govinfo:USCOURTS-gand-1_24-cv-01163-0

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
DWIGHT SMITH, CATHERINE 
SMITH, and BRYANT SMITH, 
 
  Plaintiffs,  CIVIL ACTION NO. 
 v.  1:24-CV-1163-SEG 
CITY OF JOHNS CREEK, et al.,  
  Defendants.  
 
MEMORANDUM OPINION 
This matter is before the Court on Plaintiffs’ motion for partial summary 
judgment with respect to  their Fourth Amendment unlawful seizure and 
excessive force claims against Defendant James Tait (Doc 40), and Defendant 
Tait’s cross-motion for summary judgment on all claims asserted against him 
(Doc. 44.)  After careful consideration, the Court enters the following 
memorandum opinion.   
  
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I. Factual Background1  
This case stems from a 911 call abou t an errant and ya ppy chihuahua.  
The 911 caller was Mandy Rahjans, a ne ighbor with whom Plaintiffs have 
previously had many disputes. 2  (Rahjans 911 Call, Doc.  40-18.)  On the call, 
Ms. Rahjans pleaded with police to “come quick” because Plaintiffs’ dog was 
“trying to attack” her and had previously bitten her sister.  (Id.)   
A. Officer Ehrenreich’s Response to the 911 Call 
At approximately 8:02 AM on April 19, 2021, Officer Eric Ehrenreich 
arrived at a cul-de-sac outside of Plaintiffs’ residence at 480 Leasingham Way 
in Duluth, Georgia.  (Ehrenreich Body-worn Camera (“BWC”), Doc. 40-12 at 
 
1 The facts in this section are drawn fr om the parties’ statements of material 
fact, see LR 56.1(B), NDGa., and, as necessary, from the underlying record.  
The Court has viewed the evidence and drawn all factual inferences in the light 
most favorable to the nonmoving parties.  Johnson v. Clifton , 74 F.3d 1087, 
1090 (11th Cir. 1996).  If the Court in cludes a proposed fact to which an 
objection was asserted , but there is no discussion of the objection, then the 
parties may assume that the Court considered and rejected it. 
 
2 See, e.g., Smith v. Lifeline Animal Project, Inc., No. 1:22-CV-2325-SEG, 2024 
WL 1243022 (N.D. Ga . Feb. 16, 2024), aff’d sub nom.  Smith v. City of Johns 
Creek, No. 24-10815, 2025 WL 3131 65 (11th Cir. Jan. 28, 2025); Smith v. 
Fulton Cnty., No. 1:22-CV-2471-SEG, 2023 WL 10325341 (N.D. Ga. Mar. 7, 
2023), reconsideration denied  in part sub nom.  Smith v. Lall , No. 1:22-CV-
2471-SEG, 2024 WL 1007424 (N.D. Ga. Feb. 20, 2024); Devlin Rajhans v. 
Smith, No. 24-cv-197-SEG (N.D. Ga.); Mandeep Rajhans v. Smith, No. 1:23-cv-
3250-SEG (N.D. Ga.); Devlin Rajhans v. Smith , No. 1:23-cv-3251-SEG (N.D. 
Ga.); Mandeep Rajhans v. Smith, No. 1:23-cv-4889-SEG (N.D. Ga.). 
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08:02:30-08:02:50.)3  Upon exiting his police ve hicle, Officer Ehrenreich 
encountered an unidentified man who told him that the 911 caller had just left.  
(Id. at 08:02:45-08:03:05.)  He also ob served, in his wo rds, “a 5-pound 
chihuahua.”  (Id.)  Seeing humor in the situation, Officer Ehrenreich asked, “Is 
that the dangerous do g that’s out here ravaging people?”  ( Id.)  Officer 
Ehrenreich then spoke to an elderly woman at the house adjacent to Plaintiffs’ 
who appeared to be relate d to the 911 caller.  ( Id. at 08:03:15-08:04:00.)  She 
indicated that the chihuahu a was on their property an d had tried to bite her 
daughter, the 911 caller.  (Id.)  She also noted that the chihuahua belonged to 
their neighbors, pointing to the Plaintiffs’ residence.  (Id.)   
Officer Ehrenreich then  began walking towards Plaintiffs’ backyard in 
an attempt to encourage the ch ihuahua to move there.  ( Id. at 08:04:00-
08:04:30.)  He briefly entered the Plaintiffs’ unfenced backyard via the side of 
 
3 In citing the body-worn camera (“BWC”) footage submitted by the parties, the 
Court refers to the timestamp in the top-right corner of the BWC footage.  This 
timestamp is formatted using the “ISO 8601” standard as follows: YYYY-MM-
DD HH:MM:SS.  See Timestamp watermark for camera videos - Axon Evidence 
product guide, https://my.axon.com/s /article/Timestamp-watermark-for-
camera-videos-Axon-Evidence-product-guide?language=en_US (last accessed 
March 25, 2026).  The “-0400” that ap pears at the end of the timestamp 
indicates that the time being displayed is 4 hours before Coordinated Universal 
Time (“UTC”), which corresponds with Eastern Standard Time (“EST”).  Thus, 
the timestamp “2021-04-19 08:15:25 -0400” indicates 25 seconds after 8:15 AM 
EST on April 19, 2021. 
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their house while repeatedly instructing the chihuahua to “get back home.”  
(Id.)  The chihuahua appeared to follow, albeit while barking in protest, Officer 
Ehrenreich’s directions.  (Id. )  Officer Ehrenreich then  moved to the front of 
the house and knocked on Plaintiffs’ front door and rang the doorbell.  ( Id. at 
08:04:25-08:06:05.)  After hearing no an swer for about a mi nute-and-a-half, 
Officer Ehrenreich made his way back to Plaintiffs’ backyard.  (Id. at 08:06:00-
08:07:00.)   
As he entered Plaintiffs’ backyard, he repeatedly announced his presence 
as “Johns Creek Police” and enco untered the chihuahua again.  ( Id. at 
08:06:50-08:07:25.)  This time, Officer Ehrenreich encouraged the chihuahua 
to go up an outdoor staircase that appeared to be connected to a backyard deck 
or patio.  ( Id.)  While at the foot of the staircase, Officer Ehrenreich, 
presumably seeing Plaintiff Catherine Smith (“Mrs. Smith”) on the deck, called 
out “Hey Ma’am, is this your chihuahua?”  (Id. at 08:07:15-08:07:25.)  Neither 
the back deck nor Plaintiffs are visibl e in Officer Ehrenreich’s BWC footage; 
the viewer can only see the foot of the outdoor staircase.  Mrs. Smith responded 
to Officer Ehrenreich by repeatedly insisting that he “get off the property.”  (Id. 
at 08:07:20-08:07:30.)  Officer Ehrenreich asked again whether the chihuahua 
belonged to Mrs. Smith, and then urged,  “Get your dog! Your neighbors are 
calling.”  (Id.)  Then, within about 10 seconds of the interaction beginning, a 
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noise is heard from the back deck.  (Id. at 08:07:25-08:07:35.)  Mrs. Smith can 
also be heard saying, “Don’t go there!”  (Id.)   
Officer Ehrenreich then immediat ely fled Plaintiffs’ backyard and 
returned to his parked police vehicle.  (Id. at 08:07:30-08:07:55.)  As he ran, he 
sent the following radio tr ansmission: “Start me an other unit. The residents 
are coming out to attack me! Get units here now!”  ( Id.)  Officer Ehrenreich 
proceeded to reposition his vehicle in th e cul-de-sac such that it was pointing 
towards Plaintiffs’ house at a slight angle.  (Id. at 08:07:50-08:08:30.)  He also 
obtained a rifle from his vehicle and he ld it at a “low ready” position.  ( Id.)  
Officer Ehrenreich continued sending a series of radio transmissions, 
indicating that he encountered a Black male and Hispanic female behind the 
house and that they “came out trying to attack him.”  (Id.  at 08:08:25-08:09:30; 
see Pls’ SMF, Doc. 40-2 ¶ 3; Def’s Resp. to Pls’ SMF, Doc. 43 ¶ 3.)  He also noted 
on the radio that “no crime ha[d] been committed.”  (Id.)  He later relayed that 
he saw the male briefly come out of the front door and then go back inside the 
house.  (Ehrenreich BWC, Doc. 40-12 at 08:08:25-08:09:30.)  Officer Ehrenreich 
then repeatedly shouted for the residents of 480 Le asingham Way, Plaintiffs’ 
home, to come out with their hands up.  (Id. at 08:09:30-08:11:20.) 
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B. Officer Tait’s and Others’ Response to Officer Ehrenreich’s 
Call for Assistance 
 
At approximately 8:08 am, Officer Ta it heard Officer Ehrenreich yell 
over the radio that the residents of the Smiths’ home were attempting to attack 
him.  (Def’s SMF, Doc. 44-2 ¶ 1; Pls’ Resp. to Def’s SMF, Doc. 50 ¶ 1.)  Based 
on the radio transmission, Officer Tait  believed that mult iple people had 
assaulted Officer Ehrenreich.  (Doc. 44-1 ¶ 2; Doc. 50 ¶ 2.)  Several police 
officers, including Office r Tait, responded to Offi cer Ehrenreich’s call for 
assistance and parked their vehicles on the road outside of Plaintiffs’ residence.  
(Doc. 44-1 ¶ 3; Doc. 50 ¶ 3.)  At least on e of the responding officers drew his 
handgun and held it at th e low ready position as he approached the scene.  
(Ehrenreich BWC, Doc. 40-12 at 08:11: 15-08:11:45.)  Officer Ehrenreich was 
also holding his rifle at the time.  (Id.)   
Because the Public Address sy stem (“PA system”) on Officer 
Ehrenreich’s vehicle was not working, Officer Tait began using his vehicle’s PA 
system (or “bullhorn”) to issue verbal commands to Plaintiffs who were inside 
their residence.  (Doc. 44-1 ¶ 4; Doc. 50 ¶ 4.)  Within approximately a minute 
of arriving on the scene, Officer Tait made the following announcement on his 
PA system directed towards Plaintiffs’ home: “This is the Johns Creek Police. 
Everyone inside the house is under ar rest. Come out with your hands up 
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immediately.”  (Doc. 44-1 ¶ 5; Doc. 50 ¶ 5; Tait BWC, Doc. 40-13 at 08:15:25-
08:15:40.)  A few seconds later, Officer Tait again announced over the bullhorn: 
“This is the Johns Creek Po lice. Everyone inside th e home is under arrest. 
Come out with your hands up  now.”  (Doc. 44-1 ¶ 6; Doc. 50 ¶ 6; Tait BWC, 
Doc. 40-13 at 08:15:40-08:15:50.)  Upon receiving a radio transmission from a 
dispatcher indicating she was on the phone with Plaintiffs, Officer Tait 
instructed the dispatcher to advise Plaintiffs to come out with their hands up 
and that they were under arrest.  (Doc. 44-1 ¶ 7; Doc. 50 ¶ 7; Tait BWC, Doc. 
40-13 at 08:15:50-08:16:00.)  
Over the next seven minut e s ,  f r o m  8 : 1 6  A M  t o  8:23 AM, Officer Tait 
made approximately thir teen more announcements over the PA system 
demanding that Plaintiffs come out of their house with their hands up.  (Doc. 
44-1 ¶¶ 8-11, 14-16, 18; Doc. 50 ¶¶ 8-11 , 14-16, 18; Tait BWC, Doc. 40-13 at 
08:16:10-08:22:50.)  He also repeatedly declared that Plaintiffs were under 
arrest.  (Id.)  Plaintiffs did not exit their home during this seven-minute period.  
(Doc. 44-1 ¶ 19; Doc. 50 ¶ 19.)  Instead, Mrs. Smith, who was on the phone with 
a 911 operator, informed the operator that she was getting dressed and would 
come outside in a couple of minutes.  (Doc. 44-1 ¶ 13; Doc. 50 ¶ 13.)  At 
approximately 8:17 AM and 30  seconds, a dispatcher ra dioed officers to relay 
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this information.  (Tait BWC, Doc. 40 -13 at 08:17:30-08:17: 40.)  Plaintiffs, 
however, would not emerge from their house until much later. 
C. Plaintiffs’ Calls to 911 
 
