# Appendix — Smith v. City of Cumming

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1485%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 978

## Text

Supreme Court, U.S.

* FILED
—
00 32 O AUG 2 9 200
ac: “UFFICE-OF THE CLERK
In The

Supreme Court of the United States

James 8. Smith and Barbara Smith,
Petitioners,

V.

The City of Cumming, a Municipal
Corporation, Earl A. Singletary and John Doe,
Respondents.

On Petition for Writ of Certiorari
To the United States Court of Appeals
For The Eleventh Circuit

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

Clifford H. Hardwick
Attorney for Petitioners
Roswell Professional Park

Suite E-1
11205 Alpharetta Highway
Roswell, Georgia 30076-1442
(770) 772-4700

an

TABLE OF CONTENTS

1. Order from the United States Court of
Appeals for the Eleventh Circuit.........1

2. Order from the United States District
Court for the Northern District of
Georgia. . — - |

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

NO. 99-8199

D.C. DOCKET NO. 97-01753-1-CV-JEC

JAMES SOLOMAN SMITH, JR., BARBARA
SMITH,
Plaintiffs-Appellants

CITY OF CUMMING, a Municipal Corporation,
EARL A. SINGLETARY, et al.,
Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Georgia

(May 31, 2000)

Before BIRCH and BARKETT, Circuit Judges,
and ALARCON, Senior Circuit Judge.

BARKETT, Circuit Judge:

*Honorable Arthur L. Alarcon, Senior
U.S. Circuit Judge for the Ninth Circuit,

sitting by designation.

James and Barbara Smith filed suit
against the City of Cumming, Georgia (the
“City”), and its police chief, Earl Singletary,
pursuant to 42 U.S.C. § 1983, alleging that the
City police had harassed the Smiths, including
a claim that Mr. Smith had been prevented from
videotaping police actions in violation of Mr.

Smith’s First Amendment rights. They appeal

from summary judgment granted to the City and
Singletary and from the denial of the Smith’s
motion to amend their complaint so as to name
another City police chief, Ralph “Buck” Jones,’
as a defendant in the place of a defendant
originally identified as “John Doe.” We affirm.

As to the First Amendment claim under
Section 1983, we agree with the Smiths that
they had a First Amendment right, subject to
reasonable time, manner and place restrictions,
to photograph or wideotape police conduct. The
First Amendment protects the right to gather
information about what public officials do on
public property, and specifically, a right to
record matters of public interest. See Blackston
v. Alabama, 30 F.3d 117, 120 (11™ Cir. 1994)
(finding that plaintiffs’ interests in filming
public meetings is protected by the First
Amendment); Fordyce v. City of Seattle, 55 F.
3d 436, 439 ( Cir. 1995) (recognizing a “First
Amendment right to film matters of public

Jones and Singletary served together for
several months a co-chiefs of police. Later, Singletary
was chosen as chief, when he left Cumming, Jones
succeeded him as chief.

interest”); Iacobucci v. Boulter, No. CIV. A. 94-
10531 (D. Mass, Mar. 26, 1997) (unpublished

opinion) (finding that an independent reporter
has a protected right under the First
Amendment and state law to videotape public
meetings); see also, United States v. Hastings,
695 F. 2d 1278, 1281 (11™ Cir. 1983) (finding
that the press generally has no right to
eee = crag eee, Nek mene
Inc., 435 b. 8. 589, 609 (1978); , Lambert L. Polk
County, 723 F. Supp. 128, 133 (8.D. Iowa 1989)
lt is not just news organisations. . who have
First Amendment rights to make and display
videotapes of events . . . .”); Thompson v. City
of Clio, 765 F. Supp. 1066, 1070-71 (M.D. Ala.
1991) (finding that city council’s ban on
member’s attempt to record proceedings
regulated conduct protected by the First
Amendment); cf. Williamson v. Mills, 65 F. 3d
155 (11% Cir. 1995) (reversing district court’s
grant of qualified immunity to a law
enforcement officer who seized the film of and
arrested a participant in a demonstration for
photographing undercover officers). Thus, the
district court erred in concluding that there was
no Fist Amendment right.

Nonetheless, under Section 1983, the
Smiths must prove that the conduct complained
of deprived them of “a right, privilege or
immunity secured by the constitution or laws of
the United States.” Nail v. Community Action
Agency of Calhoun County, 805 F. 2d 1500,
1501 (11% Cir. 1986). Although the Smiths have

a right to videotape police activities, they have
not shown that the Defendants’ actions violated

that right. We find no merit in the remaining
arguments presented in this appeal. AFFIRMED.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION
JAMES 8. SMITH, and :
BARBARA SMITH, 2
Plaintiffs, :
: CIVIL ACTION NO.
v. : 1:97-CV-1753-JEC
THE CITY OF :

CUMMING, a Municipal :
Corporation, EARLA. :
SINGLETARY and :
JOHN DOE, :

Defendants. 2

ORDER

This case is presently before the Court on
defendants’ Motion for Summary Judgment [35].
The Court has reveiwed the record and the
arguments of the parties and, for the reasons set
out below, concludes that defendants’ Motion
for Summary Judgment should be GRANTED as
to all federal claims, and that plaintiffs’ state
law claim of defamation should be DISMISSED
without prejudice.

BACKGROUND
Plaintiffs filed this suit pursuant to 42

U.8.C. § 1983, claiming violations of their First,
Fourth and Fourteenth Amendment rights and,
furthermore, that they are the subject of a
conspiracy designed to deprive plaintiffs of their
federally guaranteed constitutional rights of due
process and equal protection. Additionally,
plaintifis allege the state law claim of

Plaintiffs present a lengthy, convoluted
account of their interactions with the police
department in the City of Cumming, Georgia.
Plaintiffs, however, are unclear as to which
actions comprise what alleged constitutional
violation. To aid in clarifying the issues, the
Court will set forth the factual allegations
compartmentally, to reflect clearly each
incident at issue in this case. Then, in its legal
analysis, the Court will discuss each incident in
light of the numerous alleged constitutional
violations.

1. Incident involving Sarah Miles

Plaintiffs maintain that their relationship
with the police department changed after they
filed a police report against Sarah Miles. (PI.
Response [46] at 6.) The affairs leading up to
this point are rather unusual and are as follow.

The Smiths enlisted the help of Vaun
Pendley, their part-time employee, as a sperm
donor in their efforts to artificially inseminate
Mrs. Smith. Specifically, on six different
occasion, James Smith paid Pendley fifty dollars

to ejaculate into a condom. (J. Smith Dep. at
117-120; V. Pendley Dep. at 33-35.) James
Smith then attempted to inseminate his wife by
inserting Pendley’s donation into Barbara Smith
with the aid of a turkey baster. (J. Smith Dep.
at 117.)

Sarah Miles, Pendley’s girlfriend at the
time, learned of Pendley’s involvement as a
donor and became angry. (Id. at 121.) The
Smiths allege that Sarah Miles became so angry,
in fact, that she approached Jason Lingerfelt,
Pendley’s cousin, and offered to pay him one-
hundred dollars and to have sexual relations
with him if he would “shoot up” the Smiths’
house while they were in the house. (Id. at 126-
27; see also Lingerfelt Dep. at 15.) Lingerfelt
told James Smith about Sarah’s offer and then
accompanied him to the police station to file a
report. (Lingerfelt Dep. at 15-16.)

At the police station, Lingerfelt and Smith
spoke with Assistant Chief of Police Ralph
“Buck” Jones. Chief Jones prepared an
incident report and took statements from
Micheal Pugh and Vaun Pendley as well.’
Additionally, the police asked Lingerfelt to call

1
Jones is currently Chief of Police in
Cumming, Georgia.

2

Plaintiffs point out that the Cumming Police
Department claims to have lost all of the files and
evidence pertaining to the “Sarah Miles incident.” (See
Jones Dep. at 31.)

