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Case 2:08-cv-02718-SHM-tmp Document 188 Filed 09/20/13 Page 1 of 81 PageID 1528








No. 08-2718-SHM-tmp






Procedural History

A bench trial was held on December 17, 2012, and December 18,
2012, on Plaintiff Timothy C. Watson’s § 1983 claims of excessive
force against Officers Christopher Clements and Russell Burrow. For
the reasons stated below, a verdict will be entered for Defendants
on Plaintiff’s claims.

On October 15, 2008, Plaintiff Timothy C. Watson, Tennessee
Department of Correction prisoner number 221443, who is currently
an inmate at the Hardeman County Correctional Facility in
Whiteville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 against the City of Dyersburg, Tennessee, and
Dyersburg Police Officers Mason (Joe) McDowell, Christopher

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Clements (whose last name was misspelled as “Clemmons” in the
Complaint), Russell Burrow, and Sterlin Wright. (Docket Entry
(“D.E.”) 1.) The complaint alleged, inter alia, that Dyersburg
Police officers used excessive force while arresting Plaintiff on
October 13, 2007, and February 20, 2008. Plaintiff filed an
amendment to his complaint on November 4, 2008. (D.E. 3.) On April
28, 2009, the Court issued an order that, inter alia, granted leave
to proceed in forma pauperis and assessed the civil filing fee,
granted in part and denied in part leave to amend, denied
appointment of counsel, and directed the Clerk to issue process
for, and the marshal to effect service on, the Defendants. (D.E.
6.) Defendants filed an Answer on July 8, 2009. (D.E. 20.)

On November 24, 2010, Defendants filed a motion for summary
judgment. (D.E. 87.) Plaintiff filed a response to the summary
judgment motion on April 4, 2011 (D.E. 117 & 118), and Defendants
filed a reply on April 21, 2011 (D.E. 122). On May 16, 2011,
Plaintiff filed a document entitled Plaintiff Request Leave
(Permission) to Reply And Amend Plaintiff’s Response to Defendants
Summary Judgment. (D.E. 124.) Defendants filed a reply in
opposition to the motion on May 31, 2011. (D.E. 125.) In an order
issued on July 8, 2011, the Court granted Plaintiff’s motion for
leave to file a sur-reply and to amend his response to the summary
judgment motion, granted Defendants’ motion to dismiss Plaintiff’s
claims arising from the October 13, 2007 arrest as time barred
(which included all claims against McDonald and Wright), granted
summary judgment on Plaintiff’s claims against the City of


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Dyersburg, denied the motion to dismiss Plaintiff’s claims against
the individual defendants in their individual capacities, dismissed
the false arrest claim arising from the arrest on February 20,
2008, denied summary judgment on the excessive force claim arising
from the arrest on February 20, 2008, and denied summary judgment
on the basis of qualified immunity. (D.E. 137.) The only remaining
claims were those against Defendants Burrow and Clements arising
from the alleged used of excessive force on February 20, 2008. (Id.
at 27-28.)

Defendants Burrow and Clements appealed the denial of
qualified immunity on the February 20, 2008 arrest, and Plaintiff
filed a cross-appeal. (D.E. 138 & 141.) In an order issued on
September 29, 2011, the Sixth Circuit Court of Appeals dismissed
Plaintiff’s appeal because it was taken from a non-final order.
Watson v. City of Dyersburg, Nos. 11-5842 & 11-5920 (6th Cir. Sept.
29, 2011). On May 23, 2012, the Court of Appeals affirmed the
Court’s denial of qualified immunity to Defendants Burrow and
Clements. Watson v. City of Dyersburg, No. 11-5842 (6th Cir. May
23, 2012). The mandate issued on June 20, 2012. (D.E. 149.)

A bench trial was set for December 17, 2012. (D.E. 155.) On
December 7, 2012, Defendants Burrow and Clements filed their Trial
Brief. (D.E. 164.) The Pre-Trial Order was entered on December 17,
2012. (D.E. 176.) The case was tried on December 17, 2012, and
December 18, 2012. (D.E. 177 & 178.) On January 16, 2013,
Defendants Burrow and Clements filed their Proposed Findings of
Fact and Conclusions of Law. (D.E. 180.) Plaintiff filed his


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Proposed Findings of Fact and Conclusions of Law on June 7, 2013.
(D.E. 185.)

Proof at Trial

At the bench trial on December 17, 2012 and December 18, 2012,
Plaintiff called Defendant Burrow in his case in chief. Russell
Burrow was employed by the Dyersburg Police Department (“DPD”) at
the time of trial and on February 20, 2008. (Tr. 18.)1 On February
20, 2008, Burrow was “on patrol” (id.) and was “a K9” officer (id.
at 19).

Burrow testified that, on February 20, 2008, he and Officer
Clement initiated a traffic stop of Watson because “[w]e observed
[him] driving a — operating a motor vehicle and knew [his] license
to be revoked.” (Id.) Burrow knew Watson’s license was revoked
because “I had checked it probably a week prior.” (Id.) Burrow had
“no idea” how long it took to get a license reinstated, and he did
not run Watson’s license immediately before initiating the stop.
(Id.) Burrow explained that “[w]e didn’t have time.” (Id.) Watson
was stopped on reasonable suspicion of driving on a suspended or
revoked driver’s license. (Id. at 19-20.)

Burrow was asked when he ran Watson’s license, and he
responded, “It was probably around a week before. I saw [him]
operating the same vehicle.” (Id. at 20.) Burrow could not recall
why he did not stop Watson immediately after running his license,
and he testified, “I couldn’t tell you that. I might have been


References to the trial transcript, which is found at D.E. 186 and
187, are designated as “Tr. __” or by the name of the witness, e.g., “Burrow __.”


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doing something else, on the way to a call. I don’t remember.”
(Id.) Burrow denied having any personal, hard feelings toward
Watson. (Id. at 20-21.)