Plaintiffs have submitted recordings  of two calls they had with 911 
operators during the incident.  (Doc. 40-19; Doc. 40-20.)  The parties do not 
clearly indicate at what time these 911  calls occurred, although from context, 
the Court gathers that they  took place near the begi nning of the encounter.  
Like the officers on scene,  the 911 operators instructe d Plaintiffs to come out 
of their home with their hands up.  (Id.)  They also represented that if Plaintiffs 
did not come out with thei r hands up that police o fficers would enter their 
house and arrest them.  ( Id.)  For instance, on the first call, the 911 operator 
told Mrs. Smith, “The officers are sayi ng come out with your hands up and if 
they have to come in, th ey will be arresting.”  (Doc. 40-19.)  Mrs. Smith 
responded that she would come out in a few minutes after she finished getting 
dressed.  (Id.)  Mrs. Smith then told the 911 operator that she wanted an officer 
to call her.  The operator acknowle dged the request and noted that she 
provided the officers with Mrs. Smith’s number.  (Id.)   
The second recording begins with Plaintiff Dwight Smith (“Mr. Smith”) 
protesting to another 911 operator that  there was “a SWAT  team” outside of 
his house.  (Doc. 40-20; Doc. 40-2 ¶ 15; Doc. 43 ¶ 15.)  The 911 operator 
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responded that he needed to “step out with his hands up.”  (Doc. 40-20.)  Like 
Mrs. Smith, Mr. Smith asked for an officer to call Plaintiffs.  (Id.)  When asked 
why the police wanted Plai ntiffs to come out with  their hands up, the 911 
operator indicated that he wasn’t familiar with the entire incident but stated 
that it was a “lawful order” and that “if they have to come in, everyone is going 
to be arrested.”  (Id.)  Mrs. Smith then got on the line.  (Id.)  The 911 operator 
repeatedly instructed Mrs. Smith that Plaintiffs needed to come out with their 
hands up and that if the officers needed to enter the house, Plaintiffs would all 
be arrested.  (Id.)  The call ended with the 911 operator telling Mrs. Smith that 
he needed to hang up so that Se rgeant Derrick Wilson, who was a 
“commander,” could call Mrs. Smith.  (Id.)   
D. Plaintiffs’ Calls with Officer Tait and Sergeant Wilson 
 
Back at the scene outside of the hous e, after conferring with Sergeant 
Wilson—who appeared to have taken command of th e police response to the 
incident—Officer Tait called Mrs. Smith on a cell phone at approximately 8:27 
AM.4  (Doc. 44-1 ¶ 21; Doc. 50 ¶ 21; Tait BWC, Doc. 40-13 at 08:26:40-08:26:50.)  
Officer Tait began the conversation by stating, “Hey, this is Officer Tait with 
 
4 Audio from a portion of the conversation between Sergeant Wilson and Officer 
Tait, from approximately 8:25 AM and 30 seconds to 8:26 AM and 40 seconds, 
appears to be redacted.  (Officer Tait BWC, Doc. 40-13 at 08:25:30-08:26:40.) 
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Johns Creek Police. What’s  going on today?”  (Tait BWC, Doc. 40-13 at 
08:26:45-08:26:50.)  At this point, the phone call was not on speaker phone, so 
the BWC footage does not reveal what Mrs. Smith is saying.  (Id. at 08:26:45-
08:27:30.)  However, Officer Tait put his phone on speaker roughly one minute 
into the phone call.  (Id. at 08:27:30-08:27:35.)   
The phone call lasted approximately eighteen minutes  and contained 
many exchanges that are not material to the resolution of the parties’ motions.  
The Court does not attempt to transcri be every detail of the phone call but 
describes relevant portions.  Near the beginning of the phone call, Officer Tait 
told Mrs. Smith: “We need to get your side of the sto ry, but what you need to 
do is you need to come out safely. I’m a negotiator okay, that’s my primary goal 
. . . is I need y’all to come out of the house safely. Okay. Well tell me what 
happened.”  (Id. at 08:27:10-08:27:30.)  Mrs.  Smith then described the 
morning’s events from her perspective: 
I, my son, we heard the dog barking and we realized our dog had escaped 
the back deck. So my son went to get the dog. And I told him, you know 
you need to get back, I’ll get the dog. He says, the dog’s loose. As I start 
to head down to call the dog, I see a police officer underneath my deck. 
And he pops out from underneath the deck. And he says to me, is this 
your dog? Is this your dog? And I get really shocked and surprised. And 
I think he’s going to  take our dog. . .  . This is how this whole incident 
started with a chihuahua . . . .  
 
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(Id. at 08:27:35-08:28:15.)  Mrs. Smith proceeded to describe the alleged details 
of previous disputes with her neighbor s involving the chihuahua, as well as 
incidents involving Johns Creek Police and animal control.  ( Id. at 08:27:35-
08:30:20.) 
During the call, Officer Tait asserted  that “the reason so many officers 
are out here is because you charged, yo ur family charged an  officer when he 
was coming to knock on your front door.”  ( Id. at 08:30:20-08:30:30; Doc. 44-1 
¶ 23; Doc. 50 ¶ 23.)  Mrs. Smith strenuously objected to that assertion, stating 
that she never charged an officer and never left the door area of her back deck.  
(Tait BWC, Doc. 40-13 at 08:30:25-08:31: 30.)  She told Officer Tait that she 
instructed the responding officer (Officer  Ehrenreich) to get off the property 
because she was afraid he was going to take her dog.  (Id.)  She further noted 
that she observed the same officer point a gun at her as she attempted to video 
record the officer from her window.  (Id.)   
At approximately 8:43 AM, Sergeant  Wilson, upon hearing that Mrs. 
Smith appeared to be under the impression that she was going to be arrested, 
began speaking with Mrs.  Smith on Officer Tait’s  phone.  They had the 
following exchange: 
Mrs. Smith: So she [the neighbor] will be arrested at the same time I will 
be arrested? 
 
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Sergeant Wilson: Ma’am. Ma’am. This is Sergea nt Wilson with John’s 
Creek Police.  
 
Mrs. Smith: Yes. 
 
Sergeant Wilson: Are you willing to co me to the steps and sit down on 
your front steps and talk to me?  We’re not talking about arresting 
anyone. I’m not trying to arrest anyone. I want to talk to you and try to 
resolve . . . .  
 
. . . 
 
Sergeant Wilson: Can I talk? I’m not trying to arrest anyone. I just want 
to speak to you so we can try to resolve some of the issues that are going 
on out here. 
 
Mrs. Smith: Okay. Okay, so you’re saying on video right now that I am 
not charged with anything? 
 
Sergeant Wilson: Exactly. I’m sayi ng, I’m not intere sted in arresting 
anyone. I want to sit down and talk to you to try to resolve whatever 
issues you have, whatever issues your neighbor may have. You guys live 
out here together. You’re in a neighborhood. We want to resolve issues. 
I’m not interested in arresting anyone . I just want to si t down and talk 
to you. 
 
Mrs. Smith: So there are no charges on me right now. 
 
Sergeant Wilson: Correct. Yes, Ma’am. I just want to talk to you. 
 
Mrs. Smith: I need John’s Creek . . . I need the chief of police to call me. 
Okay, and I’m going to be out in 10  minutes. I’m going to go ahead and 
clean myself up and I will be outside , or officers can come in, in 10 
minutes. . . . . 
 
Sergeant Wilson: I will sit down on the front porch and talk to you. 
 
Mrs. Smith: Okay. Call me back in 10 minutes. I’m going to clean myself 
up and then . . . we’ll resolve it. 
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Sergeant Wilson: Yes Ma’am. 
 
Mrs. Smith: Call me in exactly 10 minutes and then we’ll resolve it. 
Goodbye. 
 
Sergeant Wilson: Yes Ma’am. 
 
(Tait BWC, Doc. 40-13 at 08:43:20-08:45:10.) 
At approximately 8:55 AM, the office rs called Mrs. Smith again.  The 
following exchange ensued: 
Mrs. Smith: Hello. 
 
Sergeant Wilson: Yes Ma’am. It’s Sergeant Wilson. Are you ready? 
 
Mrs. Smith: I need about two more minutes and then I’ ll be out there 
with my dog. 
 
Sergeant Wilson: Okay. So when you’re ready come on out. I’ll meet you 
on the front porch. 
 
Mrs. Smith: And then I’m leaving for work. I’m not even sure if I want to 
talk to you now. 
 
Sergeant Wilson: So are you interested in resolving the issues? 
 
Mrs. Smith: Are you going to come inside of the house? 
 
Sergeant Wilson: I don’t have to come inside of the house. I can meet you 
on the porch. 
 
Mrs. Smith: I was threatened 8 time s that they were going to bring a 
SWAT team in here. 
 
Sergeant Wilson: Ma’am. No one is coming in your house. I’m asking you 
to meet me on the front porch. 
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Mrs. Smith: That’s what they told me. 
 
Sergeant Wilson: I’m telling you! Li sten to me! I’m telling you! I’m the 
one [who’s] gonna talk to you. 
 
Mrs. Smith: Okay, I understand that.  
 
Sergeant Wilson: Thank you. 
 
Mrs. Smith: Now can I speak? I was told and threatened that they were 
going to come inside my house.  
 
Sergeant Wilson: And who were you told that by? 
 
Mrs. Smith: By the other two people that called before. . . . They had a 
microphone and they were saying that , come out the house with your 
hands up. Okay. That’s the last 3 calls I’ve gotten for the last 45 minutes 
is if I do not . . .  
 
Sergeant Wilson: I’m standing in front of your house, can I tell you what’s 
going on now? No one is . . . 
 
Mrs. Smith: I know what’s going on. You guys fucked up. . . . Leave the 
area now. Goodbye. If you’re not going to come in the house, you need to 
leave. We need to dismantle this. You guys overreacted yet again. You 
surrounded my house. You threatened that you would come inside of my 
house and arrest all three people in here. You put your face in your ass 
again. Okay. So, you can leave now so I can file my suit  against all of 
you, and write complaints against all of you, and have every single one 
of you fired. I’m going to be headin g over to Johns Creek Police Station 
in about 30 minutes they can talk to me there. I’m getting ready to leave 
now, in fact. I’m just going to leave. Outside the house. I’m going to pull 
my car out in about three minutes. Okay? I’ll be out there in 3 minutes. 
Goodbye. 
 
(Tait BWC, Doc. 40-13 at 08:54:55-08:57:00.) 
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E. Plaintiffs’ Exit from Their Home 
 
 At approximately 8:58 AM, Plai ntiffs Catherine Smith and Dwight 
Smith exited the front of their home and came out onto the driveway, where a 
white minivan was parked.  (Ehrenreich BWC, Doc. 40-12 at 08:58:40-08:59:30; 
Wilson BWC Part 2, Doc. 40-15 at 08:59:00-08:59:30.)   As they exited their 
home, Mrs. Smith had her hands up  while Mr. Smith did not.  ( Id.)  Officer 
Tait and Sergeant W ilson walked onto the driveway  to talk to Plaintiffs, as 
Officer Ehrenreich stood behind them.  (Id. )   A s  h e  a p p r o ached Plaintiffs, 
Officer Tait held out his hands and said, “I’m relaxed I’ve got my hands free. 
Can we talk next to the vehicle?”  (Id.)  Plaintiffs’ response is inaudible in the 
BWC footage.5  It also appears that Officer Tait told Mrs. Smith that she didn’t 
have to put her hands up, but she refu sed, stating “I’m not going to put my 
hands down. I was told that a SWAT team was going to come inside my house.”  
(Id.)  There is no indication that any of the officers were brandishing weapons 
as they spoke to Mrs. Smith.  Offi cer Tait attempted to speak about the 
incident with Plaintiffs, but Mrs. Smit h responded “No, you’re not going to 
explain anything to us.”  (Ehrenreich BWC, Doc. 40-12 at 08:59:20-08:59:30; 
Wilson BWC Part 2, Doc. 40-15 at 08:59:20-08:59:30.)   
 
