Horowitz et al v. Sherman et al

Filing 44

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/16/2020. (sat, Chambers)

Case 8:19-cv-02459-DKC Document 44 Filed 11/16/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROBERT HOROWITZ, et al.
:
v.

:

Civil Action No. DKC 19-2459

:
BRUCE SHERMAN, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights case is the motion for summary judgment filed by Kevin Brown
and Nelson Rosales.

The issues have been briefed, and the court

now rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, the motion for summary judgment will be
denied in part and granted in part.
I.

Factual Background
In November 2014, Selzer Gurvitch Rabin Wertheimer & Polott,

P.C. (“Selzer”) obtained a judgment against Cathy and Robert
Horowitz for unpaid legal fees in the Circuit Court for Montgomery
County, Maryland.

An earlier memorandum opinion outlines the

protracted history of Selzer’s collection efforts and it need not
be restated here.

(See ECF No. 30, at 2-4).

Ultimately, after

Cathy and Robert Horowitz failed to comply with an appraiser order
and the Circuit Court found them in contempt, the Circuit Court
issued a body attachment order for the arrest of Robert Horowitz

Case 8:19-cv-02459-DKC Document 44 Filed 11/16/20 Page 2 of 9

on August 2, 2016.

Two officers with the Montgomery County

Sheriff’s Office (“MCSO”), Officer Kevin Brown and Officer Nelson
Morales, arrested Mr. Horowitz outside his residence on August 25,
2016.
Mr. Horowitz (“Plaintiff”) alleges that Officers Brown and
Rosales (collectively, “Defendants”) used excessive force when
effectuating his arrest.1

As alleged in the Amended Complaint,

immediately prior to his arrest, Mr. Horowitz “was returning from
his mailbox with his head down reading his mail.”
¶ 93).

(ECF No. 38,

“He heard several people running toward him.”

see also ECF No. 40-2 ¶ 7; ECF No. 40-3 ¶ 9).

(Id., ¶ 94;

Officer Brown

“stopped right behind [Mr. Horowitz] and when he looked up, still
holding his mail, in full view of his neighbors, [Officer] Rosales
was tackling him head on and repeatedly yelling ‘Horowitz you
mother f---er.’”

(ECF No. 38, ¶ 94).

1

Officer Brown handcuffed

Mr. Horowitz advances this allegation in an amended
complaint. (ECF No. 38). Initially, Cathy Horowitz and Elizabeth
Horowitz (Robert and Cathy’s daughter) were also plaintiffs in
this action.
Robert, Cathy, and Elizabeth Horowitz filed suit
against the MCSO, seven MSCO officers (including Officers Brown
and Rosales), Selzer, and two Selzer attorneys. (ECF No. 1). An
earlier memorandum opinion outlines the procedural history of this
case.
(ECF No. 36, at 2-4).
Ultimately, the court dismissed
Elizabeth Horowitz’s claims against Selzer and the Selzer
attorneys (ECF No. 30, at 11-16), dismissed Cathy Horowitz’s claims
against the MCSO and the seven MCSO officers (ECF No. 30, at 611), and denied Cathy Horowitz’s motion to amend the complaint to
state an excessive force claim against Officers Brown and Rosales
(ECF No. 36, at 6-7). Thus, Robert Horowitz is the sole remaining
plaintiff and Officers Brown and Rosales are the remaining two
defendants.
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Mr. Horowitz tightly. (Id., ¶ 95). Mr. Horowitz “had deep bruises
on his left arm and [sore] wrists from the arrest, which also
triggered his . . . heart condition[.]”
II.

(Id., ¶ 99).

Procedural Background
Plaintiff’s amended complaint was filed on September 4, 2020.

(ECF No. 38).

Defendants filed a motion for extension of time to

file a response to Plaintiff’s amended complaint on September 16,
2020.

(ECF No. 39).

Before the court ruled on the motion for

extension of time, Defendants filed a timely motion for summary
judgment on September 25, 2020.

