Backe et al v. LeBlanc et al
Filing
130
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 112 MOTION for Summary Judgment (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRANDON A. BACKE, et al.,
Plaintiffs,
v.
CITY OF GALVESTON, TEXAS, et al.
Defendants.
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§ CIV. NO. 10-CV-388
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MEMORANDUM AND ORDER
Plaintiffs in this case claim that at least twenty members of the Galveston Police
Department abused their positions of authority when they engaged in or failed to prevent
multiple acts of unprovoked and unwarranted force on the very population of people they were
sworn to protect. Some, but not all, of the officer defendants sued in this case filed a motion for
summary judgment bottomed on qualified immunity. By separate order, the Court largely denied
the officer defendants’ motion due to unresolved questions of material fact. (Doc. No. 129.)
The Court now confronts the difficult question of when a municipality can be held liable
for the discretionary acts of force committed by its police force. Defendant City of Galveston,
Texas (“the City” or “Galveston”) has filed a Motion for Summary Judgment. (Doc. No. 112.)
Plaintiffs have responded (Doc. No. 118), and the City has replied (Doc. No. 126).1 After
considering the Motion, all responses thereto, and the applicable law, the Court finds that the
City’s Motion for Summary Judgment (Doc. No. 112) must GRANTED IN PART and
DENIED IN PART.
1
The City’s reply was ten days overdue. Although the Court does not approve of the City’s
unexplained failure to move for an extension or for leave to file a late reply, it also cannot
conceive how the delay prejudiced Plaintiffs. Therefore, Plaintiffs’ Motion to Strike Galveston’s
Reply as Untimely (Doc. No. 127) is DENIED.
I.
FACTUAL BACKGROUND
A.
Chief Wiley’s Hire
Charles Wiley was sworn in as the Chief of Police of the Galveston Police Department on
July 1, 2008. (Doc. No. 112-11, at 14.) He was hired from outside the Galveston Police
Department—the first time in decades that the Galveston Chief of Police was not promoted from
within. (Id. at 21.) The City Manager, Steven LeBlanc, pursued and selected an outside hire for
the express purpose of effecting change within the police department. (Id. at 29; Doc. No. 11210, at 56-57.)
The police department inherited by Chief Wiley in July 2008 was “plagued with activities
that oftentimes were illegal, most of the time unethical.” (Doc. No. 119-2, at 4.) Use of force
was a “big issue” within the department itself (Doc. No. 119-1, at 3) and within the City
administration more generally; earlier in 2008, the City Council discussed numerous complaints
against the department, including “police brutality.” (Doc. No. 112-10, at 53-54.) The public
perception of the Galveston police force was so dismal that the department had ceased
communications with the local newspaper. (Doc. No. 112-11, at 30.) According to Chief Wiley,
“the perception amongst citizens in Galveston was that the police department was not as
professional as it could be.” (Id. at 30.)
Chief Wiley viewed his arrival as a “paradigm shift” within the department. (Doc. No.
119-4, at 4.) He described the environment upon his arrival as one in which “lax behavior” was
“permitted.” (Id. at 47-48.) He hoped to instill more accountability and responsibility throughout
the ranks, and particularly within the leadership of the department. (Doc. No. 112-11, at 33-35;
Doc. No. 119-1, at 3.) He also planned to institute a “community policing culture.” (Doc. No.
2
112-11, at 30-31.) Hurricane Ike, however, delayed the implementation of any reforms. (Id. at
53.)
B.
The H2o Incident (October 4-5, 2008)2
On October 4, 2008—three weeks after Hurricane Ike hit the island—Plaintiffs
(excluding Plaintiff Charles Young) attended a wedding at the Galveston Island Convention
Center. Following the reception, which ended around 11 p.m., many guests went to the adjacent
San Luis Resort and congregated at H2o, the hotel’s bar.
1.
The encounter with Cole O’Balle, Joseph Belluomini, and Sharon
Belluomini
Officer Chris Sanderson—a member of the Galveston Police Department—was working
security at H2o that night. Another security officer employed by the hotel, Carlos Gonzales,
directed Officer Sanderson’s attention to Daniel “Cole” O’Balle, the bride’s 19-year-old brother,
who had just entered the bar. Mr. Gonzales alerted Officer Sanderson to Cole for some
combination of the following reasons: Cole had been belligerent with Mr. Gonzales at the
wedding reception in the adjacent convention center; Cole appeared to be intoxicated despite
being underage; and Cole had carried an outside alcoholic beverage into the H2o bar. Officer
Sanderson and Mr. Gonzales approached Cole and physically escorted him to the northeast side
of the bar, near the bar’s restrooms. Much of the relevant activity in this case occurred at this
location. For simplicity, the Court will refer to it as “Cole’s Arrest Site.”
2
In this section, the Court summarizes events depicted in its prior memorandum and order on the
Individual Defendants’ Motion for Summary Judgment—depictions which are hereby
incorporated for purposes of the City’s motion—and presents in more fine detail the acts of force
not implicated by that motion. Due to the extreme divergence in the Plaintiffs’ and Defendants’
versions of the events, it is impossible to present a unified narrative of what happened that night.
The Court uses the facts most supportive of Plaintiffs’ claims. All reasonable inferences are
drawn in Plaintiffs’ favor.
3
Cole, Officer Sanderson, and Mr. Gonzales were followed by Joseph Belluomini, Sharon
Belluomini, and Michael Patterson—friends of the O’Balle family. Mrs. Belluomini stopped to
talk with Mr. Gonzales. Mr. Gonzales informed her that he was having Cole arrested. Mrs.
Belluomini begged Mr. Gonzales and Officer Sanderson to let her take Cole up to his hotel room.
Mr. Belluomini placed himself in front of Cole, whose back was against a wall. Mr.
Belluomini put his hands on the wall on either side of Cole, such that Cole was between his
arms. He alternated between reassuring Cole that everything would be fine and inquiring of
Officer Sanderson what Cole had done wrong.
Sometime during the course of these interactions, Officer Sanderson radioed for
assistance from fellow officers. Officer Clemente Garcia and Officer Jonathan Longoria were the
first to arrive in response to Officer Sanderson’s request.
Shortly before Officer Garcia and Officer Longoria reached Cole’s Arrest Site, Officer
Sanderson withdrew his baton. Officer Garcia rushed past Mrs. Belluomini and punched Cole in
the head. Simultaneously, Mr. Gonzales placed Mr. Belluomini in a chokehold, pulling him away
from Cole, and Officer Sanderson pepper sprayed Mr. Belluomini in the face.
Officer Garcia and Officer Sanderson then proceeded to pummel Cole—Officer Garcia
with his fists, and Officer Sanderson with his baton. One of these baton strikes hit Cole on the
head, causing a massive head wound. Despite the fact that Cole was wounded and not fighting
back, Officer Longoria tased Cole in the abdomen, causing him to fall to the ground. Officer
Garcia and Officer Sanderson continued to punch, strike, and kick Cole after he was on the
ground.
Mrs. Belluomini screamed for the officers to stop. When the abuse continued unabated,
she threw herself on Cole’s head to protect him. One of the officers removed her by her hair, and
4
Officer Sanderson pepper sprayed her in the face. Cole was eventually handcuffed and removed
to a patrol car.
In the thirteen minutes following Officer Sanderson’s initial request for assistance from
fellow officers, over twenty members of the Galveston Police Department arrived on scene,
many of them accompanied by other federal and local law enforcement officials. (Doc. No. 11212, at 10-12.) Most of these officers engaged in crowd control, evacuating the H2o bar and
escorting people off the San Luis property. As described below, the remaining claims of
excessive force derive in some form from this police activity.
2.
The encounter with Calvin Silva
Calvin Silva was in the H2o bar and observed Cole’s encounter with Officer Sanderson,
Officer Garcia, and Officer Longoria from a close distance. Officer Jeffrey Michael pushed Mr.
Silva in the chest and told him to move back. Mr. Silva responded that he did not have anywhere
to go due to the crowd. Officer Jonathon Coward then hit Mr. Silva in the back with his
flashlight. When Mr. Silva turned around, another officer hit him with a baton across his
collarbone. Mr. Silva was pepper sprayed. He felt an officer jump on him or grab him, and he
went to the ground. He put his arms above his head for protection, and he felt punches, kicks,
and baton strikes all over his body, predominantly in the rib area. While he was on the ground,
he was handcuffed. After he was handcuffed, he felt a foot in his back “for a second.”
Approximately two minutes later, he was picked up off the floor and taken out.
Mr. Silva has never identified the officers involved in the alleged assault against him.
However, Officer Michael admits to pushing Mr. Silva, and Officer Coward admits to hitting Mr.
Silva with his flashlight. Additionally, Officer Michael testified that Officer Dannie Simpson
either pushed Mr. Silva or “hip tossed” him to the ground.
5
3.
The encounter with Brandon Backe
Brandon Backe—at the time, a pitcher employed by the Houston Astros—was also in the
H2o bar at the time of Cole’s encounter with Officer Sanderson, Officer Garcia, and Officer
Longoria. He first noticed a commotion when he heard someone yell frantically, “They’ve got
Cole.” (Doc. No. 113-9, at 47.) Mr. Backe walked to the back of the bar to investigate. (Id. at
48.) When he arrived at Cole’s Arrest Site, Cole was on the ground, handcuffed and face down,
covered in blood. (Id. at 51, 53.) Officer Longoria was standing next to Cole holding a taser, with
the wires still attached to Cole’s back. (Id.) Mr. Backe saw people nearby being “manhandled
and pepper sprayed” by other officers. (Id. at 51-52.)
