Opinion
Civil Action No. 3:96-CV-2673-R.
March 22, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Piedad Gonzalez ("Gonzalez") filed suit in this Court against Defendant Brian C. England ("England"), of the Garland Police Department. Plaintiff claimed false arrest and use of excessive force, under 42 U.S.C. § 1983. Defendant moved for summary judgment on September 18, 1997. That motion was referred to United States Magistrate Judge Jane J. Boyle for recommendation by an Order of Reference filed September 23, 1997. After hearing oral arguments on the matter, Judge Boyle recommended that this Court deny the motion. By an order filed February 23, 1998, this Court, after adopting Judge Boyle's Findings of Fact and Conclusions of Law, denied Defendant's motion. Defendant moved for permission to file a second motion for summary judgment on July 6, 1998. This Court granted that motion July 27, 1998. Now before this Court is Defendant's Second Motion for Summary Judgment, filed September 18, 1998. For the reasons set forth below, that motion is DENIED.
The hearing was held January 7, 1998. The transcript was filed in the docket on January 29, 1998.
Judge Boyle's recommendation was filed February 5, 1998.
The separate order was filed February 23, 1998.
The motion was filed as a joint motion pursuant to this Court's procedures.
Included within the joint submission, were Plaintiffs Motion for Sanctions against the Defendant and his attorneys. That motion is DENIED.
BACKGROUND FACTS
On May 27, 1995, Plaintiff, Gonzalez, was in the company of a friend and her then sixteen year old brother. They had been shopping at Boot Town, in Garland, Texas, located at the intersection of Jupiter and Walnut. At approximately 8:15 p.m., Gonzalez and her two companions left the shopping center, in her 1987 Chevrolet Camaro, on to Jupiter Road.
Defendant England was on duty, driving a Garland Police Department squad car in Garland, Texas. While on duty, he observed the Gonzalez operating a motor vehicle in Garland, Texas. England ran the license plate of the Camaro through the National Criminal Information Center ("NCIC") system, and allegedly the NCIC reported the vehicle as stolen. Thus, he pulled the car over in Garland, Texas, at the 3500 block of Classic Drive. There are material questions as to the sequence of events from the time the car was pulled over until the time Gonzalez arrived at the Garland Police Station. However, the following are undisputed facts. At some point, Gonzalez got out of the vehicle. Subsequently, England sprayed chemicals into Gonzalez's face. Additionally, there was some physical contact between England and Gonzalez. England arrested Gonzalez and took her to the Garland Police Department Police Station following the incident. He informed her she was under arrest for resisting arrest and that one of the reasons he initially stopped her was because the computer reported the car she was driving as stolen. Finally, England caused Gonzalez's vehicle to placed in the Garland auto pound. No criminal charges were ever filed against Gonzalez as a result of this incident.
On March 20, 1995, Gonzalez and her father reported the vehicle as stolen. However, on March 22, 1995, the Garland Police Department returned the vehicle to Gonzalez.
Plaintiff's version:
"Plaintiff turned her automobile engine off as two Garland Police officers approached Plaintiff's vehicle. One officer approached on the right and the other, Defendant England, approached on the left. Defendant England opened the driver's door and ordered the Plaintiff from the driver's seat of her automobile. The Plaintiff immediately complied. Defendant England then ordered the Plaintiff to raise her hands and the Plaintiff immediately complied with this instruction. Then without cause or provocation on the part of the Plaintiff or anyone else, the Defendant used a spray can containing a chemical irritant and sprayed the contents into the Plaintiffs face and eyes. This action immediately caused the Plaintiff's eyes and face to burn, swell and sting from the contact with the chemical spray. Because of the chemical spray, the Plaintiff was temporarily blinded and the Plaintiff writhed uncontrollably in pain. Defendant England then, without cause or justification, forcibly threw the Plaintiff across the rear deck of her automobile and forcibly twisted the Plaintiffs hands and arms behind her back. Without cause or justification, Defendant England delivered several hard blows to the Plaintiffs back and arms. Because of these blows the Plaintiff received several bruises and contusions to her arms and back from England's use of unjustified and unnecessary force. None of the force visited upon the Plaintiff was necessary as the Plaintiff did not resist nor did she at any time fail to follow any instruction given to her by the Defendant or any other police official." (Plaintiff's Response at 3-5.)
