Drumgole et al v. Frumveller et al
ORDER & REASONS granting 10 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 5/13/2015. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEANUNRAE DRUMGOLE, ET AL.
JOHN FRUMVELLER, ET AL.
ORDER AND REASONS
Before the Court is the defendants' motion to dismiss or for
For the reasons that follow, the motion is
This case arises from the allegedly unlawful seizure of and
excessive force used against the plaintiffs' three minor children,
Jakyren Bissant (male, age 15), Lanyla Desmond (female, age 11),
and Devin Desmond
(male, age 9).
On the evening of December 15,
2013, the three children were walking in their neighborhood when
they were stopped by Officers Frumveller, Coll, and Rappold of the
The defendants title their motion "Motion to Dismiss;
Alternatively, Motion for Summary Judgment." The memorandum in
support, however, briefs only the law applicable to summary
judgment, and in their reply, they refer to their motion as one for
Moreover, the Court has before it matters
outside the pleadings, such as the recordings of the victim's call
to police and the police dispatch. In accordance with Federal Rule
of Civil Procedure 12(d), the Court must therefore construe the
motion as one for summary judgment.
Kenner Police Department. The officers were responding to a report
of a robbery at 2621 Augusta Street in Kenner, LA, by "three black
male juveniles," one of whom was identified as wearing "a red and
The dispatch said that the juveniles were running
towards Veterans Boulevard. The officers came across this group of
children walking or running along 27th Street, which runs parallel
to Veterans, and stopped them.
Jakyren was wearing a polo shirt
with red, white, black, and gray stripes.
The plaintiffs contend that the oldest child, Jakyren Bissant,
who suffers from autism spectrum disorder and moderate intellectual
disability, froze and said he had done nothing wrong when Officer
Frumveller yelled at the children, "Get your f***ing hands on the
Frumveller threw Jakyren to the ground, who then tucked his
body to protect himself from the officer.
Officer Coll then
tasered the boy three times before handcuffing him and putting him
in the back of a police car.
When the younger children tried to
run to a neighbor's house to get away from the police, Officer
Rappold grabbed them, pushed Devin Desmond's arm up his back, and
threw the children into the back of a police car.
victim was brought to the scene, and he told the officers that the
three children were not his robbers. The two younger children were
released to their parents, and Jakyren was arrested for resisting
The plaintiffs contend that as a result of the children's
unlawful seizures, the children suffered mental, emotional, and
physical pain and suffering.
They sue under 42 U.S.C. § 1983,
contending that the arrests were made without probable cause and
with excessive force, in violation of the Fourth and Fourteenth
Amendments to the United States Constitution; they also bring
plaintiffs allege that the City of Kenner is liable for the
tortious actions of its officers under the theory of respondeat
superior, because the officers were acting in the course and scope
of their employment with the City.
Finally, believing that the
officers' actions were malicious and wanton, the plaintiffs seek
The defendants now move for summary judgment, contending that
probable cause and that the force used was unreasonable.
officers contend that qualified immunity protects them from suit.
The defendants also submit that the City is not liable, because the
plaintiffs have not suggested that there was a policy or decision
that was officially adopted and promulgated by the City.
plaintiffs respond that more discovery–in particular, depositions
of the defendant officers–is needed, and thus the Court should
defer consideration of the motion for summary judgment.
submit, in the alternative, that material facts are in dispute.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); FED. R. CIV. P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under color
of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.
To establish § 1983 liability, the plaintiff must satisfy three
deprivation of a right secured by the U.S. Constitution
or federal law,
that occurred under color of state law, and
was caused by a state actor.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
When a plaintiff seeks money damages from government officials
for alleged violations of constitutional or statutory rights,
officials sued in their individual capacities may invoke the
defense of qualified immunity. Because it is an immunity from suit
and not a defense to liability, courts are advised to resolve the
issue "at the earliest possible stage in litigation."
Bryant, 502 U.S. 224, 227 (1991) (per curiam).
"Qualified immunity shields government officials from civil
damages liability," the U.S. Supreme Court has reiterated, "unless
the official violated a statutory or constitutional right that was
clearly established that the time of the challenged conduct."
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v.
al-Kidd, 131 S.Ct. 2074, 2080 (2011)); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (This doctrine protects government officials
against individual civil liability "insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.").
immunity balances two important interests–the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably."
