King v. City of Austin et al

Filing 21

ORDER DENYING 13 Motion to Dismiss. Signed by Judge Sam Sparks. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

17r? 2
T

BREAION KING,

Plaintiff,
Case No. A-16-CA-1020-SS

-vs-

THE CITY OF AUSTIN, TEXAS and OFFICER
BRYAN RICHTER,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendant City of Austin, Texas (the City)' s Motion to Dismiss [#13], Plaintiff Breaion

King (Plaintiff)'s Response [#15] in opposition, and the City's Reply [#16] in support. Having
considered the documents, the governing law, and the file as a whole, the Court now enters the

following opinion and order.
Background1

This case arises out of Plaintiff's allegations she was subjected to excessive use of force and
racial discrimination by Officer Bryan Richter of the Austin Police Department (APD) in the course

of a routine traffic stop. Plaintiffclaims Officer Richter and the City are liable to her under 42 U.S.C.
§

1983 for violating her constitutional rights and under 42 U.S.C. § 1981 for violating her federal

rights. Am. Comp. [#12] at 10.

1The recited facts are taken from Plaintiff's amended complaint and documents incorporated in the complaint.

V

I.

Plaintiff's Arrest
Plaintiff is a black woman who weighs approximately 120 pounds and is about five feet, five

inches tall. Id. at 5, 7. According to Plaintiff, she was driving home on 1-35 in Austin, Texas during

the early afternoon of June 15, 2015. Id. at 4. Plaintiff admits she was driving "slightly over the
speed limit." Id. When Plaintiff observed a police patrol car flash its overhead lights in her rearview

mirror, however, she believed the patrol car was pursuing a vehicle that had just sped past her. Id.
Thus, Plaintiff continued driving, eventually pulling into a restaurant parking lot. ld.

After parking, Plaintiff opened the door of her vehicle and began to walk toward the
restaurant when Officer Richter's patrol car also pulled into the parking lot. Id. at 4-5. A white male,
Officer Richter asked Plaintiff to return to her vehicle, and Plaintiff complied. Id. After Plaintiff

returned to her vehicle, Officer Richter approached. Id. at 5. With the driver-side door of the car
open, Plaintiff was seated in the driver's seat with her legs outside the vehicle. Id. Plaintiff asked

Officer Richter whether he could pull her over when she had already parked her car and stepped out,
and Officer Richter informed her that she had been speeding and requested her driver's license. Id.

Plaintiff reached under the car seat for her driver's license. Id.
Officer Richter asked Plaintiff to place her legs inside the vehicle. Id. Immediately, Officer

Richter again asked Plaintiff to place her legs inside the vehicle. Id. Plaintiff did not refuse to place

her legs inside the vehicle but was not given time to comply with the commands. Id. Officer Richter
then demanded Plaintiff step out of the vehicle, grabbing her to pull her out of the car. Id.

Plaintiff claims Officer Richter, in attempting to rip her out of the car, slammed her "against
the steering wheel, causing the car horn to honk in short bursts and a long, sustained burst.

.

.

." Id.

Plaintiff pleaded for Officer Richter to stop touching her and allow her to get out of the car
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voluntarily. Id. Ignoring Plaintiff's pleas, Officer Richter removed Plaintiff from her vehicle,

slamming her against a nearby truck and then on to the parking lot pavement. Id. at

5-6.

Officer

Richter then positioned himself on top of Plaintiff, placing his elbow into Plaintiffs neck and
attempting to handcuff her. Id. at 6. Plaintiff requested she be allowed to place her hands behind her
back without them being forcefully yanked, but Officer Richter simply yelled at her to put her hands

behind her back. Id. He then threatened to use his taser and Plaintiff screamed "Oh my god, why are
you doing this to me?" Id.

Officer Richter then brought Plaintiff to her feet but attempted move her back to the ground

by placing her in a chokehold and repeatedly kicking her legs out from under her. Id. Eventually,

Plaintiff once again lay on the ground and Officer Richter handcuffed her. Id. At some point, another
APD officer arrived.

