Hicks v. Ferreyra, Case No.: PWG-16-2521

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Paul W. Grimm, United States District Judge
• Citation: 396 F.Supp.3d 564
• Parties: Nathaniel HICKS, Plaintiff, v. Officer Gerald L. FERREYRA, et al., Defendants.
• Docket Number: Case No.: PWG-16-2521
• Decision Date: 10 June 2019

396 F.Supp.3d 564

Nathaniel HICKS, Plaintiff,
v.
Officer Gerald L. FERREYRA, et al., Defendants.

Case No.: PWG-16-2521

United States District Court, D. Maryland, Southern Division.

Signed June 10, 2019

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Jennifer I. Klar, Jia Cobb, Pro Hac Vice, Yiyang Wu, John Peter Relman, Relman Dane and Colfax PLLC, Washington, DC, for Plaintiff.

Andrew C. White, Abigail E. Ticse, Edward P. Parent, Jamie Lee, Jodie Elizabeth Buchman, Silverman Thompson Slutkin and White LLC, Baltimore, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

Paul W. Grimm, United States District Judge

United States Park Police ("USPP" or "Park Police") Officer Gerald L. Ferreyra pulled over behind a parked vehicle along the side of Interstate 295 North on July 11, 2015 and, when he saw a handgun lying on the front seat, he drew his weapon. The driver, Plaintiff Nathaniel Hicks, a Secret Service agent, showed his credentials and explained that he was on assignment waiting to lead a motorcade that was approaching, and Officer Ferreyra verified that he was indeed an on-duty Secret Service agent. Yet, according to Agent Hicks, Officer Ferreyra continued to detain him unreasonably (by holding onto his credentials and weapons) after Officer Brian Phillips arrived to assist, and after the Park Police's supervisor, whom Officer Ferreyra had asked to report to the scene, arrived, and even after the motorcade passed. And, within minutes after Agent Hicks left the scene, Officer Phillips pulled him over, allegedly for driving erratically and talking on a cellular phone while driving. That second stop was brief but, in Agent Hicks's opinion, still longer than necessary, because Officer Phillips knew that he was a Secret Service agent who was not prohibited from using his phone while driving and, according to Agent Hicks, he was not driving erratically.

Agent Hicks filed suit against Officers Ferreyra and Phillips, alleging that they detained him without "probable cause or even a reasonable, articulable suspicion" twice, in violation of his Fourth Amendment rights (a claim brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 389, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ), and did so as part of a conspiracy to "prevent[ ] him from discharging duties related to his position as a federal officer," in violation of 42 U.S.C. § 1985(1). Am. Compl. ¶¶ 1, 7–8, 13–14, 57, 65 ECF No. 49-1; see also Compl. 1, ECF No. 1. Defendants moved to dismiss or for summary judgment, on the basis of qualified immunity, with regard to the claims stemming from the first detention only. ECF No. 37. I denied the motion because it was not clear at the time that Defendants had probable cause for Plaintiff's continued detention during the first stop. Apr. 11, 2017 Mem. Op. & Order 1, ECF No. 44. Now pending is Defendants' Motion for Summary Judgment on both counts of the Amended Complaint. ECF No. 78.¹ Defendants

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still have not demonstrated that, based on the record before the Court when viewed in the light most favorable to Agent Hicks, they "act[ed] in objectively reasonable reliance on existing law" in either detention. See Queen v. Prince George's Cty. , 188 F. Supp. 3d 535, 541 (D. Md. 2016) (quoting Rockwell v. Mayor & City Council of Baltimore , No. RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11, 2014) ). Therefore, I once again cannot find that Defendants are entitled to qualified immunity on the Bivens claim. But, Agent Hicks has not shown that an exception to the intracorporate conspiracy doctrine applies, and consequently, he cannot prevail on his § 1985(1) civil conspiracy claims as a matter of law. Accordingly, I will grant Defendants' motion as to Count II while denying it as to Count I.

Background

Agent Hicks sat in his government-assigned 2014 Chevrolet Impala on the shoulder of Interstate 295 North in Maryland on July 11, 2015 at approximately 6:00 a.m., waiting to lead a motorcade for then-Secretary of the U.S. Department of Homeland Security Jeh Johnson.² Defs.' Stmt. of Facts ¶¶ 1–2, 12, 15–16, ECF No. 78-1, at 2–8; Pl.'s Opp'n 1–3. According to Hicks, his vehicle had a "police antenna[ ] on the corner of the hood" and a "strobing bar[ ] in the middle of the window above the trunk," and its strobing bar and emergency lights were illuminated. Hicks Dep. 85:15–21, 87:2–10, ECF No. 78-4.³ When Park Police Officer Ferreyra saw the vehicle, he pulled over behind it and approached the vehicle. Defs.' Stmt. of Facts ¶¶ 2–3. Seeing a handgun on the front passenger seat, Officer Ferreyra drew his weapon, after which Agent Hicks quickly identified himself, showed his credentials, and explained that he would be leading a motorcade. Id. ¶¶ 7–8, 12, 14, 16; Pl.'s Opp'n 3.

