Beasley v. Kelly et al
Filing
43
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/4/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CODY DENARD BEASLEY
:
v.
:
Civil Action No. DKC 10-0049
:
JAMES E. KELLY, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights case is a motion for partial summary judgment filed by
Defendants James E. Kelly, George P. Schaweble, and Donnell F.
Thomas.
(ECF No. 34).
The issues are fully briefed, and the
court now rules pursuant to Local Rule 105.6, no hearing being
deemed
necessary.
For
the
reasons
that
follow,
Defendants’
motion will be granted in part and denied in part.
I.
Background
A.
Factual Background
The parties recite divergently different accounts of the
facts, and both versions will be set forth here.
1.
Plaintiff’s Version
On or about October 21, 2008, Plaintiff Cody Beasley had a
“verbal dispute” with his wife Eresa Beasley at her Maryland
home.
(ECF No. 1 ¶ 11).
Plaintiff subsequently left the home
and, at that time, Mrs. Beasley contacted the police and claimed
that Plaintiff had assaulted her.
(Id. ¶ 12).
Shortly after
leaving the home, Plaintiff realized that he had forgotten his
cell phone at Mrs. Beasley’s home, and he decided to retrieve
it.
(Id. ¶ 13).
When he arrived at the home, Plaintiff saw
several police officers, including Defendants James E. Kelly,
George P. Schaweble, and Donnell F. Thomas, standing outside.
(Id.).
He parked three to four car lengths from Mrs. Beasley’s
home and exited his vehicle.
Immediately
after
(ECF No. 40-1, at 19).
Plaintiff
exited
his
vehicle,
Officer
Kelly approached him and instructed Plaintiff to stop, to place
his left hand on his head, and to turn around and face the
vehicle directly in front of him.
(Id. at 23, 26).
Plaintiff
complied with this request, but Officer Kelly nonetheless rushed
at him, threw him against the car, and punched him in the face.
(Id. at 24).
Officers Schaweble and Thomas then “rush[ed] over”
to Plaintiff and aided Officer Kelly in handcuffing Plaintiff by
placing Plaintiff’s right arm behind his back.
(Id. at 29-31).
The three officers then “slammed [Plaintiff] towards the car
again” and began conducting a search of his pockets – a process
that
Plaintiff
described
as
“abus[ive].”
(Id.
at
39-41).
Throughout the search process, Plaintiff “screamed out” that he
was not resisting arrest.
(Id. at 37).
When the officers had completed their search, Officer Kelly
taunted Plaintiff by asking if he “like[d] to beat on [his]
2
wife,” before grabbing him, slamming him face-first against the
pavement, and kicking and punching him repeatedly.
42).
(Id. at 41-
Officer Schaweble held Plaintiff’s legs down, using his
knees to strike Plaintiff in the back and sides.
45).
(Id. at 43-
At some point, Officer Schaweble instructed the other
officers to “go get the taser,” and Plaintiff again “begged
them” to stop by screaming out “please, I’m not resisting, I’m
not resisting . . . please, stop.”
Although
none
of
the
three
(Id. at 49).
officers
used
a
taser
on
Plaintiff, they subsequently lifted him up and “slammed [him
down] on [his] buttocks.”
(Id. at 49-50).
Officer Kelly then
intentionally and repeatedly leaned on Plaintiff’s handcuffs and
pinned his hands to the ground, causing Plaintiff to scream out
in pain again.
(Id. at 51).1
As a result of these actions,
Plaintiff suffered scrapes on his head, multiple bruises, and
permanent nerve damage in his right hand.
No.
1
¶
16).
Officers
Kelly
and
(Id. at 55-56; ECF
Schaweble
subsequently
attempted to take Plaintiff to police stations in Hyattsville
and Upper Marlboro, but both stations declined to accept custody
1
Mrs. Beasley’s deposition largely supports Plaintiff’s
version of events regarding his encounter with the Defendant
officers. Although she did not see the entire incident, she did
see Plaintiff, who was handcuffed at the time, screaming for
help while multiple police officers kicked him and slammed him
against a car.
(ECF No. 40-2, Eresa Beasley Dep., at 15-16).
Unlike Plaintiff, however, Mrs. Beasley asserts that she saw the
officers tase Plaintiff. (Id. at 16).
3
of
Plaintiff
injuries.
before
he
received
medical
attention
for
his
(ECF No. 1 ¶¶ 18-19).
2.
Defendants’ Version
The
Defendant
events.