Sarah Miles, then monitored and taped a
conversation in which Miles asked Lingerfelt to
shoot up the Smiths’ house. (Lingerfelt Dep. at
16; J. Smith at 129.) As a result, the police
instructed Lingerfelt to set up a meeting with
Sarah Miles at a hotel room so that Miles could
provide Lingerfelt with a weapon, however Miles
never appeared. (Jones Dep. at 34-38.)

The assistant district attorney advised the
police that they did not have enough evidence
to make an arrest at that point and, absent
some overt action taken by Ms. Miles, they
should not arrest her. (Jones Dep. at 35-36.)
Instead, the police called her in for a
conference, advised her of her rights, explained
the complaint filed against her and further
explained the offenses with which she could be
charged. [Id. at 36.) Miles denied the
accusations but indicated that she would return
to West Virginia with her father. The police and
the assistant district attorney concluded that,
once she left town, the matter should be
dropped. Ad.) Furthermore, after a
conversation with a district attorney, the
Smiths chose not to pursue a prosecution of
Miles. (J. Smith Dep. at 142-43.)

Plaintiffs are angry because Sarah Miles
was allowed by the police to “walk away scot
free from an attempted murder.” (Pl. Response

3

Plaintiffs maintain that Sarah Miles

currently works in the Forsyth County area and does not
reside in West Virginia. (Patterson Dep. at 6.)

8

[46] at 6.) Because the police did not “perform
an investigation and/or arrest [Miles],” plaintiffs
contend that the police “refused to take steps to
protect the Plaintiffs.” (Compl. [1] at JJ 9-10.)
Moreover, plaintiffs maintain that they had no
trouble with the police until James Smith filed
charges against Sarah Miles.

2. Incident involving Lingerfelt’s

attempted drug buy

During the time in which the incident
involving Sarah Miles ensued, both Miles and
Lingerfelt told police that the Smiths kept drugs
in their shop and that they provided drugs to
others. (Jones Dep. at 37; Lingerfelt Dep. at

21.) Specifically, when she met with the police,
Sarah Miles told police that the Smiths kept

drugs at their shop and supplied Vaun Pendley
with drugs on numerous occasions. (Jones Dep.
at 37.) When Smith and Lingerfelt went to the
police station to file charges against Miles,
Jason Lingerfelt told the police that James
Smith kept marijuana at his store and that
Smith had given it to him on occasion.
(Lingerfelt Dep. at 20.)

Smith, in turn, told the police that
Lingerfelt had pills in his pocket. Thus, Chief
Jones told Lingerfelt that he would not charge

4

Also, Martha McConnell, mother of Vess,
Vaun and Vince Pendley, informed the City of Cumming
Police Department that her sons were smoking marijuana
with James Smith. (Def. Mot. for Summ. J. [35], Ex. H.
McConnell Aff. at J ¢ 8-9.)

9

him with a felony for bringing drugs onto police
property if Lingerfelt would help him “bust
James.” (Id.) Lingerfelt used the police
department’s marked money in an attempt to
buy marijuana from James Smith, but Smith
told Lingerfelt he did not have any marijuana
and Lingerfelt left the store.“ (Id. at 21.)
According to Chief Jones, the police
department made no further attempts to
investigate the Smiths. (Jones Dep. at 38-42.)
After Lingerfelt’s attempted drug buy, however,
plaintiffs allege that “there was a series of
unusual incidents whereby total strangers would
walk into the shop and ask to buy drugs.” (Pl.

Response [46] at 6 (citing J. Smith Dep. at 11).)
3. Incident involving Vess Pendley’s
arrest

In July, 1997, Vess Pendley (brother of
Vaun Pendley) was arrested by police officers
from the Forsyth County Sheriffs Department.
Vess, who according to plaintiffs has a history of
drug abuse and criminal conduct, called the
Smiths from the Forsyth County Jail and
claimed that a plain clothes officer solicited him

$

Lingerfelt states that he did not tell Smith
the police sent him. (Lingerfelt Dep. at 21.) The police
believe that Lingerfelt did inform Smith that the police
sent him because shortly after Lingerfelt entered the
repair shop “Smith came to the door and looked out and
kind of glared at us, and Lingerfelt came back out, so it
was kind of safe to assume that Lingerfelt told him why
he was in there.. . (Jones Dep. at 38.)

10

to attempt a drug buy from the Smiths.
Furthermore, Vess told the Smiths that the
officer warned him that if he did not cooperate
he would be kept in jail for a prolonged period of
time. (Pl Response [46] at 12-13 and Ex. 2,
Statement of Vess Pendley.)

Vess Pendley and plaintiffs maintain that
the jail officers refused to provide Pendley with
towels, soap, and Vaseline to treat his skin
condition, psoriasis, because he would not agree
to the scheme proposed by the plain clothes
officer. Plaintiffs’ counsel contacted the
Sheriff's Department regarding this matter and,
plaintiffs contend, “the plot to set up a drug buy
was known, the calls [from Pendley] stopped and
Pendley . . . was given showers, medication, and
treated for his medical condition.” (Id. at 13.)

Plaintiffs allege that the arrest of Vess
Pendley was part of the conspiracy fashioned by
the City of Cumming Police Department to
deprive them of their constitutional rights. The
arrest of Vess Pendley, they contend, resulted
after defendant Singletary took a position with
the Forsyth County Sheriff’s Office. (PI.
Response [46] at 12.)

4. Incident involving alleged defamation
of Smiths

The Smiths allege that since the incident

involving Lingerfelt’s attempted drug buy, “the

Cumming Police Department has, without any

7 foundation whatsoever, began [sic] to circulate
false and malicious reports among the other

business persons and citizens of Cumming that

11

Ne ssꝛ.tvſſ mm StðMʒeä l

the plaintiffs were drug dealers and/or vicious
people.” (Compl. [1] at 4 11.) For example,
James Smith maintains that the owner of a
restaurant located in the same shopping center
as the Smiths’ store indicated that Chief

Singletary previously told him that James
Smith was a drug dealer. (Pl. Response [46] at 7

(citing J. Smith Dep. at 68).)
However, each of the store owners in the

shopping center, including the restaurant
owner, have submitted affidavits stating that
they have never heard Chief Singletary, any
person employed by the City of Cumming or any
person employed they the City of Cumming
Police Department accuse the Smiths of being
drug dealers, of being involved with drugs, or of
being vicious people. (Def. Mot. for Summ J.
[35], Ex. B, Wengler Aff.; Ex. C., Smalley Aff.; Ex.
D., Adams Aff.) Additionally, the Smiths’ private
investigator, John C. Villines, testified that, as
a result of his own investigation, he found no
one with contact to the Smiths or the business
that believed the Smiths were dealing drugs.
(Villines Dep. at 47-48.) Nevertheless, plaintiffs
maintain that they have been defamed by the
City of Cumming through police officers acting
as its agents.

6

Earl A. Singletary, a defendant in this
action, was Chief of Police before Ralph “Buck” Jones -
previously Assistant Chief of Police - assumed the
position.

12

5. Incidents involving Chief Jones’s
alleged attempt to have Smiths’
business license revoked

Plaintiffs contend that because the police
were unable to pin them with criminal charges,
Chief of Police Buck Jones attempted to collect
civil complaints from the Smith«’ customers in
an effort to have the Smiths’ business license
pulled. The Smiths maintain that “Jones used
his position as chief of police to contact anyone
he felt might have a complaint against the
Plaintiffs in order to instigate more civil or
criminal complaints.” (Pl. Response [46] at 8.)
The Smiths allege that Chief Jones told people
that the police had an ongoing problem with the
Smiths. (Id.)

Specifically, plaintiffs’ private
investigator, John C. Villines, states that Chief
Jones contacted him because Jones understood
that Villines had been working on a case
involving some problems at Decuff Electronics;
Jones, however, did not realize that Villines
worked for the Smiths, but believed that Villines
worked, instead, for a customer who had a
complaint against the Smiths. (Villines Dep., at
17-18 and Ex. B.) Villines recalls that Chief
Jones was seeking adverse information about
James Smith because the police department had
experienced numerous problems with Smith.
Ultimately, Villines recounts that Chief Jones
was looking for additional documentation of
such problems so that he could attempt to have
Smiths’ business license pulled. (Id.)