Defendant's version:
"After the vehicle had stopped, Officer England, from the safety of his patrol car, requested Ms. Gonzalez step out of her vehicle and come back to his squad car. She did not respond to his requests so he was required to approach the driver's door of Ms. Gonzalez vehicle and once again requested that she step out of the vehicle and place her hands on the car. Ms. Gonzalez still did not comply and Officer England was therefore required to open her door in order to assist her from the vehicle and maintain control of the situation. Once outside the vehicle, Ms. Gonzalez refused to initially cooperate in Officer England's attempts to get her under control or conduct an officer safety pat-down search. Officer England requested Ms. Gonzalez to stop and once again instructed her to place her hands on the car and warned her that if she continued to resist, he would be forced to spray her with his pepper spray. After repeated requests to place her hands on the car and Officer England's warning to her regarding the pepper spray, Ms. Gonzalez still refused to comply. In order to maintain control over Ms. Gonzalez and to prevent the need to physically subdue her, Officer England applied one short burst of his pepper spray to her face. After the application of the pepper spray, Ms. Gonzalez ceased her resistance and was handcuffed and transported to jail without further incident.
At the time Officer England applied his pepper spray to Ms. Gonzalez, there was an immediate threat of harm to either Ms. Gonzalez or himself as her continued resistance would have necessitated physical restraint. (Defendant's Motion at 6 (internal citations omitted).)
England's first motion for summary judgment was referred to United States Magistrate Judge Jane J. Boyle. In that motion, England claimed qualified immunity. Judge Boyle heard oral arguments on the motion and recommended that this Court deny the motion. Specifically, Judge Boyle recommended that this Court deny the false arrest claim because a material issue of fact remained as to what information England actually possessed during the events in question. Further, Judge Boyle recommended that the use of excessive force claim be denied because too many fact questions remained as to what exactly transpired during the entire incident.
DISCUSSION
I. STANDARD FOR GRANTING SUMMARY JUDGMENT
"Summary judgment is proper when, viewing the evidence in the light most favorable to the non-movant, "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."' Wilson Industries. Inc. v. Aviva America, Inc., 185 F.3d 492, 494 (5th Cir. 1999) (quoting Amburgev v. Corhart Refactories Corp., 936 F.2d 805, 809 (5th Cir. 1991)); Fed.R.Civ.P. 56(c). However, all reasonable doubts and inferences must be decided in the light most favorable to the party opposing the motion. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). Furthermore, as long as there appears to be some evidentiary support for the disputed allegations, the motion must be denied.See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coke v. General Adjustments Bureau. 640 F.2d 584, 595 (5th Cir. 1981) (en bane).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Cartett 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where the nonmoving party bears the burden of proof on a claim, upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that "there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party satisfies this burden, the nonmoving party may then oppose the motion by going "beyond the pleadings and by [its] own affidavits, or by the "depositions, answers to interrogatories, and admissions on file, designate "specific facts showing that there is a genuine issue for trial." Id. at 324; Anderson, 477 U.S. at 256. Summary judgment will be granted against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
II. QUALIFIED IMMUNITY
Due to the amount of discretion granted to police officers by the body politic, as well as the citizenry, few tragedies are worse than a police officer who has gone bad. Indeed, a tremendous tension in the social fabric of this country exist between two potent interests: the fundamental rights arising out of the Fourth Amendment against abusive police power and the compelling state interests in having its citizens secure from crime by the efforts of an effective police department. Thus, the United States Supreme Court has developed a balance that does not allow one interest to devour the other. This balance is struck through the common law doctrine of qualified immunity. As the Supreme Court has stated:
When government officials abuse their offices, `action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.' On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.Anderson v. Creighton, 483 U.S. 635, 638 (1987).