See

id.

Although Plaintiff was restrained and another officer was present,

Officer Richter yanked Plaintiff off the ground by the chain of her handcuffs. Id.
Other officers soon arrived and asked Officer Richter for his account of the interaction with

Plaintiff Id. Officer Richter claimed Plaintiff had attempted to throw a punch at him and said "no"
twice when he asked her to put her legs in the car. Id. He stated, "If she was a guy, man, I would
have just hit her and been done with it." Id. Officer Richter then asked for Plaintiff to be charged
with resisting arrest, saying "If they ask what she's resisting[,] just put arrest. If they ask specifically

what she was resisting{,] say arrest. They won't care about that." Id.

Plaintiff requested to be transported by an officer other than Officer Richter, and she was
placed Officer Spradlin's police car. Id. at 6-7. During the ride to the police station, the following

conversation was recorded on video:

Officer Spradlin: Well let me ask you this. Why are so many people afraid of black
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people?

Plaintiff: That's what I wanna figure out! Because I'm not a bad black person.
Officer Spradlin: I can give you a really good.

.

.

a really good idea of why it might

be that way.

Plaintiff: Why?
Officer Spradlin: Violent tendencies. And I want you to . . . I want you to think
about that. I'm not saying anything. I'm not saying it's true. I'm not saying I can
prove it or nothing. But 99% of the time when you hear about stuff like that, it's the
black community that's being violent. That's why a lot of the white people are afraid,
and I don't blame them. There are some guys I look at. . . I, yeah.. I know it's my
job to deal with them and I know it's probably going to go ugly.. But that's the way
it goes. But yeah, some of them, because of their appearance or whatnot, some of
them are very intimidating.
.

.

.

Id.

at7.
At the police station, Plaintiffwas charged with resisting arrest. Id. Those charges were later

dismissed "in the interest of justice." Id.

II.

Officer Richter's History
According to Plaintiff's amended complaint, Officer Richter committed numerous excessive

force violations against individuals but had not been disciplined for those violations before

Plaintiff's arrest. Id. at 8. Plaintiff summarizes video evidence from three different incidents but
includes no details on when the events occurred or the race of the individuals with whom Officer
Richter interacted. See

id.

In the first incident, Officer Richter pulled over a male driver and a female passenger. After

the driver refused a breathalyzer test, the situation escalated. Id. Officer Richter placed the driver in
a chokehold and forced him to the ground. Id. Recording the incident, the female passenger was

ordered to return to her vehicle. Id. As she was returning to the vehicle, Officer Richter then grabbed

her from behind, kicked her legs out, and threw her to the ground. Id.
In the second incident Plaintiff summarizes, Officer Richter approached four individuals

standing outside on the sidewalk. Id. Officer Richter began to handcuff one individual while a fellow

officer arrested another. Id. Although the individual he was arresting offered no physical resistance,
Officer Richter grabbed the individual by his neck and threw him violently to the ground. Id.
In the third incident, a car pulled out in front of Officer Richter's patrol car, causing Officer

Richter to serve to avoid a collision. Id. He then pulled over the motorist. Id. After approaching the
car and without any announcements, Officer Richter opened the car door and grabbed the motorist.
Id. He told the motorist he would be tasered if he did not immediately get out of the car. Id. With two

other officers, Officer Richter pulled the motorist out of the vehicle. Id. The motorist was tasered
at least two times while on the ground. Id. The motorist was placed on the hood of Officer Richter's

patrol car, and Officer Richter told the motorist, "If you kick me it'll be the last thing you do." Id.

III.

