Linda Johnson Reginald Johnson v. Aaron Crooks

JOHNSON; Johnson, Reginald Linda Appellees,

Plaintiffs — CROOKS, Appellant.

Aaron Defendant —

No. 02-1915. of Appeals,

United States Court

Eighth Circuit. 7, 2002.

Submitted: Nov. April 23,

Filed: Rehearing En

Rehearing Banc

Dеnied: June 2003*. * Judge part Theodore McMillian took no consideration or decision of this matter. Lincoln, Wade, NE,for argued, G.

Rick appellant. NE, Omaha, Broom, argued,

Robert Vail appellee. LAY, WOLLMAN, Before LOKEN,** Judges. Circuit LOKEN, Judge. Circuit Reginald This is action Linda Crooks, against deputy Aaron County, Gage sheriff for Nebraska. stopped Ms. allege that Crooks Johnsons violation, car, not for a traffic Johnson’s is an African-American. but because she Amendment, They Fourth assert federal equal protection, process and due claims claims under state pendent Nebraska the denial of his mo- appeals law. Crooks partial summary judgment dis- tion for claims on the basis missing federal interlocutory qualified immunity. In an qualified appeal challenging the denial of immunity, “[Crooks’s] we consider whether which the District Court dеemed conduct sufficiently purposes sum- supported clearly judgment” violated estab- mary statutory or standards lished constitutional person have of which reasonable would Pelletier, known. Behrens (1996); 133 L.Ed.2d Serrell, 244 F.3d see Tlamka v. (8th Cir.2001). Viewing the most favor- record Johnsons, who are the non- able to parties, we that the fed- moving conclude eral must be dismissed there- claims fore reverse. Background.

I. April On Linda Johnson Fort driving through rural Nebraska to ** Eighth April for the Circuit on B. Loken became Chief The Honorable James Appeals Judge Court of of the United States Kansas, Riley, where she lived with her stated that he believed Ms. Johnson’s ver- husband, Army Sergeant Reginald John- sion the traffic stop. Crooks asked to passed through son. town of As speak to Mr. Johnson’s commanding offi- a.m., deputy Beatrice at about 9:15 sheriff cer about Ms. warning Johnson’s citation. pulled parking Crooks out from a lot and Mr. Johnson told Crooks how to contact his car patrol through maneuvered traffic supervisor, Deputy Inspector the Gen- until directly it was Ms. behind Johnson’s eral, but Crooks did not do so. following After closely ap-

vehicle. The Johnsons’ complaint amended seeks miles, proximately during eleven which compensatory and punitive damages and Ms. avers was not Johnson careful to pleads eight causes of action. four violations, commit traffic sig- Crooks pendent state law claims are not at issue stop approached naled her to and her car. interlocutory on this appeal. The four fed- why pulled Ms. he her Johnson asked over. eral causes action are Fourteenth responded, you go- Crooks “because were Amendment claims for an unreasonable ing left of center.” Ms. Johnson denied seizure and detention in violation of the crossing the center line and said that Amendment, Fourth for racially dis- targeted Crooks had her of her because criminatory treatment that violated type race and the of car she driving, was equal protection pro- Johnsons’ and due 1996 Lexus. Crooks told Ms. Johnson that rights. cess Crooks for summary moved nothing race had to do with the traffic judgment dismissing each federal on claim Rather, he was concerned about her grounds of qualified immunity. The safety. returning patrol After to his car district court denied the motion without and verifying identity Ms. Johnson’s separately analyzing the various claims. validity, license Crooks issued her writ- warning. ten departing, traffic Before Ms. II. The Fourth Amendment Claim. again him accused of stopping her race, again because which complaint alleges Crooks The amended denied. that violated the Fourth and Four by teenth Amendments stopping and de When Crooks asked her for identifica- taining an alleged Ms. Johnson for traffic tion, him gave military Ms. Johnson violation. It is that “stopping well-settled identification card because she could not detaining occupants an automobile and its quickly find her driver’s license. The card meaning constitute a ‘seizure’ within the dependent listed Ms. civiliаn Amendments, Fourth and [the Fourteenth] “sponsor” Reginald whose was Johnson. stop even though purpose is following day, Crooks called Fort Ri- limited the resulting quite detention ley report circumstances of traf- Prouse, 648, brief.” Delaware v. 440 U.S. proper military fic supervisory “to 653, 1391, (1979). 99 S.Ct. 59 L.Ed.2d 660 personnel.” told Crooks was there was no subject “An automobile is thus military one at Fort Riley named imperative constitutional that it not ‘un be Linda Johnson. He referred reasonable’ under circumstances.” Judge Office, Advocate General’s where he States, 806, 810, v. spoke, perhaps Whren United 517 U.S. coincidentally, Reginald (1996). explained 116 S.Ct. Johnson. Mr. Johnson L.Ed.2d military depen- determining Johnson was his wife and a of an auto reasonableness dent, seizure, mobile military. Supreme a member of When search complained that Ms. in recognizes Johnson had Court are automobiles racist, mobile, being accused him of herently Mr. Johnson have a motorists lessened traveling judged on is the standard when reasonableness privacy expectation “[a]utomobiIes, applies investigatory stops highways, and public —wheth subjected pervasive supported by homes, er “the officer’s action are unlike regulation suspicion to that crimi continuing governmental reasonable believe Opper activity ‘may South Dakota nal afoot.’ United and controls.” be Arvizu, man, 96 S.Ct. 534 U.S. 428 U.S. States v. (1976); (2002) see v. Lew Cardwell (quota

