Opinion
CIVIL ACTION NO. H-03-2297, CIVIL ACTION NO. H-02-3809, CIVIL ACTION NO. H-03-0125, CIVIL ACTION NO. H-03-0126, CIVIL ACTION NO. H-04-1544, CIVIL ACTION NO. H-04-1542, CIVIL ACTION NO. H-04-1543, CIVIL ACTION NO. H-04-1545, CIVIL ACTION NO. H-04-3221.
February 14, 2008
MEMORANDUM AND ORDER
In this civil rights dispute arising from the August 2002 arrests of Plaintiffs, Defendant City of Houston ("Defendant" or "the City") filed a Motion for Summary Judgment [Doc. # 216 in Lopez, H-03-2297] ("MSJ"), the Lopez Plaintiffs responded [Doc. # 221 in Lopez, H-03-2297] ("Response"), and Defendant replied [Doc. # 225 in Lopez, H-03-2297]. On January 7, 2008, after this initial round of briefing, the Court held oral argument; after argument, at the direction of the Court, the parties filed supplemental briefing. Having considered the parties' submissions, the applicable legal authorities, and all matters of record, the Court concludes that the City's motion should be denied.
The Court's reference to "Plaintiffs" includes the plaintiffs in all nine cases listed in this Order's caption. Some Plaintiffs were arrested on August 16, 2002, and others were arrested on August 17, 2002.
See Plaintiffs' Supplement to Their Response to Defendant the City of Houston's Motion for Summary Judgment [Doc. # 232 in Lopez, H-03-2297]; Plaintiffs' Supplemental Response to Defendant City of Houston's Motion for Summary Judgment [Doc. # 183 in Cory, H-03-0125]; City of Houston's Reply to Plaintiffs' Supplemental Response to the City['s] Motion for Summary Judgment [Doc. # 223 in Lopez, H-03-2297].
I. BACKGROUND
A. Procedural Background
Previously, in December 2004, the City, together with Defendant former City Police Chief C.O. Bradford, filed a motion for summary judgment [Doc. # 134 in Lopez, H-03-2297], which the Court granted in part and denied in part. See Memorandum and Order, entered July 25, 2005 [Doc. # 166 in Lopez, H-03-2297] ("2005 M O"). The Court held that Plaintiffs could proceed against the City and Chief Bradford on three claims: (1) a § 1983 claim based on the facially unconstitutional Jackson Plan, (2) a § 1983 claim based on an alleged custom of mass detention without reasonable suspicion, and (3) the claim that Bradford failed to supervise his staff so as to prevent Plaintiffs' unlawful detention. 2005 M O, at 78.
After this Court's 2005 M O, Defendant Bradford filed an appeal [Doc. # 170 in Lopez, H-03-2297], which was dismissed for lack of jurisdiction on July 11, 2007 [Doc. # 211 in Lopez, H-03-2297]. This Court then ordered parties to mediation and gave permission for Defendants to file motions for summary judgment. Minute Entry Order, August 22, 2007 [Doc. # 214 in Lopez, H-03-2297].
The City's current summary judgment motion is relevant only to the second claim listed above, i.e., the custom of mass detention without individualized reasonable suspicion. At oral argument, the Court focused upon the pending motion and, therefore, the custom issue. Since the January 2007 argument, Plaintiffs have expressed some concern about implications by the Court that Plaintiffs' only viable claim against the City stems from their argument regarding custom. Contrary to any implications at oral argument, the Court recognizes that Plaintiffs' theory regarding official policy is a live claim. B. Factual Background
See Motion to Allow Extended Length of Supplemental Response to Defendant City of Houston's Second Motion for Summary Judgment Combined with Request for Reconsideration Excluding Claims of Unconstitutional Arrest [Doc. # 185 in Cory, H-03-0125].
See 2005 M O, at 78; Cory Plaintiffs' Fourth Amended Complaint [Doc. # 67 in Cory, H-03-0125].
The relevant facts are set out in the 2005 M O. These facts will be recapped only briefly here, viewed in the light most favorable to Plaintiffs. The Court also describes evidence of record pertinent to the issue of custom and practice.
