U.S. Supreme Court holds officers “seized” suspect by shooting her even if the suspect was still able to flee and escape.

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Torres v Madrid, et al., No. 19–292. (U.S. March 25, 2021)

This is an excessive force/§1983 case where the U.S. Supreme Court held the proper inquiry into a “seizure” by excessive force (i.e. gunshots) is whether the challenged conduct objectively manifests an intent to restrain as opposed to force applied by accident or for some other purpose.

Four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white-collar crimes. They approached Torres in her vehicle, but she did not notice them until one attempted to open the door. Torres testified she only saw individuals had guns and believed they were carjackers. She drove off at an accelerated rate, but the officers shot at her thirteen times. She was temporarily paralyzed. She plead no contest to aggravated fleeing and other related charges. She later sued two of the officers for excessive force under §1983. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed.  They relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Torres appealed.

The Court performed a detailed analysis of the term “seizure.”  The Court held a seizure requires the use of force with intent to restrain. Accidental force will not qualify.  It stated “… the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context.” The seizure does not depend on the subjective perceptions of the seized person.  The Court held the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.  The Court emphasized this rule is narrow. There is a distinction between seizures by control and seizures by force. A seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Seizure by force is the application of force with intent to restrain (viewed from an objective standard). However, not all seizures are unreasonable, so the Court remanded the case back for a reasonableness determination.

If you would like to read this opinion click here. Chief Justice ROBERTS delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

Beaumont Court of Appeals holds City is not liable for alleged failure to create a police report, failure to investigate, or failure to prosecute as asserted by Plaintiff

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Caryn Suzann Cain v. City of Conroe, Tex., et al., 09-19-00246-CV, 2020 WL 6929401 (Tex. App.—Beaumont Nov. 25, 2020)

 This is an interlocutory appeal from the trial court’s order granting the City’s motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment.

Plaintiff, Caryn Suzann Cain, filed a pro se civil suit against the Conroe Police Department alleging police negligence in the department’s investigation and disposal of her complaints regarding disputes with her neighbors. Cain asserted the City failed to render police assistance and file an incident report after she was allegedly assaulted by her neighbor’s dog, and that the Department showed bias towards her neighbor, a state correctional officer, who allegedly continued to harass her over a period of eighteen months.  Cain later § 1983 claims against the City.  In response, the City defendants filed a motion to dismiss under §101.106(e) of the Civil Practice and Remedies Code, a plea to the jurisdiction, and traditional motion for summary judgment.  The trial court granted all motions.

The officers were entitled to dismissal of the tort claims under §101.106(e).  Next, under the TTCA if an injury does not arise from a city employee’s operation or use of a motor-driven vehicle, then the city is not liable for its employee’s negligence. “Arises from” requires a plaintiff to show a direct connection between the injury and the employee’s vehicle operation or use.  Simply using a patrol vehicle’s radio is not actionable. Similarly, the court noted mere involvement of tangible personal property in an injury does not, by itself, waive immunity.  The tangible personal property must do more than create the condition that makes the injury possible. Here, no tangible personal property was negligently used to result in any of the alleged injuries. Next, to allege a valid constitutional rights violation under § 1983 against the City, Cain was required to assert a deprivation was caused by a policy, custom, or practice of the City. A municipality is not liable under § 1983 for the unconstitutional acts of its non-policymaking employees.  The Court determined Cain did not allege sufficient facts showing an unconstitutional policy or custom was being implemented. Finally, the Due Process Clause does not require the State to protect life, liberty, and property of its citizens against invasion by private actors, and it generally confers no affirmative right to government aid.  Thus, Cain’s allegation that the City failed to protect her against her neighbor did not constitute a due process violation.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Steve McKeithen and Justices Hollis Horton and Leanne Johnson.  Opinion by Chief Justice McKeithen.  Docket page with attorney information can be found here.

 

Beaumont Court of Appeals held Plaintiff failed to overcome emergency responder exception under Texas Tort Claim Act in vehicle accident case

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Texas Dept. of Pub. Safety v. Kendziora, 09-19-00432-CV (Tex.App.—Beaumont, Nov. 5, 2020)

This is an interlocutory appeal from the denial of Texas DPS’s plea to the jurisdiction in a case involving a car accident while a DPS trooper (“Chapman”) was responding to an emergency. The Beaumont Court of Appeals reversed the denial.

