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. ) 

MEMORANDUM 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 Memorandum Brief in support of his 

contemporaneously filed Motion for Summary Judgment. 

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TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ............................................................................................3

INTRODUCTION..............................................................................................................7

FACTS ................................................................................................................................7

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

I. LT. WEST ACTED WITHIN HIS DISCRETIONARY 

AUTHORITY...........................................................................................21

II. LT. WEST DID NOT VIOLATE ANY OF THE PLAINTIFF’S 

FEDERALLY PROTECTED RIGHTS. ...............................................22

A. The Traffic Stop Was Lawful. ....................................................22

B. The Plaintiff Was Lawfully Arrested.........................................24

C. The Plaintiff’s Person and Car Were Lawfully Searched........27

D. Lt. West Did Not Use Excessive Force as a Matter of Law......28

1. The use of the PIT maneuver to end the Plaintiff’s flight 

was reasonable. .....................................................................31

2. Firing a warning shot is not excessive force. .................... 33

3. Lt. West used only the force necessary to secure the 

Plaintiff and overcome his refusal to obey the Agents’ 

instructions............................................................................33

E. The Plaintiff Was Lawfully Prosecuted. ....................................34

III. NO CLEARLY ESTABLISHED LAW PROVIDED LT. WEST 

WITH “FAIR WARNING” THAT HIS CONDUCT WAS 

UNLAWFUL. ...........................................................................................37

CONCLUSION ................................................................................................................38

CERTIFICATE OF SERVICE ......................................................................................38

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3

TABLE OF AUTHORITIES

Cases

Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) .................................. 34 

Anderson v. Creighton, 483 U.S. 635 (1987) ................................................................................. 20 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................................................ 18 

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ...................................................................... 26 

Barker v. Norman, 651 F.2d 1107 (5th Cir. 1981) ....................................................................... 21 

Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989)............................................................................. 36 

Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003) ...................................................................... 29 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................................... 17, 18 

Chimel v. California, 395 U.S. 752 (1969)..................................................................................... 27 

Colorado v. Bertine, 479 U.S. 367 (1987) ...................................................................................... 27 

Craig v. Krzeminski, 764 F.Supp. 248 (D.Conn., 1991) .............................................................. 25 

Crosby v. Monroe County, 394 F.3d 1328 (11th Cir. 2004) ........................................................ 29 

Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) ................................................................... 22 

Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996) .............................................................................. 30 

Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir. 1994) ....................................................................... 36 

Florida v. Wells, 495 U.S. 1 (1990)................................................................................................ 27 

Garrett v. Athens-Clarke County, 378 F.3d 1274 (11th Cir. 2004).............................................. 29 

Godby v. Montgomery County Bd. of Educ., 996 F. Supp. 1390 (M.D. Ala. 1999) ................... 22 

Graham v. Connor, 490 U.S. 386 (1989)...................................................................................... 28 

Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990) ........................................................................ 17 

Harbert Intern., Inc. v. James, 157 F.3d 1271 (11th Cir. 1998).................................................... 21 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 3 of 38
4

Hill v. State, 665 So. 2d 1024 (Ala. Crim. App. 1995)..................................................... 24, 25, 27 

Jenkins v. Talladega Bd. of Educ., 115 F.3d 821 (11th Cir. 1997) .............................................. 21 

Jones v. Cannon, 174 F. 3d 1271 (11th Cir. 1999) ....................................................................... 25 

Jordan v. Doe, 38 F.3d 1559 (11th Cir. 1994) .............................................................................. 21 

Lancaster v. Monroe County, 116 F.3d 1419 (11th Cir. 1998) .................................................... 21 

Leslie v. Ingram, 786 F.2d 1533 (11th Cir.1986) ......................................................................... 28 

Marsh v. Butler County, 268 F.3d 1014 (11th Cir. 2001) ...................................................... 18, 29 

Marx v. Gumbinner, 905 F.2d 1503 (11th Cir. 1990)......................................................... 23, 24, 27 

Massachusetts School of Law v. American Bar, 142 F.3d 261st Cir. 1998)................................ 18 

Massey v. Deslauriers, 2005 WL 2043006, *6 (D.Vt., 2005) ...................................................... 25 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).................................... 17 

Michigan v. Summers, 452 U.S. 692 (1981) .......................................................................... 30, 33 

Morales-Arcadio v. Shannon Produce Farms, Inc. 2007 WL 2106188, *9 (S.D. Ga. 2007) ....... 20 

New York v. Belton, 453 U.S. 454 (1981) ..................................................................................... 27 

Otey v. Marshall, 121 F.3d 1150 (8th Cir. 1997) ......................................................................... 33 

Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.1993)...................................................... 28 

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)........................................... 18 

Rich v. Dollar, 841 F.2d 1558 (11th Cir. 1988).............................................................................. 21 

Rodgers v. Horsley, 39 F.3d 308 (11th Cir. 1994).......................................................................... 20 

Saucier v. Katz, 533 U.S. 194 (2001) ........................................................................................... 20 

Scott v. Harris, 127 S. Ct. 1769 (2007)............................................................................. 19, 30, 32 

Skylstad v. Reynolds, 2007 WL 2766436 at *2 (9th Cir. 2007)................................................... 19 

Smith v. Freland, 954 F.2d 343 (6th Cir. 1992)............................................................................ 30 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 4 of 38
5

Storck v. City of Coral Springs, 354 F.3d 1307 (11th Cir. 2003).................................................... 37 

Strength v. Hubert, 854 F.2d 421 (11th Cir. 1988)....................................................................... 34 

Thomas v. Drochner, 1994 WL 803263, *12 (N.D.Ill.,1994) ...................................................... 25 

Thornton v. U.S., 541 U.S. 615 (2004)........................................................................................... 27 

U.S. Steel, L.L.C. v. Tieco, Inc., 261 F.3d 1275 (11th Cir. 2001)................................................... 35 

United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003) ................................................ 23 

United States v. Holloman, 113 F.3d 192 (11th Cir. 1997).......................................................... 22 

Usher v. Los Angeles, 828 F.2d 556 (9th Cir. 1987).................................................................... 35 

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002) ....................................................................... 37 

Wallace v. Kato, 127 S.Ct. 1091 (2007)....................................................................................... 34 

Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996) ........................................................................ 34 

Whren v. United States, 517 U.S. 806 (1996) .............................................................................. 22 

Williams v. Martin, 2007 WL 4139476 (N.D. Ga. Oct 29, 2007)................................................ 20 

Willingham v. Loughnan, 321 F.3d 1299 (11th Cir. 2003) .................................................... 20, 37 

Wood v. Kesler, 323 F.3d 872 (11th Cir. 2003) ........................................................................... 34 

Statutes

18 U.S.C. § 922(g)(9) ................................................................................................................... 24 

Ala. Code § 13A-11-73................................................................................................................. 25 

Ala. Code § 13A-11-74................................................................................................................. 25 

Ala. Code § 13A-12-231............................................................................................................... 31 

Ala. Code § 32-5B-4(a)................................................................................................................. 23 

Ala. Code § 32-5B-4(b)(5)............................................................................................................ 23 

Ala. Code 13A-12-212.................................................................................................................. 31 

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Other Authorities

9A C. Wright & A. Miller, Federal Practice and Procedure § 2529............................................. 18 

Fed. R. Civ. P. 56(c) ..................................................................................................................... 17 

Fed. R. Civ. P. 56(e) ..................................................................................................................... 17 

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INTRODUCTION

Following the Court’s May 24, 2007 Order, the Plaintiff has five remaining Fourth 

Amendment claims against the Defendants in their individual capacities: (1) illegal traffic stop; 

(2) false arrest; (3) unlawful search; (4) excessive force1 and (5) malicious prosecution. (Doc. 12 

at p. 38.)2 The parties have engaged in discovery and have since discovered that the facts were 

not as pled in the Complaint or Amended Complaint. Taken in the light most favorable to the 

Plaintiff, the facts in the record demonstrate that Deputy West is entitled to qualified immunity 

and judgment in his favor as a matter of law. 

FACTS

Chris West is a lieutenant with the Lowndes County Sheriff’s Department and the 

Commander of the Second Judicial Drug Task Force (hereinafter “DTF”). (Exhibit A, 

Deposition of Chris West, “West dep.”, at 5:14-6:1; 6:7-7:14.)3 Lt. West has approximately 12 

years with the Lowndes County Sheriff’s Department. Id. at 5:16-18. He is a graduate of the 

ten-week FBI Academy. Id. at 11:7-10. In total, Lt. West has 17 years experience in narcotics 

investigations, the last seven of which have been as the DTF Commander. (Exhibit B, 

Declaration of Chris West, “West dec.”, at ¶ 5.) He has made hundreds of drug cases during that 

time. Id. Lt. West’s experience has taught him the methods by which drug dealers and users 

store and transport illicit substances. Id. 

