Brown v. Gulfport Police Department et al
Filing
118
ORDER granting 102 Motion for Summary Judgment; granting 111 Motion to Strike ; denying 114 Motion for Hearing Signed by Chief District Judge Louis Guirola, Jr on 05/23/2012 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KENNETH BROWN
v.
PLAINTIFF
CAUSE NO. 1:10CV405 LG-RHW
GULFPORT POLICE DEPARTMENT, ET AL.
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT AND MOTION TO STRIKE,
AND DENYING MOTION FOR HEARING
BEFORE THE COURT is the Motion for Summary Judgment [102] filed by
Gulfport, Mississippi police officers Jonathan Grimes, Jeremy Hayes, and Alvin
Kingston (the “Officer Defendants”). Additionally, the Court considers the Motion
[111] to Strike filed by the Officer Defendants. The issues have been fully briefed.
Considering the information the Officer Defendants possessed at the time they
stopped and briefly immobilized Brown, they acted reasonably. They are therefore
protected by qualified immunity and entitled to summary judgment.
In reaching this decision, the Court has disregarded the opinions contained in
an affidavit by David Kent, an expert retained by Brown. Kent’s opinions are legal
conclusions or his own interpretation of the facts, and do not assist the Court in
assessing the reasonableness of the Officer Defendants’ actions. The Officer
Defendants’ Motion to Strike [111] Kent’s affidavit will also be granted.
Finally, because the facts related to the traffic stop are readily ascertainable
from the record, the Court denies Brown’s request for a hearing.
PLAINTIFF’S ALLEGATIONS
Brown alleges in his amended complaint that Gulfport police officers Grimes,
Hayes and Kingston used excessive force in effecting a traffic stop, because they
pulled him out of his vehicle and forced him to the ground, causing serious injury.
Brown alleges that the officers were on the lookout for an African-American named
Jimmy Gerald Lowery, who they were informed was driving a 1990 model black
Mustang north on Three Rivers Road. Brown, an African-American, was driving
about three miles south of this point on Three Rivers Road in his blue 1994 model
Mustang. Brown alleges the officers had enough information about Lowery to know
that he was not Lowery, and in fact the dispatcher informed the officers as they
approached Brown’s vehicle that it was registered to Brown. According to Brown,
with this information, the officers could not have reasonably believed he was
engaged in criminal activity. Brown alleges the stop was unjustified and the force
used was excessive, violating his Constitutional rights. His claims against the
Officer Defendants are pursuant to 42 U.S.C. § 1983.
DISCUSSION
1. Qualified Immunity
The Officer Defendants contend they are entitled to qualified immunity from
Brown’s claim of excessive force. In order to invoke the defense of qualified
immunity, the “defendant official must initially plead his good faith and establish
that he was acting within the scope of his discretionary authority. Once the
defendant has done so, the burden shifts to the plaintiff to rebut this defense.”
-2-
Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). To meet defendant’s initial
burden, he must “demonstrate that he acted with a good faith belief that his actions
were within his lawful authority, and that reasonable grounds existed for this belief
based upon objective circumstances at the time he acted.” Douthit v. Jones, 619
F.2d 527, 534 (5th Cir. 1980).
A defendant is then entitled to qualified immunity, unless (1) the plaintiff
alleges that the defendant violated a constitutional right, and (2) the plaintiff
proves that the defendant’s conduct was objectively unreasonable. Salas, 980 F.2d
at 305-06. A defendant’s conduct will be considered objectively unreasonable if a
reasonable official would understand that his conduct violates that constitutional
right. Id. at 310. If reasonable officers could disagree over the lawfulness of the
conduct, then a defendant is entitled to qualified immunity. Id. The officer’s
conduct is viewed in light of the clearly established law at that time. Hare v. City of
Corinth, 135 F.3d 320, 326 (5th Cir. 1998).
2. The Evidence and Arguments
The Officer Defendants argue that they acted appropriately based on Brown’s
actions and the information they had at the time of the stop. Officer Kingston
provides an affidavit stating that he came into contact with Brown shortly after
hearing the dispatcher broadcast a BOLO, relaying a report of a domestic assault at
4:45 p.m. on August 10, 2009. (Def. Mot. Summ. J. Ex C, ECF No. 102-3).