There were four or five officers around Cole’s Arrest Site when Mr. Backe arrived. (Doc.
No. 113-9, at 58.) The officer closest to him—Officer Nicholas McDermott—screamed at the
crowd to “back the fuck up.” (Id. at 61.) Mr. Backe—who was at the front of the crowd and
could not retreat due to the people behind him—raised his hands and responded, “Chill out.” (Id.
at 61, 65; Doc. No. 112-17, at 33.) Officer McDermott got closer and repeated in an even louder
voice, “Back the fuck up right now.” (Doc. No. 113-9, at 61.) Mr. Backe said, “Chill out. I can’t
go anywhere. Y’all have enough room.” (Id.) Officer McDermott then grabbed Mr. Backe and
threw him against a wall. (Id.) He started grabbing for Mr. Backe’s hands behind his back. (Doc.
No. 113-10, at 3.) Then he threw Mr. Backe on the ground, into the landscaping. (Id. at 3-4.)
Mr. Backe felt officers getting on top of him. (Doc. No. 113-9, at 4.) He felt something—
possibly a knee—hit him at the intersection of his neck and back. (Id. at 4-5.) When he looked up
to ask why he was being attacked, he was punched repeatedly in the face. (Id.) Mr. Backe put his
6
face into the ground for protection, and he was punched repeatedly in the side of the head. (Id. at
4-5.) He was handcuffed. (Id. at 5.) Then he was kicked in the face. (Id.)
Multiple officers were involved in the scuffle with Mr. Backe, including Officer
McDermott, Officer Rogelio Franco, and Officer Christopher Doucette. All three officers admit
to punching Mr. Backe in the face or head. (Doc. No. 112-14, at 4; Doc. No. 112-15, at 23; Doc.
No. 112-15, at 39.)
4.
The encounter with Gil O’Balle and Aaron Trevino
Gil O’Balle was parking his car at the time of Cole’s encounter with Officer Sanderson,
Officer Garcia, and Officer Longoria. As he approached the San Luis hotel from the parking lot,
he received a call from his wife, alerting him to the fact that something was going on in the bar
area. Gil entered the hotel lobby and saw Mrs. Belluomini wandering a hallway, covered in
pepper spray and with her hair in disarray. She told him, “They’re killing Cole.” Gil helped her
into a nearby chair, then entered the H2o bar. He saw Mr. Belluomini on the ground, on his
stomach, handcuffed and screaming for his wife. When the three police officers standing over
Mr. Belluomini noted Gil’s presence, they yelled at him to get out.
Gil exited the hotel. He approached a group of officers—including Officer Longoria, Sgt.
Andre Mitchell, Lt. Byron Frankland, Officer Douglas Balli, and an unidentified DEA agent—to
ask who was in charge. Officer Longoria had his taser in hand when Gil approached. The officers
advanced on Gil, yelling that he needed to get back. Officer Longoria trained his taser on Gil. Gil
put his hands up and started walking backwards. He was joined by Aaron Trevino—another
wedding guest—who told him that they needed to leave. (Doc. No. 113-20, at 19.) Mr. Trevino
faced Gil, with his back to the officers. (Id. at 19-20.) As Gil backed up, Mr. Trevino walked
forward. (Id.)
7
Then Gil noticed Cole being walked to a nearby police car. Gil said to the officers,
“That’s my son. Where are y’all taking him? What’s going on? Who can I talk to?” Gil
continued to back up until he hit a retaining wall. He heard an officer say, “Hit him. Hit him
now.” Then he was tased by Officer Longoria. Gil attempted, and may have succeeded, in
pulling the taser wire out. He heard an officer say, “Hit him again.” He was tased again; this
time, his knees buckled and he fell to the ground.
Once on the ground, Gil was handcuffed by Lt. Frankland and Sgt. Mitchell. Then an
officer put a foot on Gil’s head and ground his face into the pavement. Officer Balli picked up
Gil’s head by his hair, pulled his glasses down, and pepper sprayed his face on both sides. Gil
was kicked in the face, the side of the head, and the ribs. Gil cannot identify which officers
ground his face into the pavement, pepper sprayed him, or kicked him.
Near the time that Officer Longoria tased Gil, Lt. Frankland hit Mr. Trevino with his
baton in the back of the leg, which caused Mr. Trevino to fall to the ground.3 (Doc. No. 113-20,
at 21.) Once he was on the ground, Lt. Frankland hit him twice more. (Id. at 31.) Mr. Trevino
rolled over and put his hands up. (Id. at 19.) Officer Balli pepper sprayed him in the face.4 (Id.)
5.
The encounter with Michael McMillan
Michael McMillan was in the H2o bar at the time of Cole’s arrest. He saw Cole on the
ground, injured and handcuffed. He also saw Mr. Backe assaulted by a number of police officers
near Cole’s Arrest Site. Mr. McMillan said, “You guys can’t do that.” A police officer grabbed
3
Mr. Trevino has not identified the officer who hit him with a baton. However, video of the
encounter shows Lt. Frankland withdrawing his baton as he approached Mr. Trevino and Gil
O’Balle. (Doc. No. 113-2, at 86-87.)
4
Mr. Trevino has not identified the officer who pepper sprayed him. However, Lt. Frankland
reports that Officer Balli pepper sprayed Mr. Trevino. (Doc. No. 113-2, at 107-08.)
8
him, turned him around, and started pushing him out of the bar, saying, “Get the fuck off the
property.”
Once Mr. McMillan was outside the bar, he began walking down a hill. Three or four
police officers—including Officer Mathew Burus—followed behind him, pushing him and
yelling, “Get off the property.” Mr. McMillan repeatedly told them he was leaving. When he
reached the edge of the grass, he said, “Believe me, I’m leaving. I saw what you just did to my
friend.” One of the officers then said, “Get him,” and the police officers jumped him. Mr.
McMillan went to the ground, on his stomach, and was immediately handcuffed. He says that
one police officer was on his neck, while another was on his back.
6.
The encounters with Matthew Goodson and Chris Cornwell
Following Cole’s arrest, Matthew Goodson and his girlfriend exited the H2o bar and
joined a group of people leaving the San Luis property pursuant to police orders. Multiple
officers followed closely behind the group. At least two officers, including Officer Jamie
Benham, pushed people as they were leaving. Mr. Goodson asked Officer Benham not to touch
him or his girlfriend. As soon as he said this, Mr. Goodson was tackled to the ground by Officer
Benham, Officer Doucette, and Officer Dane Goode. He was handcuffed. As he was lying on the
ground in handcuffs, he was kneed in the side and kicked in the head. Lt. Joel Caldwell then
grabbed his hair, pulled his head back, and deployed oleoresin capsicum (“O.C.” or “pepper
spray”) directly in his eyes.
Chris Cornwell and his wife were in the same group of people departing the San Luis
Property as Mr. Goodson and his girlfriend. They were also pushed from behind as they left. Mr.
Cornwell asked one of the officers—Officer Simpson—to stop pushing them, because he and his
wife were leaving, his wife was pregnant, and she was wearing high heels. Officer Simpson
9
asked him what he said, and Mr. Cornwell repeated it. Officer Simpson then threw him to the
ground. Mr. Cornwell felt strong pressure on his neck, head area, and face as he was being
handcuffed. He was never told he was under arrest and was never asked to put his hands behind
his back.
After he was handcuffed, Mr. Cornwell was placed on a curb with other detainees. He
could see that his wife, still walking away, was still being pushed from behind by officers. Mr.
Cornwell said to Officer Simpson, “She’s pregnant. Can you please stop pushing her?” Officer
Simpson grabbed him, rolled him over so that his left side was on the concrete, and pressed his
face into the ground.
7.
The encounters with Raymond Guidry and Justin Packard
Justin Packard was in the H2o bar when police officers entered and ordered everyone to
leave. Mr. Packard exited the bar and saw his friend, Raymond Guidry, slammed by Officer
Robert Sanderson—Officer Chris Sanderson’s brother—against a pillar. (Doc. No. 112-13, at
41.) Mr. Guidry was yelling that he hadn’t done anything. Officer R. Sanderson instructed Mr.
Packard to keep walking, and he complied.
Mr. Packard continued off the San Luis property with a group of friends. Following
approximately 20 feet behind was a group of approximately five male police officers. This group
included Officer John Rutherford—Officer Robert Sanderson’s partner—and Officer Benham.
The officers ordered Mr. Packard to stop—identifying him by the shirt he was wearing—
and then ordered him to keep going. This happened a couple of times. Mr. Packard was confused
by the contradictory orders. As a result, he ended up “straggl[ing]” behind his friends. When he
reached the parking lot of a nearby IHOP, he turned around, with his hands up, to ask the officers
10
behind him what had happened. He was grabbed by the neck, thrown down, and handcuffed. An
officer sprayed his face with pepper spray.
Mr. Guidry and Mr. Packard were transported to the city jail together. (Doc. No. 113-18,
at 41-42.) After their police car arrived at the jail, Mr. Packard heard Mr. Guidry being removed
from the car. Then he heard Mr. Guidry scream. (Doc. No. 113-18, at 41-42.) Mr. Guidry
confirms that he was pepper sprayed after he arrived at the jail. (Doc. No. 112-17, at 25.)
8.
The encounter with Charles Young
Mr. Young was in the H2o bar when police officers entered and ordered everyone to
leave. Mr. Young complied with these instructions and moved toward the exit. As he was
walking out, Officer Robert Tovar grabbed him and said, “You’re under arrest.” Mr. Young
complied with Officer Tovar’s order to put his hands behind his back, and he was handcuffed.
