Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 1 of 22

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1 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DENISE GRIER, : CIVIL ACTION NO. Plaintiff, : 1:06-CV-2479-GET v. : DEKALB COUNTY, et al., : Defendants. : MOTION FOR PARTIAL SUMMARY JUDGMENT COMES NOW, Plaintiff and moves for partial summary judgment as to the liability of Defendants Caviness and DeKalb County for declaratory relief and damages. Respectfully submitted, Goldberg & Cuvillier, P.C. 755 Commerce Drive, Ste. 600 Decatur, GA (404) (404) FAX _/s/ Ralph Goldberg Ralph Goldberg Bar No _/s/ Frank Derrickson Frank Derrickson Bar No Commerce Drive, Ste. 600 Decatur, GA (404) (404) FAX Attorneys for Plaintiff

2 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 2 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DENISE GRIER, : CIVIL ACTION NO. Plaintiff, : 1:06-CV-2479-GET v. : DEKALB COUNTY, et al., : Defendants. : STATEMENT OF UNDISPUTED FACTS 1. Defendant R.S. Caviness acted under color of state law in arresting Plaintiff (Caviness dep. at 13, 21-22). During the time he stopped Plaintiff, she was not free to leave. Id. at 13. He had not stopped her for driving too fast or for weaving. Id. at On February 22, 1991, the Georgia Supreme Court held that O.C.G.A was unconstitutional. Cunningham v. State, 260 Ga. 827 (1991). 3. Defendant R.S. Caviness arrested Plaintiff for violation of O.C.G.A Specifically, he arrested her for the bumper sticker, which is Ex. 1 to his deposition. Caviness dep. at While arresting Plaintiff, Defendant Caviness called for backup and took Plaintiff s license. Caviness dep. at 12, 28. 2

3 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 3 of Defendant Caviness had first read O.C.G.A three or four years ago. Caviness dep. at The book from which Defendant Caviness learned of O.C.G.A was issued by DeKalb County, Caviness dep. at 21, years after the Cunningham decision. 7. DeKalb County uses a software program called the Gould System. Caviness dep. at The Advanced Technologies Unit places the software on the hard drives of the laptops used in police vehicles. Police officers cannot change what is on the computers. Id. at The Gould System has no annotations. Caviness dep. at Defendant Caviness consulted the Gould System before issuing Plaintiff a citation for violation of O.C.G.A Caviness dep. at If Defendant Caviness looked at the Gould System today, O.C.G.A would still be on it. Caviness dep. at 30. Respectfully submitted, Goldberg & Cuvillier, P.C. 755 Commerce Drive, Ste. 600 Decatur, GA _/s/ Ralph Goldberg Ralph Goldberg Bar No

4 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 4 of 22 (404) (404) FAX _/s/ Frank Derrickson Frank Derrickson Bar No Commerce Drive, Ste. 600 Decatur, GA (404) (404) FAX Attorneys for Plaintiff 4

5 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 5 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DENISE GRIER, : CIVIL ACTION NO. Plaintiff, : 1:06-CV-2479-GET v. : DEKALB COUNTY, et al., : Defendants. : BRIEF IN SUPPORT FACTS On February 22, 1991, the Georgia Supreme Court held that O.C.G.A was unconstitutional. Cunningham v. State, 260 Ga. 827 (1991). On March 10, 2006, Plaintiff and a friend were driving home from dinner (para. 7 of the Complaint). They were arrested by Defendant Caviness (Answer to Interr ). In deposition, Defendant Caviness at first quibbled about whether he had arrested Plaintiff (Caviness dep. at 12, hereafter C- ), but thereafter, he admitted he had arrested Plaintiff (C-21-22, 13). 1 It is hard to take the answer seriously since counsel in deference of F.R.C.P 11 made no effort to talk to his clients. Instead we received answers like in paragraph 5 that Mr. Caviness does not know whether he is an officer of the DeKalb County Police Department or not. 5