5 The BWC footage provided for Officer Tait  does not extend to this portion of 
the incident.  (Doc. 40-13.) 
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 Mrs. Smith then demanded, “if you’ re not arresting me, move your cars 
so I can drive out. Move your vehicles , you’re blocking me from getting out of 
my garage.”  (Ehrenreich BWC, Doc. 40-12 at 08:59:25-08:59:35; Wilson BWC 
Part 2, Doc. 40-15 at 08:59:25-08:59:35.)  At that juncture, Officer Tait walked 
off the driveway and back towards the police vehicles parked in the cul-de-sac.  
(Ehrenreich BWC, Doc. 40-12 at 08:59:35-08:59:45; Wilson BWC Part 2, Doc. 
40-15 at 08:59:35-08:59:45.)  In total, Officer Tait stood on Plaintiffs’ driveway 
for approximately 30 seconds before leaving in response to Mrs. Smith’s 
demand that the officers move their cars.  (Ehrenreich BWC, Doc. 40-12 at 
08:59:15-08:59:45.) 
Mrs. Smith continued talking to Se rgeant Wilson ab out her disputes 
with her neighbors and Johns Creek Police’s failure to investigate her 
neighbors.  (Ehrenreich BWC, Doc. 40 -12 at 08:59:35-09:00:15; Wilson BWC 
Part 2, Doc. 40-15 at 08:59:35-09:00:15.)  Within approximately one minute of 
Mrs. Smith’s demand that the officers move their cars, Serg eant Wilson also 
began walking back to the police vehicles parked on  the road.  (Ehrenreich 
BWC, Doc. 40-12 at 09:00:10-09:00:20.)  Another police official, who identified 
himself as Major Clifton, attempted to speak with Mrs. Smith from the edge of 
the driveway.  ( Id. at 09:00:20-09:00:55; Wilson BWC Part 2, Doc. 40-15 at 
09:00:20-09:00:55.)  Mrs. Smith refused to speak with him and insisted again 
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that the officers leave.  ( Id.)  He, too, then walked toward the police vehicles 
parked on the road.  (Ehrenreich BWC, Doc. 40-12 at 09:00:45-09:00:55; Wilson 
BWC Part 2, Doc. 40-15 at 09:00:45-09:00:55.)   
After briefly conferring among themse lves, at approximately 9:02 AM, 
the officers got in their vehicles and begin driving away.  (Doc. 44-1 ¶ 41; Doc. 
50 ¶ 41; Ehrenreich BWC, Doc. 40-12 at  09:01:30-09:02:30; Wilson BWC Part 
2, Doc. 40-15 at 09:01:30-09:02:12.)  Du ring the incident, Officer Tait did not 
make any physical contact with Plainti ffs or apply any phys ical force to the 
Plaintiffs.  (Doc. 44-1 ¶ 40; Doc. 50 ¶ 40.)  None of the Plaintiffs were arrested 
or charged as a result of the incident.  (Doc. 44-1 ¶ 42; Doc. 50 ¶ 42.)   
II. Procedural Background 
The procedural background of this case is set forth in detail in the Court’s 
previous orders.  (Doc. 26 at 1-4; Doc. 70 at 1-7.)  On March 19, 2024, Plaintiffs 
filed this § 1983 renewal action again st the City of Johns Creek (the “City”) 
and several Johns Creek law enforcemen t officers, including Officer Tait.  
Plaintiffs’ second amended complaint brings seven claims against Officer Tait: 
(1) unlawful search and seizure in violation of the Fourth Amendment (via 42 
U.S.C. § 1983); (2) excessive force in vi olation of the Fourth Amendment (via 
42 U.S.C. § 1983); (3) First Amendment re taliation (via 42 U.S.C. § 1983); (4) 
failure to intervene (via 42 U.S.C. § 1983); (5) civil conspiracy (via 42 U.S.C. §§ 
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1983, 1985, 1986); (6) trespass (under Georgia law); and (7) assault (under 
Georgia law).  (Doc. 28 ¶¶ 197-273.)   
On July 14, 2025, Plaint iffs moved for partial summary judgment with 
respect to their Fourth Amendment unlawful seizure and excessive force 
claims against Defendant Tait.  (Doc. 40.)  On August 4, 2025, Defendant Tait 
responded to Plaintiffs’ motion for partial summary  judgment with a cross-
motion for summary judgment on all claims asserted against him in the second 
amended complaint.  (Doc. 44.)  The motions are fully briefed and ripe for 
resolution.6   
 
6 The Court observes that Plaintiffs filed their motion for partial summary 
judgment before the parties filed their joint prelimin ary report and discovery 
plan.  (Doc. 40.)  In turn, Defendants responded by filing their cross-motion for 
summary judgment befo re the discovery period had elapsed.  (Doc. 44.)  The 
parties do not request that the Court defer ad judicating their summary 
judgment motions pending further disc overy under Federal Rule of Civil 
Procedure 56(d) or object to the Court resolving their motions on the current 
record, which includes extensive body camera footage submitted by Plaintiffs.  
Further, the Court consid ers that it must resolve questions of qualified 
immunity “at the earliest possible stage in litigation.”  Miller v. Palm Beach 
Cnty. Sheriff’s Off., 129 F.4th 1329, 1334 (11th Ci r. 2025).  The Eleventh 
Circuit has indicated that, when a defe ndant asserts the defense of qualified 
immunity on summary judgment, the di strict court cannot reserve its ruling 
solely on the ground that di scovery has not taken place.  See Huntley v. 
Hillsborough Cnty. Sheriff’s Off. , No. 25-12102, 2026 WL  21442, at *1 (11th 
Cir. Jan. 5, 2026) (vacating a district court’s holding that a motion for summary 
judgment raising qualified immunity wa s “premature” because it was “filed 
before discovery ha[d] taken place”).  Of course, had Plaintiffs argued that 
consideration of summary judgment should  be deferred or denied under Rule 
56(d), which provides for the deferral or denial of a motion for summary 
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III. Legal Standard 
Summary judgment is appropriate when “there is no genuine dispute as 
to any material fact and the movant is entitled to judgment as a matter of law.”  
Fed. R. Civ. P. 56(a).  A party seek ing summary judgment has the burden of 
informing the district court of the basis for its motion and identifying those 
portions of the record which it believes demonstrate the absence of a genuine 
issue of material fact.  Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).  
“Credibility determinations, the weighing of the evidence, and the drawing of 
legitimate inferences from the facts are jury functions,” and cannot be made by 
the district court in considering wh ether to grant su mmary judgment.  
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986); see also Graham v. 
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). 
If a movant meets its burden, the party opposing summary judgment 
must present evidence demonstrating a genuine issue of material fact or that 
the movant is not entitled to judgment as a matter of law.  Celotex, 477 U.S. at 
324.  In determining whet her a genuine issue of ma terial fact exists, the 
evidence is viewed in the light most favorable to the party opposing summary 
 
judgment when essential facts are una vailable to the nonm ovant, the Court 
would have considered that argument.  Plaintiffs, however, have not made that 
contention here.  To the contrary, they have also affirmatively moved for 
summary judgment.  (Doc. 40.) 
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judgment, “and all justifiabl e inferences are to be dr awn” in favor of that 
opposing party.  Anderson, 477 U.S. at 255; see also Herzog v. Castle Rock 
Entertainment, 193 F.3d 1241, 1246 (11th Cir. 1999).  A fact is “material” only 
if it can affect the outcome of the lawsuit under the governing legal principles. 
Anderson, 477 U.S. at 248.  A factual dispute is “genuine” if the evidence would 
permit a reasonable jury to return a verdict for the nonmoving party.  Id.  “If 
the record presents factual issues, the court must not decide them; it must deny 
the motion and proceed to trial.”  Herzog, 193 F.3d at 1246. 
Where, as here, the record contains reliable video capturing the events 
in question, the district co urt should view the facts “in the light depicted by 
the videotape.”  Scott v. Harris, 550 U.S. 372, 380-81 (2007). 
  
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IV. Discussion 
The Court first considers Defend ant Tait’s motion for summary 
judgment (Doc. 44) because it resolves all the claims that Plaintiffs have 
asserted against him.  In ruling on Defendant’s motion, the Court considers 
both the arguments that Pl aintiffs’ advance in their own motion for partial 
summary judgment (Doc. 40), and those set forth in Plaint iffs’ response to 
Defendant’s motion (Doc. 48.)  Defendant Tait seeks summary judgment on the 
ground that he is entitled to qualified immunity on Plaintiffs’ constitutional 
claims and official immunity on Plaintiffs’ state law claims.  (Doc. 44.)   
Qualified immunity “offers complete protection for government officials 
sued in their individual capacities if  their conduct ‘does not violate clearly 
established statutory or constitutional rights of which a reasonable person 
would have known.’”  Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 
2010) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)).  “The 
purpose of this immunity is to allow government officials to carry out their 
discretionary duties without the fear  of personal liability or harassing 
litigation, protecting from suit all bu t the plainly incompetent or one who is 
knowingly violating the federal law.”  Lee v. Ferraro, 284 F.3d 1188, 1194 (11th 
Cir. 2002) (internal quotation marks and citations omitted). 
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To receive qualified immunity, a go vernment official  “must initially 
establish that he was ac ting within his discreti onary authority when the 
alleged wrongful acts occurred.”  Richmond v. Badia, 47 F.4th 1172, 1179 (11th 
Cir. 2022).  If he does so, “the burden shifts to the plainti ff to establish that 
qualified immunity is  inappropriate.”  Id.   The plaintiff must show that: (1) 
“the official’s alleged conduct violated a constitutionally protected right[,]” and 
(2) “the right was clearly established at the time of the misconduct.”  Id.  
Plaintiffs appear to concede that Officer Tait was acting within his 
discretionary authority wh en he responded to Offi cer Ehrenreich’s call for 
assistance on April 19, 2021.7  Accordingly, with respect to each claim asserted 
by Plaintiffs, a two-part inquiry applie s to evaluate whether Plaintiffs have 
met their burden to show that qualified immunity is unwarranted.  First, the 
 
7 Plaintiffs allege that Officer Tait “is a law enforcement officer for the City of 
Johns Creek and was acting under the color of the law in the course and scope 
of his employment” during the events that are the subject of this suit.  (Doc. 28 
¶ 11.)  Moreover, Plaintiffs’ response to Officer Tait’s motion for summary 
judgment did not advance any argument challenging the discretionary 
authority requirement.  See Johns v. CSX Transportation, Inc., 210 F. Supp. 
3d 1357, 1373 (M.D. Ga. 2016) (“When a non-moving party fails to address 
particular claims in th e moving party’s motion for summary judgment but 
responds to other arguments, the non-moving party abandons these claims.”).  
The Court finds that Officer Tait was “( a) performing a legitimate job-related 
function (that is, pursuing a job-relate d goal), (b) throu gh means that were 
within his power to utilize” when he responded to Officer Ehrenreich’s call for 
assistance.  Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th 
Cir. 2004). 
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Court “consider[s] whether, taken in the light most favorable to [Plaintiffs], the 
facts alleged show [Officer Tait’s] conduc t violated a consti tutional right.”  
Perez v. Suszczynski , 809 F.3d 1213, 1218 (11th Ci r. 2016).  Second, “[i]f a 
constitutional right would ha ve been violated under the plaintiff’s version of 
the facts,” the Court “mu st then determine ‘whether  the right was clearly 
established.’”  Ferraro, 284 F.3d at 1194 (quoting Saucier v. Katz, 533 U.S. 194, 
201 (2001), overruled on other grounds by , Pearson v. Callahan, 555 U.S. 223 
(2009)).   
A. Unlawful Seizure (Count 1) 
Pursuant to 42 U.S.C. § 1983, Plaintiffs bring a claim of unlawful seizure 
in violation of the Fourth Amendment against Officer Tait.  (Doc. 28 ¶¶ 198-
211.)  The parties do not dispute that when Officer Tait arrived on the scene, 
he repeatedly announced, over his car’s PA system, that Plaintiffs were “under 
arrest” and ordered them to  come out of their home with their hands up.  
Plaintiffs contend that Officer Tait’s  announcements constituted a seizure, 
which violated the Fourth Amendment.  (Doc. 40-1 at 4-14; Doc. 48 at 3-15.)  
Officer Tait does not argue  that he had a warrant, probable cause, or other 
authority permitting him to seize Plaintiffs.  Instead , he contends that his 
commands did not amount to a seizure because Plaintiffs did not submit to 
them.  (Doc. 44-1 at 5-10.)  Further, Officer Tait claims that even if Plaintiffs 
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are able to show a constitutional violation, there is no law clearly establishing 
a Fourth Amendment violation “when an officer who is not physically present 
on the plaintiffs’ property, including the curtilage, verbally commands them to 
exit their home for the purpose of arrest, later retracts the arrest, and instead 
seeks a conversation to reso lve the issue, ultimately leaving the plaintiffs’ 
residence without making a ny arrests or issuing any charges.”  (Doc. 44-1 at 
16-17.) 
The Court first considers whether,  under the novel circumstances 
presented by this case, Officer Tait seized Plaintiffs within the meaning of the 
Fourth Amendment.8  It then turns to the question of whether the law “clearly 
established” that Officer Tait’s actions amounted to a seizure.   
1. Constitutional Violation 
 