(ECF No. 40).

The motion for

extension of time will therefore be denied as moot.

Plaintiff

responded in opposition to Defendants’ motion for summary judgment
on October 23, 2020 (ECF No. 42), and Defendants replied on
November 5, 2020 (ECF No. 43).
III. Standard of Review
Summary judgment is appropriate only if “there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Summary judgment is

inappropriate if any material factual issue “may reasonably be
resolved in favor of either 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 (2001).

The existence of only

a “scintilla of evidence” is not enough to defeat a motion for
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summary judgment.

Anderson, 477 U.S. at 251-52.

Instead, the

evidentiary materials must show facts from which the finder of
fact reasonably could find for the party opposing summary judgment.
Id.

The facts are to be taken in the light most favorable to the

party opposing summary judgment, the non-moving party.
IV.

Analysis
Plaintiff alleges that Defendants used excessive force when

they arrested him.

Defendants argue that they are entitled to

qualified

and

immunity

that

summary

judgment

is

therefore

appropriate.
“Qualified

immunity

shields

police

officers

who

commit

constitutional violations from liability when, based on ‘clearly
established

law,’

they

actions were lawful.’”

‘could

reasonably

believe

that

their

Estate of Jones v. City of Martinsburg,

961 F.3d 661, 667 (4th Cir. 2020) (quoting Booker v. S.C. Dep’t of
Corr., 855 F.3d 533, 537-38 (4th Cir. 2017)).

The qualified

immunity analysis requires courts to conduct a two-step inquiry,
asking, in either order: “(1) whether a constitutional violation
occurred; and (2) whether the right was clearly established at the
time

of

the

violation[.]”

Id.

Defendants

argue

that

no

constitutional violation occurred and, even if a constitutional
violation did occur, the law was not clearly established at the
time of the violation.

(ECF No. 40-1, at 6-12).

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A.

Constitutional Violation

Plaintiff alleges that Defendants used excessive force when
they arrested him, in violation of the Fourth Amendment to the
United States Constitution.

“The Fourth Amendment prohibits law

enforcement officers from using excessive or unreasonable force in
the course of making an arrest or otherwise seizing a person.”
Betton v. Blue, 942 F.3d 184, 191 (4th Cir. 2019).

To determine

whether law enforcement officers used excessive force, courts
“consider the facts ‘from the perspective of a reasonable officer
on the scene,’ without the ‘20/20’ vision of hindsight.’”

Hupp v.

Cook, 931 F.3d 307, 321 (4th Cir. 2019) (quoting Graham v. Connor,
490 U.S. 386, 397 (1989)).

Courts therefore “do not consider the

officer’s intent or motivation, [but] ask whether a reasonable
officer in the same circumstances would have concluded that a
threat existed justifying the particular use of force[.]”

Hupp,

931 F.3d at 321-22 (citations and quotation marks omitted).

There

are several factors to consider, including “the severity of the
crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”

Pegg

v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017) (quoting Graham,
490 U.S. at 396).
Defendants argue that their use of force was reasonable. (ECF
No. 40-1, at 7-10).

They concede that “the first factor, the
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severity of the crime, goes to [Plaintiff because] he was arrested
on a body attachment order” but contend that “the remaining three
factors support the minimal amount of force used in the arrest.”
(Id., at 7-8).

The chief flaw with Defendants’ argument is their

repeated failure to construe the evidence in the light most
favorable to Plaintiff.

They assert that Plaintiff “attempted to

evade arrest[,]” that they “were concerned about their safety
should [Plaintiff] gain access to his home, where he could have a
weapon[,]” and that Plaintiff’s injuries were minor.

(Id., at 8).

Although the affidavits of Officers Brown and Rosales support these
assertions, there is a genuine dispute of material fact because
Plaintiff’s affidavit does not.

