Zepeda v. Sizemore
| Decision Date | 30 August 2013 |
| Docket Number | Cv. No. SA:11-CV-901-DAE |
| Parties | TOBY ZEPEDA, Plaintiff, v. SHANE Q. SIZEMORE, Individually; and ABEL BARRIENTES, Individually, Defendants. |
| Court | U.S. District Court — Western District of Texas |
On August 22, 2013, the Court heard oral argument on the Motion for Summary Judgment filed by Defendants Shane Q. Sizemore and Abel Barrientes (collectively, "Defendants"). (Doc. # 74 ("Mot.").) Mark Anthony Sanchez, Esq., appeared on behalf of Plaintiff Toby Zepeda; Nathan Mark Ralls, Esq., appeared on behalf of Defendants. After careful consideration of the Motion and the supporting and opposing memoranda, and in light of the parties' arguments at the hearing, the Court, for the reasons that follow, GRANTS Defendants' Motion.
This case arises out of allegedly excessive force that Plaintiff Toby Zepeda contends two officers of the San Antonio Police Department ("SAPD")used against him. Two videotapes—a surveillance video and a cell phone video posted on Youtube—recorded most of the events underlying Plaintiff's claims. 1
The incident that forms the basis of this lawsuit occurred on November 1, 2009 (the night of Halloween), at about 2:15 a.m., in downtown San Antonio, in the elevator lobby to a parking garage. Plaintiff left Medusa's Night Club shortly after it closed at 2:00 a.m. (Zepeda Depo. 36:16-19.) In the previous hour and a half, Plaintiff had drunk four beers. (Id. at 39:24-40:9, 57:11-18.) Upon leaving Medusa's, Plaintiff saw a female friend of his arguing with another girl outside the parking garage. (Id. at 38:23-39:12.) Plaintiff attempted to break up the fight, at which point the security officer on duty requested that Plaintiff and his friend enter the lobby of the parking garage in order to separate the parties and defuse the situation. (Id. at 39:16-20.) The surveillance video shows Plaintiff's friend, recognizable by her Wonder Womancostume, entering the lobby at time stamp 3:13:30 a.m.3 The acting security officer can be seen attempting to prevent Plaintiff's friend from leaving the lobby. At around 3:13:45, two other girls enter the lobby, and they appear to be fighting with someone off screen. At around 3:13:48, Plaintiff first appears in the bottom right-hand corner of the screen wearing a red, long-sleeve shirt. At 3:13:52, Plaintiff can be seen attempting to pull his friend away from the other women while the acting security officer attempts to restrain another woman. At 3:13:54, Plaintiff's friend breaks free from his grasp and exits the lobby, at which point the acting security officer runs out of the frame, followed by the woman he was attempting to subdue and by Plaintiff.
At 3:14:04, the acting security officer reenters the frame holding the arms of a woman dressed as a devil. The officer then leaves the woman dressed as a devil in the lobby and goes back outside. At 3:14:11, Plaintiff reappears in the bottom right-hand corner of the screen, again attempting to subdue his friend. Seconds later, many other individuals enter the lobby. At 3:14:26, an individual in a yellow shirt rushes at Plaintiff and attempts to attack him.4 The acting securityofficer attempts to restrain the man in the yellow shirt. However, by 3:14:33, the man in the yellow shirt, a man in a green shirt, and a man in a light blue shirt have pushed Plaintiff into the corner of the lobby. (Zepeda Depo. 113:25-118:6.) At this time, the civilian men "start[ed] throwing punches." (Id. 115:3-13.) Plaintiff "was trying to go down to the prone position," but the civilian men "picked [him] up from the floor, took [him] over here, picked [him] up from the floor and took [him] back that way." (Id.) These men were kicking and punching Defendant "fast" and "hard" all over his upper and lower body, including his ribs, head, and shoulders. (Id. at 116:10-118:6.)
By 3:14:37, at least eighteen other men and women have entered the lobby, some of whom are fighting, grabbing each other, and/or running. At 3:14:40, the acting security officer can be seen attempting to subdue one of the women in the corner of the lobby.
At 3:14:43, Defendant Sizemore first appears in the bottom right-hand corner of the screen. (Mot. Ex. C at 2 ("Sizemore Aff.").) He is wearing black pants, a blue and black short-sleeve shirt that says POLICE, and a dark colored, long-sleeved undershirt. He has a full head of hair that is closely cropped on the sides. Defendant Sizemore can be seen attempting to help the acting security officer subdue the woman. Then, at 3:14:45 a.m., while Sizemore's back is turned to the elevators and the lobby doors, a stream of menenters the lobby, and a number of the men walk toward the opposite side of the lobby (the bottom left-hand side of the screen). At 3:14:48, Defendant Sizemore turns around and walks in the same direction, where it appears that a struggle is taking place. Behind Sizemore, many of the people who have entered the lobby are struggling with each other. At 3:14:54, another police officer, dressed entirely in black, enters the lobby and attempts to break up that fight. Plaintiff agreed at his deposition that by this point the scene could be described as a "melee." (Zepeda Depo. 122:21-123:6.)
