Karen J. Kilpatrick vs USA, Craig W. Roegner, City of Pensacola, Amanda Griffett, Peter Faulk

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 16, 2011
No.10-12026
JOHN LEY
________________________
CLERK
D. C. Docket No. 3:06-cv-00158-LC-MD
KAREN J. KILPATRICK,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
CRAIG W. ROEGNER,
Special Agent Bureau of Alcohol
Tobacco & Firearms,
CITY OF PENSACOLA,
AMANDA GRIFFETT,
PETER FAULK, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 16, 2011)
Before CARNES, ANDERSON and FARRIS,* Circuit Judges.
PER CURIAM:
Karen Kilpatrick appeals the district court’s grant of summary judgment in
favor of the defendants on the basis of qualified immunity. Kilpatrick filed suit on
April 18, 2006, alleging that the United States, the City of Pensacola, and several
individual defendants had violated her rights under the First and Fourth
Amendments, and asserting tort claims for false imprisonment, negligence,
intentional infliction of emotional distress, and invasion of privacy. The district
court granted the defendants’ motion for summary judgment based on the
affirmative defense of qualified immunity because, construing the evidence in the
light most favorable to Kilpatrick, there remained no genuine issue of material fact
as to whether a constitutional violation occurred, and even assuming that
Kilpatrick’s First Amendment rights were violated, the officers’ actions were not
contrary to clearly established law. Because the district court found that there had
been no constitutional violation, it also granted the defendants’ motion for
summary judgment on all of Kilpatrick’s tort claims. We review Kilpatrick’s
appeal from the district court’s grant of summary judgment de novo, applying the
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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same standards as the district court. Acevedo v. First Union Nat. Bank, 357 F.3d
1244 (11th Cir. 2004).
While there is no dispute that our Constitution permits one to protest
without fear of police action, but in ruling on a motion for summary judgment in a
case where the plaintiff challenges the legality of an investigatory stop, the court
must properly consider all of the circumstances. See United States v.
Alfaro-Moncada, 607 F.3d 720, 730–31 (11th Cir. 2010). On the undisputed facts,
law enforcement had more than adequate Fourth Amendment grounds to stop
Kilpatrick after she drove her van, covered with negative written references to the
ATF and Waco, through the ATF parking lot on the anniversary of the Waco fire
and the Oklahoma City bombing.
“When an officer asserts qualified immunity, the issue is not whether
reasonable suspicion existed in fact, but whether the officer had ‘arguable’
reasonable suspicion to support an investigatory stop.” Jackson v. Sauls, 206 F.3d
1156, 1166 (11th Cir. 2000). It is not unreasonable for a law enforcement officer
to be sensitive to copycat crimes on the anniversary of the Oklahoma City
bombing, which itself was committed on the anniversary of the Waco tragedy. At
the time Kilpatrick was stopped, law enforcement officials were aware of the
following facts:
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C Kilpatrick’s van was seen in the parking lot of the ATF office with
“Boo ATF” and “Remember the children of Waco!” written in large
yellow letters on the windows.
C Kilpatrick’s van was reminiscent of the one used in the Oklahoma
City bombing, it had tinted windows, and it was of a size capable of
containing explosives.
C The anti-ATF messages on the van appeared on the anniversary of the
Waco fire and the Oklahoma City bombing.
C Officers had received a tip linking the driver of the anti-ATF van to
an incident involving the gun dealer who had previously supplied
David Koresh, leader of the Branch Davidians, with weapons.
Based on the totality of those circumstances, the officers had at least arguable
reasonable suspicion to justify the initial stop of Kilpatrick’s van.
Searches of Kilpatrick’s person and van, which followed the stop, were
consensual. At no point was Kilpatrick physically restrained. Although Kilpatrick
argues that she was nevertheless detained by the officers’ show of force in the
form of their flashing blue lights, we reject that argument. Information was
received during the stop that justified further inquiry, and, in any event, Kilpatrick
does not dispute that she consented to the ensuing search of her van. That search
revealed that Kilpatrick had a gun and it was loaded. The officer disarmed (but
did not seize) her loaded gun, leaving both the gun and ammunition with her.
Nothing suggests that the stop and detention and the subsequent consensual
searches lasted longer than necessary to effectuate the stop’s legitimate purposes.
In fact, at some point a journalist with a camera began filming the encounter, and
Kilpatrick spoke with the journalist for ten to fifteen minutes. The entire
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encounter, including Kilpatrick’s conversation with the journalist, lasted about 67
minutes. The undisputed facts show that the duration of the stop was not
unreasonable.
Kilpatrick also requests that we reverse the district court’s grant of
summary judgment on her First Amendment claim because the stop of her vehicle
and searches of her person and van constituted unlawful retaliation for the exercise
of her First Amendment rights. However, Kilpatrick’s counsel conceded at oral
argument that the viability of her First Amendment claim was dependent upon her
Fourth Amendment claim. Because there was reasonable suspicion to support the
initial stop, the duration of the stop was reasonable, and Kilpatrick consented to
the searches of her person and her vehicle, there was no Fourth Amendment
violation and therefore no First Amendment violation. Furthermore, Kilpatrick
has waived any argument that the district court erred by granting summary
judgment on her First Amendment claim and her tort claims because she failed to
make any arguments on those issues in her briefs before this Court. Allstate Ins.
Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994) (“Issues that clearly are not
designated in the initial brief ordinarily are considered abandoned.”).
AFFIRMED.
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