Brown v. City of Shreveport

Filing 31

MEMORANDUM RULING re 23 Memorandum in Opposition to Motion, filed by Lon Brown. Signed by Judge S Maurice Hicks on 12/12/2011. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
LON BROWN

CIVIL ACTION NO. 10-1283

VERSUS

JUDGE S. MAURICE HICKS, JR.

CITY OF SHREVEPORT, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment (Record Document 16) filed by
Defendants, the City of Shreveport, Daniel Lynch, and Henry Whitehorn, Sr. Defendants
move for the dismissal with prejudice of all claims asserted by Plaintiff Lon Brown
(“Brown”). Brown opposed the Motion for Summary Judgment. See Record Document 23.
For the reasons which follow, the Motion for Summary Judgment is GRANTED and all
claims against Defendants are DISMISSED WITH PREJUDICE.
BACKGROUND1
On August 13, 2009 at approximately 8:00 p.m., Officer Daniel Lynch (“Officer
Lynch”) performed a traffic stop in the 1600 block of Ashton Street near the intersection of

1

Defendants filed a detailed Statement of Undisputed Material Facts (Record
Document 16-2). In response, Brown likewise filed a Statement of Undisputed Material
Facts (Record Document 23-1). However, Brown’s filing consists in large part of
conclusory statements unsupported by competent summary judgment evidence. See
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“When evidence exists in the
summary judgment record but the nonmovant fails even to refer to it in the response to the
motion for summary judgment, that evidence is not properly before the district court.”);
Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (“[U]nsubstantiated assertions are not
competent summary judgment evidence.”). The filing further fails to dispute many of the
facts set forth in Defendants’ filing. See F.R.C.P. 56(c)(1)(a) (“A party asserting that a fact.
. . is genuinely disputed must support the assertion by . . . citing to particular parts of
materials in the record.”). Those undisputed facts are accepted as true. Thus, much of the
background section of the instant Memorandum Ruling is drawn from Defendants’
Statement of Undisputed Material Facts.

Pierre Avenue after the driver failed to use her turn signal. See Record Document 16,
Exhibit B; Exhibit D at ¶ 1. When Officer Lynch approached the vehicle to obtain the
driver’s identification, he smelled marijuana and asked the driver, a white female, to step
out of the vehicle and for permission to search the vehicle. See id., Exhibit D at ¶ 2. Upon
obtaining the driver’s consent, Officer Lynch secured the driver in the back seat of his patrol
car while he searched the vehicle. See id., Exhibit D at ¶¶ 2-3. No contraband was found
in the vehicle, but Officer Lynch returned to his patrol car and found that the driver had
spilled a small amount of marijuana on the back seat of his patrol car. See id.
Officer Lynch then obtained the driver’s background information and asked where
she had obtained the marijuana. See id., Exhibit D at ¶ 5. The driver responded that she
had purchased the marijuana from a black male at a convenience store located at the
corner of Pierre Avenue and Garden Street, and described the black male as having long
dreadlocks, a short, “bowed up” stocky build, dark skin, and that he used the nickname
“Bam Bam.” Id. She also stated that the black male drove a gold or tan Pontiac Sunfire
and that she had purchased marijuana from him on two prior occasions. See id. After
recording this information, Officer Lynch received a higher priority call and released the
driver with a warning. See id., Exhibit D at ¶ 6. No citations were issued and no arrest was
made. See id.
Thereafter, Officer Lynch advised Cpl. Jon Flores (“Cpl. Flores”) and Officer Leroy
Bates (“Officer Bates”) that he had stopped a white female who was in possession of
marijuana and that she purchased the marijuana from a man driving a gold or tan Sunfire.
See id., Exhibit D at ¶ 7; Exhibit E at ¶ 1 Officer Lynch requested Cpl. Flores and Officer
Bates keep a lookout for that vehicle. See id.
Page 2 of 21

