Gorsky et al v. Harris County, Texas et al
Filing
80
MEMORANDUM AND OPINION entered GRANTING 48 MOTION for Summary Judgment , GRANTING IN PART and DENYING IN PART 53 AMENDED; MOOTIMG 46 MOTION MOTION for Summary Judgment , GRANTING IN PART and DENYING IN PART 51 MOTION for Summary Judgment , 46 MOTION for Summary Judgment . (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACOB GORSKY and OLESYA GORSKY,
Plaintiffs,
VS.
HARRIS COUNTY, TEXAS, HARRIS
COUNTY PRECINCT 4, CONSTABLE’S
OFFICE, DEPUTY SMALL, DEPUTY
BERRY, DEPUTY GUAJARDO, and
CORPORAL RIVAUX,
Defendants.
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February 03, 2020
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2877
MEMORANDUM AND OPINION
Jacob and Olesya Gorsky sued Harris County, Texas; three deputies from the Harris
County Precinct 4 Constable’s Office—Jesus Guajardo, Patrice Small, and Glenn Berry, Jr.—;
and Corporal Benjamin Rivaux from the Constable’s Office, under 42 U.S.C. § 1983. The
Gorskys allege that the deputies arrested Mr. Gorsky without probable cause; illegally entered
and searched the Gorskys’ home; and used excessive force on the Gorskys while handcuffing
them. The Gorskys allege that Harris County had a policy or custom of allowing its lawenforcement officers to use excessive force and illegally enter citizens’ homes, and that Corporal
Rivaux failed to supervise the other officers while they violated the Gorskys’ rights.
After discovery, the defendants moved for summary judgment and asserted qualified
immunity. (Docket Entry Nos. 48, 51, 53). They argue that undisputed record evidence shows
that, as a matter of law, the officers had the Gorskys’ consent to enter the home, had probable
cause to arrest Mr. Gorsky, and did not use force that caused any injury. Harris County also
argues that the Gorskys have not shown a custom or practice sufficient to support municipal
liability. The Gorskys responded, and the defendants replied. (Docket Entry Nos. 68, 72, 73,
74). The court ordered the Gorskys to rewrite their response, using pincites to identify the
specific record evidence they argued supported their claims. (Docket Entry No. 75). The
Gorskys filed a revised response brief, and the defendants replied again. (Docket Entry Nos. 76,
77, 78, 79).
After a careful review of the record evidence, briefs, and the applicable law, the court
grants Harris County’s motion for summary judgment, (Docket Entry No. 48), and denies in part
and grants in part the individual officers’ motions for summary judgment, (Docket Entry Nos.
51, 53).1 The reasons are explained in detail below.
I.
Background
Jacob and Olesya Gorsky lived in Spring, Texas. (Docket Entry No. 68-7 at 1). Their
neighbors, the Koczman family, and the Gorskys, did not get along. Both families frequently
called the local police station, Harris County Constable Precinct 4, to complain about the other.
The complaints ranged from the Koczmans allegedly throwing tree limbs into the Gorskys’ yard
and dog feces into their pool, to the Gorskys allegedly directing rainwater into the Koczmans’
yard and using a loud pool pump. (Docket Entry No. 48-2 at 2–6). The two families placed at
least 19 complaint calls to Precinct 4 between 2013 and 2019. (Docket Entry No. 48-1; Docket
Entry No. 48-2 at 2–6).
On the evening of February 20, 2016, the Gorskys threw a pool party. (Docket Entry No.
68-6 at 1). The Koczmans called the police station with a noise complaint. Two deputies—
Berry and Guajardo—responded around midnight. (Docket Entry Nos. 51-5, 51-6). Mr. Gorsky
1
Corporal Rivaux filed an amended motion for summary judgment, (Docket Entry No. 53), which moots
his original motion, (Docket Entry No. 46).
2
waived a pool rod at the officers when they arrived; they thought he at least appeared to be
drunk. (Docket Entry No. 51-6 at 1; Docket Entry No. 68-2 at 67). Deputies Berry and
Guajardo left after warning the Gorskys to “quiet down.” (Docket Entry No. 51-6 at 1).
A few hours later, the Koczmans called the police station a second time, reporting that
their security camera had caught a woman, who appeared to be Olesya Gorsky, cracking an egg
on the Koczmans’ car. (Docket Entry No. 51-8 at 3). Deputies Guajardo and Berry returned,
along with Deputy Small and Corporal Rivaux, who was training Deputy Small. (Docket Entry
No. 51-9 at 1). The officers watched the video, which showed a woman walking over to the
Koczmans’ car and smashing an egg on the windshield. (Docket Entry No. 48-4; Docket Entry
No. 51-10 at 2). After watching the footage, the officers went next door to the Gorskys’ home.
The officers rang the doorbell, and Jacob Gorsky opened the door. (Docket Entry No.
51-11 at 2). Deputy Small recorded the encounter with her police microphone. (Docket Entry
Nos. 48-6, 51-12). Corporal Rivaux told Mr. Gorsky that there was “an incident on video of
[his] wife” and that he needed “to wake up [his] wife and have her come downstairs.” (Docket
Entry No. 51-12 at 2). Mr. Gorsky told the officers to “get out of it,” but said that he would call
his wife. (Id.). Mr. Gorsky then tried to shut the front door, but Corporal Rivaux and Deputy
Berry said, “we’re not closing the door,” and they put their feet in the doorframe to prevent Mr.
Gorsky from closing the front door. (Docket Entry No. 51-12 at 3; Docket Entry No. 68-1 at 47).
Mr. Gorsky again tried to close the door, but the deputies kept their feet in place. (Docket Entry
No. 51-12 at 3). Mr. Gorsky told the officers to “[g]et out, please. Get out of it.” (Id.). They
did not.
Deputy Guajardo then told Mr. Gorsky that he was “hindering an investigation,” and that
the officers had “every legal right to get in this house, put [Mr. Gorsky] in handcuffs, and take
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[him] to jail.” (Id. at 3–4). Mr. Gorsky agreed to fetch his wife and again asked the officers to
take their feet out of the doorway. (Id. at 4). Deputy Guajardo replied, “[t]hat is not an option,”
and told Mr. Gorsky that he must either get Ms. Gorsky or the officers would handcuff him.
(Id.). Mr. Gorsky replied that the officers should handcuff him. (Id.).
Deputy Guajardo2 then handcuffed Mr. Gorsky, and Corporal Rivaux told him to “have
fun in Harris County.” (Docket Entry No. 68-3 at 85). Mr. Gorsky states that he screamed in
pain, (Docket Entry No. 68-5 at 26), although Deputy Small’s audio recording did not record any
screams, (Docket Entry No. 48-6). Corporal Rivaux also asked Mr. Gorsky if he wanted to call
his wife to tell her that he was going to jail. (Docket Entry No. 68-3 at 85). Deputy Guajardo
then took Mr. Gorsky’s arm and led him to the patrol car, where he placed Mr. Gorsky inside the
car. (Docket Entry No. 51-10 at 3). Security-camera footage shows Deputy Guajardo leading
Mr. Gorsky across the lawn to the patrol car. (Docket Entry No. 51-14).
Corporal Rivaux knocked on the already-open front door and called out “Police
Department.”
(Docket Entry No. 68-3 at 86).
Olesya Gorsky testified that she “heard a
commotion in [the] front foyer” and saw the officers, “already in the house,” turn the foyer light
on and knock “on the side of the wide-opened front door.” (Docket Entry No. 68-6 at 2–3). Ms.
Gorsky came to the front door and asked the officers, “[w]hat are you doing, guys?” (Docket
Entry No. 51-12 at 5). Corporal Rivaux told Ms. Gorsky to “[c]ome on out,” but Ms. Gorsky
expressed concern that her son was in the house. (Id.). Ms. Gorsky stated in her declaration that,
2
The Gorskys inaccurately state in their response that Deputy Berry testified that it was Corporal Rivaux
who handcuffed Mr. Gorsky. (Docket Entry No. 68 at 10). Deputy Berry stated in his deposition that he
did not remember who handcuffed Mr. Gorsky, (Docket Entry No. 68-1 at 52–53), and stated in his sworn
affidavit that Deputy Guajardo handcuffed Mr. Gorsky, (Docket Entry No. 51-13 at 3). Corporal
Rivaux’s deposition also states that it was Deputy Guajardo who handcuffed Mr. Gorsky. (Docket Entry
No. 68-3 at 85).
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“without explaining anything or offering [her] to get dressed, [the] police rudely turned [her]
around and handcuffed [her] behind [her] back,” (Docket Entry No. 68-6 at 3), and Corporal
Rivaux “grabbed [her] naked shoulders, twisted [her] around and, with his face inches from [her]
face stuck his finger in [her] bare chest and said ‘you egged the car.’” (Id.) Corporal Rivaux
then explained that the Koczmans’ security camera had filmed a woman cracking an egg on their
car and encouraged Ms. Gorsky to confess. (Docket Entry No. 51-12 at 8). Ms. Gorsky
suggested that the egg-cracker may have been a friend from their pool party and denied any
involvement. (Id.).
Ms. Gorsky continued to tell the officers that her son was sleeping inside. Corporal
Rivaux asked if they could “come in and put [her]” in a dining room chair. (Id. at 10). Ms.