Additionally, the Smiths allege that, in

13

FFF ia iiniiliial

Jones’ effort to have their business license

revoked, Jones ran a background check on them
through the National Crime Information Center
(NCIC) using access provided by Forsyth County
Sheriff's Office. (Pl. Response [46] at 9 (citing
Jones Dep. at 58-60).) Because the Smiths
believe Jones used the NCIC check for civil
purposes, although the check should only be
used in a criminal investigation, they allege that
he violated their constitutional right to privacy
Id.)

Defendants reply that Jones testified that
he did not remember what type of background
check was conducted, but that he did in fact
conduct a background check because the police
department had received numerous complaints
about the Smiths and he wantiwd to see,
essentially, what kind of character the police
were dealing with and whether James Smith u__.
wanted. (Def. Reply [49] at 11 (quoting Jones
Dep. at 59).) Defendants maintain that Jones
did not run a background check in an attempt to
revoke the Smiths’ business license. Ad.)
Moreover, defendants contend that there is no
evidence that Chief Jones obtained confidential
records or information that was not of public
record in violation of the Smiths’ right to

privacy.

6. Incident involving traffic ticket issued
to Barbara Smith
Next, the Smiths allege that Barbara Smith
was pulled over by Officer Elzey late one

evening as she was leaving work and was given

14

——— ne Naan

a ticket for having no proof of insurance,
although Officer Elzey initially pulled her over
because he observed Mrs. Smith weaving.
Barbara Smith denies that she was weaving and
“contends that it was part of the on-going
harassment and/or part of a scheme whereby
Cumming police officers would, under pretext,
pull over drivers and write bogus tickets in order
to increase revenue.” (Pl. Response [46] at 10.)
Additionally, plaintiffs claim that they are not
being paranoid, but that this has been the
subject of conversation among many persons in
the community “ever since Singletary took over
as Chief of Police.” Id.)

Officer Elzey testifies that he stopped
Barbara Smith shortly after midnight after he
observed her vehicle cross over the center line
of a straight road several times. (Id. at 19-20.)
Elzey states that it is his “rule of thumb” not to
stop someone for weaving unless he observes
the conduct at least more than once; however,
if the driver continues to cross over a center
line, he stops them to ensure that they are not
falling asleep or under the influence of some
substance. (Id. at 19.) Furthermore, Officer
Elzey recounts that he did not know who she
was until he pulled her over and, even then, he
did not know who her husband was until after he
had written the ticket and she told him that her
husband was James Smith who owned DeCuff
Electronics. (Id. at 25.)

As a result of this incident, James Smith

filed a lawsuit against Officer Elzey, claiming
the issuance of the ticket to Barbara Smith had

15

resulted in the loss of affection. (Elzey Dep. at
J Mr. Smith dismissed the lawsuit later. Ad.

(citing Dep. Smith at 91-92).) Officer Elzey,
however, stated that this conduct was
distracting and took his focus away from the
vehicle stops. (Elzey Dep. at 39.)

Several police officers came to Chief of
Police Singletary and informed him that James
Smith was following them and taking pictures.
Because these officers did not know Smith’s
motive or intent, Smith’s actions made them
nervous and they felt that their safety was

16

jeopardized. (Singletary Dep. at 21-23.) Thus,
the officers asked Chief Singletary to take some
sort of action to stop Smith from continuing in
this manner.

Singletary believed that Smith was
interfering with the law enforcement officer’s
ability to perform their job correctly. (Id. at 21.)
Accordingly, Singletary applied for a warrant for
James Smith’s arrest for the obstruction of law
enforcement officers under Singletary’s charge.
(id. at 20, 25.) James Smith was not arrested,
but was asked to appear at a show cause hearing
before a magistrate judge. The magistrate judge
told Smith that if he continued to follow the
police and videotape them while on duty, he
would be arrested. (J. Smith Dep. at 38-39; B.
Smith Dep. at 248.) The Smiths conclude that
Singletary’s actions deprived them of their First
and Fourth Amendment rights.

8. Incident involving landlord’s request

that plaintiff remove sign from

storefront .

Plaintiffs allege that defendants caused
their landlord to believe that they are
undesirable tenants. (Comp. [1] at 431.) Also,
they allege that “the city of Cumming, through
its agents, have (sic) continuously harassed the
Plaintiffs through efforts to force the Plaintiffs
to remove signs from the building and other
actions that were designed to close the
Plaintiff's business and force them to move
elsewhere.” (Id. at J 32.) Plaintiffs maintain
that their landlord told them that the City of

17

Cumming wanted the sign removed. (J. Smith
Dep. at 65.)

Plaintiffs have not presented any evidence
that their landlord has asked them to vacate the
premises. Although the landlord asked the
Smiths to remove a sign connected to the
storefront, the landlord attests that no one
affiliated with the City of Cumming asked him
to require the Smiths to remove the sign.
(Ahizadah Aff. at J 5.) Moreover, even James
Smith testified that no one affiliated with the
City of Cumming asked him to take down the
sign, but that only his landlord made such a
request. (J. Smith Aff. at 59-60.) The sign has
not been removed, and the Smiths have not
been asked lately to remove it. (Id. at 59.)
Additionally, it is important to note that
plaintiffs’ response does not even address the
sign issue. (See Pl. Response [46].)

9. Failure to provide police support

Plaintiffs claim that, since 1995 the police
department of the City of Cumming has refused
to provide requested police support to DeCuff
Electronics to deal with customer-related
problems. (Pl. Compl. [1] at J 12.) Specifically,
plaintiffs allege that members of the police
department refused to enforce the law regarding
trespassers or persons threatening plaintiffs.
(Id. at J 13.) Also, plaintiffs complain that a
police officer refused to draft a written incident
report when plaintiffs complained about a third
party threatening them with physical violence
at plaintiffs’ place of business. (Id. at J 14.)

18

B. P for
judgment as to all claims

Both defendants have moved for summary
judgment on all claims asserted against them.
Defendants argue that there is no evidence of
any constitutional violation or of any
defamation. Additionally, Officer Singletary
argues that even if there is such evidence, he is
protected by the doctrine of qualified immunity.
After setting forth the standard to be applied in
deciding a summary judgment motion, the Court
will address, in turn, claims asserted against the
City of Cumming and against Officer Singletary
in his official capacity, then claims against
Officer Singletary in his individual capacity.

DISCUSSION
I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when
the “pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). A fact’s
materiality is determined by the controlling
substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). An issue is
genuine when the evidence is such that a
reasonable jury could return a verdict for the
nonmovant. Id. at 249-50.

Summary judgment is not properly viewed
as a device that the trial court may, in its
discretion, implement in lieu of a trial on the

19

merits. Instead, Rule 56 of the Federal Rules of
Civil Procedure mandates the entry of summary
judgment against a party who fails to make a
showing sufficient to establish the existence of
every clement essential to that party’s case on
which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In such a situation, there can be no
genuine issue as to any material fact, as a
complete failure of proof concerning an
essential element of the non-moving party’s
case necessarily renders all other facts
immaterial. Id. at 322-23.

The movant bears the initial responsibility
of asserting the basis for his motion. Id. at 323.
However, the movant is not required to negate
his opponent’s claim. The movant may
discharge his burden by merely “‘showing’ - that
is, pointing out to the district court - that there
is an absence of evidence to support the non-
moving party’s case.” Id. at 325. After the
movant has carried his burden, the non-moving
party is then required to “go beyond the
pleading” and present competent evidence
designating “specific facts showing that there is
a genuine issue for trial.” Id. at 324. While the
court is to view all evidence and factual
inferences in a light most favorable to the non-
moving party, Samples v. City of Atlanta, 846
F. ad 1328, 1330 (11 Cir. 1988), “the 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

20

genuine issue of material fact.” Anderson, 477
U.S. at 247-48 (1986).

