Berry v. City of Montgomery

99 So. 3d 282, 2012 Ala. LEXIS 41, 2012 WL 1139143
CourtSupreme Court of Alabama
DecidedApril 6, 2012
Docket1101435
StatusPublished
Cited by24 cases

This text of 99 So. 3d 282 (Berry v. City of Montgomery) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. City of Montgomery, 99 So. 3d 282, 2012 Ala. LEXIS 41, 2012 WL 1139143 (Ala. 2012).

Opinion

BOLIN, Justice.

The City of Montgomery (“the City”) and its employees, police officers J.J. Oglesby, J.M. Stewart, A.T. Caffey, Q.O. Commander, and N.W. McMahon petition this Court for a writ of mandamus directing the Montgomery Circuit Court to enter a summary judgment in their favor on certain claims asserted against them by Dashad Berry, Kamessa Williams, and Miguel Johnson (hereinafter collectively referred to as “the plaintiffs”).1

Facts

I. Dashad Berry

Dashad Berry is a T-4 paraplegic, paralyzed from the chest down. On March 18, 2009, Jeremy Beamon and Thomas Roberson picked Berry up at his house to go purchase cigarettes. Berry transferred himself from his wheelchair into the backseat of Beamon’s vehicle. Berry’s friends then placed his wheelchair by the front door of Berry’s house. The three left Berry’s house with Beamon driving, Roberson in the front passenger seat, and Berry in the backseat. Approximately one mile from Berry’s residence, the trio encountered a driver’s license checkpoint on Lower Wetumpka Road. When Beamon could not produce a driver’s license, he was directed by a police officer to move his vehicle to a parking area. Officer J.A. Kennedy got Beamon’s contact information and returned to his patrol car to determine if Beamon had a valid driver’s license and any outstanding warrants.

In the meantime, another police officer on the scene smelled marijuana coming from the vehicle and asked Beamon, Roberson, and Berry to get out of the vehicle so that the vehicle could be searched. Beamon and Roberson complied and were seated on the ground next to the vehicle. Berry notified the officer that he was a paraplegic and that he could not get out of the vehicle. Officer J.J. Oglesby, the supervising officer on the scene, was summoned to the vehicle. Berry stated that Officer Oglesby asked him what paraplegic meant and that Berry responded that it meant he had a “complete injury” and that he could not get out of the vehicle without his wheelchair. Berry testified that at the time he had in his possession catheters and lubricating jell. Beamon and Roberson also told the officers that Berry was a paraplegic.

Berry testified that he was told by an officer — whom he could not identify other [286]*286than as being white — that if he did not get out of the vehicle and sit on the ground he would be “Tased.” Berry testified that he then asked the officer if he could telephone his mother to bring his wheelchair to the scene and that the officer replied that “they did not want any mama drama there.” Berry stated that he then asked Beamon to telephone his mother and that the officers told Beamon that if he picked up his cellular telephone he would be placed in the back of a patrol car.

Berry placed his hands behind his back and was handcuffed. Berry was then removed from the vehicle by Officers Ogles-by and Kennedy and was carried a short distance to a patrol car. One officer was behind Berry holding him under the armpits while the other officer was in front of Berry holding him by the legs as they carried him to the patrol car. Berry was placed on the edge of the backseat of the patrol car and Officer Kennedy positioned himself in front of Berry to support him as Officer Oglesby went around to the other side of the patrol car to reach through the backseat to slide Berry into the patrol car. Berry stated that while he was sitting on the edge of the backseat of the patrol car he slid off the seat and fell to the ground, striking his back on the bottom frame of the patrol car. Officer Kennedy stated that Berry slipped out of the backseat and that he caught him and eased Berry down onto the frame of the patrol car. Berry was then lifted up by the officers and placed in the backseat of the patrol car.

Officer Oglesby testified that he did not initially believe that Berry was a paraplegic because there was no wheelchair in the vehicle, Berry was sitting upright in the backseat without using his hands to steady himself, and another officer indicated that he had seen Berry’s leg moving. Officer Oglesby stated that he did not ask Berry what “paraplegic” meant, that he did not threaten to “Tase” him if he did not get out of the vehicle, and that he did not remember Berry asking to telephone his mother. Officer Oglesby stated that it was eventually determined that Berry was indeed paralyzed and would have to be physically removed from the vehicle in order for the vehicle to be searched. Officer Oglesby stated that the safety of the officers searching the vehicle necessitated that Berry be removed from the vehicle. Officer Oglesby testified that he contacted an emergency-room nurse before removing Berry from the vehicle to determine if there were any special precautions that needed to be taken in moving a paraplegic. Officer Oglesby stated that Berry was handcuffed before being removed from the vehicle to ensure that Berry could not grab the officers or their weapons because Berry would be in close proximity to the officers while the officers’ hands were occupied carrying Berry. Officer Oglesby stated that Berry was upset and cursing the officers as they removed him from the vehicle and that he refused to be placed on the ground with Beamon and Roberson.

Berry stated that the officers did not question him while he was in the patrol car. The search of Beamon’s vehicle revealed the presence of marijuana seeds and stems; however, no one was arrested. Beamon was ticketed for failing to have a driver’s license, and the three men were released. Beamon and Roberson moved Berry from the patrol car to Beamon’s vehicle.

Berry testified that his mother took him to the emergency room the next day after he began experiencing pain in his back. Berry was diagnosed with abrasions on his back and was told that his abrasions would take longer to heal because of his paralysis.

[287]*287 II. Kamessa Williams

Kamessa Williams was 88 years old at the time of the incident giving rise to her claims; she suffered from avascular necrosis, “modeeular” necrosis, arthritis, and had had two hip-replacement surgeries. She testified that she has limited range of motion and cannot move quickly.

On July 30, 2009, a police officer was patrolling in the area of Sheldon Lane when an unknown person shot the window out of the officer’s patrol car. The following evening police officers were directed to work a “saturation detail” in the area of Sheldon Lane. The officers were directed to take a zero-tolerance approach toward any illegal activity, including traffic violations. Officers M.A. Engberg and J.M. Stewart were part of the saturation detail. They arrived in the area of Sheldon Lane at approximately 9:00 p.m. and immediately pulled a car over for a traffic violation. The officers got out of their patrol car and made contact with the driver of the vehicle. At the time the officers were making the traffic stop, a large group of people, including Williams, had gathered at Williams’s mother’s mobile home, which was located in close proximity to two other mobile homes approximately 100 yards from the scene of the traffic stop.2 While the officers were conducting the traffic stop, gunshots were fired in their direction from the group that had gathered near Williams’s mother’s mobile home. Officer Engberg testified that he actually saw the muzzle flash of the weapon. Officers Eng-berg and Stewart, along with Officer R.L. Douglas, who was also working the saturation detail, took cover behind the patrol car.

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Cite This Page — Counsel Stack

Bluebook (online)
99 So. 3d 282, 2012 Ala. LEXIS 41, 2012 WL 1139143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-city-of-montgomery-ala-2012.