Burrow recalled that there was a small child in Watson’s
vehicle on February 20, 2008. (Id. at 21.) Burrow testified that he
had no knowledge that Watson had previously been shot. (Id.) Burrow
did not believe there was a dash camera in the police cruiser.

Watson was not the target of an ongoing investigation. (Id.)
In response to why he took the initiative to run Watson’s license,
Burrow testified, “I saw [him] operating a motor vehicle. I’ve did
that to a lot of people, check their licenses that I believe to be
revoked.” (Id.) Burrow denied that he randomly ran the licenses of
motorists, stating that he only investigated “[p]eople that I . . .
have knowledge or suspect to be revoked.” (Id. at 22.) Usually,
after confirming that a motorist’s license has been suspended or
revoked, Burrow initiates a traffic stop “unless I’m doing
something else.” (Id.)

Burrow ran Watson’s license again on February 20, 2008, after
Watson had been taken into custody. (Id.) Burrow reiterated that he
had reasonable suspicion to stop the vehicle “based on the prior
week.” (Id.; see also id. at 23.)

Once Watson’s vehicle had stopped, Officer Burrow did not
immediately get out of the cruiser and approach the vehicle. (Id.
at 23.) He remained in his cruiser while “[g]iving our location and
status to dispatch, calling out the stop.” (Id.) Once that had been


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completed, Burrow exited his cruiser. (Id.) Burrow testified that,
“[a]fter I called dispatch, I saw [Watson] moving around quite a
bit in the vehicle; and Officer [Clements] was yelling orders to
[him]. I came to his location.” (Id.)2 Clements was on the driver’s
side of Watson’s truck. (Id.) Clements told Burrow “that [Watson]
had marijuana in [his] mouth, said [he] had weed in [his] mouth,
and he was trying to remove [Watson] from the vehicle.” (Id.)
Burrow could not recall whether the door was locked. (Id. at 23-
24.) He believed that the window “may have been partially down.”
(Id. at 24.) The driver’s side door was open, and Clements was
attempting to pull Watson out of the vehicle and was “[g]iving
[him] orders to exit the vehicle. Spit it out.” (Id.) Once [Watson]
exited the vehicle, the officers “attempted to take [him] into
custody, to get [him] on the ground and get [him] handcuffed.”
(Id.) Burrow did not recall Watson raising his hands and stating,
“I’m not resisting.” (Id.) He also did not hear Watson ask Clements
not to spray inside the vehicle because a small child was present.

Burrow testified that Clements had to physically pull Watson
out of the vehicle. (Id. at 24-25.) Watson was standing after being
pulled out of his truck. (Id. at 25.) The officers “tried to get
[him] handcuffed, and [he] stiffened up and was thrashing around.
Wouldn’t let us get [him] handcuffed. [He] wouldn’t obey our orders
to stop resisting. [He] wouldn’t allow us to handcuff [him].” (Id.)


The trial transcript consistently misspells Officer Clements’ last

name as “Clemmons.”


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At that point, Burrow “sprayed [Watson] with Freeze per policy”
while [Watson] was standing up and “refusing orders.” (Id.)

The burst of Freeze “helped get [Watson] on the ground.” (Id.)
The officers were still unable to handcuff [Watson] because he
“continued to resist and thrash around.” (Id.) Burrow did not
recall his physical position, but stated that “I guess I was behind
[Watson].” (Id.) Burrow recalled that Watson was facedown and
thrashing around. (Id. at 26-27.) Burrow testified that he did not
recall being on Watson’s back. (Id. at 27.) Burrow was behind
Watson, meaning that “I would have been trying to get [his] arms
behind [his] back. So, I would have been behind [Watson], trying to
pull [his] arms back to get [him] handcuffed.” (Id.) Burrow did not
recall specifically where Clements was at that time, but Burrow
remembered that Clements was assisting in securing Watson. (Id.)
Because the officers were unable to handcuff Watson, Officer
Clements sprayed him. (Id.) At that point, Burrow testified that
Watson “spit out a bag of marijuana, and [he] allowed us to
handcuff [him]. At that point [he] stopped resisting.” (Id.) Burrow
denied that Watson was sprayed again after he was handcuffed. He
testified, “You were only sprayed twice, once by me and once by
Officer [Clements].” (Id.)

Burrow testified that he believed his conduct during the stop
was objectively reasonable. (Id. at 27-28.) Burrow acknowledged
that there had been no high-speed chase and that Watson did not
attempt to flee. (Id. at 28.) He acknowledged that “[y]ou were
sitting in the vehicle. You didn’t try to run.” (Id.) Burrow


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testified that he did not have any type of combat training,
although he had the training in “defense tactics” that was required
by the police department. (Id. at 29.) The training in defense
tactics includes “just takedowns like arm bars. We do have some
pressure points.” (Id.) The training does not include “grapplings.”
(Id.) Burrow reiterated that he had no prior knowledge that Watson
had been shot. (Id.)

Burrow was asked whether a simple possession of marijuana
charge warranted the amount of force that was used, and he
responded, “If you would have complied, it’s possible you could
have got a misdemeanor citation; but you failed to comply with our
orders and resisted.” (Id. at 30.) Burrow did not attempt to obtain
a video from the store where the incident occurred. He stated that
“I don’t even know if they have video.” (Id.) Burrow disagreed that
Watson had pulled over once the officers activated their blue
lights. He testified that Watson had already parked before the
lights were activated. “You had pulled into the parking lot of that
store when we turned around. Then we pulled in behind you and
turned our lights on, letting you know you’re being detained, that
you couldn’t leave.” (Id.) Burrow did not recall that Watson stated
he was not resisting or holding his hands up in submission. (Id. at

Burrow testified that Watson was the only citizen who ever
filed a complaint against him. (Id. at 31.) Watson’s complaint was
filed before the arrest at issue. (Id.) Exhibit 1, an Employee
Complaint Report against Burrow, dated August 8, 2007, was admitted


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to show the motivation for Burrow’s actions on February 20, 2008.
(Trial Tr. 31-33.)3 Burrow denied that he was following too
closely. He testified that “I don’t recall getting right next to
[Watson] and following [him]. I was sitting in the store in the
parking lot, over beside it just like I usually do. I’ve done it on
many occasions.” (Id. at 34.) Burrow testified that he pulled out
of the gas station at the same time as the car in which Watson was
riding and proceeded “probably five or six car lengths behind
[him]. [Watson] went up the bypass. I went back north on the
bypass.” (Id. at 35.) Burrow testified that it was coincidental
that he and Watson were traveling in the same direction. (Id.)