On August 14, 2009, at approximately 9:45 p.m., Officer Lynch observed a gold
Sunfire parked outside a Fil-A-Sac convenience store located at the corner of Pierre
Avenue and Garden Street,2 and observed a black male fitting the description given by the
white female walking away from the area where the Sunfire was parked. See id., Exhibit
B; Exhibit D at ¶ 8. Officer Lynch requested back-up from Cpl. Flores and Officer Bates
and then pulled into the parking lot of the convenience store, exited his patrol car, and
walked into the store. See id., Exhibit D at ¶¶ 8-9. It is at this point that the audio and
video recordings from Officer Lynch’s patrol car begin to show the events at issue in this
case. See id., Exhibit A (MVS).
Once inside the convenience store, Officer Lynch asked the man fitting the
description, Brown, how he got to the store. See id., Exhibit D at ¶ 9. Brown responded
“that gold car” and pointed to the direction of the Sunfire. See id., Exhibit D at ¶ 9. Officer
Lynch asked Brown to step outside and, once outside, asked Brown to turn around and put
his hands on the wall in order to perform a pat-down for weapons. See id., Exhibit A;
Exhibit D at ¶¶ 9-10.
Brown consented to Officer Lynch looking at his identification and to a brief
pat-down. See id., Exhibit G at 74. Officer Lynch informed Brown that he was being
stopped for suspicion of selling drugs, which Brown denied. See id., Exhibit D at ¶ 11.
Officer Lynch stated that Brown was cussing loudly and was reacting to questions in a
hostile manner at this time. See id. The audio recording supports Officer Lynch’s

2

Both Officer Lynch and Cpl. Flores describe the area in which the Fil-A-Sac
convenience store is located as a high crime area known for frequent drug and gun activity.
See Record Document 16, Exhibit D at ¶ 10; Exhibit E ¶ 2].
Page 3 of 21

statement. See id., Exhibit A. When Officer Lynch asked Brown if he drove the gold
Sunfire parked on the side of the store, Brown denied driving the car and indicated that he
drove a gold Lexus. See id., Exhibit A; Exhibit D at ¶ 11.
Officer Lynch then motioned for Brown to walk towards his patrol car. See id.,
Exhibit A; Exhibit D at ¶ 12. As shown in the video, as Brown, Officer Lynch, Cpl. Flores,
and Officer Bates were walking towards the car, Brown became belligerent, turning towards
Officer Lynch and shaking his finger in Officer Lynch’s face. See id. Officer Lynch then
grabbed Brown’s arm and turned him to the wall outside the front window of the store in
order to handcuff him and keep him subdued while they completed their investigation. See
id. Brown grabbed the window burglar bars and refused to comply with the officers’ verbal
commands to place his hands behind his back. See id. Officer Bates grabbed Brown’s
right arm and attempted to place his right hand behind his back using a rear wrist lock. See
id., Exhibit B. Cpl. Flores observed Brown reach his left hand towards the front waist band
area of his pants. See id., Exhibit E at ¶ 7. Knowing Brown had not been thoroughly patted
down and based on his experience, Cpl. Flores decided to give one distraction strike to
Brown’s face. See id. Brown admits that Cpl. Flores struck him at the time that he
removed his hand from behind his back. See id., Exhibit G at 84-85.
Officer Lynch and Officer Bates brought Brown to the ground in front of the patrol
car. See id., Exhibit A; Exhibit D at ¶ 13. Brown continued to resist and Officer Lynch gave
additional distraction strikes to Brown’s upper body so that he would place his hands
behind his back. See id. The officers can be heard repeatedly instructing Brown to place
his hands behind his back. See id., Exhibit A. Once Officer Lynch and Officer Bates
placed Brown’s hands behind his back, Cpl. Flores reached down and handcuffed him. See
Page 4 of 21

id., Exhibit A; Exhibit G at ¶ 8.
Brown was thoroughly searched, placed in the back of Officer Lynch’s patrol car, and
taken to the Shreveport City Jail where he was booked for resisting an officer in violation
of La. R.S. 14:108. See id., Exhibit D at ¶ 14. Section 108 provides, in pertinent part:
Resisting an officer is the intentional interference with, opposition or
resistance to, or obstruction of an individual acting in his official capacity and
authorized by law to make a lawful arrest, lawful detention, or seizure of
property or to serve any lawful process or court order when the offender
knows or has reason to know that the person arresting, detaining, seizing
property, or serving process is acting in his official capacity.
La. R.S. 14:108(A).
Brown posted bond and was released from jail at approximately 5:00 a.m. the next
morning. See Record Document 16, Exhibit G at 97-100. The district attorney chose not
to prosecute Brown and the criminal charges against him were dismissed. See Record
Document 1. As a result of the August 14, 2009 incident, Brown did not receive any
physical injuries other than bruising/a small “scratch” under his left eye. See Record
Document 16, Exhibit G at 84, 100-102.
On August 13, 2010, Brown filed this lawsuit naming Officer Lynch, the City of
Shreveport (“the City”), and former Chief of Police Henry Whitehorn, Sr. (“Chief Whitehorn”)
as Defendants.