At the time of the incident underlying the Plaintiff’s Amended Complaint, Lashun 

Hutson was a police officer with the City of Hayneville serving on the DTF. (Exhibit C, 

 

1

 As discussed in the excessive force section below, the Plaintiff may not have a separate excessive force claim at 

this stage of the litigation. (See also Doc. 12 at pp. 27-29, 38-39.) 2

 The Court ordered the Plaintiff to file an Amended Complaint restating the malicious prosecution claim with more 

specificity. (Doc. 12 at p. 38.) 

3

 In citing to depositions, this brief will use the convention “p:l-l”, where “p” is the page number and “l” is the line 

number. 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 7 of 38
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Deposition of Lashun Hutson, “Hutson dep.”, at 5:15-20.) Since the events underlying the 

Plaintiff’s lawsuit, Agent Hutson has become a deputy with the Lowndes County Sheriff’s 

Department. Id. at 5:9-23. 

 Sometime prior to June 28, 2005, the Defendants received information that the Plaintiff 

was selling crack cocaine and marijuana at his residence and other locations. (West dep. at 14:1-

14; Hutson dep. at 14:13-19.) Lt. West received this information on more than one occasion. Id.

at 17:7-15. As a result, on June 28, 2005, Lt. West and Agent Hutson (hereinafter collectively 

referred to as “the Agents”) went to the Plaintiff’s home off of Highway 21 to do a “knock-andtalk”. Id. at 14:15-22. Lt. West was driving. Id. at 12:21-23. 

The Agents drove to the Plaintiff’s home in an unmarked Lincoln Town Car. (West dep. 

at 13:1-6; 21:10-15.) The Town Car was equipped with a blue and white warning light that 

plugged into the cigarette lighter adapter. Id. at 19:22-20:22. When the Agents got to the 

Plaintiff’s home, they knocked on the door but no one answered. Id. 16:2-5. The Agents got 

back into their car and began driving towards the Casey Community. Id. at 16:7-16. 

 The Agents also had information that the Plaintiff owned an older blue Chevrolet Nova. 

(West dep. at 17:1-6.) After the Agents turned on to Lowndes County Road 7, they saw the 

Plaintiff in a blue Chevrolet Nova coming towards them. Id. at 19:6:15. Lt. West turned his 

vehicle around and headed back down County Road 7 towards Highway 21. Id. at 19:15-18. 

Coming up behind the Plaintiff’s car, Lt. West saw that the Plaintiff and his passenger did 

not have on their seatbelts. (West dep. at 19:20, Ex. 6 at p.1.) The Plaintiff, in fact, was not 

wearing his seatbelt even though his car was equipped with them. (Exhibit D, Plaintiff’s 

Responses to Defendants’ Requests for Admission, “RFA”, at ¶ 6; Exhibit E, Deposition of 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 8 of 38
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Richard Marshall, “Marshall dep.” at 28:20-23.) The Plaintiff’s one passenger, Kelvin 

Carmichael, was also not wearing his seatbelt. (Marshall dep. at 29:1-2.) 

Because the Plaintiff was not wearing his seatbelt, Lt. West determined that he had 

probable cause to stop the vehicle. (West dep. at 56:17-22.) At Lt. West’s direction, Agent 

Hutson activated the car’s blue and white strobe and placed it on the dashboard in an attempt to 

initiate a traffic stop. Id. at 19:20-20:4; Hutson dep. at 18:1-16. The lights were working at the 

time and emitted blue and white flashes of light. (West dep. at 20:18-21:2.) 

The Plaintiff did not stop. (West dep. at 20:5-7.) Lt. West next tried blowing his horn 

and flashing his headlights – all without effect. Id. at 21:6-18. The Plaintiff testified that he saw 

the Town Car veer off the road in his rearview mirror, but did not see it again until it pulled 

alongside of his car. (Marshall dep. at 43:13-19.) Lt. West did pull alongside the Plaintiff’s car 

when the Plaintiff failed to stop. (West dep. at 21:6-21; Marshall dep. at 44:6-8.) The windows 

were down in both cars. (West dep. at 21:21-22:1; Marshall dep. at 45:10-11; Hutson dep. at 

19:1-9.) Agent Hutson produced his badge and told the Plaintiff to pull over. (Hutson dep. at 

19:5-7.) 

According to the Plaintiff, in a “brief glance” all he saw were two black males in black Tshirts “trying to flag me to pull over”. (Marshall dep. at 44:8-23, 46:9-11.) He had a car stereo 

with amplifiers blaring so he was unable to hear what Agent Hutson said to him. Id. at 45:21-

46:11.) Nonetheless, he also testified that he asked Agent Hutson “What the fuck y’all want?” 

Id. at 50:1; West dep. 22:16-19.) 

The Plaintiff’s car also contained a loaded .357 magnum revolver on the front seat right 

beside the Plaintiff. (“Marshall dep.” at 30:7-14, 62:17-23, Ex. 3; Exhibit F, Drug Task Force 

Case File for Case No: 05-06-011, “Case File”, Alabama Uniform Incident/Offense Report, Case 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 9 of 38
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No. 05-06-011, “I/O rep.” at p. 1; Exhibit G, Case File, 2nd Judicial Drug Task Force Drug 

Agent Statement Form of Lt. West, “West stmt.”, at p. 1.; Exhibit H, Case File, 2nd Judicial 

Drug Task Force Drug Agent Statement Form of Agent Hutson, “Hutson stmt.”, at p. 2; Exhibit 

I, Case File, Interview Sheet of Kelvin Carmichael, “Carmichael inter.”; Exhibit J, Case File, 

Warrant Deposition, “Warrant dep.”, at p. 1; RFAs at ¶¶ 1-3.) There was extra ammunition in 

the ashtray and seat of the car. (Marshall dep. at 21:19-22:15, Exs. 3 and 4.) According to the 

Plaintiff, the gun belonged to D.C. McWilliams who had left the gun and ammunition in the 

Plaintiff’s car three to four days earlier. Id. at 30:10-31:10. The Plaintiff did not have a pistol 

permit. Id. at 33:8-11. 

When the Agents efforts proved futile, Lt. West fell back behind the Plaintiff’s car. 

(West dep. 22:20-23; Hutson dep. at 19:11-14; Marshall dep. at 48:18-23.) The Plaintiff testified 

that he did not pull over because he had been robbed once before – although not while he was in 

his car – and thought the two men might be trying to rob him.4 (Marshall dep. at 46:12-47:6.) 

The Agents followed the Plaintiff to the Highway 21 intersection where the Plaintiff ran the stop 

sign and turned right heading away from the City of Hayneville and towards Wilcox County. 

(West dep. 23:13-23; Hutson dep. at 15-21; Marshall dep. at 50:23-51:11, 52:4-13.) While there 

were gas stations and stores along Highway 21 going toward Hayneville, there were none in the 

direction the Plaintiff turned. (Marshall dep. at 76:18-77:11.) 

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 

 

4

 There is no evidence in the record that the Plaintiff’s thought that the Agents were not police officers was ever 

communicated to either Lt. West or Agent Hutson. 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 10 of 38
11

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.) 

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. 

The Agents continued to pursue the Plaintiff’s car after being struck by the baggy. Lt. 

West pulled his vehicle up alongside the Plaintiff’s car for a second time on Highway 21 in an 

attempt to get him to stop. (West dep. at 24:11-18; Hutson dep. at 20:5-16; Marshall dep. at 

52:23-53:1.) Agent Hutson held his badge up and told the Plaintiff to pull over. (Hutson dep. at 

20:8-9.) Lt. West had his badge up and was yelling for the Plaintiff to pull over as well. Id. at 

20:11-13. 

The Plaintiff testified that his radio was still going so he could not hear Agent Hutson, or 

tell what Lt. West was doing at all. (Marshall dep. at 54:16-18, 55:8-21.) He also testified that 

in another “glance” he thought he saw a gun in Agent Hutson’s hand. Id. at 54:22-55:2, 56:5-14. 

Agent Hutson gestured with the “gun” for the Plaintiff to pull over. Id. at 56:15-18. The 

Plaintiff again refused and the Agents pulled back behind the Plaintiff’s car. (West dep. at 

24:19; Hutson dep. at 21:2-7; Marshall dep. at 59:23-60:4.) 