Burrow testified that he had prior knowledge of criminal
activity by Watson because he “had two prior encounters with” him.
(Id. at 38.) The first occurred in 2004, when Burrow arrested
Watson in response to “a call that a black male and black female
had passed a counterfeit 100-dollar bill at a local business.”
(Id.) Burrow recalled that “I believe I had charged you with
impersonation, and evading arrest. I believe you — it went to a
jury trial and you were found guilty of the possession of






The citizen complaint states that, “[o]n 8-7-07 Rusty Burrows [sic]
seen me at Dodgers pumping gas[. B]efore I could get off the lot he was right on
the rear bumper of my friends car[. W]e were affraid [sic] for our safety we
thought he was gonna run us off the road he was so close. About 2 wks ago he
arrested me and told me that: I told you I was gonna get you. Back in 2005 he
arrested me and I went to trial and was acquitted and he told me then that he was
gonna get me. . . .” (Ex. 1 at 1-2.) The Chief of Police checked a box labeled
“No Further Action Required.” (Id. at 2.)

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marijuana.” (Id. at 39.) The remaining charges were either
dismissed or Watson was acquitted. (Id.)

The second incident, which occurred in 2007, involved a
traffic stop. (Id.) Burrow testified that “I issued you a citation
for registration law which was the initial reason for the stop and
you had no insurance and then I would up searching the vehicle. I
utilized my K9. Gave a positive response for narcotic odor, and I
wound up searching the vehicle.” (Id.) Burrow “found residue,
marijuana residue and loose tobacco which is common with smoking a
blunt.” (Id.) Burrow did not charge Watson with possession of
marijuana. (Id. at 40.) Watson was charged with theft of property
because he “had a stolen weapon under the driver’s seat beneath
[him].” (Id.) Burrow did not recall the disposition of the charge.
He stated that “I believe you were charged with felon in possession
. . . .” (Id.)

Burrow testified that he did not take Watson’s acquittal on
the 2004 criminal simulation charge personally. (Id. at 41.) Burrow
denied telling Watson after his acquittal that he was going to get
him. (Id. at 41-42.) Burrow did not recognize Watson before he
initiated the stop in 2007. (Id. at 42.) In response to why he ran
the tags on that vehicle, Burrow testified that “I had seen that
vehicle probably a week or two earlier at your mother’s house.”
(Id.) He stated that “[i]t was parked behind the residence like it
was being hid.” (Id.) Burrow was in the area because “[a]t that
time we had warrants on one of your relatives, felony warrants.”


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(Id.) When Burrow ran the tags, “[i]t came back to a different
vehicle.” (Id. at 43.)4

Burrow denied that he takes his job personally. (Id. at 44.)
He denied that he had “any harsh feelings” because he arrested
Watson on two separate occasions and, on each occasion, Watson was
acquitted or the charges were dismissed. (Id. at 45.) Burrow
testified that “[t]hat’s part of my job. I don’t take it personal.”

After Watson filed a “formal complaint” about Burrow, his
superior officers did not instruct him to stay away from Watson or
to leave him alone. (Id.) Burrow does not recall discussing
Watson’s citizen complaint with Clements or any other officer.

Christopher Clements testified that, at the time of trial, he
was employed by the DPD, where he had worked for the previous
twelve years. (Id. at 47.) At the time of trial, Clements was a
narcotics officer. (Id.) He denied that he was racist. (Id.)

Clements testified that he and Officer Burrow decided to
initiate the traffic stop on February 20, 2008. (Id. at 49.)
Clements testified as follows:

We pulled behind your vehicle at T&B parking lot.
I approached the vehicle while Officer Burrow called
in the stop; and while I was approaching, I could see you
pull something out of the console and stick it in your


It is unclear whether Burrow ran the tag on the day of the 2007 stop
or the previous week, when he saw the vehicle at Watson’s mother’s house. He
testified that “[i]t’s based on the way it was parked, like it was being hid.”


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And I got a little closer and you had this look of

concentration on your face and you were chewing.

While you were chewing, I could see glimpses of a
green, leafy substance I believed to be marijuana and a
plastic baggie in your mouth.

I immediately started telling you to spit it out.

(Id. at 49.) Clements did not recall that the windows were tinted.
He testified that the window “was halfway down.” (Id.) In response
to whether Plaintiff was chewing with his mouth open, Clements
replied, “You were chomping, you know. Like I couldn’t see every
detail inside, but you were trying to chew as much as you could.
So, I could see the marijuana in your mouth and the plastic bag.”
(Id. at 49-50.) Clements observed the drugs while “[s]tanding in
front of you, kind of like an angle” from “about where the mirror
was at.” (Id. at 50.) At that time, Clements “had already opened up
the doors, telling [Watson] to spit it out.” (Id.) Clements
recalled that a little girl was in the front passenger seat of the
vehicle. (Id. at 50-51.)

Clements denied brandishing his Freeze at Watson before he got

out of the vehicle. (Id. at 51.) He stated that

I was just trying to — I kept on ordering you to spit it
out. Spit it out. You kept on chewing on it. Had this
look of concentration.

Told you to get out of the vehicle. You refused.
Then I attempted to pull you from the vehicle. You

was holding onto the seat.

(Id.) Clements reiterated that he never drew his Freeze, explaining
that “[w]e couldn’t ‘cause there was a small child in there.” (Id.)
Clements denied that Watson asked him not to spray because there


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was a child in the vehicle. He testified that Watson did not say
anything until after he was handcuffed. (Id.)