See Record Document 1, ¶ 5.

Brown asserts unlawful detention,

excessive force, unlawful arrest, Monell, and state law claims against these Defendants.
See id. at ¶¶ 18-24. It further appears that Brown asserts a claim under Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194 (1963), for failure to disclose exculpatory evidence. See id. at
¶ 16. Defendants filed the instant Motion for Summary Judgment seeking dismissal with
prejudice of all claims. See Record Document 16.
Page 5 of 21

LAW AND ANALYSIS
I.

Summary Judgment Standard.
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil

Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”3 Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir. 2010). “Rule 56[(a)] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir.2004). If the movant demonstrates the absence of a genuine
dispute of material fact, “the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.” Gen. Universal Sys., Inc. v.
Lee, 379 F.3d 131, 141 (5th Cir.2004). Where critical evidence is so weak or tenuous on
an essential fact that it could not support a judgment in favor of the nonmovant, then
summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir.2005).
Recently, the Fifth Circuit discussed the summary judgment standard applicable in
cases wherein video recordings taken at the scene make “facts evident.” Carnaby v. City
of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Specifically, the Fifth Circuit reasoned:
Although we review evidence in the light most favorable to the nonmoving
party, we assign greater weight, even at the summary judgment stage, to the
3

The Court notes that the newly amended Rule 56 requires that there be “no genuine
dispute as to any material fact,” but this change does not alter the Court’s analysis.
F.R.C.P. 56(a) and advisory committee’s note (emphasis added).
Page 6 of 21

facts evident from video recordings taken at the scene. [The court] need not
rely on the plaintiff’s description of the facts where the record discredits that
description but should instead consider the facts in the light depicted by the
videotape.
Id. (internal citations and quotations omitted).
II.

Qualified Immunity.
“Qualified immunity protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231, 129 S.Ct. 808, 815 (2009). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001),
the Supreme Court mandated a two-step sequence for resolving a government official’s
qualified immunity claim: first, the court must decide whether the facts that a plaintiff has
alleged make out a violation of a constitutional right; and second, if the plaintiff has satisfied
this first step, the court must decide whether the right at issue was clearly established at
the time of defendant’s alleged misconduct. In 2009, the Pearson Court reconsidered the
procedure required in Saucier, concluding:
[W]e conclude that, while the sequence set forth there is often appropriate,
it should no longer be regarded as mandatory. The judges of the district
courts and the courts of appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the
particular case at hand.
Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818 (2009).
“The touchstone of this inquiry is whether a reasonable person would have believed
that his conduct conformed to the constitutional standard in light of the information available
to him and the clearly established law.” Goodson v. Corpus Christi, 202 F.3d 730, 736 (5th
Cir. 2000). “If officers of reasonable competence could disagree as to whether the
Page 7 of 21

plaintiff’s rights were violated, the officer’s qualified immunity remains intact.” Tarver v. City
of Edna, 410 F.3d 745, 750 (5th Cir. 2005).
Defendants argue that Officer Lynch did not violate Brown’s constitutional
rights. See Record Document 16-1 at 8. Nonetheless, they argue that “even if the Court
in hindsight determines that a constitutional violation occurred, Officer Lynch’s actions were
objectively reasonable and he is entitled to qualified immunity for the claims against him.”
Id. at 8. Conversely, relying upon the video evidence, Brown argues that “Officer Lynch
clearly violated [his] constitutional rights,” that “Officer Lynch’s actions were not objectively
reasonable, and that Officer Lynch “is not entitled to qualified immunity for the claims
against him.” Record Document 23 at 5.
III.