In order to ascertain whether a government official is entitled to qualified immunity, the Supreme Court enunciated a two prong test. See Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000) (citing Siegert v. Gilley, 500 U.S. 226 (1991)). First, this Court "must examine whether the `plaintiff has alleged a violation of a clearly established right.'" Id. (citations omitted). Second, this Court "must ask whether the defendant['s] conduct was objectively reasonable in light of "clearly established' law at the time of the alleged violation."Id. (citations omitted). In this analysis, objective reasonableness is a question of law for this Court to decide. See id. "The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law." See id. Thus, a police officer who reasonably commits a constitutional violation is entitled to immunity. See id.
Following the law of this case, Gonzalez has already satisfied the first prong of the inquiry with respect to both of her claims against England. In recommending that this Court deny the first summary judgment motion, Judge Boyle concluded that Gonzalez's allegations of false arrest and excessive force were constitutional violations, which satisfied the first prong. This Court adopted that conclusion. Thus, this Court's only inquiry centers on the second prong. Was England's actions objectionably reasonably in light of the information available to him and the clearly established law?
A. FALSE ARREST
England argues that the NCIC printout, listing Gonzalez's car as a stolen vehicle, provided adequate probable cause to stop Gonzalez. Indeed, England believes that Judge Boyle recommended that his first motion be denied because there was not any proof actually showing that the car was stolen on the date in question, outside of England's testimony. Therefore, England provided this Court with the NCIC information, in the form of the Garland Police Department Switcher Log Report ("switcher log"), in an attempt to eliminate the perceived evidentiary deficiency in his first motion. However, this Court disagrees for the following reasons.
First, England has incorrectly interpreted Judge Boyle's recommendation. Judge Boyle declined to make any determination on the issue of objective reasonableness because, without some form of documentation to support England's assertions regarding the NCIC information, she would have had to make credibility determinations. This, she held, was inappropriate on a motion for summary judgment. (See Judge Boyle's Recommendation at 42.) Thus, Judge Boyle stopped the qualified immunity analysis at that point. In contrast, England believes that Judge Boyle, in fact, continued in her analysis. England believes that Judge Boyle held that, had the NCIC documentation corroborating his testimony been in the record, his actions would have been determined objectionably reasonable. Judge Boyle did not so hold. As explained above, the analysis was terminated at the point requiring her to make a credibility determination. Therefore, England's act of providing the NCIC documentation does not resolve the qualified immunity question. It only allows the analysis to continue.
Second, the evidence submitted in support and opposition to the second motion for summary judgment raises more questions of material fact than it answers. England's switcher logs show that England assessed the information concerning Gonzalez's vehicle around 7:35 p.m. on the date in question. However, the evidence also suggest that Gonzalez was not stopped until 8:20 p.m., approximately. Further, the evidence suggest that England and the dispatcher from the Garland Police Department were in communication during some portion of this time span. However, no evidence is proffered as to what was actually communicated between these two individuals, nor is any evidence proffered as to why it took England so long to stop Gonzalez if the probable cause was based solely upon the NCIC information. Further, some evidence is offered to suggest that Gonzalez's father was called at his home, during the disputed time period, to determine whether the vehicle was still stolen. Finally, Gonzalez has placed into issue the police procedures concerning NCIC information. Specifically, Gonzalez has presented evidence suggesting that certain communications were required between the dispatcher and England. Therefore, instead of clarifying the situation, the summary judgment evidence succeeds in further blurring the picture. There are considerable fact issues as to what happened between the initial time that England assessed the NCIC information and the time, some forty minutes later, when he actually stopped Gonzalez. Specifically, there is a material question of fact as to what information England actually possessed when he stopped Gonzalez. With this material question of fact, the Court is not able, as a matter of law, to determine whether England's actions, in regard to stopping Gonzalez, were objectionably reasonable in light of the information available to him and the clearly established law at that time. See Goodson, 202 F.3d at 739 (citing Hart v. O'Brien, 127 F.3d 424, 432 (5th Cir. 1997); Johnston v. City of Houston, 14 F.3d 1056, 1061 (5th Cir. 1994); Mangieri v. Clifton, 29 F.3d 1012, 1016 n. 6 (5th Cir. 1994); Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993)).