In response to whether he had combat training or martial arts
training, Clements testified that “[w]e just do defense tactics,
police defense tactics.” (Id.) Clements received the same training
Burrow received. (Id. at 51-52.) At the time of Watson’s arrest on
February 20, 2008, Clements was not aware that Watson had
previously been shot multiple times. (Id.)

Clements testified that he had to physically remove Watson
from his truck after he would not comply with verbal instructions.
(Id.) Clements was able to physically remove Watson from the truck
“[a]fter two attempts.” (Id.) He testified that “I grabbed your
arm, trying to pull you from [the vehicle].” (Id.) Clements used
the same technique a second time, which was successful. (Id. at 52-
53.) He testified: “But you were still standing on your feet and I
was still ordering you to spit it out, put your hands behind your
back, and you would not comply.” (Id. at 53.) Clements denied that
Watson raised his hands and stated that he was not resisting. (Id.)
On further questioning, Clements testified that he partially
removed Watson from the truck and, when there was room, Burrow
assisted in getting him entirely out of the truck. (Id. at 55-56.)
During that time, Clements kept holding onto Watson’s arm.
(Id. at 53.) Clements recalled that Burrow was holding onto
Watson’s other arm or attempting to do so. (Id.) According to
Clements, “You were pulling your arms away. We could not get
control over you.” (Id.) Clements elaborated: “We were attempting


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to grab an arm. You know, we would lose it certain times when you
were pulling away; and then you was still also chewing your dope
and trying to swallow it.” (Id. at 54.) Clements recalled that
“[i]t was a fight. You were pulling away.” (Id.) He explained that
“[y]ou were definitely being, you know, aggressive. You were
pulling away. You would not obey our orders.” (Id.)

Clements was worried “[t]hat you may have some weapons on your
person. We didn’t have control over you.” (Id.) Clements denied
that he was frustrated. (Id. at 56.) He testified that “I was
worried about our safety.” (Id.) Clements stated that “I had been
aware of prior encounters where you’d been arrested with weapons,
handguns.” (Id. at 58.) In response to whether Watson had any
firearm convictions, Clements replied, “I work with guys in the
police department and over the years I’ve heard people talk about
your history, how combative you are and you are known to carry
firearms on your person.” (Id.) By “combative,” Clements meant that
Watson would run and would fight officers. (Id. at 58-59.) Clements
testified that “[o]fficers communicate with each other about people
who are maybe a danger to us, and you’re one of those persons.”
(Id. at 59.) Watson was considered by some officers to be
potentially dangerous “[‘c]ause anytime that we have any dealing
with you, you run. You fight. Sometimes have a firearm.” (Id. at

Clements also testified that he was worried about Watson’s
safety. He stated: “And also you choking on the marijuana or at
that time I figured there was going to be some cocaine in the bag.”


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(Id. at 56.) Clements assumed there would be some cocaine in the
baggie because “that’s something very common of people who carry
narcotics to put cocaine and marijuana in the same baggie and I
couldn’t understand why you were attempting to destroy a bag of
marijuana. You were so dead set on that.” (Id. at 57.) Clements
acknowledged his previous testimony that he saw a green leafy
substance in Watson’s mouth, but stated that “cocaine is smaller.”
(Id.) He was concerned that Watson might choke on the marijuana or
overdose on the cocaine. (Id.)

Clements testified that the marked police car the officers
were driving did not have a dash camera. (Id. at 59.) He did not
attempt to obtain any video from the grocery store. (Id. at 59-60.)
Clements denied that he acted aggressively because he was
concerned about the risk to the officers’ safety. (Id. at 60.) He
responded, “I was concerned. We used very minimal force on you.”
(Id.) Clements testified that “we had first to gain control over
you, your arms. We ended up able to do that after Officer Burrow
sprayed you in the face with Pepper Spray. Then I was able to take
you onto ground.” (Id. at 61.) According to Clements, “[w]e used
only the amount of force necessary to effect the arrest.” (Id.)

As the officers were struggling to gain control over Watson’s
arms, Burrow sprayed Freeze+P to his “facial area.” (Id. at 62.) At
that time, Clements “was able to get behind [Watson] and take [him]
down to the ground.” (Id.) Watson was “on [his] knees, on [his]
side, attempting to get up on [his] knees.” (Id.) He was “all over
the place.” (Id.) Watson noted that Burrow had testified that


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Watson was on his stomach, and Clements responded: “At certain
times, at the very end you were, yes, but you were attempting to
get up on your knees and, you know, I was thinking that you were
probably going to — the fight was going to be on again and —” (Id.
at 62-63.) Clements testified that, “[a]fter repeated commands of
telling you to spit out the dope, put your hands behind your back,
[I] pepper sprayed you in the face, and the second time the Pepper
Spray had the desired effect. The first one did not. Then you spit
it out, the marijuana.” (Id. at 63.) At that time, Watson was on
the ground and, “[a]fter the second burst, [he] quit resisting.”

Clements could not recall whether Watson was positioned on his
side or his stomach after the second burst. (Id. at 64.) Clements
testified that “[y]ou was either on your side or on your stomach,
and [Officer Burrow] was able to handcuff you.” (Id.) Clements
stated that “you can be on your side and technically be partially
on your belly.” (Id. at 65.) Clements denied being on Watson’s back
while he was on the ground. (Id.) Clements testified that the
officers did not put their knees into Watson’s neck. (Id. at 65-
66.) Clements explained that “[w]e don’t put knees in the neck” but
“[i]t’s very common to put our body weight on somebody’s back to
control them . . . .” (Id. at 65.)

Clements denied that he was angry or agitated during the
encounter. (Id. at 66.) He denied calling Watson a “nigger” during
that encounter or at any other time. (Id. at 67.)