Callahan, 555 U.S. 223 (2009) (noting that "[t]he protection of
qualified immunity applies regardless of whether the government
official's error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.").
"[q]ualified immunity represents the norm" and "is designed to
shield from civil liability all but the plainly incompetent or
those who violate the law."
Brady v. Fort Bend County, 58 F.3d
173, 174 (5th Cir. 1995).
defense, courts have traditionally applied the two-prong process
confirmed by the Supreme Court again in Saucier v. Katz, 533 U.S.
194 (2001). First, the Court must determine whether the plaintiffs
have shown a violation of a constitutional right.
Id. at 201.
second inquiry requires the Court to consider "whether the right at
issue was 'clearly established' at the time of the defendant's
Pearson v. Callahan, 555 U.S. 223 (2009).
Although the Supreme Court has left to the district court's
discretion the sequence for undertaking these two inquiries, the
Supreme Court has increasingly indicated a preference for first
considering whether a purported right was clearly established by
prior case law "without resolving the often more difficult question
whether the purported right exists at all."
Reichle, 132 S.Ct. at
2093 ("This approach comports with our usual reluctance to decide
constitutional questions unnecessarily."); Camreta v. Greene, 131
S.Ct. 2020, 2031 (2011) (observing that "our usual adjudicatory
rules suggest that a court should forbear resolving this issue")
(emphasis in original); Pearson, 555 U.S. at 238-39 (listing
circumstances in which courts might be best served to bypass the
first step of the Saucier process, such as "when qualified immunity
is asserted at the pleadings stage, the precise factual basis for
the plaintiff's claim or claims [is] hard to identify").
In other words, qualified immunity "protects all but the
plainly incompetent or those who knowingly violate the law, so we
do not deny immunity unless existing precedent must have placed the
statutory or constitutional question beyond debate."
Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011) (en banc) (internal
quotations, citations, and footnotes omitted).
Once a defendant
has invoked the defense of qualified immunity, the burden shifts to
the plaintiff to show that the defense is unavailable.
Montgomery, 569 F.3d 214, 217-18 (5th Cir. 2009); McClendon v. City
"Although qualified immunity is 'nominally an affirmative defense,'
the plaintiff bears a heightened pleading burden 'to negate the
Newman v. Guedry, 703 F.3d 757,
defense once properly raised.'"
761 (5th Cir. 2012) (quoting Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008)).
The plaintiffs request relief under Federal Rule of Civil
Procedure 56(d), contending that further discovery–particularly the
depositions of the arresting officers and Tracy Allo, who attested
to the 911 call, radio transmission, and call for service report–is
needed to decide the question of qualified immunity.2
information "by affidavit or declaration." In response, "the court
may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order."
FED. R. CIV. P. 56(d). "The
nonmoving party must show how the additional discovery will defeat
the summary judgment motion, that is, will create a genuine dispute
as to a material fact, and may not simply rely on vague assertions
that additional discovery will produce needed, but unspecified
Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,
1267 (5th Cir. 1991) (internal quotation and citation omitted).
Rule 56(d) rulings lie within the district court's sound, but "not
entirely unfettered," discretion.
The plaintiffs already have the recording of the robbery
victim's call to police, the dispatcher's report of the incident
over the police radios, and the officers' radio communications
while on the scene.
demonstrated need for discovery against the burden it will place on
the opposing party tips in favor of denial.
The Supreme Court
One of the purposes of the Harlow qualified immunity
standard is to protect public officials from the
"broad-ranging discovery" that can be "peculiarly
disruptive of effective government." For this reason, we
have emphasized that qualified immunity questions should
be resolved at the earliest possible stage of a
Thus, on remand, it should first be
determined whether the actions the Creightons allege
Anderson to have taken are actions that a reasonable
officer could have believed lawful. If they are, then
Anderson is entitled to dismissal prior to discovery. If
they are not, and if the actions Anderson claims he took
are different from those the Creightons allege (and are
actions that a reasonable officer could have believed
lawful), then discovery may be necessary before
Anderson's motion for summary judgment on qualified
immunity grounds can be resolved. Of course, any such
discovery should be tailored specifically to the question
of Anderson's qualified immunity.