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The Agents followed the Plaintiff for another 1 1/2 to 2 miles. (Marshall dep. at 60:2-3.) 

During this time Lt. West observed the Plaintiff moving around in his seat and looking down. 

(West dep. 24:19-23.) The Plaintiff testified that he did not look in the rearview mirror during 

this time and had no idea what the Agents did. (Marshall dep. at 60:5-14.) 

Lt. West’s next course of action was to attempt to “bump” the Plaintiff’s car in an attempt 

to get him to pull over. (West dep. at 25:3-5.) The parties appear to be in agreement that Lt. 

West bumped the Nova with his Town Car approximately two times before a final hit put the 

Nova against an embankment. Id.; Marshall dep. 65:5-11. 

The first bump came as the cars were traveling between 45 to 55 mph. (Marshall dep. at 

65:19-22.) According to the Plaintiff, the Town Car could not have been traveling much faster 

than his Nova because Lt. West was “riding [the Plaintiff’s] bumper”. Id. at 68:4-12. After this 

bump, the Plaintiff still refused to pull over but slowed down to between 30 and 35 mph. Id. at 

67:3-11. 

The Plaintiff testified that the impact of the second bump was about the same. (Marshall 

dep. at 68:13-17, 69:13-15.) According to the Plaintiff, because he was traveling at a slower 

speed, “the car just like jerked”. Id. at 70:14-16. 

Lt. West then executed a Pursuit Intervention Technique (hereinafter “PIT”). (West dep. 

at 29:3-14.) To execute a PIT maneuver, the police vehicle pulls up next to the fleeing suspect’s 

car so that his front fender is next to the suspect’s rear fender. The officer then slows down and 

simultaneously turns into the suspect’s car. Id. at 29:15-21. This was the maneuver that Lt. 

West performed on the Plaintiff’s car to bring the pursuit to an end. Id. at 29:22:30:1. 

There was no traffic around the parties’ vehicles when Lt. West performed the PIT 

maneuver, or at any time during the pursuit. (Marshall dep. at 74:7-14.) The Plaintiff’s car was 

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13

traveling at approximately 35 mph immediately prior to the PIT. Id. at 70:8-10. After the third 

contact, the Plaintiff’s Nova crossed over Highway 21 and slid to a stop on an embankment 

facing in the opposite direction. Id. at 71:22-72:7, 78:23-79:4, Ex. 2. The Plaintiff’s car did not 

hit anything on its way to its final resting place, because there was nothing around for it to hit. 

Id. 78:18-22; West dep. 25:9-16. 

After striking the Plaintiff’s car the final time, Lt. West backed up and brought his car to 

a stop so that it was facing the driver’s side front quarter panel of the Plaintiff’s Nova. (West 

dep. at 25:16-21; Marshall dep. at 80:18-81:13, Exs. 7 and 8.) Using their doors for protection, 

the two Agents got out of their car with their weapons drawn and pointing at the Plaintiff and his 

passenger. Lt. West covered the Plaintiff while Agent Hutson covered Mr. Carmichael. (West 

dep. at 25:22-26:1; Hutson dep. at 24:4-10; Marshall dep. at 82:23-83:4, 85:19-21.) At this time 

the Plaintiff was able to see a badge hanging around Lt. West’s neck and knew they were law 

enforcement officers. (Marshall dep. at 83:9-22, 87:18-23.) 

Despite the Plaintiff’s claims that he believed he was being robbed prior to this time, at 

no point did he pick up the pistol he had beside him or try to use it against the Agents. (Marshall 

dep. at 73:4-6.) The Plaintiff had a cellular telephone with him. Id. at 73:7-8. However, he did 

not use it to report that he was being chased by “robbers”, in the entire 5 to 10 minute period of 

the pursuit. Id. at 73:7-74:2. 

Lt. West ordered the Plaintiff to get out of the car and get on the ground. (West dep. at 

26:1-2, Marshall dep. at 86:3-8.) The Plaintiff responded by cursing. (West dep. at 31:1-7; 

Hutson dep. at 25:4-5.) He did get out of the car, but refused Lt. West’s commands to get on the 

ground. (West dep. at 32:11-16; Hutson dep. at 25:6-13; Marshall dep. at 87:2-11, 112:13-

113:11.) The Plaintiff testified that he refused because he was “agitated” and “just didn’t feel 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 13 of 38
14

like getting on the ground at the time.” (Marshall dep. at 87:5-11.) He remained standing 

between the driver’s door of the Nova and the body of the car. Id. at 86:8-9. The .357 magnum 

revolver remained lying on the front passenger seat within feet of the Plaintiff. Id. at 86:20-87:1, 

Ex. 3. 

Lt. West ordered the Plaintiff to get on the ground “several” more times, and the Plaintiff 

refused. (West dep. at 32:14-18; Hutson dep. at 25:9-12; Marshall dep. at 86:8-13.) 

Consequently, Lt. West fired his weapon into the ground six to eight feet from the Plaintiff. 

(West dep. at 32:16-21.)5 Lt. West did so because as a plain clothes officer, he did not have any 

other less than lethal or non-lethal force options available to him. (West dec., at ¶¶ 11-13.) 

The Plaintiff froze when Lt. West fired the warning shot. (West dep. at 32:22-33:1; 

Hutson dep. at 26:2-11.) Lt. West approached the Plaintiff still commanding him to get on the 

ground, and the Plaintiff still refused. (Marshall dep. at 114:10-115:1.) Lt. West reached the 

Plaintiff, put him on the ground with a foot sweep, and placed him in handcuffs. Id. at 89:17-

90:11. After the Plaintiff was in cuffs on the ground, Agent Hutson ordered Mr. Carmichael out 

of the car and placed him in handcuffs as well. Id. at 94:16-95:17, Exs. 7 and 8. 

After securing the Plaintiff, Lt. West looked into the car and saw the revolver. (West 

dep. at 33:15-22. Consequently, Lt. West conducted a pat down search of the Plaintiff. Id. at 

34:3-4. According to the Plaintiff, Lt. West also went through his pockets and removed his 

wallet. (Marshall dep. at 96:7-11.) The Plaintiff testified that he did not see Lt. West take out 

his money. Id. at 96:21-22, 97:5-8. Lt. West also searched the Plaintiff’s waist band area of the 

Plaintiff’s pants. Id. at 97:16-20. The entire search of the Plaintiff’s person took “a couple of 

 

5

 The Plaintiff testified that he heard the shot and knew it hit the ground but could not say exactly where the bullet 

struck. (Marshall dep. at 113:12-114:7.) At his deposition the Plaintiff completely described what happened to him 

on the side of Highway 21, and curiously “forgot to mention” the warning shot. Id. at 69:18-109:8. It was only after 

a lunch break with his attorneys that his memory of the incident returned. Id. at 109:6-111:15. 

Case 2:06-cv-00701-ID-CSC Document 32 Filed 02/12/2008 Page 14 of 38
15

minutes”. Id. at 98:2-11. Lt. West then searched/inventoried the Plaintiff’s car for 

approximately eight more minutes. Id. at 97:22-98:11. The Plaintiff’s car was impounded and 

inventoried pursuant to DTF policy. (West dec. at ¶¶ 17-18.) 

Afterward, Lt. West placed the Plaintiff in the backseat of the Nova. (West dep. at 34:6-

19; Marshall dep. at 99:10-100:1.)6

 The Plaintiff refused and fought against Lt. West’s efforts to 

put him in the Nova. (West dep. at 34:11-16; Marshall dep. at 99:15-19, 101:19-102:10.) Lt. 

West used a “full nelson choke” for five to ten seconds to obtain the Plaintiff’s compliance. 

(Marshall dep. at 102:10-20, 103:16-22.) Lt. West released the hold when the Plaintiff “gave 

up” and said he would get in the car. Id. at 103:7-15. 

The Plaintiff admitted during his deposition testimony that the Agents had a light in their 

car. After he was placed in the Nova, the Plaintiff testified that Lt. West went to the Town Car, 

got the light, and put it on top of the Town Car. According to the Plaintiff, Lt. West had to 

“beat” on the light to get it to start flashing. (Marshall dep. at 100:5-22.) 