The Fourth Amendment prot ects “[t]he right of the people to be secure 
in their persons, houses, papers, and e ffects, against unre asonable searches 
and seizures.”  U.S. Const. amend IV .  A person has been subjected to a 
“seizure” within the meaning of the Fourth Amendment “when there is a 
governmental termination of freedom of movement through means 
 
8 As explained later in this memora ndum opinion, the Court does not 
separately analyze the reas onableness of the seizure because (1) Officer Tait 
does not address the matter in his motion; and (2) qualified immunity protects 
Officer Tait, even assuming the seizure was unreasonable.  
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intentionally applied.”  Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989).  Put 
another way, a Fourth Amendment seizure occurs “only if, in view of all the 
circumstances surrounding the incident , a reasonable person would have 
believed that he was not free to leave.”  California v. Hodari D., 499 U.S. 621, 
627-28 (1991) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) 
(Stewart, J.)). 
There are two ways in which a seizure can occur: (1) “a laying on of hands 
or application of physical force to restrain movement,” or (2) where physical 
force is absent, “submission to the assertion of authority.”  Hodari D., 499 U.S. 
at 626; see United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (“The 
ultimate inquiry remain s whether a person’s freedom of movement was 
restrained by physical force or by submi ssion to a show of authority.”).  Here, 
the BWC footage clearly shows that Offi cer Tait did not a pply any physical 
force to Plaintiffs during the incident.  The Court therefore considers whether 
Officer Tait engaged in a show of auth ority and whether Plaintiffs submitted 
to that show of authority. 
“[T]he test for existence of a ‘show of  authority’ is an objective one: not 
whether the citizen percei ved that he was being ordered to restrict his 
movement, but whether the officer’s wo rds and actions woul d have conveyed 
that to a reasonable person.”  Hodari, 499 U.S. at 628; see also Michigan v. 
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Chesternut, 486 U.S. 567, 573-74 (1988) (observing that the Supreme Court has 
embraced the objective test laid ou t in Justice Stewart’s opinion in 
Mendenhall).  “Examples of circumstances that might indicate a seizure,” 
include “the threatening presence of se veral officers, the di splay of a weapon 
by an officer, some physical touching of the person of the citizen, or the use of 
language or tone of voice indicating that compliance with the officer’s request 
might be compelled.”  Mendenhall, 446 U.S. at 554 (Stewart, J.); see also United 
States v. Perez, 443 F.3d 772, 778 (11th Cir. 2006) (listing relevant factors such 
as “whether a citizen’s path is blocked or impeded; whether identification is 
retained; the suspect’s age, educatio n and intelligence; the length of the 
suspect’s detention and questioning; the number of police officers present; the 
display of weapons; any physical touching of the suspect, and the language and 
tone of voice of the police” (quotation omitted)). 
Critically, “[u]nlike with a seizure by physical force, a seizure by a show 
of authority doesn’t happen unless the subject yields” to that authority.  
Watkins v. Davis, 156 F.4th 1084, 1104 (11th Cir. 2025); see Torres v. Madrid, 
592 U.S. 306, 322 (2021) (“Unlike a seizure by force, a seizure by acquisition of 
control involves either voluntary submi ssion to a show of authority or the 
termination of freedom of movement.”).  For instance, “[w]hen a suspect flees 
from the police, he is not submitting to their authority an d therefore is not 
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seized.”  Jordan, 635 F.3d at 1186.  That is, “there is no seizure without actual 
submission; otherwise, there is at most an attempted seizure, so far as the 
Fourth Amendment is concerned.”  Brendlin v. California, 551 U.S. 249, 254 
(2007) (emphasis added). 
Before delving into the analysis of wh ether Plaintiffs were seized, it is 
worth clarifying an element of  the seizure inquiry as it applies to this case.  
When police approach an individual in a public place, “the police can be said to 
have seized an individual ‘only if, in view of all of the circumstances 
surrounding the incident, a reasonable person would have believed that he was 
not free to leave.’”  Chesternut, 486 U.S. at 573 (quoting Mendenhall, 446 U.S. 
at 554 (Stewart, J.)) (emphasis added) .  However, the Supreme Court has 
explained that when a person “has no desire to leave, the degree to which a 
reasonable person would feel that he or  she could leave is not an accurate 
measure of the coercive e ffect of the encounter.”  Florida v. Bostick, 501 U.S. 
429, 435-36 (1991).  For instance, “a passenger on a bus . . . scheduled to 
depart” might not feel “fre e to leave the bus even if  the police had not been 
present.”  Id. at 436.  In that situation, it “makes [little] sense to inquire 
whether a reasonable person would feel free to continue walking.”  Id. at 435.  
Rather, where a person does not desire to leave, the more “appropriate inquiry 
is whether a reasonable person would feel free to decline the officers’ requests 
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or otherwise terminate the encounter.”  Id. at 436 (emphasis added); see United 
States v. Drayton, 536 U.S. 194, 202 (2002).   
This principle applies with some forc e here, because Plaintiffs were not 
in a public place, but rather in their home.  As such, they may have wished to 
simply go about their business at home.  Moreover, as discussed below, Officer 
Tait and his fellow officers did not inte nd to prevent Plaintiffs from leaving 
their home.  On the contrary, the offi cers expressly ordered Plaintiffs to exit 
their house.  Given that context, the proper seizure inquiry is not whether a 
reasonable person in Plaintiffs’ position would have felt “fr ee to leave” their 
home.  Rather, the appropriate inquiry is whether a reasonable person would 
have felt “free to decline the office rs’ requests or otherwise terminate the 
encounter.”  Bostick, 501 U.S. at 436.  Put another way, the “the crucial test is 
whether, taking into account all of the circumstances surrounding the 
encounter, the police conduct would ‘have communicated to a reasonable 
person that he was not at liberty to ignore the police presence and go about his 
business.’”  Id. at 437 (quoting Chesternut,  486 U.S. at 569); see, e.g., United 
States v. Jerez, 108 F.3d 684, 690 (7th Cir. 19 97) (explaining, with respect to 
an alleged seizure of individual in a motel room, th at the appropriate test for 
determining if a seizure occurred was whether “a reasonable person would not 
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have felt free to decline [the deputies’] requests to open the door or to otherwise 
ignore the deputies’ presence”). 
With that clarification in mind, the Court turns to the seizure analysis 
at hand.  The Court has little trouble concluding that Officer Tait, along with 
other officers who responded to the inci dent, engaged in a show of authority 
that would be sufficient to give rise to a seizure.  When Officer Tait arrived on 
the scene, the Smiths’ residence was surrounded by several police officers and 
their vehicles.  The vehicles blocked of f the cul-de-sac wher e Plaintiffs’ home 
was located.  Officer Ehrenreich was hold ing a rifle at the low ready position.  
Within approximately a minute of arrivi ng, Officer Tait went on his police 
vehicle’s PA system and announced, “This is the Johns Creek Police. Everyone 
inside the house is under arrest. Come out with your hands up immediately.”  
(Doc. 44-1 ¶ 5; Doc. 50 ¶ 5; Officer Tait BWC, Doc. 40-13 at 08:15:25-08:15:40.)  
He then proceeded to repeat similar commands another fourteen times over a 
bullhorn.  (Doc. 44-1 ¶¶ 8-11, 14-16, 18; Doc. 50 ¶¶ 8-11, 14-16, 18; Officer Tait 
BWC, Doc. 40-13 at 08:16:10-08:22:50.)  When Plaintiffs called 911 to ask why 
police were surrounding their house, dispatchers instructed them to exit their 
residence and told them that police woul d enter their home if they did not.  
(Doc. 40-19; Doc. 40-20.)   
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Based on the language an d tone of Officer Tait’s commands, as well as 
the surrounding circumstances, Officer Ta it engaged in a show of authority 
such that a reasonable person would have believed that they were required to 
comply by exiting the home with their hands up.  See Hodari D., 499 U.S. at 
627-28.  A reasonable person in Plainti ffs’ situation would not “feel free to 
decline the [Officer Tait’s] requests”—wh ich were more in the nature of 
commands than requests—“or otherw ise terminate th e encounter.”  Bostick , 
501 U.S. at 436; see, e.g., United States v. Waterman, 569 F.3d 144, 144-46 (3d 
Cir. 2009) (holding that a show of authority occurred when two uniformed 
police officers approached  a house and commanded th at people on the porch 
show their hands).  Indeed, in briefing, Officer Tait candidly acknowledges that 
“a show of authority arguably occurred when Defendant Tait arrived on scene 
and announced plaintiffs’ arrest[.]”  (Doc. 44-1 at 8.) 
But the seizure inquiry does not en d with Officer Tait’s show of 
authority.  Plaintiffs mu st demonstrate that they “actually submitted” to 
Officer Tait’s show of authority.  Brendlin, 551 U.S. at 254.  To the extent that 
Plaintiffs argue that they were seized when “officers unreasonably terminated 
the freedom of the Plaintiffs while barricaded in their home [,]” the Court 
respectfully disagrees.  (Doc. 48 at 13 (emphasis added).)  Because Officer Tait 
and other officers ordered Plaintiffs to come out of their home, for Plaintiffs to 
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be seized, they had to subm it to the officers’ show of authority by exiting the 
residence.  That is, before they left th eir home, Plaintiffs did not yield to the 
officers’ authority.  See, e.g., United States v. McCauley, 548 F.3d 440, 443 (6th 
Cir. 2008) (“Here, appellant was not se ized until he exited the house and 
complied with Officer Helthinstine’s orders to hold his hands in the air. Before 
that, he had not submitted to any show of authority.”). 
The Eleventh Circuit’s decision in Menuel v. City of Atlanta is instructive 
on this point.  25 F.3d 990 (11th Cir. 1994).  In Menuel, officers responded to a 
911 call at the home of Je ssie Menuel, who appeared to be experiencing a 
mental health episode.  Id. at 991.  When the officers knocked on the front door, 
Ms. Menuel suddenly opened the door and lunged at the officers with a butcher 
knife.  Id. at 992.  Ms. Menuel then retreated into her father’s bedroom and 
locked the door, barricading herself inside.  Id.  A reinforced contingent of 
police officers later surrounded the bedroom door and attempted to induce Ms. 
Menuel to leave the room and surrender.  Id.  When the officers eventually 
attempted to enter the bedroom, Ms. Menuel fired a handgun at them.  Id. at 
993.  The officers returned fire, killing Ms. Menuel.  Id. 
Relevant here, the Eleventh Circuit considered whether Ms. Menuel was 
seized before the shooting during the period she wa s barricaded inside her 
room.  The Court first acknowledged th at Ms. Menuel “was surrounded by 
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overwhelming force and her capture was a mere eventuality, bound probably 
to occur only at a time and in a mann er prescribed and implemented by the 
police.”  Id. at 995.  Despite “her confin ement and encirclement” in the 
bedroom, the Eleventh Circuit concluded that Ms. Menuel was not seized until 
she was shot “because she neither yielded to physical force (none was applied 
to her before the fatal shooting) nor submitted to a display of authority (much 
of which was applied before the shooting)[.]”  Id.  
Analogous to Menuel, during the period in whic h they refused to come 
out of their house, Plaint iffs were not seized notwithstanding police officers’ 
“encirclement” of their home.  See, e.g., Ogletree v. Columbia Cnty., 34 F. Supp. 
2d 1349, 1361 (M.D. Fla. 1997), aff’d, 146 F.3d 871 (11th Cir. 1998) (reasoning 
that a suspect surrounded by multiple police office rs and confined to his 
backyard was not seized because he ha d not surrendered or submitted to 
officers’ show of authority).  For this reason alon e, Plaintiff Bryant Smith 
cannot bring an unlawful seizure claim against Officer Tait.  As Plaintiffs 
concede, he never co mplied with officers’ requests to exit the house, instead 
opting to remain inside the residence throughout the incident.  (Doc. 48 at 12.)  
Plaintiffs Catherine Smith and Dwight  Smith did, however, eventually 
come out of their house to speak with Officer Tait and other officers.  The Court 
must therefore consider whether they were  seized at this juncture.  Although 
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the Eleventh Circuit does  not appear to have ev aluated a seizure under 
circumstances similar to those here, at least two other Courts of Appeals have.   
For instance, in Lundstrom v. Romero , the plaintiff was told by a 911 
dispatcher, following an encounter with police at his front door, that “I need 
you to go outside” and “[thos e are] real officer[s] out there and they are going 
to point their gun[s] at you if you refu se to come out.”  616 F.3d 1108, 1117 
(10th Cir. 2010).  Several police officers were surrounding the plaintiff’s 
residence.  Id.  The plaintiff testified that he then exited his home at gunpoint 
and was handcuffed by police.  Id. at 1117-18.  The Tenth Circuit determined 
that the plaintiff “was seized for purposes of the Fourth Amendment when he 
complied with the officers and dispatcher’s orders to leave his house.”  Id.  at 
1123-24 (emphasis added). 
The Sixth Circuit too has found that “when police posi tion themselves 
outside a suspect’s home and block the only exit, order a suspect to come 
outside, and the suspect does so , there has been a seizure.”  Scozzari v. 
McGraw, 500 F. App’x 421, 424 (6th Cir. 2012).  In United States v. Saari, four 
police officers positioned themselves ou tside of a defendant’s apartment.  272 
F.3d 804, 806 (6th Cir. 2001).  They knocked forcefully on the apartment door, 
identified themselves as police, and ordered the defendant out of his 
apartment.  Id. at 807.  The defendant then stepped out of the apartment.  Id.  
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The Saari Court found that those circumstances constituted a seizure because 
the officers “summoned [the] [d]efendant to exit his home and acted with such 
a show of authority that Defendant reas onably believed he had no choice but 
to comply.”  Id. at 809.   
Although the Eleventh Circuit’s decision in Menuel did not address the 
same factual scenario, its reasoning is consistent with that of the Sixth and 
Tenth Circuits.  The Menuel Court indicated that, by surrounding the bedroom 
in which Ms. Menuel was located, officers engaged in “the sort of encircling and 
impenetrable deployment of police compulsion” sufficient to constitute a show 
of authority.  Menuel, 25 F.3d at 995.  It was only because Ms. Menuel never 
“submitted to [that] display of authority[,]” that she was not seized before the 
shooting.  Id.  The converse is likely also tr ue: Had Ms. Menuel peacefully 
surrendered to police in response to their encircle ment of the bedroom, she 
would have then been seized for Fourth Amendment purposes.  Id.   
There are, however, several circumstances present here that render the 
seizure analysis particularly challenging.  Although Mrs. and Mr. Smith 
eventually came out of their home during this  incident, a significant period of 
time elapsed between Officer Tait’s  commands to leave the house and 
Plaintiffs’ exit from the residence.  BWC footage shows that Officer Tait issued 
his final command over the bullhorn for Plaintiffs to come out of their home at 
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8:23 AM.  (Tait BWC, Doc. 40-13 at 08 :22:30-08:23:00.)  Further, during his 
first phone call with Mrs. Smith, at approximately 8:27 AM, Officer Tait 
indicated that “what you [Plaintiffs] need to do is you need to come out safely. 
I’m a negotiator okay, that’s my primary goal . . . is I need y’all to come out of 
the house safely.”  ( Id. at 08:27:10-08:27:30.)  Howe ver, Plaintiffs only exited 
their home at approximately 8:58 AM, 35 minutes after Officer Tait’s final 
bullhorn order and 30 minutes after hi s exhortation that he “need[ed]” 
Plaintiffs “to come out of the house safe ly.”  (Ehrenreich BWC, Doc. 40-12 at 
08:58:40-08:59:20; Wilson BWC Part 2, Doc. 40-15 at 08:59:00-08:59:20.)  That 
is, there was a meaningful temporal gap between Officer Tait’s commands and 
Mrs. and Mr. Smith’s exit from the residence.   
This poses a problem for Plaintiffs , because for a show-of-authority 
seizure to occur, “it must be  the official show of au thority that produces the 
suspect’s acquiescence.”  United States v. Baxter, 12 F. App’x 170, 172 (4th Cir. 
2001); see also  Hodari D. , 499 U.S. at 628 (explaining that officers’ use of 
flashing lights during a police chase could not have effected a seizure because 
“that ‘show of authority’ did not produce  [the plaintiff’s] stop” (emphasis 
added)); Hill v. City of Fountain Valley , 70 F.4th 507, 51 4 (9th Cir. 2023) 
(“[T]he officer’s show of authority must cause the plaintiff’s submission.”).  The 
delay between the issuance of Officer Ta it’s instructions an d Plaintiffs’ exit 
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from the home undercuts Plaintiffs’ assertion that they were prompted to leave 
their home by Officer Tait’s commands.   Indeed, the Elev enth Circuit has 
explained that “for a show-of-authority seizure to occur, ordinarily a suspect 
must submit immediately upon that showing to de monstrate he yields.”  
Watkins v. Davis, 156 F.4th 1084, 11 04 (11th Cir. 2025) (emphasis added).  
Here, Plaintiffs did not submit to Office r Tait’s directions to exit their home 
promptly; they waited over half an hour to come outside. 
In addition, two intervening phone calls, involving much discussion 
between Officer Tait, Sergeant Wilson, and Mrs. Smith, occurred between the 
time Officer Tait commanded Plaintiffs to leave and Plaintiffs’ actual exit from 
the house.  During those conversati ons, Sergeant Wilson repeatedly 
emphasized to Mrs. Smit h that he was “not talk ing about arre sting anyone” 
and was “not trying to arrest anyone.”   (Tait BWC, Doc. 40-13 at 08:43:20-
08:45:10.)  Sergeant Wilson reassured Mrs. Smith twice that she was not facing 
any criminal charges.  ( Id.)  He also employed language that could be viewed 
as indicating that Plaintiffs were free to deny officers’ requests to come out of 
the house and talk to them.  For example, Sergeant Wilson asked Mrs. Smith: 
“Are you willing to come to the steps and sit down on your front steps and talk 
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to me?”  (Id. (emphasis added).)9  In common parlance, one might characterize 
Sergeant Wilson’s interventi on as an effort to signi ficantly “deescalate” the 
situation. 
Based on the Eleventh Circuit’s guidance that “ordinarily a suspect must 
submit immediately u p o n  [ a  s h o w  o f  a u t h o r i t y ]  to demonstrate he yields[,]” 
Watkins, 156 F.4th at 1104 (emphasis added), the Court finds that Plaintiffs 
did not submit to Officer Tait’s command s to come out of th eir home.  Or put 
another way, Officer Tait’s orders were  not the only show of authority that 
prompted Plaintiffs to leave their home.  Given the half-an-hour delay between 
Officer Tait’s instructions and Plaintiffs’ exit from the residence, as well as the 
intervening phone calls between Mrs. Smith and the officers, Plaintiffs did not 
 