II. PLAINTIFFS’ § 1983 CLAIMS

In order to state a claim under § 1983, “a
plaintiff must allege the violation of a right
secured by the Constitution and laws of the
United States, and must show that the alleged
deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487
U.S. 42, 48, 108 S. Ct 2250, 101 L.Ed.2d 40
(1988) (citations omitted). As stated above,
plaintiffs’ complaint alleges violations under the
First, Fourth, and Fourteenth Amendments, and
the parties agree that defendants were acting
under color of state law at the time of the
events in question.

Before the Court walks through its
discussion of whether any genuine issue of
material fact exists with regard to the
constitutional violations alleged by plaintiffs’,
the Court observes the following. Plaintiffs
make sweeping allegations that their First,
Fourth and Fourteenth Amendment rights have
been violated, but do little to indicate which
factual allegations are tied to what legal theory.
The Court — and defendants, for that matter
has been left to sift through plaintiffs’ barrage of
encounters with the City of Cumming and its
police department in order to attempt to
discern what incident or incidents could
constitute, for example, a breach of plaintiffs’
equal protection or due process rights. Even
plaintiffs’ brief in response to defendants’

21

summary judgment motion is filled with
cursory, unhelpful statements such as this: “Not

only has their reputation suffered, but they
have been deprived of the right to enjoy their
porperty (sic)... , their relations with their
landlord has (sic) been damaged. . . . Thus, they
have meet (sic) the burden set by [a cited case]
by showing the defamation was accomplished by
an infringement of a Fourth Amendment Right.”
(Pl. Response [46] at 22-23.) Plaintiffs’ brief
does little to show how the facts alleged actually
compose the constitutional violations asserted.
Plaintiffs’ complaint is a classic example
of “shotgun pleading.” See GJR Investments,
Inc. v. County of Escambia, Florida, 132 F.3d
1359, 1368 (11 Cir. 1998); Oladeinde v. City of
Birmingham, 963 F. ad 1481, 1483-84 (11 Cir.
1992); Pelletier v. Zweifel, 921 F. ad 1465, 1518
(11 Cir. 1991). That is, it presents countless
allegations, regardless of their relevance, and
merges them into a few generalized claims for
relief based on a fortuitous smattering of
asserted constitutional rights. One of the
purposes of summary judgment is “to unmask
frivolous claims and put a swift end to meritless
litigation,” a purpose particularly relevant here
where plaintiffs employ a haphazard “shotgun”
approach to litigation. Fullman v. Graddick,
739 F.2d 553, 557 (1984). Plaintiffs are
represented by counsel, thus the Court should
not have to view their pleadings and legal
arguments with the indulgence afforded to pro
se litigants. Nevertheless, the Court has been
left to the cumbersome task of sorting through

22

a myriad of factual allegations in an attempt to
determine their relevance to plaintiffs’ legal
claims. Thus, viewing all evidence and factual
inferences n the light most favorable to the non-
moving party, the Court has, to the best of its
ability, applied the facts alleged to the
constitutional rights cited by plaintiffs.

A. Municipal Liability

Plaintiffs bring claims under section 1983
against the City of Cumming and against Earl A.
Singletary in his official capacity. A claim filed
against an individual in his official capacity is
synonymous with a claim against the local
government entity he or she represents. Owens
v. Fulton County, 877 F.2d 947, 951 n.5 (11™
Cir. 1989) (citing Kentucky v. Graham, 473 U.S.
159, 166, 105 S. ct. 3099, 87 L.Ed.2d 114
(1985)). Thus, the claim against defendant
Singletary in his official capacity will be
analyzed in conjunction with the claim against
the City of Cumming.

In response to plaintiffs’ claim, defend: ta
contend that there is no evidence that actions
taken by police officers within the City of
Cumming Police Department manifest a policy,
custom or practice of violating citizens’ First,
Fourth and Fourteenth Amendment rights under
42 U.S.C. § 1983. Because municipal liability
may not be imposed by means of respondeat
superior alone, a local government is only liable
for the actions of its employees under section
1983 “when execution of a government’s policy
or custom, whether made by its lawmakers or by

23

those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury.”
Monell v. Dep’t of Social Serus., 436 U.S. 658,
694, 98 S. Ct. 2018 56 L.Ed.2d 611 (1978) A
policy is defined generally as “a course of
action consciously chosen from among various
alternatives. City of Oklahoma City v.
Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 2436, 85
L.Ed.2d 791 (1985). A custom, on the other
hand, is an informal practice that takes on the
force of law as a result of its widespread use by
state officials. Pembaur v. City of Cincinnati,
475 U.S. 469, 106 8. Ct. 1292, 89 L.Ed.2d 452
(1986); Monell, 436 U.S. at 691, 98 S. Ct. 2018.
Moreover, “random acts or isolated incidents are
insufficient to establish a custom or policy.”
Depew v. City of St. Mary’s, 787 F.2d 1496,
1499 (11 Cir. 1986).

In order to proceed with a claim brought
under section 1983, a plaintiff must not only
establish the existence of a policy or custom
violative of constitutional rights, but municipal
liability will not attach unless he also
demonstrates that the city policy or custom was
the “moving force” or cause behind the alleged
constitutional violation. Monell, 436 U.S. at
694, 98 S. Ct. 2018. Additionally, the Eleventh
Circuit requires that a plaintiff demonstrate a
measure of actual fault in the city’s adoption of
a custom or policy in order to establish a claim
for municipal liability under section 1983. See
Owens v. City of Atlanta, 780 F.2d. 1564, 1567
(11 Cir. 1986). To omit this requirement

would, according to the court, allow recovery on

24

the basis of vicarious liability. Id.

Plaintiffs have pointed to no formal policy
of the City of Cumming which infringes
constitutional rights. Accordingly, under the
municipal liability theory they have chosen to
pursue, plaintiff has the burden, for summary
jadgment purposes, of pointing to competent
evidence of sufficient prior incidents of First,
Fourth, and Fourteenth Amendment violations
by Officer Singletary or other City of Cumming
police officers to create a genuine question as to
whether the city had an informal policy or
custom that violated plaintiffs’ rights. Whether
plaintiffs have met this burden with regard to
each right allegedly violated by defendants is
addressed below.

1. First Amendment

Plaintiffs contend that Chief Singletary’s
request for a show cause hearing before the
magistrate judge to determine whether James
Smith could continue following police officers
and videotaping their activities was a violation
of their First Amendment right to the free
exercise of speech, as well as a violation of their
right to due process of law under the Fourteenth
Amendment. The alleged due process violation
will be addressed infra, however, whether
plaintiff James Smith holds a First Amendment
right to videotape police officers in the
performance of traffic stops is addressed here.

Certainly, “the First Amendment protects
a significant amount of verbal criticism and
challenge directed at police officers .... The

25

freedom of individuals verbally to oppose or
challenge police action without thereby risking
arrest is one of the principal characteristics by
which we distinguish a free nation from a police
state.” Houston u. Hill, 482 U. 8. 451, 461-63,
107 8. Ct. 2502, 2509-11, 96 L. Ed. ad 398 (1986).
Smith claims that he undertook to videotape
police activity to investigate and prove that
police were stopping vehicles improperly on the
pretext of “weaving.” Nowhere does Smith

Although certain symbolic acts constitute
speech for First Amendment purposes, Smith’s

act of videotaping police officers is not within
this category of speech. See, e.g., Schad v.
Borough of Mount Ephriam, 452 U.S. 61, 66,
101 8. Ct. 2176, 2181, 68 L.Ed.2d 671 (1981)
(nude dancing is constitutionally protected
expression); Tinker v. Des Moines School
District, 393 U.S. 503, 505-06, 89 8. Ct. 733,
736, 21 L.Ed.2d 731 (1969) (wearing black
armbands to school is equivalent of speech);
Stewart v. Baldwin County Board of Educ., 908
F. 2d 1499, 1505 (11™ Cir. 1990) (act of leaving
meeting was conduct “sufficiently imbued with
elements of communication” to implicate First
Amendment protections) (citation omitted). In
Spence vu. Washington, 418 U.S. 405, 94 8. Ct.
2727, 41 L.Ed.2d 842 (1974), the Supreme Court
established the test for determining whether a
symbolic act constitutes speech protected by
the First Amendment: there must be (1) an

26

intent on the part of the actor to convey a
particularized message, and (2) circumstances
surrounding the act such that the likelihood is
great that the message will be understood by
those who view it.” Stewart, 908 F. 2d at 1504
(citing Spence, 418 U.S. at 410-11, 94 S. Ct. at
2730)).