In the summer of 2002, the Houston Police Department ("HPD") issued and implemented a series of plans to address illegal street racing. Street racing had been identified as a problem by officials at the highest levels of HPD, because of concerns for public safety during the events and because there were rashes of auto parts thefts, apparently to replace parts damaged during racing. Over the summer, plans were drafted by HPD Captain Mark Aguirre, Captain S.A. Smith, and Lieutenant F.S. Jackson with strategies for addressing the street racing problem. Chief Bradford was aware of at least some of the street racing strategies and operations, although the parties dispute whether he was aware of the events planned for August 16 and 17, 2002.
Plaintiffs claim they were injured by Operation ERACER, an HPD operation targeting street racing, on the weekend of August 16 and 17, 2002. Some Plaintiffs were arrested on Friday, August 16, when HPD officers conducted a surprise raid on the parking lot of the James Coney Island restaurant at 5700 Westheimer. Others were arrested on Saturday, August 17, when HPD conducted another surprise raid at the parking lot of a K-Mart store and Sonic Drive-In restaurant, both located at the 8400 block of Westheimer. On both occasions, HPD officers swept in and detained everyone in the parking lot, including customers of the open businesses. According to a post-operational memo sent to Assistant Chief McClelland, HPD arrested 37 people at James Coney Island on August 16. Of these, 31 were arrested for Class C Trespass (remaining), one for a SETSIC warrant, and five for municipal warrants. At K-Mart on August 17, HPD arrested 285 people: 228 for Class C Trespass (remaining), 54 for juvenile curfew, one for possession of marijuana, and two for public intoxication. Notably, none of these arrests were for street racing or moving violations. Plaintiffs allege that hundreds of persons were detained by HPD without individualized reasonable suspicion of criminal activity.
The record is unclear regarding the dates for HPD's operation. Although it appears that the operation occurred over only two nights (Friday, August 16 at James Coney Island, and Saturday, August 17 at Sonic and K-Mart), the parties' pleadings and arguments have also referred, without citation, to a raid at Sonic and K-Mart on Sunday, August 18. The reference to August 18 may be simply because the August 17 operation extended past midnight, into the early hours of August 18. A post-operational memo drafted on Monday, August 19, refers only to August 16 (James Coney Island) and 17 (K-Mart). See Exhibit K to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125].
The Court assumes that the events in question occurred only on August 16 and 17, 2002, with the understanding that the HPD operation on August 17 continued into the morning of August 18. If the Court's assumption is inaccurate, the parties are instructed to inform the Court immediately, and to direct the Court to documentation of any additional operations.
The City's supplemental briefing identifies Section 30.05 of the Texas Penal Code as the relevant trespass statute, while conceding that Plaintiffs' arrests had no basis in law because HPD failed to give Plaintiffs an opportunity to depart. See City's Supplemental Brief [Doc. # 233 in Lopez, H-03-2297], at 3-4; id. Exhibit 2 (version of Tex. Pen. Code § 30.05 that was in effect in 2002 states that a person commits criminal trespass if he or she enters or remains on property without effective consent and "(1) had notice that the entry was forbidden; or "(2) received notice to depart but failed to do so"). Although not cited by the parties, a City ordinance also forbids trespass. See HOUSTON, TEX. CODE § 28-24 ("It shall be unlawful for any person to be found on the premises of another in the nighttime, under suspicious circumstances.").
See Memorandum dated August 19, 2002, from Lt. Jackson to Assistant Chief McClelland, regarding "Category of Arrests, Operation ERACER, Week One" (Exhibit K to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]).
Id.
But see id. (one arrest for Road Rage Class A Assault at 8500 Westheimer, the K-Mart location, on the night of the James Coney Island raid at 5700 Westheimer).
Plaintiffs argue that Operation ERACER on August 16 and 17 was part of a custom within HPD of mass detentions without individualized reasonable suspicion. They direct the Court's attention to other HPD operations, dating as far back as 1989, arguing that these plans establish a pattern of similar constitutional deprivations by HPD. The chronology and relevant features of the plans are as follows: Stella Link (1989) Gulfton (May 4 — June 9, 1990) Richmond Strip (December 1995) Operation Renaissance (1999-2000) Lopez STAARS Meeting (April 18, 2002) Aguirre Plan (May 13, 2002) Smith Plan (May 30, 2002; implemented June 2002) Smith Update (June 14, 2002) Smith Evaluation (July 2, 2002) Jackson Plan (August 1, 2002; planned implementation August 16 and 17, 2002) Aguirre Memorandum (August 13, 2002; planned implementation beginning August 16, 2002) : Operation ERACER Task Force Meeting (August 15, 2002) : Operation ERACER Game Plan (August 16, 2002)
See Exhibit 2 to MSJ.
