Tolan v. Cotton

Decision Date31 March 2012
Docket NumberCivil Action No. H–09–1324.
Citation854 F.Supp.2d 444
PartiesRobert R. TOLAN, Marian Tolan, Bobbby Tolan, and Anthony Cooper, Plaintiffs, v. Jeffrey Wayne COTTON, John C. Edwards, and the City of Bellaire, Defendants.
CourtU.S. District Court — Southern District of Texas

OPINION TEXT STARTS HERE

David H. Berg, Geoffrey Alan Berg, Berg & Androphy, George R. Gibson, Nathan Sommers Jacobs PC, Houston, TX, for Plaintiffs.

Norman Ray Giles, William Scott Helfand, Chamberlain Hrdlicka et al., Houston, TX, for Defendants.

MEMORANDUM AND ORDER ON JEFFREY WAYNE COTTON'S AND JOHN C. EDWARDS'S MOTION FOR SUMMARY JUDGMENT

MELINDA HARMON, District Judge.

Pending before the Court is the motion filed by Defendants Jeffrey Wayne Cotton (Sergeant Cotton) and John C. Edwards (Officer Edwards) for summary judgment on their defense of qualified immunity. (Doc. 67) Plaintiffs have filed a response to the motion (Doc. 70), to which Defendants filed a reply (Doc. 72). Plaintiffs then filed a surreply (Doc. 75), to which Defendants responded (Doc. 77). These filings and the accompanying exhibits have been reviewed and considered by the Court 1

Each of the Plaintiffs: Robert R. Tolan (Robbie Tolan), Marian Tolan, Bobby Tolan, and Anthony Cooper has filed suit pursuant to 42 U.S.C. Sec. 1983 against each of the remaining Defendants, Cotton, Edwards, and the City of Bellaire for violation of their Fourth and Fourteenth Amendment rights. 2

Undisputed Facts.

There is no dispute that just before 2:00 a.m. on December 31, 2008, outside a home located at 804 Woodstock Street, in Bellaire, Texas, Plaintiff Robert R. (Robbie) Tolan was tragically shot by Bellaire Police Sergeant Jeffrey Wayne Cotton. There were six people who witnessed this shooting: Robbie Tolan and Sgt. Cotton; Robbie Tolan's parents, Marian and Bobby Tolan; Robbie Tolan's cousin, Anthony Cooper; and Bellaire Police Officer John C. Edwards. The question before the Court is whether the two police defendants, Sergeant Cotton and Officer Edwards may utilize the defense of qualified immunity from the lawsuit filed against them by Plaintiffs Robbie, Marian, and Bobby Tolan and Anthony Cooper.

In their opening brief Defendants summarize the evidence of what led up to the shooting. (Doc. 67, at 2–8) The summary is undisputed by Plaintiffs and is taken largely from the deposition testimony of Sergeant Cotton and Officer Edwards and the four Plaintiffs. (Doc. 67, Exhibits 2, 4, 15, 16, 17, 18). Briefly, the circumstances were that Officer Edwards was, at around 1:50 a.m. on December 31, 2008, on duty as a City of Bellaire police officer, patrolling in the area of the 5800 block of Bissonnet Street. He was aware that thieves had burglarized twelve vehicles in Bellaire the night before and that street gang graffiti had been placed on the buildings of the Bellaire shopping center located in the vicinity of his patrol. He was driving a marked City of Bellaire police car. The police car prominently displayed reflective tape and was equipped with a spotlight, overhead emergency lights, and a video recording system. The police car was also equipped with a computer and a Mobile Data Terminal (MAD).

While patrolling the vicinity Officer Edwards exited the shopping center parking lot on Evergreen Street and travelled eastbound. He observed a black Nissan Sports Utility Vehicle (SUV) travelling in front of him on Evergreen Street. The SUV made an abrupt turn onto Woodstock Street. The manner of the turn suggested to Officer Edwards, among other possibilities, that either the driver was unfamiliar with the neighborhood, the driver did not want to be followed by a police car, the driver was a poor driver, the driver had been distracted, or the driver's ability to operate the vehicle was in some way impaired. Officer Edwards did not follow the SUV, but stopped his police car at the intersection of Woodstock and Evergreen and continued to observe the SUV. Officer Edwards knew that Woodstock ended in a cul-de-sac, and that if the driver wanted to exit Woodstock, the driver would need to return to Evergreen. Officer Edwards observed the male driver park the SUV on the west side of Woodstock and exit the SUV, along with his male passenger. Officer Edwards did not recognize the two men, but later learned that the driver was Robert “Robbie” Ryan Tolan (Robbie Tolan) and the passenger, Anthony Cooper (Cooper). Robbie Tolan testified in his deposition that as he opened the door of the SUV, he saw headlights reflecting on the door. Robbie Tolan pointed out the headlights of the police car to Cooper, but Cooper had misplaced his wallet in the SUV and was too busy looking for it. (Doc. 67, Ex. 15, p. 28, line 25–p. 29, line 3; p. 30, line 25–p. 31, line 15; Ex. 16, p. 40, lines 1–9; Plaintiffs' Complaint, at paragraph 25). Officer Edwards also noted at that time that Robbie Tolan and Cooper looked in the direction of the police car when they exited the SUV. He also observed Robbie Tolan and Cooper remove items from inside the SUV.