Officer Tovar and another officer then pushed Mr. Young through the crowd and down a flight
of stairs. They ended up near the valet area outside. The two officers slammed Mr. Young facedown on the ground, with his hands still cuffed behind him. The officers, along with Officer
Dooley and Officer Manuell, then “beat the stew out of [him] for a little bit.”
Eventually, the officers stopped hitting Mr. Young. He sat up. He noticed that one of his
handcuffs had fallen off, so he placed his hands on his knees in front of him. A black female
police officer—Officer Dooley or Officer Mims—saw him put his hands in front of him. She ran
at Mr. Young and yelled, “Stop resisting!” Then she kicked him in the face. Mr. Young did not
have enough time to respond to her verbal command before she kicked him. Mr. Young heard
her say, “I’m going to fuck you up.”
When Mr. Young was kicked in the face, he fell back onto the ground. Before he could
move, Officer Dooley, Officer Manuell, and Lt. Frankland were on top of him. He was turned
11
over on his stomach. He felt a knee in his back and a foot on his neck. He was handcuffed.
Several officers were hitting him. He describes getting “the beating of my life.”
Mr. Young thinks that he was tased during the second beating. He saw a police officer
withdraw a taser, and heard him say, “We’re going to tase you.” Then he blacked out. When he
woke up, he had marks on his shoulder that appeared to be from a taser. During the second
beating, Mr. Young remembers shouting, “I’m not resisting.”
C.
Reporting and investigation of the H2o incident
Lt. Joel Caldwell was the ranking officer and on-scene commander at the H2o incident.
(Doc. No. 112-11, at 67.) Chief Wiley briefly visited the scene that night. He told Lt. Caldwell to
make sure that the reports were thorough, and he departed. (Id. at 72-73.) The next day—October
5, 2008—Chief Wiley pulled the initial police reports from the incident. He instantly knew, from
the lack of heft alone, that the reports were deficient. (Id. at 74.) Moreover, no use of force forms
had been filled out, despite the fact that—at a minimum—the night had involved use of a taser,
the physical detainment of Mr. Backe, O.C. spray, and a “scuffle” that produced injuries so
severe as to require life flighting Cole O’Balle to a Houston hospital. (Id. at 74, 76-77.) On
October 8, 2008, all officers involved in the H2o incident were ordered to supplement their
initial reports with more detailed descriptions of that night. (Doc. No. 112-15, at 40.) Use of
force forms were also ordered. (Doc. No. 112-11, at 75-76.)
Chief Wiley initiated an internal affairs investigation into the H2o incident. Among other
things, investigator reviewed officers’ compliance with departmental reporting directives. When
internal affairs completed its investigation, eleven officers were disciplined for missing, late, or
inaccurate reporting. (Doc. No. 112-11, at 82-83.) Three officers in leadership positions—Lt.
Caldwell, Lt. Frankland, and Sgt. Mitchell—were also disciplined for failing to ensure accurate
12
and timely reports from their subordinates. (Id. at 83-84.) Seven officers accepted the discipline.
(Id. at 83.) Four appealed: Lt. Frankland, Officer Coward, Officer Franco, and Officer Doucette.
(Id. at 82-83.)
Chief Wiley separately tasked Lt. Caldwell with investigating the use of force during the
H2o incident, despite the fact that Lt. Caldwell had himself used force that night. Lt. Caldwell’s
investigation revealed no inappropriate use of force, and no officer was reprimanded for his or
her use of force during the H2o incident. (Doc. No. 119, at 1-15; Doc. No. 112-11, at 135.)
Chief Wiley acknowledges that deficient reporting can be motivated by a desire to avoid
accountability for using force. (Doc. No. 112-11, at 107-08.) He also admits that poor reporting
makes it difficult to investigate the propriety of a use of force. (Id. at 116.)
II.
LEGAL STANDARDS
A motion for summary judgment requires the Court to determine whether the moving
party is entitled to judgment as a matter of law based on the evidence thus far presented. FED. R.
CIV. P. 56(a). “Summary judgment is proper ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.’” Kee v. City of Rowlett, Tex., 247 F.3d 206, 210 (5th Cir. 2001) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). “A fact is material if its resolution in favor of one party
might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotations and footnote omitted).
“Facts and inferences reasonably drawn from those facts should be taken in the light most
favorable to the non-moving party.” Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th
Cir. 2007). The Court may not make credibility determinations or weigh the evidence. Reeves v.
13
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “[T]he court should give credence
to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.’” Id. at 151 (quoting 9A C. Wright & A. Miller, Federal Practice and
Procedure § 2529, p. 300 (2d ed. 1995)). Hearsay, conclusory allegations, unsubstantiated
assertions, and unsupported speculation are not competent summary judgment evidence. FED. R.
CIV. P. 56(e)(1); see, e.g., McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir. 2008); Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); see also Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (noting that a nonmovant’s burden is “not satisfied with ‘some
metaphysical doubt as to the material facts’”) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).
III.
ANALYSIS
The City argues that it is entitled to summary judgment because Plaintiffs have failed to
identify a policy or custom of the City of Galveston which caused Plaintiffs’ injuries. (Doc. No.
112 (“Mot.”), at 10.) Plaintiffs respond that they are pursuing municipal liability on the basis of
two customs in place at the time of the H2o incident. (Doc. No. 118 (“Opp.”), at 21-37.) These
are: (1) a custom of using excessive force and (2) a custom of underreporting and
underinvestigating acts of force. (Id.) Plaintiffs also claim that the City is liable for failure to
train its officers. (Id. at 39-40.)
A.
Overview of Monell Liability
Municipalities are considered “persons” subject to suit under Section 1983 for civil rights
violations. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). However,
“a municipality cannot be held vicariously liable for the constitutional torts of its employees or
14
agents.” Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 615 (5th Cir. 1999). This is because
Section 1983 requires a showing that the defendant “subject[ed] or cause[d a plaintiff] to be
subjected” to a deprivation of a federal right, see 42 U.S.C. § 1983, a requirement that “cannot be
easily read to impose liability vicariously on governing bodies solely on the basis of the
existence of an employer-employee relationship with a tortfeasor.” Monell, 436 U.S. at 692.
The Fifth Circuit has summarized the elements required for a Monell claim as “a
policymaker; an official policy [or custom]; and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001) (citation omitted). These elements “exist to prevent a collapse of the municipal
liability inquiry into a respondeat superior analysis.” Zarnow v. City of Wichita Falls, Tex., 614
F.3d 161, 167 (5th Cir. 2010).
Taking these elements out of turn, the first—identification of an official policy or
custom—reflects that a municipality may be sued under Section 1983 only for its own acts.
Accordingly, municipal liability may be pursued on the basis of “‘a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by [the local government entity’s]
officers.’” Zarnow, 614 F.3d at 166 (citation omitted). “Alternatively, municipal liability may
attach where the constitutional deprivation is pursuant to a governmental custom, even if such
custom has not received formal approval.” Id.
The second element obligates the plaintiff to link the alleged policy or custom to the
municipality through an approved “policymaker”—someone or something that “takes the place
of the governing body in a designated area of city administration.” Webster v. City of Houston,
735 F.2d 838, 841 (5th Cir. 1984). Additionally, the policymaker’s promulgation of policy or
acquiescence to custom must demonstrate culpability for the plaintiff’s resulting injury. If the
15
alleged custom or policy on its face “violate[s] federal law or authorize[s] the deprivation of
federal rights,” the culpability requirement is clearly met. Alternatively, a municipality can be
culpable for a facially constitutional custom or policy if it was “adopted or maintained by the
municipality’s policymakers with deliberate indifference as to its known or obvious
consequences,” O’Neal v. City of San Antonio, 344 Fed. App’x 885, 888 (5th Cir. 2009),
specifically the “risk that a violation of a particular constitutional or statutory right will follow.”
Board of Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 411 (1997). “Deliberate
indifference of this sort is a stringent test, and ‘a showing of simple or even heightened
negligence will not suffice’ to prove municipal culpability.” Piotrowski, 237 F.3d at 579 (quoting
Bryan Cnty., 520 U.S. at 407)).
Finally, the plaintiff must show that the policy or custom was causally linked to the
constitutional violations at issue. “[T]here can be no municipal liability unless [an official policy
or custom] is the moving force behind the constitutional violation.” James v. Harris Cnty., 577
F.3d 612, 617 (5th Cir. 2009).
B.
The Chief of Police is the City of Galveston’s designated policymaker in the
relevant field.
As noted above, a “policymaker” is an individual or entity that “takes the place of the
governing body in a designated area of city administration.” Webster, 735 F.2d at 841. A
policymaker “decide[s] the goals for a particular city function and devise[s] the means of
achieving those goals.” Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984). Whether an
individual or entity is a “policymaker” for purposes of Section 1983 is question of state and local
law. See Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010). It is also highly dependent
upon the specific facts regarding the municipality’s organization and the particular area of city
policy at issue in the case. “[T]he identification of those officials whose decisions represent the
16
official policy of the local governmental unit is itself a legal question to be resolved by the trial
judge before the case is submitted to the jury.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989) (emphasis original).