L.Ed.2d 1000 151 L.Ed.2d 740 589-91, Jones, is, omitted); 417 U.S. tion see United States (1974). (8th Cir.2001). An offi suspicion may stop the cer with reasonable recоgnized, As the district court may the question automobile and driver violation, one, a minor traffic even “any identity try “to and determine stop probable cause the gives an officer dispelling confirming ‍‌‌​​​‌​‌​​​‌​​‌​​​​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‍obtain information or case,] stop the such a is violator. [In suspicions.” the Berkemer v. officer’s any ulterior and objectively reasonable 439, 104 3138, 420, McCarty, S.Ct. 468 U.S. part irrele officer’s is motivation on the (1984). 82 L.Ed.2d 317 Davis, 92, 120 F.3d 96 vant.” Conrod (8th Cir.1997) omitted), de (quotation cert. may routine traffic violations re Even nied, 1081, 118 140 523 U.S. S.Ct. investigation the motor quire some into Whren, (1998); see 517 U.S. L.Ed.2d 681 condition, the ist’s conduct or followed However, 811-13, the 116 S.Ct. deciding in exercise how summary judgment on the court denied in that situation. enforce traffic laws claim because Linda Fourth Amendment initially example, stops For an who officer did that she not cross Johnson has averred may running a car a red then stop, creating a prior line the center explanation accept the motorist’s re that cannot be disputed factual issue yellow she light was when entered proceedings stage solved this depart and let the driver with intersection probable had cause to whether warning. At that point, an oral or written then, appeal, issue on make investigatory stop complete. is See whether Ms. dispute is over whether White, 81 777- United States v. line in fact the center is crossed (8th denied, Cir.), 78 cert. 519 U.S. purposes qualified material for Crooks’s (1996). 136 406 S.Ct. § immunity the Johnsons’ defense to delay, perhaps a The motorist has suffered damages. claim for delay, “a irritating even harmful but ordinary virtually stop con routine traffic is an incident appeal, Crooks

On Wilson, cedes, driving.” district court’s of Ford 90 F.3d accept, we and denied, Cir.1996), affidavit cert. determination that Ms. Johnson’s 137 L.Ed.2d 311 asserting did commit traffic vio not (1997). brings If dispute con the motorist then genuine lation fact creates action, § probable damage had does Fourth cerning whether summary judg rea Amendment claim survive stop cause to and detain her analysis require jury simply trial be But district court’s over ment son. she did not run the red aspect of traffic cause she avers investigatory looked the light? think When an officer stops general stop particu of this in We not. stops perceived for a traffic traffic a rela a motorist lar. Because a brief violation, briefly questions the motorist on the tively minor intrusion motorist’s occurred, interests, the motorist privacy Fourth about what lets its Amendment Johnson, depart issuing without a citation or ex- Plaintiff Linda Ms. was to in- investigation panding beyond ques- vestigate the driver’s condition and to violation, tion of a traffic the officer has warning, issue a verbal warning, written unreasonably priva- upon intruded or a citation. cy protected by liberty interests the Crossing the center line of a high- two-lane Supreme Fourth Amendment. As the way is a statutory violation Nebras- holding police Court officers not stated ka Rules of the Road. See neb. Rev. Stat. § liable 1983 for negligently under arrest- 60-6,131. § significantly More from the individual, ing the “The Constitu- wrong standpoint public sаfety, driving while guarantee only tion does not fatigued excessively impaired or otherwise did, guilty § If will be arrested. it is a condition that threatens motorist safe- provide every would a cause of action for ty and doubtless violates Nebraska’s care- acquitted indeed, for every defendant — driving prohibition. less See neb. Rev. McCollan, suspect released.” Baker v. 60-6,212. Thus, § objectively it was Stat. 443 U.S. reasonable for Crooks to John- (1979). L.Ed.2d 433 son’s car to if compe- determine she was case, In this Crooks observed Ms. John- tent to continue her travels. When satis- crossing son’s car the center line more was, fied she Crooks let go Ms. Johnson a highway than once on two-lane rural warning citation, with a rather than a end- rather in the early morning. his affida- ing investigatory In these cir- vit the motion for supporting cumstances, we believe there nowas viola- qualified immunity grounds, on tion of Ms. Johnson’s Fourth Amendment explained for stopping reasons rights minimum, as a of a matter law. At Linda car: Johnson’s Crooks is to qualified immunity entitled 4.... I then that observed the car from her Fourth Amendment claim be- immediately ahead of me on several oc- in cause his conduct enforcing Nebras- casions slightly crossed centerline ka objectively Rules of the Road was rea- oncoming into the traffic lane. sonable. practice ... my