Smith has not alleged any intent to
convey a message to the City of Cumming Police
Department by videotaping police officers, only
an intent to “investigate.” Moreover, the record
is clear that the police who encountered Smith
in his “investigation” did not understand his
action as a protest. In actuality, the police
officers reported to Chief Singletary that they
could not discern Smith’s motive or intent and
that Smith’s actions made them nervous.
(Singletary Dep. at 21-23). Accordingly, the
Court finds that Smith’s videotaping action does
not constitute protected activity sufficient to
evoke the protection of the First Amendment.’

7

One can distinguish lacobucci v. Boulter,
1997 WL 258494 (D. Mass. March 26, 1997), in which the
court did not establish, but alluded to the plaintiff's First
Amendment right to videotape or film a public meeting of
the Town of Pembroke Historic District Commission. In
Iacobucci, the plaintiff was a member of the press, a
statute expressly required that all governmental meetings
be open to the public, and the plaintiff was not disturbing
the public meeting in any way. lacobucci, 1997 WL
258494, at ** 2-7. Similarly, one can distinguish Fordyce
v. City of Seattle, 55 F.3d 436 (9 Cir. 1995), in which
the court discussed a plaintiff's First Amendment right to
record public events and to “gather news.” Fordyce, 55

27

Additionally, the Court notes that the
Georgia Code prohibits the knowing or willful
obstruction or hindrance of any law
enforcement officer in the discharge of his
official duties. O. C. G. A. § 16-10-24 (1997).“ The
Georgia legislature intended this section to
“include forms of speech which may reasonably
be interpreted as a ‘threat of violence’ and
which amount to an obstruction or hindrance.”
Wells v. State, 154 Ga. App. 246, 248, 268
S. E. ad 74 (1980). Because Smith did not

officers’ reaction to a protest - for use on local television,
and was arrested under a controversial Washington State
privacy statute for filming bystanders against their
wishes. Id.

Also, distinguish Lambert v. Polk County, lowa,
723 F. Supp. 128 (S.D. Iowa 1989), in which the court, in
impassioned dicta, states that all citizens have “First
Amendment rights to make and display videotapes of
events ....” Lambert, 723 F. Supp. at 133. Ultimately,
however, Lambert did not address the right to make a
videotape, but the right to “have and display and
disseminate” a videotape. Id. At 134.

Georgia Code Section 16-10-24 states, in
relevant part:

law enforcement officer in the lawful discharge of
his official duties is guilty of a misdemeanor.

O. C. G. A § 16-10-24(a) (1997).

28

identify himself or his purpose when
videotaping, the police officers were made quite
uncomfortable by his actions and were unable to
“concentrate on ſthe] dangerous situation”
presented by traffic stops. (Singletary Dep. at
27-28). Thus, even if Smith’s videotaping
activity was sufficient to constitute “speech,”
Chief Singletary only requested the hearing
before the magistrate judge because he believed
the police officers for whom he was responsible
were obstructed from the performance of their
duties in accordance with section 16-10-24 -a
statute that contemplates the limitation of
some speech in order to effectuate its purpose.
Wells, 154 Ga. App. at 248; see also Moccia v.
State, 174 Ga. App. 764, 331 S.E.2d 99 (1985),
and Dumas v. State, 159 Ga. App. 517, 284 8.E.
2d 33 (1981).

Accordingly, plaintiff's First Amendment
rights have not been violated by defendants’
actions and defendants’ motion for summary
judgment with regard to plaintiff's claim under
section 1983 for the violation of plaintiffs’ First
Amendment rights is granted.

9

Plaintiffs maintain that the magistrate
judge’s order to stop videotaping the police officers was
legally unsupportable under section 16-10-24 of the
Georgia Code. Plaintiffs have not brought an action
against the magistrate judge, however, and have not
sought review of that decision. Thus the validity of the
magistrate judge’s order is not properly before this Court
and the Court’s findings herein should not be interpreted
as an affirmance of such order.

29

violated their Fourth Amendment rights because
plaintiffs were the subjects of “intimidation and
malicious prosecution.” (P1. Response [46] at
20.) The Eleventh Circuit has recognized
malicious prosecution as a constitutional tort
cognizable under section 1983 and the Fourth
Amendment. Uboh v. Reno, 141 F.3d 1000,
1002 (11 Cir. 1998); Whiting v. Traylor, 85
F.3d 581, 584 (11 Cir. 1996). In Whiting, the
Eleventh Circuit stated:

Labeling. . . a section 1983 claim as

one for a “malicious prosecution”

can be a shorthand way of describing

a kind of legitimate section 1983

claim: the kind of claim where the

plaintiff, as a part of the

commencement of ai criminal

proceeding, has been unlawfully and

forcibly restrained in violation of

the Fourth Amendment and injuries,

due to that seizure, follow as the

prosecution goes ahead.
Whiting, 85 F.3d at 584. A plaintiff may pursue
a claim of malicious prosecution via the Fourth
Amendment where the claim is based “on some
actual unlawful, forcible, restraint of his
person.” Id.

Plaintiff James Smith states that his claim
of malicious prosecution arose because he was
subjected to a warrant hearing before a

magistrate judge as a result of Chief Singletary’s

30

application for a warrant. According to
plaintiffs, the magistrate judge told Smith that
if he continued videotaping the police officers
he would be held in the city jail without bond.
(P1. Response [46] at 20.) James Smith admits,
however, that no police officer threatened him
with jail if he did not stop filming police
activity. (J. Smith Dep. at 231-32.)
Furthermore, Smith was never arrested or
placed in police custody as a result of his
videotaping endeavor.

In summary, James Smith was not
“seized” - that is, there was no actual, forcible
restraint of his person - thus his claim of
malicious prosecution must fail. See Dolin v.
West, 22 F. Supp.2d 1343, 1351 (M.D. Fla 1998)
(Malicious prosecution claim asserted under
section 1983 and Fourth Amendment failed
because plaintiff did not assert that she was
forcibly restrained, merely that certain parties
recommended her arrest). The mere submission
of an application for an arrest warrant is not a
“seizure.” Although the submission of an
application may constitute the institution of a
prosecution, the plaintiff must be arrested or
otherwise seized after the warrant is issued to
state a claim for malicious prosecution. In
Whiting, the court specifically contemplated
that an arrest would be made “after the filing of
an information” and that the arrest not the
mere institution of a prosecution - would form
the basis of a Fourth Amendment section 1983
claim. Whiting, 85 F.3d at 585-86 & n.7.

Furthermore, in recognizing malicious

31

prosecution as a cause of action under section
1983, the Eleventh Circuit relied on Kelly v.
Curtis, 21 F.3d 1544 (11™ Cir. 1994), a case in
which the plaintiff proved a Fourth Amendment
violation by showing “an arrest in fact, followed
by an unlawful warrant application and physical
restraint.” Whiting, 85 F.3d at 584 n.4. (citing
Kelly, 21 F.3d at 1555). James Smith was
neither arrested nor physically restrained as a
result of the warrant hearing before the
magistrate judge. Instead, he was told that any
subsequent videotaping activity would be

performance of their duties and, in the future,
he would be arrested for such endeavors.