Gorsky, handcuffed, answered, “[y]eah, yeah.” (Id.). Ms. Gorsky testified that “they all moved
to the dining room [and] pushed [her] in a chair.” (Docket Entry No. 68-6 at 4). Deputy Small
asked Ms. Gorsky where her son was. (Docket Entry No. 51-12 at 11–12). Ms. Gorsky testified
that Deputy Small then “disappeared into the house for a while.” (Docket Entry No. 68-6 at 4).
Corporal Rivaux returned after having left to watch the security-camera footage a second
time. (Docket Entry No. 51-12 at 19). Corporal Rivaux told Ms. Gorsky that he had “just
watched the video” and that the woman in the video was Ms. Gorsky. (Id.). Ms. Gorsky again
denied having “egged” the Koczmans’ car, but Corporal Rivaux issued her a citation for criminal
mischief and a trespass warning. (Id. at 20–21). The officers uncuffed Ms. Gorsky and followed
her into her room to retrieve Mr. Gorsky’s identification. (Id. at 22–25).
5
Deputy Guajardo then called the District Attorney’s Office to request authority to arrest
Mr. Gorsky for interfering with public duties.3 (Docket Entry No. 51-10 at 4). The District
Attorney’s Office declined the charge. (Id.). Deputy Guajardo released Mr. Gorsky from the
handcuffs and from the patrol car. (Id.). He had been sitting, handcuffed, in the patrol car for
about an hour. (Docket Entry No. 68-7 at 4–5).
Days later, the Gorskys filed a formal complaint with the Constable’s Office. (Docket
Entry No. 68-7 at 6). The Precinct 4 Internal Affairs Division concluded that the deputies had
committed no violations and closed the complaint as unfounded. (Docket Entry No. 51-18).
The Gorskys sued, alleging violations of their Fourth and Fourteenth Amendment rights.
(Docket Entry No. 1). The Gorskys asserted claims for unlawful arrest, illegal entry and search
of their home, excessive force, failure to supervise as to Corporal Rivaux, and municipal liability
as to Harris County. (Docket Entry No. 1 at 13–15). Each claim is considered below.
II.
The Legal Standards
A.
The Summary Judgment Standard
“Summary judgment is appropriate only when ‘the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Shepherd on Behalf of Estate of Shepherd v. City of Shreveport, 920 F.3d 278, 282–83 (5th Cir.
2019) (quoting Fed. R. Civ. P. 56(a)). “A material fact is one that might affect the outcome of
the suit under governing law,” and “a fact issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Renwick v. PNK Lake Charles,
L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (quotations omitted). The moving party “always bears
the initial responsibility of informing the district court of the basis for its motion,” and
3
Tex. Penal Code Ann. § 38.15 (West 2015).
6
identifying the record evidence “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“Where the non-movant bears the burden of proof at trial, ‘the movant may merely point
to the absence of evidence and thereby shift to the non-movant the burden of demonstrating that
there is an issue of material fact warranting trial.’” Kim v. Hospira, Inc., 709 F. App’x 287, 288
(5th Cir. 2018) (alteration omitted) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., Inc.,
783 F.3d 527, 536 (5th Cir. 2015)). The moving party must demonstrate the absence of a
genuine issue of material fact, but it need not negate the elements of the nonmovant’s case.
Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017). “If the moving party fails to meet
[its] initial burden, the motion must be denied, regardless of the nonmovant’s response.”
Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Kee v.
City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001)).
“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot
survive a summary judgment motion by resting on the mere allegations of its pleadings.” Duffie
v. United States, 600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must identify specific
evidence in the record and articulate “the precise manner in which” that evidence supports that
party’s claim. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting Forsyth v. Barr,
19 F.3d 1527, 1537 (5th Cir. 1994)). “A party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence.” Lamb v. Ashford Place
Apartments L.L.C., 914 F.3d 940, 946 (5th Cir. 2019) (quotation omitted).
In deciding a
summary judgment motion, “the evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his or her favor.” Waste Mgmt. of La., L.L.C. v. River Birch, Inc.,
920 F.3d 958, 972 (5th Cir. 2019) (alterations omitted) (quoting Tolan v. Cotton, 572 U.S. 650,
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656 (2014) (per curiam)). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
B.
The Qualified Immunity Standard
The deputies assert qualified immunity, arguing that it precludes the § 1983 damages
claims that the Gorskys assert. Qualified immunity protects government officials “from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “In reviewing a motion for summary judgment based on qualified
immunity, [courts] undertake a two-step analysis.” Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir.
2014). “First, [courts] ask whether the facts, taken in the light most favorable to the plaintiffs,
show the officer’s conduct violated a federal constitutional or statutory right.” Id. (citing Tolan,
572 U.S. at 655–56). “Second, [courts] ask ‘whether the defendant’s actions violated clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004)). “A court has
discretion to decide which prong to consider first.” Whitley v. Hanna, 726 F.3d 631, 638 (5th
Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
“Claims of qualified
immunity must be evaluated in the light of what the officer knew at the time he acted, not on
facts discovered subsequently.” Luna, 773 F.3d at 718. But “[a]s the Supreme Court has
recently reaffirmed, ‘in ruling on a motion for summary judgment, the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Id.
(quoting Tolan, 572 U.S. at 651).
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“The relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Lytle v. Bexar County, 560 F.3d 404, 410 (5th Cir. 2009) (quotations omitted).
“When considering a defendant’s entitlement to qualified immunity, [a court] must ask whether
the law so clearly and unambiguously prohibited his conduct that ‘every reasonable official
would understand that what he is doing violates [the law].’” Morgan v. Swanson, 659 F.3d 359,
371–72 (5th Cir. 2011) (en banc) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)). “To
answer that question in the affirmative, [the court] must be able to point to controlling authority
— or a ‘robust consensus of persuasive authority’ — that defines the contours of the right in
question with a high degree of particularity.” Id. (quoting Al-Kidd, 563 U.S. at 742).
“Qualified immunity balances two important interests — the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Id. Qualified
immunity “gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quotations omitted). “[W]hile the
Supreme Court has stated that ‘courts should define the ‘clearly established’ right at issue on the
basis of the ‘specific context of the case,’ it has also recently reminded [courts] that [they] ‘must
take care not to define a case’s ‘context’ in a manner that imports genuinely disputed factual
propositions.’” Luna, 773 F.3d at 724–25 (quoting Tolan, 572 U.S. at 657). A plaintiff has the
burden of overcoming the qualified immunity defense. Bennett v. City of Grand Prairie, 883
F.2d 400, 408 (5th Cir. 1989).
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III.
Analysis
A.
The Summary Judgment Evidence
Harris County’s and the officers’ summary judgment evidence consists of:
1. call records and incident reports from the Gorskys’ and Koczmans’ disputes, from 2013
to 2018, (Docket Entry Nos. 48-1, 48-3, 48-23, 51-1, 51-5, 54-1, 54-4);
2. the Gorskys’ divorce filings, (Docket Entry No. 54-2);
3. security-camera footage from the Koczmans’ house, (Docket Entry Nos. 48-4, 48-6, 48-8,
48-14, 51-14, 54-3, 54-8);
4. the officers’ police-audio recordings and transcripts, (Docket Entry Nos. 48-5, 48-13, 5112, 51-15, 51-16, 51-17, 51-22, 54-5, 54-9, 54-13);
5. Deputy Berry’s deposition testimony and affidavit, (Docket Entry Nos. 51-13, 51-20,
54-16);
6. Corporal Rivaux’s deposition testimony, (Docket Entry Nos. 48-12, 51-23, 54-14);
7. Deputy Small’s deposition testimony and affidavit, (Docket Entry Nos. 51-9, 51-19,
54-17);
8. Deputy Guajardo’s deposition testimony and affidavit, (Docket Entry Nos. 51-10, 51-21);
9. sworn statements from Deputies Berry and Guajardo, (Docket Entry Nos. 51-6, 51-7,
51-11);
10. police-practices expert Roger Clark’s deposition testimony, (Docket Entry No. 48-20);
11. law-enforcement expert Jay Coons’s affidavits, (Docket Entry Nos. 48-22, 48-24);
12. records from the Gorskys’ internal-affairs complaint against the officers, (Docket Entry
Nos. 48-7, 48-21, 51-18, 51-24, 54-6, 54-10);
13. records of a civil case filed by Ms. Koczman against Ms. Gorsky, (Docket Entry No.
51-3);
14. records of a criminal charge filed against Mr. Gorsky, (Docket Entry No. 51-4);
15. the incident report of the criminal mischief charge against Ms. Gorsky, (Docket Entry
No. 51-8);
10
16. the Gorskys’ medical records, some filed under seal, (Docket Entry Nos. 48-15, 51-25,
54-7, 54-15);
17. Mr. Gorsky’s deposition testimony, (Docket Entry Nos. 48-10, 51-26, 54-11);
18. Ms. Gorsky’s deposition testimony, (Docket Entry Nos. 48-2, 48-11, 51-2, 54-12);
19. records detailing complaints filed against Precinct 4 officers, (Docket Entry Nos. 54-18,
48-19);
20. the Gorskys’ interrogatory responses, (Docket Entry No. 54-19);
21. Ms. Gorsky’s psychological evaluation, (Docket Entry No. 54-22);
22. the sworn affidavit of Michael Combest, assistant chief for Precinct 4, (Docket Entry
Nos. 51-27, 54-21); and
23. the Harris County Precinct 4 Constable Department policy manuals, (Docket Entry Nos.