Unlawful Detention Claims.
Brown alleges that he was unlawfully detained. He argues that he had been patted

down and no drugs, weapons, or evidence of illegal activity were found. See Record
Document 23 at 5. Thus, he contends, it was unreasonable for Officer Lynch to continue
the detention. See id. Conversely, Defendants argue that Officer Lynch has reasonable
suspicion to stop Plaintiff and fully investigate whether Brown was selling drugs. See
Record Document 16-1 at 1.
The Fourth Amendment guarantees the right to be free from unreasonable searches
and seizures. See U.S. Const. Amend. IV. “The touchstone of the Fourth Amendment is
reasonableness.”

Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421 (1996).

“Reasonableness, in turn, is measured in objective terms by examining the totality of the
circumstances.” Id.
Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), a law enforcement officer
Page 8 of 21

may stop and briefly detain an individual for investigative purposes if he has a reasonable
suspicion that criminal activity is afoot, even if the officer lacks probable cause.
Reasonable suspicion exists when the officers are able “to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant”
that detention. Id. at 21, 88 S.Ct. at 1880. The facts available to the officer at the moment
of the detention, when judged against an objective standard, must “warrant a man of
reasonable caution in the belief that the action taken was appropriate.” Id. at 22, 88 S.Ct.
at 1880. Once the Court has determined that the officer’s action was justified at its
inception, it must “inquire whether the officer’s subsequent actions were reasonably related
in scope to the circumstances that justified the stop.” U.S. v. Brigham, 382 F.3d 500,
506-507 (5th Cir. 2004), citing Terry, 392 U.S. at 19–20, 88 S.Ct. at 1879.
Here, Brown has not disputed any of Defendants’ Statement of Undisputed Material
Facts regarding the August 13, 2009 sequence of events involving Officer Lynch’s traffic
stop of a white female who stated that she had purchased marijuana from a black male at
a convenience store located at the corner of Pierre Avenue and Garden Street.
Additionally, Officer Lynch knew the area where the Fil-A-Sac was located to be a high
crime area where guns are frequently associated with drug activity. He also personally
observed a gold Sunfire parked at the convenience store and saw Brown, who matched the
description given by the white female, leaving the area of the gold Sunfire. All of the
specific and articulable facts, taken together, establish reasonable suspicion that Brown
was engaged in drug activity and Officer Lynch was justified in his initial stop of Brown.
The Court further finds that Officer Lynch’s actions were also related in scope to the
circumstances that justified the initial stop of Brown. The undisputed facts demonstrate
Page 9 of 21

that Officer Lynch walked into the convenience store, saw Brown, and asked him to step
outside. Brown complied with this request. According to Officer Lynch’s affidavit, which
has gone uncontested, once outside Officer Lynch performed a pat-down because Brown
was wearing baggy clothing which could easily conceal a weapon and because the
convenience store was located in an area known for frequent drug and weapon activity.
Officer Lynch was well within the bounds of Terry in performing this pat-down. See Terry,
392 U.S. at 30-31, 88 S.Ct. at 1884-1885 (“We merely hold today that where a police officer
observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous, where in the course of investigating this behavior
he identifies himself as a policeman and makes reasonable inquiries, and where nothing
in the initial stages of the encounter serves to dispel his reasonable fear for his own or
others’ safety, he is entitled for the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him.”). Additionally, it is undisputed that Brown
consented to the pat-down. See Record Document 16, Exhibit G at 74.
After the pat-down, Officer Lynch informed Brown of the reason he was being
detained and asked Brown if drove a gold Sunfire. Brown denied being involved in drug
activity. Moreover, although he had initially stated that he drove “that little gold car” and
pointed in the direction of the Sunfire, Brown told the officers that he drove a “gold Lexus”
after he learned that the Sunfire was tied to drug activity. While Brown contends that the
stop should have ended when he denied criminal activity, the Court notes that the law
enforcement officers were not required to accept Brown’s statements as true. Here, it was
Page 10 of 21

