Brand v. Casal

• Decision Date: 28 September 2015
• Docket Number: Civil Action No. 1:13–CV–0322–AT.
• Citation: 142 F.Supp.3d 1316
• Parties: Tamara BRAND and Theo Brand, Plaintiffs, v. Kevin CASAL and Teresa Pardinas, Defendants.
• Court: U.S. District Court — Northern District of Georgia

142 F.Supp.3d 1316

Tamara BRAND and Theo Brand, Plaintiffs,
v.
Kevin CASAL and Teresa Pardinas, Defendants.

Civil Action No. 1:13–CV–0322–AT.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Sept. 28, 2015.

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Ralph S. Goldberg, Goldberg & Cuvillier, P.C., Tucker, GA, for Plaintiff.

Jason C. Waymire, Williams, Morris & Waymire, LLC, Buford, GA, Michael Van Stephens, II, Scott James Fuller, Gwinnett County Law Department, Lawrenceville, GA, for Defendant.

ORDER

AMY TOTENBERG, District Judge.

Shortly before midnight on February 7, 2011, Deputies Kevin Casal and Teresa Pardinas went to the residence of Mrs. Tamara Brand and Mr. Theotis Brand (the "Brands") to execute an arrest warrant for the Brands' son, Wesley Brand.¹ Mrs. Brand and Deputy Casal got into a physical altercation, and Mrs. Brand was then tased by Defendant Pardinas. The Brands brought this action seeking damages for Defendants' various violations of the Brands' rights under the United States Constitution, the Georgia Constitution, and Georgia state law. The case is currently before the Court on Plaintiffs' Motion for Partial Summary Judgment [Doc. 29] (the "Motion").²

Plaintiffs seek summary judgment on four Fourth Amendment claims:

1. Deputy Pardinas's entry into Plaintiffs' backyard without a search warrant;

2. Deputy Casal's entry through the front door without a search warrant;

3. Both Deputies' performance of a protective sweep; and

4. Both Deputies' purported failure to cover up Mrs. Brand after ripping her shirt.

I. LEGAL STANDARD

The Court may grant summary judgment only if the record shows "that there

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is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if resolving the factual issue might change the suit's outcome under the governing law. Id. The motion should be granted only if no rational fact finder could return a verdict in favor of the nonmoving party. Id. at 249, 106 S.Ct. 2505.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Where the moving party bears the burden of proof at trial, as here, the moving party must affirmatively demonstrate the absence of a genuine dispute of material fact as to each element of its claim on that legal issue. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). It must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. Id. If the moving party makes such a showing, it is entitled to summary judgment unless the non-moving party comes forward with significant, probative evidence demonstrating the existence of a dispute of fact. Id.

The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505. In deciding this essential question, the court may not weigh conflicting evidence or make credibility determinations. Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir.1993), reh'g denied, 16 F.3d 1233 (11th Cir.1994) (en banc). Defendants' testimony is treated as true for purposes of review of Plaintiffs' pending Motion for Summary Judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (when reviewing the record evidence at the summary judgment stage, "the court must draw all reasonable inferences in favor of the nonmoving party").

II. BACKGROUND FACTS

In the following factual summary, the Court presents the undisputed facts as well as other evidence in the light most favorable to Defendants, the non-movants. See Reeves, 530 U.S. at 150, 120 S.Ct. 2097. This summary does not represent the Court's actual findings of fact. See Rich v. Sec'y, Florida Dep't of Corr., 716 F.3d 525, 530 (11th Cir.2013).

A. Facts leading up to initial encounter

On November 4, 2010, a Gwinnett County Magistrate Judge issued a warrant for Wesley Brand's arrest for the crime of theft by taking of a motor vehicle, a felony. (Deposition of Deputy Kevin Casal Ex. 3, Arrest Warrant, Doc. 47 at 30.) The warrant was sworn out by Gwinnett County Police Department, which is not a party to this case. (Casal Dep. at 21:2–3.) Defendant Deputy Kevin Casal, of the Gwinnett County Sheriff's Department, was later tasked with serving that warrant. (Id. at 20:17–21:8.)