They
officers
begin
with
dispute with Plaintiff.
began
after
the
recite
Mrs.
a
different
Beasley’s
version
description
of
of
her
According to Mrs. Beasley, the dispute
couple’s
children
told
her
about
some
inappropriate pictures that they had seen on Plaintiff’s cell
phone.
and
(ECF No. 34-2, at 9).
the
argument
“intense,”
with
between
Mrs.
Plaintiff denied the accusations,
him
and
Beasley
Plaintiff leave her home.
Mrs.
Beasley
ultimately
(Id. at 10).
became
requesting
more
that
Plaintiff initially
exited the home, but as Mrs. Beasley attempted to close the
door,
Plaintiff
pushed
the
(Id.).
closing and reentered.
against
door
to
prevent
it
from
The couple continued to argue,
and Plaintiff “started putting his hands” on Mrs. Beasley and
pushing her around the kitchen, causing her feet to slide across
the floor.
(Id. at 11).
Mrs. Beasley then called 911 and
requested assistance, and Plaintiff left the scene.
(Id. at
12).
The Defendant officers were dispatched to the home.
No.
(ECF
34-1,
this
“unknown
home.
at
3).
trouble,”
(Id. at 12).
When
they
they
spoke
arrived
with
at
Mrs.
the
scene
Beasley
of
outside
her
She told them that a verbal dispute with
4
Plaintiff had become “a little heated” and that Plaintiff had
subsequently “put[] his hands” on her before leaving the home.
(ECF No. 34-2, at 12).
about
the
(Id.).
couple’s
While the officers were taking notes
dispute,
Plaintiff
returned
to
the
home.
Plaintiff exited his vehicle and began approaching the
home with his fists clenched and his keys in one hand.
34-3, Thomas Dep., at 15).
While walking, Officer Thomas heard
him “yelling . . . Why are you doing this?
police.”
(ECF No.
(Id. at 15-16).
Why did you call the
Tyhee Allen, one of Mrs. Beasley’s
neighbors, heard Plaintiff “screaming give me my kids, give me
my kids” during this time.
(ECF No. 41-3, Allen Dep., at 9).
The officers instructed Plaintiff to place both hands on his
head, but he did not comply with this request.
(ECF No. 34-3,
at 16).
Officers
Plaintiff
Kelly,
and
Schaweble,
attempted
to
and
arrest
Thomas
him,
then
with
approached
Officer
Thomas
trying to take Plaintiff’s keys – “the only weapon” the officers
could see – out of his hand.
(Id. at 17).
Plaintiff fought
against the officers, and the officers and Plaintiff fell to the
ground
Officer
in
a
struggle.
Thomas
continued
(Id.
to
at
try
18).
to
During
remove
the
the
struggle,
keys
from
Plaintiff’s hand, while Officers Kelly and Schaweble attempted
“to get [Plaintiff’s] hands behind his back or on his head” and
complete the arrest process.
(Id. at 20).
5
Plaintiff kicked at
Officer Schaweble while Officer Schaweble attempted to restrain
him.
(Id. at 21).
charged
with
As a result of these actions, Plaintiff was
assault
on
a
police
officer,
resisting
disorderly conduct, and disturbing the peace.
4).2
arrest,
(ECF No. 41, at
The prosecutor subsequently decided not to proceed with the
charges and placed them on the stet docket.
(ECF No. 41-1, at
68).
B.
Procedural Background
On January 8, 2010, Plaintiff filed a complaint against
Officers Kelly, Schaweble, and Thomas, as well as against Prince
George’s County.
The complaint alleged six counts against the
Defendant officers: false arrest (count I), false imprisonment
(count
II),
intentional
violations
(count VI).
negligence
infliction
of
the
(count
of
United
(ECF No. 1).
III),
emotional
States
assault
distress
and
(count
(count
Maryland
V),
IV),
and
Constitutions
Counts III-VI were also alleged
against Prince George’s County. (Id.).
Plaintiff moved to dismiss voluntarily count III, and the
court granted his motion.
(ECF Nos. 18-19).
Prince George’s
County subsequently filed a motion to dismiss (ECF No. 4), and a
2
Although not emphasized by the Defendant officers in their
briefs, Mr. Allen did note in his deposition that he saw one of
the officers at the scene “pick [Plaintiff] up and drop[] him
back on the ground” at some point after Plaintiff had been
handcuffed, an action that Mr. Allen described as “uncalled
for.” (ECF No. 41-3, at 8).
6
motion for bifurcation of the trial and stay of discovery (ECF
No.
5).
The
court
rejected
the
County’s
argument
that
the
entire case against it should be dismissed based on a misnomer
in the complaint, but granted the motion to dismiss counts IV
and V on the basis of governmental immunity.
(ECF No. 20).
The
motion for bifurcation and stay of discovery was also granted.
(Id.).