5. It is and was ... Equal III. The depending potential the traffic and Protection Claim. on involved, danger not motor separate The Johnsons assert slightly vehicle that drifts the cen- over Fourteenth Amendment 42 claim under perhaps terline one or two times. How- §§ alleging U.S.C. ever, if the ... continues to vehicle cross Crooks traffic stop made the on account of twice, more centerline than once or I cognizable Ms. Johnson’s race. This is a pull investigate. the car over to further equal protection claim. Constitu “[T]he I One factor that take into consideration prohibits tion selective enforcement early morning ... is in the hours law based on considerations such as race. evening possible hours it is the But the objecting constitutional basis for drowsy driver ... may suffering or be application to intentionally discriminatory from illness or may possibly some be Equal Clause, of laws is the Protection not intoxiсated. Whren, the Fourth Amendment.” ^{[*] [*] [*] [*] [*] [*]} U.S. at 116 S.Ct. 1769. This claim probable my proof The cause and rea- does not require that Ms. me, stopping stopped probable son for the car was cause ahead without or which I later found out to by suspicion be driven reasonable believe she com- and the officer person stopped But must between violation. mitted a traffic racial case of prima his discretion facie exercised establishes that Crooks prove laws on account of 90 F.3d at 248-19. the traffic discrimination.” enforce requires proof dismissing both race, district court erred not which discriminatory discriminatory effect claim. equal protection Armstrong, v. United States purpose. See 456, 465, 116 S.Ct. 517 U.S. Claims. The Due Process IV. (1996). claim is When complaint asserts amended the traffic laws or selective enforcement process § causes of action 1983 due two arrest, plaintiff racially-motivated are stating they clearly without whether similarly situat normally prove that must procedural due process substantive due or arrest stopped not ed individuals were process To the extent a substan claims. discrimi requisite ed order show asserted, process claim is due tive Chavez v. natory purpose. See effect it is by Johnson fails because claim Ms. (7th Police, F.3d 634-48

Ill. State Amendment, by” the Fourth “covered Schubert, Cir.2001); ‍‌‌​​​‌​‌​​​‌​​‌​​​​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‍v. Gardenhire Lewis, County 523 U.S. Sacramento Cir.2000). 140 L.Ed.2d 1043 Here, no have offered evi- the Johnsons (1998), fails and the claim Mr. Johnson non-Afri- does dence that Crooks conduct for lack of evidence that Crooks’s similar circum- can under Americans conscience-shocking in the constitu prima that a will assume stances. We term. See Moran tional sense of that may claim protection also be equal facie (8th Cir.2002) Clarke, 638, 296 F.3d of racial discrim- proved by direct evidence (en banc). procedural due To the extent type case. But the John- ination in this asserted, the fails process claim is claim They presented sons no such evidence. the have no at because Johnsons made personal opinion rely on Ms. Johnson’s not to that state law would tempt establish stopped on account that she was adequate post-de afforded them have race, aspects the plus additional encoun- v. privation remedy. Zinermon tort See directly not racial ter that do evidence Burch, n. 130 & U.S. position was in a animus—that Crooks (1990); Parrish 108 L.Ed.2d pulled race when he out see Johnson’s Mallinger, F.3d 615-16 Cir. traffic, closely that followed into 1998). Indeed, their law pendent state pull- for Ms. Johnson eleven miles before adequate claims tend to establish over, called ing her and that Crooks Fort are post-deprivation remedies available. day Riley bring the traffic the next Therefore, in not district court erred the or to the attention of either Ms. Johnson’s dismissing process due claims. the officer. As commanding Mr. Johnson’s non-moving parties, the must the Johnsons reasons, district foregoing For the the from which a “identify affirmative evidence re- order March 2002 is court’s dated plaintiff the has car- jury could find that The case is remanded for further versed. perti- the proving his her burden of ried this proceedings not inconsistent with Britton, 523 nent motive.” Crawford-El Class, opinion. Gregoire v. See (8th Cir.2000). 413, 419-20 (1998). They the failed do so. As Ford, in stated “We do Seventh Circuit LAY, Judge, dissenting. Circuit of an think ... that the combination arbi- dissent. respectfully in I trary stop ... with a difference race majority’s opinion I think the cause facie of an will case in unauthorized viola- great deal of confusion to all district tion of the Fourth Further, Amendment. proper summary judgment prima courts as to she has set forth a the facie case of harassment, racial standard in cases. The which provides genu- civil standard Suprеme is that ine issue trial as to instructed the Court whether there has been denial in of the Equal district courts must view the evidence Protection I Clause. have set forth the light nonmoving most district favorable in case, opinion entirety court’s its party. majority the end of present (Exhibit A) my provides dissent it because disputed recites of fact in issues favor the proper summary judgment analysis moving party give any does not disputes details the factual of the case. nonmoving party’s credence to the claims. approach contrary every This rule primary problem majori- The with governing summary judgment leads ty’s analysis Fourth Amendment is that it majority improperly grant summary facts, mischaracterizes making the Defendant, Aaron case appeаr simple more than it actually reading Crooks. From the district court’s is. majority recites when an opinion, it court is obvious the district investigatory officer makes a mere stop, applied summary judgment the correct there is no intrusion “upon unreasonable recognized fully standard. It there existed privacy liberty protected interests fact; genuine disputed issues of it viewed by Maj. the Fourth Op. Amendment.” evidence most favorable to However, 998-999. the facts this case the nonmoving party; provided and it do not allow for such a conclusion. Addi- all nonmoving party favorable inferences. facts, tional analyzed by which are not majority, raise doubts about constitu- A review of the facts shows that Ms. tionality of the prima Johnson has madе a She facie case. minority