9 There is also at least some indication that Mrs. Smith may have understood 
the encounter to have changed to a consensual one.  At the end of the first call 
with officers—following Sergeant Wilson’s reassurances that he did not want 
to arrest anyone and that Mrs. Smith was not facing any charges—Mrs. Smith 
appeared to exert some control over th e interaction with o fficers.  She told 
officers that she was going to come outside or that o fficers could come in the 
house in 10 minutes.  She then instructed Sergeant Wilson to “[c]all [her] in 
exactly 10 minutes and then we’ll reso lve it.”  (Tait BWC, Doc. 40-13 at 
08:43:20-08:45:10.)  That said, Mrs. Sm ith’s subjective perception is not 
relevant to the seizure inquiry.  See Hodari D., 499 U.S. at 628 (“[T]he test for 
existence of a ‘show of  authority’ is an objective one: not whether the citizen 
perceived that he was being ordered to restrict his movement, but whether the 
officer’s words and actions would have conveyed that to a reasonable person.” 
(emphasis added)). 
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“actually submit[ ]” to Officer Tait’s initial show of authority.  Brendlin, 551 
U.S. at 254.   
That finding, however, also does not end the seizure inquiry in this case.  
Even though Plaintiffs did not yield to Officer Tait’s initial show of authority, 
the Court finds that Officer Tait, alo ng with other office rs, engaged in a 
continued show of authority to which Plai ntiffs Catherine and Dwight Smith 
submitted by exiting their home.  Pu t another way, when considering the 
totality of the circumstances at the time that Mrs. and Mr. Smith exited their 
home, a reasonable person would not have felt free to ignore the officers’ 
repeated demands and (later) requests that Plaintiffs come outside and speak 
with them.  In reaching this conclu sion, the Court considers five factors 
especially significant. 
First, despite the passage of time fo llowing their initial commands, 
Officer Tait and other officers remained  outside Plaintiffs ’ home.  Moreover, 
they provided no indication that they planned on leaving until Plaintiffs exited 
their home to speak with them.  Although factually distinct, in Menuel, the 
Eleventh Circuit characterized police officers’ encirclement of a suspect 
barricaded in a bedroom as an “impenetrable deployment of police compulsion” 
and an “overwhelming” display of “force.”  Menuel, 25 F.3d at 995; see United 
States v. Jerez , 108 F.3d 684, 692 (7th Cir. 19 97) (“When a person is in a 
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confined area, encircling th e area in an intimidating fashion contributes to a 
reasonable belief that ignoring the la w enforcement presence is not an 
option.”); c.f. Baude v. Leyshock, 23 F.4th 1065, 1071 (8th Cir. 2022) (“When a 
person is surrounded by officers on all sides, he would reasonably believe that 
he is no longer free to leave and that he has been seized.” ).  Here, the BWC 
footage shows that officers used their police vehicles to block off the cul-de-sac 
on which Plaintiffs’ house sat.   
Second, and relatedly, it is significant  that this incident took place 
outside Plaintiffs’ home, which is an especially sensitive location for Fourth 
Amendment purposes.  One throughlin e in the Supreme Court’s Fourth 
Amendment jurisprudence is the sanctity of the home.  That is, “when it comes 
to the Fourth Amendment, the ho me is first among equals.”  Florida v. 
Jardines, 569 U.S. 1, 6 (2013).  “At the very  core stands the right of a man to 
retreat into his own home and there be free from unreasonable governmental 
intrusion.”  Silverman v. United States, 365 U.S. 505, 511 (1961).  And 
although not the only fact or, “[w]here” a police enco unter “takes place” is 
certainly a consideration in a seizure inquiry.  Bostick, 501 U.S. at 437. 
Third, notwithstanding Sergeant Wilson’s efforts to reassure Mrs. Smith 
that he did not intend to arrest Plaintiffs, the officers continued to request that 
Mrs. Smith leave her house and talk to them.  Sergeant Wilson, for instance, 
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repeatedly told Mrs. Smith he “want[ed] to sit down and talk” with her.  (Tait 
BWC, Doc. 40-13 at 08:43:20-08:45:1 0.)  As the Eleventh Circuit has 
recognized, “when the police state that they ‘want to’ undertake some activity, 
agreement to such an imperative statement  is often seen as submission to a 
claim of authority[.]”  United States v. Gonzalez , 71 F.3d 819, 829 (11th Cir. 
1996) (citing 3 Wayne R. LaFave, Search and Seizure—A Treatise on the 
Fourth Amendment § 8.2(a) at 180 (1987)). 
Throughout the incident, moreover, Mrs. Smith pr otested the officers’ 
presence outside their home.  Office rs responded to those protests by 
repeatedly requesting that Mrs. Smith come outside of her house.  On her 
second and final phone call with officers , three minutes before she exited the 
residence, Mrs. Smith told Sergeant Wilson, “I’m not even sure if I want to talk 
to you now.”  (Tait BWC, Doc. 40-13 at  08:54:55-08:57:00.)  Sergeant Wilson 
did not inform Mrs. Smith that she was free to ignore his request to speak, but 
instead asked, “So are you interested in  resolving the issues?”  ( Id.)  A few 
moments later, Sergeant Wilson stated, “I’m asking you to meet me on the front 
porch.”  ( Id.)  Even though Sergeant Wils on’s language was polite, the 
consistent and repeated nature of the officers’ requests indicated that Plaintiffs 
would not be left alon e until they complied with the requests.  C.f. United 
States v. Jones, 678 F.3d 293, 303 (4th Cir. 2012) (“A request certainly is not 
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an order, but a request—two back-to-back requests in this case—that conveys 
the requisite show of authority may be  enough to make a reasonable person 
feel that he would not be free to leave” (quota tion omitted)); United States v. 
Richardson, 385 F.3d 625, 630 (6th Cir. 2004) (finding that an officer’s 
instruction to “just hang out right here for me” was sufficien t to effectuate a 
seizure notwithstanding the fact that the officer “did not display an 
intimidating demeanor or use coercive language”); Johnson v. Campbell, 332 
F.3d 199, 206 (3d Cir. 2003) (finding that a suspect was seized when he 
attempted to decline an o fficer’s initial request to roll down his window, but 
the officer made the same request again, making it clear that he “would not be 
left alone until he complied”). 
Fourth, although Plaintiffs did not comp ly with Officer Tait’s initial 
instructions to exit the ho me, those earlier orders are still relevant to the 
totality of circumstances at the time Plaintiffs exited their home.  A reasonable 
person’s perception of whether they we re free to ignore officers’ subsequent 
requests would nevertheless be informed by the offi cers’ earlier commands to 
come out of the residence.  It is worth again emphasiz ing the volume and 
unequivocal nature of these commands.  Officer Tait declared  that Plaintiffs 
were under arrest and ordered them out of their home no less than 15 times at 
the beginning of the encounter.  Two separate 911 operat ors also informed 
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Plaintiffs in no uncertain terms that if they didn’t leave their house, officers 
would enter their home and arrest them.  Sergeant Wilson then sought to 
deescalate the situation, but those initial commands make it more likely that 
a reasonable person would not feel at lib erty to ignore offi cers’ later requests 
to exit the home. 
Fifth, when Plaintiffs exited the front door of their home, they were 
almost immediately joined by several officers, including Officer Tait, on their 
driveway.  At the end of her second call with the officers, Mrs. Smith expressed 
her desire to leave the house, stating: “I’m getting ready to leave now, in fact. 
I’m just going to leave. Outside the house. I’m going to pull my car out in about 
three minutes.”  The conver sation took place on Offi cer Tait’s phone, and he 
heard the conversation.  (Tait BWC, Doc. 40-13 at 08:54:55-08:57:00.)  When 
Plaintiffs exited their home, Officer Tait and Sergeant Wilson stepped onto 
their driveway and physically blocked, albeit briefly, their ability to leave.  
Officer Ehrenreich also approached and stood behind Officer Tait and Sergeant 
Wilson on the edge of the driveway.  An other police official, Major Clifton, is 
also seen standing on the edge of the driveway.  (Ehrenreich BWC, Doc. 40-12 
at 09:00:20-09:00:55; Wilson BWC Part 2, Doc. 40-15 at 09:00:20-09:00:55.) 
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(Ehrenreich BWC, Doc. 40-12 at 08:59:29.) 
Though the officers quickly left  the driveway when Mrs. Smith 
demanded they leave,10 the Court still considers th e officers’ approach on the 
driveway as a factor weighi ng in favor of finding a se izure.  As the Eleventh 
Circuit has noted in the context of airport stops, “blocking an individual’s path 
or otherwise intercepting him to prev ent his progress in any way is a 
consideration of great, and probably de cisive, significance ” with respect to 
whether a seizure has occurred.  United States v. Berry, 670 F.2d 583, 597 (5th 
 