6 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 6 of 22 He stopped her for having a bumper sticker that read, I am tired of all of the BUSHIT. (Ex. 1 to Caviness dep.). What happened next is disputed. Compare the answers to Defendants first interrogatories at question 4 and Grier dep. at with C What is undisputed is that Defendant Caviness issued Plaintiff a citation for violation of O.C.G.A (C- 27). According to Defendant Caviness he did not see the word BUSH in BUSHIT but saw bullshit instead (C-27). He took a picture but still saw the word bullshit. What is also undisputed is that Defendant Caviness called for backup (C-28) and took Plaintiff s license for 5 minutes (C-12, 28), during which time Ms. Grier was not free to leave. Plaintiff was given a citation (C-13). The officer had not stopped Plaintiff for any other reason (C- 22). This was the first time Defendant Caviness had arrested someone for violating O.C.G.A (C-6). He knew about O.C.G.A because he had previously stumbled upon the Code section 3 or 4 years ago (C-7). The officer testified it was an Official Code of Georgia law 6

7 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 7 of 22 book, id., which was both annotated and unannotated (C-8) 2. This book had been issued by DeKalb County (C-21) 3. There is also a software program (C-13). A. The software is issued by DeKalb County. I didn t particularly get it from anywhere. It is updated on our laptops that we use in our police cars. Q. So, for example when you pull in behind somebody and you wonder what the elements of a particular offense are, you can go to the software, and the software will tell you, for example, this is the right statute, this is what the statute says, so you get it right before you go arrest somebody for it; right? A. Yes. Q. Okay. And this is provided by DeKalb County; right? A. Yes, sir. Q. And updated by DeKalb County; right? A. Yes, sir. Q. And you have no hand in saying this is what should be on the software, or this should not be on the software; right? Q. Does this software have a name? 2 Maybe just annotated (C-8, lines 20-24). It was unclear what he was reading because Title 16 and 40 were in the same book (C-10). 3 The only annotation to O.C.G.A in the Michie Code shows the statute to be unconstitutional. 7

8 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 8 of 22 A. I think it is pronounced Gould, G- O-U-L-D, Law. I think they re the publishers, but I m not 100 percent sure on that. Q. Okay. Now, I apologize. I m just not computer literate, but let me try. This isn t like a disk they give you? You actually have a way to tap into DeKalb County Police s -- the general computer? A. Every police car is equipped I say every, but most police cars are equipped with laptop computers that we run information on: personal information, drivers license information, and so forth. One of the programs they have on that computer is the Official Code of Georgia Handbook. This is just on the computer as opposed to having a book in front of you. I have no hand in placing that software on that computer. Q. Right. A. No, I do not. That is placed on the hard drive by our Advanced Technologies Unit. Police officers, we can t even access what is on that computer. What I mean by that, nothing can be changed. It s password protected so nobody can go in there and just take stuff and put stuff on. Q. Right. But you can access it? You just can t change what s on there? A. Yes, sir. Id. at C The Gould System, however, has no annotations (C-17). Defendant Caviness consulted the Gould system before issuing Plaintiff a traffic citation (C-23-8

9 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 9 of 22 24). If he looked at the Gould system today, O.C.G.A would still be on the system (C-30). I. DEFENDANT CAVINESS VIOLATED PLAINTIFF S FOURTH AMENDMENT RIGHTS BY SEIZING HER In Whren v. United States, 517 U.S. 806, 809 (1996), the Supreme Court held, Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of [the Fourth Amendment]. Accord Brendlin v. California, 127 S.Ct. 2400, 2401 (2007). For Fourth Amendment purposes, the question then is whether the seizure was lawful. See United States v. Botero- Ospina, 71 F.3d 783, 787 (10 th Cir. 1995)(en banc); Scheuerman v. City of Huntsville, 2007 WL (N.D.Ala. 2007). Slip at 8. A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. Q. And why did you stop her? A. I stopped her for what I believed was a valid law on a lewd and profane decal that she had affixed to her bumper... 9