Anderson v. Creighton, 483 U.S. 635, 668 n.6 (1987) (internal
Here, viewing the facts in the light most favorable to the
plaintiffs, the actions taken by the officers were arguably an
affront, but not unreasonable.
Thus, the officers are entitled to
discovery is relevant to the probable cause determination; it could
help the Court better understand what the officers knew at the
time. Depositions would also provide greater specificity as to the
force used and the officers' reasons for using it, the plaintiffs
Ms. Allo's deposition would reveal the meaning of police
codes used throughout the radio transmissions.
discovery could lead to a genuine dispute as to material facts.
The simple facts of this case are not disputed.3
The parties do
not dispute the content of the 911 call and police dispatch that
provided the officers with probable cause to stop the plaintiffs'
they do not dispute where the children were found or
that Jakyren matched generally the description of one of the
perpetrators; they do not dispute the amount of force used; and
they do not dispute that the younger children ran away from the
police or that Jakyren was resisting arrest.
Because "[t]he basic
thrust of the qualified-immunity doctrine is to free officials from
the concerns of litigation, including avoidance of disruptive
discovery," the officers' immunity claim warrants a ruling on their
motion for summary judgment without further discovery. Ashcroft v.
Iqbal, 556 U.S. 662, 685 (2009).
It is for this same reason that the Court finds that any
factual dispute is immaterial. The plaintiffs submit a list of
facts allegedly in dispute, including, for example, whether the
children matched the description of the robbers, what information
the victim provided to the police, or what direction the children
were running in. The facts, however, are not disputed. The Court
has the audio recordings of the description and the call to the
police. The defendants admit, also, that the children were not
running towards Veterans Boulevard.
Feliciana Sheriff's Dept., 228 F.3d 388, 395 (5th Cir. 2000)
The Court will take each officer and each
claim in turn.
A. Unlawful Seizure
"Whether an arrest is illegal hinges on the absence of
Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir.
The question is whether a "reasonable officer could have
believed plaintiff's arrest to be lawful, in light of clearly
possessed at the time."
Anderson, 483 U.S. at 638.
underscores that a mistaken but reasonable belief as to the
existence of probable cause is allowed.
Baker v. McCollan, 443
U.S. 137, 144-45 (1979).
i. Officer Frumveller
What Frumveller knew was that a Kenner man had called the
police after being hit in the face and robbed of his cell phone by
"three black male juveniles."
He knew that one was wearing a red
and white t-shirt and that the group was running towards Veterans
Boulevard, necessarily crossing 27th Street.
He then spotted a
group of three black children on 27th Street, and one was wearing
a red, white, gray, and black striped polo shirt.
plaintiffs admit that Jakyren matched, for the most part, the
description given by the dispatcher.
He was the same race, age,
and sex of the perpetrator, and he was wearing what could generally
be described as a red and white shirt.
The stop of Jakyren was
supported by probable cause.
ii. Officer Coll
The same analysis as to Officer Frumveller applies to Officer
He likewise had probable cause to believe that Jakyren had
committed a crime, and stopping him to question was reasonable.
iii. Officer Rappold
The Supreme Court distinguishes between two forms of seizure,
each of which garners a different level of scrutiny.
may detain an individual briefly for investigatory purposes if,
suspicion based on specific and particularized facts that the
person is involved in criminal activity.
1, 21-22 (1968).
Terry v. Ohio, 392 U.S.
The Terry inquiry involves examining whether the
initial action was justified and, then, determining whether any
subsequent action was reasonably related in scope to either the
circumstances that justified the stop or to dispelling a reasonable
suspicion that developed during the stop.
United States v.
Brigham, 382 F.3d 500, 506–07 (5th Cir. 2004) (en banc). The facts
leading to a finding of reasonable suspicion do not have to be
based on a law enforcement officer's personal observation, but can
also arise from the "collective knowledge" of law enforcement
entities, so long as that knowledge gives rise to reasonable
suspicion and was communicated between those entities at the time
of the stop. United States v. Ibarra–Sanchez, 199 F.3d 753, 759-60
(5th Cir. 1999).
A detention initially authorized by Terry can transform into
the equivalent of an arrest and thus require probable cause.
United States v. Massi, 761 F.3d 512 (5th Cir. 2014).
detention "must be temporary and last no longer than is necessary
to effectuate the purpose of the stop, unless further reasonable
suspicion, supported by articulable facts, emerges."