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Watson was not the target of a police investigation at that
point. (Id.) Clements knew who Watson was from seeing him around
“and from officers telling about [his] history.” (Id.) Clements
testified that he would be able to identify Watson if he saw him in
the street from “[s]eeing mugshots of [him]. I’ve seen [him] on the
street before. Seen [him] at 1821 Whitney Young,” which was the
address of Watson’s mother, Sadie Powell. (Id. at 68.) Before
February 20, 2008, Clements had encountered Watson at 1821 Whitney
Young when Clements was looking for Joseph Caldwell at that
address. (Id.) The officers who spoke about Watson did not show
Clements mugshots. Clements testified that “it’s my duty to, you
know, if they’re telling me about someone who’s a threat to
officers, you know, I’m going to follow up on that and figure out
who they are . . . .” (Id. at 69.)

Plaintiff asked how he could be considered a threat to
officers when he has never been convicted of assaulting an officer,
and Clements replied, “I know there were several incidents where
you were caught with handguns and resisted arrest and run.” (Id. at
70.) Clements “was aware of the October 13th [2007] incident where
you resisted Officer McDowell and Officer Wright.” (Id.) Plaintiff
asserted that the charges were dismissed, and Clements replied,
“Sometimes they may get dismissed to dispose of a felony. If you
had several prior, if you had several felonies, they may dismiss
the misdemeanors for a plea bargain. So, that’s very common.” (Id.)
Clements denied that charges might be dismissed because the
arresting officer lied. (Id.)


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Clements recalled that Watson had spoken to him previously
when Clements was trying to execute a fugitive warrant at 1821
Whitney Young. (Id. at 71.) According to Clements, Watson was on
the porch and “I believe [he was] mouthing to us, trying to
instigate officers while we were on the street.” (Id.) Clements did
not recall the year this incident occurred. (Id. at 72.) He denied
feeling resentment because of that encounter. (Id.) Clements stated
that “I’m not saying that was the very first time I ever met you.
. . . That’s the only incident I can think of offhand right now
before this incident occurred.” (Id. at 79.)

Clements testified that some citizen complaints have been
filed against him while he was employed with the DPD. (Id. at 72.)
He was unsure of the number, but stated that “it’s not that many.”
(Id.; see also id. at 74 (same).) Clements said that “we may get
one and never be aware of it.” (Id. at 73.) Clements has never been
placed on desk duty because of a citizen complaint (id.), and his
duties have never been restricted in response to a complaint (id.
at 74). Clements could not recall the issues raised in any citizen
complaint, and he emphasized that “I never have been found doing
any wrongdoing.” (Id.) Clements testified that he did not keep
track of citizen complaints filed against him: “It’s not relevant
to me on how I do my job, no. So, I’m not interested in it; but if
you’re trying to say I’ve had a lot of them, no, I have not had a
lot of complaints.” (Id. at 75.) Clements explained: “Sometimes
when you’re — you put someone, you know, a felony charge on
someone, they’re going to go to prison, that may be a tactic to


Case 2:08-cv-02718-SHM-tmp Document 188 Filed 09/20/13 Page 19 of 81 PageID 1546

combat their charge, trying to make a complaint. So, that’s why I’m
not concerned with them.” (Id.)

Clements was not aware that any of the citizen complaints
against him involved excessive force or racism. (Id. at 76.)
Vincent Taylor did not accuse Clements of excessive force or
racism. (Id.) The only encounter Clements had with Cory Thornton
was during the execution of a search warrant, when Thornton “ran
off the porch and that’s the only incident I ever had with Mr.
Thornton and he wasn’t even caught. I was inside the house.” (Id.)
Joseph Caldwell, Watson’s nephew, did not make either a formal or
an informal complaint about Clements. (Id. at 76-77.)

Clements did not know how many people he arrested each year,
but he guessed it was well over a hundred. (Id. at 77.) Clements
was asked how many of those arrestees were black, and he stated,
“It depends on what side of town you’re on.” (Id.) He elaborated:
“I’ll say it’s about 50/50. Just last week we indicted 38 people;
and out of that 38, probably 30 of them were whites. So, race has
nothing to do with how I do my job.” (Id.) Clements was not aware
that any black arrestee had ever accused him, either formally or
informally, of using excessive force. (Id. at 77-78.)

Clements denied ever “overhand strik[ing]” Watson. (Id. at
78.) Clements denied meeting Judge Dean Dedmon in his private
chambers to tell him that Watson’s bond should be set high. (Id. at
78-79.) Clements also denied having any personal feelings about
Watson. (Id. at 79.)


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Clements was asked whether he had any conversations with other
police officers about Watson between October 2007 and the events at
issue, and he responded that he was aware of the incident in
October 2007 when Watson “resisted Officer McDowell and Officer
Wright.” (Id. at 79-80.) Clements related that McDowell and Wright
“thought they were going to lose [the fight]. They wasn’t for sure
whether they was going to lose and we’re in a position — a
profession where we can’t lose.” (Id. at 80.) Clements testified
that “[y]ou was resisting. They were telling me about this. Officer
Wright, he does not usually say stuff like that ‘cause he’s a big
fella.” (Id.) As a result of this information, “[a]s far as officer
safety, [Clements] was more alert with [Watson] than with other
people.” (Id. at 81.) Clements denied that he was more aggressive
or more assertive than he might ordinarily be. (Id.) Clements was
asked about the effect of adrenaline, and he stated, “Sometimes you
have adrenaline, of course. That’s human nature but, no, the only
— only amount of force necessary was used in your incident.” (Id.)
Clements stated that “[t]here was not loud music playing” when he
was instructing Watson to spit out the drugs. (Id. at 81-82.) The
radio “was not in violation of a noise ordinance.” (Id. at 82.)

Dyersburg police officers use Freeze+P pepper spray “to gain
control of someone who’s not listening, someone who’s resisting.”
(Id.) The spray is “an irritant, as far as eyes and nasal.” (Id.)
“It can make someone close their eyes and irritate them.” (Id.)
During his training at the Dyer County Jail in 1999, Clements was
sprayed with Freeze+P pepper spray. (Id. at 83.) He acknowledged


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that the spray “burns” and “don’t feel good,” but he also stated
that “[i]t’s not the worst pain I’ve ever had in my life, no.”
(Id.) Clements also testified that the effects of the spray wore
off after about fifteen minutes. (Id. at 83-84.)

