Reitz v. Woods
| Docket Number | 21-11100 |
| Decision Date | 02 November 2023 |
| Parties | Robert Steven Reitz, also known as "Bobby" Reitz, Plaintiff-Appellant, v. Jimmy Woods, Officer; John R. Wilson, III, Detective; Larry Tatum, Detective; Taylor County, Texas, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas USDC No. 1:16-CV-181
Before STEWART, ELROD, and GRAVES, Circuit Judges.
Using a blocked number, an anonymous individual twice called 9-1-1 in Abilene, Texas, relaying a serious threat of gun violence against officers and an alleged hostage while providing his location. Abilene Police responded, only to find the apartment occupied by Plaintiff-Appellant Robert "Bobby" Reitz and his dog, with no hostage or lethal firearm in sight. Reitz was detained, taken to the police station, and ultimately released when an investigation proved inconclusive.
Weeks later, Reitz was charged with making a false report, though the charges were eventually dropped. Reitz subsequently sued three individuals involved in his arrest and prosecution as well as Taylor County, Texas. Each defendant moved for summary judgment, with the individuals asserting qualified immunity. The district court granted the Defendants' motions. Reitz appeals. We AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings.
On September 4, 2015, the emergency services dispatch in Abilene, Texas, received an anonymous call wherein an unidentified individual informed the dispatcher that "I just shot my girlfriend" and "I used a 9mm to shoot my girlfriend right in the f-ing eye." The dispatcher then asked the caller for his location, to which he gave Reitz's address, including both the building and apartment numbers. The call concluded shortly after. Moments later, the caller phoned back, demanding "to speak to a hostage negotiator" and telling the dispatcher that his "girlfriend is tied up in the bathroom right now." Ignoring the dispatcher's request for his name and phone number, the caller reiterated his demand and informed the dispatcher that he was in possession of "a 12-guage . an M-16, and a 9-millimeter." Only then did the caller reconfirm he was at the address previously given, saying he was at the front door "waiting for the police to start knocking so [he] could start shooting."
The Abilene Police Department dispatched multiple officers including a Special Weapons and Tactics team, to address the volatile situation. After the officers created a perimeter around the apartment complex, the SWAT team forcibly breached the apartment's door without a warrant based on their belief that exigent circumstances existed.[1] Once inside, APD officers found only Reitz, his dog, and a Sig Sauer pellet gun. Officer Austin Graves then handcuffed Reitz and escorted him to a patrol car. An unnamed officer then took Reitz to Officer Jimmy Woods's patrol car and gave Woods Reitz's cell phone.[2]
Officer Woods, a detective in APD's Crimes Against Persons Division, was the "primary officer" for the incident "tasked with compiling information and drafting a report regarding the false 911 call." Woods was initially stationed at the perimeter and did not enter Reitz's apartment until after the breach, beginning his investigation by photographing the scene. Woods next questioned Reitz, who explained that "nothing" happened, having just arrived home from a weekly visit to his psychiatrist. Woods then spoke with Reitz's neighbor Trevor Watts, who said that Reitz-in Woods's words-"acts kind of weird all the time" and "has a girlfriend coming and going from his apartment." Woods followed up with Reitz about his girlfriend, to which Reitz replied that they had ended their relationship nearly a year prior. Finally, Woods asked Reitz for consent to search his cell phone's call log; Reitz consented. The log did not reveal any emergency calls, but Woods, notwithstanding Reitz's assistance, was unable to locate a log of deleted calls. Woods asked Reitz if he would be willing to go to APD for technicians to search his phone; Reitz agreed.
Upon arriving at APD, Reitz again consented to having his phone searched. Technical investigation failed to produce information, as the APD's "system was not able to download the call history of the phone . . . due to either the age of the cell phone, or its software." Reitz was subsequently released and taken back to his apartment.