is a member of a race who drove majority’s fact section states that public highway car on the and asserted patrol “maneuvered car that she any did not violate traffic laws. through directly traffic until it was behind closely Sheriff her Crooks followed vehicle Mr. Johnson’s vehicle” then and followed for eleven At stopping miles before her. closely her for approximately eleven miles. time, crossing Crooks accused her of Maj. Op. alleges at 997. Crooks that he line, the center an accusation which she followed Ms. Johnson’s vehicle because she vehemently Ms. denied. Johnson said she highway. crossed the center line of the was following well aware that Crooks was Why hе not immediately stop did effect a closely obey so she was careful to all following rather than eleven her for miles traffic laws. Crooks then asked for her credibility highly makes Crooks’s dubious. identification, presented mili- and Further, if we take Ms. Johnson’s state- tary identification because she could not ment that she did not the cross center line immediately find her driver’s license. The true, stop arbitrary as Crooks’s and military identification showed on the back however, capricious. majority, simply The civilian, of it a that she was which Crooks the credits Crooks’s version of facts even ignored. gave He her a warning written though stopping his stated reasons for Ms. and then Riley report called Fort to the in Johnson remain dispute.

incident superior to her officer. facts, of addressing Instead the relevant facts, ques-

Based on opinion these there is no the the mischaracterizes case and prima tion that Ms. objectively Johnson has made a “it was concludes reasonable a investigatory and that had stop car to was Crooks Ms. Johnson’s to Crooks that crimi- competent suspicion to contin- to believe reasonable if she was determine he was afoot because “ob- activity a nal Maj. Op. 999. Such ue her travels.” crossing car cen- Ms. Johnson’s the served that Ms. assumes conclusion a rural ter line more than once on two-lane essence, majority her car. In swerved ” Maj. Op. at ma- highway .... 999. The telling is it says that believes however, persuаsive jority’s analysis, is opinion not. is The truth if only we assume Ms. Johnson by say- the case mischaracterizes further parties line. Since the crossed the center go let with a “Crooks Ms. Johnson ing that fact, say key dispute this we cannot citation, ending than a warning rather of law that had reason- matter Maj. Op. stop.” Yet investigatory suspicion. court correct- able The district simply facts that Crooks did show it ly summary judgment because denied Riley Fort go. He called let Ms. Johnson disputed fact at the could not resolve this reported the incident. Such behavior it summary stage. true While police pro- with comport does not standard not make a the district court did distinc- to more than and extended cedure investigatory tion between an “relаtively minor intrusion on the motor- stop, the district court did not individual Maj. Op. at 998. A privacy interest.” ist’s to to make such a distinction reach need that he called Fort fair inference remains parties long correct As as the result. This Riley racially harass Ms. Johnson. dispute crossed the whether Ms. Johnson stronger made because Ms. inference is line, the issue of whether Crooks center violating traffic laws. Johnson denied suspicion had a reasonable remains. apply concerns of these same Much conclusion, ap- majority does not analysis. Protection majority’s Equal ply correct standard “ do not think majority states that “We judgment. The instructs Supreme Court arbitrary of an ... combination summary judgment pro- in a this court in race stop ... with a difference between in the ceeding light evidence view the the officer estab person stopped Johnson, most favorable Ms. non- discrimi prima facie case racial lishes moving party. majority bases its ” Maj. Ford Op. (quoting nation.’ at 1000 analysis material upon facts which are Wilson, 248-49 Cir. dispute and views the evidence 1996)). again, this case is not as Once Crooks, moving par- most favorable majority suggests. The simple as the ty. By accepting Crooks’s statements facts show much more than difference assertions, majori- over Ms. Johnson’s Here, stop. arbitrary and an race ty summary judgment has turned stan- reported the military inci called and on head has reached an incor- dard its and for dent. He also followed Johnsоn rect result. prior ‍‌‌​​​‌​‌​​​‌​​‌​​​​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‍making eleven miles respectfully I dissent. true, facts, at the These when credited as least, very to survive should allow case A” “Exhibit summary judgment. STATES DISTRICT COURT UNITED court for majority The faults the district THE DISTRICT OF NEBRASKA FOR investigatory