APD Context
Claiming APD follows a custom or practice ofracial targeting, Plaintiff cites a study released

by the Center for Policing Equity (CPE) in October 2016 analyzing data from 2014 and 2015. Id. at
9. In particular, the CPE study reviewed APD data concerning vehicle stops resulting in citation or

arrest in 2015 and incidents involving police use of force in 2014. PHILLIP ATIBA GOFF ET AL.,
CENTER FOR P0LIcmJG EQUITY, THE SCIENCE OF POLICING EQUITY 15 (2016). Particularly relevant

here, the study reported that "[e]ven when controlling for neighborhood levels of crime, education,

homeownership, income, youth, and unemployment, racial disparities in both use and severity of

force remained." Id. at

15

(emphasis in original). Plaintiff notes the study also"found that there are

racial disparities in the decision to stop and search a suspect, and that 'Austin's neighborhoods with
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a higher percentage of black or Hispanic residents experienced a disproportionate amount of police
use of force." Am. Compl [#12] at

9.

In addition, Plaintiff cites a report by KXAN in her amended complaint, claiming the report

"found numerous cases of officers over a five year period misreport[ed] on official documentation
that black or Hispanic individuals who were arrested or received citations were 'white." Id. Plaintiff
alleges that such a custom or practice "allows officers to avoid discipline for racially motivated
arrests and citations." Id.2

Without specifying a date or elaborating on the context, Plaintiff also claims former Chief

of Police Art Acevedo made statements in a recorded meeting "reprimanding APD supervisors." Id.
at 9-10. In particular, Chief Acevedo stated, "[W]e are at a crossroads in American policing. And

the problem isn't the cops. The problem is the leadership." Id. at 10. He continued, "And I am
sickened that somehow people are still trying to justify Richter. Nobody wearing stripes, or bars or
stars should even think about justifying.

.

.

that the reason that woman got pulled out of that car is

because she had the audacity to tell him to hurry up." Id. He also stated, "Had that been a pretty
white girl in her Sunday best dress, I don't think that Richter would have responded .. . that way."
Id. Chief Acevedo

asked,"Who cares what he wrote [in the report]? Because I think we have this

attitude, of I'll just cover it in the report and I'll be good to go

.

. .

Anybody can do creative

writing." Id. He also remarked, "The problem is leadership that lacks the intestinal fortitude to
make the tough calls. That rather than just call it the way it should be called, they try to mitigate for

the officer, they try to act like their union rep. That is not our job." Id.

2plaintiffprovided no identifving information for this report nor did Plaintiffindicate the date it was published.

IV.

Procedural History
Plaintiff filed her suit against the City and Officer Richter on August 8, 2016. Compi. [#1].

The City then filed a motion to dismiss alleging failure to state a claim. Mot. Dismiss [#4]. The

Court granted the City's first motion to dismiss, finding Plaintiff only provided general allegations

without the specific factual allegations necessary to establish a cause of action and granting Plaintiff
leave to amend. Ord. of Oct. 14, 2016 [#9] at 2.
Subsequently, Plaintiff filed an amended complaint, Am. Comp!. [#12], and the City again

moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Mot. Dismiss [#13]. The motion
is now ripe for decision.

Analysis
I.

Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief."

FED.

R. Civ. P. 8(a)(2). A

motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for

"failure to state a claim upon which relief can be granted." FED. R. Civ. P. 1 2(b)(6). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v.
U.S. 662, 678 (2009);

Bell Ati.

Corp.

v. Twombly,

Iqbal,

556

550 U.S. 544, 570 (2007). "A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although
a plaintiff's factual allegations need not establish that the defendant is probably liable, they must

establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining

plausibility is a "context-specific task," and must be performed in light of a court's "judicial
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experience and common sense." Id. at 679.

In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all
factual allegations contained within the complaint. Leatherman

v.

Tarrant Cty. Narcotics

Intelligence & Coordination Unit, 507 U. S. 163, 164(1993). However, a court is not bound to accept
legal conclusions couched as factual allegations. Papasan

v.

Al/am, 478 U.S. 265, 286 (1986).

Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead

"specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061,
1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well

as other sources such as documents incorporated into the complaint by reference, and matters of

which a court may take judicial notice. Tellabs, Inc.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308,

322 (2007).

II.

Municipal Liability under § 1983
Under 42 U.S.C.

