Bostic v. Rodriguez
| Decision Date | 30 September 2009 |
| Docket Number | No. 7:08-CV-51-D.,7:08-CV-51-D. |
| Citation | 667 F.Supp.2d 591 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Walter BOSTIC, and Meredith M. Bostic, Plaintiffs, v. Gilbert RODRIGUEZ, and Colleen Ryan, Defendants. |
E.C. Thompson, III, Thompson & Thompson, PC, Waraw, NC, Charles K. McCotter, Jr., McCotter, Ashton & Smith, PA, New Bern, NC, for Plaintiffs.
John P. Scherer, II, N.C. Dept. of Justice, Raleigh, NC, for Defendants.
On February 20, 2008, Walter Bostic and Meredith M. Bostic (collectively "plaintiffs" or "the Bostics") filed suit against Gilbert Rodriguez and Colleen Ryan (collectively "defendants") in their individual capacities in Onslow County Superior Court [D.E. 1]. On April 1, 2008, defendants removed the case to this court [D.E. 1]. After the close of discovery, defendants moved for summary judgment [D.E. 17]. Plaintiffs responded in opposition to the motion for summary judgment [D.E. 22]. On March 5, 2009, defendants filed a motion to strike portions of plaintiffs' declaration and other hearsay in plaintiffs' response [D.E. 25]. Plaintiffs responded in opposition to the motion to strike [D.E. 27]. On September 18, 2009, the court heard oral argument. As explained below, the court grants in part and denies in part defendants' motion to strike and grants defendants' motion for summary judgment.
Walter Bostic ("Mr. Bostic") and Meredith M. Bostic ("Mrs. Bostic") met at and graduated from East Carolina University ("ECU") in Greenville, North Carolina. Mr. Bostic Decl. ¶ 3; Mrs. Bostic Decl. ¶ 1. They are married and both are 63 years old. Mr. Bostic Dep. 7:17-18; Mrs. Bostic Dep. 7:8-17.
Gilbert Rodriguez ("Rodriguez") and Colleen Ryan ("Ryan") are police officers with the ECU Police Department. Rodriguez Decl. ¶ 1; Ryan Decl. ¶ 1. Rodriguez is a master patrol officer and has been a sworn officer for fourteen years. Rodriguez Dep. 6:8-14; Rodriguez Decl. ¶ 1. At the time of the incident involving plaintiffs, Ryan had been a sworn officer for approximately four months. Ryan Dep. 5:18-25; Ryan Decl. ¶ 1. Because of her short tenure, Chuck Wills, a field training officer, accompanied Ryan in her patrol car. Ryan Dep. 9:7-11; Ryan Decl. ¶ 2; Wills Dep. 6:3, 10:11; Wills Decl. ¶¶ 2-3; Whitehurst Decl. ¶ 3. At the time of the incident, Wills had been a sworn officer for seven years, all with the ECU Police Department. Wills Dep. 6:16-25; Wills Decl. ¶ 1. As a field training officer, Wills was to observe Ryan and review ECU Police Department policies and procedures with her. Wills Dep. 7:21-23; Wills Decl. ¶ 2.
On the morning of September 9, 2007, the Bostics were driving in a silver BMW convertible (with the top down) around the ECU campus. Mr. Bostic Dep. 11:1-18; Mr. Bostic Decl. ¶ 4; Mrs. Bostic Decl. ¶ 1; Ryan Dep. 12:2-19; Ryan Decl. ¶ 3; Rodriguez Dep. 14:7-11; Rodriguez Decl. ¶ 2; Wills Dep. 11:16-25.1 Mr. Bostic was driving the car slowly, and stopping at various locations on campus. Mr. Bostic Decl. ¶ 5; Mrs. Bostic Decl. ¶¶ 1, 3; Rodriguez Dep. 24:5-8; Wills Dep. 14:6-16. Mr. Bostic was not wearing a seat belt while he was driving. Mrs. Bostic Dep. 10:25-11:2; Mrs. Bostic Decl. ¶ 4; Ryan Dep. 12:20-22; Ryan Decl. ¶ 3; Rodriguez Dep. 15:2-3; Rodriguez Decl. ¶ 2. Ryan and Wills stopped plaintiffs' car. Mrs. Bostic Dep. 11:3-17; Mrs. Bostic Decl. ¶ 2; Mr. Bostic Decl. ¶ 6; Ryan Dep. 14:7-15:3; Ryan Decl. ¶ 3; Wills Dep. 13:19-14:5; Wills Decl. ¶ 3.
