588 F.3d 838 (5th Cir. 2009), 08-10258, Peterson v. City of Fort Worth, Texas

Docket Nº:08-10258.
Citation:588 F.3d 838
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:Kevin Scott PETERSON, Plaintiff-Appellant, v. CITY OF FORT WORTH, TEXAS, Defendant-Appellee.
Attorney:Susan E. Hutchison (argued), S. Rafe Foreman (argued), Foreman Lewis & Hutchison, Grapevine, TX, for Peterson. Laetitia Coleman Brown (argued), James Alexander Riddell, Fort Worth, TX, for Defendant-Appellee.
Judge Panel:Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, [*] District Judge. MONTALVO, District Judge, concurring in part and dissenting in part:
Case Date:November 17, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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588 F.3d 838 (5th Cir. 2009)

Kevin Scott PETERSON, Plaintiff-Appellant,

v.

CITY OF FORT WORTH, TEXAS, Defendant-Appellee.

No. 08-10258.

United States Court of Appeals, Fifth Circuit.

November 17, 2009

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Susan E. Hutchison (argued), S. Rafe Foreman (argued), Foreman Lewis & Hutchison, Grapevine, TX, for Peterson.

Laetitia Coleman Brown (argued), James Alexander Riddell, Fort Worth, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, [*] District Judge.

E. GRADY JOLLY, Circuit Judge:

This case, brought as a § 1983 action, presents the question whether the City of Fort Worth incurs municipal liability under Monell v. Dep't of Social Servs. for the alleged excessive force of two of its police officers. See 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Kevin Peterson, who has alleged that he was seriously injured by Fort Worth police officers during the course of an arrest, has not sued the officers individually. Instead, he filed this action against the City of Fort Worth, alleging that officers violated his Fourth Amendment rights by unlawfully detaining him and using excessive force to restrain him. The City counters that the detention and force were reasonable under the Fourth Amendment, and that, in any event, it is not liable because Peterson cannot show that a policy, practice, or custom of the City was the moving force behind the violation. The district court granted summary judgment for the City, finding neither a violation nor municipal liability. We agree that the evidence does not support a claim of unlawful detention, but conclude there is sufficient evidence to establish excessive force. In short, if Peterson had sued the officers, he would have had a colorable claim. Nonetheless, he chose not to do so and because the evidence will not support municipal liability for the individual misconduct of the officers, summary judgment was proper and we affirm.

I.

We begin with a brief summary of the facts, stating them most favorably to Peterson.

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On the night of August 14, 2005, Peterson and his wife Jodi joined some friends for a birthday party at Riscky's Bar-B-Que in Fort Worth's historic " Stockyards" district. They parked their extended-cab pick-up truck in a parking lot near an establishment called Billy Bob's Texas, the self-proclaimed world's largest honky-tonk. They had dinner at Riscky's Bar-B-Que and at about 10:00 p.m. walked over to a dance club, The Cantina Cadillac. There Peterson had six to eight beers; Jodi had three or four. They stayed until the club closed at 2:00 a.m. Because they were intoxicated, they decided not to drive home but to instead sleep in their truck. Peterson crawled into the back, and Jodi crawled into the front.

A Stockyards security guard later observed two persons sleeping in a truck near Billy Bob's Texas and called the Fort Worth Police Department. Officers Samantha Horner and Roger Ballard arrived at the scene at about 5:00 a.m. and there they found the Petersons sleeping.

Officer Horner tried to wake Peterson up. According to Officer Horner, she opened the unlocked rear door and shook Peterson's leg, but he did not respond. She then tapped her baton on Peterson's sternum; he kicked at her and told her to leave him alone. He began to doze, and she reached into the cab. He swatted at her, and she told him that she was a police officer and that he needed to get out of the truck. When he began to doze again, she grabbed his arm. Peterson then hit her on the forearm. Officer Horner alerted Officer Ballard that Peterson had hit her, and asked for his assistance in getting Peterson out of the truck.