Chapman was responding to a call reporting one hundred people fighting at a sports complex. En route, he approached a red light with his lights and siren activated, activated his airhorn, and slowed to a near stop while clearing the intersection. He looked both ways while crossing the intersection and cleared multiple lanes before being struck by Kendziora. Kendziora filed suit under the Texas Tort Claims Act (“TTCA”) for personal injuries sustained from that collision. DPS put forth the emergency exception defense under TTCA, which preserves immunity if the employee was in compliance with applicable law or was not acting recklessly. Chapman testified that he considered the nature of the emergency in deciding to respond immediately and urgently, while still ensuring vehicles at the intersection were stopped before proceeding. Kendziora testified that she did not hear any sirens or see any police lights prior to the collision.

The Court of Appeals held that Kendziora failed to raise a fact issue as to whether Chapman acted recklessly when he entered the intersection. She did not present any evidence showing Chapman failed to slow as necessary before entering the intersection or that he acted recklessly. Kendziora argued that the dashcam video is evidence of the reckless actions, but the video was not tendered or admitted into evidence in the lower court and was not part of the appellate record.

If you would like to read this memorandum opinion click here. Panel consists of Chief Justice McKeithen, Justice Kreger, and Justice Johnson. Opinion by Chief Justice McKeithen.

U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

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U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

Ralph Clay Walsh, Jr. v. Lisa Hodge, et al., 19-10785, 2020 WL 5525397 (5th Cir. Sept. 15, 2020)

This is an appeal from Walsh’s §1983 claim alleging a violation of procedural due process in a disciplinary hearing.

Walsh, a former university professor, was accused of sexual harassment by a student at a conference. The university hired an attorney who investigated the claim and concluded that the student’s claim was substantiated. The dean of the university recommended termination. Walsh appealed and was sent a letter containing the procedure for the appeal. During the appeal, the attorney who investigated the claim was questioned but not the student. Walsh was terminated, then filed a §1983 claim against the university and various professors and school administrators asserting he was not allowed to confront his accuser. The individual defendants moved for summary judgment on grounds of qualified immunity which was partially granted and partially denied. Defendants appeal the denial.

The 5th Circuit rested their analysis on a two-pronged test: 1) whether Walsh suffered a procedural due process violation as a matter of law, then 2) whether Defendants’ conduct was objectively unreasonable in light of clearly established law at the time of the incident. The 5th Circuit found the first prong to be satisfied as, even when balancing private and public interests, Walsh had a right to have his accuser present to answer questions and raise the issue of credibility. Regardless, the 5th Circuit did not find that there was clearly established law for procedures necessary to protect a professor’s interest in avoiding career destruction after being accused of sexual harassment.   The 5th Circuit goes on to acknowledge that its sister circuits, as well as federal regulatory agencies, are split on the matter. Therefore, “[b]ecause of…conflicting, inconclusive language in past cases, [the 5th Circuit] cannot find that Defendants ‘knowingly violate[d] the law.’” The 5th Circuit ultimately reversed the district court’s denial of the qualified immunity argument in the summary judgment motion and rendered judgment in favor of the individual Defendants.

If you would like to read this opinion, click here. Panel consists of Justices Davis, Jones, and Engelhardt.

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

If you would like to read this opinion click here.   Panel consists of Justices Goodman, Landau, and Hightower.  Opinion by Justice Richard Hightower.

U.S. 5th Circuit holds no deliberate indifference alleged requiring jailers to protect inmate from attack by another inmate

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Torres v. Livingston, 19-40470, 2020 WL 4933063 (5th  Cir. Aug. 24, 2020).

This is an appeal from a dismissal of an inmate’s § 1983 claims which the U.S. 5th Circuit affirmed.