According to the report, a black male had assaulted the victim and pointed a gun
with a pink grip in her face. (Id. at 3 (¶13)). The male had then fled in an older
-3-
model blue and black Mustang, traveling North on Three Rivers Road. (Id. at 3-4
(¶13, 14)). When Officer Kingston was within a couple of miles of the area of the
assault, he observed Brown’s vehicle at the intersection of Three Rivers Road and
Seaway Road. As it appeared to be a blue and black Mustang, and it was driven by
a black male, Officer Kingston decided to make a stop. (Id. at 5 (¶18)).
Officer Kingston states he did not know who was in the vehicle he had
stopped. He was “first and primarily focused on locating any weapons, so everyone
would be safe.” (Id. at 7 (¶31)). Officer Kingston gave instructions to the driver to
have his hands in view. (Id. at 6 (¶23)). Brown complied, but then moved his inside
hand toward his waist. (Id. (¶24)). Because Brown could have been reaching for a
weapon, Kingston ordered him again to raise his hands. (Id.). Brown complied.
Kingston held onto Brown’s left arm and released Brown’s seatbelt. (Id. (¶25). As
Brown exited the vehicle, he asked what was going on. (Id. (¶26)). This apparently
made him even more suspicious to Officer Kingston, who then told him to get on the
ground. (Id.). “Within a few seconds and in one fluid motion, the driver left the
driver’s seat and got on the ground.” (Id.). The officers checked Brown’s car and
person for weapons. Finding none, Officer Kingston assisted Brown up off the
pavement. (Id. at 6-7 (¶28)). Officer Kingston provided a video recording of the
incident taken from his patrol car. (Def. Mot. Summ. J. Ex. 2 to Ex. C,
conventionally filed).
Officer Jeremy Hayes submitted an affidavit describing his involvement in
the traffic stop. (Def. Mot. Summ. J. Ex. D, ECF No. 102-4). He heard the
-4-
dispatcher’s call, and Kingston’s subsequent report that he was behind a vehicle
matching the reported get-away car. (Id. at 3 (¶12)). He arrived at the scene just
as Kingston was attempting to secure the driver. (Id. (¶14)). Hayes focused on
locating any possible weapons in or around the vehicle. (Id. (¶15)). Hayes only
touched Brown to help him get up off of the pavement. (Id. at 4 (¶17)). He did not
hear Brown complain of any injuries. (Id. (¶18)).
Officer Jonathan Grimes also submitted an affidavit. (Def. Mot. Summ. J.
Ex. E, ECF No. 102-5). He came to the scene of the traffic stop when Kingston and
Hayes were approaching Brown’s vehicle. He provided back-up assistance, and only
touched Brown to push his arm out of the traffic lane with his foot. (Id. at 4 (¶19)).
Officer Grimes provided a video recording of the incident taken from his patrol car.
(Def. Mot. Summ. J. Ex. 1 to Ex. E, conventionally filed).
The video recordings are consistent with the Officer Defendants’ affidavits,
with the exception that Officer Grimes can be seen kneeling either on or very close
to Brown’s shoulder area after moving Brown’s arm. Also, the dispatcher can be
heard stating that the vehicle is registered to Kenneth Brown just as Officer
Kingston reaches the driver’s side door of Brown’s vehicle, and while Officer Grimes
is still inside his police vehicle.
In opposition to the Officer Defendants’ assertion of qualified immunity,
Brown submitted his own deposition testimony in which he testified his Mustang
was one tone - blue - “but the back has like a green trunk lid on it.” (Pl. Resp. Ex. 1,
at 122, ECF No. 105-1). Significantly, Brown did not provide any testimony or
-5-
other summary judgment evidence about the actual incident, or the consequences of
the incident, in opposition to the summary judgment motion.
Brown did provide a lengthy expert report under an affidavit by David Kent,
a retired First Deputy Chief from the New Orleans Police Department. (Pl. Resp.
