Linda Johnson Reginald Johnson v. Aaron Crooks

LAY, Circuit Judge,

dissenting.

I respectfully dissent.

*1001 I think the majority’s opinion will cause a great deal of confusion to all district courts as to the proper summary judgment standard in civil cases. The standard as instructed by the Supreme Court is that district courts must view the evidence in the light most favorable to the nonmoving party. In the present case, the majority recites disputed issues of fact in favor of the moving party and does not give any credence to the nonmoving party’s claims. This approach is contrary to every rule governing summary judgment and leads the majority to improperly grant summary judgment for the Defendant, Aaron Crooks. From reading the district court’s opinion, it is obvious that the district court applied the correct summary judgment standard. It fully recognized there existed genuine issues of disputed fact; it viewed the evidence in the light most favorable to the nonmoving party; and it provided the nonmoving party all favorable inferences.

A review of the facts shows that Ms. Johnson has made a prima facie case. She is a member of a minority race who drove her car on the public highway and asserted that she did not violate any traffic laws. Sheriff Crooks followed her vehicle closely for eleven miles before stopping her. At that time, Crooks accused her of crossing the center line, an accusation which she vehemently denied. Ms. Johnson said she was well aware that Crooks was following her closely so she was careful to obey all traffic laws. Crooks then asked for her identification, and she presented her military identification because she could not immediately find her driver’s license. The military identification showed on the back of it that she was a civilian, which Crooks ignored. He gave her a written warning and then called Fort Riley to report the incident to her superior officer.

Based on these facts, there is no question that Ms. Johnson has made a prima facie case of an unauthorized stop in violation of the Fourth Amendment. Further, she has set forth a prima facie case of racial harassment, which provides a genuine issue for trial as to whether there has been a denial of the Equal Protection Clause. I have set forth the district court’s opinion in its entirety at the end of my dissent (Exhibit A) because it provides the proper summary judgment analysis and details the factual disputes of the case.

The primary problem with the majority’s Fourth Amendment analysis is that it mischaracterizes the facts, making the case appear more simple than it actually is. The majority recites that when an officer makes a mere investigatory stop, there is no unreasonable intrusion “upon the privacy and liberty interests protected by the Fourth Amendment.” Maj. Op. at 998-999. However, the facts in this case do not allow for such a conclusion. Additional facts, which are not analyzed by the majority, raise doubts about the constitutionality of the stop.

The majority’s fact section states that Crooks “maneuvered his patrol car through traffic until it was directly behind Mr. Johnson’s vehicle” and then followed her closely for approximately eleven miles. Maj. Op. at 997. Crooks alleges that he followed Ms. Johnson’s vehicle because she crossed the center line of the highway. Why he did not immediately effect a stop rather than following her for eleven miles makes Crooks’s credibility highly dubious. Further, if we take Ms. Johnson’s statement that she did not cross the center line as true, Crooks’s stop was arbitrary and capricious. The majority, however, simply credits Crooks’s version of the facts even though his stated reasons for stopping Ms. Johnson remain in dispute.

Instead of addressing the relevant facts, the opinion mischaracterizes the case and concludes “it was objectively reasonable *1002 for Crooks to stop Ms. Johnson’s car to determine if she was competent to continue her travels.” Maj. Op. at 999. Such a conclusion assumes that Ms. Johnson swerved her car. In essence, the majority says that it believes Crooks is telling the truth and Ms. Johnson is not. The opinion further mischaracterizes the case by saying that “Crooks let Ms. Johnson go with a warning rather than a citation, ending the investigatory stop.” Maj. Op. at 999. Yet the facts show that Crooks did not simply let Ms. Johnson go. He called Fort Riley and reported the incident. Such behavior does not comport with standard police procedure and extended the stop to more than a “relatively minor intrusion on the motorist’s privacy interest.” Maj. Op. at 998. A fair inference remains that he called Fort Riley to racially harass Ms. Johnson. This inference is made stronger because Ms. Johnson denied violating any traffic laws.

Much of these same concerns apply to the majority’s Equal Protection analysis. The majority states that “ “We do not think ... that the combination of an arbitrary stop ... with a difference in race between the person stopped and the officer establishes a prima facie case of racial discrimination.’ ” Maj. Op. at 1000 (quoting Ford v. Wilson, 90 F.3d 245, 248-49 (7th Cir.1996)). Once again, this case is not as simple as the majority suggests. The facts show much more than a difference in race and an arbitrary stop. Here, Crooks called the military and reported the incident. He also followed Ms. Johnson for eleven miles prior to making the stop. These facts, when credited as true, at the very least, should allow the case to survive summary judgment.