Because the incident occurred on the ECU campus, a camera attached to one of the nearby dormitories captured the traffic stop and most of what ensued. See Rodriguez Decl. ¶ 11; Ryan Decl. ¶ 14; Wills Decl. ¶ 11; Whitehurst Dep. 38:10-13.2 At 11:12:57 a.m., the Bostics' BMW convertible passed through the video frame followed by a squad car with its lights flashing, which then came to a complete stop. At 11:13:29, Ryan and Wills stepped out of the squad car and walked towards the convertible. Off-camera, Ryan informed Mr. Bostic that she had stopped him because he was not wearing his seat belt. Ryan Dep. 17:17-19; Ryan Decl. ¶ 4. Ryan then asked Mr. Bostic for his license and registration, which he provided. Mrs. Bostic Dep. 11:11:19-20; Mrs. Bostic Decl ¶ 4; Mr. Bostic Dep. 17:7-8; Mr. Bostic Decl. ¶ 6; Ryan Dep. 17:20-25; Ryan Decl. ¶ 4. During this encounter, Wills stood behind plaintiffs' car. Wills Dep. 14:20-15:4; Wills Decl. ¶ 4.
At 11:14:25, Ryan and Wills returned to their squad car to check Mr. Bostic's background. Mr. Bostic Decl. ¶ 7; Ryan Decl. ¶ 4; Wills Decl. ¶ 4. At 11:16:08, while Ryan and Wills were checking Mr. Bostic's license and registration, Rodriguez arrived on the scene in his patrol car. Rodriguez Dep. 24:17-19; Rodriguez Decl. ¶ 2; Ryan Decl. ¶ 5; Wills Decl. ¶ 4. Ryan and Wills did not call for backup. Rather, Rodriguez arrived to comply with the "normal policy" to have two squad cars on the scene of any traffic stop. Rodriguez Decl. ¶ 2; see Rodriguez Dep. 27:3-5; Ryan Decl. ¶ 5; Wills Dep. 18:10-11; Wills Decl. ¶ 4; Whitehurst Dep. 18:22-19:21. Rodriguez stepped out of his car, approached Ryan and Wills, and told them that he had observed Mr. Bostic driving without a seat belt a few minutes earlier. Rodriguez Dep. 25:15-21; Rodriguez Decl. ¶ 2. When Rodriguez arrived, Ryan was already in the process of writing Mr. Bostic a citation for the seat belt violation. Rodriguez Dep. 26:2-5; Ryan Decl. ¶ 5; Wills Dep. 17:22-25.
At 11:21:22 (about nine minutes after the initial traffic stop), Ryan and Wills exited the first squad car and walked towards the convertible. Mrs. Bostic Dep. 14:13-15; Rodriguez Decl. ¶ 3; Ryan Decl. ¶ 6; Wills Decl. ¶ 5. At 11:22:00, Rodriguez joined his two fellow officers. Rodriguez stood behind the passenger door of plaintiffs' car, and Wills stood behind the car. Rodriguez Dep. 41:17-18; Rodriguez Decl. ¶ 3; Wills Dep. 19:9-12; Wills Decl. ¶ 5. Off camera, Ryan informed Mr. Bostic that she was citing him for "not wearing his seat belt," a violation of N.C. Gen.Stat. § 20-135.2A. Ryan Decl. ¶ 4; Mrs. Bostic Decl. ¶ 5; Mr. Bostic Dep. 19:2-4; Mr. Bostic Decl. ¶ 7.
