Romano et al v. City of San Marcos et al

Filing 25

ORDER GRANTING IN PART AND DENYING IN PART 18 Motion for Summary Judgment. Each defendant other than Harris is accordingly DISMISSED from this action. Signed by Judge Robert Pitman. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
EDWARD F. (ROCKY) ROMANO and
CHARLES E. SOECHTING,
Plaintiffs,
v.
CITY OF SAN MARCOS, et al.,
Defendants.

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1:15-cv-839-RP

ORDER
Before the Court is Defendants’ Motion for Summary Judgment. (Dkt. 18). Having reviewed
the parties’ arguments, the factual record, and the relevant law, the Court issues the following order.
BACKGROUND
Plaintiffs Rocky Romano (“Romano”) and Charles E. Soechting (“Soechting”) bring this
civil rights action against Defendants City of San Marcos and various employees of its police
department, including Chief of Police Chase Stapp, Assistant Chief Bob Klett, and officers Wade
Parham, Don Lee, and Lee Harris (collectively “Defendants”).
This controversy stems from the search of an airplane hangar owned by Plaintiffs Romano
and Soechting on April 14, 2015. On that day, the United States Department of Homeland Security
contacted the San Marcos Police Department (“SMPD”) with a request that it investigate an airplane
suspected of involvement in drug trafficking activity. Homeland Security purportedly informed
SMPD that a narcotics canine unit had alerted on the plane during an open air search in the South
Padre area, but that no narcotics were found and that probable cause was lacking. Defendants assert
that Homeland Security intimated that narcotics could have been unloaded from the plane before
the drug sniff, and that the plane could be carrying narcotics to San Marcos. Homeland Security

asked that SMPD send officers and a canine unit to investigate the plane upon its arrival in San
Marcos. Defendants assert that the owner of the airplane was not identified during this call.
In response to the request from Homeland Security, SMPD Corporal Jesse Saavedra
dispatched two SMPD police patrol units and a canine unit to assist in the investigation of the
suspect plane at the San Marcos Municipal Airport. Saavedra states that he saw a plane on the
tarmac upon his arrival that he confirmed the information provided by Homeland Security. The
officers observed two men—later identified as the pilot and Romano—exit the plane and get into
separate vehicles. SMPD officers later stopped the vehicles upon observing violations of the Texas
Transportation Code. By the time Defendant Lee arrived with a drug dog to perform an open-air
search, the plane had been placed in a hangar. The SMPD personnel left the airport by 6 p.m.
Saavedra briefed Defendant Harris on the call from Homeland Security and SMPD’s
resulting actions upon returning to the police station. Harris is a detective with the Hays County
Narcotics Task Force and was, according to Defendants, the primary agent in charge of the
investigation of the plane. Perceiving gaps in the investigation that required follow-up, Harris
responded to the airport later that evening. While en route, Harris contacted Assistant Chief Klett to
brief him on the matter and requested support from Lee, who would bring the drug dog, Odin.
Lee, Harris, and a third officer arrived at the airport around 9 p.m. Harris obtained
identification of the hangar that housed the suspect plane while Lee performed a baseline canine
sniff of two nearby hangars. Klett arrived during the baseline sniff and sought to determine who
owned the suspect hangar. When Lee moved to perform a sniff search of the suspect hangar, he
asserts that, consistent with his training, he checked each door to see if it was locked. He asserts that
he found the back door unsecured. Meanwhile, Klett determined that Plaintiffs owned the hangar
and advised the other officers on the scene of that fact. Because Harris had previously met