The majority faults the district court for failing to distinguish between investigatory stops and individual traffic stops. The majority claims that Ms. Johnson’s stop was investigatory and that Crooks had a reasonable suspicion to believe that criminal activity was afoot because he “observed Ms. Johnson’s car crossing the center line more than once on a two-lane rural highway .... ” Maj. Op. at 999. The majority’s analysis, however, is persuasive only if we assume that Ms. Johnson crossed the center line. Since the parties dispute this key fact, we cannot say as a matter of law that Crooks had a reasonable suspicion. The district court correctly denied summary judgment because it could not resolve this disputed fact at the summary judgment stage. While it is true the district court did not make a distinction between an investigatory stop and an individual stop, the district court did not need to make such a distinction to reach the correct result. As long as the parties dispute whether Ms. Johnson crossed the center line, the issue of whether Crooks had a reasonable suspicion remains.

In conclusion, the majority does not apply the correct standard for summary judgment. The Supreme Court instructs this court in a summary judgment proceeding to view the evidence in the light most favorable to Ms. Johnson, the non-moving party. The majority bases its analysis upon material facts which are in dispute and views the evidence in the light most favorable to Crooks, the moving party. By accepting Crooks’s statements over Ms. Johnson’s assertions, the majority has turned the summary judgment standard on its head and has reached an incorrect result.

I respectfully dissent.

“Exhibit A”

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA LINDA JOHNSON and REGINAL JOHNSON, Plaintiffs,

*1003 vs.

AARON CROOKS, Defendant.

4:01CV230.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This ease is now before me on the Defendant’s Motion for Summary Judgment, filing 27. The plaintiffs’ Amended Complaint, filing 17, alleges eight causes of action arising from an April 18, 2000, traffic stop conducted by the defendant. In moving for summary judgment, the defendant argues that the doctrine of qualified immunity shields him from the plaintiffs’ first four claims. Thus, the defendant continues, the plaintiffs’ latter four claims must also fail, as such claims are brought pursuant to the court’s supplemental jurisdiction. See 28 U.S.C. § 1367 . After reviewing the submissions of the parties, I find that the defendant’s motion will be denied.

I. Background,

During the morning hours of April 18, 2000, the plaintiff Linda Johnson (hereinafter L. Johnson) was traveling from Omaha, Nebraska, to Fort Riley, Kansas, in her 1996 Lexus. Around 9:15 a.m., she passed through Beatrice, Nebraska, as she drove south on Highway 77. L. Johnson contends that at the south end of Beatrice, she noticed a patrol car attempting to turn onto the highway from a parking lot. The patrol car, driven by the defendant Crooks, was facing the driver’s side of her vehicle. According to L. Johnson, Crooks pulled onto the highway and “maneuvered his way through traffic” to position himself behind her. Aff. of Linda Johnson ¶2, filing 40 at Ex. 1. Crooks then allegedly followed L. Johnson “at a very close distance” for approximately eleven miles. Id. ¶4 . L. Johnson states that during this time, she “took extra precaution to ensure that [she] would do nothing wrong or commit any traffic violation so as not to give him any reason to stop [her].” Id. ¶3 . Nevertheless, Crooks activated his light to initiate a traffic stop.

L. Johnson asserts that after Crooks approached her car and asked her several questions, she inquired as to why he pulled her over. Crooks responded that she was stopped for “‘going left of center.’” Id. ¶5 . L. Johnson replied that she believed she had been targeted ‘“because of the color of [her] skin 1 and the type of car [she was] driving.’ ” Id. L. Johnson then began looking for her driver’s license and car registration. She could not find her license, but she did locate her dependent military identification card when she reached into the glove compartment for the registration. This front of this card includes L. Johnson’s picture, signature, and social security number, as well as he name, social security number, rank, and pay grade of her “sponsor.” See filing 40 at Ex. 1-A, p.l. The back of the car indicates that L. Johnson is a civilian. See id. at Ex. 1-A, p.2.