10 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 10 of 22 Q. It wasn t for driving too fast or weaving or any of that other stuff? A. No, sir. (C-22). Defendant Caviness violated Plaintiff s Fourth Amendment rights. II. DEFENDANT CAVINESS VIOLATED PLAINTIFF S RIGHTS UNDER ARTICLE I, SECTION I, PARAGRAPH I OF THE GEORGIA CONSTITUTION In Long v. Jones, 208 Ga.App. 798 (1993), the Court held that a citizen could sue directly under the Georgia Constitution to enforce her state constitutional rights. The arrest without probable cause violated Plaintiff s rights under Article I, Section, I, Paragraph I. Goodwin v. Allen, 89 Ga.App. 187, (1953); Cutsinger v. City of Atlanta, 142 Ga. 555 (1914) (protection against arbitrary power). III. DEFENDANT CAVINESS VIOLATED PLAINTIFF S FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION In Cunningham v. State, 260 Ga. 827 (1991) the Court held that O.C.G.A was unconstitutional under the First Amendment and Georgia Constitution. Id. at 827 citing Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) and Cohen v. California, 403 U.S. 15 (1971). 10

11 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 11 of 22 Defendant is liable for the arrest in violation of First Amendment rights. See Walker v. Briley, 140 F.Supp.2d 1249 (N.D.Ala. 2001); J.S. v. Campbell, 2006 WL (M.D.Ala. 2006). See also Johnson v. Bax, 63 F.3d 154 (2 nd Cir. 1995); Cannon v. City and County of Denver, 998 F.2d 867, 874 (10 th Cir. 1993) 4. Cf. Perry v. Los Angeles Police Dept., 121 F.3d 1365, 1368 (9 th Cir. 1997). IV. DEFENDANT CAVINESS VIOLATED PLAINTIFF S RIGHTS UNDER ARTICLE I, SECTION I, PARAGRAPH V OF THE GEORGIA CONSTITUTION Speech that is not abusive is absolutely protected by the Georgia Constitution and cannot be abridged, curtailed or restrained in any degree for any period of time no matter how short. K. Gordon Murray Productions, Inc. v. Floyd, 217 Ga. 784 (1962). Plaintiff s speech was not abusive. Cunningham, supra. Under Long v. Allen, supra, Plaintiff s constitutional rights were violated. V. DEFENDANT CAVINESS FALSELY IMPRISONED PLAINTIFF Under O.C.G.A false imprisonment consists of the unlawful detention of the person of another, for any length of time, whereby that person is deprived of his 4 Defendant Caviness has no qualified immunity in light of Cunningham, supra. See Courson v. McMillian, 939 F.2d 1479, fn. 32 (11 th Cir. 1991); Jenkins by Hall v. Talladega City Bd. of Ed., 115 F.3d 821, fn. 4 (11 th Cir. 1997). 11

12 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 12 of 22 physical liberty. Given that Mr. Caviness stopped Plaintiff and then temporarily took her license, he falsely imprisoned her. Burrow v. K-Mart Corp., 166 Ga.App. 284, 287 (1983). VI. DEFENDANT COUNTY IS LIABLE FOR CONSCIOUSLY ALLOWING ITS OFFICERS TO ARREST BASED ON AN UNCONSTITUTIONAL STATUE As set out above at 6-9, the County consciously chose to provide codes and a Gould system which informed officers they could arrest under O.C.G.A despite the fact that the statute had been declared unconstitutional 5. It was the County s deliberate choice to use these systems rather than, for example, WESTLAW. Indeed, the County continues to use the same system (C-30) which still tells DeKalb officers they can arrest for violations of O.C.G.A (C-30). See United States v. Hurley, 755 F.2d 788, 790 (11 th Cir. 1985); Land v. United Telephone Southeast, Inc., 1995 WL (D.Kans. 1995) at 4-5 (corporate intent). It follows from Monell that where an unconstitutional policy causes a violation of Plaintiff s rights, the County has liability. Monell v. New York Dept. of Social Serv., 436 U.S. 658 (1978). See e.g. Buffkins v. City of Omaha, 5 And Mr. Caviness in fact consulted the system before he arrested Plaintiff for violation of O.C.G.A