F.3d at 507. "[T]he investigative methods employed should be the
least intrusive means reasonably available to verify or dispel the
officer's suspicion in a short period of time."
Florida v. Royer,
460 U.S. 491, 500 (1983).
The defendants do not explicitly classify the seizure of the
Desmond children as a Terry stop, referring to it only as a
They do, however, invoke non-arrest case law and argue
that the detention was not unreasonably prolonged.
therefore, that they make an argument that the seizure was a Terry
stop, and to the extent that they do, the Court agrees.
attempting to flee, the children were held in the back of a police
car while the robbery victim was brought to the scene to make an
When he could not positively
identify the children, they were released to their parents.
was absolutely proper.
There is no allegation that the children
were detained for a long period of time; they were not transported
Allowing the victim to see them for identification was
the least intrusive means to determine that they were not involved
in the robbery.
Thus, their detention qualifies as a Terry stop,
requiring only a reasonable suspicion of involvement in criminal
activity, not probable cause.
Cf. Hayes v. Florida, 470 U.S. 811,
817 (1985) ("[T]he Fourth Amendment would permit seizures for the
purpose of fingerprinting, if there is reasonable suspicion that
the suspect has committed a criminal act, if there is a reasonable
basis for believing that fingerprinting will establish or negate
the suspect's connection with that crime, and if the procedure is
carried out with dispatch.").
Officer Rappold insists that he heard the robbery
perpetrators described over the radio as "three black juveniles,"
one wearing a red and white shirt.
That he then heard one of the
first responding officers report that two of the suspects were
fleeing down 27th Street.
That he saw two black juveniles running
down the street, so he stopped his car and got out.
And that he
detained them without incident and put them in the back of his car.
A short time later, another officer brought the robbery victim to
the scene, and he could not identify the children.
The plaintiffs contend, however, that the description over the
radio was not "three black juveniles" but rather "three black male
juveniles," and no reasonable officer could have found that Lanyla
and Devin Desmond fit the description of "black male juveniles."
Lanyla was an eleven-year-old girl, and Devin was a small, nineyear-old boy.
As to Devin, despite his young age and small size, he does fit
literally the description broadcast, which is of record.
Rappold did not hear the victim's description of the group of
children as "teenagers;" he heard only the police dispatcher who
called them "juveniles." That Devin had already been identified as
a suspect by a first responding officer who reported that he was
fleeing from police further supports a finding of a reasonable
The description, of course, does not fit Lanyla.
description, running away from the police near the scene of the
robbery, and because the police were operating off of a bare bones
description by a flustered victim who was robbed outside in the
dark, the Terry stop was supported by a reasonable suspicion.
B. Excessive Force
To defeat summary judgment, the plaintiffs must show genuine
disputes of material fact about whether (1) an officer violated an
individual's constitutional right against excessive force; and (2)
the officer's conduct was objectively reasonable in light of
clearly established law at the time of the conduct.
of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
Poole v. City
must show genuine disputes of material fact about both prongs.
succeed on an excessive force claim, the plaintiffs must show "(1)
an injury, (2) which resulted directly and only from the use of
force that was clearly excessive, and (3) the excessiveness of
which was clearly unreasonable."
Manis v. Lawson, 585 F.3d 839,
Whether force was reasonable is an objective inquiry.
Graham v. Connor, 490 U.S. 386, 397 (1989).
In other words, the
reasonableness of an officer's use of force "must be judged from
the perspective of a reasonable officer on the scene, rather than
Indeed, "[t]he calculus of reasonableness must embody
allowance for the fact that police officers are often forced to
uncertain, and rapidly evolving–about the amount of force that
necessary in a particular situation."
Id. at 396-97.
Graham instructs the Court to consider: (1) the severity of
the crime at issue; (2) whether the suspect posed an immediate
threat to the safety of the officer or others; and (3) whether the
suspect was actively resisting arrest or attempting to evade arrest
Id. at 396.
This list is not exclusive, however, and
the Court may examine the totality of the circumstances.
i. Officer Frumveller
Officer Frumveller contends that he physically took Jakyren to
the ground in an effort to detain him, as he was trying to run to
a nearby residence; the plaintiffs contend that he "threw Bissant
to the ground."
The plaintiffs admit that the boy was not
following the officer's commands.