Subsequently, Lt. West called for a marked patrol car. (West dep. at 34:23-35:1.) While 

waiting for the patrol car, Lt. West took photographs of the scene that are Exhibits 2-4, 7, 8, 10 

and 11 of the Plaintiff’s deposition. (West dep. at 35:2.) The marked unit, driven by Deputy 

Phil Harding, arrived and the Plaintiff was moved to the patrol car. (Marshall dep. at 117:7-8; 

West dep. at 37:3-11.) Mr. Carmichael was placed in the front seat of the Town Car. (Marshall 

dep. at 117:8-10.) Agent Hutson drove the Plaintiff’s car from the scene. Id. at 117:9-10. 

The Agents and the deputy drove to the point on Highway 21 where the baggy hit the 

Agent’s windshield. (West dep. 39:16-40:6; Hutson dep. at 31:17-32:4; Marshall dep. at 118:3-

 

6

 The Parties differ sharply on when the Plaintiff’s shorts came off. Officer West testified that it was when he was 

trying to take the Plaintiff to the ground. (West dep. at 34:5-10.) The Plaintiff testified they came off as Lt. West 

was trying to get him to go into the back seat of the Nova. (Marshall dep. at 99:10-100:1.) For purposes of 

summary judgment only, the Plaintiff’s version of the event is accepted. 

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16

10, 119:20-18.) Lt. West found the baggy containing what he believed to be drug residue. (West 

dep. at 40:21-22. 

After one more stop to change a flat tire on the marked patrol car, the Plaintiff was 

transported to the Lowndes County Detention facility. (Marshall dep. at 120:3-121:20.) At the 

Detention Facility, the Plaintiff was booked into the jail by the jail staff. Id. at 122:6-10, 122:21-

125:11. The Plaintiff claims that he told the booking officer that Lt. West took $400.00 from 

him. Id. at 126:11-14. However, he never made a written statement, filed a grievance, told the 

Sheriff of Lowndes County, or made a report with any police agency. Id. at 126:15-127:2. Of 

course, as noted earlier, the Plaintiff also testified that he never saw Lt. West take his money. 

Lt. West charged the Plaintiff on June 28, 2005, with carrying a pistol without a permit 

and possession of a controlled substance. (West dep. at 38:18-22.) When DFS informed Lt. 

West that the baggy did not contain a controlled substance, he informed the prosecutor and that 

charge was dismissed against the Plaintiff. (West dec. at ¶ 13; Marshall dep. at 138:10-139:17.) 

The weapons charge was dismissed in favor of a federal prosecution that is apparently still 

pending presentment to a grand jury when it was learned that the Plaintiff had a domestic 

violence conviction. (West dec. at ¶¶ 14-16; Exhibit K, Case File, Documents submitted to and 

received from BATFE.)7

ARGUMENT

Federal Rule of Civil Procedure 56 governs motions for summary judgment: “A party 

against whom a claim . . . is asserted . . . may, at any time, move with or without supporting 

affidavits for a summary judgment in the party’s favor as to all or any part thereof.” 

The judgment sought shall be rendered forthwith if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

 

7

 The remainder of the case file not identified as a separate exhibit is attached as Exhibit L. 

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17

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. 

Fed. R. Civ. P. 56(c). 

 “The plain language of Rule 56(c) mandates the entry of summary judgment, after 

adequate time for discovery and upon motion, against a party who fails to make a showing 

sufficient to establish the existence of an element essential to that party’s case, and on which that 

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

When a motion for summary judgment is made and supported as provided in this 

rule, an adverse party may not rest upon the mere allegations or denials of the 

adverse party’s pleading, but the adverse party’s response, by affidavits or as 

otherwise provided in this rule, must set forth specific facts showing that there is a 

genuine issue for trial. 

Fed. R. Civ. P. 56(e). 

 “Summary judgment procedure is properly regarded not as a disfavored procedural 

shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to 

secure the just, speedy and inexpensive determination of every action.’” Celotex, 477 U.S. at 

327 (quoting Fed. R. Civ. P. 1). 

Rule 56 must be construed with due regard not only for the rights of persons 

asserting claims and defenses that are adequately based in fact to have those 

claims and defenses tried to a jury, but also for the rights of persons opposing 

such claims and defenses to demonstrate in the manner provided by the Rule, 

prior to trial, that the claims and defenses have no factual basis. 

Celotex, 477 U.S. at 327. 

On a motion for summary judgment, the court should view the evidence in the light most 

favorable to the non-movant. Greason v. Kemp, 891 F.2d 829, 831 (11th Cir. 1990). However, 

a plaintiff “must do more than show that there is some metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only 

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18

reasonable inferences with a foundation in the record inure to the non-movant’s benefit. Reeves 

v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000). “[T]he court should give 

credence to the evidence favoring the non-movant as well as that ‘evidence supporting the 

moving party that is uncontradicted or unimpeached, at least to the extent that that evidence 

comes from disinterested witnesses.’” Id. (quoting 9A C. Wright & A. Miller, Federal Practice 

and Procedure § 2529, p. 299).8

 The Court “need not ‘swallow plaintiff’s invective hook, line 

and sinker; bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like 

need not be credited.’” Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001) (en 

banc) (quoting Massachusetts School of Law v. American Bar, 142 F.3d 26, 40 (1st Cir. 1998)). 

Last year the United States Supreme Court, in a qualified immunity case, revisited the 

standard of review in the context of a motion for summary judgment emphasizing the 

“reasonable jury” aspect of the standard: 

At the summary judgment stage, facts must be viewed in the light most favorable 

to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. 

Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has 

carried its burden under Rule 56(c), its opponent must do more than simply show 

that there is some metaphysical doubt as to the material facts .... Where the record 

taken as a whole could not lead a rational trier of fact to find for the nonmoving 

party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. 

Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 

(1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly supported motion for 

summary judgment; the requirement is that there be no genuine issue of material 

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 

91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of 

which is blatantly contradicted by the record, so that no reasonable jury could 

believe it, a court should not adopt that version of the facts for purposes of ruling 

on a motion for summary judgment.

 

8

 Although Reeves was a review of a motion for judgment as a matter of law after the underlying matter had been 

tried, the Supreme Court, in determining the proper standard of review, relied heavily on the standard for summary 

judgment stating, “the standard for granting summary judgment ‘mirrors’ the standard for judgment as a matter of 

law, such that ‘the inquiry under each is the same.’” Reeves, 530 U.S. at 150, citing Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250-251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

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19

Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) (Emphasis added). 

In Scott, the Supreme Court rejected the reading of the record by the district court and the 

Eleventh Circuit Court of Appeals which had, in an effort to view the evidence in a light most 

favorable to the plaintiff, credited the plaintiff’s deposition testimony. In his deposition, Harris 

swore that “[he had] remained in control of his vehicle, slowed for turns and intersections, and 

typically used his indicators for turns. He did not run any motorists off the road. Nor was he a 

threat to pedestrians in the shopping center parking lot, which was free from pedestrian and 

vehicular traffic as the center was closed.” Id. at 1775. Yet the plaintiff’s words were flatly 

contradicted by other more credible aspects of the record, particularly a videotape showing 

driving in an extremely reckless manner: “The videotape tells quite a different story.” Id.

Nothing in the Scott opinion, however, limited its application to cases where the 

plaintiff’s testimony is pitted against videotape. The Ninth Circuit in Skylstad v. Reynolds, 2007 

WL 2766436 at *2 (9th Cir. 2007), relying on Scott’s broadening of the motion for summary 

judgment standard, rejected the plaintiff’s version of the facts even without a videotape disputing 

it. 

Skylstad disputes that he actively resisted arrest. Declarations from officers on the 

scene unanimously state that Skylstad refused to exit the car and violently resisted 

arrest. Skylstad states that he voluntarily surrendered, that the officers 

unnecessarily used a K-9 dog to repeatedly bite and attack him, and that the 

officers smashed his head against the car and cut his arms open at the scene to 

take his blood. Skylstad offers the declarations of his wife and two other 

witnesses to support his version of events. The medical evidence, however, 

directly contradicts Skylstad's version of events. Although the dog bite was 

serious and required medical attention, there is no medical evidence of multiple 

dog bites, head injury, or cuts on the arms. . . . In summary, Skylstad failed to 

raise a triable issue for a jury on his claim of excessive force. 

Skylstad, 2007 WL 2766436 at *2 - *3. 

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 Similarly, the Northern District of Georgia granted summary judgment on an excessive 

force claim, citing Scott v. Harris’s standard and concluding that “the evidence supporting 

Williams’s claim that Hatcher used unconstitutionally excessive force is exceptionally weak.” 

Williams v. Martin, 2007 WL 4139476 (N.D. Ga. Oct 29, 2007); see Morales-Arcadio v. 