Mr. Bostic then asked for defendants' names and badge numbers and attempted to write them down. Mrs. Bostic Dep. 17:16-21; Mrs. Bostic Decl. ¶¶ 5-6; Mr. Bostic Dep. 19:5-7, 19:25-20:1, 20:20-22, 24:3-13; Mr. Bostic Decl. ¶¶ 9-11. According to the Bostics, Ryan did not provide her name and Rodriguez refused to spell his name. Mrs. Bostic Dep. 17:16-21; Mrs. Bostic Decl. ¶¶ 5-6; Mr. Bostic Dep. 19:5-7, 19:25-20:1, 20:20-22, 24:3-13; Mr. Bostic Decl. ¶¶ 9-11. According to Mr. Bostic, he asked defendants repeatedly for their names and badge numbers because he was unable to understand them. Mr. Bostic Dep. 24:3-7; Mr. Bostic Decl. ¶¶ 11, 47. Defendants attempted to explain to Mr. Bostic that they could not provide him with their badge numbers because the ECU Police Department did not issue badge numbers. Ryan Dep. 22:17-22, 46:14-25; Ryan Decl. ¶ 7; Rodriguez Dep. 42:19-20; Rodriguez Decl. ¶ 6; Wills Decl. ¶ 6. Rodriguez then told Mr. Bostic his name, but Rodriguez did not spell it for Mr. Bostic because Mrs. Bostic had already done so. Rodriguez Dep. 47:24, 48:3-9; Rodriguez Decl. ¶ 5. Mr. Bostic (who was seated in his car) also asked Ryan to step forward so he could see her badge, but she refused. Mr. Bostic Decl. ¶ 9. Ryan was standing to the rear of Mr. Bostic's door to ensure her safety. Ryan Dep. 21:14-22:11.
In accordance with department policy, Ryan attempted to explain the citation to Mr. Bostic. Specifically, she tried to explain the court date and time, whether attendance in court was mandatory or optional, whether Mr. Bostic could enter a plea and/or pay a fine by mail, and other similar information. See Ryan Decl. ¶ 6. While Ryan attempted to explain the citation to him, Mr. Bostic "did talk louder since [he] ha[s] a hearing condition." Mr. Bostic Decl. ¶ 42; see Mr. Bostic Dep. 81:12-83:19; Ryan Dep. 23:5-15, 24:3-9, 49:21-22; Ryan Decl. ¶ 7; Rodriguez Dep. 41:24-42:16; Rodriguez Decl. ¶¶ 4-6. Mr. Bostic did not tell the officers about his alleged hearing condition. Mr. Bostic Dep. 84:17-85:1. Mr. Bostic also told the officers on the scene that badges could be bought. Mr. Bostic Dep. 25:12-13; see Mrs. Bostic Dep. 17:22-25. As the conversation continued, Mr. Bostic and Ryan each raised their voices. Mr. Bostic Dep. 19:8-19, 21:2-4, 21:10-22, 22:11-13, 23:10-20, 83:18-19; Mr. Bostic Decl. ¶¶ 10, 42; see Mrs. Bostic Dep. 14:20-23, 15:24-16:17; Ryan Dep. 26:22-27:7; Rodriguez Dep. 50:9-22; Wills Decl. ¶ 6. Mr. Bostic never made any verbal threats or used profanity. Mr. Bostic Decl. ¶ 42; Mrs. Bostic Decl. ¶ 8; Ryan Dep. 38:15-25; Ryan Decl. ¶ 13; cf. Rodriguez Decl. ¶ 5. Rodriguez, however, observed Mr. Bostic getting "more aggressive in tone and manner" and "yelling and shaking his hands" and so Rodriguez "attempted to intervene." Rodriguez Decl. ¶ 5; see Ryan Decl. ¶ 8; Rodriguez Dep. 47:5-9. Rodriguez warned Mr. Bostic that he could be arrested if he did not calm down. See Rodriguez Decl. ¶ 6. Mr. Bostic did not hear the warning. See Mr. Bostic Decl. ¶ 45. Wills also attempted to explain to Mr. Bostic that the ECU police officers did not have badge numbers. Wills Decl. ¶ 7; Ryan Decl. ¶ 9; Rodriguez Dep. 49:20-22. When Wills spoke, Mr. Bostic told him, "I'm not talking to you" and promised to get his name later. Mr. Bostic Dep. 25:4-9; Wills Decl. ¶ 7.
The video shows that Ryan and the other officers had been speaking with Mr. Bostic for approximately two minutes. See Ryan Decl. ¶ 7. At that point, Rodriguez walked around to the driver-side of the convertible. Mrs. Bostic Decl. ¶ 7; Mr. Bostic Decl. ¶¶ 15-16; Rodriguez Decl. ¶ 6; Wills Decl. ¶ 7. Although Mr. Bostic apparently accepted the citation while Rodriguez was walking around...
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