failing distinguish between and REGINAL stops stops. traffic The LINDA JOHNSON individual JOHNSON, Plaintiffs, majority claims that Ms. Johnson’s L. vs. followed Johnson a very “at close dis- tance” for approximately eleven miles. Id. CROOKS, AARON Defendant. ¶4. L. Johnson states that during this 4:01CV230. time, “took precaution she extra to ensure nothing would do wrong [she] or com- MEMORANDUM AND ORDER ON mit traffic any give violation so as not to DEFENDANT’S MOTION FOR ¶3. him reason to stop [her].” Id. SUMMARY JUDGMENT Nevertheless, Crooks activated his This ease is now before me on the De- initiate a traffic stop. Summary fendant’s Motion Judgment, for L. Johnson asserts that after Crooks filing 27. plaintiffs’ Amended Com- аpproached her car and asked her several plaint, filing alleges eight causes questions, inquired she why as to pulled he arising April action from traf- her over. Crooks responded that she was by fic conducted defendant. stopped “‘going left center.’” Id. moving for summary judgment, the defen- ¶5. L. replied that she believed argues dant that the doctrine of qualified she had been targeted ‘“because of the immunity from plaintiffs’ shields him color of skin1 type [her] of car Thus, four first claims. the defendant con- was] driving.’ [she Id. L. Johnson then tinues, plaintiffs’ latter four claims began looking for her driver’s license and fail, brought must also as such claims are car registration. She could not find her pursuant supplemental juris- to the court’s license, she did dependent but lоcate her § diction. See 28 U.S.C. 1367. After re- military identification card when she viewing the I parties, submissions of the glove compartment reached into the find the defendant’s motion be will registration. front of This this card denied. L. signature, includes Johnson’s picture, number, security social as well as he Background, I. name, number, rank, security social During morning April hours of pay grade “sponsor.” of her See (hereinaf- plaintiff Linda Johnson 1-A, p.l. at Ex. of the back car indi- Johnson) Omaha, traveling ter L. from L. cates that Johnson is a civilian. See id. Nebraska, Riley, Kansas, 1-A, Fort in her p.2. at Ex. a.m., Lexus. 9:15 passed Around she gave military L. identifica- Beatrice, Nebraska, through as she drove Crooks, tion card to he who said could use on Highway south L. Johnson con- the card to obtain the information he need- Beatrice, that at

tends the south end of ed. L. Johnson asked if could look patrol she noticed a car turn attempting to the trunk for her license. Crooks re- highway a parking onto from lot. The sponded that she could and then went back car, patrol driven the defendant patrol to his car. After unsuccessful Crooks, was facing the driver’s side of trunk, search of her L. Johnson reentered Johnson, L. According vehicle. to Crooks her and vehicle found her license on the pulled onto the and highway “maneuvered floor passenger’s According of the side. to way through position his to himself Johnson, traffic” Crooks, L. gave she the license to ¶2, behind her. Aff. of Linda Johnson who indicated he did not need it. She filing 40 at Ex. 1. Crooks then to allegedly went back her and waited for vehicle ¶ plaintiffs Filing 1. Both are "Afro-American citizen[s].” United States 17 2. driving of the her of car she was and because