Shannon Produce Farms, Inc. 2007 WL 2106188, *9 (S.D. Ga. 2007) (“There thus is no genuine 

issue of fact that the checks face-dated 8/11/04 were printed and given to the workers in late 

September or early October 2004. Though Shannon would like to take a position without 

evidentiary support other than the user-selected face date on the check, that ‘position is so utterly 

discredited by the record that no reasonable jury could . . . believe [ ]’ it.” (quoting Scott v. 

Harris, 550 U.S. ---, 127 S. Ct. 1769, 1776 (2007)). 

Lt. West is entitled to judgment in his favor as a matter of law because he is entitled to 

qualified immunity. Once a defendant has asserted the defense of qualified immunity and 

demonstrated that he was acting within his discretionary authority, the burden shifts to the 

Plaintiff who must first demonstrate from the record that the defendant official violated his 

federally protected rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). However, even if the 

Plaintiff successfully makes such a showing, he must also point the Court to clearly established 

law that provided “fair warning” that the conduct of the Defendants was illegal. Willingham v. 

Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003). In making an assessment of whether the 

particular conduct of Lt. West was clearly established as being violative of constitutional dictates, 

the reviewing court must examine the state of law at the time the alleged deprivation occurred. See

Rodgers v. Horsley, 39 F.3d 308, 311 (11th Cir. 1994). A constitutional right is clearly established 

only if its contours are “sufficiently clear that a reasonable official would understand that what he is 

doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); Lancaster v. Monroe 

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21

County, 116 F.3d 1419, 1424 (11th Cir. 1998). “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.” 

Jenkins v. Talladega Bd. of Educ., 115 F.3d 821, 827 (11th Cir. 1997) (en banc) (citations 

omitted). 

 Lt. West is entitled to qualified immunity for three reasons. First, he was acting within 

his discretionary authority. Second, the evidence in the record would not convince a reasonable 

jury that Lt. West violated any of the Plaintiff’s federally protected rights. Finally, no clearly 

established law gave Lt. West “fair warning” that his conduct was illegal. 

I. LT. WEST ACTED WITHIN HIS DISCRETIONARY AUTHORITY. 

Once a public official has asserted the defense of qualified immunity, he bears the burden of 

proving that he was acting within his discretionary capacity. Rich v. Dollar, 841 F.2d 1558, 1563 

(11th Cir. 1988). In order to establish that he is acting within his discretionary capacity, a public 

official asserting qualified immunity need only show “objective circumstances which would 

compel the conclusion that his actions were undertaken pursuant to the performance of his duties 

and within the scope of his authority.” Id. at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 

1121 (5th Cir. 1981)). Courts should not be “overly narrow” in interpreting this requirement. 

Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994). To determine this question “a court must 

ask whether the act complained of, if done for a proper purpose, would be within, or reasonably 

related to, the outer perimeter of an official’s discretionary duties.” Harbert Intern., Inc. v. 

James, 157 F.3d 1271, 1282 (11th Cir. 1998) (citation omitted). As one district court observed, 

“the determination that an officer was acting within his discretionary authority is quite a low 

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22

hurdle to clear.” Godby v. Montgomery County Bd. of Educ., 996 F. Supp. 1390, 1401 (M.D. 

Ala. 1999). 

As noted by the Court at the motion to dismiss stage, it was “undisputed, and alleged, by 

the Plaintiff, that the Defendants were at all relevant times acting within the scope of their 

discretionary authority”. (Doc. 12 at pp. 13-14, citing Doc. 1 at ¶¶ 4-5, 14 (emphasis added).) 

Even without the allegations, the facts in the summary judgment record show that Lt. West was 

on duty and performing his functions as commander of the DTF. Consequently, as Lt. West 

easily meets his burden in the qualified immunity analysis, the burden shifts to the Plaintiff to 

demonstrate the existence of a constitutional violation and clearly established law. 

II. LT. WEST DID NOT VIOLATE ANY OF THE PLAINTIFF’S FEDERALLY 

PROTECTED RIGHTS. 

As noted previously, the Plaintiff alleges five violations of his Fourth Amendment rights: 

(1) illegal traffic stop; (2) false arrest; (3) unlawful search; (4) excessive force and (5) malicious 

prosecution. (Doc. 12 at p. 38.) The Plaintiff’s claims survived Lt. West’s 12(b)(6) motion on 

the basis of allegations in the Complaint that subsequent discovery has revealed to be untrue and, 

in at least one important aspect, a misrepresentation to the Court. As set forth more fully below, 

no reasonable jury could conclude from the evidence in the record that Lt. West violated any of 

the Plaintiff’s federally protected rights. 

A. The Traffic Stop Was Lawful. 

The only question for purposes of determining the constitutionality of a traffic stop is: 

“Did [the officer] have probable cause to believe that a traffic violation had occurred?” Draper 

v. Reynolds, 369 F.3d 1270, 1275 (11th Cir. 2004). The subjective intent of the officer is utterly 

irrelevant. Id. citing Whren v. United States, 517 U.S. 806, 812-13 (1996); United States v. 

Holloman, 113 F.3d 192, 194 (11th Cir. 1997). Instead, “[w]hether probable cause exists is 

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23

‘viewed from the standpoint of an objectively reasonable police officer.’” (Doc. 12 at p. 17 

quoting United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003).) The Eleventh 

Circuit has held that “probable cause” exists where: 

 ‘the facts and circumstances within [the officers]’ knowledge and of which they had 

reasonably trustworthy information [are] sufficient in themselves to warrant a man 

of reasonable caution in the belief that' an offense has been or is being committed. 

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 

1879 (1949)(brackets in original) (citing Carroll v. United States, 267 U.S. 132, 162, 

45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)); Wilson v. Attaway, 757 F.2d 1227, 1235 

(11th Cir. 1985). Probable cause does not require overwhelmingly convincing 

evidence, but only “reasonably trustworthy information,” Beck v. Ohio, 379 U.S. 89, 

91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), and probable cause “must be judged 

not with clinical detachment but with a common sense view to the realities of normal 

life.” Wilson, 757 F.2d at 1235. When the facts are not in dispute, whether probable 

cause existed is a question of law, and summary judgment is appropriate. See White 

v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986); Wille v. Raymond, 487 So.2d 

1211, 1214 (Fla.App.1986). 

Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990). 

Alabama law mandates that all front seat passengers use seatbelts. Ala. Code § 32-5B4(a). This requirement does not apply to the occupants of cars manufactured prior to 1965. Ala. 

Code § 32-5B-4(b)(5). The Plaintiff alleged in his Amended Complaint that he was “lawfully 

operating his motor vehicle, a 1971 Chevrolet Nova, on a public road in Lowndes County.” 

(Doc. 16 at ¶ 8.) This was a clear misrepresentation to the Court. The Plaintiff admitted in 

responses to requests for admission and in his deposition that his car was equipped with seatbelts 

but that neither he nor his passenger were using them at the time the Agents attempted to stop 

them. Moreover, on the date of the Plaintiff’s arrest, he signed a written “courtesy warning” for 

attempting to elude and “no seat belt”. (Exhibit M, Case File, Courtesy Warning.)9

 

 

9

 The Plaintiff’s signature on warning casts strong doubt on the validity of his earlier argument that he could not 

know what information the Defendants had when they initiated the traffic stop – he signed a document informing 

him of the basis for the stop. While the undersigned has no doubt that Plaintiff’s counsel was unaware of this 

document prior to filing the Amended Complaint, there is likewise no doubt that the Plaintiff was aware of it. 

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24

Consequently, the Plaintiff had to be aware when he filed his Complaint and his Amended 

Complaint that he was not operating his car lawfully at the relevant time on June 28, 2005.10 

In his contemporaneously prepared statement, Lt. West noted that he saw that the 

Plaintiff and Mr. Carmichael were not wearing their seatbelts. (West stmt. at p. 1.) Lt. West 

specifically testified in his deposition that his probable cause for the traffic stop was the Plaintiff 

and his passenger’s failure to wear their seatbelts. (West dep. at 56:17-22.) The Plaintiff’s car 

was made within the timeframe that Alabama law requires the use of seatbelts. The Plaintiff 

admits his car was equipped with seatbelts and he was not wearing his. Therefore, probable 

cause existed for the traffic stop. 

B. The Plaintiff Was Lawfully Arrested. 

 The existence of probable cause is an absolute bar to a 42 U.S.C. § 1983 false arrest claim. 

