TILLMAN v. COLEY

ORDER

OWENS, Chief Judge.

Mrs. Mary Lois Tillman, a now forty-five year old black female who resides in Cochran, Bleckley County, Georgia, sued Bleckley County Sheriff Edward Coley, Jr. pursuant to 42 U.S.C. § 1983 for violating her Fourth and Fourteenth Amendment constitutional rights by causing a warrant to issue on January 10, 1986, for her arrest, knowing there was not probable cause to believe that she, Mary Lois Tillman, had committed a crime. Pursuant to the issuance of this warrant and at the instruction of Sheriff Coley, plaintiff then was arrested at her home, was taken into custody and was transported to Sheriff Coley's office, where she was read her Miranda rights prior to any consideration or investigation of her husband's assertion that she had done nothing wrong.

Sheriff Coley denies that he in any way violated Mrs. Tillman's constitutional rights and further asserts by motion for summary judgment that he cannot be sued in this court because he is entitled to good faith or qualified immunity under the Supreme Court of the United States decisions of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Plaintiff vigorously contested Sheriff Coley's contention that he is entitled to good faith or qualified immunity and submitted briefs in support of her arguments.

At pretrial, counsel were heard from in argument. Neither in argument nor in any written submission did either the plaintiff or the defendant contend there existed any genuine issue of material fact on the issue of good faith or qualified immunity. Each contends the material facts on this issue are undisputed, and each contends the issue should be decided in his or her favor. After hearing from counsel, the court at pretrial orally decided that defendant's claim of qualified immunity should be denied. Because the denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision under 28 U.S.C. § 1291, the defendant requested the entry of this order confirming the denial of defendant's claim of good faith or qualified immunity. See Mitchell v. Forsyth, 472 U.S. at 530, 105 S.Ct. at 2817, 86 L.Ed.2d at 427 (1985). As requested, this order confirms the denial of defendant Sheriff Coley's claim of qualified immunity. The reasons for denial are as follows.

The Undisputed Material Facts

The defendant, Sheriff Edward Coley, Jr., since January 1, 1973, has been the Sheriff of Bleckley County, which according to the latest United States census has a total population of 10,600 people and which encompasses the City of Cochran in which 4,900 of those people live. Mary Lois Tillman and her husband, John Henry Tillman, are black citizens who for seven to eight years had lived in a trailer at 421 Thompson Street in Cochran with their son, Danny, and their son, Elijah, his wife and children. Sheriff Coley, before this incident, knew the Tillman family, knew where they lived and could identify the plaintiff by sight and by name as Mary Tillman, Lois Tillman or Mary Lois—having heard her called by all three names. Sheriff Coley was also generally aware of Mary Lois Tillman's age and knew that she had never been involved in crime.

George W. Halliburton, Jr., a then twenty-three year old black City of Macon police officer, was loaned by the City of Macon, Georgia Police Department to Sheriff Coley and Lieutenant Cranford of the City of Cochran Police Department in the Fall of 1985 to work undercover in an attempt to make drug cases in Bleckley County and Cochran. Only Sheriff Coley and Lieutenant Cranford knew that Officer Halliburton was working undercover; Officer Halliburton usually reported only to Sheriff Coley and only at the Sheriff's home.

On October 19, 1985, at around 12:35 a.m., Officer Halliburton succeeded in buying a small amount of marijuana for $5.00 from a young black female in the street at the corner of Sixth and Thompson Streets in the area of several clubs and down the street some two to three hundred feet from the trailer in which plaintiff and her family resided.

Immediately after making the marijuana buy Officer Halliburton made a written report of the incident (Plaintiff Exhibit 1, copy attached) in which he stated the seller's name to be "Mary Tilma," the item purchased as "(1) one small yellow envelope —containing brownish-greeny-seeded leafy material's (sic) believed to be marijauna (sic). Value $5" and on the back of which he described the incident and the seller as follows:

Officer Halliburton went to Sheriff Coley's home and either showed him the incident report or told him what was included on the incident report. Officer Halliburton does not recall telling the Sheriff anything other than what was contained in the incident report.