48-16, 48-17, 48-18).
In response, the Gorskys submitted:
1. the officers’ deposition testimony, (Docket Entry Nos. 68-1, 68-2, 68-3, 68-4);
2. the Gorskys’ deposition testimony and affidavits, (Docket Entry Nos. 68-5, 68-6, 68-7);
3. police-practices expert Roger Clark’s affidavit and resume, (Docket Entry Nos. 68-8,
68-10); and
4. a memo detailing complaints filed against other officers, Corporal Drummond and
Deputy Glaze, (Docket Entry No. 68-9).
B.
Evidentiary Objections
1.
The Gorskys’ Declarations
The defendants have objected to Mr. and Ms. Gorsky’s declarations, arguing that they are
“sham affidavits” offered to “dodge . . . cross-examination and allow both Plaintiffs to embellish
their alleged harm.” (Docket Entry No. 72 at 15; Docket Entry No. 74 at 7–9). In the Fifth
Circuit, “a plaintiff may not manufacture a genuine issue of material fact by submitting an
affidavit that impeaches prior testimony without explanation.” Doe ex rel. Doe v. Dall. Indep.
11
Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000). “If a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an affidavit contradicting his own
prior testimony, this would greatly diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.” Id. (quoting Perma Research & Dev. Co. v. Singer Co., 410
F.2d 572, 578 (2d Cir. 1969)). The court may “refuse to consider [a] declaration” or affidavit as
competent summary judgment evidence if the party made inconsistent statements between the
declaration and a deposition. Hacienda Records, L.P. v. Ramos, 718 F. App’x 223, 235 (5th Cir.
2018) (citing Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43–44 (2d Cir. 2000)).
In Hackett v. United Parcel Service, 736 F. App’x 444, 449 (5th Cir. 2018), the Fifth
Circuit affirmed the district court’s decision to disregard an affidavit on summary judgment
based on significant differences between the affidavit and the affiant’s deposition testimony.
The plaintiff stated in his affidavit that he had trained another employee “rather extensively on a
wide variety of topics.” Id. In his deposition, the plaintiff testified that he had provided the
employee “very limited training on a single subject.” Id. The plaintiff also stated in his affidavit
that the other employee’s supervisor did not talk with him about his interaction with the other
employee. Id. In the plaintiff’s deposition, he testified that he and the supervisor had discussed
the matter multiple times. Id. The Fifth Circuit held that the district court did not err in
disregarding the affidavit because the plaintiff offered only “bare assertions that these differences
are reconcilable without any evidentiary support,” with “no explanation for the change in his
account.” Id.
Similarly, in Hacienda Records, L.P. v. Ramos, 718 F. App’x at 235, the Fifth Circuit
affirmed a district court’s decision to disregard a declaration because “inconsistencies
abound[ed] between [the defendant’s] declaration and deposition testimony.”
12
During his
deposition, the defendant admitted that he had probably received an advance payment, but that
he could not remember whether he had been paid royalties. Id. Yet in his declaration—sworn
only four days before his deposition—the defendant stated that he never received the advance
payment and that he was never paid royalties. Id. The Fifth Circuit held that “[m]emories, of
course, may fade over time; but, that is a far cry from [the defendant], at his deposition, being
unable to recall many of the events he had stated as fact in his declaration, just four days prior.”
Id.
The inconsistencies that the officers highlight here are not unexplained contradictory
statements between declaration and deposition, as in Hackett and Hacienda Records. They
instead reflect Ms. Gorsky’s inability or failure to hear Deputy Small’s police-audio recording.
(Docket Entry No. 53 at 21; Docket Entry No. 72 at 26–27). Ms. Gorsky states in her declaration
that the officers came into the house before knocking. (Docket Entry No. 68-6 at 2–3). When
asked in her deposition, after hearing knocking in the recording, which showed that the officers
knocked on the door, why they would if they were already inside, Ms. Gorsky could not explain
why. (Docket Entry No. 54-12 at 111–12). Ms. Gorsky testified that in the audio recording, she
could not hear any officer push her into a chair, as she had described in her declaration; she
could not hear any officer call her “bitch”; and she could not identify sounds of officers poking
her or touching her breasts, as she described in her declaration. (Docket Entry No. 54-12 at 112–
13, 182–85; Docket Entry No. 68-6 at 4–5). Her testimony and declaration are not inconsistent.
It is not inconsistent to insist that something happened but be unable to hear it on an audio
recording of the event. And the officers have not pointed to specific contradictions between Mr.
Gorsky’s declaration and deposition testimony, sufficient to persuade the court to disregard his
declaration.
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The defendants’ request to strike or disregard Jacob and Olesya Gorsky’s declarations is
denied.
2.
Roger Clark’s Affidavit
The defendants have also objected to the Gorskys’ use of police-practices expert Roger
Clark’s affidavit, arguing that it states impermissible legal conclusions.
Although expert
testimony is not objectionable simply “because it embraces an ultimate issue,” an expert’s
opinion on ultimate issues can be excluded if it is otherwise inadmissible under the Federal Rules
of Evidence. Fed. R. Evid. 704. When opinion testimony combines opinions on law and fact,
the question is “whether the opinion will ‘help the trier of fact to understand the evidence or to
determine a fact in issue.’” 29 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE &
PROCEDURE § 6284 (2d ed.) (quoting Fed. R. Evid. 702). Expert opinions that a defendant did,
or did not, violate the law are inadmissible. See Fed. R. Evid. 702; United States v. Thomas, 847
F.3d 193, 206 (5th Cir. 2017) (“This rule and the other Federal Rules of Evidence ‘afford ample
assurances against the admission of opinions which would merely tell the jury what result to
reach.’”); Goodman v. Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009).
Roger Clark opines in his affidavit that the officers’ “entry into the Gorskys’ residence
(as recorded) was a blatant violation of the [Gorskys’] constitutional rights,” and that “the force
used against the Gorskys was excessive and unlawful.”4 (Docket Entry No. 68-10 at 8). This is
not admissible summary judgment evidence; it merely tells the jury which legal result to reach.
The court disregards Clark’s affidavit to the extent it provides legal conclusions.
4
The Gorskys state that Roger Clark opined that the officers used unlawful force, (Docket Entry No. 76
at 24), but the court has not found where in the record Clark stated this. Even if Clark had stated that the
force was unlawful, that statement would be inadmissible as a legal conclusion.
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C.
The Unlawful Arrest Claim
Mr. Gorsky claims the officers unlawfully arrested or detained him when they handcuffed
him and placed him in the patrol car. Unlawful detention and arrest claims “implicate the Fourth
Amendment’s proscription against unreasonable seizures.” Peterson v. City of Fort Worth, 588
F.3d 838, 845 (5th Cir. 2009). In general, there are three types of encounters between police and
individuals. The first type is the “consensual encounter,” in which the individual willingly
agrees to speak to police. This type of encounter may be initiated by police officers without any
objective level of suspicion. Without more, a consensual encounter does not amount to a Fourth
Amendment “seizure.” United States v. Cooper, 43 F.3d 140, 145 (5th Cir. 1995) (citing Florida
v. Bostick, 501 U.S. 429, 435 (1991)). The second type of encounter, the “limited investigative
stop,” is permissible if there is a “reasonable suspicion” that a person has committed or is about
to commit a crime. The third type of encounter, an arrest, must be based on probable cause. Id.
at 146.
A consensual encounter between an officer and a citizen “can be transformed into a
seizure or detention within the meaning of the Fourth Amendment, if, in view of the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave.” INS v. Delgado, 466 U.S. 210, 215 (1984). The test is objective. Michigan v.
Chesternut, 486 U.S. 567, 573–74 (1988). A court examines the totality of the circumstances to
determine whether a reasonable person would have believed that he was free to leave or free to
refuse to consent to a search. See Bostick, 501 U.S. at 437; United States v. Gonzales, 79 F.3d
413, 420 (5th Cir. 1996), cert. denied, 519 U.S. 869 (1996). This objective analysis, focusing on
the officers’ conduct and the context in which it occurs, allows law-enforcement officers to know
15
whether their conduct in continuing to detain, or search an individual, will violate the Fourth
Amendment. Chesternut, 486 U.S. at 573–74.
Only unreasonable searches and seizures violate the Fourth Amendment. See Ohio v.
Robinette, 519 U.S. 33, 39 (1996) (stating that the “touchstone of the Fourth Amendment is
reasonableness” (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991))). “Reasonableness, in
turn, is measured in objective terms by examining the totality of the circumstances.” Id. While
police questioning is not itself a seizure, continued detention without a reasonable suspicion that
the individual has committed or is about to commit a crime violates the Fourth Amendment right
to be free from unreasonable seizure. Delgado, 466 U.S. at 216 (citing Brown v. Texas, 443 U.S.
47, 49 (1979)).
Limited investigative stops or detentions require a “reasonable, articulable suspicion that
a person has committed or is about to commit a crime.” United States v. Chavez, 281 F.3d 479,
485 (5th Cir. 2002) (citing Terry, 392 U.S. at 21).