Gumbinner, 905 F.2d at 1505-06. Where a police officer has probable cause to arrest for “any 

chargeable offense, then the probable cause element is satisfied.” Hill v. State, 665 So. 2d 1024, 

1026 (Ala. Crim. App. 1995) (emphasis added). The same principle described in Hill has been 

recognized in a number of federal jurisdictions: 

Even assuming that statement is not sufficient probable cause for the assault 

citation, several courts have held that the existence of probable cause to make an 

arrest on one charge is sufficient to refute a charge of unlawful arrest on another, 

related charge. See, e.g., Rowe v. City of Rochester, 2002 U.S. Dist. LEXIS 

25519, *32-*33 (W.D.N.Y.2002); Lieberman v. Dudley, 1998 U.S. Dist. LEXIS 

16809, *5 n. 1 (D.Conn., Jul. 27, 1998); Luthe v. City of Cape May, 49 F.Supp.2d 

380, 390-91 (D.N.J.1999). These cases reason that “probable cause requires only 

a probability or substantial chance of criminal activity. But a finding of probable 

cause is not contingent on whether the officer articulated the correct basis for the 

 (Compare with Doc. 12 at p. 21 noting that the Plaintiff could not be required to plead facts of which he was 

unaware.) The Plaintiff’s failure to plead facts of which he was aware deprived the Defendants of an earlier 

favorable resolution of the qualified immunity issue – and therefore stripped them of its benefits. 10 And, of course, the Plaintiff neglected to plead that he did not have a permit for the gun in his car or that he was 

prohibited under federal law from possessing a gun due to his domestic violence conviction. 18 U.S.C. § 922(g)(9). 

The Plaintiff, therefore, was hardly “peacefully” and “lawfully” operating his vehicle on June 28, 2005, as the Court 

was forced to conclude in ruling on the Defendants Rule 12(b)(6) motion. (Doc. 12 at p. 19.) 

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arrest.” Rowe, 2002 U.S. Dist. LEXIS at *33 (quoting Lieberman, 1998 U.S. Dist. 

LEXIS at *5 n. 1). This reasoning is persuasive, and I therefore recommend that 

this Court grant the city defendants' motion for summary judgment as to Count 1. 

Massey v. Deslauriers, 2005 WL 2043006, *6 (D.Vt., 2005); see also Thomas v. Drochner, 1994 

WL 803263, *12 (N.D.Ill.,1994) (explaining that, “[w]hen an individual is arrested under one 

charge when probable cause for arrest exists under another charge, the arrestee has suffered no 

Fourth Amendment injury sufficient for a § 1983 cause of action.”); Craig v. Krzeminski, 764 

F.Supp. 248, 250 (D.Conn., 1991) (reasoning that “if probable cause existed to arrest plaintiff for 

any crime, the arrest is valid.”). 

When qualified immunity is at issue, the burden becomes even more strenuous requiring a 

plaintiff to show the absence of even arguable probable cause. Jones v. Cannon, 174 F. 3d 1271, 

1283 (11th Cir. 1999). Here, there was, at minimum, actual probable cause to arrest the Plaintiff 

for possession of a concealed weapon and arguable probable cause to arrest the Plaintiff for 

possession of a controlled substance. 

The Plaintiff was clearly lawfully arrested. As alleged in the Amended Complaint and as 

demonstrated by the undisputed evidence in the record, the Plaintiff was arrested for, and 

charged with, possession of a controlled substance and possessing a pistol without a license. To 

defeat Lt. West’s entitlement to qualified immunity, the Plaintiff must show the absence of even 

arguable probable cause to arrest on any charge. Hill, 665 So. 2d at 1026. With the evidence in 

the record, he cannot do so. 

Under Alabama law, it is unlawful to carry a loaded pistol in a car without a license. Ala. 

Code §§ 13A-11-73, 13A-11-74. It is admitted by the Plaintiff in his responses to the 

Defendants’ Requests for Production and deposition testimony that there was a loaded .357 

magnum on the front seat next to him while he was driving his car. It is admitted by the Plaintiff 

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26

that he did not have a pistol license. The Plaintiff’s admissions go far beyond establishing mere 

arguable probable cause to arrest him for the offense of carrying a concealed weapon – they are a 

complete confession to the crime. Consequently, the Plaintiff’s arrest was lawful based on 

nothing more than the weapons charge. 

To be sure, the Plaintiff has not confessed to possessing a controlled substance, but the 

facts known to Lt. West at the time would have convinced a reasonable officer that probable 

cause existed to arrest the Plaintiff for the crime. The following facts are demonstrated in the 

record and were known to Lt. West: 

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

• The Plaintiff fled when the Agents attempted to stop them. 

• During the chase, a baggy with a white powdery substance struck their 

windshield. 

• A baggy with residue was subsequently found near the location where the baggy 

hit the Agents’ windshield. 

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

one that was recovered. 

These facts easily establish at least arguable probable cause and, in fact, support full probable 

cause. 

 As a final note on the Plaintiff’s false arrest claim, there were other offenses committed 

by the Plaintiff for which, under federal law, he could have been arrested. A police officer may 

make an arrest for a traffic violation. Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001) 

(“The question is whether the Fourth Amendment forbids a warrantless arrest for a minor 

criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold 

that it does not.”) As discussed previously, the Plaintiff committed a seatbelt violation by his 

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27

own admission. By his own admission, the Plaintiff also ran a stop sign. (Marshall dep. at 52:4-

13.) Under Atwater, Lt. West could have arrested the Plaintiff for either of these charges for 

which, by the Plaintiff’s own admission, probable cause existed. See also Hill, 665 So. 2d at 

1026. The existence of probable cause to arrest for these offenses negates any possibility of 

recovery for false arrest. Gumbinner, 905 F.2d at 1505-06. 

C. The Plaintiff’s Person and Car Were Lawfully Searched. 

With the evidence in the record clearly establishing probable cause for both stopping the 

Plaintiff and arresting him, the search of his person and car was lawful. It has been long settled 

that a law enforcement officer may search a person for weapons and contraband incident to the 

person’s arrest. Chimel v. California, 395 U.S. 752, 762-763 (1969). An officer may also search 

the passenger compartment of a vehicle following an occupant’s arrest. New York v. Belton, 453 

U.S. 454, 460-61 (1981). Such a search is valid even if the person was outside of the vehicle when 

the officer makes contact with the arrestee. Thornton v. U.S., 541 U.S. 615, 617 (2004). Where a 

car is impounded, the entire vehicle can be examined and inventoried. Colorado v. Bertine, 479 

U.S. 367, 374 (1987); Florida v. Wells, 495 U.S. 1, 4-5 (1990). 

As discussed previously, Lt. West conducted a lawful traffic stop. The Plaintiff was 

lawfully arrested. As a result of the lawful arrest of the Plaintiff, both he and his car were properly 

searched. Chimel, 395 U.S. 762-63; Belton, 453 U.S. at 460-61. The car was impounded and 

inventoried according to DTF procedure. (West dec. at ¶ 17-18; Hutson dep. at 32:21-33:1.) 

Consequently, the Agents were justified in examining the entire car. Bertine, 479 U.S. at 374; 

Wells, 495 U.S. at 4-5. 

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D. Lt. West Did Not Use Excessive Force as a Matter of Law. 

At the motion to dismiss stage, the Court ruled that the Plaintiff’s excessive force claim 

merged into the illegal traffic stop and unlawful arrest claims. (Doc. 12 at pp. 27-29.) As a 

result, the Court found the Defendants’ dismissal arguments for the excessive force claim to be 

moot. Id. Summing up its decision, the Court’s Order is notable for not including an excessive 

force claim. Id. at pp. 38-39. 

The basis for this ruling, however, was the possibility that there were no grounds for a 

stop at all, and therefore, no constitutional grounds for the use of force. (Doc. 12 at pp. 27-28.) 

The Court allowed the Plaintiff to amend and the Amended Complaint contains an excessive 

force claim. (Doc. 12 at p. 38, Doc. 16 at ¶¶ 58-64.) As demonstrated above, the stop was 

lawful. Therefore, taking the lawfulness of the traffic stop, the Court’s earlier reasoning, and the 

Plaintiff’s Amended Complaint into account, Lt. West proffers the following arguments out of an 

abundance of caution as to why he is entitled to summary judgment on any excessive force 

claims that may exist. 

The test for determining whether an officer has applied excessive force in the course of 

seizing a person is the “objective reasonableness” test. Graham v. Connor, 490 U.S. 386, 395 

(1989). Whether a specific use of force is objectively reasonable turns on several factors 

including the severity of the crime, whether the suspect poses an immediate threat, and whether 

the suspect is resisting or fleeing. Graham, 490 U.S. at 394; Post v. City of Fort Lauderdale, 7 

F.3d 1552, 1559 (11th Cir.1993). In the Eleventh Circuit, the extent of the injury inflicted is 

another factor to consider. Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir.1986). 