L. Johnson gave the military identification card to Crooks, who said he could use the card to obtain the information he needed. L. Johnson asked if she could look in the trunk for her license. Crooks responded that she could and then went back to his patrol car. After her unsuccessful search of her trunk, L. Johnson reentered her vehicle and found her license on the floor of the passenger’s side. According to L. Johnson, she gave the license to Crooks, who indicated he did not need it. She went back to her vehicle and waited for *1004 Crooks, who later returned to her vehicle and issued her a written warning. L. Johnson again protested that she had not in fact “gone left of center,” and again advised Crooks that she believed she had been stopped because of her race and the type of car she was driving. Aff. of Linda Johnson ¶ 7, filing 40 at Ex. 1. She then pulled back onto Highway 77 and continued south.

According to L. Johnson, she was “courteous and cooperative” with Crooks throughout their encounter. Id. ¶ 8 . Both L. Johnson and her husband, plaintiff Reginald C. Johnson (hereinafter R. Johnson), also indicate that as of the date of the stop, the windows of their 1996 Lexus were not tinted. See id. ¶ 10 ; Aff. of Reginald C. Johnson ¶ 5, filing 40 at Ex. 2.

The defendant Crooks recounts a different version of events relating to the April 18, 2000, stop. According to Crooks, he had to wait for a number of cars as he attempted to turn onto Highway 77. He asserts that after the cars passed, he pulled onto the highway “some distance behind” the last car. Aff. in Supp. of Def.’s Mot. for Summ. J. [hereinafter Aff. of Aaron Crooks] ¶ 3, filing 28 at Ex. 1. He states that although he initially did not notice anything in particular about the vehicles in front of him, he later observed the vehicle immediately in front of him cross the center line into the oncoming traffic lane on “several occasions.” Id. ¶ 4 . Concerned about the driver’s condition, he activated his lights to initiate a stop.

According to Crooks, the windows of the vehicle were tinted. Thus, he asserts that “[i]t was not until I was near the passenger’s door that I saw that the driver was an Afro-American female.” Id. 1Í 9. Crooks states that after he greeted L. Johnson, she interrupted him and accused him of stopping her because “ ‘of the type of car she was driving and because of the color of her skin.’ ” Id. ¶ 10 . She appeared “extremely upset and very unfriendly.” Id. “[Sjomewhat offended and disappointed with her response,” Crooks advised L. Johnson that she had been stopped for driving “left of center several times.” Id. Crooks states that he requested her driver’s license and registration, but L. Johnson was unable to locate the former. Thus, according to Crooks, L. Johnson then advised him that she was in the military and had a military identification card. Crooks responded that he could use the military identification to obtain the necessary information and that she no longer needed to look-for the license. L. Johnson, however, “continued to insist upon finding the license” so she “ ‘wouldn’t get into any more trouble.’ ” Id. ¶ 15 . Crooks states that he told her she was not necessarily in trouble and that he was primarily concerned about her safety. He nevertheless allowed her to continue her search for the license in the trunk as he went back to his patrol car.

Crooks asserts that while he was calling in her information, L. Johnson found her license and approached the patrol car. Crooks advised her to return to her car and wait for him. After completing the information check, Crooks went back to the vehicle where he found L. Johnson talking on her cell phone. When she finished her conversation, Crooks handed her a written warning and told her there was a truck stop ahead if she was tired. L. Johnson again commented that she believed she had been stopped because of her race and the type of car she was driving, and Crooks again assured her “that such was not the case.” Id. ¶21 . She also inquired whether Crooks would continue to follower her, and Crooks responded that he would be going in the same direction as she, but not for the purpose of following *1005 her. L. Johnson then pulled back onto Highway 77.

Crooks states that, based on his military background, “it is my belief and understanding of military procedure that any contact or stop by a law enforcement officer should result in the information of the stop being forwarded to the superior officer of the individual.” Id. ¶ 24 . Crooks felt that in this case, such follow-up was “especially necessary ... since Ms. Johnson had made accusations of inappropriate conduct on [his] part, which were absolutely false.” Id. Thus, the next day, Crooks contacted Fort Riley in an alleged attempt to reach L. Johnson’s First Sergeant. Crooks was told that there was no military person by the name of Linda Johnson at the base and was advised to contact the Judge Advocate General’s Office for further information. According to Crooks, he did so by telephone, “and coincidentally the phone was answered by a man who identified himself as Mr. Reginald Johnson.” Id. ¶ 25 . During their conversation, Crooks tried to explain what had occurred regarding the traffic stop. R. Johnson responded that L. Johnson was his wife, that she had already told him what happened, and that he believed his wife. Crooks then advised R. Johnson that he believed the matter should be reported to L. Johnson’s First Sergeant or a superior officer. R. Johnson indicated that his wife was not in the military and then transferred Crooks to another individual, who also advised Crooks that L. Johnson was not in the military. Crooks concludes as follows:

After having done what I believed was appropriate regarding the stop and with the information given to me by Ms. Johnson regarding military affiliation, and after finding out that military affiliation was not true, I took no further course of action to inform anyone in the military that Ms. Johnson had made a false claim of military affiliation.