Although “[r]easonable suspicion” is
“considerably easier for the Government to establish than probable cause,” United States v.
Tellez, 11 F.3d 530, 532 (5th Cir. 1993), cert. denied, 511 U.S. 1060 (1994) (citing United States
v. Wangler, 987 F.2d 228, 230 (5th Cir. 1993)), individualized suspicion of wrongdoing is
required. See Chandler v. Miller, 520 U.S. 305, 308 (1997). An officer “must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that [limited] intrusion.” Terry, 392 U.S. at 21; accord United States v.
Sokolow, 490 U.S. 1, 7 (1989); Delaware v. Prouse, 440 U.S. 648, 653–55 (1979). Courts
examine “whether the officer’s action was justified at its inception”—that is, whether reasonable
suspicion was then present—and whether the stop “was reasonably related in scope to the
16
circumstances which justified the interference in the first place.” See Terry, 392 U.S. at 451;
Sokolow, 490 U.S. at 19–20.
A warrantless arrest violates a suspect’s Fourth Amendment rights “if the arresting
officer lacks probable cause to believe that the suspect has committed a crime.” Bodzin v. City of
Dallas, 768 F.2d 722, 724 (5th Cir. 1985).
“Probable cause is established by ‘facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.’” Arizmendi, 919 F.3d at 897
(quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009)). The probable-cause
analysis is objective.
“Because probable cause deals with probabilities and depends on the totality of the
circumstances, . . . it is a fluid concept that is not readily, or even usefully, reduced to a neat set
of legal rules.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (quotations omitted).
“It ‘requires only a probability or substantial chance of criminal activity, not an actual showing
of such an activity.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). “Probable cause
‘is not a high bar.’” Id. (quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). The
Fifth Circuit’s “objective standard” means that a court “will find that probable cause existed if
the officer was aware of facts justifying a reasonable belief that an offense was being committed,
whether or not the officer charged the arrestee with that specific offense.” Club Retro, L.L.C. v.
Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (citing Devenpeck v. Alford, 543 U.S. 146, 153–54
(2004)).
The parties dispute whether the officers arrested Mr. Gorsky or detained him for a brief
period. A seizure is an arrest “if ‘a reasonable person in the suspect’s position would have
17
understood the situation to constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.’” Johnson v. Thibodaux City, 887 F.3d 726, 732–33 (5th
Cir. 2018) (quoting Turner v. Lieutenant Driver, 848 F.3d 678, 692–93 (5th Cir. 2017)).
The Fifth Circuit has affirmed a district court’s conclusion that police arrested, rather
than detained, a plaintiff on similar facts. In Freeman v. Gore, 483 F.3d 404, 413 (5th Cir.
2007), police officers threatened the plaintiff with arrest if she did not let the officers search her
home. When the plaintiff responded by saying “[h]ave at it,” the officers handcuffed and placed
her in their patrol car for 30 to 45 minutes. Id. The Fifth Circuit held that “[o]n these facts, a
reasonable person in [the plaintiff’s] situation would surely believe that she had been restrained
to an extent that normally accompanies a formal arrest.” Id.
Here, the undisputed evidence, or the evidence viewed favorably to the nonmovant,
shows that Deputy Guajardo told Mr. Gorsky that if he hindered their investigation, they could
“get in this house, put [him] in handcuffs, and take [him] to jail.” (Docket Entry No. 51-12 at 4).
Mr. Gorsky responded by telling Deputy Guajardo to handcuff him. (Id.). Corporal Rivaux
asked Mr. Gorsky if he wanted “to call for [his] wife and tell her that [he is] going to jail.” (Id.).
After Deputy Guajardo handcuffed Mr. Gorsky, Corporal Rivaux told Ms. Gorsky, “[y]eah, your
husband’s going to jail.” (Id. at 6). Corporal Rivaux then told Mr. Gorsky to “have fun in Harris
County,” referring to the Harris County Jail. (Docket Entry No. 68-3 at 85). The officers placed
Mr. Gorsky in handcuffs in the patrol car and kept him there for over an hour. (Docket Entry
No. 68-5 at 28). The officers’ comments to Mr. Gorsky that he was going to jail, and the facts
that the officers handcuffed him and placed him in their patrol car for over an hour, would have
led a reasonable person in Mr. Gorsky’s position to believe that he was under arrest.
18
The officers needed probable cause. They did not have it. Corporal Rivaux told Mr.
Gorsky that by refusing to fetch Ms. Gorsky and trying to shut the front door, he was hindering
their investigation and could be arrested. (Docket Entry No. 68-1 at 64). The parties agree that
Corporal Rivaux was threatening arrest for the misdemeanor offense of “Interference with Public
Duties,” Tex. Penal Code Ann. § 38.15 (West 2015). The statute provides:
(a) A person commits an offense if the person with criminal negligence interrupts,
disrupts, impedes, or otherwise interferes with:
(1) a peace officer while the peace officer is performing a duty or exercising
authority imposed or granted by law;
....
(d) It is a defense to prosecution under this section that the interruption,
disruption, impediment, or interference alleged consisted of speech only.
Tex. Penal Code Ann. § 38.15 (West 2015).
The Fifth Circuit has affirmed convictions under Texas Penal Code § 38.15 when a
defendant fails to comply with an officer’s instructions. In Childers v. Iglesias, 848 F.3d 412,
415 (5th Cir. 2017), the plaintiff sued a police officer who arrested him under § 38.15 after the
plaintiff failed to comply with the officer’s instructions to move his truck, which was blocking
the officer’s access to certain property. The Fifth Circuit held that the plaintiff’s conduct did not
fall under the speech exception. Id. The court stated that “Texas courts have found that failure
to comply with an officer’s instructions under similar circumstances violates Texas Penal Code §
38.15 and is not protected speech.” Id. The court held that “a reasonable officer could have
believed that there was a fair probability that [the plaintiff] violated Texas Penal Code § 38.15 by
failing to comply with [the officer’s] instruction to move the truck.” Id.
19
The Fifth Circuit has held that probable cause does not exist under § 38.15 when an
officer acts without legal authority by attempting to enter a home without a warrant or a basis to
enter without a warrant. In Freeman v. Gore, police officers attempted to enter the plaintiff’s
house without a warrant to search for her son. Freeman, 483 F.3d at 408. The plaintiff yelled at
the officers and refused to let them into the home, despite their instructions to allow them entry.
Id. The officers arrested her for interference under § 38.15, and she sued. Id. at 408–09. The
district court denied the officers’ motions for summary judgment, holding that because the
officers had no right to search the plaintiff’s house, they could not have had probable cause to
arrest the plaintiff for interference based on her refusal to follow their directions to allow them to
enter the home. Id. at 409. The district court stated that the plaintiff had only “‘interfered’ with
the deputies’ attempt to conduct an unlawful, warrantless search of her home, not with the
deputies’ general ability to investigate” her son’s whereabouts. Id. at 413. The Fifth Circuit
affirmed, holding that while the plaintiff’s actions consisted exclusively of speech, a reasonable
officer also “would have known that he could not lawfully search [the plaintiff’s] home, and [the
plaintiff] was not, therefore, interfering with the exercise of any authority granted to the deputies
by law.” Id. at 414.
The deputies and Corporal Rivaux instructed Mr. Gorsky to find his wife inside the house
and produce her for questioning. He failed to comply. But his conduct was limited to preventing
the officers from illegally entering his home without a warrant to question his wife. Because the
officers had no warrant and could not legally enter the Gorskys’ home, Mr. Gorsky was not
interfering with the exercise of lawful authority when he tried to close his front door and did not
allow the officers in. He did not give the officers probable cause to arrest him for interfering
because reasonable officers would have known that they could not lawfully enter or search the
20
home without a warrant. The present record does not allow the court to find that, as a matter of
law, the officers had probable cause to arrest Mr. Gorsky for interference under § 38.15.
The record also presents factual disputes material to determining whether the officers’
conduct was objectively reasonable, precluding a finding of qualified immunity on this record.
There are disputed facts material to determining whether a reasonable officer would recognize
that Mr. Gorsky’s refusal to allow the officers to enter the home or to search it, could justify an
arrest or create probable cause to arrest Mr. Gorsky for another offense. See, e.g., Steagald v.
United States, 451 U.S. 204, 213–14 (1981) (the entry and search of a home for a person requires
a search warrant); Freeman, 483 F.3d at 416 (the plaintiff’s “refusal to consent to a warrantless
search of her home could neither itself justify an arrest nor create probable cause to arrest [the
plaintiff] for another offense”). These disputes do not warrant finding qualified immunity for
their arresting Mr. Gorsky on the present record.5
Summary judgment is denied on Mr. Gorsky’s unlawful arrest claim.
D.
The Illegal-Entry-After-The-Arrest Claim
The Gorskys claim that the officers illegally entered their home, both by placing their feet
in the doorframe and by coming inside after arresting Mr. Gorsky. The Fourth Amendment
protects “[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend. IV. “[S]earches and seizures
inside a home without a warrant are presumptively unreasonable.” Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (citation and quotations omitted).