Defendants argue that Galveston is a “home rule” city and that all policymaking authority
resides, by virtue of Texas state law, in Galveston’s City Council (the “City Council”). (Mot. at
6-8.) But the fact that Texas state law confers policymaking authority on the City Council does
not answer the question of whether the City Council then delegated some of that authority to the
Chief of the Galveston Police Department. See Zarnow, 614 F.3d at 167-68. Such delegation
may be express or implied by “‘conduct or practice.’” Id. at 167 (quoting Bennett, 728 F.2d at
769).
Plaintiffs do not argue that the City Council expressly delegated policymaking authority
to the Chief of Police. Rather, Plaintiffs contend that the delegation is made evident by how
Galveston Police Department policy is enacted. (Opp. at 18.) As testified to by Chief Wiley, and
made apparent on the face of the documents themselves, Galveston Police Department policies
and directives are authored by current and former Chiefs of Police. (Doc. No. 112-11, at 55-58;
Doc. No. 112-4, at 16.) They are not reviewed by the City Manager or City Council before
implementation. (Doc. No. 112-11, at 58; Doc. No. 112-10, at 21-22.) The Chief of Police
himself or herself simply announces and rolls out the policy or directive through the chain of
command. (Doc. No. 112-11, at 58; Doc. No. 112-10, at 22.) While the City Council or City
Manager may possess some theoretical ability to overrule or constrain the policies enacted by the
Chief of Police, it does not appear to have exercised such authority in recent memory.
Specifically, there is no evidence that the City Council or City Manager reviewed,
countermanded, or initiated any official policies in response to the H2o incident. By contrast,
17
Chief Wiley responded by launching an internal investigation to determine whether the officers
involved properly executed under reporting directives put in place by former chiefs. (Doc. No.
112-11, at 82-83.) He also ordered additional training within the department on how to write
adequate reports. (Id. at 51.) These actions indicate that Chief Wiley—as would be expected for
a municipal policymaker—responded to a very significant incident involving municipal activity
by “decid[ing] the goals for a particular city function”—i.e., transparent reporting of police
activity—and “devis[ing] the means of achieving those goals.” Bennett, 728 F.2d at 729.
The Fifth Circuit confronted this exact issue in Zarnow v. City of Wichita Falls, Texas
and concluded, on the basis of very similar evidence, that “the chief of police is the sole official
responsible for internal police policy” and that “[o]thers have only marginal involvement with
the internal procedures of the police force.” 614 F.3d at 168. This Court is similarly persuaded
on the summary judgment record that the Chief of the Galveston Police Department is properly
considered a policymaker for the City of Galveston in this case.
C.
Plaintiffs have sufficient evidence to raise a fact issue as to whether their
constitutional rights were violated pursuant to a pervasive custom within the
Galveston Police Department of utilizing excessive force.
Plaintiffs contend that, on the night of October 4, 2008, the Galveston Police Department
operated pursuant to an unofficial custom of using excessive force. (Opp. at 36.) In support of
the existence of this custom, Plaintiffs rely upon the events of the night itself. (Id. at 23-30.)
Specifically, on October 4, in response to Officer Sanderson’s request for assistance, at least
thirty-four members of the Galveston Police Department responded to the San Luis hotel. (Doc.
No. 119, at 11.) The police department at the time consisted of approximately 160 members
18
(Doc. No. 112-10, at 76), approximately half of which were on duty.5 Of the thirty-four officers
who responded, twenty are accused of engaging in or failing to prevent approximately forty-nine
separate acts of excessive force against thirteen individuals.6
Defendants argue that many of these allegations are trumped up or flatly unbelievable.
(Mot. at 19-20.) The Court cannot resolve such factual disputes on summary judgment. It must
credit Plaintiffs’ evidence and draw all reasonable inferences in Plaintiffs’ favor. Consequently,
for purposes of the City’s Motion for Summary Judgment, the Court presumes that twenty
Galveston officers—approximately 59% of the officers on scene, approximately 25% of the
officers on duty, and approximately 13% of all officers in the department’s employ—committed
or failed to prevent acts of excessive force on the night of October 4, 2008.
Plaintiffs argue that the evidence of rampant and unreasonable uses of force that night is
sufficient to establish that the police department was operating pursuant to an unofficial custom
of using excessive force. (Opp. at 36.) The Court agrees. It is not possible to describe the exact
quantum of evidence necessary to raise a fact issue on the existence of a municipal custom. As a
general rule, however, a single example or episode is not sufficient. See Bennett, 728 F.2d at 768
n.3 (“Isolated violations are not the persistent, often repeated, constant violations that constitute
custom and policy.”). Some discernible pattern of similar behavior or activity is required.
Specifically, in the context of an alleged governmental custom of using excessive force, “the
‘plaintiff must demonstrate at least a pattern of similar incidents in which the citizens were
5
At the time, due to the havoc created by Hurricane Ike, Galveston police officers were working
seven days a week, on 12-hour shifts, with no days off. (Doc. No. 112-11, at 54.)
6
The Court has reviewed the summary judgment record and constructed a chart of each alleged
act of excessive force committed the night of October 4, 2008. This chart is attached to the
Court’s memorandum and order as Appendix A.
19
injured.’” Cano v. Bexar Cnty., Tex., 280 Fed. App’x 404, 406 (5th Cir. 2008) (quoting Estate of
Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).
To make out a widespread municipal pattern or practice, a Section 1983 plaintiff must
typically venture beyond the actions which caused his or her own alleged constitutional
deprivation and introduce evidence of “similar” objectionable conduct by the same or other city
employees. In the excessive force context, plaintiffs often rely upon prior complaints of
excessive force within the relevant police department. See, e.g., Cano, 280 Fed. App’x at 406.
Although a viable tactic in theory, it rarely proves successful in practice. Courts have criticized
such evidence for lacking “context,” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851 (5th
Cir. 2009); for failing to show pervasiveness, Cano, 280 Fed. App’x at 406-07; for being
temporally irrelevant, Allen v. City of Galveston, Tex., Civil Action No. G-06-467, 2008 WL
905905, at *5 (S.D. Tex. Mar. 31, 2008); and for having little probative value because
allegations of excessive force are not proof of excessive force, James v. Harris Cnty., 508 F.
Supp. 2d 535, 543 (S.D. Tex. 2007).
Given such a bleak track record, Plaintiffs appear to face a nearly insurmountable
evidentiary hurdle. But this case presents a truly extreme factual scenario. Here, the events of a
single night provide, in essence, a self-contained case study on how and when numerous
Galveston officers used force in the course of their discretionary duties. The H2o incident—
while in some sense a single “episode”—is properly conceived of as a laboratory for evaluating
how pervasively and recklessly constitutional norms were disregarded by a sizable portion of the
Galveston police force. With thirteen alleged victims, twenty alleged perpetrators or
accomplices, and forty-nine separate alleged acts of police brutality, Plaintiffs have identified a
constellation of evidence from which a jury may divine a pattern. This is more than sufficient to
20
raise a fact issue on the existence of a custom or practice. See Grandstaff v. City of Borger, Tex.,
767 F.2d 161, 171 (5th Cir. 1985) (affirming jury verdict against municipality that employed
officers who used excessive force because “[t]he evidence . . . prove[d] repeated acts of abuse on
this night, by several officers in several episodes, tending to prove a disposition to disregard
human life and safety so prevalent as to be police policy or custom”).7
It is worth noting that the unique circumstances of this case permit Plaintiffs to avoid
common evidentiary pitfalls in other custom and practice cases noted above. In this case, each
Plaintiff’s alleged constitutional violation serves as a potential “extraneous” bad act for his or her
co-Plaintiffs. Temporal relevance is undeniable. So is the evidentiary weight to be afforded the
alleged violation. After all, the same jury that will judge whether each alleged act was clearly
excessive will also decide whether, in the aggregate, the Galveston officers exhibited an endemic
and pervasive disregard for constitutional limitations on the use of force.
But Monell liability requires more than proof of a governmental custom or practice, even
where the custom or practice on its face reveals a constitutional deficiency. The City’s
policymaker must be fairly charged with “actual or constructive knowledge” of the custom or
practice. See Valle, 613 F.3d at 541. The relevant policymaker here, as discussed in Section
III.B above, is the Chief of Police.
7
The City argues that Plaintiffs cannot use Grandstaff as support for a ratification theory of
municipal liability. (Doc. No. 126 (“Reply”), at 11-13.) The Court has expressed its own doubts
that Grandstaff is properly construed as a ratification case, although multiple courts have used it
in that manner. See Hobart v. City of Stafford, 916 F. Supp. 2d 783, 793-94 (S.D. Tex. 2013).
However, the issue of whether Grandstaff supports the City’s liability on the basis of ratification
has not been raised here. As the Court reads Plaintiffs’ opposition to the City’s Motion, Plaintiffs
rely upon Grandstaff for the proposition that a pre-existing custom or practice can be
demonstrated through the events of a single night, when those events are as “extreme” as the
events in Grandstaff. (Doc. No. 118 (“Opp.”), at 37-38.) The Court agrees that this is a proper
reading of Grandstaff and finds no difficulty applying its holdings to this case. See Hobart, 916
F. Supp. 2d at 793 (noting that language in the Grandstaff decision “suggests that liability . . .
was premised on a finding of pre-existing city policy”).
21
Plaintiffs have sufficient evidence to raise a fact issue as to the constructive or actual
knowledge of the City’s Chief of Police. Chief Wiley testified that—prior to his own hire—the
Galveston Police Department had for decades promoted from within, drawing Chiefs from the
leadership structures of the department itself. (Doc. No. 112-11, at 21.) There is evidence that
any alleged custom in this case permeated the hierarchy from which these previous Chiefs were
drawn. Indeed, one sergeant and two lieutenants, including the H2o “on-scene commander,” are
among those accused of using excessive force against Plaintiffs or failing to intervene as others
used excessive force. See Appendix A.
