CA11: Courthouse security guard denied qualified immunity for twisting arm of a female lawyer on the phone

Plaintiff in this § 1983 case was a lawyer entering the Fulton County Courthouse. She put her briefcase and purse on the conveyor belt for the x-ray machine, but she set off the metal detector. She was instructed to take off her suit jacket and she declined because her undergarments would be visible. She asked for a supervisor and called her husband, a lawyer already in court waiting for her, to tell him she was delayed, and the defendant at the security checkpoint ordered her off the phone even though it wasn’t prohibited. She didn’t do so, and the defendant grabbed her arm to pull the phone away from her ear. A supervisor arrived and said to wand her instead. She was, and she passed and entered the courthouse. The district court improperly applied the “shock the conscience” test. The reasonableness test controlled, and this was a seizure, and a jury could find it unreasonable. Reversed. West v. Davis, 2014 U.S. App. LEXIS 17319 (11th Cir. September 8, 2014):

The restraint on one’s freedom of movement does not have to endure for any minimum time period before it becomes a seizure for Fourth Amendment purposes. In Terry v. Ohio, the Supreme Court recognized “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening and perhaps humiliating experience.” 392 U.S. at 24-25. In United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975), the Supreme Court opined, “[t]he Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” In Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the Court stated, “[t]he Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.” And, of course, a seizure can be accomplished in an instant, for example and most starkly as a result of deadly force from a police bullet. See Garner, 471 U.S. at 9.

Applying the Supreme Court’s precedents defining seizure to the facts in the record construed in the light most favorable to West, it is clear that West was seized. Davis, a deputy sheriff, intentionally restrained her liberty of movement by physical force when he grabbed her hand, squeezed it, jerked and pulled her arm toward him, and wrenched her wrist back and forth. While Davis was applying physical force, albeit for only a brief time,West was surely not free to walk away or end the encounter and proceed about her business to the courtroomof the Fulton County Courthouse where she was to meet her client. If a short stop and frisk is a seizure, what happened here was surely a seizure as well.

As noted at the outset, West’s Fourth Amendment claim has both an unreasonable seizure component and an excessive force component. In order for there to be a violation of the Fourth Amendment because of the use of excessive force, it must have been applied during the course of the seizure and not at some other time. See Graham, 490 U.S. at 394; Thornton v. Macon, 132 F.3d 1395, 1400 (11th Cir. 1998). As the Supreme Court noted in California v. Hodari D., “a seizure is a single act, and not a continuous fact.” 499 U.S. at 625 (quoting Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 471, 21 L. Ed. 897 (1874)). The record at this stage demonstrates without question that any excessive force used by Davis against West took place during the course of the seizure.