Timothy Watkins v. Brad Perkins ( 2018 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-1598
    ___________________________
    Timothy Watkins
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    Arkansas, State of; Keith Rhodes, Individually
    lllllllllllllllllllll Defendants
    Brad Perkins, Individually
    lllllllllllllllllllll Defendant - Appellee
    Hazen District Court; Billy’s Trucking
    lllllllllllllllllllll Defendants
    David Smith, Individually
    lllllllllllllllllllll Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Little Rock
    ____________
    Submitted: November 23, 2017
    Filed: February 12, 2018
    [Unpublished]
    ____________
    Before SHEPHERD, MURPHY, and KELLY, Circuit Judges.
    ____________
    PER CURIAM.
    Timothy Watkins appeals the district court’s adverse grant of summary
    judgment in his 42 U.S.C. § 1983 action against Arkansas Highway Patrol (AHP)
    officers Brad Perkins and David Smith. We affirm as to Smith, reverse as to Perkins,
    and remand.
    Watkins’ suit stems from a traffic stop on I-40. On April 10, 2011, Perkins was
    monitoring for traffic violations in an unmarked AHP vehicle when he saw a black
    tractor pulling a white trailer that was following too closely behind a white tractor-
    trailer transporting either logs or lumber. Perkins radioed Smith about his
    observations, and as he passed Smith, he radioed that the violator was directly in front
    of him. Smith stopped the vehicle Perkins had identified, which was driven by
    Watkins. Smith told Watkins he’d been following a log truck too closely, and wrote
    him a ticket. Watkins replied that he hadn’t been following a log truck at all, but had
    been following a white van for about 20 miles. Watkins refused to sign the ticket,
    and Smith arrested him and towed his truck. A state court would later acquit Watkins
    of following too closely.
    We have seen this case before. In a prior appeal, we reversed the grant of
    summary judgment on Watkins’ Fourth Amendment claims against Perkins and Smith
    for false arrest and seizure of property, and remanded for further consideration. See
    Watkins v. Perkins, 618 Fed. Appx. 299, 299–301 (8th Cir. 2015) (unpublished per
    curiam). On remand, Perkins and Smith again sought summary judgment. The
    district court granted the motion because it concluded that the evidence established
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    that Perkins and Smith had arguable probable cause to believe a traffic violation had
    occurred, meaning there was no constitutional injury.
    We review grant of summary judgment based on qualified immunity de novo.
    Burton v. St. Louis Bd. of Police Comm’rs, 
    731 F.3d 784
    , 791 (8th Cir. 2013). We
    view the summary judgment record, and all reasonable inferences from it, in the light
    most favorable to Watkins. See Tolan v. Cotton, 
    134 S. Ct. 1861
    , 1866 (2014).
    Summary judgment is only appropriate if “the movant shows that there is no genuine
    issue as to any material fact and the movant is entitled to judgment as a matter of
    law.” Fed. R. Civ. P. 56(a). An officer has probable cause for a warrantless arrest if
    the totality of the circumstances at the time of arrest is enough to lead a reasonable
    person to believe that the defendant has committed an offense. Borgman v. Kedley,
    
    646 F.3d 518
    , 522–23 (8th Cir. 2011).
    There is a fact dispute as to whether Perkins had probable cause to believe that
    Watkins was following another vehicle too closely. Watkins claims he was following
    a white van, not a truck. Moreover, it appears that Perkins’ account of the traffic stop
    has changed over time: Perkins testified in state district court that the vehicle
    Watkins was following was a white van, whereas in county circuit court, he described
    it as a flat bed trailer with a tarp that could have been covering lumber.1 Viewed in
    the light most favorable to Watkins, the record suggests that Perkins may have told
    Smith to stop the wrong truck. See United States v. Washington, 
    455 F.3d 824
    , 826
    (8th Cir. 2006) (under Fourth Amendment, traffic stop is reasonable if it is supported
    1
    We note that while Watkins’ testimony describing Perkins’ conflicting
    testimony in state court is not admissible evidence, see Mason v. Corr. Med. Servs.,
    Inc., 
    559 F.3d 880
    , 885 (8th Cir. 2009) (nonmoving party cannot rely on inadmissible
    hearsay to avoid summary judgment), Perkins’ state-court testimony would be a
    matter of public record, and defendants did not counter Watkins’ testimony in this
    case that Perkins changed his story about the type of vehicle he had observed Perkins
    following too closely.
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    by probable cause that driver committed any traffic violation, but officer must have
    objectively reasonable basis for believing driver had committed violation). And, of
    course, an officer lacks arguable probable cause to arrest someone he hasn’t seen do
    anything wrong. Accordingly, Perkins is not entitled to summary judgment.
    There is no fact dispute as to Smith’s liability—he was merely doing what
    Perkins asked. It is undisputed that Smith stopped the tractor-trailer Perkins
    identified as the one following another vehicle too closely, and there is nothing in the
    record indicating that he did not reasonably rely on Perkins’ report. Cf. United States
    v. Williams, 
    429 F.3d 767
    , 771–72 (8th Cir. 2005) (collective knowledge of team of
    officers was sufficient to provide reasonable suspicion to stop vehicle, and such
    knowledge was imputed to officer on scene when he received another officer's
    radioed request).
    Accordingly, we affirm the grant of summary judgment to Smith, we reverse
    the grant of summary judgment to Perkins, and remand for further proceedings
    consistent with this opinion.2
    SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
    I agree that the grant of summary judgment as to Smith should be affirmed as
    Smith reasonably relied on Perkins’s identification in stopping the black tractor
    pulling a white trailer driven by Watkins, for following another vehicle too closely
    in violation of Arkansas law. I disagree, however, that a jury issue exists as to
    whether Perkins had an objectively reasonable belief that Watkins’s vehicle, which
    Smith stopped at Perkins’s direction, was one and the same as the vehicle he observed
    2
    We decline to address the other matters Watkins raises in his pro se brief,
    many of which were decided conclusively in the prior appeal. See Yankton Sioux
    Tribe v. Podhradsky, 
    606 F.3d 994
    , 1005 (8th Cir. 2010) (discussing “law of the case
    doctrine”).
    following another vehicle too closely. Accordingly, I would also affirm the district
    court’s grant of summary judgment to Perkins.
    The majority bases its conclusion that this jury issue exists solely on the
    representations by Watkins that conflicting statements were made by Smith and
    Perkins as to the description of the vehicle which Watkins was following. Accepting
    Watkins’s recollection of Smith and Perkins’s statements, however, it is not
    contended that either officer made a conflicting statement as to the description of
    Watkins’s vehicle, the offending black tractor pulling a white trailer. Further, we are
    directed to nothing in the summary judgment record which calls into question
    Perkins’s statement that the vehicle Smith stopped was the same vehicle which
    Watkins’s observed violating the Arkansas traffic law.
    Finding no jury issue as to whether probable cause existed supporting Watkins’
    stop for following too closely, I would affirm the district court’s grant of summary
    judgment to both Smith and Perkins.
    ______________________________
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