Garcia v. Montgomery Cnty.

• Decision Date: 05 November 2015
• Docket Number: Civil Action No. TDC-12-3592
• Parties: Mannie Garcia, Plaintiff, v. Montgomery County, Maryland, Officer Christopher Malouf, in his official and individual capacities, Officer Kevin Baxter, in his official and individual capacities, and Chief of Police Thomas Manger, in his official capacity, Defendants.
• Court: U.S. District Court — District of Maryland

145 F.Supp.3d 492

Mannie Garcia, Plaintiff,

v.Montgomery County, Maryland, Officer Christopher Malouf, in his official and individual capacities, Officer Kevin Baxter, in his official and individual capacities, and Chief of Police Thomas Manger, in his official capacity, Defendants.

Civil Action No. TDC-12-3592

United States District Court, D. Maryland.

Signed November 5, 2015

Ronald G. London, Alison B. Schary, Robert Corn Revere, Davis Wright Tremaine LLP, Washington, DC, for Plaintiff.

Patricia Lisehora Kane, Rockville, MD, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

Plaintiff Mannie Garcia, an award-winning photojournalist, alleges that, in June 2011, he was arrested by Montgomery County Police Department officers for disorderly conduct solely because he was video recording them as they effected the arrest of two other people. He was later found not guilty of that offense. Garcia asserts that by arresting him for filming, the officers violated his rights under the First and Fourth Amendments to the Constitution. Garcia also contends that the video card in his camera, which contains the record of the events of that night, was unlawfully seized by one of the officers and never returned. In response to these events, Garcia filed suit against the officers involved in his arrest, the Montgomery County Police Department (“MCPD”), and various other MCPD officials, asserting claims under 42 U.S.C. § 1983

for the alleged First and Fourth Amendment violations relating to his arrest; a First Amendment retaliation claim, based on his belief that various police officers were trying to intimidate him out of pursuing legal action; several other statutory and common law actions; and a 42 U.S.C. § 1983

claim against the MCPD for unconstitutional policies, customs, and practices.

Defendants paint a very different picture of the events leading to Garcia's arrest, asserting that Garcia was arrested not because he was video recording the police, but because, after a police officer approached him to ask benign questions about what he was doing, Garcia began to yell and curse, and continued to do so despite being asked repeatedly to quiet down. Defendants also deny taking Garcia's video card. From their perspective, Garcia's arrest does not raise First Amendment issues about the right to film police officers, but is instead an attempt to recast a routine arrest for disorderly conduct as a case of constitutional significance.

Presently pending before the Court are Defendants' Motion for Summary Judgment, ECF No. 62, and Garcia's Cross-Motion for Partial Summary Judgment, ECF No. 63. The Court heard oral argument on the motions on September 9, 2015. For the reasons outlined below, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and Garcia's Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Video Recording of Police Activity

At about 7:30 p.m. on the evening of June 16, 2011, Garcia and his wife, Vicky Allen, met a friend for dinner at Woomi, a restaurant in Wheaton, Maryland near Georgia Avenue and Hickerson Drive. Nearby, at about 8:30 p.m., Carlos Grajeda and Lee Williams, members of Montgomery County's Civilian Alcohol Enforcement squad, witnessed a man buying alcohol for a minor. Grajeda and Williams put out a call for police officers to assist them in citing the two individuals involved in the alcohol purchase. Officer Kevin Baxter and Officer Michael Graves, each in his own patrol car, responded to the call.

Soon after Officers Baxter and Graves arrived, between 8:40 and 9:00 p.m., Garcia and Allen left Woomi and headed back to their car, which was parked across the street from the restaurant. As Garcia crossed the street, he noticed the police officers and the alcohol suspects, who were about 100 feet, or a block and a half, away. Garcia saw one of the officers get “a little rough” with one of the men—the officer “sort of ... push[ed] him”—so Garcia took out his camera and began video recording. Cross Mot. Sum. J. Ex. 2 (Garcia Deposition) at 30, ECF No. 63-4; Mot. Sum. J. Ex. 4 (Garcia Deposition) at 27, ECF No. 62-7.¹ Garcia was video recording the scene with his Nikon Coolpix 7000, a camera capable of shooting both still photographs and video.

Garcia caught Grajeda's attention. Grajeda could see that Garcia had something in his hands, but could not identify what it was, and, in Grajeda's estimation, Garcia was “acting erratically.” Mot. Sum. J. Ex. 2 (Grajeda Deposition) at 5, ECF No. 62-5. Garcia's supposed strange behavior “really concerned” Grajeda, in part because they were in a high-crime area. Id. Garcia, for his part, maintains that he was behaving normally. Grajeda pointed Garcia out to Officer Baxter, who had not noticed him because he was in the middle of writing a citation for one of the suspects. When Officer Baxter caught sight of him, Garcia was in a “very dark” section of the street, near an alleyway. Mot. Sum. J. Ex. 1 (Baxter Deposition) at 16, ECF No. 62-4. Garcia appeared to Officer Baxter to be trying to hide, behavior that Officer Baxter thought was “suspicious” Id. at 16-17.