But even if there were any doubt as to how high the custom or practice had infiltrated
within the department, complaints about the department’s use of force were well known to
Galveston’s City Manager and even to Chief Wiley upon his appointment, despite being hired as
an “outsider.” (Doc. No. 119-1, at 3; Doc. No. 112-10, at 53-54.) The local newspaper had been
so critical of the department that all public relations had been cut off. (Doc. No. 112-11, at 30.)
Even a member of the City Council invoked the department’s well-known problems regarding
force when he called for the institution of a Civilian Review Board. (Doc. No. 112-10, at 53-54.)
In summary, Plaintiffs have identified sufficient evidence that the Chief of Police had actual or
constructive knowledge that members of the Galveston police force were acting with a pervasive
disregard for constitutional limitations on use of force.8 See Bennett, 728 F.2d at 768
8
The City seeks to exploit Chief Wiley’s July 2008 appointment and the onset of Hurricane Ike
to defeat any custom theory of liability, arguing that Chief Wiley “had precious little time to
create any custom regarding use of force” prior to the H2o incident. (Doc. No. 112, at 11.) The
Court disagrees with the proposition that, because Chief Wiley was in power at the time of the
incident, he must have been “responsible” for any custom animating the officers’ actions.
Clearly, regardless of the switching out of the guard, endemic customs will persist from one
policymaker to the next. Replacing the Chief of Police no more wiped out then-existing custom
than it wiped out official policy. It is sufficient for Plaintiffs’ theory of liability that the custom
22
(“Constructive knowledge may be attributed to the governing body . . . where the violations were
so persistent and widespread that they were the subject of prolonged public discussion or a high
degree of publicity.”).
D.
Plaintiffs are also entitled to have a jury decide whether their constitutional
violations resulted from the police department’s pervasive culture of
underreporting and underinvestigating uses of force.
Plaintiffs argue that, at the time of the H2o incident, the Galveston Police Department
also operated pursuant to a custom of underreporting and underinvestigating uses of force. (Opp.
at 31-37.) Plaintiffs have identified significant, compelling evidence of such a custom. They are
entitled to a jury determination of this claim.
Chief Wiley concedes that the reporting of the H2o incident was uniformly deficient.
(Doc. No. 112-11, at 45-46.) One of his primary complaints regarding the initial police reports
was the widespread failure to report and justify acts of force. (Id. at 75-76.) Chief Wiley was so
troubled by the state of the initial police reports that, on October 8, 2008, he specifically ordered
the officers involved to supplement the file with more detailed descriptions. (Doc. No. 112-15, at
40.) He also initiated an internal investigation, which resulted in formal disciplinary action
against eleven officers, including three officers in command positions—Sgt. Mitchell, Lt.
Frankland, and the H2o on-scene commander, Lt. Caldwell—for poor reporting practices. (Doc.
No. 112-11, at 82-84.) Four of those officers appealed the disciplinary action on the theory that
lax reporting was how the Galveston Police Department had always operated. (Id. at 82-83, 147.)
They claimed it was unfair to punish them for acting in accordance with a longstanding and
accepted practice. (Id. at 147.)
allegedly existed; that it was known to at least one policymaker but had not been eradicated; and
that it was a moving force behind Plaintiffs’ harm.
23
Chief Wiley also responded to the poor reporting of the H2o incident by ordering
additional training on how to write adequate police reports. (Doc. No. 112-11, at 51.) Chief
Wiley’s decision to implement additional training is not legally sufficient evidence that the
department’s prior training was inadequate. See City of Canton, 489 U.S. at 391 (claim that harm
could have been avoided if officer had “better or more training” insufficient because it “could be
made about almost any encounter resulting in injury”). However, it is some evidence that,
despite a written directive requiring officers to report use of force (Doc. No. 112-8, at 15), the
Galveston Police Department on October 4, 2008 was failing to live up to that directive in
practice. As explained by Chief Wiley, he was not instituting new policies—he was simply
enforcing policies that already existed. (Doc. No. 112-11, at 46.)
In addition to the above evidence, the existence of a deficient reporting culture is amply
supported by the initial H2o reports themselves. The Court has reviewed the contents of the
police file on the H2o incident and has constructed a chart containing all known alleged acts of
force from that night. The Court’s chart is attached to the end of this memorandum and order as
Appendix A. By the Court’s calculations—which the Court admits is subject to interpretation
and manipulation—officers are accused of committing at least forty-nine distinct acts of force on
October 4, 2008. Thirty-six acts were not reported by the officers who allegedly engaged in
them, indicating a self-reporting rate of only 27%.9 More telling, forty-three acts were not
reported by other officers, despite the fact that all of the acts occurred in public spaces with
multiple fellow officers around. This indicates a cross-reporting rate of only 12%.
9
For purposes of the reporting rates included in the Court’s analysis, the Court takes into
account only the police reports drafted prior to October 8, 2008, when Chief Wiley specifically
ordered more detailed supplementation from the officers involved. (Doc. No. 112-15, at 40.) The
Court acknowledges that the supplemental police reports unearthed additional acts of force not
initially reported. Such delayed reporting is reflected in Appendix A, below.
24
These potential reporting rates are compelling in themselves.10 Equally compelling,
however, is how deficient reporting obscured the use of force against particular individuals.
Specifically, relying upon the initial police reports alone, there would be little to no indication
that the following individuals were subjected to any force:
Calvin Silva. As described above, Mr. Silva was struck with a flashlight and then
a baton, thrown to the ground, pepper sprayed, and pummeled all over his body.
But the arresting officer in his case, Officer Michael, wrote in his initial report
that Mr. Silva “aggressively approach[ed]” him and “ignored [his] commands to
stay back.” (Doc. No. 112-14, at 6.) Officer Michael continued that “[d]ue to the
fact that Silva consistently ignored my commands to stay back and to not interfere
he was arrested for Interfering with a Police Officer.” (Id.) No more was said
about Mr. Silva’s arrest. From the original report, it would appear that not a single
hand was laid upon Mr. Silva. Officer Michael maintained this position during the
internal affairs investigation as well, telling investigators that he took Mr. Silva
into custody “without incident.” (Doc. No. 112-16, at 14.) It wasn’t until his
deposition that Officer Michael finally admitted to seeing other officers push Mr.
Silva, take him to the ground, and pepper spray him. (Doc. No. 113-1, at 35-36.)
Aaron Trevino. As described above, Mr. Trevino was hit with Lt. Frankland’s
baton from behind; fell to the ground; was hit by the baton twice more; and was
pepper sprayed in the face by Officer Balli. These acts of force were committed
in view of Sgt. Mitchell and possibly Officer Longoria. But the baton strikes did
not appear in any of these four officers’ initial reports. (Doc. No. 112-15, at 30;
Doc. No. 112-15, at 16-18; Doc. No. 112-13, at 44-45.) Instead, Lt. Frankland
described that Mr. Trevino “went to the ground as asked.” (Doc. No. 112-15, at
30.) As for the pepper spray used by Officer Balli, the only officer who even
alludes to pepper spray in Mr. Trevino’s case is Lt. Frankland, who opaquely
suggests that Mr. Trevino was complaining of being victim to overspray—while
simultaneously disclaiming knowledge of what he meant. (Doc. No. 112-15, at
29-30.) Notably, although Mr. Trevino was directly involved in the circumstances
of Gil O’Balle’s arrest, only Lt. Frankland acknowledged Mr. Trevino’s presence
in his report.
Justin Packard. As described above, Mr. Packard was thrown to the ground and
pepper sprayed. But the report of the arresting officer—Officer Rutherford—
states only that “[d]ue to Packard’s inability to listen to simple commands and
above actions he was arrested.” (Doc. No. 112-14, at 1.) Officer Rutherford’s
10
Over half of the alleged acts of excessive force are denied by Defendants. Assuming that the
jury credits Defendants, and finds that these disputed acts never occurred, the self-reporting rate
for undisputed acts of force is only 54%. The cross-reporting rate for undisputed acts of force is
even lower, at 25%.
25
write-up of the arrest is identical to Officer R. Sanderson’s write-up of the arrest
of Mr. Guidry, indicating that the “report” was nothing more than a simple cutand-paste job. (Id.; Doc. No. 112-13, at 41.) It wasn’t until Officer Rutherford
was interviewed by internal affairs in late October 2008 that he admitted using
“minimal force” in Mr. Packard’s arrest. (Doc. No. 112-16, at 5.) But he still
failed to explain what he meant by “minimal force.”
Charles Young. As described above, Mr. Young was thoroughly worked over by
at least five different officers on the night in question. But the original report of
the arresting officer—Officer Tovar—made absolutely no mention of any force at
all. (Doc. No. 112-15, at 15.) During a later internal affairs investigation, Officer
Tovar admitted to using “closed hand strikes” on Mr. Young. (Doc. No. 112-16,
at 3.) He continued to offer no real justification for the force, however.