See Exhibit 3 to MSJ.
See Exhibit 4 to MSJ.
See Exhibit 5 to MSJ.
See Second Amended Complaint [Doc. # 119 in Lopez, H-03-2297], ¶¶ 15-16.
See Exhibit 1 to Response. This exhibit is sealed, but the Court refers only to matters cited publicly in the parties' briefing.
Id. at 221.
Id. at 228.
See Exhibit 2 to Response.
See Memorandum from McClelland to Chief Bradford and Executive Assistant Chief Breshears, dated May 23, 2002 (Exhibit 3 to Response).
See Breshears Deposition (Exhibit 10 to Response), at 82-83. Plaintiffs note that HPD officials did not reject the Aguirre Plan based on its "zero tolerance" tactics, arguing strenuously that the failure of "zero tolerance" to raise eyebrows among high-ranking officials indicates that the strategy was an established custom within HPD. The Court notes, however, that although the Aguirre Plan uses the term "zero tolerance," it does not discuss mass containment of the public or mass detention without individualized reasonable suspicion or arrests without probable cause. As discussed in Section III.A.1, infra, focusing on the term "zero tolerance" distracts attention from the real issue before the Court, that is, the existence of a custom of mass detention without individualized reasonable suspicion. The term "zero tolerance" is ambiguous enough to refer to both lawful and unlawful police activity.
See Exhibit 4 to Response.
This Court has previously held that Chief Bradford approved the Smith Plan, and that the Smith Plan is facially constitutional. 2005 M O, at 26-27.
See Exhibit 5 to Response. The final paragraph of the Smith Update states that it "was prepared quickly to provide an update to the street racing project," and that it "should not be considered a comprehensive, organized, official correspondence in reference to this operation."
See Exhibit 6 to Response.
See City of Houston's Reply to Plaintiffs' Supplemental Response to the City Motion for Summary Judgment [Doc. # 223 in Lopez, H-03-2297], at 5.
See Exhibit 7 to Response. The Jackson Plan was addressed to officers and supervisors, rather than high-ranking officials, although in the text it states that the operation had been approved by Assistant Chief McClelland.
See also Exhibit D to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125] (memorandum from Assistant Chief McClelland, dated August 12, 2002, states that he has approved Operation ERACER as detailed in the Jackson Plan). The 2005 M O, at 27-28, held that the Jackson Plan is facially unconstitutional and that a genuine fact issue exists as to Chief Bradford's approval of the plan.
See Exhibit C to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125].
See Exhibit D to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125].
See Counsel's Summary of Officers' Statements and Statements of Sgt. Cain, Sgt. Roberts, Sgt. Zitzmann, Officer McClellan, and Sgt. Maeker (Exhibits A, A-I, A-II, A-III, A-IV, A-V to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]).
See Exhibit 8 to Response.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the burden of demonstrating that there is no evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); de la O v. Housing Auth., 417 F.3d 495, 501 (5th Cir. 2005). If the moving party meets this initial burden, the burden shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue for trial. Rule 56(e). Id. The court construes all facts and considers all evidence in the light most favorable to the nonmoving party. Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 416 (5th Cir. 2006).
III. ANALYSIS
In the Fifth Circuit, in accordance with Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978), municipal liability under 42 U.S.C. § 1983 requires proof of three elements: (1) an official policy or custom, of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a violation of constitutional rights whose "moving force" is the policy or custom. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), cert. denied, 534 U.S. 820 (2001). A municipality cannot be held liable solely because it employs a tortfeasor. In other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. Monell, 436 U.S. at 691.
The pending motion addresses only Plaintiffs' theory regarding an alleged custom of HPD, not their argument regarding an official, formal, written policy. Therefore, under Monell's first element, Plaintiffs must show a "persistent, widespread practice of City officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy." Piotrowski, 237 F.3d at 579 (citing Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)).
Under Monell's second element, Plaintiffs must show "[a]ctual or constructive knowledge of [the] custom" that is "attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority." Pineda, 291 F.3d at 238; Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc), cert. denied, 472 U.S. 1016 (1985). Actual knowledge can be shown "by such means as discussions at council meetings or receipt of written information." Pineda, 291 F.3d at 330. Constructive knowledge of a municipal custom requires a showing that the governing body "would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." Id.
