Andrew Burnett v. Unified Government of Athens'Clarke County, GA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10324 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 3, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cv-00004-CDL
ANDREW BURNETT,
lllllllllllllllllllll Plaintiff - Appellant,
versus
UNIFIED GOVERNMENT OF
ATHENS-CLARKE COUNTY, GEORGIA,
JOSEPH H. LUMPKIN, SR.,
Chief of Police,
IRA EDWARDS,
Sheriff,
CHRISTOPHER B. WRIGHT,
SCOTT SIMPSON, et al.,
lllllllllllllllllllll Defendants - Appellees,
ATHENS-CLARKE COUNTY POLICE DEPARTMENT, et al.,
lllllllllllllllllllll Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 3, 2010)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Andrew Burnett, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of the defendants, police officers Christopher Wright,
Laura Guest, and Scott Simpson. Burnett brought a claim against the defendants
under 42 U.S.C. § 1983, alleging that they violated his Fourth Amendment rights.
Burnett contends that the district court erred by finding that the arresting officers
were entitled to qualified immunity on his malicious prosecution claim. He also
contends that the district court abused its discretion by awarding costs to the
defendants.
I.
We review de novo a district court’s grant of qualified immunity and
resolve all issues of material fact in favor of the non-moving party. Bryant v.
Jones, 575 F.3d 1281, 1294 (11th Cir. 2009). “To be eligible for qualified
immunity, the official must first establish that he was performing a ‘discretionary
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function’ at the time the alleged violation of federal law occurred.” Crosby v.
Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). If the official makes that
showing, “the plaintiff bears the burden of demonstrating that the official is not
entitled to qualified immunity.” Id. The plaintiff must show that the defendant
has committed a constitutional violation and that the constitutional right the
defendant violated was clearly established when the violation occurred. Id.A.
“To determine whether an official was engaged in a discretionary function,
we consider whether the acts the official undertook are of a type that fell within
the employee’s job responsibilities.” Id. (quotation marks omitted). There can be
no serious dispute that the police officer defendants in the present case were acting
within their discretionary authority when they stopped Burnett and arrested him
for racing and driving under the influence of alcohol. The official responsibilities
of a police officer on patrol include making traffic stops and arresting people who
are suspected of committing traffic violations. See id.; see also Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002) (“[T]here can be no doubt that [the
defendant police officer] was acting in his discretionary capacity when he
arrested” the plaintiff.). Thus, despite Burnett’s arguments to the contrary, the
district court correctly shifted the burden to Burnett to show that the officers were
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not entitled to qualified immunity. See Lee, 284 F.3d at 1194.
B.
Viewing the facts in the light most favorable to Burnett, the officers had
arguable probable cause to arrest him for racing. See Crosby, 394 F.3d at 1332(“Qualified immunity applies when there was arguable probable cause for an arrest
even if actual probable cause did not exist. Arguable probable cause exists if,
under all of the facts and circumstances, an officer reasonably could—not
necessarily would—have believed that probable cause was present.”). Burnett
testified in his deposition that he was driving a truck with holes in the muffler, and
the truck was loud while idling or driving. He also testified that he was driving
about forty miles per hour.
That testimony supports Officer Wright’s statement that he heard the truck’s
loud motor and then saw the truck and another vehicle accelerate from a stop and
travel at a high rate of speed for a short distance. Based on those observations, a
police officer reasonably could have believed that there was probable cause to
arrest Burnett for racing. See Ga. Code § 40-6-186(a)(2), (b) (making racing a
crime and defining it as “the use of one or more vehicles in an attempt to outgain,
outdistance, or prevent another vehicle from passing”); cf. Dodd v. State, 422
S.E.2d 313, 314 (Ga. Ct. App. 1992) (holding that there was enough evidence to
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find defendants guilty of racing where officers heard the sound of two cars
“accelerating at a high rate of speed,” observed them going above the speed limit,
and believed the cars were trying to outrun each other, even though the distance
between the two cars stayed the same).
Even though Officers Guest and Simpson did not personally observe what
Officer Wright witnessed, they reasonably relied on the information that Wright
provided about the suspected racing offense. See United States v. Willis, 759 F.2d
1486, 1494 (11th Cir. 1985) (quotation marks and alteration omitted) (“Probable
cause exists where the facts and circumstances within the collective knowledge of
law enforcement officials, of which they had reasonably trustworthy information,
are sufficient to cause a person of reasonable caution to believe that an offense has
been or is being committed.”). Guest and Simpson had arguable probable cause to
stop Burnett and arrest him for racing. Because there was arguable probable cause
to arrest Burnett for that offense, the defendants are entitled to qualified immunity.
See Brown v. City of Huntsville, Ala., 608 F.3d 724, 735 (11th Cir. 2010) (“If the
arresting officer had arguable probable cause to arrest for any offense, qualified
immunity will apply.”).1
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Burnett also contends that the officers lacked arguable probable cause to arrest him for
DUI even though Burnett later testified he had consumed three or four beers on the night of the
arrest, Officer Wright smelled alcohol on Burnett’s breath, and he refused to take a required,
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Accordingly, we affirm the district court’s grant of summary judgment with
regard to Burnett’s malicious prosecution claim against the officers. See Wood v.
Kesler, 323 F.3d 872, 881 (11th Cir. 2003) (“To establish a federal malicious
prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth
Amendment right to be free from unreasonable seizures in addition to the elements
of the common law tort of malicious prosecution.”).
II.
Burnett also contends that the district court abused its discretion by ordering
him to pay costs to the defendants. “Appellate jurisdiction is limited to final
decisions of the district court.” Mekdeci v. Merrell Nat’l Lab., 711 F.2d 1510,
1523 (11th Cir. 1983). The district court has not fixed the amount of costs that
Burnett will be required to pay. Therefore, the award is not final and we lack
jurisdiction to consider this issue. See id. (“Here, the order in controversy is not
final. While the district court has announced its intention to award costs to [the
defendant], it has yet to fix the amount.”).
AFFIRMED IN PART, DISMISSED IN PART.
state-administered chemical test. We need not address the arrest for DUI because we have
already determined that there was arguable probable cause to support Burnett’s arrest for racing.
See Brown, 608 F.3d at 735.
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