Moreover, Smith has provided no support for his
assertion that the warrant application or the
magistrate judge’s resulting order was unlawful.
Adhering to the Eleventh Circuit’s admonition
that, “[wjhere the right said to be violated is the
Fourth Amendment, the plaintiff must establish
a concrete violation of that right,” Whiting, 85
F.3d at 586 (emphasis added), the Court finds
that summary judgment is appropriate with
regard to plaintiffs’ claim of malicious
prosecution because plaintiff was never
unlawfully “seized” in violation of the Fourth
Amendment.
b. Privacy

Additionally, plaintiffs’ claim that
defendants violated their Fourth Amendment

right to privacy “by violating federal and state
regulations to obtain an NCIC report for the

exspress (sic) purpose of using any information

32

therein to revoke the Smiths’ business license
... PI. Response [46] at 25.) Plaintiffs
maintain that Chief Jones even acknowledged
that “the NCIC report was imporper [sic].” (Id.
at 25-26.) Chief Jones avows that he only
conducted a background check on James Smith
because the police department had received
complaints about Smith. At least one complaint
alleged that James Smith assaulted a
customer; therefore Chief Jones wanted find
out whether Smith had a criminal record.
Whether the background check was conducted
via the NCIC system, Jones could not recall.
(Jones Dep. at 59.) Plaintiffs respond that no
more than four complaints were filed against
them with regard to what they consider to be

10

Two customers, Theresa and Renee Gray,
filed a complaint with the police department and swore
out a warrant against James Smith for assault and battery
after an incident at DeCuff Electronics. (P1. Brief in
Supp. of Mot. for Summ. J. [35], Ex. G, R. Gray Aff. at J
7.) The jury found in favor of James Smith and Smith, in
turn, filed a civil action against the Grays. (Id, R. Gray
Aff. at | 10.) The police were called during a dispute
between James Smith and Pat Chandler, another
customer. She stated that she “had never been treated in
such a rude and violent manner by a businessman before”
and that, “based on his irrational behavior, [she] did not
know what he was capable of doing to [her].” (Id. Ex. E,
Chandler Aff. at J 6, 11.) Another customer, Mary
Jordan, swore out a warrant against Smith for theft by
deception, but later dropped the charges and then
pursued and won a civil suit. (J. Smith Dep. at 38.) Other
incidents occurred in which the Smiths called the police
with regard to customer disputes, as well.

33

civil issues, whereas the NCIC report is to be
used only in criminal investigations.

The Court finds that there was no
intrusion into plaintiffs’ Fourth Amendment
privacy interests. “The purpose of the Fourth
Amendment is not to eliminate all contact

v. Mendenhall, 446 U.S. 544, 553-54, 100 8.Ct.
1870, 1877, 64 L.Ed.2d 497 (1980). The Court
acknowledges that, “[t]o preserve the integrity
and privacy of the information contained in the
NCIC data base, the Federal Bureau of
Investigation allows access only for criminal
justice purposes, justice employment, or
security clearances.” United States ov.

violent or abusive behavior toward customers, a
police officer has a defensible reason to look
into the situation and act in a prophylactic
manner - or, in the words of Chief Jones, “to see
what in the heck you’re working with.” (Jones
Dep. at 59.)

Moreover, the Supreme Court has said that

34

17

“‘no interest legitimately protected by the
Fourth Amendment’ is implicated by

governmental investigative activities unless
there is an intrusion into a zone of privacy, into
‘the security a man relies upon when he places
himself or his property within a constitutionally
protected area. United States v. Miller, 425
U.S. 438, 440, 96 S. Ct. 1619, 1622, 48 L. Ed. ad
71 (1976) (quoting Hoffa v. United States, 385
U.S. 293, 301-302, 87 S.Ct. 408, 413, 17
L. Ed. ad 374, 382 (1966)). In Miller, the
Supreme Court held that subpoenaed bank
records did not fall within a protected zone of
privacy because they were not “private papers”
and the claimant could sssert neither ownership
nor possession over the records held by a third
party. Id. Additionally, the Supreme Court
noted that the claimant had no reasonable or
legitimate “expectation of privacy” concerning
the contents of the records of transactions
maintained by the bank.“ Id. at 442-43, 87
S. Ct. at 1623-24.

Similarly, plaintiff James Smith had no
reasonable expectation of privacy over his
criminal record or lack thereof - whether

In response to Miller, Congress enacted
the Right to Financial Privacy Act (“RFPA”}, 12 U.S.C.
88 3401 et seg., “which provides individuals with
some privacy rights in financial records that are in the
hands of third parties.” Lopez v. First Union Nat’l
Bank of Florida, 129 F.3d 1186, 1190 (11% Cir. 1997}.
The underlying rationale of Miller, however, remains
intact and relevant to the present case.

35

maintained in the NCIC by the FBI or in some

issue of fact regarding their allegations that
Chief Jones injected himself into civil matters
between the Smiths and their customers and
interfered with their right to run their business
without interference; indeed, at best, these are
shaky state law claims based or the tort of
invasion of privacy, not federal constitutional
claims within the ambit of the Fourth
Amendment. See, e.g., Cabaniss v. Hopsley,
114 Ga. App. 367, 151 S. E. ad 496 (1996)
(recognizing four categories of the tort “invasion
of privacy”). Accordingly, the Court finds

summary judgment appropriate with regard to
plaintiffs’ claim that their Fourth Amendment

rights have been violated.

3. Due Process

It is uncertain which factual
allegations in plaintiffs’ complaint are intended
to constitute « violation of due process.
Moreover, plaintiffs do not specify whether they
intend for their due process claims to implicate

substantive or procedural due process.
Substantive due process rights are those
rights held to be so fundamental that a state
may not take them away. Taylor v. Ledbetter,
818 F.2d 791, 794 (1987) (fundamental rights

36

include those listed in the Bill of Rights or those
incorporated through the Fourteenth
Amendment such as abortion, marriage, safety
and physical movement) (citations omitted).
Plaintiffs have not articulated the deprivation of
a fundamental constitutional right, thus
plaintiffs cannot have meant for substantive due
process to apply.

An individual’s right to procedural due
process is violated when the government
interferes with his life, liberty or property
without adequate procedural safeguards. Board
of Regents of State Colleges v. Roth, 408 U.S.
564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972). To state a claim for a violation of
procedural due process, a party must
demonstrate that there has been (1) a
constitutional deprivation and (2) “that the
procedures employed by the state to effect this
deprivation were constitutionally inadequate.”
Novak v. Cobb County-Kennestone Hosp. Auth.,
849 F. Supp. 1559, 1567 (N.D. Ga. 1994) (citing
Smith v. Organization of Foster Families for
Equality & Reform, 431 U.S. 816, 847, 97 S.Ct.
2094, 53 L.Ed.2d 14 (1977. In summary, “[djue
process essentially requires that the procedures
be fair,” although “[t]he process that is due
varies according to the nature of the right and
to the type of proceedings.” S.E.C. v. Elliott,
953 F.2d 1560, 1566 (1992) (citations omitted).

First, plaintiffs have alleged no
constitutionaily protected property or liberty
interest. See Cypress Ins. Co. v. Clark, 144 F.3d
1435, 1436 (11™ Cir. 1998). Plaintiffs allege

—

37

defamation as a state law claim and/or as a
claim under section 1983. Specifically,
plaintiffs allege that the Cumming Police
Department circulated rumors to other citizens
and business owners that plaintiffs were drug
dealers and “vicious people,” and that Chief
Jones tried to solicit customers to file civil
complaints against the Smiths in an attempt to
have their business license revoked.

