It Was His @#$%! County, After All

     (CN) – A Georgia judge who called police to recover his daughter’s dog from her ex-fiance is not liable for civil rights violations, as he reported the theft as a private citizen, the 11th Circuit ruled.
     Dustin Myers had been engaged to Kelley Bowman, daughter of Jefferson County Magistrate Judge Murry Bowman.
     The engagement fell through when Kelley found a new man. Then, not satisfied with breaking his heart, she hosted two yard sales where she sold some of his stuff, according to the three-judge panel.
     (With more than a little literary flair, the 11th Circuit wrote in its summary: “There would be no wedding bells, no wedding cake, and no tuxedo and white dress for Dustin Myers and Kelley Bowman. The couple was engaged to be married, but before the time came to say ‘I Do,’ Kelley found herself a new Romeo. She broke Dustin’s heart, and she tried to hurt his finances too by hosting two yard sales at which she sold some of his property. Kelley’s mother called Dustin late in the evening of August 12, 2009, to tell him that his fiancée had been unfaithful and to provide the helpful advice that he should ‘come get [his] stuff before everything was gone.'”)
     So Dustin and his dad, Rodney Myers, traveled about three hours from Rodney’s house in Lenox, Ga. to Murry Bowman’s house in Louisville, Ga. to get Dustin’s things.
     They arrived at 7 a.m. and Kelley returned his clothes, TV and computer, but claimed she had lost the ring.
     As the Myers packed their truck, the former couple’s dog Lexi jumped in. They took her with them. Kelley wanted to keep the dog so she had her father Murry call Dustin, and ask for the dog back.
     Dustin agreed to return the dog in exchange for the engagement ring and money he said Kelley owed him.
     (The story and all quotations are taken from the 11th Circuit’s 26-page ruling.)
     Later that day, the Bowmans found the Myers at a local bank. Murry pulled his truck alongside theirs, got out and tossed the ring through the window into Dustin’s lap.
     Murry did not give Dustin any money, however, so the Myers drove away with the dog and the engagement ring. As Dustin drove away Murry allegedly shouted, “I’ll have your goddamn ass locked up.”
     Murry tailed the Myers and used a SouthernLINCS communications device, given to him by Jefferson County for his official duties, to call his deputy clerk Linda Thompson and tell her to make a police report that someone had stolen his dog, which he said was worth $700.
     At the time, Georgia classified theft of property worth more than $500 as a felony, increasing the seriousness of Murry’s charges.
     Using the SouthernLINCS system, Thompson relayed Murry’s complaint to Jefferson County Sheriff’s Deputy Wiley Evans, and Louisville Police Chief James W. Miller Jr. She told them that some men had stolen Murry’s dog, and left out details connecting the theft to the busted engagement.
     As the Myers headed home, with Miller and Murry tailing them, Evans approached from the opposite direction, and blocked the caravan with his squad car.
     Evans got out of his cruiser, pointed his gun at Dustin and told him to put his hands outside the window. Before he could handcuff Dustin, however, Murry told him to get Dustin out of the car.
     So Evans pulled Dustin out of the truck, wrestled him to the ground and cuffed him, injuring Dustin’s head, arm, neck and knees.
     While Evans arrested Dustin, Miller ordered Rodney out of the passenger side and arrested him.
     As the Myers were being arrested, Murry got the dog from their truck.
     Murry then berated them for several minutes, saying “that this was his goddamn county and [he] wanted to know who the fuck [Dustin] was coming up there in his fucking county acting like that. Evans also badgered Dustin and said to him, ‘[h]e’s the fucking magistrate judge up here. Who the fuck you think you messing with?'” (Brackets in ruling.)
     After several minutes, Murry told the officers to release the Myers but then warned Dustin: “‘Once again, this is my county. I don’t want to ever see you back up here. I’m fixing to let you go. You get your shit, and I better not fucking catch you back in my county.’ The Myers returned to their truck and drove away. Lexi stayed behind inside Murry’s truck.”
     The Myers filed a federal lawsuit against Murry, Evans, Miller, Jefferson County, its Sheriff Charles Hutchins, and the City of Louisville, for excessive force and unreasonable seizure. They also alleged state law claims, including false imprisonment, assault and intentional infliction of emotional distress.
     The U.S. District Court for the Southern District of Georgia tossed the federal claims, concluding that Evans and Miller had probable cause to arrest the Myers, and did not use excessive force. The court also concluded that Murry did not cause a false arrest or instruct the officers to use excessive force.
     The Federal Court declined to exercise jurisdiction over the state claims.
     The Myers appealed to the 11th Circuit, which affirmed dismissal.
     The Myers claimed that Murry told Evans to arrest them without probable cause during secret communications over the unrecorded SouthernLINC communications system, though Jefferson County requires its police officers to report incidents to a 911 dispatcher and communicate with other officers through recorded police radio.
     But Murry and Evans testified that they did not communicate directly with each other: deputy clerk Thompson served as their go-between. Also, because Jefferson County’s radio communications system was sometimes unreliable, the SouthernLINC system was sometimes used in its place.
     Evans testified that people sometimes report crimes to him directly on his SouthernLINC device or his cell phone.
     “A reasonable juror could not find that, because Murry, Thompson, and Evans communicated over an unrecorded communications system, they agreed wrongfully to arrest two innocent people. Nor does the video of the arrest suggest that Evans lacked probable cause to arrest the Myers,” Judge William H. Pryor Jr. wrote for the Atlanta-based 11th Circuit.
     “Neither that Murry instructed Evans to remove Dustin from the truck, nor that Murry took Lexi from the truck, permits the inference that Evans lacked probable cause to arrest the Myers. Evans is entitled to a summary judgment against the claim for false arrest.”
     The panel agreed that Evans did not use excessive force while arresting Dustin, finding that a videotape of the arrest showed Evans used “de minimis and lawful” force.
     Although the judges did not condone Murry’s pompous comments during the arrest, it tossed the claims against him.
     “Murry is entitled to a summary judgment against the claim that he caused a false arrest because Murry did not act under color of law when he reported the theft of the dog. Although Murry instructed Evans to remove Dustin from the truck, that instruction did not cause Dustin’s arrest because Murry gave the instruction after Evans was already in the process of arresting Dustin. Murry’s conduct after the chase deserves condemnation, but his potential liability should be determined, if at all, by state tort law,” Pryor wrote.
     When he reported the stolen dog, Murry did not act under color of law, i.e. in his official capacity as a magistrate judge, because he was acting only as a private citizen, the panel concluded.

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