Under Monell's third element, to establish that the custom is the "moving force" behind the constitutional violation, Plaintiffs must "demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997); see Pineda, 291 F.3d at 328.
When a court concludes that a municipal policy or custom itself violates federal law, that conclusion "also determine[s] that the municipal action was the moving force behind the injury of which plaintiff complains." Brown, 520 U.S. at 405. However, in cases in which the policy or custom at issue is facially constitutional, establishing the "moving force" element is more difficult, and requires a showing that the municipal action was taken "with `deliberate indifference' as to its known or obvious consequences." Id. at 407 (quoting Canton v. Harris, 498 U.S. 378, 388 (1989)).
On each of the three elements, as discussed below, Plaintiffs have demonstrated a genuine issue of material fact sufficient to defeat summary judgment. However, the Court holds that Plaintiffs have not demonstrated that the custom of mass detentions without individualized reasonable suspicion preceded 2002. All pre-2002 plans and operations are irrelevant to the issue of whether there was an HPD custom.
A. Evidence of a Custom
To satisfy the first element under Monell, Plaintiffs must establish a "persistent, widespread practice of city officials or employees" that is "so common and well settled as to constitute a custom that fairly represents municipal policy." Bennett, 735 F.2d at 862. For the reasons stated below, the Court holds that Plaintiffs have not established a genuine issue of material fact regarding existence of a custom from 1989 through 2002, but that the record reveals a fact issue regarding existence of a custom within the summer of 2002.
1. Conduct Between 1989 and 2002
Plaintiffs argue that HPD's custom of mass detentions without reasonable suspicion has existed since 1989, citing to all the operations summarized in Section I.B, supra: Stella Link (1989), Gulfton (1990), Richmond Strip (1995), Operation Renaissance (1999-2000), the Aguirre Plan (May 13, 2002), the Smith Plan (May 30, 2002), the Smith Implementation (June 15, 2002), the Jackson Plan (August 1, 2002), and the Game Plan (August 16, 2002). The Court holds that, although the operations prior to 2002 bear some similarities to Operation ERACER, Plaintiffs have not presented sufficient evidence of relevant similarities to demonstrate a genuine fact issue that all or, indeed, any of these operations, spanning thirteen years, constitute a single custom of unlawful police activity.
This case focuses on mass detention without individualized reasonable suspicion, as confirmed by Plaintiffs' most recent filings. Although each of the cited operations resulted in a large number of persons being detained or arrested, Plaintiffs have presented no evidence of mass detentions occurring before 2002. The Stella Link operation involved seriatim detentions for those who sought to enter the Link Valley Apartments and did not have resident passes. The Gulfton and Richmond Strip operations involved individual arrests for observed unlawful activity. These operations are fundamentally different from the 2002 operations (June 15 and August 16 and 17), in which a large number of people were detained for lengthy periods of time based merely on their presence at a targeted location, and then subjected to individual scrutiny.
See Lopez Supplemental Response [Doc. # 232 in Lopez, H-03-2297], at 13; Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]. The Court notes that the Cory/Ross brief does not discuss any of the pre-2002 plans.
The Lopez Plaintiffs allege that Operation Renaissance, in 1999-2000, included sweeps and mass detentions, see Second Amended Complaint [Doc. # 119 in Lopez, H-03-2297], ¶¶ 15-16, but have offered no summary judgment evidence to support their assertion on this point.
To be sure, there are some similarities between the earlier plans and the 2002 plans, but they are very limited, and the disparities are far more prevalent and significant. For instance, in the Stella Link operation, although HPD blocked off the Link Valley apartment complex, a six-block area, it was entry to the complex that was restricted for non-residents. Non-residents were stopped at a checkpoint; residents were issued passes and could pass through the checkpoint without being stopped. This is entirely different from HPD preventing numerous people from exiting a commercial area that they legitimately had entered as invitees. None of the other pre-2002 plans involved cordoning off of geographic areas and detaining those within the boundaries for no individualized reason.
It is also true that certain of the earlier operations invoked the trespass statutes as a law enforcement tool. But, nothing in those plans indicates that HPD detained groups of people for any material amount of time without individualized suspicion. The pre-2002 plans also saturated the targeted areas with police officers. However, this practice is not unlawful. The few similarities are strained and, at best, peripheral to the legal defect in the 2002 operations in issue, i.e., mass detentions without individualized suspicion of any unlawful conduct.
