Gomez v. Lozano

• Decision Date: 13 March 2012
• Docket Number: Case No. 09–22988–CIV.
• Citation: 839 F.Supp.2d 1309
• Parties: Steven GOMEZ, Plaintiff v. Andy LOZANO et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

839 F.Supp.2d 1309

Steven GOMEZ, Plaintiff

v.Andy LOZANO et al., Defendants.

Case No. 09–22988–CIV.

United States District Court,

S.D. Florida,

Miami Division.

March 13, 2012.

John Bruce Ostrow, Stephen Asher Ostrow, John B. Ostrow, PA, Miami, FL, for Plaintiff.

Joshua Michael Entin, Rosen Switkes & Entin P.L., Robert F. Rosenwald, Jr., City of Miami Beach, Miami Beach, FL, Mendy Halberstam, Jackson Lewis, LLP, Miami, FL, for Defendants.

Order on Motions for Summary Judgment

ADALBERTO JORDAN, District Judge.

For the following reasons, Raymond Chambers's motion for summary judgment [D.E. 185] is granted, and the motions for summary judgment filed by the City of Miami Beach [D.E. 187] and Julio Blanco and Andy Lozano [D.E. 184] are Granted in part and denied in part. Summary judgment is granted as to Counts I, II, III, IV, V, VI, VII, VIII, IX, XII, XV, and XVIII, and denied with regard to Counts X, XI, XIII, XIV, and XVII.

I. Legal Standard

A motion for summary judgment should be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summary judgment is warranted. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. That is, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.” See Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997). It must also “resolve all reasonable doubts about the facts in favor of the nonmovant.” See United of Omaha Life Ins. v. Sun Life Ins., 894 F.2d 1555, 1558 (11th Cir.1990).

II. Factual Background

This case is about the arrest of, and injuries suffered by, Steven Gomez. Mr. Gomez tells one story; Officers Blanco, Chambers, and Lozano tell another; and a grainy cell-phone video and audio recording of the incident tells yet another. At the summary-judgment stage, I must view all evidence in Mr. Gomez's favor. Nonetheless, I need not favor Mr. Gomez's version of events where the recording blatantly discredits Mr. Gomez's testimony. See Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The evidence, when properly viewed in Mr. Gomez's favor, reveals the following.

On March 8, 2009, Mr. Gomez and two other friends drove to South Beach, a neighborhood in Miami Beach [D.E. 189–8 at 13–14]. Before they reached their destination, the three men purchased a 12–pack of beer [ Id. at 14]. They then arrived at Eighth Street and Collins Avenue and parked there [ Id.].

Before heading out to the beach, the three men headed to a bar on Ocean Drive. Mr. Gomez drank a small, slush, alcoholic drink. Although the drink was small, Mr. Gomez could not finish it [ Id. at 15]. After this, the men walked to the beach, where they drank beer, met with friends, and relaxed. During this entire time, Mr. Gomez had no more than four alcoholic drinks (including the slush drink) [ Id. at 13]. He was not, at any point, drunk [ Id. at 16].

Eventually, Mr. Gomez ran into a female friend of his, who had two other female friends with her. Shortly after these three female friends arrived, Mr. Gomez's two male friends left [D.E. 189–9 at 10].

As the afternoon became early evening, Mr. Gomez and his friends decided to leave, so they packed their things. A group of men then began harassing Mr. Gomez's friends. Mr. Gomez told his friends to ignore the group, a comment that the group apparently overheard. For some reason, this comment agitated the group [ Id.].

Mr. Gomez, unaware that the group of men had become agitated, began to leave the beach. The group, though, began yelling with more energy and vehemence. The spike in rancor caused Mr. Gomez to turn around, and he noticed that the group now channeled its animosity at him. One man in particular strode toward Mr. Gomez. As the man neared, Mr. Gomez dropped some bags he carried. The man then swung at Mr. Gomez, but Mr. Gomez stepped back and avoided the punch; the man fell from his own imbalance [ Id. at 12].

Mr. Gomez then observed three more men from the group walking quickly in his direction. Sensing trouble, Mr. Gomez turned around and hastily headed for the beach's exit [ Id.]. Jason Hill, another friend of Mr. Gomez, saw him quickly walking out. Mr. Gomez and Mr. Hill then talked, with Mr. Hill informing Mr. Gomez that the group sought only trouble.

Meanwhile, a Miami Beach Police Department Officer named Raymond Chambers arrived at the scene. Pointing at Mr. Gomez, four or five bystanders told Officer Chambers that Mr. Gomez was “involved in a fight and ... getting away” [D.E. 189–15 at 4].¹ Officer Chambers reacted and began walking after Mr. Gomez [ Id. at 3–4].