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Soechting and had his cell phone number stored in his phone, he decided to call Soechting to inform
him of what happened at the hangar.
Harris claims that he explained to Soechting that the officers found the back door unsecured
and that Soechting consented to the officers’ entering and searching the hangar. Soechting strongly
denies this, claiming instead that he emphatically refused consent to search and instead told the
officers to wait until he reached the airport. As an attorney, Soechting states that he keeps
confidential client files in the hangar and for that reason would never consent to unsupervised
access. Regardless, it appears to be undisputed that Harris informed the other officers that Soechting
had consented to a search of the hangar. The officers then entered the hangar to perform a search.
Defendants assert that Odin positively alerted at the seam of the compartment door above the wing
of the plane. Harris purportedly told Soechting about this and Soechting then said he would come to
the airport.
Soechting arrived at the airport to discover several officers in his hangar. While there,
Soechting demanded that the doorknob to the hangar door be dusted for fingerprints. According to
him, the door had been locked and must have been forced open, perhaps during a burglary. Parham
refused to dust for fingerprints, reasoning that there was no indication that anything had been stolen
and that, in any case, the only fingerprints on the doorknob were likely to belong to Harris, who had
recently opened the door. Soechting later consented to a search of the aircraft. After the pilot
arrived, the officers were allowed to enter the plane to search for the presence of narcotics. No
narcotics were found and the parties have not suggested that any further law enforcement actions
have taken place with respect to the Plaintiffs, the airplane, or the hangar.
Plaintiffs assert claims under 42 U.S.C. § 1983. They allege that the search violated their
Fourth Amendment rights and that it was in retaliation for the exercise of their rights under the First
Amendment.
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LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “if the movant shows there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material’ if its resolution could affect the
outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of
evidence to support the nonmoving party’s case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a
genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87
(1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). After the non-movant
has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for
the non-movant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 175 (5th Cir. 2000). The court will view the summary judgment evidence in the light most
favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
DISCUSSION
Defendants request summary judgment on the basis that the “probative evidence”
establishes that Soechting consented to the officers’ search activity and that there was thus no
violation of his Fourth Amendment rights. Additionally, they argue that Plaintiffs have not put forth
sufficient evidence to substantiate their retaliation claim. Finally, Defendants argue that Plaintiffs
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have not provided evidence to establish municipal or supervisory liability. The Court will consider
each of the constitutional violations before turning to the issue of municipal liability.
1.

Fourth Amendment
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,” and provides that “no
Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. The Supreme Court has
repeatedly held that “searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The exceptions to the warrant requirement
that are relevant to this dispute are consent and exigent circumstances. See United States v. Morales,
171 F.3d 978, 981–83 (5th Cir. 1999).
It is undisputed that the officers had no warrant to search the hangar. Nor do Defendants
contend that exigent circumstances justified the search. The legality of the search thus depends
entirely on whether Soechting consented. On this question, a fact dispute exists. Defendants offer
evidence that Soechting consented to their entry into the hangar, (Harris Depo. 40:1–12, Dkt. 18-4),
while Plaintiffs offer evidence that he repeatedly refused consent. (See, e.g., Pls.’ Ex. B (“Elizabeth
Soechting Decl.”), Dkt. 22-1, at 64). The resolution of this dispute must be left to the factfinder.
Although the parties dispute whether consent was given, there is no dispute in the evidence
that Harris told the other officers that Soechting provided consent. While not dispositive of whether
Plaintiffs’ Fourth Amendment rights were violated, the issue bears on whether the other officers are
entitled to qualified immunity.
“The doctrine of qualified immunity protects government officials from civil damages
liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659
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F.3d 359, 370 (5th Cir. 2011). There are two steps to determining whether a defendant is protected
by qualified immunity. See Saucier v. Katz, 533 U.S. 194 (2001). First, the court asks whether the
official “violated a statutory or constitutional right.” Morgan, 659 F.3d at 371 (quoting Ashcroft v. alKidd, 131 S. Ct. 2074, 2083 (2011)). Second, the court asks whether “the right was ‘clearly
established’ at the time of the challenged conduct.” Id. (quoting al-Kidd, 131 S. Ct. at 2083). A court
may, at its discretion, skip the first step and begin its analysis by asking whether the right in question
was clearly established. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Finally, “[e]ven if the
government official’s conduct violates a clearly established right, the official is entitled to qualified
immunity if his conduct was objectively reasonable.” Davis v. McKinney, 518 F.3d 304, 317 (5th Cir.
2008).
“A qualified immunity defense alters the usual summary judgment burden of proof.” Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden then
shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether
the official's allegedly wrongful conduct violated clearly established law. The plaintiff bears the
burden of negating qualified immunity, but all inferences are drawn in his favor.” Id. (internal
citations omitted).
Here, the right to be free from non-consensual warrantless searches is clearly established.
Osborne v. Harris Cty., 97 F. Supp. 3d 911, 928 (S.D. Tex. 2015) (“The case law shows that at the time
of the search, the right to be free from a warrantless forced entry and search, absent exigent
circumstances, was clearly established.”). Assuming Soechting clearly informed Harris that he did
not consent to their entry into and search of his hangar, a reasonable officer in Harris’s position
would readily understand that proceeding with the search without a warrant or exigent
circumstances would violate the Plaintiffs’ clearly established rights. The other officers, however,
had only Harris’s representation that Soechting consented to a search. In this situation, the officers
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might reasonably have believed that Soechting had permitted the search and that their actions were
thus constitutionally permissible. See Pearson v. Callahan, 555 U.S. 223, 244 (2009) (“The principles of
qualified immunity shield an officer from personal liability when an officer reasonably believes that
his or her conduct complies with the law.”). Accordingly, the officers other than Harris are entitled
to qualified immunity with respect to the initial entry into and search of Plaintiffs’ hangar.
Likewise, the Court finds no evidence suggesting that Soechting’s conduct after his arrival at
the hangar would have put the officers on notice that their conduct was unlawful, which might have
imposed liability on the officers for continuing their search. While Plaintiffs assert in their brief that
Soechting informed the officers on the scene that he had not consented, the only evidence they
cite—a portion of Soechting’s deposition—does not support that assertion. (See Soechting Depo.
138:15–25, Dkt. 22-1). 1 On the contrary, Plaintiff at some point provided express consent to search
the aircraft itself. (Id. 142:1–17). The officers who initially believed Soechting had consented would
therefore have no reason to believe that continuing with the search after his arrival might be
unlawful.
The Court thus concludes that, although there is a fact dispute concerning whether
Soechting had consented to the search, the evidence compels a finding that each individual officer
other than Harris is entitled to qualified immunity on this claim.
2.