Christopher Torres worked as an inmate janitor in an administrative segregation unit.  While working, another innate requested an officer to pick up photos that were on the floor just outside his cell. The officer, as a matter of routine in fulfilling inmate requests, directed Torres to go ahead and pick up the photos. While bending over to pick up the photos, the inmate stabbed Torres in his neck. Torres sued a correctional officer and several staff members and administrators per 42 U.S.C. § 1983 for allegedly failing to protect him from an inmate attack.

To hold an officer liable under the Eighth Amendment it mush be shown that the officer acted with deliberate indifference to the inmate’s health or safety. The U.S. Fifth Circuit found that Torres did not offer any facts suggesting the jailor knew of and disregarded a substantial risk to his health and safety. As a result, Torres failed to state § 1983 claim. Additionally, Torres’s failure to allege facts amounting to a constitutional violation for a failure to train or supervise.

If you would like to read this opinion click here. The panel consists of Justices Smith, Willett and Duncan.  Opinion by Justice Smith.

San Antonio Court of Appeals holds a fact question exists as to whether a deputy’s U-turn caused following traffic to skid into oncoming traffic

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Webb County v. Juan C. Garcia, 04-19-00891-CV (Tex. App. – San Antonio, July 22, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (“TTCA”) where the San Antonio Court of Appeals affirmed the denial of the County’s plea to the jurisdiction.

Webb County Sheriff’s Deputy Mauro Lopez witnessed Saldivar pass a vehicle from a no-passing lane on a three-lane highway. Deputy Lopez applied his brakes to make a U-turn prior to initiating his lights and siren. The video from Deputy Lopez’s dash camera shows he slowed from 70 miles per hour to 16 miles per hour in seven seconds. During this time, he began moving into the center turn lane, effectively blocking all traffic behind him. This caused traffic behind Lopez to hit their brakes suddenly, which caused an 18-wheeler truck to jackknife. It skidded into the westbound lane, directly into Saldivar’s path. Saldivar’s truck and the 18-wheeler collided, killing Saldivar and all passengers. The families sued and the County filed a plea to the jurisdiction. The plea was denied and the County appealed.

The County asserted Deputy Lopez did not control the 18-wheeler which caused the accident, so no waiver of immunity exists. The TTCA waives immunity if the injury “arises from the operation or use of a motor-driven vehicle”. The TTCA does not define the term “arises from” but case law states it requires a nexus between the operation or use of the motor-driven vehicle or equipment and cause of the plaintiff’s injuries. The Texas Supreme Court has “described the threshold as something more than actual cause but less than proximate cause.” The necessary causal nexus requires a showing that the use of the vehicle actually caused the injury.  Deputy Lopez testified that a vehicle going far below the speed limit poses a hazard to vehicles traveling behind it. The police crash report notes witnesses stated it was Deputy Lopez’s drastic reduction in speed which caused following traffic to have to take evasive measures. Taking the pleadings in a light most favorable to the non-movants, the court held  the evidence in this case raises a fact question about whether Deputy Lopez’s operation or use of his vehicle was “directly, causally linked to the accident and the damages sustained.” The court next considered whether Deputy Lopez possessed official immunity. Such immunity is governed by the needs/risk analysis. The court agreed Deputy Lopez was performing a discretionary duty in choosing to pursue the perceived traffic violation. However, Webb County did not conclusively establish that a reasonably prudent officer could have determined Deputy Lopez’s actions were justified under these circumstances. There was no detailed analysis of the need for immediate apprehension vs the risks related to the U-turn at that point and in that manner. Finally, as to the County’s assertion under the emergency responder exception, routine traffic stops were not listed as emergency calls in the department manual, Deputy Lopez did not activate his lights or siren, he did not call dispatch to notify the situation was an emergency, and nothing indicates there was an immediate need to pull in front of oncoming traffic as opposed to waiting for traffic to be more cleared or by activating lights/sirens. The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Marion, Justice Martinez, Justice Watkins.  Opinion by Justice Watkins.

Possible suspension of officer’s license does not toll the statute of limitations for Sec. 1983 claims against an officer

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Haule  v.  Travis County and Spinner, No.  03-19-00250-CV (Tex.App.–Austin May 28, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

This case involves claims under §1983 and state law claims based on Haule’s attempt to report a crime to Travis County Officer Michael Spinner.  The court of appeals held that the statute of limitations had run against all of Haule’s claims.