HPD used trespass on residential property, and with permission of property managers, in the Stella Link and Gulfton operations.
Police saturation was part of HPD's strategy in multiple operations, including Stella Link, Gulfton, Richmond Strip, Operation Renaissance.
Plaintiffs also argue that HPD personnel's use of the term "zero tolerance" to describe their tactics and goals in various operations, including Stella Link, Gulfton, and the 2002 plans, demonstrates the requisite similarity between the operations, and raises "a reasonable inference that zero tolerance tactics was understood in HPD parlance to include mass detention without individualized reasonable suspicion." Plaintiffs' focus on the term "zero tolerance" is misplaced. The mere fact that HPD personnel use the label as part of their description of various law enforcement operations is not sufficient to establish similarity to the alleged custom in issue in this case. The record demonstrates that different officials may well have had different understandings of the term's meaning, with many officials using "zero tolerance" to mean arrests for all visible unlawful activity — a lawful "zero tolerance" policy — and others apparently understanding the term to permit containment of all persons present in an area, followed by individual scrutiny, and ultimately the arrest of all law violators — an unlawful "zero tolerance" practice due to the first feature. The relevant issue is whether the mass detentions at issue in the various operations were justified by officers' observations of unlawful activity or were based on individuals' mere presence at the location. The question thus is whether officers had particularized reasonable suspicion of violations of law before they detained individuals for questioning. Because Plaintiffs' evidence regarding HPD's pre-2002 operations does not demonstrate mass or lengthy detentions without individualized reasonable suspicion, as occurred to Plaintiffs in August 2002, the pre-2002 operations are not relevant to this case. Evidence of these operations is therefore excluded from analysis of the existence of an HPD custom or practice.
See Lopez Supplemental Response [Doc. # 232 in Lopez, H-03-2297], at 12.
2. Conduct During 2002
The Court turns to the issue of whether, as a matter of law, HPD's 2002 plans as executed are sufficiently pervasive and widespread to establish a custom or practice on which municipal liability may be grounded. Plaintiffs rely on various plans proposed and/or executed by HPD in mid-2002. In fact, however, the core events are HPD's June 2002 implementation of the Smith Plan, which plan as written does not contain the unlawful element of mass detentions without individualized suspicion, and the August operations as planned and executed (the Jackson and Game Plans). Thus, the question in this case is whether a practice lasting approximately two months, with ambiguous prior discussions about the need for HPD's response to a serious public safety problem, is sufficient to establish a custom or practice under the circumstances presented. The Court concludes that Plaintiffs have adduced sufficient evidence to create a genuine question of material fact as to the existence of a custom or practice.
In Bennett v. City of Slidell, the Fifth Circuit recognized that the determination of the existence of a custom is fact-specific.
Sufficient duration or frequency of abusive practices, or other evidence, must warrant a finding of knowledge on the part of the governing body that the objectionable conduct has become customary practice of city employees. Where the violations are flagrant or severe, the fact finder will likely require a shorter pattern of the conduct to be satisfied that diligent governing body members would necessarily have learned of the objectionable practice and acceded to its continuation.Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984) (en banc). At least one case has held that, in its specific factual context, a two-and-a-half month period was sufficient to establish a custom under § 1983. In James v. Nocona General Hospital, up to twenty-two hospital patients had died, under suspicious circumstances, over a two-and-a-half month period. The district court held, on a Rule 12(b)(6) motion, that the evidence was sufficient for a factfinder to find "such a pattern as to charge the hospital or its staff or agents with knowledge."
The analysis here is pertinent both to whether a custom existed at all (discussed in this Section), and whether City policymakers can be charged with knowledge of the custom (discussed in Section III.B, infra).
James v. Nocona Gen. Hosp., 2004 WL 2002425 (N.D. Tex. Sept. 4, 2004), aff'd sub nom. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 255-56 (5th Cir. 2005) (defendants' knowledge that, among other things, the hospital's death rate over a two-month period was at least double the death rate from the same two-month period from the preceding year, is sufficient to allege deliberate indifference). Cf. Maddux v. Officer One, 90 F. App'x 754, 776 n. 47 (5th Cir. 2004) ("Even the `short pattern of conduct' that may sometimes prove sufficient to demonstrate a custom when the violations are `flagrant or severe' does not necessarily contemplate one similar incident") (quoting Bennett, 728 F.2d at 768) (emphasis original).
