Krause v. Lewis
Filing
17
OPINION on Summary Judgment. Because Game Warden Lewis comfortably meets the standards for qualified immunity, Krause will take nothing from Lewis. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS District Court
United States
Southern District of Texas
ENTERED
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Teresa Krause,
Plaintiff,
'Versus
Dave Lewis,
Defendant.
October 31, 2016
David J. Bradley, Clerk
Civil Action H-I 5-773
Opinion on Summary Judgment
I.
Introduction.
A game warden was handcuffing a woman. She struggled and kneed a
second officer. The game warden threw her to the ground. The game warden is
qualifiedly immune. He will prevail.
2.
Background.
OnJune IS, 2.014, Teresa Krause went with her husband, Harry, and two
teenage children to Lake Bryan, in Brazos County, to celebrate Father's Day.
Krause says that, within less than an hour of their arrival, Harry and she had
imbibed two or three beers before a friend told them that their minor son was
being arrested. They set out with their other son to find him.
Dave Lewis is a game warden for the Texas Department of Parks and
Wildlife. He had arrested Krause's son for public intoxication and had put him,
handcuffed, in the back seat of his truck. A.s the Krauses approached the truck,
Lewis stopped them, and both parties got out of their vehicles. Krause went to
Lewis's truck, opened the door, checked on her son in handcuffs, then closed the
door.
Krause says that the next thing she saw was Lewis handcuffing her
husband while he was in the spread-eagle position. On the cellular phone
recording, they discussed that before Lewis handcuffed her husband, he had
approached Lewis to ask what was happening and "got up" in his face. At some
point, Lewis threw her husband to the ground.
As recorded in three cellular phone videos, while Lewis used his knee to
secure her thrashing husband on the ground, Krause and her son circled the
men. Lewis asked Angelica Garza, his ride along, to watch the other members
of the family while he attended to the Krauses until additional wardens and
police officers could arrive.
What happened after additional police officers arrived is recorded in a
video from the dashboard camera of one the officers. Lewis and an officer
handcuffed Krause. She struggled when they tried to handcuff the arm in which
she was holding her phone. Once the handcuffs were on her wrists, she moved
her legs around and kneed the other officer in the groin. Lewis threw her to the
ground. A few minutes later, an officer helped her stand and removed the
handcuffs.
3.
Q..ualified Immuniry.
To find that Lewis is protected by qualified immunity on summary
judgment, the court must look at the facts in the light most favorable to Krause
and decide whether he violated a constitutionally protected right. Summary
I
judgment is appropriate because no genuine dispute of material fact exists. The
material facts are captured in 47 collective minutes of video from one dashboard
camera and three cellular phone cameras.
4-
Retaliation.
To prove her retaliation claim, Krause must have shown that (a) she was
engaging in constitutionally protected activity, (b) Lewis's actions would have
'Saucierv. Katz, 533 U.S.
194, 201 (2001).
objectively chilled that activity, and (c) he acted out of retaliatory intent against
her because of that activity.'
Krause says that Lewis illegally arrested her and detained her because she
was exercising her free-speech and press rights. She says that if she had not
criticized him and videotaped her husband's arrest, then she would not have
been detained or arrested.
Lewis did not retaliate against Krause's exercising her constitutional
rights. After careful review of the four videos, at no point did Lewis ask Krause
to stop filming. He asked her to stand farther away while she filmed. She dropped
her cellular phone when Lewis and another officer handcuffed her after she had
been filming for more than seven minutes and speaking to Lewis for most of that
time. The cellular phone then sat on the ground for a few minutes until an
officer picked it up and set it on the side of a truck bed while Krause was
detained.
Excessive Force.
5.
Krause has a constitutional right to be free from excessive force. Whether
Lewis used excessive force depends on whether he acted objectively reasonably,
considering the facts and circumstances. 3 To overcome a qualified immunity
claim, Krause must have shown (I) that she had an injury,
(2.) that the injury
was caused only by clearly excessive force, and (3) that the excess was clearly
unreasonable. 4
Krause claims that she had an injury caused by being thrown to the
ground - a lacerated spleen. She says that she went to Scott &- White Memorial
Hospital the day after these events and stayed there for three days. In the
dashboard camera video, Krause moves around on the ground, sits up, stands,
'See Hartman v. MooTe, 547 U.S. 250, 256 (2006); Keenan v. Tejeda, 29 0 F'3d .252,
25 8 (5 Gr. 2002).
th
3Graham v. Connor, 490 U.S. 386,397 (1989)'
th
4See Graham, 490 U.S. at 396-97; Poole v. Ciry ofShrcveport, 691 F'3d 624,628 (5
Gr. 2012).
and walks. Even if Krause had an injury caused solely by being thrown to the
ground, she has not proven the other elements.
The force Lewis used was neither clearly excessive nor clearly
unreasonable. He and another officer had begun to handcuff Krause, securing
one of several people at the scene while waiting for more police officers to arrive.
Handcuffing the first wrist went smoothly. When Lewis and the officer tried to
handcuff the other wrist, Krause struggled. As soon as the handcuffs were on
both wrists, she moved her legs around and kneed the other officer in the groin.
In response, Lewis threw her to the ground. A couple minutes later, a different
officer helped her sit upright. She remained in handcuffs for approximately five
minutes and was released when more officers arrived and her husband was
moved into the patrol car.
A reasonable officer could have interpreted these actions as resisting
arrest. Even assuming, as Krause claims, that the knee was a reflexive response,
not an intentional hit, a reasonable officer could have mistaken it for an
intentional hit.
6.
False Arrest.
A false arrest claim depends on whether an officer had probable cause to
arrest someone. 5 Police officers are allowed to take reasonably necessary action
to maintain the status quo. 6 Lewis did not violate Krause's constitutional right
to be free from unreasonable seizure. On the arrival of a second officer, Lewis
handcuffed Krause. More officers arrived and moved her husband into the patrol
car. The remaining officers then discussed whether to charge Krause with public
intoxication. They decided to let her go. At this point, the son and the husband
were in the patrol car, and more officers were present. The scene had calmed.
These events took approximately five minutes.
5Haggerry 'V. T cxas Southern Uni'Versiry, 391 F.3d 653, 655'56 (5th Cir. 2004); Sears,
Roebuck & Co. 'V. Castillo, 693 S.W.2d 374 (Tex. 1985).
6S ee United States 'V. Hensley, 469 U.S. 221, 235 (1985);Allen 'V. Cisneros, 815 F'3d
th
239,24 6 (5 Cir. 2016).
7.
Conclusion.
Game Warden Dave Lewis was considerate, polite, restrained, and
responsible. He used reasonable measures to respond to a publicly intoxicated
minor son and his publicly intoxicated, struggling father and to detain his
mother to stabilize her briefly while the scene, with approximately ten onlookers,
calmed. Because he comfortably meets the standards for qualified immunity,
Krause will take nothing from Lewis.
Signed on October
'!>l, 2016, at Houston, Texas.
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LynnN.HUgi1
United States DistrictJudge
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