13 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 13 of F.2d 465 (8 th Cir. 1990) (unconstitutional disorderly conduct ordinance); Matthias v. Bingley, 906 F.2d 1047 (5 th cir. 1990)(unconstitutional ordinance controlling disposition of private property in police custody). In Buffkins, a case closely analogous to the one herein, plaintiff was arrested under an unconstitutional ordinance that had been declared unconstitutionally suspect and later unconstitutional, but had never been repealed. In 1985, the Nebraska Supreme Court observed that subsection (c) of the disorderly conduct ordinance was unconstitutionally suspect but held that in the particular case the defendant lacked standing to challenge the subsection. State v. Groves, 219 Neb. 382, 385, 363 N.W.2d 507, 510 (1985). Four years later, the United States District Court for the District of Nebraska declared the unreasonable noise subsection of the Omaha disorderly conduct ordinance (subsection (c)) unconstitutional. Langford v. City of Omaha, 755 F.Supp (1989). The court reached the inescapable conclusion: that the instant ordinance, using no more than the word unreasonable to define what noise is prohibited and being void of indication as to whose sensitivity shall measure a violation lacks that definiteness, both in notice of what conduct is prescribed and in establishment of guidelines for enforcement which precedent has firmly declared to be essential. Langford v. City of Omaha, CV (quoting Magistrate's Findings and 13

14 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 14 of 22 Recommendations, slip op. at 13). Based on the holding in Langford v. City of Omaha, the trial court in the present case declared section 20-42(c) of the Omaha disorderly conduct ordinance unconstitutional and granted Buffkins' summary judgment motion with respect to her claim that section 20-42(c) is facially unconstitutional. At the time of Buffkins' arrest, the City of Omaha had not repealed subsection (c) of the disorderly conduct ordinance even though the Nebraska Supreme Court had questioned the constitutionality of that subsection approximately two years before Buffkins was arrested. Moreover, when the Nebraska federal district court finally declared section 20-42(c) unconstitutional, it relied on caselaw that clearly predated the arrest of Buffkins. In addition, at the time of Buffkins' arrest, several other federal courts had held statutes or ordinances with provisions similar to subsection (c) of the Omaha disorderly conduct ordinance unconstitutional. See, e.g., Pritikin v. Thurman, 311 F.Supp. 1400, 1402 (S.D.Fla.1970); Original Fayette County Civic & Welfare League, Inc. v. Ellington, 309 F.Supp. 89, 92 (W.D.Tenn.1970). As a result of the City's failure to repeal subsection (c), Officers Friend and Grigsby relied on the unconstitutional portion of the disorderly conduct ordinance to arrest Buffkins. We therefore hold the City of Omaha was improperly dismissed as a party defendant in this lawsuit. In similar manner, the County continues to enforce an unconstitutional statute herein. Compare Thompson v. City of Chicago, 2002 WL (N.D.Ill. 2002). To continue to provide codes and computer programs with 14

15 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 15 of 22 unconstitutional code sections contained therein seems akin to incorporating unconstitutional state law into local ordinances, codes or written polices. In Smith v. City of Dayton, 68 F.Supp.2d 911, 918 (S.D.Ohio 1999), the Court held that a Monell entity may be liable under 1983 for carrying out an unconstitutional state law, even though the law has not yet been held unconstitutional citing Kallstrom v. City of Columbus, 136 F.3d 1055 (6 th Cir. 1998). At fn. 5, the Smith Court noted, This is not a case where a city was carrying out a state law which had already been held unconstitutional, which would clearly come within The Eleventh Circuit perhaps would not go as far as Smith s holding. In Cooper v. Dillon, 403 F.3d 1208, (11 th Cir. 2005), the Court noted, we reject Dillon's argument that, based on the reasoning in Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir.1991), Key West cannot be liable for enforcing an unconstitutional state statute which the municipality did not promulgate or adopt. First, 1983 liability is appropriate because Key West did adopt the unconstitutional proscriptions in FLA. STAT. ch (4) as its own. See KEY WEST, FLA., CODE OF ORDINANCES 42-1 ( It shall be unlawful for any person to commit, within the city limits, any act which is or shall be recognized by the laws of the state as an offense. ). Second, Surplus Store is inapposite because it involved the 15