At the same time, Defendant Sizemore, along with a few other men, can be seen in the bottom left-hand side of the frame, apparently attempting to subdue someone. At 3:15:19, Plaintiff reappears, and three uniformed police officers, including Defendant Sizemore, can be seen struggling with Plaintiff. The YouTube video, which shows the same incident from another angle, shows an unidentified officer (who is not dressed in an SAPD uniform5) directing a kick at Plaintiff. Plaintiff testified that this man kicked him twice in the ribs. (Zepeda Depo. 131:13-132:10.)
During this struggle, Plaintiff, Defendant Sizemore, and two unidentified SAPD officers move to the corner of the lobby, to the left of the elevators (the bottom left-hand side of the frame). Plaintiff testified at hisdeposition that he did not move to the corner of the lobby voluntarily; he claims he was "already on the floor in the prone position" and the officers "pick[ed] [him] back up" and took him to the corner, where they put him back down and started hitting him. (Zepeda Depo. 124:15-125:2.)6
Once Plaintiff has moved to the corner of the lobby, he is outside the frame of the security camera. However, approximately thirty-two seconds into the YouTube video, Defendant Sizemore and the two unidentified officers can be seen struggling with Plaintiff in the corner of the lobby. Sizemore is standing on the left side of Plaintiff (Plaintiff's right side), pulling at Plaintiff's right arm and apparently attempting to bring him under control. Another officer, who is bald, is standing behind Plaintiff; and an officer wearing a bike helmet is standing on Plaintiff's left, attempting to grab Plaintiff's arm. In the YouTube video, the bald officer behind Plaintiff, who is not a defendant in this case, can be seen hitting Plaintiff in the upper back or head at least four times. It is not clear from the video whether the bald officer hit Plaintiff with an open hand or with a fist.
At 3:15:27 on the surveillance video, Plaintiff can be seen moving toward the middle of the lobby while the officers are still struggling with him. At 3:15:33, a number of other officers enter the room and attempt to assist with the arrest. It is at this time that Defendant Barrientes is first seen. At 3:15:34, he canbe seen standing behind two officers, one of whom is wearing a bike helmet. (Mot. Ex. D ("Barrientes Aff.").)
At 3:15:39, three officers can be seen attempting to subdue Plaintiff. At this time, Defendants Sizemore and Barrientes, who can be seen on the left side of the screen, are not touching Plaintiff. Shortly thereafter, Defendant Barrientes can be seen attempting to grab Plaintiff's legs while other officers are attempting to pin him to the ground. At 3:15:47, Sizemore can be seen bending down to assist the other officers, but the camera's view of his hands is blocked by the other officers. During this time, the video appears to show Plaintiff twisting, turning, and kicking his legs.
At 3:15:59, Defendant Barrientes can be seen placing Plaintiff in a choke hold. In the video, Plaintiff is lying face-up on top of Barrientes, who has his back against the wall next to the elevator. Another officer can be seen on top of Plaintiff, pinning him down. Plaintiff appears to be struggling. Seconds later, as the officer who was on top of Plaintiff stands up, Plaintiff appears to kick his legs to the side, leading a number of other officers to approach and grab his legs.
At 3:16:09, Defendant Barrientes and at least two other officers flip Plaintiff onto his stomach. At 3:16:13, four officers, including Defendant Barrientes, can be seen pinning Plaintiff to the ground, with two officers holding his legs and one officer holding each arm. Defendant Sizemore is not in theframe. At 3:16:16, Defendant Barrientes places his right knee on Plaintiff's neck or upper shoulder, pinning him to the ground face-down, and uses his hands to assist the other officers in handcuffing Plaintiff. Plaintiff testified at his deposition that it was at this moment—the moment in which he was handcuffed—that he first realized he was dealing with police officers. (Zepeda Depo. 128:15-129:17.) Until that point, Plaintiff insists, he believed he was dealing with civilians. (Id.)
At 3:16:32, the officers appear to have successfully handcuffed Plaintiff, and Defendant Barrientes stands up. The other officers stand, too, and most begin to exit the lobby. At 3:16:41, however, Plaintiff flips over onto his back, leading Defendant Barrientes and another officer to bend down and flip Plaintiff back onto his stomach. At 3:16:43, Defendant Barrientes again places his right knee on Plaintiff's neck...
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