reasonable for Officer Lynch to continue the detention, which was very brief, in order to
examine Brown’s driver's license and vehicle registration and to run them through dispatch.
See U.S. v. Jackson, 517 F.Supp.2d 859, 874 (W.D.La. 2007) (“There is no constitutional
impediment to an officer’s request to examine a driver’s license and vehicle registration .
. . and run a computer check on them.”). While the situation escalated prior to the officers
having an opportunity to complete their investigation, the summary judgment record
indicates that the brief detention of Brown for the purpose of confirming or dispelling
suspicions that he was engaged in drug activity did not constitute an unlawful detention in
violation of the Fourth Amendment. See U.S. v. Melendez, No. 03-41240, 2005 WL
768774, **1 (5th Cir. April 5, 2005) (“[T]he officers were permitted to detain Melendez for
as long as it took to diligently pursue a means of investigation that was likely to confirm or
dispel the officers’ suspicion about drug trafficking.”). Summary judgment in favor of
Defendants is, therefore, granted as to Brown’s unlawful detention claim.4
IV.

Excessive Use of Force Claims.
Brown argues that Officer Lynch and “other unknown Police Officers used

unnecessary and excessive force,” specifically alleging that the officers grabbed him from
behind, threw him to the ground, beat him, punched him in the face, and repeatedly hit and

4

Defendants have presented the expert report of George Armbruster (“Armbruster”),
who has 34+ years of experience as a law enforcement officer, 32+ years experience as
a law enforcement instructor, and 26+ years experience as a law enforcement
administrator. See Record Document 16, Exhibit H. Based on this experience, his
education, and his training, Armbruster concluded that Officer Lynch’s field interview and
pat-down of Brown were “reasonable” and fell “well within the generally accepted guidelines
and training of the law enforcement community.” Id., Exhibit H at 2. His review of the
incident also lead him to conclude that Officer Lynch’s “stop and frisk” was based upon
reasonable suspicion. Id., Exhibit H at 3.
Page 11 of 21

kicked him in the head. See Record Document 1 at ¶ 9. In his opposition to the Motion for
Summary Judgment, Brown again contends that he “was punched and hit by Officer Lynch
and Officer Flores” and that he “was unarmed and attempting to walk away from the
officers when he was violently attacked.” Record Document 23 at 5-6.
In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989), the Supreme Court
reasoned:
Not every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers, violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.
Id. at 396, 109 S.Ct. at 1872. To sustain a claim for excessive force in violation of the
Constitution, a plaintiff must demonstrate “(1) an injury, which (2) resulted directly and only
from the use of force that was clearly excessive to the need; and the excessiveness of
which was (3) objectively unreasonable.” Ikerd v. Blair, 101 F.3d 430, 433-434 (5th Cir.
1996). In judging the objective reasonableness of the use of force, courts must balance
the amount of force used against the need for that force. See id. at 434.
The Court first notes that the video evidence in this matter clearly shows that no
force was used by any officer until after Brown began cursing, turning towards the officers
in what can be described as an aggressive manner, and shaking his finger in Officer
Lynch’s face. See Record Document 16, Exhibit A. Brown also made certain concessions
during his deposition that are material to his excessive force claim. He conceded that the
video, which he agrees is the most accurate evidence of what transpired, does not show
that any officer kicked him. See Record Document 16, Exhibit G at 57; Record Document
Page 12 of 21

23-1 at ¶ 2. Additionally, Brown admitted that he was not hit by any officer until the time
that he let his left arm fall down to his side towards his waistband. See Record Document
16, Exhibit G at 83-84.
Brown must first establish “an injury.” Ikerd, 101 F.3d at 433. He has not met this
burden because he has failed to dispute, as required by Rule 56(c), that he suffered only
a de minimis injury as a result of the incident at issue in this case.5 In Hudson v. McMillian,
503 U.S. 1, 112 S.Ct. 995 (1992), the Supreme Court recognized that a constitutional
violation does not occur every time an officer touches someone. The Fifth Circuit has
addressed the Hudson standard, stating:
In just about every conceivable situation, some amount of force or
contact would be too nominal to constitute a constitutional violation. When
the force used is insufficient to satisfy the legal standard necessary for
recovery, the amount of force is de minimis for constitutional purposes.
The amount of force that is constitutionally permissible, therefore,
must be judged by the context in which that force is deployed. . . .
[W]e believe that the amount of injury required to prevail in an
excessive force action depends on the context in which the injury occurs.
Nonetheless, this circuit currently requires a plaintiff to have suffered at least
some injury. As the Supreme Court has recognized, however, the extent of
injury suffered by a plaintiff is one factor that may suggest whether the use
of force was excessive in a particular situation.
Ikerd, 101 F.3d at 434 -435 (internal citations and quotations omitted).
In this case, the Court has previously set the context of Brown’s injuries. The
incident occurred in a high crime area known for drug and weapon activity. Brown matched
5