Finally, an alleged custom of underreporting and underinvestigating use of force is also
supported by the department’s half-hearted compliance with formal procedures for reporting and
reviewing uses of force after the H2o incident. As Chief Wiley testified, no use of force forms
were generated in the immediate aftermath of the incident, despite the fact that force was clearly
exercised on the night in question. (Doc. No. 112-11, at 74, 76-77.) After Chief Wiley and
internal affairs demanded a more complete accounting from the officers involved, three use of
force forms were generated. But these forms covered only six acts of force employed by six
officers—a mere 12% of the force employed that night. (Doc. No. 112-18, at 30-35.) Some of the
most significant and undisputed acts of force are conspicuously absent from the forms, such as:
Officer Garcia’s use of closed hand strikes against Cole; Officer Sanderson’s use of baton strikes
and closed hand strikes against Cole; Officer Sanderson’s use of O.C. spray against the
Belluominis; and Officer Longoria’s use of a taser against Cole O’Balle and Gil O’Balle. These
three use of force forms—along with Lt. Caldwell’s narrative summary of the force employed
during the H2o incident—appear to constitute the entirety of the department’s “investigation”
regarding its officers’ use of force on October 4, 2008. Chief Wiley acknowledged that the
deficient reporting made it difficult to “tell what happened” that night and impeded the
26
department’s investigation into use of force. (Doc. No. 119-4, at 5-6.) Not surprisingly, no
Galveston officer was reprimanded for his or her use of force during the H2o incident. (Doc. No.
112-11, at 134-35.)
The above evidence is more than enough to show a fact issue as to whether, on October
4, 2008, Galveston officers underreported and underreviewed uses of force as a matter of course,
despite written police directives to the contrary. It is not enough for Plaintiffs to establish that the
custom existed, however. They must also have some evidence that the custom was known to the
City’s policymaker, and that the policymaker allowed it to continue with “deliberate
indifference” to its known or obvious constitutional ramifications. See Bryan Cnty., 520 U.S. at
411. In other words, this theory of liability can survive summary judgment only if Plaintiffs
identify some evidence that the Chief of Police was aware that officers’ uses of forces were
serially underreported and underinvestigated and allowed the practice to continue despite a
“known or obvious consequence” that excessive use of force is likely to follow. See id. at 410.
Plaintiffs have evidence of awareness of the alleged custom. First, Chief Wiley testified
that, when he took over the department in July 2008, there was a “lack of reporting”—including
force reporting—department-wide. (Doc. No. 112-11, at 43-44.) Moreover, as with the prior
alleged custom of using excessive force, the entrenchment of the alleged custom through the
ranks of the department is supported by the fact that Sgt. Mitchell, Lt. Frankland, and Lt.
Caldwell—the ranking officers on scene during the H2o incident—themselves generated
deficient reporting and failed to report acts of force. (Id. at 82-83.) Prior to hiring Chief Wiley,
the City routinely promoted Chiefs from within the department. (Id. at 21.) This supports an
inference that Chief Wiley’s immediate predecessors also had actual or constructive knowledge
of the pervasive culture of deficient force reporting and review.
27
Plaintiffs have not identified any particular evidence that would support deliberate
indifference on the part of Chief Wiley’s predecessors, however. It may be that the constitutional
ramifications of operating a police force which routinely underreports and underinvestigates its
own uses of force are so “plainly obvious” that no additional evidence is necessary. See Bryan
Cnty., 520 U.S. at 411. But the Court need not reach this question. Plaintiffs have evidence that
Chief Wiley himself was cognizant that deficient reporting on and review of uses of force can
facilitate, mask, and even encourage the use of excessive force. (Opp. at 31-33.)
In the case of Chief Wiley, the term “deliberate indifference” is a bit of a misnomer. His
apparent attempts to rectify the deep, endemic problems within the Galveston Police Department
are commendable and hardly “indifferent.” Nonetheless, as the Court reads case law regarding
the culpability requirement for Monell liability, the “deliberate indifference” standard is meant to
require some element of actual knowledge regarding the risks of a facially constitutional policy
or custom. See Piotrowski, 237 F.3d at 579 (clarifying that municipal culpability is not
demonstrated by “simple or even heightened negligence”) (quotation marks and citation
omitted). As he made clear in his deposition, Chief Wiley was very aware of the constitutional
implications for use of force in a law enforcement agency that lacked robust reporting:
The – the reporting officer’s activity is critical and can’t be overstated,
especially as it relates to use of force, especially in Galveston, Texas,
given the history here. And so, it was significant that so many folks didn’t
properly and adequately report. And I said before, I’ll say it again. I don’t
necessarily think that they intentionally did that. I think that, more than
anything else, it was a matter of the culture that evolved over time and it
was a matter of, “Oh well, if I don’t do it, they can’t ask me about it. If I
don’t file a report, then I won’t have to explain my actions,” those kinds of
things.
(Doc. No. 119-3, at 3.)
28
The Court accepts that Chief Wiley may have sincerely intended, even before the H2o
incident, to improve departmental compliance with existing reporting requirements. But this had
not occurred as of the night of October 4, 2008. And Plaintiffs rightly point out that they were
entitled to their Fourth Amendment protections, regardless of Chief Wiley’s good intentions and
an intervening natural disaster which delayed his attempts at reformation. (Opp. at 39.)
Finally, the Court finds that the evidence described above presents a fact issue as to
whether the department’s alleged custom of underreporting acts of force was a “moving force”
behind Plaintiffs’ constitutional violations. See James, 577 F.3d at 617. In summary, Plaintiffs
are entitled to jury determination of this theory of Monell liability.
E.
The City is entitled to summary judgment on Plaintiffs’ failure-to-train
claim.
Finally, Plaintiffs argue that the City failed to train its police officers to properly use
force. (Opp. at 44-45.) In a Section 1983 claim for failure to train, the issue “is whether that
training program is adequate; and if it is not, the question becomes whether such inadequate
training can justifiably be said to represent ‘city policy.’” City of Canton v. Harris, 489 U.S.
378, 390 (1989). The Supreme Court explained:
It may seem contrary to common sense to assert that a municipality will
actually have a policy of not taking reasonable steps to train its employees.
But it may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need. In that event, the failure to provide
proper training may fairly be said to represent a policy for which the city
is responsible, and for which the city may be held liable if it actually
causes injury.
Id. (footnote omitted). For example, the need to train officers about the constitutional limitations
on the use of deadly force is obvious if the city arms its officers with firearms. Id. at 390 n.10.
29
The Fifth Circuit has laid out three clear requirements for any failure to train claim: “(1)
the municipality’s training policy or procedure was inadequate; (2) the inadequate training policy
was a ‘moving force’ in causing violation of the plaintiff’s rights; and (3) the municipality was
deliberately indifferent in adopting its training policy.”
Valle, 613 F.3d at 544; see also
Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
Plaintiffs generally allege a lack of training to properly use force.
(Opp. at 44.)
However, Plaintiffs do not provide evidence of any particular deficiencies in the officers’
training.
Instead, Plaintiffs argue simply that the inadequacy of the officers’ training is
manifested through their allegedly unconstitutional behavior. (Id. at 45.)
To succeed on a failure to train claim, “a plaintiff must allege with specificity how a
particular training program is defective.” Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th
Cir. 2005). Plaintiffs fail to identify any specific deficiencies regarding Galveston officers’
training. (Opp. at 44-45.) Vague assertions regarding the need for “better or more training” is
insufficient for a constitutional failure to train claim. See City of Canton, 489 U.S. at 391.
“Such a claim could be made about almost any encounter resulting in injury, yet not condemn
the adequacy of the program to enable officers to respond properly to the usual and recurring
situations with which they must deal.” Id.
The only summary judgment evidence directly related to the officers’ training is the
City’s evidence that all officers were trained in accordance with standards adopted by the state of
Texas through the Texas Commission on Law Enforcement Standards and Education
(“TCLEOSE”). (Mot. at 24.) Although not dispositive, compliance with state requirements is “a
factor counseling against a ‘failure to train’ finding.” Zarnow, 614 F.3d at 171 (5th Cir. 2010);
see also Hobart v. City of Stafford, 784 F. Supp. 2d 732, 754 (S.D. Tex. 2011). Because
30
Plaintiffs have not specifically identified how the officers’ training regimen was lacking, or
provided sufficient evidence in support, the City is entitled to summary judgment on this claim.
IV.
CONCLUSION
For the reasons stated above, the City of Galveston’s Motion for Summary Judgment
(Doc. No. 112) is DENIED as to Plaintiffs’ claim that they were injured pursuant to a municipal
custom of using excessive form and DENIED as to Plaintiffs’ claim that they were injured
pursuant to a municipal custom of underreporting uses of force. The Motion is GRANTED as to
Plaintiffs’ claim that the City of Galveston failed to adequately train its officers to properly use
force.
IT IS SO ORDERED.
SIGNED this the fifth day of March, 2014.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
31
Appendix 1: Reporting on Uses of Force during the H2o Incident11
Officer
Suspect
Type of
force
1
Garcia
C. O’Balle
2
C.
Sanderson
C. O’Balle
3
C.
Sanderson
Unknown
Closed
No
hand
strikes: pretasing
Baton
No
strikes: pretasing
O.C. spray No
J.
Belluomini
C. O’Balle O.C. spray
4
Disputed SelfReported
reported? by others?
No15
Use of
force
form?
No
Yes
No12
Yes
Yes and
No13
No
Yes
Yes and
No14
No
No
No
No
11
In constructing Appendix 1, the Court was mindful of Galveston Police Department Rules and
Regulations, specifically part 11 of RR – 001:
11. Reporting the use of Force
Any officer who discharges a weapon, applies force (other than physical strength
or skill) or causes any injury to a suspect or other person must immediately notify
an on-duty supervisor and file the appropriate report with the Office of the Chief
of Police as soon as practical.
(Doc. No. 112-8, at 15.) In light of this directive, the Court has not included in Appendix 1 any
uses of force which may be characterized as mere application of “physical strength or skill,” such
as pushing.