(Compare ECF No. 40-2 ¶¶ 6-12 and

ECF No. 40-3 ¶¶ 8-14 with ECF No. 42-1 ¶¶ 42-1).2
Construing the facts in Plaintiff’s favor, Officer Rosales
immediately tackled Plaintiff to the ground.
5).

(ECF No. 42-1 ¶¶ 4-

While lying facedown on the ground, Plaintiff’s “left arm was

pinned

under

outstretched[.]”

[his]
(Id.

body

and

¶ 6).

[his]
Officer

right

arm

Rosales

remained
then

“dug

[Plaintiff’s lower left arm out from underneath [him] and [Officer]
Brown easily pulled [his] right arm down and handcuffed [him] very

2

Defendants’ reply brief raises objections to portions of
Plaintiff’s affidavit that are not necessary to resolve the pending
motion for summary judgment. (ECF No. 42, at 3-4). The court
therefore need not resolve the objections now.
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tightly[.]”

(Id., ¶ 7).3

As explained in the earlier memorandum

opinion denying in part and granting in part Plaintiff’s motion
for leave to amend, “[t]ackling a non-threatening, non-resisting
individual to the ground does allege a Fourth Amendment excessive
force claim[]” and “handcuffs applied too tightly can amount to
excessive force in some circumstances[.]”

(ECF No. 36, at 10-12).

Defendants’ arguments that tackling and handcuffing Plaintiff does
not constitute excessive force here rely on their characterization
of Plaintiff as “uncooperative” and noncompliant.

(See ECF No.

40-1, at 9 (“The limited amount of force it took to stop the
uncooperative [Plaintiff] from fleeing and to arrest him was
reasonable.”); id. at 10 (“[H]andcuffing was necessary because
[Plaintiff] demonstrated, when he tried to flee and when he
resisted arrest, that he would not comply with the [Defendants’]
orders.”)).

Genuine disputes of material fact preclude summary

judgment on the first prong of the qualified immunity analysis.
B.

Clearly Established Law

Defendants

argue

that

even

if

tackling

and

handcuffing

Plaintiff violated his “Fourth Amendment rights against excessive
force, qualified immunity protects [them] because the rights were
not clearly established at the time of the arrest.”

3

(ECF No. 40-

The parties dispute which officer or officers placed
handcuffs on Plaintiff, but there are no explicit allegations that
Officer Brown took part in taking Plaintiff to the ground.
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1, at 11-12).

They focus, however, not on the tackling but on the

handcuffing.

(Id. (“But, even if . . . handcuffing [Plaintiff]

did violate his Fourth Amendment rights, [Defendants] would be
entitled to qualified immunity . . . because [Plaintiff] was
arrested in August 2016, and the [United States Court of Appeals
for the Fourth Circuit] held that the right for a ‘calm, compliant’
subject not be handcuffed was not clearly established until it
issued its opinion in [E.W. by and through T.W. v. Dolgos, 884
F.3d 172 (4th Cir. 2018)] in February 2018.”); see also ECF No. 43
(“Yet even if . . . a constitutional violation occurred during
[Plaintiff’s] arrest, qualified immunity still applies to the
handcuffing claim[.]”)).
Defendants make no argument regarding the second prong of the
qualified immunity analysis for Plaintiff’s excessive force claim
based on tackling.

Summary judgment will therefore be denied with

respect to Plaintiff’s excessive force claim based on tackling.
Defendants are correct, however, that the Fourth Circuit held that
the law regarding handcuffing a calm, compliant individual was not
clearly established until February 2018. E.W. by and through T.W.,
884 F.3d at 186-87 (“[W]e cannot conclude that it would have
necessarily been clear to a police officer that handcuffing [the
plaintiff] would give rise to a Fourth Amendment violation.

We

emphasize, however, that our excessive force holding is clearly
established for any future qualified immunity cases involving
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similar circumstances.”).

Summary judgment will be granted with

respect to Plaintiff’s excessive force claim based on handcuffing.
V.

Conclusion
For the foregoing reasons, the motion for summary judgment

will be denied in part and granted in part.

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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