Five days after the incident, APD assigned Detective John Wilson, III, to follow up on the case, including determining whether Reitz placed the initial calls. About two weeks after the incident, Reitz returned to the APD police station to obtain a copy of Detective Woods's report, in part to receive compensation for the damage done to his apartment in the breach.[3] While there, Reitz attempted to speak to Woods, who "did not want to talk to [him]" and who then left for lunch. During this visit, Reitz also met Stacie Wirmel, an investigative reporter affiliated with KTAB (a local television station), who asked to interview him regarding the incident. About an hour after Reitz left the station, Woods called Reitz and, according to Reitz, "was very abrasive" and "did not want [him] telling a reporter what had happened[.]" As the district court noted, "[a]lthough a copy of the KTAB news story was not included in the summary judgment record, it appears undisputed that it aired on October 13, 2015, in both televised and online versions."
After trying but failing to speak with Reitz three times throughout September, Wilson managed to speak with Reitz over the phone on October 13, 2015-which Wilson recorded. Wilson played Reitz a portion of one of the 9-1-1 call recordings and Reitz denied he was the anonymous caller. During this call, Wilson also told Reitz that the "phone was analyzed" and deleted call logs showed Reitz as placing the calls in question, which Reitz contested given the tests run the day of the incident. Without addressing Reitz's objection, Wilson said he believed that the recordings sounded like Reitz, informed Reitz that he would be "filing this case" with local prosecutors as a "Terroristic Threat on Public Servants," suggested that Reitz call the APD or the district attorney with any questions, and offered to speak to counsel if Reitz had retained legal representation.
Indeed, according to Wilson's affidavit, upon listening to the recorded 9-1-1 calls and a recording of his call with Reitz, he "believe[d] that [] Reitz did make the 911 calls on September 4, 2015." Wilson also asked the 9-1-1 dispatcher who received the anonymous calls as well as another detective to compare the three recorded calls, and both "believed . . . that the same individual made all three calls." Following these corroborations, Wilson followed through on his pronouncement to Reitz and filed the case to the Taylor County District Attorney's Office as a Terroristic Threat. An Assistant District Attorney with the Office asked Wilson to re-file the case as a false report; Wilson complied. Larry Tatum, an Investigator with the Taylor County District Attorney's Office, signed the arrest affidavit, and Wilson executed the warrant at Reitz's place of work.
On November 25, 2015, following Reitz's arrest, Wilson decided, in consultation with an unnamed Assistant District Attorney working on the case, to send the recordings of all three calls to Dr. Robert Wallace, a professor in McMurry University's Sociology Department. Though Wilson and his supervisor, Sergeant Will Ford, were aware that Dr. Wallace "[was] not a voice recognition expert," they believed it was important to "have a second party look at the evidence." Per Wilson's notes: Wilson phoned the unnamed ADA to discuss Dr. Wallace's conclusion, and the ADA recommended dropping the case. Wilson did so, recognizing that given Dr. Wallace's conclusion, there was "some reasonable doubt that" Reitz dialed 9-1-1.
Reitz filed his Original Complaint on October 11, 2016. All defendants would eventually move for summary judgment. In support of his opposition to each motion, Reitz submitted an affidavit from Robert Gill, a former felony prosecutor in the Tarrant County District Attorney's Office and a former Tarrant County judge.
First, the district court excluded Gill's affidavits, finding them to be "invad[ing] the province of the Court," "encroach[ing] on issues which are reserved to the Court," "and thus [] mainly irrelevant." In the same order, the district court then granted all of the Defendants' motions for summary judgment.[4] Regarding the Fourth Amendment claims, the district court found that: (1) Woods had probable cause to arrest Reitz; (2) Wilson did not include false statements in his notes, nor could Reitz establish any statements-even if assumed untrue arguendo-were included intentionally or recklessly; and (3) Tatum reasonably relied on the information provided to him by other officers and the assistant district attorney prosecuting the case. The district court dismissed Reitz's First Amendment claims against Woods and Wilson because it found no adverse action befell Reitz as a result of his discussions with the news media and because the officers charged him in light of a determination of probable cause he committed the crime rather than due to any personal retaliatory animus.
Reitz now appeals.[5]
"This court reviews a grant of a motion for summary judgment de novo, and applies the same...
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