The communication is only relevant in determining what information England actually possessed. This Court declines to rule on whether the communication was required to provide probable cause in conjunction with the NCIC information.
Clearly, if the dispatcher had relaid the information that the car was no longer stolen, England would have been without the stated probable cause. Likewise, if the dispatcher confirmed that the car was stolen, England would have been provided adequate probable cause. However, this Court is not ruling on the sufficiency of the NCIC information to stop a car. Rather, this Court is taking note that there is a time span of forty minutes that has not been accounted for by the defense. Gonzalez has presented evidence suggesting that information indicating the car was not stolen may have been relaid to England. It is highly probable that the communication taking place during this period informed England's perception as much as the NCIC information.
Third, the computer information in evidence shows that Gonzalez was listed as one of the owners of the vehicle. A check of Gonzalez's drivers license should have confirmed that the car was being driven by the actual owner. However, a material question of fact exist as to whether England compared Gonzalez's license to the computer information. Additional questions of fact exist as to whether Gonzalez had a license on her person, as well as what information was actually on the license. Indeed, too many material questions of fact exist to determine whether England's act of arresting Gonzalez for driving a stolen vehicle were objectionably reasonable in light of the information available to him and the clearly established law at that time. See Goodson. 202 F.3d at 739 (citing Hart, 127 F.3d at 432; Johnston, 14 F.3d at 1061; Mangieri, 29 F.3d at 1016 n. 6; Lampkin, 7 F.3d at 435).
It is not clear whether Gonzalez was arrested for driving a stolen vehicle or resisting arrest from the summary judgment record.
Finally, because this Court holds that a material question of fact exist as to whether Gonzalez resisted arrest, a material question of fact remains as to whether it was objectionably reasonable to arrest her for resisting arrest. See Goodson, 202 F.3d at 739 (citing Hart, 127 F.3d at 432; Johnston 14 F.3d at 1061; Manaleri, 29 F.3d at 1016 n. 6; Lampkin, 7 F.3d at 435).
B. EXCESSIVE USE OF FORCE
In respect to Gonzalez's excessive use of force claim, England has not offered any new evidence that would change the original determination of Judge Boyle. The narrowly tailored and selected pages of depositions do not illuminate the disputed sequence events. Therefore, this Court holds that material questions of fact prevent a determination of England's qualified immunity on summary judgment. See Goodson, 202 F.3d at 739 (citing Hart, 127 F.3d at 432; Johnston, 14 F.3d at 1061; Mangieri, 29 F.3d at 1016 n. 6; Lampkin, 7 F.3d at 435).
England has also presented evidence suggesting that the car was involved in an aggravated assault approximately seven days prior to the subject incident. He argues that this information caused him to believe that the car was operated by a felon. However, this does not change the fact that this Court is presented with two versions of events, requiring a fact finder to make credibility determinations.
CONCLUSION
In conclusion, England has argued that unless he is incompetent or knowingly violated the law, he is protected by qualified immunity. However, this Court holds that there are too many material questions of fact to determine whether England is incompetent, knowingly violated the law, or is protected by qualified immunity at this point in the litigation.
Therefore, for the reasons stated above, Defendant's Motion for Summary Judgment is DENIED. Finally, both parties are directed not to request leave to file any additional motions for summary judgment. Justice can only be harmed by further delay. Indeed, this case should go before the ultimate fact-finders as soon as possible, so that all parties may put this incident behind them and go on with their lives.
It is so ORDERED.