10 Officer Tait left the driveway especially quickly in response to Mrs. Smith’s 
demand that he do so.  In total, Offi cer Tait stood on Plai ntiffs’ driveway for 
approximately 30 seconds.  (Ehrenreich BWC, Doc. 40-12 at 08:59:15-08:59:45.) 
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Cir. 1982); see Andre , 148 F.4th at 1293; see also Keller v. Fleming , 952 F.3d 
216, 223 (5th Cir. 2020) (“Officer Ha wthorne interrupted Simpson’s path and 
intercepted him to prevent his progre ss—which is probably decisive in 
assessing seizure.” (cleaned up)).  The Court does not see why officers’ physical 
obstruction of Plaintiffs should be any less significant here.  To the contrary, 
the driveway adjacent to Plaintiffs’ ho me, even if it do es not constitute 
curtilage, is more sensitive from a Fourth Amendment perspective than public 
places like airports.  C.f. Jardines, 569 U.S. at 6 (“[W]hen it comes to the Fourth 
Amendment, the home is first among equals.”); Andre, 148 F.4th at 1293 
(noting that an airport, unlike a ho me, “is outside the realm of Fourth 
Amendment protection” (cleaned up)).   
In short, after having their home surrounded by police officers for forty-
five minutes, and facing repeated dema nds and requests to come outside, a 
reasonable person in Plaintiffs’ position would not have felt free to ignore the 
officers’ presence.  Moreover, upon exiting the hous e, Plaintiffs were blocked 
by officers, albeit briefly, on their driveway.  When considered together, Officer 
Tait’s and other officers’ actions “communicated to a reasonable person that he 
was not at liberty to igno re the police presence and go about his business.”  
Bostick, 501 U.S. at 437 (quoting Chesternut, 486 U.S. at 569).  Further, by 
complying with officers’ later requests to exit th eir home and speak with 
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officers on the driveway, Mrs. and Mr. Smith “voluntary submi[tted] to a show 
of authority[.]”  Torres, 592 U.S. at 322.   
Based on the totality of the circum stances, the Court concludes that 
Officer Tait and other officers seized Mrs. and Mr. Smith for Fourth 
Amendment purposes when they exited their home.  Officer Tait does not argue 
that he had a warrant or probable cause justifying his seizure of Plaintiffs, or 
that the seizure was otherwise reasonable .  In the absence of briefing on the 
reasonableness of the seizure, the Co urt assumes for argument’s sake, and 
without deciding, that the seizure violated the Fourth Amendment.  
2. Clearly Established Law 
 
The Court must now determ ine whether Officer Tait  violated “clearly 
established law” in seizing Mrs. and Mr. Smith.  “An official’s conduct violates 
clearly established law when ‘the contours of [the] right are sufficiently clear 
that every reasonable official would ha ve understood that what he is doing 
violates that right.’”  Echols v. Lawton, 913 F.3d 1313, 1323 (11th Cir. 2019) 
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).  There are three ways 
in which a plaintiff can demonstrate that  the law is clearly established: (1) 
“showing that a materially similar case has already been decided, whose facts 
are similar enough to give the police notice; (2) showing that a broader, clearly 
established principle derived from ge neral statements of the law contained 
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within the Constitution, sta tute, or caselaw should co ntrol the novel facts of 
his case; or (3) showing that the office r’s conduct so obviously violates the 
Constitution that prior ca se law is unnecessary.”  Andre, 148 F.4th at 1298 
(quoting Edger v. McCabe, 84 F.4th 1230, 1235 (11th Cir. 2023)) (cleaned up).   
For a legal rule to be clearly established, “[t]he rule’s contours must be 
so well defined that it is ‘clear to a reasonable officer that his conduct was 
unlawful in the situation he confronted.’”  D.C. v. Wesby, 583 U.S. 48, 63 (2018) 
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).  The Supreme Court has 
“repeatedly stressed that courts must not define clearly established law at a 
high level of generality, since doing so avoids the crucial question whether the 
official acted reasonably in the particular circumstances that he or she faced.”  
Id. at 63-64 (quotation omitted).  “Such specificity is especially important in 
the Fourth Amendment context, where . . . it is sometimes difficult for an 
officer to determine how the relevant legal doctrine . . . will apply to the factual 
situation the officer confronts.”  Mullenix v. Luna , 577 U.S. 7, 12 (2015) 
(cleaned up). 
The Court first observes that the Eleventh Circuit has applied the clearly 
established law inquiry to the threshold question of whether an officer’s actions 
amounted to a seizure of a plaintiff .  See, e.g. , Andre, 148 F.4th at 1299 
(affirming a grant of qualified immunity  where it was not clearly established 
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that officers’ actions would have am ounted to a seizure under controlling 
precedent); Cooper v. Rutherford , 503 F. App’x 672, 6 75-76 (11th Cir. 2012) 
(“[P]reexisting case law does not clearly establish that Appellees were seized 
when Officer Black’s bullet accidentally struck them during the confrontation 
with the armed bank robber.”). 
Plaintiffs have not identified any Supreme Court or Eleventh Circuit 
case that considers whether a seizure oc curred under facts materially similar 
to those present here.  For example, Plaintiffs cite United States v. Edmondson, 
791 F.2d 1512 (11th Cir. 1986), contending that “[i]t was clearly established 
that the officers unreason ably terminated the freedom of the Plaintiffs while 
barricaded in their home.”   (Doc. 48 at 13.)  Edmondson, however, did not 
consider whether a person was seized when their house was surrounded by 
police.  Instead, in Edmondson, the Eleventh Circuit held only that “[a] suspect 
does not consent to being arrested within his residence when his consent to the 
entry into his residence is prompted by a show of official authority.”  Id. at 
1515.11  Another case cited by Plaintiffs, Moore v. Pederson, determined that 
an officer made an unlawful seizure by breaching the threshold of the plaintiff’s 
 