In defamation cases brought under section
1983, the Supreme Court has determined that
“allegations of injury to reputation alone do not
support a section 1983 claim for violation of
due process, and therefore must be
accompanied by a constitutionally recognized
injury.” Id. (citing Paul v. Davis, 424 U.S. 693,
712, 96 8.Ct. 1155, 47 L.Ed.2d 405 (1976).
Moreover, “damages to a plaintiff's business
reputation are only recoverable in a section
1983 action if those damages were incurred as
a result of government action significantly

- altering the plaintiff's constitutionally

recognized legal right.” Id. (discussing Siegert
v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114
L. Ed. ad 277 (1991)). In this case, plaintiffs have
not experienced the significant alteration of
some legal right or status. Specifically,
plaintiffs’ business_license has not been
revoked, nor has plaintiffs’ landlord has not
terminated their lease. Accordingly, because
plaintiffs have suffered no constitutionally
recognized injury, plaintiffs have failed to allege
facts sufficient to state a genuine issue for trial
with regard to their section 1983 claim of

38

defamation.

Plaintiffs also claim that the process by
which Chief Singletary swore out the application
for a warrant in response to James Smith’s
videotaping police traffic stops was inadequate
to provide due process of law. Again, plaintiffs
do not clearly allege the deprivation of a
constitutionally protected property or liberty
interest. James Smith claims that Singletary
knew the charge of obstructing law enforcement
officers was “false” and that Smith “had
committed no wrongful act that would justify
his arrest.” (P1. Response [46] at 19.)

Assuming for the sake of argument that
the warrant hearing and the magistrate judge’s
ensuing order that James Smith stop
videotaping police officers deprived Smith of a
constitutionally protected liberty, the procedure
employed in this matter was adequate. James
Smith was given adequate notice of the warrant
hearing. (Id., Ex. 3, Notice of Warrant Hearing.)
Moreover, the Court has determined previously
that James Smith’s actions constituted
sufficient grounds for Chief Singletary to form a
reasonable belief that Smith was in violation of

12

The Court notes that, with regard to
plaintiffs’ claim that their due process rights have been
violated by the warrant hearing before the magistrate
judge, only James Smith actually has standing to bring
the claim. Barbara Smith did not participate in
videotaping the police officers at traffic stops, and was
not a party to the warrant hearing; therefore she has no
standing as to this issue.

39

Georgia Code Section 16-10-24. Thus, a request
for a warrant hearing was a suitable method by
which to address Smith’s conduct. The mere
completion of an application for a warrant or
the issuance of a Notice of Warrant Hearing
cannot comprise a claim for the violation of
procedural due process. In fact, these exhibit
steps taken by the Chief of Police and the City
of Cumming to ensure that Smith’s procedural
due process rights were not violated. See
Auburn Medical Center, Inc. v. Peters, 953 F.
Supp. 1518, 1521 (M.D. Ala. 1996) (issuance of
show cause letter was an attempt to insure that
the plaintiff of meaningful opportunity to be
heard and was not a violation of his procedural
due process rights).

Additionally, plaintiffs complain that
“Forsyth County is one of the few counties
remaining in Georgia [where] the Magistrates are
not required to be attorneys or have legal
training.” (P1. Response [46] at 19.) Plaintiffs
have offered no evidence that the Magistrate
Judge before whom James Smith appeared was
without legal training. Thus, the Court finds it
inappropriate in this instance to address the
adequacy of the magistrate system maintained
in Forsyth County.

Plaintiffs also complain that Chief Jones
and Chief Singletary “have admitted to having
informal discussions with the magistrate about
cases that.. . would be coming before him.”
Id.) This alleged ex parte conduct, plaintiffs
maintain, violates the due process clause. (Id.
at 20.) Procedural due process requires “an

40

opportunity to be heard ‘at a meaningful time in
a meaningful manner.“ Cherry v. Heckler, 760
F. ad 1186, 1190 (11% Cir. 1985) (quoting
Matthews v. Elderidge, 424 U.S. 319, 333, 96
S.Ct. 893, 902, 47 L.Ed.2d 32 (1976)).
Certainly, any ex parte communications
between the judiciary and the party who
initiated the warrant hearing are subject to
censure. Indeed, ex parte communications are
prohibitive of procedural fairness. Plaintiffs,
however, refer the Court to no admissions in the
record by Chief Jones or Chief Singletary of ex
parte conduct with regard to James Smith’s
warrant hearing, and the Court has found none.
Without such evidence in the record, there is no 8
genuine issue presented for trial with regard to
a claim that plaintiffs’ procedural due process
rights have been violated.

Accordingly, the Court finds summary
judgment appropriate with regard to plaintiffs’
claim that their due process rights have been
violated.

4. Equal Protection

Plaintiffs also claim that their
constitutional right to equal protection has been |
violated. Plaintiffs allege neither an invidious or ;
suspect classification nor a deprivation of a |
fundamental right, therefore the equal |
protection clause requires only that the
disparate treatment alleged bear some rational :
relationship to legitimate government ends. |
City of Cleburne, Texas v. Cleburne Living i
Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 87 )

4

—

L.Ed.2d 313 (1985). That is, equal rights
protection is violated when similarly situated
persons are treated differently and that
treatment is not rationally related to a
legitimate state interest. Id.

Certainly, “[slimilarly situated neighbors
have an equal right to share in the benefits of
local government.” Nordlinger v. Hahn, 505
U.S. 1, 41, 112 8.Ct. 2326, 120 L.Ed.2d 1 (1992)
(Stevens, J., dissenting). To provide one citizen
with better police protection than another
would be objectionable and discriminatory. Id.
The Smiths allege that neighboring business
owners receive better police protection than
that protection afforded the Smiths and their
business, DeCuff Electronics, particularly with
respect to police assistance in ad
customer disputes. Nonetheless, the Smiths
have failed to refer this Court to a single
instance in which a similarly situated business
was afforded better treatment. Indeed, bare
allegations that “other” businesses are treated
differently cannot comprise an equal protection
claim. See G. R Investments, Inc. v. County of
Escambia, Florida, 132 F.3d 1359, 1367 111
Cir. 1998) (granting motion to dismiss equal
protection claim wherc complaint merely
alleged that “nameless, faceless ‘other’” permit
applicants received better treatment).

Moreover, plaintiffs’ complain that the
police have refused to provide support to deal
with customers who were causing problems.
PI. Compl. [1] at J 12.) Barbara Smith admits,
however, that whenever police officers were

42

asked to remove a person from their business
premises, the police officers always did so. (B.
Smith Dep. at 124.) It seems that Barbara
Smith’s only complaint is that a police officer
allowed a customer to “tell his side” before the
officer asked him to leave. Id.] Additionally,
James Smith’s deposition is replete with
examples of situations in which he requested
police support and, in fact, received that
support. (See, e.g., J. Smith Dep. at 178-79,
193; see also B. Smith Dep. at 93, 124.)

The Smiths’ sweeping allegations that the
City of Cumming Police Department
discriminated against them by failing to provide
police protection or treated them differently in
any other manner fail to raise any concrete
constitutional issue of equal protection. In
Snowden v. Hughes, 321 U.S. 1, 64 8. Ct. 397, 88
L.Ed 497 (1944), the Supreme Court addressed
a similar scenario:

- The lack of any allegations in the
complaint . . tending to show a
purposeful discrimination. . . is not
supplied by the opprobrious epithets
“willful” and malicious . ., or by
characterizing [the defendant’s
actions] as an unequal, unjust, and
oppressive administration of the
laws .... These epithets disclose
nothing as to the purpose or
consequence of [the defendant’s
actions] .... Such allegations are
insufficient under our decisions to
raise any issue of equal protection of

43

the laws ....

GJR Investments, Inc., 132 F.3d at 1368
(quoting Snowden, 321 U.S. at 10, 64 s. Ct. 397).
- Similarly, the brief plaintiffs submitted to this
Court in response to defendant’s summary
judgment motion fails to even address the
alleged violation of plaintiffs’ right to equal
protection, and states only that they have been
subjected to “malicious persecution” by the
police department in violation of their
constitutional rights. (See generally, P1.
Response [46].)

Accordingly, the Court finds summary
judgment appropriate with regard to plaintiffs’
claim that their right to equal protection has
been violated.