Haule attempted to file a criminal complaint against the Caldwell County District Attorney based on a previous prosecution.  She called the Travis County Sheriff’s Office, claiming that the District Attorney had told her that he would put her in jail if she complained to the State Bar of Texas.  The Sheriff’s Office sent Officer Spinner to take her statement.  In his report, Officer Spinner referred to Haule as potentially mentally ill and intoxicated.  After Haule complained about Officer Spinner’s report, the Sheriff’s Office responded to Haule’s complaint in a letter stating that: (1) her claim was not sustained; (2) that the Travis County Sheriff’s Office did not have authority over the Caldwell County District Attorney; and (3) that she should contact the Caldwell County Sheriff’s Office or the Attorney General’s Office.  Seven years after receiving the letter from Travis County, Haule filed suit in Travis County District Court, alleging Section 1983 claims and general state law claims that appeared to include negligence, fraud, malicious prosecution, and defamation against Travis County and Officer Spinner.  The County filed a motion for summary judgment that the claims were frivolous, and the district court granted the motion.  Haule appealed.

The court of appeals reviewed all of the claims under each statute of limitations to determine whether any of the claims, even if substantiated, remained viable.  The court first discussed Haule’s briefing and noted that it was unclear that Haule’s claims were able to be pursued.  However, based on the information provided, the court reviewed the statute of limitations for §1983 claims, fraud, defamation, and others and determined that all of the statute of limitations had passed.  Haule argued that the statute limitations should be tolled because: (1) the report stating that she was mentally ill and/or intoxicated was “ongoing” and (2) Officer Spinner’s license was suspended during the period in question.   The court stated that the report was not ongoing and that even if Officer Spinner’s license had been suspended, it would not toll the statute of limitations. The district court’s judgment was affirmed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Rose, Justices Baker and Triana.

U.S. 5th Circuit adopts 1st Amendment unbridled discretion/prior-restraint standards in federal suit against Texas Governor

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Freedom from Religion Foundation, Inc. v. Greg Abbott Governor of the State of Texas, 18-50610, (5th Cir – April 3, 2020)

This is a First Amendment case regarding immunity and viewpoint discrimination where the U.S. 5th Circuit adopted a specific prior restraint test.

The Texas State Preservation Board (“the Board”) is a state agency that preserves and maintains the Texas Capitol and its grounds. Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. Such displays must have a public purpose. FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol. FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit, which was also approved. FFRF’s depiction was displayed, but the day before its final display date, Governor Abbott sent a letter to then Executive Director of the Board, Mr. Welch, urging him to “remove this display from the Capitol immediately.” The letter explained that the exhibit was inappropriate for display because “[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare,” “the exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus[.]”  This letter resulted in the removal of the FFRF display prior to its scheduled removal date. When FFRF submitted another application for the same display, it was told the display did not promote a public purpose. FFRF sued for declaratory and injunctive relief.  The district court granted FFRF summary judgment on certain grounds and denied it on others.  The parties appealed/cross-appealed.

Governor Abbott and Mr. Welsh argue that the district court’s declaratory judgment is retrospective and therefore barred by sovereign immunity (including 11th  Amendment immunity). They further asserted no prospective relief was proper because the dispute is not ongoing. A litigant may sue a state official in his official capacity in federal court as long as the lawsuit seeks prospective relief to redress an ongoing violation of federal law. FFRF alleged constitutional violations against Abbott and Welsh in their official capacities. Further, they established an ongoing violation and Abbott and Welsh did not technically appeal the viewpoint discrimination finding. Speech cannot be prohibited on the basis of offensiveness, and the defendants have only presented arguments through counsel that their behavior will change.  The district court had jurisdiction to entertain the suit, and the controversy is ongoing.  The district court did not, however, have jurisdiction to award FFRF purely retrospective relief.  The declaration that FFRF’s rights were violated in the past is prohibited to the extent it is an individual claim. The U.S. 5th Circuit remanded for the trial court to determine proper prospective relief.  Next, the court analyzed the unbridled discretion arguments regarding public purpose determinations (i.e. prior restraint arguments). Unbridled discretion runs afoul of the First Amendment because it risks self-censorship and creates proof problems in as-applied challenges. Even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment. However, in situations such as where space is limited, certain discretion should be afforded. Because discretionary access is a defining characteristic of a limited public forum, the government should be afforded more discretion to use prior restraints on speech in limited public forums than in traditional public forums. The possibility (including imposed checks and balances) of viewpoint discrimination is key to deciding unbridled discretion claims in the context of limited or nonpublic forums. A reasonableness test would be insufficient, by itself.  In a matter of first impression for the 5th Circuit, the court held that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, the issue was remanded.