In light of the severity, duration, and frequency of the alleged violations, as well as "other evidence," see Bennett, 728 F.2d at 768, the Court concludes there is a genuine fact issue as to the existence of an HPD custom in 2002 of using mass detention without individualized suspicion as a law enforcement tool. The following, viewed in the light most favorable to Plaintiffs, support this conclusion:
(1) mass detentions without individualized suspicion occurred on three nights over a two month period;
(2) HPD was focused on street racing during the summer of 2002, and created and vetted several plans to combat the racing, with the last plans (the Jackson and Game Plans) expressly incorporating mass detentions into the operation;
(3) the operations on August 16 and 17 were extensively pre-planned by HPD; and
(4) the HPD officers assigned to carry out Operation ERACER believed that mass detentions were acceptable and had been approved by high-ranking HPD officials.
These three HPD mass detentions were on June 15 under the Smith Plan, and on August 16 and 17 under the Jackson/Game Plan. It was clear from after-the-fact descriptions of the June 15 operation that mass detentions had occurred, because 350 vehicles were contained. These results were described in detail to Executive Assistant Chief Breshears, see Smith Evaluation (Exhibit 6 to Response), who was in frequent communication with Chief Bradford. Breshears Deposition (Exhibit 10 to Response), at 137 (Breshears kept Bradford apprised of developments through "phone calls and daily meetings"). Not only did HPD leadership not issue an instruction to cease or change the mass detention tactics, but within a month or so, Assistant Chief McClelland approved the Jackson Plan, which called explicitly for mass detention and was executed on August 16 and 17.
During the summer of 2002, HPD also devoted significant time and resources to the street racing problem. Chief Bradford directed his staff to address the problem and, at the April STAARS meeting, expressed his support for strict enforcement measures. Over the summer, numerous anti-racing plans and strategies were drafted and vetted within HPD, including the Aguirre Plan, the Smith Plan, the Jackson Plan, and the Game Plan. Although the Smith Update and the Jackson Plan explicitly discussed mass detentions, followed by individual scrutiny of all present, these reports and plans apparently did not raise eyebrows within HPD. Thus, there is support for Plaintiffs' argument that mass detentions were custom in 2002 within HPD.
Operation ERACER on August 16 and 17 was pre-planned by HPD officials, with the extensive involvement of Assistant Chief McClelland. In most reported cases analyzing whether there is a custom or practice, the questioned action is by line officers spontaneously reacting to particular circumstances, without discussion with higher officials. See, e.g., Pineda, 291 F.3d at 329 (discussing pattern of warrantless entries by HPD officers). That was not the circumstance here.
The HPD officers who implemented Operation ERACER understood that their superiors expected mass detentions to occur on August 16 and 17, and that detentions of spectators as well as racers would take place. The officers also were led to believe that Chief Bradford supported the operation. See Counsel's Summary of Officers' Statements and Statements of Sgt. Cain, Sgt. Roberts, Sgt. Zitzmann, Officer McClellan, and Sgt. Maeker (Exhibits A, A-I, A-II, A-III, A-IV, A-V to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]).
Viewed together, and drawing all inferences in Plaintiffs' favor, the incidents within the summer of 2002 are sufficient to demonstrate a fact question as to whether HPD had a custom of mass detention without individualized reasonable suspicion. B. City Policymaker's Actual or Constructive Knowledge of the Custom
The City's attempt to define the custom very narrowly, as detention "pursuant to criminal trespass in an area where businesses were open," MSJ, at 10, and thus presumably to exclude the June 15 operation from consideration, is unavailing. See City of Houston's Reply to Plaintiffs' Supplemental Response to the City Motion for Summary Judgment [Doc. # 233 in Lopez, H-03-2297], at 5 (HPD's containment operation on June 15, at 7100 Business Park Drive, occurred at the parking lot of a closed business). HPD's use of trespass laws may have some relevance to the alleged custom at issue, and the likelihood of wrongful detentions surely was increased by the fact that the operations of August 16 and 17 were carried out in parking lots of open businesses. Nevertheless, neither of these circumstances is necessary to establish a constitutional violation. As noted previously, the ultimate question is whether the City carried out mass detentions without individualized reasonable suspicion.