11 Similarly, United States v. Tovar-Rico , also cited in Plaintiffs’ briefing, 
concerned whether the police obtained consent to make a warrantless entry 
into a suspect’s home.  61 F.3d 1529 (11th Cir. 1995). 
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home to arrest him where the officer lacked a warrant, probable cause, exigent 
circumstances, or consent.  806 F.3d 1036, 1044 (11th Cir. 2015).   
None of the cases cited by Plaintiffs , which involve warrantless entries, 
searches, and arrests within  the home, consider the question of whether a 
seizure occurred under facts like those pr esent here.  Nor has the Court been 
able to independently loca te such a case.  Therefore, the Court considers 
whether “a broader, clearly establis hed principle derived from general 
statements of the law . . . should cont rol the novel facts of his case[.]”  Andre, 
148 F.4th at 1298.   
In the Court’s view, existing caselaw did not provide “sufficiently clear” 
notice such that “every re asonable official [in Offi cer Tait’s position] would 
understand” that his actions amounted to  a seizure of Mr. and Mrs. Smith.  
Wesby, 583 U.S. at 63 (quotation omitted).  The relevant legal test for whether 
an officer has engaged in a show of authority sufficient to give rise to a seizure 
is broad and fact-intensive—namely, “whether the officer’s words and actions 
would have conveyed . . . to a reasonable person” that “he was being ordered to 
restrict his movement[.]”  Hodari, 499 U.S. at 628.  Or whether, in light of an 
officer’s words and actions, “a reasonable person would feel free to decline the 
officers’ requests or otherwise terminate the encounter.”  Bostick, 501 U.S. at 
436.   
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Although there are several cases specifying the factors that should be 
considered in determining whether a seizure occurred, those cases do not 
prescribe how those factors should apply to every factual scenario.  See, e.g., 
Mendenhall, 446 U.S. at 554 (listing “[e]xamples of circumstances that might 
indicate a seizure,” such as “the threatening presence  of several officers, the 
display of a weapon by an officer, some physical touching of the person of the 
citizen, or the use of language or tone of voice indicating that compliance with 
the officer’s request might be compelled); Perez, 443 F.3d at 778 (listing factors 
a court should consider in  determining whether ther e was a seizure such as 
whether the “citizen’s path is blocked or impeded, . . . the length of the suspect’s 
detention and questioning, the number of police office rs present, . . . and the 
language and tone of voic e of the police”).  While there may be many cases 
where the application of the relevant factors is straightforward, this case is not 
one of them. 
As the Court explained above, it faced considerable difficulty in 
determining whether Officer Tait seized Plaintiffs under the circumstances of 
this case for at least two reasons.  Fir st, Plaintiffs did not submit to Officer 
Tait’s commands to exit their home with  their hands up.  Approximately half 
an hour elapsed between th e time that Officer Tait issued his last order for 
Plaintiffs to come out of  the house and the moment when Plaintiffs actually 
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left their home.  Second , during this interim pe riod, Sergeant Wilson 
repeatedly assured Mrs. Smith that he did not want to arrest any of the 
Plaintiffs and began using language indicating that he was requesting—rather 
than ordering—Mrs. Smith to exit the home to speak with officers.  (See  Tait 
BWC, Doc. 40-13 at 08:43:20-08:45:10 (“ Are you willing to come to the steps 
and sit down on your front steps and talk to me?”).) 
Had Plaintiffs promptly yielded to Officer Tait’s commands at the time 
they were given, the Court would have concluded that a reasonable officer in 
Officer Tait’s position would have known that hi s actions amounted to a 
seizure.  Officer Tait’s initial comm ands were unequivocal—he repeatedly 
declared that Plaintiffs were under ar rest and ordered Plaintiffs out of their 
home with their hands up.  But Plaintiffs did not submit to Officer Tait’s initial 
orders.  They stayed in their home for half an hour and only came out following 
extensive conversations with Officer Tait and Sergeant Wilson over the phone.   
Therefore, as discussed earlier, th e relevant tempor al point for the 
seizure analysis is the moment that Plaintiffs exited their home.  By that time, 
Sergeant Wilson had undertaken significant efforts to deescalate the situation 
between Plaintiffs and the officers.  For instance, he had repeatedly told Mrs. 
Smith that he had no interest in arresti ng any of the Plaint iffs and that she 
did not face any charges.  And in requesting that Mrs. Smith come outside and 
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speak with him, he employed language that—at least arguably—indicated that 
she could deny his request.  When Mrs. and Mr. Smith did eventually exit the 
house, the officers briefl y approached them on thei r driveway to speak with 
them but quickly left when Mrs. Smith demanded they do so.  Indeed, Officer 
Tait left especially quickly—he spent a total of 30 seconds on the driveway.  
The officers did not attempt to physically handcuff or restrain Plaintiffs in any 
manner. 
While the Court has now determined that a seizure occurred based on 
the totality of the circumstances, a reasonable officer in Officer Tait’s position 
could have believed otherwise.  In particular, an officer could have reasonably 
believed that Sergeant Wi lson’s lengthy conversa tion with Mrs. Smith 
demonstrated that the officers no longer intended to seize Plaintiffs and wished 
only to have a consensu al conversation with them.  Moreover, the Court 
considers it significant that while Officer Tait briefly approached Plaintiffs on 
their driveway, he left almost immediately upon Mrs. Smith’s request that he 
do so.  Plaintiffs have not pointed to—n or has the Court been able to locate—
any case law placing the question of whether Officer Tait’s actions constituted 
a seizure “beyond debate.”  See Ashcroft v. al-Kidd , 563 U.S. 731, 741 (2011) 
(“We do not require a case directly on point, but existing precedent must have 
placed the statutory or co nstitutional question beyo n d  d e b a t e . ” ) .   T o  t h e  
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contrary, the prolonged back-and-fort h exchanges between Plaintiffs and 
officers in this case are especially challenging to parse from a Fourth 
Amendment perspective, even with the benefit of hindsight.   
Because a reasonable officer in Offi cer Tait’s position may not have 
understood that his actions amount ed to a seizure under the peculiar 
circumstances of this case, the Court finds that the relevant law was not clearly 
established.  As such, Officer Tait is entitled to qualified immunity with respect 
to Plaintiffs’ unlawful seizure claim.12 
B. Unlawful Search (Count 1) 
Plaintiffs argue that Officer Tait unlawfully intruded onto the curtilage 
of Plaintiffs’ home.  (See, e.g., Doc. 40-1 at 6 (“Plaintiffs did not give Defendant 
Tait an expressed license to intrude onto the Plaintiff’s curtilage.”).)  
Elsewhere, Plaintiffs contend that Offi cer Tait “intruded on the Plaintiffs 
privacy [by] using a PA loud microph one for 8 minutes calling for arrest and 
issuing verbal command[.]”  (Doc. 48 at 5.)  Plaintiffs suggest that, pursuant 
Kyllo v. United States , 533 U.S. 27 (2001), Office r Tait may have unlawfully 
searched their home withou t physically trespassing on  their property.  (Doc. 
 
12 Even if were clearly established that Plaintiffs were seized for the purposes 
of the Fourth Amendment, the Court is  unaware of any case that clearly 
establishes that Officer Tait’s actions were constitution ally unreasonable, 
when viewed under the totality of the circumstances presented here. 
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48 at 4.)  Based on the evidence submi tted by Plaintiffs, the Court finds that 
Officer Tait did not search Plaintiffs’ home or its curtilage. 
The Fourth Amendment’s “constitutional  protection of people in their 
houses extends to the ‘curtilage’ of th e home, which is ‘the area immediately 
surrounding and associated with the home.’”  United States v. Stephen, 823 F. 
App’x 751, 754 (11th Cir. 2020) (quoting Collins v. Virginia, 584 U.S. 586, 586 
(2018)).  “[I]t is ‘presumptively unreasonable’ to search a home or its curtilage 
without a warrant[.]”  United States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 
2015) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)).  The 
question of whether a particular area constitutes curtilage is “resolved with 
particular reference to four factors: [1] the proximity of the area claimed to be 
curtilage to the home, [2] whether the area is includ ed within an enclosure 
surrounding the home, [3] the nature of the uses to which the area is put, and 
[4] the steps taken by the resident to protect the area from observation by 
people passing by.”  United States v. Dunn, 480 U.S. 294, 301 (1987).   
When Officer Tait arrived at the sc ene of the incident, he positioned 
himself and his police vehicle on the road outside of Plaintiffs’ residence.  This 
road—whether it was a public or private road—was not part of the curtilage of 
Plaintiffs’ residence.  Th e officers’ BWC footage demo nstrates that the road 
was separated from Plaintiffs’ home by a driveway.  The road was not enclosed 
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and was, at minimum, accessible to ne ighbors and their visitors, if not the 
general public.  There is also no indi cation that Plaintiffs—pretermitting 
whether they even had the authority to do so—took any steps to shield the road 
from public view. 
The only time that Officer Tait arguably entered the curtilage of 
Plaintiffs’ home was when he briefl y stood on Plaintiffs’ driveway while 
speaking to them.  Sergeant Wilson’s body camera footage depicts Officer Tait’s 
location at the time he spoke to Plaintiffs. 
 
(Wilson BWC Part 2, Doc. 40-15 at 08:59:19.)   
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The portion of the driveway on which Officer Tait was standing is similar 
to the section of driveway that the Eleventh Circuit considered in United States 
v. Stephen, 823 F. App’x 751 (11th Cir. 2020).  In Stephen, the Eleventh Circuit 
recognized that the relevant driveway area was near the defendant’s house, 
but nevertheless determined that the driveway was not part of the curtilage of 
the house: 
The driveway was not gated, covered, enclosed, or partly enclosed. It did 
not appear that any portion of the driveway was used as a porch or patio 
or otherwise served as an extension of Stephen’s home—to the contrary, 
the driveway appeared to be a common area used by the residents of both 
units solely for parking cars. And the occupants of the home had made 
no effort to conceal the driveway  from passersby. Furthermore, the 
driveway formed part of the path that visitors would naturally take to 
walk to the front door—a pathway led from the upper end of the driveway 
to the front porch. In short, nothing in the re cord indicates that the 
deputies entered an area harboring the “intimate activity associated 
with the sanctity of a man’s home an d the privacies of life” when they 
approached Stephen in his driveway. 
 
Id. at 755. 
Likewise, applying the Dunn factors here, the Court finds that the 
portion of the driveway on which Office r Tait was standing did not constitute 
the curtilage of the home.  Plaintiffs’ dr iveway appears to be relatively short, 
approximately three car lengths long.  Thus, the relevant area of the driveway 
was quite close to the garage attached to Plaintiffs’ home.  This factor weighs 
in favor of classifying the subject portion of the driveway as curtilage. 
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However, the remaining Dunn factors do not support the argument that 
the relevant area of the driveway was curtilage.  “The driveway was not gated, 
covered, enclosed, or partly enclosed.”  Stephen, 823 F. App’x at 755.  Further, 
it does “not appear that any portion of  the driveway was used as a porch or 
patio or otherwise served as an extension of [Plaintiffs’] home[.]”  Id.  Instead, 
the presence of Plaintiffs’ vehicle suggests that the driveway was used to park 
vehicles.  There is no furniture or ot her indication that the driveway was 
employed as a patio or other intimate area  of the home.  It is also clear that 
Plaintiffs “made no effort to conceal the driveway from passersby.”  Id.  To the 
contrary, the driveway was visible from the road, as well as from the homes of 
Plaintiffs’ neighbors.  The Court also considers that “the driveway formed part 
of the path that visitors would naturally take to walk to the front door[.]”  Id.  
The portion of the driveway at issue is  connected to a f ootpath that leads 
visitors to the front door of the residence.   
Considering the Dunn factors together, the area  in which Officer Tait 
briefly stood was not one th at “harbors the intimate activity associated with 
the sanctity of a man’s home and the privacies of life.”  Dunn, 480 U.S. at 300 
(cleaned up).  Because O fficer Tait did not enter th e curtilage of Plaintiffs’ 
home, he did not require a warrant to approach them and speak to them.   
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Further, to the extent th at Plaintiffs argue that Officer Tait searched 
their home without entering it, à la Kyllo, there is simply no support for that 
proposition.  Plaintiffs do not show that Officer Tait used a thermal imager, or 
any other device not in general public us e .   N o r  d o  P l a i n t i f f s  i n d i c a t e  t h a t  
Officer Tait evinced any intent to sear ch their home.  Plaintiffs therefore 
cannot bring a Fourth Amendment claim against Defendant Tait for 
conducting an unlawful search of their home. 
C. Excessive Force (Count 2) 
Plaintiffs contend that Officer Tait used excessive force against them in 
violation of the Fourth Amendment.  (Doc. 40-1 at 15.)  Specifically, Plaintiffs 
allege that Officer Tait used excessive force  
based on [extreme coercion (1) Terminated the Plaintiffs freedom for over 
47 minutes in broad daylight (2) no crime had been committed, (2) the 
Plaintiffs never posed a threat to the safety of the officers or others (3) 
the officers called for arrest usin g  a  P A  l o u d  m i c r o p h [ o n ] e  i n  a  
threatening manner invading the Plai ntiffs privacy (4) Used marked 
police cars to block off the Plaintiffs home (5) Defendant did not probable 
cause and exigent circumstances to effect the arrest while the Plaintiffs 
were barricaded inside of their home. 
 