Crooks, later returned to vehicle who ” ¶ ap- 10. warning. color of her skin.’ Id. She L. her a written and issued un- peared “extremely upset very and protested that she had not again Johnson “[Sjomewhat and friendly.” offended center,” Id. again in left of “gone fact response,” her disappointed with Crooks she had that she believed advised Crooks L. that she had been advised Johnson of race and the stopped because her been driving “left of center several stopped driving. Aff. of Linda she type of car was he request- Id. states that ¶ times.” Crooks 1. 40 at Ex. She then Johnson registration, ed her driver’s license and 77 and contin- Highway onto pulled back was to but L. Johnson unable locate south. ued Thus, Crooks, to L. according former. Johnson, was “cour- According to L. she him that in Johnson then advised she was cooperative” with teous military military a and had identifica- ¶ 8. their Id. Both throughout encounter. responded that could tion card. Crooks he husband, plaintiff Re- L. Johnson her military identification to use the obtain (hereinafter R. John- ginald Johnson C. that no necessary information and she son), of date of the indicate that as also L. longer needed to look-for the license. stop, of their Lexus the windows Johnson, however, insist “continued to ¶ 10; id. Aff. of were not tinted. See “ upon finding license” she so ‘wouldn’t ¶ 5, 2. filing 40 Ex. Reginald C. Johnson ¶ get intо more Id. trouble.’ a recounts differ- The defendant Crooks that he told her was not Crooks states she April relating of ent version events necessarily that in trouble and he was According Crooks, 2000, stop. to he primarily safety. about her He concerned number of cars as he had wait to to her nevertheless allowed her continue 77. He Highway to turn onto attempted search for license in the trunk as he passed, he that after the cars asserts patrol to went back his car. highway distance pulled onto “some calling that he Crooks asserts while was Supp. in the last car. Aff. behind” information, in L. her her Johnson found Aff. J. [hereinafter Def.’s Mot. for Summ. patrol approached car. license ¶ 3, filing Ex. 28 at 1. He of Aaron Crooks] Crooks advised her return her car initially he although states that did completing and wait for him. After about the ve- anything particular notice check, information Crooks went back him, observed the hicles in front he later he L. the vehicle where found him immediately in front of cross vehicle fin- talking phone. on her cell When she oncoming line traffic the center into conversation, her Crooks handed her ished ¶ 4. Id. lane on “several occasions.” Con- warning and told her was written there condition, he ac- about driver’s cerned if L. truck ahead she was tired. initiate lights tivated again commented she be- Crooks, According to the windows of the of her stopped lieved she had been because Thus, tinted. he asserts driving, vehicle were type racе and car she was passen- not until I was near the such again “[i]t and Crooks assured “that ¶21. that I that the driver was ger’s saw Id. also door was not case.” She Id. 1Í9. female.” Crooks would continue inquired Afro-American whether her, greeted responded after he L. states that follower and Crooks Johnson, him and accused he be same interrupted going would direction “ she, following purpose but not for the stopping type him because ‘of the pulled L. onto her. Johnson then back anyone course action to inform in the military 77. that Highway Ms. Johnson had made a false claim of military affiliation. that, military states based on Crooks his ¶ Id. 26. my background, “it is belief and under- Johnson,

standing procedure military any however, that R. recalls a some- telephonе what different stop by contact a law enforcement offi- conversation with An Crooks. Inspector Assistant should in the cer result information of the General Riley, Fort R. Johnson states that on being to offi- superior forwarded morning 19, 2000, April ¶ Crooks con- of the Id. cer individual.” 24. Crooks the Inspector Office, tacted General’s case, that this such was follow-up felt the call was R. transferred to Johnson by a ... “especially necessary since John- Ms. secretary. R. Johnson asserts that when had made of inappropriate son accusations he answered the telephone, “Crooks made part, on which [his] conduct were absolute- it ... clear that he had called for me.” Thus, ly day, false.” Id. the next Crooks ¶ Reginald Aff. of C. Johnson 40 at Rilеy alleged attempt contacted Fort Ex. 2. describing the traffic stop, reach L. Sergeant. Johnson’s First “specifically Crooks suggested that [L. was military Crooks told that there was no had acted inappropriately.” Johnson] Id. by person of Linda name Johnson According Johnson, to R. Crooks “stated the base and was advised to contact he wanted talk to superi- [R. Johnson’s] Judge Advocate Office fur- General’s citation,” or officer about warning Crooks, According ther information. he “specifically stated [L. he knew Johnson] by so telephone, coincidentally did “and military dependent was and [R. John- phone by was who answered man son], spouse, responsible as was Reginald identified himself Mr. John- advising actions.” Id. After Crooks ¶ convеrsation, During Id. son.” their that he believed his wife’s version of explain Crooks tried to what had occurred events, R. gave Johnson phone Crooks the regarding the traffic R. Johnson Sergeant number of First and the Depu- wife, responded that L. was Johnson his ty Inspector General. already hap- had told him what pened, and that he believed wife. his II. Standard Review then R. advised Johnson that he A motion for summary judgment will be reported believed the matter should be granted genuine when “there is no issue as Sergeant L. superior Johnson’s First or a material ... fact and the moving R. officer. Johnson indicated that wife party to a judgment is entitled as a matter military not in was and then trans- of law.” R. A Civ. P. “materi- 56(c). fed. individual, ferred Crooks to another who al” fact is one “that might affеct the out- also advised that L. was come of suit under governing law military. not in the Crooks concludes as Inc., .... Liberty Lobby, Anderson v. follows:

