# Nute v. White

> District Court, N.D. Alabama · December 30, 2022

URL: https://www.frixlaw.com/law-library/cases/9991479

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** December 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

ANTHONY DAVID NUTE,
Plaintiff,

v. Case No. 4:21-cv-1563-CLM

BRYAN DEAN WHITE, et al.,
Defendants.

MEMORANDUM OPINION
Anthony Nute sues Officers Bryan White and Lucas Yarbrough for
violating his constitutional rights when they arrested him. Nute also
alleges that Officer White violated Nute’s constitutional rights by failing
to intervene when different corrections officers later assaulted him.
Nute has moved for partial summary judgment on the liability issue
for both counts. (Doc. 9). The officers have moved for summary judgment
on both counts. (Doc. 22). For the reasons stated below, the court will
GRANT the officers’ motion for summary judgment on Count I, DENY
Officer White’s motion for summary judgment on Count II, and DENY
Nute’s motion for partial summary judgment on both counts.
BACKGROUND
1. The Arrest: Officers White and Yarbrough were dispatched to a
house in Rainsville, Alabama after a 911 call reported a man standing in
the yard in his underwear. Video footage from the scene shows Anthony
Nute standing in the yard, with his pants down, visibly shaking. Nute was
unresponsive to the officers who approached him other than at times
unintelligibly screaming at the officers. It is clear from the video footage
that Nute was in an unstable state of mind and likely under the influence.
Witnesses at the scene provided information to the officers about
Nute. One witness told the officers that they saw Nute the night before
and believed he was on drugs. Another witness stated that “[m]y dad
called me and told me to come over and check on the trailer because ‘he’s
talking crazy stuff.’” The video also shows there were several dwellings
surrounding the yard and across the street form the yard. It also shows
there were other people around the scene—some on foot, others driving
by.
Eventually, a medic approached Nute and tried to talk to him. Nute
responded by attempting to strike or push the medic away. At that point
the officers drew their tasers and directed Nute to get on the ground, but
Nute did not comply. Instead, he stuck his arms out in front of him,
remained standing, and ignored the officers’ commands.
While Officer Yarbrough pointed his taser at Nute, Officer White
and the medic moved behind Nute to take him into custody. They
eventually took Nute to the ground while Yarbrough tased Nute. Despite
Nute’s attempts to free his arms, the officers cuffed his hands and ankles.
The video shows that while the officers secured Nute, there were multiple
onlookers in the background. The officers arrested Nute and took him into
custody for third-degree assault, public intoxication, and resisting arrest.
2. The Assault: Officer White took Nute to the DeKalb County Jail.
When they arrived, three corrections officers (COs) took Nute inside for
processing. Once Nute was in the processing room, the COs appear to
instruct him to do something. When Nute did not comply, the COs
surrounded Nute and began beating him.
White watched from a few feet away. He neither joined the assault
nor tried to stop it. White left the room 27 seconds after the assault began.
The COs continued to punch, kick, and tase Nute for minutes after White
left. Nute suffered injuries to his face, head, chest, pelvis, back, arms, legs,
hands, and feet. (Doc. 10-16). The three COs were indicted on assault
charges in DeKalb County Circuit Court. Two officers pleaded guilty to
those charges, and the other will be tried in court.
3. The lawsuit: Nute now sues Officers White and Yarbrough under
42 U.S.C. § 1983. (Doc. 1 at 1). In his first count, Nute alleges Officers
White and Yarbrough unlawfully arrested him without probable cause in
violation of his Fourth Amendment rights. (Doc. 1 at 4). In his second
count, Nute alleges Officer White failed to intervene to stop the COs’
unlawful use of force in violation of his Fourth Amendment rights.
STANDARDS OF REVIEW
1. Rule 56: In considering cross-motions for summary judgment, the
court views the facts “in the light most favorable to the non-moving party
on each motion.” See Chavez v. Mercantil Commercebank, N.A., 701 F.3d
896, 899 (11th Cir. 2012). A movant is entitled to summary judgment
when there is no genuine dispute of material fact, and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2. Qualified Immunity: That said, qualified immunity protects
government officials from being sued in their individual capacities if “their
conduct ‘does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The Eleventh Circuit applies a two-
part test to determine whether qualified immunity applies: “First, the
official must prove that the allegedly unconstitutional conduct occurred
while he was acting within the scope of his discretionary authority.
Second, if the official meets that burden, the plaintiff must prove that the
official’s conduct violated clearly established law.” Harbert Int’l, Inc. v.
James, 157 F.3d 1271, 1281 (11th Cir. 1998) (citations omitted).
DISCUSSION
Again, Nute pleaded two claims. In Count I, Nute alleges that
Officers White and Yarbrough unlawfully arrested him without probable
cause in violation of his Fourth Amendment rights. White and Yarbrough
argue that summary judgment is appropriate on Count I because they had
probable cause to arrest Nute, and that even if they didn’t, qualified
immunity protects them from suit because they had arguable probable
cause to arrest Nute. (Doc. 23 at 17).
In Count II, Nute alleges that Officer White failed to intervene in
the COs unlawful use of force in violation of Nute’s Fourth Amendment
rights. (Doc. 1). Officer White argues that he is entitled to summary