12
Omitted from Officer Sanderson’s October 5th report (Doc. No. 112-13, at 34-35); Officer
Longoria’s October 5th supplement (Doc. No. 112-13, at 44-45); and Officer Goode’s October
5th report and October 10th supplement (Doc. No. 112-15, at 46-47). Both Officer Goode and
Officer Longoria now admit that they saw Officer Garcia use closed hand strikes on Cole
O’Balle. (Doc. No. 112-16, at 7-8; Doc. No. 112-20, at 61-62.)
13
Reported by Officer Garcia (Doc. No. 112-13, at 42) and Officer Longoria (id., at 44). Omitted
by Officer Goode. (Doc. No. 112-15, at 46-47.)
14
Reported by Officer Garcia (Doc. No 112-13, at 42) and alluded to in Officer Goode’s October
10th supplement (Doc. No. 112-15, at 47). Omitted from Officer Goode’s October 5th report
(Doc. No. 112-15, at 46) and Officer Longoria’s October 5th supplement (Doc. No. 112-13, at
44).
32
Officer
Suspect
Type of
force
Disputed SelfReported
reported? by others?
5
Longoria
C. O’Balle
Taser
No
Yes
6
C.
Sanderson
C. O’Balle
No17
No
7
Unknown
Yes19
No
No
No
8
Unknown
Yes20
No
No
No
9
Unknown
Yes21
No
No
No
10
C.
Sanderson
No
Yes
Yes and
No22
No
Baton
strikes:
post-tasing
C. O’Balle Closed
hand
strikes:
post-tasing
C. O’Balle Kicks:
post-tasing
S.
Lifted by
Belluomini hair
S.
O.C. spray
Belluomini
Yes and
No16
Yes and
No18
Use of
force
form?
No
No
15
Observed by Michael Patterson (Doc. No. 112-17, at 27) and confirmed by Officer Garcia in
December 2008 interview, although he does not identify the officer responsible. (Doc. No. 11216, at 13.)
16
Reported by Officer Sanderson (Doc. No. 112-13, at 35) and Officer Garcia (id., at 42).
Omitted by Officer Goode in October 5th report (Doc. No. 112-15, at 46), but included in
October 10th supplement (id. at 47).
17
Reported by Officer Goode in October 10th supplement (Doc. No. 112-15, at 47) and
confirmed by Officer Goode in October and November 2008 interviews (Doc. No. 112-16, at 4,
8).
18
Reported by Officer Goode in October 10th supplement (Doc. No. 112-15, at 47) and
confirmed by Officer Goode in October and November 2008 interviews (Doc. No. 112-16, at 4,
8). Omitted by Officer Goode in October 5th report (Doc. No. 112-15, at 46) and by Officer
Longoria in October 5th supplement (Doc. No. 112-13, at 44).
19
Observed by Calvin Silva (Doc. No. 113-9, at 64) and Aaron Trevino (Doc. No. 113-20, at 13,
16).
20
Observed by Calvin Silva (Doc. No. 113-19, at 64).
21
Reported by Mrs. Belluomini (Doc. No. 117-19, at 20).
22
Reported by Officer Garcia in October 5th report (Doc. No. 112-13, at 42) and alluded to in
Officer Goode’s October 10th supplement (Doc. No. 112-15, at 47). Omitted from Officer
33
Officer
Suspect
Type of
force
Disputed SelfReported
reported? by others?
11
McDermott
Backe
No
Yes
12
No
13
McDermott, Backe
Doucette
Unknown
Backe
14
McDermott
Backe
Thrown
into wall
Thrown to
ground
Knee strike
to upper
back
Closed
hand strikes
15
Doucette
Backe
16
Franco
Backe
Use of
force
form?
No
Yes24
Yes,
delayed23
Yes
No
Yes25
No
No
No
No
Yes
Yes,
delayed,
and No26
No
No
Yes,
delayed,
and No29
Yes
Closed
No
hand strikes
Closed
No
hand strikes
Yes,
delayed27
Yes,
delayed28
Yes
Goode’s October 5th report (Doc. No. 112-15, at 46) and Officer Longoria’s October 5th
supplement (Doc. No. 112-13, at 44).
23
Reported in Officer Doucette’s October 8th supplement. (Doc. No. 112-15, at 23.) On October
8, 2008, all officers involved in the H2o incident were ordered to supplement their initial reports.
(Id., at 40.)
24
Doucette’s reporting of this force was delayed. (Doc. No. 112-15, at 23.)
25
Reported by Mr. Backe (Doc. No. 113-10, at 4-5) and observed by Chris Lankford (Doc. No.
112-17, at 28) and Danny Higgins (id. at 32).
26
Reported by Officer Doucette in October 8th supplement. (Doc. No. 112-15, at 23.) On
October 8, 2008, all officers involved in the H2o incident were ordered to supplement their
initial reports. (Id., at 40.) Omitted from Officer Garcia’s October 5th report (Doc. No. 112-13, at
42-43) and Officer Franco’s October 8th supplement (Doc. No. 112-15, at 39). In a December
2008 interview, Officer Garcia acknowledged seeing Officer McDermott and Officer Franco
struggling with Mr. Backe. (Doc. No. 112-16, at 13.)
27
Reported in October 8th supplement. (Doc. No. 112-15, at 23.) On October 8, 2008, all
officers involved in the H2o incident were ordered to supplement their initial reports. (Id., at 40.)
28
Reported in October 8th supplement. (Doc. No. 112-15, at 39.) On October 8, 2008, all
officers involved in the H2o incident were ordered to supplement their initial reports. (Id., at 40.)
29
Reported by Officer Doucette in October 8th supplement. (Doc. No. 112-15, at 23.) On
October 8, 2008, all officers involved in the H2o incident were ordered to supplement their
34
Officer
Suspect
Type of
force
Disputed SelfReported
reported? by others?
No
No
Yes32
No
Yes,
delayed31
No
Use of
force
form?
No
Yes
17
18
Unknown
Coward
Backe
Silva
Yes30
No
19
Unknown
Silva
20
Unknown
Silva
21
22
Unknown
Unknown
Silva
Silva
23
24
25
Longoria
Balli
Unknown
G. O’Balle
G. O’Balle
G. O’Balle
Kick
Flashlight
strike
Baton
strike
Thrown to
ground
O.C. spray
Body
strikes
Taser
O.C. spray
Kick
No
No
No33
No
No
No
No34
Yes35
No
No
No
No
No
No
No
No
Yes37
Yes
Yes
No
Yes
No36
No
No
Yes
No
initial reports. (Id., at 40.) Omitted from Officer Garcia’s October 5th report (Doc. No. 112-13, at
42-43) and Officer McDermott’s October 5th report (Doc. No. 112-14, at 3-4). In a December
2008 interview, Officer Garcia acknowledged seeing Officer McDermott and Officer Franco
struggling with Mr. Backe. (Doc. No. 112-16, at 13.)
30
Reported by Mr. Backe (Doc. No. 113-10, at 5) and observed by Michael McMillan (Doc. No.
112-17, at 34), Blair Patterson (id. at 26), and Danny Higgins (id. at 32).
31
Reported in October 12th supplement, but omitted the use of a flashlight. (Doc. No. 112-15, at
50.) On October 8, 2008, all officers involved in the H2o incident were ordered to supplement
their initial reports. (Id., at 40.) In October 21, 2008 interview, Officer Coward admitted that he
used a flashlight to strike Mr. Silva. (Doc. No. 112-16, at 2.)
32
Reported by Mr. Silva. (Doc. No. 113-19, at 67.)
33
Officer Michael admitted in his June 2013 deposition that he saw Mr. Silva “hip tossed” to the
ground by another officer. (Doc. No. 113-1, at 35-36.)
34
Officer Michael admitted in his June 2013 deposition that he saw Mr. Silva pepper sprayed by
a DEA agent. (Doc. No. 113-1, at 33.)
35
Reported by Mr. Silva. (Doc. No. 113-19, at 71-72.)
36
Alluded to in Lt. Frankland’s October 6th report, but Lt. Frankland disclaimed personal
knowledge (Doc. No. 112-15, at 29-30). Omitted from Officer Longoria’s October 5th
supplement (Doc. No. 112-13, at 44) and Sgt. Mitchell’s October 5th supplement (Doc. No. 11215, at 16-17). In November 2008 interview, Lt. Frankland admitted that O.C. spray was used on
Gil O’Balle. (Doc. No. 112-16, at 10.)
35
Officer
Suspect
Type of
force
Disputed SelfReported
reported? by others?
26
Unknown
G. O’Balle
Yes38
No
No
27
Balli
Trevino
Pressed
face into
pavement
O.C. spray
Use of
force
form?
No
No
No
No
28
Unknown
Trevino
Yes and
No39
Yes40
No
No
No
29
Frankland
G. O’Balle
No41
No
No
No
30
Burus
McMillan
Yes42
No
No
No
31
Burus
McMillan
Yes43
No
No
No
32
Benham
Goodson
No
Yes,
delayed44
Yes,
delayed,
and No45
No
Baton
strikes
Dragged
over
concrete
Thrown on
car
Thrown to
ground
Thrown to
ground
37
Reported by Gil O’Balle. (Doc. No. 113-17, at 103.)
38
Reported by Gil O’Balle. (Doc. No. 113-17, at 100-01.)
39
Numerous officers acknowledge that Mr. Trevino was pepper sprayed that night. (Doc. No.