If you would like to read this opinion click here. Panel consists of Davis, Graves, and Higginson, Circuit Judges. Vacated and Remanded in part; Reversed and Remanded in part. Memorandum Opinion by Higginson, Circuit Judge. Attorney for Appellant is Kyle Douglas Hawkins, of Austin, Texas. Attorney for Appellee is Samuel Troxell Grover, of Madison, Wisconsin.

 

14th Court of Appeals reverses jury award in excessive force case against County, but upholds portion against deputy

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Harris County, et al, v Coats, et.al, 14-17-00732-CV, (Tex. App. — Houston [14th Dist.], February 6, 2020)

This is a § 1983/wrongful death case where the 14th Court of Appeals reversed in part a jury award against the County and its deputy. [Comment: this is a 49-page opinion].

Jamail and his girlfriend were using cocaine when Jamail felt ill.  Jamail exited through a window and called 9-1-1 from a public phone. However, when the EMTs arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Saints to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time.  However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity.  A jury trial was held against the County and Deputy Vailes. The jury found for Jamail’s family. The County and Deputy Vailes appealed.

The court first determined no policy, custom, or practice of the County existed to establish § 1983 liability on the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constable’s go, the fact a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.  As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient Vailes’ actions caused Jamail’s death.  Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death.  The fact Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.

If you would like to read this opinion click here. Panel consists of Justice Christopher Justice Wise, and Justice Jewel. Opinion by Justice Jewel.

Supervisor entitled to qualified immunity as to one suspended employees 1st Amendment claim but not the other

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Benfield v. Magee, 18-30932, (U.S. 5th Cir. December 17, 2019)

This is a First Amendment in employment action where the U.S. 5th Circuit reversed the denial of the individual supervisor’s qualified immunity defense and dismissed the claims as to one employee, but not the other.

Warren and Benfield worked in Louisiana as paramedics for the Desoto Parish Emergency Medical Services. Louisiana paramedics must complete annual recertification training, which required the approval of the medical director. Warren asserts he suggested changes to the procedures manual which would prevent Magee, their supervisor, from electronically signing in lieu of the medical director. Warren asserts afterward Magee harassed him (including criticizing Warren’s religious beliefs, denying him a promotion, accusing him of inappropriate relationships.)  When a new co-medical director inquired into the Plaintiff’s recertification, they blamed Magee for telling them to electronically falsify the records. Magee suspended Warren and Benfield for falsification.   Warren and Benfield sued Magee directly, claiming that he suspended them for exercising their First Amendment free-speech and free-association rights.  The trial court denied Magee’s assertion of qualified immunity and he appealed.

Warren’s letter of changes to the procedure’s manual occurred 19 months prior to his suspension. And while a plaintiff can establish a causal connection with other inferences, Warren’s allegations do virtually nothing to establish a chronology or relationship. He states that this harassment occurred sometime after the June 2015 letter, yet provides no further specificity.  Warran would be unable to overcome the qualified immunity defense without stating with specificity when he was harassed.  As a result, his assertions are insufficient to establish a causal connection and such claims are dismissed. However, Magee made no substantive argument for dismissing Benfield’s free-speech claim, believing Benfield raised only a freedom of association claim. As a result, the denial was proper as to Benfield.

If you would like to read this opinion click here. Panel consists of Justices Stewart, Clement and Ho.  Opinion by Justice Clement. The attorney listed for Magee is Edwin H. Byrd.  The attorney listed for Warren and Benfield is Bryce J. Denny.