The Fifth Circuit has reasoned that “only one inquiry is required to determine
whether an officer used excessive force in violation of the Fourth Amendment” because “[i]n
the fourth amendment context, any force exerted by a law enforcement officer that would
be objectively reasonable under Graham would also be de minimis under Hudson.” Ikerd,
101 F.3d at 434.
Page 13 of 21

the description of an individual who was reported to have sold drugs just the day before at
that very location.

Additionally, the video and other undisputed summary judgment

evidence demonstrates that no force was used until Brown became aggressive and that
he was not hit until he removed his hand from his back and placed it by his waistband.
As to Brown’s injuries, the Court will focus on his own deposition testimony, wherein
he stated:
Q.

. . . Now, did you have any kind of injuries after this?

A.

Basically just like my, I had like a cut under my left eye.

Q.

What was that caused by?

A.

The first officer punching me in my face.

...
A.

. . . It actually was a bruise up under here. Had my whole left cheek
and stuff bruised.

...
A.

If you look at it, it look like it has a bruise right across here and that’s
it. Skin broke.

...
A.

That was like, you could see where the skin was broke right across
there.

...
Q.

. . . [A]fter this incident did you have any bleeding anywhere?

A.

Not that I recall.

Q.

And the only bruise that you know of is the one under your left eye
that we talked about?

A.

Yes.
Page 14 of 21

Record Document 23, Exhibit A at 100-102. The Court further notes that Brown did not
seek medical treatments as result of the injuries he suffered during the incident.
In this context, the Court finds that the bruise and/or scratch suffered by Brown was
not an injury of constitutional significance. See Carthon v. Prator, No. 08-1283, 2009 WL
3347115 *7(W.D. La. Oct. 14, 2009), aff’d, 408 Fed.Appx. 779 (5th Cir. 2010) (“[S]crape
on the forehead is a de minimis injury insufficient to establish a constitutional violation.”).
Brown has failed to raise a genuine dispute of material fact to support the first element of
an excessive force claim, i.e., an injury, and summary judgment in favor of Defendants
must, therefore, be granted.
V.

Unlawful Arrest Claims.
Brown argues he was unlawfully arrested. More specifically, he contends:
[He] had already [been] patted down and nothing was found on him. His
license were [sic] returned to him and he was attempting to walk away from
the officers after he felt that he was free to go. [He] was then accosted and
struck several times by the officers who claim that he was resisting arrest.
There was no underlying offense for which [he] was being arrested.

Record Document 23 at 6. Conversely, Defendants argue that Officer Lynch had probable
cause to arrest Brown for the offense of resisting an officer, in violation of La. R.S. §
14:108. See Record Document 16-1 at 1.
In order to prevail on a constitutional claim of unlawful arrest, or false arrest, Brown
must show that he was arrested without probable cause. See generally Brown v. Lyford,
243 F.3d 185, 189 (5th Cir. 2001). “Probable cause to justify an arrest means facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent person,
or one of reasonable caution, in believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo,
Page 15 of 21

443 U.S. 31, 37, 99 S.Ct. 2627, 2632 (1979). Probable cause is ascertained on the basis
of facts available to the officer at the time of the arrest. See Evett v. DETNTFF, 330 F.3d
681, 688 (5th Cir. 2003). “[A]n officer may be shielded [by qualified immunity] from liability
even if he reasonably but mistakenly concludes that probable cause is present.” Id.
A review of the summary judgment record, namely the video evidence, reveals that
there was probable cause to arrest Brown. Brown was not arrested for the offense of
resisting arrest. Rather, he was arrested and charged with the offense of “resisting an
officer” in violation of La. R.S. 14:108, which provides:
A.