Id. ¶ 26 .

R. Johnson, however, recalls a somewhat different telephone conversation with Crooks. An Assistant Inspector General at Fort Riley, R. Johnson states that on the morning of April 19, 2000, Crooks contacted the Inspector General’s Office, and the call was transferred to R. Johnson by a secretary. R. Johnson asserts that when he answered the telephone, “Crooks made it clear ... that he had called for me.” Aff. of Reginald C. Johnson ¶ 4, filing 40 at Ex. 2. In describing the traffic stop, Crooks “specifically suggested that [L. Johnson] had acted inappropriately.” Id. According to R. Johnson, Crooks “stated he wanted to talk to [R. Johnson’s] superi- or officer about the warning citation,” and “specifically stated he knew [L. Johnson] was a military dependent and [R. Johnson], as her spouse, was responsible for her actions.” Id. After advising Crooks that he believed his wife’s version of events, R. Johnson gave Crooks the phone number of a First Sergeant and the Deputy Inspector General.

II. Standard of Review

A motion for summary judgment will be granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” fed. R. Civ. P. 56(c). A “material” fact is one “that might affect the outcome of the suit under the governing law .... ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). A “genuine” issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evi *1006 dence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 158-59 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The opposing party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial,” and “must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 256, 257 , 106 S.Ct. 2505 (citing feb. R. Civ. P. 56(e)).

III. Analysis

The plaintiffs filed their Amended Complaint on August 13, 2001, alleging the following eight causes of action: (1) a Fourteenth Amendment due process violation; (2) a Fourth Amendment violation; (3) a Fourteenth Amendment equal protection violation; (4) a second, separate Fourteenth Amendment due process violation; (5) a violation of neb. Rev. Stat § 20-148 and NEB. CONST, art. I, §§ 3, 7; (6) false arrest and false imprisonment; (7) a violation of neb. Rev. Stat. § 28-926; and (8) a violation of neb. Rev. Stat. § 20-201 et seq. and “the common law of the state of Nebraska.” Piling 17 at 4-8. Claims one through four are based on 42 U.S.C. § 1983 , 2 while claims five through eight are brought pursuant to the court’s supplemental jurisdiction. In his motion for summary judgment, the defendant Crooks contends that the first four causes of action “are barred by the [djoctrine of [qualified [ijmmunity.” Br. in Supp. of Def. Aaron Crooks’ Mot. for Summ. J. [hereinafter Defendant’s Brief] at 7. Without these claims, Crooks concludes, the plaintiffs’ latter four causes of action must also fail for lack of jurisdiction.

The doctrine of qualified immunity “shields government officials from suit unless their conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Burnham v. Ianni, 119 F.3d 668 , 673 (8th Cir.1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982); Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996)). A claim of qualified immunity triggers a two-part inquiry: “ ‘whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, ... whether that right was clearly established at the time of the alleged violation.’ ” Tlamka v. Serrell, 244 F.3d 628 , 632 (8th Cir.2001) (quoting Wilson v. Layne, 526 U.S. 603, 609 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999); Conn v. Gabbert, 526 U.S. 286, 290 , 119 S.Ct. 1292 , 143 L.Ed.2d 399 (1990); citing Sexton v. Martin, 210 F.3d 905 , 909 (8th Cir.2000)). When the qualified immunity defense is raised during the summary judgment stage, “the official’s conduct must be viewed through the prism of Rule 56 — that is, [the court] must take as true those facts asserted by [the] plaintiff that are properly supported in the record.” Id. (citations omitted). Thus, “‘if there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment.’ ” Gregoire v. Class, 236 F.3d 413, 417 (8th Cir.2000) (quoting Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir.1999)). After the predicate facts are established, “the reasonableness of the official’s con *1007 duct under the circumstances is a question of law.” Tlamka, 244 F.3d at 632 (citing Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir.2000)); Pace, 201 F.3d at 1056 (“We restate for emphasis that whether an officer ‘acted reasonably under settled law in the circumstances’ ... is a question of law, and not itself a predicate fact. ‘Predicate facts’ include only the relevant circumstances and the acts of the parties themselves, and not the conclusions of others about the reasonableness of those actions.” (internal citation omitted)).