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Generally, the actions of the officer must be reasonable in light of the facts and 

circumstances confronting the officer, without regard to his underlying intent or motivation. 

Graham, 490 U.S. at 397. “The ‘reasonableness’ of a particular use of force must be judged 

from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 

hindsight.” Id. at 396. “The calculus of reasonableness must embody allowance for the fact that 

police officers are often forced to make split-second judgments – in circumstances that are tense, 

uncertain, and rapidly evolving – about the amount of force that is necessary in a particular 

situation.” Id. at 396-97. The Eleventh Circuit has added “[w]e must see the situation through 

the eyes of the officer on the scene who is hampered by incomplete information and forced to 

make a split-second decision between action and inaction in circumstances where inaction would 

prove fatal.” Crosby v. Monroe County, 394 F.3d 1328, 1333-34 (11th Cir. 2004). 

“In analyzing whether excessive force was used, courts must look at the totality of the 

circumstances.” Garrett v. Athens-Clarke County, 378 F.3d 1274, 1280 (11th Cir. 2004). “We 

must look at the situation not with hindsight, but with the eye of the objectively reasonable 

officer on the scene.” Garrett, 378 F.3d at 1281. “Graham requires an evaluation of the officers’ 

reasonable apprehension to assess their responses to the circumstances confronting them, 

particularly in a rapidly evolving situation.” Carr v. Tatangelo, 338 F.3d 1259, 1268 n.17 (11th 

Cir. 2003). 

“Government officials are not required to err on the side of caution.” Marsh v. Butler 

County, 268 F.3d 1014, 1030 n.8 (11th Cir. 2001) (en banc). “We must see the situation through 

the eyes of the officer on the scene who is hampered by incomplete information and forced to 

make a split-second decision between action and inaction in circumstances where inaction would 

prove fatal.” Crosby, 394 F.3d at 1333-34. 

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“Reconsideration will nearly always reveal that something different could have been 

done if the officer knew the future before it occurred. This is what we mean when we say we 

refuse to second-guess the officer.” Carr v. Tatangelo, 338 F.3d 1259, 1270 (11th Cir. 2003) 

(citation omitted). “We must avoid substituting our personal notions of proper police procedure 

for the instantaneous decision of the officer at the scene. We must never allow the theoretical, 

sanitized world of our imagination to replace the dangerous and complex world that policemen 

face every day.” Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992). “The Constitution simply 

does not require police to gamble with their lives in the face of a serious threat of harm.” Elliott 

v. Leavitt, 99 F.3d 640, 641 (4th Cir. 1996). 

As a final general matter, the Court should be mindful of Lt. West’s belief that the 

situation confronting him involved possession of narcotics. He had information that the Plaintiff 

was selling drugs, the Plaintiff fled his attempt to conduct a traffic stop, and a baggy with a white 

powdery substance hit his windshield during the chase. The United States Supreme Court has 

held that when narcotics transactions “may give rise to sudden violence or frantic efforts to 

conceal or destroy evidence.” Michigan v. Summers, 452 U.S. 692, 703 (1981) (emphasis 

added). 

There were three discrete uses of force by Lt. West in the instant case and each was 

objectively reasonable. The first use of force was the PIT that brought the Plaintiff’s headlong 

flight to an end. The second purported use of force was the warning shot fired by Lt. West 

following the PIT. Finally, Lt. West used force when he brought the Plaintiff under control and 

secured him in the back of his car. 

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1. The use of the PIT maneuver to end the Plaintiff’s flight was 

reasonable.

The first use of force by Lt. West was the bumping and eventual PIT maneuver that 

brought the chase to an end. The question of the constitutionality of the PIT maneuver does not 

turn, as the Plaintiff has alleged, on whether or not it constituted deadly force, but whether its use 

was reasonable under the circumstances. Scott, 127 S.Ct. at 1777-78 (noting that “in the end we 

must still slosh our way through the fact-bound morass of ‘reasonableness.’”). Analyzed under 

Graham, this use of force was clearly reasonable under the circumstances. 

The crime at issue was severe – at minimum, a Class C felony, and arguably a Class A 

felony under Alabama law. As the undisputed facts show, Lt. West did not execute the PIT 

maneuver until after a baggy containing a white powdery substance hit his windshield. This, 

combined with the information in Lt. West’s possession that the Plaintiff was selling drugs and 

was actively engaged in flight, would lead a reasonable officer to believe that the substance in 

the baggy (1) came from the Plaintiff’s car; and (2) contained illicit drugs.11 Therefore, at the 

time he executed the maneuver, the crime the Plaintiff was suspected of committing was 

possession of a controlled substance – a Class C felony under Alabama law. Ala. Code 13A-12-

212. As there was no way of knowing how much powder would still be in the baggy when it 

was retrieved, at the time the PIT was executed, Lt. West could have justifiably believed the 

Plaintiff was guilty of trafficking – a Class A felony under Alabama law. Ala. Code § 13A-12-

231. Consequently, the potential crimes involved were severe. 

 

11 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. 

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The Plaintiff was a potential threat. The Plaintiff was in the process of fleeing from law 

enforcement officers in a vehicle. Upon questioning by Plaintiff’s counsel, Lt. West conceded 

that it was a “high speed chase”. (West dep. at 48:11-22.) Agent Hutson likewise testified that 

the pursuit may have reached speeds of 70 mph in a 55 mph zone. (Hutson dep. at 23:10-19.) In 

his headlong flight from law enforcement, the Plaintiff was a danger to anyone he encountered. 

While there is no evidence in the record of any bystanders or innocent motorists, there was no 

way for Lt. West to know that the situation would remain static. 

Of course, the Plaintiff’s admitted flight demonstrates conclusively that the Plaintiff was 

actively fleeing at the time Lt. West executed the PIT maneuver. In his deposition testimony, the 

Plaintiff proffered a number of excuses for his flight. Assuming all of them to be true, however, 

none of those excuses were known to Lt. West. There is no evidence that Lt. West knew the 

Plaintiff had been robbed on a previous occasion. There is no evidence that Lt. West knew the 

Plaintiff could not see his blue and white strobe. In short, there is no evidence that Lt. West 

knew the Plaintiff did not know he was a law enforcement officer. The evidence does show Lt. 

West knew the Plaintiff was fleeing. 

The final factor also weighs in Lt. West’s favor. There was no injury to the Plaintiff. 

The PIT occurred at 35 mph. A review of the photographs shows that the Plaintiff’s car suffered 

nothing more than a dented left rear fender. The Plaintiff claims that he suffered a “knot” on his 

head when his left temple hit the steering wheel. However, the picture of the Plaintiff – clearly 

showing the left temple area – belies the Plaintiff’s testimony. No reasonable jury would credit 

his testimony over the pictures. Scott, 127 S. Ct. at 1776. However, even if such testimony was 

credited, a mere bump on the head which required no medical treatment is de minimis. 

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The Plaintiff’s dangerous headlong flight to avoid what Lt. West believed was at least a 

Class C felony was brought to a conclusion at the cost of nothing more than a dented fender and 

a “knot” on the Plaintiff’s head. Under Graham, therefore, the PIT was not excessive. 

2. Firing a warning shot is not excessive force.

The undersigned has conducted a diligent review of the relevant law and cannot find a 

single case in which a warning shot has been deemed to constitute excessive force. To the 

contrary, the Eighth Circuit has expressly held that firing multiple warning shots into the air near 

a crowd of people “did not violate anyone’s constitutional rights”. Otey v. Marshall, 121 F.3d 

1150, 1156 (8th Cir. 1997). 

Unlike Otey, the single warning shot fired here went directly into the ground. Its use was 

intended to obtain the compliance of an uncooperative and belligerent narcotics subject. The 

area in which the shot was fired was a rural area so there was minimal danger to innocent 

bystanders. Moreover, Lt. West had no other alternative force options available. 

In terms of Graham, the Plaintiff was suspected of, at minimum, a Class C felony. He 

was belligerent and refusing to obey commands to get on the ground – even with Lt. West’s gun 

pointed at him. The situation was one in which the Supreme Court has found inherent danger to 

officers, flight risks, and efforts to destroy evidence. Summers, 452 U.S. 692, 703. There was 

no injury whatsoever to the Plaintiff resulting from the warning shot. Consequently, even if 

firing a warning shot could be deemed a use of force, it was not excessive. 