judgment on count II because he did not have time to intervene and could
not intervene, and that qualified immunity protects him from suit because
no existing caselaw clearly established his duty to intervene here. (Doc.
23 at 28).
Nute does not contest that the officers were acting within the scope
of their discretionary authority, so for each count, the court must
determine whether the officers violated clearly established law. It is
Nute’s burden to prove that (1) the officers’ conduct violated Nute’s
constitutionally protected right and that (2) the right was clearly
established at the time of the misconduct. Pearson v. Callahan, 555 U.S.
223, 232 (2009). But district courts may “exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular
case at hand.” Id. at 236.
Count I: Arguable Probable Cause for Nute’s Arrest
The court begins with Nute’s claim that the officers violated his
Fourth Amendment rights by arresting him without probable cause or
arguable probable cause. To be shielded by qualified immunity on this
claims, the officers must establish there was arguable probable cause.
Brown v. City of Huntsville, Alabama, 608 F.3d 724, 734 (11th Cir. 2010).
Arguable probable cause exists where “reasonable officers in the
same circumstances and possessing the same knowledge as the
Defendants could have believed that probable cause existed to arrest
Plaintiff.” Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.
2004), abrogated in part on other grounds by Nieves v. Bartlett, 139 S. Ct.
1715 (2019). “Indeed, it is inevitable that law enforcement officials will in
some cases reasonably but mistakenly conclude that probable cause is
present, and in such cases those officials should not be held personally
liable.” Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990). Whether
an officer had arguable probable cause depends on the facts of each case
and showing arguable probable cause does not require proving every
element of a crime. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137–38
(11th Cir. 2007); Scarbrough v. Myles, 245 F.3d 1299, 1302–03 (11th Cir.
2001).
Nute argues there was no probable cause to arrest him for any of
the three crimes he was charged with. In their summary judgment
briefing, the officers argue there was at least arguable probable cause to
arrest Nute for public intoxication and resisting arrest. Because a
prerequisite for a resisting arrest charge is a lawful arrest, the court will
only decide whether the officers had arguable probable cause to arrest
Nute for public intoxication. See Morris v. Town of Lexington Ala., 748
F.3d 1316, 1325 (11th Cir. 2014) (“Alabama law gives a citizen the right
to use force to resist an unlawful arrest”).
Under Alabama law, “[a] person commits the crime of public
intoxication if he appears in a public place under the influence of alcohol,
narcotics or other drug to the degree that he endangers himself or another
person or property, or by boisterous and offensive conduct annoys another
person in his vicinity.” Ala. Code 13A-11-10: Public Intoxication.
Nute argues that there was no arguable probable cause for the
officers to arrest him for public intoxication because he (1) was on private
property that he had permission to be on, and thus was not in a public
place, (2) was not boisterous or offensive to anyone in his vicinity, and (3)
never endangered himself or others.
The officers argue that there was probable cause because (1) Nute
was or was soon to be in a public place, (2) was clearly under the influence
of some substance, and (3) his state of mind and actions were offensive to
those in the area and created a danger to himself and others. The officers
argue that the video evidence is sufficient for the court to hold that there
was arguable probable cause.
Having reviewed the video and documentary evidence, the court
agrees that these facts show that there was at least arguable probable
cause to arrest Nute for public intoxication:
 The 911 caller reported that a man was wandering around in his
underwear;
 Nute would not respond to the officers’ questions and did not tell
the officers he was on his own property;
 Witnesses reported to the officers that they thought Nute was on
drugs and that he was acting crazy;
 The video shows other dwellings around the yard Nute was in, and
multiple other dwellings in the area and across the street;
 There were other people in the area, both on foot and in vehicles
driving by; and, most importantly,
 The video shows Nute in an unstable state and likely under the
influence of some substance, as show by his shaking, screaming, and
general demeanor towards the officers and medic
Even viewing this evidence in a light most favorable to Nute, it is at least
arguable that Nute was (1) in a public place, (2) under the influence of
some substance, (3) endangering himself and the people around the yard
he was in, and (4) engaged in boisterous or offensive conduct that annoyed
the people in the area.
So the court finds no dispute of material fact that the officers had
at least arguable probable cause to arrest Nute for public intoxication, and
the officers are thus entitled to qualified immunity for arresting Nute. The
court thus GRANTS the officers’ motion for summary judgment on count
I (doc. 22) and DENIES Nute’s motion for summary judgment on count I.
Count II: Failure to Intervene in Nute’s Assault
Nute’s second count alleges that Officer White should have
intervened when the COs were assaulting Nute, and his failure to do so
violated Nute’s Fourth Amendment rights. White does not dispute the
COs’ assault on Nute was excessive force under the Fourth Amendment.
Instead, White argues (a) that he was unable to intervene and had no time
to intervene, and in any event, (b) the law was not clearly established that
he had a duty to intervene, so qualified immunity protects him from suit.
The court starts with the qualified immunity argument.