The court entered an initial scheduling order on August
13, 2010, with the deadline for amendment of pleadings set for
September 27, 2010.
(ECF No. 22).
The discovery and motions’
deadlines were subsequently extended to March 23, and April 25,
2011, respectively.
(ECF No. 30).
On April 25, 2011, Officers
Kelly, Schaweble, and Thomas moved for partial summary judgment
(ECF
No.
34),
and
Plaintiff
submitted
a
memorandum
opposing
portions of Defendants’ motion on July 20, 2011 (ECF No. 40).
II.
Standard of Review
Defendant Officers Kelly, Schaweble, and Thomas have moved
for
partial
summary
judgment
pursuant
Federal Rules of Civil Procedure.
to
Rule
56(a)
of
the
A court may enter summary
judgment only if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law.
See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.
2008).
Summary
judgment
is
inappropriate
if
any
material
factual issue “may reasonably be resolved in favor of either
7
party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264
F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
to
prevent
“A mere scintilla of
summary
judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249-50
(citations omitted).
construe
the
favorable
to
facts
the
that
party
Liberty Lobby, 477 U.S. at
At the same time, the court must
are
presented
opposing
the
in
the
motion.
light
See
most
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
III. Analysis
Defendant Officers Kelly, Schaweble, and Thomas have moved
for partial summary judgment in the following ways:
(1) summary
judgment in favor of all officers on Plaintiff’s false arrest,
false
imprisonment,
and
intentional
infliction
of
emotional
distress claims, and (2) summary judgment in favor of Officer
Thomas on Plaintiff’s assault and excessive force claims.
8
(ECF
No.
34-1).
In
his
opposition,
Plaintiff
concedes,
albeit
inartfully, to the entry of judgment in favor of all officers on
the intentional infliction of emotional distress claim and in
favor of Officer Thomas on the assault claim.
1).3
(ECF No. 40, at
The remaining claims will be evaluated in turn.
A.
Summary Judgment Will Be Denied on Plaintiff’s False
Arrest and False Imprisonment Claims
Officers Kelly, Schaweble, and Thomas assert that they are
entitled to summary judgment on Plaintiff’s false arrest and
false imprisonment claims for two reasons.
First, they contend
that Plaintiff’s domestic dispute with Mrs. Beasley provided the
“legal authority and justification to arrest . . . Plaintiff for
the assault on Mrs. Beasley.”
(ECF No. 34-1, at 6).
Second,
they maintain that Plaintiff disturbed the peace by yelling as
he
approached
Mrs.
Beasley’s
home,
additional ground for his arrest.
thereby
providing
(ECF No. 41, at 4).
an
In
response, Plaintiff argues that the domestic dispute could not
have served as the basis for his arrest because he was never
charged for that incident.
(ECF No. 40, at 4).
3
He further
Plaintiff states in his opposition that he “concedes to
the dismissal” of these claims, and he does not request leave to
amend.
(ECF No. 40, at 1).
Indeed, as to the claim for
intentional
infliction
of
emotional
distress,
Plaintiff
explicitly characterizes that claim as “factually unsupported.”
(Id.). These statements, made nearly ten months after the time
for amendment of pleadings had passed, will be construed as
concessions to the entry of judgment against Plaintiff, and the
Defendant officers’ motion on these two claims will be granted.
9
asserts
that
the
Defendant
officers
did
not
observe
him
committing any other criminal offense, thereby depriving them of
legal authority to arrest him.
In
Maryland,
“[t]he
elements
imprisonment are identical.”
(2000).
(Id. at 5).
of
false
arrest
and
false
Heron v. Strader, 361 Md. 258, 264
Both torts require a plaintiff to demonstrate that
another person deprived him of his liberty without consent and
without
legal
justification.
Id.
The
Court
of
Appeals
of
Maryland has explained the concept of “legal justification” as
follows:
When the cases speak of legal justification
we
read
this
as
equivalent
to
legal
authority.
.
.
.
Whatever
technical
distinction there may be between an “arrest”
and a “detention” the test whether legal
justification existed in a particular case
has been judged by the principles applicable
to the law of arrest.
Thus, while the presence or absence of
probable cause to believe that a crime was
committed may be pertinent in some cases
with regard to the lawfulness of the arrest,
the actual element of the tort of false
imprisonment is legal justification rather
than probable cause. To the extent that the
lawfulness of an arrest does not turn upon
probable cause under Maryland law, probable
cause will not be determinative of the legal
justification issue in a false imprisonment
action based on that arrest.
An arrest made under a warrant which appears
on its face to be legal is legally justified
in Maryland, even if, unbeknownst to the
arresting police officer, the warrant is in
fact improper. . . . With respect to
10
warrantless arrests made by police officers
for offenses other than felonies, . . .
different considerations apply.