5
“Although as a general matter,
The Gorskys appear to abandon their unlawful-arrest claim arising out of the officers’ actions in
handcuffing Ms. Gorsky by failing to address it in their response to the officers’ motions for summary
judgment. The record evidence shows that the officers had probable cause to arrest or detain Ms. Gorsky
21
warrantless searches ‘are per se unreasonable under the Fourth Amendment,’ there are ‘a few
specifically established and well-delineated exceptions’ to that general rule.” City of Ontario v.
Quon, 560 U.S. 746, 760 (2010) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see
also Rice v. Relia Star Life Ins. Co., 770 F.3d 1122 (5th Cir. 2014) (“There are, however,
circumstances in which a warrantless entry into a home is not a constitutional violation.”).
1.
The Foot-in-the-Doorway Entry
The Gorskys claim that when Corporal Rivaux and Deputy Berry placed their
booted feet in the frame of the front door, preventing Mr. Gorsky from closing the door, they
illegally entered the Gorskys’ home, violating their Fourth Amendment rights. The officers
respond that the “exigent circumstances” exception to the warrant requirement applies because
they stuck their feet in the doorframe to prevent Mr. Gorsky from slamming the door in their
faces in order to protect “officer safety.”
“Under the exigent circumstances exception to the warrant requirement, the Supreme
Court has recognized that police officers are not required to obtain a warrant where ‘the
exigencies of the situation make the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.’”
Rice, 770 F.3d at 1131
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
The parties dispute whether the officers acted out of safety concerns. Deputy Berry
stated in his sworn affidavit that “[f]or safety reasons,” he placed his “foot in the doorway to
keep the door from shutting.” (Docket Entry No. 51-13 at 3). In his deposition, Deputy Berry
testified that Mr. Gorsky “became agitated,” and “wanted to shut the door.” (Docket Entry No.
for the criminal mischief charge, as they had seen security-camera footage showing a woman who
appeared to be Ms. Gorsky vandalizing the Koczmans’ car.
22
68-1 at 47). Later in the deposition, Deputy Berry testified that Mr. Gorsky “did attempt to slam
the door.” (Id. at 75). But Corporal Rivaux testified in his deposition that he was “[n]ot a
hundred percent sure” whether Mr. Gorsky had tried to slam the door, and that Mr. Gorsky
“probably did not” because Corporal Rivaux did not state that in his report. (Docket Entry No.
68-3 at 115). A transcript of Deputy Small’s audio recording from the incident shows that Mr.
Gorsky asked the officers to “[g]et your shoe,” to which Deputy Guajardo replied, “That is not
an option.” (Docket Entry No. 51-12 at 4).
Taken in the light most favorable to the Gorskys, the evidence shows that Deputy Berry
and Corporal Rivaux placed their boot-clad feet in the doorframe to prevent Mr. Gorsky from
closing the door before he tried to do so, although he conveyed his intention to close the door
once the officers moved out of the way. The officers had no warrant to enter and search the
Gorskys’ home. If the exigent-circumstances exception to the Fourth Amendment’s warrant
requirement does not apply, because the officers placed their feet in the doorway with no
objectively reasonable threat to their safety, qualified immunity requires the court to ask
“whether the defendant’s actions violated clearly established statutory or constitutional rights of
which a reasonable person would have known.” Luna, 773 F.3d at 718.
The case law at the time had not clearly established whether placing a foot in the
doorframe to prolong a consensual encounter constitutes an illegal entry under the Fourth
Amendment. The Supreme Court has held that “a police officer not armed with a warrant may
approach a home and knock, precisely because that is ‘no more than any private citizen might
do.’” Florida v. Jardines, 569 U.S. 1, 8 (2013) (quoting Kentucky v. King, 563 U.S. 452, 469–70
(2011)). But there is no de minimis exception to the Fourth Amendment. “[A]ny physical
invasion of the structure of the home, ‘by even a fraction of an inch,’ [is] too much.” Kyllo v.
23
United States, 533 U.S. 27, 37 (2001) (quoting Silverman v. United States, 365 U.S. 505, 512
(1961)).
The Gorskys have pointed to only a single unpublished case from the Northern District of
Georgia to support their argument that an officer’s boot in a doorframe to prevent the door from
closing is enough to violate the Fourth Amendment.6 For a right to be clearly established for
qualified immunity purposes, there must be “controlling authority — or a ‘robust consensus of
persuasive authority’ — that defines the contours of the right in question with a high degree of
particularity.” Morgan, 659 F.3d at 371–72 (quoting Al-Kidd, 563 U.S. at 742).
This court has not found, and the parties have not cited, controlling Fifth Circuit or other
precedent. Admittedly, the line between entry and about to enter can be hard to draw. Dalcour
v. City of Lakewood, 492 F. App’x 924, 928 (10th Cir. 2012), is instructive. A police officer
knocked on the door of the plaintiff’s house, and an occupant answered the door. Id. The officer
placed her foot in the doorframe to keep the occupant from closing the door and called for
backup while the occupant repeatedly tried to close the door on the officer. Id. The Tenth
Circuit held that Supreme Court precedent clearly establishes that “a reasonable officer should
have known that placing a foot into the doorway amounted to an entry of the home for Fourth
Amendment purposes.” Id. at 934. But the Sixth Circuit disagreed and explained that “[t]he
relevant [Supreme Court] cases deal with intrusions that were unauthorized ab initio, not those
that prolong an otherwise consensual encounter.” Smith v. City of Wyoming, 821 F.3d 697, 714
(6th Cir. 2016). In Smith, the Sixth Circuit surveyed the case law and found no cases except for
Dalcour in the Tenth Circuit. Id.
6
Hanie v. City of Woodstock, No. 1:06-cv-889-RWS, 2008 WL 476123, *7 (N.D. Ga. Feb. 19, 2008).
24
The lack of Fifth Circuit case law, or case law from other circuits, and the disagreement
between circuits on the clarity of Supreme Court precedent, indicate that even if Corporal Rivaux
and Deputy Berry violated the Gorskys’ Fourth Amendment rights by merely placing their feet in
the doorframe to prevent Mr. Gorsky from closing the door, they did not violate clearly
established law. To the extent the Gorskys’ illegal entry claim is based on the officers placing
their feet in the doorframe, the officers are entitled to qualified immunity.
2.
The Officers’ Entry into the Gorskys’ Home
The Gorskys claim that the officers violated their Fourth Amendment rights by entering
their house after handcuffing and removing Mr. Gorsky from the front-door area. “A warrantless
entry into and search of a dwelling is presumptively unreasonable unless consent is given or
probable cause and exigent circumstances justify the encroachment.” United States v. Santiago,
410 F.3d 193, 198 (5th Cir. 2005) (citing United States v. Jones, 239 F.3d 716, 719 (5th Cir.
2001)).
“In order to satisfy the consent exception, the government must prove, ‘by a
preponderance of the evidence,’ that ‘consent to the search was freely and voluntarily given.’”
Santiago, 410 F.3d at 198–99 (citing United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002)
(quoting United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997))). “The voluntariness of
consent is a question of fact to be determined from a totality of the circumstances.” Id. at 199
(quoting United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995)).
A court considers six factors to evaluate whether consent was voluntary, “all of which are
relevant, but no one of which is dispositive or controlling.” Id. (citing Solis, 299 F.3d at 436).
Those factors are: “(1) the voluntariness of the defendant’s custodial status; (2) the presence of
coercive police procedures; (3) the extent and level of the defendant’s cooperation with the
police; (4) the defendant’s awareness of his right to refuse to consent; (5) the defendant’s
25
education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be
found.” Id. (quoting United States v. Olivier-Becceril, 861 F.2d 424, 426 (5th Cir. 1988)). “The
fact of custody alone has never been enough in itself to demonstrate a coerced . . . consent to
search.” United States v. Watson, 423 U.S. 411, 424 (1976).
The officers have presented limited evidence that Ms. Gorsky voluntarily consented to
their entering the home. After Mr. Gorsky was first handcuffed in the front doorway, Corporal
Rivaux knocked on the Gorskys’ front door and called out, “Police Department.” (Docket Entry
No. 51-12 at 5; Docket Entry No. 51-15). Ms. Gorsky came to the door. Corporal Rivaux asked
her if she had “egged a vehicle earlier.” (Docket Entry No. 51-12 at 6). After a brief exchange
over whether Ms. Gorsky had egged the neighbor’s car, and whether her son was asleep inside,
Corporal Rivaux asked Ms. Gorsky “well, can we come in and put you right here so we can see
him?” (Id. at 7–10). Ms. Gorsky answered, “Yeah, yeah.” (Id. at 10). The recorded audio
confirms this dialogue. (Docket Entry No. 51-15). Beyond Ms. Gorsky’s recorded “[y]eah,
yeah,” the officers have not argued that Ms. Gorsky “freely and voluntarily” consented.
The Gorskys assert, without pointing to record evidence or legal authority, that Ms.
Gorsky consented “under great duress.” (Docket Entry No. 76 at 20). The Gorskys’ version of
the facts differs from the officers’ as to the circumstances of the officers’ entry. Ms. Gorsky
states in her declaration that after hearing “a commotion in [her] front foyer,” she left her
bedroom to look at the foyer from across the house and saw “only [the] wide opened front door
with 2 or 3 large dark-dressed men and my husband facing me with his hands behind him.”
