff’s counsel is unaware of any.

twisting of the allegations in the Complaint) that the vehicles might not have been traveling as

fast as 35 miles per hour and that Plaintiff was attempting to “evade” the law enforcement

officers by “fleeing.” As set forth above, Plaintiff can amend his Complaint, if granted leave to

do so, to clarify those facts. Generally, a party should be given at least one opportunity to amend

before the district court dismisses the complaint with prejudice. Bryant v. Dupree, 252 F.3d

1161, 1163 (11th Cir.2001). It should not be necessary, however, as this case turns not on

whether the force was “deadly,” but on whether it was excessive.

While Plaintiff is still unaware of the probable cause for the defendants’ attempt to stop

him, it should be clear to any reasonable officer that smashing into Plaintiff’s car and then

executing a maneuver designed to make him lose control of it and crash is excessive and

unreasonable. Plaintiff, as noted, was operating his vehicle lawfully, and there is no allegation

that he ever did otherwise. What he did was to refuse to stop on a deserted road for two armed

men in a civilian-style car

1

 who waved guns at him like so many bushrangers. That does not

justify the use of the force employed by the defendants. As the Supreme Court held in the

seminal case of Tennessee v. Garner, “The use of deadly force to prevent the escape of all felony

suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all

felony suspects die than that they escape. Where the suspect poses no immediate threat to the

officer and no threat to others, the harm resulting from failing to apprehend him does not justify

the use of deadly force to do so.” Tennessee v. Garner, 471 U.S. 1, 11, (1985). Here, there is no

evidence that Plaintiff posed a threat to either the officers or to other people. Sending his vehicle

careening out of control was certainly excessive and unreasonable.

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The defendants take insubstantial shelter under Bell v. City of Milwaukee, 746 F.2d 1205

(7th Cir. 1984), in asserting that warning shots are “not deadly force.” A close reading of Bell,

however, reveals only that the Seventh Circuit refused to craft a rule that warning shots constitute

deadly force, per se . What the court actually did was to hold that, “[t]he district court did not

abuse its discretion in submitting the question of excessive force to the jury, to be resolved in

light of all the facts and circumstances.” Id., at 1279. Plaintiff would be happy with that result

here. Parenthetically, it must be noted that the Bell court, cited with seeming approval, Model

Penal Code § 3.11(1) (Proposed Official Draft 1962), holding that deadly force can be inferred in

the event that one “[p]urposely fire [es] a firearm in the direction of another person or at a

vehicle in which another person is believed to be.” Id., n. 89.

In addition to crashing his car and shooting in his direction, of course, the defendants

grabbed Plaintiff, threw him to the ground, handcuffed him, and ripped his pants from his body. 

The totality of the circumstances – particularly in light of the absence of threat or flight –

establish an excessive and unreasonable use of force.

The defendants’ arguments that neither of them falsely arrested or maliciously prosecuted

Plaintiff deserve scant attention. Any official conduct by which a person is seized by a law

enforcement officer constitutes an arrest. No formalities are required. It matters not a whit how

or by whom Plaintiff was transported to the jail; he had been arrested at the time the defendants

crashed his car and certainly by the time he was handcuffed. An individual has a federally

protected right to be free from unlawful arrest and detention resulting in a significant restraint of

liberty and violation of this right may be grounds for suit under 42 U.S.C. § 1983. See Dennis v.

Warren, 779 F.2d 245, 247 (5th Cir. 1985). 

With respect to the malicious prosecution claim under § 1983, Plaintiff is required to

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prove a violation of his Fourth Amendment right to be free from unreasonable seizures in

addition to the elements of the common law tort of malicious prosecution. If that showing is

made, malicious prosecution is a violation of the Fourth Amendment and a viable constitutional

tort cognizable under § 1983. Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003); citing Uboh v.

Reno, 141 F.3d 1000, 1002-04 (11th Cir. 1998).

The elements of a malicious prosecution claim are: 1) a judicial proceeding initiated by

the defendant; 2) the lack of probable cause; 3) malice on the part of the defendant; 4)

termination of the proceeding in favor of the plaintiff; and 5) damage to the plaintiff as a result. 

Tuscaloosa County v. Teaster, 1999 WL 13544, * 2 (Ala.Civ.App. 1999); citing Eubanks v. Hall,

628 So.2d 773 (Ala.Civ.App. 1993). Probable cause has been defined as “[a] reasonable ground

for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious

man in the belief that the person accused is guilty of the offence charged.” Id., citing Eidson v.

Olin Corp., 527 So.2d 1283, 1285 (Ala. 1988). In actions arising out of prior criminal

prosecutions, probable cause is defined as such a state of facts in the mind of a prosecutor as

would lead a man of ordinary caution and prudence to believe or entertain an honest and strong

suspicion that the person is guilty of the crime charged. Rhyne v. H & B Motors, 505 So.2d 307,

310 (Ala. 1987). For a malicious prosecution derived from a criminal case, malicious or evil

intent may be implied from circumstances in which a prosecution was begun for any purpose

other than a bona fide purpose to bring an accused to punishment as a violator of criminal law. 

National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133, 140 (Ala. 1983). The element of malice

may be inferred from a lack of probable cause. Kitchens v. Winn-Dixie Montgomery, Inc., 456

So.2d 45 (Ala. 1984). If material facts from which the inference of probable cause may be drawn

are in dispute, the issue is a jury question. Partridge v. Sawyer, 383 So.2d 184 (Ala.Civ.App.