They contend, however, that he
did not pose a threat, that he did not know how to react because of
his autism and intellectual disability.
The Court does not
discount the fear and surprise that the boy was experiencing when
Officer Frumveller was yelling at him.
It was not, however,
objectively unreasonable for Frumveller to respond to the boy's
failure to obey commands by taking him to the ground.
Officer Frumveller is immune from suit for his actions.4
ii. Officer Coll
Officer Coll contends that his tasering the boy was reasonably
proportionate to the situation faced by the officers. The officers
contend that Jakyren was on the ground, concealing his hands under
his body, and that he had previously tried to grab an officer's
Coll's reaction to this "difficult, tense, and uncertain
situation" was to taser Jakyren three times.
Turning to the Graham factors, the Court finds that Coll's use
And nothing of record establishes Frumveller knew or should
have known of Jakyren's condition.
of force was not objectively unreasonable.
Taking the plaintiffs'
version of events as true, as the Court must do at the summary
judgment stage, Jakyren tucked his body to protect himself from the
An unarmed, challenged young boy, he posed no threat to
the officers' safety.
He was not a flight risk, seeing as Officer
Frumveller had already pinned him to the ground.
resisting arrest by his own account.
He was, however,
Although Officer Coll likely
could have effected the arrest without using the Taser, the Court
unreasonable, not whether better or less intense actions could have
or should have been taken.
The answer to the latter question is
But because Jakyren was resisting arrest for the
crime of robbery, two of the three Graham factors are present.
Thus, Officer Coll's actions were not objectively unreasonable, and
he is shielded from liability.
iii. Officer Rappold
The plaintiffs contend that the force Officer Rappold used in
detaining the children was excessive.
They submit that Rappold
pushed up Devin's hands behind his back and grabbed Lanyla to place
her into the police car.5
The defendants counter that any harm the
children suffered was de minimis and thus not actionable.
The plaintiffs contend that because the children's detention
was unlawful, any force used is especially unjustifiable.
legality of the seizure and of the force are two separate
questions, however. See Freeman v. Gore, 483 F.3d 404, 417 (5th
submit that placing the children in the car was objectively
reasonable and did not constitute excessive force.
The injury for an excessive force claim must be more than de
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
The determination of whether a plaintiff's alleged injury is
sufficient to support an excessive force claim is context-dependent
constitutionally permissible under the circumstances."
Blair, 101 F.3d 430, 435 (5th Cir. 1996); see Williams, 180 F.3d at
703 ("In determining whether an injury caused by excessive force is
more than de minimis, we look to the context in which that force
Purely psychological injury can serve as a basis
Mesa v. Prejean, 543 F.3d 264, 272 (5th Cir. 2008)
(citing Tarver v. City of Edna, 410 F.3d 745 (5th Cir. 2005)).
In Freeman v. Gore, the Fifth Circuit reversed the district
court's denial of summary judgment, finding that any force used
against Freeman was not excessive.
483 F.3d 404, 416-17 (5th Cir.
2007) (Dennis, J.). Freeman alleged that "the deputies twisted her
arms behind her back while handcuffing her, 'jerked her all over
the carport,' and applied the handcuffs too tightly, causing
bruises and marks on her wrists and arms."
The district court had
excessive force claim, noting that Freeman had to seek medical
treatment for her injuries.
The Fifth Circuit, however, held that
her injuries were minor, incidental injuries, that did not rise to
a constitutional claim for excessive force.
children may have suffered because of their distasteful experience
with the Kenner police officers, though not to be taken lightly,
does not give rise to a constitutional excessive force claim.
Their being placed in the back of a police car after fleeing from
the police was reasonable, and the manhandling that Devin endured
was minor and incidental to the encounter.
For the foregoing reasons, the plaintiffs' state false arrest
and battery claims fail as well.
unlawful, there is no false arrest.
520, 524 (La. Ct. App. 1987).
Where a detention is not
Toughton v. Kroger, 512 So.2d
Only the use of excessive force
transforms protected use of force into an actionable battery.
Manis v. Zemlik, 96 So.3d 509 (La. App. 5 Cir. 2012).
because the individual officers are not liable, neither is the City
Accordingly, IT IS ORDERED that the defendants' motion for
summary judgment is hereby GRANTED.
The case is DISMISSED.
New Orleans, Louisiana, May 13, 2015
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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