1. Qualified immunity: To determine whether a right is clearly
established, this court looks to decisions from the U.S. Supreme Court,
the Eleventh Circuit, and the Alabama Supreme Court. Snider v.
Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th Cir. 2003). An
existing case need not be directly on point, “but existing precedent must
have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Indeed, “[t]he contours of
the right must be 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).
The Eleventh Circuit has clearly established “that an officer who is
present at the scene and who fails to take reasonable steps to protect the
victim of another officer’s use of excessive force, can be held liable for his
nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1341–42 (11th
Cir. 2007) (quotation marks omitted); Byrd v. Clark, 783 F.2d 1002, 1007
(11th Cir. 1986) (“If a police officer, whether supervisory or not, fails or
refuses to intervene when a constitutional violation such as an
unprovoked beating takes place in his presence, the officer is directly
liable under Section 1983.”). But “it must also be true that the non-
intervening officer was in a position to intervene yet failed to do
so.” Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008).
Nute argues that White isn’t entitled to qualified immunity on the
failure to intervene claim because he was present for the use of excessive
force, could intervene, yet failed to intervene. White, on the other hand,
claims that he is entitled to qualified immunity because he was only
present for a few blows the COs delivered to Nute, and that he did not
have time to intervene and was unable to intervene.
White is correct that the Eleventh Circuit has held that qualified
immunity applies for some failure to intervene claims when the officer had
no time to intervene. See Johnson v. White, 725 F. App’x. 868, 878 (11th
Cir. 2018) (“Instances of force that occur within seconds do not place
officers in a realistic position to intervene.”). For example, in Hadley v.
Gutierrez, the Eleventh Circuit reversed the district court’s denial of
qualified immunity when an officer could not have anticipated and
stopped another officer from punching the plaintiff in the stomach one
time. 526 F.3d at 1331. In another case, the Eleventh Circuit held that
qualified immunity was proper for an officer who observed another officer
kick the plaintiff “four times in rapid succession without warning” because
it left “insufficient time for any of the other officers to issue a verbal
command or physically prevent [the officer] from that kicking.” Marantes
v. Miami-Dade Cnty., 649 F. App’x 665, 672 (11th Cir. 2016).
But a reasonable juror who watches the video could find that White
had time to intervene. White observed the three COs bring Nute into the
screening room and surround him. Thirteen seconds later, White watched
as two COs struck Nute in the face. Ten seconds after that, White
witnessed two more strikes to Nute’s face. A few seconds later, White
watched the COs grab Nute to take him to the ground while another CO
struck him in the face. At this point—20+ seconds into the assault—White
turned to walk towards the door, but turned around again to witness the
COs knee, kick, and punch Nute while he was on the ground. Then,
27 seconds after the first blow, White decided to leave the room altogether.
And the beating continued for a few minutes.
These facts are much closer to two situations in which the Eleventh
Circuit held that an officer’s failure to intervene violates a person’s
constitutional rights. In one case, the Eleventh Circuit held that an
onlooking officer was not entitled to qualified immunity when he observed
a police dog attacking the plaintiff—who posed no threat to the officers
and did not attempt to flee or resist arrest—for at least two minutes, yet
failed to intervene. Priester v. City of Riviera Beach, Fla., 208 F.3d 919,
927 (11th Cir. 2000). The court reasoned that “every reasonable officer
would have known that [the excessive force] was clearly in violation of
Priester’s constitutional rights,” and the officer “observed the entire
attack and had the time and ability to intervene, but did nothing.” Id.
In another case, the Eleventh Circuit reversed the district court’s
grant of qualified immunity because the officer watched other officers
attack the plaintiff for two to three minutes, had the time and ability to
intervene, yet did nothing. Bailey v. City of Miami Beach, 476 Fed. App’x
193, 196 (11th Cir. 2012).
These cases—both released before this incident—clearly establish
that White’s failure to intervene when the COs were beating Nute may
violate Nute’s constitutional rights. So Officer White is not entitled to
qualified immunity on Count II.
2. The merits: Viewing these facts in the light most favorable to
Nute, a reasonable jury could find that Officer White had the ability and
time to intervene in the COs’ assault but failed to do so, and thus violated
Nute’s Fourth Amendment rights. So the court DENIES White’s motion
for summary judgment on the second count.
The court also DENIES Nute’s motion for summary judgment on
the second count, because viewing the evidence in the light most favorable
to Officer White, a reasonable juror might find that White could not have
reasonably intervened in the COs’ assault.

CONCLUSION
For these reasons, the court GRANTS Officers White and
Yarbrough’s motion for summary judgment as to Count I and DENIES
Officer White’s motion for summary judgment as to count II. The court
DENIES Nute’s motion for partial summary judgment on both counts.
The court will enter a separate order consistent with this
memorandum opinion.
DONE and ORDERED on December 30, 2022.
fi eof é Hey —
COREY I. MAZE
UNITED STATES DISTRICT JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991479. Public record. Not legal advice.