This Court
has regularly held that a warrantless arrest
by a police officer is legally justified
only to the extent that a misdemeanor was
actually committed in a police officer’s
view or presence. . . . The Court has
consistently held that probable cause is not
a
defense
in
an
action
for
false
imprisonment based upon a police officer’s
warrantless arrest for the commission of a
non-felony offense . . . .
Ashton v. Brown, 339 Md. 70, 120-21 (1995) (internal quotation
marks and citations omitted).
Such legal justification must
exist at the time that the deprivation of liberty occurs, and it
does not turn on developments subsequent to the deprivation of
liberty.
Cf.
(explaining
Collins
that
the
v.
State,
legality
of
322
a
Md.
675,
warrantless
679
(1991)
arrest
is
evaluated at the time of arrest).
It is well-established that the act of arrest constitutes a
deprivation
of
liberty
arrest/imprisonment
(2006).
for
claim.
purposes
of
State
Dett,
v.
evaluating
391
Md.
a
false
81,
94
Maryland courts have long defined an arrest to include
the following:
“the taking, seizing, or detaining of the person
of another (1) by touching or putting hands on him; (2) or by
any act that indicates an intention to take him into custody and
that subjects him to the actual control and will of the person
making the arrest.”
Id. (quoting Bouldin v. State, 276 Md. 511,
515-16 (1976)); see Elliott v. State, 417 Md. 413, 423, 429
11
(2010) (reasoning that a de facto arrest had occurred where four
police
officers
suspects
to
identified
place
their
themselves
hands
in
the
as
police,
air,
and
ordered
subsequently
handcuffed the suspects and forced them to the ground); Bailey
v. State, 412 Md. 349, 371-72 (2010) (noting that “a display of
force
by
a
handcuffs,
is
police
officer,
considered
an
such
as
arrest,”
putting
and
a
person
explaining
in
that
a
uniformed police officer’s physical restraint and search of a
suspect
constituted
an
arrest
(internal
quotation
marks
and
citations omitted)); Grier v. State, 351 Md. 241, 252 (1998)
(finding that an arrest had occurred when two police officers
physically restrained a defendant and placed him on the ground).
Pursuant
to
this
definition,
the
act
of
arrest
–
and
therefore the liberty deprivation to which Plaintiff did not
consent – occurred no later than the time that Officer Kelly
allegedly slammed Plaintiff against the car and placed handcuffs
on
him,
with
Officer
Schaweble
and
Thomas’s
aid.
Indeed,
through these actions, the officers not only seized Plaintiff by
touching him, but also acted in a manner indicating their intent
to take Plaintiff into custody and subject him to their control.
At no point in their memoranda do the Defendant officers set
forth any argument contesting such a conclusion.
To obtain judgment in their favor, the Defendant officers
thus
must
show
that,
as
a
matter
12
of
law,
they
had
legal
justification for Plaintiff’s arrest prior to the act of arrest.
The officers initially rely on Plaintiff’s involvement in the
domestic dispute to justify his arrest, and Plaintiff challenges
this contention because he was never charged for a crime related
to that dispute.
undercut
the
As an initial matter, Plaintiff’s attempt to
alleged
legal
authority
for
his
arrest
simply
because he did not face charges for that dispute must fail.
It
is axiomatic that the validity of an arrest does not turn on a
later
charge
or
conviction
for
the
arrested
crime.
See
Devenpeck v. Alford, 543 U.S. 146, 153-56 (2004); Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979); Jackson v. Parker, 627 F.3d
634, 639-40 (7th Cir. 2010).
Therefore, even though Plaintiff
never faced charges for the domestic dispute, if the Defendant
officers had legal authority to arrest him for his involvement
in that dispute, summary judgment must be granted in their favor
as to Plaintiff’s false arrest and false imprisonment claims.
As noted above, legal justification for false arrest and
false
imprisonment
arrest.
claims
in
Maryland
Ashton, 339 Md. at 120-21.
turns
on
the
law
of
Police officers in Maryland
have statutory authority to arrest a person for committing a
felony
or
misdemeanor
in
their
presence,
for
committing
a
limited number of misdemeanor crimes outside their presence, and
for committing any felony outside their presence if they have
probable cause that the person committed the felony.
13
Md. Code
Ann., Crim. Proc., §§ 2-202 et seq.
It is undisputed that the
domestic dispute at issue here occurred prior to the Defendant
officers’ arrival at Mrs. Beasley’s home.