§

1983, "[amy person who, under color of any law, statute, ordinance,

regulation, custom, or usage of any State, shall subject or cause to be subjected, any person to the

deprivation of any rights, privileges or immunities secured by the Constitution of the United States,
shall
§

. . .

be liable to the party injured

1983. See Monell

v.

.

.

.

." A municipality is a "person" subject to suit under

N YC. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978). In Monell, however,

the Supreme Court held a municipality can be liable under § 1983 only where the municipality itself
causes the constitutional violation at issue. See Id. at 694-95.

Specifically, a municipality can be sued "if it is alleged to have caused a constitutional tort

through 'a policy statement, ordinance, regulation, or decision officially adopted and promulgated
by that body's officers." Zarnow

v.

City

of Wichita Falls, 614 F.3d
-8-

161, 166 (5th Cir. 2010)

(quoting City ofSt. Louis v. Praprotnik, 485 U.S. 112, 121(1988)). Alternatively, a municipality can
be held liable "where the constitutional deprivation is pursuant to a governmental custom, even if

such custom has not received formal approval." Id. (citing Monell, 436 U.S. at 690-9 1). Municipal

liability under § 1983 requires proof ofthree elements: (1) apolicymaker; (2) an official policy; and
(3) a violation of constitutional rights whose moving force is the policy or custom. Id. (quoting

Piotrowski

III.

v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).

Plaintiff's Allegations
Plaintiffalleges the City violated her constitutional rights to be free from the use of excessive

force and free from racial discrimination in police actions because it:
1.] Had an inadequate policy for preventing use of force violations by its police
officers;

2.] Had an inadequate training program for training its officers in the proper use

of

force;
3.] Had an inadequate hiring policy in that it failed to screen out potential officers

who presented a plainly obvious risk of committing use of force violations;
4.] Had an inadequate disciplinary policy in that it failed to adequately punish,

re-train, or sanction officers who committed excessive force violations;
Was deliberately indifferent by the established unwritten custom, practice, or
policy of racial targeting and racist motivations in its officers' uses of excessive
force;
5.1

6.] Had an inadequate training program for training its officers with respect to the
rights of citizens to be free from racism in law enforcement and excessive force in

making arrests;
7.] Had an inadequate hiring policy in that it failed to screen out potential officers

who presented a plainly obvious risk of taking law enforcement actions based on the
race of the individuals who were the subjects of those actions; []
8.] Had an inadequate disciplinary policy in that it failed to adequately discipline or

punish officers who violated the rights of citizens to be free from racially-motivated
law enforcement actions[;]
9.] Had a custom, policy, or practice

of using chokehold takedown maneuvers to

arrest individuals unnecessarily[;]
10.] Had an inadequate training program in that officers are trained that the
chokehold takedown maneuver is an acceptable use of force in arresting a suspect,
even one who exhibits no resistance or minimal resistance[; and]

Had a custom or practice of falsely reporting that the arrestee who was subjected
to the use of excessive force was resisting arrest so the officer is able to avoid
discipline for excessive force violations.
11.1

Am. Comp. [#12] at 3-4.

IV.

Analysis
In its motion to dismiss, the City argues Plaintiff failed to provide (1) sufficient factual

allegations of an official policy that resulted in the alleged excessive use of physical force by an
officer or (2) that such policy was the moving force for a violation of constitutional rights. Mot.
Dismiss [#13] at 4-17. The Court disagrees, finding Plaintiff pled sufficient facts to allow the Court
to draw the reasonable inference that the City is liable for the misconduct alleged.

Official policy

A.

For a § 1983 claim against a municipality, an official policy may be evidenced by custom that
is "a persistent, widespread practice of City official or employees, which, although not authorized

by officially adopted and promulgated policy, is so common and well-settled as to constitute a

custom that fairly represents municipal policy.. ." Piotrowski, 237 F.3d at 579 (quoting Webster
.

v.

City

of Houston, 735 F.3d 838, 841 (5th Cir.