(Docket Entry No. 68-6 at 2). She states that Deputy Berry had “found the foyer light and turned
it on. One of the men knocked on the side of the wide-opened front door and yelled ‘police
department’ [a] few times.” (Id. at 3). She “saw [her] husband on the porch barefoot and in
26
underwear, handcuffed and bent forward, shouting ‘stop, stop.’” (Id.). Ms. Gorsky states that
after Corporal Rivaux “ordered somebody on the porch to ‘take [Mr. Gorsky] away,’” and
“without explaining anything or offering [her] to get dressed, police rudely turned [her] around
and handcuffed [her] behind [her] back.” (Id.). Corporal Rivaux then “grabbed [her] naked
shoulders, twisted [her] around and, with his face inches from [her] face stuck his finger in [her]
bare chest and said ‘you egged the car.’” (Id.) “From that moment on, [she] was all but petrified
under severe stress and duress.” (Id.). About two minutes later, according to Ms. Gorsky,
Deputies Berry and Small “joined into the foyer and [Corporal Rivaux] asked if they all can
come in into the dining room”; before she could “even comprehend the goings-on or protest, they
all moved to the dining room” and “pushed [her] in a chair.” (Id. at 4).
The officers argue that the audio recording requires the court to believe the officers’
version in deciding their summary judgment motion. (Docket Entry No. 51 at 20 n.60). The
officers cite Scott v. Harris, 550 U.S. 372, 380 (2007), for the proposition that “[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”
But in Scott, a video recording showed the
respondent’s car “[race] down narrow, two-lane roads in the dead of night” and “swerve around
more than a dozen other cars, cross the double-yellow line, and force cars traveling in both
directions to their respective shoulders to avoid being hit.” Id. at 379. Despite the videotape, the
respondent asserted that “there was little, if any, actual threat to pedestrians or other motorists, as
the roads were mostly empty and [respondent] remained in control of his vehicle.” Id. at 378.
The Supreme Court held that the “[r]espondent’s version of events is so utterly discredited by the
27
record that no reasonable jury could have believed him,” and that the court, at summary
judgment, should have viewed the facts as depicted by the videotape. Id. at 380–81.
The Fifth Circuit has narrowed Scott to cases in which a party’s version of events is so
“blatantly contradicted” by documentary evidence that “no reasonable jury could believe” that
party’s version. In Ramirez v. Martinez, 716 F.3d 369, 374 (5th Cir. 2013), the appellant argued
that because a video recording partially captured the fight at issue, the court should not view the
summary judgment evidence in the light most favorable to the appellee. Id. The Fifth Circuit
disagreed, holding that the video was “too uncertain” to discount the appellee’s version of
events.
Id.
The video began with the parties already yelling, showed about five people
involved—more than the parties—and showed no faces until the appellee was already injured
and on his knees. Id. Because the video did not clearly show “every particular element of the
altercation,” the court held it did not “blatantly contradict” the appellee’s version of the facts,
and on summary judgment, the court should still view the facts in the light most favorable to the
appellee. Id. at 374–75.
The audio that Deputy Small recorded does not blatantly contradict Ms. Gorsky’s
declaration or deposition testimony. In the recording, an officer knocks on a door, Corporal
Rivaux calls out “Police department,” and Ms. Gorsky says “hello” and asks, “[w]hat are you
doing, guys?” (Docket Entry No. 51-12 at 5; Docket Entry No. 51-15). Corporal Rivaux tells
her to “[c]ome on out.” (Id.). The recording does not include any sound of a door opening after
Corporal Rivaux knocks, which supports Ms. Gorsky’s testimony that the front door was already
opened. (Docket Entry No. 51-15; Docket Entry No. 54-12 at 111; Docket Entry No. 68-6 at 2–
3). The recording does not make clear whether the officers were still outside the house or
28
already inside the foyer, as Ms. Gorsky states. (Docket Entry No. 51-15; Docket Entry No. 68-6
at 2–3).
Deputy Berry also testified in his deposition that Ms. Gorsky was in handcuffs around the
time Corporal Rivaux asked to enter the house. (Docket Entry No. 68-4 at 53–54). Corporal
Rivaux can be heard asking Ms. Gorsky, “can we come in and put you right here so we can see
[your son],” and Ms. Gorsky can be heard saying “yeah, yeah.” (Docket Entry No. 51-12 at 10;
Docket Entry No. 51-15). But the recording does not clearly indicate whether the officers were
outside the home, asking to come in, or already in the foyer, “asking” to come further into the
home and to put Ms. Gorsky in the dining room chair, as Ms. Gorsky asserts.
Unlike in Scott, in which the video recording clearly showed a car swerving dangerously
around traffic, and like in Ramirez, in which the video only partially captured the fight at issue,
here the audio recording does not reveal where the officers stood when they asked to come in.
Because the audio does not blatantly contradict Ms. Gorsky’s declaration or deposition testimony
as to the officers’ entry, the court must take the Gorskys’ evidence in the light most favorable to
them on summary judgment. Viewed in the light most favorable to the Gorskys, and with
disputes resolved in their favor, a reasonable fact finder could find that the evidence shows the
officers were standing inside the foyer before Ms. Gorsky came to the door, and that they
handcuffed Ms. Gorsky before asking her consent to come in.
The officers have not shown the absence of factual disputes material to determining
whether they obtained Ms. Gorsky’s free and voluntary consent before they entered the home.
The officers point only to Ms. Gorsky’s recorded response of “yeah” after they asked her if they
could come in; it is unclear, and disputed, if the officers were already in at that point, or whether,
under the circumstances, Ms. Gorsky’s response was voluntary consent. The disputed record
29
evidence, taken in the light most favorable to the Gorskys and resolving disputes in their favor,
could reasonably show that: (1) the officers handcuffed Ms. Gorsky before asking permission to
enter; (2) Corporal Rivaux “grabbed [Ms. Gorsky’s] naked shoulders, twisted [her] around and,
with his face inches from [her] face stuck his finger in [her] bare chest and told her that she
egged the car; (3) Ms. Gorsky watched as the officers placed her handcuffed and underwear-clad
husband into the patrol car; (4) no officer told Ms. Gorsky that she could refuse entry into the
house; (5) after telling the officers that her son was sleeping, they asked if they could come into
her dining room, and; (6) Ms. Gorsky said “yeah, yeah.”
The fact of custody, by itself, is not enough to invalidate consent. But the evidence
includes that Corporal Rivaux grabbed and twisted Ms. Gorsky’s arm. That, combined with her
apparent lack of knowledge that she could refuse entry, and her distress in watching the officers
put her handcuffed, underwear-clad husband in the patrol car, create factual disputes material to
determining whether Ms. Gorsky freely and voluntarily consented to the officers’ entry.
Even if the record showed voluntary consent as a matter of law, Mr. Gorsky clearly had
refused, and continued to refuse, consent to entry. The Gorskys cite Georgia v. Randolph, 547
U.S. 103, 114 (2006), to argue that one co-tenant’s objection overrides another co-tenant’s
consent. 547 U.S. at 114 (“Since the co-tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over a present and objecting co-tenant,
his disputed invitation, without more, gives a police officer no better claim to reasonableness in
entering than the officer would have in the absence of any consent at all.”). The Supreme Court
later clarified that its holding in Randolph “was limited to situations in which the objecting
occupant is present.”
Fernandez v. California, 571 U.S. 292, 301 (2014).
The Court in
Fernandez rejected the argument that “the presence of the objecting occupant is not necessary
30
when the police are responsible for his absence.” Id. at 302. Instead, the Court held that “an
occupant who is absent due to a lawful detention or arrest stands in the same shoes as an
occupant who is absent for any other reason.” Id. at 303 (emphasis added). But the Court in
Randolph stated, in dicta, that consent by a resident might not suffice if there is “evidence that
the police have removed the potentially objecting tenant from the entrance [of their home] for the
sake of avoiding a possible objection.” Randolph, 547 U.S. at 121.
The record shows that Mr. Gorsky attempted to close the front door on the officers
instead of allowing them to enter, telling them to “get out.” While it is undisputed that he was
not physically present in the doorway when the officers asked Ms. Gorsky if they could come
into the dining room, his absence was due to an unlawful arrest, made without probable cause.
The officers removed Mr. Gorsky immediately after he refused to consent to their entry into his
home; arrested him after and at least in part because he refused to consent to their entry and
instead held him handcuffed in the patrol car in his driveway for an hour. His arrest lacked
probable cause. Ms. Gorsky could not have overridden Mr. Gorsky’s refusal under the facts
asserted, even though they are disputed.
The officers assert qualified immunity. The Gorskys have not directly argued that the
officers violated clearly established law. But the Gorskys have argued that it is “a ‘basic
principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant
are presumptively unreasonable,” citing Payton v. New York, 445 U.S. 573, 586 (1980). (Docket
Entry No. 76 at 20). The Gorskys also cite United States v. Jones, 239 F.3d at 719, which holds
that a “warrantless intrusion into an individual’s home is presumptively unreasonable unless the
person consents.” (Docket Entry No. 76 at 21). The Fifth Circuit had clearly established that
consent to a warrantless entry and search must be freely and voluntarily given. See, e.g.,
31
Santiago, 410 F.3d at 198–99; Solis, 299 F.3d at 436; Gonzales, 121 F.3d at 938. The validity of
Ms. Gorsky’s consent rests on factual disputes. These disputes prevent a finding that, on the
present record, as a matter of law, the officers are entitled to qualified immunity.