Still observing the actions of Robbie Tolan and Cooper, Officer Edwards began to drive slowly past the SUV, noting as he drove, the license plate number. He typed what he believed to be the license plate number of the SUV into the Mobile Data Terminal (MDT), his police car computer, in order to run a routine check on the SUV. Unfortunately when he entered the license plate number into the MDT he made a mistake. The actual number of the SUV was 696BGK, but Officer Edwards typed in 695BGK. The computer in the police car sounded an audible alert tone indicating that the license plate number that had been typed into the MDT matched that of a vehicle that was reported stolen and also audibly and visually announced that the vehicle with the license plate number he typed in was a Black Nissan that had been reported stolen. The MDT also automatically alerted the Bellaire Police Department dispatcher, who informed Officer Edwards the vehicle had been reported stolen. Officer Edwards told the police dispatcher the location of the SUV and that two males had occupied the vehicle.

Officer Edwards recognized at this point that he was involved in investigating a reported felony crime, that the two men who had occupied the supposed stolen vehicle were aware a police car was nearby, and that he was outnumbered. He called for backup from both the Bellaire Police Department and the Houston Police Department. In an attempt to maintain the status quo until backup arrived, Officer Edwards drove through the cul-de-sac turn and stopped the police car on the side of the road facing the SUV, but at a distance. Before backup arrived, however, Bobbie Tolan and Cooper approached as if to enter a residence in the neighborhood; they were carrying several items. This change in the circumstances prompted Officer Edwards to drive his police car forward and park in front of the SUV. He shined the police car spotlight to better illuminate Robbie Tolan and Cooper in the poorly lit front yard and driveway of the house. He exited the police car and removed his handgun from its holster, calling to Robbie Tolan and Cooper, “Police, Come here.” Officer Edwards was wearing a regulation Bellaire Police uniform; he carried his handgun in one hand and a flashlight in the other. His intention was to detain temporarily Robbie Tolan and Cooper near the SUV in order to make a field investigation of what he believed to be an automobile theft. When Robbie Tolan and Cooper failed to come to Officer Edwards, but proceeded in an opposite direction, Officer Edwards repeatedly ordered them to stop and lie on the ground.

In paragraph 37 of the complaint (Doc. 1), Plaintiffs allege that, in response to their question of why he wanted them to lie down, Officer Edwards told Robbie Tolan and Cooper that he wanted them to lie down because he had information that the SUV was stolen. Both Robbie Tolan and Cooper testified in their depositions that they did not comply with Officer Edwards' verbal requests to lie on the ground. (Doc. 67, Ex. 15, p. 40, line 22–p. 41, line 8; Ex. 16, p. 51, lines 4–7) Robbie Tolan even stepped outside of the officer's view when he put a bag he was carrying behind a sago palm tree in a planter near the door of the house.

While Officer Edwards was ordering Robbie Tolan and Cooper to the ground, two people came from inside the house onto the front porch. Although Officer Edwards did not know it at the time, they were Robbie Tolan's parents, Robert (“Bobby”) Tolan and his wife Marian Tolan. Bobby Tolan testified in his deposition that he told Robbie Tolan and Cooper to “shut the fuck up, be quiet, and get on the ground” (Doc. 67, Ex. 18, p. 48, lines 15–19). After his father told him this, Robbie Tolan lay down on the porch of the house, with his head in the direction of the door and his feet toward the driveway. Cooper knelt down on the ground, nearer to Officer Edwards. While Bobby Tolan was talking to Officer Edwards, Marian Tolan walked about the front yard shouting.Officer Edwards had four people to watch, and he still had not investigated the automobile theft, so he called the dispatcher again to ask backup to hurry to the scene.

While all of this was transpiring at 804 Woodstock Drive, Sergeant Cotton was at the Bellaire Police Station doing paperwork. He heard radio transmissions that Officer Edwards had encountered a reportedly stolen vehicle along with two individuals who had occupied that vehicle. Sergeant Cotton responded in his police car. He first instructed Bellaire Police Corporal Chris Delk (Delk) to go to Braeburn Street, south of Woodstock Street, in case there was a foot pursuit. Sergeant Cotton then drove to 804 Woodstock Street. As he approached the Woodstock address Sergeant Cotton heard on the police car radio Officer Edwards's second, more urgent, call for backup. Sergeant Cotton arrived at 804 Woodstock at 1:53 a.m., some one and one-half minutes after Officer Edwards exited his...

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7 cases
  • Genovese v. Town of Southampton
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 1, 2013
    ...1066–67 (8th Cir.2006) (“When a suspect is passively resistant, somewhat more force may reasonably be required.”); Tolan v. Cotton, 854 F.Supp.2d 444 (S.D.Tex.2012) (granting summary judgment on excessive force claim for defendants and holding that “[v]iewed objectively, the force [the Serg......
  • Genovese v. Town of Southhampton, 10-cv-3470 (JFB) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 1, 2013
    ...1066-67 (8th Cir. 2006) ("When a suspect is passively resistant, somewhat more force may reasonably be required."); Tolan v. Cotton, 854 F. Supp. 2d 444 (S.D. Tex. 2012) (granting summary judgment on excessive force claim for defendants and holding that "[v]iewed objectively, the force [the......
  • Tolan v. Cotton
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 25, 2013
    ...a constitutional violation, as required by the first of two prongs for qualified-immunity analysis, discussed infra. Tolan v. Cotton, 854 F.Supp.2d 444, 478 (S.D.Tex.2012). Finding there was “no just reason for delay”, it entered final judgment for the Officers under Federal Rule of Civil P......
  • Tolan v. Cotton
    • United States
    • United States Supreme Court
    • May 5, 2014
    ...suits unless their conduct has violated a clearly established right.The District Court granted summary judgment to Cotton. 854 F.Supp.2d 444 (S.D.Tex.2012). It reasoned that Cotton's use of force was not unreasonable and therefore did not violate the Fourth Amendment. Id., at 477–478. The F......
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