In moving for summary judgment, the defendant Crooks contends that “there is no constitutional violation when a valid warrant for probable cause supports an arrest, regardless of the motives of the arresting officer.” Defendant’s Brief at 8 (citations omitted); see Whren v. United States, 517 U.S. 806, 813 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); Conrod v. Davis, 120 F.3d 92, 96 (8th Cir.1997), cert. denied, 523 U.S. 1081 , 118 S.Ct. 1531 , 140 L.Ed.2d 681 (1998) (“[A]ny traffic violation, even a minor one, gives an officer probable cause to stop the violator. If the officer has probable cause to stop the violator, the stop is objectively reasonable and any ulterior motivation on the officer’s part is irrelevant.” (quoting United States v. Caldwell, 97 F.3d 1063, 1067 (8th Cir.1996)). Thus, Crooks seems to be arguing that because he saw L. Johnson cross the center line, he had probable cause to stop her, and his motives for stopping her, even if improper, are therefore irrelevant. See Defendant’s Brief at 9; Aff. of Aaron Crooks ¶ 4, filing 28 at Ex. 1. Had L. Johnson admitted that she committed a traffic offense, I would be included to agree with Crooks’ analysis, at least with respect to the plaintiffs’ Fourth Amendment claim. See, e.g., Conrod, 120 F.3d at 96 (concluding that “even if [the defendant] presented evidence that [the officer’s] stated reasons for stopping [the defendant] were pretextual, such evidence would not invalidate the stop and arrest” since the defendant “[did] not dispute the fact that he was speeding” (citing Whren, 517 U.S. at 813 , 116 S.Ct. 1769 )); see also Whren, 517 U.S. at 813 , 116 S.Ct. 1769 (“[T]he constitutional basis for objecting to intentionally discriminatory application of law is the Equal Protection Clause, not the Fourth Amendment.”); United States v. Pipes, 125 F.3d 638, 640 (8th Cir.1997), cert. denied, 523 U.S. 1012 , 118 S.Ct. 1202 , 140 L.Ed.2d 330 (1998) (“Of course, officers must not selectively enforce the law based on unconstitutional considerations, but such claims fall under the Equal Protection Clause, not the Fourth Amendment.” (citation omitted)). Here, however, the question of whether L. Johnson crossed the center line is a disputed factual issue that cannot be resolved at this stage of the proceedings. Compare Aff. of Linda Johnson ¶ 4, filing 40 at Ex. 1 (“[A]t no time did I ever cross the center line of the highway.”), with Aff. of Aaron Crooks ¶ 4, filing 28 at Ex. 1 (“I then observed that the car immediately ahead of me on several occasions crossed the centerline slightly into the oncoming traffic lane.”); see Anderson, 477 U.S. at 255 , 106 S.Ct. 2505 (“Credibility determines, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”); Mems v. City of St. Paul, 224 F.3d 735, 739 (8th Cir.2000) (“[C]redibility determinations fall within the fact finder’s purview, not ours.”); Grossman v. Dillard Dep’t Stores, Inc., 47 F.3d 969, 971 (8th Cir.1995) (‘We may neither weigh evidence nor make credibility determinations *1008 at the summary judgment stage.” (citation omitted)). Given the allegations in the plaintiffs’ affidavits, it seems to me that factual issues also remain as to whether the stop was the product of racial discrimination. Thus, because “ ‘there is a genuine dispute concerning predicate facts material to the qualified immunity issue,’ ” I cannot find, as a matter of law, that Crooks “acted reasonably under settled law in the circumstances.” Gregoire, 236 F.3d at 417 (citation omitted); Hunter v. Bryant, 502 U.S. 224, 228 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991)). Accordingly, the defendant Crooks’ motion for summary judgment must be denied.

IT IS ORDERED that the Defendant’s Motion for Summary Judgment, filing 27, is denied.

Dated March 4, 2002.

BY THE COURT

/s/Warren K Urbom

Warren K. Urbom

United States Senior District Judge.

. Both plaintiffs are "Afro-American United States citizen[s].” Filing 17 ¶ 2.

. The third cause of action is also based on 42 U.S.C. § 1981 . See filing 17 ¶ 15.