There are two statutory sections of the Maryland Code that
the
Defendant
officers
may
invoke
to
attempt
Plaintiff’s arrest based on the domestic dispute.
to
support
The first is
Section 2-204 of the Maryland Criminal Procedure Code, which
permits police officers to make warrantless arrests for domestic
abuse in specified circumstances.
Asserting that section 2-204
permits a “police officer without a warrant . . . to arrest a
person for domestic abuse if a report to the police is made
within 48 hours of the alleged incident,” the Defendant officers
maintain
that
satisfied
arrest
their
this
interview
statutory
Plaintiff.
with
section,
Their
Mrs.
thereby
statement,
Beasley
enabling
however,
clearly
them
to
misconstrues
section 2-204 and ignores the statutory requirements that must
be satisfied before police officers may arrest a person for
domestic abuse.
This section provides that warrantless arrests
for
domestic
misdemeanor
abuse
are
permissible
only
following situation:
(1)
the police officer has probable cause
to believe that:
(i)
the person battered the person’s
spouse or another person with
whom the person resides;
(ii)
there is evidence of physical
injury; and
14
in
the
(iii)
unless the person is arrested
immediately, the person: 1. may
not be apprehended; 2. may cause
physical
injury
or
property
damage to another; or 3. may
tamper with, dispose of, or
destroy evidence; and
a report to the police was made within
48 hours of the alleged incident.
(2)
Md.
Code
probable
Ann.,
Crim.
cause
to
Proc.,
exist
§
2-204.
“where
the
Maryland
facts
and
courts
find
circumstances
within the officers’ knowledge and of which they had reasonably
trustworthy information are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has
been . . . committed by the person to be arrested.”
417
Md.
at
431.
To
make
this
showing,
the
Elliott,
officers
must
identify “specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant[]
the intrusion.”
Bailey, 412 Md. at 375.
In the present case, assuming arguendo that Mrs. Beasley
made
a
timely
report
to
the
police
and
that
the
Defendant
officers had probable cause to believe Plaintiff had battered
her
and
needed
to
be
apprehended,4
4
the
record
is
devoid
of
Even this proposition is doubtful given the lack of
evidence regarding what the Defendant officers, as opposed to
the 911 dispatcher, were told about the dispute between
Plaintiff and Mrs. Beasley.
Indeed, the officers concede that
they were not aware of the discussion that had occurred between
Mrs. Beasley and the dispatcher, stating that they arrived at
15
information
demonstrating
physical injury existed.
probable
cause
that
evidence
of
Mrs. Beasley’s deposition states that
Plaintiff pushed her, causing her to slide around the kitchen
floor because she was wearing heels, but it neither mentions any
physical
injury
resulting
from
this
altercation
nor
suggests
that any such injury was visible to the Defendant officers.
Indeed, Mrs. Beasley states only that she told the officers that
her argument with Plaintiff had become “a little heated” and
that Plaintiff had “put[] his hands” on her.
12).
Officer
information
Thomas’s
demonstrating
deposition
that
cannot
rely
similarly
Mrs.
physical injury during the dispute.
contains
Beasley
suffered
no
any
The Defendant officers thus
upon
section
2-204
as
legal
arrest
Plaintiff’s
(ECF No. 34-2, at
because
they
have
set
justification
forth
no
for
specific,
articulable facts from which evidence of physical injury could
reasonably be inferred.
The second statutory section relevant to Plaintiff’s arrest
based on the domestic dispute is Section 3-202 of the Maryland
Criminal Law Code.
that
they
committed
had
a
Here, the officers would have to maintain
probable
felony
arrived at the home.
cause
assault
to
believe
against
Mrs.
that
Plaintiff
Beasley
before
had
they
Once again, the officers fail to make this
her home in response to an “unknown trouble.”
3).
16
(ECF No. 34-1, at
showing.
Maryland law defines felony assault narrowly, and this
definition includes only assaults that cause or attempt to cause
serious physical injury and assaults with a firearm.5
undisputedly
indicates
that
no
firearm
was
The record
involved
in
the
domestic dispute between Plaintiff and Mrs. Beasley, and the
facts simply do not support the conclusion that serious physical
injury could have resulted when Plaintiff pushed his wife in the
kitchen.
Indeed,
given
that
the
officers
responded
to
an
“unknown trouble,” (ECF No. 34-2, at 3), it appears that the
only evidence of any physical contact between Plaintiff and Mrs.
Beasley
was
Mrs.
Beasley’s
statement
to
Plaintiff had “put[] his hands” on her.
statement
simply
was
probable
not
enough
cause
to
to
arrest
the
officers
(Id. at 12).
provide
the
Plaintiff
that
This
Defendant
officers
with
for
felony
assault.