Under the second element for § 1983 liability, Plaintiffs must show that a policymaker had actual or constructive knowledge of the relevant custom or policy. As held previously, Chief Bradford is a policymaker for HPD because he was Chief of Police at the time relevant to this suit. See Piotrowski, 237 F.3d at 579 ("the Mayor, City Council, and Chief of Police [are] Houston's presumptive policymakers for the police") (citing Webster, 735 F.2d at 842).
See 2005 M O, at 23 n. 29.
It is unclear if one or more Plaintiffs argue that Executive Assistant Chief Breshears and/or Assistant Chief McClelland also are policymakers for HPD for purposes of the street racing initiatives. The Court therefore does not decide this issue. Nevertheless, the Court notes that the Fifth Circuit has held that policymaking power may sometimes be delegated. Bennett, 728 F.2d at 769. Further, Chief Bradford previously testified in deposition "that the Chief of Police and his command staff of assistant chiefs serve as policymakers for HPD." Pineda v. City of Houston, 124 F. Supp. 2d 1057, 1079 (S.D. Tex. 2000), modified in part on other grounds, 291 F.3d 325 (5th Cir. 2002). The Fifth Circuit in Pineda did not analyze the issue, but stated, "The plaintiffs do not allege that the policymakers for the City, the Police Chief and his Assistant Chiefs, had actual knowledge of the pattern. . . ." Pineda, 291 F.3d at 330. But see Piotrowski, 237 F.3d at 579 (citing Webster and stating that, "without proof," it was "inconceivable" that assistant chiefs were policymakers); Webster, 735 F.2d at 842 ("There was no proof in this record whatsoever that any police officer subordinate to the Chief even possibly could have occupied the role of a city policymaker.").
Evidence in the record supports the argument that Breshears and McClelland had actual or constructive knowledge in 2002 of an HPD mass detention practice or custom. Breshears is the listed recipient for, and therefore had actual knowledge of, the Smith Evaluation, which recounted in detail HPD officers' mass containment of the public on June 15. See Pineda, 291 F.3d at 330 (actual knowledge may be shown by "receipt of written information"); Exhibit 6 to Response. Breshears also had actual knowledge of the planned operation on August 16, as established by his receipt of Aguirre's memorandum entitled "Anticipated Mass Arrests from Operation ERACER." See Aguirre Memorandum dated August 13, 2002 (Exhibit C to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]) (memorandum sent to Breshears and McClelland, among others). Aguirre's memorandum states that the first phase of Operation ERACER will be conducted on August 16, targeting street racers "and their followers," and that "we anticipate that the operation will produce mass arrest from the onset."
McClelland was heavily involved in the implementation of Operation ERACER. He approved the Jackson Plan, received Aguirre's August 13 memorandum anticipating mass arrests and, on August 15, convened a "mandatory planning meeting" for all members of the Operation ERACER task force. See Memorandum from McClelland dated August 12, 2002 (Exhibit D to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]) (announcing mandatory planning meeting for Operation ERACER on August 15); Jackson Plan (Exhibit 7 to Response). Officers present at the task force meeting have stated that they were instructed by McClelland and Aguirre to detain spectators as well as racers, and to use trespass as an enforcement tool. See Counsel's Summary of Officers' Statements and Statements of Sgt. Cain, Sgt. Roberts, Sgt. Zitzmann, Officer McClellan, and Sgt. Maeker (Exhibits A, A-I, A-II, A-III, A-IV, A-V to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125].
As held in the 2005 M O, Plaintiffs have demonstrated through circumstantial evidence that there is a genuine fact issue regarding Chief Bradford's "actual or constructive knowledge" of the mass detention custom at issue. The Smith Evaluation, which reported the mass detentions on June 15, was addressed to Breshears, to whom Chief Bradford specifically had delegated authority to address the street racing problem. The evidence indicates that Breshears and Chief Bradford generally maintained close communications, such as daily meetings as needed; that extensive resources were required to implement Operation ERACER, which supports the inference that Chief Bradford would have been aware of the planned operation; and that McClelland, who was required to obtain Breshears' approval before implementing any street racing operation, told Chief Bradford and Breshears that he was going to run such an operation. McClelland then approved the Jackson Plan, which called explicitly for mass detentions followed by individual scrutiny on the dates in question, and subsequently conducted the August 15 task force meeting during which HPD officers received instructions for implementing Operation ERACER. Officers present at the task force meeting report that they were told or led to believe that Chief Bradford had approved the planned mass detentions.