Watson concluded his case in chief by testifying on his own
behalf. Watson stated that, on February 20, 2008, he was in a
vehicle with his daughter, “E.M.”, and another passenger named
Terry Mitchell. (Id. at 86.) According to Watson:

I was stopped by Officer Burrow and Officer
[Clements]. During the traffic stop — well, actually, I
pulled into the gas — to a store parking lot. The
officers pulled in behind me, activated their overhead

The officer — Officer [Clements] approached the
driver’s side of the vehicle where myself was occupied.
I was in the driver’s seat. My daughter was in the
passenger’s seat. Mr. Mitchell was in the back seat.

Mr. [Clements] approached the driver’s side of the
vehicle where I rolled the window down. He was talking.
The music was up, not extremely loud but a little louder
than what — where I could understand — where I could
actually hear what he was saying. So, like I say, I
rolled the window down in an attempt to better hear what
he was saying.

You know, it was a lot of between the music and his,
you know, his barking, I was — wasn’t really able to
fully understand exactly what he was saying. He snatched
the door open. He grabbed me. He pulled out his Freeze.
He was about to spray in the vehicle.

I begged Mr. [Clements], “Please don’t spray in the

car. You know, I have a child in here.”

He actually did take notice. He looked at my child,

told me to exit the vehicle. I exited the vehicle.

I voluntarily put my hands in the air and said, “I

am not resisting.”


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At this point Mr. [Clements], Mr. Burrow started a
series of — I don’t — you know, I felt like they were
marshal [sic] art moves or something, you know, arm bars
and arm twists and pulled, both pulling me in their
direction. One was to my left. One was to my right. They
were both pulling on me, twisting on me.

Whole time I’m saying, “I’m not resisting. I’m not


That’s when I was actually — I don’t know which — I
didn’t know until this morning which one actually sprayed
me in the face. One of them sprayed me in my face with
some Freeze spray.

At this point, you know, some more of these
combative moves were executed. I was taken down to the
ground, face fist, pretty hard. I was sprayed again in
the face. My arms were twisted behind my back.

One of the officers put his knee in my neck with his
body weight and pressed down on my neck, pinned me to the
ground. The other officer, I assume, was handcuffing me.
After I was handcuffed, I was sprayed again, not once but
at least twice.

And, you know, throughout all of this Officer
[Clements] used very inappropriate racial slurs like
“nigger” this, “nigger” that, you know, “Stop moving,

And I was taken to jail.

(Id. at 86-89.)

Plaintiff contends that “some of my jewelry, really expensive
jewelry, nice jewelry was destroyed” in the February 20, 2008
encounter. (Id. at 91.) “Like, you know, a Breitling watch was
broke. Never worked again after that day. A necklace was broke, you
know, disappeared.” (Id.)

Watson asserts that the incident on February 20, 2008 was not
isolated but “it was a series of events that led up to this.” (Id.
at 89.) Watson contends that “all these [prior] events in my


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opinion are very relevant because it actually shows the motive for
why these assaults had taken place.” (Id.) According to Watson,
other police officers did not treat him as a threat but were,
instead, “always pretty cordial and respectful.” (Id.) Burrow and
Clements, on the other hand, “every time they see me, it doesn’t
matter if I’m in front of my children, in front of other people
children, in front of old women, right next door to a church, these
people are jumping on me; and they beating me up.” (Id. at 89-90.)5
Watson acknowledged that he has “always been, I don’t know, a
little more forward, I suppose, in voicing my opinion about
things.” (Id. at 90.) According to Watson:

[T]here’s a series of events that — different run-ins
that I had with Mr. Burrows, Mr. [Clements], a couple of
the other officers that were actually named who were
released from this 1983, you know. There were just
multiple run-ins with these guys; and, you know, every
time I see these guys, like I said, these guys, you know,
were, as Mr. [Clements] said, they were ready to fight.
Every time they see me, they viewed it like a fight was
about to unfold; and, you know, the worst thing that
happened to me, you know, throughout all these fights or
whatever is that I’ve got charged and found guilty of
simple possession of marijuana. Simple possession of
marijuana in my opinion doesn’t warrant this type of
viciousness, this type of aggressiveness.

(Id. at 90-91.)

Watson testified that, after his arrest on February 20, 2008,
he was charged with possession of marijuana, resisting arrest,
tampering with evidence, and driving on a suspended license. (Id.


This testimony appears to be inconsistent with an objection made by
Watson to Clements’ testimony that he knew of Watson before February 20, 2008.
At that point, Watson stated, “Well, Mr. [Clements], prior to you beating me up,
I didn’t remember you. So, I don’t understand how you remember me so well. How
do you know me if I don’t know you?” (Id. at 72.)


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at 91.) “[T]he worst charge was a Class E felony,” and the other
charges were misdemeanors. (Id.) Watson’s bond was set at $350,000,
which he contends was excessive. (Id.)

By way of background, on April 17, 2007, Watson was shot five
times in his head and spine. He was left temporarily paralyzed and
blind. (Id. at 92.) At some point, Watson was unable to carry his
daughter “because [his] equilibrium was so messed up.” (Id.) This
testimony was offered to show that Watson was “physically incapable
of putting up a fight” when he was arrested in October 2007. (Id.)
Watson also testified as follows:

You know — these same officers had, after knowing
that I had been shot, they simulated with their fingers
a gun and pointed at me and pulled the trigger and I take
that to be a threat on my life.

They knew I’d been shot; and if it wasn’t a threat
on my life, it was done in very poor taste, very poor
humor, you know. I had been shot in my head, you know, in
front of my children.

(Id. at 93.) It is unclear when Watson claims the officers
simulated this conduct.