3.
The Officers’ Search of the Home
The Gorskys originally asserted claims for both the officers’ entry into their home and for
the search of the home. (Docket Entry No. 1 at 13–14). In the Gorskys’ response to the officers’
motions for summary judgment, however, the Gorskys address only the officers’ entry. The
Gorskys appear to abandon their illegal-search claim. But the record evidence shows that
Deputy Small did go into the home to “check on” the son, and “disappeared into the house for a
while.” (Docket Entry No. 68-6 at 4). The same factual disputes over Ms. Gorsky’s consent
prevent finding that, as a matter of law, Deputy Small is entitled to qualified immunity for any
search for Ms. Gorsky’s son.
Summary judgment is denied on the Gorskys’ illegal entry claim, to the extent it is based
on the officers’ entry after handcuffing and removing Mr. Gorsky, and on the search for the son
as to Deputy Small. Summary judgment is granted on the illegal entry claim for the officers’
conduct of placing a foot in the doorway to prevent Mr. Gorsky from closing it, and on the illegal
search claim as to Deputies Guajardo and Berry, and Corporal Rivaux.
E.
Excessive Force
The Gorskys claim that the officers used excessive force during the encounter.7 “To
establish a claim of excessive force under the Fourth Amendment, plaintiffs must demonstrate:
7
Although the Gorskys do not specify against which officer they bring the excessive-force claims, the
Gorskys identify only Corporal Rivaux as having used any force on them. (Docket Entry No. 76 at 22).
Corporal Rivaux stated in his deposition that Deputy Guajardo was the officer who handcuffed Mr.
Gorsky. (Docket Entry No. 68-3 at 85). The Gorskys state in their depositions that neither Deputy Berry
32
(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive,
and (3) the excessiveness of which was clearly unreasonable.” Deville v. Marcantel, 567 F.3d
156, 167 (5th Cir. 2009) (quotations omitted). “[W]hether the force used is ‘excessive’ or
‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’” Id. (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). “Factors to consider include ‘the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’” Id.
(quoting Graham, 490 U.S. at 396). The “‘reasonableness’ inquiry in an excessive force case is
an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light
of the facts and circumstances confronting them.” Graham, 490 U.S. at 397. An “excessive
force claim is separate and distinct from [an] unlawful [detention] claim, and [the court] must
therefore analyze the excessive force claim without regard to whether the [detention] itself was
justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007).
A court considers only the information available to the officers at the time.
“The
‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
A court must also recognize that officers often must make split-second decisions in stressful
situations. Id. at 397.
1.
Jacob Gorsky
Mr. Gorsky’s version of events differs drastically from the officers’ testimony. Mr.
Gorsky stated in his deposition that “they turned [him] around, twisted [his] hands forward
nor Deputy Small used any force on them. The excessive force claims are analyzed as to Corporal
Rivaux and Deputy Guajardo, since the officers dispute who handcuffed Mr. Gorsky.
33
behind [his] back . . . [a]nd it immediately caused [him] a lot of pain. . . . [he] screamed actually
even.” (Docket Entry No. 68-5 at 26).
Deputy Small’s audio recording contradicts Mr. Gorsky’s testimony that he screamed
while the officers handcuffed him. The recording depicts an officer telling Mr. Gorsky “[y]ou
either [call Ms. Gorsky], or I put you in handcuffs right now. What do you want?” (Docket
Entry No. 51-12 at 4). The sound of handcuffs clicking is audible, but Mr. Gorsky does not
scream. (Docket Entry No. 51-15). Security-camera footage shows an officer leading Mr.
Gorsky by the arm, in handcuffs, across the lawn to the patrol car. (Docket Entry No. 51-14).
Mr. Gorsky testified, after watching the footage, that the officer escorted and pushed him across
the lawn rather than dragging him, as Mr. Gorsky had previously stated. (Docket Entry No. 68-5
at 52).
The officers argue that bruising from overly tight handcuffs as a matter of law is a de
minimis injury that does not support an excessive force claim. The Fifth Circuit has previously
held that excessively tight handcuffing, without more, does not constitute excessive force. See
Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (summary judgment was warranted on the
plaintiff’s excessive force claim because her most substantial injury was bruised wrists from
handcuffs); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (“[H]andcuffing too tightly,
without more, does not amount to excessive force.”).
But the Fifth Circuit, in Alexander v. City of Roundrock, 854 F.3d 298, 309 (5th Cir.
2017), recently clarified that “the extent of injury necessary to satisfy the injury requirement” is
“directly related to the amount of force that is constitutionally permissible under the
circumstances.” The court explained:
34
Although a de minimis injury is not cognizable, the extent of injury necessary to
satisfy the injury requirement is directly related to the amount of force that is
constitutionally permissible under the circumstances. Any force found to be
objectively unreasonable necessarily exceeds the de minimis threshold, and,
conversely, objectively reasonable force will result in de minimis injuries only.
Consequently, only one inquiry is required to determine whether an officer used
excessive force in violation of the Fourth Amendment. In short, as long as a
plaintiff has suffered some injury, even relatively insignificant injuries and purely
psychological injuries will prove cognizable when resulting from an officer’s
unreasonably excessive force.
Id. (quotation marks, citations, and modifications omitted). In light of Alexander, the question
here is not whether Mr. Gorsky’s injuries were de minimis; the question is whether it was
objectively reasonable under the circumstances for the officers to twist Mr. Gorsky’s arm behind
his back, allegedly causing him to scream in pain.
Bush v. Strain, 513 F.3d 492, 500–01 (5th Cir. 2008), is instructive. The Fifth Circuit
explained that, when evaluating whether the force used was objectively reasonable, courts
“should consider ‘the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Bush, 513 F.3d at 501 (quoting Graham, 490 U.S. at 396).
Resolving disputes in Mr. Gorsky’s favor, he did not threaten the officers, run, or resist
arrest. To the contrary, he was barefoot, dressed only in his underwear, told the officers he
would call for his wife, and tried to close the door, but while he continued to say he would get
his wife. (Docket Entry No. 68-5 at 25–26). The officers lacked probable cause to arrest Mr.
Gorsky for refusing to allow the officers to enter his home without a warrant. In this context,
there are disputed facts, but it may have been objectively unreasonable for the officers to twist
Mr. Gorsky’s arm behind his back to apply the handcuffs with such force to cause him to scream
in pain.
35
The officers’ and Mr. Gorsky’s versions of events are different. Mr. Gorsky apparently
appeared to be intoxicated, had threateningly waived a pool rod at the officers earlier in the
evening, and tried to slam the front door in the officers’ faces, prompting them to block the door
with their feet for their own safety.
Based on this record, factual disputes material to
determining whether the officers acted reasonably in using force while handcuffing Mr. Gorsky
prevent finding that the officers are entitled to qualified immunity.
2.
Olesya Gorsky
Ms. Gorsky bases her excessive force claim on her declaration testimony that after
Corporal Rivaux handcuffed her, he “grabbed her naked shoulders, twisted her around and, with
his face inches from her face stuck his finger in her bare chest and said ‘you egged the car.’”
(Docket Entry No. 68-6 at 3; Docket Entry No. 76 at 23). Ms. Gorsky states elsewhere in her
declaration that Corporal Rivaux “repeatedly touch[ed] bare parts of [her] body” and at one point
“pushed [her] in [her] chest back on the chair.” (Docket Entry No. 68-6 at 5). Ms. Gorsky states
that she later “noticed bruises where the handcuffs were,” and within days she “noticed bruises
on the back of [her] legs where [she] was pushed back into the dining room chair.” (Docket
Entry No. 68-6 at 6).
The officers again contest Ms. Gorsky’s evidence, arguing that the police-audio recording
contradicts her version of events. The officers argue that they cannot be heard pushing her into
the chair, grabbing her shoulders or twisting her around. As with the Gorskys’ excessive-force
claim for handcuffing Mr. Gorsky, the Gorskys have identified factual disputes material to
determining whether Corporal Rivaux acted reasonably in grabbing Ms. Gorsky’s wrists, then,
after handcuffing her, grabbing her bare shoulders to twist her around, and later, to forcibly push
her into a chair, causing bruises, when Ms. Gorsky posed no threat to the officers. These
36
disputes prevent the court from finding that, as a matter of law, the officers are entitled to
qualified immunity on the present record.
Summary judgment is denied as to Deputy Guajardo and Corporal Rivaux on the
Gorskys’ excessive-force claim.
F.
Bystander Liability
The Gorskys claim that the officers are liable under a theory of bystander liability
because they failed to intervene and prevent the constitutional violations. But the Gorskys did
not plead this cause of action. They raised it for the first time in their summary judgment
response brief. (Docket Entry No. 1 at 13–16; Docket Entry No. 76 at 25–26). While the
Gorskys included the phrase “failed to intervene” in their complaint, (Docket Entry No. 1 at 14),
they referred only to Corporal Rivaux under their supervisory liability cause of action.
“A claim which is not raised in the complaint but, rather, is raised only in response to a
motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Supervisors,
429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th
Cir. 1990)). Summary judgment is granted on the Gorskys’ bystander liability claim against the
officers because the Gorskys failed to properly raise the claim before responding to the officers’
summary judgment motions.
G.