Resisting an officer is the intentional interference with, opposition or
resistance to, or obstruction of an individual acting in his official
capacity and authorized by law to make a lawful arrest, lawful
detention, or seizure of property or to serve any lawful process or
court order when the offender knows or has reason to know that the
person arresting, detaining, seizing property, or serving process is
acting in his official capacity.

La. R.S. 14:108(A). This is a broad statute and specifically includes “opposition or
resistance” to an officer making a “lawful detention.” Id. This Court has previously held
that Officer Lynch had reasonable suspicion to believe Brown was engaged in drug activity
and was lawfully detaining Brown in order to investigate these suspected drug activities.
The video evidence clearly shows that Brown became belligerent and began cursing and
shaking his finger in Officer Lynch’s face. The officers attempted to control the situation
and were met with additional resistance from Brown, who jerked his arms away, grabbed
the window burglar bars, and refused to comply with commands to place his hands behind
his back. See generally Record Document 16, Exhibit D at ¶¶ 12-13; Exhibit E at ¶¶ 6-8.
All of these actions on the part of Brown easily fall within the category of “opposition or
resistance to” an officer making a lawful detention and there was probable cause to arrest.
Page 16 of 21

Additionally, Defendants have presented the expert opinion of George Armbruster, who
stated:
A review of the Louisiana statute on “Resisting an Officer” shows that the
actions of Mr. Brown in offering resistance to these officers when they were
trying to conduct a reasonable investigation based upon information obtained
by Officer Lynch falls within the definition as outlined within the statute. I am
of the opinion that the arrest of Mr. Brown for this violation was reasonable
based upon the totality of the situation.
Id., Exhibit H at 3. Thus, at a minimum, Officer Lynch is entitled to qualified immunity
because the summary judgment evidence demonstrate that Brown’s arrest for resisting an
officer was not unreasonable as a matter of law. See Evett, 330 F.3d at 688 (“[A]n officer
may be shielded [by qualified immunity] from liability even if he reasonably but mistakenly
concludes that probable cause is present.”).

Thus, summary judgment in favor of

Defendants is granted as to Brown’s unlawful arrest claim.
VI.

Monell Claims.
Brown asserts Monell claims alleging that his injuries were caused by unlawful

“customs, policies and practices” of the Shreveport Police Department and the City.
Record Document 1 at ¶ 23. He also alleges that Chief Whitehorn failed to properly train
and/or supervise officers of the Shreveport Police Department. In his opposition, Brown
gives scant attention to his Monell claims, simply stating in conclusory fashion:
The plaintiff’s injuries were caused by the unlawful policies and
practices of the Shreveport Police Department.
Plaintiff has suffered a deprivation of his constitutional rights. Chief
Whitehorn failed to train and supervise employees of the Shreveport Police
Department and plaintiff has suffered a deprivation of his constitutional rights,
as a result of it.
Record Document 23 at 7.
In a Section 1983 lawsuit against a municipality, a plaintiff must show that his
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constitutional injury was the result of official policy, custom, or the act of an official policy
maker. See Monell v. Dep’t of Soc. Servs. of City of NY, 436 U.S. 658, 98 S.Ct. 2018
(1978). The Monell court concluded “that a local government may not be sued under
[Section] 1983 for an injury inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. at 2037-2038.
Here, Brown’s Monell claim fails. Even if the Court assumes that Brown suffered a
deprivation of his constitutional rights, he has not provided competent summary judgment
evidence of an official policy or custom of the Shreveport Police Department or the City
and/or that any alleged constitutional deprivation was caused by such policy or custom.
As reasoned by the Supreme Court,
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the “moving force” behind
the injury alleged. That is, a plaintiff must show that the municipal action was
taken with the requisite degree of culpability and must demonstrate a direct
causal link between the municipal action and the deprivation of federal rights.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 1388,
(1997) (emphasis in original). Likewise, any failure to train/supervise claim against Chief
Whitehorn fails because Brown has offered no evidence of a causal connection between
the alleged failure to train/supervise and his alleged injuries. There is also no record
evidence that former Chief Whitehorn acted with deliberate indifference. See Estate of
Davis ex rel. McCully v. City of North Richland, 406 F.3d 375, 381 (5th Cir. 2005) (“When,
as here, a plaintiff alleges a failure to train or supervise, the plaintiff must show that: (1) the
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supervisor either failed to supervise or train the subordinate official; (2) a causal link exists
between the failure to train or supervise and the violation of the plaintiff’s rights; and (3) the
failure to train or supervise amounts to deliberate indifference.”). Therefore, because
Brown has come forward with nothing more than conclusory allegations of liability,
summary judgment in favor of Defendants is granted as to Brown’s Monell claims.
VII.