112-15, at 29-30, 40, 43.) No one admits to seeing it happen or identifies the officer involved.
40
Reported by Mr. Trevino. (Doc. No. 113-20, at 21, 31.)
41
Confirmed by Lt. Frankland in his April 2013 deposition. (Doc. No. 113-2, at 120-21.)
42
Reported by Mr. McMillan. (Doc. No. 113-5, at 62.) In October 2008, Officer Burus denied
using any force in Mr. McMillan’s arrest. (Doc. No. 112-16, at 2.)
43
Reported by Mr. McMillan. (Doc. No. 113-15, at 34.) In October 2008, Officer Burus denied
using any force in Mr. McMillan’s arrest. (Doc. No. 112-16, at 2.)
44
Omitted from October 5th supplement (Doc. No. 112-13, at 39). Reported in October 8th
supplement. (Doc. No. 112-15, at 32.) On October 8, 2008, all officers involved in the H2o
incident were ordered to supplement their initial reports. (Id., at 40.)
45
Reported in Officer Doucette’s October 8th supplement (Doc. No. 112-15, at 24) and Officer
Goode’s October 10th supplement (id. at 48). On October 8, 2008, all officers involved in the
H2o incident were ordered to supplement their initial reports. (Id., at 40.) Omitted from Officer
Goode’s October 5th report (Doc. No. 112-15, at 46); Officer Camune’s October 8th supplement
36
Officer
Suspect
Type of
force
Disputed SelfReported
reported? by others?
33
Unknown
Goodson
Yes46
No
No
34
35
Unknown
Caldwell
Goodson
Goodson
Kneed in
the side
Kick
O.C. spray
Yes47
No
No
Yes,
delayed48
No
Yes
36
Simpson
Cornwell
Yes50
No
No
Yes,
delayed,
and No49
No
37
Simpson
Cornwell
Yes51
No
No
No
38
Unknown
Packard
Yes52
No
No
No
39
Unknown
Packard
Yes53
No
No
No
Thrown to
ground
Pressed
face into
ground
Thrown to
ground
O.C. spray
Use of
force
form?
No
No
(id. at 27-28); Lt. Caldwell’s October 5th supplement (Doc. No. 112-13, at 39); and Lt.
Caldwell’s October 8th supplement (Doc. No. 112-15, at 32).
46
Reported by Mr. Goodson. (Doc. No. 117-23, at 6.)
47
Reported by Mr. Goodson. (Doc. No. 117-23, at 6.)
48
Reported in October 8th supplement. (Doc. No. 112-15, at 35.) On October 8, 2008, all
officers involved in the H2o incident were ordered to supplement their initial reports. (Id., at 40.)
49
Reported in Officer Doucette’s October 8th supplement (Doc. No. 112-15, at 24) and in
Officer Benham’s October 8th supplement (id. at 36). Omitted from Officer Camune’s October
8th supplement (id. at 27-28) and Officer Goode’s October 5th report and October 10th
supplement (id. at 46-48).
50
Reported by Mr. Cornwell. (Doc. No. 113-14, at 36.) In October 2008 interview, Officer
Simpson stated that no force was used in Mr. Cornwell’s arrest. (Doc. No. 112-16, at 4.)
51
Reported by Mr. Cornwell. (Doc. No. 113-14, at 37, 42.) In October 2008 interview, Officer
Simpson stated that no force was used in Mr. Cornwell’s arrest. (Doc. No. 112-16, at 4.)
52
Reported by Mr. Packard. (Doc. No. 113-18, at 34-35.) In October 2008 interview, Officer
Rutherford said that “minimal force” was used in arresting Mr. Packard. (Doc. No. 112-16, at 5.)
In his June 2013 deposition, Officer Rutherford said that Mr. Packard was on the ground when
Officer Rutherford reached him. (Doc. No. 112-21, at 65.)
53
Reported by Mr. Packard. (Doc. No. 113-18, at 34-35.) In October 23, 2008 interview, Officer
Rutherford said that “minimal force” was used in arresting Mr. Packard. (Doc. No. 112-16, at 5.)
37
Officer
40
41
42
43
44
Suspect
Type of
force
Disputed SelfReported
reported? by others?
R.
Sanderson
and/or
Rutherford
Tovar,
Dooley,
Mims
Manuell
Tovar,
Dooley,
and/or
Mims
Manuell
Mims
Manuell
Frankland
Guidry
O.C. spray
Yes and
No54
No
No
Use of
force
form?
No
Young
Thrown to
ground
No
Yes and
No55
No
No
Young
Body
strikes: 1st
beating
No
Yes and
No56
No
No
Young
Kick to
face
Kick to ribs
Yes57
No58
No59
No
Yes60
Yes
No61
Yes
Young
54
In October 23, 2008 interview, Officer R. Sanderson claimed that Mr. Guidry had been pepper
sprayed before Officer R. Sanderson came in contact with him. (Doc. No. 112-17, at 2.) Mr.
Guidry and Mr. Packard claim that Mr. Guidry was pepper sprayed after he arrived at the jail, by
either Officer R. Sanderson or Officer Rutherford. (Doc. No. 113-18, at 41-42; Doc. No. 112-17,
at 25.)
55
Reported in Officer Mims Manuell’s and Officer Dooley’s joint October 5th supplement (Doc.
No. 112-15, at 38) but omitted from Officer Mims Manuell’s October 5th report (Doc. No. 11214, at 10) and Officer Tovar’s October 5th supplement (Doc. No. 112-15, at 15).
56
Omitted from Officer Tovar’s October 5th supplement (Doc. No. 112-15, at 15) and Officer
Mims Manuell’s October 5th report (Doc. No. 112-14, at 10). Alluded to in Officer Mims
Manuell’s and Officer Dooley’s joint October 5th supplement (i.e., a struggle ensued). (Doc. No.
112-15, at 38.) In an October 2008 interview, Officer Tovar admitted that he used closed hand
strikes to take Mr. Young into custody. (Doc. No. 112-16, at 3.)
57
Reported by Mr. Young. (Doc. No. 113-21, at 59.)
58
Officer Mims Manuell and Officer Dooley alluded to a struggle with Mr. Young in their joint
October 5th supplement but did not report specific acts of force. (Doc. No. 112-15, at 38.)
59
Sgt. Mitchell alluded to a struggle with Mr. Young but identified only the officers involved,
not the specific acts of force observed. (Doc. No. 112-15, at 16-17.)
38
Officer
45
46
47
Suspect
Type of
force
Disputed SelfReported
reported? by others?
Dooley,
Mims
Manuell,
and/or
Frankland
Frankland
Young
“Dog
piled”
Yes62
No63
No64
Use of
force
form?
No
Young
Kneed in
back
Stepped on
neck
No
Yes
No65
No
Yes66
No
No67
No
Dooley,
Mims
Manuell,
and/or
Frankland
Young
60
Reported in Lt. Frankland’s October 6th report (Doc. No. 112-15, at 30) but disputed by Mr.
Young. Mr. Young claims that Officer Mims Manuell’s kick to the face is what caused him to
fall back onto the ground. (Doc. No. 113-21, at 61.)
61
Sgt. Mitchell alluded to a struggle with Mr. Young but identified only the officers involved,
not the specific acts of force observed. (Doc. No. 112-15, at 16-17.) Officer Mims Manuell and
Officer Dooley likewise alluded to a struggle with Mr. Young in their joint October 5th
supplement but did not report specific acts of force. (Doc. No. 112-15, at 38.)
62
Reported by Mr. Young. (Doc. No. 113-21, at 61.)
63
Officer Mims Manuell and Officer Dooley alluded to a struggle with Mr. Young in their joint
October 5th supplement but did not report specific acts of force. (Doc. No. 112-15, at 38.)
64
Sgt. Mitchell alluded to a struggle with Mr. Young but identified only the officers involved,
not the specific acts of force observed. (Doc. No. 112-15, at 16-17.)
65
Sgt. Mitchell alluded to a struggle with Mr. Young but identified only the officers involved,
not the specific acts of force observed. (Doc. No. 112-15, at 16-17.) Officer Mims Manuell and
Officer Dooley likewise alluded to a struggle with Mr. Young in their joint October 5th
supplement but did not report specific acts of force. (Doc. No. 112-15, at 38.)
66
Reported by Mr. Young. (Doc. No. 113-21, at 61-62.)
67
Sgt. Mitchell alluded to a struggle with Mr. Young but identified only the officers involved,
not the specific acts of force observed. (Doc. No. 112-15, at 16-17.) Officer Mims Manuell and
Officer Dooley likewise alluded to a struggle with Mr. Young in their joint October 5th
supplement but did not report specific acts of force. (Doc. No. 112-15, at 38.)
39
Officer
48
49
68
Suspect
Type of
force
Disputed SelfReported
reported? by others?
Dooley,
Mims
Manuell,
and/or
Frankland
Unknown
Young
Body
strikes: 2nd
beating
Yes68
No69
No70
Use of
force
form?
No
Young
Taser
Yes71
No
No
No
Reported by Mr. Young. (Doc. No. 113-21, at 61-62.)
69
Officer Mims Manuell and Officer Dooley alluded to a struggle with Mr. Young in their joint
October 5th supplement but did not report specific acts of force. (Doc. No. 112-15, at 38.)
70
Sgt. Mitchell alluded to a struggle with Mr. Young but identified only the officers involved,
not the specific acts of force observed. (Doc. No. 112-15, at 16-17.)
71
Reported by Mr. Young. (Doc. No. 113-21, at 61-63.)
40
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