Sheriff Coley knew only one black female named Mary Tillman, knew that she lived with her family in a trailer two to three hundred feet from where this in-the-street transaction took place, and knew that there was a discrepancy as to the age of the Mary Tillman he knew and the Mary Tilma described on the incident report. Specifically, Sheriff Coley never felt that the plaintiff, Mary Lois Tillman, looked to be twenty-four years of age. Deposition of Sheriff, p. 94.

Officer Halliburton, between October 19, 1985, and January 10, 1986, did not succeed in making a second drug buy from the same black female because he was unable to again make contact with her.

Between October 19, 1985, and January 10, 1986, Sheriff Coley did nothing to try to determine whether or not the Mary Lois Tillman he knew was the about twenty-four year old "Mary Tilma" from whom Officer Halliburton bought marijuana in October. Common sense suggests that at the very least Sheriff Coley could have detailed Officer Halliburton to observe Mary Lois Tillman's trailer from afar and with the aid of binoculars to determine whether or not the black female from whom he purchased marijuana resided in the trailer, and, if she did, to further determine whether or not she still appeared to Officer Halliburton to be about twenty-four years of age.

On January 10, 1986, Sheriff Coley personally typed an affidavit for George Halliburton to swear to before the judge of magistrate court. It stated:

Upon the taking of his deposition, Sheriff Coley testified on pp. 146-147:

(emphasis added).

At page 52 of his deposition Sheriff Coley also testified:

(emphasis added).

There is no evidence that Sheriff Coley and/or Officer Halliburton presented the magistrate with any facts other than those in the affidavit typed by Sheriff Coley. The magistrate who issued the warrant was thus unaware of the entire circumstances of Sheriff Coley's doubts and of the fact that Sheriff Coley was causing her to issue a warrant so that Sheriff Coley could arrest forty-two year old Mary Lois Tillman for the purpose of bringing her in to see if she was the twenty-four year old "Mary Tilma" who had sold drugs to Officer Halliburton.

On the night of January 17, 1986, as a part of the roundup of the individuals Officer George Halliburton had made cases against, Deputy Sheriff Savage, Lieutenant Charles Cranford of the Cochran Police Department, and Sheriff Coley's secretary, Linda Porter, were sent by Sheriff Coley to arrest and bring the plaintiff, Mary Lois Tillman, to the Sheriff's office. Asked to tell everything that happened from arrival at the residence until return to the jail, she stated beginning on p. 10:

To Mrs. Porter the arrested Mary Tillman appeared to be forty years of age.

When Deputy Savage, Lieutenant Cranford and Mrs. Savage got to the jail with the plaintiff and her husband, Mrs. Porter "went in and told the Sheriff, and he said when he could get George Halliburton, you know, to look at her and all, that he'd call us." Porter Deposition, p. 17. Mrs. Porter took Mary Tillman in a few minutes later, and Sheriff Coley read her her Miranda rights. Thereafter, Officer Halliburton came over, looked at Mary Lois Tillman and immediately said, "No, that's not the right one." Porter Deposition, p. 18.

Sheriff Coley apologized to Mrs. Tillman and told her she was free to go. Mrs. Tillman walked into the next room, "went kind of weak" (Porter Deposition, p. 19), was helped by Mrs. Porter to the couch, and passed out. A deputy who is an EMT checked her; an ambulance was called, and Mrs. Tillman was taken to the hospital. She remained in the hospital from that Friday to the following Monday.

The charges against Mrs. Mary Lois Tillman, the plaintiff, were dropped. Subsequent investigation revealed that the Mary Tilma who allegedly sold marijuana to Officer Halliburton was plaintiff Mrs. Mary Lois Tillman's niece who, on October 19, 1985, was residing in a house next door to the trailer in which plaintiff Mary Lois Tillman resided.