Brady Claims.
Brown contends that the City failed to disclose exculpatory evidence in this case.

See Record Document 1 at ¶ 16; Record Document 23 at 6. More specifically, he contends
that there was a Brady6 violation because “the videotape of [his] beating and arrest . . . was
certainly exculpatory evidence that was withheld from the defense.” Record Document 23
at 7.
Brady requires both prosecutors and police investigators to disclose exculpatory
evidence to criminal defendants. See Tennison v. City & County of San Francisco, 570
F.3d 1078, 1087 (9th Cir. 2009). To state a claim under Brady, the plaintiff must allege that
(1) the withheld evidence was favorable either because it was exculpatory or could be used
to impeach, (2) the evidence was suppressed by the government, and (3) the
nondisclosure prejudiced the plaintiff. See Strickler v. Greene, 527 U.S. 263, 281-282, 119
S.Ct. 1936, 1948-1949 (1999).

As to the prejudice prong, the Supreme Court has

reasoned that “strictly speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the suppressed
evidence would have produced a different verdict.” Id. at 281, 119 S.Ct. at 1948 (emphasis

6

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
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added). Additionally, the Court notes that “at its core, Brady seeks to ensure a fair trial, a
trial whose verdict is reliable.” Smith v. Almada, 640 F.3d 931, 942 (9th Cir. 2011), citing
Brady, 373 U.S. at 87-88, 83 S.Ct. at 1197 (“The principle . . . is not punishment of society
for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.” ).
Here, even if the Court assumes for the limited purpose of this Memorandum Ruling
that the videotape was exculpatory and was withheld, Brown’s Brady claim fails because
he cannot show that the alleged nondisclosure prejudiced him. The charges against Brown
were dismissed. There was never a trial out of which a verdict could have been rendered.
Thus, the core concerns and protections of Brady – a fair trial and a reliable verdict – were
simply never implicated in this matter. Summary judgment in favor of Defendants must,
therefore, be granted as to Brown’s Brady claim.
VIII.

Pendent State Law Tort Claims.
In addition to his federal claims, Brown also asserts state law tort claims under

Louisiana Civil Code Article 2315 arising from the same allegations that he was unlawfully
detained and arrested and that Officer Lynch used excessive force during the August 13,
2009 incident. See Record Document 1 at ¶ 22. As to his state law claims, Brown argued
in his opposition:
Plaintiff was unlawfully detained and arrested and Officer Lynch used
excessive force during the August 13, 2009 incident. The actions of Officer
Lynch and others were excessive and unreasonable.
Record Document 23 at 7.
Under Louisiana law, the same standards are used in analyzing state law claims of
false arrest and excessive force as constitutional claims, “namely reasonableness under
the circumstances.” Reneau v. City of New Orleans, No. 03-1410, 2004 WL 1497711, *4
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(E.D.La. July 2, 2004), citing Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977).
Thus, for the reasons discussed previously, the officers’ actions in this case were
reasonable under the circumstances7 and summary judgment in favor of Defendants is
granted as to Brown’s pendent state law claims.
CONCLUSION
Based on the foregoing analysis, the Court finds that Brown’s unlawful detention,
excessive force, unlawful arrest, Monell, Brady, and state law claims fail as a matter of law.
Accordingly, Defendants’ Motion for Summary Judgment (Record Document 16) is
GRANTED and all of Brown’s claims are DISMISSED WITH PREJUDICE.
A judgment consistent with the terms of this Memorandum Ruling shall issue
herewith.
The Clerk of Court is directed to close this case.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 12th day of December,
2011.

7

Based on this experience, his education, and his training, defense expert
Armbruster concluded that “the actions of the officers were reasonable and fall within the
generally accepted guidelines of the law enforcement community.” See Record Document
16, Exhibit H at 2.
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