Supervisory Liability
The Gorskys have also claimed that Corporal Rivaux is liable under a supervisory
liability theory for failing to intervene and prevent the constitutional violations, and for failing to
properly train or supervise the officers. “Under section 1983, supervisory officials are not liable
for the actions of subordinates on any theory of vicarious liability.” Thompkins v. Belt, 828 F.2d
298, 303 (5th Cir. 1987) (citations omitted). “‘A supervisory official may be held liable . . . only
37
if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he
implements unconstitutional policies that causally result in the constitutional injury.” Porter v.
Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Gates v. Tex. Dep’t of Prot. & Reg. Servs., 537
F.3d 404, 435 (5th Cir. 2008)).
To “establish supervisor liability for constitutional violations committed by subordinate
employees, plaintiffs must show that the supervisor act[ed], or fail[ed] to act, with deliberate
indifference to violations of others’ constitutional rights committed by their subordinates.” Id.
(quoting Gates, 537 F.3d at 435) (emphasis in original). “‘A failure to adopt a policy can be
deliberately indifferent when it is obvious that the likely consequences of not adopting a policy
will be a deprivation of constitutional rights.’” Id. (quoting Rhyne v. Henderson Cty., 973 F.2d
386, 392 (5th Cir. 1992)). “A supervisor may also be liable for failure to supervise or train if:
‘(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link
exists between the failure to train or supervise and the violation of the plaintiff’s rights; and (3)
the failure to train or supervise amounts to deliberate indifference.’” Id. (quoting Goodman v.
Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009)).
The Gorskys have failed to direct the court to evidence showing that Corporal Rivaux
acted with deliberate indifference or implemented any unconstitutional policy. Even after the
court afforded the Gorskys an opportunity to rewrite their summary judgment response, they
have presented only the following inadequate argument:
Deputy Rivaux was the scene supervisor. Deputy Rivaux was aware of what was
happening to the Gorskys and had a duty to supervise but failed to intervene and
prevent the unreasonable searches and seizures, warrantless entries into the
Gorsky’s home and excessive force as described above.
38
(Docket Entry No. 76 at 26). Summary judgment is granted on the Gorskys’ supervisory liability
claim against Officer Rivaux.
H.
Municipal Liability
To hold Harris County8 liable for its officers’ constitutional violations, the Gorskys must
show that (1) the constitutional violation was caused as the direct result of the execution of an
official “custom” or “policy”; (2) the custom or policy was approved or sanctioned by county’s
final policymaker; (3) the final policymaker acted with deliberate indifference; and (4) the
custom or policy was the “moving force” behind the violation. See Bd. of Cty. Comm’rs v.
Brown, 520 U.S. 397, 403–04 (1997); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1416
(5th Cir. 1997) (en banc). “Municipal liability cannot be sustained under a theory of respondeat
superior.
[T]he unconstitutional conduct must be directly attributable to the municipality
through some sort of official action or imprimatur; isolated unconstitutional actions by municipal
employees will almost never trigger liability.” Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244,
247 (5th Cir. 2003) (alteration in original) (citing Brown, 520 U.S. at 403; Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (quotations omitted).
Official policy “usually exists in the form of written policy statements, ordinances, or
regulations, but it may also arise in the form of a widespread practice that is so common and
well-settled as to constitute a custom that fairly represents municipal policy.” Trammell v.
Fruge, 868 F.3d 332, 344 (5th Cir. 2017) (citing Peterson v. City of Fort Worth, 588 F.3d 838,
8
Although the Gorskys have also named the Harris County Constable Precinct 4 as a separate defendant,
the Gorskys refer to both Harris County and Precinct 4 as a single entity. Nor is the Harris County
Constable Precinct 4 an entity capable of being sued. Under Texas law, offices within counties are not
legal entities capable of being sued. See Thomas v. Harris Cty. Sheriff’s Dep’t, Civ. A. No. H-18-1800,
2019 WL 1201984, at *2 (S.D. Tex. March 14, 2019) (collecting cases that hold that offices within
counties are nonjural entities).
39
847 (5th Cir. 2009)) (internal quotation marks omitted). “A customary policy consists of actions
that have occurred for so long and with such frequency that the course of conduct demonstrates
the governing body’s knowledge and acceptance of the disputed conduct.” Zarnow v. City of
Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010); see also Jackler v. Byrne, 658 F.3d 225, 236
(2d Cir. 2011) (“Deliberate indifference to claims of such civil rights violations—tantamount to a
custom or policy sufficient to support municipal liability under § 1983—may be inferred from a
municipality’s lack of appropriate response to repeated complaints of such violations.”).
“A pattern requires similarity and specificity; prior indications cannot simply be for any
and all ‘bad’ or unwise acts, but rather must point to the specific violation in question.”
Peterson, 588 F.3d at 851 (internal quotation marks and alteration omitted). “[P]roof of a single
instance of unconstitutional activity is [generally] not sufficient for § 1983 municipal liability.”
Valentine Found. v. Uphoff, 211 F. App’x 276, 278 (5th Cir. 2006) (citing McConney v. City of
Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)). “Furthermore, a ‘handful’ of instances do not
constitute a pervasive custom or practice.” Garza, 2011 WL 3925020, at *4 (citing Pineda, 291
F.3d at 329); Saenz v. Dall. Cty. Cmty. Coll. Dist., 2011 WL 1935742, at *8 (N.D. Tex. May 16,
2011).
The Gorskys argue that the County ratified the officers’ conduct by not disciplining them
after the Gorskys complained.
(Docket Entry No. 76 at 26–27).
The Gorskys offer Ms.
Gorsky’s declaration stating that “[Mr. Gorsky] filed a complaint with Internal Affairs, but, after
half a year of silence, Internal Affairs informed us his complaints were ‘unfounded.’” (Docket
Entry No. 68-6 at 8). This is “wholly insufficient to satisfy the nonmovants’ summary judgment
burden.” See Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (a failure to
discipline an officer was not sufficient to show the county ratified unconstitutional conduct).
40
Nor does the Gorskys’ testimony that Internal Affairs declined to pursue their complaint
show a custom or practice of failing to accept complaints; at most, it shows a single isolated
incident. The Gorskys also reference a Harris County Constable Precinct 4 Memorandum from
2009. (Docket Entry No. 68-9). The memorandum reviews complaints alleging excessive force
and rude behavior filed against two other officers—Corporal Drummond and Deputy Glaze—
and concludes that while most of their complaints were cleared as unfounded, the two officers
received a statistically significant increase in complaints. (Id. at 1). The Gorskys argue that this
shows a practice or custom of allowing excessive force. (Docket Entry No. 76 at 27). But this
memorandum undercuts the Gorskys’ argument. It recommends closely reviewing the activities
of those two officers to verify that they were not using excessive force, and documents how the
Precinct required extra training for Corporal Drummond even though most of the complaints
were unsubstantiated. (Docket Entry No. 68-9 at 1, 5).
Finally, the Gorskys once again offer the testimony of their expert, Roger Clark, which
fares no better here. Clark states that the Precinct 4 “superiors and chain of command has a
custom and practice of supporting the egregious conduct of their officers and deliberately looks
the other way despite obvious incidents of bad and illegal conduct in the rank and file.” (Docket
Entry No. 68-10 at 9). This legal conclusion, as before, is inadmissible and is not competent
summary judgment evidence. Clark then continues in his affidavit to describe the alleged
incidents that support his conclusion by copying—word for word, including spelling errors—
allegations in the Gorskys’ complaint drawn from unrelated lawsuits regarding two incidents
with other officers. (Compare Docket Entry No. 1 at 6–13 with Docket Entry No. 68-10 at 9–
16). Even taking the Gorskys’ evidence as true for summary judgment, Clark’s reciting the
allegations from other complaints does not show more than two instances of unconstitutional
41
conduct. This is insufficient to establish a custom or practice to support municipal liability. See
Garza, 2011 WL 3925020, at *4 (citing Pineda, 291 F.3d at 329) (“[A] ‘handful’ of instances do
not constitute a pervasive custom or practice.”).
Summary judgment is granted on the Gorskys’ claims against Harris County and the
Harris County Constable Precinct 4.
IV.
Conclusion
The defendants’ motions for summary judgment are granted in part and denied in part.
Summary judgment is granted for all of the individual officer defendants on the Gorskys’ claims
for bystander liability and supervisory liability. Summary judgment is granted for Deputies
Berry and Small on the unlawful arrest and excessive force claims. Summary judgment is
granted for Harris County and Harris County Constable Precinct 4 on all claims. Summary
judgment is granted for all of the individual officer defendants on the Gorskys’ unlawful entry
claim to the extent it is based on the officers placing their feet in the doorframe; it is denied to
the extent the claim is based on them entering the home after the officers removed Mr. Gorsky.
Summary judgment is denied on the illegal search claim as to Deputy Small to the extent it is
based on her search for the son; it is granted as to Deputies Guajardo and Berry and Corporal
Rivaux. Summary judgment is denied as to Corporal Rivaux and Deputy Guajardo on the
Gorskys’ unlawful arrest claim to the extent it is based on arresting Mr. Gorsky, and on the
Gorskys’ excessive force claims.
SIGNED on February 3, 2020, at Houston, Texas.
_______________________________________
Lee H. Rosenthal
Chief United States District Judge
42
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