Cf. Lee v. O’Malley, No. WDQ-05-0897, 2007 WL 5272026,
at *2-3 (D.Md. June 25, 2007) (finding probable cause to arrest
a suspect for felony assault where the victim, who was visibly
injured, told police that the suspect regularly hit her, had
severely beaten her earlier that week, and that she feared for
5
The statutory definition of assault encompasses the common
law crimes of assault and battery. Md. Code Ann., Crim. Law, §
3-201(b).
“Serious physical injury” means injury creating a
substantial risk of death or causing permanent or long-term
disfigurement or loss/impairment of the function of a bodily
member or organ. Id. § 3-201(c).
17
her
life);
Abrams
v.
Balt.
Cnty.,
No.
RDB
04-530,
2006
WL
508093, at *1, 7 (D.Md. Feb. 27, 2006) (concluding that police
officers
had
probable
cause
to
arrest
a
suspect
for
felony
assault where a witness called 911 to report that a man was
kicking a woman and officers arrived at the scene to find the
woman lying on the sidewalk and the suspect speeding away).
The
only
remaining
legal
justification
asserted
by
the
officers for Plaintiff’s arrest is disturbance of the peace, a
misdemeanor that the officers contend occurred in their presence
and for which Plaintiff was subsequently charged.
This alleged
justification, however, also fails based on the facts construed
in the light most favorable to Plaintiff.
the
peace
by,
among
other
things,
A person may disturb
“fail[ing]
to
obey
a
reasonable and lawful order” from a police officer or “making an
unreasonably loud noise” in a public place.
Crim. Law, § 10-201(c)(3), (5).6
Md. Code Ann.,
No probable cause would exist
to arrest Plaintiff for disturbing the peace at the moment of
arrest because, according to Plaintiff, the officers arrested
him while he was complying with Officer Kelly’s order to place
his left hand on his head and before he had a chance to make any
6
In Maryland, the crime of disturbing the peace includes
the related crime of disorderly conduct. Id.
18
noise at all.7
According to Plaintiff’s deposition, he uttered
his first words – “scream[ing] out that [he] was not resisting”
-
only
after
Because
the
justification
the
officers
Defendant
for
had
completed
officers
Plaintiff’s
the
have
arrest,
as
act
not
a
of
arrest.
shown
matter
of
legal
law,
summary judgment on this claim will be denied.
B.
Summary Judgment in Officer Thomas’s Favor on
Plaintiff’s Excessive Force Claim Will Be Denied
Officer
Thomas
also
moves
for
summary
judgment
as
to
Plaintiff’s excessive force claim in count VI of the complaint.8
7
Although not asserted by the Defendant officers as a basis
for the act of arrest, a similar result must also obtain
regarding the charges for resisting arrest and assault on a
police officer. According to Plaintiff’s version of events, not
only did Plaintiff comply fully with the officers’ instructions
during the incident, but the act of arrest occurred before the
basis of such charges could have arisen.
8
Count VI of Plaintiff’s complaint alleges violations of
the Fourth, Fifth, and Fourteenth Amendments, with Plaintiff
appearing to assert Fourth Amendment violations for both
excessive force and search/seizure in the absence of probable
cause.
(ECF No. 1 ¶¶ 47, 53).
While Officer Thomas only
requests summary judgment on count VI “as that claim relates to
any claim of excessive force” in the initial memorandum, he
appears to expand significantly the scope of this argument in
reply to Plaintiff’s opposition.
Indeed, the reply broadly
states that “summary judgment should be granted as to Count VI
against Defendant Thomas.”
(ECF No. 41, at 10).
Because
Officer Thomas neither asserted nor supported this broad
argument in the memorandum accompanying the motion for partial
summary judgment, the scope of Officer Thomas’s argument as to
count VI will be limited to Plaintiff’s excessive force claim.
See Chang-Williams v. Dep’t of the Navy, 766 F.Supp.2d 604, 620
n.16 (D.Md. 2011) (“Typically, courts will not consider an
argument raised for the first time in a reply brief.”).
19
He maintains that his only contact with Plaintiff occurred when
Officer Thomas conducted a pat down and search of Plaintiff and
attempted to remove Plaintiff’s keys from his hands.
Under
these facts, Officer Thomas contends that he did not violate
Plaintiff’s Fourth Amendment right to be free from excessive
force
and,
to
the
extent
that
he
did,
qualified
protects him against further suit on this claim.
at 8-11).
immunity
(ECF No. 34-1,
In response, Plaintiff asserts that Officer Thomas’s
liability stems from the fact that he merely stood by while
Officers Kelly and Schaweble viciously beat Plaintiff after his
arrest and search.