5. Conspiracy to Violate Plaintiff's
Constitutional Rights

Plaintiffs also allege that defendants

conspired to deprive them of their

constitutional rights. To establish a prima facie

case of conspiracy to violate rights protected by

section 1983, a plaintiff must “show that the

plaintiff his or her ts.” Bendiburg v.
Dempsey, 909 F. 2d 463, 468 (11 Cir. 1990); see
also Strength v. Hubert, 854 F. ad 421, 425 (11
Cir. 1988). Moreover, “[t]he conspiratorial acts
must impinge upon the federal right; the
plaintiff must prove an actionable wrong to
support the conspiracy.” Bendiburg, 909 F.2d
at 468.

Plaintiffs have failed to introduce any

E 44

evidence that defendants reached an
“understanding” and thereby conspired to
deprive them of an ascertainable federal right.
See Fullman v. Graddick, 739 F.2d 553, 557
11% Cir. 1984) (“[m]ere verification of a party’s
own conclusory allegations is not sufficient to
oppose a motion for summary judgment” with
regard to section 1983 conspiracy claim); see
also GRJ Investments, Inc., 132 F.3d at 1370
(granting motion to dismiss because plaintiff
failed to meet prerequisite of section 1983
conspiracy claim where plaintiff failed to make
particularized allegations that conspiracy
existed). More conclusive, however, is plaintiffs’
failure to show an actual denial of their
constitutional rights. As previously discussed at
length, plaintiffs have failed to show any
question of material fact which could establish
that defendants committed an actionable wrong.
As stated, a section 1983 conspiracy claim
requires that there be an underlying
constitutional violation. Without such,
plaintiffs may not overcome defendants’ motion
for summary judgment with regard to plaintiffs’
claim of conspiracy under section 1983. GJR
Investments, Inc., 132 F.3d at 1370 (failure to
allege violation of constitutional rights resulted
in dismissal of conspiracy claim); see also
Burrell v. Board of Trustees of Georgia Military
College, 970 F. ad 785, 792 (11 Cir. 1992).

B. Qualified Immunity
Even if defendant Singletary violated

plaintiffs constitutionally protected rights,

45

protects government officials performing
discretionary functions from civil liability if
their conduct violates no “clearly established
statutory or constitutional rights of which a
reasonable person would have known.” Lassiter
v. Alabama A & M Univ., Bd. of Trustees, 28
F.3d 1146, 1149 (11™ Cir. 1994) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S. rt. 2727, 73 L.Ed.2d 396 (1982)).
Furthermore, the government actor has
qualified immunity unless the “act is so
obviously wrong, in the light of pre-existing law,
that only a plainly incompetent officer or one
who was knowingly violating the law would have
done such a thing.” Id.

In addressing a qualified immunity
defense, a two part analysis is used. First, the
defendant must prove that he was “acting
within the scope of his discretionary authority”
when the allegedly wrongful acts occurred.
Hudgins v. City of Ashburn, Georgia, 890 F.2d
396, 404 (11" Cir. 1989) (citing Rich v. Dollar,
841 F. ad 1558, 1563-64 (11% Cir. 1988)).
Second, if defendant provides such proof, “the
burden is on the plaintiff to show that, when the
defendant acted, the law established the
contours of a right so clearly that a reasonable
official would have understood his acts were
unlawful.” Post v. City of Fort Lauderdale, 7
F.3d 1552, 1557 (11 Cir. 1993), modified by 14
F.3d 583 (11™ Cir. 1994).

46

In the case at bar, it is undisputed that
Chief Singletary acted within his discretionary
authority with regard to the alleged defamation
during Singletary’s investigation of the Smiths,
the background check, and the swearing out of
the warrant in response to James Smith’s
videotaping efforts. Thus, the determination of
Singletary’s qualified immunity defense turns on
whether a clearly established right was violated
by his conduct. “For qualified immunity to be
surrendered, pre-existing law must dictate, that
is, truly compel (not just suggest or allow or
raise a question about), the conclusion for every
like-situated, reasonable government agent that
what defendant is doing violates federal law in
the circumstances.” Lassiter, 28 F.3d at 1150
(emphasis in original). The plaintiff has the
burden of showing that the federal rights which
were allegedly violated were “clearly
established.” Id. Furthermore, “courts must
not permit plaintiffs to discharge their burden
by referring to general rules and to the violation
of abstract rights.“ Id. (footnote omitted).

As the Court has explained at length,
previously, plaintiffs have presented no
evidence showing the existence of a genuine
issue for trial on any of their constitutional
claims. Plaintiffs are unable to establish that
any action taken by the City of Cumming or by
Chief Singletary was unlawful or
unconstitutional. Moreover, although the
Supreme Court has held that courts may no
longer impose a heightened pleading
requirement in section 1983 cases brought

47

against a municipalities, the Supreme Court has
specifically declined to extend its holding

Eleventh Circuit has recognized previously the
peril of allowing the use of “shotgun pleading”
tactics to “strip government officials of the
protection provided by the official immunity
doctrine.” Id. (quoting Marx v. Gumbinner, 855
F.2d 783, 792 (11™ Cir. 1988)). Accordingly,
because plaintiffs have been unable to assemble
any showing of a constitutional claim, the Court
grants Singletary’s summary judgment motion
as it relates to plaintiffs’ section 1983 claims
against Singletary in his individual capacity.

III. STATE LAW CLAIM OF DEFAMATION

Because all the claims over which the
Court had original jurisdiction now have been
removed from the case due to the Court’s
decision to grant defendants’ motions for
summary judgment with respect to all federal
claims, section 1367 (e) (3) applies. As the
Supreme Court has observed:

13

Section 1367 provides that “[t]he district
courts may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if the district court has
dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367 (c) (3).

48

A federal court should consider and
weigh in each case, and at every
stage of the litigation, the values of
judicial economy, convenience,
fairness, and comity in order to
decide whether to exercise
jurisdiction over a case brought in

that court involving pendent state-

law claims. When the balance of

these factors indicates that a case

properly belongs in state court, as
when the federal-law claims have
dropped out of the lawsuit in its
early stages and only state-law
claims remain, the federal court
should decline the exercise of
jurisdiction by dismissing the case
without prejudice.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350, 108 S. Ct. 614, 98 L.Ed.2d 720 (1988)
(footnote omitted). See also Hardy v.
Birmingham Bd. of Educ., 954 F.2d 1546, 1550
(11% Cir. 1992).

The Court concludes that dismissal of the
state law claim asserting defamation is
appropriate in this case. “Needless decision of
state law should be avoided both as a matter of
comity and to promote justice between the
parties, by procuring from them a surer-footed
reading of applicable law. Certainly, if the
federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as
well.” United Mine Workers v. Gibbs, 383 U.S.

49

715, 726, 86 S. Ct. 1130, 16 L.Ed.2d 218 (1966)
(emphasis added) (footnote omitted).
Accordingly, the Court dismisses without
prejudice plaintiffs’ remaining state law claim of
defamation.

Conclusion
For the foregoing reasons, the Court finds
that defendants’ Motion for Summary Judgment
[35] is GRANTED as to all federal claims, and
plaintiffs’ state law claim of defamation is
DISMISSED without prejudice.

SO ORDERED, this 11“ day of January,
1999.

s/Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE

50

CERTIFICATE OF SERVICE

This is to certify that I have this day
served counsel for the Respondents with three
true copies of the foregoing Appendix by
depositing same in the U.S. Mail, with proper
postage affixed thereto, and addressed as
follows:

Thomas G. Tidwell, Esq.
400 Suntrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
404-614-7400

This the 25th Day of August, 2000.

,,

ord H. Hardwick
Attorney for Petitioners
Georgia Bar. No. 325675

Roswell Professional Park
Suite E-1

11205 Alpharetta Highway
Roswell, Georgia 30076

(770) 772-4700

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1485%3A2. Public record. Not legal advice.