After I having done what believed (1986). A “genuine” issue of material appropriate regarding with fact when exists there sufficient evi- given the information to me favoring opposing dence the party the mo- affiliation, regarding military jury tion for a to return verdict for and after finding military out affilia- party. In determining gen- Id. whether a true, exists, was not I tion took no further uine issue material fact the evi- 1006 [djoctrine by [qual- of most tion ‍‌‌​​​‌​‌​​​‌​​‌​​​​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‍“are barred in the taken is to be

dence Def. Supp. Br. in of [ijmmunity.” ified Ad nonmoving party. to the favorable J. [herein- Aaron for Summ. 144, Crooks’ Mot. Co.,& 398 U.S. Kress ickes v. S.H. at 7. after Defendant’s Without Brief] 1598, 26 142 157, 158-59, L.Ed.2d 90 S.Ct. claims, concludes, plain- these (1970). moving party meets If the also four causes of action must tiffs’ latter the nonexis establishing of initial burden jurisdiction. fail for lack of issue, then the burden genuine a tence of produce party immunity opposing qualified shifts to The of doctrine genuine a is of from un- government of the existence officials suit evidence “shields Catrett, clearly 477 a estab- Corp. v. less their conduct violates trial. sue for Celotex 2548, statutory of right or 322-23, 91 lished constitutional 317, 106 S.Ct. U.S. person have which a reasonable would (1986). opposing party 265 The Ianni, 668, 119 v. F.3d known.” Burnham allegation mere “may upon rest (8th Cir.1997) Fitz- (citing 673 Harlow v. must forth set pleading, his but denials of 2727, 800, 818, 457 102 S.Ct. gerald, showing genu that there is a facts specific Combs, (1982); 396 Yowell v. 73 L.Ed.2d af trial,” present and “must for ine issue (8th Cir.1996)). 542, A claim 89 F.3d to defeat a evidence order firmative a immunity triggers two-part qualified of summary supported motion properly “ plaintiff has al- inquiry: ‘whether Anderson, 256, 477 U.S. at judgment.” deprivation of actual constitu- leged the P. 257, (citing feb. R. Civ. 106 S.Ct. all, so, ... and if whether right tional 56(e)). clearly at the right established ” v. Tlamka alleged time violation.’ Analysis III. (8th Cir.2001) Serrell, 628, Amended Com- filed their plaintiffs 603, Layne, (quoting Wilson v. 526 U.S. August alleging plaint on 143 L.Ed.2d 818 119 S.Ct. (1) eight causes of action: a following Gabbert, (1999); Conn 526 U.S. process viola- due Fourteenth Amendment (1990); 143 L.Ed.2d 399 violation; (2) tion; a Fourth Amendment Martin, citing 210 F.3d Sexton (3) equal protec- Amendment Fourteenth Cir.2000)). (8th qualified immu- When the (4) second, violation; separate Four- tion summary nity during is raised defense violation; process due teenth Amendment stage, “the official’s conduct (5) § 20-148 of neb. Rev. violation Stat Rule through prism must be viewed CONST, (6) I, 3, 7; §§ art. and NEB. is, true court] 56—that must take as [the (7) a imprisonment; false and false arrest plaintiff those facts [the] asserted 28-926; § violation of neb. Rev. Stat. Id. properly supported are in the record.” (8) § 20-201 et of neb. Rev. Stat. violation omitted). (citations Thus, “‘if is a there law the state seq. and “the common dispute predicate facts genuine concerning 4-8. Claims one Piling Nebraska.” issue, immunity qualified material on U.S.C. through four are based summary judgment.’ there be no can 1983,2 through eight § while claims five (8th Class, Gregoire v. 236 F.3d supple- pursuant to the court’s brought are Cir.2000) Du- (quoting City Lambert v. Cir.1999)). jurisdiction. mas, motion mental 187 F.3d established, judgment, the predicate defendant After the facts are con- ac- “the of the official’s first four causes of reasоnableness contends that the ¶ § 1981. 17 15. also based on 42 U.S.C. See third cause of action is 1007 See, question Conrod, is a e.g., duct under the circumstances Amendment claim. 120 F.3d at Tlamka, (concluding 96 if law.” 244 F.3d at 632 “even (citing [the of presented Moines, defendant] evidence that 1050, [the City 201 Pace Des F.3d of stated for stopping officer’s] reasons (8th [the Pace, Cir.2000)); 201 1056 F.3d at pretextual, defendant] were such evidence (“We emphasis 1056 restate for would not stop invalidate the and arrest” reasonably an officer whether ‘acted under since dispute the defendant not “[did] ... settled law the circumstances’ is a fact Whren, that he speeding” (citing law, question predicate of and not itself a 813, 1769)); 517 at U.S. 116 S.Ct. see also only fact. ‘Predicate include facts’ the rel- Whren, 813, 517 U.S. at 116 S.Ct. 1769 evant circumstances and the acts of the (“[T]he constitutional for objecting basis themselves, parties not the conclusions intentionally discriminatory application of others about the reasonableness of Equal Clause, law is the Protection not the (internal omitted)). citation those actions.” Amendment.”); Fourth United States v. In moving summary judgment, (8th Pipes, 638, Cir.1997), 125 F.3d 640 defendant Crooks contends “there is denied, 1012, 1202, cert. 523 U.S. no constitutional when a violation valid (1998) (“Of course, 140 L.Ed.2d 330 offi supports cause probable warrant an selectively cers must not enforce the law arrest, regardless motives of the considerations, based on unconstitutional arresting officer.” Defendant’s Brief at 8 but such claims Equal fall under ‍‌‌​​​‌​‌​​​‌​​‌​​​​‌‌‌‌​‌‌​‌‌‌​​​‌​‌‌‌‌‌​​​‌​‌​‌‍the Pro (citations Clause, оmitted); tection Whren v. not the Fourth Amend see United (citation omitted)). Here, however, ment.” States, 813, 806, 1769, 517 116 U.S. S.Ct. question of whether L. Johnson (1996) (“Subjective 135 L.Ed.2d 89 inten crossed a disputed the center line is factu play ordinary, probable- tions no role in al issue that cannot be resolved at this analysis.”); cause Fourth Amendment stage Compare of the proceedings. Aff. of (8th Davis, 92, Conrod v. 120 F.3d 96 ¶ (“[A]t Linda filing 40 at Ex. 1 Cir.1997), denied, cert. 523 U.S. 118 no time did I ever the center cross line of (1998) (“[A]ny S.Ct. 140 L.Ed.2d highway.”), with Aff. of Aaron Crooks violation, one, traffic minor gives even a ¶ (“I 4, filing 28 at then Ex. observed probable stop officer cause the violator. immediately that the car ahead of me on probable If the officer has cause stop several occasions crossed the centerline violator, objectively reason slightly oncoming lane.”); into traffic able and motivation on ulterior Anderson, see at part (quoting officer’s is irrelevant.” Unit determines, (“Credibility weigh- Caldwell, ed States v. 97 F.3d 1067 ing evidence, drawing and the (8th Cir.1996)). Thus, Crooks seems to be legitimate from the inferences facts are arguing that because he saw L. Johnson functions, jury of a judge, not those wheth- line, probable cross the center he had er ruling he is on a motion for her, cause to and his motives for verdict.”); judgment or for a directed her, stopping improper, if even are there Paul, City Mems v. St. fore irrelevant. See Defendant’s Brief at (8th Cir.2000) (“[C]redibility determi- ¶ 9; Aff. of Aaron Crooks 28 at pur- nations fall within the fact finder’s Ex. 1. Had L. admitted that view, ours.”); Grossman v. Dillard offense, committed а traffic I would be Stores, Inc., Dep’t 47 F.3d agree analysis, Cir.1995) (‘We included to Crooks’ with neither may weigh evi- least respect plaintiffs’ credibility with Fourth dence nor make determinations America, Appellee,