Plaintiff contends that it was unfair for officers to perceive
him as a threat because he had never been convicted of resisting
arrest. (Id. at 93-94.)

On cross examination, Watson admitted that, on February 20,
2008, he was violating the law by driving on a suspended license.
(Id. at 95.) He understood at the time that he was breaking the
law. (Id.) When the officers activated their blue lights, Watson
knew that he was being detained. (Id.) He had previously been


Case 2:08-cv-02718-SHM-tmp Document 188 Filed 09/20/13 Page 25 of 81 PageID 1552

pulled over by law enforcement officers and, because of that
experience, he understood what was happening. (Id.)

Watson also admitted that he had marijuana in his possession
on February 20, 2008. (Id. at 96.) Watson pled guilty to a charge
of possession of marijuana that resulted from his arrest on
February 20, 2008. (Id.)6 At the time, it was Watson’s practice to
store marijuana in his mouth. (Id.) He routinely stored marijuana
in his mouth when he was out in his car. (Id.) Watson knew that
possession of marijuana was illegal. (Id.) He also knew that
Officers Burrow and Clements could arrest him for possession of
marijuana. (Id. at 96-97.)

Watson had previous convictions for possession of illegal
drugs. (Id. at 97.) In August 2005, Watson was indicted in the Dyer
County Circuit Court for sale of cocaine over 0.5 grams. He was
later convicted of that offense. (Id.)7 Watson was convicted in the
Dyer County Circuit Court of possession of marijuana arising from
an incident on October 13, 2007. (Id. at 97-98.) That charge was
pending on February 20, 2008. (Id. at 97-98, 99.)8

Watson admitted that he had marijuana in his mouth when
Officer Clements approached his vehicle on February 20, 2008. (Id.
at 99.) He also admitted that his music was turned up loud. (Id.)


Plaintiff’s Dyer County conviction for simple possession of marijuana
arising from the February 20, 2008 incident was admitted as Exhibit 2. (Id. at

Plaintiff’s Dyer County felony conviction for Sale of Cocaine Over

.5 Grams was admitted as Exhbit 3. (Id. at 139.)


arising from the October 17, 2007 incident was admitted as Exhibit 4. (Id.)

Plaintiff’s Dyer County conviction for Simple Possession of Marijuana


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Because of the loud music, he could hear the officers but could not
understand what they were saying. (Id.) Watson testified that “I
couldn’t say just exactly what they were saying; but, you know, I
could just assume.” (Id.)

Watson assumed the officers were asking for his driver’s
license. He did not assume that they were asking him to get out of
the vehicle. (Id.) At his deposition on July 30, 2010, Watson
testified that he assumed that Clements was telling him to get out
of the vehicle. (Id. at 99-101, 103.)9 The marijuana was in
Watson’s mouth until after he was on the ground. (Id. at 103-04.)
Watson testified that he was handcuffed when Officer Clements
sprayed him with Freeze. (Id. at 104.) At his deposition, Watson
testified that he did not recall when he was placed in handcuffs
(id. at 104-06), although he did say that “I’m sure they restrained
me immediately. They cuffed me immediately” (id. at 106). In his
interrogatory answers, which covered both the October 13, 2007 and
February 20, 2008 incidents, Watson listed the use of pepper spray
after he had been handcuffed as one basis for his claim of
excessive force. (Id. at 106-08.)10 At his deposition, Watson
testified that that interrogatory answer referred only to the


Watson testified that he was unable to recall everything that
happened at his deposition because “[t]hat was a while back and I do have brain
damage and I try to write everything down and keep everything fresh and crisp.”
(Id. at 100; see also id. at 101 (“I have some issues with my memory.”).) Watson
testified that he truthfully answered the questions asked at his deposition. (Id.
at 101-02.)


Plaintiff’s responses to Defendant’s First Set of Interrogatories and
Requests for Production of Documents to Plaintiff was admitted as Exhibit 8. (Id.
at 145.)


Case 2:08-cv-02718-SHM-tmp Document 188 Filed 09/20/13 Page 27 of 81 PageID 1554

October 13, 2007 incident. (Id. at 108-10.) In his complaint, which
was sworn to under penalty of perjury, Plaintiff did not allege
that he was handcuffed during the February 20, 2008 incident. (Id.
at 111-13.)

Watson testified at trial that he voluntarily exited his
vehicle with his hands in the air and told the officers that he was
not resisting. (Id. at 113.) In his complaint, which was sworn to
under penalty of perjury, Plaintiff stated that Burrow and Clements
pulled him out of the vehicle. (Id. at 113-14.) Plaintiff’s
complaint was signed four month after the events at issue. (Id. at

Watson agreed that he had previously informed the Court about
the disability caused by his having been shot in 2007. (Id. at 114-
15.) Watson previously estimated that he is only functioning at 85%
of capacity. (Id. at 115.) The injury affects Watson’s ability to
retrieve memories. (Id.) He has episodes of bad memory almost every
day. (Id.) Plaintiff takes psychotropic drugs that affect his
mental functioning. (Id. at 115-16; see also id. at 11-12
(Plaintiff’s opening statement).)

Watson was transported to the Dyer County Jail after his
arrest on February 20, 2008. (Id. at 116.) An Inmate Medical Form
completed by Jail staff at about 4:49 p.m. on February 20, 2008,
stated “Inmate appears to be in good health. Has been sprayed with
Freeze by D.P.D.” (Id. at 118-19.) The only property listed on an


Case 2:08-cv-02718-SHM-tmp Document 188 Filed 09/20/13 Page 28 of 81 PageID 1555

Inmate Personal Property Form was two earrings. (Id. at 119-20.)11
Watson claimed that a Brietling watch was broken during the
incident on February 20, 2008. (Id. at 120.) In his interrogatory
answers, Plaintiff listed the damages he claimed to have suffered
from the incidents of October 17, 2007 and February 20, 2008. Those
damages included a Breitling watch valued at $3500. (Id. at 121-
23.) At his deposition, Plaintiff testified that the items lost in
the February 20, 2008 arrest were a yellow gold necklace valued at
$1000, a diamond medallion valued at $1000, and a pair of diamond
earrings valued at $2000. (Id. at 123-24.)12

Watson was previously convicted by guilty plea in the Circuit
Court for Weakley County, Tennessee, of aggravated assault with a
weapon. The date of the offense was June 5, 2005. (Id. at 128.)13
Watson pled guilty to TennCare fraud in Dyer County, Tennessee, and
was sentenced to a term of imprisonment of two years. The date of
that offense was January 2, 2008. (Id. at 132-33.) Watson gave


These documents were not offered or admitted into evidence.
At his deposition, Watson was not asked about the Breitling watch,
which was identified as (E) in the interrogatory answer. The watch was not
included in Plaintiff’s property when he checked into the Jail. He apparently had
earrings when he was booked.