Officer Ferreyra took the credentials and the weapon. Defs.' Stmt. of Facts ¶¶ 11, 14; Pl.'s Opp'n 4. The credentials included a photograph of Agent Hicks and a description of the mission. Ferreyra Dep. 92:12–19, ECF No. 78-3; Hicks Dep. 95:5–15, ECF No. 78-4.⁴ They confirmed for Officer Ferreyra that Agent Hicks was a Secret Service agent, although "it was very difficult [for him] to focus" because he "almost shot a police officer," that is, Agent Hicks, before seeing his credentials. Ferreyra Dep. 96:1–97:7. Therefore, he wanted "to go back to [his] cruiser, verify everything [he] need[ed] to verify," including "who [Hicks] is, because [Ferreyra had] had cases with police impersonators

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before." Id. Officer Ferreyra admitted in his deposition that he knew that Agent Hicks "was on duty" as a Secret Service Agent "[w]ell before ... the motorcade came through, approximately 15 to 20 minutes before." Id. at 312:4–18.

At some point early in his encounter with Agent Hicks, Officer Ferreyra called for assistance on scene, and Officer Phillips arrived five to thirteen minutes later. Defs.' Stmt. of Facts ¶ 21; Ferreyra Dep. 146:12–147:14; Phillips Dep. 30:6–16, ECF No. 78-5. Officer Ferreyra promptly informed Officer Phillips that Agent Hicks was a Secret Service agent. Phillips Dep. 35:4–16, 37:10–21; see also Ferreyra Dep. 149:4–13 (stating that Phillips "had to have known [that Hicks was a Secret Service Agent], because I think I said it over the air"). Officer Ferreyra also asked his supervisor, Sergeant Timothy Wallace, to report to the scene, and in doing so informed him that "he had a Secret Service agent pulled over on the side of the road." Lt. Wallace Dep. 19:15–21, ECF No. 80-9. Officer Ferreyra testified in his deposition that he wanted his supervisor to assess the situation because he knew there would be an investigation into his decision to draw his weapon, and because he and Agent Hicks had not been in agreement on the circumstances of the encounter. Ferreyra Dep. 111:4–20, ECF No. 81-3 (sealed); see also Ferreyra Dep. 145:12–15.

According to Defendants, they "disengaged themselves from Agent Hicks" once Sergeant Wallace arrived, and it was the supervisor who detained Agent Hicks from that point forward. Defs.' Stmt. of Facts ¶¶ 27–28 (citing Ferreyra Dep., 153:19-154:18 (stating that, when Phillips was talking to Hicks before Wallace arrived, Ferreyra "stood in between ... [his] cruiser and Hicks's vehicle waiting on the escort, but [he] wasn't going back up there to talk to Hicks anymore, [he] was done with him"); Hicks Dep. 113:20-114:7 ("Once Officer Wallace arrived on the scene and was at my window, Phillips and Ferreyra had retrieved [sic] back to their vehicles."); Phillips Dep. 59:17–22 (stating that, approximately ten minutes after Sergeant Wallace began speaking with Agent Hicks, Officer Phillips and another officer present, Officer Benz, "decided that [they] were going to leave"); Wallace Dep. 53:21–54:13 (stating that, once he arrived at the scene, he did not see Ferreyra interact with Hicks and did not remember Phillips interacting with Hicks; explaining that "[t]ypically, in a scene like this, when a supervisor is on scene, we would treat it like a lot of other situations where, basically, the officer at that point shouldn't have direct contact with the complainant [i.e., Hicks]" and Wallace "become[s] the primary officer" at the scene)). Officer Ferreyra also testified that, even before Sergeant Wallace arrived, he had informed Agent Hicks that he was free to go and returned his credentials and his weapon, but Agent Hicks remained because he was waiting for the motorcade. Ferreyra Dep. 150:5-6, 18-19, 152:11-12 ("He told me he was waiting on an escort there.... At that point he already had his gun, he already had his creds.... I told him, "You do what you got to do. If you decide to leave, go ahead.").

The parties agree that, forty to sixty minutes after Officer Ferreyra first detained him, it was Sergeant Wallace who informed Agent Hicks that he was free to go. Defs.' Stmt. of Facts ¶¶ 31–32; Pl.'s Opp'n 6. But by then, the motorcade already had passed at about 6:40 a.m. Defs.' Stmt. of Facts ¶¶ 21, 26, 30; Pl.'s Opp'n 5–6. Notably, Agent Hicks testified in his deposition that he was not free to go when the motorcade passed because Defendant Ferreyra did not return his credentials and his weapon until ten to fifteen minutes later. Hicks Dep. 128:4-129:11, 214:14-19.

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