First Amendment Retaliation
Defendants assert that Plaintiffs have provided no evidence that the Defendants engaged in

retaliation, since the investigation of Plaintiffs’ hangar was initiated on the request of Homeland
Security and that Defendants were not even aware that the airplane or hangar was connected to
Plaintiffs.

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In this portion of his deposition, Soechting recounts his conversation with Parham about dusting
the doorknob for fingerprints due to suspected burglary.
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To establish a First Amendment retaliation claim, Plaintiffs must show that “(1) they were
engaged in constitutionally protected activity, (2) the defendants’ actions caused them to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that activity, and
(3) the defendants’ adverse actions were substantially motivated against the plaintiffs’ exercise of
constitutionally protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 259 (5th Cir. 2002).
Assuming without deciding that both Plaintiffs had established that they engaged in
constitutionally protected activity and that the unlawful search of their hangar would chill a person
of ordinary firmness from continuing in that activity, the Court agrees with Defendants that
Plaintiffs have not identified any evidence that the search—or any other relevant police activity—
was motivated by their conduct.
On this point, Plaintiffs offer three arguments. First, they note that this element “presents a
fact issue, unsuitable for summary judgment.” (Pls.’ Resp., Dkt. 22, at 13). However, like any fact
issue, it is suitable for summary judgment when the party bearing the burden of proof puts forward
no evidence to support it. See Fed. R. Civ. P. 56(e) (allowing courts to consider issue of fact
undisputed where party fails to provide adequate support). 2 Second, Plaintiffs argue that
“[v]indictive enforcement . . . of a law may be done with the objective of discouraging or punishing
the exercise of one’s constitutional rights.” (Pls.’ Resp., Dkt. 22, at 13). But the proposition that
vindictive enforcement may be done for that reason is not evidence that the investigation was
vindictive enforcement actually intended to punish Plaintiffs. Finally, Plaintiffs assert that there is
evidence that at least some of the Defendants may have been aware which hangar belonged to
Soechting. (Id.). Yet the evidence they cite as support is only Soechting’s speculation that
Plaintiffs’ sole authority for their argument is Lott v. Andrews Center, 259 F. Supp. 2d 564 (E.D. Tex.
2003). That authority merely provides that the “motivating factor” element is inappropriate for
resolution on a motion to dismiss prior to discovery. Even then, the plaintiff must still plead something
more than speculation or personal belief. Jones v. Greinger, 188 F.3d 322, 325 (5th Cir. 1999). The
Court here is not concerned with a motion to dismiss and the parties have had a full opportunity for
discovery.
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Defendants may have become aware that he owned the hangar after they entered it, since his filing
cabinets listed his name prominently. (Soechting Depo. 181:25–183:3). Even if the evidence
established that Defendants had some awareness that Soechting owned the hangar, this would
establish only the conditions necessary for Defendants’ actions to have been retaliatory. No evidence
beyond speculation nudges this fact toward a plausible inference that Defendants’ conduct was, in
fact, motivated by Plaintiffs’ conduct.
The Court concludes that Plaintiffs have not established a genuine and material fact dispute
on the issue of motivation, and Defendants are therefore entitled to summary judgment as to
Plaintiffs’ retaliation claim. See Anderson, 477 U.S. at 249–50 (“If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.”) (citations omitted).
3.