The Law

The Civil Rights Act of 1871, now known as 42 U.S.C. § 1983, as here applicable provides as follows:

As a falsely arrested, injured citizen of the United States, Mrs. Tillman pursuant to this law has sued Sheriff Coley, a law enforcement officer who acted under color of the laws of the State of Georgia to prepare and cause to issue a warrant for her arrest. Plaintiff contends that the Sheriff knew that probable cause did not exist to believe that she, Mary Lois Tillman, had committed a crime when he prepared and caused said warrant to issue. By doing so, she contends that Sheriff Coley caused her to be subjected to a deprivation of her rights derived from the Fourth Amendment to the Constitution of the United States which since 1791 has provided:

(emphasis added). She further contends that, having done so, Sheriff Coley is liable or responsible to her for such monetary damages as a jury of this court upon trial may award her.

Standing between Mrs. Tillman's Fourth Amendment rights, as those rights have been made applicable to the States by the Fourteenth Amendment, and her right to sue Sheriff Coley under 42 U.S.C. § 1983, is the wall of good faith or qualified immunity which shields all law enforcement officers, including Sheriff Coley, from being sued under 42 U.S.C. § 1983 in certain circumstances. Those circumstances and the underlying rationales therefor were recently summarized by the Supreme Court of the United States as follows:

Anderson v. Creighton, 483 U.S. 635 at ___, 107 S.Ct. 3034 at 3038, 97 L.Ed.2d 523 at 529 (1987) (footnote omitted).

Sheriff Coley contends that he is shielded from civil liability because under the facts of this case a reasonable law enforcement officer applying for a warrant for the arrest of the plaintiff, Mary Lois Tillman, knowing what he knew, could have believed that there was probable cause to support the application for a warrant. Acknowledging that he was aware, as any reasonable law enforcement officer would have been aware, of the long, clearly established constitutional requirement of probable cause and the constitutional prohibition against arrest absent such probable cause, he nevertheless contends that viewed objectively his conduct in causing a warrant to issue for the arrest of the plaintiff was objectively legally reasonable. The plaintiff, as already noted, vigorously contends that the Sheriff's conduct in causing the warrant for the arrest of the plaintiff to issue and in causing her to be arrested was unquestionably objectively legally unreasonable.

Sheriff Coley, at such time as this case is tried to a jury, can be found to be liable for monetary damages in an amount to be determined by the jury. A finding that the Sheriff's conduct was objectively legally unreasonable does not amount to a determination or finding that Sheriff Coley is liable to the plaintiff. It constitutes only a finding by this court that as a matter of law Sheriff Coley is not shielded or protected by the doctrine of qualified immunity from being sued by this plaintiff under these undisputed factual circumstances. With that caveat in mind, it is this court's considered judgment that viewed objectively —that is, disregarding Sheriff Coley's personal, subjective belief of the constitutionality of his own conduct—it is obvious that no reasonably competent law enforcement officer would have concluded that a warrant should have issued for the arrest of the plaintiff, Mary Lois Tillman.

The paramount reason for this court's conclusion of unreasonableness is its opinion that no reasonably competent law enforcement officer who knew Mary Lois Tillman and who in particular knew her approximate age and thus knew of the discrepancy in both the name and the description of Mary Lois Tillman and the "Mary Tilma" who allegedly sold marijuana at 12:35 a.m. on October 19, 1985, would have caused plaintiff Mary Lois Tillman to be accused of that crime. Further, in this court's considered judgment, no reasonably competent law enforcement officer would seek an arrest warrant for any particular person when doubtful as every reasonably competent law enforcement officer would here have been of the identity of the person who committed the crime.

