Appellate court: Trooper didn’t have cause to arrest Pulaski man who cursed him

bpurser@macon.comFebruary 4, 2013 

WARNER ROBINS -- An appeals court has affirmed a federal court ruling that a former state trooper did not have arguable probable cause to arrest a man who cursed him in a 2008 incident in Houston County.

The 11th U.S. Circuit Court of Appeals also found Friday that the Pulaski County man’s speech was protected.

On Christmas Eve 2008, then-Georgia State Patrol trooper Justin Tabor pulled over the daughter of Lawrence Merenda for a seat belt violation in the parking lot of a Perry nursing home where Merenda worked, according to the lawsuit filed Dec. 20, 2010, in federal court in Macon.

Merenda came outside and asked what was going on. Tabor said Merenda’s daughter was wearing the seat belt improperly under her arm, and he was citing her. Merenda asked Tabor to give his daughter a break because she was having financial problems.

According to the lawsuit, Tabor told Merenda, “Well, you being a parent, you should understand having a seat belt on like that, you can get thrown out of a car. But if you are OK with her head getting smashed against the steering wheel as a parent that’s up to you.”

Merenda asked if the ticket was justified, and Tabor reportedly said, “Absolutely.”

Merenda then called Tabor a curse word and walked away, the lawsuit states.

Tabor arrested Merenda for felony obstruction of an officer, cuffed him and took him to jail. The charge was later dismissed.

The lawsuit alleged Tabor violated Merenda’s First Amendment right to free speech, his Fourth Amendment right against unreasonable seizure and his Eighth Amendment protection from excessive force.

Tabor argued he had qualified immunity and asked for summary judgment, which would pre-empt a trial. Government officials are protected under qualified immunity in performance of their jobs as long as constitutional laws are not violated.

U.S. District Court Judge Marc Treadwell ruled against summary judgment May 7, 2012. He found Tabor had no probable cause to arrest Merenda, and Merenda was not using “fighting words” when he cursed the trooper. However, Treadwell found Tabor did not use excessive force in handcuffing Merenda, who claimed he was injured by being handcuffed too tightly.

Tabor appealed Treadwell’s findings in relation to the First and Fourth amendments to the appellate court.

The appellate court found no “arguable probable cause” for Merenda’s arrest by Tabor and agreed with Treadwell that Merenda did not use “fighting words.”

Charles E. Cox Jr., a Macon attorney representing Merenda, said the appellate ruling clears the way for a jury trial in federal court on the civil rights issues in which damages will be sought. That trial has been scheduled for April 15.

Meanwhile, another lawsuit filed in federal court July 13, 2012, accuses Tabor of excessive force in shooting a man who was fleeing from authorities in a 2010 incident.

That case is also pending trial. The same attorney for the state Attorney General’s Office is representing Tabor on both lawsuits.

Lauren Kane, spokeswoman for the state Attorney General’s Office, stated in an e-mail, “We have no comment as the litigation is ongoing.”

Tabor, who left the Georgia State Patrol in 2011, could not be reached for comment.

To contact writer Becky Purser, call 256-9559.

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