16 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 16 of 22 enforcement of a state statute by a municipal police officer who was not in a policymaking position. See 928 F.2d at 788. In this case, by contrast, Dillon was clothed with final policymaking authority for law enforcement matters in Key West and in this capacity he chose to enforce the statute against Cooper. While the unconstitutional statute authorized Dillon to act, it was his deliberate decision to enforce the statute that ultimately deprived Cooper of constitutional rights and therefore triggered municipal liability. See McKusick v. City of Melbourne, 96 F.3d 478, 484 (11th Cir.1996) (finding 1983 liability could exist where the decision of how and when to enforce an injunction resulted in deprivation of constitutional rights). Thus, Dillon's decision to enforce an unconstitutional statute against Cooper constituted a deliberate choice to follow a course of action... made from among various alternatives by the official or officials responsible for establishing final policy. Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300; see McKusick, 96 F.3d at 484 (noting that the City could elect not to arrest anyone at all ). Accordingly, we find that the City of Key West, through the actions of Dillon, adopted a policy that caused the deprivation of Cooper's constitutional rights which rendered the municipality liable under In other words, the Court did not reach the issue of the Monell entity s liability for enforcing state law under Delphi. Cooper is not a case where the statute was already declared unconstitutional. In this case moreover, although 16

17 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 17 of 22 the policy maker is unidentified, it is clear that there has been a deliberate choice to follow a course of action... made from among various alternatives by the official or officials responsible for establishing final policy. That is why the codes given out to the officers still contain the unconstitutional statute. It is why DeKalb County purchased and used and continues to use the Gould system which contains the unconstitutional statute. In Davis v. City of Camden, 657 F.Supp. 396 (D.N.J. 1987), the Court engaged in a lengthy discussion of why the Monell entity is liable for implementing unlawful, yet state mandated policies and Plaintiff respectfully refers the Court to the opinion at Relying on Davis, the Court in Conroy v. City of Philadelphia, 421 F.Supp.2d 879, 886 (E.D.Pa. 2006) held that a Monell entity may be held liable where it has, in some way, affirmatively adopted the policy or custom - albeit one that is required by the state which is the driving force behind the alleged violation. As pointed out above, DeKalb did in some way adopt the state statute by continuing to provide it to the officers in the code and the Gould system. Accord Community Health Care Ass n. v. DeParle, 69 F.Supp.2d 463, 475 (S.D.NY 1999), Thomas v. 17

18 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 18 of 22 City of Talent, 2006 WL (D.Ore. 2006). Cf. EEOC v. State of Illinois, 69 F.3d 167, 169 (7 th Cir. 1995). In Caminero v. Rand, 882 F.Supp. 1319, (S.D.NY 1995), the Court distilled these holdings as follows, The Court believes, however, that these four cases, along with Koster, suggest a reasoned distinction between (1) cases in which a plaintiff alleges that a municipality inflicted a constitutional deprivation by adopting an unconstitutional policy that was in some way authorized or mandated by state law and (2) cases in which a plaintiff alleges that a municipality, which adopted no specific policy in the area at issue, caused a constitutional deprivation by simply enforcing state law. While allegations of the former type have been found to provide a basis for Section 1983 liability, see Garner, 8 F.3d at ; Evers, 745 F.2d at 1203; Davis, 657 F.Supp. at , allegations of the latter variety may not FN10 provide a remedy against the municipality, see Surplus, 928 F.2d at ; Thompson, 1987 WL at *5-6. FN10. Because the Court finds Plaintiff's claim to be of the former variety, it makes no finding as to whether a claim of the latter type can support Section 1983 liability. See also Bethesda Lutheran Homes and Services, Inc. v. Leean, 154 F.3d 716, 718 (7 th Cir. 1998). The district court turned them down on the grounds that while a county does not have the shield of the Eleventh Amendment, it cannot be held liable 18