Plaintiff’s Weakley County conviction for Aggravated Assault was

admitted as Exhibit 5. (Id. at 142.)

Plaintiff later stated, after his testimony had concluded, that he
was not the aggressor in that incident. He was visiting a cousin in Martin,
Tennessee. “These guys attempted to rob my cousin. They shot him; and, you know,
I defended us from that position. I didn’t hurt anybody.” (Id. at 141.) “The
judge explained that there was no a self-defense law in Tennessee and that’s why
my charge was reduced to aggravated assault and I was only given three years
probation on it.” (Id.)


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false information to an agency of the State of Tennessee to obtain
medical benefits. (Id. at 133.)14

Plaintiff has no law enforcement training. (Id. at 134.)
On redirect, Watson addressed the circumstances of his
conviction for TennCare fraud. He stated that “I admit I really did
deceive TennCare; and it’s because I didn’t have any insurance. I
was shot. I couldn’t get any medical treatment. I didn’t have any
money to pay for it.” (Id. at 135.) “I felt like I didn’t have any
options at the time to obtain any type of medical treatment.” (Id.)
Plaintiff explained that, when he drafted his complaint, the
instructions said to keep it short. He focused on the October 17,
2007 incident because he sustained the most damage from that
encounter. (Id. at 135-36.) According to Watson, “I maybe just
barely grazed over the February incident because I really didn’t
think that they were going to ultimately end up separated and the
form, as I say, did say keep it short.” (Id. at 136.)

Plaintiff also testified that he has four holes in his ears.


Officer Burrow’s letter of resignation from the SRT team,
dated October 19, 2000, was admitted as Exhibit 7. (Id. at 143-
44.)15 A photograph that purports to show Plaintiff’s damaged
Breitling watch was admitted as Exhibit 9. (Id. at 146-47.)


Plaintiff’s Dyer County conviction for TennCare fraud was admitted

as Exhibit 6. (Id.)


The term “SRT” was not defined in the exhibit or at trial.


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Officer Clements was called to testify for the defense.
Clements testified that he had lived in Dyersburg his entire life
and had been employed by the DPD for twelve years. (Id. at 154.)
Clements had “[a]bout 13” years of law enforcement experience.
(Id.) At the time of trial, Clements’ rank was narcotics officer.

Clements attended the Donelson Academy in Nashville,
Tennessee, in 2001. (Id. at 155.) Donelson is “an eight-week police
academy. You have criminal law. You also have a week of defense
tactics, a week of shooting, and also a week of operating motor
vehicles.” (Id.)

Clements has received additional law enforcement training. In
2012, he went to a school in Meridian, Mississippi to learn about
“drug interdiction [and] working informants.” (Id.) He has also
been to “supervisors schools before and numerous drug schools.”

Clements is a certified police officer. (Id.) He is required
to have 40 in-service hours each year that are devoted to training.
(Id. at 155-56.) That training includes “eight hours of defensive
tactics.” (Id. at 156.) Clements has also received use of force
training. (Id.)

Clements has received training appropriate to his current
assignment as a narcotics officer. Clements attended a basic
narcotics school in Meridian, Mississippi, for two weeks. Earlier
in 2012, Clements attended an advanced narcotics school and also


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received training on technical surveillance. (Id.) Clements was
also trained in the detection of drugs. (Id. at 156-57.)

While working as a law enforcement officer, Clements has
frequently encountered illegal drugs. (Id. at 157.) Clements

Well, I would say 2007, from 2007 until November,
2011, I worked full time with the bike patrol/street
crimes. Our main goal was partly narcotics-related gangs
and also we got involved with the community, play
basketball with kids and stuff but for the last year
participation in numerous undercover buys.

Part of my job in the past five years have [sic]
been search warrants, getting information from informants
of houses that’s supposed to have narcotics inside, and
vehicle stops also that were the — usually we find
narcotics. We, you know, get information from an
informant that, you know, it’s in a vehicle or a house.

(Id.) During his work as police officer, Clements had seen and
smelled marijuana before February 20, 2008. (Id. at 157-58.)
Clements was familiar with raw marijuana, which he described as “a
green, leafy substance.” (Id. at 158.) Prior to February 20, 2008,
Clements had encountered raw marijuana “[w]ell over 500 [times] or
I’d say probably 800 or more. That’s just a guesstimate.” (Id.)

Clements also has experience with arresting suspects who are
attempting to conceal illegal drugs. (Id.) He stated that “[w]e’ve
had people run from us, throw it, eat it, try to eat it, grind it
up in their hands, if it’s crack cocaine, several times with just
people hiding items or trying to eat it.” (Id. at 158-59.) It is
“very common” for a suspect to try to ingest an illegal substance
because “[t]hey don’t want to get caught with it.” (Id. at 159.)
Raw marijuana is usually stored in a plastic baggie. (Id.) A


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suspect who ingests an illegal drug “can overdose” or could choke
on the plastic bag or on the drugs themselves. (Id.) Marijuana may
sometimes “be laced with some kind of PCP or anything.” (Id.) It is
also “very common” for other drugs, such as “pills or crack cocaine
or cocaine,” to be st