Case 2:06-cv-00701-ID-CSC Document 8 Filed 09/19/2006 Page 10 of 14
1980). Certainly, 42 U.S.C. § 1983 is broad enough to cover malicious prosecution

Nor may the defendants hide securely behind their lack of prosecutorial credentials. It is

clear that they initiated the criminal action against Plaintiff. As a consequence of their actions in

initiating that action, Plaintiff spent five weeks as a guest of Lowndes County before the Sheriff

would approve a bond. The case was eventually resolved in his favor, but only after great

damage to him. To let the defendants off the legal hook in this case is to ignore the multitudes of

cases in which private citizens (all or most of whom also lack prosecutorial credentials) have

been successfully sued for malicious prosecution.

The defendants assert, en passant, that there is no clearly established law that would

provide fair warning that their conduct violated the Fourth Amendment. The Eleventh Circuit

would disagree. It is the law of the United States and of the Eleventh Circuit that an arrest

without probable cause is presumptively unconstitutional. In Redd v. City of Enterprise, 140

F.3d 1378, 1382 (11th Cir. 1998), Judge Tjoflat called it a “clearly established” law (“It is clearly

established that an arrest made without probable cause violates the Fourth Amendment. See Von

Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990)”).

It is also unnecessary, after Hope v. Pelzer, 122 S.Ct. 2508 (2002), to show an identical

case in which the actions of the defendants have been found unlawful. Fair warning is all that is

required, and it would be risible for the defendants to claim that they had no clue that ramming

their car into that of a citizen, purposefully causing him to crash, and firing a handgun in his

general direction might be a bit unlawful, absent probable cause to do so.

The defendants claim what amounts to absolute sovereign immunity from all state law

claims. However, the Alabama Supreme Court has stated that sheriffs do not have absolute

immunity in all circumstances. See Coleman v. City of Dothan, 598 So.2d 873, 875 n. 2

Case 2:06-cv-00701-ID-CSC Document 8 Filed 09/19/2006 Page 11 of 14
(Ala.1992) (“We are careful to point out ... that a sheriff is not entitled to absolute immunity in

all situations.”); White v. Birchfield, 582 So.2d 1085, 1088 (Ala.1991) ( “[B]y this opinion, we

are not to be understood as granting absolute immunity to a sheriff in all situations.”). Sovereign

immunity, it would seem, is not so absolute as the defendants would have the Court believe.

The Alabama Supreme Court has recognized that a state officer or employee may not

escape individual tort liability by arguing that his mere status as a state official cloaks him with

the state's constitutional immunity. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989)

(quotations omitted) (quoting Barnes v. Dale, 530 So.2d 770, 781 (Ala.1988)). “Clearly, a state

officer or employee is not protected by § 14 [of the Constitution of Alabama] when he acts

willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a

mistaken interpretation of the law.” See Lumpkin v. Cofield, 536 So.2d 62, 65 (Ala.1988);

Barnes, 530 So.2d at 782; DeStafney v. University of Alabama, 413 So.2d 391, 393 (Ala.1981);

Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978); Unzicker v. State, 346 So.2d 931, 933

(Ala.1977); and St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334

(1961).” Id at 83.

It is clear from the facts alleged that a jury could find that the defendants acted “willfully,

maliciously, illegally, fraudulently, in bad faith, beyond [their] authority, or under a mistaken

interpretation of the law.” In a motion to dismiss under 12(b)(6), the defendants must prove that

under no conceivable set of facts could Plaintiff prevail. It is clear here, with nothing more, that

he could.

They have not briefed this point, but to complete the immunity circle as to discretionary

function immunity, the Alabama Supreme Court has noted that Ala. Code § 6-5-338(a) “extends

discretionary function immunity to municipal police officers . . . unless the officer’s conduct is so

Case 2:06-cv-00701-ID-CSC Document 8 Filed 09/19/2006 Page 12 of 14
egregious as to amount to willful or malicious conduct or conduct engaged in bad faith.” Couch

v. City of Sheffield, 708 So.2d 144, 153 (Ala. 1998).

Declaratory relief is certainly within the ambit of the District Court, with or without

injunctive relief attached. The Court is free to craft such injunctive relief as would pretermit

further violations of Plaintiff’s rights, by way of retaliation or otherwise. Plaintiff agrees that,

absent retaliation, he is unlikely to be subject to the defendants’ tender ministrations in the

future.

RESPECTFULLY SUBMITTED on this the __19th__ day of September, 2006.

/s/ JAY LEWIS

JAY LEWIS

Attorney for Plaintiff

Law Offices of Jay Lewis, LLC

P.O. Box 5059

Montgomery, AL 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Case 2:06-cv-00701-ID-CSC Document 8 Filed 09/19/2006 Page 13 of 14
CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing on the following attorneys or

parties by filing the same with the Clerk by CM/ECF, by hand delivery, or by placing a copy of

the same in the United States mail, first-class postage prepaid and properly addressed on this

___19th___ day of September, 2006.

Daryl L. Masters

Amanda Kay Morgan

Webb & Eley

P.O. Box 240909

Montgomery, AL 36124

/s/ JAY LEWIS

JAY LEWIS

Law Offices of Jay Lewis, LLC

P.O. Box 5059

Montgomery, AL 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

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