Peterson testified that at this point he woke up. He recalled:

The first thing I remember upon waking up was I was being drug out of the truck by my clothes. I was laying on my back. I actually hit the ground. The door was opened, and they drug me out. I was sliding on my back on the ground; and I had two police officers on me wrestling me to the ground .... And then they rolled me over and put my hands behind my back and put cuffs on me.

Peterson stated that after he was handcuffed the officers pulled him up by the cuffs' chain:

They just jerked me up off the ground and ... spun me around [and] slammed me up against the bed of the truck .... [T]here wasn't any struggle with me ....

And then I noticed hey, these are cops .... I didn't say anything at that point.

According to Peterson, Officer Ballard was cursing at him when he delivered a hard knee strike to Peterson's thigh:

The male officer was screaming in my ear. He was on my left, and he was saying you motherfucker. And he reared back and kneed me in the thigh with his knee .... [W]hen he did it, I cringed. I go ugh, ... and I was ... immediately enraged because it was totally unnecessary for him to beat on me when I was in cuffs.1

Meanwhile, Jodi identified Peterson as her husband. At Officer Horner's instruction, Jodi remained seated in the cab.

Officer Ballard collected Peterson's billfold and license. After a background

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check produced no record, Officer Ballard uncuffed and released Peterson. Peterson stated that the whole time his leg was pounding.

The Petersons got back into their truck and waited until about 7:00 a.m. to drive home. When they got there, Peterson undressed and discovered that his leg needed medical treatment. At the hospital, doctors diagnosed him with a ruptured femoral artery. The injury required two surgeries and a hospital stay that lasted almost two weeks.

Peterson filed this § 1983 action against only the City of Fort Worth, choosing not to sue Officers Horner and Ballard, whom he alleged violated his Fourth Amendment rights by unlawfully detaining him and by using excessive force, specifically the knee strike, to restrain him. The district court concluded that the detention was lawful and that the force was not excessive under the circumstances. The district court also concluded that, even if the officers had violated Peterson's rights, the City was not liable because Peterson did not show that a policy, practice, or custom of the City was the moving force behind the officers' conduct. The district court entered summary judgment for the City, and Peterson appeals. For reasons we explain below, we find sufficient evidence to establish his excessive force claim. Nevertheless, because we conclude that the record evidence will not support municipal liability for the alleged misconduct of the individual officers, we affirm judgment for the City.

II.

We review the district court's grant of summary judgment de novo, applying the same legal standards as the district court. United States v. Corpus, 491 F.3d 205, 209 (5th Cir.2007). Summary judgment is appropriate only " if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In determining whether a genuine issue as to any material fact exists, we must view the evidence in the light most favorable to the nonmoving party. Corpus, 491 F.3d at 209. The nonmoving party " must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim." Johnson v. Deep East Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 308 (5th Cir.2004). The identified evidence " must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial." Id.

We address the threshold issue of whether officers violated Peterson's Fourth Amendment rights before we address the issue of municipal liability.

III.

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. " The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." See, e.g., Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). The touchstone of the Fourth Amendment is thus reasonableness. Id. (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). We measure reasonableness " in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

Peterson alleges that officers violated his Fourth Amendment rights by

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unlawfully detaining him and using excessive force to restrain him. Both unlawful detention and excessive force implicate the Fourth Amendment's proscription against unreasonable seizures. See Terry v. Ohio, 392 U.S. 1, 16 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (" [W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘ seized’ that person.").

A.

We first address the alleged unlawful detention.

Peterson argues the officers had no lawful justification for entering his truck and detaining him because they had no reasonable suspicion to believe he had committed a crime. He contends the officers acted on the mere " neutral facts" that the Petersons were parked near drinking establishments and were asleep in their vehicle. Peterson argues that those neutral facts did not support reasonable suspicion and, without it, the officers...

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