United States of (citation stage.” summary judgment Kamerud, Appellant. omitted)). Brett Christian allegations in the Given the affidavits, it seems me plaintiffs’ 02-2232, No. 02-2427. remain as to whether factual also issues of Appeals, States Court United racial product discrimi- Eighth Circuit. “ Thus, genu- is a because ‘there nation. Feb. 2003. Submitted: ma- dispute concerning predicate facts ine April Filed: issue,’ immunity I qualified terial to the Rehearing Rehearing En Banc law, find, matter cannot Denied: June 2003*. reasonably under settled Crooks “acted Gregoire, 236 law the circumstances.” (citation omitted); Hunter v.

F.3d at 417

Bryant, (1991)). Accordingly,

116 L.Ed.2d motion

defendant Crooks’

judgment must be denied. the Defendant’s

IT IS ORDERED Summary Judgment,

Motion for

is denied. 4, 2002.

Dated March

BY THE COURT K Urbom

/s/Warren

Warren K. Urbom Judge. District

United States Senior America,

UNITED STATES

Appellee,

Cory KAMERUD, Appellant. Baker * petition rehearing en banc. Judge on the participate did in the vote McMillian

Case Details

Case Name: Linda Johnson Reginald Johnson v. Aaron Crooks

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 4, 2003

Citation: 326 F.3d 995

Docket Number: 02-1915

Court Abbreviation: 8th Cir.