(ECF No. 40, at 5-6).
At the outset, Plaintiff’s contention that Officer Thomas
is liable because he stood by and watched the alleged beating
must fail.
The United States Court of Appeals for the Fourth
Circuit has recognized “bystander liability” as an independent
cause
of
action
by
which
a
police
officer
may
violate
a
plaintiff’s constitutional right to be free from excessive force
when the officer witnesses “a fellow officer’s illegal act . . .
possesses the power to prevent it . . . and chooses not to act.”
Randall v. Prince George’s Cnty., 302 F.3d 188, 203-04 (4th Cir.
2002).
Plaintiff, however, neither asserted this claim in his
complaint nor ever sought leave to amend his complaint.
Indeed,
Plaintiff asserts the claim for the first time in his opposition
to the Defendant officers’ motion for partial summary judgment,
20
which he filed nearly ten months after the deadline for timely
amendment of pleadings.
It is well-established that a plaintiff
may not amend his complaint through argument in a brief opposing
summary judgment.
See Sensormatic Sec. Corp. v. Sensormatic
Elecs.
F.Supp.2d
Corp.,
455
399,
436
(D.Md.
2006)
(citing
Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir. 1996)); cf.
Howie
v.
Prince
George’s
Cnty.,
No.
DKC
2006-3465,
2009
WL
2426018, at *5-6 (D.Md. Aug. 5, 2009) (evaluating a claim of
bystander liability on summary judgment precisely because the
plaintiffs had “[pled] this theory in their amended complaint”).
Plaintiff’s bystander liability claim against Officer Thomas –
the only argument he asserts to avoid summary judgment – thus
will not be considered here.
demonstrates
that,
judgment
a
as
on
For that reason, if Officer Thomas
Plaintiff’s
matter
of
law,
facts,
summary
he
is
judgment
entitled
in
to
Officer
Thomas’s favor on the excessive force claim will be warranted.
Officer Thomas ultimately fails to make such a showing.
Officer
Thomas’s
argument
in
support
of
his
summary
judgment request on Plaintiff’s excessive force claim is twopronged.
He first asserts that his actions did not amount to
excessive force as a matter of law.
He then contends, in the
alternative,
protects
The
that
threshold
qualified
question
in
immunity
a
qualified
him
from
immunity
analysis
generally overlaps with Officer Thomas’s first argument:
21
suit.
that
is,
the
analysis
whether
the
frequently
officer’s
constitutional rights.
begins
conduct
with
a
determination
violated
the
of
plaintiff’s
See Pearson v. Callahan, 555 U.S. 223,
236 (2009) (reasoning that the two-step sequential procedure for
qualified immunity, while not mandatory, “is often appropriate .
. . [and] often beneficial” to follow).
If the court answers
this
analysis
question
in
the
affirmative,
the
would
then
proceed to the second step – whether the constitutional right at
issue was clearly established at the time of the event.
Id. at
232.
Claims of excessive force during the arrest process are
examined under the Fourth Amendment’s objective reasonableness
standard.
process
See Graham v. Connor, 490 U.S. 386, 395 (1989).
requires
balancing
“the
nature
and
quality
of
This
the
intrusion on the individual’s Fourth Amendment interests against
the importance of the governmental interests alleged to justify
the intrusion.”
(citation
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)
omitted).
Relevant
factors
in
making
this
determination include the severity of the crime, whether there
is an immediate threat to the safety of the officer or others,
and whether the subject is resisting arrest or attempting to
flee.
made
See Graham, 490 U.S. at 396.
“from
scene.”
the
perspective
of
Id.
22
a
The determination is to be
reasonable
officer
on
the
It is inappropriate for a court to grant summary judgment
for an excessive force claim when there are disputes regarding
the degree, or existence, of the alleged use of excessive force.
Young v. Prince George's Cnty., 355 F.3d 751 (4th Cir. 2004)
(finding
summary
judgment
precluded
by
existence
of
genuine
issues of material fact as to the degree and reasonableness of
force used by officer).
case.
While
Officer
Such disputes exist in the present
Thomas
asserts
that
his
only
physical
contact with Plaintiff occurred when he attempted unsuccessfully
to remove Plaintiff’s keys from his hand as Plaintiff resisted
arrest and when he conducted a brief pat-down and search of
Plaintiff’s
pockets,
Plaintiff
contends
that
the
contact
was
both more extensive and more forceful.
According to Plaintiff,
Officer
arrest
follows:
Thomas’s
involvement
in
the
process
was
as
Officer Thomas rushed at Plaintiff after Officer Kelly
punched him in the face, aiding Officer Kelly in handcuffing
Plaintiff before the officers collectively “slammed” him against
a
car,
conducted
an
“abus[ive]”
search,
“slammed [him down] on [his] buttocks.”