Ex. 2, ECF No. 105-2). Kent found that the police officers used faulty discretion,
along with “unnecessary and excessive physical force” in the traffic stop, which
“constituted a violation of [Brown’s] Fourth Amendment Rights.” (Pl. Resp. Ex. 2,
at 19, ECF No. 105-2). The Officer Defendants move to strike the affidavit and all
attachments. They contend that Kent cannot make a proper affidavit concerning
the incident because he has no personal knowledge of it. They further argue that
the affidavit contains numerous assertions of opinion based on conjecture or facts
not in the record. In addition, the Officer Defendants contend that Kent has judged
the reasonableness of their actions from Brown’s perspective, rather than from the
perspective of a reasonable officer at the scene, as is required for a qualified
immunity analysis.
a. Brown Has Alleged a Violation of a Constitutional Right
The first step of the qualified immunity analysis is determining whether the
plaintiff has alleged the violation of a Constitutional right. The Fourth Amendment
is implicated by Brown’s allegations of excessive force. “All claims that law
enforcement officers have used excessive force – deadly or not – in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard[.]” Graham v.
-6-
Connor, 490 U.S. 386, 395 (1989). Whether a seizure is reasonable under the
Fourth Amendment depends not only upon whether the seizure itself is reasonable,
but also upon how the police seize the individual. Tennessee v. Garner, 471 U.S. 1,
7-8 (1985). The Fourth Amendment’s prohibition of the use of excessive force by the
police against seized persons was clearly established prior to the 2009 incident at
issue in this case.
b. Brown Has Not Shown the Officers’ Conduct Was Objectively
Unreasonable
To determine the objective reasonableness of the actions of Officers Kingston,
Grimes and Hayes, the second step in the qualified immunity analysis, the Court
must consider whether “a reasonable officer could have believed [his conduct] to be
lawful, in light of clearly established law and the information [he] possessed.”
Anderson v. Creighton, 483 U.S. 635, 641 (1987). The Court is to balance “‘the
nature and quality of the intrusion on the individual’s Fourth Amendment interests’
against the countervailing governmental interests at stake.” Graham, 490 U.S. at
396 (quoting Garner, 471 U.S. at 8). The Court is to pay careful attention to the
facts and circumstances of the case, including the severity of the crime at issue,
whether the suspect posed an immediate threat to the safety of the officers or
others, and whether he was actively resisting arrest or attempting to evade arrest
by flight. Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998). It is
important to avoid using hindsight, and “consider the fact that police officers are
often forced to make split-second judgments - in circumstances that are tense,
-7-
uncertain, and rapidly evolving - about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396-97. “If an officer reasonably, but
mistakenly, believed that a suspect was likely to fight back, for instance, the officer
would be justified in using more force that in fact was needed.” Saucier v. Katz, 533
U.S. 194, 205 (2001).
I.) The Affidavit of Plaintiff’s Expert, David Kent
The Court turns first to the question of whether the affidavit of David Kent,
Brown’s expert on the issue of police procedure, should be considered, or stricken.
Kent expresses the opinion that the Officer Defendants used excessive force when
they stopped Brown. He states:
Assuming the three over-anxious officers could read license plate
numbers and are not black/blue color impaired, their over-response
was unnecessary. . . . At least one or two of the three officers should
have recognized they lacked probable cause in electing a far too
aggressive investigative stop. One that was probably based more on
hormonal missed cues and irrationality than responsible judgment
which signaled one of them to select force first as a consequence of
their otherwise inflated risk assessment.
(Pl. Resp. Ex. 2, at 9-10, ECF No. 105-2).
Kent further states that “[i]t must have been abundantly clear upon hearing
the registered owner’s name as Ken Brown that there was insufficient reasonable
belief to forcefully detain the driver, much less than assault him.” (Id. at 10). Kent
states that the Officer Defendants’ “actions lacked probable cause.” (Id. at 15).
However, Kent later states “I conclude that the vehicle stop would have been
appropriate under the circumstances, despite the mistaken identity. It could,
-8-
however, and should have been conducted in a dignified fashion, especially when it
was learned that he was not Lowery.” (Id. at 29).
Kent assumes that the officers knew that the physical description of the
suspect did not match Brown prior to first contact, but he bases this on the fact that
the details regarding Lowery were included in the dispatch log and “should have
been broadcast to all personnel involved in any level of response.” (Id. at 23). He
states “[i]f the GPD’s multiple-channel dispatch system failed to broadcast these
descriptive features of the wanted subject, shame on the ineptitude of Hdqs. for
failing to keep the field officers notified of these details.” (Id. at 22-23). There is no
indication in the record that any of the Officer Defendants had knowledge of the
suspect’s particulars at the time Kingston pulled Brown over. Nor is there evidence
that either Kingston or Hayes heard, prior to engaging with Brown, that the vehicle
was registered in his name.