Municipal Liability
Plaintiffs seek to hold the City of San Marcos liable for the allegedly unconstitutional search

of their hangar, 3 along with Chief Stapp and Assistant Chief Klett for their alleged failure to train
and supervise their officers. Defendants contend that Plaintiffs’ evidence does not furnish a valid
basis for municipal or supervisory liability.
It is well established that “[l]iability under the doctrine of respondeat superior is not cognizable
in § 1983 actions.” Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010). However,
supervisors and municipalities may be liable for constitutional violations that result from their own
wrongdoing. See id. Liability and supervisory liability may be established by showing, “in addition to
a constitutional violation, that an official policy promulgated by the municipality’s policymaker was
the moving force behind, or actual cause of, the constitutional injury,” and that the policy was
adopted “with deliberate indifference to the known or obvious fact that such constitutional
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Because Plaintiffs failed to establish a viable claim for First Amendment retaliation, it is
unnecessary for the Court to consider municipal or supervisory liability with respect to this claim. See
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding that municipal liability is unavailable if
no constitutional violation is established).
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violations would result.” James v. Harris Cty., 577 F.3d 612, 617 (5th Cir. 2009) (quoting Johnson v.
Deep East Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004)). A failure to
adopt a policy can also support liability, but “such omission must amount to an intentional choice,
not merely an unintentionally negligent oversight.” Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th
Cir. 1992). Liability can also be established under a failure-to-train theory, which requires the
plaintiff to establish that: (1) the defendant’s training policy procedures were inadequate, (2) the
defendant was deliberately indifferent in adopting its training policy, and (3) the inadequate training
policy directly caused the constitutional violation. Sanders-Burns, 594 F.3d at 381.
The Court agrees with Defendants that Plaintiffs have put forward insufficient evidence of a
policy, custom, or a failure to train that was the moving force behind their alleged constitutional
violation. Plaintiffs offer several pieces of evidence, but none creates a genuine fact dispute. The first
is an expert report of Gary Stone, a retired Assistant Chief of Criminal Law Enforcement for the
Texas Department of Public Safety. The report offers only conclusory assertions that “the officers[’]
actions in executing the search, record keeping of the search and efforts to conceal the events of that
day, each, independently deviates from well established training and standards applying to police
officers undertaking these actions.” (Stone Report, Dkt. 22-1, at 349). It continues by noting that
officers should investigate wrongdoing within the confines of the Constitution and that the search at
issue here “was illegal and [in] violation of the Plaintiffs’ rights to be free from unlawful searches.”
(Id. at 350). The report is far too conclusory to offer any support to Plaintiffs. See Stagliano v.
Cincinnati Ins. Co., 633 F. App’x 217, 219–20 (5th Cir. 2015) (“There is a level of conclusoriness
below which an affidavit must not sink if it is to provide the basis for a genuine issue of material
fact, and unsupported expert affidavits setting forth ultimate or conclusory facts and conclusions of
law are insufficient to either support or defeat a motion for summary judgment.”) (internal
quotations, citations, and alterations omitted).
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The next evidence Plaintiffs have identified is Chief Stapp’s deposition testimony wherein he
confirms that SMPD had no particular policy regarding having witnesses to or recordings of oral
consent to a search, or follow-up written consent after oral consent is given. (Stapp Depo. 38:14–
20). While obtaining written confirmation or having a witness might be advisable as a matter of best
practices, “best practices ‘do not establish constitutional minima.’” Brown v. Timmerman-Cooper, No.