(Doc. 40-1 at 18-19.)  Plaintiffs also state that Officer Tait “intentionally placed 
the Plaintiffs in immediate apprehension  of harmful or offensive contact by 
order the plaintiffs out of the home they are under arrest.”  (Doc. 48 at 16.) 
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 “To assert a Fourth Amendment claim based on the use of excessive 
force,” a plaintiff “must allege (1) that a seizure occurred and (2) that the force 
used to effect the seizure was unreasonable.”  Troupe v. Sarasota Cnty. , 419 
F.3d 1160, 1166 (11th Cir. 2005).  As the Court held with respect to Plaintiffs’ 
unlawful seizure claim, it was not clearly established that Officer Tait’s actions 
constituted a seizure under the circumstances present here.  For that reason, 
Officer Tait is also entitled to qualified immunity on Plaintiffs’ excessive force 
claim.  Even if that were not the case, there is simply no indication that Officer 
Tait employed any force in briefly approaching Plaintiffs on their driveway or 
at any other time.  Plaintiffs have not submitted evidence showing that Officer 
Tait applied physical force to them in any manner.  Moreover, while other 
officers brandished firearms in a low-ready position outside of Plaintiffs’ home, 
the BWC footage does not depict Officer Tait doing so.  On this record, Plaintiffs 
cannot state an excessive force claim against Officer Tait.  
D. First Amendment Retaliation (Count 3) 
Plaintiffs allege that Officer Tait retaliated agai nst them for exercising 
their First Amendment rights.  (Doc. 28 ¶¶  227-235.)  In their response brief, 
they claim that “the retalia tory conduct is an arrest. ”  (Doc. 48 at 18.)  The 
First Amendment “protects not only the affirmative right to speak, but also the 
right to be free from retaliation by a public official for the exercise of that right.”  
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Echols v. Lawton , 913 F.3d 1313, 1320 (11th Cir. 2019) (quotation marks 
omitted).  To prevail on a claim for First Amendment retaliation, a plaintiff 
must show that (1) he engaged in protec ted speech, (2) the official’s conduct 
adversely affected the protected speech,  and (3) a causal connection existed 
between the speech and the official’s retaliatory conduct.  Id. 
Plaintiffs have not alleged suffici ent facts, or pr esented evidence, 
supporting a First Amendment retaliation  claim against Officer Tait.  As an 
initial matter, Plaintiffs do not specify what protected speech they engaged in 
that purportedly prompted retaliation from Office r Tait.  Moreover, even 
assuming that Officer Tait’s announcements that Plaintiffs were under arrest 
and demanding that they exit their home were unlawful, the record does not 
indicate any causal connection between Plaintiffs’ speech and Officer Tait’s 
actions.  Officer Tait began issuing those commands within approximately one 
minute of arriving on the scene.  He had not spoken to Plaintiffs or heard their 
speech at that juncture.  Based on  the circumstances, Officer Tait’s 
announcements appear to have been motivated by Officer Ehrenreich’s report 
that Plaintiffs attempted to “charge” at Officer Ehrenreich.   
In short, Plaintiffs have failed to plausibly establish any element of their 
First Amendment retaliation claim against Defendant Tait.  
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E. Failure to Intervene (Count 4) 
Plaintiffs contend that Officer Tait is liable for failing to intervene in 
other officers’ use of excessive force ag ainst them.  (Doc. 48  at 19-20.)  “[A]n 
officer who is present at the scene and who fails to take reasonable steps to 
protect the victim of another officer’s use of excessive force, can be held liable 
for his nonfeasance.”  Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) 
(quoting Velazquez v. City of Hialeah , 484 F.3d 1340, 1341 (11th Cir. 2007)).  
To bring a failure to intervene clai m, “there also must be an underlying 
constitutional violation.”  Sebastian v. Ortiz , 918 F.3d 1301, 1312 (11th Cir. 
2019). 
As explained in preceding sections of this order, it was not clearly 
established that the officers’ actions amounted to a seizure under the facts of 
this case.  For that reason , Officer Tait is also entitled to qualified immunity 
on Plaintiffs’ failure to intervene claim.   
Further, the only act of  excessive force that Pl aintiffs contend that 
Officer Tait should have intervened in is Officer Ehrenreich’s act of “holding a 
rifle with his hands on the trigger in front of the Plaintiffs home.”  (Doc. 48 at 
20.)  Plaintiffs have not identified any case where a court has held an officer 
liable for failing to prevent another officer from holding a weapon in the low 
ready position, especially where, as here , the officer was told that people had 
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attempted to attack the other officer.  Qualified immunity would therefore be 
appropriate on this ground as well.   
F. Civil Conspiracy (Count 5) 
Plaintiffs allege civil conspiracy claims against Officer Tait pursuant to 
42 U.S.C. § 1983, 42 U.S.C. § 1985, and 42 U.S.C. § 1986.  (Doc. 28 ¶¶ 245-251.)  
To prevail on a claim for civil conspiracy under 42 U.S.C. § 1985(3),13 a plaintiff 
must establish:  
(1) a conspiracy; (2) for the purpose of depriving, either directly or 
indirectly, any person or class of pe rsons of the equal protection of the 
laws, or of equal privileges and immu nities under the laws; and (3) an 
act in furtherance of the conspiracy ; (4) whereby a person is either 
injured in his person or property or deprived of any right or privilege of 
a citizen of the United States. 
 
Park v. City of Atlanta, 120 F.3d 1157, 1161 (11th Cir. 1997). 
42 U.S.C. § 1986 “provides a cause of action against anyone who has 
‘knowledge that any of the wrongs co nspired to be done, and mentioned in 
section 1985 of this title, are about to be committed,  and having the power to 
prevent or aid in preventing the commission of the same, neglects or refuses so 
 
13 Although Plaintiffs do not specify which subsection of 42 U.S.C. § 1985 they 
assert their claim under, § 1985(3) is th e only subsection that could apply to 
their allegations.  Subsection (3) conc erns the deprivation of civil rights or 
privileges, while subsection (1) involves the prevention of federal officers from 
performing their duties and subsection (2) prohibits the obstruction of justice 
in various ways.  42 U.S.C. § 1985. 
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to do.’”  Id.  at 1159 (quoting 42 U.S.C. § 1986).   In other words, Section 1986 
claims are “derivative” of Section 1985 violations.  Id. 
Officer Tait argues that Plaintiffs’ conspiracy claims are precluded by 
the “intracorporate conspiracy doctrine.”  (Doc. 44-1 at 14-15.)  Plaintiffs do not 
respond to this argument.  “The intracorporate conspiracy doctrine holds that 
acts of corporate agents are attributed  to the corporation itself, thereby 
negating the multiplicity of actors necessary for the formation of a conspiracy.”  
McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000).  
Pursuant to the doctrine, “a corporat ion cannot conspire with its employees, 
and its employees, when ac ting in the scope of their employment, cannot 
conspire among themselves.”  Id.  The Eleventh Circuit has interpreted the 
intracorporate conspiracy doctrine to bar—subject to  certain exceptions not 
applicable here—Section 1985(3) claims  “against actors who are part of a 
single, public entity and who allegedly conspired to interfere with civil rights.”  
Dickerson v. Alachua Cnty. Comm’n, 200 F.3d 761, 768 (11th Cir. 2000). 
In this case, Plaintiffs allege a conspiracy between the individual 
Defendant officers, all of whom were officers at the City of John’s Creek Police 
Department.  (Doc. 28 ¶¶ 245-251.)  That is, all the officers were employed by 
the same municipal entity.  As such, the intracorpora te conspiracy doctrine 
precludes Plaintiffs from bringing a Section 1985(3 ) claim against Defendant 
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Tait and the other officers.  See Dickerson, 200 F.3d at 768 (“[T]he County jail 
and its employees are considered to constitute a single legal entity that cannot 
conspire with itself.”).  Moreover, because Plaintiffs cannot show the existence 
of a conspiracy under Section 1985(3), Plaintiff also cannot assert a derivative 
Section 1986 claim.  Plaintiffs Sectio n 1985 and Section 1986 civil conspiracy 
claims are therefore dismissed. 
G. State Law Claims for Trespass and Assault (Counts 7 & 8) 
Plaintiffs allege state law claims for trespass and assault against Officer 
Tait.  (Doc. 28 ¶¶ 262-73.)  Officer Tait argues that he  is entitled to official 
immunity, and that in any event, Plaintiffs have not raised a genuine dispute 
of material fact as to whether he comm itted those state law torts.  (Doc. 44-1 
at 17-20.) 
“In Georgia, a government official ‘may be liable for injuries and 
damages if they act with actual malice or with actual intent to cause injury in 
the performance of their official functions.’”  Hardigree v. Lofton , 992 F.3d 
1216, 1233 (11th Cir. 2021) (quoting Ga. Co nst. art. 1, § 2, ¶ IX(d)).  There is 
no dispute that Officer Tait was performing discretionary official duties when 
he responded to Officer Ehrenreich’s call for assistance and interacted with 
Plaintiffs.  Indeed, Plaintiffs allege that Officer Tait “was acting under the 
color of the law in the course and scope of his employment” as “a law 
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enforcement officer for the City of Johns Creek” during the events that are the 
subject of this suit.  (Doc. 28 ¶ 11.)  The question is whether Plaintiffs have 
presented evidence that Officer Tait acted with “actual malice” or “actual 
intent to cause injury” such that he does not enjoy official immunity. 
 “[I]n the context of offi cial immunity, ‘actual malice’ requires a deliberate 
intention to do wrong,” . . . and denote s express malice or malice in fact.”  
Adams v. Hazelwood , 520 S.E.2d 896, 898 (Ga. 1999) (cleaned up).  “Actual 
malice is a demanding standard[.]”  Black v. Wigington, 811 F.3d 1259, 1266 
(11th Cir. 2016).  “[U]nreasonable conduct” or “[e]ven recklessly illegal conduct 
does not support an inference of actual malice.”  Id.  Further, “actual intent to 
cause injury” is defined as “an actual intent to cause harm to the plaintiff, ‘not 
merely an intent to do the act purporte dly resulting in the claimed injury.’”  
Kidd, 518 S.E.2d at 125 (Ga. 1999) (quoting Frame v. Boatmen’s Bank , 782 
S.W.2d 117, 121 (Mo. Ct. App. 1989)).  “‘Actual intent to cause injury’ is also a 
demanding standard.”  Felio v. Hyatt, 639 F. App’x 604, 612 (11th Cir. 2016). 
Plaintiffs have presented no evidence  that raises a genuine dispute of 
material fact as to whether Officer Tait harbored actual malice or actual intent 
to cause injury to them.  During the incident, Officer Tait did not apply any 
physical force to Plaintiffs.  Nor did he point a weapon at Plaintiffs.  Although 
he told Plaintiffs that they were under arrest and ordered them to come out of 
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their home with their hand s up, that conduct, even  if unlawful, does not 
indicate actual malice or an actual intent to cause injury.  See Black, 811 F.3d 
at 1266 (explaining that deputies’ unlawful entry into a trailer home may have 
been “‘misguided’ or even ‘reckless,’ but that kind of conduct does not give rise 
to an inference of actual malice under Georgia law”).  There is simply no 
conduct in the record from which a jury could reasonably infer actual malice or 
actual intent to cause injury.  Accordingl y, Officer Tait is entitled to official 
immunity with respect to Plaintiffs’ state law trespass and assault claims. 
V. Conclusion 
For the foregoing reasons, Defendan t Tait’s cross-motion for summary 
judgment (Doc. 44) is GRANTED .  Plaintiffs’ motion for partial summary 
judgment (Doc. 40) is DENIED AS MOOT.  Defendant Tait is DISMISSED 
from the case.  
SO ORDERED, this 21st day of April, 2026. 
      
 
      S A R A H  E .  G E R A G H T Y  
      U n i t e d  S t a t e s  D i s t r i c t  J u d g e  
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