Kent also undertakes some speculation about the suspect, stating that
Lowery may have been known to area police officers if he was a “particularly bad
character and/or neighborhood trouble maker.” (Id. at 26). Further, Kent believes
that the information transmitted in the BOLO broadcast would have led an
experienced officer to suspect that “the female complainant from a residential
section may be related or even intimately acquainted with the wanted subject,” and
that suspicion would have led them to further believe that the suspect would
reappear later and could be apprehended then. (Id. at 8-9). Based on these
assumptions and speculated facts or circumstances, Kent finds Brown’s
-9-
apprehension by the Officer Defendants even less reasonable.
Reasonableness under the Fourth Amendment is a legal conclusion, making
it an improper subject of expert witness testimony. United States v. Williams, 343
F.3d 423, 435 (5th Cir. 2003). The objective reasonableness of the Officer
Defendants’ actions “is the precise legal standard of Graham to be used in the
qualified immunity inquiry.” DeMerrell v. City of Sheboygan, 206 F. App’x 418, 426
(6th Cir. 2006). An expert witness can be helpful to the trier of fact when the
testimony articulates standards of conduct from which the jury can make its own
assessment about the objective reasonableness of an officers actions. After careful
review of Kent’s affidavit, the Court finds it is not helpful to the qualified immunity
analysis. To a great extent, the affidavit consists of legal conclusions Kent has
reached using facts he has presumed. The testimony is simply the Kent’s own
interpretation of facts readily apparent from the affidavits and video. See Anderson
v. City of McComb, Miss., No. 3:10CV617-TSL-MTP, 2012 WL 1344025 (S.D. Miss.
Apr. 16, 2012) (expert opinions not considered because they “either amount[] to
nothing more than his personal interpretation of the facts or a legal conclusion
based on his personal fact finding, neither of which is the proper subject of expert
testimony.”). Accordingly, the Motion to Strike Kent’s affidavit is granted.
ii.) The Remaining Evidence
Turning now to the question of whether the evidence supports the Officer
Defendants’ assertion of the qualified immunity, the Court relies on: 1) the Officer
Defendants’ testimony regarding the information they possessed prior to the stop;
-10-
and 2) the videos from Kingston and Grimes’ police vehicles, which show how events
transpired after the stop.
The Officer Defendants stated they were on the lookout for a black and blue
Mustang driven by a black man, and Brown was driving a blue Mustang with a
very dark trunk lid. He was driving only three miles away from where the incident
occurred, albeit in the opposite direction from that reported by the victim. The
Officers were informed that the driver/suspect had a gun. Kingston saw Brown
lower one of his hands in a move that could have been toward a weapon inside the
vehicle.
The Officer Defendants’ actions in seizing and immobilizing Brown until they
determined he did not have a gun and was not the suspect appear reasonable under
these circumstances. It is only in hindsight that the stop may appear unreasonable,
because Brown can articulate differences between himself and the suspect in their
vehicles, body weight, clothing, and direction of travel. Given time to review them,
these differences seem to be, at the least, noticeable. However, the Court must, and
has made allowances for the environment in which the Officers made their
decisions.
CONCLUSION
In the context of summary judgment, a police officer is protected by qualified
immunity unless a genuine issue of material fact exists regarding whether his
actions were objectively reasonable. Byers v. City of Eunice, 157 F. App’x 680, 683
-11-
(5th Cir. 2005). The Officer Defendants were mistaken about Brown’s identity,
which led them to misapprehend the threat he posed to themselves and others. But
“even law enforcement officials who reasonably but mistakenly use excessive force
are entitled to immunity.” Wagner v. Bay City, Tex., 227 F.3d 316, 321 (5th Cir.
2000) (citations and quotations marks omitted). The Court finds no question of
material fact regarding the reasonableness of the Officer Defendants’ actions. It
would not be apparent to a reasonable officer that his conduct was unlawful in the
circumstances existing at the time of the traffic stop. The summary judgment
motion on the grounds of qualified immunity will be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [102]
for Summary Judgment filed by Jonathan Grimes, Jeremy Hayes, and Alvin
Kingston is GRANTED. Plaintiff’s claims against these Defendants are
DISMISSED.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion
[111] to Strike the Affidavit of David R. Kent is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff’s Motion
[114] for Hearing is DENIED.
SO ORDERED AND ADJUDGED this the 23rd day of May, 2012.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
-12-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?