19 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 19 of 22 herein. under section 1983 for acts that it did under the command of state or federal law. That at least is the position of this circuit, Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir.1995); Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, (7th Cir.1991), and also of the Sixth Circuit. Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir.1993). The Ninth Circuit held the contrary in Evers v. County of Custer, 745 F.2d 1196, 1203 (9th Cir.1984). The circuit split is discussed helpfully in Caminero v. Rand, 882 F.Supp. 1319, (S.D.N.Y.1995), except that the opinion erroneously classifies Garner with Evers. Garner merely distinguishes between the state's command (which insulates the local government from liability) and the state's authorization (which does not). That is entirely consistent with Quinones and Surplus Store. And consistent with the argument Plaintiff makes As the Georgia Supreme Court noted in 105 Floyd Road, Inc. v. Crisp County, 279 Ga. 825 (2005), It is well established that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. Under those circumstances, it is hard to see how DeKalb County was enforcing state law at all. It is subject to Monell liability. 19

20 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 20 of 22 VII. PLAINTIFF IS ENTITLED TO DECLARATORY RELIEF Plaintiff is entitled to declaratory relief against DeKalb County that the unconstitutional statute applied to her conduct deprived her of constitutional rights. Here Plaintiff has requested nominal damages. A plaintiff s pursuit of nominal damages provides a sufficiently concrete interest in the outcome of the litigation to confer standing to pursue declaratory relief. Yniquez v. State, 975 F.2d 646, 647 (9 th Cir. 1992) and cases cited; Murray v. Bd. of Trustees, 659 F.2d 77, 79 (6 th Cir. 1981); F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10 th Cir. 1995); Crue v. Aiken, 370 F.3d 668, 678 (7 th Cir. 2004); Pucket v. Rounds, 2006 WL at 6 (D.SD 2006). In the instant case Defendants do not concede they have done anything wrong. A live controversy remains. Plaintiff is entitled to a declaratory judgment as set forth above. Indeed, Plaintiff believes that she has standing to seek a declaratory judgment that future arrests on this statute will violate her constitutional rights. See Church v. City of Huntsville, 30 F.3d 1332, 1338 (11 th Cir. 1994). Two facts from the litigation are important. One is that Plaintiff still has the BUSHIT bumper sticker on her car and is not removing it. The other is that DeKalb County 20

21 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 21 of 22 continues to supply its officers with the Gould System which continues to list O.C.G.A as a valid statute. As pointed out above, Plaintiff s arrest in this case is a result of a County policy, see Church at Dunn v. Gleason Four, Inc., 2007 WL (M.D.Fla. 2007). VIII. CONCLUSION Plaintiff is entitled to partial summary judgment on all issues, but the amount of damages. Whether the officer has official immunity also remains for jury consideration. Respectfully submitted, Goldberg & Cuvillier, P.C. 755 Commerce Drive, Ste. 600 Decatur, GA (404) (404) FAX _/s/ Ralph Goldberg Ralph Goldberg Bar No _/s/ Frank Derrickson Frank Derrickson Bar No Commerce Drive, Ste. 600 Decatur, GA (404) (404) FAX Attorneys for Plaintiff 21

22 Case 1:06-cv GET Document 25 Filed 09/05/2007 Page 22 of 22 CERTIFICATE OF SERVICE This is to certify that I have this day served counsel of record for the opposing party in the foregoing matter with a copy of this document by depositing in United States Mail copies of the same in properly addressed envelopes with adequate postage thereon or by notification of electronic filing. Stephen E. Whitted Senior Assistant County Attorney 1300 Commerce Dr., 5 th Floor Decatur, GA This _5 th day of _September, 2007 _/s/ Ralph Goldberg Ralph Goldberg Attorney for Plaintiff Goldberg & Cuvillier, P.C. 755 Commerce Drive, Ste. 600 Decatur, GA (404) (404) FAX 22