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Ga. Lawyer's Suit Against Deputy Who 'Seized' Her Can Proceed

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By Mark Wilson, Esq. on September 16, 2014 12:14 PM

Lisa West, an attorney, entered the Fulton County Courthouse in Georgia on December 9, 2010. She was wearing a suit jacket and no overcoat. A sheriff's duty told her to remove her suit jacket; she said she wouldn't because it would "improperly expose her undergarments." The deputy said that if she didn't remove the suit jacket, she could leave. If she didn't do either one, she'd be arrested.

West called her husband, also an attorney, while still at the checkpoint. Though there were no signs saying she couldn't have a cell phone, the deputy grabbed her hand, squeezed it, forcing the cell phone out. When a supervisor arrived, he said that she didn't have to remove her jacket. She could be wanded instead, and she could have been wanded from the very beginning.

West filed a lawsuit against the deputy, and last week, the Eleventh Circuit said at least part of it could proceed.

Excessive Force

West, a family law attorney and former city court judge, claimed that she was "seized" within the meaning of the Fourth Amendment and that the deputy used excessive force during the encounter. The court agreed with her: When the deputy grabbed her hand, "West was surely not free to walk away or end the encounter and proceed about her business to the courtroom of the Fulton County Courthouse where she was to meet her client."

The court didn't reach the merits of the excessive force claim because the case came to the Eleventh Circuit on a motion for summary judgment, which the deputy won at district court. The district court granted summary judgment using the wrong test for whether a seizure was proper under the Fourth Amendment.

Dissent: No Fourth Amendment Issue

Judge Fortunato Benavides dissented, believing that there was no seizure within the meaning of the Fourth Amendment. Benavides claimed that West was "seized" only when the deputy grabbed her hand, and this was designed to get her cell phone, not to physically restrain her. (Although it's not clear why the deputy would take her phone if there was no indication that she couldn't be on the phone.)

The majority, however, took a separate section of its opinion to argue against the dissent, emphasizing that the Supreme Court doesn't care why an officer has prevented a person's movement: "Whether Davis intended only to grab West's cell phone is irrelevant where his intentional act resulted in the termination of West's movement."

Benavides also claimed that West was wearing "a bulky wool pea coat," though the majority said she was wearing a suit jacket and no overcoat. This significant fact would seem to go to the reasonableness of the deputy's need to investigate further, and yet neither the majority nor the dissent could agree on it.

One other notable fact: In 2012, West represented Tameka Raymond, the ex-wife of Usher Raymond (yes, the Usher), in a custody dispute.

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