By this point, it was getting dark. Officer Baxter, wanting to get a better view of Garcia, flashed his police cruisers spotlight in Garcia's direction. Once Garcia was illuminated, Officer Baxter could see that he was holding what appeared to be a camera. Officer Baxter kept the spotlight on Garcia for about 10 seconds, while he evaluated whether Garcia posed a threat to the officers or nearby civilians. Officer Baxter determined that Garcia was not doing anything threatening, so he turned off the spotlight and returned to writing the citation. After being spotlighted, Garcia went back across the street, in front of Woomi. According to Grajeda, as Garcia ran across the street he was “belligerent” and was yelling. Mot. Sum. J. Ex. 2 at 10. Outside Woomi, Garcia put his camera down on a newspaper box—hoping for a more stable image—and continued to film.

At that time, Malik and Efigenia Rashid were sitting in a nearby parked car with the windows rolled up. Malik Rashid rolled down his window and politely asked Garcia what he was doing, to which Garcia responded, “keeping [them] honest.” Mot. Sum. J. Ex. 4 at 32-33. By that point, the arrest seemed like a “routine” detention: the two alcohol suspects were seated on the curb, and the officers were no longer in physical contact with them. Id . at 40-43.

Garcia stayed near the newspaper box, outside Woomi, for two to three minutes before he walked up the street towards the officers, stopping when he was directly across from them. Garcia continued to record what was happening, narrating the events into his camera. Officer Graves, however, asserts that Garcia was yelling at both the officers and the Civilian Alcohol Enforcement team, an assertion Garcia denies.

According to Officer Baxter, when Garcia set up across the street from them, he was standing in another dark area, prompting Officer Baxter to again shine his spotlight on Garcia to see what he was doing. Garcia then moved to a third location up the block, about 35 feet away from the officers. As this was happening, Officer Graves began to feel that “something was [not] right.” Mot. Sum. J. Ex. 8 (Graves Deposition) at 14. ECF No. 62-11. Garcia was drawing “all of our attention,” leaving the officers “distracted” from the task of processing the alcohol suspects. Id. at 9. Officer Graves accordingly called for backup.

II. The Arrest of Garcia

In response, Officer Christopher Malouf arrived on the scene. He spoke briefly with Officer Baxter, who informed him that there was “a subject across the street standing in the shadows” who “was possibly filming.” Mot. Sum. 1. Ex. 14 (Malouf Deposition) at 5, ECF No. 62-17. Officer Baxter remarked that he could not see Garcia clearly, so was not sure if he “posed a threat or not,” and that Garcia was “deterring” him from processing the alcohol suspects. Id. Officer Malouf walked in Garcia's direction, but because of the darkness, he could not actually see Garcia until he was about three to four feet away from him. Once he was near Garcia, Officer Malouf tried to ascertain what was going on, asking him, “Can I help you with anything?” and “Is there any way I can assist you?” Id. at 15.

Garcia asserts that when Officer Malouf approached him and asked him what he was doing, he promptly let go of his camera—which he had on a strap around his neck—opened up his hands to show Officer Malouf that he was not holding anything, and stated, in a normal tone of voice, “My name is Mannie Garcia and I'm with the press.” Mot. Sum. J. Ex. 4 at 48, 50. Although Garcia let go of his camera, it was still recording. In response, Officer Malouf promptly declared, “That's it, you're under arrest.” Id. at 50-51.

Officer Malouf, however, tells a very different story. He asserts that Garcia never identified himself as a member of the press. Instead, Garcia said “I have a right to be here” and “you can't tell me to move.” Cross-Mot. Sum. 1. Ex 14 (Trial Transcript) at 55, ECF No. 63-16. Garcia then “became disorderly,” yelling curse words and refusing to answer questions. Mot. Sum. 1. Ex. 14 at 12. At that point, Officer Malouf moved closer to Garcia and warned him that if he did not calm down, he would arrest him for disorderly conduct. Rather than calming down, Garcia continued to yell and curse, at one point gesturing towards Officer Baxter while yelling, “This fucking guy.” Id. at 17-18. After trying to calm Garcia down for several minutes without success, Officer Malouf decided to arrest him for disorderly conduct, noting that everyone in the vicinity was now focused on Garcia.

At some point—whether before Officer Malouf decided to arrest Garcia or after is unclear—others also heard Garcia begin to yell. Efigenia Rashid heard Garcia yell so loudly that, although her car windows were rolled up, it distracted her from the...