3. Lt. West used only the force necessary to secure the Plaintiff and 

overcome his refusal to obey the Agents’ instructions.

There are two separate physical uses of force that Lt. West engaged in with respect to the 

Plaintiff. First, Lt. West put the Plaintiff on the ground with a “foot sweep” and placed him in 

handcuffs to initially bring the Plaintiff under control. Second, Lt. West purportedly used a “full 

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nelson choke” on the Plaintiff when he refused to sit in the car. Both of these uses of force were 

objectively reasonable. 

In both instances, the Plaintiff was suspected of committing a felony. Both instances 

involved the inherently dangerous situation described by the Supreme Court in Summers. In both 

instances the Plaintiff was resisting by refusing to obey commands. In both instances, the use of 

force terminated immediately upon the Plaintiff’s compliance with the command. In both instances 

the Plaintiff was not injured. Compliance with commands in an inherently dangerous situation in 

which the Plaintiff was refusing commands was obtained with absolutely no injury to the Plaintiff. 

Consequently, under Graham, the force used by Lt. West was not excessive. 

E. The Plaintiff Was Lawfully Prosecuted. 

At the outset, it is interesting to note that just a year ago, the United States Supreme 

Court stated that: 

We have never explored the contours of a Fourth Amendment maliciousprosecution suit under § 1983 , see Albright v. Oliver, 510 U.S. 266, 270-271, 

275, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion), and we do not do 

so here. See generally 1 M. Schwartz, Section 1983 Litigation § 3.18[C], pp. 3-

605 to 3-629 (4th ed.2004) (noting a range of approaches in the lower courts). 

Wallace v. Kato, 127 S.Ct. 1091, 1096 n.2 (2007). In Albright, the Supreme Court noted an 

“embarrassing diversity” of judicial opinions as to whether a malicious prosecution claim was 

available under 42 U.S.C. § 1983. 510 U.S. at 270 n.4. However, in examining the 

“embarrassing diversity” of opinions, the Albright Court cited Eleventh Circuit authority 

recognizing that a malicious prosecution claim was available. Id. citing Strength v. Hubert, 854 

F.2d 421, 426, and n.5 (11th Cir. 1988). 

 In 1996, the Eleventh Circuit reexamined its position on the existence of a malicious 

prosecution action under § 1983. Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996). The 

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Whiting Court indicated that there was no separate constitutional tort of “malicious prosecution”, 

but that it was rather “a description of the right to be free from an unlawful seizure which is part 

of a prosecution.” 85 F.3d at 584 n.4. However, in 2003, the Eleventh Circuit seemed to have 

reversed its ground again and, while recognizing Whiting’s characterization of what a malicious 

prosecution claim actually was, nonetheless recognized the existence of the claim. Wood v. 

Kesler, 323 F.3d 872, 881 (11th Cir. 2003). 

 It therefore appears that the controlling authority in the Eleventh Circuit recognizes the 

existence of a malicious prosecution claim under 42 U.S.C. § 1983. However, given the United 

States Supreme Court’s pronouncement in Wallace, and the apparent shifting of position in the 

Eleventh Circuit, Lt. West asserts as his first line of defense that no such constitutional tort as 

“malicious prosecution” exists.12 In so doing, he adopts the Eleventh Circuit’s reasoning in 

Whiting that “malicious prosecution” is not a separate claim but rather part or an unlawful 

seizure claim. Lt. West alternatively asserts that malicious prosecution under 42 U.S.C § 1983 

should be a separate claim only where state law does not provide an analogue. See Usher v. Los 

Angeles, 828 F.2d 556, 561-62 (9th Cir. 1987). 

However, even if the current state of the law in the Eleventh Circuit is ultimately upheld by 

the United States Supreme Court, Lt. West is still entitled to qualified immunity. As set forth 

previously by this Court, in order to prevail on his malicious prosecution claim, the Plaintiff must 

point the Court to evidence in the record showing (1) institution of a prior judicial proceeding 

started by Lt. West; (2) a lack of probable cause to institute the proceeding; (3) malice on the part of 

Lt. West in instituting the proceeding; (4) a favorable resolution to the prior proceeding; and (5) 

damages. (Doc. 12 at pp. 30-31 citing U.S. Steel, L.L.C. v. Tieco, Inc., 261 F.3d 1275, 1289-90 

 

12 Lt. West is aware that this Court must follow the Eleventh Circuit’s current law. The argument is made solely to 

preserve the issue for appeal. 

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(11th Cir. 2001).) Where the Court summarily rejected the Defendants’ argument with respect to 

the second and third elements at the motion to dismiss stage, the posture of the case on summary 

judgment mandates a reversal of the Court’s opinion. 

As discussed extensively above, the evidence demonstrates ample evidence of probable 

cause to support instituting the weapons and drug charges against the Plaintiff. It bears repeating 

that the Plaintiff has confessed to the elements of the gun charge. While the drug charge was 

ultimately terminated, at the request of Lt. West, because the baggy did not contain drugs, the 

information related to the Plaintiff’s drug-selling activities, flight from the Agents, baggy with white 

powder striking the windshield during the pursuit, and subsequent recovery of the baggy provided 

Lt. West with more than ample probable cause to bring the drug charge against the Plaintiff. 

Moreover, it was only the allegation that there was no probable cause that caused the Court 

to infer malice in its earlier decision. (Doc. 12 at p. 31.) Now, on summary judgment, the record is 

absolutely devoid of any ill-intent on the part of Lt. West. In fact, it was Lt. West who took steps to 

terminate the drug charge as soon as he learned of the lab results. The only evidence, therefore, is 

the evidence supporting probable cause and Lt. West’s separate action in bringing about an end to 

the proceedings as soon as the exculpatory evidence came into his hands. 

With respect to the firearms charge, Lt. West dismissed his state case and turned the matter 

over to federal prosecutors. (West dec. at ¶ 14.) Lt. West gave the evidence to the Bureau of 

Alcohol Tobacco and Firearms. Id. The U.S. Attorney’s office is now making decisions on 

whether the Plaintiff will face prosecution for the gun charges. Id. Consequently, Lt. West cannot 

be held liable for malicious prosecution related to the gun charges. See Eubanks v. Gerwen, 40 F.3d 

1157, 1160-61 (11th Cir. 1994) (intervening acts of prosecutor eliminate officers as “proper targets 

of a malicious prosecution claim); Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir. 1989) (absent 

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deception the subsequent decisions of prosecutors, judges and juries “break the chain of causation” 

for a malicious prosecution claim against the arresting officer). Here, there is absolutely no 

evidence in the record of deception – all Lt. West did was turn the matter over to federal law 

enforcement authorities. 

III. NO CLEARLY ESTABLISHED LAW PROVIDED LT. WEST WITH “FAIR 

WARNING” THAT HIS CONDUCT WAS UNLAWFUL. 

The Plaintiff’s final burden under the qualified immunity analysis is to show that clearly 

established law provided Lt. West with fair warning that his conduct was unlawful by either (1) 

pointing to a case with materially similar facts holding that the conduct engaged in was illegal; or 

(2) demonstrating that a pertinent federal statute or federal constitutional provision is specific 

enough to demonstrate conduct was illegal, even in the total absence of case law. Storck v. City of 

Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) (citations omitted). The Eleventh Circuit has 

identified the latter method as an “obvious clarity” case. Vinyard v. Wilson, 311 F.3d 1340, 1350 

(11th Cir. 2002) (footnote omitted). In order to show that the conduct of Lt. West was 

unconstitutional with “obvious clarity,” “the unlawfulness must have been apparent.” Willingham, 

321 F.3d at 1301. “Unless a government agent’s act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law 

would have done such a thing, the government actor has immunity from suit.” Storck, 354 F.3d at 

1318 (quoting 28 F.3d at 1149). 

As the foregoing arguments and recitation of law show, the Plaintiff will not be able to 

provide the Court with a materially similar case. Likewise, the same case law prevents the Plaintiff 

from showing that any of his alleged constitutional violations fit he mold of “obvious clarity” 

claims. Consequently, as no clearly established law provided Lt. West with “fair warning” that his 

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conduct was illegal, he is entitled to judgment in his favor as a matter of law on the Plaintiff’s 

claims. 

CONCLUSION

Based on the foregoing, Defendant Chris West requests that this Honorable Court enter 

an Order granting him judgment in his favor as a matter of law.

Respectfully submitted this the 12th day of February, 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 February 12, 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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