2:10-cv-283, 2013 WL 430262, at *4 (S.D. Ohio Feb. 4, 2013); Miles v. Bell, 621 F. Supp. 51, 60 (D.
Conn. 1985). Voluntary oral consent provides constitutionally adequate justification for a warrantless
search whether or not the consent is recorded or later confirmed in writing. Moreover, Plaintiffs
here allege that each of the officers proceeded with an illegal search despite knowledge that
Soechting repeatedly and unequivocally objected. The failure to record consent was thus not the
moving force behind the claimed violation. Rather, it was the officers’ alleged deliberate disregard of
the lack of consent. While having Soechting’s consent or objection recorded might have made this
litigation more straightforward, it would not have prevented the unlawful search of Plaintiffs’
hangar.
Plaintiffs next point to the deposition testimony of Parham establishing that the Narcotics
Task Force does not have regularly scheduled meetings to discuss its open investigations. (Parham
Depo. 9:2–4, Dkt. 22-1). Plaintiffs also point to testimony showing that officers selected for the task
force receive on-the-job training lasting between two weeks to two months, along with additional
classroom instruction. (Id. 11:21–12:10). 4 The relation of these facts to the matter at hand is unclear.
Lacking any explanation from the Plaintiffs, (see Pls.’ Resp., Dkt. 22, at 16), the Court is unable to
imagine that regular meetings to coordinate task force activity would have prevented the allegedly
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Curiously, to support the claim that the officers “do not receive specialized training by the city, but
instead are thrust into simple on-the-job training,” Plaintiffs also cite the deposition testimony of
Defendant Harris. Harris testified that he attended “narcotics detective school” and received on-thejob training for several months thereafter. (Harris Depo. 9:2–24, Dkt. 22-1). While technically true
that the training was not provided “by the city,” (Pls.’ Resp., Dkt. 22, at 15; Harris Depo. 10:2–3,
Dkt. 22-1), the apparent suggestion that the city expected only on-the-job training is misleading.
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unlawful search, and the Court will not hazard a guess as to what about the on-the-job and
classroom training offered to task-force members Plaintiffs feel is inadequate.
Plaintiffs finally point out that Assistant Chief Klett did not supervise or control Harris’s
activity while at the hangar on April 14, 2015. However, in this instance, Klett may be responsible
for failing to control Harris’s actions only if Klett was aware that Harris had a propensity to engage
in unlawful searches. See Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (“A plaintiff
seeking recovery under a failure to train or supervise rationale must prove that the police chief failed
to control an officer’s ‘known propensity for the improper use of force’”) (quoting Sims v. Adams,
537 F.2d 829, 832 (5th Cir. 1976)). Plaintiffs have neither alleged nor offered evidence to prove that
Harris had a propensity for unlawful searches of which Klett was aware. Klett is therefore not liable
under § 1983 for his failure to supervise or control Harris’s actions in conducting a search of
Plaintiffs’ hangar. See id.
Plaintiffs’ failure to provide sufficient evidence of an inadequate policy or training that was
the moving force behind the alleged unlawful search is fatal to municipal or supervisory liability. The
court therefore grants summary judgment to Stapp, Klett, and the City on these claims. 5

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The Court additionally finds the evidence insufficiently establishes the necessary element of
deliberate indifference. However, Defendants did not challenge Plaintiffs’ showing in that regard
and the Court accordingly bases its decision on other grounds.
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CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendants’ Motion for Summary Judgment. (Dkt. 18). The motion is DENIED as to Plaintiffs’
Fourth Amendment claim against Defendant Harris in his individual capacity. The motion is
GRANTED in all other respects.
Each defendant other than Harris is accordingly DISMISSED from this action.
SIGNED on September 11, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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