Dallas Court of Appeals holds officer entered intersection in good faith – entitled to official immunity

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City of Dallas v. Rosa Rodriguez, 05-19-00045-CV, (Tex. App. – Dallas Texas, August 7, 2019)

In this Texas Tort Claims Act (“TTCA”)/motor vehicle accident/emergency responder case, the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rodriguez was injured when a Dallas police officer disregarded a red light and collided with her.  The officer driving the vehicle provided the accident investigation as well as her own affidavit, noting she was responding to an emergency call regarding a person who was breaking windows and threatening to shoot a woman in her home.

The officer stated she approached the intersection and came to a complete stop before proceeding through the intersection. The officer also stated that “all traffic on the northbound side had stopped and was giving [her] passage.” Rodriguez asserted the officer did not stop, and the PD had a policy requiring officers to come to a complete stop. It was discovered after the accident that the officer’s lights and sirens were not working properly, based on dash cam footage. The video’s GPS “speed” indication shows the officer’s speed at 23 mph just before she appears to come to a complete stop. The speed indicator quickly drops to 9 mph and then to 2  mph after after she stopped; the indicator immediately shows her speed at 3 mph as she slowly entered the intersection. The officer’s affidavit stated the potential danger posed by proceeding through the intersection was far less, considering all factors, than the danger posed to the officers and victims involved in the emergency at issue.  The City filed a plea to the jurisdiction arguing official immunity, which was denied.

The court first noted that Rodriguez’ objections to the officer’s affidavit (i.e., hearsay and best evidence) were not sufficiently specific. The court held that the “stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before” the officer started moving again. The video also indicates “triggers” including lights, siren, and brakes. The officer testified she understood that, in making discretionary decisions during emergency calls, she must weigh the need to respond urgently to the emergency call against the risk involved to the general public when responding to the emergency. She explained her thought process on the record.  The court held that the fact a collision occurred does not equate to a showing that the law was violated and is insufficient to raise a fact issue on recklessness.  An officer’s own affidavit can establish good faith, and an officer’s good faith is not rebutted by evidence that she violated department policy.  The record shows the need/risk analysis performed by the officer. Rodriguez failed to establish a fact issue as to recklessness. As a result, the plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices Bridges, Brown and Nowell. The attorneys listed for Dallas County are Bonnie Snell, Amy I. Messer, James B. Pinson, Jason G. Schuette, and Nicholas Palmer. The attorneys listed for Rosa Rodriguez are Susan B. Smith, Billy McGill Jr., and Briana Crozier.

U.S. 5th Circuit holds deputy entitled to qualified immunity on state-created-danger claims, but not wrongful arrest claims

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Keller v. Fleming, 18-60081(5th Cir. July 23, 2019)

In this §1983 case, the U.S. 5th Circuit reversed the denial of an officer’s qualified immunity defense for a state-created-danger claim but affirmed denial based on unlawful arrest claims.

Gerald Simpson was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness after Simpson had been dropped off at the county line by Sheriff’s Deputy Darrin Fleming.  Simpson was originally stopped while walking down the roadway, but his speech was unintelligible.  The Plaintiffs alleged Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. The submitted evidence establishes Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Fleming drove Simpson in that direction to the point he reached the end of Attala jurisdiction and let Simpson out.  Fleming was not aware Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. The family sued Fleming and the County and Fleming filed a motion for summary judgment arguing qualified immunity.  The motion was granted in part and denied in part. Fleming appealed.

The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause.” A police officer may approach a person for purposes of investigating possible criminal behavior (i.e. Terry stop). The court determined a reasonable person in Simpson’s position would not have felt free to leave. The transport was also not reasonable given the circumstances. The seizure was not for Terry stop purposes and was significantly more intrusive than a brief detention for identification or investigatory purposes.  It also was law previously established which Deputy Fleming should have known. As a result, it was proper to deny qualified immunity for the Fourth Amendment claim.