Additionally, the Supreme Court of the United States has repeatedly found the issuance of either arrest or search warrants on conclusory or "bare bones" affidavits to be constitutionally insufficient. See generally Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). Thus, any reasonably competent law enforcement officer would have concluded that the "bare bones" affidavit prepared by Sheriff Coley was constitutionally inadequate and would neither have prepared for presentment nor presented that affidavit and warrant to a magistrate to be merely "rubber stamped." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677, 693 (1984). In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the Supreme Court held that, where "a reasonably well trained officer in petitioner's position would have known that his affidavit failed to establish probable cause," the officer should not have applied for the warrant. Id. at 345, 106 S.Ct. at 1098, 89 L.Ed.2d at 281. An application for a warrant absent probable cause "create[s] the unnecessary danger of an unlawful arrest." Id. at 345, 106 S.Ct. at 1098, 89 L.Ed.2d at 281. That a magistrate issues a warrant in such a case does not excuse the police officer. "The officer cannot excuse his own default by pointing to the greater incompetence of the magistrate." Id. at 346 n. 9, 106 S.Ct. at 1099 n. 9, 89 L.Ed.2d at 281 n. 9. Sheriff Coley's preparation of a constitutionally infirm affidavit and his application for a warrant based thereon preclude the invocation of the qualified immunity defense.

Alternatively, reasonably competent law enforcement officers, aware of the constitutional command of probable cause as every reasonably competent officer is, would present sufficient information by affidavit to the magistrate to enable the magistrate to make an independent determination of probable cause. In this case, a reasonably competent law enforcement officer would have included in the affidavit all that was known by Officer Halliburton and Sheriff Coley about the October 19, 1985, incident, about Mary Tilma, and about Mary Lois Tillman. This information, if included, would have made the magistrate's obligation to ascertain the existence of probable cause truly independent and meaningful.

The deposition testimony of Sheriff Coley clearly establishes that he, the officer who in reality applied for and prompted the issuance of the warrant for the arrest of Mary Lois Tillman, did not believe that the forty-two year old plaintiff was the young woman who had sold Officer Halliburton the marijuana and thus did not believe that probable cause existed for the issuance of a warrant for plaintiff's arrest. Thus, this court finds as a fact not only that a reasonable police officer would fail to believe that there existed probable cause to support the application but also that Sheriff Coley did in fact and at the time of the application fail to so believe. The application for a warrant under these conditions is unconscionable and precludes the availability of the qualified immunity defense.

"Nothing is more clear than that the Fourth Amendment was meant to prevent the wholesale intrusion upon the personal security of our citizenry, whether those intrusions be termed `arrests' or `investigatory detentions.'" Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676, 688 (1969) (footnote omitted). Though the Davis case involved the warrantless investigatory detention of black youths by the Meridian, Mississippi police department, the message announced by the Supreme Court is clear—the seizure of individuals absent probable cause to believe that the particular individual has committed or is committing a crime violates the Constitution. Applying for and causing the issuance of a warrant for an individual's arrest merely to substantiate the belief of the applying officer that the arrested individual is not the perpetrator of a crime turns upside down the concept of probable cause.

In a situation similar to the one before this court, the Sixth Circuit Court of Appeals stated as follows:

Arrington v. McDonald, 808 F.2d 466, 468 (6th Cir.1986); see also, Baskin v. Parker, 602 F.2d 1205 (5th Cir.1979).2 In Baskin, the court held that a cause of action exists under section 1983 against a sheriff where the sheriff's deputy obtained a warrant absent probable cause and where the evidence could support the conclusion that the sheriff participated in obtaining the warrant and in organizing the subsequent unconstitutional search.

Defendant Sheriff Coley has admitted that he did not have probable cause to believe that plaintiff Mary Lois Tillman had committed a crime and that he applied for and obtained a warrant for her arrest merely to identify her. While he has not expressly admitted that he knew the arrest of an individual for identification purposes was illegal, this court determines that the illegality of such arrest is clearly established and beyond peradventure. Probable cause does not exist under the circumstances of this case, and this court finds it clear that no reasonable law enforcement officer would propose otherwise.

In summary, this court determines that no reasonably competent officer, knowing all that Sheriff Coley knew, would have concluded that the arrest warrant in question should have been applied for or issued. Thus, the defense of qualified or good faith immunity is not available to Sheriff Coley in this case.

SO ORDERED.

EXHIBIT 1

EXHIBIT 2