Officer Chambers reached Mr. Gomez and grabbed his arm from behind, though he did not identify himself as a police officer [D.E. 189–9 at 12, 14]. Understandably fearing that one of the rowdy group members had caught up to him, Mr. Gomez struggled to escape, and Officer Chambers reacted by trying to grab Mr. Gomez's arm [ Id. at 14, 31]. The way Officer Chambers held Mr. Gomez's arm prevented Mr. Gomez from viewing Officer Chambers.

Next, Mr. Gomez was tackled from behind by another police officer, Julio Blanco [D.E. 189–9 at 16]. Mr. Gomez fell face down on the sand. Now a third officer, Andy Lozano, came over and sat on Mr. Gomez's head [ Id. at 15].

Mr. Gomez has changed his story as to when he noticed that the men around him were police officers. In his affidavit, Mr. Gomez asserts that he did not discover that these men were police officers until he was on the ground [D.E. 221–8 at 2–3]. This assertion contradicts his deposition testimony, however. In his deposition, Mr. Gomez has the following interaction with an attorney.

Attorney: Then during the sequence of events you were able to glimpse and see his uniform and recognize him as a police officer.

Mr. Gomez: Yes, for the second that I was able to see him because that's what I—when I tried to shrug [Officer Chambers] grabbed my arm in a hold and when I turned around he went like that real fast, and I was able to get a glimpse and then I stopped resisting, and that's when the other officer came and grabbed me by the feet and took me down.

[D.E. 189–9 at 16]. Mr. Gomez offers no explanation for the change in testimony. Consequently, I need not consider the assertion in the affidavit. See Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1316 (11th Cir.2007); Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984).

The evidence, therefore, shows that Mr. Gomez got a glimpse of Officer Chambers as they struggled. Mr. Gomez realized that the person holding his arm was a police officer and stopped resisting [D.E. 189–9 at 16].

In the meantime, a crowd had gathered [D.E. 220–7 at 10]. The crowd, at the very least, was verbally hostile [ Id. at 10]. In fact, the cell-phone video clearly shows a crowd gathering and shows that the crowd became hostile—one can hear the crowd booing at the officers. Officer Chambers, hearing cursing and yelling, released his hold on the now knocked-down Mr. Gomez and turned his attention to the crowd [D.E. 189–15 at 6]. Officer Chambers had his back to Mr. Gomez, Officer Lozano, and Officer Blanco as the following events unfolded.

Now on the ground, with two police officers on top of him, Mr. Gomez had his face down on the sand and, consequently, could not breathe [D.E. 189–9 at 15]. In an attempt to tell the police officers that he was suffocating, Mr. Gomez squirmed. He did not, however, kick or punch the officers at this time [ Id. at 17].

Mr. Gomez also testified that he did not flail or move his arms during the incident, but the video discredits this testimony. The cell-phone video shows that Officer Lozano struggled to get Mr. Gomez's arms and hands behind his back. The video, that is, shows Mr. Gomez resisting Officer Lozano's attempts to handcuff him. As this all occurred, not once did the police officers tell Mr. Gomez that he was under arrest or that he should stop resisting [ Id.]. Mr. Gomez, for his part, was telling Officers Blanco and Lozano to stop [D.E. 189–10 at 4849].

Eventually, Mr. Gomez got on his knees in an attempt to tell the officers that he needed to breathe. Before he could do anything, however, Officers Blanco and Lozano punched him repeatedly in the ribs [D.E. 189–12 at 8].

Again, contrary to Mr. Gomez's assertion that he did not throw his arms, the video depicts Mr. Gomez's attempt to shove Officer Lozano away. Officer Lozano, in his deposition, stated that he thought Mr. Gomez was trying to punch him. Hence, Officer Lozano says, he punched Mr. Gomez twice in the face. This testimony is consistent with the video. Yet, it is not the only explanation for this use of force.

Everyone agrees that Officer Lozano punched Mr. Gomez in the face twice [D.E. 189–10 at 34; D.E. 189–11 at 23]. Sequentially, the video first shows part of the crowd. It then quickly focuses on Mr. Gomez, who is on his knees. Officers Blanco and Lozano begin to punch Mr. Gomez. Officer Lozano punches Mr. Gomez either in the mouth or on his arm. Mr. Gomez then attempts to push Officer Lozano. Officer Lozano, with a closed-fist, punches Mr. Gomez's face. Suddenly, the crowd again blocks the view of Mr. Gomez and Officers Blanco and Lozano. From the video, I cannot...