Next, for Fourteenth Amendment purposes, as a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. An exception exists in other circuits for a “state-created-danger” theory where the entity and plaintiff are in a special relationship. However, a “special relationship” only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order.  The law was not clearly defined at the time to allow Deputy Fleming to know it might apply. The Fifth Circuit has never recognized this “state-created-danger” exception. As a result, the Fourteenth Amendment claims should have been dismissed. Finally, Plaintiffs have not demonstrated a clearly established substantive due process right on the facts they allege.

If you would like to read this opinion click here. Panel consists of Chief Judge Stewar, Judges Willett and Dennis.  Opinion by Justice Dennis.

U.S. Supreme Court holds “clearly establish” prong of qualified immunity defense must not be defined with a high degree of generality

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City of Escondido v Emmons, 17-1660 (U.S. January 7, 2019)

City of Escondido police received a domestic violence 911 call from Maggie Emmons. Officer Jake Houchin responded to the scene and reported Emmons had sustained injuries caused by her husband. The officers arrested her husband. Several weeks later, another domestic violence call was placed, but this time it was called in by the mother of Emmon’s roommate, Douglas (who was not present at the apartment). Officer Houchin again responded. The body cameras revealed that when trying to gain entry, a man in the apartment also told Emmons to back away from the window and not let the officers in. Shortly afterward, a man exited the apartment and tried to move past the officers. Officer Craig stopped the man, took him quickly to the ground and handcuffed him. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. He was arrested for a misdemeanor offense of resisting and delaying a police officer. The man turned out to be Emmons’s father, who sued for wrongful arrest.  The officers filed for qualified immunity, which the trial court granted but the U.S. 9th Circuit reversed.

The U.S. Supreme Court broke apart the 9th Circuit’s analysis and questioned the lack of reasoning within the opinion. The Ninth Circuit’s entire relevant analysis was simply, “The right to be free of excessive force was clearly established at the time of the events in question.”  The Supreme Court held that “with respect to Sergeant Toth, the Ninth Circuit offered no explanation for its decision. The court’s unexplained reinstatement of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Emmons ‘fail[ed] to identify contrary evidence.’”  The 9th Circuit erred, as the Supreme Court has repeatedly told courts the clearly established right must be defined with specificity. Courts may not define clearly established law at a high level of generality. “In this case, the Court of Appeals contravened those settled principles. The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”  The opinion is reversed and remanded for further analysis.

If you would like to read this opinion, click here. Per Curiam opinion.

U.S. Supreme Court holds 1st Amendment retaliatory arrest claim barred because probable cause exists and plaintiff has no objective evidence of retaliatory motive

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Nieves, et al., v Bartlett, 17–1174 (May 28, 2019)

In this First Amendment/retaliatory arrest/§1983 case the U.S. Supreme Court held the presence of probable cause eliminates the First Amendment claims as a matter of law. [Comment: warning this is a 48-page set of opinions, concurrences and dissents].

Bartlett was arrested by police officers Nieves and Weight for disorderly conduct and resisting arrest during a winter sports festival in Alaska. During the event Nieves and Weight were separately speaking with individuals at the festival about various law enforcement aspects when Bartlett approached each and interfered with the questioning of patrons. Due to the fact Bartlett appeared intoxicated, after the second time Bartlett allegedly interfered, he was arrested. It was also during this second instance that Bartlett allegedly aggressively attempted to physically intimidate one officer by stepping into his personal space and yelling at him. Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The U.S. Court of Appeals for the Ninth Circuit reversed and the officers appealed.

As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.  It is not enough to show that an official acted with a retaliatory motive. The motive must cause the injury under a “but-for” analysis.  The analysis is complex as it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff ’s potentially criminal conduct.  Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.  After a highly detailed analysis of common-law and current precedent, the Court concluded the proper test was an objective standard test, which is resolved if the officers had probable cause to make an arrest.  The subjective intent of the officers is therefore taken out of the analysis.  However, the Court adopted an exception for “minor” offenses which allows a plaintiff to present objective evidence others similarly situation for these minor offenses are not arrested.  Because there was probable cause to arrest Bartlett and he presented no objective evidence others in his situation were not, his retaliatory arrest claim fails as a matter of law.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II–D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.