41, 49-50).9
and
subsequently
(ECF No. 40-1, at 39-
Throughout this time, Plaintiff maintains that he
complied with the officers’ requests and instructions.
9
Although Plaintiff’s deposition does not parse the
injuries that he received among the officers at the scene, it
appears from his statements that he may have suffered bruising
23
These facts – a single, cooperative suspect confronted by
three police officers who slammed him against a car and on the
ground – do not indicate that Plaintiff posed any immediate
threat to anyone at the time of his arrest, nor do they suggest
that Plaintiff resisted arrest.10
such
facts,
courts
have
Indeed, when presented with
previously
held
summary
judgment
in
favor of defendant police officers on excessive force claims to
be improper.
Cir.
2003)
See Bailey v. Kennedy, 349 F.3d 731, 743-44 (4th
(reversing
a
district
court’s
grant
of
summary
judgment in favor of police officers where the officers kicked
as a result of these actions.
The de minimus nature of these
injuries does not impact the validity of Plaintiff’s excessive
force claim when construing the facts in the light most
favorable to Plaintiff.
See Wilkins v. Gaddy, 130 S.Ct. 1175,
1178 (2010) (“Injury and force . . . are only imperfectly
correlated, and it is the latter that ultimately counts.”);
Bibum v. Prince George’s Cnty., 85 F.Supp.2d 557, 563 (D.Md.
2000) (“While the degree of injury inflicted may be evidence of
the amount of force used in effecting the arrest, and thus the
reasonableness of the seizure, it is never determinative of the
question whether there has been a constitutional violation.”
(internal quotation marks and citations omitted)).
10
The determination of probable cause (and thus legal
justification) to arrest Plaintiff for the misdemeanor assault
alleged by Mrs. Beasley under the Fourth Amendment is different
than for the state law claims.
Pursuant to Fourth Amendment
jurisprudence, police officers may arrest individuals for
misdemeanor offenses committed outside their presence, even if
state law prohibits arrests in t.
See Virginia v. Moore, 553
U.S. 164 (2008) (holding that police officers had not violated
the Fourth Amendment when they arrested a motorist for the
misdemeanor of driving with a suspended license, even though
state law prohibited arrest for that offense).
24
the plaintiff and pulled him by the arms even though, among
other reasons, he posed no immediate threat to the officers and
was not resisting arrest at that time); Howie, 2009 WL 2426018,
at *4 (denying summary judgment on an excessive force claim
where
the
cooperated”
facts
indicated
with
the
that
police
the
plaintiff
officers’
had
verbal
“fully
commands).
Construing the facts in the light most favorable to Plaintiff,
Officer
Thomas
may
have
violated
Plaintiff’s
constitutional
right to be free from excessive force during and immediately
following Plaintiff’s arrest.
The
second
prong
of
See id.
the
qualified
immunity
analysis,
whether the constitutional right was clearly established at the
time of the events at issue, does not aid Officer Thomas in
obtaining summary judgment.
The key issue here is whether the
law, when the events in question occurred, “gave the officials
‘fair
warning’
that
their
conduct
was
unconstitutional.”
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313
(4th
Cir.
2006).
“[T]he
contours
of
the
right
must
be
sufficiently clear that a reasonable official would understand
that
what
he
is
doing
violates
that
right,”
Anderson
v.
Creighton, 483 U.S. 635, 640 (1987), but the precise actions in
question “need not have been previously held unlawful . . .
because
general
statements
of
the
law
are
not
inherently
incapable of giving fair and clear warning, and . . . a general
25
constitutional rule already identified . . . may apply with
obvious clarity to the specific conduct in question,” Ridpath,
447 F.3d at 313.
Such is the case in the present action.
It
has long been established that individuals have a right to be
free
from
excessive
force
during
the
course
of
a
seizure.
Graham, 490 U.S. at 394; see Turmon v. Jordan, 405 F.3d 202, 206
(4th Cir. 2005) (finding that the “general right to be free from
unreasonable
seizures
is
as
old
as
the
Fourth
Amendment”).
Plaintiff’s facts demonstrate that Officer Thomas may have used
excessive
force
in
the
context
of
an
arrest.
Because
the
constitutional right to be free from excessive force during a
seizure was clearly established when these events occurred, if
Officer Thomas used excessive force against Plaintiff, qualified
immunity will not protect him from suit on this claim.
IV.
Conclusion
For the foregoing reasons, the Defendant officers’ motion
for partial summary judgment will be granted in part and denied
in part.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
26
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