1984)). To demonstrate a governmental policy or

custom under § 1983, a plaintiff must at least show "a pattern of similar incidents in which citizens

were injured or endangered by intentional or negligent police misconduct and/or that serious
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incompetence or misbehavior was general or widespread throughout the police force." Fraire v. City

ofArlington, 957 F.2d 1268, 1278 (5th Cir. 1992).
However, specific details regarding the existence or absence of internal policies or training

procedures are unlikely to be known prior to discovery. See Thomas v. City ofGalveston, Tex., 800
F. Supp. 2d 826, 842-43 (S.D. Tex. 2011) (collecting cases discussing the ability

alleging municipal liability under

§

of a plaintiff

1983 to plead specifics regarding policies or customs). Only

minimal factual allegations may be available at the motion to dismiss stage. Id.

Nevertheless, in order to provide fair notice to the defendant, a plaintiff must do more than
simply restate the elements of a cause of action. See Iqbal, 556 U.S. at 678-79 (prohibiting

allegations in a complaint that are no more than "[t]hreadbare recitals of a cause of action's
elements"). Allegations that provide notice include, but are not limited to, past incidents of

misconduct to others, multiple harms that occurred to the plaintiff, misconduct that occurred in the
open, the involvement of multiple officials in the misconduct, or the specific topic of the challenged

policy or training inadequacy. Thomas, 800 F. Supp. 2d at 842-43 & nn.1 1-15 (summarizing cases
where plaintiffs pled sufficient facts to plausibly state a

§

1983 claim against a municipality).

Here, Plaintiff provides sufficient allegations regarding the existence or absence of internal
APD policies plausibly establishing constitutional violations. Most significantly, Plaintiff alleges
multiple incidents of misconduct by APD officers, Officer Richter in particular, before her arrest.
Am. Compi. [#12] at 8. Plaintiff describes, in detail, three recorded incidents where Officer Richter

used severe force with no or negligible provocation. Id. Claiming Officer Richter has not been

disciplined for any of these incidents, Plaintiff suggests constructive knowledge of Officer Richter's
pattern of misconduct. Id.

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In addition, citing a statement by Chief Acevedo that he is "sickened that somehow people
are still trying to justify Richter[,]" Plaintiff adds further factual support to her allegation the City

knew of its officers' use of excessive force. Id. at 10 (emphasis added). Chief Acevedo's use of the
word "still" implies an ongoing practice that might have been common knowledge.
Similarly, citing the 2016 CPE study and the KXAN report, Plaintiff alleges facts suggesting

racially-motivated law enforcement actions and excessive use of force are not limited to Officer
Richter but are widespread in Austin, even when controlling for neighborhood levels of crime,
education, home ownership, income, youth, and unemployment. Id. at 9. Although APD correctly

points out the CPE study was published after Plaintiffs arrest, the study publicized data APD already
possessed before Plaintiff's arrest. It is reasonable to conclude the City knew about the trends in its
data before the information was published in an official study.

Additionally, Plaintiff includes the details of a recorded conversation with Officer Spradlin
where he commented "But 99% of the time when you hear about stuff like that, it's the black

community that's being violent." Id. at 7. Officer Spradlin's comment and the conversation as
excerpted in the complaint suffice to imply APD officers feel permitted to use of force against black
individuals. See

id.

Plaintiff also highlights statements by Chief Acevedo suggesting he, as well as

other APD supervisors, already knew there was practice of disproportionately using force against

minorities. Id. at 10 (quoting Chief Acevedo as stating, "Had that been a pretty white girl in her
Sunday best dress, I don't think that Richter would have responded

. .