See 2005 M O, at 49-52; Pineda, 291 F.3d at 330 (discussing standards for actual and constructive knowledge of a policymaker). It is uncontradicted that Chief Bradford had actual knowledge of the rejected Aguirre Plan and the Smith Update because both were addressed to him. See Pineda, 291 F.3d at 330 (actual knowledge may be shown by "receipt of written information"). However, because neither plan explicitly called for detentions without individualized suspicion, these facts alone cannot establish Chief Bradford's knowledge of the custom.
See Bradford Deposition (Exhibit 9 to Response), at 97-98 (Bradford delegated the street racing problem to Breshears, and Breshears "had the authority to approve or reject those strategies at his level," without going to Bradford, as long as the strategies complied with the Smith Plan's model); Breshears Deposition (Exhibit 10 to Response), at 137 (based on his communication with Bradford, Breshears thought he was fully within his authority to make a decision on the Smith Plan or the Aguirre Plan; Breshears kept Bradford apprised of developments through "phone calls and daily meetings").
See 2005 M O, at 49-52.
See Exhibit 7 to Response.
See Exhibit D to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125].
See Counsel's Summary of Officers' Statements and Statements of Sgt. Cain, Sgt. Roberts, Sgt. Zitzmann, Officer McClellan, and Sgt. Maeker (Exhibits A, A-I, A-II, A-III, A-IV, A-V to Cory/Ross Supplemental Response [Doc. # 183 in Cory, H-03-0125]).
When this evidence is viewed in the light most favorable to Plaintiffs, a jury could reasonably conclude that Chief Bradford had actual or constructive knowledge of an HPD custom of mass detention without individualized reasonable suspicion. Summary judgment on this issue is unwarranted.
The time period at issue here is relatively short but, given all of the facts discussed above, is sufficient to create a genuine fact issue regarding the City policymakers' actual or constructive knowledge of the custom. See supra Section III.A.2 (citing Bennett, 728 F.2d at 768, and other cases).
C. Moving Force Behind Deprivation of Plaintiffs' Constitutional Rights
The City argues that Plaintiffs have no evidence that "the Jackson Plan or any custom" was the moving force behind the constitutional violations at issue. Rather, the City argues, the constitutional violations were caused by the Game Plan, which shifted the focus from street racers to racing spectators through use of trespass laws, and was not approved by a City policymaker. MSJ, at 12-13; Reply, at 6.
Although the City attempts to shift the Court's focus to the Game Plan, the focus for this summary judgment motion must remain on the alleged custom of mass detention without individualized reasonable suspicion. Plaintiffs have successfully demonstrated a genuine fact question as to whether a custom of unconstitutional detention existed in 2002, with the actual or constructive knowledge of a City policymaker, and whether HPD acted pursuant to that custom on August 16 and 17. Given that Plaintiffs were detained by HPD on August 16 or 17 as part of the custom Plaintiffs have alleged, a fact question also exists as to whether the custom was the moving force behind the violations of their constitutional rights. See Brown, 520 U.S. at 405 ("the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains").
Although the City presents argument regarding deliberate indifference, see MSJ at 11-12 ("Plaintiffs have no evidence of deliberate indifference by Bradford . . ."), the issue is not relevant to the pending motion. Deliberate indifference applies when courts analyze constitutional violations caused by a facially constitutional policy. See Brown, 520 U.S. at 407; Piotrowski, 237 F.3d at 579. By contrast, the custom alleged by Plaintiffs here — mass detention without individualized reasonable suspicion — is per se unconstitutional. Deliberate indifference also applies in analysis of claims of a municipality's failure to train or supervise its police officers, see Pineda, 291 F.3d at 331-32, which is not relevant to this motion.
IV. CONCLUSION
Plaintiffs have demonstrated genuine issues of material fact sufficient to defeat summary judgment on the theory that HPD in 2002 had a custom or practice of detaining masses of people without individualized suspicion. It is therefore
ORDERED that the City of Houston's Motion for Summary Judgment [Doc. # 216 in Lopez, H-03-2297] is DENIED. However, only the plans and operations during 2002 will be considered relevant to the alleged custom of mass detention without individualized reasonable suspicion.