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According to the arrest warrant, Wesley Brand was a 27–year–old white male. (Id. at 17; Doc. 47 at 30.) The warrant did not give Wesley's address, (id. ), so Deputy Casal investigated and found an address for him on a Gwinnett County Jail Booking Sheet ("Booking Sheet") from less than one month before the warrant had been sworn out. (Doc. 47 at 31.) Once Deputy Casal found that address, he did no further investigation as to the location of Wesley Brand's residence. (Id. at 20.) The Booking Sheet listed 4179 Valley Brook Road, Snellville, GA as Wesley's address.

At approximately 11:00 PM on Monday, February 7, 2011, Deputy Casal and his partner, Deputy Teresa Pardinas, arrived at 4179 Valley Brook Road to serve the warrant. (Casal Dep. at 51:12–13; Casal Incident Report.³ ) At the time they arrived, Deputy Casal did not "know" that Wesley lived there. (Casal Dep. at 19:7–10.) Rather, Deputy Casal considered it a "third-party warrant." (Id. at 21:22–24.)

Before service was attempted, Deputy Pardinas went around to the back of the house "to prevent escape of the warrant suspect," (Declaration of Teresa Pardinas ¶ 6, Doc. 44–2), while Deputy Casal stayed at the front to see if Wesley could be located inside the house. (Casal Incident Report.) There was a car in the driveway, so Deputy Casal called his dispatcher and had her run the license plate number. (Dispatcher Audio Tape⁴ at 1:30.) The license plate returned to Theotis Brand. (Dispatcher Audio Tape at 2:30.)

At the front door, Deputy Casal encountered Jayne Velazco, who had gone out onto the front porch to smoke a cigarette. (Casal Incident Report; Deposition of Ms. Jayne Velazco at 16:23–17:17, Doc. 49.) The front porch, where much of the action in this case took place, is shown in the photographs below:

?

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(Declaration of Teresa Pardinas Ex. A at 5, Doc. 44–2 at 9 (left photograph); Deposition of Tamara Brand Ex. 2 at 10, Doc. 50–1 at 13 (right photograph).)

Deputy Casal explained who he was and said he was looking for Wesley. Ms. Velazco did not tell Deputy Casal that Wesley was not in the house. (Velazco Dep. at 19:24.) Resolving all factual disputes and drawing all inferences in Defendants' favor, Ms. Velazco responded, "Well, I would like to go in and get his parents, because he [is] a minor[.]" (Trial Transcript, Doc. 75–4 at 7.)⁵ She then went inside and shut the door.

Moments later, Mr. and Mrs. Brand came to the door. (Casal Incident Report.) Deputy Casal identified himself and explained why he was there, and then asked where Wesley was. (Id. ). According to Deputy Casal, Mrs. Brand said she "did not know" where her son was, but that she "was expecting him home" the next day. (Id.; Casal Dep. at 23:24–25.)⁶

B. Deputy Pardinas sees Wesley and the initial scuffle at the front door

While Casal was talking to the Brands and showing them the arrest warrant,

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Deputy Pardinas announced over the radio that she had a positive identification on the wanted subject in the back room. (Casal Incident Report; Dispatcher Audio Tape at 3:12 ("Are you aware there is another adult that possibly matches our description in the house?").) Deputy Casal did not respond. Deputy Pardinas radioed him again and asked if he copied. (Dispatcher Audio at 3:20.) Deputy Pardinas testified, "He didn't say anything [in response to that second call], so my red flag goes straight up, and I know something is wrong." (Deposition of Teresa Pardinas at 42:5–24, Doc. 48 (affirming testimony in prior criminal case).)

The Dispatcher Audio Tape makes clear that Deputy Casal then radioed for Deputy Pardinas to come to where he was, and he also called for the dispatcher to "start additional units to this location." (Dispatcher Audio Tape at 3:23.) Deputy Casal's written Incident Report explains what happened next from his perspective. Right after he got the call that a suspect...