Motion for Partial Summary Judgment - ACLU of Georgia

Case 1:06-cv-02479-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 30030 

(404) 378-7700 

(404) 378-7708 FAX 

_/s/ Ralph Goldberg__________ 

Ralph Goldberg 

Bar No. 299475 

_/s/ Frank Derrickson________ 

Frank Derrickson 

Bar No. 219350 



(404) 373-5551 

(404) 378-7708 FAX 

Attorneys for Plaintiff








v. : 


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 22. 

2. On February 22, 1991, the Georgia Supreme Court held 

that O.C.G.A. § 40-1-4 was unconstitutional. Cunningham v. 

State, 260 Ga. 827 (1991). 

3. Defendant R.S. Caviness arrested Plaintiff for 

violation of O.C.G.A. § 40-1-4. Specifically, he arrested 

her for the bumper sticker, which is Ex. 1 to his 

deposition. Caviness dep. at 27. 

4. While arresting Plaintiff, Defendant Caviness called 

for backup and took Plaintiff’s license. Caviness dep. at 

12, 28. 

2


5. Defendant Caviness had first read O.C.G.A. § 40-1-4 

three or four years ago. Caviness dep. at 7. 

6. The book from which Defendant Caviness learned of 

O.C.G.A. 40-1-4 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 13-14. 

8. 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 14. 

9. The Gould System has no annotations. Caviness dep. at 

17. 

10. Defendant Caviness consulted the Gould System before 

issuing Plaintiff a citation for violation of O.C.G.A. 

§ 40-1-4. Caviness dep. at 23-24. 

11. If Defendant Caviness looked at the Gould System 

today, O.C.G.A. § 40-1-4 would still be on it. Caviness 

dep. at 30. 





_/s/ Ralph Goldberg__________ 


Bar No. 299475 

3


(404) 378-7700 

(404) 378-7708 FAX 



Bar No. 219350 



(404) 373-5551 

(404) 378-7708 FAX 

Attorneys for Plaintiff 

4








v. : 


Defendants. : 

BRIEF IN SUPPORT 

FACTS 

On February 22, 1991, the Georgia Supreme Court held 

that O.C.G.A. § 40-1-4 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. 17 1 ). 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


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 11-14 with C-23-26. 

What is undisputed is that Defendant Caviness issued 

Plaintiff a citation for violation of O.C.G.A § 40-1-4 (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. § 40-1-4 (C-6). He 

knew about O.C.G.A. § 40-1-4 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


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. § 40-1-4 in the Michie 

Code shows the statute to be unconstitutional. 

7


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-13-14. The Gould System, however, has no 

annotations (C-17). Defendant Caviness consulted the Gould 

system before issuing Plaintiff a traffic citation (C-23- 

8


24). If he looked at the Gould system today, O.C.G.A. 

§ 40-1-4 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 2298186 (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


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, 192-193 (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. § 40-1-4 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


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 

2864254 (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. § 51-7-20 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


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. § 40-1-4 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. 

§ 40-1-4 (C-30). See United States v. Hurley, 755 F.2d 

788, 790 (11 th Cir. 1985); Land v. United Telephone 

Southeast, Inc., 1995 WL 128500 (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. § 40-1-4. 

12


922 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. 

1460 (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. 86-0-331 

(quoting Magistrate's Findings and 

13


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 31115578 (N.D.Ill. 2002). To continue 

to provide codes and computer programs with 

14


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 § 1983. 

The Eleventh Circuit perhaps would not go as far as 

Smith’s holding. In Cooper v. Dillon, 403 F.3d 1208, 1222- 

1227 (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. 112.533(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


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 § 1983. 

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


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 402-403. 

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


City of Talent, 2006 WL 2252594 (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, 1324-1325 

(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 364-65; Evers, 745 F.2d at 

1203; Davis, 657 F.Supp. at 402-04, 

allegations of the latter variety may 

not FN10 provide a remedy against the 

municipality, see Surplus, 928 F.2d at 

790-92; Thompson, 1987 WL 33188 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


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, 

791-92 (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, 

1324-25 (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


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 

120233 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


continues to supply its officers with the Gould System 

which continues to list O.C.G.A. § 40-1-4 as a valid 

statute. As pointed out above, Plaintiff’s arrest in this 

case is a result of a County policy, see Church at 1339. 

Dunn v. Gleason Four, Inc., 2007 WL 2447020 (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. 





(404) 378-7700 

(404) 378-7708 FAX 

_/s/ Ralph Goldberg_______ 


Bar No. 299475 



Bar No. 219350 



(404) 373-5551 

(404) 378-7708 FAX 

Attorneys for Plaintiff 

21


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 


This _5 th _ _ day of _September____, 2007 

_/s/ Ralph Goldberg_________________ 


Attorney for Plaintiff 




(404) 378-7700 

(404) 378-7708 FAX 

22

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