.

that way."). These facts

support a plausible inference that the City has a practice of racial discrimination in police actions.
Furthermore, the Plaintiff's allegations concerning the incident themselves aid in

substantiating Plaintiffs allegations of a policy. Plaintiffs arrest occurred in the middle of the day
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in a public parking lot. Although another officer was present, Officer Richter yanked Plaintiff off

the ground by the chain of her handcuffs. Id. at 6. When other officers arrived and Officer Richter

discussed charging Plaintiff, he stated, "If they ask what she's resisting[,] just put arrest. If they ask
specifically what she was resisting[,] say arrest. They won't care about that." Id. His statement is
enough to suggest the City avoided inquiring into an officer's true motivations for arrest or use of
force. Such an inference is reinforced by Chief Acevedo' s alleged statement indicating inquiry into

an officer's behavior has customarily stopped at the report. Id. at 10 (claiming Chief Acevedo said,

"'Who cares what he wrote [in the report]? Because I think we have this attitude, of I'll just cover
it in the report and I'll be good to go ... Anybody can do creative writing.")

At this stage in the litigation, Plaintiff's allegations create a plausible inference the City had
an informal policy or custom of, at least, tolerating police misconduct. Moreover, as the majority of

use of force incidents Plaintiff describes involved multiples officers and no subsequent disciplined,

Plaintiff alleges sufficient facts to suggest the City had inadequate hiring, training, or supervising
policies to prevent officers from violating suspects' rights.
B.

Moving Force
To succeed in proving the moving force element, a plaintiff must show a "a direct causal

link" between the policy and the violation. Id. at 580. A plaintiff must demonstrate that a
policymaker promulgated such a policy or custom "with deliberate indifference to the known or
obvious consequences that constitutional violations" would be a direct result of that policy.
Piotrowski, 237 F.3d at 5 79-80. While negligence is insufficient to meet the deliberate indifference
requirement, "even a facially innocuous policy will support liability if it was promulgated with
deliberate indifference.

.. ."

Id. at 579 (quoting Bd.

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of Cty. Comm 'rs v. Brown, 520 U.S. 397, 404

(1997)).

Here, Plaintiff alleges the City's customs and practices relating to the use of force and the
lack of discipline for officer misconduct constitutes the moving force behind the violation of her
rights. In particular, as discussed above, Plaintiff provides specific allegations supporting her claim
she was subjected to a use of force by Officer Richter, who has a history of prior excessive force

violations. Am. Compi. [#12] at 8. Plaintiff implies if the City adequately disciplined its officers or

scrutinized the practice of falsely reporting arrest resistance, Plaintiffs rights would not have been
violated. Id. at 8-10.

Moreover, Plaintiffprovides additional allegations suggesting the City maintained deliberate
indifference to the likelihood of racial targeting and excessive use of force. For example, Plaintiff
alleges the use of force even in situations where the severity of the crime is low. Id. at 9. Chief

Acevedo's comments to the APD supervisors also suggest both the supervisors and Chief Acevedo
collectively knew about officer misconduct but "lack[ed] the intestinal fortitude to make the tough
calls." Id. In aggregate, these allegations plausibly state a claim that the City's informal policies or

customs were a moving force for Plaintiff's constitutional deprivations and injuries.

Conclusion
Viewed in the light most favorable to the Plaintiff, the amended complaint includes specific
allegations allowing a reasonable inference the City could be liable for the alleged misconduct. In

particular, Plaintiff specifies sufficient factual allegations which plausibly support the claim the City
expressly or impliedly authorized excessive use of force and racial discrimination by APD officers,

which caused Plaintiffs injuries. Plaintiff provides more than a boilerplate recitation of the grounds
for municipal liability and has given the City fair notice of the grounds on which it is being sued.
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Thus, as Plaintiffs allegations pass muster under Twombly, 550 U.S. at 570, and Iqbal, 556 U.S. at
678, the City's claims Plaintiff cannot establish municipal liability can be reconsidered through

motions supported by an evidentiary record. At that time, the Court will "weed out unmeritorious
claims[,]" if any. Leatherman, 507 U.S. at 169.
Accordingly:
IT IS ORDERED that Defendant City of Austin's Motion to Dismiss [#13] is
DENIED.
SIGNED this the

act day of March 2017.

/rrL4f7V

SAM SPARKS
UNITED STATES DISTRICT JUDGE

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